Costigane v. Nyood Restaurant & Bar, 2015 HRTO 420

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Costigane

Applicant

-and-

Nyood Restaurant & Bar and Moise Bensadouin

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: March 31, 2015

Citation: 2015 HRTO 420

Indexed as: Costigane v. Nyood Restaurant & Bar

APPEARANCES

Julie Costigane, Applicant

Self-represented

Nyood Restaurant & Bar and Moise Bensadouin, Respondents

No one appearing

Introduction

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, ethnic origin and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application was filed against Nyood Restaurant & Bar (“Nyood”) and Arturo Gayle (“Gayle”), the general manager of Nyood.

3On October 30, 2012, the applicant withdrew her claim for lost wages in the Application.

4By interim decision 2013 HRTO 648, Nyood’s owner, Moise Bensadouin (“Bensadouin”), was added as an individual respondent.

5Bensadouin did not file a Response to the Application. Domenic Di Cianna (“Di Cianna”), the president of Nyood, filed a Response on behalf of Nyood.

6On May 20, 2014, the applicant withdrew the Application against the individual respondent Gayle.

7By Notice of Hearing dated July 23, 2014, a hearing was scheduled for January 12, 2015.

8On January 9, 2015, Di Canna advised the Tribunal that he would not be attending the hearing. He further advised the Tribunal that Nyood was no longer in operation.

9The Application was heard on January 12, 2015. The applicant attended at the hearing. The respondents did not attend the hearing.

background

10The applicant commenced employment at Nyood as a full-time sous chef on January 6, 2012. In mid-January, Nyood hired a new head chef, who in turn, hired a new staff member who assumed some of the applicant’s job duties. As a result of this hiring, the applicant’s shifts were reduced.

11The applicant testified that there were a few reasons why her shifts were cut: she was more expensive than the new employee; Nyood owed her money for unpaid wages; and the new employee was able to do the applicant’s work.

12Around the time that the applicant’s shifts were reduced, the applicant threatened to file a complaint against Nyood with the Ministry of Labour for unpaid wages. The applicant testified that after making this threat, she was no longer scheduled to work at the restaurant. The applicant’s last shift was on February 9, 2012.

13Between February 9 and 21, 2012, the applicant sent email messages to Gayle and Bensadouin regarding her unpaid wages. The applicant was told to come into the restaurant on March 3, 2012, to pick up the money that was owed.

14The applicant attended at Nyood on March 3, 2012, with a friend. On that date, she was given approximately 300 dollars. The applicant approached Gayle and told him that she had not been paid in full – that there were still unpaid wages owing. The applicant testified that Gayle began screaming at her, using a variety of obscenities.

15The applicant then called Bensadouin and told him that she had not received the full amount of unpaid wages. The applicant testified that Mr. Bensadouin also yelled obscenities at her, and called her a “bitch” and a “cunt”.

16The police were called, and the applicant and her friend left the restaurant.

17The applicant filed a claim with the Ministry of Labour for unpaid wages and, as a result of that claim, received payment for all outstanding wages.

Analysis

Liability

18The relevant Code provisions provide 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, ethnic origin, citizenship, creed, sex, sexual orientation, 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, 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 by his or her employer or agent of the employer or by another employee.

10 (1) “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 purpose of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), any act of 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.

19There is no allegation of discrimination relating to the termination of the applicant’s employment. The sole issue in this case is whether the applicant was harassed in a manner contrary to the Code when she went to pick up her unpaid wages on March 3, 2012. For the reasons that follow, I find that she was.

20The applicant testified that she went to Nyood on March 3, 2012, to obtain payment for her unpaid wages. When the payment was short, she called Bensadouin to complain. In response to the applicant’s request to be paid in full, Bensadouin shouted obscenities at the applicant, including calling her a “bitch” and a “cunt”. The applicant’s evidence is uncontested as the respondents chose not to participate in the hearing. I therefore find that Bensadouin called the applicant a “bitch” and a “cunt” when she requested full payment for her unpaid wages.

21In my view, calling a female employee a “bitch” and a “cunt” constitutes sexual harassment under the Code. It is clearly a course of conduct that was known or ought reasonably to have been known by Bensadouin to be unwelcome. The words, on their face, are gendered and demeaning. A single comment, if sufficiently serious, can constitute sexual harassment. See Romano v. 1577118 Ontario Inc., 2008 HRTO 9. I find that these words were sufficiently serious to constitute sexual harassment in this case.

22The applicant testified the restaurant industry is extremely sexist. She stated that underlying the obscenities was the belief that as a female, she did not have the right to be paid for her work, or that her work was not valued. She testified that the way that Bensadouin responded to her request for full payment reflected a common reaction in the industry.

23While I am uncertain whether the message behind the obscenities was the belief that the applicant, as a woman, did not have the right to be paid fairly for her work, I agree that denigrating her through the use of gender-based obscenities reflected the view that she was less valued as a person.

24I therefore find that Bensadouin contravened section 7(2) of the Code when he called the applicant a “bitch” and a “cunt” in response to her request to be paid in full for her work. I must now turn to the question of whether Nyood is liable for this conduct.

25The Divisional Court in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at paragraph 33, recently affirmed that a corporation is responsible for acts of harassment if the individual responsible for the harassment is a directing mind of the corporation. In this case, because the harassment was committed by the owner of the restaurant, Nyood is also responsible for the harassment. I therefore find that Bensadouin and Nyood contravened the applicant’s right to be free from sexual harassment contrary to section 7(2) of the Code. There is no evidence that the applicant was discriminated against on the basis of race, colour, ancestry and ethnic origin by these respondents.

Remedy

26Having found that the Bensadouin and Nyood violated the applicant’s rights under section 7(2) of the Code, I must determine the appropriate remedy. The Tribunal’s remedial authority is set out below:

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 1 of another party to the application:

1. 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.

2. 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.

3. 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.

27The applicant testified that she obtained new employment on March 10, 2012, one week after harassment. She testified further that she began seeing a therapist in 2012 because of the stress that she experienced in the restaurant industry, including the incident at Nyood. The applicant testified that she suffered emotionally because of this incident.

28The applicant did not call her therapist to testify, nor did she file into evidence any documentation to support the cost of the therapy. In the absence of evidence from her therapist, I have no ability to make a finding regarding the connection between the harassment and the therapy. I am therefore declining to make an order for costs associated with the therapy sessions.

29As such, I am left with compensating the applicant for injury to dignity, feelings and self-respect. The Tribunal’s jurisprudence has primarily applied two criteria in evaluating appropriate compensation: (a) the objective seriousness of the conduct; and (b) the effect on the particular applicant who experienced discrimination: see Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52.

30The Tribunal also strives for consistency in its awards of this kind of compensation, so that like cases are treated alike and awards are proportional to the circumstances in which awards have been made in other cases.

31The applicant’s employment was over when she went to Nyood to pick up her unpaid wages. In the context of requesting full payment, she was called a “bitch” and a “cunt” by the owner of the restaurant. There is no evidence that the applicant was subject to these kinds of comments on an ongoing basis. The comments on March 3, 2012 were an isolated occurrence.

32In other cases where it has been found that an applicant was subject to sexually harassing comments on one occasion, the compensation for injury to dignity, feelings and self-respect has ranged from $300.00 to $1,000.00. See Haykin v. Roth, 2009 HRTO 2017, and Romano v. 1577118 Ontario Inc., supra, respectively.

33Having considered the compensation awarded in these cases, together with the fact that the harassment occurred on a single occasion after the applicant’s employment had ended, I find compensation in the amount of $1,000.00 is appropriate in this case. Although the applicant testified that she sought therapy in 2012, there is no evidence before me that the therapy was linked to this incident. As such, I have not considered this fact when determining the appropriate remedial order.

order

34The respondents Moise Bensadouin and Nyood Restaurant and Bar are jointly and severally liable to pay the applicant $1,000.00 as monetary compensation for injury to dignity, feelings and self-respect. They shall make this payment to the applicant within 30 days of the date of this Decision.