HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adria Panucci
Applicant
-and-
Seller’s Choice Stockdale Realty Ltd. and Ronald Christopher Stockdale
Respondents
DECISION
Adjudicator: Jay Sengupta
Indexed as: Panucci v. Seller’s Choice Stockdale Realty Ltd.
APPEARANCES
Adria Panucci, Applicant
Derek Janzen, Counsel
Seller’s Choice Stockdale Realty Ltd. and Ronald Christopher Stockdale, Respondents
Gerry Smits, Counsel
Introduction
1This is an Application filed under section 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 and sexual solicitation by a person in a position of authority and able to confer a benefit.
2The respondents deny discrimination or harassment and that the applicant was subject to sexual solicitation or advances and seek dismissal of the Application.
3During the course of the hearing, which was held over a number of days in Hamilton, I heard from the applicant and a former colleague, Carrie Monahan, on behalf of the applicant and from the personal respondent, Chris Stockdale, on behalf of the respondents.
4For the reasons that follow, this Application is granted.
the law
5The relevant sections of the Code are as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
7(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
- 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;
45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
45.2(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
the evidence
6The respondent business is a real estate brokerage operating in the City of Brantford. The applicant was a self-employed commission salesperson working under the supervision of the personal respondent, who was and remains the broker of record at the respondent brokerage firm. The applicant worked at the brokerage firm from 2007 until she resigned in October, 2012.
7By all accounts, the working relationship was good until 2012. Beginning with a seasonal holiday party in late 2011 or early 2012, when the applicant alleges the personal respondent made a comment about the lipstick she was wearing and remarked on how well she looked, the relationship between the parties began to worsen, from the perspective of the applicant.
8She gave evidence that following the initial comment about her appearance, the personal respondent continued to make comments about her appearance that made her uncomfortable.
9The applicant says that the personal respondent made numerous inappropriate comments to her about her looks in 2012; that he persistently asked her to spend more time with him, drink wine with him, and give him hugs; that he touched her shoulder in a caressing manner on one occasion; and that he tried to kiss her.
10She says he began to ask her for physical contact, specifically hugs, as a condition of assisting her with her work. On one occasion she testified that she needed his help to write a letter and when she came to the office, he had the lights dimmed and wine laid out for them. While she was typing out the letter, she says he stood behind her and caressed her hair.
11The applicant testified that she told a co-worker, Carrie Monahan, about her problems with the personal respondent’s conduct and that Ms. Monahan told her that she had also had an uncomfortable encounter of a similar nature with the personal respondent. In the summer of 2012, the two of them conducted an exchange of text messages commiserating with each other and remarking about the ways in which they found the personal respondent’s behaviour unwelcome.
12She also says she told the personal respondent that his attentions were unwelcome and that he should stop treating her in this way.
13The applicant said that she had trouble continuing to work with the personal respondent after she spoke to him about his offensive behaviour. From her perspective, he no longer assisted her with getting new listings and did not provide as much guidance after she confronted him about his conduct and rejected his advances.
14She says she finally decided that she could not continue in this way and decided to resign. She met with the personal respondent on one final occasion, accompanied by her husband. The personal respondent demanded that she sign a promissory note for monies he claimed were owing to the brokerage. She refused to sign, citing the problems she had experienced, and, following an argument, she and her husband left.
15The applicant testified that she went to the police and reported the personal respondent’s conduct. She also stated that there was a police report in the Application documents filed when initiating this proceeding. However, she did not provide the respondents with a copy of the police report; nor did she present it as evidence during the hearing into this matter. She provided no explanation for this omission.
16The applicant then received a number of letters from the respondents seeking repayment of monies allegedly owing to the brokerage. She has refused to pay the monies as she takes the view that she does not owe the monies claimed, in light of the treatment she experienced from January through October, 2012.
17She gave evidence that she had to seek medical help, specifically that she underwent counselling, to deal with existing mental health conditions as a result of what she was experiencing and the treatment that she endured at the respondent business.
18However, she did not produce any testimonial or documentary medical evidence to support this assertion. During the course of the hearing, she was provided the option of adjournment of the hearing to allow her time to gather and present the evidence in question but she elected to proceed without that evidence, citing privacy concerns relating to her medical records.
19Not surprisingly, the personal respondent’s evidence of the relationship between the parties and the events of 2012 differed significantly from the applicant’s.
20He gave evidence that the business is run in an informal way. He mentors several agents and office staff. He describes his style as casual and friendly. He testified that he treated the applicant in the same way as he did all the other agents and staff at the brokerage. There was a standing joke in the office about putting in a bar and lounge at the office as people spent so much time there. He denies the specific allegation that he suggested a bed be put into the premises.
21The personal respondent gave evidence that he provided the applicant with leads and listings throughout her tenure as a sales agent working out of the brokerage. He insists that nothing changed in 2012. He testified that he often tried to encourage the applicant and mentored her in trying to improve her sales. He paid her compliments and tried to boost her confidence. This is something he did for all the agents.
22The applicant was occasionally short of funds and asked for advances when that happened. In the beginning of May, 2012, she came to him to tell him that she had been counting on money from a sale that was not going through to pay her rent. He gave her an advance and she was very grateful. Further advances were requested by the applicant and paid by him. The last advances were given on July 7 and 26, 2012. He denied her an advance in October, 2012.
23The personal respondent testified that he was not obliged to give advances to agents at the brokerage for sales not yet on the books and, as a result of having given the applicant advances, he is still owed monies. He gave her the advances because he knew that she and her husband were struggling financially and he wanted to help as much as he could.
24He did agree that he and the applicant had hugged on two occasions. One of them was when he agreed to lend her money for her rent in May, 2012 and she hugged him in gratitude. He did not prompt or ask for that contact. The second occasion was when the applicant found out that difficulties relating to a house sale in which she was accused of fraudulent conduct had been resolved with his assistance. On that occasion, he admits that he said “that deserves a hug”.
25It was in relation to the issue of the accusation of fraudulent conduct that the personal respondent testified that he and the applicant met after hours in mid-May, 2012.
26He and the applicant were acting on either side of a house sale; he was representing the buyer, the applicant the seller. There was a suggestion that the applicant had miscommunicated an offer during the negotiation process. An accusation of fraudulent conduct was made in respect of her actions. The applicant needed his assistance in resolving the problem and making an offer to resolve the issue by foregoing all or part of her commission for the transaction.
27The personal respondent testified that the meeting took place in May, not in April as the applicant had suggested in her Application as he had been away on vacation on those dates in April.
28He further testified that the lights would not have been dimmed and he would not have had wine and glasses set out given the circumstances. It was a business meeting to discuss and resolve serious issues that was being held at the request of the applicant.
29The applicant was under stress because of the accusations of fraud that had been levelled against her and needed to respond to a threat to her reputation and livelihood. He said that it is doubly unlikely that he dimmed the lights or put wine out because he would have assumed that the applicant’s husband would be accompanying her because the meeting was after hours.
30The personal respondent says that the light switch was by the door and if the lighting was too dark, she would have been able to switch the light on when entering the room. He denies the lighting was dimmed or that there was any wine in the office. During the meeting he was typing out the letter of support that she had requested he provide her. She said he was going too slowly and took over the typing. He may have put a hand on her shoulder for 5 seconds but denies touching or caressing her hair.
31He denies that the applicant ever told him that anything he was doing made her uncomfortable on that occasion or any other, until the evening she came in with her husband in October, 2012, just before she left the brokerage.
32Carrie Monahan gave evidence that she had an encounter with the personal respondent, during which he hugged her several times, that resulted in her telling him that his behaviour was inappropriate and that he had crossed the line. She subsequently met with him, along with her husband, and the three discussed the problem together. Carrie Monahan testified that she was upset with the personal respondent for most of the summer of 2012, but that the two of them cleared the air, mended their fences and resumed a good working relationship in the fall of 2012.
33Although he does not agree completely with Carrie Monahan’s description of the encounter, the personal respondent does admit that Carrie Monahan told him that she was upset with him about his conduct and agreed that he had discussions with Carrie Monahan and her spouse, Ryan Monahan, about the incident, where he admitted that he had stepped over the line. He made his apologies to both of them and they are still agents working out of the respondent brokerage.
34The personal respondent also testified that in August, Carrie Monahan told him that the applicant was making some serious accusations about him. He says he had a brief conversation with the applicant, during which she said she had heard that the personal respondent and Carrie Monahan had discussed her. He says the applicant apologized if she had done anything to upset him and the conversation ended without a discussion about the nature of the accusations the applicant had allegedly made about him. He assumed that the applicant was upset with him because he refused to advance her any further monies after July, 2012, until she made some sales as he felt she was already significantly indebted to the brokerage.
35He testified that the applicant had been asking for numerous advances and that she had not made much in the way of sales during 2012. He tried to assist her and felt that she could improve her prospects, but it became clear in October that she intended to leave the brokerage.
36When the applicant and her husband came to the office in October, 2012, the personal respondent presented her with a promissory note for the advances that had not been repaid, in the amount of $5,514.62.
37He testified that she refused to sign the promissory note, did not acknowledge the money was owed and claimed he had treated her inappropriately. The applicant’s husband kicked the desk and told the personal respondent that if he did not sign a document forgiving the debt, they would have him “charged” with sexual harassment.
38The personal respondent testified that in the following year, he wrote a number of letters to the applicant in January and February, 2013, seeking repayment of the money and when no payment was made, he wrote off the debt as he made a calculation that it was not worthwhile pursuing payment through the courts as the applicant and her spouse did not have much in the way of resources and he felt he would not be able to collect on any judgement he received.
39He says he received the Application after he sent the letters seeking repayment of the monies owed to the brokerage.
decision
Onus
40The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.
Credibility
41In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) 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. [Emphasis added]
42Accordingly, I have not considered each witness’s evidence in isolation, but rather, in the context of the totality of the evidence. See F.H., above, at para. 58.
In Respect of Employment or Contract
43The Supreme Court of Canada has consistently held that human rights statutes across Canada should be given a fair, large and liberal interpretation to advance and fulfill their purposes of preventing discrimination against identifiable protected groups: see Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.); Action travail des femmes v. Canadian National Railway Company, [1987] 1.S.C.R. 1114.
44As the Board of Inquiry stated in Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON H.R.T.),
Section 5(1) does not state that “no employer shall deny equal treatment to an employee”. Indeed, there is no definition of “employment” in the Code. Rather, section 5(1) involves discrimination “with respect to employment”. “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship. In Canada (Attorney General) v. Rosin (1990), 1990 CanLII 12957 (FCA), 16 C.H.R.R. D/441, the Federal Court of Appeal, in upholding the decision of the Canadian Human Rights Tribunal, stated at D/449:
Remembering the broad and liberal interpretation that must be taken to this type of legislation…[C]ourts have interpreted the words [i.e., “employ” and “employment”] broadly, finding employment relationships to exist in this context where in other contexts they might not have so found.
An infringement of section 5(1) can occur between an employee and other persons who are not “employers” in the traditional sense. For example, a trade union may be held liable in two ways: where it caused or contributed to the discrimination by participating in the formulation of the work rule that has a discriminatory effect on a complainant; or if it obstructs or blocks the efforts of an employer to accommodate: see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at 990-991.
In the Board’s view, there must be some nexus or link in the chain of discrimination between the respondent and the complainant. The Board is satisfied that this nexus “appears” to exist with regards to the parties that it has decided to add in the instant motion. [Emphasis added.]
45Previous Tribunal decisions have found relationships characterized as self-employment or independent contractors under taxation or other legislation to be covered by protection offered under employment provisions of human rights statutes. See Pannu v. Prestige Cab (1986), 1986 CanLII 6476 (AB CA), 8 C.H.R.R. D/3911 (Alta.C.A.); Yu v. Shell Canada (2004), 2004 BCHRT 28, 49 C.H.R.R. D/56; and Szabo v. Poley, 2007 HRTO 37.
46In my view, there is sufficient evidence to conclude that this Application concerns a matter “with respect to employment”. The applicant was required to work within a brokerage setting. While she could have worked out of any brokerage, all of her work was done at the respondent brokerage exclusively and under the supervision and guidance of the broker of record, the personal respondent in this matter.
Sexual Harassment and Sexual Solicitation
47The Code prohibits harassment in the workplace by the employer, agent of the employer or by another employee on the basis of sex (s. 7(2)) and colour, ancestry, place of origin and ethnic origin (as well as other grounds, s. 5(2)). Harassment is defined in subsection 10(1) as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
48In addition to the harassment provisions, the Code also offers protection from sexual solicitations or advances. Section 7(3) states:
Every person has the 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.
Comments about Appearance
49I accept the evidence of the applicant that she was subject to a course of vexatious comments about her physical appearance, and that the personal respondent knew or ought to have known that those comments were unwelcome, contrary to section 5(2) and 7(2) of the Code.
50This finding is bolstered by the admissions of the personal respondent who described his own actions and the atmosphere in the workplace variously as casual and informal.
51He admitted that he often called people “beautiful”, would suggest to people that they “go on a cruise together” and made comments that he considered friendly and supportive, such as telling people they looked nice. He did not consider those comments flirtatious or inappropriate at the time. He apparently saw it as part of his role in boosting the confidence of the sales agents and keeping up morale in the brokerage.
52While I can accept that the personal respondent may have viewed his comments in a benign and positive light, I find it more likely than not that those same comments had an unintended effect on some recipients, as confirmed by the text messages between the applicant and Carrie Monahan, that say they feel that it is “creepy if a man is always hitting on us”.
53In the circumstances of this case, given the correspondence between Carrie Monahan and the applicant about their feelings concerning the day-to-day behaviour of the personal respondent and their clear opinion that it was too familiar and verging on the oppressive, whether or not the personal respondent was told the conduct was unwelcome by the applicant, he ought reasonably to have known that persistent comments about the physical attributes of the people working with him and for him were unwelcome.
54It is also the evidence of both the personal respondent and Carrie Monahan that during the meeting with Carrie Monahan, Ryan Monahan, and the personal respondent, the latter was told by the Monahans that it was their view that he was treating people inappropriately by making comments to them about their appearances and that he should not do so in the future.
55It is clear, therefore, that the personal respondent had actually been made aware that his comments about people’s appearances and other commentary in the workplace that he described as “friendly” or “flirtatious” were unwelcome to some, if not all, the staff and agents at the brokerage.
Allegations about Unwanted Touching
56Carrie Monahan gave evidence that she had an encounter with the personal respondent during which he hugged her several times, which resulted in her telling him that his behaviour was inappropriate and that he had crossed the line. She said she subsequently met with him, along with her husband, and the three discussed the problem together.
57Carrie Monahan testified that she remained upset with the personal respondent for most of the summer of 2012, and recalled that the applicant was as well. She said that she and the personal respondent cleared the air, mended their fences and resumed a good working relationship in the fall of 2012. When Carrie Monahan had another meeting with the personal respondent to reproach him for his conduct in relation to their dealings in the summer, the applicant did not attend and air her own complaints, despite Carrie Monahan urging her to do so and promising her support if she came along.
58The respondents point to this as support for their argument that the alleged harassing conduct of the applicant never happened. They further argued that although the applicant suggested that there was significant and troubling tension between herself and the personal respondent, in July 2012, she was apparently comfortable enough to be able to ask for and obtain a further two advances of money directly from the personal respondent.
59I do not accept the respondents’ argument that I should conclude either that the conduct did not occur or that it was not unwelcome because the applicant did not attend a meeting to confront the personal respondent with Carrie Monahan or because she continued to seek monetary advances during May and July of 2012.
60In Simpson v. Consumers’ Association of Canada, 2001 CanLII 23994 (ON CA), (2001), 57 O.R. (3d) 351 (C.A.); leave to appeal refused [2002] S.C.C.A. No. 83, the Court noted, at paragraph 64, that because of the power imbalance in the supervisor/employee relationship and the perceived consequences of objecting to a supervisor’s behaviour, an employee may go along with unwelcome conduct. While Carrie Monahan may have felt able to confront the personal respondent, the applicant’s reluctance or failure to do so on that occasion does not constitute sufficient reason for me to conclude the conduct did not occur or was welcome.
61In Bell v. Korczak (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd. Inq.), the continued willingness of the complainant to work was found not to constitute acceptance of the harassing conduct. The same reasoning can be applied to the applicant’s willingness to seek or receive compensation.
62A review of the ledgers introduced into evidence by all parties to the litigation establishes that it was not uncommon for agents to receive money from the respondent brokerage by way of advances before sales had concluded. While it may be true that the applicant did not have any sales pending, she did have some current listings and it may be that she had hopes of those materialising into sales producing income in the near future. The applicant seeking an advance, and the personal respondent authorizing payment of the advance is not, by itself, determinative of the issue before me.
63The respondents argued that I should draw a negative inference from the applicant’s failure to produce the police report referenced in her original Application. The applicant testified that she did not have a report, merely an incident number, and that she spoke to the police at the same time that she filed her complaint about the personal respondent to the Real Estate Council of Ontario, a copy of which was introduced into evidence.
64It is apparent that the applicant was reporting her allegations in a number of different fora and the absence of the police report is not determinative of whether the events described took place, as alleged.
65The respondents argued that the applicant’s initial account of the events in question was somewhat self-serving in that she failed to acknowledge or particularize any facts that cast her in an unflattering light or that were inconvenient to her narrative. Specifically, they say that she failed to mention the complaint by the seller and the accusations of fraudulent conduct in May 2012, and the fact that she asked for and received advances from the personal respondent directly in May and July, 2012 resulting in her owing money to the respondents in the amount claimed in the promissory notes and the demand letters subsequently sent by them. They point out that she did acknowledge both in the course of the hearing.
66In contrast, the respondents argued that the personal respondent acknowledged a number of facts that cast him in an unflattering light and that were inconvenient to his defence to the allegations made against him. His account of the occasions on which he had any physical contact with the applicant, they argue, were particularized, cogent and largely consistent, both with his own account through the course of this Application but also with the surrounding events and the testimony of Carrie Monahan.
67I agree that the issues with respect to the applicant’s allegations about unwelcome physical contact such as persistent requests for “hugs”, the occasion when her hair was caressed by the personal respondent, and the occasion when he attempted to kiss her are not as clear or straightforward as the evidence with respect to the unwelcome and unwanted comments.
68The applicant’s evidence is that until 2012 she had no problems but that shortly after the seasonal party, the personal respondent began demanding hugs as a condition of assisting or mentoring her.
69The applicant’s assertion that there were numerous requests for hugs and that professional assistance and mentoring were withheld if physical contact was not acceded to is unsupported by the evidence I have heard. However, I find that there is sufficient evidence for me to conclude that she was subject to one occasion of unwelcome hugging by the personal respondent.
70The applicant’s testimony regarding when, where, and how often she was subjected to requests for a hug by the personal respondent was not sufficiently particularized and was general in nature.
71Carrie Monahan indicated that she had never seen the personal respondent hug the applicant and that she had seen the applicant sitting in the personal respondent’s office for hours talking. Her recollection is that there was no tension or conflict before May, 2012.
72The personal respondent denies the generalized allegation that he was always seeking physical contact from the applicant in the form of hugs or that he withheld professional assistance if she did not comply.
73He testified about the two occasions on which the parties exchanged a hug – the first occasion is described by him as an unsolicited hug when he lent her money for her May, 2012 rent payment and the second occasion during which he said “that deserves a hug” when the allegations of fraudulent conduct about the applicant were averted by a settlement, which he played a part in negotiating.
74I do accept that unwelcome physical contact in the form of a hug did occur on the second of the two occasions described by the personal respondent.
75The evidence before me is that in May, 2012, the applicant had been forced to request an advance to pay her rent from the personal respondent because a sale had fallen through and she was dealing with an accusation of fraud levelled against her by a client.
76Once the complaint against her had been resolved, I find that the personal respondent pressed her for physical contact and intimated that he deserved a hug because of his role in helping resolve the situation.
77I also accept, given the totality of the evidence, that any physical contact with the personal respondent was unwelcome to the applicant and that the personal respondent ought reasonably to have known that it was.
Further Incidents of Unwanted Physical Contact
78The applicant’s allegations concerning the events of May 9, 2012, that she had originally described as happening on April 23, 2012, which involved a meeting after hours with the personal respondent where he had dimmed the lighting, put out wine for both of them to drink and the caressing of her hair while she was typing are difficult to reconcile with the surrounding facts.
79I agree with the respondent that if she had come into a darkened room through the door, it was open to her to turn on the light switch located right near the door. Other than to say there was wine present, she made no further mention of it.
80On that occasion, while the respondent disputes touching or caressing the applicant’s hair, he agrees that he may have touched her shoulder for 5 seconds. It is unclear from his testimony why he touched her at all.
81Accordingly, I find this to be another instance of unsolicited, unwelcome physical contact between the applicant and the personal respondent at a time when both parties concur that the applicant was feeling very upset and vulnerable because she was trying to resolve a problem that could have had serious professional and financial consequences.
82I find that there is insufficient evidence before me to conclude that the personal respondent attempted to kiss the applicant, as she alleged. The applicant’s account was not reliable in that she was not clear as to when and where this incident took place and in the absence of those details, I am unable to find that this incident took place as described.
83There is also insufficient evidence before me to conclude that the personal respondent withheld his mentoring or professional services during the applicant’s tenure at the respondent brokerage. In fact, there is evidence to the contrary that he continued to provide assistance and that the applicant was not excluded from his marketing and business development initiatives.
remedy
84It follows from these findings that the applicant is entitled or remedy for breach of her Code rights. The Tribunal’s remedial authority is set out in section 45.2 of the Code as follows:
45.2 (1) On an Application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the Application has infringed a right under Part I of another party to the Application:
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.
85In the case at hand, the applicant terminated her relationship with this brokerage. I find, on the evidence before me, that her reasons for leaving the brokerage were not solely related to the events that led to this Application. She was not earning much in the way of income from sales to sustain herself and she did not continue in the industry at another brokerage after her departure from this one. In my view, even had it not been for the personal respondent’s conduct, she would not have continued working out of the respondent brokerage.
86The applicant has not made a claim for income loss following her departure from the respondent brokerage but has sought monetary compensation for the injury to her dignity, feelings and self-respect. She also seeks to have the respondents implement a policy ensuring compliance with the Code in the future. Although the applicant also initially sought to have the Tribunal order that the personal respondent provide her with an apology, she subsequently withdrew that request at the hearing.
87An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.
88In Arunachalam v. Best Buy, 2010 HRTO 1880 at paras. 52 to 55, the Tribunal summarized some of the considerations relevant to an assessment of damages to be awarded under s.45.2 of the Code:
I turn now to the relevant factors in determining the damages in a particular case. 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.
These principles are not intended to comment on how the Tribunal would deal with a case where medical evidence shows an extreme degree of suffering in comparison to the nature of the event, a situation which I leave for another day.
89The Tribunal’s decision in Smith v. The Rovers Rest, 2013 HRTO 700, contains the following review of awards by the Tribunal in cases where sexual harassment was found to have taken place in the context of employment:
Recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment have generally made awards ranging from $12,000 to $50,000. See, for example, Chuvalo v. Toronto Police Services Board, 2010 HRTO 2037 ($12,000); Newton v. Toronto (City), 2010 HRTO 1023 ($15,000); S.S. v. Taylor, 2012 HRTO 1839 ($15,000); Chard v. Newton, 2007 HRTO 36 ($16,000); Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000); G.G. v. […] Ontario Limited, 2012 HRTO 1197 ($18,000); Iu v. Markham Marble, 2012 HRTO 65 ($20,000); Harriott v. National Money Mart, 2010 HRTO 353 ($22,500); Hughes v. 1308581 Ontario, 2009 HRTO 341 ($25,000); Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 ($25,000); Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 ($27,000); Sanford v. Koop, 2005 HRTO 53 ($35,000); S.H. v. M[...] Painting, 2009 HRTO 595 ($40,000); M.K. v. [...] Ontario, 2011 HRTO 705 ($40,000); and Smith v. Menzies Chrysler, 2009 HRTO 1936 ($50,000).
In the cases on the low end of the spectrum, the Tribunal generally found that there were few incidents, the incidents were of a less serious nature, and/or the incidents did not include physical touching. In cases on the high end of the spectrum, the Tribunal generally found that there were multiple incidents, the incidents were of a serious nature, there was a serious physical assault, and/or there was a reprisal or a loss of employment related to the incidents.
90The parties also referred me to the Tribunal’s decisions in Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695, and C.U. v. Blencowe, 2013 HRTO 1667.
91While the unwanted comments appeared to have been ubiquitous, the instances of unwanted physical contact were fewer and less serious than that found in some of the cases referenced.
92The applicant testified that the impact of the personal respondent’s conduct on her was severe. She felt under stress while at the brokerage. It tainted her relationships at the firm and with those in it. She felt a loss of self-respect as a result of what she felt was demeaning conduct towards her by someone who was in a mentoring role.
93In addition, although the applicant testified that she needed to and did seek medical attention generally and, more specifically, therapy to assist her in dealing with pre-existing medical conditions as a result of the harassment and discrimination she experienced, although provided with the opportunity to do so, she elected not to call any evidence from the therapist or provide any medical evidence to support her oral testimony.
94In my view, the objective seriousness of the harassing conduct that I have found to have occurred is significant. Unwelcome comments about one’s appearance or feeling that one has to submit to unwanted physical contact in the workplace are, by any objective standard, demoralizing in their impact and would leave most people feeling devalued and under stress.
95In this case, given that the source of the unwanted comments and touching was a person the applicant relied upon for advice and who was in a mentoring relationship, the conduct is even more serious, when viewed objectively.
96Having considered the compensation awarded in the cases referenced in Smith v. Rovers Rest, above, the objective seriousness of the conduct, together with the applicant’s evidence of the impact on her, I find payment of monetary compensation in the amount of $15,000.00, for damage to the applicant’s dignity, feelings and self-respect, within 60 days of the date of this Decision, is appropriate in this case.
97The respondents requested that, in the event that I made an award for monetary compensation, I set off the amount of money ($5,514.62) that the respondents had advanced to the applicant over the last year that she worked as an agent at the respondent brokerage, and that the applicant admitted during the course of the hearing that she owed to the respondents.
98The Tribunal’s remedial authority is limited by the provisions of s. 45.2(1) of the Code. In my view, there is nothing in that section that permits me to take into account other debts and obligations the parties may have to each other, that are still legitimately outstanding, but unconnected to the loss arising out of the infringement of the applicant’s rights under the Code, when arriving at my remedial order. It may be a matter for the parties to resolve either between themselves or in another, more appropriate, forum.
99I also order that, within 60 days of this Decision, the respondents draft and implement a policy aimed at preventing and addressing sexual harassment in the workplace. The policy should contain information for all employees, agents and managers at the respondent business about their rights and obligations under the Code with respect to sexual harassment.
order
100Accordingly, the Tribunal orders as follows:
- Within 60 days of the date of this Decision, the respondents shall pay the applicant $15,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.
- The respondents are jointly and severally liable for the awards of monetary compensation.
- Post-judgment interest is payable on any amount of the awards of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 60 days of the date of this Decision.
- Within 60 days of the date of this Decision, the respondents shall put in place a policy on preventing and addressing sexual harassment in the workplace.
Dated at Toronto, this 23rd day of November, 2015.
“Signed by”
Jay Sengupta
Vice-chair