Human Rights Tribunal of Ontario
B E T W E E N:
Christine Horner
Applicant
-and-
Peelle Company Ltd.
Respondent
DECISION
Adjudicator: Ruth Carey
Indexed as: Horner v. Peelle Company Ltd.
APPEARANCES
Christine Horner, Applicant
Peigi Ross, Counsel
Peelle Company Ltd., Respondent
Gordon Weir, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging sexual harassment in employment, sexual solicitation, and reprisal for rejecting a sexual solicitation or advance. It involves a long-term, productive, and friendly business relationship that went awry when a romantic advance was rejected.
2From 2001 until she resigned in 2012 the applicant was the respondent’s financial controller. She worked closely with Hank Peelle (the “respondent’s owner”) throughout her employment. He is the sole owner, chief executive officer and president of the respondent. After almost a decade of working together, the respondent’s owner developed romantic feelings for the applicant, believed they were reciprocated, and asked the applicant for a kiss. After she rebuffed his advance, the respondent’s owner dealt with her rejection by changing his pattern of interactions with the applicant.
3The questions to be addressed here are:
Is the respondent’s owner’s request for a kiss a sexual solicitation or advance within the meaning of s. 7(3)(a) of the Code?
Was he in a position to confer, grant or deny a benefit or advancement to the applicant?
Did the respondent’s owner know that his request for a kiss would be unwelcome or ought he reasonably to have known that?
Does his changed behaviour after the rejected kiss incident constitute reprisal or a threat of reprisal pursuant to s. 7(3)(b) of the Code?
Does the series of events that occurred constitute sexual harassment pursuant to s. 7(2) of the Code?
If the answer to some or all of the questions above is yes, what remedy if any is the applicant entitled to?
4For the reasons stated below I am satisfied that the respondent’s owner’s request for a kiss is a breach of s. 7(3)(a) of the Code; and that his change in behaviour after the applicant’s rejection constitutes a breach of s. 7(3)(b). The allegation that his behaviour also constitutes sexual harassment is dismissed. The applicant is awarded $28,000 for injury to dignity, feelings and self-respect and $50,219 for loss of earnings arising from the respondent’s infringement.
5The hearing of this Application took place in Toronto on September 4, 5, and 6, 2013, and on February 4, and 5, 2014. The applicant testified on her own behalf and called as a witness, William Coady. The respondent’s owner testified on behalf of the respondent.
FINDINGS OF FACT
6There is little dispute between the parties with respect to most of the facts set out below. I note in these reasons those instances where material disputes arise. Where one party to the application led evidence that was not contradicted by the other I accept that party’s evidence on that point.
The Applicant’s Employment with the Respondent
7The respondent is a family owned and operated company that manufactures, sells, and maintains freight elevator doors. It is headquartered in the United States with subsidiary corporations in Ontario and Singapore. Its sole manufacturing facility is in Ontario. The respondent employs about 75 people.
8The respondent’s owner plays multiple roles with respect to the respondent. He became its sole owner in 2008 when his cousin retired. He is the president of its three-person board of directors and he works for the respondent in the role of chief executive officer.
9Up until March 2011, the respondent’s owner was resident in North Carolina. He travelled and worked out of the Ontario facility about 10 days per month. He says e-mail is his preferred method of communicating with his direct reports.
10The applicant is a certified management accountant. In 2000 she was hired by the respondent as the accounting manager. At the time it was anticipated she would be in that position for two years and step into the corporate controller’s job after his retirement. He retired earlier than expected and the applicant became the respondent’s corporate controller in 2001. She worked full-time at the facility in Ontario.
11During her employment as the corporate controller the applicant was responsible for the respondent’s financial affairs including its subsidiaries: accounts payable and receivable; costing; payroll; invoicing; cash flow management; and foreign exchange transactions. Her reporting duties included creation of financial statements on a quarterly basis, forecasts, budgets, and journal entries. She did audit work at year end and maintained the respondent’s relationships with auditors and bankers. She had a staff of three reporting to her and she reported to the respondent’s owner.
12As the respondent’s corporate controller the applicant was part of the respondent’s operating committee. For at least one of the subsidiaries she was the corporation’s treasurer. In January of 2010 she became a director on the board of the New York-based corporation, and at some point in time prior to that a director of the Singapore-based one.
13The applicant resigned her employment effective June 29, 2012. By that time she was earning an annual salary of $122,980. Pursuant to the most recent addendum to her employment contract she was entitled to a 10% signing bonus on January 1 of each contract year. It appears there was also the possibility of an annual bonus based on corporate performance of about one month’s salary. The applicant was entitled to a benefits package including a pension plan and four weeks’ annual vacation.
The Relationship with the Respondent’s Owner Prior to February 28, 2011
14For a number of years the applicant and the respondent’s owner enjoyed a friendly business relationship. With the passage of time social interactions between them became more common primarily because of a shared interest in sport. They became friends. As the marriage of the respondent’s owner started breaking down, his feelings for the applicant took on a romantic aspect. By the fall of 2010 he was creating business-related reasons for them to spend more time together; partly to enjoy her company and partly because he was trying to figure out if his feelings were reciprocated. By February of 2011, he was convinced that the applicant shared his romantic interest. This was not true. The applicant was completely oblivious to the romantic feelings of the respondent’s owner and did not return them; for her the change in their business interaction was a welcome professional opportunity – a chance to learn more about the respondent’s business and grow in her role.
15The earliest evidence offered by the parties with respect to the social aspect of the relationship is the applicant’s statement that she took interesting vacations that caught the imagination of the respondent’s owner. In 2003 she climbed Mount Kilimanjaro. She says the respondent’s owner was sufficiently interested in her travels that he sent her a book called The Seven Summits, an account of business executives talking about climbing. He says he has no recollection at all of discussing anything personal with the applicant prior to 2006, when he increased his sport-related activities and took up running. That being said he did not rebut the applicant’s evidence with respect to her vacation climb in 2003 so I accept her evidence and find that there were pleasant social interactions between the applicant and the respondent’s owner as early as 2003.
Sports
16The social aspect of the relationship increased over time as a result of a mutual interest in sport.
17The applicant is a passionate and committed long distance runner and triathlete. She swims. She plays squash. She has been actively involved in these activities for more than 15 years.
18In 2006, the respondent’s owner also took up running. He says that he gained some weight while studying for his PhD in management which he completed in 2005 or 2006. A number of people at work ran as a hobby so he picked it up and found he really enjoyed it. This mutual interest became a topic of casual conversation between himself and the applicant. They sent e-mails back and forth about races the other might be interested in participating in. Sometimes they ran the same races.
19In 2009 the respondent’s owner returned to swimming as a fitness hobby and the applicant bought a bike, resulting in additional common sports-related interests between them. Casual e-mails went back and forth about their individual swimming workouts. In 2010 they registered for the same swimming class. In December 2010, the applicant suggested the respondent offer gym membership as an employee benefit and mentioned in this context her own gym which was only a few minutes away from the office. At least one other employee of the respondent was also a member. The respondent’s owner joined the same gym, probably in or around January, 2011. He and the applicant talked about doing a triathlon together.
20A number of e-mails between the applicant and the respondent’s owner in which they discuss sports-related activities were entered into evidence. For example, on May 6, 2010, the respondent’s owner wrote to her:
I am in search of a great place to run a trail race in June or July and thought I would share. Perhaps something might catch your interest too. I did some research on Mont Tremblanc (see below). The race looks like quite a challenge, with steep hills, ropes, lots of streams, plus bugs. It is close, which is nice.
Next up are trail races somewhere out West.
21This e-mail was introduced into evidence by the respondent during the testimony of the respondent’s owner. When asked why he sent it to the applicant he replied that in this e-mail he is asking the applicant to go away with him for a race in Mont-Tremblant. On cross-examination it was pointed out to him that the e-mail does not actually ask the applicant to go away with him. He says it was implied.
22On July 26, 2010, the applicant wrote an e-mail to the respondent’s owner with the subject heading “Halliburton” saying:
Thinking of doing this race – Sat Sept 11th – 50K, are here?
23The respondent’s owner says in this e-mail the applicant is inviting him to go to Halliburton to run a race with her. Halliburton is not that far from where the applicant and her boyfriend, William Coady, spend weekends together at a cottage on Lake Rousseau. The respondent’s owner was aware the applicant had a boyfriend and often went away with him to the cottage on weekends.
24In another e-mail dated September 22, 2010, the applicant sends a link to the respondent’s owner. He says just before this e-mail was sent he and the applicant were having lunch with the respondent’s insurer and they talked about doing a race as a team. The link is to one such race in Colorado.
25In the fall of 2010 the applicant participated in an “ultra” marathon race in the Sahara, running 250 kilometers over six days. At the end of the day participants can blog about their experience and receive encouraging posts from supporters. The respondent’s owner did that. After the applicant returned from the race he wrote a postscript about it in an e-mail dated October 21, 2010:
Really looking forward to hearing about your trip next week. It has really captured the imagination of everyone…
26In response the applicant writes that her pictures are getting developed, she is looking forward to telling him about her great adventure and then “…Atacama in March?” The respondent’s owner says this was the applicant inviting him to join her at her next ultra-marathon race in Chile. He says he told the applicant he was going to go. In examination-in-chief he said when he subsequently mentioned this to his wife she was so outraged he changed his mind about it and told the applicant he was not going. On cross-examination he confirmed there was some discussion with the applicant about his wife attending that race as a volunteer. He did not say anything to her about his wife being upset.
27The respondent’s owner found ways to use the applicant’s sporting activities in the respondent’s business. After her first desert run in the Sahara, a small human interest story was written by the respondent for inclusion in one of the elevator trade magazines, a form of advertising. It took that same story and gave it to an industry radio show for a news clip. About eight months later, the applicant participated in a similar race in a desert in Chile and the respondent’s owner suggested she run for an industry- associated charity. They agreed she would co-operate with the publicity effort but would not run for the charity; instead the respondent made a donation to the charity and used her run as part of the back story of the donation.
28In February of 2011, the respondent’s owner gave a presentation to the operating committee based on the idea that diversification of product lines would not work unless there was passion for the new product. In preparing for this presentation he interviewed the applicant about her passion for running.
The Condo Purchase
29After the respondent’s owner became the sole owner in 2008, the respondent purchased a condominium in Ontario for business use. The respondent’s owner says he spent half his life in hotels; purchasing the condominium seemed to make business sense. The respondent’s owner used it, as did the vice-president of sales who travelled to Ontario for a few days every month.
30In response to an e-mail sent to the entire operating committee, the applicant volunteered to help the respondent’s owner decorate and buy supplies for the new condominium. She researched furniture for him, arranged delivery, and they went shopping together for items like pots and pans. Both of them enjoyed this activity. The respondent’s owner says this experience brought them closer together, so much so that when his wife found out about it she asked him to stop the applicant’s participation in decorating the condo, which he did. He says his wife believed that he and the applicant had feelings for one another and that was an issue discussed by them in marriage counselling; but he never told the applicant why he asked her to stop helping him set up the condo or that he and his wife were in marriage counselling.
31After the respondent purchased the condo the respondent’s owner started spending more time in Ontario on the occasional weekend. From September 2008 to January 2010, his spouse typically travelled and stayed in the condo with him and sometimes she accompanied him to races.
32Over the years the applicant met the respondent’s owner’s son who worked in the New York office; she was a corporate director of that operation. She met his wife at races. Through their mutual sporting interests, the respondent’s owner met the applicant’s mother and father who attended some of her races. They both say they were friends.
The Fall of 2010
33The respondent’s owner says that by the fall of 2010, he considered his marriage to be essentially over. He says he was enamoured with the applicant and wanted to take steps to be closer to her so he embarked on a course of conduct that would result in them spending more time together. This took the form of business-related activities: one-on-one lunches where business issues were discussed as well as mutual sporting interests; business lunches with clients and other employees; trips to job sites, the shop floor, and the New York operation; and attendance together at Board of Trade events. All of these activities were expensed to the respondent as business activities.
34For example, the applicant and the respondent’s owner had lunch together on September 9, September 23, October 29, November 11, November 18, and December 10, 2010; and on February 10 and February 18, 2011. The most expensive of these lunches cost $45.30. The applicant asserts and the respondent’s owner does not deny that these lunches had a business focus and were productive. For example, it was during one of these lunches that the two of them came up with the idea of generating revenue by renting out a piece of industrial equipment the respondent owned but was not in use full-time.
35However, the respondent’s owner says he conceptualised these as “lunch dates”. He says he wanted to entertain the applicant, show her a good time; however, he was unsure of how far to go so he kept it in a business context.
36In his testimony the respondent’s owner tied the start of these lunch dates to the race the applicant participated in the Sahara, but the Sahara race was in October and the lunches he refers to started prior to that. On cross-examination he acknowledged that prior to September 2010, he had lunched with the applicant for business reasons but those lunches were not one-on-one. For example, they lunched with the respondent’s insurer every year.
37The respondent’s owner says that during the applicant’s race in the Sahara he “blogged” her every day with warm, affectionate, and funny e-mails telling her how great and wonderful she is. He says that this was his way of expressing his feelings in an odd sort of way. The respondent did not enter these e-mail blogs into evidence at the hearing.
38During this period the applicant and the respondent’s owner also had lunches together that involved other people: other employees, a customer, and the auditor.
39On November 3, 2010, the respondent’s owner invited the applicant to join him and the respondent’s product development manager on a job site visit during which they all had lunch together. On November 18, 2010, she went with him to a client visit which included a lunch with the client. Prior to these events the applicant had never gone on a site visit or accompanied the respondent’s owner to see a client.
40Each year the respondent’s owner visits the New York office around Christmas time. He goes on promotional sales calls and there is a dinner with the New York staff. In 2010 he invited the applicant to go with him. He says he thought it would be fun for her.
41The applicant became a member of the local Board of Trade in 2006 and volunteered on its finance committee. The respondent accommodated her meeting schedule.
42In 2010 the respondent’s owner also joined the Board of Trade. He and the applicant attended multiple events at the same time so it was natural for them to sit together. Sometimes they attended at the invitation of the respondent’s banker. On two occasions the respondent’s owner invited the applicant to attend a Board of Trade event as part of his attempt to be closer to her: a speech by then-Premier Dalton McGuinty and the Mayor’s Lunch on February 25, 2011.
The Advance
43By February of 2011 the respondent’s owner had come to believe that the applicant shared his romantic interest. He says he believed this because his actions and their mutual interactions would have signalled that to her. On cross-examination he stated that the amount of time he spent with her could have been interpreted as him having a romantic interest in her.
44So on Saturday, February 26, 2011, the respondent’s owner sent the applicant an e-mail by way of her personal e-mail address. The subject line was “Egypt and Risk”. The respondent’s owner says that in his mind this e-mail was his declaration to the applicant that he wanted to have a romantic relationship with her. It reads as follows:
Is [it] ethical to deviate from our HR and employee policies if those policies imposed a barrier between us?
You know what a great thing a partnership can be. Experiences are richer when shared with the right person. We learn so much more when we feel, see and hear through another. Decisions and choices are much better when two in-sync people work together.
In a partnership, the other person is integral. Life is a mutual project. Yeh, I may not always like what you tell me, but I still incorporate it. In a partnership, telling is not a risk but a responsibility. Considering and acting are also responsibilities.
Does a partnership shift the issue from risk to responsibility?
Some revolutions occur at gunpoint. However, revolutions resulting in a partnership between people and politicians require both sides to undertake courageous acts (A single individual stepped up – Mubarek stepped down). In a democracy, partnership requires citizens willing to accept the responsibility of active participation. As you said, in Canada, there is little risk of acting; instead, we act because it is our responsibility. Even so, to act requires courage.
Does a partnership between two people require each person to undertake acts of courage? Yet, what kind of partnership can exist, if an act of courage tramples on ethics (see my initial question). How can we resolve the two?
Christine, I have seen and been in many relationships in my time. Going forward I will accept nothing else but partnership.
45The applicant says that when she got this e-mail she thought it was simply a continuation of a conversation they had been having earlier at the Board of Trade about the political situation in Egypt. She says she found this e-mail to be quite cryptic. She did not understand the reference to policy. She read the last sentence about partnership more than once and thought it was possible it meant the respondent’s owner was trying to say she was not being co-operative at work.
46The applicant says it never crossed her mind that this e-mail was a declaration of romantic interest. The respondent’s owner was married. He had been married for 25 years. She was in a long-term committed relationship with William Coady and the respondent’s owner had heard her speak of him many times. In her view there had been no prior indication of any romantic interest towards the other on the part of either of them. She says she and the respondent’s owner were friends and co-workers and nothing more.
47Neither party filed into evidence a copy of the applicant’s response to this e-mail but she says she sent one. In it she states the respondent should not deviate from policies because they exist to ensure procedures are fair and equitable for everyone; however, because there are changes to businesses over time, policies might need to be modified to address changing conditions. She says that because she did not know what policy he was referring to, she could not really answer his question. The respondent’s owner says he does not recall her e-mailed reply.
48The policy the respondent’s owner was referring to is a section of the respondent’s Office Employee Manual entitled “Relatives and Non-Working Relationships”. It says in part:
Should you enter into a personal relationship with a company employee, the company will take action to ensure that neither person is in a position of authority nor or influence over the other nor that they both work in the same department. This may include a transfer to a different department or demotion to a position where authority cannot be exercised.
If you enter into a non-working relationship, you must report it to the President. Failure to report that a personal, non-work related relationship exists will result in disciplinary action.
[Emphasis added.]
49After the applicant’s reply e-mail the next time the applicant and the respondent’s owner spoke was early on the morning of February 28, 2011. They attended the same spin class at the gym.
50After the spin class was over the respondent’s owner asked the applicant if he could speak to her and suggested they step into an adjacent room, a yoga studio. The applicant says he told her she looked pretty without makeup and she said thank you. Then the respondent’s owner leaned towards her and asked if he could kiss her. She moved backward in response and asked him why he wanted to do that to which he replied that he liked her.
51The applicant says she then told the respondent’s owner that they did not have that kind of relationship and besides, he was married and the applicant was in a long- term loving relationship with Mr. Coady. The respondent’s owner acknowledges he was aware of her relationship with Mr. Coady. He told her he wanted to make his intentions known and revealed to the applicant for the first time that he and his wife were separated. She remarked to him that this explained why he was having the company valued, which was a project she had been working on in the mistaken belief it was being done for succession planning purposes following his son joining the respondent’s New York office. The applicant then told the respondent’s owner he was a great boss, she loved working for the respondent and with her co-workers, and nothing needed to change. They agreed things would continue as before including the lunches and then both left the gym.
52The respondent’s owner says that his immediate reaction to this event was to think “wow” he had just made a huge mistake. He really believed that something of a personal nature existed between them. It was at that moment he realised how wrong he had been. He says he felt terrible.
53Within the next 24 hours the applicant sat down and created a written narrative of this event. She says she did this in case she needed to recall it at a later date and because she felt it was important to capture her feelings at the time. The respondent’s owner says he cannot disagree with her description of what happened on the morning of February 28, 2011. The applicant’s narrative is also consistent with her evidence before the Tribunal and says in part:
I called my boyfriend Bill to tell him what had happened and how I was feeling, as my stomach was in knots.
I don’t know [where] [the respondent’s owner] was coming from, he knew I had a long time boyfriend as I [brought] his name up often, I never gave [the respondent’s owner] any signals that I was interested in him. We do talk about sports a lot as we have a similar interest and we have run together on occasion but he has run with other coworkers. Did he just think I would say, wait a minute and let me just call Bill and end it with him? It left me feeling upset as I was put in a situation that I didn’t ask for and he had no right to suggest. It also left me feeling angry. He knows my character (or I thought he did) yet his suggestion would mean cheating on my boyfriend. We had had a conversation about a couple who were running friends of his who are having an affair and when he told me about it I made it clear it was not right. [The respondent’s owner] had said you don’t know her situation which I responded but she is married.
54The respondent’s owner confirms the conversation referred to in the narrative above about the running friends of his who were having an extra-marital affair. It occurred sometime between September, 2010 and February 25, 2011. The respondent’s owner acknowledges he was aware that the applicant did not approve of extra-marital romantic relationships at the time he asked her for a kiss. She had told him she would never have an affair.
55During the course of his evidence I asked the respondent’s owner to respond to a logical syllogism: he knew the applicant did not approve of extra-marital affairs, and he knew the applicant was unaware of his separation from his wife. This means logically she would be more likely to respond favourably to his advance if he disclosed his separation to her before asking for a kiss, so why did he not tell her in advance? He says that in hindsight that would have been reasonable but it did not occur to him at the time. I asked him why it did not occur to him at the time and he said “perhaps it is because I was ready”.
The Aftermath
The Initial Period
56The applicant’s narrative describing what happened on February 28, 2011, also says:
I went into work at 9:00 AM, [the respondent’s owner] was there and at some point in the morning he came in [to] my office and apologized and said he could move on as if nothing happened and if I had an issue I should let him know, I responded that I would as I was not able to continue with this in my head.
57The next morning, on March 1, 2011, the respondent’s owner sent the applicant an e-mail at work with the subject line “Apology”. In it he apologises again and offers his reassurance that he can continue their productive working relationship as professional colleagues. It says in part:
I am not angry, resentful, hurt, or rejected. I would do nothing to intentionally hurt you, even though I did so yesterday. I am more embarrassed then anything. As I have said many times, you are an excellent employee… It would be unforgivable is this incident caused you to leave.
Even so, in my opinion you should consider reporting this incident, even if it is just to [respondent’s counsel]. Not only would it establish a record, it would give you someone with influence over me you can talk to if you wish additional remedies, or have additional concerns. It is important that you feel completely comfortable and safe. This is one way to reassure you.
I have attached a draft for your review, which we can discuss.
58Attached to this e-mail is a copy of the respondent’s “Harassment Complaint Form” which is part of its “Workplace Discrimination and Harassment Policy”. The respondent’s owner had completely filled in the form. He describes the incident in question as “an unwelcome gesture indicating a romantic interest in [the applicant]”. Under the heading “Action Taken at the Informal Stage” he states that they had discussed the matter on two occasions, during which he apologised and stated that it would never happen again, he did not wish to harm the applicant, “and that the normal productive working relationship would continue unabated”. He then lists a number of things the applicant might ask for to resolve her proposed complaint. The list is as follows:
(1)Investigate the incident to ensure that the informal resolution contained herein addressed [the applicant’s] concerns;
(2)Establish a method to monitor the behaviour of [the respondent’s owner] to ensure that he maintains a positive and productive working relationship with [the applicant];
(3)To establish written documentation and a formal warning to [the respondent’s owner] should additional disciplinary action be required; and
(4)Provide [the applicant] with multiple sources aware of past events, should counseling be required, or to lodge additional complaints should any unwanted behaviours reoccur.
59The applicant says that this e-mail did not surprise her. She knew the respondent’s owner was a stand-up guy and he would want to set things straight. In her view attaching the completed complaint form was also characteristic of him; she says he likes to control situations.
60The respondent’s owner also says completing the appended draft complaint form is characteristic of him. It seemed the right thing to do and what he would advise her to do if he were being objective. He says that he was trying to protect the applicant.
61Ten minutes after the e-mail with the appended draft complaint was sent to the applicant, she sent an e-mail in response. In it she states that she has not had a chance to review the attachment but feels no need to speak to respondent’s counsel. She writes:
The last thing I want is to make anyone feel uncomfortable or embarrassed. Life is too short for these types of feelings. I appreciate the apology and please don’t be embarrassed. The tone of our meeting will be positive but it is necessary in order for us to work together without this issue in the background.
62About 20 minutes after that, she e-mailed the respondent’s owner again saying she preferred to meet in the office after hours; in case she became emotional she did not want any co-workers to wonder what was going on. The respondent’s owner agreed and in his e-mail he jokes he will bring tissues. His e-mail then states:
As I said, I will not have a problem going forward. I look forward to our continued collaboration. I am clear on the line between us, which is a good thing for me. Just like an Invisible Fence, I only need to get zapped once.
But it is really important to me that I do the right things.
63The respondent’s owner says this e-mail reflects his challenge: he recognises his mistake; the personal relationship has gone too far from his perspective. He says it was good to know there was not the personal relationship he believed existed; he would not make the same mistake twice.
64They then met as agreed. The applicant says she asked him why he would behave in such a manner knowing she was in a long-term relationship with Mr. Coady. He told her he had never met Mr. Coady so he did not consider him. She says she got a little teary-eyed explaining to him she did not like being in a situation where she is sitting across from someone who is uncomfortable. He again reassured her that it would not affect their working relationship and everything would return to normal. She says she told him she did not need to file the formal complaint he had suggested; she believed it would not be a problem as he was a stand-up guy and nothing in their mutual past indicated to her they could not simply put what happened behind them. The respondent’s owner says when the applicant told him she did not feel the need to file a formal complaint form, he took no further steps with respect to the four suggestions set out in the appended draft that are cited above.
65The respondent takes the position that during the months of April and May, 2011, the relationship between the applicant and the respondent’s owner returned to a normal and co-operative business relationship. It entered into evidence a number of e-mails from that period in support of that assertion.
66The applicant does not dispute that work went on during this period; things got done. But she disagrees that the manner in which the work was done returned to normal. She specifically says one of the e-mail strings tendered into evidence by the respondent indicates the respondent’s owner was not co-operative as he declined on one occasion her request to discuss something in person. She says that was a change in behaviour from before February 28, 2011, and unhelpful in addressing the question at hand promptly.
67The e-mail string in question is dated May 3, 2011, the relevant parts of which are as follows:
a. From respondent’s owner to the applicant and one other person: “… we need to talk about laying-off workers then immediately turning around that bringing them back in…first issue, of course, is if this practice is actually a problem… If not, then no action might be required. So far, our efforts to forecast this … have not panned out… If we agree that this is a real problem we could assemble a small group… to perform a root cause analysis.”
b. From applicant: “Perhaps the three of us should discuss together.”
c. From respondent’s owner: “Yes, we will need additional discussion, but only if this is a problem.”
d. From applicant: “Our conversation would just be easier as a group first determine if it is a problem (the three of us) rather than sending emails to discuss the thought process…:”
e. From respondent’s owner: “All I wanted to know was if you or [the other employee] thought that this practice posed a problem. I did not believe that a meeting was necessary to answer this question.”
68For the most part the e-mails from this period support in part both parties’ position. Business was getting done; the applicant and the respondent’s owner communicated with one another professionally and cordially. However, things did not go back to the way they were before. This is particularly evident in the context of the casual e-mails the applicant sent the respondent’s owner about running.
69On the weekend of April 17, 2011, the respondent’s owner was running the Boston Marathon. The applicant sent the respondent’s owner an e-mail wishing him a great race and recounting some of her impressions from when she ran the same race. The following Monday she sent him a short congratulatory e-mail saying she looked forward to hearing about his experience. The next day at the end of an e-mail about business matters she asked him how his legs were feeling. In all of the e-mails mentioning sports that were provided by the parties for the period prior to February 28, 2011, the respondent’s owner either replies to or initiates the exchange. After February 28, 2011, he completely stops.
70The respondent’s owner does not deny this. He describes the applicant’s e-mail of April 17, 2011, wishing him good luck in the Boston Marathon as an attempt “to re-establish” a personal relationship. He says it made him uncomfortable; he did not want to re-establish the relationship because that would be going down the same path that led to the incident in the first place. He said none of this to the applicant because according to him, at the time he did not think it was significant.
71In addition, he says that after February 28, 2011, he recognised he had misinterpreted the applicant’s behaviour and he decided he needed to change his behaviour; there had been such a mix of personal and business – where do you set the line? So the respondent’s owner took the position that he should be governed by legitimate business needs. If he needed to speak to the applicant about something to do with the business, he would do so and in the manner that he thought was most appropriate. If e-mail would work he used e-mail. If it was necessary to meet with her he would, but his philosophy was to keep it strictly to business and be cautious. He agrees this meant he had less interaction with the applicant.
May 31, 2011
72The incident of February 28, 2011, was discussed again between the applicant and the respondent’s owner on May 31, 2011.
73The applicant says that in the period after February 28, 2011, she could see things were changing. Activities done before were not continuing and it concerned her. There were no business lunches or casual conversations about non-business interests. There were fewer personal meetings and more e-mail communications. She says if she walked into his office to drop something off he would barely look up from his computer or acknowledge her. He avoided eye contact.
74The applicant connected this change in behaviour to the respondent’s owner’s continuing discomfort over the incident of February 28, 2011, so she went to talk to him about it.
75The applicant says she told him that there still appears to be a problem and enough time has passed; things should be back to normal. The respondent’s owner does not refute the applicant’s version of events but he does use different language. He describes what the applicant said to him that day as “critiquing his performance”.
76The applicant offered to leave her employment with the respondent. She suggested to him that if he needed her to leave she would. As the owner he obviously could not leave and there was nowhere for her to go except out the door; no hard feelings, but if it is not going to work out she could just leave and she would tell other employees it was to pursue other interests. No one had to know the real reason. The respondent’s owner told her he did not want her to leave her employment and if the February 28, 2011 event caused her to leave that would be the worst thing that could happen. She says he promised to alter his behaviour for it to be more in line with what happened in the past. She believed him and accepted his reassurances.
77In contrast the respondent’s owner says that when he said he would alter his behaviour, what he meant was the business aspect of their relationship would be more interactive. He would communicate face-to-face more. He says that during this meeting he explicitly told her things could not return to the way they were; their future interactions would be dictated by legitimate business reasons. He says after this there were two occasions when he thought something was bothering her and asked if she was okay, to which she answered everything was fine.
78Given the content of the follow up e-mail he sent her quoted below, I accept the applicant’s evidence that the respondent’s owner told her he would alter his behaviour so that their interactions were more like they had been in the past. The applicant was not asked during her testimony whether or not the respondent’s owner explicitly told her things would never return to the way they were. Given that fact and her evidence that October 20, 2011, was the first time the respondent’s owner told her he did not want to discuss anything of a personal nature with her, I am not prepared to accept the evidence of the respondent’s owner that he explicitly told her on May 31, 2011, that things would never return to the way they had been before.
79During the meeting of May 31, 2011, the applicant also suggested that the respondent’s owner start informing other senior employees about the change to his marital status as it meant he was moving to Ontario on a full-time basis, something that other executives had a reasonable and valid need to know. In February 2011, boxes started arriving for the respondent’s owner in the Ontario office and people were wondering what was going on. The other director of the New York-based corporation asked the applicant about it, and as a fellow director, she told him.
80On May 31, 2011, the respondent’s owner sent an e-mail to the applicant saying:
Thank you for the one on one today. It is for reasons just like this that we have these meetings. I have advised the members of the Operating Committee of my marital situation. I will also contact [the Vice-President of sales] and speak with him directly concerning this. In addition, I will alter my behaviors toward you to be more in alignment with how they were in the past.
If new issues arise or I have not adequately addressed the above, then please let me know.
Thanks again
[Emphasis added.]
81The applicant wrote back saying “you’re welcome” and assuring him she would let him know if new issues arose.
82At this point in time the respondent’s owner did not notify anyone of the applicant’s concerns, retain outside assistance, or take any of the other steps he suggested might be possible in the appended draft complaint form that accompanies his March 1, 2011 e-mail.
The Period Between June 1 and October 20, 2011
83During the period between June 1, 2011 and October 20, 2011, the respondent’s owner says he attempted to re-engage with the applicant on business-related matters. He did this in direct response to his meeting with the applicant on May 31, 2011. For the reasons stated below I accept that assertion. However, that does not mean I accept the proposition that their business interactions were of the same quality as they were prior to February 28, 2011.
84On June 21, 2011, the respondent’s owner completed the applicant’s annual performance review. The review has various areas of activity and both the applicant and the respondent’s owner filled out a ranking for each area. The respondent’s owner’s final overall ranking was 4.75, where 4 is “very proficient” and 5 is the highest score and means “highly proficient”. The applicant received a pay increase as a result which is described on the inter-office memo written by the respondent’s owner as the “Minimal Increase”. The parties also signed a document entitled “Addendum to Unwritten Employment Agreement” which is essentially a three-year employment contract with a signing bonus of 10% of base salary every January 1 for three years. Neither party indicated at the hearing that there was anything different about these documents or the performance review in comparison to previous years.
85During the performance review process the applicant and the respondent’s owner discussed adding a new category to her job description involving analysis and leadership which would require her to regularly report the outcome of investigations to the respondent’s owner. The respondent’s owner says he added this category to her job description in order to create a reason for them to interact on a regular basis. For him it was their path forward to a business relationship.
86The applicant says this change was merely a formalisation and continuation of the work she was already doing. However, in an e-mail to the respondent’s owner dated August 3, 2011, she writes:
I think the attached course would be beneficial, particularly considering the new direction of my job we discussed during my performance review.
87The attachment was for a course entitled “Certificate Program in Strategic Analytics”. The respondent approved the course and the applicant attended it.
88Given the applicant’s e-mail of August 3, 2011, I accept the evidence of the respondent’s owner over that of the applicant. I am satisfied that the change in the job description that occurred in June of 2011 was a deliberate attempt on his part to increase his interactions with the applicant concerning business-related matters.
89Both parties led evidence at the hearing about negotiations that occurred during this period for a particular contract.
90The respondent’s owner says he was having difficulty interacting with the applicant concerning this contract negotiation. He says he would make copious notes about the draft contract and pass them along to both the vice president of sales and the applicant and ask for input. He says that he did not get the sense that they were getting back to him as they should. He made notes about this in preparation for a meeting with them on July 8, 2011. The notes indicate he has concerns about their performance: they do not seem to know the details as well as they should; they are not asking questions about proposed changes; they are unprepared for meetings; and are not strong advocates for the respondent’s position as opposed to the customer’s.
91The applicant says this was constructive criticism that she did not have a problem with. However, she also says that part of the reason this criticism arose was because the respondent’s owner was not a third member of the team working on the negotiations directly so he was not aware of all of the correspondence. She states that prior to February 28, 2011, the respondent’s owner would have been a third member on this team but he was now on the outside looking in.
92On September 12, 2011, the respondent’s owner sent them both an e-mail saying in part:
I appreciate your hard work in negotiating this agreement. Your efforts transformed what was a terrible document into something we can live with.
93The respondent’s owner did not refute the applicant’s testimony that prior to February 28, 2011, the respondent’s owner would have been an equal member of the negotiating team or her characterisation of him as an arms-length participant looking in. As a result, I am satisfied that although the respondent’s owner tried to increase the interactions he had with the applicant about business matters during this period, the nature and quality of those interactions was not as comfortable or effortless as they had been prior to February 28, 2011.
October 20, 2011 and the First Resignation
94On October 20, 2011, the applicant and the respondent’s owner met for their quarterly one-on-one meeting. One-on-one performance reviews were normally scheduled for half an hour, but the respondent’s owner had scheduled this one for only 15 minutes.
95The respondent’s owner often prepares notes in advance of meetings of what he intends to say. The documentary evidence indicates that his notes for the meeting of October 20, 2011, were more detailed than usual. They were not in point form; rather they were in complete sentences. The parties agree that at the meeting of October 20, 2011, the respondent’s owner essentially read these notes to the applicant. The notes were entered into evidence at the hearing. The applicant describes the notes and the respondent’s owner’s act of reading them to her as “the speech”.
96The notes begin with the respondent’s owner indicating he saw no legitimate business reason for her to go to New York in December 2011 when he would be going there as usual. The previous year the applicant had accompanied him and the Vice-President of sales on their annual business trip to New York. That was the same year she had become a corporate director of the New York-based corporation. She attended the Christmas dinner; she met with customers there along with the sales executive; sometimes the respondent’s owner was with them and sometimes he was not. In 2011, she and the Vice-President of sales were planning to do the same thing. But at the meeting of October 20, 2011, the respondent’s owner told her the less people we drag into a customer’s office, the better, and if she needed to go to New York to resolve collection issues she should do it now and not at Christmas. The respondent’s owner says he asked her if it was okay if she did not go.
97The notes indicate he then told her the following:
There is also one issue I need you to address. I suspect that you are not actually aware of your pattern of interaction with me. If not, I want you to be aware so you can adjust accordingly.
There are two areas where you go out of your way to bring it to my attention.
The first is your running events. You regularly ask me about this or that event. I do recognize that your real desire is to tell me about some event you have participated in or will participate in. This really is the subject of most interest to you and I understand your enthusiasm. But given the frequency, it leaves the impression that you want me to take a personal interest in you and your running activities.
The second most common topic to take an interest in is business related subjects that are personal to me and tend to relate somehow to my marriage situation or my transition to a Canadian resident. No doubt that these are relevant issues that need to be addressed, but given that this is pretty much the focus of your business related conversations with me, it leaves the impression that you have some personal interest in me and my status.
What you do not engage me in are discussion (sic) that an Accountant would typically bring to her boss – such as… [examples omitted]
If I were to sum this up, I might conclude that your interest in me is more personal than work related. Of course I know this is not the case. I am clear that you do not have a personal interest in me, but are not conveying that.
I do understand the difference between superficial expressions of interest that occur in normal social situations and expressions of seemingly genuine interest. For example, [name omitted] of [place omitted] and I both share an interest in running. We see each other perhaps one (sic) or twice a year, and when we do, we talk running. However, if someone made a point to find me at the RR and then ask me every week for months on end about my latest race, and my training, and shared her races and training with me, it would eventually occur to me that she is interested in me.
This is the problem. First, your actual interactions suggest a desire for a personal relationship, which is not the case. Second your expressions of personal interest inhibit my ability to address my own personal issues. Now that you are aware, you can look for these patterns and change the content of your interactions with me.
This is how it works with everyone else… Sure, occasionally [name omitted] or [name omitted] might ask if I enjoyed my vacation, but such an inquiry is a rare event…
The boundary is clear: I have a work relationship with those I employ and nothing more. The content of our interpersonal interactions are completely consistent…
… this kind of clear boundary has always worked for me. In our case, it will make it clear to me that your interest is strictly work-oriented and no more. We will be clear in our relationship and I can move on.
[Emphasis added.]
98The applicant says that as a result of the respondent’s owner saying these things to her she was offended and their meeting became a lively discussion. She told him she was very surprised. She took particular offense at being accused of being overly interested in matters pertaining to his separation and move to Ontario. She says she pointed out to him that he was the one who asked her to be involved with issues arising from his move and separation and the tasks were related to her job. For example, he had to be moved to the Canadian payroll and she was the only one who could tell others in payroll to do this type of work.
99The applicant’s statement that it was the respondent’s owner who kept asking her to do tasks associated with his move and separation is corroborated by the e-mails filed into evidence. The e-mails are about paying Canadian taxes, accessing OHIP, the tax deductibility of alimony in Canada, and possible options with respect to his wife’s access to spousal health benefits in the face of the pending divorce. Except for one, the e-mails all follow the same pattern; namely, the respondent’s owner either asks the applicant a question or asks her to research an issue for him or asks her to put him in touch with someone who can answer a question, and then she replies. The only exception to this pattern in the e-mail strings entered into evidence is dated April 12, 2011, when the applicant forwards to him a newsletter she receives monthly from the auditors because it contains a section on the tax implications of divorce. However, the question of taxes and his divorce was raised by the respondent’s owner earlier in an e-mail dated April 1, 2011, in which he asks the applicant for the contact information of the person he wishes to see to get tax advice related to his separation.
100The applicant says she also took exception to his comments during the meeting of October 20, 2011, about her being the one to always be bringing up running because it just was not true. The second desert run she did was after the incident of February 28, 2011; it was the respondent’s owner who approached her about the run and the possibility of using it in conjunction with a donation to generate some positive attention in the industry. The respondent’s owner did not deny this.
101Similarly she states that the allegation she did not discuss with the respondent’s owner the business items he listed is simply not true. They were discussed in various different venues, in the operating committee, and as part of the commentary to her review.
102She says she told him she was treating him the same as everyone else and no differently then she had in the past. It is life actually; the way people interact in the workplace; it is not all business. She talks with one employee about cottage life and snowmobiling in the winter, boating in the summer; she speaks with another about home repairs. She has common interests with a lot of people. She says she told him that the fact they participate in so many common activities outside the workplace and at the same time and place means it is natural they would communicate more than anybody else in the organisation about outside activities.
103The applicant also says it is not true that the respondent’s owner does not have social interactions with other employees. He told her about going to one of the homes of the shop floor employees to run with him on a trail near there. She has overheard his lively banter with the payroll clerk about football and hockey; she has observed his conversations with the Vice-President of sales over politics which is an interest they share. The respondent did not rebut this evidence of the applicant.
104The applicant says that it was her impression during this meeting that the earlier assertion of the respondent’s owner that he was not upset, resentful or hurt as a result of what happened on February 28, 2011, was not true. Instead, he was; because he could not get over it, he was finding ways to blame her for his inability to put the incident behind him.
105The respondent’s owner says that for a few months previous to October 20, 2011, the applicant had been asking him about his private activities and that he found it weird so he thought she might be unaware of her behaviour. He says it made him uncomfortable because they were not friends and he did not understand why someone who was not his friend would be making personal remarks. In light of the event of February 28, 2011, it did not seem to him to be a positive thing.
106The respondent’s owner was asked multiple times to explain why he says that at this point in time he and the applicant were no longer friends. He says that the applicant told him she was no longer interested in any friendship with him or spending time with him. The applicant says this is not true; she never said anything like that and it would have been completely out of character for her to do so. She says her behaviour after February 28, 2011, was the same as it was before; she wanted the friendship to continue. She believes the respondent’s owner may have concluded otherwise because when he asked to kiss her on February 28, 2011, she said to him that was not the kind of relationship they had. In its submissions, the respondent acknowledged that the respondent’s owner may have misunderstood the applicant in this regard.
107According to the respondent’s owner, prior to this meeting of October 20, 2011, starting at the end of July or the beginning of August, 2011, the applicant had been coming to his office once or twice a week, sitting down, wanting to discuss running events. He says she brought in a scrapbook about her race in the Sahara and another book about the race in Chile. She talked about races she ran in South Dakota, Berlin and San Francisco.
108None of this evidence was put to the applicant for a response nor was it contained in a witness statement for the respondent’s owner. As a result, I am not prepared to rely on these statements as true.
109However, there is no dispute that between October 2 and October 6, 2011, the applicant commented on the running activity of the respondent’s owner.
110During that period the respondent’s owner was running the same race in the Sahara that the applicant had the year before. As he had the previous year for her, she posted encouraging comments to his blog. They read as follows:
02-Oct-2011: Tick off the first day, a tough one but you made it! Good luck tomorrow, keep hydrated.
03-Oct-2011: Hang in there [name of respondent’s owner], glad you have decided to stay and try for another day. This race has many milestones, getting to the start line is a great accomplishment! Stay positive!
04-Oct-2011: Great determination! Good luck tomorrow, just keep a steady pace and positive thoughts!
06-Oct-2011: You have reached many milestones, just keep doing what you are doing, trying everyday! Enjoy this wonderful experience of running in the Sahara!
111The respondent’s owner indicates these posts made him uncomfortable. The respondent’s owner says he wanted to move on. He wanted to change their prior mix of personal and business to a normal business relationship. He did not want to return to the way things were prior to February 28, 2011. He says he thought that would not be good for him or the applicant; it was also not good company policy.
112After this meeting the applicant says she went home for lunch upset and had a little cry but was also spitting nails. She says she knew she needed a cooling off period to digest what had been said in the meeting of October 20, 2011. She went back to work that day and the next but thinking about it was a big distraction.
113The day after the meeting of October 20, 2011, the respondent’s owner sent the applicant a follow up e-mail which says in part:
The below should represent a first step in fulfilling the “leadership and analysis” part of your job description, which I added in June of 2011…
Please add the following to your one-on-one metric sheet…
These would include the normal things I should know… This would include normal areas such as AR, inventory, exchange, billing, billing, bookings, BB%, RGP%, overhead and so on. It would also include “personal” items you or your staff uncover concerning personal expenses, health plans, cell phones, etc…
[Emphasis added.]
114The applicant wrote back briefly saying “sure, no problem”.
115That weekend she decided to hand in her resignation on Monday.
116On Monday, October 24, 2011, the applicant delivered a letter of resignation to the respondent’s owner. She says she was emotional, upset, and angry so she gave him a letter rather than speaking to him and she asked him to read it. Her resignation letter says:
Unfortunately I find myself in a position of being forced to leave [the respondent] as a direct result of your actions which took place February 28, 2011. I was hoping we could deal with the situation and continue with a cooperative relationship moving forward. Recognizing the situation was still creating tension, I approached you a few months later to discuss further. At this time you said you just needed more time. I was hopeful that time was all that was needed. However, it became apparent that this cannot be the case based on your discussion with me on Thursday, October 20th.
You addressed the boundaries of communication I am allowed to have with you, citing examples of what is allowed and not allowed. This was offensive, unprofessional and certainly a deviation from current practice and common workplace practice. We have always enjoyed a mix of business and personal communication which is reasonable and customary between coworkers of 12 years. Additionally on many occasions you have shared my non work activities with my coworkers and promoted it to others in the elevator industry.
Within my position of Director and Controller I have been involved in the business side of your personal situation more than anyone else in the company, your interpretation of my involvement as being overly interested in your personal life was again offensive given the integrity and professionalism in which I conduct my job. It is due to the ongoing tension and these situations that leave me feeling vulnerable, uncomfortable and have created a hostile work environment.
After consulting with an advisor a reasonable severance package is one year’s salary plus six months benefits.
Despite my best efforts, it is unfortunate that it has led to this outcome, but I cannot work effectively under this level of stress.
117The applicant says that when she delivered this letter the respondent’s owner looked at her and said this probably is not good. She went back to her office and ten minutes later he returned the resignation letter to her and asked her to reconsider it. She says he said: this is not necessary; I think you have misunderstood our conversation; we can work through this; and I do not want you to leave. The applicant agreed to take some time and reconsider.
118The respondent’s owner says that when he got her resignation letter he did not understand it; it did not make sense to him. Further, because she is a great controller, he wanted her to stay. He contacted his marriage counsellor to talk about it; by this point in time his marriage counsellor had become more of a personal counsellor. He wrote:
[The applicant] submitted her resignation suggesting that I have now created a hostile work environment. I explained that … all I asked is that we stop talking about personal stuff… I do not understand any of this. She has no personal interest in me. So what is the problem … I just don’t get it.
I really do not want her to leave. I said that we need to talk about this. But what I cannot get is why she tears up when I talk about boundaries and working this out. She is not telling me what the problem is so that I understand…
119He says that after she delivered the resignation letter he asked her why his personal life was so important to her and she became emotional and said she did not want to discuss it at the moment so he suggested they discuss it later. He says he followed up later at the end of that same day and she was still not ready to discuss it; she approached him to discuss it a few days later.
120The applicant says about a week later she decided to withdraw her resignation. She says she did so because she loved working for the respondent and the comments of the respondent’s owner made her feel hopeful that it really would work out. She thought, let’s give it one more go.
121The respondent’s owner says that the applicant explained to him why social interactions were so important to her and because of that he agreed she could raise personal issues as long as it was clear to him they were superficial and not an expression of real or genuine interest. She asked that they never discuss it again and they never did.
122At this point in time the respondent’s owner did not suggest or pursue any of the remedial suggestions he had set out in the draft complaint he had appended to his e-mail of March 1, 2011.
Up to March 2012 and the Final Resignation
123The applicant says that after the aborted resignation in October 2011, things actually got worse for her. She describes herself as always having a filter on, having to consider what may or may not be too personal for the respondent’s owner. She changed her behaviour and completely stopped mentioning anything outside of work. It made her uncertain about what she could or could not say or do. For example, one day the accounts payable clerk came to her about a phone bill for the residence of the respondent’s owner and she wanted nothing to do with the issue so she told the clerk to speak directly to him about it.
124In late 2011 the applicant resigned from the Board of Trade. She says she did so in order to avoid social interactions with the respondent’s owner. As a member of the finance committee she was expected to attend seminars and luncheons that he was likely to be attending also. At the time she resigned she misled the respondent’s owner as to the reason for her resignation. She says she did this because she did not think it was necessary to tell him the truth.
125The applicant says being a member of the Board of Trade and the finance committee had a value for her. It was networking, an opportunity to understand a trade organisation, a different set of books to look at, and a way of broadening her business experience and perspective.
126The applicant says that the constraints on communication were such that it became increasingly difficult for her to do her job; she was always guessing what the respondent’s owner wanted and sometimes she got it wrong. She specifically refers to one instance when this occurred.
127As part of fulfilling the leadership and analysis addition to her job description, the applicant collected booking data to examine and analyze. She says that due to the lack of communication she had with the respondent’s owner, she did not go to him and ask him what he really wanted. Instead she put a draft together on her own which she sent out to the Vice-President of sales and the Canadian sales manager asking for input. I believe this occurred on February 27, 2012.
128The applicant says the respondent’s owner sent a response back immediately saying generally this is wrong, not helpful, and she is no longer to perform this task. I believe this is a reference to an e-mail from the respondent’s owner dated February 27, 2012, sent at 6:06 p.m., which says in part:
After our first go around with what was my idea, I can see that this is not going to produce useful results… I have not created a process that will bring that about.
… until further notice, please remove this from you (sic) list of required tasks.
129The next morning at 9:43 a.m. the respondent’s owner sent the applicant another e-mail saying:
I have updated your job description, eliminating the Leadership and analysis section I added in June of 2011. The “revised” job description is identical to the one you had prior to June…
130The applicant responded asking for an opportunity to discuss it so she understood the changes. He replied agreeing to set up a meeting to discuss it. In that e-mail he also writes:
I have simply come to the realization that the person responsible for a particular area needs to drive this process… As I have seen, absent this, the task and its potential goes unfulfilled. That you have not fulfilled this task since I assigned in June, supports this, as did the reaction to your booking analysis.
As far as myself, if there are stats I need tracked and want you to provide them, I will advise. If there is an area where I think further investigation is needed and want you to perform that investigation, I will also advise.
131The applicant agrees that she dropped the ball with respect to this task. She started it in December 2011 and it took a while because she had to go back and look at the previous year’s data and link it. However, she does not agree that her performance warranted removing it from her job description without discussion. The applicant says she found the e-mail above rather demeaning considering the nature of their relationship prior to February 28, 2011; he was no longer treating her like a peer but more like an employee to be directed as to what to do.
132During this period the applicant says she was making minor clerical errors she would not have made in the past because of a lack of focus. What was happening in the office affected her personal life. She says some days she had heart palpitations walking in wondering if it was okay to say hello that day; she says she had difficulty sleeping at times because it kept preying on her mind.
133Mr. Coady confirms this evidence on the part of the applicant. He says that she was very uncomfortable and hurt at first and her anxiety over the situation increased over the year following February 28, 2011. When they drove up together to the cottage on weekends invariably their conversations would include some discussion about the behaviour of the respondent’s owner towards her; there were tearful conversations on many of these rides. He says she would say things like she could not stand the thought of having to go back there.
134The applicant says that by March 29, 2012, she just could not take it anymore; the environment was so unreasonable it was not even civil anymore. To have these walls up with respect to communication is unacceptable. In a small environment you have to have unrestricted conversation; it should not have to be filtered; you should be able to walk into your boss’s office to discuss issues – that is how ideas emerge. From the applicant’s perspective that was gone and she did not see it coming back. She decided to resign.
135With respect to her final resignation, Mr. Coady also says the applicant found the work environment unbearable for a very long period of time, but she thought long and hard about it before finally resigning. On the one hand she was very committed to the respondent and to the employees working with her; on the other, she had to leave because of the uncomfortableness of dealing with the respondent’s owner. She had a lot of fear about leaving the respondent; she was anxious about finding another job without a reference letter and rebuilding her career back up from the contract level. He says she would never have left but for the difficulty in working with the respondent’s owner.
136Late in the day on March 30, 2012, the applicant told the respondent’s owner she was resigning. She told him the environment was unworkable but she would stay for three months to help with the transition.
137The applicant’s employment contract required her to provide three months’ working notice except in situations of constructive dismissal. She believes that the reasons for her resignation meant she technically was not required to give the three months’ working notice but to protect the respondent’s owner and live up to her own sense of professional integrity, she wanted to do so. She was the only designated accountant for the company. She says she also told the respondent’s owner that she would not tell anyone why she was leaving to protect him.
138According to the applicant, the respondent’s owner then became angry. The respondent’s owner says they argued. He disputed her characterisation of events as constructive dismissal.
139During the course of this conversation one of them raised the fact the applicant had not done a continuous improvement project in the past two months. The applicant says she reminded the respondent’s owner that she had just completed year end and closing books for three companies and she was working on another project. The respondent’s owner said “that’s why I didn’t fire you”. The applicant says she was shocked. She had excellent performance appraisals for 12 years and all of a sudden he is having thoughts of firing her. She says you do not fire your senior managers after 12 years; you work with them. The applicant also says that in this last meeting the respondent’s owner told her that if she was uncomfortable it was her problem. The respondent’s owner did not refute this evidence of the applicant.
140After this conversation the applicant felt relieved. She no longer had to worry about her job; she could work on her own and train the replacement. She says the stress was gone and she worked out her notice without difficulty.
141On April 2, 2012, the respondent’s owner sent the applicant a letter confirming her oral notice of termination. It requested she put her notice in writing as required by her contract. It acknowledges the applicant told him she felt she had been constructively dismissed and he asked her to put her concerns in writing so that the respondent could attempt to remedy the situation within the two-week period set out in her contract. This is a reference to a clause in the June 21, 2011 “Addendum to Unwritten Employment Agreement”. In it the applicant agreed to give 90 days’ notice of termination and assist in the training of her replacement. It then says:
The [respondent] agrees that these obligations of the [applicant] are relieved if she is obliged to terminate her employment for reasons that would constitute constructive dismissal and which the [respondent] failed to remedy within two (2) weeks of notice of such reason, such that the [applicant] was rendered unable to continue the employment relationship.
142The applicant did not detail her concerns personally in writing. Instead, her counsel wrote a demand letter that confirms her resignation.
143At that point in time the respondent contacted an independent mediator who was to interview both the applicant and the respondent’s owner. The respondent’s owner says he wanted to see if there was any way they could find a remedy for the situation. In response to my questions seeking clarity with respect to his use of the word “remedy” the respondent’s owner says he wanted her to stay. However, in his e-mails to the applicant about the purpose of the intervention he does not state that. Rather he writes:
… there is obviously a problem needing investigation. It is worth seeking a mutually beneficial remedy, if one is possible.
144The applicant agrees that the respondent’s owner implied he wanted to find a way for her employment to continue.
145With the Application and the Response both parties filed with the Tribunal a copy of the mediator’s final report but neither asked to enter it into evidence at the hearing before me. I mention it here for the sole purpose of completing the background narrative.
Mitigation
146On September 10, 2012, the applicant started working for a new employer pursuant to a six-month contract that paid $50,000 for the six-month period. At the end of the six-month period her contract was extended and on April 15, 2013, she was hired full-time with an annual salary of $120,000. Her new position provides benefits but there is an employee co-payment of about $1,000. There is the potential for an annual bonus of $15,000. The applicant is entitled to three weeks’ annual vacation.
ANALYSIS
147This Application engages the following rights provisions in the Code:
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
7(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.
Section 7(3)(a) – Sexual Solicitation or Advance
148With respect to s. 7(3)(a) the first question that arises is whether or not asking for a kiss constitutes a sexual solicitation or advance within the meaning of the provision. The respondent does not advance the position that in the context of this Application the respondent’s owner’s request for a kiss on February 28, 2011, should not be considered a sexual solicitation or advance. It clearly was. Although he uses the word “romantic” rather than “sexual”, there is no dispute that the respondent’s owner wanted to pursue a sexual relationship with the applicant and asking for a kiss was part of his pursuit of that goal.
149The second question under s. 7(3)(a) is whether or not the respondent’s owner was in a position to confer, grant or deny a benefit or advancement to the applicant. There is no dispute between the parties that the respondent’s owner was in a position to grant or deny benefit or advancement. The respondent’s owner was the person who decided whether or not to give the applicant her pay raise; on June 21, 2011, he signed the addendum to her employment contract giving her a signing bonus every year for three years.
150The final question under s. 7(3)(a) is whether or not the respondent’s owner knew or ought reasonably to know that his request for a kiss would be unwelcome.
151The applicant does not advance the proposition that the respondent’s owner had actual knowledge that his request for a kiss would be unwelcome; rather she takes the position that he ought reasonably to have known that. The respondent says that the facts are such that it is obvious the respondent’s owner genuinely believed his sexual advance would be welcome and he is entitled to an honest but mistaken belief.
152I agree with the respondent that the evidence is overwhelming that the respondent’s owner genuinely believed his request for a kiss would be welcomed by the applicant. His behaviour after February 28, 2011, indicates he was acutely embarrassed. As he puts it, he felt terrible. He spent months prior to the request for a kiss cautiously engaged in what applicant’s counsel describes as “secret dating” in an effort to figure out if his interest was reciprocated. All of his behaviour before and after February 28, 2011, is consistent with an honest belief that on February 28, 2011, the applicant would welcome his advance.
153But I do not agree with the respondent’s assertion that he is entitled to an honest but mistaken belief. The phrase “ought reasonably to know that it is unwelcome” means that an honest but mistaken belief will not be sufficient to escape liability under s. 7(3)(a) of the Code unless the mistaken belief is a reasonable one. In all the circumstances here, I am satisfied that the belief of the respondent’s owner in this instance was not reasonable. I say this for a number of reasons.
154The evidence establishes that prior to February 28, 2011, the applicant and the respondent’s owner were friends. They spent time together outside of work pursuing their mutual interest in sports. They enjoyed each other’s company. They had a lot in common. If that were the totality of the evidence before the Tribunal, then the respondent’s owner’s belief might have been a reasonable one.
155But the respondent’s owner was a married man. He was separated from his wife by February 28, 2011, but the applicant did not know that and the respondent’s owner knew she was unaware of the separation. The respondent’s owner also knew that the applicant would never have a romantic relationship with a married man; she had told him that. He knew she had a boyfriend. His responses to questions about this were telling: he did not consider Mr. Coady because he never met him; in hindsight it would have been reasonable for him to tell the applicant he was separated before he asked to kiss her but he did not because he was ready.
156All of the business lunches and other “secret dating” activities that the respondent’s owner thought of as a form of wooing were expensed to the respondent as business expenses. As the controller, the applicant knew that.
157As stated above, I accept the applicant’s statement she sent a response to the respondent’s owner’s e-mail of February 26, 2011, saying something to the effect that the respondent should not deviate from policies because they exist to ensure procedures are fair and equitable for everyone; however, because there are changes to businesses over time, policies might need to be modified to address changing conditions. This was a response to the e-mail he sent entitled “Egypt and Risk”; his declaration of a romantic interest. If the applicant had actually understood this e-mail was intended to be a romantic declaration, her reply could not reasonably be taken as a positive or welcoming response; rather, it would arguably indicate the opposite.
158The respondent’s referenced policy in these e-mails makes it clear that the respondent does not accept romantic relationships in its workplace between direct reports or even people working in the same department. This means that the respondent’s owner knew the relationship he wanted to pursue with the applicant was contrary to his company’s own policy; that is why in the e-mail he talks about policy as a barrier. The respondent’s owner says that he thought they could work something out with the reporting relationship if they entered into a romance. He says he thought maybe she could report to the board of directors instead of to him, but he is on the board of directors. He says the board would have the power to fire him as chief executive officer but acknowledges that he is the owner with the power to remove and replace the other directors.
159In other words, the respondent’s owner either put out of his head things he did not want to know, or did not think clearly and logically about things he could not deny. He was not thinking rationally; as his actions were driven by irrational thinking it cannot be said it was reasonable for him to believe the applicant would welcome his request for a kiss. The reasonable person considering all of the circumstances would not have come to that conclusion.
160As a result and given all of the above I am satisfied that the respondent’s owner breached s. 7(3)(a) of the Code when he leaned in and asked the applicant if he could kiss her.
161Despite the wording of s. 46.3(1) of the Code I am further satisfied that the respondent is liable for this breach because the respondent’s owner was a directing mind of the respondent. (See: Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 33.)
Section 7(3)(b) – Reprisal or Threat of Reprisal
162To establish a breach of s. 7(3)(b) an applicant must lead sufficient evidence to establish:
a. There was a negative action taken against, or threat made to, the applicant;
b. The alleged action or threat is related to the complainant having rejected a sexual solicitation or advance made by a person in a position to confer, grant or deny benefit or advancement to the applicant; and
c. An intention to retaliate for rejection of the sexual solicitation or advance.
(See: Noble v. York University, 2010 HRTO 878 at para. 33; and Nikitovic v. Cawthra Gardens Long Term Care Community, 2013 HRTO 661 at para. 34.)
163The respondent’s primary position with respect to the claim made pursuant to s. 7(3)(b) is that there was no intention to retaliate against the applicant for her rejection of the respondent’s owner’s advance; rather the intention was to normalise the business relationship and end the personal friendship that had existed between the applicant and the respondent’s owner prior to February 28, 2011.
Negative Actions
164To summarise in my own words, the retaliatory acts that the applicant complains of include the following:
a. The complete cessation of some business-related activities or opportunities in the company of the respondent’s owner, including: lunches either alone with the respondent’s owner or with others; trips to the shop floor; sales visits to customers; and participating in the Christmas trip to New York;
b. A decrease in access to the respondent’s owner for face-to-face supervision, interaction, and consultation on business-related matters;
c. A decrease in the quality of interactions with the respondent’s owner, including a negative change of tone; and
d. What happened during the meeting of October 20, 2011.
165The respondent does not dispute that there was a complete cessation of the activities listed above in subparagraph a.
166It argues that the activities themselves were outside of the applicant’s job description so it is unreasonable for the applicant to take the position they should have continued. Further, it asserts that the applicant was not prohibited from attending business lunches, going to the shop floor, visiting customers, or going to New York; just that she could not do those things either alone with the respondent’s owner or at the same time as him. It also questions the value of these activities to the applicant; in other words, taking them away cannot be perceived as a negative action as they should be considered as having no value to the applicant from an employment perspective.
167With some minor exceptions I would agree with the respondent that the activities in question were outside of the applicant’s job description and the tasks a controller would normally be expected to do.
168With respect to the minor exceptions I would note the following:
a. There is no dispute between the parties that in January 2010, the applicant became a corporate director of the New York parent corporation. It appears her job description was never changed to reflect that but it does include travel to the United States as part of her working conditions. As a director of the corporation the applicant would reasonably be expected to participate in annual social events involving the Board.
b. The applicant’s job description explicitly refers to walking through the plant, or going to the shop floor, as part of her working conditions.
c. Although not stated in her job description, the respondent’s owner testified that he and the applicant attended business lunches together throughout her employment prior to February 28, 2011, at least once a year to meet with the insurers. The applicant also mentioned routine lunches with bankers and the auditors as part of her normal employment-related activities.
169Whether or not the activities in question were outside of the applicant’s job description, it cannot be disputed that they were business activities. All of the activities in question were billed to the respondent as business expenses. It also cannot be said that they did not have a value with respect to the respondent’s business interests; for example, the respondent led no evidence to dispute the assertion of the applicant that it was during one of her lunches with the respondent’s owner in the fall of 2010 that they came up with the idea of renting out the piece of industrial equipment to third parties during its downtime.
170As a result I do not accept the assertion of the respondent that it was unreasonable for the applicant to take the position the activities should continue because they were outside of her job description. The activities in question were business-related and they furthered the business interests of the respondent. They became part of the applicant’s employment-related activities, even if that was not the intent of the respondent’s owner at the time. Further, after the request for a kiss was made and rejected, the parties agreed there was no reason for the lunches not to continue.
171I would also agree with the respondent that the evidence supports the assertion that the respondent did not prevent the applicant from participating in the activities in question, but for one exception. The applicant was explicitly told on October 20, 2011, that she could not travel to New York at the same time the respondent’s owner was there, which means she could not attend the annual Christmas dinner.
172That being said, the difficulty with the argument that the applicant was free to go on business lunches, to the shop floor, to New York, or to see customers if she wanted to, is that it assumes the participation of the respondent’s owner did not add business value to those activities. The actions of the respondent’s owner after May 31, 2011, belie such an assertion. The respondent acknowledges that after May 31, 2011, the respondent’s owner deliberately sought out other ways that he and the applicant could interact with respect to business matters, and other ways that the respondent’s owner could act as a mentor to the applicant. The evidence supports the conclusion he did this because he recognised that interacting one-on-one with him discussing mutual business concerns and interests had a value to the applicant. She says it enhanced her industry knowledge and awareness of customer needs, and her grasp of the technical side of the business.
173The respondent’s owner also agreed in his testimony that giving an employee the opportunity to engage with the business’s owner in business activities outside her normal role or job duties can be beneficial to that employee’s career. He concedes it might be an opportunity to learn and grow.
174Given all of the above I do not accept the respondent’s assertion that stopping these activities cannot be considered a negative action on the part of the respondent on the basis that they had no value to the applicant from an employment perspective.
175As stated above, other actions the applicant describes as being negative include a decrease in access to the respondent’s owner for face-to-face supervision, interaction, and consultation on business-related matters.
176For the period March 1, 2011, to May 31, 2011, the respondent’s owner does not deny this occurred. He acknowledges using e-mail more and avoiding face-to-face interactions. The applicant says she understood during this period that the respondent’s owner was uncomfortable around her and she was willing to give him time to regain his equanimity. But she went to him about his behaviour on May 31, 2011, and offered to resign. His discomfort was uncomfortable for her. She says she was used to consulting with him routinely face-to-face when he was in Ontario; consultation is faster and more easily done in person. She says more ideas are generated that way. The respondent offered no evidence or submissions with respect to these statements of the applicant during this period. So I accept that the change in the manner and frequency of communications between the applicant and the respondent’s owner, at least for the period March 1, 2011 to May 31, 2011, was a negative action within the meaning of s. 7(2)(b) of the Code.
177The applicant also alleges that there was a decrease in the quality of interactions with the respondent’s owner, including a negative change of tone. Mostly this is with respect to the period after October 20, 2011; but as stated above, I am satisfied that although the respondent’s owner tried to increase the interactions he had with the applicant about business matters during the period June 1, 2011 to October 20, 2011, the nature and quality of those interactions was not as comfortable or effortless as they had been prior to February 28, 2011.
178In its submissions the respondent did not address the content of the conversation that occurred between the applicant and the respondent’s owner on October 20, 2011, beyond asserting it was reasonable for the respondent’s owner to want a more business-like relationship. That misses the point with respect to what was actually said.
179I am satisfied that what was said to the applicant during that meeting by the respondent’s owner constitutes a negative action for the purposes of s. 7(3)(b). I say this because the evidence supports the applicant’s assertion that the respondent’s owner was accusing her of acting inappropriately when in fact she had not, and blaming her for his own inability to move on emotionally from her rejection.
180As indicated above, the e-mail correspondence between them indicates it was the respondent’s owner who repeatedly asked the applicant to be involved in or to provide information about issues related to his marital separation and relocation. It was not the other way around. No other examples of how the applicant supposedly demonstrated an inappropriate interest in the respondent’s owner’s personal life were offered except her casual conversations about running. The content of the post-February 28, 2011 e-mails and the blog posts to the Sahara race site are not in my view excessively intimate or warm; rather they are consistent with the applicant’s statements that she was trying to behave the same way she had during the years between 2006 or 2007 when the respondent’s owner took up running, and the incident of February 28, 2011.
181The content of the notes of the respondent’s owner for that meeting also supports the assertion of the applicant that he was blaming her for his inability to get over her rejection. They explicitly state that her behaviour was the problem, she needed to change, and he needed her to do that so he could move on.
182I would note at this point that part of the historical struggle against sex discrimination in the work place and sexism in general has been the identification and denouncement of what I would call blame-the-victim justifications. For example, in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, the Supreme Court of Canada overturned a decision of the Manitoba Court of Appeal that essentially stated when women are sexually harassed because they are attractive it does not constitute sex discrimination.
183For the reasons stated above, I am satisfied that it was during the meeting of October 20, 2011, that the respondent’s owner first made it clear that he did not want any personal interaction or conversations with the applicant at all.
184Although I would agree with the respondent that the law cannot force friendship on an unwilling employer, I also agree with the applicant that there is a difference between friendship and everyday interpersonal interaction in the workplace. The issue here is not the sad end of the friendship between the applicant and the respondent’s owner; the issue is whether or not his behaviour in blaming her for his discomfort, falsely accusing her of inappropriate behaviour, and telling her not to say anything to him of a personal nature at all can reasonably be said to be a negative action or a threat of negative action. In the context that existed here – a 12-year exemplary employment record and a long-standing friendship – I am satisfied that it can. As the applicant put it, his instructions forced her to put a filter on. She was constantly on edge about what she could and could not say or do; she resigned from the Board of Trade to avoid being in a situation he might misconstrue as being personal.
Causal Relationship To The Advance
185The respondent does not dispute the allegation that the actions complained of above are causally connected to the event of February 28, 2011, during which the applicant rejected the respondent’s owner’s sexual advance. I find and the evidence clearly establishes that but for the rejection on February 28, 2011, the subsequent events would never have occurred.
Intention
186As stated above, the respondent’s primary argument is that the change in behaviour that occurred after February 28, 2011, was not intended to be retaliation; it was intended to return the relationship to a normal business one. In other words, the respondent asserts the respondent’s owner’s motive was not to retaliate for the romantic rejection; therefore there was no breach of s. 7(3)(b).
187In Jones v. Amway of Canada Ltd., 2001 CanLII 26217, conf’d [2002] O.J. No. 1504 (Div. Ct.), the Board of Inquiry states:
In the Board’s view, intention includes wilful blindness or recklessness which also has an evidentiary requirement.
188In a completely different context the Supreme Court of Canada describes the concepts of wilful blindness and recklessness as follows in Sansregret v. R., 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 at para. 22:
Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.
189In the circumstances here, the evidence establishes that the respondent’s owner was explicitly told by the applicant that his changed behaviour after the rejected sexual advance was unwelcome. After the meeting of May 31, 2011, he essentially acknowledged the reasonableness of the applicant’s perception by promising things would return to the way they were. But they did not. He acknowledges they did not. He wanted to change their interactions because he needed to do that to get over the applicant’s rejection. He tried to make things better by changing her job description but he does not deny that otherwise he continued with the same behaviours the applicant complained about on May 31, 2011, and it is undisputed there was never a return to the kinds of business activities that the applicant was involved in between September, 2010 and February 28, 2011.
190That behaviour is the essence of recklessness with respect to intent. He was conscious of what he was doing, knowledgeable of the negative impact he was having on the applicant and he persisted in his behaviour. In my view that is sufficient to establish an intention to reprise within the meaning of s. 7(3)(b) of the Code.
191Given all of the above I am satisfied that the respondent reprised against the applicant for the rejection of a sexual solicitation or advance in contravention of s. 7(3)(b) of the Code.
Section 7(2) – Sexual Harassment
192At the beginning of the hearing I asked the applicant if she was going to be asserting a breach of s. 7(2) of the Code in addition to s. 7(3)(a) and (b). I did so because in section 5 of the Application the applicant did not check off “Sex Including Sexual Harassment…” as a ground claimed. The applicant stated that she was relying on s. 7(2) in addition to s. 7(3)(a) and (b). The respondent did not object to her doing so and I allowed it. I note that even if the respondent had objected I would have permitted the applicant to argue s. 7(2) because both the Response and the Reply explicitly discuss the harassment allegation; the failure to check off the box in section 5 of the Application appears to be a typographical error.
193Both parties reference the Tribunal’s Decision in Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 at paras. 21-23 for its definition of sexual harassment. It reads as follows:
In order to establish a case of sexual harassment, the onus is on the applicant to prove, on a balance of probabilities, that (1) the individual respondent was her employer, her employer’s agent, or another employee; (2) the individual respondent harassed her by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome; (3) the individual respondent harassed her in the workplace; and (4) the individual respondent harassed her because of her sex. See ss. 7(2) and 10(1) of the Code.
With 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… 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.
With 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…
[References omitted.]
194There is no question that the respondent’s owner was an agent or employee of the respondent and that the behaviour complained of involved the workplace. Using the language of Vipond, above, the issues here are whether the conduct constitutes harassment as defined in the Code; and if so, whether or not the harassment was because of the applicant’s sex.
195The quotation above references s. 10(1) of the Code which defines “harassment” in the following way:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
196The evidence establishes that after February 28, 2011, the respondent engaged in a course of conduct that included, among other things: the cessation of some business-related activities; a decrease in the amount and quality of supervisory personal interactions between the applicant and the respondent’s owner; and an explicit blaming of the applicant for the respondent owner’s inability to get over her rejection. There is no dispute that the applicant found this conduct to be unwelcome.
197On February 28, 2011, immediately after the request for a kiss was rejected, the applicant made a point of making sure the business lunches would continue as before. This means the respondent’s owner ought reasonably to have known that stopping the expanded business-related activities that the applicant had participated in with him prior to February 28, 2011, would be unwelcome to her. After May 31, 2011, the respondent’s owner knew that the change in his behaviour with respect to personal supervisory interactions was unwelcome to the applicant because she told him so. The resignation letter of October, 2011 explicitly put the respondent on notice that the tension in the workplace due to the respondent’s owner’s inability to get over the romantic rejection was creating a hostile work environment for the applicant.
198Given the above I am satisfied that the respondent’s owner knew or ought to have known that the behaviour complained of was unwelcome to the applicant.
199The next question is whether or not the harassment is related to the applicant’s sex or gender. This question brings me to the primary difference between the circumstances here and those in Vipond, above. In Vipond the harassing conduct complained of was explicitly sexual in nature. At paragraph 52 the Tribunal says:
The individual respondent subjected the applicant to sexual harassment, sexual advances, and reprisals in the workplace, and a poisoned work environment, by massaging her hands, trying to kiss her three times, holding her head between his hands and telling her, “I am going to do this,” asking her when the last time she “came” was, trying to sit her in a chair in his office where he said that he was going to go down on her and make her “come”, cutting her work hours after she told him that she did not want to be alone with him in the bar at the end of the night if he was drunk, putting his hand repeatedly on her shoulder when he was talking to her, monitoring her interactions with male customers, and screaming aggressively at her because she was talking to a male customer.
200In contrast, the behaviour complained of here was not sexual in nature or related to the applicant’s gender. Rather the alleged harassing behaviour was in the nature of changes to her working environment and her expected business activities.
201The only behaviour complained of that seems to me to be arguably related to gender is with respect to some of the comments made by the respondent’s owner during the meeting of October 20, 2011. As stated above, the way that the respondent’s owner blames the applicant for his own inability to get over her rejection is in keeping with the blame-the-victim mentality that is historically associated with women. It is a negative stereotype of women that they are temptresses and responsible for the inappropriate sexual behaviour of others.
202That being said, the evidence does not establish that the respondent’s owner knew or ought to have known that particular aspect of his behaviour was unwelcome or that he ought reasonably to have known it would be. There was no hint that any such behaviour occurred prior to October 20, 2011; indeed, the applicant’s evidence was that she was shocked by it. No evidence was led that similar remarks were made after October 20, 2011. The respondent owner’s e-mail to his marriage counsellor makes it clear he did not anticipate the applicant’s reaction at all and that he did not understand it.
203One could argue that in this day and age any reasonable male ought to know that blaming a woman for his own inability to get over her sexual rejection is unwelcome behaviour, but such a proposition was not put to the respondent’s owner during his testimony for a response, nor was it argued by the applicant in submissions.
204Further, even if I accept that particular misstep on the part of the respondent’s owner was one he ought reasonably to have known would be unwelcome, it was a single remark. Although a single event may constitute a course of conduct for the purposes of the definition of harassment under the Code, in my view this is not the kind of single event that would justify such a finding.
205As stated by the Tribunal in Gregory v. Parkbridge Lifestyle Communities Inc., 2011 HRTO 1535 at para. 82:
In appropriate circumstances, a single incident, if serious, will meet the definition of harassment. Repeated conduct is not essential to a finding that the Code has been violated. A sexually explicit remark that is clearly demeaning and attacks the dignity and self-respect of a woman based on her gender will violate the Code (See Romano v. 1577118 Ontario Inc., 2008 HRTO 9, at paras. 64 to 69). It has long been recognized that sexual harassment is characterized by power imbalance (Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 (S.C.C.); Sanford v. Koop, 2005 HRTO 53.
206What was said here, however, was not a sexually explicit remark, as was the case in both Gregory and Romano, above.
207In all the circumstances I am not prepared to find the single incident where a remark was made blaming the applicant for the respondent’s owner’s inability to get past her sexual rejection constitutes a course of conduct for the purposes of s. 7(2) of the Code. Therefore, I am not satisfied that the respondent sexually harassed the applicant.
REMEDY
208The relevant remedial provision of the Code reads as follows:
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.
(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.
209At the hearing the applicant requested: general damages of $50,000; damages for mental anguish of $10,000; $5,000 for the respondent’s failure to follow its own policy and investigate the applicant’s complaints; and $75,000 for lost income. Despite framing her request in this manner the applicant did not assert that the alleged failure to respond appropriately to her complaints was an independent breach of the Code and I have not treated it as such. (See in Payette v. Alarm Guard Security Service, 2011 HRTO 109, at para. 35.)
210As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory conduct. (See: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) at para. 150.)
211The Code does not use the language of “general damages”, nor does it explicitly refer to “mental anguish” as it once did. Rather the language under the current Code focusses the inquiry on compensating losses arising out of the infringement. This is not to say that jurisprudence that uses these terms is not useful or relevant; rather for my purposes here, it is helpful to use the language in the Code. I say this because the arguments of the parties with respect to remedy really devolve into two categories: losses arising out of the infringement related to injury to dignity, feelings and self-respect; and losses related to the applicant’s decision to leave her employment.
Losses related to injury to dignity, feelings and self-respect
212The applicant filed with the Tribunal its decision in Sanford v. Koop, 2005 HRTO 53. At paragraph 35, the Tribunal lists a number of factors to consider when assessing losses related to injury to dignity, feelings and self-respect. Those factors are repeated in Lane, above, which says (at para. 153):
Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.
213In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal expanded on the factors to consider as follows (at paras. 51-54):
Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…
The Tribunal’s jurisprudence … 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…
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.
214Thus what used to be described as “mental anguish” damages is reflected in the Tribunal’s examination of both the objective seriousness of the conduct complained of and the impact on the applicant.
215As is indicated in Lane, above, there is no fixed formula for the Tribunal to follow to assess a monetary compensation award (at para. 157), there is no limit to the amount that can be awarded, and the quantum must not be set too low because that would “trivialize the social importance of the Code” (at para. 152).
216I think it fair to say that with respect to the breach of s. 7(3)(a) of the Code the objective seriousness of the conduct complained of was in the low end of the range involving unwanted sexual advances. The applicant was not groped, touched, or kissed; rather the respondent’s owner leaned towards her and asked for a kiss. The evidence overwhelmingly suggests that if the respondent’s owner had been able to put it behind him and continue with the working relationship without change then the applicant would have been content to take the incident no further. Her notes made shortly after it occurred indicate her stomach was in knots and she was upset and angry. When they met to discuss it after the incident the applicant became a little teary-eyed. She does not claim she felt victimised by the respondent’s owner’s attempt to kiss her or that she experienced a loss of self-confidence.
217That being said I am mindful of the admonishment in Lane not to set the quantum so low that it trivializes the importance of the Code. I am also mindful of the following aggravating factors with regards to the behaviour complained of:
a. The respondent’s owner was well aware of the respondent’s policy with respect to romantic relationships in the workplace as he was charged with enforcing it. He was also well aware that if he was to succeed in his romantic pursuit of the applicant he would be in breach of the policy because of the direct reporting relationship between them;
b. The respondent’s owner planned his sexual advance months in advance. Despite having the resources to do so, it appears he never sought advice from anyone as to the advisability of his planned actions;
c. He used the applicant’s employment and her desire to be a good employee as a romantic lure; and
d. The respondent’s owner abused his position in that his “secret dating” strategy was all expensed to the respondent.
218No authorities were presented to me by the parties involving similar behaviour and factors, nor am I aware of any.
219Given all of the above, I believe an appropriate amount to award the applicant for injury to dignity, feelings and self-respect with respect to the breach of s. 7(3)(a) of the Code is $5,000.
220With respect to the impact on the applicant of the behaviour that I have found to be a breach of s. 7(3)(b) of the Code, Mr. Coady’s evidence corroborates the applicant’s and I am satisfied that the applicant was distressed over a long period of time as a result of the changed working conditions. The applicant loved her job but she offered to resign on May 31, 2011, delivered a letter of resignation following the meeting of October 20, 2011, and eventually did resign at the end of March, 2012; these are markers of the depth of her distress. So is her resignation from the Board of Trade. That being said, the applicant freely acknowledges she did not need counselling or medical attention, she was mostly able to do her job with minor exceptions, and she worked out her notice period without difficulty.
221In terms of the objective seriousness of the behaviour complained of, again the situation here seems to me to be at the low end of the spectrum. Job duties were changed; the degree and quality of supervision changed; and the working environment became tense. After the applicant complained in May of 2011, the respondent’s owner attempted to repair the business relationship by adding responsibilities to her job description; albeit an effort that appears to have failed. Further, what was said by the respondent’s owner in the meeting of October 20, 2011, was inappropriate and hurtful but it was still relatively civilised.
222Balanced against this is the respondent’s failure to respond to the applicant’s complaints about the reprisal. Although the applicant was invited to make a formal complaint after the sexual advance, no attempts were made to investigate, mediate, or even record her complaints of May 31, 2011, or her allegation of a hostile work environment in October of 2011. It was not until April of 2012, when the applicant had made it clear she was not willing to work for the respondent anymore, that the respondent’s owner finally took steps beyond simply asking her to stay. Given the respondent owner’s knowledge of and responsibility for the respondent’s anti-harassment and discrimination policy, doing nothing beyond trying to get over his own emotional upset and asking the applicant to stay in her employment is not a reasonable response to her complaints of reprisal. Rather it contributes to the on-going breaches of the Code the applicant complains of.
223This situation is somewhat analogous to that in Payette, above. In Payette, the Tribunal found that the respondent did nothing in response to the applicant’s complaints beyond offering to let her stay in her employment, which the applicant reasonably declined to do. The primary differences between this Application and that in Payette is that the behaviour complained of in Payette was found to be sexual harassment as well as sexual solicitation and the employment period was less than three months; it involved a course of conduct consisting of a number of sexualised remarks and solicitations and ended in the respondent telling her she could stay even though the personal respondent had told her she was being let go. In Payette, the Tribunal awarded the applicant $18,000 for injury to dignity, feelings and self-respect plus an additional $5,000 for the failure to respond reasonably to her complaints.
224Despite the differences in the objective seriousness of the behaviour complained of, I believe Payette is a useful comparator to the situation here with respect to quantum as the difference in behaviour is offset by the considerable length of time that the applicant experienced the conduct complained of. I believe an appropriate amount to award the applicant for injury to dignity, feelings and self-respect with respect to the breach of s. 7(3)(b) of the Code is $23,000.
Losses related to the applicant’s decision to leave her employment
225The respondent takes the position that the applicant should not be awarded any amount with respect to lost income because she voluntarily left her position and the evidence establishes that she could have continued to work for the respondent up until she found alternative employment. This argument of the respondent’s is discussed more fully below.
226As stated above the applicant seeks an award for lost income in the amount of $75,000. It is not clear from the evidence where this figure comes from.
227For the period June 30, 2012, to September 9, 2012, the applicant had no income from employment. Her annual salary when she left her employment with the respondent was $122,980 so the income lost during that period is $24,259. Her signing bonus had presumably been paid in January of 2012, and no evidence was led she would have received any other bonus between June 30, 2012 and September 9, 2012. On September 10, 2012, she started a six-month contract that paid $50,000 for the six-month period; that was extended to April 14, 2013. As of April 15, 2013, she successfully mitigated as she was working full-time with an annual salary of $120,000. The difference in salary between what she would have earned from the respondent and what she made during the contract period of September 10, 2012 to April 14, 2013 is $13,662. If she had stayed in employment with the respondent she would have received the signing bonus of $12,298 in January 2013, so her total losses in terms of employment income for the period June 30, 2012 to April 14, 2013, would appear to be $50,219.
228As stated above the respondent takes the position the applicant resigned and could have continued to work for the respondent up until she found alternative employment. The respondent asserts that because the applicant was able to work out her notice period without difficulty she could have stayed in her employment.
229Given the wording of s. 45.2(1)1, I do not believe the fact the applicant resigned is determinative of whether or not she should be entitled to lost employment income. Rather the issue is whether or not her lost employment income was a direct result arising out of the respondent’s infringements of the Code. I would also note at this point that the issue is not whether or not the respondent’s actions constitute constructive dismissal. As I stated at the hearing, the Tribunal is not charged with making findings with respect to constructive dismissal.
230The respondent filed with the Tribunal the headnote from the Supreme Court of Canada’s decision in Evans v. Teamsters Local Union No. 31, 2008 SCC 20. The headnote says that in that case the appellant’s employment was terminated without cause and he was asked by his employer to work out his notice period which the appellant refused to do unless the termination was rescinded. The headnote says:
In some circumstances it will be necessary for a dismissed employee to mitigate his or her damages by returning to work for the same employer. Assuming there are no barriers to re-employment, requiring an employee to mitigate by taking temporary work with the dismissing employer is consistent with the notion that damages are meant to compensate for lack of notice, and not to penalize the employer for the dismissal itself.
231I do not believe Evans, above, is particularly relevant to the issue before me here. As stated in the headnote quoted above the issue in Evans is whether or not a dismissed employee can be required to work for the employer during the notice period for termination. In the Application before me the issue is whether or not the applicant experienced losses related to employment as a result of the respondent’s infringements of the Code. Here, the applicant did work out the period of notice required of her in her contract.
232What I believe the respondent is arguing is that the reprisal behaviour the applicant complains of was not so serious that she could not put up with it until she found another position. In other words, her decision to leave without having another position to go to was unreasonable in all the circumstances, she could have mitigated by staying, and the respondent should not be financially liable for that unreasonable decision.
233Although I would agree with the respondent that the evidence demonstrates the applicant could continue working despite the reprisal-tainted working environment, it would be contrary to the aims of the Code to penalise her for failing to do so. No interpretation of the Code should require an individual who is experiencing an on-going breach of the Code to continue to put up with it.
234The real issue with respect to employment-related losses is whether or not the applicant resigned from her employment as a result of the respondent’s infringement of the Code.
235The evidence establishes that the applicant would never have left her employment with the respondent but for the changes in her employment and working environment that I have found to be in the nature of reprisal in breach of s. 7(3)(b). The reason she repeatedly stayed on in the face of the changing environment was because of her love for her job. Further, no evidence was led to indicate that between June 29, 2012, and April 15, 2013, the applicant could have earned more income or found another position faster.
236Given the above, I am satisfied that the applicant is entitled to lost income in the amount of $50,219.
DECISION
237The Tribunal makes the following order:
a. The respondent shall pay to the applicant $5,000 for injury to dignity, feelings and self-respect related to the respondent’s infringement of s. 7(3)(a) of the Code and pre-judgement interest on this amount for the period between February 28, 2011, and the date of this Decision pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
b. The respondent shall also pay to the applicant $23,000 for injury to dignity, feelings and self-respect related to the respondent’s infringement of s. 7(3)(b) of the Code and pre-judgement interest on this amount for the period between November 1, 2011, and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.
c. The respondent shall also pay to the applicant $50,219 for loss of earnings arising from the respondent’s infringement of the Code less the applicable statutory deductions plus pre-judgement interest on this amount for the period between November 22, 2012, and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.
d. The respondent shall also pay to the applicant post-judgment interest on the above awarded amounts from the date of this Decision calculated pursuant to s. 129 of the Courts of Justice Act.
Dated at Toronto, this 13th day of August, 2014.
“Signed by”
Ruth Carey
Member