Lee v. NCR Leasing Inc. o/a Aaron’s Stores, 2016 HRTO 1440

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie Lee

Applicant

-and-

NCR Leasing Inc. o/a Aaron’s Stores and Derek Dunn

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: November 15, 2016

Citation: 2016 HRTO 1440

Indexed as: Lee v. NCR Leasing Inc. o/a Aaron’s Stores

APPEARANCES

Laurie Lee, Applicant

Self-represented

NCR Leasing Inc. o/a Aaron’s Stores, Derek Dunn, Respondents

Jordan R.D. Lester, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that she was subject to discrimination on the basis of sex and sexual harassment and her employment was terminated contrary to the Code. By way of remedy she seeks $11,856 in loss of earnings for 6 months and $8,136 as “$1350 per month for 6 months of emotional and mental stress”. She indicates that she has chosen 6 months as the period of time she anticipates would lapse before she is able to find new work. She also seeks to have personal respondent Derek Dunn reprimanded for his actions and she seeks to have the corporate respondent be required to put policies into effect to prevent this type of situation from occurring.

2The respondents deny all of the applicant’s allegations.

Decision

3For the reasons below, the Application is granted, in part. I find that the store manager, Derek Dunn, answered the applicant’s query about the store’s summer dress code, in a manner which violated the Code. All other allegations are dismissed.

Background Facts

4At the hearing, the applicant adopted her Application as her evidence and provided further testimony.

5The applicant was employed by the respondent store during two separate periods. Initially, she worked there as an Accounts Manager for a short period and then left voluntarily. She returned to work for the respondent as a Sales Manager on March 5, 2015. Her duties included selling new and used furniture and appliances to customers. She was also responsible for marketing, promoting the business and its upcoming sales.

6When the applicant began her work in March 2015, an individual named Ritchie was the Store Manager, and Derek Dunn was in training for that position. It was not disputed that Derek Dunn became the store manager around the first week in April 2015. It was not disputed that during the time period relevant to this Application, there were 7 employees at this store. The applicant was the only female working at the store at that time.

7Derek Dunn testified at the hearing. He testified that he is now the General Manager of the respondent store in Sault Ste. Marie and that before that he had been the Sales Manager there since his hire on December 28, 2014. He testified that in his role as General Manager, he oversees the sales operations and accounts, gives coaching and advice to employees and is the “final answer” on decisions.

8The respondents made a pre-hearing request to have the Tribunal accept telephone evidence from the Human Resources representative, Tim Harris, and from Ronny Mason, former District Manager for reasons of convenience. The Tribunal directed that Tim Harris could provide his evidence by telephone at the hearing, but as Mr. Mason was the only other participant in a conversation which was the subject of an allegation, if the respondents wanted him to testify, he would have to attend the hearing in person. Ultimately, the respondents decided not to call Mr. Mason as a witness, and they indicated that he had retired to Florida.

9Tim Harris provided his testimony on behalf of the respondents via conference call. During the time period relevant to this Application, he was responsible for Human Resources functions at the “home office” of Aaron’s stores. He testified that at the time of their hire, employees receive and review a package of documents, including the Policy booklet containing the “Discrimination and Harassment Policy”. He confirmed that he never received any complaints of sexual harassment from the applicant. He also testified that he never received any complaints of sexual harassment against Derek Dunn.

10Derek Dunn confirmed that the respondent store has a policy regarding sexual harassment, but testified that the applicant has never confronted or complained to him about any sexual harassment.

11In her Application, the applicant makes the following allegations for which she provides some particulars:

• She alleges that Derek Dunn inappropriately touched her on March 18, 2015;

• She alleges that the District Manager, Ronny Mason, dismissed her allegations about Derek Dunn when she alleges she complained to him on April 27, 2015;

• She alleges that on Tuesday May 5, 2015, when she asked Derek Dunn about the summer dress code for women employees he told her the shorter the skirt the better, and to show cleavage;

• She alleges that on May 16, 2015 Derek Dunn called her into his office and terminated her employment, telling her that her performance was not an issue, but she was being let go because the store is a male environment and she was unable to work “with the guys”.

12In her Application, the applicant also makes many broad generalized and vague allegations, including:

• Derek Dunn used “constant dirty talk about woman in general”, “inappropriate talk”, and made “unnecessary inappropriate comments about women”,

• Derek Dunn asked her about her “sex life” and “implied” she and her husband should engage in a three way sexual encounter with him, and alleged she was “constantly subjected to sexual innuendo and some sexual advances” by Derek Dunn;

• “made fun of” her for having had her child at a young age;

• She alleged “Derek made me feel like I couldn’t do the job as well as a Male could”, made comments which made her feel inferior to her male co-workers, told her that the only successful people at his former workplace were men and he displayed an attitude that women could not sell well to customers.

• She alleged that on May 1, 2015, the “sexual nature of talk continued”,

• that “several times” Derek Dunn returned from lunch at a strip club and told the applicant and her coworkers “in detail what he just did in the past hour”.

13Although in the applicant’s Reply, she stated that she “absolutely did not” see the corporate respondent’s employee handbook in March 2015, documentary evidence was entered at the hearing showing her signature acknowledging receipt and review of the policy. Thus, it was not disputed that on March 6, 2015, she had reviewed and acknowledged the respondent’s employee handbook at that time. The handbook includes a procedure for making complaints regarding discrimination and harassment to the respondent’s Human Resources department. The applicant agreed that it indicated that if an employee experiences unwelcome behaviour, the employee is to tell the perpetrator to stop and if it cannot be resolved in that manner, the employee is to report it immediately to the Human Resources department. The applicant agreed that she never reported either the touching incident or the inappropriate talk to the Human Resources department. She testified that the only thing she ever discussed with the Human Resources department was her pay.

14With respect to the impact of the alleged events, the applicant stated in her Application that the events were extremely difficult for her emotionally, it took a toll on her family life, she felt inadequate and was taking anti-depressants daily to deal with her loss. She did not provide any medical documentation. She testified that she applied for work immediately after her termination, for such jobs as dietary aid and waitress. She testified that she located work at the end of August, 2015.

Allegation regarding inappropriate touching on March 18, 2016

15With respect to the allegation regarding inappropriate touching on March 18, 2015, the applicant alleges that she had a good sales day and Derek Dunn approached her, and she thought it was to “high five” her. Instead, however, she alleges that as she put her hand up to “high five” him, he grabbed her breasts, squeezed them and said “Way to go, Laurie”. She testified that at that point, her demeanour changed and she told him that what he had done was totally inappropriate. In her Application, she alleges that he responded “Sorry Laurie but it’s all in fun ya know” and in her testimony, she described his reaction as just “sluffing it off”.

16The applicant testified that the incident took place at the back of the showroom, near the back room where excess furniture is kept. She testified that she could not be certain if there were any customers in the store at the time, but that she believes her co-workers Matt and Jean were in the office area of the store. In cross-examination, she stated that she could not recall where she was standing at the time, or what time of day it was.

17The applicant testified that she did not complain about the incident to someone “then and there”, as she was afraid of losing her job, which she felt paid her well. She testified that after work that day, she spoke to Ritchie, the store General Manager at the time, “in general conversation after work, but not in as professional a way as I should have”. In cross examination when she was asked why she did not report this to the HR department, she stated that she did not want to “air dirty laundry” and “did not want to be viewed as weak”.

18In his testimony, Derek Dunn denied ever having grabbed the applicant’s breasts or making the comment that it was all in fun.

Allegation regarding the General Manager’s response to her April 27, 2015 complaint

19In her Application, she alleges that on April 27, 2015, the respondent’s District Manager, Ronny Mason, was making a routine visit to the store and she asked to speak with him privately about Derek Dunn and “other male co-workers in regards to inappropriate touching and talk”. In her Application, she stated that she described the touching incident of March 18, 2015 to Mr. Mason “in detail” and that she provided other “detailed examples” of daily occurrences, but he dismissed her simply saying he would talk to Derek Dunn about the matter.

20At the hearing, she testified that this was his first visit to the store since the alleged touching incident of March 18, 2015. She testified that she told him that she felt she was being talked down to every day and that she was not respected. She testified that she told him about how Derek Dunn spoke to her and the fact that he makes sexual innuendos regularly. She testified that she also told him that the “general talk” in the office was inappropriate, not just with Derek Dunn, but with all her co-workers. She testified that she did not tell him about the touching incident of March 18, 2015. She testified that Ronny Mason told her she was over-reacting and that he could not believe that Derek Dunn would be that unprofessional. She testified that she told him that Derek Dunn was in fact behaving in that way, but that she got the impression from Mr. Mason that she was wasting his time. She alleges that Ronny Mason said that he found it hard to believe, as Derek did not strike him as someone who would be unprofessional, and that he knows better.

21In cross-examination, the applicant testified that she did not pick up a phone to call Mr. Mason about her concerns earlier because she did not find him approachable and she feared him. It was not disputed that he was not at the store frequently, but she does not indicate any previous interaction with him which had led her to conclude that he was unapproachable. She testified that before she approached him with her concerns she spoke at length with her spouse about it and he encouraged her to talk to Mr. Mason. She testified that initially she was going to tell him about the touching incident, but then decided against it, as she did not think she would be believed. She also testified that he said he would speak to Derek Dunn about it.

22In their Response, the respondents deny that the applicant ever brought forward any complaint about the conduct of Derek Dunn to either the Human Resources department or to any senior manager such as Mr. Mason.

23In response to his counsel’s question about how he thought Mr. Mason would react to a complaint about sexual harassment, Derek Dunn testified that he had never heard him react to any kind of complaint like that, but from what he knows of Mr. Mason, he would never turn a blind eye to anything and was always very direct to Mr. Dunn about what was going on, and was not the type of person to let anything slide.

24The applicant testified that she did not speak to Mr. Mason about any further incidents because she did not feel she would be believed, due to his reaction on April 27, 2015. She also testified that she did not notify the HR department as she did not even know who the HR representative was until she filed the Application. She also testified that she had had contact with the HR representative before, but only in respect of her pay stubs.

Allegation regarding a May 5, 2015 comment regarding workplace attire

25In her Application, the applicant alleges that on Tuesday May 5, 2015, she asked Derek Dunn to explain the wardrobe policy for females in the summer months. She alleges that he responded by telling her that the shorter the skirt the better, and she should “show cleavage”.

26There is no dispute that the normal attire at the workplace is a pair of black pants and a shirt which is provided by the store. There is no dispute that by early May 2014, the applicant had not yet received her store shirt. At the hearing, the applicant testified that in early May 2014, she asked Derek Dunn to explain the summer wardrobe policy for women, as she wondered if it would be permitted for her to wear capri pants. She testified that in response to her question about the wardrobe policy for hot weather he told her that the “shorter the skirt the better and show cleavage”.

27With respect to the applicant’s allegations about his remark about a work wardrobe for the summer, counsel asked if he had encouraged the applicant to “wear a short skirt and show her breasts”. He denied having done so. He testified that there is a dress code, but that at the time, the applicant did not yet have her work shirts, so “casual business” would have been appropriate in the meantime.

Allegation regarding termination of her employment

28In her Application, the applicant alleges that Derek called her into the office on May 16, 2014, and terminated her employment with the respondent. In her Application, she states that what he said to her at that time is where she has “the biggest problem.” She states:

I quote “Laurie we have to let you go” I sense you are not happy here and as you are aware of this is a MALE oriented place to work”. Your performance was never an issue but your inability to work with us guys is thus we cannot have you working here any longer. “I wish you luck but suggest your future employers be female”.[sic]

29In her Reply to the Response, in which the respondents denied the allegations, the applicant stated:

I was told and I quote ‘Laurie it’s nothing personal but you know this is a male oriented place to work and you don’t seem to be the right fit here’.

30In her testimony, the applicant stated that she asked Derek Dunn why he was terminating her employment; his response was that her “numbers are not where we need them to be” and also that “you know as well as I do that this is a male-oriented business”. She testified that she argued that that was not a good reason to fire her, but he insisted that she was “not selling enough” and they needed someone who would do a better job. She testified that he kept saying she was “too soft”, she was not good enough at the job, and that she did “not fit in”. She testified that he said he thought she was not happy at the job and she could find somewhere where she would be “more suitable”. She testified that he did not say why he thought she was not happy and testified that he did not say what kind of position he thought would be more suitable for her.

31In cross-examination, she stated that she was not sure what her sales numbers were like at the time of her termination but agreed that they “were not as good as they could be”. She stated that there was a constant competition for sales between her and another employee, but they were supposed to be taking turns. She testified that she felt her sales were “pretty good” considering the fact that she had to deal with a lack of opportunity.

32When asked about the difference between her Application and Reply, which she indicated was verbatim, and her testimony with respect to whether her performance was discussed at her termination, she stated that it was a “matter of different wordingI was writing two different things and meaning the same thing”.

33In its Response, the respondents assert that the applicant began a 90 day probationary period when she began her work on March 3, 2015 as a sales manager and she was terminated within that period on May 16, 2015 due to poor performance.

34Derek Dunn testified that the reason for the applicant’s termination was that she was not “fit” for the sales manager position. He testified that when the applicant began, he had not yet taken over the role of General Manager of the store, so they had the same role at first. He testified that she would do learning modules, and then would learn from him how to go through the sales process and close the sale. He testified that they worked a lot together, so that she could learn. He testified that they worked on the sales floor together during her training, and he would give her guidance.

35He testified that once the training period was over, the applicant’s sales were such that he decided that she could not meet the sales target. Overall, he testified, the store was not meeting its sales target, and he decided that the applicant would not be able to “lead that charge”. He agreed that in the first two weeks of May, the applicant had made 12 sales, but testified that only 5 of the sales were to new customers and that the monthly goal is to sell to 60 new customers. He testified that the weekly goal for the sales manager was 7 new customers, the customer service representative (CSR) was to attain 5, the general manager was responsible for 2 and the remainder was the responsibility of the members of the accounts team. He testified that in May as she was approaching the end of the probationary period, he had to ask himself if she would “be a fit going forward” and that she would not be able to develop the required skills quickly enough and so he had to let her go. He denied having told the applicant that her future employers should be female, as she had alleged in her Application.

36The applicant did not dispute the “target numbers” identified by Derek Dunn. Sales figures for the months of March, April and May, 2015 were entered into evidence, indicating that the applicant made 20 sales to 15 new customers in March, 24 sales to 17 new customers in April, and 12 sales to 5 new customers in May, 2015.

Allegation regarding “dirty talk” and allegation regarding talk of a “sexual nature” on May 1, 2015

37In her Application, the applicant alleges that Derek Dunn engaged in daily “dirty talk about women in general” and that she was “always talked to as if [she were] ‘one of the guys’”. In her Application, she also alleges that Derek Dunn referred to female customers as “sluts”, “whores” and “white trash”.

38At the hearing, she testified that when single mothers came in to shop or to pay their bills, Derek Dunn always had something to say about them. She testified that he referred to single mothers as “sluts” and “prostitots”. In her testimony, she also alleged that “sexual innuendos” about her and about women customers were made by other co-workers, M, D and E, but especially by Derek Dunn. She stated that an individual individual named Adeline, who was not an employee of the store, heard the comments and was going to be her witness, but it did not “pan out”. She does not indicate any effort she made to subpoena Adeline or any other witness, including M, D, or E, to provide evidence at the hearing.

39In cross-examination she testified that Derek Dunn made these comments about the customers to her and the other employees, but not to the customers themselves. Also in cross-examination she testified that she had not notified the HR department about the inappropriate talk in the workplace as “they are in Thunder Bay and I felt it was an issue for the Sault Ste. Marie store”.

40In her Application, the applicant alleges that on May 1, 2015, Derek Dunn continued with “talk of a sexual nature” and when she spoke up, Derek Dunn said that if she did not like the way people talked in the office, she should just leave the office and go into another room. She alleges that she left the office area and when she left work that day she remained upset. In her testimony, however, the applicant stated that she could recall no incident between Mr. Mason’s April 27, 2015 visit to the store and her May 5, 2015 inquiry regarding the summer dress code.

41Derek Dunn testified that he likes to “keep the workplace professional”, though there are “conversations that take place”. When his counsel asked him about the fact that the applicant alleges that he engaged in “dirty talk about women in general”, he stated that “there are probably conversations that took place in general or in theory”, but that “if there were any of those conversations, there would be a point where it would be enough, it has gone too far, we have to get back to work”. He stated that he had no examples.

42When his counsel asked him if he had referred to female customers as sluts, whores and white trash, as the applicant had alleged in her Application, he denied having done so. When his counsel asked him if he had referred to customers using terms “anything of that nature”, he testified that when talking among the accounts team, they must monitor what is going on in the files, and if an account is not paid, they must find out why and talk to the customer on the phone. He testified that “we talk about what we have heard and seen” and testified that he would “not say that personal opinion does not show up”. He testified that we “may refer to girls or guys in a derogatory sense” and that the word “deadbeat” comes up a lot if people do not pay their bills. He testified that he does not use the terms attributed to him.

43When his counsel asked him if he recalled the applicant confronting him about the sexual nature of his language on May 1, 2015, Mr. Dunn testified that he did not recall such a conversation. He similarly denied that the applicant had ever complained to him about sexual harassment.

Allegation regarding sexual propositioning and innuendo

44In her Application, the applicant alleges that Derek Dunn asked her about her sex life and “implied” several times that she and her husband should have a three way sexual encounter with him.

45In her testimony at the hearing, the applicant testified that on one occasion, he explicitly proposed that she and her husband participate in a three way sexual encounter with him. In cross-examination, she stated that the “talk around it” happened more than once but the “actual proposition” happened once only. She was unable to recall the date and testified that sometimes comments were made weekly, sometimes twice in a week and then not for a week and a half. In cross-examination she testified that she could not recall where she was on the one occasion he propositioned her, nor could she recall other details about the occasion. She states that she found these kinds of comments distasteful and never encouraged them. She testified that Derek Dunn’s comments about her sex life usually took place in the office area of the store. She stated that told him that it bothered her to listen to “the unprofessional way he conducted himself on a daily basis”. She testified that she told him on many occasions that this kind of talk bothered her, but he continued and seemed to regard it as a joke. She testified that there were “other discussions” about her “sex life”, but she could not recall when they occurred, nor was she able to provide any other details.

46In his testimony, Derek Dunn denied having asked the applicant about her sex life and denied having propositioned her to have a three way sexual encounter with him and her husband.

47In her Application, she alleged that he made fun of her for having had her daughter at a young age.

48At the hearing, she testified that he referred in a “round about” way to her having had her daughter at a young age and told her she was “easy”. She testified that he made these references twice between March and May but she could not recall exactly when. In cross-examination, she also testified that he was not making fun of her, but that the “subject came up” once or twice.

49In his testimony, Derek Dunn denied having disparaged the applicant for having a child at a young age, and testified that he knew she had some children but did not know how old she was when she had them.

Allegation regarding comments about women’s inability to do the job

50In her Application, the applicant alleges that Derek Dunn made her feel that she could not do the job as well as a male could. She alleges that Derek Dunn constantly referred to his previous employer and said that the only successful people there were men. She provided no further testimony regarding this allegation.

51In his testimony, Derek Dunn denied having said that the only successful people at his former workplace were men, as he was aware of two female sales people there who were doing well. He testified that he did not believe that only men were good salespeople. He testified that he currently has a woman working as a sales person at the store, and she and another sales person were recognized as having the company’s best sales in the country.

Allegations regarding workplace talk about a strip club

52In her Application, the applicant alleges that “several times” Derek Dunn left for his lunch break and went to a strip club, then returned to the workplace and told her and her co-workers in detail what he had been doing for the past hour.

53She provided no further testimony about that allegation, but in cross-examination, she testified that he had no fixed lunch hour and depending on how busy the store was, sometimes he worked through lunch. She testified that she never reported any of this to the human resources department.

54Derek Dunn also testified that he cannot take the allegation that he went to strip clubs at lunch seriously, as he barely takes lunch and would not have time to “drive across town to where the strip club is”.

Submissions by the Parties

55The applicant submitted that things happened at her former workplace which “needed to be put out there”. She submitted that what took place there took an emotional toll on her when she lost her job. She submitted that she went into depression and felt inadequate and did not understand how a woman could not do a job a man could do and that played a “big part in [her] brain for a long time”.

56The respondents submitted that there were inconsistencies in the applicant’s testimony which must be considered. Counsel noted, for example, the fact that in the Application the applicant says she told Mr. Mason about the touching incident, but in her testimony at the hearing she said she did not. He also submitted that she testified that she did not tell Mr. Mason about the touching because she was afraid for her job, but he submitted that throughout the Application, she does not seem to be someone who is afraid that making a complaint about her employment, and noted that she alleges that she did speak to Mason about her other concerns.

57Further, counsel noted that in her Application, she alleged that she was terminated as it was a male-oriented workplace, but in her testimony, she admitted that Derek Dunn told her sales numbers were not where they needed to be. He noted that in her Application, she stated that “performance was never an issue”, but in cross examination she had admitted that it was a factor and stated that her sales numbers were “not on target”.

58Further, he noted that in her Reply to the respondents’ Response, she denied having reviewed an employee handbook containing the discrimination and harassment policy, but that in her testimony when confronted with the acknowledgement form she signed, she agreed that she had seen it.

59Further, counsel submitted that the allegations as described in her Application differed from her testimony regarding propositions of a three way sexual encounter.

60He submitted that a number of the allegations were simply denied by Derek Dunn and that had they occurred, and had she complained to the Human Resources department, allegations would have been dealt with according to the corporate respondent’s policy. He submits that she has not established that the corporate respondent was aware of any complaints.

61He submitted that her employment was terminated for reasons of poor performance, and submitted that though she may believe that her gender played a role in what she experienced, she has provided no evidence beyond her own assumptions and beliefs.

62He submitted that the applicant has not discharged the onus of establishing her allegations on a balance of probabilities and he submits that the Application should be dismissed in its entirety.

63The respondents cited: Cugliari v. Telefficiency Corporation 2006 HRTO 7 (Cugliari); Mauer v. Metroland Media Group 2010 HRTO 2056 (Mauer) and; Guydos v. Great-West Life 2015 HRTO 1330 (Guydos).

Law and Analysis

64The relevant provisions of the Code are as follows:

Employment

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. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

Harassment in employment

(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. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).

Harassment because of sex in workplaces

(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.

Sexual solicitation by a person in position to confer benefit, etc.

(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

10.(1) In Part I and in this Part,

“harasssment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

Acts of officers, etc.

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.

65The respondents deny the applicant’s allegations and much of the testimony is best described as “she says/he says”, where credibility and reliability of oral testimony is key. An often cited case in relation to assessing credibility of a witness’s testimony is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At pages 356-357, 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.

66I am also guided by Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, where the Tribunal stated at paragraph 54:

Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witnesses, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of the witness’s evidence does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.

67The applicant bears the onus of proving that her Code rights have been infringed by the respondents on the balance of probabilities. While it is often difficult or impossible to obtain corroborating testimony regarding such matters as sexual harassment, and while it is not necessary for a finding which upholds such an allegation, in circumstances where the applicant indicates that there were other individuals present, and does not inidcate any effort she made to subpoena them to provide testimony at the hearing, the absence of testimony to corroborate, or alternatively the absence of testimony regarding efforts to call witnesses to the hearing, is troubling. Even where a witness appearing under subpoena may be uncooperative, the opportunity to hear that witness’s evidence and cross examination can be significant. At a minimum, in the absence of other evidence which would be consistent with the applicant’s allegations, the absence of such testimony leaves the trier of fact with no evidence other than the applicant’s testimony.

68Further, the applicant’s evidence must be found to be credible, and it also must be found to be reliable. It is entirely possible that an individual may provide testimony which they truly believe, but if that evidence is not reliable, it is ultimately of little assistance to the trier of fact in determining the facts on a balance of probabilities.

69As explained below, there were significant inconsistencies in much of the applicant’s evidence, especially regarding significant matters, to such an extent that much of her evidence was found to be unreliable.

70I did not find the evidence of Derek Dunn to contain internal inconsistencies. His testimony regarding “inappropriate comments” was frank. Especially where the applicant’s evidence has been found unreliable, I have generally preferred the evidence of Derek Dunn. Outside the one instance, as recounted below with reference to the conversation about the summer dress code where I found his evidence to be evasive, I have accepted the evidence of Mr. Dunn.

Allegation regarding inappropriate touching on March 18, 2016

71This is arguably the applicant’s most serious allegation. The applicant testified in a general way as to where she alleges the touching incident occurred (around the back of the showroom), and also testified that she believes her coworkers Matt and Jean were in the office area of the store. She testified that she was uncertain as to whether there were customers in the store at the time. She testified that her demeanour changed immediately and that she told Derek Dunn his actions were unacceptable. She testified that she was not certain as to the time of day. She testified that she simply had a “general conversation” with Ritchie, who was the General Manager of the store at the time, at the end of the day, but she did not report the incident to him or to the Human Resources department of the corporate respondent. Derek Dunn denied the entire incident.

72As noted above, it is often difficult to provide a witness in respect of sexual harassment, especially given the fact that it is something which may occur in private. In the case of this allegation, however, the applicant has indicated that it took place in a public place (the back of the store showroom), that she is not sure if there were any customers present and she believes that there were coworkers nearby in the office area. She testified that she did not complain to anyone, even though she indicates that she had a “general conversation” with the store manager at the end of the day. It is concerning that the applicant has not indicated whether she made any efforts to locate and subpoena anyone else who may have been in the store, with a view to ascertaining whether they may have had witnessed what had happened, or even to subpoena witnesses who may have provided evidence regarding her or Mr. Derek Dunn’s demeanour, comments or behaviour for the remainder of the day.

73As discussed above, while corroborating evidence from a witness is not essential, where there is a possibility that some such evidence may have existed and where there is no indication of an effort by the applicant to furnish such evidence through a witness under subpoena, especially where the allegation is such a serious one as this one, the absence of such evidence or evidence of efforts to obtain such evidence, is troubling. In these circumstances, it results in a negative inference being drawn. It also of course results in an absence of testimony which may have been available, which may have either corroborated or challenged the applicant’s allegations, either directly or by inference. In any event, it has resulted in the absence of evidence beyond her testimony to support the allegations on a balance of probabilities.

74Further, the applicant does not indicate that she complained to anyone about this incident at the time, including the store’s General Manager with whom she spoke at the end of the day. While there may be understandable reasons why someone would decide not to complain about such an incident, the applicant’s evidence was that she immediately told Derek Dunn that it was unacceptable, and does not portray herself as someone who remained silent in the face of such an assault. In these circumstances, her failure to complain to anyone, including the store’s General Manager with whom she later spoke in “general conversation”, is also of concern and does not appear consistent with what she described as a strong immediate verbal response to Mr. Dunn at the time of the alleged touching.

75I also note that even though at one point she said she did not know that the Human Resources department was available for such complaints, when asked about why she failed to complain to them on this occasion, she testified that she did not want to “air dirty laundry” or “appear weak”. While it is true that not everyone will make a complaint regarding inappropriate touching such as this, the fact that she spoke out immediately to Mr. Dunn, later had a “general conversation” with Ritchie and decided not to tell the Human Resources Department for reasons which appear to be at odds with her reaction to Mr. Dunn himself, is an apparent inconsistency which does not support the credibility or reliability of the applicant’s testimony.

76It must be stressed that there is not always an eye witness to sexual harassment and that a finding of sexual harassment is possible without such eye witness testimony. As the Tribunal stated in paragraph 54 of Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, “a conclusion of credibility develops from various interrelated findings”. The onus remains on the applicant to establish her allegations on a balance of probabilities, and the trier of fact will consider the surrounding evidence to ascertain whether she has discharged that onus. In the circumstances of this case, for the reasons stated above, I am not satisfied that the applicant has furnished the evidence to discharge the onus of establishing her allegation regarding inappropriate touching, on a balance of probabilities.

Allegation regarding the General Manager’s response to her April 27, 2015 complaint

77In her Application, the applicant stated that on April 27, 2015 she asked to speak with the General Manager Mr. Mason privately about Derek Dunn and “other male co-workers in regards to inappropriate touching and talk”. In her Application, she stated that she described the touching incident of March 18, 2015 to Mr. Mason “in detail” and that she provided other “detailed examples” of daily occurrences [emphasis added]. In her testimony at the hearing, however, the applicant’s evidence regarding her discussion with Mr. Mason was markedly different. At the hearing, she testified that she told him that she felt she was being talked down to, was not respected, that Derek Dunn brings up sexual innuendos “all the time” and that the “general talk in the office is inappropriate”. She testified that she did not say anything to Mr. Mason about the alleged touching incident, nor did she indicate what “detailed examples” she provided to Mr. Mason. I also note that she detailed no other allegation of “inappropriate touching” by “other male co-workers”. When she was asked to explain the difference between her testimony and the narrative contained in the Application, and in particular why she said in her Application that she had spoken to Mr. Mason “in detail” about the touching incident, she testified simply that she felt there was no point in telling Mr. Mason about it.

78As noted above, the allegation regarding inappropriate touching on March 18, 2015 is arguably the applicant’s most serious allegation. The fact that she testified that she spoke to Mr. Mason about concerns in the workplace but not about the alleged touching incident is concerning, though it is possible that someone could be reticent to make such a serious allegation to one’s supervisor’s boss. The fact that in her Application she said she told Mr. Mason all about the touching incident “in detail” and then testified that she said nothing about it at all to him, however, is baffling. The two cannot be reconciled and the applicant has not provided a satisfactory explanation for the difference in the two accounts of her conversation with Mr. Mason, especially in respect of such a central and significant allegation. In circumstances where the applicant’s testimony regarding a conversation is found to be reliable, it would be of significance that the opposing parties failed to call evidence from the other participant in the conversation. In these circumstances, however, I am not at all satisfied that the applicant’s evidence is reliable and the absence of Mr. Mason’s testimony regarding this issue does not render the applicant’s evidence reliable. I do not find that she has established, on a balance of probabilities, that she made a complaint as alleged, to Mr. Mason. Accordingly, I do not find the respondent employer liable for a breach of the Code with respect to this allegation.

Allegation regarding termination of her employment

79On May 16, 2015, Derek Dunn called the applicant into his office and terminated her employment. It does not appear that there were any other witnesses to the discussion and accordingly, the only testimony regarding this meeting was from the applicant and from Derek Dunn. Other evidence before me is the documentary evidence regarding sales and the undisputed evidence regarding the level of sales required of the applicant’s position.

80In weighing the evidence of the applicant, I am again troubled by the inconsistencies between what she said in her Application, her Reply and in her testimony at the hearing. As noted above, she indicated in both her Application and Reply that she was providing a verbatim account of what Derek Dunn had said, reporting that Derek Dunn made it clear that the termination was not due to her performance but rather was due to her gender. However in her testimony at the hearing, she stated that Derek Dunn told her that she was being let go and that her “numbers are not where we need them to be”. Additionally, at the hearing the applicant agreed that the CSR, an individual whose “target numbers” were lower than hers, sold more than she did. The applicant also testified that Derek Dunn said that it was a male-oriented business, and that when she told him that it was not a good reason to fire her, he told her that she was not selling enough product and they needed someone who could “do a better job”. In her testimony she recounted a conversation where the focus was in fact on her ability to sell.

81She testified that Derek Dunn did not say why he thought she was not happy and testified that he did not say what kind of position he thought would be more suitable for her. This is in contrast to her Application where she alleged that he told her she should find a job where her future employers were female.

82When asked about the difference in her accounts of the conversation as between her Application and Reply, she stated that it was a “matter of different wording…I was writing two different things and meaning the same thing”. In my estimation, however, the conversation as recounted in her testimony represented a significant departure from the way she recounted the conversation, allegedly verbatim, in her Application and Reply. In the circumstances, I am not satisfied that the applicant’s evidence regarding the May 5, 2015 conversation, is reliable.

83The only other evidence before me regarding this conversation is the testimony of Derek Dunn. He testified that he took the decision to terminate the applicant’s employment because she was not demonstrating the ability to sell product at the level required of her.

84Documents illustrating the levels of sales made by the applicant and by other employees were entered into evidence and are consistent with Derek Dunn’s testimony regarding the applicant’s performance. I am satisfied, based on the evidence before me, that the applicant’s less than satisfactory performance in her sales position was the reason for the termination of her employment.

85While it is true that a violation of the Code is established if discrimination is just one of the reasons for the termination of an individual’s employment, even where there are other non-discriminatory reasons present, in the circumstances of this case where I have found the applicant’s evidence of the May 16, 2015 conversation to be unreliable, I am unable to find that the applicant has demonstrated a violation of the Code on a balance of probabilities.

Allegation regarding “dirty talk” and allegation regarding talk of a “sexual nature” on May 1, 2015

86The applicant bears the burden of establishing her allegations on a balance of probabilities. As noted above, a number of the applicant’s allegations are vague and unparticularized. In her evidence, she testified that comments were made by her coworkers M, D and E, but mostly by Derek Dunn. She did not provide greater detail in her testimony nor could she recall any incident other than the conversation with Derek Dunn regarding the summer dress code.

87With respect to the applicant’s unparticularized allegation of “constant dirty talk about women in general” and “unnecessary inappropriate comments about women”, Derek Dunn testified that “there are probably conversations that took place in general or in theory”, but that “if there were any of those conversations, there would be a point where it would be enough, it has gone too far, we have to get back to work”. He did not appear to dispute that there were inappropriate comments made in the workplace, though he stated that he had no examples. He provided no dates, identified no individuals as having made the comments, and importantly, gave no particulars regarding what was said which he deems “inappropriate”.

88With respect to the applicant’s allegation that when customers came into the store, Derek Dunn would call them names such as whore and slut, and in her allegation “white trash”, while in her testimony she said “prostitot”, Derek Dunn also testified that there were negative comments made about male and female clients, but simply allowed that if they did not pay their bills they were often referred to as “deadbeats”. He denied having made the comments attributed to him by the applicant.

89The applicant alleges that comments were made on a regular basis in the workplace, and in cross examination, stated that the comments were heard by coworkers M, D, J, E and C as well as an individual named Adeline who was not an employee. She stated that Adeline was going to be her witness, but it “did not pan out”. She does not does indicate any effort she made to subpoena Adeline or any other witness to provide evidence at the hearing.

90The evidence surrounding these general allegations is particularly troubling, given the fact that Derek Dunn agreed that there were likely “inappropriate” comments made. However, even with testimony from Derek Dunn that there were likely comments he deemed “inappropriate”, without any particulars, such as what was said and when it was said and by whom, with respect to this generalized allegation, I am unable to make, as a finding of fact, that there was language used by a particular individual or individuals, at a certain date or event, which amounted to sexual harassment and infringed the applicant’s rights under the Code. In making this finding, I am not finding that there were no inappropriate comments made about women at the respondent workplace, but am finding that the evidence before me does not establish on a balance of probabilities that there was a particular event or events which occurred and amounted to a violation of the Code by a particular individual or individuals (other than the comment regarding the summer dress code, addressed below).

91Though the applicant made an allegation in her Application that Mr. Dunn continued to engage in talk of a “sexual nature” on May 1, 2015, she provided no further testimony regarding this allegation and instead, when asked, stated that the nothing of note happened after Mr. Mason’s visit to the store and her attempt to speak to Mr. Dunn about uniforms on May 5, 2015. Mr. Dunn denied having engaged in talk of a sexual nature on May 1, 2016. Especially in the absence of any testimony from the applicant regarding what was said, or any description of the alleged event, I am not satisfied that the applicant has established a violation of the Code in respect of this allegation on a balance of probabilities.

Allegation regarding sexual propositioning and innuendo

92Derek Dunn denied the allegation that he had ever asked the applicant about her sex life or proposed a three way sexual encounter with her and her husband. He likewise denied making remarks about the age the applicant was when she had her children, saying he did not even know how old the applicant was when she had her children.

93The applicant alleged in her Application that Derek Dunn “implied” that she and her husband and he should have a three way sexual encounter. In her testimony, she went further and testified that he actually proposed such an encounter on one occasion, and implied it on several others. Again, she provided no particulars regarding what was said or when it was said, other than to say that he implied it frequently.

94With respect to the allegation, which was made for the first time at the hearing, that Derek Dunn explicitly proposed a three way sexual encounter with her and her husband, I do not find that the evidence establishes this allegation on the balance of probabilities. The explicit proposal of such an encounter would be more serious and remarkable than would comments that “imply” such an encounter. However, when the applicant drafted her Application, there she made no reference to such a direct proposition and alleged instead that Derek Dunn “implied” that such an encounter should take place. I find that this omission is consistent with the event not having occurred. Further, there is a lack of particulars about this serious allegation. Though her allegation at the hearing identified Derek Dunn as the individual making the comment, she does not say when it happened, where she was (other than in the store), what exactly was said. Especially in circumstances where the applicant failed to mention this allegation in her Application, I do not find that she has established this allegation on the balance of probabilities.

95With respect to the allegation that Derek Dunn “implied” that she and her husband engage in a three way sexual encounter with him, other than saying that it happened “frequently”, the applicant has provided very little in the way of particulars. Once again, she has not indicated whether anyone ever heard these comments and what efforts, if any, she made to call witnesses to provide testimony regarding these comments which she characterizes as frequent. Most significantly, she has not indicated what he said. The allegation remains vague and she has not shown, on a balance of probabilities, that Derek Dunn made sexual propositions to the applicant in violation of her rights under the Code.

96The applicant also alleges in the Application itself that Derek Dunn “made fun of” the applicant for having her child at an early age and called her “easy”. There is no detail provided as to what Derek Dunn was supposed to have said about her having had a child at an early age, nor was there any other detail provided regarding this allegation. She gave no information with regard to how Derek Dunn would know how old she was when she had a child, and indeed Derek Dunn denied having known how old she was when she had a child. The applicant could not provide any detail regarding the allegation that he called her “easy” other than to say it occurred twice between March and May, 2015, and said he did not make fun of her. In his testimony, Derek Dunn denied this allegation.

97Once again, where the parties have provided testimony in direct contrast to each other, it is appropriate to look at the surrounding facts and evidence. In the matter of this allegation, too, however, the surrounding evidence is lacking. The applicant has not provided evidence regarding how she says Derek Dunn knew how old she was when she had her child, other than saying there were two occasions from March 2015 to May 2016 (in essence the full period of her employment), she has not provided any detail regarding conversations during which she says the “easy” remarks were made. In all these circumstances, I do not find that the applicant has discharged the onus of establishing a Code based violation with this allegation on a balance of probabilities.

Allegation regarding comments about women’s inability to do the job

98Other than adopting her Application as her evidence, the applicant provided no additional testimony regarding this allegation. The only evidence she has provided regarding what made her “feel like [she] couldn’t do the job as well as a man”, or why she says he “displayed an attitude” that women could not sell as well as men, was her assertion that he said the only successful people at his former workplace were men. Derek Dunn has denied making such a comment. In any event, such an assertion in itself would not necessarily constitute a violation of the Code. The applicant has offered no further particulars with respect to why she says he made her feel as though she could not do the job as well as a man, and from the evidence adduced, she has not established this allegation of discrimination contrary to the Code.

Allegations regarding workplace talk about a strip club

99With respect to the applicant’s allegation that on occasion Derek Dunn went to a strip club on his lunch hour, I have similar concerns to those noted above regarding other unparticularized allegations. The applicant testified that Mr. Dunn was often too busy to take a lunch break. In these circumstances, the events she described would have been that much more remarkable, yet she provided no dates. Significantly, she does not identify who else heard these comments, yet in her Application, she alleges that “he would come back and tell us in detail about what he had done for the past hour” [emphasis added]. She does not indicate what efforts, if any, she made to subpoena anyone as witnesses to provide testimony regarding this allegation, though in her allegation she clearly indicates that there were witnesses. Here, too, therefore, the absence of evidence regarding any efforts to subpoeana these witnesses leads to a negative inference. Mr. Dunn denied having gone to a strip club over the lunch hour and returning to the workplace to recount the events there. Once again, especially in light of the lack of specifics and any indication of attempts made to subpoena any witness to these alleged remarks, I do not find that the applicant has provided sufficient evidence to establish this allegation on a balance of probabilities.

Allegation regarding a May 5, 2015 comment regarding workplace attire

100The applicant alleged that this conversation took place on May 5, 2015, and her evidence was consistent between her Application and her oral testimony regarding what was said. She indicated that her query was motivated by a desire to know if there was a change in permissible dress, given the changing season. It was not disputed that she did not yet have her company issued shirt. It was not disputed that a conversation took place, in which the applicant sought to clarify expectations regarding summer dress. It was not disputed that at the time there were no other female employees to whom the applicant could look for answers. The respondents provided no evidence with respect to any written policy available to the applicant to inform her of the dress code. It would make sense for her to make an inquiry of the store manager as the season changed. This allegation had some prominence in the applicant’s recollections, being the only incident she recalled between Mr. Mason’s visit to the store on April 27, 2015 and her termination on May 16, 2015. The applicant alleges that Derek Dunn told her the shorter the skirt the better and to show cleavage. Though in his testimony Derek Dunn denied having encouraged her to wear a short skirt and “show her breasts”, he did not deny that the applicant asked him about the summer dress code, nor did he indicate what answer he provided to the applicant. In his testimony, he merely stated what the wardrobe expectation “would be”. In this respect, his answer was rather evasive. Though the applicant has not indicated whether there were witnesses to this conversation, and though I have found significant portions of her evidence to be unreliable, in examining the surrounding circumstances of this conversation and the fact that Derek Dunn did not provide testimony regarding his version of this conversation, I am persuaded on a balance of probabilities that Derek Dunn made the comment as alleged by the applicant and I find that it constitutes a violation of the Code.

101To be clear, there has been no allegation that the applicant was in fact required to wear short skirts or show cleavage at work, and I do not make a finding with respect to the dress code at the employer. This finding is confined to Derek Dunn’s comment in response to the applicant.

102While the applicant has not established a course of conduct, the Tribunal has previously found that a single comment may constitute a violation of the Code. In paragraphs 67 and 68 of Romano v 1577118 Ontario Inc. 2008 HRTO 9 (Romano), in considering a single remark by Ms. Romano’s employer, the Tribunal stated as follows:

67However, in general, repeated conduct is not essential to a finding that the Code has been violated. For example, in the Bell v. Ladas, (1980), 1 C.H.R.R.D/155 decision referred to by the Supreme Court in Janzen, Adjudicator Shime acknowledged that frequency of conduct is not a condition for an adverse finding under the Code. He stated:

1391 Again, the Code ought not to be seen or perceived as inhibiting free speech. If sex cannot be discussed between supervisor and employee neither can other values such as race, colour or creed, which are contained in the Code, be discussed. Thus, differences of opinion by an employee where sexual matters are discussed, may not involve a violation of the Code; it is only when the language or words may be reasonably construed to form a condition of employment that the Code provides a remedy. Thus, the frequent and persistent taunting by a supervisor of an employee because of his or her colour is discriminatory activity under the Code and, similarly, the frequent and persistent taunting of an employee by a supervisor because of his or her sex is discriminatory activity under the Code.

1392 However, persistent and frequent conduct is not a condition for an adverse finding under the Code because a single incident of an employee being denied equality of employment because of sex is also prohibited activity. (emphasis added)

68I find that while not necessarily meeting the formal definition of a “course of vexatious comment or conduct” under section 7(2), and the definition of harassment in section 10 of the Code, the explicit remark made to Ms. Romano when she picked up her pay is a form of discrimination within the meaning of section 5. The explicit remark was clearly demeaning and attacked the dignity and self-respect of Ms. Romano based on her gender. In addition, it detrimentally affected Ms. Romano “with respect to” her employment, within the meaning of section 5. While Ms. Romano had resigned her employment at the time the remark was made, I find that the Code applies to the situation described, namely attending at the restaurant where Ms. Romano had been employed for the purpose of picking up her final pay and obtaining her record of employment.

103Similarly, in this case, while not necessarily meeting the formal definition of a “course of vexatious comment or conduct” under section 7(2), and the definition of harassment in section 10 of the Code, the remark made to the applicant regarding her wardrobe was clearly demeaning and attacked the dignity and self-respect of the applicant based on her gender, and I find it is a form of discrimination within the meaning of section 5 of the Code.

104While the applicant has testified that her experience at the store had affected her health, this evidence was very general and was unsupported by medical evidence. Further, she appears to have linked the deterioration of her health to the allegations as a whole, and especially to the termination of her employment, not to the single violation of the Code that was established. Given my findings on this matter, and in particular given my finding that her termination was not for discriminatory reasons, there is no award for lost wages in this matter. I do however award damages for injury to dignity and self-respect for the explicit remark made by Derek Dunn regarding summer wardrobe.

105In Arunchalam v. Best Buy, 2010 HRTO 1880, at paragraphs 52 to 54, 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.

106The non-exhaustive list of relevant considerations discussed in Sanford v. Koop, 2005 HRTO 53 (“Sanford v. Koop”) are: humiliation experienced by the applicant; hurt feelings; loss of self-respect, dignity, self-esteem, confidence; the experience of victimization and; the seriousness, frequency and duration of the offensive treatment.

107While the breach in this case was a single remark, it was a demeaning remark which caused the applicant to feel degraded due to her gender. Unlike the 2008 decision in Romano, where the applicant was awarded $1000 for a single comment on the day she collected her final cheque, the applicant here continued to be required to report to work after this comment was made. I find that the applicant experienced a loss of self-esteem, dignity and confidence, though the comment was made only once. I am not persuaded, however, that the evidence establishes that this one comment has been the source of all of the emotional consequences the applicant describes, in particular daily use of anti-depressant medication and family problems. In the circumstances of this case, I find that it is appropriate to award the applicant $3000 in respect of injury to dignity, feelings and self-respect.

108As I have found that Derek Dunn’s comment was discrimination on the basis of sex in employment, in contravention of s. 5(1) of the Code. As a personal respondent, he is liable for having violated the applicant’s right to be free of discrimination under the Code. Further, Section 46.3 of the Code makes an employer vicariously liable for any act or thing done by an officer, official, employee or agent which is found to be in violation of s. 5(1) (and other sections) of the Code.

109By way of remedy, the applicant has also requested that the corporate respondent be required to put in place a policy to prevent such occurrences in the future. With its materials, the corporate respondent filed its policy regarding Discrimination and Harassment, including reference to sexual harassment, sexual solicitation and confidential reporting mechanisms. In the circumstances, I do not find that it would be appropriate to make the order the applicant seeks.

110The applicant has also requested that Derek Dunn be reprimanded. The remedial authority of the Tribunal is not punitive and I do not find that a reprimand is appropriate. I do however find that it is appropriate to order Derek Dunn to undergo training regarding Human Rights by completing the on-line training module “Human Rights 101” on the Ontario Human Rights Commission website. Following completion of the module, he is directed to participate in a review of and discussion about the corporate respondent’s harassment and discrimination policy and the Ontario Human Rights Code with personnel of the corporate respondent’s Human Resources department. These activities shall take place within 60 days of the date of this decision.

Orders

111In view of the findings above, the Tribunal orders as follows:

a. Within 30 days of this decision, the respondents are jointly and severally liable to pay to the applicant the sum of $3,000 in damages inclusive of interest for injury to dignity, feelings and self-respect arising from the violations of her rights under the Code.

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.

c. Within 60 days of this decision, the personal respondent Derek Dunn is directed to complete the on-line training module known as “Human Rights 101” on the website of the Ontario Human Rights Commission and then to participate in a review of and discussion about the corporate respondent’s harassment and discrimination policy and the Ontario Human Rights Code with personnel of the corporate respondent’s Human Resources department.