HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Liudmila Gubrenko Applicant
-and-
T.O.J. Empire Auto/2100011 Ontario Inc., Tony (Joseph, Anatoliy) Katz (Katez) and Olga Baranova Respondents
DECISION
Adjudicator: Douglas Sanderson Date: August 19, 2014 Citation: 2014 HRTO 1232 Indexed as: Gubrenko v. T.O.J. Empire Auto
APPEARANCES
Liudmila Gubrenko, Applicant Self-represented
Tony (Joseph, Anatoliy) Katz (Katez) and Olga Baranova, Respondents Judit Schonwald, Representative
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, gender identity, gender expression, family status and marital status.
Background
2The Application is centred on two incidents that occurred in November and December 2012 at 55 Toro Road, Toronto, which is the location for both the organizational respondent and VSDJ Ontario Inc./ Practicar Systems (“Practicar”), a car sales and rental business. The applicant was an employee of Practicar at the time. The applicant alleges that the individual respondent Tony Katz came into the workplace on November 6, 2012 and spoke with Gregory Ostrovsky, a fifty per cent owner of Practicar, in his office. The applicant alleges that she overheard Mr. Katz call her a “bitch”, “whore” and “slut” in the course of his conversation with Mr. Ostrovsky. The applicant was concerned by this behaviour and wrote a letter of complaint to the Ministry of Labour (“MOL”). She asked Mr. Ostrovsky and Mr. Yury Kofman, who had also been in the office at the time of the alleged incident, to sign the letter. Mr. Ostrovsky signed, but Mr. Yury Kofman did not. Mr. Yury Kofman informed Mr. Katz of the letter and Mr. Katz became angry. The applicant alleges that individual respondent Olga Baranova, who was also a fifty per cent owner of Practicar and Mr. Katz’ common law spouse, came into the office on December 4, 2012 and threatened to fire the applicant if she did not withdraw her complaint against Mr. Katz. The applicant alleges that Ms. Baranova threatened to cancel her son’s education plans and stated that the applicant “had just her genitalia to earn money for living”. The applicant states that Mr. Katz arrived and physically removed her from the premises and the police and an ambulance were called. The applicant states that the police took no action against the individual respondents, but that she required assistance from the paramedics in the ambulance.
3The respondents deny that they discriminated against or harassed the applicant in any way. The respondents state that the applicant worked for the organizational respondent between July 2006 and July 2008. The applicant began working for Practicar in July 2008, which was a partnership between Ms. Baranova and Mr. Ostrovsky. The respondent state that they created a work schedule that was adaptable to the applicant’s responsibilities as a single mother. The respondents state that the applicant was a problematic employee who was hostile and harsh with customers and suppliers. The respondents state that Mr. Katz spoke to Mr. Ostrovsky about the applicant’s behaviour on November 6, 2012, but did not refer to the applicant in the manner attributed to him. The respondents state that Mr. Katz and Ms. Baranova had a verbal disagreement with the applicant in the office on December 4, 2012. The argument escalated and it the applicant threatened Ms. Baranova. The applicant called the police who investigated the matter and laid no charges.
Hearing
4The hearing of this matter took place on May 22 and 23, 2014 in Toronto. The applicant testified and also presented Mr. Ostrovsky as a witness. Both individual respondents testified and they also present Mr. Kofman and Shannell Katz as witnesses. The parties tendered four documents into evidence.
Evidence
Undisputed Facts
5Several facts were not in dispute. The applicant worked for the organizational respondent between some time in 2006 and December 2008, at which time she began working for Practicar. Ms. Baranova owns the organizational respondent. Practicar was in the business of selling and renting cars and Mr. Ostrovsky and Ms. Baranova each owned fifty per cent of the company’s shares. Practicar operated out of the same location as the organizational respondent. The applicant’s evidence was that she was hired as a part time book keeper for Practicar, but there is no dispute that her duties included renting cars to customers. Although she was a fifty per cent shareholder, Ms. Baranova’s involvement in the day-to-day operation of the business was somewhat limited and Mr. Katz acted as her representative. Mr. Ostrovsky’s evidence was that he and Mr. Katz made all business decisions together, including staffing and day-to-day operations. Mr. Katz testified that he did not have an “official” position in Practicar, but had authority over decisions such as hiring.
November 6, 2012
The Applicant
6The applicant’s evidence was that in the morning of November 6, 2012 Mr. Katz spoke to Mr. Ostrovsky in Mr. Katz’ office. The applicant stated that she could hear the conversation because Mr. Katz spoke in a very loud voice – so loud that she believed he intended that she overhear what he said. According to the applicant, Mr. Katz referred to her as a “bitch”, as a “slut” and as a “whore” in the course of his discussion with Mr. Ostrovsky. The applicant’s evidence was that Yury Kofman, an employee of the organizational respondent, was in the office and also heard Mr. Katz’ comments.
7The applicant stated that following this incident she drafted a complaint letter to the MOL. The applicant’s evidence was that on December 3, 2012 she asked Mr. Ostrovsky and Mr. Kofman to sign the letter as witnesses. Mr. Ostrovsky signed the letter, but Mr. Kofman refused, stating that he was afraid that Mr. Katz would fire him if he did. Mr. Kofman then called Mr. Katz and informed him of the letter. The applicant stated that she overheard Mr. Katz telling Mr. Kofman to ask the applicant to leave the office.
8In cross-examination, the applicant confirmed that she received subsidies for daycare for her son when she immigrated to Canada. The applicant also confirmed that she made contributions to a Registered Educations Savings Plan (“RESP”) and received contributions from the government in that regard.
Gregory Ostrovsky
9Mr. Ostrovsky’s evidence was that he and Mr. Katz had a conversation on November 6, 2012, in Mr. Katz’ office, during which Mr. Katz referred to the applicant as a “bitch”, as “whore” and as a “slut”. According to Mr. Ostrovsky, Mr. Katz was screaming to make sure the applicant could hear him. Mr. Ostrovsky stated that the applicant was located in her regular workstation behind the counter in the outer office, as was Mr. Kofman.
10Mr. Ostrovsky testified that the applicant prepared a letter of complaint to the MOL regarding the incident on November 6, 2012 and asked him and Mr. Kofman to sign it as witnesses. Mr. Ostrovsky stated that he signed the document, but Mr. Kofman said he would not sign without Mr. Katz’ permission. Mr. Ostrovsky’s evidence was that Mr. Kofman called Mr. Katz to inform him about the letter and that he was able to hear part of Mr. Katz’ reaction, which included screaming and foul language directed at the applicant. Mr. Ostrovsky stated that he heard Mr. Katz direct Mr. Kofman to “kick the applicant out of the office”, but Mr. Kofman did not do this.
11In cross examination, Mr. Ostrovsky confirmed that the individual respondents had introduced the applicant to him in 2008. The applicant had been working for the respondents at the time and he hired her to be a part time receptionist for Practicar. Mr. Ostrovsky also stated that he and the individual respondents had already taken the decision to cease operations of Practicar in the summer of 2013 because of differences between him and Mr. Katz. Mr. Ostrovsky stated that on November 6, 2012 Mr. Katz came into the office to speak to him regarding something about the business, although he did not recall the precise subject. Mr. Ostrovsky stated that he did not recall how the meeting started, but recalled that Mr. Katz was screaming and eventually moved on to complain about the applicant. Mr. Ostrovsky stated that he asked Mr. Katz to calm down, as the applicant would be able to hear him. According to Mr. Ostrovsky, Mr. Katz replied that he wanted the applicant to hear what he had to say about her. Mr. Ostrovsky stated that Mr. Katz did not express a particular complaint about the applicant, but just started calling her names. Mr. Ostrovsky stated that Mr. Katz did not state that he wanted the applicant to leave the company during this conversation. Rather, Mr. Katz stated this opinion in a conversation with Mr. Ostrovsky on December 1, 2012.
Tony Katz
12Mr. Katz’ evidence was that he and Ms. Baranova first met the applicant in 2005 and later offered her a job with the organizational respondent in 2006. Mr. Katz stated that the applicant’s employment relationship with the organizational respondent ended in 2008 when she accepted the position at Practicar. According to Mr. Katz, he and Ms. Baranova at first had a friendly relationship with the applicant. He stated that she and her son had on occasion visited their home and that the applicant’s son sometimes came to work with her. Mr. Katz stated that the applicant and Ms. Baranova had been close until they had a falling out sometime in 2007, which resulted in them no longer speaking to each other.
13Mr. Katz’ evidence was that the applicant was often rude and aggressive with customers and that he often discussed this issue with Mr. Ostrovsky. Mr. Katz stated that on November 6, 2012 he was in the office and observed the applicant refusing to rent a car to a customer, a behaviour he had observed before. Mr. Katz decided to talk to Mr. Ostrovsky about this and brought Mr. Ostrovsky into his office. According to Mr. Katz he informed Mr. Ostrovsky that the applicant was destroying the business by refusing customers and acting like a “bitch”. Mr. Katz advised Mr. Ostrovsky that he did not want the applicant working for Practicar any longer.
Gregory Ostrovsky Recalled
14After Mr. Katz finished his testimony, I informed the parties that, pursuant to the rule in Browne v. Dunn (1893), 6 L.R. 67 (H.L.), the respondents ought to have put to Mr. Ostrovsky their position that the applicant was often rude to customers and that the subject of the conversation between him and Mr. Katz on November 6, 2012 was the applicant’s refusal to rent to a customer. I therefore directed that Mr. Ostrovsky be recalled to present his evidence on these issues.
15Mr. Ostrovsky’s evidence was that the applicant was not rude to customers. He acknowledged that it is sometimes necessary to refuse to rent to customers if they do not meet the necessary criteria set by the franchise, e.g. age requirements. The decision regarding whether to rent to a customer is made by the person behind the counter or the supervisor, if he is present. Mr. Ostrovsky stated that he and Mr. Katz did not discuss the applicant’s refusal to rent to a customer on November 6, 2012. Mr. Ovstrovsky stated that this conversation happened later, sometime between November 6 and December 1, 2012 when Katz called him to complain that the applicant refused to rent to some customers. Mr. Ostrovsky’s evidence was that he investigated Mr. Katz’ concern with the applicant who confirmed that she had refused to rent to some customers based on the rental criteria.
16In cross examination, Mr. Ostrovsky stated that Mr. Katz came to speak to him about the decision to close Practicar, which was a decision Mr. Katz initiated. Mr. Ostrovsky stated that he mentioned this to Mr. Kofman who relayed the information to Mr. Katz on November 5 or 6, 2012. According to Mr. Ostrovsky Mr. Katz was upset about this and came to the office to speak to Mr. Ostrovsky. Mr. Katz became upset during the conversation, began to scream and stated how he did not like the applicant and made vulgar comments about her.
Yury Kofman
17Mr. Kofman is the manager for the organizational respondent, a position he has held for more than ten years. His evidence was that he sometimes assisted Practicar at the front desk and dealt with customers. He stated that he has known Mr. Katz for about 18 years and both the applicant and Ms. Baranova for about 8 years. He described the atmosphere in the office as normal. Mr. Kofman stated that he had no problems with either Mr. Katz or the applicant and testified that he and the applicant had been friends.
18Mr. Kofman’s evidence was that he had never witnessed Mr. Katz display inappropriate behaviour during his employment with the organizational respondent. Mr. Kofman testified that he was working with the applicant in the office on November 6, 2012 and that Mr. Katz was also in the office. According to Mr. Kofman, the applicant declined to rent a car to a customer, which angered Mr. Katz. Mr. Katz and the applicant argued about her decision and then Mr. Katz spoke to Mr. Ostrovsky in Mr. Katz’ office. Mr. Kofman stated that he overheard Mr. Katz and Mr. Ostrovsky talking about the applicant. Mr. Kofman’s evidence was that Mr. Katz said that the applicant does not know how to talk to people, that the applicant was going to cause them to lose business and that he did not want her in the business anymore. Mr. Kofman stated that the Mr. Kofman was “just angry” and stated his opinion to Mr. Ostrovsky about the applicant without any derogatory comments about the applicant.
19Mr. Kofman’s evidence was that on December 3, 2012 the applicant asked him to sign a letter of complaint that she drafted to send to the MOL. Mr. Kofman stated that the letter contained allegations against Mr. Katz with which Mr. Kofman did not agree; therefore, he refused to sign the letter. He called Mr. Katz to inform him about the applicant’s letter and Mr. Katz stated that he would not be blackmailed and that the applicant would not be working with them anymore. Mr. Kofman also stated that Mr. Katz directed him to tell the applicant to leave the office. After the call ended, Mr. Kofman informed the applicant and Mr. Ostrovsky that Mr. Katz wanted the applicant out of the office, but Mr. Ostrovsky overruled that direction and no one left.
December 4, 2012
20On December 4, 2012, Ms. Baranova attended at the Practicar/TOJ office to speak to the applicant about her complaint letter to the MOL. Mr. Kofman was also in the office. Ms. Baranova’s evidence was that she intended to come to a compromise with the applicant and to stop the applicant from “crushing” the business. Whatever Ms. Baranova’s intention may have been, the interaction between Ms. Baranova and the applicant immediately descended into an acrimonious confrontation. There is little doubt about how this incident unfolded both because the testimony of the participants and witnesses is quite consistent, although interpretations vary, and because the applicant recorded most of it on her iPhone.
21All of the dialogue between the applicant and Ms. Baranova was in Russian and the applicant had the dialogue transcribed and translated into English. The applicant filed the transcript in advance of the hearing, but did not produce a copy of the video. The respondents objected to the admissibility of the transcript without being able to confirm the accuracy of the transcription and the translation. I therefore directed the applicant to permit the respondents to view the video on her iPhone and she complied. Following their review, the respondents advised that the transcription and translation was accurate, but that not all of the video had been transcribed and translated. The respondents’ main concern was that the transcript did not contain a statement Ms. Baranova made to the applicant regarding a specific allegation about the applicant. The parties agreed on the literal translation of Ms. Baranova’s comment, which allayed the respondents’ concerns about the transcript. However because that allegation and comment is not relevant to the matters before the Tribunal I have found it unnecessary to reproduce it in this decision.
22The transcript and oral evidence establish that Ms. Baranova arrived at the office around 1 p.m. in the afternoon of December 4, 2012 and took a picture of the applicant. According to the transcript, the picture was to prove that the applicant was working for Ms. Baranova’s company that day. The applicant and Ms. Baranova immediately began arguing with each other and, in particular, the applicant aggressively challenged Ms. Baranova’s assertion that she owned the company and had the authority to give the applicant direction. Ms. Baranova also persisted in demanding of the applicant “who are you?”. The argument went back in forth in this manner with Ms. Baranova insisting that she could prove that she was the owner and the applicant insisting that she worked for Mr. Ostrovsky. Eventually, Ms. Baranova informed the applicant that she was dismissed and, in fact, had been notified of her dismissal on December 1st. Ms. Baranova also made the following comment:
You will choke over your spit, you will return back all the money you have received from the State as a single mother, as well as the money spent on your education and your son’s education. I warmed such a serpent in bosom! And now the serpent is stinging with her stinger!
23The evidence indicates that the applicant spoke to the police at least twice during this confrontation to report alleged harassment and also requested an ambulance, using the phone in the office. Ms. Baranova objected to this, in particular because the applicant was using the company’s telephone. This prompted the following exchange:
Ms. Baranova: This is my telephone and my company.
Applicant: Your telephone? Are you serious?
Ms. Baranova: My company bought this telephone? Your telephone is the telephone you are holding now in your hand (i.e., the applicant’s iPhone). And your twat belongs to you. All the rest here is mine.
Applicant: Do you realize what you are saying? What are saying?
Ms. Baranova: I repeat, that only your twat belongs to you here.
Applicant: What are you saying? Shut your mouth! Are you offending me? Are you offending me now?
Ms. Baranova: I repeat for you once again: only your personal twat belongs to you.
Applicant: Is that you, who is saying me such works?
Ms. Baranova: Yes, yes, I am saying that. Go, go.
24There is no dispute that Mr. Katz and his daughter, Shanell Katz, arrived sometime after the argument began, having been summoned by Ms. Baranova. The consistent evidence of Mr. Katz, Ms. Katz, Ms. Baranova and Mr. Kofman was that the applicant was asked several times to leave, but she refused because she did not feel that she had to take direction from anyone other than Mr. Ostrovsky. The applicant’s evidence was that Mr. Katz grabbed her hand and pushed her out of the office and she waited for the police and ambulance outside. Mr. Katz, Ms. Katz, and Mr. Kofman all testified that Mr. Katz escorted the applicant out of the office and placed his hand on her back to direct her and also that the applicant was screaming by this point. The police and ambulance eventually arrived. The police kept the parties separated and took statements from them. The police advised the parties to calm down, but determined that no charges were necessary. The applicant received treatment in the ambulance and arranged to get a ride home.
25Ms. Baranova testified that the applicant provoked her by challenging her authority and refused to stop recording with her iPhone when Ms. Baranova asked her to. Ms. Baranova also stated that she understood that the applicant was trying to put Mr. Katz into jail with her complaint. Ms. Baranova stated that this behaviour pushed her to become aggressive. Ms. Baranova stated that using foul language was not her normal personality. In any event, Ms. Baranova explained that the proper translation of the expression was that the applicant had just her “pussy” that belonged to her. Ms. Baranova that this is a Russian expression that really means that one only owns their own body and nothing else. Ms. Baranova stated that she was sorry for this part of the incident and that she did not like fighting.
26Mr. Ostrovsky arrived at the office when the applicant was outside with the police and the paramedics. Mr. Ostrovsky’s evidence was that he decided to close Practicar after ascertaining what had transpired. He stated that he concluded that the business could not function if these kinds of incidents were occurring without his permission. Mr. Ostrvosky stated that the business of Practicar was wound up in the next three weeks.
27The applicant’s evidence was that Mr. Ostrovsky had to terminate her employment after he closed Practicar. The applicant stated that it was Mr. Ostrovsky and not Ms. Baranova who terminated her employment because Ms. Baranova did not have the authority to make that kind of decision. In her view, she was removed from the office on December 4, 2012 because of the letter she wrote to the MOL. On that note, the evidence was that the applicant sent her complaint letter to the Practicar head office in Calgary, but not to the MOL. The applicant’s evidence was that she went to work for Mr. Ostrovsky in another car dealership in late January or early February of 2013 after she obtained her qualifications to sell cars. She stated that she is earning more in this position than she did with Practicar.
Analysis and Decision
28The relevant Code provisions are as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex… by his or her employer or agent of the employer or by another employee.
(1) In Part I and in this Part,
“family status” means the status of being in a parent and child relationship
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
29The applicant has the onus of proving that the respondents violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondents discriminated against her or harassed her on the Code grounds alleged. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
30The applicant was not an employee of the organizational respondent at the time of the incidents in question in this Application. Accordingly, there is no proper basis for a finding that it violated the applicant’s Code rights.
31The parties dispute what Mr. Katz said about the applicant on November 6, 2012. Accordingly, I have determined the facts of this case, on a balance of probabilities, based largely on my assessment of the witnesses’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
32I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, 2010 ONCJ 396, as follows (at paragraphs 58 to 60):
“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON CA), 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
33In order to establish a case of sexual harassment, pursuant to sections 7(2) and 10(1) of the Code, the applicant must prove, on a balance of probabilities, that (1) the individual respondents was her employer, her employer’s agent, or another employee; (2) the individual respondents 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 respondents harassed her in the workplace; and (4) the individual respondents harassed her because of her sex. See for example Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695. In my view, the same principles apply regarding allegations of harassment on other Code grounds.
34The standard regarding the second part of the test is objective, i.e., whether the individual respondents knew or ought reasonably to have known that his impugned behaviour towards the applicant was unwelcome. In determining whether the respondent ought reasonably to have known that his conduct was unwelcome, the Tribunal assesses whether a reasonable person in the applicant’s position would find the conduct unwelcome and whether a reasonable person in the individual respondent’s position would understand that to be the case. See Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paragraphs 43-48.
November 6, 2012
35Mr. Katz admitted that he referred to the applicant as a “bitch” in his conversation with Mr. Ostrovsky. Determining whether he also called her a “slut” and a “whore” is complicated by the fact that there were four witnesses to this incident, each of whom presented a somewhat different account. The applicant’s evidence was not particularly detailed, as she did not provide much in the way of context for the conversation between Mr. Katz and Mr. Ostrovsky. Mr. Ostrovsky did not recall, at first, why Mr. Katz wanted to speak to him and stated that Mr. Katz later launched into a tirade about the applicant for no particular reason. When he was recalled as a witness, I asked him whether Mr. Katz’s concern was that the applicant refused to rent to a customer for no reason. Mr. Ostrovsky denied that was the reason and stated that Mr. Katz was upset about the decision to close Practicar, which he had mentioned to Mr. Kaufman. Mr. Ostrovsky’s evidence was that Mr. Katz and he discussed the applicant’s refusal to rent to customers sometime between November 6 and December 1, 2012. The evidence of Mr. Katz and Mr. Kofman was much more detailed. Both of them testified that the applicant declined a rental customer and that Mr. Katz spoke to Mr. Ostrovsky about this. Mr. Kofman’s account of what Mr. Katz said to Mr. Ostrovsky is consistent with Mr. Katz’ testimony, although he did not hear Mr. Katz call the applicant a “bitch”.
36The evidence of Mr. Katz and Mr. Kofman provide a logical context for Mr. Katz wishing to speak to Mr. Ostrovsky, i.e., the applicant’s refusal of customers and customer service skills. That Mr. Katz would call the applicant a “bitch”, a derogatory term signifying an unpleasant woman, in this context is also logical, if seriously unprofessional and inappropriate. Mr. Ostrovsky could not, in his initial testimony, recall specifically why Mr. Katz wanted to speak to him and that after discussing some other business issue began calling the applicant names for no particular reason. When he was recalled, he stated that Mr. Katz was upset about the decision to wind up Practicar, which Mr. Ostrovsky had mentioned to Mr. Kofman. First, the fact that Mr. Ostrovsky could not recall the reason Mr. Katz wanted to speak to him in his initial testimony, but gave a specific reason when recalled, not long after, is somewhat concerning to me. On Mr. Ostrovsky’s evidence, Mr. Katz initiated the decision to close Practicar; therefore, I find it illogical and unlikely that Mr. Katz would be upset by this fact or that Mr. Ostrovsky mentioned it to Mr. Kofman. Mr. Ostrovsky was also vague about when he and Mr. Katz spoke about the applicant refusing customers, as he indicated that the conversation occurred sometime in a period of approximately a month. Again, the applicant provided no detail or context that would allow me to find her evidence reliable. In these circumstances, I find the evidence of Mr. Katz and Mr. Kofman to be more reliable and, accordingly, I find that the applicant has not proven on a balance of probabilities that Mr. Katz referred to her as a “slut” and a “whore” as well as a “bitch”.
37The evidence is clear that Mr. Katz was Ms. Baranova’s representative in the management of Practicar and made business decisions in consultation with Mr. Ostrovsky. In my view, Mr. Katz acted as an employer and was Ms. Baranova’s agent. The word “bitch”, in the context in which Mr. Katz said it, is a derogatory expletive connoting an unpleasant woman. Accordingly, this term is both connected to the applicant’s gender and is objectively offensive. In my view, however, Mr. Katz’ statement does not amount to a “course of vexatious comment”.
38The Tribunal has accepted that a single comment can amount to a breach of the Code. See, for example, B.C. v. London Police Services Board, 2011 HRTO 1644. In Berisa v. Toronto (City), 2011 HRTO 912, and B.C., above, the Tribunal reviewed jurisprudence considering whether a single incident can amount to harassment or discrimination. Context is crucial in such determinations and the outcomes were mixed depending on the circumstances of each case. However, the Tribunal noted that some single incidents of harsh slurs have been found to not amount to harassment or discrimination in employment. In B.C., above, this Tribunal adopted the decision of the British Columbia Human Rights Tribunal (BC HRT) in Pardo v. School District No. 43, 2003 BCHRT 71 in which the BC Tribunal stated as follows at paragraph 12:
(…) all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.
In my view, a single incident in which the applicant was called a “bitch”, while inappropriate, is not sufficiently egregious or virulent to amount to a violation of the Code.
December 4, 2012
39There is no dispute that, during the argument on December 4, 2012 between Ms. Baranova and the applicant, Ms. Baranova repeatedly asserted to the applicant that the applicant did not own anything in the office but her “twat”. Ms. Baranova also threatened that the applicant would be forced to pay back money she received from the government as a single mother and for her son’s education, apparently a reference to the assistance the applicant received regarding daycare and the government’s contribution to her son’s RESP. The only issue is whether these statements amount to harassment in violation of the Code.
40Ms. Baranova was an owner of Practicar and exerted control over its operations through Mr. Katz, her agent. Accordingly, I find that Ms. Baranova was the applicant’s employer. The incident occurred in the applicant’s workplace. Ms. Baranova’s threat that the applicant would have to repay money she received from the government “as a single mother” and for her son’s education was directly related to her parental relationship with her son, i.e., her family status. I also find that this threat, however ridiculous, was intended to intimidate the applicant and Ms. Baranova knew it would be unwelcome. Ms. Baranova made this threat in the course of her argument with the applicant in which she also made vulgar references to the applicant’s genitalia, which I have also found to be vexatious, as described below. Accordingly, I find Ms. Baranova’s threat related to the applicant’s family status forms part of a course of vexatious comments and conduct.
41Ms. Baranova’s repeated statements to the effect that the applicant owned nothing in the office but her own “twat” were intended to emphasize the applicant’s subordinate position relative to Ms. Baranova. The word “twat” is an extremely vulgar colloquialism for a woman’s vagina. Ms. Baranova tried to downplay the use of this word by stating that she was using a Russian expression meaning that the applicant only owned her own “body”. Of course, Ms. Baranova could have used the Russian word for “body”, but instead chose to use a vulgar slang. I am not prepared to accept, on the evidence before me, that Ms. Baranova’s reference to the applicant’s genitalia was an innocuous Russian idiom. The applicant, also a native Russian speaker, was obviously offended. Ms. Baranova also testified that she did not use the term “twat”, but instead referred to the applicant’s “pussy”, another vulgar colloquialism for female genitalia, as if that was somehow less offensive. Ms. Baranova’s references to the applicant’s vagina were obviously connected to her sex, as only women have that particular organ. In my view, Ms. Baranova’s comments were objectively offensive and I find that she knew or ought to have known that the applicant would find references to her “twat” to be unwelcome in the context of a discussion about her employment, however heated. Indeed, during her testimony, Ms. Baranova apologized for making these comments and was clearly embarrassed.
42As noted above, Ms. Baranova’s threats related to the applicant’s family status and her comments about the applicant’s genitalia were made during the argument with the applicant on December 4, 2012. In my view, while engaging different Code grounds (family status and sex), Ms. Baranova’s threats and comments amounted to a course of vexatious conduct. Consequently, I find that Ms. Baranova subjected the applicant to harassment in employment because of sex and family status in violation of sections 7(2) and 5(2), respectively.
REMEDY
43The Tribunal’s remedial authority is set out in section 45.2 of the Code as follow:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
44An award of compensation for injury to dignity, feelings and self-respect is intended to recognize the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.
45In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
46The applicant submitted that $15,000.00 for emotional distress and $15,000.00 for loss of dignity would be an appropriate award. The applicant’s evidence regarding remedy was that she had difficulty sleeping after December 4, 2012 and was prone to crying. She stated that she could not explain the situation to her son, who was eight years old at the time, who could see that she was upset. The applicant stated that her doctor prescribed medication to assist her with sleeping. The applicant tendered documents from her doctor that confirm this prescription. I place limited weight on these documents because her doctor did not testify, but there is no reason not to accept the applicant’s evidence that she had difficulty sleeping after December 4, 2012 and took medication to help her sleep. There was no evidence, however, that the applicant suffered long term or permanent medical consequences as a result of the harassment she experienced. In these circumstance, I accept that the applicant suffered some injury to her dignity and self-respect because of the personal respondent’s demeaning remarks
47The Tribunal has considered the appropriate remedy for a single comment or a few comments in a short period of time or number of occasions and has generally awarded relatively modest damages. See Michelin v Johnson, 2014 HRTO 321 ($3,000.00), Li v. International News, 2014 HRTO 80 ($600.00), Adorgloh v. Seasons Foodmart and Feng Lin, 2013 HRTO 1201 ($2,000.00), Romano v. 1577118 Ontario Inc., 2008 HRTO 9 ($1,000.00), Baisa v. Skills for Change, 2010 HRTO 2161 ($1,500.00), Brooks v. Total Credit Recovery Limited, 2012 HRTO 1232 ($2,500.00). Abdallah v. Thames Valley District School Board, 2008 HRTO 230 ($1,500.00) and Szyluk v. United Food and Commercial Workers Canada, 2009 HRTO 902 ($2,000.00).
48In Abdallah, above, however, the Tribunal found that it was appropriate to consider the applicant’s behaviour when assessing damages. In my view, there is no doubt that the applicant’s behaviour contributed to the confrontation with Ms. Baranova. The evidence establishes that the applicant knew very well who Ms. Baranova was and that she was an owner of Practicar. Ms. Baranova did not take an active role in the business and the applicant’s understanding that Ms. Baranova did not have authority to give her direction may not have been unreasonable. The applicant’s reaction was anything but diplomatic or reasonable in my view and escalated the confrontation. Her aggressive reaction indicates that she did not feel particularly vulnerable or insecure as a result of her status of an employee. The applicant’s behaviour does not excuse Ms. Baranova’s harassing comments, but is a factor to be considered in assessing damages.
49In my view, Ms. Baranova’s misconduct was as serious as the misconduct found in Michelin, Adorgloh and Brooks, above. However, in light of the applicant’s conduct that contributed to the confrontation with Ms. Baranova, I view $2,000.00 to be appropriate compensation for injury to the applicant’s dignity, feelings and self-respect.
Order
50The Tribunal orders as follows:
a. Within 45 days of the date of this Decision, the Ms. Baranova shall pay to the applicant $2,000.00 as compensation for injury to dignity, feelings and self-respect;
b. Ms. Baranova shall pay pre-judgment interest on the amount described in paragraph 50 a., above, from December 4, 2012 to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43. In the event that the respondents fails to make the payment described above within 45 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O 1990, c. C.43.
Dated at Toronto, this 19th day of August, 2014.
“Signed By”
Douglas Sanderson Vice-chair