C.K. v. H.S., 2014 HRTO 1652

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.K.

Applicant

-and-

H.S.

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 13, 2014

Citation: 2014 HRTO 1652

Indexed as: C.K. v. H.S.

APPEARANCES

C.K., Applicant

Self-represented

H.S., Respondent

Self-represented

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, including sexual harassment, and sexual solicitation or advances.

2In Interim Decision 2014 HRTO 572, the Tribunal set out the procedural history of this Application as follows:

This Application concerns an incident in which the individual respondent sexually assaulted the applicant shortly after the applicant began working for the organization respondent as a receptionist on or about September 7, 2010. The applicant reported the incident to the police who arrested and charged the individual respondent. The Tribunal deferred the Application pending the completion of the criminal proceedings. See C.K. v. C[…] Inc., 2011 HRTO 785. On or about February 13, 2012, the individual respondent was convicted of sexual assault and the Tribunal granted the applicant's request to reactivate the Application. See C.K. v. C[…] Inc., 2012 HRTO 1403 and C.K. v. C[…] Inc., 2012 HRTO 2061.

The Tribunal scheduled the hearing of this matter for July 15 and 16, 2013. In light of the individual respondent's criminal conviction, the Tribunal directed the applicant, by Case Assessment Directions dated June 20, 2013 and July 17, 2013, to produce a copy of the Court’s judgment setting out the Court’s findings of fact to avoid re-litigation of the facts related to the assault, which would amount to an abuse of process. It is sufficient for this Interim Decision to note that the applicant alleges that she was alone with the respondent who was instructing her about medications, when he exposed himself to her, began masturbating, forced the applicant to touch his penis and ejaculated.

The applicant did not (and still has not - see below) produced a copy of the judgment prior to or at the hearing, but produced a probation order made against the individual respondent, which was not adequate. In the circumstances, I directed that the hearing would proceed regarding the allegations against the organizational respondent and that the hearing regarding the allegations against the individual respondent would occur after the applicant produced a transcript of the court's judgment against him.

3In Interim Decision 2014 HRTO 572, dated April 23, 2014, the Tribunal dismissed the Application as against the organizational respondent, the applicant’s former employer. The Tribunal again directed the applicant to file with the Tribunal the Court judgement against H.S. (henceforth “the respondent’), i.e., the transcript of the trial setting out the Court’s findings of fact and reasons for convicting the individual respondent. On May 13, 2014, the applicant filed a transcript of the sentencing hearing that followed the conviction of the respondent for sexual assault. The Court provided a detailed summary of its findings of fact on which the conviction was based during the sentencing hearing. In my view, this summary was sufficient, as it was clear that the Court found that the individual respondent committed the acts attributed to him in the Application. As noted in earlier Case Assessment Directions in this matter, dated June 20, 2013 and June 3, 2014, re-litigation of the Court’s findings of fact would amount to an abuse of process. See Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, Hughes v. 1308581 Ontario, 2009 HRTO 341 and C.U. v. Blencowe, 2013 HRTO 1667. Consequently, the applicant was not required to give further evidence regarding the incidents alleged in the Application, as they have already been proven in Court. Accordingly, the only issues remaining are whether the individual respondent’s actions amount to a violation of the Code, and, if so, the appropriate remedy. The Tribunal held a hearing on August 22, 2014 to address these issues.

4The transcript of the sentencing hearing indicated that the criminal proceeding was subject to a publication ban pursuant to section 486(4) of the Criminal Code. Consequently, the Tribunal has anonymized this Decision by using only the parties’ initials in the style of cause and has retroactively anonymized all of the previous Interim Decisions in this matter.

5The Court found as follows:

• The assault occurred on September 15, 2010 when the individual respondent was working as a doctor’s assistant at a naturopathic clinic in Toronto;

• The applicant worked at the naturopathic clinic as a medical secretary and had been employed there for six or seven days;

• The applicant stayed after work on September 15, 2010 at the individual respondent’s request to train her regarding the re-ordering of medications in the medication room;

• The individual respondent stated that the applicant looked stressed and he wanted to take her blood pressure, which she allowed;

• The applicant stated that she had a sore rib and the individual respondent wanted to check it and moved his hand towards it, but she said no;

• During the blood pressure check, the respondent put his hand on the applicant’s thigh and she said no and left the room;

• After this, the parties were in the medication room where the applicant read out medication labels to the respondent with the view to him being certain she could pronounce them correctly and know how to re-order them. The respondent was slightly behind the applicant at this point;

• The applicant read out one of the labels and when she did not get a response, she turned to look at the respondent and saw his penis was out;

• The respondent grabbed the applicant’s left hand and pulled it to touch his penis. At about the same time, he reached his right hand around her back and touched her right breast and then placed his hand at the back of her pants, which she felt was an attempt to pull them down;

• The respondent ejaculated on the floor and some of the ejaculate got on the applicant’s pants. The police analysed the applicant’s pants and found some of the respondent’s DNA on them;

• The respondent’s actions were persistent, as he continued to pursue sexual contact with the applicant, despite the fact that she twice told him “no” when he touched her;

• The respondent used strong force to compel the applicant to touch his penis; and,

• The evidence did not support the applicant’s contention that the respondent was in a position of authority over her.

I am bound by these findings of fact and I adopt them for the purposes of this Decision.

Evidence

6I received testimony from the applicant; the applicant’s husband, Mr. K.; and the respondent. The applicant and the respondent both testified at some length regarding their work relationship, in particular, whether the respondent was the applicant’s supervisor and exercised control over her day-to-day activities. I am bound, however, by the Court’s finding that the respondent did not have any authority over the applicant and, as a result, I find it unnecessary to record this evidence.

7On several occasions during his cross-examination of the applicant and in his own evidence, the respondent attempted to adduce evidence with a view to undermining his conviction for sexual assault, including suggestions that, his actions had been consensual, the applicant “set him up”, and that the Court process was unfair. The respondent was clearly trying to re-litigate the issue of whether he sexually assaulted the applicant, despite several clear directions in the Tribunal’s Interim Decisions and Case Assessment Directions in this matter that this would not be permitted. Consequently, I did not allow the respondent to ask such questions of the applicant and did not allow the respondent to give any evidence suggesting that he did not sexually assault the applicant.

The Applicant’s Evidence

8The applicant testified that she had trusted the respondent who told her that he is a doctor (the Court transcript indicates that he is qualified to practice medicine in the Dominican Republic) and allowed him to take her blood pressure. She did not expect to be sexually assaulted. The applicant stated that in the immediate aftermath of the assault she felt shaken, that she was frozen in shock, and that she was afraid the respondent may become violent.

9The applicant stated that the assault was humiliating and caused her to be hurt and embarrassed. The applicant’s evidence was that she no longer feels comfortable working in a confined environment, e.g., an office where she may have to work alone or with a man. The applicant stated that she began looking for new employment after the assault. The applicant stated that shortly after the assault she had a job interview at a salon to which her husband drove her. The applicant testified that she began to feel anxious when they arrived at the location as she was afraid that she might be alone with a man in the interview. As a result, she could not go through with the interview and her husband took her home.

10The applicant stated that she restricted her job search to jobs where she would work in the open and not alone. After about three months, the applicant secured a part time job as a cosmetician at a Rexall Pharma Plus location, which is an open environment.

11The applicant’s evidence was that the assault had and continues to have serious negative effects on her and that she feels very angry about what happened to her. The applicant stated that she continues to feel a sense of disbelief regarding the assault and still has nightmares about it. The applicant stated that she can’t seem to get the incident out of her mind. The applicant became socially withdrawn and avoided contact for about a year after the incident. She stated that she would sometimes attend occasions or parties with friends, but would feel anxious and leave early. She found that she could not be around people and would stay at home, although her husband tried to convince her to go out. The applicant described a circumstance three or four months after the incident when she saw a man at a mall that looked like the respondent. The applicant stated that she became frightened, began shaking and crying and had to leave the mall. The applicant stated that she has made slight improvement, but will not go anywhere without her husband, e.g. shopping. The applicant testified that she could not be intimate with her husband for several months after the applicant sexually assaulted her.

12The applicant stated that she was prescribed both anti-depressant and anti-anxiety medication following the assault. The applicant’s evidence was that she continues to take anti-anxiety medication, but did not take anti-depressants because of the potential side effects.

13The applicant stated that her shoulder was injured when the respondent grabbed her and physiotherapy was prescribed to treat it. The applicant, however, did not want anyone to touch her after the assault and went without physiotherapy. As a result, the only treatment she took for this injury was anti-inflammatory medicine, which delayed her recovery.

14In cross-examination, the applicant acknowledged that her job at the clinic was her first employment for several years, as she had taken time to recover from surgery in 2007. She agreed that she and her husband had been able to manage financially in this period, although she was not working. During her time away from work, the applicant completed a medical assistant’s course. The applicant’s evidence was that shortly before she began working at the clinic the truck she and her husband owned broke down and they decided to buy a new vehicle, a Toyota Corolla, in order to have a reliable vehicle they could use to commute to work rather than fix the truck. Whereas the truck had been completely paid for, purchase of the new car resulted in a monthly payment of approximately $300.00. The applicant stated that they were able to “scrounge” to meet their obligations.

15The applicant confirmed that she found a new job about three months after leaving the clinic, but noted that she earned $13 per hour at the clinic and only $11 per hour at Rexall. She stated that her current hourly rate is $14 per hour, but has been on a medical leave of absence since September 30, 2013. When asked about the financial impact of the respondent’s actions, the applicant stated that she had been unemployed for three months and that she would still be working at the clinic if not for the incident in September 2010.

16The respondent asked the applicant about the medications she took as a result of the sexual assault. The applicant stated that she took anti-anxiety medication for about six months and that this prescription was refilled once. The applicant stated that she took anti-inflammatory medication for her shoulder for about two months, but declined to take anti-depressant medication because of the potential side effects. The applicant also stated that she did not like to take pain medication. The applicant pointed to prescriptions she received from her doctor for Clonazepam for anxiety and Naproxen for muscle inflammation. She did not know if she had any documents confirming that the prescription for anti-anxiety medication had been renewed. She reiterated, however, that she continues to take anti-anxiety medication.

17When asked about the impact on her, the applicant indicated that she is not the same person she was before the assault. She stated that she is afraid to be around people – especially without her husband.

18Mr. K’s evidence was that he took the applicant to a job interview in the Highway 7 and Steeles Avenue area in or about September or October 2010. Mr. K stated that the applicant began panicking on the way to the interview because she was concerned about being interviewed by a man or being alone with a man. The applicant burst out in tears when they arrived at the interview location and she could not attend the interview. According to Mr. K the applicant has been uncomfortable around others since the assault and will not go out, e.g., shopping, without him.

The Respondent’s Evidence

19The respondent’s evidence was that he was a technician at the clinic and that it was his job to administer intravenous medication and give other clinical assistance as needed. The respondent’s admissible evidence and the applicant’s cross-examination of him focussed entirely on the issue of whether he had supervisory authority over the applicant. His evidence was that he had no such authority and that there were no supervisors other than Dr. H, the owner/clinician, at the location at which he and the applicant worked. As noted above, I am bound by the Court’s finding that the respondent did not have supervisory authority over the applicant and it is unnecessary to record this evidence.

20The respondent apologized for his actions and asked the applicant to forgive him.

Submissions

21The applicant made brief submissions regarding why she believed the respondent was her supervisor. She also submitted that the respondent appears to show no remorse for his actions, since he continued to state that the interaction between them on September 15, 2010 had been consensual, although he also said he was sorry. The applicant submitted that she felt re-victimized by the respondent’s lies. The applicant submitted that she would accept the remedy the Tribunal sees fit to award.

22At the outset of his submissions, the respondent stated that he takes full responsibility for his actions and that he admitted what he had done to his wife. Immediately after this submission, however, the respondent submitted that the judge in the criminal matter was racially biased against him and repeated that he had been “set up”. I warned the respondent that I would not hear any submissions regarding the criminal proceedings. Despite this warning, the respondent persisted in making submissions to the effect that the Court’s decision did not reflect what really happened on September 15, 2010. Eventually, I directed the respondent to make no further submissions to the effect that the sexual assault did not occur as found by the Court or make any other reference to the Court proceeding. I warned the respondent that his submissions were an abuse of process and that I would end his submissions if he made any further submissions to the effect that the Court’s decision was invalid. The respondent complied with this direction with one exception that was dealt with directly.

23The respondent submitted that the applicant did not produce sufficient medical documentation to support her allegations that her medical conditions were caused by the respondent. The respondent noted that the prescriptions tendered by the applicant did not indicate any refills and submitted that the applicant provided no records that she purchased the medications or took them. The respondent submitted that the applicant did not establish that she had debilitating pain, as she would have had to renew the prescriptions in that case.

24The respondent also referred to credibility findings I made in Interim Decision 2014 HRTO 572 regarding both the applicant and Mr. K in respect of the events of September 15, 2014 and the applicant’s interactions with Dr. H. The respondent submitted that I found Mr. K to be not credible and that I found that the applicant made a false statement regarding the resignation of her employment. The respondent submitted that, accordingly, I should not accept the evidence of either Mr. K or the applicant given on August 22, 2014.

25The respondent submitted that he is unemployed and receiving Employment Insurance. The respondent stated that he is experiencing a financial crisis and has applied for bankruptcy. Consequently, he has no money to pay an award of damages. The respondent noted that he had already been punished once for his actions and had gone to jail. He submitted that he should not be punished twice.

Analysis and Decision

26The Application relates to sections. 7, 9, and 10 of the Code, which state:

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

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

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

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

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

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

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

27The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against her and/or harassed her, on the basis of sex, contrary to the Code. 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.

28In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at paragraph 56, the Supreme Court of Canada broadly defined sexual harassment in the workplace as:

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

29In order to establish a case of sexual harassment, the applicant must 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. The Tribunal has recognized that, in appropriate circumstances, a single incident, can meet the definition of harassment. See, for example, Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 and Romano v. 1577118 Ontario Inc., 2008 HRTO 9.

30The standard regarding the second part of the test is objective, i.e., whether the individual respondent 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.

31The very nature of the sexual harassment can be sufficient to establish that the sex of the applicant was a factor in the adverse treatment. See Friedmann v. MacGarvie, 2012 BCCA 445 at paragraphs 31-32. In Friedmann, the British Columbia Court of Appeal cited the Supreme Court of the United States of America in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), where the Court stated as follows at paragraph 80:

Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. ... A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

32There is no question that the respondent’s sexual assault of the applicant on September 15, 2010 amounts to sexual harassment under section 7(2) of the Code. The respondent was the applicant’s co-worker and the incident occurred in their workplace. The applicant twice told the respondent not to touch her, on her rib and thigh respectively, and I find that the respondent knew or ought to have known that the applicant found physical contact with him to be unwelcome. Nonetheless, the respondent proceeded to expose his penis to the applicant and used force to make her touch his penis, while touching the applicant’s breast and trying to pull her pants down. The respondent then ejaculated onto the applicant’s pants. These actions are obviously highly offensive and I find that the respondent knew or ought to have known that his conduct toward the applicant was unwelcome. In my view, the incident of September 15, 2010 can be seen as a course of vexatious conduct as the respondent committed a series of escalating acts of touching the applicant in a sexual manner, albeit in a short period of time, which the applicant rejected. Alternatively, if the assault is seen as a single incident, I have no difficulty finding that the respondent’s actions, a sexual assault, were sufficiently egregious to amount to sexual harassment under the Code. I find that the respondent’s harassment arose because he wanted to have sex with the applicant, which is directly related to the fact that she is a woman.

33The respondent’s sexual assault of the applicant was a blatant and egregious sexual advance. However, in light of the finding of fact that the respondent exercised no authority over the applicant, I cannot find that that the respondent was a person in a position to confer, grant or deny a benefit or advancement of the applicant. Consequently, the applicant has not established the required elements of section 7(3) of the Code.

Remedy

34It follows from these findings that the applicant is entitled to a remedy for breach of her Code rights. The respondent submitted that he had already been punished for his actions and should not be punished twice. The Tribunal’s remedial authority, however, is to compensate an applicant for the violations of his or her rights, i.e., to place the applicant, to the extent possible, in the place he or she would have been in had the breach of his or her Code right not occurred. The Tribunal has no power to order punitive remedies against a respondent. The respondent also stated that he applied for bankruptcy. The respondent did not, however, provide any documents indicating that he has commenced bankruptcy proceedings or that this matter is stayed pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.The Tribunal’s remedial authority is set out in section 45.2 of the Code 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:

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

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

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

35An award of compensation for injury to dignity, feelings and self-respect recognizes 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.

36In 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.

37In Smith v. The Rover’s Rest, 2013 HRTO 700, the Tribunal noted that recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment have resulted in a range of awards, ranging roughly between $12,000 and $50,000 depending on the severity of the harassment and the effect on the applicant (at paragraph 124). This does not mean that $50,000 is the upper limit for damages for sexual harassment.

38The respondent’s sexual harassment of the applicant occurred on only one occasion, September 15, 2010, but it was extremely serious. The respondent forced the applicant to touch his genitalia and he ejaculated on her. He also touched her breast, a sexualized part of the female anatomy, and tried to pull her pants down. From an objective perspective, this was highly inappropriate misconduct and I have no doubt that this experience was gravely humiliating and frightening for the applicant.

39I also accept that the respondent’s sexual harassment had significant negative effects on the applicant. The applicant’s evidence regarding her use of anti-anxiety medication was contradictory in that she stated at some points in her testimony that she continues to take this medication and at other points stated that she took it for up to six months. The applicant tendered only one prescription for anxiety medication, dated September 21, 2010. In these circumstances, I am not prepared to find that she continues to take anti-anxiety medication. I am satisfied, however, that she sought medical treatment shortly after the respondent assaulted her and that her doctor prescribed anti-anxiety medication to assist the applicant with the psychological consequences of the respondent’s misconduct.

40The respondent submitted that I should reject the testimony of the applicant and Mr. K. based on credibility findings I made in Interim Decision 2014 HRTO 572. In summary, I found that Mr. K. was not a credible witness regarding his account of the applicant’s telephone conversations with Dr. H. after the assault and found that the applicant’s evidence was less reliable than Dr. H’s regarding what was said when she resigned her employment. I did not find that the applicant made a false statement. The fact that a witness’ evidence is not reliable on one issue does not preclude him or her from giving credible evidence on another. Other than her confusing evidence about her anti-anxiety medication, I found that the applicant testified in a straightforward manner regarding the effect the violation of her Code rights had on her. In particular, the applicant did not engage in embellishment, e.g., she was forthright in acknowledging that leaving her position at the clinic was a financial burden, but a manageable one. The applicant’s reactions also seem reasonable in light of the fact that she was the victim of a sexual assault. Mr. K’s evidence related mostly to one incident when the applicant found she could not go through with a job interview. His evidence was consistent with the applicant’s and I find there is no reason not to accept it.

41Accordingly, I accept that the applicant was unwilling to have anyone touch her for a period of time after she was assaulted, which limited the treatment she was able to receive for the injury to her shoulder. The applicant was also unable to be intimate with her husband for several months. I accept that the applicant’s anxiety delayed her ability to look for new work, and that when she did look for work she required a position in an open environment where she would not be alone, especially with men. As a result, the applicant is unable to make use of her training as a medical assistant. The applicant’s continued anxiety prevents her from going out in public without her husband and she remains reticent to socialize, although she has seen some improvement in this area. In my view, the evidence establishes that the sexual harassment experienced by the applicant has had a profound effect on her.

42In my view, the facts of this case support an award of damages for injury to dignity, feelings and self-respect at the upper end of the range identified in Smith, above. In my view, an award of $45,000.00 for injury to dignity, feelings and self-respect is appropriate.

43I am also satisfied that the applicant is entitled to the wages she would have earned in the three month period between leaving the clinic and securing a position with Rexall Pharma Plus. As noted in Interim Decision 2014 HRTO 572, the applicant resigned her employment at the clinic shortly after she was sexually assaulted in her workplace. The applicant’s evidence was that she cannot work in an office environment because of the anxiety caused by the assault. I accept this evidence. I also accept the applicant’s submission that she would have continued to work at the clinic if not for the respondent’s misconduct, as there was no evidence that there were any issues with her work or of any other reason that may have led to the termination of her employment in the ordinary course. The evidence was that the applicant earned $13 per hour and worked full time. The applicant did not state her hours of work, but a typical work week is approximately 40 hours (9 a.m. – 5 p.m., Monday through Friday) and I find it reasonable to use that number to calculate the applicant’s wage loss. Three months is roughly equivalent to 13 weeks; therefore, I find that the applicant is entitled to $6,760.00 (40x13x13=6,760.00), less deduction required by law in respect of wage loss.

Order

44The Tribunal orders as follows:

1. Within 60 days of the date of this Decision, the respondent shall pay the applicant $45,000 as monetary compensation for injury to dignity, feelings and self-respect, along with pre-judgment interest, in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

2. Within 60 days of the date of this Decision, the respondent shall pay the applicant $6,760, less deductions required by law, as compensation for lost wages along with pre-judgment interest, in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

3. In the event that the respondent fails to make the payments described above within 60 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, as amended.