HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hayley Dacosta
Applicant
-and-
2383924 Ontario Inc. o/a Crabby Joe’s Tap and Grill and Shad Yearwood
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Dacosta v. 2383924 Ontario Inc.
APPEARANCES
Hayley Dacosta, Applicant
Frank Edward van Dyke, Counsel
2383914 Ontario Inc. o/a Crabby Joe’s Tap and Grill and Shad Yearwood, Respondent
Greg Dobney, Counsel
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 and harassment with respect to employment because of sex. A hearing was held on May 27, 2015.
The Dispute
2In her Application, the applicant alleges that the respondent Yearwood attended the workplace in an intoxicated state and sexually assaulted and harassed her. As a result of this alleged behaviour, the applicant felt she had to quit her employment.
3The particulars of this allegation as set out in the Application are as follows:
a. That the respondent Yearwood slapped her on the buttocks twice – the applicant alleges that she asked him to stop.
b. That when she leaned down into the mini fridge, Yearwood came and stood over me with his genitals beside her face. The applicant alleges that she pushed him back and asked what he was doing. The applicant alleges that the respondent asked her if he scared her and if he made her nervous.
c. The applicant alleges that when she leaned over a counter, Yearwood stood behind her with his genitals on her back. The applicant alleges that she yelled at him “to get his penis off and away” from her.
d. The applicant alleges that Yearwood whipped her with a towel in the dish pit area. She alleges that she told him that was enough and she tried to hide behind the dishwasher. The applicant alleges that she screamed and Yearwood is alleged to have said is that as loud as you can scream? I’m sure I can make you scream louder later. The applicant alleges that she told him he was out of line and drunk and to leave her alone.
e. The applicant further alleges that she asked Yearwood if he knew that her boyfriend was a police officer. The respondent is said to have responded that the boyfriend was not present and that he had forgotten to ask her to bring in his handcuffs so he could tie the applicant up later.
f. The applicant alleges that she went to the back fridge and got some dressings and when she came out, Yearwood was standing in the doorway staring at her.
g. The applicant alleges that she left the workplace shortly thereafter and on her way out found the respondent Yearwood passed out in a booth.
4The respondents each filed a Response. The Responses are essentially the same. Where the evidence or submissions of the personal respondent and the co-owners of the corporate respondent was essentially the same, I have simply referred to “the respondents” or “the respondents’ evidence”. The respondents deny the allegations. The respondents assert that there was some horseplay in the workplace on the evening in question but that it was not sexual in nature and the applicant was a willing participant in the roughhousing. The respondents also assert that the applicant made no complaint of the kind set out in the Application and appeared to have had no issues until after she abandoned her job.
The Hearing
5The hearing took place on May 27, 2015 in Kingston. I heard from the applicant, the respondent Shad Yearwood (the “respondent Yearwood”), the co-owners and parents of the respondent Yearwood, Terry Celestini and Craig Yearwood as well as J.D., a former employee of the corporate respondent.
6For the reasons that follow, I find that the applicant experienced significant mistreatment at the hands of the respondent Yearwood. This mistreatment of her was because of her sex. I find that the personal respondent slapped the applicant on the buttocks twice and entered her personal space and made physical contact with her on two occasions. I also find and that he whipped her with a towel and whether or not another employee also was whipped by the personal respondent, the whipping of the applicant was part of his pattern of behaviour towards her that evening. I also find that the personal respondent made sexualized comments to the applicant that evening consistent with his other behaviour. I also find that the applicant repeatedly made it clear that the behaviour was unwelcome. All of these things happened to the applicant because she is a woman and this constitutes discrimination and harassment on the basis of sex.
7I also find that the applicant did not complain about this behaviour to the owners of the organizational respondent. However, the respondent Yearwood was the general manager of the organizational respondent and I find the corporate respondent is liable for his actions.
8My reasons for these conclusions are set out below.
Background facts
9The organizational respondent is a franchisee of a chain of restaurants. It is owned by Craig Yearwood and Terry Celestini, who are spouses and the parents of the individual respondent, who was the general manager of the restaurant. Several other children of the owners work in the restaurant. The applicant is unrelated to the owners but was familiar to them through sporting activities. The applicant was hired by the organizational respondent.
10The organizational respondent had an antidiscrimination and harassment policy which was imposed on them by the franchisor. Although this was not fleshed out completely in the evidence, it appears the franchisor took steps to enforce the policy. Following a complaint from someone, perhaps the applicant’s sister, a district manager from the franchisor attended at the restaurant and made some directions, responsive to the complaint. The respondent Yearwood testified that he was placed under supervision and could not work nights without another supervisor on site. Several of the respondents’ witnesses agreed that some of the conduct alleged by the applicant might have had serious consequences for the personal respondent. Similarly, several of the respondents’ witnesses also agreed that the whipping incident was contrary to the policy.
11The restaurant opened for business on or about October 16, 2013, and the events described in the Application took place on the evening of November 6, 2013. The applicant left her employment on or about November 15, 2013. She immediately found work and began earning income similar to that which she had obtained working for the respondents. In this regard, there is some evidence that suggests the applicant had found work with her previous employer before she quit her employment with the respondents.
Evidence and Analysis
Credibility
12As with most of these kinds of cases, its resolution required that I make determinations about the credibility of the witnesses.
13In considering these, I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries 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 a 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.
14Also important are the principles set out in Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the Tribunal stated at para. 54:
Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.
15I generally prefer the evidence of the applicant. She gave her evidence in a more or less straightforward manner. Although she appeared somewhat uncomfortable talking about these events, she was able to describe most of the incidents complained of in the Application in a detailed and coherent way. Her evidence about these events was consistent but not identical to what she claimed had happened in the Application, suggesting that these were real events but not a story made up for some reason.
16The applicant’s evidence was not without its problems. In particular, her evidence with respect to what happened after the evening of November 6, 2013 was very vague. The applicant did not indicate what she told the owners about the incidents of November 6, 2013. I have concluded that she did not tell them about anything other than the whipping incident and she was less than forthright with Ms. Celestini about her feelings about it. While the applicant does not appear to have told the owners, it is clear from the material filed by the respondents that the applicant made the same allegations as appear in the Application to the police and very likely the WSIB. In addition it is clear from the respondents’ evidence that someone made a complaint of harassment by the personal respondent to the franchisor and the respondents would necessarily have known about this complaint given that it resulted in the respondent Yearwood being placed under supervision (see above).
17The respondents sought to undermine the general credibility of the applicant’s testimony about her harassment allegations based on inconsistencies and problems with other aspects of her evidence, in particular her evidence about how quickly she found other employment after she departed the respondent’s employ. They relied on the fact that in filing documents in completion of her Application she indicated that she had not found work by January 28, 2014. As will be seen below, this date was clearly incorrect. While it was noted that this material had been completed by her counsel, the applicant also indicated that she would have reviewed the filings, if somewhat cursorily. What actually happened was that the Applicant either returned to work or was reemployed by her previous employer shortly after she left the respondent. As noted below, there was some confusion about the details of this during the hearing, but certainly no suggestion by the applicant that she was not working long before January 28. In my view, while sloppy, it does not seriously detract from the applicant’s otherwise fairly coherent narration of the events of November 6, 2013.
18As well, the respondent relies on what appears to be a contradiction between the applicant’s evidence that it took her three weeks to get hours back at a restaurant she had worked at previously and a Record of Employment (“ROE”) issued by that employer which has her working hours throughout October. When it was put to her, the applicant was clearly confused by the ROE. She testified that she had been told by the prior employer that her hours would be cut and that is why she accepted work with the respondents. This is not inconsistent with the ROE which has her working a limited number of hours during the week immediately prior and during her first two weeks of employment with the respondents. It also indicates that there was a gap of two weeks in late November and December 2013, when she received no hours from this other employer. In my view, this is not inconsistent with the applicant’s evidence which was that she intended to leave the prior employer because she had been told that her hours would be reduced and then sought to return to that employment when she left the employ of the respondents.
19The respondent Yearwood’s version of that evening has him arriving between 7:00 and 7:30 p.m. He has a couple of drinks at the bar, either beer or cider depending on the iteration of the story. Shortly before 9:00 p.m., he went to the kitchen area to have J.D. cook him a steak. It is at this point that the towel whipping incident occurred according to the respondents. On the personal respondent’s version, the applicant laughed when whipped. The respondent Yearwood denies any other interaction with the applicant that evening. After about 10 minutes in the kitchen area he left according to this version of events, ate his steak in a booth, watched television for a while and then fell asleep in the booth at or shortly after 9:00 p.m. According to the personal respondent, he awoke and asked his father to drive him home at 10:30 p.m.
20However, I found his testimony on the issues in dispute ultimately less believable than that of the applicant for a number of reasons. I noted a marked hesitance in responding to specific questions in chief about the particulars of the applicant’s complaints. This hesitance often marked by a short cough was less evident as his evidence moved away from the events in question. He was also somewhat evasive at times, not responding directly to questions in chief by sidestepping them. So for example, he was asked directly by his counsel whether he had stood in a doorway at the back of the kitchen area staring at her. His response was that he was only in the kitchen area for 10 minutes. He was asked again and denied that he stood and stared at the applicant.
21More importantly though was the fact that the respondent’s evidence was internally inconsistent and somewhat contradictory on a number of important points. J.D., who gave evidence on behalf of the respondents, contradicted the respondent Yearwood on several key points. For example, the personal respondent’s evidence was that other than one incident of whipping involving the applicant and another individual he had no other contact with the applicant that evening. In contrast, J.D. testified that he saw the respondent Yearwood standing beside the applicant while she was bending down into the dessert fridge such that his crotch might be in her face as she has complained. He also testified that he had earlier seen the respondent Yearwood standing close to the applicant and from his perspective Yearwood was flirting with her. J.D. was also asked about why the personal respondent left the kitchen area. He responded, contrary to the personal respondent’s evidence that his steak was ready, that the applicant had left and therefore there was no reason for the personal respondent to hang around the kitchen any longer. I also note that J.D. had no recollection of cooking a steak for the personal respondent that evening – which, again, contradicts the personal respondent’s evidence.
22J.D. also contradicted the personal respondent about the applicant’s reaction to being whipped by him. J.D. testified that she shrieked, saying no one likes being whipped. It was a negative reaction. This is in contrast to the personal respondent’s testimony that she laughed.
23The evidence of Ms. Celestini and the personal respondent also do not sit well together. Ms. Celestini testified that she observed the personal respondent going into the kitchen area and she followed him to supervise him because he was not allowed in the kitchen while off duty. She testified that she was there observing him for as long as it took to cook a steak. It is during this time frame that according to the personal respondent the whipping incident took place. However, Ms. Celestini did not see the whipping incident.
24J.D. also contradicted the respondent Yearwood about the timing of these incidents. J.D.’s evidence tended to support the applicant’s recollection of the timing of these events. According to the respondent Yearwood, after the whipping incident he ordered a third beer or a Strongbow, ate his steak, watched TV, and then had a nap in the booth at about 9:00 p.m. He then testified that he woke up at 10:30 p.m. and immediately left the restaurant at 10:30, suggesting that the whipping incident had occurred before 9:00 p.m. J.D. on the other hand testified that he believed, although he was not sure, that the whipping incident occurred about 10:30 p.m. He also confirmed the applicant’s evidence that the personal respondent was asleep in the booth and the picture of him taken at or shortly after 11:00 p.m. J.D. testified that after the personal respondent left the kitchen area, he took out some garbage and then returned to the restaurant and observed the personal respondent in the booth asleep and the applicant taking a picture of him. In the same vein, Craig Yearwood contradicted the personal respondent’s evidence about their time of departure testifying that he and his son left together between 11:00 p.m. and 11:30 p.m.
25J.D.’s evidence with respect to the timing of the picture taking is similarly inconsistent with the evidence of Ms. Celestini, who although she did not say when it was taken, identified a member of the serving staff being present at the time, who left the workplace at 9:15 p.m., according to the respondent’s records.
26There are also contradictions between the evidence of Craig Yearwood and Ms. Celestini. Craig Yearwood said he heard and saw nothing with respect to the material events in question. He testified that he saw the personal respondent in the kitchen waiting on a steak. He testified that he attended the kitchen twice to get coffee for himself and the personal respondent was there on both occasions. Ms. Celestini on the other hand, testified that the personal respondent was there only long enough to cook a medium rare steak. It seems unlikely that these two versions of the length of the personal respondent’s visit to the kitchen can stand together.
27It is also curious that while J.D. testified that there were at least three towel snaps by three individuals and that the applicant shrieked when hit, that Ms. Celestini and Craig Yearwood who claim to have been close by all evening heard nothing. I would also observe that assuming their evidence to be truthful it is entirely possible that they saw and heard nothing of the other events described by the applicant which were by their nature furtive and of very short duration.
28In my view, these internal inconsistencies and contradictions in the respondents’ evidence about what are important features of their case seriously undermine the credibility of their evidence and in particular that of the personal respondent.
29The respondents ask that I draw an adverse inference from the fact that the applicant did not call H.B., who the applicant claimed witnessed at least one of the incidents. I observe that there were several other individuals who either party might have called to cast light on what occurred on the night in question. I also note that the one witness who was present at what was the material period of time gave evidence which contradicted the personal respondent’s evidence in several important ways. In the circumstances, I am not prepared to draw any inference from the failure of either party to call witnesses who might have supported their version of events.
30For these reasons, I prefer the evidence of the applicant with respect to what happened on the evening of November 6, where it conflicts with that tendered by Ms. Celestini; Craig Underwood and in particular over the evidence of the personal respondent. The evidence of J.D. was generally consistent with that of the applicant and it was both credible and for the most part reliable; where it conflicts with the evidence of the personal respondent, Ms. Celestini or Craig Underwood, I prefer the evidence of J.D.
Factual Findings
31The applicant was employed as a server. She is 24 years old. She testified that she was offered full time work by the respondents but was quite confused about what this meant. I find that she was offered part time work with hours up to full time when demand required it. As the respondents’ records indicate, she worked part-time hours up to more than 30 hours per week in her short tenure with the respondents. She worked evenings for the most part during the first period of her employment but after the incidents described in the Application, she did not work after 8:00 pm.
32The respondent Yearwood is 23 years old. He was new to the business of running a restaurant in October 2013 and as indicated the restaurant opened in mid-October 2013
33On the night in question, the applicant was scheduled to work from 4:00 p.m. to 11:00 p.m. The applicant testified that it was a busy night during the dinner rush but it quieted down after that and by the end of the evening it was very quiet. Although her scheduled departure time was 11:00 p.m., the applicant testified that she would often stay later to help clean up. The respondents did not dispute any of this evidence.
34The applicant testified that she had been told by a server that the respondent Yearwood had been in earlier in the day but was drunk and was sent home by his father who was also present that day. She does not recall when he later attended at the restaurant but understood that he was present and was drinking at the bar with a friend at some point in the evening. The respondents’ evidence is that the respondent Yearwood arrived between 7:00 and 7:30 p.m.
35The respondent Yearwood testified that he worked long hours. He testified that he got up at 5:00 a.m. that day to go hunting. He then attended at the restaurant for lunch and was there from about 11:30 until 2:00 p.m. He testified that he then went out hunting again until 5:00 p.m. He went home, changed and showered and then attended the restaurant to have dinner, arriving between 7:00 and 7:30 p.m.
36As previously discussed, there are problems with the respondents’ evidence, particularly that of the personal respondent. It would be very difficult to determine on the basis of the respondents’ evidence with any clarity what the respondent Yearwood did with his time that evening and more importantly when he did it. He testified that he attended the bar with a friend and had a couple of beers. He later testified that he had two Strongbows, which is cider. His father testified that he knew the personal respondent only had two beers because he served him. It is not clear why this confusion about whether the personal respondent was drinking beer or cider. It also does not follow that because Mr. Yearwood served him two beers that he was not served something else by the bartender on duty that evening.
37The personal respondent testified that he went to the kitchen to order a steak and hang out with J.D. He claims to have been in the kitchen area for 10 minutes or so while his steak was being cooked. It is at this point in the evening that the personal respondent claims that the whipping incident occurred. Significantly in my view, J.D. has no recollection of cooking a steak for the personal respondent and contradicted his evidence about the timing of the whipping incident as discussed above. I also note again that while Ms. Celestini testified that she was supervising the personal respondent closely at this time because he was not allowed to be in the kitchen, she testified that she did not see the whipping incident.
38The applicant testified that the personal respondent came in through the back kitchen where the servers would be polishing cutlery, etc. and “slapped her butt and kept walking” the applicant testified that she said to him “what are you doing, don’t do that” and then he walked by her again and slapped her on the buttocks again. The applicant testified that she then told him his actions were not appropriate and not to do it again. The applicant testified that later when she knelt down into one of the fridges, he came over beside me and rested his penis on her shoulder. The applicant testified that she elbowed him back and told him to stop. Then when she was working at the salad bar, he came up behind her and rested his “penis area” on her lower back. She conceded in cross examination that given their relative heights this would have been awkward for him. She responded that if felt awkward.
39The applicant testified that the personal respondent followed her into the dish pit area and she said to him “you know my boyfriend is a police officer, you need to stop” to which he responded “ya but he’s not here right now.”
40The applicant also testified that he whipped or “snapped” her with a towel. She testified that she “kind of yelped” to which he responded “is that as loud as you can scream? I am sure I can make you scream louder later”. The applicant testified that he whipped her twice.
41She testified that she took one of the salad dressings into the back fridge and he followed her and “stood in the doorway staring at her”.
42She testified that most of these incidents occurred with no witnesses, although the applicant testified that H.B. was present when the personal respondent slapped her on the buttock the first time. She remembers H.B. said if he keeps bugging you just go home. J.D. confirmed that he saw the applicant and H.B. talking, apparently about the personal respondent. Although he could not hear what they were saying, he suggested that the conversation was not negative. The applicant also testified that the dishwasher would have overheard the conversation about the applicant’s boyfriend being a police officer – she does not know the dishwasher’s name. He did not give evidence.
43The applicant testified that these incidents occurred after most of the other servers had left. She believes, based on her recollection of the events in relation to her leaving at 11:00 p.m., that they occurred between about 10:30 p.m. and 11:00 p.m. The respondent’s records indicate that serving staff began leaving at 8:00 p.m., with all but the applicant, H.B., and one other, M.G., gone by 9:15 p.m. M.G. left at 10:40 p.m. These records also confirm that the applicant signed out at 11:00 p.m. and confirm her evidence that H.B. was intended to close that night and was still present. The records indicate that H.B. signed out at 12:20 a.m. I note again that J.D. believed that the whipping incident occurred about 10:30 p.m. and Craig Yearwood testified that he drove the respondent home between 11:00 p.m. and 11:30 p.m.
44The applicant testified that she had enough by about 11:00 p.m. She testified that this was her scheduled departure time but often times she would stay a bit longer to help out as required. In any event, she left work at 11:00 p.m. She testified that on her way out she was on the lookout for the personal respondent but found him lying in a booth apparently asleep. She took a picture. This evidence, including of its timing, is supported by J.D. who testified that the picture was taken after the other interactions in the kitchen.
45I heard other versions of the picture taking incident from Ms. Celestini and Craig Yearwood, who testified that a “bunch of them” came out including the applicant and they were laughing and joking about the personal respondent. Ms. Celestini identified a number of individuals by name who were present, including a server who signed out at 9:15 p.m. J.D. who claims to have seen the picture taking said nothing about anyone else being present. I accept the applicant’s evidence on the timing of the picture taking.
46Craig Yearwood testified that he was in the restaurant that evening. He testified that he observed the personal respondent attend at the restaurant, he was helping behind the bar and when not at the bar, he was in the booth near the area of the kitchen which he was able to observe because it is an open kitchen. He testified that he heard and saw nothing. He testified that he went back to get coffee for himself a couple of times and the personal respondent was there when he went back each time. He testified that the applicant took the picture and said, “there is my Christmas present.”
47As outlined above Ms. Celestini gave evidence that she saw nothing untoward.
48I find that based on the evidence of J.D. and the applicant, more was going on that night than Craig Yearwood and Ms. Celestine were aware of or the personal respondent has admitted to.
49The personal respondent denies everything but the whipping of the applicant. His evidence is contradicted by J.D. on a number of key issues. There are also either inconsistences or contradictions between the personal respondent’s evidence and that of the respondents’ other witnesses as discussed in detail earlier. I do not accept his evidence about what occurred that evening.
50I find that these incidents occurred between 10:30 and 11:00 p.m. I find that the presence of the personal respondent in the kitchen area described by Ms. Celestini and Craig Yearwood took place earlier in the evening but that he returned; where he engaged in the course of conduct described by the applicant in her evidence.
51In my view, the evidence establishes that the personal respondent slapped her on the buttocks on two occasions. I find that she asked him to stop on both occasions. I also find that the personal respondent entered the applicant’s personal space on two occasions and made contact with her body with his groin. I find that she made it clear that this attention was unwanted. I find that the personal respondent whipped her with a towel and when she screamed said that he could or would make her scream louder later having earlier reminded her that her boyfriend was not there. I also find that the respondent stared at the applicant in a way that, in the context of these other events, she reasonably found intimidating.
52The only serious question about her evidence in this regard relates to the whipping incident and whether she was whipped twice by the respondent Yearwood or once by him and once by another employee. Either way, I note that the whipping incident was acknowledged in part by the respondent Yearwood, to the extent that he conceded whipping the applicant once. I would also observe that, J.D.’s evidence with respect to this incident was less emphatic than on other elements of the story. When describing other observations over the course of the evening he said, “I saw this” or “I saw that”, but in relation to this incident he said “I believe” that the personal respondent whipped the applicant and then “I believe” that R.D. whipped her as well. He was clearly less certain about this incident. I find that the applicant was whipped by the personal respondent. It may be that she is mistaken about being whipped twice by the personal respondent and that as indicated by J.D. it was the other employee who struck the second blow. It makes little difference either with respect to the respondent Yearwood’s liability for whipping her or my assessment of her credibility in relation to her testimony. Her overall credibility is not damaged because the applicant may not have seen who struck both blows and so while honestly believing it was the personal respondent was simply mistaken.
53The respondent argues on the basis that the personal respondent may have whipped another male employee during this incident that this is not sex discrimination. I do not agree. Although I do not necessarily accept the respondents’ evidence, it is also the case that as described by the personal respondent this interaction may have been consensual between the two men. However, for the applicant it was not. The personal respondent testified that she walked by and he whipped her. He does not suggest that she consented to it. Similarly, even if I was to accept that she whipped him back in response, and there is no credible or reliable evidence that she did, that does not negate the fact that the personal respondent performed the act in the course of his discriminatory treatment of the applicant that evening because she was a woman.
54I turn now to consider the other main elements of the respondents’ response to the allegations of the applicant.
The Picture
55The picture taking was at the heart of the owners’, the personal respondent’s and J.D.’s theory that this Application was a cash grab by the applicant; a theory put forward to undermine the credibility of the applicant’s overall testimony. The applicant testified that on her way out she saw the personal respondent “passed out” in a booth in the bar area. The applicant testified that she took the picture to protect herself in the event that she lost her job. She wanted to ensure that if she “called” the personal respondent on his behaviour that she had some evidence that would support her version of events. The applicant’s explanation for the picture is plausible.
56Ms. Celestini, Craig Yearwood and J.D. each testified that the picture was taken under different circumstances although; neither Ms. Celestini nor Craig Yearwood said when they thought it might have been taken. The evidence of J.D. however is clearly consistent with that of the applicant in one respect; that the picture was taken when the applicant says it was, at or shortly after 11:00 p.m., and accordingly when one individual identified as being there by Craig Yearwood would have left. Craig Yearwood and Ms. Celestine both testified that others were present when it was taken and there was much joking about the personal respondent being passed out in the booth. The applicant was not really asked about this but gave the impression in her evidence that no one was present when the picture was taken.
57Craig Yearwood and J.D. both testified that the applicant made some connection between the picture and Christmas – Craig Yearwood testified that she said the picture would make a nice Christmas card, then he said gift. J.D. testified that the applicant said it was her Christmas present. The applicant denied that she said any of these things.
58In my view, the taking of the picture is neither here nor there and establishes nothing more than that the personal respondent was asleep in a booth at some point, most likely at around 11:00 p.m. This may be odd behaviour but it does not really bear on any of the issues in this case. I do not accept the respondents’ view that this was a “set up” of the personal respondent by the applicant. Even if the applicant did refer to the picture as a Christmas present or a Christmas card, that fact alone is insufficient in all the circumstances to support an inference that, the entire complaint of the applicant was fabricated for the purpose of achieving some financial gain at the expense of the respondents.
What did the applicant tell the owners?
59As previously indicated, the applicant was very vague about what she told the owners about the events of November 6, 2013. I find that she was so vague in her evidence because she did not tell Ms. Celestini anything other than the fact that her son had whipped her with a towel.
60The central factual dispute in this regard relates to the applicant’s allegation, which is not in the Application, that she asked that she not be scheduled to work with the personal respondent. The applicant testified that Ms. Celestini said that would be fine. Ms. Celestini testified that the applicant asked not to work nights because she lived in Kingston. As indicated, the applicant testified that she came in to work and saw that she was scheduled to work with the personal respondent and decided to quit at that point, after working four or five shifts. The respondents witnesses, all testified that the applicant would have been scheduled to work at the same time as the personal respondent, as he was the general manager.
61I find that the applicant did not ask that, she not be scheduled to work at the same time as the personal respondent. I find that had she made such a request, the issue of what had happened that night would have come to a head because Ms. Celestini would have some difficulty in complying with the request given that the personal respondent was the general manager. I find that the applicant did ask to not be scheduled to work after 8:00 p.m. to limit her exposure to the personal respondent and may have intimated something like this to Ms. Celestini, but again I accept Ms. Celestini’s evidence that no express request not to be scheduled with the personal respondent was made.
62It follows that the applicant did not quit her job because Ms. Celestini reneged on their understanding. Given that the applicant stated that this was the reason for her leaving, I am left with no direct evidence about why she chose to leave her employment. On this point, I note that the applicant knew that a complaint had been made to the franchisor and that a district manager was present in the workplace investigating the complaint. That is, there was someone outside of the store in which she worked who might have been able to remedy the circumstances she found herself in.
63On the other hand, I have found that the general manager of the restaurant engaged in a course of discriminatory conduct towards the applicant. He knew what he had done. It is also reasonably clear from the evidence, and on a balance of probabilities, I do find that the owners knew that something inappropriate had gone on between the applicant and the individual respondent but they hoped that it had been sorted out. The owners limited knowledge of the specific events was reasonably a function of what they had not been told by the applicant, their knowledge that a complaint had been made and the personal respondent was being monitored by the franchisor for some type of inappropriate conduct and what I conclude was a false account by the personal respondent to the owners.
Liability
64The personal respondent’s conduct amounts to both discrimination on the basis of sex in employment, as well as harassment on the basis of sex in employment and he is personally liable.
65Section 46.3 of the Code makes an employer vicariously liable for any act or thing done by an officer, official, employee or agent. This vicarious liability provision does not apply to harassment in employment. However, there is long-established case law at this Tribunal supporting that liability for harassment by an employee can be imposed on an organization respondent where the harassing employee forms part of the “directing mind” of the organization respondent, on the basis of the “organic theory of corporate liability”: see, among others, Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583; Strauss v. Canadian Property Investment Corporation (No. 2), 1995 CanLII 18191 (ON HRT), 24 CHRR D/43 at para. 55; and Ghosh v. Domglas (No. 2), 1992 CanLII 14247 (ON HRT), 17 CHRR D/216 at para. 54. As general manager for the organizational respondent, the respondent Yearwood falls well within the scope of “directing mind” and accordingly, regardless of the scope of direct knowledge the owners of the corporate respondent had of the discriminatory and harassing incidents, the organizational respondent is liable.
Remedies
66The remedial provisions of the Code are set out in section 45.2 (1) which provides as follows:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
67For the reasons set out above, I have found that the actions of the respondent Yearwood constitute discrimination and harassment under the Code and that both the personal and organizational respondents are liable for these breaches of the Code. I see no reason that the respondents should not be held jointly and severally liable.
68In her Application, the applicant indicated she was seeking $30,000 in general damages.
69In assessing the appropriate compensation for injury to dignity, feelings and self-respect, there are two main considerations: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880. In Arunachalam the Tribunal reviewed at paras. 52-54 the development of its approach to the assessment of damages:
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, 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.
70The considerations discussed in Sanford v. Koop are:
a. Humiliation experienced by the complainant;
b. Hurt feelings experienced by the complainant;
c. A complainant’s loss of self-respect;
d. A complainant’s loss of dignity;
e. A complainant’s loss of self-esteem;
f. A complainant’s loss of confidence;
g. The experience of victimization;
h. Vulnerability of the complainant;
i. The seriousness, frequency and duration of the offensive treatment.
Non-Pecuniary Losses
71In my view, a damage of some significant amount is warranted here. On the basis of evidence before me, the applicant was subject to unwanted sexual attention from the personal respondent, on the evening in question for approximately 30 minutes. He slapped her twice on the buttocks and entered her personal space, making physical contact with her that was similarly unwanted and amounted to sexual touching. He also whipped her with a towel on one occasion; made several comments and finally stared at her in a manner which she found, and I find were, sexually intimidating. The personal respondent’s behaviour that night was, in a word, appalling.
72The applicant testified that she was sad, upset, anxious and disgusted. She felt like she could not stand up for herself. She testified that she felt somewhat distant from her family and friends and did not participate in sports to the extent that she had. She testified that she was diagnosed with depression and that a pre-existing anxiety disorder was exacerbated by these events. A medical note post-dating the filing of the Application was filed but otherwise no medical evidence was tendered about the effects of these events on the applicant.
73In other cases involving serious sexual misconduct in employment, the damages awards have ranged up to $30,000. See for example Birchall v. Andres, 2013 HRTO 1469.
74One of the issues to affecting the quantum of damages is whether the conduct complained of culminated in a termination or a finding of constructive termination. I am unable to make a specific finding about why the applicant chose to leave this job and return to her former workplace, or that, despite the seriousness of the conduct, her departure in the specific circumstances of this case supports a finding of constructive termination. I have found that the applicant did not tell the owners or the franchise anything about what happened, despite her knowing that a representative of the franchisor was on site and investigating a general complaint about sexual harassment in the workplace. Although this does not vitiate the liability of the respondents with respect to the specific incidents of discrimination and harassment, for the reasons set out above, it is a factor going to whether a finding of constructive termination is warranted. More significantly I am left, because of my findings about the applicant’s actions after the incidents of sexual harassment and my findings with respect to the organizational respondent’s limited knowledge of these incidents, with no explanation for why the applicant attended at work for several shifts and then left. I can speculate but in the end there is no evidence about why the applicant chose to abandon her employment when she did. I have also found that the organizational respondent was responsive to a request by the applicant around scheduling which at least suggests, had the owners had better knowledge of the significance of the discriminatory incidents, they may well have been willing to take other action to ensure the applicant’s continued ability to work. In my view, my inability to make a finding that the applicant was justified in leaving the workplace significantly reduces the level of damages.
75I have also considered that the applicant, while vulnerable as an employee, was at work in a similar workplace and working at least as many hours within a matter of days.
76Taking into account the objective nature of the conduct and the other factors discussed above, it is appropriate to award damages in the amount of $17,000 for injury to the applicant’s dignity, feelings and self-respect.
Pecuniary Losses
77The applicant has made a claim for lost wages being the difference in wages between what she might have earned with the respondent employer and what she did earn in the year following the incidents described above.
78The respondents argued that there was no evidence of wage loss. I agree. As discussed above, the applicant found work very quickly. Indeed, it is possible that she was never out of work although; her hours with the other employer may have been dramatically reduced. However, the records indicate that within two weeks of leaving this workplace, she was working more hours than she ever did with the respondents. In the circumstances, there is no basis to conclude that the applicant experienced any wage loss.
79I also note that because I am unable to make a finding about why the applicant left the respondents’ employ, it is not clear that an award of wage loss would be appropriate for this reason as well.
ORDER
80The Tribunal makes the following Orders:
a. The respondents will pay to the applicant, on a joint and several bases, the sum of $17,000 in damages inclusive of interest for injury to dignity, feelings and self-respect arising from the violations of her rights under the Code.
b. The applicant is entitled to post judgement interest in accordance with the Courts of Justice Act on any amounts awarded to the applicant and still owing to the applicant 30 days after the date of this Decision.
Dated at Toronto, this 28th day of July, 2015.
“Signed By”
David Muir
Vice-chair