C.K. v. C[...] Inc., 2014 HRTO 572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.K.

Applicant

-and-

C[…] Inc. and H.S.

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 23, 2014

Citation: 2014 HRTO 572

Indexed as: C.K. v. C[…] Inc.

APPEARANCES

C.K., Applicant

Self-represented

C[…] Inc., Respondent

Gary Batasar, Counsel

H.S.h, Respondent

No one appearing

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.

2This 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.

3The 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.

4The 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.

5I heard evidence from the applicant and her husband P.K. and the respondent presented two witnesses Dr. F.H. and D.Y.. Between them, the parties adduced three documents into evidence.

6P.K. is the applicant's husband. He testified that on September 15, 2010 the applicant came to his workplace and was very upset. P.K. stated that the applicant told him what happened with the individual respondent, but gave few details. P.K. stated that he advised the applicant to call Dr. F.H., the owner of the organizational respondent, which she did. The applicant reached Dr. F.H. on the phone and explained what happened. The phone was on speaker and according to P.K., Dr. F.H. stated that he found it difficult to believe the applicant's allegations, but would call the individual respondent to look into the matter. The applicant responded that the police should be contacted and Dr. F.H. stated that would be a good idea. Dr. F.H. also suggested that the applicant hide a tape recorder on herself and try to get evidence from the individual respondent to support her claim. P.K. stated that the applicant replied that she would not do this and Dr. F.H. stated that maybe it would be best if she just called the police.

7In cross-examination, P.K. stated that the applicant picked him up at work at about 6:15 p.m. and that the incident occurred at approximately 2 p.m.. P.K. confirmed that he and the applicant spoke in their car, and that he was driving. The applicant called Dr. F.H. from the car between 7:30 and 8:00 p.m.

8P.K. stated that the applicant did not return to work after the incident because she felt Dr. F.H. did not believe her and that it was not a safe environment. P.K. stated, however, that he had not been present when the applicant called the organizational respondent to resign her employment. Counsel for the organizational respondent pointed out to P.K. that the witness statement of his expected testimony filed by the applicant on June 26, 2010 states that he had witnessed the conversation in which the applicant resigned, but made no mention of the applicant's conversation with Dr. F.H. in which she advised him of the assault by the individual respondent. When asked to explain this contradiction P.K. stated that he "probably forgot".

9The applicant's evidence was that after the assault she went to her car in the parking lot and called her husband at work and briefly told him what happened. She then called Dr. F.H. at about 2:30 p.m., but did not recall if she spoke to him at that time. The applicant then drove to her husband's workplace in Woodbridge. Her husband worked until 6 p.m. and she waited for him by browsing in the area. By this time, the applicant had not called the police. The applicant's evidence was that she told her husband about the assault when they arrived at home.

10The applicant stated that they decided to call the police and that they called Dr. F.H. at some point. The applicant's evidence was that she spoke to Dr. F.H. at about 7:30 p.m. and explained what the individual respondent had done. According to the applicant, Dr. F.H. stated that he could not believe what had happened and asked her if he had her resume, which she felt was odd. The applicant stated that she informed Dr. F.H. that she planned to call the police and Dr. F.H. responded to the effect that she should do that. The applicant's evidence was, however, that Dr. F.H. went on to state that the applicant would need evidence and suggested that she used a tape recorder to catch the individual respondent "doing something". The applicant stated that she advised Dr. F.H. that his suggestion was ridiculous and that she would simply call the police. The applicant's evidence was that she advised Dr. F.H. that she would take some time off to decide whether she would return to work and Dr. F.H. said that this was fine. The applicant called Dr. F.H. on September 20, 2010 and informed him that she was not going back to work. According to the applicant, Dr. F.H. advised her that he had already replaced her because they needed someone to perform a function.

11The applicant stated that she went to work the day after the assault to identify the individual respondent for the police, but the applicant did not understand why the individual respondent was permitted to come to work at all. The police arrested the individual respondent and the applicant showed them where the assault occurred. The applicant states that the police advised her not to return to work because it was a dangerous environment.

12The applicant's evidence was that the individual respondent had constantly criticized her work and ordered her to do as he said or she would lose her job. The applicant stated that the individual respondent held himself out to be her supervisor. The applicant stated that about a week before the assault she informed one of the secretaries that the individual respondent was picking on her. The applicant stated that she did not advise Dr. F.H. because she did not want to make trouble early in her employment. However, the applicant stated that a few days later Dr. F.H. informed her that the secretary had advised him of her concern. The applicant's evidence was that Dr. F.H. took no action to address the individual respondent's behaviour.

13In cross-examination, the applicant stated that she called Dr. F.H. from home and that her husband was confused when he testified that she made a call in their car. The applicant confirmed that Dr. F.H. agreed to let her have time off and was compassionate. The applicant stated that she felt Dr. F.H. did not believe her because he advised her to get evidence with a tape recorder before going to the police. She denied the suggestion that Dr. F.H. stated that the police might give her a tape recorder. The applicant agreed, however, that Dr. F.H. took the matter seriously. She also agreed that the police arrested the individual respondent the next day and he did not return to work after that.

14Also in cross-examination, the applicant stated that she called Dr. F.H. on September 22, 2010 to inform him that she would not return to work.

15Dr. F.H. is the owner of the organizational respondent. Dr. F.H. explained that chelation is an intravenous procedure used to treat patients with blocked arteries. Dr. F.H.'s evidence was that the individual respondent was a technician who inserted IVs and took progress notes. Dr. F.H. stated that all employees report directly to him and not the individual respondent, who had no supervisory authority. Dr. F.H. denied that a secretary advised him that the applicant complained about the individual respondent. In Dr. F.H.'s view, the applicant was working out satisfactorily.

16Dr. F.H. stated on September 15, 2010 he had been working in the Barrie office and that the applicant had left a message with the secretary that she wanted to speak to him, but did not say why. Dr. F.H.'s evidence was that he left Barrie at about 7 p.m. and called the applicant on the way back to Toronto. The applicant informed him of the incident with the individual respondent, but did not mention ejaculation. Dr. F.H.'s evidence was that he stated that if the individual respondent did this to her (the applicant) then he might do it to others and advised the applicant to call the police. According to Dr. F.H., the applicant suggested that they "let it be" and to wait and see if the individual respondent did something like this again, which surprised him. Dr. F.H. stated that he responded to the effect that the incident could not be ignored.

17Dr. F.H. testified that he asked how the police could charge the individual respondent, since it would be the applicant's word against the individual respondent's. Dr. F.H. suggested that perhaps the police could give the applicant recording equipment and if the police agreed, the applicant could confront the individual respondent to get him to make admissions. Dr. F.H. stated that he was trying to help the applicant and it was not a case of him not believing her.

18Dr. F.H. stated that the next morning the applicant arrived with the police, who arrested the individual respondent. The office was closed while the police investigated.

19Dr. F.H. stated that he did not replace the applicant and, in fact, kept her position open until March 2011. Dr. F.H. stated that the applicant called him on September 20, 2010 to resign, not September 22, 2010. He explained that he took the call at the Wynford Dr. location, where he works only on Mondays, and that the Monday of that week was September 20, 2010. Dr. F.H. stated that he told the applicant that it was understandable that she wanted to leave and that he felt sorry for her. Dr. F.H. stated, however, that he could not have replaced the applicant by then in any event and it would not have been logical to say that he did. Two days later, the applicant sent an e-mail message to the bookkeeper regarding her resignation and the wages owed to her. Dr. F.H. stated that he was careful to keep the applicant's position open to prevent allegations such as the applicant made in the Application.

20According to Dr. F.H., the police placed a restraining order on the individual respondent that prevented him from working in medical care centers. Dr. F.H. stated that he then terminated the respondent and would not tolerate his behaviour.

21In cross-examination, Dr. F.H. stated he did not call the individual respondent after speaking with the applicant on September 15, 2010. He explained that he understood that the applicant was going to call the police and expected them to arrest him that night. Dr. F.H. stated that at that point it was a criminal matter for the police to handle. Dr. F.H. confirmed that he thought dismissing the individual respondent would be necessary after he was arrested because he posed a "major liability". Dr. F.H. agreed that he did not dismiss the individual respondent immediately, since he could not return to work while the criminal proceedings continued. Dr. F.H. stated that he eventually spoke to the individual respondent and listened to his explanation. Dr. F.H.'s evidence was that he advised the individual respondent that he was "doomed" if he committed the acts of which he was accused.

22Dr. F.H. denied that the applicant said anything about the individual respondent ejaculating when she described the incident to him. Dr. F.H. stated that there would have been evidence if the individual respondent ejaculated. Dr. F.H. acknowledged that he spoke of a tape recorder to gather evidence, but stated that his suggestion was that the police might do this. Dr. F.H. reiterated that he made the suggestion with a view to helping the applicant prove her allegations.

23Dr. F.H. denied that he was ever informed that the individual respondent had been picking on or harassing the applicant. Dr. F.H. also stated that criticism of the applicant's work does not amount to sexual harassment.

24D.Y. is the organizational respondent's bookkeeper and has held that position since 2001. In that role Ms. D.Y. is responsible for all accounting related issues, including payroll. Ms. D.Y. stated that she became aware that the applicant had been involved in an incident when she received an e-mail message from her confirming her resignation on September 22, 2010.

25Ms. D.Y.'s evidence was that she did not believe Dr. F.H. had any intention of replacing the applicant immediately. Ms. D.Y. stated that Dr. F.H. would discuss this kind of decision with her and her recollection was that he did not have her begin to look for a replacement for about six months. Ms. D.Y. stated that the organizational respondent hired a secretary/receptionist in March 2011. In the meantime, clinic staff took turns answering calls/voicemail and returning calls.

Analysis and decision

26The relevant Code provisions are 5, 7, 10, and 46.3(1), which state:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex….

6. (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;

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

27The applicant has the onus of proving that the respondents violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondents discriminated against her on the Code grounds alleged. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46.

28Where the parties’ evidence conflicted, I have determined the facts of this case, on a balance of probabilities, based on my assessment of the witnesses’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

29The applicant was the victim of a sexual assault while she worked for the organizational respondent. The Ontario Court of Justice convicted the individual respondent for sexually assaulting the applicant. The precise nature of the Court's findings will become clear when the applicant produces the transcript of the court's decision, but it is likely that the actions that have been found to be a sexual assault will amount to violations of the applicant's rights to freedom from harassment in the work place because of sex and from sexual solicitation advances, under sections 7(2) and/or 7(3) of the Code, respectively.

30Pursuant to section 46.3 (1) of the Code, however, the organizational respondent is not vicariously liable for violations of section 7. The Tribunal's jurisprudence indicates that an employer is required to take reasonable action to address complaints of harassment or discrimination, failing which it may be in breach of its obligation to ensure a workplace free of discrimination and/or harassment. In Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, the Tribunal described criteria for considering whether an employer has met its obligations as follows, at paragraph 59:

(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

60While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.

31The applicant's case against the organizational respondent is based on three categories of allegations: (1) the organizational respondent did not address her concerns prior to September 15, 2010 that the individual respondent was harassing her, (2) the organizational respondent took no action after the applicant informed Dr. F.H. of the incident on September 15, 2010, and (3) Dr. F.H. informed the applicant that he had replaced her when she called him to tender her resignation.

32In coming to my decision on these issues, I placed no weight whatsoever on the testimony of P.K.. He testified in detail to the effect that he overheard a telephone conversation on September 15, 2010 in which the applicant informed Dr. F.H. that the individual respondent assaulted her. The witness statement summarizing his expected evidence, however, indicated that he overheard a telephone conversation in which the applicant tendered her resignation and gave no indication that he was present during the applicant's conversation with Dr. F.H. on September 15, 2010. When this rather glaring inconsistency was brought to his attention in cross-examination, P.K. responded that "he forgot", which is hardly a satisfactory explanation, particularly since the witness statement was submitted on June 26, 2013, only a few weeks before the hearing. In her written submissions, the applicant sought to explain the inconsistency by stating that her husband became confused due to the stress and anxiety of participating in a hearing. There is no doubt that hearings can be stressful, but I do not accept that P.K., who appeared well composed during his testimony, completely forgot overhearing a conversation to which he and the applicant attached a great deal of significance. Even if P.K. did forget the second conversation, this would not explain why he was able to provide the detailed evidence of a conversation for which the witness statement provided by the applicant indicates he was not present. In any event, P.K.’ evidence was inconsistent with the applicant's in that he stated that her conversation with Dr. F.H. on September 15, 2010 occurred in their car, while she stated that they were at home. As a result, I have serious concerns about both the reliability and credibility of P.K.’ testimony and I place no reliance upon it.

Allegations Prior to September 15, 2010

33The applicant's evidence was that the individual respondent informed her that he was her supervisor and that he "picked on her" through constant criticism of her performance. The applicant and organizational respondent dispute whether Dr. F.H. was aware of these issues. I find it unnecessary to resolve this dispute because the applicant presented no evidence – and in fact never alleged – that the individual respondent's alleged harassment prior to September 15, 2010 was connected in any way to a prohibited ground of discrimination. The individual respondent's criticism of the applicant's work may have been unfair, but the Tribunal has no jurisdiction to address simple unfairness.

The Call on September 15, 2010

34The applicant and Dr. F.H. differed in their testimony regarding her conversation in the evening of September 15, 2010 in certain respects. Each asserted that they called the other. The applicant's evidence was that Dr. F.H. suggested collecting evidence from a tape recorder before going to the police. Dr. F.H.'s evidence was that he suggested the police might employ this tactic. The applicant testified that she included detail about the individual respondent ejaculating; Dr. F.H. said she did not. Dr. F.H. stated that the applicant wanted to take no action and wait to see if the individual respondent repeated this behaviour. The applicant denied this. I find that it is unnecessary to resolve these discrepancies because I find, regardless of which account is accepted, that the organizational respondent acted reasonably in the particular circumstances of this case.

35There is no dispute that the applicant and Dr. F.H. agreed that she should report the individual respondent's actions to the police. Assuming the applicant's account is accurate, Dr. F.H. made a suggestion regarding collecting evidence, not a well-considered one, but he did not insist that the applicant pursue this course of action. Moreover, the applicant agreed in cross-examination that Dr. F.H. took her concerns seriously and was compassionate towards her. The applicant was of the view that Dr. F.H. did not believe her, but whether he believed her is irrelevant provided he acted reasonably to address her complaint. There is no dispute that Dr. F.H. did not take immediate action, but, in the circumstances, this does not appear to have been unreasonable. After speaking with the applicant, Dr. F.H. knew that she would call the police and that she would not be attending at work for the time being. Dr. F.H.'s evidence, which I accept, was that he expected the police to arrest the individual respondent immediately and did not call the individual respondent because he understood that it was a police matter in which he did not wish to interfere. He did not expect either the applicant or the individual respondent to be at work the next day and therefore had no reason to believe that he had to act to separate them. The police arrested the individual respondent at work the next day and he was prohibited from attending the workplace after that. Dr. F.H. eventually dismissed the individual respondent after hearing his version of events and after it became clear that he would not return to work. Consequently, I find that in the circumstances, Dr. F.H. acted reasonably.

Resignation

36Dr. F.H. and Ms. D.Y. gave uncontradicted evidence that the organizational respondent did not replace the applicant until March 2011. I find that there is no reason not to accept their evidence. Accordingly, there was no reason for Dr. F.H. to tell the applicant that she had been replaced. Dr. F.H. gave detailed evidence about when and where he took the applicant’s call and why he was sure the call happened on September 20, 2010. The applicant’s account was less detailed and her evidence about the date on which she called was not consistent: in chief she stated the call occurred on September 20, 2010 and in cross-examination she stated it occurred on September 22, 2010. The applicant did send an e-mail message to the organizational respondent on September 22, 2010 and it appears she may have conflated the call and e-mail message. In the circumstances, I find Dr. F.H.’s evidence to be more reliable on this point and I find it more likely than not that Dr. F.H. did not tell the applicant that she had been replaced.

Order

37For the foregoing reasons, I find that there is no proper basis for finding that the organizational respondent failed to meet its obligations under the Code. The Application is dismissed as against the organizational respondent. Accordingly, the organizational respondent will be removed from the style of cause in any future decisions of the Tribunal in this matter.

Next steps

38Following the hearing, the applicant filed copies of the Information and the Record of Appearances regarding the criminal proceeding against the individual respondent, but not the judgment of the Court setting out its findings of fact and reasons for finding the individual respondent guilty of sexual assault. Because the individual respondent has been found guilty in Court on the facts underlying this Application, it is unnecessary – and inappropriate – to hear this evidence again. See also my reasons at para. 5 of the Case Assessment Direction dated June 20, 2013, where I initially ordered this material filed.

39The Tribunal, again, directs the applicant to file with the Tribunal the Court judgment against the individual respondent, i.e., the transcript of the trial setting out the Court’s findings of fact and reasons for convicting the individual respondent, within 35 days of the date of this Interim Decision. If the applicant believes she will be unable to comply with this direction she must advise the Tribunal in writing of this, along with reasons why she is unable to comply, and she must do so within 14 days of the date of this decision. If the applicant is unwilling to comply with this direction she must advise the Tribunal in writing of this, along with reasons why she is unwilling to comply, and she must do so within 14 days of the date of this decision. If the applicant is either unable or unwilling to file this material the Tribunal will consider her submissions and may provide further directions or make a decision, including consideration of whether it can proceed with or should dismiss the remaining allegations with respect to the individual respondent. If the applicant files the Court's judgment/endorsement, the Tribunal will schedule a hearing to address the allegations against the individual respondent.