HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Safari Anderson
Applicant
-and-
Law Help Ltd. and Giuseppe Alessandro
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Anderson v. Law Help Ltd.
APPEARANCES
Safari Anderson, Applicant
Self-represented
Giuseppe Alessandro, Respondent
Richard Kesten and Tom Gagovski, Representatives
Law Help Ltd., Respondent
No one appearing
Introduction
1The applicant, who worked as a Legal Assistant/Paralegal for the respondents, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the individual respondent subjected her to sexual harassment, sexual advances and solicitations, and reprisal in the workplace, which resulted in her resigning from her job.
2The purpose of this Decision is to determine whether the respondents breached the Code, and if they did, whether there should be an order to remedy the breach of the Code.
3The Application is upheld. I have decided that the applicant has proven, on a balance of probabilities, that the individual respondent subjected her to several unwanted sexual advances and solicitations in the workplace, which also amounted to sexual harassment, and then subjected her to a reprisal for rejecting his sexual advances and solicitations, which forced her to quit her job.
4I have also found that the respondents are jointly and severally liable for the breaches of the Code, and order them to pay the applicant monetary compensation as a remedy.
BACKGROUND
5On June 16, 2014, the applicant filed an Application under s. 34 of the Code. Specifically, she alleged that the individual respondent, who owned the organization respondent, subjected her to sexual harassment, and when she declined his advances, he became hostile towards her, and refused to pay her, which forced her to resign from her job. She alleged that she has text messages from the individual respondent which show that he subjected her to sexual harassment.
6On August 18, 2014, the respondents filed a Response, which denied the applicant’s allegations. Specifically, the individual respondent, who identifies as “Joe” and was the Manager of the organization respondent, denied that he subjected the applicant to sexual harassment, or that he sent her any text messages of such a nature. The respondents also denied withholding remuneration from the applicant. Rather, they stated, the applicant was an independent contractor, and that they paid her in cash every Friday. The respondents also denied that the applicant resigned. Rather, they stated, they terminated the applicant’s services because of her poor work performance. The respondents further stated that the applicant is making false allegations of sexual impropriety in order to extort money from the individual respondent.
7The hearing took place on June 15 and 16, 2015. The applicant was self-represented. The individual respondent was represented by two individuals, Mr. Kesten and Mr. Gagovski, whom he identified as unpaid friends as allowed by the Law Society of Upper Canada (“LSUC”). No one appeared on behalf of the organization respondent.
8During the applicant’s opening statement, I asked her to clarify whether one of her allegations is that the individual respondent had refused to pay her as a reprisal for rejecting his sexual advances and solicitations, and she confirmed that this is one of her allegations.
9Following the parties’ opening statements, the individual respondent requested that I order the applicant to produce her income tax returns preceding her employment with the respondents and her criminal record. The individual respondent stated that the income tax returns are relevant because it would be useful to know what the applicant was doing before she started working with the respondents, and the applicant’s criminal record is relevant because if she has been convicted of fraud or theft, it would raise issues about her credibility. The applicant objected on the basis that the requested documents are irrelevant, and she does not have a criminal record. I denied the individual respondent’s request because he did not satisfy me that the requested documents are arguably relevant to the issues in dispute in the proceeding. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at paras. 8-11. The reasons provided in support of the request were vague, and the request appeared to be more in the nature of a fishing expedition.
10The applicant also requested that I order the respondents to produce her Record of Employment and the employment contracts between the respondents and her. The individual respondent objected on the basis that such documents do not exist. I did not order the respondents to produce these documents because of the individual respondent’s position that such documents do not exist.
11I then heard the oral testimony of the applicant, and admitted into evidence a number of documents tendered by her, including a job advertisement, an invoice for paralegal insurance, screen shots of text message exchanges between the individual respondent and her, a print-out of text message exchanges between her and a friend, and a Corporation Profile Report. I asked the applicant whether she had the cell phone where the text messages were stored, and she responded that it was an old cell phone and was at home, but that she would bring it to the second hearing day.
12At the end of the first hearing day, Mr. Kesten stated that the individual respondent was unable to attend the second hearing day because of family matters, and that the hearing should be completed by way of closing submissions/arguments in writing. He stated that the individual respondent had decided not to call any evidence. I stated that I would be willing to adjourn the second hearing day, and have the individual respondent call his evidence at a later date, but Mr. Kesten stated that his instructions were that the individual respondent had decided not to call any evidence.
13I then informed the individual respondent that I still had to examine the applicant’s cell phone because there was a dispute between the parties about the authenticity of the text messages, and that it would be in his interest for at least one person from his side to be present during the examination. Mr. Kesten stated that Mr. Gagovski would attend the second hearing day for this purpose. I examined the applicant’s cell phone in the presence of the applicant and Mr. Gagovski during the second hearing day.
14The applicant and the individual respondent filed closing submissions/arguments in writing in August and September 2015. In his closing submissions/arguments, the individual respondent stated that the organization respondent was bankrupt, and proceedings against it are therefore stayed. However, he did not provide any supporting documentation to substantiate this statement. In the circumstances, I am not prepared to find that proceedings under the Code are stayed against the organization respondent pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended.
EVIDENCE
15The applicant testified that she became a licensed paralegal in 2009, and worked in the legal field until 2012, when she was laid off from her job. She stated that she decided to go back to college to study medical administration between January and December 2013. She stated that she then began applying for jobs in both the legal and medical fields because she is a single mother with two children, and her financial situation was not good.
16The applicant testified that in December 2013, she saw an advertisement on an online job board for a Paralegal position with the organization respondent. She stated there was a telephone number in the advertisement, which she called, and the individual respondent answered. She stated that she saved the individual respondent’s name, Joe, and his phone number, 416-854-09xx, which was a cell phone number, on her cell phone. She stated that she was unable to find a copy of the original advertisement, but that she found a similar one from late 2011, which also had the individual respondent’s cell phone number on it. The telephone contact number in that advertisement is the same as the number that the applicant identified as the individual respondent’s cell phone number.
17The applicant testified that she attended an interview for the position on January 2, 2014. She stated that the individual respondent was the only interviewer, he talked mainly about himself, and he did not ask her any questions about her qualifications for the position, but was eager to hire her. She stated that she was hesitant to take the position because of the oddness of the interview, but because of her financial situation, she was not in a position to turn down an offer of employment.
18The applicant testified that she began working in the office on January 6, 2014. In cross-examination, when it was put to her that her Application stated that she began work on January 3, 2014, she stated that her testimony was erroneous. She stated that she began work on January 3, 2014, and signed an employment contract with the individual respondent on January 6, 2014.
19The applicant testified that her initial job was Legal Assistant because her membership fees and insurance for practising as a paralegal licensed by the LSUC were not up-to-date. She stated that the individual respondent offered to pay for her membership fees and insurance, and she accepted. In cross-examination, when it was put to the applicant that she had misrepresented herself as a licensed paralegal, she denied that she had done so, and stated that she had let the individual respondent know up front that her status with the LSUC was not up-to-date.
20The applicant testified that the individual respondent paid her $200 in cash for her first two days of work, and that on January 6, 2014, she signed an employment contract with him, which provided for a daily rate of pay of $100. She stated that she requested to be paid by cheque rather than cash, and the individual respondent responded that for accounting purposes, she would then have to be paid on a monthly basis. She stated that the individual respondent did not give her a copy of the employment contract.
21The applicant testified that at some point in January 2014, the individual respondent asked her to be a Director of the organization respondent, which she agreed to. A Corporation Profile Report, which is from the Ontario Ministry of Government Services and was produced on February 4, 2014, lists the applicant as the main contact person at the organization respondent’s office address, and as a Director of the organization respondent effective January 7, 2014. The Report also lists the individual respondent as a Director and Officer (President, Secretary, and Treasurer) of the organization respondent, effective September 17, 2010.
22The applicant testified that for the first week and a half of work, the individual respondent was nice to her, and did not treat her disrespectfully. She stated that the situation started to change on January 14, 2014, when the individual respondent asked her to join him in the boardroom in the basement of the office. She stated that he told her that his wife, whom she reported to, was jealous of her, did not like her, and was upset that he had paid for her membership fees and insurance. She stated that he also told her not to worry about his wife or the fees, and that he had taken care of it.
23The applicant testified that later on the same day, the individual respondent texted her about this matter. She stated that she took a screen shot of their text message exchange. The text message exchange, which was in the early evening, stated:
Joe: be happy I am backing you up
Me: Kay
Me: I am
Joe: You should be honored that I do NOT listen to Vicky, and take your side
24The applicant testified that things then became very inappropriate. She stated that she was 23 years old at the time, and the individual respondent was in his forties. She stated that on January 15, 2014, he texted her. The text message exchange, which was in the late evening, stated:
Joe: Hey safari, what are you doing Saturday night?
Me: No sure yet, I might make an appointment with my hair dresser depending on how I feel after work.
25The applicant testified that the individual respondent’s text message made her feel extremely uncomfortable, and she was concerned that if she was completely blunt, he would have terminated her employment.
26The applicant testified that on January 16, 2014, the individual respondent texted her again. The text message exchange, which was in the early and mid-evening, stated:
Joe: Hey I asked you about Saturday because I wanted to know if you wanted to go out clubbing with me and some lawyers
Me: I have really bad service where I live, just seen your text. I have my kids this weekend so I can’t. Maybe next time.
Joe: Ok
Joe: Let me know when
27The applicant testified that the individual respondent then started following her into the file room in the office where he would tell her that he was interested in her. She stated that she told him that she was uncomfortable with the situation because she was reporting to his wife in the office. She stated that she had to be careful with her words because she knew that if she responded in the way that came natural to her, she would lose her job.
28The applicant testified that on January 23, 2014, the individual respondent texted her about this matter. The text message exchange, which was in the late evening, stated:
Joe: would you like to hang out this weekend?
Me: What do you mean
Joe: do you want to go away together this weekend?
Me: LOL I think I would get assassinated
Joe: Why?
Joe: I would pamper you
Joe: like a princess
Me: You know why. No one likes me, I got a target on my back
Joe: I like you a lot
Joe: really a lot
Me: LOL your dangerous
Joe: and I want to start something
Joe: Thanks
Me: I’ll talk to you in person. I gotta wake up early to meet Keshia
Joe: I guess you are NOT interested
Me: Look at the situation
Joe: Ok
Joe: what do you mean
Joe: be specific please
Me: I mean everyday I report to your wife, as a woman I have to respect her role
Joe: I want her out of the office
Joe: and so do other staff
Me: She’s the backbone of the office
Joe: no, she is NOT
Me: LOL I knew you would say that
Joe: she doesn’t deserve respect
Joe: I am not laughing
Me: Well, I’m just saying it seems like she’s on top of stuff to me
Joe: I am hurt you are saying this
29There is then a text message from the individual respondent to the applicant at 3:26 a.m. on January 24, 2014, which stated: “Hey”, and a text message exchange in the early morning, which stated:
Me: Sorry I fell asleep
Joe: No problem
Joe: just wanted to say I was thinking about you
30The applicant testified that on January 25, 2014, which was a Saturday, she was working alone in the office, and, without her knowledge, the individual respondent arranged for a taxi to take her home. She stated that the individual respondent then texted her about this matter. The text message exchange, which was in the late afternoon and early evening, stated:
Joe: Do you see how I get a cab to drive you home
Joe: I take care of you
Me: Thanks I appreciate it
31The applicant testified that on January 26, 2014, when she was alone in the basement doing filing, the individual respondent approached and asked her why she did not give him a chance, and then asked her to continue the conversation in private in a boardroom. She stated that she followed him into the boardroom out of fear that if she did not, he would fire her. She stated that he told her that he had dated a previous employee, and got her a house and car. She stated that he went on to tell her about all the things he could do for her financially, and that she would be crazy not to give him a chance. She stated that he then stood up, and exposed himself to her. She stated that he had a birth mark or something similar on his stomach. She stated that she stood up and told him that she did not think it was a good idea. She stated that as she left the boardroom, he asked her to keep their conversation private between the two of them, and she asked him to keep their relationship professional. In her Application, the applicant stated that this incident took place in the individual respondent’s personal “office”, but in her testimony, she stated several times that it took place in a “boardroom”. The individual respondent did not cross-examine her about this inconsistency.
32In cross-examination, when it was put to the applicant that January 26, 2014 was a Sunday and the office was not open, she stated that the office was open, and that both she and the individual respondent were there.
33The applicant testified that later the same day, the individual respondent texted her about this matter. The text message exchange, which was in the mid- and late afternoon, stated:
Joe: Hi
Joe: Hey
Joe: Did you think about what we talked about?
Me: I did last time I talked to someone I found out late that they lived with their woman and kids and it was a really dramatic experience. I just feel like I would be falling into the same situation again
Joe: I do NOT know why you think negative
Me: It’s not even like that. I just try to learn from my past. There’s nothing worse than repeating history
Joe: ok no problem, I am not going to try anything anymore, but it’s a mistake you are making
Me: If I’m making a mistake I guess time will tell. Your a cool guy I just don’t want to cross a line that could be potentially problematic for both of us
Joe: it is NOT for both of us, this is your decision alone
Joe: if I end up with someone else then this option is no longer available
34The applicant testified that in the evening of the same day, she had a text message exchange on WhatsApp with a friend, S.S., and told her about what was happening. The text message exchange, which was in the mid-evening, stated:
S.S.: So u like work?
Safari: Yeah it would be perfect if I wasn’t being sexually harassed
Safari: It’s like you can’t escape it in law forms where a man is the boss
S.S.: Omg
S.S.: Lieeeee
S.S.: R u serious?
Safari: Yeah
Safari: The worse part is his wife works there
Safari: And I have to report to her
Safari: It’s so awkward
Safari: And the wife is jealous of me
Safari: she always talks shit about me behind my back
S.S.: Lawd how old r these ppl?
Safari: At least 45
S.S.: So da man just started flirting with u?
Safari: Yeah
Safari: First started asking if we could go clubbing
Safari: Then if we could go away for the weekend
Safari: Then asking me to come in the board room to discuss why I’m not giving him a chance
S.S.: So wat u say to him?
Safari: I said I don’t want to cross any lines I report to your wife and as a woman I have to respect her
Safari: But like the thing is if I’m too blunt I’m sure I will get fired
Safari: I’m applying for other jobs
Safari: But right now I need this
S.S.: How long has this been going on?
Safari: Maybe the last two weeks
35The applicant testified that after January 26, 2014, the individual respondent started treating her in a hostile manner, including refusing to let her attend an appointment with her orthodontist, yelling at her, and threatening to fire her.
36The applicant testified that on February 2, 2014, the individual respondent texted her to ask whether she had changed her mind about him. She stated that she erased the individual respondent’s name on the contacts list on her cell phone, but retained his cell phone number, in order to take a screen shot of their text message exchange that showed the phone number that the text messages were coming from. The text message exchange, which was in the mid-morning, stated:
+41685409xx: why do you ignore my texts?
Me: Sorry, I don’t. I didn’t see your text from yesterday until I woke up, and I live in newly developed area so my service is horrible. Everyone thinks I ignore them but it’s really just my phone receiving text late
+41685409xx: why don’t you let me get you a better cell company and I will pay for it every month for you
Me: Thanks but it’s ok. I only have this problem with my phone when I’m at home
+41685409xx: did you change your mind about me?
Me: I think good things about you but the situation remains the same. At the end of the day I have to give everyone the respect they deserve
37The applicant testified that she had not been paid after one month of work had elapsed, so in late January or early February 2014, she asked the individual respondent to be paid, and he made a number of excuses for not doing so, including that he had paid for her membership fees and insurance, and he was withholding payment until the LSUC posted her status as a licensed paralegal on its portal. In cross-examination, when it was put to the applicant that the respondents’ payment of her membership fees and insurance represented her pay for services rendered, she stated there was never an agreement between her and the respondents to this effect. She stated that it is a normal practice for law offices to pay membership fees and insurance. She also stated that it was not in the employment contract. In re-examination, she further stated that there was no oral or written agreement that she would work in exchange for payment of her membership fees and insurance, and the fact that the individual respondent had told her that his wife was upset that he had paid for them shows that it was done with no cost to her.
38The applicant testified that on February 6, 2014, she texted her friend, S.S., about what happened, and stated that she was going to quit her job. The text message exchange, which was in the mid-evening, stated:
Safari: I’m gonna quit my job tomorrow
S.S.: Fa real? It’s getting out of hand eh?
Safari: He tried to pursue me again this past weekend and ever since I turned him down a second time he’s been really rude to me
Safari: And I’m not about that crap
Safari: It sucks cause I need the money
Safari: But God always makes a path for me
S.S.: Shoot
S.S.: That’s messed up
S.S.: I feel it for u man u shouldn’t have to go thru dat
Safari: Yeah, it’s really bad like I’m honestly thinking to do a sexual harassment claim because unknown he’s going to keep doing this
Safari: He’s been with the other girls
Safari: He called her into a boardroom and dropped his pants
Safari: Someone has to stop him
S.S.: Ugh
S.S.: Yoooooo
39In cross-examination, when it was put to the applicant that she had not mentioned in her text message exchanges with S.S. that the individual respondent had exposed himself to her, she stated that she had also spoken with S.S. by telephone. When asked whether she told S.S. about the incident in a telephone conversation, she responded that she could not recall. She also stated she told S.S. about another woman whom the individual respondent dropped his pants in front of. When it was put to the applicant it would have been human nature to then mention her own similar experience with him, she stated that she did verbally tell two co-workers about the incident.
40The applicant testified that the individual respondent continued to refuse to pay her, and she had to obtain loans from friends and family to financially sustain herself. However, she stated, on March 4, 2014, the LSUC posted her status as a licensed paralegal on its portal. She stated that she then met with the individual respondent, and signed a new employment contract that identified her job title as Paralegal, provided for a daily rate of pay of $120, and was backdated to her first day of employment. She stated that the individual respondent did not give her a copy of the employment contract. She stated that the individual respondent then promised that she would be paid on Friday, March 7, 2014.
41The applicant testified that on Friday, March 7, 2014, the individual respondent paid everyone else in the office, but did not pay her. She stated that on the weekend, she attempted to call him several times, but he did not call her back. She stated that she concluded that if she had agreed to his sexual advances, he would have paid her, and decided that she had enough. Therefore, she stated, on Monday, March 10, 2014, she informed him that she was resigning from her position. She stated that, in response, he told her that he did not have to pay her because he had paid for her membership fees and insurance. In cross-examination, when it was pointed out to the applicant that in her Application she wrote two different dates for when she resigned (March 11, 2014 and March 10, 2014), the applicant stated that March 11, 2014 was a typographical error.
42The applicant testified that the sexual harassment and other incidents had an impact on her because she started having nightmares, migraines and anxiety during her employment, and these problems became worse after her employment ended. She stated that she did not have migraines or anxiety before she was employed by the respondents.
43Specifically, the applicant testified that having nightmares interfered with her sleep, which, in turn, resulted in migraines which would last up to three days. She stated that she becomes incapacitated when she has migraines, and is unable to care for her children. She stated that her doctor prescribed her medication to prevent her migraines because over-the-counter medication was not effective. She stated that she took the medication from around the end of her employment until January 2015. She stated that she still gets migraines, but not as frequently as around the time that her employment ended.
44The applicant testified that she had a lot of anxiety because the individual respondent knew where she lived. She stated that she moved as soon as she was able to afford to, which was in September 2014. She stated that she also experiences anxiety when she is interviewed for jobs by men, and that in her new job, she experiences anxiety when her male boss calls her into his office. She stated that her symptoms are nervousness, a racing heart, sweating, and wanting to get out as soon as possible. She stated that she has not been prescribed medication for her anxiety, but that she attended a counselling session, which was covered by her LSUC membership benefits, in April 2014. She stated that she feels that she needs further counselling, but is no longer a member of the LSUC, and cannot afford to pay for it herself.
45The applicant testified that she began applying for new jobs when she was employed by the respondents. In cross-examination, when asked whether she attended any interviews, she stated that she was offered interviews, but was unable to attend because she was unable to take time off work, and there was also a term in her employment contract that prohibited her from taking a job with a competitor. She stated that after her employment with the respondents ended, she applied for jobs on a regular basis because she was denied Employment Insurance benefits, and needed a source of income to support her and her children as soon as possible. She stated that she started a new job as a law clerk in July 2014.
46The applicant disclosed documentary evidence of her job searches when she was working for the respondents. However, despite having received a request from the respondents dated February 18, 2015 to disclose “all applications for employment since January 2014,” she did not disclose any documentary evidence of her job searches after her employment ended. I asked the individual respondent whether he wanted the Tribunal to order the applicant to produce all applications for employment following the end of her employment with the respondents. Mr. Kesten responded, no, because she should have already produced them.
47I examined the applicant’s cell phone in the presence of the applicant and Mr. Gagovski during the second hearing day.
48I observed that the screen shots of the text messages between +41685409xx /Joe and the applicant, which were admitted into evidence, were all in their original form on the phone. I noticed that there were other text messages between +41685409xx/Joe and the applicant, which she did not disclose to the respondents, or file with the Tribunal. The applicant stated that she did not disclose them because they are not relevant. Mr. Gagovski stated that all of the text messages should have been disclosed because they are part of a continuum of messages.
49I also observed that the text message exchanges between the applicant and S.S., the print-out of which was admitted into evidence, were all in their original form on the WhatsApp app on the phone. I also observed that there is a function on WhatsApp which allows a user to email a chat history. The applicant stated that she emailed her entire chat history with S.S. to herself. She showed me an email dated March 10, 2014 (the day she states that she resigned from her job) with the subject and an attachment entitled “WhatsApp Chat with [S.S.]”. I noticed that one text message was missing from the chat history which had been entered into evidence. The applicant stated that when the chat history was emailed to her, the text messages were in one long line, rather than being segmented, so when she segmented them, she must have accidentally deleted one message. Mr. Gagovski stated that none of the text messages should have been admitted into evidence because of the applicant’s failure to disclose all of them.
50I directed the applicant to disclose to Mr. Gagovski and file with the Tribunal screen shots of all the text messages and the email, which had not previously been disclosed. She complied with my direction. The applicant stated that she was not seeking to have the previously undisclosed text messages and email admitted into evidence. I asked Mr. Gagovski whether the individual respondent was seeking to have them admitted into evidence, and he stated that the individual respondent would need to review them before providing a response.
51I then provided the individual respondent with three options: (1) requesting that the additional texts and email be admitted into evidence and cross-examining the applicant on them at a future date, (2) requesting that they be admitted into evidence without cross-examining the applicant on them, or (3) not requesting that they admitted into evidence.
52On July 6, 2015, the individual respondent filed a fax with the Tribunal, which stated that additional “disclosure” of documents by the applicant should not be allowed. I understood this to be an election of the third option. In view of the individual respondent’s election, I have marked the previously undisclosed text messages and email as exhibits so that they are part of the record, but I have not considered them or given them any weight in my assessment of the evidence.
ANALYSIS
Applicable Law and Issues
53The Application relates to ss. 5, 7, 9 and 10 of the Code, which provide:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex….
(…)
- (2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex… by his or her employer or agent of the employer or by another employee.
(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
- (1) In Part I and in this Part,
(…)
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
(…)
54The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.
55In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]
56I am also mindful of the Ontario Court of Appeal’s comments on reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
57For the most part, I found the applicant’s testimony about the incidents that occurred to be both credible and reliable. I am not concerned about minor inconsistencies in her evidence about the dates her employment started and ended, which are inconsequential. Overall, her testimony about all of the incidents, except for one (the allegation that the individual respondent exposed himself to her), was forthright, clear, and detailed. Her testimony about these incidents was also plausible. Significantly, having heard her testimony about the text messages, having reviewed the telephone contact number on the organization respondent’s 2011 job advertisement, having reviewed the screen shots and print-out of the text messages, and having reviewed the original text messages on her cell phone, I am satisfied that the text messages between the individual respondent and her, and her and her friend, S.S., are authentic. Furthermore, in view of the fact that the organization respondent did not appear at the hearing, and the individual respondent decided not to call any evidence, her evidence was also uncontradicted. In the circumstances, with one exception, I accept her version of facts about the incidents that occurred.
58In this case, the main issues that I am required to determine are as follows:
1) Did the individual respondent subject the applicant to sexual harassment and sexual advances and solicitations in the workplace?
2) Did the individual respondent subject the applicant to a reprisal for rejecting his sexual advances and solicitations by not paying her?
Did the individual respondent subject the applicant to sexual harassment and sexual advances and solicitations in the workplace?
59I will start by addressing the applicant’s allegation of sexual harassment. In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 (“Janzen”) at para. 56, the Supreme Court of Canada broadly defined sexual harassment in the workplace as:
(…) unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.
60More specifically, in Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd. Inq.), which was cited with approval by the Supreme Court in Janzen, the Ontario Board of Inquiry stated at para. 1389 that sexual harassment runs
(…) the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment.
61In order to establish a case of sexual harassment, the onus is on the applicant to prove that (1) the individual respondent was her employer, her employer’s agent, or another employee; (2) the individual respondent harassed her by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome; (3) the individual respondent harassed her in the workplace; and (4) the individual respondent harassed her because of her sex. See ss. 7(2) and 10(1) of the Code.
62With respect to the second part of the test, there is an objective standard to determine whether the individual respondent ought reasonably to have known that his impugned behaviour towards the applicant was unwelcome. The standard is what the perception of a “reasonable person” would be, considering the perspective of both a reasonable person in the applicant’s position, and a reasonable person in the individual respondent’s position. See Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paras. 43-48.
63With respect to the third part of the test, “in the workplace” has been interpreted more broadly and liberally than being during work hours and within the physical confines of the business establishment. The Supreme Court of Canada has held that human rights legislation is to receive a wide and liberal construction that advances its objectives, but that courts and tribunals cannot ignore limiting words in the legislation, or otherwise circumvent the intention of the legislature. See University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353 at pp. 370-71. With that in mind, in Simpson v. Consumers’ Association of Canada, (2001), 2001 CanLII 23994 (ON CA), 57 O.R. (3d) 351 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 83 (“Simpson”), the Ontario Court of Appeal held at para. 61 that it would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that an interaction between a supervisor and an employee after work hours or outside the physical confines of the business establishment cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment. The determination of whether activity that occurs after hours or outside the confines of the business establishment can be the subject of a complaint will be a question of fact. See also Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421 (“Sutton”) at para. 101.
64With respect to the fourth part of the test, the very nature of the sexual harassment can be sufficient to establish that the sex of the applicant was a factor in the adverse treatment. See Friedmann v. MacGarvie, 2012 BCCA 445 at paras. 31-32.
65For the following reasons, I find that the applicant has established that the individual respondent subjected her to sexual harassment in the workplace.
66With respect to the first part of the test, I find that the individual respondent was the applicant’s employer. (Alternatively, if I am wrong about this, he was certainly the employer’s agent.) The Response to the Application identified the individual respondent as the Manager of the organization respondent. The applicant also presented uncontradicted documentary evidence in the form of a Corporation Profile Report, which lists the individual respondent as a Director and Officer (President, Secretary, and Treasurer) of the organization respondent effective September 17, 2010. The applicant’s uncontradicted testimony was that the individual respondent hired her, and paid her $200 in cash for her first two days of work, and that she worked on the organization respondent’s premises. The Corporation Profile Report also lists her as the main contact person at the organization respondent’s office address, and as a Director of the organization respondent effective January 7, 2014.
67Furthermore, even if it is true, as the respondents argued, that the applicant was an independent contractor rather than an employee, the Tribunal has taken a purposive, functional approach in determining whether there is “employment” within the meaning of the Code, and held that the Code covers a broad range of workplace relationships, including sub-contractors and independent contractors. See, for example, Szabo v. Poley, 2007 HRTO 37 at paras. 15-16, and Sutton, above, at paras. 95-100.
68With respect to the second part of the test, I find that the individual respondent harassed the applicant by engaging in a course of vexatious comment and conduct towards her that was known or ought reasonably to have been known to be unwelcome.
69I accept the applicant’s uncontradicted testimony, which was forthright, clear, and detailed, and supported by text message exchanges, which I have found to be authentic, that the individual respondent engaged in the following course of comment and conduct towards her, which were preludes for, and then actual, sexual advances and solicitations:
On January 14, 2014, which was approximately a week and a half after he hired her and she began work, he told her in person in the office and in text messages that his wife, whom she reported to, was jealous of her and did not like her, but that he was backing her up. I find that this was a prelude for sexual advances.
On January 15 and 16, 2014, he sent her text messages, which invited her to go out clubbing with him and some lawyers. After she declined his invitation, and stated, “Maybe next time,” he responded, “Let me know when.” I find that this was a further prelude for sexual advances.
Between January 17 and 22, 2014, he followed her into the file room in the office where he told her that he was interested in her. I find that this was a sexual advance. She told him that she was uncomfortable with the situation because she was reporting to his wife in the office.
On January 23, 2014, he sent her text messages, which asked her to go away with him for the weekend, stated that he would pamper her like a princess, stated that he really liked her a lot, and stated that he wanted to start something. I find that this was a sexual advance. When she tried to end the text exchange, he stated: “I guess you are NOT interested.” She then explained that she was reporting to his wife, and, as a woman, had to respect her role. He responded that he wanted to get his wife out of the office, and that she did not deserve respect.
On January 24, 2014, in the middle of the night and the early morning, he sent her text messages, which stated: “Hey”, and “[J]ust wanted to say I was thinking about you.” I find that this was a sexual advance.
On January 25, 2014, without her knowledge, he arranged for a taxi to take her home from the office. He then sent her text messages, which asked her whether she sees that he got her a cab to drive her home, and stated that he takes care of her. I find that this was a prelude for a sexual solicitation.
On January 26, 2014, he told her in person in the office that he got a house and car for a previous employee whom he had dated, and that that he also could do things for her financially, and that she would be crazy not to give him a chance. I find that this was a sexual solicitation. Later the same day, he sent her a text message, which asked her whether she had thought about what they had talked about. I find that this was a sexual solicitation. After she stated that she was not interested, he responded that he was not going to try anything anymore, but she was making a mistake, and that if he ended up with someone else, the option of being with him would no longer be available.
On February 2, 2014, he sent her text messages, which asked why she ignored his texts, and whether she had changed her mind about him. I find that this was a sexual advance. She responded that the situation remained the same because she had to give everyone the respect they deserve.
70However, while I accept the applicant’s testimony that on January 26, 2014, the individual respondent had a discussion with her in the office about having a romantic/sexual relationship, because he later sent her text messages to follow up on the discussion, I do not accept her testimony that during the discussion, he exposed himself to her. In the evidence before me, there appears to be an inconsistency between her testimony that this incident took place in a “boardroom”, and her Application, which stated that this incident took place in the individual respondent’s personal “office”. However, the individual respondent did not cross-examine her about this apparent inconsistency, and it would therefore be unfair to find that it affects her credibility. My main concern is that she did not mention this alleged incident in her text message exchanges with her friend, S.S., and was evasive and failed to provide a credible explanation when asked about this omission in cross-examination.
71It is obvious from the text message exchanges between the applicant and S.S. that the applicant was very open with S.S. about what was happening, and S.S. was very supportive. In that context, it seems incongruous that following this alleged incident, the applicant sent text messages in the evening of the same day to S.S., which discussed all of the other incidents of “being sexually harassed”, but did not mention this incident, which was the most recent and serious one. Furthermore, it seems incongruous that about a week and a half later, she sent text messages to S.S. about an alleged incident where the individual respondent dropped his pants in front of a female employee in a boardroom, but, again, did not mention her own experience, which was remarkably similar.
72In cross-examination, when questioned about this incongruity, she initially suggested that she had told S.S. about the incident in a telephone conversation, but then when pressed on this, she stated that she could not recall whether she had done so. Furthermore, when it was put to the applicant that, after she sent text messages to S.S. about a similar alleged incident involving another female employee, it would have been human nature to then mention her own experience, she did not answer the question directly, and instead stated that she told two of her co-workers about the incident.
73I appreciate that the Tribunal must be vigilant to ensure that it does not make credibility assessments based upon outdated or discredited stereotypical assumptions about sexual harassment, including stereotypes about the expected behaviour of victims of sexual harassment. See Chard v. Newton, 2007 HRTO 36 at para. 45. At the same time, however, an applicant needs to provide a credible explanation for behaviour that appears to be incongruous with the factual context. In the case at hand, the applicant has failed to provide a credible explanation for the incongruity.
74In the circumstances, I did not find the applicant’s testimony about this alleged incident to be credible.
75Turning back to the comments and conduct which I accept did occur, I find that the sexual advances and solicitations which occurred after January 23, 2014 (i.e. the ones on January 24, 25, and 26, 2014, and February 2, 2014) amounted to harassment as defined in the Code. In my view, these sexual advances and solicitations were vexatious and known or ought reasonably to have been known to be unwelcome.
76The individual respondent’s comments and conduct were vexatious because they clearly distressed the applicant. I accept her uncontradicted testimony that the sexual advances and solicitations made her feel extremely uncomfortable.
77Furthermore, after January 23, 2014, the individual respondent knew or ought reasonably to have known that any further sexual advances were unwelcome. In her testimony, the applicant was straightforward in stating that in the beginning, she was not completely blunt in rejecting his sexual advances because she was concerned that he would terminate her employment. However, on January 23, 2014, when she attempted to end their text message exchange, he sent her a message, which stated: “I guess you are NOT interested,” and she then sent him several messages, which clearly explained why she was not interested in having a relationship with him. At that point, a reasonable person would have known that any further sexual advances would be unwelcome. Despite that, he made another sexual advance towards her on January 24, 2014; engaged in comment and conduct towards her, which were a prelude for, and then actual, sexual solicitations on January 25 and 26, 2014; and made a further sexual advance towards her on February 2, 2014.
78With respect to the third part of the test to establish sexual harassment, I find that the individual respondent harassed the applicant in the workplace. They knew each other solely because of the employment relationship, several of the incidents took place in the office, and the ones that took place outside work hours and/or the physical confines of the office (the text message exchanges) were clearly related to the incidents that took place in the office. In these circumstances, to use the words of the Ontario Court of Appeal in Simpson, above, it would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to carve out the text message exchanges from the other incidents because they occurred after work hours and/or outside the physical confines of the office.
79With respect to fourth part of the test to establish sexual harassment, I find that the harassment occurred because of the applicant’s sex. The individual respondent made sexual advances and solicitations towards her in the workplace, which, in effect, was a devaluation of her status as an employee because she is a woman.
80In view of the fact that the individual respondent’s comments to, and conduct towards, the applicant amounted to sexual advances and solicitations towards her, and the fact he was the President, Secretary, Treasurer, and Manager of the organization respondent, I also find that his comments and conduct amounted to sexual advances and solicitations made by a person in a position to confer, grant or deny a benefit or advancement. See s. 7(3)(a) of the Code.
81Accordingly, the applicant’s allegation that the individual respondent subjected her to sexual harassment and sexual advances and solicitations in the workplace is upheld.
Did the individual respondent subject the applicant to a reprisal for rejecting his sexual advances and solicitations by not paying her?
82I now turn to the applicant’s allegation that the individual respondent subjected her to a reprisal for rejecting his sexual advances and solicitations by not paying her. The applicant must establish an intention on the part of the individual respondent to retaliate against her for rejecting his sexual advances and solicitations. See Noble v. York University, 2010 HRTO 878 at para. 33.
83I find that the respondents did not pay the applicant for over two months of work between January 6, 2014 and March 7, 2014. I accept the applicant’s uncontradicted testimony that the individual respondent paid her $200 in cash for her first two days of work in early January 2014; she then signed an employment contract with him, which provided for a daily rate of pay of $100; after she requested to be paid by cheque rather than cash, he told her that she would be paid on a monthly basis; and she was never paid again despite requesting to be paid in late January or early February 2014, and then again in early March 2014.
84The individual respondent did not testify, and the respondents appear to have taken contradictory positions on this matter. In their Response, the respondents stated that they paid her in cash “every Friday”. However, during the hearing, it was put to the applicant in cross-examination that the respondents’ payment of her membership fees and insurance for practising as a paralegal represented her pay for services rendered. In any case, I accept the applicant’s uncontradicted testimony that there was no oral or written agreement that she would work in exchange for payment of her membership fees and insurance.
85I also find that the respondents’ failure to pay the applicant was retaliation for rejecting the individual respondent’s sexual advances and solicitations. As set out above, between mid-January and early February 2014, the individual respondent subjected the applicant to a series of sexual advances and solicitations, which she rejected. I accept her uncontradicted testimony that after she rejected his sexual solicitations on January 26, 2014, he started treating her in a hostile manner, including refusing to let her attend an appointment with her orthodontist, yelling at her, and threatening to fire her. In the absence of any credible reason for failing to pay the applicant for over two months, in view of the fact that the individual respondent started treating her in a hostile manner after she rejected his sexual advances and solicitations, and in view of the fact that part of his comments to, and conduct towards, her were solicitations, which involved offering things that he could do for her financially if she agreed to date him, I have no hesitation in drawing the inference that the failure to pay her was an intentional retaliation against her by him for rejecting his sexual advances and solicitations.
86I also find that the respondents’ failure to pay the applicant for over two months forced her to quit her job. It was unsustainable for her to continue working for the respondents without being paid.
87Accordingly, the applicant’s allegation that the individual respondent subjected her to a reprisal for rejecting his sexual advances and solicitations by not paying her is upheld.
LIABILITY
88Section 46.3(1) of the Code provides that for the purposes of the Code, with certain exceptions, any act or thing done or omitted to be done in the course of one’s employment by an officer, official, employee or agent of a corporation shall be deemed to be an act or thing done or omitted to be done by the corporation. The exceptions include sexual harassment, sexual advances and solicitations, and reprisals for rejecting sexual advances and solicitations under s. 7 of the Code. However, the Divisional Court has held that if the individual responsible for the acts under s. 7 of the Code is a directing mind of the corporation, then the corporation can also be held liable for the individual’s acts. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 33.
89In view of the fact that the individual respondent was the President, Secretary, Treasurer, and Manager, and therefore a directing mind, of the organization respondent during the applicant’s tenure of employment, I find that the individual respondent and the organization respondent are jointly and severally liable for all of the above violations of the Code.
REMEDY
Applicable Law and Issues
90The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provide:
(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
91Where the Tribunal finds that a respondent has discriminated against an applicant, it has a broad authority to fashion a remedy that will put the applicant back in the position that he or she would have been in, but for the discrimination. See, for example, TA v. 60 Montclair, 2009 HRTO 369 at para. 20.
92The applicant is seeking monetary compensation and restitution as remedies. Accordingly, the issues that I am required to determine are whether the applicant is entitled to monetary compensation and restitution.
Monetary Compensation
Injury to Dignity, Feelings and Self-Respect
93The applicant seeks an award of $50,000 as compensation for injury to dignity, feelings and self-respect.
94An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) (“ADGA”) at para. 153.
95The Divisional Court has also recognized that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA, above, at para. 154.
96In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
97I find that, overall, the individual respondent’s Code-related mistreatment of the applicant was serious. There was a significant power imbalance between the individual respondent and the applicant with respect to both job status (he was the President/Manager of the organization respondent and she was a Legal Assistant/Paralegal in the office) and age (he was in his forties and she was in her early twenties). Like many young women who are just starting a career in the work world, the applicant was vulnerable to being sexually exploited by a male employer. Shortly after hiring her, the individual respondent subjected her to several unwanted sexual advances and solicitations in the workplace, which also amounted to sexual harassment, and then subjected her to a reprisal by not paying her for over two months, which forced her to quit her job.
98I also accept the applicant’s uncontradicted testimony about the impact that the aforementioned incidents had on her. She started having nightmares, migraines and anxiety during her employment, and these problems became worse after her employment ended. She did not have these problems before she was employed by the respondents. The migraines would last up to three days, and she would become incapacitated to the point where she was unable to care for her children. She still gets migraines, but not as frequently as around the time that her employment ended. She had a lot of anxiety because the individual respondent knew where she lived, which resulted in her moving as soon as she was able to afford to. She also experiences anxiety when she is interviewed for jobs by men, and in her new job, she experiences anxiety when her male boss calls her into his office. Her symptoms are nervousness, a racing heart, sweating, and wanting to get out as soon as possible. She has not been prescribed medication for her anxiety, but attended a counselling session, which was covered by her LSUC membership benefits. She needs further counselling, but is no longer a member of the LSUC, and cannot afford to pay for it herself.
99Recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment have generally made awards ranging from $12,000 to $50,000 as compensation for injury to dignity, feelings and self-respect. See, for example, Chuvalo v. Toronto Police Services Board, 2010 HRTO 2037 ($12,000); Newton v. Toronto (City), 2010 HRTO 1023 ($15,000); S.S. v. Taylor, 2012 HRTO 1839 ($15,000); Panucci v. Seller’s Choice Stockdale Realty Ltd., 2015 HRTO 1579 ($15,000); Chard v. Newton, 2007 HRTO 36 ($16,000); Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000); G.G. v. […] Ontario Limited, 2012 HRTO 1197 ($18,000); Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 ($18,000); Iu v. Markham Marble, 2012 HRTO 65 ($20,000); de los Santos Sands v. Moneta Marketing Solutions Inc., 2016 HRTO 271 ($20,000); Granes v. 2389193 Ontario Inc., 2016 HRTO 821 ($20,000); Harriott v. National Money Mart, 2010 HRTO 353 ($22,500); Hughes v. 1308581 Ontario, 2009 HRTO 341 ($25,000); Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 ($25,000); Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 ($27,000); Horner v. Peelle Company Ltd., 2014 HRTO 1211 ($28,000); Birchall v. Andres, 2013 HRTO 1469 ($30,000); C.U. v. Blencowe, 2013 HRTO 1667 ($30,000); Sanford v. Koop, 2005 HRTO 53 ($35,000); Smith v. The Rover’s Rest, 2013 HRTO 700 ($35,000); S.H. v. M[...] Painting, 2009 HRTO 595 ($40,000); M.K. v. [...] Ontario, 2011 HRTO 705 ($40,000); J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 (three applicants - $40,000, $40,000, and $25,000); C.K. v. H.S., 2014 HRTO 1652 ($45,000); and Smith v. Menzies Chrysler, 2009 HRTO 1936 ($50,000).
100In my view, the case at hand falls in the middle of the spectrum. On the one hand, there were several unwanted sexual advances and solicitations, and non-payment of wages as a reprisal for rejecting the advances and solicitations, which resulted in a loss of employment. The applicant also experienced nightmares, migraines and anxiety as a result of these incidents. On the other hand, the incidents did not occur over a prolonged period of time, and there was no physical touching. Furthermore, the applicant did not present medical evidence, which shows a formal diagnosis of migraine headaches and anxiety.
101In cases which have comparable facts, such as S.S., Payette, Granes, Ratneiya, J.D. (the third applicant), and Horner, above, the awards have ranged from $15,000 to $28,000 as compensation for injury to dignity, feelings and self-respect, but the closest comparable facts are those in Ratneiya, where the Tribunal awarded the applicant $25,000. The facts leading to that award were set out as follows at para. 106:
I have found that the complainant was subjected to inappropriate comments and conduct, including sexual solicitations or advances involving the spanking of her buttocks and an attempt to grab her breast, contrary to sections 5(1) 7(2), 7(3)(a) and 9 of the Code. I have also found that the complainant was subjected to a reprisal for the rejection of a sexual solicitation or advance when she was placed “on call” and her employment was effectively terminated, contrary to sections 7(3)(b) and 9 of the Code. At the time of these incidents, the complainant was particularly vulnerable as she was 22 years old, had recently graduated and was in her first career-oriented job. She was also afraid that she would lose her job if she told anyone in the office about the incidents. She sought treatment from a doctor as a result of her experiences at the firm.
102The main difference between the facts in the case at hand and the facts in Ratneiya is that in the case at hand, there was no physical touching.
103I find after considering the overall seriousness of the individual respondent’s Code-related mistreatment of the applicant, the applicant’s individual circumstances, and the cases cited above, that $22,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect.
Lost Income
104The applicant seeks an award of $18,720 as compensation for lost income, which covers the period from January 6, 2014 to June 29, 2014. Specifically, this covers both the time period when the respondents failed to pay her during her employment, and the time period of unemployment following the end of her employment.
105I find that the applicant is entitled to an award for lost income from January 6, 2014 (her third day work) to March 7, 2014 (her last day of work), which covers the time period that the respondents did not pay her as a reprisal for rejecting the individual respondent’s sexual advances and solicitations. I accept her uncontradicted testimony that she was not paid during this time period, and that when her employment ended, the employment contract, which was in effect, provided for a daily rate of pay of $120, and was backdated to her first day of employment. The nine-week period that the respondents did not pay her has 45 work days. Therefore, she is entitled to an award of $120 x 45 days = $5,400.
106I turn next to the applicant’s request for lost income from March 10, 2014 (the end of her employment) to June 29, 2014 (her last day of unemployment). The amount of compensation to be awarded for lost income following a discriminatory end of employment is not restricted to the time period of “reasonable notice” as established by the common law for wrongful dismissal in employment cases. See Keele North Recycling v. Whale, 2013 ONSC 268 at paras. 13-15, and 20. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that she would have been in had the discriminatory acts not occurred. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.), and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).
107However, the applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment, and is only entitled to be compensated for those losses that could not have been avoided. The respondent, however, has the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22 at para. 265.
108I find that the applicant is not entitled to an award for lost income for the period of unemployment following the end of her employment. Her testimony that she applied for jobs on a regular basis during this time period was vague and lacked particulars. Furthermore, despite having disclosed documentary evidence of her job searches when she was working for the respondents, and having received a timely request from the respondents to disclose all her applications for employment since January 2014, she did not disclose any documentary evidence of her job searches after her employment ended. In the circumstances, I find that she failed to mitigate her losses by making reasonable efforts to obtain suitable employment.
Counselling Sessions
109The applicant also seeks an award of $2,000 for future counselling to assist her in resolving the anxiety issues, which resulted from the sexual harassment, sexual advances and solicitations, and reprisal, which she was subjected to by the individual respondent.
110I find that it is appropriate to make such an award because it will assist in putting the applicant back into the more healthy mental state that she would have been in, but for the violations of the Code. I accept her uncontradicted testimony that she attended one counselling session, and needs to attend further sessions to assist her in resolving the anxiety issues, which resulted from the above incidents. I do not believe that $2,000 for future counselling sessions is disproportionate to the incidents that occurred, and the anxiety that she has experienced as a result of them.
Interest
111Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the date the cause of action arose to the date of the order. In the case at hand, various elements of the cause of action arose at different times, but it cannot be said that any element arose later than March 10, 2014, when the applicant’s employment ended. Accordingly, for the sake of simplicity, I find that the respondents should pay the applicant pre-judgment interest on the awards of monetary compensation for injury to dignity, feelings and self-respect, lost income, and future counselling sessions, from March 10, 2014 to the date of this Decision.
112Post-judgment interest is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect, lost income, and future counselling sessions not paid within 30 days of the date of this Decision.
113The applicable interest rates may be found on the website of the Ministry of the Attorney General of Ontario:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp
Restitution
114The applicant also requested that the Tribunal award her a number of non-monetary remedies, which relate to her employment relationship with the respondents, including ordering them to provide her with a true copy of her Record of Employment, and copies of the employment contracts between them and her.
115The applicant’s request for such orders is denied. I already dealt with this request as a preliminary issue at the outset of the hearing, and did not order the respondents to produce these documents because of their position that such documents do not exist. Furthermore, the applicant did not clearly explain, and I do not see, how these requests relate to remedying the violations of the Code. The Tribunal does not have jurisdiction over non-Code related matters, which the applicant did not pursue, or unsuccessfully pursued, before the Employment Standards Branch of the Ministry of Labour, or the Canada Employment Insurance Commission.
ORDERS
116Accordingly, the Tribunal makes the following orders:
Within 30 days of the date of this Decision, the respondents shall pay the applicant $22,000 as monetary compensation for injury to dignity, feelings and self-respect.
Within 30 days of the date of this Decision, the respondents shall pay the applicant $5,400 as monetary compensation for lost income.
Within 30 days of the date of this Decision, the respondents shall pay the applicant $2,000 as monetary compensation for future counselling sessions.
Pre-judgment interest is payable on the above amounts from March 10, 2014 to the date of this Decision.
Post-judgment interest is payable on any of the above amounts not paid within 30 days of the date of this Decision.
The respondents are jointly and severally liable for the awards of monetary compensation.
Dated at Toronto, this 28^th^ day of December, 2016.
“Signed by”
Ken Bhattacharjee
Vice-chair