Nan Qiu v. 2076831 Ontario Ltd. o/a Redline Auto Sales and Sergey Barandich, 2017 HRTO 1432

Human Rights Tribunal of Ontario

B E T W E E N:

Nan Qiu

Applicant

-and-

2076831 Ontario Ltd. o/a Redline Auto Sales

and Sergey Barandich

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: October 31, 2017

Citation: 2017 HRTO 1432

Indexed as: Qiu v. 2076831 Ontario Ltd.

APPEARANCES

Nan Qiu, Applicant

Brenda Culbert, Counsel

2076831 Ontario Ltd. o/a Redline Auto Sales and Sergey Barandich, Respondents

Olga Kuchmar, Paralegal

Introduction

1On March 4, 2016, the applicant filed this Application against the respondents. The applicant alleges that she experienced discrimination and harassment in employment and in goods, services and facilities on the basis of race, ancestry, colour, sex and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The corporate respondent (the “Company”) is a used car dealership owned and managed by the personal respondent. The applicant provided bookkeeping and accounting services to the Company from July 4, 2011 to December 9, 2015.

3In the Application, the applicant alleges that the personal respondent engaged in unwanted and unwelcome contact such as snapping the applicant’s bra strap and slapping her backside; made sexualized jokes; distributed sexualized pictures; and made derogatory comments about female customers; made derogatory comments about the applicant’s clothing; talked about Chinese people in a manner reflecting a negative stereotype; made fun of the applicant’s accent; and, summarily dismissed the applicant after she angrily told the personal respondent that his actions were unacceptable and had to stop.

Summary of the Evidence

4The Application was heard on May 5, 2017. The Tribunal heard evidence from the applicant and the personal respondent. There was also evidence from three respondent witnesses who worked at the dealership.

5The following is a summary of the evidence.

The Applicant’s Evidence

Direct Evidence

6The applicant testified that she attained an accounting certificate while attending Humber College. After working for the Catholic School Board for a time, she took a bookkeeping and accounting position with the Company. Initially, she was hired as an employee. After a short time the personal respondent suggested that she set up her own business so that the Company would not need to remit taxes and statutory deductions. The applicant agreed and she set up a sole proprietorship called SunShine Consulting in which she provided services exclusively to the Company. She used the respondents’ credit card to register the business.

7When she was hired in July 2011, there were five to six employees at the company. They were all men. Initially, she shared an office with a sales person but after a few months she moved to her own office which did not have a door. The applicant indicated that she liked her job and that she had a good relationship with the personal respondent. However, as the personal respondent became more familiar with the applicant he began to make sexualized jokes and shared sexualized pictures on his computer. The applicant testified that she told the personal respondent not to share any sexualized pictures or jokes with her. At the hearing the applicant referred to Exhibit 1, which she indicated was an email from the personal respondent having the subject line “hardcore gay porn” although the attachment was Ketogenic Diet information.

8The applicant testified that the personal respondent often talked about female customers in a negative and sexualized way. She recounted the personal respondent saying “that bitch complained about my car”, “she needs a man to have sex” and “she dresses like a prostitute.” He also commented about her clothing, that she did not dress very nice, that her clothing did not fit her and that her clothes looked like “grandma clothes.”

9The applicant stated that the personal respondent would often talk to her about his sex life.

10The personal respondent made fun of the applicant’s Asian accent and mimicked her speech and he complained that Chinese people were cheap and wasted his time because they like to bargain.

11The applicant testified that at some point in 2011, the personal respondent began to engage in physical conduct with the applicant by snapping her bra strap on several occasions. She indicated that she did not understand why he was doing this. Allegedly the personal respondent told her that he would frequently do it in high school.

12He also slapped her on her backside on occasion. The personal respondent told her that his behaviour was a joke. The applicant stated that she told him that it hurt and she wanted it to stop. She testified that sometimes he would squeeze her shoulders when they in close proximity at the printer and copy machine.

13In 2013, the applicant became very ill and she took an extended leave from work. She tried to work half-days to keep up with her duties but it affected her health.

14The applicant indicated that she returned to full-time work in 2014. She testified that work was good and she was busy.

15The applicant testified that in the second half of 2014 she was again subjected to sexual jokes and comments and physical contact, including the snapping of her bra strap, by the personal respondent. She told him nicely “don’t do that” and “I don’t like it.” She stated that he would remind her that “I’m the boss.”

16The applicant indicated that she tried to remain positive about her relationship with the personal respondent until 2015. She stated that she was weaker due to her illness and had a different mindset about the personal respondent’s behaviour. It was her testimony that in the summer of 2015 she firmly advised the personal respondent to stop the touching and jokes or she would not come to work and that his response was to ask if the applicant was threatening him.

17The applicant testified that finally, one day after the personal respondent snapped her bra strap, she exploded, went to the personal respondent’s office, closed the door, and angrily told him to stop his behaviour. The personal respondent stated “why do take it so seriously”, “it was only a joke”, and that he would stop. The Applicant said that she had to leave the office “to breathe.”

18The applicant testified that after this encounter she had to take a few days off work to deal with her stress which she felt was heightened because of her illness.

19The applicant indicated from there on in her relationship with the personal respondent changed. They seldom talked to one another and she noticed that the personal respondent became more critical of her work and would swear at her, “what the fuck are you doing”, when he discovered errors in her work.

20She testified that on November 27, 2015, she printed cheques for all employees and, as was her practice, she handed out the cheques to each employee. She stated that she did not put the cheques into envelopes as the personal respondent thought it was wasteful. She hand-delivered all of the cheques except for one. She gave the cheque, which had been folded over so that the payment details were not visible, to another employee, David Deschamps, to give to the employee as she had to leave for a pre-scheduled appointment. Subsequently, the personal respondent was angry with the applicant as the employee’s cheque had been viewed by other staff members.

21The applicant testified that in December 2015, she commented to the personal respondent that the business manager, Karolina Strazewicz, had earned a large commission that pay cycle. She stated that even though there was nobody around when she made the comment, the personal respondent fired her, on the spot, for breaching confidentiality.

22The applicant testified that she was shocked as she was a good worker and she did not think she had done anything wrong. She stated that the personal respondent had told her she did an excellent job and that is why she got many raises. She indicated that she thought the personal respondent simply used her comments as a reason to fire her given her earlier upset with his conduct.

23The applicant testified that after being dismissed she was very emotional, that she could not sleep and she had headaches. She felt her world was in ruins and she lost confidence. She indicated she was in a weakened state and that she needed to recover from both the end of her employment and her previous illness so, with the support of her family, she took time away from looking for work.

24The applicant testified that she felt the personal respondent used the issue of the November 2015 paycheques and then her comments about Ms. Strazewicz in December 2015 as an excuse to fire her. The applicant maintained that the personal respondent decided that he no longer wanted her working at the company given her strenuous objection to his behaviour.

Cross-examination

25On cross-examination, the applicant testified that when she received the “hardcore gay porn” e-mail she was afraid to open it, fearing it would be another sexualized picture, but that the personal respondent told her it was “okay”, that the attachment was not “porn.”

26The applicant stated that she asked the personal respondent why he did not behave with Karolina Strazewicz the way he did with her in terms of snapping her bra strap and he responded that she was his family. She testified that on one occasion after the personal respondent snapped her bra strap, she ran into Ms. Strazewicz’s office and asked her if she saw what had happened and Ms. Strazewicz said that he could not do that to her.

27The applicant testified that she did not speak to Sylvia Barandich, the personal respondent’s wife, about how she was treated by the personal respondent. She indicated that she did not tell any of her co-workers either. She stated that there was no point because they would simply tell the personal respondent and he would be angry. The applicant indicated that she did tell a former co-worker, Claudio, but he would not testify at the hearing because he did not want to have a fight with the personal respondent, who worked in the same industry and who helped his brother set up his business.

28With respect to distributing paycheques, the applicant testified that she understood that a worker’s paycheque was sacred and confidential and when she found out that pay information for the employee for whom she had not hand-delivered the paycheque had been seen by others, she accepted the blame. She stated that in retrospect she should have held onto the paycheque until Monday when she would have seen the employee but all she could think about was that the employee would want his paycheque as soon as possible on Friday.

29With respect to office attire, the applicant did admit that she was given a “uniform” by the personal respondent but she was told by him that she did not need to wear it. It was a T-shirt. She testified that when he said I had a “grandma’s dress”, she did not feel good about it. She stated that it was not necessary to discuss her clothes and indicated that no one else commented on her clothes.

30With respect to her offence with sexual and sexist jokes by the personal respondent, she testified that she was from Asia and her family was very conservative. She stated she was the only female at the workplace at that time and there were males all around her who made sexist jokes, especially the personal respondent.

Re-Examination

31On re-examination, the applicant testified that she did not recall any issue with having provided information over the telephone to someone from the Canada Revenue Agency and she could not recall the incident described by the personal respondent. She confirmed that she gave only one paycheque to Mr. Deschamps in November 2015 and she denied the personal respondent’s account that she gave all of the paycheques to Mr. Deschamps to hand out.

The Personal Respondent’s Evidence

Direct Evidence

32The personal respondent gave evidence about the nature of his business and he gave evidence about selecting the applicant for hire. He indicated that her experience was by far superior to the other applicants.

33The personal respondent stated that he agreed to hire the applicant’s company, SunShine Consulting, to provide accounting and bookkeeping services to the organizational respondent. He testified that he had nothing to do with SunShine Consulting. He indicated that he was satisfied with her work performance but noted that given the high volume of transactions, mistakes were inevitable. When there was a mistake, he would point it out to the applicant, talk about it, and move on.

34The personal respondent testified that his wife helped out with the bookkeeping when the applicant was away for a lengthy period due to illness.

35He indicated that neither he nor anyone else spoke to the applicant in a disrespectful manner as he would not tolerate disrespectful behaviour at the workplace. He maintained that he was caring and understanding when the applicant was ill and that he kept her health issues confidential.

36With respect to Exhibit 1, the personal respondent explained that he lives an extremely healthy lifestyle and is careful about his nutrition. He had a discussion with the applicant bout working out and diet and he sent her the Ketogenic diet by email.

37Concerning the Applicant’s clothes and appearance, he testified that he gave the applicant a uniform that she was hesitant to wear. He indicated that she did not speak to customers but she was visible to the public and he wanted a certain look or image. He stated that he did insist that the applicant follow the dress code.

38The personal respondent denied all of the applicant’s allegations, in particular the allegations with respect to touching and “pulling” her bra strap – “It never happened.”

39Asked how many nationalities worked for his business, the personal respondent stated that the organizational respondent was “the United Nations.”

Cross-examination

40On cross-examination, the personal respondent indicated that: “I never made sexualized jokes”; “I never slapped her butt”; “I never snapped her bra”; “I never mimicked her accent”; and “I never had a conversation with her about my behaviour in the summer of 2015 behind closed doors”. He stated: “All of her allegations are entirely false.”

41The personal respondent said that the applicant had committed a breach of confidentiality one year before the end of her employment when she disclosed an employee’s social insurance number over the telephone to someone purporting to be calling from the Canada Revue Agency. He said that he overheard the conversation and that “we talked about this and we moved on.”

42With respect to the paycheque incident in November 2015, the personal respondent indicated that David Deschamps would testify that the applicant gave him all of the employees’ paycheques to distribute, not just one, and that the employees’ pay information was viewed by other employees as a result.

43The personal respondent testified that the applicant’s comments about Ms. Strazewicz’s commission amount in December 2015 were made very loudly and within earshot of other staff members, including Ms. Strazewicz, and he viewed this as a breach of confidentiality.

Re-examination

44On re-examination, the personal respondent clarified that during the relevant period of time, Karolina Strazewicz was his brother-in-law’s girlfriend.

Evidence of Karolina Strazewicz

Direct Evidence

45Ms. Strazewicz stated that she started with the respondent organization in August 2014 as its business manager. She indicated that she saw the applicant at work every day but that she had minimal conversation with the applicant. She stated that either the personal respondent or the applicant would give her paycheque.

46Ms. Strazewicz testified that her office was next to the applicant’s, and that her office had a door while the applicant’s did not. She testified that if she heard a complaint about abusive behaviour she would report it because she would not want that to happen to anyone else.

Cross-examination

47On cross examination, Ms. Strazewicz denied the incident described by the applicant in which the personal respondent snapped the applicant’s bra and the applicant ran into Ms. Strazewicz’s office to ask if she saw what had happened. She denied that she told the applicant that the personal respondent could not behave this way.

Evidence of David Deschamps

Direct Evidence

48Mr. Deschamps testified that he was currently a detailer at the respondent organization and had been with the organization for four years. He stated that the workplace was very busy and that he might say good morning to the applicant and he might see her at lunch or when he got his paycheque.

49As for people cracking jokes or being rude to customers, he testified that he was never in the front offices and when he did go up front it was for a short period of time.

50Mr. Deschamps testified that if he found out that someone in the workplace made abusive comments, he would try to find out who they were saying it to and find out why it was said.

Evidence of Sylvia Barandich

Direct Evidence

51Mrs. Barandich testified that she is the personal respondent’s wife, that she worked as a receptionist at the Company on a part-time basis for 2 to 3 years and that she currently works about twice a week doing reception, cleaning and pick-ups.

52Mrs. Barandich testified that she always liked the applicant and thought she was good at her job. Then she got sick and she was not happy anymore. She said that the applicant talked to her about her medical treatment and her worry about losing her hair.

53Mrs. Barandich indicated that the applicant never complained to her about the personal respondent’s behaviour or conduct and she was very upset when she read the Application. She commented that the personal respondent does not even slap her butt and that all of them had accents so why would the personal respondent make fun of the applicant’s accent.

54With respect to the applicant’s dismissal, Mrs. Barandich said that she had wanted to get rid of the applicant earlier because she had fallen so far behind in her work. She testified that the applicant was a good worker and did an amazing job but then got sick and things changed in that the applicant became more angry and would snap at people.

Analysis

Nature of the relationship between the applicant and the respondents

55The Supreme Court of Canada has consistently held that human rights statutes across Canada should be given a fair, large and liberal interpretation to advance and fulfill their purposes of preventing discrimination against identifiable protected groups: see, Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Action travail des femmes v. Canadian National Railway Company, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114.

56The applicant alleges a contravention of the Code and, along with other sections, a breach of section 5(1), which states that “every person has a right to equal treatment with respect to employment because of …sex.” The applicant takes the position that the relationship between her and the respondents is “with respect to employment” as defined under section 5 of the Code.

57The following principles inform the applicant’s position as articulated in Payne v. Otsuka Pharmaceuticals Co. Ltd., 2001 CanLII 26231 (O.N.H.R.T.), which is cited in Sutton v. Jarvis Ryan Associated et. al., 2010 HRTO 2421 at paras. 95-97:

• Based on the wording of section 5(1), it does not state “no employer” shall deny equal treatment to an employee but rather provides a right to equal treatment with respect to employment. Employment is not defined in the Code.

• Employment in section 5 should be interpreted broadly to include non-traditional employer-employee relationships which may result in a finding of an employment relationship in the human rights context that might not be found in other legal contexts. See for example: Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583 at paras. 28 to 32; Loomba v Home Depot Canada, 2010 HRTO 1424 at paras. 101 to 102: and, Dahoui v. Ivanhoe Cambridge Inc., 2017 HRTO 641 at para 3 to 7.

• The Tribunal has found relationships characterized as self-employed or independent contractors under taxation or other legislation to be covered by the protection offered under the employment provision of human rights statutes. See Garofalo v. cavalier Hair Stylists Shop Inc., 2013 HRTO 170 at paras. 160 to 169.

58In the circumstances of this Application, although the applicant provided her services under the umbrella of SunShine Consulting, the applicant worked exclusively for the Company and did not work for any other business. Her expected work hours and days of work did not change from when she was first employed to when she set up SunShine Consulting. The applicant worked exclusively at the Company site and it provided her with the necessary equipment to do her work such as a computer, payroll software and stationary supplies. Her work was managed and reviewed by the respondents and she was dependent on the respondents for the assignment of work and her remuneration.

59In my view, there is sufficient evidence in the human rights context to conclude that this Application concerns a matter with respect to employment. In any event, whether the applicant’s relationship with the respondents was in the nature of an employment relationship or a matter with respect to services, it would, in either case be covered by the Code.

Credibility considerations

60There is very little agreement on the pertinent facts. There is very little documentary evidence on the relevant events. As a result, my findings in this Application depend largely on my assessment of the reliability and credibility of the various witnesses including the applicant and the personal respondent.

61In assessing credibility of the witnesses, I have applied the well-established and often cited principles in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at pages 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of a particular witness carries conviction of 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 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.

62I further considered any corroborative evidence of the witnesses; the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties; the state of the witness, such as candour or evasiveness and attitude towards the parties; and the failure to call a witness who has material and direct knowledge of the disputed facts. (Shah v. George Brown College, 2009 HRTO 920 at para. 14, and Briggs v. Durham Regional Police Services, 2015 HRTO 1712 at para. 150).

63I find the applicant to be credible. She testified in a forthright manner. She recounted events without embellishment and provided a simple and straightforward chronology for her interactions with the personal respondent in the workplace and its impact on her. Her evidence was consistent with the Application and her witness statement and internally consistent between her examination-in-chief and her cross-examination.

64I do not find the personal respondent to be a reliable or credible witness. His evidence was in stark contrast to the applicant’s evidence in that he denied all of the applicant’s allegations saying “it never happened.” Apart from simple denials, he did not in any way respond to the detailed explanations provided by the applicant or provide any basis on which to undermine the applicant’s evidence. His evidence was not consistent and it was often embellished. For example, he testified that the applicant gave all employees’ paycheques to Mr. Deschamps in November 2015 and not just one paycheque as stated by the applicant in her evidence. In his Response, however, he characterized the incident as involving one paycheque. This evidence was particularly important as it was one of the incidents that led the personal respondent to terminate the applicant’s employment. Moreover, the personal respondent testified that Mr. Deschamps would give evidence corroborating his version even though Mr. Deschamps’ witness statement did not contain any reference to the personal respondent’s version of events. Surprisingly, Mr. Deschamps was not asked a single question in direct with respect to the paycheque issue and nothing was put in evidence to corroborate the personal respondent’s version of events. While the opportunity was there, the personal respondent did not ask Mr. Deschamps to corroborate his version of events with respect to this matter either.

65The personal respondent testified that the applicant was “yelling” out the commissions earned by Ms. Strazewicz’s during his conversation with the applicant in December 2015 and that Ms. Strazewicz would have heard the applicant. However, Ms. Strazewicz’ witness statement contained no information on this issue and nothing was put in evidence by the personal respondent in his direct examination of Ms. Strazewicz to corroborate his version of events. Given the importance of this incident that led to the personal respondent firing the applicant, one would expect that the respondent would have called evidence on this point.

66The personal respondent testified that the applicant was involved in a breach of confidence one year before the applicant’s dismissal. This information was neither detailed in his Response nor in his witness statement.

67In her direct, the applicant entered into evidence an e-mail she received from the personal respondent with the subject line “hardcore gay porn”, although the attachment was a diet plan. The applicant alleges that the personal respondent poisoned the workplace with sexualized jokes and pictures. Yet, at no point during his evidence did the personal respondent ever mention or address the subject line of the e-mail. The unwillingness to readily address this matter in the circumstances, along with the other reasons set out above, are factors in my determination that the personal respondent is not a credible witness.

Findings of Fact

(i) The Touching Incidents

68The applicant testified that on several occasions the personal respondent snapped her bra strap, that on several occasions she told the personal respondent to stop, and that on the last occasion she “blew up” at him and assertively told him to stop. She indicated that on this occasion the personal respondent said it was just a joke. She also testified that the personal respondent would slap her backside and squeeze her shoulders. The personal respondent testified that none of these incidents occurred. I find that, on a balance of probabilities, these events did occur.

69As I have indicated, I found the applicant’s testimony forthright and credible. She maintained consistent versions of these incidents since the allegations were made. She appeared to be genuinely angry and hurt as she talked about the alleged violation of her bodily integrity. She acknowledged when she did not remember something and did not exaggerate or embellish.

70I have also indicated that I do not find the personal respondent to be credible. He was reluctant to directly address the issues and simply denied that they happened. Rather, his evidence and answers focused on alleged work-related performance issues on the part of the applicant, but beyond this assertion there was little to no evidence provided by the respondents in support of this position.

71I recognize that Ms. Strazewicz denied the incident described by the applicant in which the personal respondent snapped the applicant’s bra and the applicant ran into Ms. Strazewicz’s office to ask her if she saw what had happened, and denied that she told the applicant that the personal respondent could not behave this way. However, I am mindful of the fact that Ms. Strazewicz is a current employee of the respondent organization and was personally involved with the personal respondent’s brother-in-law. In these circumstances, I am inclined to question the reliability of Ms. Strazewicz’ evidence.

72I also recognize that the personal respondent’s wife testified that the personal respondent does not even “slap my butt.” However, I do not accept this as evidence that, therefore, the personal respondent would not have slapped the applicant’s backside as alleged. This evidence has little probative value in relation to this issue.

73Accordingly, I find that the personal respondent on several occasions snapped the applicant’s bra strap, smacked her backside and squeezed her shoulders.

(ii) Sexual Jokes, Comments and Pictures

74I accept the applicant’s evidence that such jokes and comments were made on a regular basis and such pictures shown to her and that she told the personal respondent that she did not want to hear the jokes and comments or see the pictures. The fact that the personal respondent would casually send an email to the respondent with the subject line “hardcore gay porn”, even if the attachment was benign, is, in my view, emblematic of a sexualized environment that the applicant had to tolerate.

75I recognize that Mr. Deschamps testified that everyone at work was usually professional with no cracking of jokes or being rude to customers. He stated, however, he was not in the office much or for very long. Given this caveat, I do not find that his evidence detracts from the applicant’s general credibility or my finding that sexualized jokes and comments were made by the personal respond or that he shared sexualized pictures on his computer.

(iii) References to Women in Derogatory Terms

76I am satisfied, on a balance of probabilities, that the personal respondent would talk about female clients in derogatory terms. I accept the applicant’s testimony that the personal respondent referred to female clients as “bitches”, that they needed sex with a man, or that they dress like prostitutes. The use of such derogatory terms by the personal respondent is consistent with the sexualized work environment promoted by the personal respondent.

77As well, I am satisfied that the personal respondent told the applicant that she did not dress very nice, her clothes did not fit her and that her clothes looked like “grandma” clothes. The applicant testified that she dressed very conservatively. The personal respondent testified that he wanted a “certain look, image” at his place of business. It is clear from the personal respondent’s testimony that in his view the applicant’s attire did not fit that look or image.

(iv) Racial Comments

78I find that it has not been proven on a balance of probabilities that the personal respondent mocked the applicant’s accent or made stereotypical comments about Chinese people being cheap and always wanting a bargain. While the applicant made these assertions in her evidence, there was not sufficient detail or context provided for me to evaluate the credibility of this allegation against the personal respondent’s denial.

79Since the applicant has the onus to establish her allegations on a balance of probabilities, I cannot find that these events occurred, given the limited detail that the applicant provided. This is not a finding that she was not telling the truth, but rather that the standard of proof has not been met.

(v) Evidence of Effects on the Applicant

80I accept the applicant’s evidence as to the effects of these events upon her. The respondents did not put forward any evidence that would lead me to doubt her description of the effect of these events upon her life.

(vi) Summary of Factual Findings

81I find that the personal respondent on numerous occasions snapped the applicant’s bra strap, slapped her backside and squeezed her shoulders. I also find that he made sexualized jokes and comments in the presence of the applicant, emailed sexualized pictures to the applicant and referred to female clients in derogatory terms. I find that it has not been proven that he made racial remarks to the applicant or mimicked her accent.

Violation of the Code

82The applicant alleges that her rights under the Code were violated by the respondents by being subjected to a poisoned work environment. Section 5(1) of the Code provides as follows:

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

83The applicant also alleges that her right to be free from harassment in the workplace because of sex was infringed by the respondents. Section 5(2) of the Code reads:

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

84Recently, in George v. 1735475 Ontario Limited, 2017 HRTO 761 (“George”) at paras. 49-61, the Tribunal reviewed the legal principles that apply to and govern the concept of poisoned environment. The Tribunal concluded:

As a result, in the human rights context, a poisoned work environment will be found in two circumstances:

1. If there has been a particularly egregious, stand-alone incident, or

2. If there has been serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated.

In determining whether or not a poisoned work environment exists, relevant factors include: the number of comments or incidents; their nature; their seriousness; and whether taken together, it had become a condition of the applicant’s employment that she or he must endure discriminatory conduct and comments: see Crêpe It Up! v. Hamilton, above, at para 19.

…the finding of a poisoned work environment constitutes a violation of the general protection against employment discrimination under s. 5(1)…

85I am of the view that the personal respondent’s ongoing inappropriate touching of the applicant, his sexualized jokes and pictures as well as derogatory comments about female clients and the applicant’s attire to be indications that the personal respondent considered the applicant inferior and her personal behaviour objectionable. It also appears the applicant’s attempts to protest his conduct by telling the personal respondent that his conduct was inappropriate and unwelcome were unsuccessful. I accept the applicant’s testimony that the personal respondent simply told her that he was the “boss” implying that he could do as he liked. As a consequence, a very real condition of the applicant’s employment was that she had to face the personal respondent’s abuse and that on any given day the applicant could expect to be subjected to the personal respondent’s misconduct. I am satisfied that this recurring treatment created a poisonous work environment for the applicant, an environment where she knew to expect that in carrying out her job duties she must endure discriminatory conduct and comments.

86I find that the personal respondent created a poisoned work environment for the applicant, in violation of the applicant’s right to be free from discrimination in employment because of her sex as set out in s. 5(1) of the Code.

87Given my finding of a poisoned work environment, it is not necessary for me to consider whether the same comments and conduct on the part of the personal respondent constitute sexual harassment in the workplace contrary to s. 5(2) of the Code, although it is clear that the events supporting the finding of poisoned work environment are, in my view, akin to sexual harassment.

Reprisal

88Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, without reprisal or threat of reprisal for so doing.

89The test for reprisal includes a requirement that here be some evidence of the respondent’s intention to reprise or evidence of a link between the applicant’s invocation of rights and the respondent’s subsequent conduct that is considered retaliatory. The Ontario Human Rights Commission Policy on Preventing Sexual and Gender-Based Harassment sets out that reprisal or “payback” may occur when someone becomes hostile to another and subjects them to excessive scrutiny.

90The applicant states that she experienced reprisal after she confronted the personal respondent in the summer of 2015 when she assertively told the respondent to stop his behaviour. She testified that her relationship with the personal respondent changed and he seemed angry with her. She testified that he began to swear at her and use foul language whenever he believed that she had made a mistake in her work. The applicant indicated that this was different than before when he did not engage in this type of behaviour while correcting any problems. She stated that she was concerned that she would be fired given his change in attitude towards her after she stood up for herself.

91The applicant testified that she felt that the personal respondent used the issue of the November 2015 paycheque and her comments about Ms. Strazewicz as an excuse to fire her given his upset about their confrontation and her objection to his behaviour. The applicant stated that the personal respondent decided he no longer wanted the applicant working at the Company given her objections to his behaviour towards her.

92Applying the test of reprisal to the facts of this case, I find that the personal respondent reprised against the applicant. In particular, the harsh manner in which the personal respondent treated the applicant following the summer of 2015 confrontation and the applicant’s ultimate dismissal in December 2015 were precipitated by the applicant’s objection to the personal respondent’s misconduct. In my view, by objecting to the personal respondent’s conduct, the applicant was in fact attempting to enforce her rights under the Code.

Liability of the Company

93With regard to the organizational respondent, it is deemed to be liable for the violations of s. 5(1) of the Code by the personal respondent pursuant to s. 46.3 of the Code.

…where a poisoned work environment is found, a corporate or organizational respondent will be deemed to be liable under the Code without regard to: (1) whether or not the comments or conduct found to create the poisoned work environment were reported to management or whether or not management took reasonable steps to address such comments or conduct; or (2) whether the person(s) responsible for the comments or conduct found to create the poisoned work environment were part of the employer’s “directing mind” or just mere co-workers. (see, George at para. 61).

Remedy

94Having concluded that the respondents violated the applicant’s right to be free from discrimination contrary to sections 5(1) and 8 of the Code, I must now determine what remedy if any, is appropriate. The applicant requests a number of remedies including: an order for monetary compensation to the applicant for injury to her dignity, feelings and self-respect in the amount of $30,000.00; pre-judgment and post judgement interest; and an order requiring the personal respondent receive training on human rights in the workplace.

95No request is made for any compensation for lost income.

96The respondents did not contest or otherwise address the applicant’s request for monetary compensation in the amount of $30,000 should the Tribunal find that the respondents violated the applicant’s Code rights.

Compensation for injury to dignity, feelings and self-respect

97Section 45.2(1).1 of the Code provides the authority for the Tribunal to award monetary compensation to an applicant’s whose rights under the Code have been found to have been violated. This provision states:

45.2 (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 1 of another party to the application:

3. 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.

98The guiding principles governing an award of compensation for injury to dignity, feelings and self-respect were set out in this Tribunal’s decision in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, where it 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 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.

99The considerations identified in the Sanford v. Koop decision, above, as being relevant to the applicant’s particular experience in response to the discrimination are (at para. 34):

• Humiliation experienced by the complainant

• Hurt feelings experienced by the complainant

• A complainant’s loss of self-respect

• A complainant’s loss of dignity

• A complainant’s loss of self-esteem

• A complainant’s loss of confidence

• The experience of victimization

• Vulnerability of the complainant

• The seriousness, frequency and duration of the offensive treatment

100I also have borne in mind that it is well established that the Tribunal’s remedial powers are not punitive in nature: McCreary v. 407994 Ontario, 2010 HRTO 2369.

101Considering the objective impact, it is beyond dispute that the loss of employment, especially when it occurs with no notice, is objectively impactful and serious. The applicant worked for the Company for four years, with a period of time off for health related reasons in 2013. According to the personal respondent and Mrs. Barandich she was a good worker. During her employment she fell seriously ill but tried to continue working because she valued her work. She could not, however, tolerate the personal respondent’s behaviour and when she returned to work full time after recovering from her illness, she was no longer willing to put up with his behaviour. She stood up for herself and as a result the personal respondent’s attitude towards her changed in a negative way and he ultimately dismissed her.

102The applicant testified that she felt her world was ruined after she was summarily dismissed. The discrimination that she experienced spanned the length of her employment save for the first few months after she started working for the organizational respondent and for some time after she returned to work following her illness. The applicant stated that when she finally confronted the personal respondent in the summer of 2015 she had never been so angry and that she had to go outside to breathe afterwards. She testified that she took time from work to recover from this interaction as she could not eat or sleep for several days.

103The applicant indicated that she felt shock when she was terminated. She was upset because it was unfair and she was a good worker. She testified that she was very stressed, could not sleep and suffered from headaches. She kept thinking about what happened and it impacted her already fragile health. At the urging of her family she decided to take some time away from work and from looking for work so that she could recover her health which had been impacted by her previous illness and by her recent firing. It is because she did not look for work after her termination that she did not seek as remedy compensation for lost income.

104Compensation 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. As the Supreme Court of Canada stated in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at page 1284:

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.

105I was referred to the Tribunal’s decision in in Kerceli v. Massiv Automated Systems, 2016 HRTO 1324, where the Tribunal canvassed recent damage awards in cases involving sexual harassment in employment:

Recent 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 36 ($16,000); 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); Iu v. Markham Marble, 2012 HRTO 65 ($20,000); Hughes v. 1308581 Ontario, 2009 HRTO 341 ($25,000); Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 ($27,000); Sanford v. Koop, 2005 HRTO 53 ($35,000); Smith v. Menzies Chrysler, 2009 HRTO 1936 ($50,000 total); Manu v. Centum Fundamental Financial Inc., 2015 HRTO 725 ($17,000); J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 (three applicants - $40,000, $40,000, $25,000); and, O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 ($150,000).

106The Tribunal has generally made lower awards in applications where there were few incidents, the incidents were of a less serious nature, and/or the incidents did not include physical touching. Applications that involve multiple incidents, incidents that were of a serious nature, where there was a serious physical assault or criminal conviction or there was a reprisal or a loss of employment related to the incidents have generally had higher awards.

107The discrimination that the applicant experienced was serious and aggravated by the fact that it was repeated throughout the duration of her four-year employment. There were multiple instances of physical touching, reprisal and a loss of employment.

108After considering the overall seriousness of the applicant’s experiences and the cases cited above, I find that the financial award requested by the applicant in the amount of $30,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect. Pre-judgement interest at the rate of 0.8% pursuant to section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, is payable on this amount from March 4, 2016, the date the Application was filed. Post-judgement interest, at the rate of 2% pursuant to section 129 of the Courts of Justice Act, is payable after 30 days after the date of this Decision.

109It is clear that the personal respondent does not understand his obligations under the Code. Training on rights and obligations under the Code would assist him to ensure future compliance with the Code.

Order

110The Tribunal orders that:

• Within 30 days of the date of this Decision, the personal respondent and the Company, jointly and severally, shall pay to the applicant $30,000 as monetary compensation for injury to dignity, feelings and self-respect.

• Pre-judgement interest at the rate of 0.8% pursuant to section 128 of the Courts of Justice Act, is payable on this amount from March 4, 2016, the date the Application was filed.

• Post-judgement interest at the rate of 2% pursuant to section 129 of the Courts of Justice Act is payable after 30 day from the date of this Decision.

• Within 60 days of the date of this Decision, the personal respondent shall complete the Ontario Human Rights Commission’s Human Rights 101 course or equivalent training on basic principles of human rights, and confirm to the applicant’s counsel that he has done so.