Joyceline Manu v. Centum Fundamental Financial Inc. and Russel Ramlochan, 2015 HRTO 725

Human Rights Tribunal of Ontario

B E T W E E N:

Joyceline Manu Applicant

-and-

Centum Fundamental Financial Inc. and Russel Ramlochan Respondents

DECISION

Adjudicator: Geneviève Debané
Date: June 2, 2015
Citation: 2015 HRTO 725
Indexed as: Manu v. Centum Fundamental Financial Inc.

APPEARANCES

Joyceline Manu, Applicant Shane Martinez, Counsel

Centum Fundamental Financial Inc., Respondent Victor Huo, Representative

Russel Ramlochan, Respondent Self-represented

Background

1On May 12, 2012, the applicant approached the personal respondent Russel Ramlochan to assist her with obtaining a mortgage for a condominium property that she intended to purchase. Mr. Ramlochan was an independent mortgage agent with the corporate respondent Centum Fundamental Financial Inc. (“Centum”). The applicant paid a $1,500 deposit to retain the services of Mr. Ramlochan and Centum.

2On June 21, 2012, the applicant advised Mr. Ramlochan that she no longer required his services. The applicant initiated an action in Small Claims Court against both respondents for a refund of the deposit she paid to them. On November 21, 2012, the applicant obtained a default judgment against both respondents for the repayment of her deposit together with her legal costs.

3This Application, which was filed on June 14, 2013, alleges that the respondents discriminated against the applicant with respect to services because of race, colour, sex and sexual solicitation or advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that during a number of meetings with Mr. Ramlochan she was subjected to harassing comments and conduct, including that he made sexual solicitations and advances to her because of her sex and race.

4The Tribunal issued Interim Decision 2013 HRTO 1445 and Interim Decision 2013 HRTO 1595 to compel the respondents to file a Response to the Application. Eventually the respondents filed a Response to the Application denying any breach of the Code. At the time that the Response was filed Mr. Ramlochan was no longer working with Centum. Centum takes the position in the Response that it should not be liable for Mr. Ramlochan’s conduct because he was never an employee of Centum but was in fact an independent contractor or, as he is referred to in the Response, an “independent mortgage agent”. The Response did not directly respond to the allegations of harassment and sexual solicitation and advances contained in the Application.

5On July 16, 2014, after the respondents had not filed any hearing materials as required by the Rules, the Tribunal issued a Case Assessment Direction (the “July 16 CAD”) which directed, amongst other things, that Mr. Ramlochan had to file a detailed will-say statement by no later than July 28, 2014, which addressed the allegations against him. Neither respondent filed any materials as directed.

6On August 21, 2014, Mr. Ramlochan advised the Tribunal that he would not be attending the hearing because he had to go on an unplanned business trip.

7On August 22, 2014, the Registrar advised the parties that this was not an exceptional reason for an adjournment and that the hearing would proceed as scheduled. In this correspondence, the Registrar attached a copy of the July 16 CAD and reminded the respondents to comply with its directions.

8On August 25, 2014, the Tribunal issued another CAD to the parties which warned the respondents that the hearing would proceed in their absence and that they needed to immediately file their hearing materials. Neither respondent filed any materials as directed.

9All of the parties were present at the August 28 and 29, 2014 hearing in Toronto. The Tribunal heard the evidence of the applicant, Mr. Ramlochan and Mr. Victor Huo, who advised that he was the owner and the president of Centum. At various times during the hearing both respondents would ask to leave, stating that they were busy men and wanted to go to work because this was a waste of their time. I repeatedly told both respondents that they did not need to stay but that the hearing would continue in their absence. I strongly recommended to them that it was in their best interests to stay and to participate in the proceedings, which they did.

10In her opening statement to the Tribunal the applicant sought the total sum of $10,000 in general damages. She argued that it would be appropriate for her to be awarded $7,000 as general damages for sexual solicitation and advances payable solely by Mr. Ramlochan. The applicant sought $3,000 as general damages on the basis that she was harassed during the provision of services, including comments that were made to her with respect to her race and gender, and that these amounts should be paid on a joint and several liability basis between Mr. Ramlochan and Centum.

Credibility

11This case turns largely on my findings of the credibility and reliability of the evidence of the applicant and Mr. Ramlochan. In making these determinations I am mindful of the case law in relation to the factors and approach to assessing credibility, including Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357 of the decision, the British Columbia Court of Appeal stated:

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

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

12The applicant asserts that the personal respondent, Mr. Ramlochan, made various comments to her during her meetings with him. These are denied by Mr. Ramlochan. No witnesses were present at the time that these comments were allegedly made. Further, there is no documentary evidence which can assist the Tribunal. The Tribunal must therefore assess the reliability and credibility of Ms. Manu’s and Mr. Ramlochan’s respective evidence. It remains however, the applicant’s onus to prove on a balance of probabilities that the respondents infringed her rights under the Code.

The Code

13The relevant sections of the Code provide that:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

2. (1) Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.

(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.

(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.

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.

The Evidence

Procedural Directions

14The applicant requested that the Tribunal refuse to hear either of the respondents’ evidence because they had failed to comply with the Rules and the directions in the two CADs. I ruled that I would hear the testimony of the respondents because to preclude them from doing so would deny them the opportunity to present any evidence on the central issues in the Application and in essence prevent them from defending this case. I advised the applicant that if she felt prejudiced during the course of the hearing that she should immediately raise this issue with the Tribunal.

15The conduct of the hearing was as follows. The applicant testified in-chief. However, during Mr. Ramlochan’s cross-examination of the applicant it became clear that he was seeking repeatedly to give his evidence. I therefore suggested to the parties that it may be appropriate for the Tribunal to stop the applicant’s cross-examination and to permit Mr. Ramlochan to testify in-chief. All of the parties agreed that it was appropriate. I directed Mr. Ramlochan to draft a brief will-say statement in advance of his testimony. After Mr. Ramlochan testified in-chief, he then cross-examined the applicant and then he was cross-examined by the applicant’s counsel. Mr. Huo also asked some very brief questions of these two witnesses. Mr. Huo then testified and was cross-examined by the applicant’s counsel.

The applicant’s evidence

16The applicant, who was about 25 at the time, testified that she wanted to purchase her first home and she was referred to Mr. Ramlochan by her cousin, who had had previous dealings with him. She met with him on June 5, 2012, at his office to discuss obtaining a mortgage to finance the purchase of the property. During this meeting they discussed her personal finances and a potential purchase price. The personal respondent also made comments to the applicant that she was smart and ambitious and that “he loved smart women”. He also asked the applicant whether she had a boyfriend to which she responded that she did not. She did not feel uncomfortable during that first meeting. Mr. Ramlochan was helpful and assisted her in finding a real estate agent.

17The applicant then met with the personal respondent again at this office, on June 6, 2012, to sign a purchase agreement form which was conditional on her obtaining financing. Present at this meeting was the real estate agent. At the conclusion of the meeting, after the real estate agent had left, Mr. Ramlochan asked her out for drinks to celebrate. The applicant declined his request to go out for drinks.

18On June 7, 2012, the applicant had a third meeting with Mr. Ramlochan at his office. During this meeting the applicant told him that she was concerned that she would have insufficient funds to purchase the property by closing date. She was concerned that things were moving too fast. The applicant had only one of two cheques that she was supposed to bring to the meeting.

19She testified that Mr. Ramlochan then proceeded to lecture her and stated that “black people are not successful business owners because they are no good with money”. He also recounted to her that he had once dated a black woman who repeatedly asked to borrow money but that eventually he did not “get with her”. The applicant then testified that Mr. Ramlochan asked her if she would be the “first black woman that I sleep with”. The applicant testified that she felt uncomfortable and humiliated by the personal respondent’s conduct; however, she could no longer sever the relationship because she had just given him a financial deposit. The applicant testified that she left his office almost immediately because felt uncomfortable because “this man was visualizing me in a sexual way”.

20On June 14, 2012, the applicant attended Mr. Ramlochan’s office to sign a waiver of the financing condition. She brought with her a small child that she was watching. Mr. Ramlochan complemented her appearance. The applicant testified that spontaneously during the meeting Mr. Ramlochan stated “I thought about sleeping with you but then what? I am not a monogamous man.” The applicant felt that she was being solicited by Mr. Ramlochan and that he had a hidden agenda.

21The applicant decided that she could no longer stay in his office or ever come back. She immediately called the child over to her and proceeded to start leaving the office. Mr. Ramlochan asked the applicant what time her boyfriend was coming home and that she should come back later for drinks. The applicant testified that as she was leaving that Mr. Ramlochan was trying to lighten the mood and behaving in a more humorous manner. The applicant states that she immediately left his office and he told her that she better not go around talking about his business. The applicant told Mr. Ramlochan not to worry about it.

22The applicant testified that she decided to cancel her agreement with Mr. Ramlochan. The applicant ultimately did not purchase the property for unrelated reasons. However, Mr. Ramlochan did not return the $1,500 deposit.

23In June 2012, she tried to contact the head office and spoke to Mr. Huo in an effort to get her deposit back. It was a very short conversation in which Mr. Huo told her that he was not responsible for Mr. Ramlochan’s conduct because he was an “independent agent”. The applicant did not disclose to Mr. Huo any Code-related violations.

24The applicant filed a Statement of Claim in Small Claims Court and obtained judgment for the return of her deposit on November 21, 2012. The applicant explained that she did not raise any Code-related issues in the Statement of Claim because she did not want to be barred, pursuant to subsection 34(11) of the Code, from bringing an Application at the Tribunal with respect to her human rights issues. Neither of the respondents has returned the deposit to the applicant.

Mr. Ramlochan’s Evidence

25I will deal with the majority of Mr. Ramlochan’s evidence later when I address my findings in this case. Mr. Ramlochan’s evidence focussed on the financial aspects of his transaction with the applicant. He stated that the applicant never asked for her deposit back. Mr. Ramlochan did not appear to have an independent recollection of his meetings with the applicant. He testified that she was referred to him by her cousin and that he was trying to assist her because she was a single mother raising a child. When he testified, he initially could not recall whether he had asked her out for a drink but subsequently stated quite adamantly that he had not. He also testified that he is also “dark” and that where he comes from the term black is not used, people are usually either Indians or Negros.

26He denied that he harassed or solicited the applicant for sex. He believes that the applicant has filed this Application because she is trying to obtain money from him, for a deposit on a future home, because she believes that he is a rich man.

Mr. Huo’s Evidence

27Mr. Huo’s evidence was very short and focussed on whether or not Mr. Ramlochan was an employee of Centum. An undated document signed by Centum and Mr. Ramlochan entitled “Independent Contractor Agreement” was entered into evidence. I will also deal with the evidence on this issue later in the Decision in my findings.

28Mr. Huo testified that it does not train any of its employees with respect to their obligations under the Code and that it is not his responsibility to do so.

Findings

29For the reasons that follow I find that Mr. Ramlochan’s evidence is completely incredible and unreliable. As will be explained below I fully accept the applicant’s evidence every time that it contradicts Mr. Ramlochan’s evidence.

30I find that Mr. Ramlochan purposely during the entire course of this proceeding failed to provide any defence which described his version of the evidence prior to the scheduled hearing. When I asked Mr. Ramlochan why he had not complied with the two CADs, he stated that he had a mental block when it came to dealing with the Application and that he would often not open correspondence from the Tribunal. However, I note that Mr. Ramlochan was able to communicate with the Tribunal when he required an adjournment and therefore knew that the hearing was scheduled. Further, in the email which advised him that the hearing would not be adjourned the Tribunal attached a copy of the July CAD. He was repeatedly reminded to comply with his obligations under the Rules. I find that Mr. Ramlochan purposefully did not provide to the Tribunal his version of events because he was trying to obtain an unfair advantage over the applicant by not disclosing his version of events.

31Mr. Ramlochan frequently asserted that he was one of the smartest people in the City of Toronto and that he had a photographic memory and could remember everything. At some point in his evidence he started quickly citing mathematical formulas and equations to prove to the Tribunal his intelligence. Sometimes when questioned, Mr. Ramlochan would close his eyes and explained that he was trying to visualize in his mind what had happened because he has a photographic memory.

32It became clear during his evidence that he could not recall, independently, the number of meetings that he had with the applicant, whether he invited her to have a drinks, and that he erroneously remembered that she had a child when he initially met with the applicant. Mr. Ramlochan then stated that he did not recall these events because he could only recall significant events with detail. This contradicted his initial evidence that he had a photographic memory and could remember everything. He then gave a different explanation stating that he could not recall some of these events because he had a mental block with respect to the events that gave rise to this Application because they were so hurtful to him.

33Mr. Ramlochan during the course of the hearing would often make gratuitous statements which he would later contradict. For example, when I asked Mr. Ramlochan whether he had a legal representative, he stated that he did not have one because he did have any money to pay a lawyer. Then later when he was giving his evidence, he submitted to the Tribunal that he was very generous with women and would often give them money to assist them in purchasing a home. He later said that it was not a gift per se but that he would enter into private mortgages. At one point he suggested the mortgage interest rate was 0%, then later he stated that it was at a reasonable rate because he was after all a businessman. Then at various other times during the hearing he maintained that he was poor. Later, he accused the applicant of trying to blackmail him because she knew that he was a rich man. When I questioned the consistency of this statement with what he had said before, he corrected it to say that the applicant perceived him to be a rich man but that he was not rich. Later on in his testimony he stated that he was rich because he had a lot of assets but that none of these were liquid assets. In his closing submissions he stated that he had not retained a legal representative because he did not need one because he was telling the truth and that he was not lying. I find that this demonstrates that Mr. Ramlochan’s evidence was tailored to strengthen whatever point he was trying to make.

34There was a disturbing issue that arose during the course of the hearing. Mr. Ramlochan stated during his evidence that he would not say to the applicant “are you going to be the first black woman I sleep with” because he does not use the word “black” to describe black people but that in fact he uses the word “Negro”. He stated that this is a term that he grew up using in the country of his birth and that he continues to use this in Canada even though he left this country in the mid-1980s. During cross-examination on this issue he repeatedly told counsel that he did not understand what he meant by the word “black” and that he should use the word “Negro”. When counsel refused, Mr. Ramlochan then requested that the Tribunal direct counsel to use the word “Negro” instead of black. I told Mr. Ramlochan that I would not direct counsel to use this word.

35However, I find that Mr. Ramlochan’s assertion that he uses the work “Negro” to be completely incredible. The word black was used to describe the applicant’s race throughout the Application, during opening statement, and the applicant’s evidence. Mr. Ramlochan first testified that he does not use the word black but instead uses the term Negro. Then at some point during cross-examination, he started asserting that he did not even understand the meaning of the word “black”.

36Further, I cannot accept that Mr. Ramlochan, who is a sophisticated businessman, would use such an antiquated and offensive term as “Negro”. I find that the respondent fabricated this evidence in order to try to persuade the Tribunal that he did make the comments attributed to him by the applicant.

37As such I find that Mr. Ramlochan’s evidence to be unreliable and incredible because he repeatedly was unable to recall the events in question, had a tendency to exaggerate to prove a point and made a number of inconsistent statements.

38The evidence of the applicant however was consistent, even during Mr. Ramlochan’s cross-examination in which he would improperly restate her evidence to her, she was able to correct him. She was able to recall her interactions with Mr. Ramlochan with much detail. I find that the applicant has established on a balance of probabilities that Mr. Ramlochan engaged in conduct which is contrary to the Code.

Remedy

39The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:

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:

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.

40In addressing relevant factors in determining compensation for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in the decision of Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 52-54:

(…) 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.

Sexual Solicitation

41I will first determine whether Mr. Ramlochan engaged in a course of sexual solicitation and sexual advances towards the applicant that he knew or ought reasonably to have known was unwelcome, contrary to subsection 7(3) of the Code.

42I find that Mr. Ramlochan did make sexual advances to the applicant when he asked her whether she would be the “first black woman” that he “sleeps with” and that he had been thinking about sleeping with her.

43I find that Mr. Ramlochan was in the position to confer a benefit on the applicant by obtaining for her either a mortgage or a mortgage that was favourable to the applicant. I also find that the applicant was in a vulnerable position. She had never purchased a home, and had limited experience and financial means. The applicant was dependent on Mr. Ramlochan’s experience to guide her through the financial aspects of obtaining a mortgage. Therefore, Mr. Ramlochan was in the position to confer a benefit to the applicant.

44I find that Mr. Ramlochan ought to have known that his conduct was unwelcome. The applicant declined any social interaction with him, including when he repeatedly asked her for drinks. This was an indication that his romantic advances were not welcome. He then proceeded to escalate his requests from having “drinks” to having “sex”. There was no basis on which he could have reasonably concluded that the applicant would welcome his sexual advances.

45Further, I find that is only after Mr. Ramlochan obtained the applicant’s deposit that he started subjecting her to sexual solicitation and advances. At this point the applicant was in an even more financially precarious position because she risked losing her deposit to Mr. Ramlochan.

46The applicant did not provide the Tribunal with any comparable cases; indeed there appears to be few cases dealing with sexual solicitation and/or advances in the context of a service relationship. Having considered the circumstances of this case, I accept the applicant’s submission that the sexual advances which were directed at her by Mr. Ramlochan had a significant impact on her. This was at a time when the applicant was starting to assert herself as an adult by purchasing her first home. I accept that this had a significant negative impact on the applicant’s self-esteem during a time that she was particularly vulnerable and dependent on Mr. Ramlochan for guidance. I also note that the sexual solicitation and advances where directed to the applicant both on the basis of her sex and her race and there was a suggestion in the overall comments made by Mr. Ramlochan that if the applicant did have sex with him that perhaps her financial worries might go away.

47In these circumstances, I agree with the applicant that it is appropriate both on a subjective and objective basis that she be awarded the sum of $7,000 in damages for injury to her dignity, feelings and self-respect.

Discrimination

48I also find that Mr. Ramlochan also made comments which constitute racial discrimination when he stated to the applicant “that black people are not good with money” and he proceeded to lecture her about her finances, and when he made comments about having dated a “black woman” who wanted money from him. The applicant explained that she felt that she was being lectured by Mr. Ramlochan, who believed that he was superior to her because of his race. The applicant was going through a very stressful time in determining her financial ability to carry a house mortgage. When she communicated this to Mr. Ramlochan, he proceeded to link her financial difficulties to her race, making generalized comments based on his own stereotypical presumption about black persons being unable to manage their financial affairs. I find that these comments were both discriminatory and harassing to the applicant. Comments based on racial stereotypes, including racial slurs, constitute discrimination in the provision of services (see: Ontario Human Rights Commission v. Garai, 2000 CanLII 20869 (ON HRT)) and harassment has been found by this Tribunal to be a form of discrimination (see: Haykin v. Roth, 2009 HRTO 2017 (“Haykin”)).

49Probably one of the highest awards in the context of services is Direk v. Coffee Time Donuts, 2009 HRTO 1887, where the Tribunal awarded $15,000 for repeated discriminatory treatment in the context of services and in relation to which the police were called on the applicant by the respondent. On the lower end, the Tribunal awarded $300 in general damages when a male real estate salesperson told a female client that she was “hot and wet” (Haykin). Having considered the matter I find that the comments were demeaning and humiliating to the applicant. Further, they had the effect of undermining the applicant’s confidence in being able to purchase a home. Once again these comments were only made to the applicant after Mr. Ramlochan had received his deposit and the applicant was in a vulnerable position. In the circumstances of this case, I agree that the applicant is entitled to $3,000 in damages for injury to her dignity, feelings and self-respect.

50In making this assessment of damages I have also considered that there is some overlap or intersection of grounds in the discrimination that the applicant experienced. I have also taken into account that, in my view, the totality of the damages awarded of $10,000 are fair and reasonable in the circumstances of this case.

The Liability of Centum

51In the Response, Centum raises the defence that it is not liable for the conduct of Mr. Ramlochan because it did not at the relevant time employ him.

52However, the Tribunal notes that in the judgment issued by the Small Claims Court on November 21, 2012, there was an express finding that Mr. Ramlochan, at the relevant time, was an employee of Centum. Specifically the Court states “Centum is liable for the conduct of its employee”.

53At paragraph 25 of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the Supreme Court of Canada discusses the preconditions of the doctrine of issue estoppel:

1. that the same question has been decided;

2. that the judicial decision which is said to create the estoppel was final; and

3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

54Considering these factors in this case I find that clearly the parties are the same. Further, a review of the Statement of Claim clearly indicates that the applicant was taking the position that Mr. Ramlochan was an employee of Centum. Therefore, the respondents had notice that this was an issue that was being raised before the Court. The respondents agreed that they were aware of the Court’s decision and that they have not filed an appeal. Therefore, the Court’s determination that Mr. Ramlochan was an employee is final. To permit the re-litigation of Mr. Ramlochan’s status as an employee would be a collateral attack on the Court’s findings. In these circumstances I find that the respondent is estopped in this proceeding from taking the position that Mr. Ramlochan was not an employee of Centum.

55Further, I note that pursuant to s. 46.3(1) it is not relevant whether Mr. Ramlochan is an employee or an agent. Section 46.3(1) imposes liability on a corporation for the actions of both “employees and agents”. It is admitted that Mr. Ramlochan was an agent of Centum when he was acting as the applicant’s mortgage broker.

56As noted by the Tribunal in Srouji v. Direct IME, 2012 HRTO 449 at para. 13:

I also note that the categories of individuals whose acts or omissions may give rise to deemed liability under s. 46.3 of the Code is not restricted to employees of the corporation, but also extends to an “agent”. While the acts or omissions of an agent for which the corporation may be deemed to be liable under s. 46.3 of the Code are restricted to things done “in the course of his or her employment”, in my view it would be non-sensical to interpret the word “employment” in the context of the person’s acts or omissions only to things done by an “employee”, as such an interpretation would deprive the word “agent” of any meaning.

57I find that even if the Tribunal accepts the respondents’ submissions that Mr. Ramlochan was not an employee, Centum is still liable because Mr. Ramlochan was acting as its independent mortgage agent. All of Mr. Ramlochan’s interactions with the applicant for which she complains are with respect to meetings that she had with him to obtain a mortgage. Therefore, in these circumstances I find that it is irrelevant whether Mr. Ramlochan was an employee or an agent of Centum.

58That said however, s. 46.3(1) of the Code explicitly excludes certain conduct from vicarious liability. In this case, I find that pursuant to that section Centum is not liable for the amounts awarded to the applicant in regards to the sexual solicitation and advances that she was subjected to by Mr. Ramlochan.

59However, Centum is vicariously liable for the racial discrimination that the Mr. Ramlochan subjected the applicant to. Therefore, the $3,000 shall be payable by both respondents on a joint and several basis.

Public Interest Remedies

60I find that in this case, that it is appropriate for the Tribunal to award public interest remedies in order to ensure future compliance with the Code. I was concerned at the hearing that Centum still had no understanding of its obligations under the Code. Usually, at the hearing respondents will have had the opportunity to at least become familiar with the Code. Mr. Huo testified that he it was not his obligation to train his agents with respect to the Code. I find therefore, that it is appropriate for Centum to retain an expert to assist with the development of a human rights policy which is distributed to all its Ontario employees or agents and that employees who hold the rank of manager and above should have to undergo training on the Code.

61Since Mr. Ramlochan is no longer employed with Centum and will not be attending the training, I find that it is appropriate that he be ordered to take the Human Rights Commission’s Human Rights 101 eLearning Module.

Order

62The Tribunal orders as follows:

a. Within 30 days of the date of this Decision the respondent Russel Ramlochan shall pay to the applicant the sum of $7,000 as compensation for injury to her dignity, feelings and self-respect for subjecting the applicant to sexual advances and solicitation. Pre-judgement interest shall be payable calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“Courts of Justice Act”) as of June 7, 2012;

b. Within 30 days of the date of this Decision, the respondents Russel Ramlochan and Centum Fundamental Financial Inc. shall jointly and severally pay to the applicant the sum of $3,000 as compensation for injury to her dignity, feelings and self-respect for subjecting her to racial discrimination. Pre-judgement interest shall be payable calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as of June 7, 2012;

c. Post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act shall be payable from any amounts remaining unpaid as of 30 days after the date of this Decision; and

d. Within 120 days from the date of this Decision, Centum Fundamental Financial Inc. shall confirm to the applicant in writing that it has retained a human rights expert of its choosing who has

(i) assisted with drafting a human rights policy which is consistent with its obligations under the Code, and that a copy of the human rights policy has been distributed to all of its Ontario employees and agents; and

(ii) trained all of its Ontario employees holding the rank of manager or higher, and any human resources employees with respect to the human rights policy and the Code.

e. Within 60 days from the date of this Decision, Russel Ramlochan shall confirm to the applicant in writing that he has completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/.

Dated at Toronto, this 2nd day of June, 2015.

“Signed by”

Geneviève Debané
Vice-chair