Granes v. 2389193 Ontario Inc., 2016 HRTO 821

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

De Anna Granes

Applicant

-and-

2389193 Ontario Inc. and Rajneesh Dutta

Respondents

DECISION

Adjudicator: Josée Bouchard

Date: June 17, 2016

Citation: 2016 HRTO 821

Indexed as: Granes v. 2389193 Ontario Inc.

APPEARANCES

De Anna Granes, Applicant

Jamie McGinnis, Counsel

2389193 Ontario Inc. and Rajneesh Dutta, Respondents

Pamela Milne, Paralegal

INTRODUCTION

1This Application arises out of incidents that occurred on February 1, 2014 at the Houston Avenue Bar and Grill in Barrie, owned by 2389193 Ontario Inc. (“the Restaurant”), where the applicant was employed full-time as head server. By all accounts, the applicant was very good at her job, was liked by her colleagues and customers and had significant responsibilities. She was responsible for closing the Restaurant and training new employees. She also assisted with administrative tasks and with the opening of a related restaurant in Toronto.

2In September 2013, the Restaurant changed ownership and the personal respondent, Mr. Dutta, became co-owner with Mr. Sunny Patel. Before this change of ownership and the incidents of February 1, 2014, the applicant described the Restaurant as a good place to work. She worked with the previous owner for more than a year and said he was like family to her. She also enjoyed the company of her colleagues.

3The applicant’s attitude changed significantly after February 1, 2014. She alleges that on that date, the personal respondent sexually harassed her. She also alleges that following the incidents, the Restaurant failed to take her complaints seriously forcing her to resign from her position. The applicant filed this Application on July 1, 2014 alleging discrimination with respect to employment because of sex, including sexual harassment, and sexual solicitation or advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4I find that the personal respondent subjected the applicant to inappropriate sexual comments and touching amounting to sexual harassment and solicitation in violation of the Code. I also find that the respondents failed to address the matter, which caused the applicant to leave her position.

EVIDENCE

5In addition to herself, the applicant called Detective Constable Darryl Van Loosen, Lead Investigator for the Barrie Police Service, and former general manager of the Restaurant, John Musicco as witnesses. The personal respondent and Lisa Cloverdale, former server at the Restaurant, testified for the respondents.

Applicant’s Request to Call Additional Witness

6On March 31, 2016, six days before the start of the hearing, counsel for the applicant informed the Tribunal that she wished to call a former employee of the Restaurant as a witness (“proposed witness”) but the proposed witness would not be in the country on the April 6 and 7, 2016 hearing days. The respondents objected to the request indicating that the proposed witness was not on the witness list. The parties made oral submissions on this issue at the hearing.

7Rule 17 of the Tribunal's Rules of Procedure provides that, no later than 45 days prior to the hearing, each party must deliver and file with the Tribunal and every other party a witness list, including the name of every witness and a brief summary of their evidence. No party may present a witness whose name and summary of evidence was not included in a witness list except with the permission of the Tribunal.

8Disclosure and filing of witness statements was originally due on February 22, 2016. At the request of the applicant, the Tribunal granted extensions for making disclosure first until March 7, 2016, and then until March 8, 2016. The respondents filed their disclosures and witness statements on February 19, 2016. The applicant filed on March 8, 2016.

9The applicant argued that the proposed witness, who was the bar manager at the Restaurant at the time of the incident, could corroborate some of the information in the Application. Counsel for the applicant explained that she was retained in mid-February and was not able to speak to the proposed witness until March 9, 2016. The proposed witness had still not approved the witness statement on March 16, 2016. As a result, the applicant attempted to summon the proposed witness but she had left the country to return April 11, 2016.

10I accepted the respondents’ argument that the proposed witness was not on the applicant’s witness list and it would be prejudicial to allow the request at this very late stage in the proceeding. The applicant had been provided with sufficient time to contact the proposed witness and place her on the witness list, but failed to do so.

Credibility

11This is a case where credibility is key; the parties’ evidence differs in key areas and the determination of the issues turns largely on my assessment of credibility.

12In making the finding, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed. It held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

13Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors that have been considered by the Tribunal in assessing reliability and credibility, including;

a. the internal consistency or inconsistency of evidence;

b. the witness’s ability and/or capacity to apprehend and recollect;

c. the witness’s opportunity and/or inclination to tailor evidence;

d. the witness’s opportunity and/or inclination to embellish evidence;

e. the existence of corroborative and/or confirmatory evidence;

f. the motives of the witnesses and/or their relationship with the parties;

g. the failure to call or produce material evidence.

See Shah v. George Brown College, 2009 HRTO 920 at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.

Applicant

14The respondents pointed to a few minor inconsistencies in the applicant’s testimony. The discrepancy that the respondents argue is the most significant is the difference between the applicant’s recorded police statement and her testimony on the issue of who drove the personal respondent to a hotel at the end of the evening. In the police statement, the applicant refers to what sounds like “Tanaka” as that person while in testimony she confirmed that the bartender, Trudy, whose name does not sound like “Tanaka”, drove the personal respondent.

15This Tribunal has held that, with the passage of time, slight and minor discrepancies are not surprising. See for example Lane v. Hamilton Police Services Board, 2011 HRTO 1145. This is one of few minor discrepancies in the applicant’s testimony and the information of who drove the personal respondent to the hotel is not central to this case.

16The applicant provided detailed accounts of each incident. She was able to recall the behaviour she experienced in a believable manner. She discussed multiple incidences without confusion or hesitation and she was able to talk about the matters in any order without a significant amount of confusion. The applicant’s testimony was clear, precise, not contradicted, logical, plausible and consistent. I find the applicant a credible witness.

Mr. Musicco

17I also find Mr. Musicco to be a credible witness. Mr. Musicco is a former general manager of the Restaurant who was able to describe his role at the Restaurant and in the alleged incidents in a straightforward and consistent fashion without hesitation. Mr. Musicco’s evidence in examination and cross-examination was consistent and he did not embellish his evidence.

Detective Constable Van Loosen

18I find Detective Constable Van Loosen to be a credible witness in his description of his investigation, how he came to the decision not to charge the personal respondent and what he told the personal respondent about pressing charges. I find that the Detective Constable had no reason to fabricate his evidence and he used his notes of the incident, made at the time of his interviews, to recollect the events.

Ms. Cloverdale

19Ms. Cloverdale was not a confident witness and she made it clear that she would have preferred not to be involved. Ms. Cloverdale was summoned to appear. She also testified that although she had not been forced or paid to provide her testimony, the personal respondent had told her that if she did not testify, she would go to jail. Ms. Cloverdale was very hesitant in her testimony and I find her less reliable.

20Ms. Cloverdale testified that she did not witness the inappropriate touching and groping of the applicant. I believe it is possible that she did not witness that conduct and as such, did not have a full understanding of what happened on the evening in question. However, I rely on Ms. Cloverdale’s testimony that the personal respondent was intoxicated and at the very least “flirty” that evening. I also believe that Ms. Cloverdale downplayed the events as, in her view, she had suffered a lot worse.

Personal respondent

21I do not find the personal respondent credible and, as such, give very little weight, if any, to his testimony. The personal respondent’s testimony was inconsistent both on its own and considered in the context of the testimony of other witnesses, including his own witness. The personal respondent also failed to produce available evidence to support his version of events and did not provide valid reasons for doing so. The following are some of the observations that have led me to this conclusion:

a. The personal respondent testified that the applicant made racial slurs toward him, likely between February 10 and 20, 2014. The personal respondent was very vague in describing the alleged incidents; he could not remember who witnessed them and when they actually happened. The applicant denied this allegation and Mr. Musicco testified that he had never heard the applicant make racial slurs. In addition, the applicant was firm in her testimony that her last day at the Restaurant was on February 10, 2014. On a balance of probabilities, I rely on the applicant’s and Mr. Musicco’s evidence to find that no racial slurs were made.

b. The personal respondent testified that Detective Constable Van Loosen lied in his testimony and his February 13, 2014 Supplementary Occurrence Report regarding what the personal respondent allegedly admitted to him about the February 1, 2014 incidents. As mentioned above, Detective Constable Van Loosen had no reason to fabricate his evidence and I believe his evidence on the personal respondent’s admissions about the night in question.

c. The personal respondent maintained that Mr. Musicco, who denied the personal respondent’s allegation that the applicant’s father offered $50,000 to refrain from pursuing the matter, lied in his testimony and that he is an extortionist. I find the personal respondent’s allegation that Mr. Musicco lied does not fit with the totality of the evidence and I believe Mr. Musicco’s testimony on this point.

d. The personal respondent testified he was not “flirty” on February 1, 2014. The personal respondent contradicts his own witness, Ms Cloverdale, who had described him as flirty that night. On the balance of probabilities, I believe Ms. Cloverdale’s testimony on this point.

e. The personal respondent testified that he “did not have a drop of alcohol” that evening. Each witness, including his own, referred to the personal respondent as intoxicated that night. I find that the personal respondent was intoxicated that evening.

Background

February 1, 2014 Incidents

22On February 1, 2014, the applicant began her shift early; at about 5 p.m. when customers began arriving. She was responsible for training Ms. Cloverdale as a server that evening.

23Shortly after beginning her shift, the personal respondent sat at the bar and announced that he would try every drink on the cocktail menu. In a friendly manner, the applicant advised against it and continued working. Approximately one hour later the applicant noticed the personal respondent getting “friendly”.

24As the evening progressed, the personal respondent’s demeanor changed and became increasingly inappropriate. In order to serve alcohol, the applicant had to pass her Smart Serve Ontario licence and she learned about the rules and regulations related to serving alcohol and the indicia of intoxication. The applicant testified that by the end of the evening, the personal respondent was obviously intoxicated: slurring his words, swaying, having watery eyes, speaking incoherently and having mood swings. She testified that she also saw the personal respondent’s $130 bar tab for the alcohol he consumed.

25The applicant testified that, during the evening, the personal respondent followed her around, whispering in her ears and saying, “At the end of the night we are going to have our own party”; “You’re an amazing server, you know that right?”; “I want to take you home”; “You know I love you, right?”. The applicant asked him to stop on numerous occasions.

26The applicant described numerous serious incidents of inappropriate comments and touching/groping as follows:

a. The personal respondent came up beside her, put his arm around her shoulders and grabbed her right breast. The applicant testified “My back was turned, the personal respondent came up beside me, put his arm on my arm and grabbed my right boob – wasn’t a graze”. She testified that the personal respondent was “all over her”.

b. The applicant was using the computer at a nearby counter. The personal respondent came up behind her and started caressing her arms, feeling her thighs and stomach. To avoid the personal respondent, the applicant moved to the other computer with Ms. Cloverdale.

c. The applicant was serving a large party at the back of the lounge. The personal respondent came up behind her and had his hand on her stomach, side and thighs. She described it as follows: “He was feeling me, his hands on my thighs, felt embarrassed because I saw people watching. I pushed him aside and walked away”.

d. The applicant went to drop off dishes in the back of the restaurant and the personal respondent was present. He grabbed her, whispered in her ear and tried to kiss her. The applicant turned her head and told him not to.

e. Towards the end of the evening, the applicant found out the personal respondent was about to drive his car even though he was obviously intoxicated. The applicant testified that, even if it was not her responsibility to ensure that the personal respondent did not drive while intoxicated, she felt she had a responsibility toward him and others’ safety to try to prevent him from driving. The applicant saw the personal respondent’s keys out of his pockets and grabbed them. As she did so, the personal respondent backed her onto the wall. He grabbed her wrist to a point where the applicant said repeatedly “you are hurting me, stop it”. The personal respondent overpowered her. A colleague was behind the personal respondent and asked to be thrown the keys, which the applicant did and this ended the altercation.

27The applicant testified that Ms. Cloverdale noticed her discomfort during the evening and asked if she was “okay”. She responded that she was not, but she had tables to attend to.

28The applicant testified that Ms. Cloverdale informed her that the personal respondent asked for her phone number and tried to kiss her. After that, the applicant and Ms. Cloverdale “stuck together” to avoid the personal respondent’s advances. She was also aware that the personal respondent had tried to kiss another employee that night.

29Ms. Cloverdale’s testimony deviates slightly from the applicant’s; she saw the personal respondent touch the shoulders of employees in a friendly way, but testified she did not witness any sexual assault. In her view, the personal respondent “was drunk, and touchy feely – he put his arms around me, caused me discomfort”. She did not ask him to stop, and said that it may have been because he was her boss. She also did not think it was a “big deal” as worse things had happened to her. She did not think much of what happened to the applicant.

30On August 10, 2014, the day he filed his Response, the personal respondent texted Ms. Cloverdale. He wished to confirm whether she would deny the allegations in the Application that he was all over her in the kitchen, asked for her number and tried to kiss her. Ms. Cloverdale responded: “You didn’t try to kiss me at all”. This exchange occurred while Ms. Cloverdale was still employed at the Restaurant.

31In November 2014, after finding out about the exchange, the applicant texted Ms. Cloverdale to clarify her position. Ms. Cloverdale admitted in testimony to sending the following response to the applicant:

Hey girl, yeah he put his arm around me and acted flirty while being drunk but I never saw him grab your breasts that’s all I said.

Yeah I just chocked it up to him being drunk and all he didn’t cross any boundaries with me I just didn’t see him touch you I was just saying what I saw I’ve had a lot worse happen to me so it didn’t strike a nerve with me.

32The applicant testified that she was so distraught about what happened on the night of February 1, 2014, she stayed at the bar manager’s house to avoid driving back to her home. She went into work at the Restaurant the next day and had a panic attack. It is undisputed that the bar manager took her to the office where she remained for approximately one hour and a half and then went home and told her step-mother about the incidents.

33The personal respondent denied the incidents. The personal respondent explained that he was mostly in the bar area with the regular patrons during the evening. He remarked that everybody in Barrie greets each other with hugs and arms around one another. He testified that he put his arms around others but it was by mutual consent. Contrary to Ms. Cloverdale’s testimony, he denied being “flirty” that evening. In his view, “she is the one who puts her arms around people”. When asked about the discrepancy with his own witness’ testimony, he dismissed her view because she “has a different personal perspective”.

34The personal respondent testified that at no time during the evening did he look at the applicant. In cross-examination he explained that “everyone looks at each other” but he did not look at the applicant in a sexual manner.

35Contrary to the testimony of all of the other witnesses, the personal respondent insisted that he did not have “a single drop of alcohol that night”.

36The personal respondent confirmed that there was an altercation related to his car keys, but indicated that he asked for his keys back because there was money, pay stubs for employees, licence renewal documents and highly sensitive and valuable documents and possessions in his car.

The Police Investigation

37The applicant spoke to her father when he arrived home on February 2, 2014 and they immediately contacted the Barrie Police Department. On February 3, 2014, the applicant met with Detective Constable Van Loosen. She provided a video statement of the incidents, included in evidence.

38Detective Constable Van Loosen went to the Restaurant on February 4, 2014 at about 5 p.m. with his partner and they spoke with co-owner Mr. Patel, Mr. Musicco, Ms. Cloverdale and the bar manager. The Detective Constable took a written statement from the bar manager but Ms. Cloverdale did not want to be involved and refused to give a written statement.

39Detective Constable Van Loosen testified that he and his colleague reviewed the security camera footage for the evening, which covered a period of about 7 hours. He did not see acts of sexual assault on the video footage of the night in question. However, he explained that he spent approximately 50 minutes reviewing the 7 hour footage. He reviewed the hallway going into the bar area, the bar area and some of the restaurant, but there were areas he could not see. He confirmed that there were periods throughout the night when the personal respondent left the bar and came back.

40The applicant believes that some incidents occurred in areas other than the bar and/or not covered by the cameras. For example, the first incident, when the personal respondent allegedly grabbed the applicant’s breast, occurred when the applicant had her back to the camera. Some incidents occurred in the back of the lounge and in the pass-through to the kitchen, largely out of camera view. Finally, during the grabbing of the personal respondent’s keys incident, the applicant was pushed to the wall, out of camera range.

41The Detective Constable spoke with the personal respondent on February 10, 2014 and noted this exchange in his Supplementary Occurrence Report (“SOR”). Both the testimony and SOR point to the personal respondent conceding that his actions were completely unprofessional and he felt ashamed of them. He admitted to being very intoxicated and trying to be friendly with staff but he did not intend to make anyone feel uncomfortable. He agreed that his actions could be taken the wrong way. As a result, the personal respondent promised during the meeting that he would no longer drink at work and would conduct himself accordingly at all times.

42The Detective Constable explained that the police did not lay charges because of lack of corroborative evidence of intentional inappropriate touching for sexual gratification. In his view, the personal respondent’s actions occurred as a result of intoxication. No witnesses acknowledged seeing the personal respondent intentionally try to grab the applicant’s breast and buttock area. The Detective Constable was not convinced the personal respondent was trying to get sexual gratification from the applicant.

43The personal respondent confirmed going to the police station on February 10, 2016 and being told there would be no charges laid against him. He testified that he was told to be careful with “these employees. This should be a wakeup call for you”.

44The personal respondent denied having told the Detective Constable that he was intoxicated on the night in question, that he felt ashamed and did not intend to make anyone feel uncomfortable, and that he promised he would no longer drink at work. The personal respondent explained the discrepancy between his and the Detective Constable’s testimony by saying that Detective Constable Van Loosen lied in testimony and in the SOR.

The Restaurant’s Reaction to the Incidents

45Then general manager, John Musicco, testified that he had left the Restaurant at about 6 p.m. on February 1, 2014 and did not witness the incidents. On February 3, 2014, upon his return to work, staff members informed him that there had been a situation on the Saturday night. He testified that the applicant called him, sounding distraught and upset, asking to meet with him.

46The personal respondent presented his version of the facts. He testified that Mr. Mussico called him between 8:00 and 8:30 a.m. on February 3, 2014 to inform him that the applicant’s father had called, was up in arms and accusing the personal respondent of assaulting his daughter. According to the personal respondent, at 9:45 a.m., Mr. Musicco contacted him again to say that the applicant’s father had offered to refrain from pursuing the matter in return for $50,000. Mr. Musicco denied this happened in his testimony. When asked why Mr. Musicco denied this, the personal respondent testified that Mr. Musicco lied in testimony and that he is an extortionist.

47Mr. Musicco met with the applicant at the Restaurant that morning and she described what happened. Mr. Musicco found the applicant very upset. He did what he could to make her feel comfortable and safe. The applicant informed him that she would be making a police report.

48According to Mr. Musicco, approximately one week after the February 1, 2014 events, co-owner Mr. Patel talked to him and said “you have not made the problem go away”. Mr. Patel asked Mr. Musicco to terminate the bar manager who was supportive of the applicant. Mr. Musicco refused to do so and was terminated approximately one week later.

49On February 10, 2014, the applicant returned to work at the Restaurant and was advised that Mr. Patel and the personal respondent wished to speak with her. She requested that they speak in a public area of the Restaurant, in the company of another person and where there were cameras. She testified that they said to her “We just want to move forward so we want you to put on that pretty little smile of yours and do your job.” “You need to take the hurt out of your heart and throw it away.” They also informed her that Mr. Musicco had been terminated.

50During that meeting the applicant requested that the personal respondent not be in the building when she was there, for at least a little while, because she did not want to face him so soon after the incidents. The co-owners denied the request, alleging that the personal respondent had to be there to run the business. The applicant testified that, before the incidents, the personal respondent was rarely in the Restaurant when she was. She could not understand why her request could not be accommodated.

51The applicant testified that she did not return to the Restaurant after the February 10, 2014 meeting. She was anxious, could not sleep and felt unmotivated and distant. She missed her shifts as a result. On February 25, 2014, upon the applicant’s request, her father delivered a doctor’s note dated February 20, 2014 to the Restaurant. The note indicated that she would be unable to return to the Restaurant because of medical/emotional issues related to incidents that occurred at her place of employment. Although the medical practitioner did not testify, the parties did not object to the admissibility of the evidence.

52The personal respondent testified that he and Mr. Patel met with the applicant to ensure that she felt safe. He confirmed that the applicant asked him not to be in the Restaurant when she was working, but as he had a business to run, he could not accommodate that request. The personal respondent admitted in cross-examination that he and his partner made no attempt to reassure the applicant that the work environment would be safe after February 10, 2014.

53In his Response to the Application and in testimony, the personal respondent denied the allegations and alleged instead that it was the applicant who made inappropriate racial slurs toward him, calling him a “terrorist”, a “monkey”, and “Osama”. The applicant denied this, saying that she was baffled by this allegation as it would be so out of character for her to use racial slurs. Mr. Musicco testified that not only did he not hear the applicant utter racial slurs toward the personal respondent; he has never heard the applicant use that type of language before. The personal respondent failed to identify any employee who could confirm that the applicant made the statements. He also failed to specify exactly when the alleged slurs were made, saying that they were likely made between February 10 and 20, 2014. The applicant testified that she did not work after February 10, 2014 and the personal respondent failed to prove otherwise.

54The personal respondent admitted to being ignorant of human rights before receiving the Application from the Tribunal. He believed that the matter had been dealt with when the Detective Constable told him that they would not lay charges. He testified that in his view, sexual assault and sexual harassment are the same.

Summary of Reliable evidence

55The following is a summary of the findings I have made based on the evidence that I found reliable:

a. The personal respondent began drinking early in the evening of February 1, 2014 and was extremely intoxicated by the end of the evening.

b. The personal respondent made a number of inappropriate comments to the applicant that night and on a number of occasions, touched and groped her in an inappropriate sexual manner.

c. The personal respondent acted inappropriately and in a sexual manner with at least one other employee.

d. The respondents did not take the situation seriously and asked the applicant to forget what happened.

e. The respondents terminated the general manager because he was sympathetic to the applicant.

f. The respondents failed to address the matter and ensure that the applicant felt safe.

g. The personal respondent admitted to the Detective Constable that he was intoxicated that night, acted in a way that could be misconstrued, felt ashamed, and promised not to drink at work again.

h. The applicant was extremely distraught after the incidents and required medical attention. The refusal to take her complaint seriously and accommodate her to ensure her safety meant that the applicant could not return to work at the Restaurant.

analysis and decision

The Law

56It is useful to set out the applicable provisions of the Code:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

7(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome […]

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

Sexual Harassment or Solicitation

57I find that the above requirements for sexual harassment and solicitation have been met.

58I find that the personal respondent touched the applicant’s breast, put his arm around her, touched her stomach, rubbed her thigh, attempted to kiss her and used physical force against her. In addition, the applicant consistently and clearly refused the personal respondent’s advances by telling him to stop or by physically removing his arm and pushing him away. I find the conduct of the personal respondent clearly sexual in nature and he ought to have known that it was inappropriate in the workplace and unwelcome.

59It is uncontested that the personal respondent, a co-owner of the Restaurant, was the applicant’s employer.

60I find that the incidents amount to a course of conduct or comments by an employer in violation of s. 7(2) of the Code. They occurred repeatedly over the course of the evening. The applicant recounted more than five significant inappropriate incidents, verbal and physical, mostly sexual in nature, by the personal respondent. .

61In any event, even one of these incidents constitutes a sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to the person contrary to s. 7(3) of the Code.

The Investigation

62The applicant also argues that the employer has an obligation, once aware of the possibility of harassment occurring in the workplace, to undertake a prompt, serious and thorough investigation and, in appropriate cases, to take action that may have consequences for the harasser. The applicant’s complaint was not taken seriously. The co-owners brushed her complaint by relying on the conclusions of the police investigation. They made no efforts to take care of the applicant’s well-being and safety concerns.

63I find that the criminal police investigation did not absolve the respondents of their obligation to take the matter seriously and address it as is required under the Code. Given the different standards of proof, an employer cannot conclude that no sexual harassment occurred when charges of sexual assault are not pursued by police.

64Not only is the personal respondent part of the directing mind of the corporate respondent, but I find that the Restaurant breached the Code by not addressing the matter appropriately and incurred liability by not conducting an adequate investigation or making any attempt to resolve the complaint. I find this failure to investigate and resolve the situation caused by the personal respondent’s actions meant that it became a condition of the applicant’s employment to work in a poisoned environment.

REMEDIES

65The applicant requests the following remedies:

a. $20,000 for compensation for injury to her dignity, feelings, and self-respect;

b. $9,440.51 for loss of wages, including gratuities, experienced due to the human rights violation;

c. That the Restaurant be required to hire an expert to develop its own human rights policy, including a complaint mechanism; provide training to all staff on rights and legal obligations under the Code; and post human rights cards in all facilities operated by the Restaurant; and

d. That the personal respondent be required to undergo human rights training.

66Section 45.2 (1) of the Code provides:

On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Award for Injury to Feelings, Dignity and Self Respect

67In Sanford v. Koop, 2005 HRTO 53 (“Sanford”), the Tribunal outlined the following factors to assess the appropriate amount of the award for injury to dignity, feelings, and self-respect:

a. Humiliation experienced by the applicant;

b. Hurt feelings experienced by the applicant;

c. An applicant’s loss of dignity;

d. An applicant’ loss of self-esteem;

e. An applicant loss of confidence;

f. The experience of victimization;

g. The vulnerability of the applicant;

h. The seriousness, frequency, and duration of the offensive treatment.

68The following principles are also relevant:

a. An award for monetary compensation must not be set too low as to trivialize the social importance of the Code by creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane (2008) 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153 (“ADGA”).

b. The low end of the monetary spectrum involves circumstances of a few incidents, less serious incidents, and/or incidents that did not include physical touching. Conversely, the high end of the monetary spectrum includes multiple incidences, incidences of a serious nature and physical assault and/or reprisal or loss of employment. See Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 at para. 55 (“Vipond”).

69The applicant described the incidents as making her feel disgusted, vulnerable, embarrassed, anxious, guilty and fearful. She felt that her dreams and future plans had been taken away. The applicant also suffered physically: her sleep was affected, she had symptoms of Irritable Bowel Syndrome, her stomach was in knots, and she often experienced headaches and migraines particularly in the days following the incidents.

70The applicant described feeling disgusted that someone felt they had the right to touch her body for their own pleasure, without her consent. She testified that the incidents took her innocence away. Her decision to file an Application with this Tribunal was not made lightly. She described using this process as a way of taking back what is hers, making her own decisions about her body and letting go of her fears.

71The applicant had planned to go to nursing school and had been accepted in a reputable program for full-time studies. However, her dreams were dashed because, without full-time employment, she lacked the necessary funds to attend. She moved back home in order to be in a better financial position. The applicant said she felt humiliated by the accumulation of debt and had to rely on family for assistance.

72The applicant mitigated her losses with respect to her emotional well-being by making use of Aphrodite, a free counselling program for sexually harassed/traumatized women. She testified that she used sleeping pills to address the sleepless nights and was taking a light anti-depressant for her depression.

73The applicant argues that in Harriot v. National Money Mart, 2010 HRTO 353 (“Harriot”), the Tribunal awarded $30,000 in monetary compensation with $22,500 for the harassment and poisoned work environment and $7,500 for the failure to investigate. The Tribunal also summarized a number of sexual harassment cases in Vipond, above at para. 54, with awards ranging from $12,000 to $50,000. She submits that of those cases, her matter falls within the middle to the higher end of this spectrum for the following reasons:

a. Even though the incidents occurred in one night, they were relatively serious in nature;

b. The conduct involved touching of her breast, shoulder, stomach, hips and an attempt to kiss her and an assault to obtain the personal respondent’s keys violating the safety of her own personal space;

c. The failure to investigate and properly respond to her complaint, the expectation that she would have to work with the personal respondent, and the termination of the general manager that she trusted, forced her to resign from her employment,;

d. The emotional impact she suffered making use of a free counselling services and medications;

e. The humiliation in having to borrow money from her father and to rely on credit;

f. Not being able to afford to attend school;

g. Her emotional impact, the serious loss of self-confidence, the damage to her dignity and hurt feelings.

74I note that cases of sexual harassment involving explicit sexual touching tend to garner higher monetary compensation awards. See for example Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000 for infringing the applicant’s right to be free from sexual harassment and an additional $5,000 for the failure to reasonably respond to the complaints.); G.G. v. […] Ontario Limited, 2012 HRTO 1197 ($18,000); Iu v. Markham Marble, 2012 HRTO 65 ($20,000); and Harriott, above,($22,500).

75I find that all the factors enumerated by the applicant are relevant to the determination of an award as compensation for injury to dignity, feelings and self-respect. I am persuaded that the infringement of the applicant’s right to be free from discrimination was serious. The infringement was exacerbated by the Restaurant’s lack of response, which left the applicant no practical choice but to resign. The impact this had on the applicant’s dignity, feelings and self-respect was significant.

76After considering the circumstances in this matter, I find the personal respondent and the Restaurant jointly and severally liable for an award of $20,000 in monetary compensation for injury to her dignity, feelings and self-respect.

Lost Wages

77In determining the appropriate remedy for lost wages, I must first consider whether the applicant left her employment as a result of the violation of the Code.

78In determining the amount and type of remedy, the Tribunal in Hamilton and Crêpe it Up!, 2012 HRTO 1941 at para. 97, found that the inappropriate comments and conduct that created the poisoned work environment played some role in the applicant’s decision to quit, but the applicant would have quit her employment in any event. As a result, the Tribunal declined to award the applicant compensation for lost wages.

79I find that the applicant in this case would have remained at the Restaurant for as long as she could, or needed, had it not been for the incidents of February 1, 2014 and the respondents’ failure to address the situation. I have taken the following factors into account to reach this decision:

a. The applicant indicated that she would not have left the Restaurant but for the incidents;

b. The applicant liked working at the Restaurant and she was excellent at her job;

c. The applicant enjoyed her colleagues;

d. The applicant had accepted an offer from a reputable college to begin her nursing degree but could not do so without a full-time position;

e. The applicant needed an income and was working at two places to make ends meet.

80In J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 at para. 77, the Tribunal found that an employee who is subjected to a poisoned work environment has grounds to resign from employment to avoid continued exposure to that environment.

81The applicant testified that she made best efforts to mitigate her financial losses by looking for employment using online employment sites. She also contacted people and attended some interviews but was unsuccessful. She testified that she was interviewed at another restaurant, but was told that she would not be successful because of “what happened at the Restaurant”. In November 2014, she obtained full-time employment in a retail store approximately 8 months after leaving the Restaurant.

82Until February 10, 2014, the applicant worked full-time at the Restaurant and also had a part-time position. The incidents of February 1, 2014 affected both positions.

83The applicant never returned to the Restaurant following February 10, 2014. The applicant provided her 2013 Canada Revenue Agency Statement of Remuneration (“Statement of Remuneration) and Record of Employment for the Restaurant position showing an annual income of $7,468.91. That income, prorated for a period of 8 months would amount to $4979.27.

84The applicant also testified that she lost 8 months’ worth of gratuities from leaving her full-time position, which were not included on her Statement of Remuneration. Although the amount of gratuities varied with every shift, she estimated making approximately $100 per day in gratuities during the week and $150 on Saturdays. The calculation of $100 of gratuities a night for 18 days a month for a period of 8 months amounts to $14,400. The applicant’s request of $4,000 to compensate for gratuities is likely far below what she would have earned. However, because of the lack of evidence on this point, I find that it is reasonable to award $4,000 in compensation for the loss of gratuities.

85The applicant also worked 5 hour shifts at her part-time position. The applicant outlined in her Application and submissions that she missed nine of those shifts between February 17 and 30, 2014, because of how she felt after the incidents. The missed work days were taken during and immediately following the period of the incidents and her departure from the Restaurant. I find that her absenteeism from her part-time position in February was as a result of the incidents. The applicant worked shifts of 5 hours at $10.25 an hour at her part-time position. She missed 9 shifts which amount to $461.25.

86The respondents are jointly and severally liable to pay the applicant $9,440.52 in lost wages.

Interest

87Pursuant to s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43 (“CJA”), as amended, pre-judgment interest runs from the date the cause of action arose to the date of the order. Accordingly, I find the respondents jointly and severally liable to pay the applicant pre-judgment interest on the awards for the injury to her dignity, feelings, and self-respect, and for lost wages from February 1, 2014 to the date of this Decision.

88Pursuant to s. 129(1) of the CJA, I find the respondents jointly and severally liable to pay the applicant post-judgment interest on the awards for the injury to her dignity, feelings, and self-respect, and for lost wages not paid within 30 days of the date of this Decision.

89The 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

Public Interest Remedies

90I conclude that the respondents knew of the incidents but lacked the knowledge of their legal obligations under the Code and had provided no training to employees. The Restaurant also did not have an internal human rights policy.

91A remedy under section 45.2(1)3 of the Code to “promote compliance with this Act” is appropriate in this case. The Restaurant must create and apply a workplace policy that reflects the responsibilities of employers and employees under the Code and includes a complaint mechanism. I refer the Restaurant to the website of the Ontario Human Rights Commission, which contains A policy primer: Guide to developing human rights policies and procedures available at http://www.ohrc.on.ca/en/policy-primer-guide-developing-human-rights-policies-and-procedures.

92The Restaurant must also provide training on human rights principles and the Code to all its employees. Such training may be the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at http://www.ohrc.on.ca/en/learning/human-rights-101) (“Human Rights 101”). I also order that the Restaurant post in plain view the Ontario Human Rights Commission’s Code Cards available on-line at http://www.ohrc.on.ca/en/human-rights-code-cards.

93Given the seriousness of the personal respondent’s conduct and his lack of knowledge of human rights principles and Code obligations I find it appropriate to order that the personal respondent complete the Human Rights 101 training mentioned above.

ORDER

94The Tribunal orders as follows:

a. Within 30 days of this Decision, the respondents shall, jointly and severally, pay $20,000.00 to the applicant in monetary compensation for injury to her dignity, feelings and self-respect.

b. Within 30 days of this Decision, the respondents shall, jointly and severally, pay $9,440.52 to the applicant for her wage loss.

c. The respondents shall jointly and severally, pay to the applicant pre-judgment interest on the awards for injury to dignity, feelings and self-respect and wage loss, above, from February 1, 2014 to the date of this Decision, calculated in accordance with section 128 of the CJA.

d. The respondents shall, jointly and severally, pay to the applicant post-judgment interest on any accumulated principal and interest arising from the awards for injury to dignity, feelings and self-respect and wage loss, above, calculated in accordance with section 129 of the CJA, from the date that is 30 days after the date of this Decision.

e. Within three months of the date of this Decision, the personal respondent shall complete the Human Rights 101 online training program referred to above. The personal respondent shall provide written confirmation to the applicant upon completion of the training.

f. Within three months of the date of this Decision, the Restaurant shall adopt a written policy for dealing with complaints of harassment and discrimination in the workplace, including a complaint procedure.

g. Within six months of the date of this Decision, the Restaurant shall provide mandatory training to its employees.

h. Within one week of the date of this Decision, the Restaurant shall post in plain view the Ontario Human Rights Commission’s Code Cards available on-line as referred above.

Dated at Toronto, this 17th day of June, 2016.

“Signed By”

Josée Bouchard

Vice-chair