Arora v. A-1 Bags & Supplies Inc., 2015 HRTO 1557

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simple Arora Applicant

-and-

A-1 Bags & Supplies Inc. o/a A-1 Cash and Carry Respondent

DECISION

Adjudicator: Douglas Sanderson Date: November 18, 2015 Citation: 2015 HRTO 1557 Indexed as: Arora v. A-1 Bags & Supplies Inc.

APPEARANCES

Simple Arora, Applicant Self-represented

A-1 Bags & Supplies Inc. o/a A-1 Cash and Carry, Respondent Joanne Lagoudis, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of sex, including sexual harassment and sexual solicitation or advances.

Background

2The applicant worked for the respondent as an Accounts Payable Clerk from April 2012 to June 24, 2014. In the Application the applicant alleges that a co-worker named Randon subjected her to sexual harassment and sexual solicitation from sometime in early 2013 to sometime in early 2014. In the Application and more fully in her Reply, the applicant states that she resigned her employment because of mistreatment by a different co-worker, named Nindiya. The respondent filed a Response in which it denied the applicant had been subjected to sexual harassment or advances, and, in any event, the applicant never complained to the respondent about such behavior. The respondent stated that the applicant had difficulty getting along with her co-workers and was not on speaking terms with at least six other employees at the time she resigned her employment.

The hearing

3At the outset of the hearing, I summarized the apparent issues in this Application with a view to providing guidance to the parties, the self-represented applicant in particular, regarding the evidence likely to be helpful to me in determining the Application. Among the issues was the issue of the respondent’s liability for sexual harassment or solicitation allegedly experienced by the applicant in light of section 46.3(1) of the Code. Pursuant to section 46.3(1), an employer is not vicariously liable for acts of sexual harassment or solicitation committed by an employee.

Preliminary Issue

4The respondents submitted that the Tribunal should have no regard to the Reply because it was filed after the deadline set out in the Tribunal’s Rules of Procedure and it appears to purport to add a party, i.e., Randon Ysidro, the alleged perpetrator of the sexual harassment/solicitation against the applicant. The applicant submitted that at the time she filed the Application she received advice from the Tribunal Case Processing Officer managing the file to the effect that she should name only her employer as a respondent. On this point, I note first that the Tribunal’s staff does not provide advice to parties beyond administrative direction. Second, the applicant explicitly stated why she selected her former employer as a respondent at section 20 of the Application Form “Other important information Tribunal Should Know”. In that section, the applicant stated that she selected the option of “Organizational Respondent” because she did not know the full name or contact information of “Randon”, the alleged perpetrator. The applicant further stated in that section that she understood she would receive this information about Randon from respondent after the Application was sent to it. The respondent did in fact identify Randon Ysidro as the alleged harasser and indicated that he remains in the respondent’s employ. The applicant explained that she named Mr. Ysidro in her Reply because he was one of the employees mentioned in the respondent’s Response. The applicant submitted that her intent was to name only her former employer as a respondent.

5The applicant requested that I allow her to amend her Application to add Mr. Ysidro as a personal respondent after learning that his employer is not vicariously liable for sexual harassment/solicitation by its employees. I denied this request, as, on the face of the Application, the applicant understood that she could proceed against Mr. Ysidro and intended to do so once she received his full name and contact information. The applicant received this information from the Response, but, as she acknowledged, took no action to amend the Application until the day of the hearing. In my view, such a late request was unfair to both the proposed respondent and the respondent and, consistent with the Tribunal’s jurisprudence regarding requests to amend made late in proceedings, I denied that request. The hearing proceeded, and the applicant testified with the assistance of a Hindi interpreter on an “as needed” basis.

The Applicant’s Evidence

6The applicant testified that she began to work for the respondent, which is a wholesaler in the restaurant industry, on or about April 24, 2012, in sales. The applicant’s evidence was that she was dismissed about two weeks later because of the uncooperative behavior of Nindiya Khurana. The applicant stated that she called Rifat Parvaiz, the respondent’s president, for another chance and Mrs. Parvaiz agreed to hire her as an Accounts Payable Clerk.

7The applicant’s evidence was that her issues with Mr. Ysidro began in January or February 2013. The applicant testified that the incidents began in the lunch room, but only when she was alone. The applicant stated that there was no fixed time to take lunch. Mr. Ysidro, who was a forklift driver working in the warehouse, often took his lunch in the lunch room for office employees, to which no one objected. The applicant’s evidence was that Mr. Ysidro attempted to engage the applicant in conversations about her personal life when they were alone in the lunch room. According to the applicant, Mr. Ysidro informed her that she needed “love” to be happy. The applicant stated that she did not respond to this comment and was not sure what he meant by “love”. The applicant’s evidence was that Mr. Ysidro gradually began to make more personal comments to the applicant, as he would tell her that he liked her, that he loved her and began to compliment her on her appearance and demeanor. The applicant stated that on one occasion Mr. Ysidro told the applicant that she was the nicest lady he had met in his life and advised her that she could share her personal life and problems with him and he would do his best to help her. The applicant’s evidence was that Mr. Ysidro would make these kinds of comments whenever they were alone in the lunch room, but never when anyone else was present. The applicant stated that she never gave Mr. Ysidro much of a response and never said anything to encourage him to say more. The applicant’s evidence was that Mr. Ysidro would end conversations by saying that he had no “bad feelings” for her.

8The applicant testified that, sometime between January and June 2013, Mr. Ysidro praised the applicant’s clothing, although she considered herself to be dressed in an average manner. The applicant stated that he seemed to be praising her for nothing, which made her think that he was interested in her. The applicant also testified that Mr. Ysidro began to comment her about her eyes, usually when she had to go into the warehouse to speak to him about an invoice. She estimated that this occurred about once every two weeks. The applicant’s evidence was that when they concluded their discussions about work, Mr. Ysidro would make comments to the fact that he likes looking into her eyes, her eyes are beautiful or that he loves her. According to the applicant, Mr. Ysidro would conclude his comments by saying “you know what I mean”. The applicant stated that this made her feel uncomfortable. The applicant stated that Mr. Ysidro would often encourage her to stay to talk to him when she was in the warehouse, rather than returning to her workstation immediately. The applicant stated that she interpreted these comments to mean that Mr. Ysidro was interested in her sexually.

9Later in the year (sometime between September and November 2013, in the applicant’s estimation), the applicant was not feeling well and was making tea for herself in the lunch room. Mr. Ysidro was present. According to the applicant, Mr. Ysidro stated that he would do anything for the applicant because he loves her and offered to buy medicines for her. The applicant’s evidence was that she felt ashamed by the suggestion that she could not afford to buy her own medicine and did not respond. The applicant stated that in the same time period, September to November 2013, Mr. Ysidro would often tell her that she “needed love”. The applicant testified about another occasion when she was looking out of the window of lunchroom after finishing her lunch. Mr. Ysidro came into the lunch room and when the applicant did not look at him or speak to him, he asked why she was so quiet and sad. According to the applicant, she had no reason to speak to him and therefore asked “Why do I have to talk to you”. Mr. Ysidro replied that he did not intend to anger her and ate his lunch without further conversation. The applicant testified that sometime in January 2014, she was exiting the warehouse when Mr. Ysidro asked if he could hug her. She asked him why and he said that he needed a hug “just a friend, no bad feelings” and noted that he was always nice and helpful to her. The applicant’s evidence was that she allowed Mr. Ysidro to hug her, but kept her arms crossed. The applicant stated that she asked him what he meant by “bad feelings” and why he never made comments such as “I love you” in front of others. According to the applicant, Mr. Ysidro responded that he did not want to damage her reputation or image, ending with “you know I mean”. The applicant interpreted this to mean that Mr. Ysidro was asking her for sex

10The applicant testified that in February 2014, she was fasting and did not spend as much time in the lunch room. The applicant stated that she was making tea in the lunch room for Mrs. Parvaiz between 3 and 4 p.m. The applicant was alone with Mr. Ysidro, who stated that she needed love from someone other than her husband. The applicant stated that she took this to be a request for sex and was “completely pissed off”. The applicant did not say anything and left the lunchroom with the tea. The applicant’s evidence was that she decided that if Mr. Ysidro made similar comments again, she would have her husband complain to Armjad Parvaiz, the respondent’s vice-president.

11In cross-examination, the applicant acknowledged that she never complained to Mrs. Parvaiz or anyone else in the company. The applicant stated that she was not sure how Mrs. Parvaiz would deal with a complaint.

12The applicant’s evidence was that Ms. Khurana continued to create problems for her in her role in accounts payable. For example, the applicant stated that Ms. Khurana did not give her full pricing information, which is needed for purchase orders. The applicant stated that Ms. Khurana threatened her job and escalated her lack of support with respect to providing accurate and timely information for purchase orders. The applicant’s evidence was that she often went back and forth between different employees responsible for purchasing to get information and sometimes resorted to calling suppliers directly. The applicant stated that she was held to a higher standard than other accounts payable employees and Ms. Khurana assigned her duties, such as taking customer calls, outside of her responsibilities. The applicant’s evidence was that on June 24, 2014 there was a further incident regarding a supplier’s invoice. According to the applicant, the invoice had not been processed properly and she asked Ms. Khurana to clarify the pricing information. The applicant and Ms. Khurana took the dispute to Mrs. Parvaiz. The applicant stated that Ms. Khurana blamed the applicant for the situation and did not allow the applicant to say much. Mrs. Parvaiz directed them both to go home if they could not speak peacefully. The applicant tried to speak, but Ms. Khurana did not permit her to. The applicant then stated that she was quitting and punched out and entered her time on the timesheet. The applicant confirmed that she resigned because of Ms. Khurana’s behaviour towards her. I asked the applicant how Ms. Khurana’s behaviour was connected to a prohibited ground of discrimination. The applicant replied that Ms. Khurana was jealous of her because she was better than Ms. Khurana in her work.

Request to Dismiss

13At the conclusion of the applicant’s evidence, the respondent requested that the Tribunal dismiss the Application. The respondent submitted that the applicant had not established any complaint under the Code against Ms. Khurana and did not establish that Mr. Ysidro sexually harassed her. The respondent submitted that it is not in any event vicariously responsible for the acts of sexual harassment or sexual solicitation committed by Mr. Ysidro. Further, the applicant never advised the respondent of any sexual harassment or solicitation; therefore, it was never in a position to investigate and address such behavior.

14The applicant acknowledged that she never mentioned Mr. Ysidro’s behaviour towards her. The applicant submitted that she was working hard to prove herself to the respondent and the sexual harassment she experienced added to the pressure she felt.

15I reserved my decision regarding whether the Application should be dismissed without hearing evidence from the respondent.

Analysis and Decision

16The pertinent Code provisions are as follows:

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.

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.

17Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

18The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities. See Peel Law Association v. Pieters, 2013 ONCA 396 at paragraph 83. 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.

19Pursuant to Rule 19A, the Tribunal may hold a summary hearing to determine whether an Application should be dismissed for having no reasonable prospect of success. The approach to deciding whether an Application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the Application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the Application must be dismissed following the summary hearing.

20The Tribunal has stated on several occasions that it does not have the power to deal with general allegations of unfairness. An applicant must present evidence that the respondent’s actions are connected to a prohibited ground of discrimination. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at paragraph 17.

21The Tribunal usually holds summary hearings at an early stage in a proceeding. However, In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal concluded that the criterion of no reasonable prospect of success is not limited to the initial early stages of the Tribunal’s process and can be applied during a hearing after some, but not all, of the expected evidence has been heard. When the evidence that has been called and is proposed to be called makes it clear that the Application has no reasonable prospect of success, the Application should be dismissed.

22In this case, the applicant’s main allegations are that Mr. Ysidro sexually harassed her and made sexual advances or solicitations towards her contrary to sections 7(2) and 7(3) of the Code. For the reasons set out above, Mr. Ysidro is not a respondent to the Application and, pursuant to section 46.3(1) of the Code, the respondent is not vicariously liable for acts of sexual harassment or sexual solicitation or advances committed by an employee. The Tribunal has found, however, that employers have a duty to ensure that workplaces are free of discrimination and harassment contrary to the Code. Pursuant to this duty, employers are obliged to take reasonable steps to address complaints of workplace human rights violations, including sexual harassment and sexual solicitation and that failure to meet this obligation may amount to a Code breach. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. An employer’s obligation to address allegations of workplace sexual harassment and solicitation is triggered when the employer is made aware of the allegations, usually as the result of a complaint. In this case, the applicant admitted that she never complained to the respondent about Mr. Ysidro’s alleged actions and she presented no other evidence that could support the conclusion that the respondent was aware of his behaviour. Consequently, there is no evidence that the respondent’s duty to address the workplace harassment and solicitation allegedly experienced by the applicant was triggered. In these circumstances, the applicant has no reasonable prospect of establishing that the respondent did not meet its duty to ensure a discrimination and harassment free workplace.

23The applicant’s evidence made clear that she found her relationship with Ms. Khurana to be difficult. Assuming the applicant’s evidence is true, then it would appear that Ms. Khurana treated the applicant unfairly. As noted above, the Code does not prohibit simple unfairness. The applicant was required to present evidence connecting Ms. Khurana’s actions to a prohibited ground of discrimination to establish that her behaviour amounted to a breach of the Code. The applicant presented no such evidence and, as a result, I find that the applicant’s allegations against Ms. Khurana have no reasonable prospect of success.

24The Application is dismissed.