Prado Pereda v. Trustworthy Services Inc., 2014 HRTO 383

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tania Prado Pereda

Applicant

-and-

Trustworthy Services Inc. and Wincenty (a.k.a. Vincent) Szymanski

Respondents

DECISION

Adjudicator: Ruth Carey Date: March 18, 2014 Citation: 2014 HRTO 383 Indexed as: Prado Pereda v. Trustworthy Services Inc.

APPEARANCES

Tania Prado Pereda, Applicant

Self-represented

Trustworthy Services Inc. and Wincenty (a.k.a. Vincent) Szymanski, Respondents

Self-represented

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging sexual harassment in employment, sexual solicitation, and reprisal for rejecting a sexual solicitation or advance.

2The applicant and the personal respondent met in February of 2012 at the Scarborough Town Centre when they both sat down for lunch and struck up a friendly conversation. The applicant told the personal respondent she was in need of employment. He told her he operates the corporate respondent, which is a cleaning company that subcontracts with independent cleaners, and is always looking for good people. So he gave her his card.

3Soon after they met, the applicant and the personal respondent started a consensual sexual relationship and the applicant began doing cleaning work for the respondent. Everything went well between them until the personal respondent became suspicious that the applicant was trying to take over the cleaning contract for the building where she was working.

4The Application alleges that:

On February 2012 I started working for [the personal respondent]’s company… as a cleaner… Since then I was a victim of [the personal respondent]’s sexual harassment… He would ask me to go out for dinners, and brought me presents if I wanted to keep my job. On April 30, 2012, he took me to open my own company through which he would pay me because he claimed that he couldn’t pay me in cash no longer, since I asked him to stop his advances. Since then, he’d go to my workplace 3 or 4 times a day every working day and also called me, texted me and even went to my apartment outside of my working hours to harass me verbally and physically. I asked him by phone and in person to stop harassing me numerous times, but he never did. He would call me names in texts like “sugar”, “baby”, “sexy” and so forth. Again, I asked him to stop harassing me. Instead, he started threatening to fire me because he claimed that there were numerous complains (sic) by [the Mission]. In mid June I spoke with their manager and they denied those claims. [The personal respondent] got extremely angry at me and told me that he was my sole boss, and I was forbidden to speak to anyone at [the Mission], and that I must obey him only…

5I would summarise the Code related allegations in the Application as follows:

• The personal respondent threatened the applicant’s job if she did not go out with him or accept his gifts;

• The personal respondent used inappropriate sexual endearments when addressing her and when she asked him to stop he threatened to fire her;

• When the applicant refused the personal respondent’s advances, he responded by:

o Refusing to pay her in cash any longer;

o Visiting her excessively at the work location;

o Excessively calling her and texting her;

o Attending at her home to harass her there; and

o Eventually terminating the business relationship between them.

6At the hearing before me the applicant made one additional allegation; namely, that the personal respondent physically assaulted her in the workplace by grabbing her about the arms and shoulders and did not immediately stop the behaviour after she complained about it. The respondents did not object to the applicant adding this allegation. As a result, I have considered the additional allegation in this Decision.

7The respondents take the position that the personal relationship was separate from the business one and continued until about two weeks prior to the business relationship ending. They state the personal respondent started monitoring the applicant closely in the workplace because they believed the applicant was trying to steal the cleaning contract for the building away from the corporate respondent. The respondents also deny reprising against the applicant in any way after the personal relationship ended. They state the applicant’s employment was not terminated; rather, when the respondents insisted the applicant sign a subcontracting agreement, she quit.

8Both parties testified at the hearing and represented themselves. The applicant spoke through an interpreter. The applicant also called her daughter, Ainat Carranza, as a witness. With the parties’ consent, the hearing proceeded by way of the Tribunal asking questions; both parties were given an opportunity to say anything they wanted to in evidence and by way of submissions, and to ask questions of each other and the applicant’s witness.

9Having considered all of the evidence before the Tribunal I am not satisfied that the respondents breached the Code. The Application is dismissed. My reasons for this Decision are set out below.

FINDINGS OF FACT

10What follows are my findings of fact based on the oral testimony of both parties and the applicant’s daughter, and the documents before me. Where conflicts in the evidence arise, those are noted and resolved where necessary.

The Beginning

11The personal respondent says he met the applicant sometime in February, 2012, in the Scarborough Town Centre when he sat down for lunch with a Big Mac. She was sitting near him and there was some comment made about his burger being bigger than hers. They started to chat.

12The applicant also says she and the personal respondent met when they sat near each other having lunch, but she says this occurred at the Scarboro Foreign Mission Society (the “Mission”). I believe this is a slip of the tongue on the part of the applicant as the Mission is where she went to work for the corporate respondent as a cleaner sometime after the parties met. Nothing rests on this discrepancy in the evidence of the parties.

13Over lunch the personal respondent told the applicant he owned a cleaning company, the corporate respondent. He is the sole director of the corporation. It enters into contracts for cleaning services. The corporate respondent then subcontracts with others to do the actual cleaning. The applicant told him she was having difficulty with money and needed work and he gave her his card. She subsequently called him and asked him for work.

14The applicant and the personal respondent began a consensual sexual relationship. The respondents entered into evidence Facebook chats that are dated February 20, 21, 28 and 29, 2012. The Facebook messages confirm the relationship was a sexual one and consensual.

15I questioned the applicant about the Facebook messages because neither the Application nor the Response say anything about the fact that the applicant had a sexual relationship with the personal respondent, consensual or otherwise; and because the applicant volunteered no evidence about it until pressed to do so.

16The applicant acknowledges writing Facebook messages to the personal respondent, although she says she does not use Facebook a lot; but when asked about individual messages, she repeatedly claims she does not recall writing them. She does not deny writing the messages; rather she simply claims not to remember them. She reluctantly concedes it is possible she wrote them but states she cannot confirm that. With respect to the omission in the Application she says that a friend wrote out the Application for her but she understood it and signed it.

17The applicant’s responses to the Tribunal’s questions about the Facebook messages can only be described as evasive and as a result raise issues about her credibility. It may be that her reluctance to admit writing the messages is simply embarrassment but that is not consistent with the messages themselves as they are sexually explicit. Given her evasive answers, I accept the respondents’ evidence that the Facebook messages are genuine and the applicant did indeed write the ones that are from her.

The Employment/Business Relationship

18At the same time as the sexual relationship began the personal respondent started giving the applicant cash and the applicant started working as a cleaner at the Mission.

19The applicant states that she started working at the Mission in February, 2012, and initially her hours were every day Monday to Friday from 7 a.m. to 2 p.m.; at some point in time after February, that changed to four days a week.

20The respondents say that from February to sometime in March or April, 2012, the applicant worked casually and at most, a few days a week. The personal respondent also says that in the beginning he had another subcontractor working at the Mission. His intention was to introduce her slowly to the business of subcontracting; at the same time, he would assess her trustworthiness as a potential subcontractor for his business. He also says the applicant was not available for full time work anyway. She was a subject in a medical trial and had to report for blood work regularly and she went one day a week to a community centre. The applicant does not dispute the respondents’ evidence with respect to the community centre but says the medical trial was not a job; she was just a research subject.

21The Facebook messages between the parties support the respondents’ assertion that in February of 2012, the applicant did not work 7 a.m. to 2 p.m. Monday to Friday as she claims. I say this for the following reasons.

22Some of the Facebook messages dated February 20, 2012, refer to the applicant going to work next on Wednesday, which I take to mean February 22, 2012. In other words, she was not planning to work on the Tuesday of that week. The messages dated February 20, 2012, start at 8:03 a.m. and end at 10:34 a.m. and appear to indicate the applicant was not at work that day, which was a Monday. The messages dated February 28, 2012, refer to her going to work the next date, also a Wednesday, but she was to start work at 10 a.m. In other words, the Facebook messages from February, 2012, indicate the applicant did not work Monday to Friday and when she did work, her start time was not 7 a.m.

23As a result, I accept the evidence of the respondents over that of the applicant with respect to her hours of work. I am satisfied that starting sometime in February, 2012, the applicant started working as a cleaner at the Mission on a casual but not full-time basis.

24The parties also dispute the amount the applicant was paid. The applicant says she was initially paid $12 an hour and then in June the hourly rate was raised to $13. The personal respondent says he did not pay her at a set hourly rate; rather, she was paid a flat rate for completing tasks. He also states the applicant constantly talked about being short of money so he would sporadically give her cash to help her out; when she did cleaning he would pay her something like $300 to $500 a week. For the reasons stated below, I accept the applicant’s evidence with respect to how much she was paid over that of the respondents.

25As stated above with respect to the amount paid to the applicant for her work as a cleaner the respondents claim the applicant was paid somewhere between $300 and $500 a week. That amount actually corresponds to what the applicant would earn if she was paid $12 or $13 an hour and worked seven hours a day for four or five days a week. Although the respondents dispute that in February the applicant worked that many hours, they do not dispute that she did so sometime in or after March, 2012.

26Both the applicant and the respondents were in a position to obtain and produce documentary evidence of payments from the corporate respondent to the applicant. I say this because both agree that on April 30, 2012, the personal respondent helped the applicant register a business name, Prado Services, and open a bank account for the business; after that the corporate respondent paid the applicant by way of direct deposit to Prado Services’ bank account. The respondents filed into evidence a copy of a bank transfer record showing such a payment, but it contains no information as to the dollar amount transferred. As both parties were in a position to produce records of payment and neither did, I place no weight on this omission.

27However, the vagueness of the respondents’ evidence with respect to the amount paid the applicant does give rise to some concerns about the personal respondent’s credibility. In this regard, I would observe that the respondents’ behaviour during the course of this Application demonstrates the corporate respondent has a substantial interest in ensuring it is not found to be in an employment relationship with the applicant. For example, the respondents’ Response denies any employment relationship existed at any time between the respondents and the applicant. The Response says in part:

There was never any relation with this person, in understanding, employer to employee relationship. However, wy (sic) had business to business partnership with cleaning company, name: PRADO SERVICES…

Because the partnership was strictly business, therefore (by law), NO SIN was needed, NO Employment Insurance (EI) was deducted, NO Canada Pension Plan (CPP), NO Income Tax deduction or any other deduction was applied to payments for performed services… [Emphasis in original]

28The narrative responding to the applicant’s allegations within the Response consists of five numbered paragraphs, a concluding paragraph, and a note about personal liability versus corporate liability. Only one of the paragraphs addresses the substance of the Application. The personal respondent’s witness statement is similarly dominated by concerns about establishing “the business-to-business relationship” between the parties. It was also the subject of his opening statement when giving evidence before me and his submissions.

29The reason this is relevant here is that payment of an hourly wage is something that is often associated with regular employment relationships and the respondents clearly wish to ensure that the relationship between them and the applicant is not found to be a regular employment relationship.

30Given my observations about the respondents’ concerns about any finding of an employment relationship with the applicant, the specificity of her evidence with respect to how much she was paid, and the vagueness of the respondents’ evidence in this regard, I accept the applicant’s evidence over that of the respondents and find that she was paid initially $12 an hour and that was increased to $13 an hour sometime in June, 2012.

The Gift Giving

31There is no dispute between the parties that the personal respondent often gave the applicant gifts. The respondent characterises his gift giving as simply helping her out. For example, when he was at her home he noticed she did not have a lot of furniture so he gave her a couch on her birthday. The respondent also states he gave the applicant cash. He bought her exercise equipment, chocolate and a teddy bear; on numerous occasions he brought her coffee at work. A copy of a birthday card he gave her in March, 2012, was entered into evidence by the applicant. The applicant’s birthday is March 22. No evidence was led by the applicant that the personal respondent’s gift giving made her uncomfortable or that she ever objected to it or asked him to stop.

The Use of Endearments

32There is no dispute that the personal respondent frequently used endearments like “sugar” and “baby” when referring to the applicant. These appear in his Facebook messages in February, 2012. In the applicant’s Facebook messages to him in February, 2012, she routinely refers to the personal respondent as “sweetie”.

33During the course of the hearing the applicant showed me text messages from the personal respondent stored in her phone. Prior to the hearing she produced for the Tribunal and the respondents handwritten transcriptions of these texts. I compared the transcriptions with the texts in the applicant’s phone and they seemed to me to match. I asked the personal respondent if he wanted to examine her phone as well but he declined. The respondents did not object to the Tribunal accepting the transcriptions into evidence as an accurate record of some of the texts he sent the applicant. As a result, I accepted the transcriptions as an exhibit.

34The text messages show that the personal respondent’s use of “sugar” and “baby” continued up until June 26, 2012. There is no evidence he continued to use those kinds of words after that date.

35Because of the allegation in the Application about the personal respondent’s use of endearments, I asked the applicant a series of questions about them at the hearing as follows:

Q. The messages that referred to you as baby or sugar – how did that make you feel?

A. Baby, sugar, cookie – from the first day he used these words with me.

Q. Did you ever complain about it?

A. No, because in the beginning it was very amicable.

Q. So no?

A. No.

Q. Did it make you uncomfortable?

A. No.

36This was the totality of the applicant’s testimony about the personal respondent’s use of endearments.

Invitations to Go Out

37The applicant states that at the beginning of her acquaintance with the personal respondent things went well. He was very polite. He invited her out to dinner and she went willingly. She says that happened maybe three times. They also regularly had coffee together.

38Although the applicant makes vague assertions about the personal respondent asking her out at a period in time when she did not want to agree, she describes only one specific event. The applicant states that on one occasion the personal respondent told her to meet him for lunch on a work day at the Mission. She told him she did not want to. She says that her refusal made him angry and he threatened her job. However, she did not have lunch with him that day. It is wholly unclear from her evidence when this incident occurred. This question is discussed further below.

The End of the Personal Relationship

39There is no dispute between the parties that at some point in time the applicant started saying no in response to the personal respondent’s requests that she go out with him, and the romantic relationship between them ended. Based on the totality of the evidence before me I find that occurred sometime in late June, 2012.

40The applicant states that sometime around June, 2012, when the summer holidays were about to begin, the manager of the Mission told her she was not needed one day a week because the number of spiritual retreats was being reduced for the summer. She also says he told her she needed to do a different kind of cleaning and gave her written instructions. According to the applicant, when the personal respondent learned of this conversation he became angry and started to shout at her that she had no right to speak to anyone at the Mission. He said she was not to do what the Mission’s manager told her, only what he himself told her. He told the applicant she needed her job and not to get involved.

41It may be that the applicant’s testimony with respect to this conversation is a reference to what happened on the evening of June 27, 2012, as the evidence as to what was said that night is strikingly similar to the applicant’s evidence as to the conversation described above. However, it is also possible there were multiple similar conversations and the evidence before me is simply insufficient to resolve this question.

42That being said there is no dispute between the parties that on one occasion the personal respondent insisted on meeting with the applicant to discuss her job outside the workplace. The text messages indicate that on June 27, 2012, the personal respondent texted the applicant at least seven times between 1:30 p.m. and 7 p.m. to convince her to meet with him. She eventually agreed and they met in his vehicle in a parking lot near her home.

43The applicant says that during her conversation with the personal respondent in his vehicle that evening he yelled at her about speaking to the manager and trying to take over the corporate respondent’s contract. He accused her of not understanding his business; he was the boss and she had to take instructions from him. He also said that if he told her she had to meet with him at lunch at the Mission then she had to. The applicant says she told him not to come to her house and scream at her and he should talk to the Manager at the Mission and tell him not to talk to her if he has a problem with it. She then got out of his car crying. The personal respondent does not really dispute the applicant’s evidence in this regard, although he says they also discussed the issue of signing a subcontracting agreement.

44The applicant’s daughter says she was at home on the evening that her mother met the personal respondent in his vehicle outside their home. She says she saw her mother go out to meet the personal respondent in his van. She also says when her mother returned she was stressed out and she thinks her mother was crying. After this incident the applicant’s daughter says she spoke to the personal respondent at the workplace and told him not to speak to the applicant like that again and if he needed to speak to her about work he should do it in the workplace. The personal respondent says the applicant’s daughter never said this to him. Nothing turns on this discrepancy in the evidence of the parties.

45The applicant states that at this point in time the personal respondent’s manner completely changed. He started showing up at the Mission three or four times a day, monitored her work closely, and criticised the way she was cleaning. The applicant’s daughter started working at the Mission cleaning a few hours a week starting sometime after her return from Mexico on May 23, 2012. She says she saw the personal respondent hanging about all the time and observed him excessively criticizing her mother’s work. He also criticized the applicant’s daughter’s work. She says the personal respondent would often bring her mother coffee and offered some to her as well. The applicant also says he repeatedly threatened to fire her unless she did what the personal respondent told her to do. The applicant says that on one occasion the personal respondent yelled at her to pick up a spatula.

46The respondents do not dispute most of the applicant’s evidence as to how the personal respondent’s behaviour changed after the applicant spoke with the Mission’s manager. However, they do dispute the assertion that the personal respondent threatened the applicant’s job if she did not continue to date him. They also dispute some of the applicant’s other testimony with respect to this period. For example, the applicant claims that the personal respondent would physically grab her about the upper body to show her how he wanted her to do the cleaning work. She states that she asked him to stop, but he continued to do this a couple of more times before he finally stopped. The personal respondent denies ever grabbing her or being told to stop touching her.

47The personal respondent also does not truly believe that the only topics of conversation between the applicant and the Mission’s manager were about reducing the days she cleaned or the tasks she was supposed to do. He states that his concern at the time was that the applicant was attempting to take over his contract with the Mission. This was a concern for him in general because in his business subcontractors trying to contract directly with clients is a known risk. Also, sometime in June he received a call from the Mission warning him his contract would not be renewed past September, 2012. As a result of that phone call he suspected the applicant of trying to take away his contract so he tried to find out what was going on by being at the Mission more often to watch the applicant’s activities. He also says at one point the applicant told him he was going to lose the contract in September, which immediately reinforced his suspicion as this was information he believed she would not know unless she was dealing behind his back with the office.

48The question as to when the personal relationship between the applicant and personal respondent broke down is relevant to the issue of whether or not or when the personal respondent knew or ought to have known his advances were unwelcome. However, the applicant gave conflicting testimony about it. At the beginning of her testimony the applicant stated it was in June, 2012, when the personal respondent became angry about her speaking with the Mission’s manager and it was after that everything changed between them and she no longer wanted to go out with him anymore. However, later in her testimony she stated it was in April, 2012, that she started declining his invitations to go on dates. She then stated it was after she registered her business name, which happened on April 30, 2012.

49Based on all of the evidence before me I am satisfied the applicant and the personal respondent continued to date until the latter part of June, 2012. I say this primarily based on the testimony of the applicant’s daughter, which is corroborated by the personal respondent and supported by the text messages between the parties.

50There is no dispute that the applicant’s daughter was out of the country from sometime in March, 2012, to May 23, 2012. She states that prior to leaving for Mexico she was unaware that her mother and the personal respondent were dating, but the applicant told her they were dating after she returned to Canada. She states the romantic relationship continued until maybe three weeks to a month after her return, which means the relationship did not break down until sometime in June at the earliest.

51This is consistent with the personal respondent’s evidence; he says the applicant broke off their personal relationship a couple of weeks before she stopped working for his company and that occurred on July 14, 2012. It is also consistent with the transcription of the personal respondent’s text messages filed into evidence by the applicant. The text messages indicate that up until June 26, 2012, the personal respondent continued to use endearments like “sugar” but after that he stopped.

52As a result of all of the above, I am satisfied that the applicant and the personal respondent continued to have a consensual romantic relationship up until sometime in late June, 2012.

The Subcontracting Disagreement

53After their personal relationship broke down, the personal respondent started to badger the applicant into signing a subcontracting agreement with the corporate respondent. According to the transcription of text messages from the personal respondent to the applicant, between July 5 and July 14, 2012, he sent the applicant over 30 texts urging her to sign the contract and telling her if she did not their business relationship was over. The applicant and her daughter say the texts came to be too much for the applicant so her daughter started replying to them on her behalf. Six of the texts sent on July 14, 2012, were sent between 4 a.m. and 5 a.m.

54The applicant’s and her daughter’s texts are missing from the transcription and apparently are no longer available on the phone. I asked both of them in their testimony if they could remember what they texted back to the personal respondent in response to his messages and they could not.

55The content of the personal respondent’s texts is consistent with his testimony as to why he wanted her to sign a subcontracting agreement with his company. He says it was his intention to slowly introduce her to the business of subcontracting while assessing her reliability. Helping her register a business name and open a business bank account was part of his mentoring of her. Entering into a subcontracting agreement was the next step in developing their business relationship. His other motive in asking her to sign the subcontracting agreement was to protect his contract with the Mission from poaching by the applicant. This latter motive is explicitly referred to in the draft contract prepared by the respondents and delivered to the applicant in early July, 2012. It says:

The Subcontractor/PRADO SERVICES owner(s) will not try to take over the cleaning service business from Scarboro Foreign Mission Society or any other Client of Trustworthy Services Inc.

The Subcontractor or their employees will not perform cleaning services at Scarboro Foreign Mission Society, under present, any different company name or their own name(s) as a contractor/subcontractor or employee, for three (3) full years after the termination of this contract.

The Subcontractor will not provide the Client of the Contractor, with the Subcontractor home telephone number or any other information enabling such Client to contact the Subcontractor, other than through the Contractor.

This is a confidential document. Disclosure of the details it contains – especially to the Client; is a serious breach of contract and can cause immediate termination of the contract. [Emphasis in original.]

56On July 14, 2012 at 12:27 p.m., the personal respondent sent the following text:

I did not singed (sic) the contract in that six month because I trusted your mom. Treating her as a friend and person on training. When she ignored first time my talking about the job I was thinking this is joke. When first complain starts I start to understand that this on the joke. That is why I had to take action like always when the people want to be boss.

57Four minutes later he sent the following text:

Week or month is okay to pay cash but this contractors for long time. That is why I asked you mom to opened company and bank account in company name. Next is contract and insurance.

58A number of texts were sent after that. One says:

Do not ever use worth molested and harassment. No body will do business with you.

59Both the applicant and the applicant’s daughter confirm this text immediately above is a reference to the applicant’s reluctance to sign the contract. One of them sent a text telling him to stop harassing the applicant about signing the subcontracting agreement. Based on their evidence I am satisfied this text is not a reference to some other allegation of harassment or molestation. The applicant also states that in Spanish there is a word close to the English word “molest” that actually means to bother when accurately translated and does not have any connotation of unwanted sexual behaviour or touching.

60The text messages from July 14, 2012, indicate that when the applicant refused to sign the subcontracting agreement the personal respondent told her he could not continue to do business with her. The applicant took that to mean she was fired if she refused to sign the contract. As she would not sign it she considered herself to have been fired, even though the texts indicate the respondents were urging her to continue to work and sign the contract. The texts explicitly express the personal respondent’s regret that the applicant did not want to sign a subcontracting agreement. The one sent at 1:16 p.m. says in part:

I do not want to do this. Cost lot of money. So the smart way is sing (sic) the contract work… and everybody get pay. End of the story.

61The applicant then returned her keys to the Mission and the respondents had to find a replacement cleaner for the following Monday. After that the corporate respondent delayed paying the applicant the rest of what was owing to her until it could confirm it experienced no costs associated with the abrupt end of their working relationship. After the Application was filed, the applicant was paid the outstanding amount.

62Sometime after July 14, 2012, the applicant approached the Mission for a job working there as a cleaner and was told that there was nothing they could do for her.

ANALYSIS

63This Application engages the following rights provisions in the Code:

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

7(3) Every person has a right to be free from,

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

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

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

The Employment Issue

64The corporate respondent essentially argues that the Application should be dismissed in its entirety because it was never an employer of the applicant.

65Section 7(3) of the Code deals with unwelcome sexual solicitations and reprisals for rejecting sexual solicitations. It does not actually mention employment, although it certainly applies in the employment context because it concerns the situation where the person who is alleged to have committed the behaviour in question is in a position to confer, grant or deny a benefit or advancement to the applicant.

66With respect to the application of s. 7(2), the wording of that provision does reference employment. It applies to an “employee” and an “employer or agent of the employer or … another employee”.

67The Tribunal’s Decision in Szabo v. Poley, 2007 HRTO 37, involves an application made by a subcontracting cleaner. She alleged her employer breached s. 5(1) of the Code when it terminated her employment because it believed the applicant was going to make a claim for worker’s compensation. Section 5(1) of the Code does not use the words “employee” or “employer” but rather contains the phrase “with respect to employment”. At paragraph 16 of the Decision the Tribunal says:

The Tribunal takes a purposive, functional approach to determining whether there is “employment” within the meaning of s. 5 of the Code: see, for example, Roberts v. Club Expose (1994), 1993 CanLII 16435 (ON HRT), 21 C.H.R.R. D/60 (Ont. Bd. Inq.); Ahluwalia v. Metropolitan Toronto (Municipality) Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (Ont. Bd. Inq.); Payne v. Otsuka Pharmaceuticals Co Ltd. (2001), 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52 (Ont. Bd. Inq). It is apparent that as a practical matter, Ms. Szabo’s “sub-contractor” role was in fact one of employment. She was assigned particular cleaning tasks by Casa through contracts it obtained, was supervised by Casa, and did not run a business in her own right. Indeed, all of these indicia would suggest that Ms. Szabo was an employee even under the traditional common law test: see 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 at paras. 33-48. Accordingly, it is clear that Ms. Szabo was an employee within the meaning of the Code and s. 5(1) applies. [Emphasis added.]

68Although Szabo v. Poley, above, was concerned with the meaning and application of s. 5(1) and not ss. 7(2) or 7(3) of the Code, I agree with the statement that the Tribunal should take a purposive and functional approach to terms like employment. A similar purposive and functional approach should be used in interpreting words like “employee” and an “employer or agent of the employer or by another employee” in s. 7(2) and in determining whether or not s. 7(3) is engaged.

69The applicant here was assigned cleaning tasks by the respondents pursuant to a contract it had with a third party, the personal respondent physically supervised the applicant and her daughter, she was paid an hourly wage, and the respondents provided all of the cleaning products used by the applicant. The personal respondent was the undisputed sole directing mind of the corporate respondent and there is no dispute he had the authority to end the business relationship with the applicant at any time. Prior to April 30, 2012, it cannot be said the applicant was operating a business of her own. After April 30, 2012, the applicant was in possession of the right to use a registered business name but the business had no separate existence apart from the applicant. Given these factors, and applying the purposive and functional approach, I am satisfied that the words “employee” and “employer” in s. 7(2) describe the applicant and the corporate respondent in this Application and the personal respondent may accurately be referred to as an “agent of the employer”. I am further satisfied that s. 7(3) applies to the relationship between the parties.

Sexual Solicitation or Advance

70As stated above, s. 7(3)(a) of the Code prohibits employer’s agents like the personal respondent from making sexual solicitations or advances towards employees like the applicant where the Tribunal finds he or she knows or ought reasonably to know that such behaviour is unwelcome.

71There is no dispute between the parties that at the beginning of the relationship between the applicant and the personal respondent he made sexual advances and asked the applicant out. There is also no dispute that during this period his behaviour was welcome and the applicant reciprocated. This means that with respect to that period it cannot be said the personal respondent breached s. 7(3)(a) of the Code.

72The question that must be answered is with respect to the period after that: did the personal respondent continue to ask the applicant out or make sexual advances at a point in time when he knew she did not want him to, or ought to have known that was the case?

73For the reasons stated above, I am satisfied that the personal relationship between the applicant and personal respondent did not end until sometime in the latter half of June, 2012. It seems to me that prior to that point in time it was reasonable for the personal respondent to believe that his advances or solicitations would be welcome as their personal relationship was mutual and consensual. So the next question is what evidence is there of advances or solicitations made by the respondent after that?

74The applicant points to two pieces of evidence concerning the personal respondent asking her out or making advances after he knew or ought to have known it was unwelcome:

• the incident when the personal respondent asked the applicant to join him for lunch at the Mission and she refused; and

• a text message that the personal respondent sent her on June 26, 2012.

75As stated above, the applicant states there was one occasion when the personal respondent told her to meet him for lunch on a work day at the Mission. She says she told him she did not want to, her refusal made him angry, but she did not have lunch with him that day.

76During the course of her testimony the applicant referred to this incident twice. The first time she did so it was in the context of relating events that occurred in June, 2012. She says it was after the personal respondent found out she had spoken to the Mission’s manager about her work schedule. She did not say at that point in her testimony that the personal respondent did or said anything in response to her refusal to have lunch. Later on in her evidence I asked her to relay specific details of any incidents when the personal respondent threatened to fire her and she returned to this event. I then asked her what the personal respondent said when he was angered by her refusal to join him for lunch and she stated that he told her she had to do whatever he said she had to do.

77The difficulty with this incident is that it is unclear from the applicant’s evidence whether this was the ending of her romantic relationship with the personal respondent, or if it happened before or after that. I say this in part because the applicant’s testimony was unspecific as to how and when their personal relationship ended, but also because the personal respondent describes the ending of their romantic relationship in terms that are somewhat similar to the applicant’s description of this incident.

78The personal respondent states that maybe two weeks prior to July 14, 2012, he invited the applicant to join him for coffee at the Mission and she said she did not want it; then she told him she did not want to go out with him anymore. He does not deny being upset. I asked him what he said to the applicant at the time. He says he said: “Okay. I am helping you and you are treating me like that. I get her so many presents and give her company a job.” I take this to mean that he expressed resentment towards the applicant and felt she had used him. He says after that he did not ask her out again; rather, he went out of town and sent texts to her about signing the subcontracting agreement.

79If this breaking up incident is the same incident described by the applicant as an invitation to lunch, then it cannot represent a breach of s. 7(3)(a) of the Code because at that point in time there is no evidence to indicate the personal respondent knew or ought to have known his invitation would be unwelcome. Conversely, if it is not the same incident, then the lack of evidence as to when it occurred in relation to the ending of the personal relationship means the applicant has not met her burden of proof; I am not satisfied that it is more likely than not that at the time the personal respondent asked her to join him for lunch or coffee he knew or ought to have known his invitation was unwelcome.

80The second piece of evidence the applicant points to is the fourth of five text messages sent to her by the personal respondent on June 26, 2012. The entire series of texts sent by the personal respondent that evening follows. The bolded text is the one the applicant relies on.

8:02 p.m. How moch you need baby, how moch?

8:09 p.m. Sugar every body need to pay. Do you know how much a month I have to pay? Just do no thing to much. If you have every day work you going to make it. Every body else do.

8:30 p.m. What

8:48 p.m. And that is the most important that you are working to have you stuff. Every thing will be okay but take time. If about needs. You know what I need… But I need do not have. That is a live and we have to accept.

9:30 p.m. Sugar do not get mad. That is just may opinion.

81The first time the applicant referred to this text in her evidence at the hearing was in answer to a question I asked her about her allegation that the personal respondent repeatedly told her if she did not go out with him he would fire her. I asked her when that occurred and her answer was “some of the exact dates are in the text messages, like number 4”. She says that “you know what I need” was a reference to the personal respondent requiring her to go out with him. In response to my question as to how many times this sort of demand occurred, she said six or seven times. The next question I asked her was did her daughter witness any of these occasions and she said yes. I asked her when her daughter witnessed this and she said it was on a Tuesday when her daughter was working at the Mission. The applicant’s daughter does not corroborate the applicant’s evidence in this regard; the only behaviour of the personal respondent’s she witnessed involved his criticisms of the applicant’s work, bringing her coffee, texting her messages, and the incident in the van on June 27, 2012.

82Later in the applicant’s evidence I returned to the transcription of the personal respondent’s texts and asked her to explain what each one meant starting with the first one. When I got to the fourth and asked her what it means, she stated that it means work is important to have money and it means what it says. She did not repeat her allegation that “what I need” was a reference to demands the applicant date the personal respondent.

83The respondent says the text was simply a reference to him needing money just like everyone else as that is part of life.

84The difficulty with respect to this text in the context of s. 7(3)(a) is twofold. First, I am not prepared to find that it is more likely than not that this exchange occurred after the applicant told the personal respondent she did not want to go out with him anymore. Although the texts are one sided, in them the personal respondent continues to use endearments which tends to support the proposition she had not yet at this point told him she did not want to date him any longer. Second, given the evasive and contradictory testimony the applicant gave about this text, and the respondent’s relatively straightforward explanation for it, I am not satisfied that “what I need” is a reference to the respondent needing to date the applicant.

85Given all of the above, I am not satisfied that the personal respondent made a sexual solicitation or advance that he knew or ought to have known was unwelcome.

Reprisal

86As indicated above, the applicant alleges that after she told the personal respondent she no longer wanted to go out with him he breached s. 7(3)(b) of the Code by threatening to terminate her employment; refusing to pay her in cash; visiting her excessively at the work location; excessively calling her and texting her; attending at her home to harass her there; and eventually terminating the business relationship between them.

87During the course of the hearing the applicant led no evidence in support of the proposition that the corporate respondent stopped paying her in cash because she rejected the personal respondent’s advances. As a result, I accept the uncontested evidence of the respondents in this regard; namely, that they stopped paying the applicant in cash because they helped her register a business name and open a bank account as part of a gradual plan to help her establish herself as a subcontractor.

88Similarly there is no factual basis in the evidence for the assertion that the personal respondent called the applicant on the phone excessively. The only evidence before the Tribunal with respect to telephone calls concerns the applicant’s calling the personal respondent in February, 2012, looking for work; and the personal respondent’s evidence that while they were dating they called each other.

89The wording of s. 7(3)(b) means that an applicant must establish that the reprisal actions complained of are “for the rejection of a sexual solicitation or advance”. In other words there must be a connection between the rejection of the sexual solicitation or advance and the behaviour in question.

90The respondents do not dispute that the personal respondent started monitoring the applicant closely at the work location, or that he sent a large number of texts over a short period of time in July, 2012, or that on one occasion he insisted she meet with him in his van outside her home, or that the business relationship ended; rather it is their position that none of these things is connected to the fact that sometime near the end of June, 2012, the applicant rejected the personal respondent’s romantic advances.

91With respect to the texts, the evidence before me indicates that on June 27, 2012, the personal respondent sent 12 texts over the course of about 6 hours. All of them were about the personal respondent’s desire to meet with the applicant. Both parties testified that the reason the personal respondent sent the texts and insisted on meeting with the applicant that day was because he wanted to speak to her about the applicant talking to the manager of the Mission. As stated above it is unclear if these texts were sent prior to the applicant telling the respondent she did not want to date him any more or not; but assuming without finding that the texts were sent after that, nothing in the evidence before the Tribunal suggests that one of the reasons the personal respondent sent the texts was because the applicant rejected his advances.

92Similarly, with respect to the 32 texts the personal respondent sent on July 14, 2012, both the applicant and her witness state that those texts are all about the personal respondent’s desire that the applicant sign the subcontracting agreement. The applicant does not really dispute that the reason the respondents wanted her to sign the subcontracting agreement was because the personal respondent believed she was trying to expropriate his contract with the Mission for herself. The applicant did not put forward the proposition that her rejection of his advances led him to be more insistent and aggressive in urging her to sign the contract. It is certainly possible that if she had not ended their personal relationship he might have been more patient but even if she had made that argument it would fail as speculative and not supported by the evidence.

93As a result of the above, I am not satisfied that it is more likely than not that there is a connection between the excessive texts the personal respondent sent to the applicant and her rejection of his advances.

94The same analysis can be brought to bear with respect to the one visit to her home on June 27, 2012, that the Tribunal heard about that might arguably have occurred after the applicant rejected the personal respondent’s further advances. That visit was all about the personal respondent’s concerns over the applicant talking to the manager of the Mission and his contract. Neither the applicant nor her daughter indicated there were other visits by the personal respondent to their home after the applicant ended the personal relationship. As a result, I am not satisfied that there is a connection between his coming to her home and the fact that she told him she no longer wanted to date him.

95As to the fact that the personal respondent started to spend an excessive amount of time monitoring the applicant in the workplace, the applicant herself states that behaviour started prior to her telling the personal respondent she did not want to date him anymore; in fact she and her daughter both state it was a prime reason why she did not want to date him anymore as it made her feel like he was exercising power over her and that made her uncomfortable. As a result, it cannot be said that the personal respondent’s behaviour in excessively monitoring the activities of the applicant in the workplace is connected to the applicant telling him she no longer wished to date him. I am satisfied that it is more likely than not that this behaviour was motivated by the personal respondent’s suspicions about the applicant wanting to take away his contract.

96With respect to the ending of their business relationship, the texts sent on July 14, 2012, establish that it ended because the applicant refused to sign the subcontracting agreement, not because the applicant rejected the personal respondent’s advances. The personal respondent states that if she had signed the agreement the business relationship would have continued, and that is supported by the texts. I am not satisfied that there is a link between the ending of the business relationship and the applicant’s rejection of the personal respondent’s advances.

97The final reprisal allegation is that when the applicant ended their personal relationship the personal respondent threatened to fire her. The personal respondent denies this, although he does concede that he essentially accused her of using him. His response to her also supports the proposition that he felt somewhat entitled as he referenced all of the gifts he had given her and everything he had done for her. That sense of entitlement is consistent with the applicant’s allegation that he threatened to fire her. However, I am not prepared to find that it is more likely than not that the personal respondent threatened to fire her when the applicant told him she no longer wanted to go out with him, because the applicant’s testimony as a whole raises significant credibility issues.

98As can be seen from the above recounting of the evidence and findings of fact the applicant’s testimony was at times evasive (as regards to the Facebook messages), internally inconsistent (for example, as to when she told the personal respondent she did not want to date him anymore) and contradictory (concerning the meaning of the text which says “you know what I need”). It was also contradicted in part by her own witness, who did not corroborate the applicant’s statement that her daughter witnessed the personal respondent demanding she go out with him. I would also observe that the applicant’s own testimony directly refutes some of the allegations in the Application (with respect to gift giving and the use of endearments), although I am cognizant of the fact that the applicant did not draft her own Application and place little weight on these discrepancies as a result.

99These specific problems with the applicant’s testimony undermine her credibility as a whole and as a result of them I am not prepared to find the applicant credible with respect to her statements that the respondent threatened to fire her when she told him she no longer wanted to date him.

100Based on all of the above I am not satisfied that it is more likely than not that the respondents breached s. 7(3)(b) of the Code.

The Sexual Harassment Allegations

101Although s. 7(2) prohibits harassment in the workplace because of sex, the definition of the word “harassment” appears in s. 10(1). It says:

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

102I take the phrase “course of vexatious comment or conduct” to mean that it is important to consider the conduct as a whole rather than to look at each incident as an isolated event. This is particularly true given that the Tribunal must determine whether or not the conduct is known or ought reasonably be known to be unwelcome. For example, it may not be unreasonable for a male employer to think a single remark about an aspect of a female employee’s anatomy made in isolation is acceptable when it is not objected to; but if it occurs in the context of a series of sexual assaults, the reasonable person’s perception of how that remark will be received may change.

103That being said, in order to succeed on an application pursuant to s. 7(2), an applicant must lead some evidence in support of the proposition that the conduct was in fact unwelcome to him or her. As can be seen from the recitation of facts set out above, the applicant did not mind the endearments used by the personal respondent. Contrary to what is alleged in the Application she states that not only did she not ask him to stop using them, but they did not make her uncomfortable.

104I would make a similar observation about the personal respondent’s gift giving. The Application says: “He would ask me to go out for dinners, and bought me presents if I wanted to keep my job.” Because of this statement I asked the applicant during the hearing what this allegation means. She says she “had to” accept his gifts but acknowledges she never told him she wanted him to stop giving her presents. At no time during the applicant’s testimony did she state that the personal respondent’s gift giving made her uncomfortable or that she wanted it to stop or that she was afraid he would fire her if she asked him to stop giving her gifts.

105Absent evidence from the applicant that these things disturbed or upset her I do not believe they can be said to be part of a course of vexatious conduct or comment.

106As stated above, during the course of the hearing the applicant alleged that at some point in time the respondent essentially assaulted her on the job by physically touching her about the arms and shoulders; that she objected but the behaviour continued a few more times before it stopped. The personal respondent denies this. If this behaviour occurred then it would constitute sexual harassment and a breach of s. 7(2) of the Code. However, because of the overall credibility question that arises from the applicant’s testimony as discussed above, in the absence of some corroborating evidence with respect to this alleged behaviour I am not prepared to find that it is more likely than not that the personal respondent touched the applicant in the manner she describes or continued to do so over her objections.

107I have no doubt whatsoever that the personal respondent’s undisputed actions in the form of excessively monitoring the applicant at work, sending her a large number of texts about signing the contract, refusing to permit her to continue to work unless she signed it, and insisting on meeting with her outside her home on June 27, 2012, constitute vexatious conduct and that the respondents knew or ought to have known they were unwelcome to the applicant. They would be unwelcome behaviours to any reasonable employee.

108But that is not sufficient to constitute a breach of the harassment protections in the Code. The Code does not prohibit all forms of harassment. For example, section 7(2) says every person has a right to freedom from harassment in the workplace “because of sex”. Unless there is a connection between the harassing behaviour complained of and the ground alleged, it is not a breach of the Code. In this Application, the evidence indicates that the harassing behaviours described in the paragraph immediately above were all related to the personal respondent’s reaction to discovering the applicant was talking to the manager of the Mission and his concerns she was trying to take over that contract. The evidence does not support the proposition that there is a link between those behaviours and the applicant’s sex.

109Given the above, I am not prepared to find that it is more likely than not that the respondents breached s. 7(2) of the Code.

DECISION

110The Application is dismissed.