HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Janice Rushford
Applicant
-and-
Kent Sheppard
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Rushford v. Sheppard
APPEARANCES
Janice Rushford, Applicant
Cédric Lamarche, Counsel
Kent Sheppard, Respondent
Self-represented
1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging sexual solicitation, and reprisal for rejecting a sexual solicitation or advance.
2The applicant was a real estate agent with Re/Max Hallmark Realty Corporation (“Hallmark”). The respondent is one of Hallmark’s three shareholders. The applicant and respondent were in a long-term consensual relationship that ended in October 2011. The applicant alleges that the respondent sexually solicited her after the relationship ended by both overtly asking her for sex and by pressuring her to resume their relationship. The applicant alleges that when she rejected these solicitations the respondent reprised against her by withholding a real estate commission and by making her pay additional fees to Hallmark.
3A three-day hearing was held. At the hearing I heard evidence from the applicant, the respondent and Ken McLachlan, the present majority owner of Hallmark. Both parties disclosed documentary evidence that included extensive email correspondence between the applicant and respondent as well as documents related to the disputed real estate commission. The applicant provided case law for my consideration.
DECISION
4The Application is dismissed. I find the applicant’s contention that the respondent sexually solicited her after October 2011 to not be credible. As I find that the respondent did not make any sexual solicitations the respondent’s alleged further actions do not constitute reprisal for the applicant refusing these solicitations.
BACKGROUND
5The applicant began working for Hallmark as a receptionist in 1999. She was a receptionist for seven years before becoming a buyer’s agent for one year and then a fully licensed real estate agent with the company. She continued as an agent at Hallmark until March 2012 when she resigned and became an agent with another realty company.
6The respondent started Hallmark, a franchise of Re/Max, in 1982 with two partners. In the 1990s he and Mr. McLachlan became co-owners of Hallmark each with a 50% stake in the company. In 2004 the respondent began selling part of his stake to Debra Bain. It appears the respondent now owns approximately 17% of the company with Ms. Bain owning approximately 33% and Mr. McLachlan the remaining 50%.
7The respondent testified that he played a role in the management of Hallmark until he retired in 2004 at which time he was no longer active in the company. The applicant disputes this contending the respondent is widely seen as the person who built Hallmark into the successful company that it is and that the respondent continued to play an active and influential role in the company after 2004.
8The applicant and respondent began a personal relationship in early 2007. They began living together in late 2008. They became engaged in the summer of 2009 and held a wedding ceremony in February 2010. They did not subsequently register their marriage and so never became legally married.
9Both the applicant and respondent testified that their relationship was tempestuous – the applicant described it as positive but with terrible heated moments – and they had a number of separations. These included separations after they began living together and after their wedding ceremony.
10The parties agree that their relationship came to an end in October 2011, although they dispute why. The applicant contends the decision was hers, the respondent contends that it was not clear exactly whom broke up with whom.
11The applicant and respondent had no personal contact after October 2011. They communicated by email, text messages and telephone only.
ALLEGATIONS OF SEXUAL SOLICITATION
12The applicant alleges the respondent sexually solicited her during the period October 2011 to February 2012. The applicant testified that after October 2011 the respondent would frequently send her emails and would telephone her day and night. She testified the respondent was emotional, that he would cry, that he would send flowers and ask her what was he going to do without her. She testified that he would say the break up of the relationship was so unfair, stating that he had built her career. She testified that the respondent wanted to resume their relationship. She testified that the respondent had a lot of difficulty understanding that this was not just another break up but the end of the relationship. She testified he also kept asking her to have sex with him.
13The applicant testified that she told the respondent repeatedly throughout the period November 2011 to February 2012 to move on, that the relationship was over. She testified that she had a weak moment during Christmas 2011 when she communicated an interest in possibly getting back together but that in general she wanted the relationship to end.
14The applicant also testified that the respondent’s request for sex only occurred after Christmas. She further testified that the request for sex first occurred at the end of January and the beginning of February 2011 when the respondent told her he could ruin her career at Hallmark. She testified he told her he would give her one last chance stating that if they were not going to be a couple that at least they could have sex. The applicant testified that she believed the respondent could affect her career, that he did have the power to grant or deny her benefits and that she felt threatened. She testified that she simply wanted to be left alone to work.
15The respondent testified that he and the applicant had had a very sexualized relationship and that the applicant’s communications to the respondent during their relationship were often about sex. He described the applicant as flirtatious and sexy.
16The respondent denied the allegations that after October 2011 he either made explicit sexual solicitations to the applicant or that he threatened her because she refused him sex.
17The respondent testified that after October 2011 he and the applicant both “fought and loved” as couples do when they are ending a relationship. He testified that they would always banter, that the applicant was always cute and flowery in what she had to say. He testified that there was some sexual talk on the telephone but it was playful and not inappropriate given the nature and history of their relationship. He testified that it was the applicant who often initiated this with comments such as “do you miss me?” or by asking the respondent to guess what she was wearing. He testified that there was not a lot of telephone communication, that he and the applicant principally communicated by email.
18The applicant testified that while he thought it possible that he and the applicant’s relationship might resume he considered this to be highly improbable. He denied that he actively attempted to renew their relationship after October, further noting he had a new girlfriend.
19The respondent also alleged that it was in October 2011 that he discovered that the applicant had been charging the salary for her administrative assistant, Karen, to his personal account at Hallmark. The respondent testified that as a result he told the applicant she owed him $80,000. The applicant denied this testifying that Karen was an administrative assistant who provided assistance to several persons including the respondent. The respondent testified that this money was a significant issue for him as it gave rise to an issue of trust between him and the applicant and was the basis for a number of the disputes they had after October 2011.
PARTICIPATION FEES
20Hallmark agents work strictly on commission. They pay various fees to Hallmark including fees for the administrative support the company provides for them. These administrative fees are called participation fees and were, at the time of the events that gave rise the Application, in the order of $800-$900 a month.
21Both the respondent and Mr. McLachlan testified that there was a longstanding practice at Hallmark for senior managers to have these fees waived for a spouse or personal partner. The respondent estimated that this arrangement would have applied to approximately five of the more than 500 agents that worked for Hallmark.
22It was agreed that the respondent asked that these fees be waived for the applicant when she became an agent in 2007 and that this arrangement was in place until February 2012.
23The applicant testified that she believed she had been exempted from having to pay participation fees because the respondent had said she would be. She testified that while she was aware that other agents paid these fees she was unaware of the company practice to waive the fees for spouses or partners. She testified that the only conversation she had ever had with the respondent about the fees was in 2007 when he had told her not to worry about the fees, that he had it handled.
24It is a central contention of the applicant that the respondent was responsible for arranging in February 2012 that she begin to pay these fees in reprisal for her having refused his sexual solicitations and his interest in renewing their relationship. The applicant testified she believed the respondent was responsible for this decision because he explicitly threatened to make her pay these fees if she did not agree to return to their relationship. The applicant testified that it was her understanding that in February 2012 the respondent contacted Mr. McLachlan to tell him that the applicant should be required to pay these fees and that Mr. McLachlan subsequently carried out the respondent’s wishes.
25The applicant testified that she believed this decision was the respondent’s alone because Mr. McLachlan had assured her when she raised this issue in a telephone conversation with him that she would not have to pay these fees, that he had her back. The applicant testified that the decision to make her pay the participation fees and to do so retroactively (it appears back to December 2011) was a principal reason she chose to leave Hallmark and to work for another realty company.
26The respondent denied having threatened the applicant with having to pay participation fees or having contacted Mr. McLachlan about requiring the applicant to pay these fees. He testified that the decision to apply the participation fees was Mr. McLachlan’s and that he only learned of this when the applicant filed her Application. He testified that what the applicant interpreted as the respondent threatening to make her pay participation fees was, in fact, him warning her that if Hallmark was to learn that they were no longer in a relationship she would be obliged to pay her participation fees.
27Mr. McLachlan testified that it was solely his decision to require the applicant to pay participation fees in February 2012 and to make these fees retroactive. He testified that he took this action once he learned from the applicant in February 2012 that she and the respondent were no longer in a personal relationship. Mr. McLachlan testified that the respondent did not tell him that he and the applicant had split up and the respondent did not ask him to have the applicant begin to pay participation fees. Mr. McLachlan also testified that he never discussed the participation fees with the applicant and never told her in a telephone conversation that he had her back on this issue. He testified that the telephone call he had with the applicant in February 2012 was strictly about her concerns about her commission for a specific property the respondent bought.
The Property
28The respondent and applicant were still in their relationship when the respondent told the applicant that he wanted to buy a house in Toronto, which I will refer hereafter to as “the property”. The respondent asked the applicant to act as his real estate agent. The respondent testified that this was because, owing to an oversight, his own real estate agent’s license had lapsed. The respondent testified that the applicant had agreed to act as his agent for which the respondent would have paid her $500 or $1,000. He testified that paying such a small amount for this was because it was understood that the applicant was doing him a favour as his personal partner. He noted that the applicant did not show him the house but simply communicated his offer which was accepted. He testified that this required about 30 minutes of the applicant’s time.
29The applicant disputes this alleged agreement. She testified that it was always understood between her and the respondent that she was entitled to a commission for the purchase of the house which she testified was 2.5% of the house’s sale price. This ended up being $15,500. I had before me a signed document, a commission trust agreement, that shows that the applicant represented the respondent in the purchase of this house and that as the agent the applicant was entitled to a commissions of 2.5%. The applicant testified that if there had been a different financial agreement as the respondent maintained, this agreement would have been reflected in the commission trust agreement. She testified that she never agreed to waive her full commission.
30It is not disputed that on January 31, 2012, when the house was closing and the purchase price was to be paid that the respondent directed that the $15,500 fee be paid into his own account. The respondent testified that he did this based on his understanding of his original arrangement with the applicant.
31The applicant testified that this was an act of reprisal, that the respondent deliberately and knowingly claimed this money which was not his as a reprisal against the applicant for her refusal to respond to the respondent’s sexual solicitations and his interest in renewing their relationship.
32The applicant testified that once she learned that the respondent intended to keep this money she contacted Mr. McLachlan to complain. She testified that she told Mr. McLachlan that she and the respondent had broken up and that the respondent was threatening her over the commission for the property. She testified that Mr. McLachlan assured her that he could ensure the applicant was paid her commission.
33Mr. McLachlan testified that he did discuss with the applicant her concerns over her commission and that, in light of the signed commission trust agreement, he directed the respondent to pay the applicant her full commission, which the respondent subsequently did.
EMAIL MESSAGES
34Both the applicant and respondent disclosed emails (and text messages) they exchanged between November 2011 and May 2012 to support their cases. There were over a hundred such messages before me. I will refer to these documents in greater detail later.
ANALYSES
35The Code specifically prohibits sexual solicitations and reprisals for the rejection of such solicitations in section 7(3) which states:
Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer 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.
36The respondent challenged whether he was even subject to section 7(3) submitting that he was not a person who was in a position to confer or deny a benefit or advancement to the applicant given that he had retired in 2004 and was not active in the management of Hallmark.
37I accept that the respondent had no formal role in the management of Hallmark at the time of the events that gave rise to the Application. Both the respondent and Mr. McLachlan testified as such and there was no documentary or other evidence to indicate that the respondent had any management role. However, I find that it is reasonable to conclude that as one of the only three shareholders in the company and as a person who had previously played an important and active role in the management and growth of the company that the respondent had a degree of authority and influence in the company at the time of the events that gave rise to the Application. The fact that the respondent was able in 2007, three years after he retired, to request and have participation fees waived for the applicant is specific evidence, in my view, of his continuing ability to confer, grant or deny benefits to the applicant. As a consequence I am satisfied that section 7(3) can apply to the respondent’s position and his relationship with the applicant.
38The legal onus or burden in this case is on the applicant to bring forward sufficient evidence to prove that she experienced unwanted solicitations and reprisal for rejecting these solicitations in violation of the Code.
39The standard of proof is on the balance of probabilities, which means that the Tribunal must determine whether it is more likely than not that the alleged solicitations and reprisals occurred. The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, that in order to satisfy the “balance of probabilities” standard of proof evidence must be “sufficiently clear, convincing and cogent”.
40I also had before me differing accounts of what happened which requires me to assess the credibility of the witnesses before me. In making my assessment of credibility, I have been guided by the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), in particular, the following comments:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. (para. 356-357)
41The applicant submits that the Tribunal has broadly defined sexual solicitation to include actions that are more than explicit requests for sex. The applicant cites Cugliari v. Telefficiency Corporation, 2006 HRTO 7, a decision in which it was found that coerced or compelled social contact where an employee refuses to participate and which may result in a loss of employment benefits constitutes a violation of the Code. The applicant also refers to Donaldson v. 463963 Ontario Ltd. (1994), C.H.R.R. 26, a decision in which it was determined that a marriage proposal constituted a solicitation under section 7(3) and to Pchelkina v. Tomsons, 2007 HRTO 42, in which the Tribunal found that invitations to dinner and to a club constituted sexual solicitation. In the present case the applicant submits that the respondent’s demand to resume their prior relationship was in order to have sex with the applicant and as such this demand as well as the respondent’s overt requests for sex constitute sexual solicitation under section 7(3).
42I accept that there can be a violation of section 7(3) when a person who is in a position to confer a benefit pursues a personal relationship with another person in the workplace. Determining whether a person has violated section 7(3) when pursuing a personal relationship in the workplace is potentially difficult particularly in cases such as this one where the two persons in question were previously in a consensual long-term relationship. Perhaps it is even more difficult where the persons have previously separated and reunited on a number of occasions, as was the case with the applicant and respondent. However, the question of whether the respondent tried to renew his relationship with the applicant (and/or made overt sexual solicitations) that he knew or ought to have known were unwelcome is resolved for me by the fact that I do not find that the applicant has provided convincing or cogent evidence that any type of solicitations took place. I do not find that the applicant’s accounts of what took place between her and the respondent after October 2011 to be credible. I prefer the respondent’s version of events.
43To begin, I find the applicant provided inconsistent accounts of what took place after October 2011. During her testimony she stated that the respondent began harassing her in November and that he was verbally abusive in his telephone calls and e-mails telling her that if they did not get back together that at least they could have sex. However, the applicant also testified that the sexual solicitation only began after Christmas and then further testified that the respondent’s request for sex or to renew the relationship only arose at the end of January and beginning of February when the respondent was threatening her with having to pay participation fees and when they were disputing the commission for the property. I find these inconsistencies in timing and the differences as to the context in which these alleged solicitations were made – whether it was during the applicant and respondent’s general interactions following the break up of their relationship or whether it was explicitly when the respondent was allegedly threatening the applicant over the participation fees and commission – significant. I find these inconsistencies to be evidence of the applicant’s lack of credibility.
44I also find that the documentary evidence before me is not consistent with the applicant’s contention that the respondent was soliciting her either for sex or to resume their relationship. The emails exchanged between the applicant and respondent during the period November to January are, with some exceptions, friendly and supportive in nature. Some emails deal with mundane issues such as the respondent coming to pick up items at a formerly shared locker. Other emails discuss issues related to the applicant and respondent’s respective families in particular the applicant’s son and the respondent’s daughter. Many emails include fond reminisces about the applicant and respondent’s relationship. In a number of emails the parties wish each other well in their future lives (for example, the applicant’s December 31, 2011 email and the respondent’s January 1, 2012 (8:41 p.m.) email). These include emails in which the respondent and applicant wish each other well with the persons they are each currently dating (for example, the respondent’s December 19, 2011 email). Many emails from the applicant are signed with lots of “Xs and O’s” or “Love you” or include expressions of love (for example, “I love you. I always will” in a January 1, 2012 email). The overall tone of these emails is playful and friendly.
45There are also emails in which the parties express their anger. These include emails from the respondent expressing considerable anger about how he was treated in the relationship, and how he believes the applicant took his money (for example, the respondent’s December 17, 2011 email). The applicant also sent emails expressing her anger about the respondent’s past actions and his interactions with her son (for example, her December 19, 2011 email). In some instances the respondent and applicant exchange both angry and friendly emails in short order (for example, on January 1, 2012).
46However, none of the respondent’s emails ask for sex or refer to sex. None of the applicant’s emails indicate that the respondent had asked for sex or that she objected to such a request. The emails also do not indicate that the respondent was seeking to re-establish the relationship. There is nothing in these emails, in my view, that supports the applicant’s description of the dynamic between the two of them. There is nothing, for example, that suggests that after October 2011 the respondent was, as the applicant claimed, emotionally upset by the breakup and was questioning what he would do without the applicant. There is no documentation that suggests that the respondent was insistent or even interested in resuming their relationship and that he was demanding or even interested in sex with the applicant.
47Moreover, the number of emails from the respondent to the applicant in which he expressed his anger about the applicant and her behavior indicate, in my view, a man who was decidedly not interested in resuming the relationship. I will cite one of these emails, dated January 1, 2012:
Do me a favour please
You just leave me alone don’t email don’t threaten don’t talk
You hurt me
You used me
You were stealing from me the whole time
I helped you I helped your son
Your [sic] both ungrateful
You are just Nasty
You threatened and blackmailed
And because I objected and got mad you told everybody I was abusive
I have never been so disappointed in my whole life
You go to hell
That’s were [sic] people who do the things that you do end up
You torment me
You break my heart
You broke your son’s heart
You will break the next guy’s heart too
Just stay away from me
I can’t even look at you without wanting to Puke
Who do the fuck do you think you are
Good luck
You got a lot of repenting to do
Happy new year
I wish you the best
48This correspondence contributes to my finding that the respondent was a more credible witness than the applicant because I find the documentary evidence is more consistent with his version of events.
49I prefer the respondent’s characterization of the relationship after October 2011; that he and the applicant fought and loved in a manner that might be expected after the break up of a long term relationship; that both he and the applicant were sometimes friendly and nostalgic and sometimes angry and hateful. In my view the emails support the respondent’s descriptions of the relationship after October 2011.
50It is true that the respondent did say that there was some sexual talk between he and the applicant citing as an example the applicant asking him to guess what she was wearing. I find the respondent credible when he described this type of exchange as part of the playful banter he and the applicant shared when they were being friendly. I do not find the sexual comments as described by the respondent constitute evidence that the respondent was subjecting the applicant to unwanted sexual solicitations.
51The applicant also submitted that it was significant that the respondent thought there was a glimmer of hope that he and the applicant might resume their relationship and that this meant the respondent wanted to get back together notwithstanding the applicant’s lack of interest. I disagree. In my view the respondent’s reference to a glimmer of hope was to indicate that he thought there was a slight chance that the relationship might resume and it does not indicate that he was the one wanting or actively pursuing such an outcome. Again, there is no suggestion in the correspondence the parties shared to indicate the respondent was soliciting the applicant to renew their relationship or to have sex.
52The applicant did contend, at least at one point in her testimony, that the respondent’s solicitations only arose at the end of January which is after almost all of the emails that were before me were written. The applicant contended that it was at this time that the respondent threatened to ruin her reputation unless they got back together or at least had sex. The applicant testified that she was relying on two emails the respondent sent to her on January 31, 2012 and a further telephone conversation to support this contention.
53The first email sent at 4:40 pm on January 31 is entitled “Given I am still paying for your remax hallmark fees and have been for the past few years I suggest you think before”. It states:
Be smart Let’s not air our dirty laundry in public the fewer people who find out what you did to me the better You have a career a reputation what you did to me was deplorable. You still owe me 80,000 This is a start. We will try to restore your integrity and your karma if this is possible.
54The second email sent at 4:46 pm on January 31 is entitled “Let me know about the remax fees”. It states (in its entirety):
Do the right thing do the smart.
55The applicant testified that between these two emails the respondent telephoned her to further express his objection to her claiming her commission for the property.
56The applicant submits that these two emails and the intervening telephone call are evidence of the respondent threatening her and that the right thing the respondent is referring to when he wrote to “doing the right thing, do the smart” is for the applicant to get back together with the respondent.
57The respondent testified that he was not threatening the applicant but rather warning her that if she pursued getting her full commission for the property that Hallmark would find out that she was no longer in a relationship with the respondent and she would therefore no longer be exempt from having to pay participation fees. The respondent testified that his reference to doing the right thing was telling the applicant she should settle her dispute with him over the property commission and to do so without airing their disagreement, their “dirty laundry”, in public.
58I have some concerns about whether these emails are a complete record of what was exchanged between the parties on January 31. The title of the first email “Given I am still paying for your remax hallmark fees and have been for the past few years I suggest you think before” appears to me to be part of a longer phrase. The phrase “Do the right thing do the smart” also appears to be a fragment of a phrase given that it does not, on its own, make particular sense. I do note here that neither party raised concerns about these emails being fragmentary or incomplete.
59That said, based on the information before me, I do not find that these emails constitute evidence that the respondent was pressing for or demanding that the applicant resume their relationship. I do find that the applicant is pressing the applicant in the first email and the tone of this email is threatening. However, I find the phrase “Do the right thing do the smart” in the second email ambiguous. I am not persuaded that the phrase, whether read in conjunction with the first email or not, can reasonably be interpreted to mean that the respondent was pressing or threatening the applicant to renew their relationship or to have sex, as the applicant maintained. In my view the emails are more consistent with the respondent’s description, that he was trying to get the applicant to agree to a deal to resolve their dispute over the property.
60There remains the issue of the significance of the respondent’s overall actions in relation to the disputes over the commission for the property and the participation fees. The applicant clearly alleges that by refusing her commission and by making her pay the participation fees the respondent was retaliating against her for refusing his solicitations. These are allegations pursuant to the reprisal provisions in section 7(3)(b). However, the applicant also submits that the respondent used his refusal to pay her commission and the possibility that the applicant might have to pay participation fees as threats in order to get her to agree to renew their relationship or at least to have sex. In other words the applicant contends that these actions are also part of the respondent‘s efforts to sexually solicit her. Accordingly I will address this issue here.
61The applicant submits that the respondent’s attempt to withhold her commission for the property was part of his desperate effort to get back together with her. As I understand the argument the applicant contends that by withholding this payment and thereby threatening the applicant’s livelihood, the respondent wanted to exert some control over the applicant so that she would be pressured into agreeing to get back together with him or to at least have sex.
62I do not find this argument persuasive. In my view the dispute over the commission for the property is a simple, albeit acrimonious dispute over money. I am satisfied that the evidence before me clearly indicates that the respondent was upset about the fact that he thought the applicant has inappropriately charged $80,000 to his account and that she owed him this money. For example, in his email of January 12, 2012 the respondent writes to the applicant:
I think I might sell [the property] right away or at least try to sell it. I don’t know if you are interested in listing it I was thinking you might be able to get some good clients for yourself or even get the buyer for yourself. If you can make enough money off [the property] it could offset the rest of the 80000 that I lost because you were charging Karen’s 4000 monthly pay to my personal account without my permission or without my knowing. Maybe clean things up a little so I don’ feel so dirty and stupid and used by you. If you don’t want to help no worries have a great year have a great life. Be happy.
63The respondent was also of the view that the applicant had not done enough to earn her commission. In an email of January 31, 2012 he writes:
I will be happy to pay you a full commission for listing and doing everything and selling it for me but just to present my offer no sign backs half hour of your time that is ridiculous nobody ever paid anyone a full commission to present an offer. You did not even show me the property
64The applicant argued that the respondent provided inconsistent evidence as to whether he cared that much about the supposed $80,000 debt and whether he had, in fact, a deal with the applicant to take a commission of only $500 or a $1,000. However, I find these inconsistencies minor and I remain satisfied, based on the evidence before me, that the dispute over the commission was a financial dispute not some sort of desperate threat to induce the applicant to renew her relationship with the respondent.
65l also do not find credible the applicant’s contention that the respondent threatened to make her pay participation fees as part of this plan to renew his relationship with her or alternatively force her to agree to sex. I do think it is possible that the respondent threatened the applicant that she might have to pay participation fees if they did not resolve their differences – there is a suggestion of such a threat in his January 31 emails – but I do not accept that this was tied to any interest in resuming their relationship or having sex. In my view any reference by the respondent to participation fees was tied to his dispute with the applicant over money including his dispute over the commission for the property. The respondent was clearly angry and felt the applicant had financially taken advantage of him. Any reference or threat about the applicant potentially having to pay participation fees he was making was, in my view, related to his interests in getting the applicant to agree to his financial proposals. In my view there is no persuasive evidence that the respondent’s further, underlying motivation was to pressure the applicant into resuming their relationship or to exact a commitment from the applicant to have sex.
66In summary, I find that there is no persuasive evidence that the respondent was attempting to solicit the applicant at anytime during the period November 2011 to February 2012.
67Given my finding that the respondent did not sexually solicit the applicant pursuant to section 7(3)(a) there is no basis or need for me to consider the evidence I heard in relation to the applicant’s allegations that the respondent also reprised against her for refusing his sexual solicitations pursuant to section 7(3)(b).
68For all of these reasons the Application is dismissed.
Dated at Toronto, this 31st day of October, 2014.
“Signed by”
Eric Whist
Member