HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Abigail de los Santos Sands
Applicant
-and-
Moneta Marketing Solutions Inc. and David Singh
Respondents
DECISION
Adjudicator: Alison Renton
Indexed as: de los Santos Sands v. Moneta Marketing Solutions Inc.
APPEARANCES
Abigail de los Santos Sands, Applicant
Self-represented
Moneta Marketing Solutions Inc. and David Singh, Respondents
No one appearing
1This Application alleges discrimination with respect to employment because of sex, including sexual harassment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The organizational respondent is the applicant’s former employer and the personal respondent is the President and CEO and owner of the organizational respondent and to whom the applicant directly reported.
2The respondents have not participated in the Tribunal’s process.
3The Application is allowed. I have determined that the applicant has proven, on a balance of probabilities, that the respondents subjected her to sexual harassment in the workplace. I have ordered the respondents to pay the applicant monetary compensation and to receive training on the policy to remedy the Code violations.
procedural background
4On March 27, 2014, the Tribunal issued a Notice of Application (“the Notice”) to the respondents and directed them to file a Response with the Tribunal no later than May 1, 2014. The Notice was sent by regular mail and was not returned to the Tribunal as being undeliverable. The Notice was sent to the respondents at the address provided by the applicant in her Application. The Notice warned the respondents that if they did not file a Response, the Tribunal may deem them to have accepted all of the allegations in the Application, waived their rights with respect to further notice or participation in the proceeding, proceed to deal with the Application without further notice to them and decide the matter based only on the material before the Tribunal. The respondents did not file a Response.
5On September 15, 2014, the Tribunal wrote again to the respondents requesting a Response to the Application by October 2, 2014. The Tribunal again warned the respondents about the consequences of not filing a Response, and drew their attention to Rule 5.5 of the Tribunal’s Rules of Procedure (“the Rules”), which sets out the consequences of failing to file a Response. This correspondence was sent to the respondents by regular mail to the respondent’s address provided by the applicant in her Application. The correspondence was not returned as undeliverable. The respondents still did not file a Response.
6As the respondents did not file a Response, the Tribunal issued Interim Decision, 2014 HRTO 1630, which deemed them to have accepted all of the allegations set out in the Application and waived all rights to notice or participation in the proceedings. It held that the respondents were not entitled to further notice with respect to the Application and stated that a case management conference call would be held with the applicant. The Interim Decision was sent to the respondents by regular mail and to an email address of the personal respondent which had been provided by the applicant in her Application. The email was returned as being undeliverable, but the correspondence issued by regular mail was not.
7A case management conference call was held with the applicant. Following the call, a Case Assessment Direction, dated November 28, 2014 (“CAD”), was issued by the Tribunal addressing various preliminary issues. The CAD was sent to the respondents by regular mail and email to the addresses provided by the applicant in her Application. The email was returned as being undeliverable, but the regular mail was not returned.
8A hearing by conference call was scheduled for January 15, 2015 by Notice of Hearing dated December 1, 2014 (“the hearing Notice”). The respondents were copied on the hearing Notice, which was sent to them by regular mail to the address provided by the applicant in her Application. The mail was not returned to the Tribunal as being undeliverable.
9During the hearing, the applicant advised that she learned that the office of the organizational respondent moved during the fall of 2014. She agreed to provide the new address of the organizational respondent, and the residential address of the personal respondent, to the Tribunal. She subsequently provided an address for the personal respondent, as well as a new one for the organizational respondent.
10Another Case Assessment Direction, dated January 26, 2015 (“the January CAD”), was issued by the Tribunal. In it, the Tribunal directed the respondents to file submissions confirming that they have moved from their former address, the date that they moved from that address, and an explanation why they had not participated in the Tribunal’s process. The January CAD was issued by regular mail to the former address for the organizational respondent and the new address of the individual respondent and by email. Through inadvertence, the January CAD was not sent to the new address for the organizational respondent. The email was returned as being undeliverable, but the correspondence sent by regular mail to both addresses was not returned.
11On February 3, 2015, the Tribunal received correspondence by facsimile from the personal respondent. He wrote that he did not receive any notice for the conference call, asked what else the Tribunal needed from him and provided his cell telephone number as well as a new personal email. The correspondence did not provide a number for the fax from which it was sent.
12Another Case Assessment Direction dated February 13, 2015 (“the February CAD”) was issued. The Tribunal stated, at para. 5, that the personal respondent provided a partial explanation for not participating in the call, in that he was not aware of it, but did not address why the respondents have not participated in the Tribunal’s process. The Tribunal directed the personal respondent to provide an answer as to why the respondents had not earlier participated in the Tribunal’s process. The Tribunal then stated that upon receipt of the respondents’ answers, the Tribunal would consider them and may issue further case management directions. It also warned the respondents that if they failed to respond, as directed, the Tribunal may issue a final merits decision based upon the material that is before it.
13The February CAD was sent to the respondents at the original address for the organizational respondent, the updated address for the individual respondent and the email that the personal respondent provided, none of which were returned.
14The respondents failed to respond to the direction set out in the February CAD and have not communicated again with the Tribunal.
15Accordingly, having deemed the respondents to have accepted all of the allegations set out in the Application and to have waived all rights to further notice or participation in the proceedings, this Decision is based upon the materials before the Tribunal, including the Application and the unchallenged evidence that the applicant gave during the hearing.
the evidence
16The applicant commenced employment with the organizational respondent on July 22, 2013 and worked for six months as the executive assistant to the personal respondent, who was the president and chief executive officer. During her employment she states that she was subjected to sexual harassment by the personal respondent and she testified about those incidents.
17On her first day of work, after being introduced to the personal respondent, instead of shaking her hand, he gave her a big hug. She testified that she felt that he was trying to “feel” her. Shortly after that, while she was asking some questions in the presence of other employees, the personal respondent “eyed” her up and down, concentrating on her legs. She was wearing a skirt and blazer. After the personal respondent left, another employee, whom the applicant named, observed, “that was weird”.
18The applicant felt very uncomfortable with the personal respondent’s conduct, but did not know how to respond. It happened so quickly that she did not have the opportunity to say anything about it. She had never worked for an entrepreneur before, worried that she was being too sensitive, and hoped that it was a “one off”. It was not.
19At the beginning of August 2013, when the organizational respondent was hiring new employees, including a new receptionist, the personal respondent came into the applicant’s office, shut the door, and told the applicant that she should hire someone “hot” like herself. The applicant told him that it was a really rude comment to make, but the personal respondent laughed and said, “Where’s your sense of humour”. The applicant testified about this allegation, but did not include it in her Application, stating that because she did not know it could be included because he had not physically touched her.
20On August 7, 2013, sometime between 10:30 to 11:00 a.m., the applicant stepped out of her office to use the washroom. When she returned, the personal respondent was sitting in her chair working on something that he wanted her to send out. She walked in and stood beside her chair and he said, “Abby, you’re looking good”. He then placed his left hand on her left calf and rubbed his hand up and down her leg, saying, “If I had great legs like you, I’d wear a skirt too”.
21The applicant objected to this and told him that he did not need to touch her. The personal respondent told her to relax and said “I’m sure you’ve been touched before”. The applicant was shaking, and no one else was present. The personal respondent got out of her chair, and instructed her to send out the document he had worked on. The applicant did, and then went for a coffee break, during which she drove around wondering what to do about this situation. She did not believe that she could quit her employment and then receive employment insurance benefits. She was a single mother of two teenagers and needed to work.
22After this incident, the applicant testified that the harassment continued on a daily basis. The personal respondent would be very condescending and make comments like, “Don’t be so stupid”, “You weren’t born yesterday”, and “This isn’t rocket science”. He constantly belittled her, and put down her work, without giving her the resources to do her work.
23On September 3, 2013, the applicant returned from vacation. When the personal respondent saw her, in the presence of the receptionist, he gave the applicant a tight hug, such that she could feel his genitals against her leg, and gave her a huge kiss on her cheek. The applicant and the receptionist were very uncomfortable with the personal respondent’s actions, and the applicant told him that he could have just said hello to her. The personal respondent told the applicant that she had done a great job working with the organizational respondent and he missed her while she was on vacation. He also told her that he was the CEO, was in control, and could do what he wanted. As he walked out of the office, he told the applicant, “Deal with it”.
24The applicant testified that she felt ashamed and embarrassed about these incidents that occurred to her. She questioned whether she had done something for this to happen, and wondered about the message her clothing sent. After the incidents, the applicant stopped wearing skirts and heels to the office, and instead wore pants. She would step back when the personal respondent approached her. Her change in clothing still continues as she is conscious about what she is wearing, no longer wears bright colours, but instead dark colours, and does not “dress up”. Her daughter has observed that she no longer dresses the way that she used to before the incidents occurred.
25The applicant no longer works for the organizational respondent. She does not seek any remedies pertaining to the cessation of her employment. That was the subject of a decision issued by the Ontario Labour Relations Board between the applicant and the organizational respondent dated June 17, 2014.
26The applicant testified that she is seeking $40,000 as monetary compensation, to be paid jointly and severally between the respondents, for injury to dignity, feelings and self-respect because of the above-described conduct. The organizational respondent, she testified, is one of a number of companies that the personal respondent owns, and is a shell company. She testified that the personal respondent moves around his companies as a way of avoiding various legal obligations.
27In addition to monetary compensation, the applicant also requests that the Tribunal order the respondents to develop a harassment policy, post Code cards, and take human rights training.
the law and analysis
28The relevant sections are sections 5(1), 7(2), (3), 10(1) of the Code. They provide:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of …. sex…
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex …. by his or her employer or agent of the employer or by another employee.
10(1) In Part I and in this Part,
“harassment” means engaging in a course of vexatious comment or conduct that it known or ought reasonably to be known to be unwelcome.
29In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 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 content 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.
30In 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, above, 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.
31The 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 that 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. This must still be established in cases, such as this one, where the respondent is deemed to have accepted the allegations and waived further notice and participatory rights.
32While the applicant’s evidence was not challenged as the respondents did not participate, I find that she has presented clear, cogent, and credible evidence pertaining to her allegations. Her evidence was straightforward, without embellishment, and she provided a sufficient level of detail in describing her allegations.
33In order to establish a case of sexual harassment, the applicant must prove, on a balance of probabilities, that: (1) the personal respondent was her employer, her employer’s agent, or another employee; (2) the personal respondent harassed her by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to be known to be unwelcome; (3) the personal respondent harassed her in the workplace; and (4) the personal respondent harassed her because of her sex. See sections 7(2) and 10(1) of the Code.
34With respect to the second part of the test, there is an objective standard to determine whether the personal respondent ought reasonably to have known that his impugned behaviour towards the applicant was unwelcome. The standard of what the perception of a “reasonable person” would be, should consider 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 to 48. Moreover, a reasonable person in this context would be, in my view, a person who does not rely on gender stereotypes and understands what sexual harassment is.
35With 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 to 32 and C.U. v. Blencowe, 2013 HRTO 1667 at para. 23.
36Protest or objection to the allegedly harassing conduct is not necessary to find harassment. See Howard v. deRuiter, 2014 HRTO 8, Streeter v. HR Technologies, 2009 HRTO 841, C.U., above at para. 24. 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, at para. 64, the Court noted that because of the power imbalance in the supervisor/employee relationship and the perceived consequences of objecting to a supervisor’s behaviour, an employee may go along with unwelcome conduct. In Bell v. Korczak (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd. Inq.), the continued willingness of the complainant to work was found not to constitute acceptance of the harassing conduct.
37In my view, the applicant has established, on a balance of probabilities, that the personal respondent subjected her to sexual harassment in the workplace. With respect to the first part of the test, I find that the personal respondent was the applicant’s employer. He was the president and CEO of the organizational respondent, its owner, and to whom the applicant reported.
38With respect to the second part of the test, I find that the personal respondent harassed the applicant by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to be known to be unwelcome. He physically touched the applicant by hugging her, on two different occasions, one of which was very tight, lasciviously looked at her, kissing her and rubbing his hand up and down her leg. Further, he made comments about her physical appearance, including “Abby, you’re looking great”, and “If I had great legs like you, I’d wear a skirt” and directed her to hire someone “hot” like her. When the applicant objected to this conduct, the personal respondent told her that she had probably been touched before and was the CEO, could do what he wanted, and told her to “deal with it”. He belittled and demeaned her regularly during her employment.
39With respect to the third and fourth parts of the tests to establish sexual harassment, I find that the personal respondent harassed the applicant in the workplace, their offices, and that the harassment occurred because of her sex, a woman.
40Accordingly, the applicant’s allegations that the personal respondent subjected her to sexual harassment in the workplace is upheld.
liability
41Section 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 reprisals for rejecting sexual advances under section 7 of the Code. However, Ontario’s Divisional Court has held that if the individual responsible for the acts under section 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 (Div. Ct.) at para. 33 and the cases cited in this paragraph.
42I find, pursuant to section 46.3(1) of the Code that the personal respondent and organizational respondent are jointly and severally liable for subjecting the applicant to sexual harassment because, as the president and CEO, the personal respondent was a directing mind of the organizational respondent when the applicant worked there.
remedies
43The Tribunal’s remedial powers are set out in section 45.2(1) and (2) of the Code. These provide that the Tribunal has the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and to direct any party to do anything that promotes compliance with the Code.
44It is well established that the purpose of the Code is remedial, not punitive. See, for example, Farris, above, at para. 36. The purpose of ordering monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An 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. Intention to discriminate is not required. See Ontario (Human Rights Commission) v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (S.C.C.) at para. 18.
45While the respondent may be a small business, in assessing quantum, the Tribunal is mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a “licence fee” to discriminate. See Sanford v. Koop, 2005 HRTO 53 at para. 34 and ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 152.
46In the oft-cited Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52 to 54, the Tribunal explained that there are several key factors that it considered in ordering remedies. Specifically, this includes the objective seriousness of the conduct and the subjective effect on the particular applicant who experienced discrimination.
47The Tribunal will also consider the following as factors to be considered in setting the amount of compensation: 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. See ADGA Group Consultants Inc., above, at para. 153.
48Overall, the personal respondent’s Code-related mistreatment of the applicant was serious. The personal respondent, the controlling mind of the applicant’s employer and the person to whom she reported, subjected the applicant to sexual harassment in the workplace by touching her on three occasions, lasciviously looking at her, rubbing his hand up and down her leg, making comments about her physical appearance, and directing her to hire someone “hot” like her. When the applicant objected to this conduct, the personal respondent told her that she had probably been touched before and that he was the CEO, could do what he wanted, and told her to “deal with it”.
49I also accept that the applicant experienced emotional difficulties as a result of this treatment. She questioned whether her conduct triggered this response by the personal respondent, felt embarrassed and humiliated, and physically changed her appearance, in an attempt to deflect attention away from herself. Her changed physical appearance continued to the hearing.
Monetary Compensation
50Recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment have generally made awards for an applicant ranging from $12,000 to $150,000. 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); 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); Iu v. Markham Marble, 2012 HRTO 65 ($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); Sanford v. Koop, 2005 HRTO 53 ($35,000); S.H. v. M[...] Painting, 2009 HRTO 595 ($40,000); M.K. v. [...] Ontario, 2011 HRTO 705 ($40,000); Smith v. Menzies Chrysler, 2009 HRTO 1936 ($50,000 total); Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 ($18,000); C.K. v. H.S., 2014 HRTO 1652 ($45,000); C.U. v. Blencowe, 2013 HRTO 1667 ($30,000); Panucci v. Selleri Choice Stockdale Realty Ltd., 2015 HRTO 1579 ($15,000); Manu v. Centum Fundamental Financial Inc., 2015 HRTO 725 ($17,000); J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 (3 applicants - $40,000; $40,000, $25,000); Horner v. Peele Company Ltd, 2014 HRTO 1211 ($23,000 + $5,000); Wesley v. 2252466 Ontario Inc., 2014 HRTO 1591 ($25,000); and O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 ($150,000).
51In the cases on the lower end of the spectrum, the Tribunal generally found that there were few incidents, the incidents were of a less serious nature, and/or the incidents did not include physical touching. In cases on the high end of the spectrum, the Tribunal generally found that there were multiple incidents, the incidents were of a serious nature, there was a serious physical assault or criminal conviction and/or there was a reprisal or a loss of employment related to the incidents.
52In my view, the case at hand falls in the middle of the spectrum. On the one hand, there were fewer incidents, and less serious, than in some of the cases cited above, the incidents took place within the workplace, and there was not a loss of employment related to the incidents. On the other hand, there was physical touching, more than once, which involved the applicant being hugged so tightly she could feel the personal respondent’s genitalia against her, having the personal respondent’s hand moving up and down her leg, and being kissed, and a power imbalance in that the personal respondent was the applicant’s boss, about which he essentially reminded her with his comments that he could do what he wants because of his position. Some of the touching and comments took place in the presence of other employees and caused the applicant embarrassment and humiliation.
53After considering the overall seriousness of the personal respondent’s Code-related mistreatment of the applicant, the applicant’s individual circumstances, and the cases cited above, I find that $20,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect. Pre-judgement interest, at the rate of 1.3% pursuant to section 128 of the Courts of Justice Act (“CJA”), is payable on this amount from January 28, 2014, the date the applicant filed her Application. Post-judgment interest, at a rate of 2% pursuant to section 129 of the CJA, is payable after 30 days.
Compliance Remedies
54There is no evidence before me that the organizational respondent has a policy about sexual harassment. Furthermore, it is obvious that the personal respondent, who is the president and CEO, does not appreciate his obligations under the Code with respect to sexual harassment. As such, I find it appropriate to order that within 60 days following the date of this Decision, the organizational respondent provide training to the personal respondent, other management, and employees on their obligations under the Code with respect to sexual harassment. I also order the organizational respondent to post Code cards in a prominent location in the workplace (for example, in a kitchen). The Code cards are found on the Ontario Human Rights Commission’s website, as attachments, at www.ohrc.on.ca/en/human-rights-code-card.
ORDER
55Accordingly, the Tribunal orders as follows:
The respondents shall, jointly and severally, pay the applicant $20,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. Pre-judgment interest in the amount of 1.3% runs on this amount, starting from January 28, 2014, and post-judgment interest in the amount of 2% becomes payable on any amount that is unpaid within 30 days from the date of this Decision; and
Within 60 days from the date of this Decision, the organizational respondent shall provide training to the personal respondent, other management, and employees on their obligations under the Code with respect to sexual harassment and post Code cards in a prominent location in the workplace.
Dated at Toronto, this 1st day of March, 2016.
”Signed By”
Alison Renton
Vice-chair