HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kelly Hill
Applicant
-and-
Intersteam Technologies Inc., Sean Robillard, Eloise Robillard and Manfred Dietrich
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Hill v. Intersteam Technologies Inc.
APPEARANCES
Kelly Hill, Applicant Self-represented
Intersteam Technologies Inc., and Manfred Dietrich, Respondents Manfred Dietrech, Representative
Sean Robillard, Respondent Self-represented
Eloise Robillard, Respondent Self-represented
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex.
Background
2A hearing was held on March 19, 2015 in Hamilton. I heard the evidence of all but one of the individuals who were employed or worked in this small workplace. I heard from the applicant and a former employee of the organizational respondent. I also heard from each of the individual respondents: the owner, his daughter and his son-in-law.
3The applicant was employed for a short time by the organizational respondent - an importer and marketer of steam cleaning equipment. Her employment began in May 2013 and was terminated by the respondent in November 2013. The applicant’s termination of employment is not an issue in the case.
4The respondent Manfred Dietrich is the owner of the organizational respondent. The respondent Eloise Robillard is Mr. Dietrich’s daughter and the Director of Sales and Marketing. She also handles most day to day issues in the management of the business including human resources matters. She supervised the applicant. The respondent Sean Robillard is the spouse of Eloise Robillard. He works primarily as a mechanic and services the equipment sold by the organizational respondent, often off sight.
5The applicant alleges that Sean Robillard engaged in inappropriate sexualized behaviour in the workplace which she found bothersome and which she raised with both Eloise Robillard and Manfred Dietrich. In particular the applicant alleges that the respondent Sean Robillard made repeated references to his genitalia in her presence and on one occasion “aired out” his genitalia in the applicant’s presence. The applicant also alleges that on one occasion Sean Robillard asked her if the reason for a minor neck or back injury was that she had given her husband a “blow job”. The applicant also alleges, that Eloise and Sean Robillard spoke about their, and her parents’, sexual relationship in the workplace. All of these alleged incidents troubled the applicant and caused her to feel uncomfortable in the workplace.
6The applicant also alleges that she was referred to as a fucking bitch and then a bitch by Sean and Eloise Robillard. Sean and Eloise Robillard concede that they did so in the context of a verbal altercation with the applicant.
7The applicant concedes that she did not raise her concerns with the personal respondents until September 5, 2013 essentially because she was afraid that it would damage her relationship with them, both personal and professional.
8The personal respondents all deny that any of these things took place. In particular Sean Robillard denies ever referring to his genitalia in the workplace or exposing himself there. He did not deny making a joke about the reason for the applicant’s neck and back injury although he denies using the term “blow job”. Eloise Robillard and Manfred Dietrich deny ever observing or witnessing any of these events and deny that the applicant ever raised these issues with them.
9By way of further background although not necessarily material to the ultimate result in this case, the events described below took place against the backdrop of a fracturing friendship. The applicant and Eloise Robillard had been friends prior to her coming to work for the respondents. The applicant, her husband and the Robillards socialized together on many occasions prior to her beginning her employment with them.
10It is also fair to say that this employment relationship was significantly dysfunctional. The narrative of the Application is largely devoted to the inter-personal conflicts between, principally, the applicant, Ms Robillard and Sean Robillard. Manfred Dietrich was not often present in the workplace and, in any event, does not figure significantly in the narrative that follows.
11Additionally I accept the respondents’ position that the applicant was capable of using profanity and did so in the workplace regularly. The applicant does not deny that this was the case. I have considered this factor in assessing the issues that arise out of the facts as found below.
12Perhaps as a result of these backgrounds facts about the parties’ relationships there was considerable “mud” to be thrown about in the hearing. There are suggestions of mental illness and addictions from both sides of this dispute. I admonished the parties that unless material to the issues in dispute in this case I did not want to hear about these other matters and the parties for the most part complied with this direction.
13The parties disagree about the ownership structure of the organizational respondent. The applicant testified that she understood that the Robillards were part owners of the business and would take it over entirely in the future. The applicant also testified that she was told she should not bring issues to Manfred Dietrich for reasons which are not material to anything. The applicant’s witness, Ms. I, testified that she had a similar understanding of the ownership because that is what the Robillards led her to believe. She also confirmed the applicant’s evidence that issues were to be taken to them rather than Mr. Dietrich.
14The respondents’ position is that Manfred Dietrich was the owner of the organizational respondent at the material times. In my view the precise ownership structure is immaterial. It is clear that the Robillards were part of the management structure of this small family run business. Both Robillards testified that “we were family we talked” about how the business would be run. It was run by the Robillards and Mr. Dietrich as a collective enterprise. Ms. Robillard was the applicant’s supervisor and the person to whom she was directed to take her concerns according to Mr. Dietrich. Although Mr. Robillard was not the applicant’s supervisor he conceded he had the authority to reprimand the applicant and direct her to, for example, return to work. In my view, given these circumstances, he also as indicated above participated in the decision making for the business of the organizational respondent. I find that in the particular circumstances of this case the actions of the Robillards were the actions of the organizational respondent and it is liable for any violations of the Code which I have found occurred.
Evidence and Analysis
15For the reasons that follow I find that the Application should be allowed in part as I have concluded that it is more likely than not that several of the incidents complained of by the applicant did occur and that she did raise them with both Manfred Dietrich and Eloise Robillard. I also find that while much of the conduct ceased subsequent to the applicant’s complaints about the conduct of Sean Robillard. Mr. Dietrich and Ms. Robillard did not treat the applicant’s concerns seriously and from the applicant’s perspective the conduct complained of did not end because of the respondent’s taking steps to eliminate it. Rather, I find the conduct stopped because Sean Robillard did not speak to the applicant again prior to her termination several weeks later.
Credibility
16As with most of these kinds of cases its resolution required that I make determinations about the credibility of the witnesses.
17In considering these I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
18All parties were self-represented and I questioned all of the witnesses. I did press several of them about their evidence on some points most particularly the applicant.
19For the reasons that follow I find that the evidence of the applicant should be preferred.
20The applicant gave her evidence in a straightforward manner and was able to describe the events she complained of with significant detail indicating that she was describing real events. She was also able to describe in some detail the alleged exposure of the respondent Sean Robillard’s genitalia in response to my questions about it. She admitted when she could not remember things or when she was wrong about the timing of an event. Her evidence was by and large internally consistent and described events which could have taken place and in this case I find on a balance of probabilities did occur.
21Most importantly the applicant tendered the evidence of another former employee of the respondents, Ms. I, who corroborated many, but not all, of the applicant’s allegations. The evidence of Ms. I was credible as well. She was also the most independent witness with no evident stake in this proceeding. I assume that she is a friend of the applicant but their relationship was not pursued by the respondent. She was asked by the respondents whether she had received any promise of compensation for her evidence. She testified that she had not.
22Ms. I gave her evidence in a straightforward manner. It was not evidently intended to favour the applicant, although it did so in most respects. She did make admissions about her own behaviour in this workplace which did not place her in the best light including for example referring to the Robillards as crazy assholes to their face. She also conceded that she had said unflattering things to the individual respondents about the applicant behind her back.
23Both the applicant and Ms. I were vigorously challenged on their version of events by the respondents and responded to those challenges. I questioned them both. Their version of events varied enough to not appear rehearsed but remained largely unshaken at the end of the day.
24The most compelling attack the respondents were able to make on the applicant’s evidence was in relation to her attending with Sean Robillard after work hours to look at a motor vehicle. The parties appeared to agree that this took place after the alleged exposure of Mr. Robillard’s genitalia in the workplace. The respondents queried the applicant about her willingness to ask Sean Robillard to assist her after the alleged incident of exposing himself in her presence. The applicant testified that she was desperate. She also testified that she brought along her niece and that Ms. Robillard was expected to attend but did not do so at the last moment. The applicant also testified that she felt less vulnerable in this situation than she did in the workplace.
25I accept the applicant’s explanation for her behaviour. In the circumstances it appears reasonable. I note that the applicant repeatedly stated that she did not feel targeted by Sean Robillard and while his behaviour made her somewhat uncomfortable she was not afraid of him or afraid to be in his presence.
26The respondent also challenged the applicant’s evidence about a visual image that was said to be reminiscent of Manfred Dietrich. It was suggested that the applicant had obtained the image from Mr. Robillard’s Facebook page. The applicant agreed that she asked to be Facebook friends with Sean Robillard at some point but could not recall seeing the image on his page. She maintained, but was not entirely certain, that she had been shown the image by Ms. Robillard. In my view little turns on the fact that the applicant had at some point “friended” Mr. Robillard. It is not disputed that the parties had all been friends at the beginning of the employment relationship.
27The individual respondents did not appear to be deliberately untruthful. However, each of them, for different reasons, had an obvious interest in the outcome of this case. Importantly for the Robillards, this interest included not admitting to their father/in-law, that this somewhat bizarre and in some ways shameful behaviour was going on in the workplace. It is entirely possible that Mr. Dietrich was unaware of some or all of these things until I find he was told something about it in September 2013 after a verbal altercation in the workplace.
28There is also something implausible about the behaviour of the respondent Dietrich after he is witness to a quite violent verbal altercation on or about September 3, 2013 where much profanity was used by all involved, both the applicant and the Robillards. If the respondents’ version of events were accepted their response to this incident was a performance review two days later where they claim the issues to be canvassed were primarily the applicant’s sales figures. This is important because it is at this performance review meeting that the applicant claims that she raised with Eloise Robillard all of the issues she had with Sean Robillard’s behaviour in the workplace. The respondents’ theory of why this meeting was held seems to me to not to be in “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”. There was clearly much more going on in this disintegrating employment relationship than poor sales by the applicant.
29For all of these reasons I have generally accepted the applicant’s evidence.
The Allegations and Evidence
30The applicant testified that Sean Robillard appeared to her to have had an obsession with his genitalia and would “constantly” refer to them in conversation in the workplace. The applicant testified that Ralph, a part time employee, and Sean Robillard would joke with each other in this manner when both were in the shop. The applicant testified that Sean Robillard would talk about his “balls being big” or that they were “hot and sweaty” in her presence on a regular basis.
31The applicant also testified that on or about July 10,2013, but in any case after her return from a business trip to Montreal with Ms. Robillard in July 2013, the applicant “put her neck out” and needed to go to her chiropractor. As she announced her intention to do so, Sean Robillard, asked her if she had put her neck out giving her husband a “blow job”. Sean Robillard acknowledges making a comment to her to the effect of – had she suffered the sore neck or back because she had been “helping out her husband the night before.” Mr. Robillard attempted to suggest that he may have meant something else in saying this but his explanation was palpably unconvincing. The applicant testified that she found this remark particularly troubling because she and her husband were having marital difficulties at the time and are now in the process of getting divorced. It is possible, but not likely, that the words used were those suggested by Mr. Robillard, and heard as “blow job” by the applicant because that is what was meant but I find that whatever form of words was used the meaning of the remark was clear.
32The applicant also testified about what was described as Sean Robillard exposing himself in the office. The applicant said that it was a very hot day in July and the central air conditioning unit had been stolen. The applicant testified that there was an air conditioning unit in the middle of the floor – she later changed this evidence to say that a fan had been placed in the centre of the office – a small 14’ by 13” space which contained two desks, one for Sean Robillard and the other for Eloise Robillard. The applicant testified that Sean Robillard was sitting behind his desk on a swivel chair which he rolled out from behind the desk toward the fan in the centre of the room at which point he said “it’s hot, my balls are hot” he then stood up, unbuttoned his pants, opened his fly, “then he stood up in front of the [fan] and held them up.” The applicant testified that “He exposed his penis and his testicles – he stood up right in front of the fan or air conditioner and aired them.”
33The applicant explained that when this occurred she was in the corner of the room on or near a couple of chairs near the front entrance. The applicant testified that she was on her way out to get lunch and walked from her office at the back of the building to the front office because it was the most straightforward way to get out of the building. When I challenged the applicant about how she could have seen Sean Robillard as she was leaving because he would have been behind her, the applicant responded that she was sitting on one of the chairs, facing back into the office speaking with Eloise Robillard probably about lunch. When I asked her what she did in response to this incident she testified that she felt flustered and said something like “yea it’s hot” and quickly left the building. She testified that Ms. Robillard said nothing but appeared to think her husband’s behaviour was funny.
34The applicant also testified that the Robillard’s would discuss their sex life and the sex life of their parents. A picture of a man apparently naked but for some kind of binding material was circulated in the workplace and said to be Manfred Dietrich. The applicant felt that this was inappropriate and it made her uncomfortable.
35The applicant stated several times that she did not believe that Sean Robillard was being malicious or that he was necessarily targeting her in particular with this behaviour. Rather she gathered from his conduct and that of his wife that they thought that the behaviour was funny. She testified that it appeared to her that from the Robillard’s perspective “the only unusual thing was me – I did not find it (the behaviour) funny.”
36The parties agree that there was a quite significant verbal altercation in the workplace on or about September 3, 2015.
37The applicant testified that she was berated in crude terms by Sean Robillard for taking too long lunch breaks – he referred to them as “fucking executive lunches” according to the applicant. Sean Robillard testified the he referred to the problem as “too long executive lunches”. In any event a heated argument ensued. The applicant agrees that she swore at Sean Robillard and may have called him a “short asshole”. There is also no dispute that Sean Robillard called the applicant a “fucking bitch”. The applicant testified that Eloise Robillard said to her husband that the “she is a bitch, just leave her be” or words to that effect. Ms. Robillard does not dispute referring to the applicant as a bitch.
38The applicant testified that Manfred Dietrich overheard the shouting and intervened. The applicant testified that she broke down in his presence and revealed her concerns about the conduct of the other personal respondents. His response according to the applicant was that they should all have a meeting. This meeting never happened. Instead, according to the respondents, the decision was taken that the applicant would meet with her supervisor, Eloise Robillard, for a performance review. It was at this meeting on September 5, 2013 that the applicant testified that she raised her concerns with the behaviour of Sean Robillard . Ms. Robillard testified that these issues were not raised with her. Instead she testified other issues were discussed at this meeting, including the applicant’s continuing failure to meet sales targets and other interpersonal issues unrelated to the alleged inappropriate conduct of Sean Robillard.
39The applicant testified that when she told Eloise Robillard that she was bothered by Sean Robillard’s behaviour, Ms. Robillard responded by saying that no one else was bothered by it and that they liked the informal atmosphere in the workplace. According to the applicant Ms. Robillard said that her husband was a mechanic and this was him just being funny. She also said, according to the applicant that E, a former female employee of the respondents, had engaged in this kind of jocular banter without any problems. The applicant also testified that Ms. Robillard told her that if she did not like the workplace atmosphere she could leave her employment.
40The applicant left her employment with the respondents in November 2013. The reasons for the termination were not alleged to be discriminatory.
41The respondents deny the allegations. Mr. Robillard adamantly denied ever referring to his testicles or his balls. He denied ever discussing Mr. Dietrich’s sex life. He denied exposing himself. Similarly Ms. Robillard denied ever hearing him say the kind of things that the applicant has claimed were said in the workplace. She denies that her husband exposed himself in the workplace. She does acknowledge showing the applicant a picture of a near naked man who was said to look like her father.
42Mr. Dietrich denied witnessing any of the behaviour described by the applicant although he did say that there was a lot of profanity used in the workplace and he did not approve of it. Ms. Robillard acknowledged that this was the case and that her father did not approve. She testified that she knew that she “disappointed” her father by her conduct on occasion.
43On the other hand Ms. I corroborated the evidence of the applicant that Mr. Robillard would frequently refer to his genitalia – his testicles or balls. She confirmed the applicants’ evidence that the Robillards frequently spoke to her about their sex life and the Dietrich’s sex life and described these conversations in some detail. She also testified that she had a conversation with Ms. Robillard about the applicant’s complaints about the behaviour of Mr. Robillard. Ms. I testified that Ms. Robillard told her that the applicant had complained about the behaviour’s described above but that they would rather close the business down than conform to corporate standards of behaviour in the workplace.
44In cross examination Ms. I testified that Ms. Robillard told her that the applicant had also complained to Mr. Dietrich about the “blow job” remark. Ms. I testified that Ms. Robillard complained to her that the applicant was unable to deal with Sean Robillard’s joking behaviour.
45Ms. I also testified that she heard the Robillards and Ralph making light of Mr. Robillard exposing himself in the workplace. Shortly after this interaction Ms. I asked the applicant what had happened and was told that Mr. Robillard had exposed himself in front of her the day before. Ms. I testified that there were further joking references to this incident over the following weeks.
Decision
46I have carefully considered the competing versions of these events and find for the reasons set out above that I generally prefer the applicant’s evidence over that of the respondents. In addition to the factors discussed previously there were minor problems with the respondents’ evidence. In particular, Sean Robillard initially offered a different version of the “blow job” incident than is contained in the will say. In his will say Mr. Robillard essentially admits the allegation although denying the use of the word blow job. However when he gave his evidence he testified that he was asking her if her relationship with her husband had improved.
47Most significantly the applicant’s evidence was corroborated in several important respects by Ms. I, an independent witness with no identifiable stake in the case and no evident motive to provide partisan testimony.
48In particular I accept the corroborating evidence of Ms. I that Mr. Robillard often referred to his genitalia in the workplace. I also accept her evidence that she heard a conversation between the Robillards and Ralph, the part-time employee, in the presence of the applicant about the alleged exposure incident. She also confirmed that the Robillards would discuss their sex life and that of their parents.
49I find that it is more likely than not that the incidents complained of by the applicant took place, and that she complained about them to the respondents Eloise Robillard and Manfred Deitrich who took no particular steps to end the conduct complained of.
50In particular I find that the respondent Sean Robillard made a suggestive joke about the applicant’s neck or back injury. The allegations are essentially admitted. It is possible that the words used were those suggested by Mr. Robillard and not the more explicit version offered by the applicant. Nonetheless, I find that comment was made and reasonably understood by the applicant to be a sexual reference.
51I also find that the applicant has established that the respondent Sean Robillard in a joking way made multiple references to his genitalia in the workplace and in the applicant’s presence. Her evidence on this point is supported by the evidence of Ms. I.
52I find as well that the Robillards made reference to their and Ms. Robillard’s parents sex lives in the workplace and in the applicant’s presence. This evidence was corroborated by Ms. I.
53I also find that Sean Robillard exposed himself in the workplace and in the applicant’s presence. As indicated, the applicant was able to describe this incident in significant detail. She was vigorously challenged by the respondents and her evidence remained unshaken. Although Ms. I was not a witness to this incident she testified in a credible fashion that the incident was referred to in the workplace subsequently. It is not clear to me why the Robillards would joke about such an incident in the workplace if it had not happened.
54I find that these behaviours sexualized the workplace in a way that the applicant found uncomfortable, and while not directed at her in particular, it created a poisoned work environment for her.
55I find as well that the respondents Sean Robillard and Eloise Robillard referred to the applicant, respectively as a fucking bitch and a bitch. These allegations are admitted. However I find that these comments although gendered were not perceived by the applicant to be sex discrimination and occurred in the context of a violent verbal altercation where much profanity was used. In the particular circumstances of this case I find that there is no breach of the Code for this unfortunate behaviour.
56I find that the applicant raised her concerns about these behaviours with the respondent Ms. Robillard and Manfred Dietrich who took no steps to end the behaviour. Her evidence on this point was confirmed indirectly by Ms. I who heard complaints from Eloise Robillard about the applicant’s various complaints.
57Finally I find that the behaviours by and large ended with the applicant’s complaints on September 3 and 5, 2013 not because of any steps taken by the respondent employer but because Sean Robillard never spoke to the applicant again.
Remedy
58The remedial provisions of the Code are set out in section 45.2 (1) which provides as follows:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the
59For the reasons set out above I find that the actions of the respondents constitute discrimination under the Code by sexualizing the workplace and, for a time, created a poisoned work environment for the applicant.
60Neither party made any real submissions concerning the appropriate remedy at the hearing.
61In her Application the applicant indicated she was seeking $60,000 in compensation. When I asked the applicant what the basis was for that figure she advised that it was based on advice from the Human Rights Legal Support Centre which, based on what the applicant said at the hearing, was largely related to damages for loss of employment. Given that the applicant’s dismissal from employment was unrelated to the issues of concern in this Application the remedy sought is not appropriate.
62In my view an award of compensation of some amount is warranted here. As indicated for the applicant the most serious issue for her was the joking comment about the cause of her neck or back injury, largely because of the troubles she was having in her marriage at the time. This occurred once. She testified that the talk about the sex lives of others in the workplace also bothered her for the same reason. This kind of behaviour was said to have happened on several occasions but it is not entirely clear how persistent it was.
63Less significant were Mr. Robillard’s repeated references to his genitalia and his exposing himself. The references to genitalia were ongoing and repeated from her arrival in the workplace in May 2013 to September 3, 2013 where it appears to have largely ended.
64The applicant testified that these behaviors changed the workplace, which she had hoped would be a refuge from her marriage into a somewhat unsafe place. On the other hand she stated repeatedly that she did not believe she was being specifically targeted and believed that the Robillards thought that it was all fun and games. I also note again that this was a significantly dysfunctional workplace rife with conflict, which were also factors in the applicant’s unhappiness and which she was unable to separate from any distress associated with the Code related concerns.
65I have also considered the fact that the most serious incident for the applicant, the blow job joke, was objectively perhaps the least serious of the things I have found occurred.
66Considering all of these factors I find that an award of compensation of $5,000 for damage to the applicant’s dignity, feelings and self-respect is warranted in the circumstances. Given the nature of this small family business and the conclusions I have reached about the individual respondents’ roles both as participants in the management of this business and of course their roles in the events complained of by the applicant, I find that it is appropriate that the respondents be jointly and severally liable to satisfy this Order.
67The Tribunal makes the following Orders:
a. The respondents will pay to the applicant the sum of $5,000 in compensation inclusive of pre-judgment interest for non-pecuniary losses arising from the infringement of her rights under the Code; and
b. The applicant is entitled to post judgement interest in accordance with the Courts of Justice Act on any amounts awarded to the applicant and still owing to the applicant 30 days after the date of this Decision.
Dated at Toronto, this 17th day of June, 2015.
“signed by”
David Muir
Vice-chair