Walker Real Estate Inc. v. D’Alesio, 2020 ONSC 947

Walker Real Estate Inc. v. D’Alesio, 2020 ONSC 947

CITATION: Walker Real Estate Inc. v. D’Alesio, 2020 ONSC 947

DIVISIONAL COURT FILE NO.: DC-19-36 DATE: 2020-02-07

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

ELLIES R.S.J., SACHS, and FAVREAU JJ.

BETWEEN:

WALKER REAL ESTATE INC. and GEOFF WALKER

Applicant

– and –

LORRAINE D’ALESIO and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

Marc A. Munro, for the Applicant

Stephen Gillman and Jonathan H. Pinkus, for the Respondent Lorraine D’Alesio

Brian A. Blumenthal, for the Respondent Human Rights Tribunal of Ontario

Heard at Hamilton: February 7, 2020

SACHS J. (Orally):

1The applicants seek to judicially review a hearing decision and two reconsideration decisions of the Human Rights Tribunal of Ontario.

2On this application the applicants make the following submissions:

1. There was no rational basis for the Tribunal’s finding that Mr. Walker exposed himself to Ms. D’Alesio on two occasions.

2. There was no basis, other than speculation based on stereotypical assumptions about the nature of male/female power dynamics, for the Tribunal’s finding that Mr. Walker engaged in the impugned conduct because of sex, i.e., because Ms. D’Alesio was female.

3. The Tribunal exceeded its jurisdiction under the Code because Ms. D’Alesio was not an employee. She was an independent contractor.

4. The Tribunal’s remedies were unreasonable.

3With respect to the first argument, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the court at paras. 125 and 126 confirmed that, absent exceptional circumstances, a reviewing court will not interfere with factual findings. A reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”.

4With respect to human rights statutes, the Supreme Court in Stewart v. Elk Valley Coal Corp., 2017 SCC 30, emphasized that factual determinations remain the domain of human rights tribunals and cautioned reviewing courts to approach the decisions of tribunals under human rights statutes with considerable deference:

Reviewing courts generally approach the decisions of tribunals under human rights statutes with considerable deference. It is the tribunal’s task to evaluate the evidence, find the facts and draw reasonable inferences from the facts. And it is the tribunal’s task to interpret the statute in ways that make practical and legal sense in the case before it, guided by applicable jurisprudence. Reviewing courts tread lightly in these areas. (para. 20)

5In this case, there is no question that the applicants are seeking to have us reweigh and reassess the evidence considered by the Tribunal. They do so because of their assertion that there was no rational and logical basis for the inference that the Tribunal drew from that evidence, namely, that Mr. Walker exposed himself to Ms. D’Alesio on two occasions. According to the applicants, there was no contest about the facts surrounding the first incident. There was no evidence to suggest that Mr. Walker knew that Ms. D'Alesio was in the office that day. Further, as soon as Ms. D'Alesio saw Mr. Walker naked, he covered himself with his clothes. Therefore, Mr. Walker could not have intended to expose himself to Ms. D’Alesio on that occasion.

6Similarly, according to the applicants, on the second occasion, the Tribunal did not make a finding of fact that Mr. Walker knew that Ms. D’Alesio was in the office that day or that he would have any reason to believe that she would see him naked while he was getting changed. In this regard, the applicants emphasized that there was corroboration for Mr. Walker’s evidence that he had legitimate reasons for changing his clothes on both occasions.

7We agree that there was no evidence that Mr. Walker knew that Ms. D’Alesio was in the office on the day of the first incident. However, there was evidence to support the inference that Mr. Walker knew or ought to have known that Ms. D’Alesio could be in the office that day and that she could see him naked while he was changing his clothes. On the second occasion there was evidence, namely, Ms. D’Alesio’s testimony (which the Tribunal clearly accepted)

that Mr. Walker knew that Ms. D’Alesio was in the office. At para. 52 of its decision the Tribunal found:

There is no dispute that [Mr. Walker] was changing in his office on those dates, there is no dispute that the office door is glass, there is no dispute that the respondent sent the applicant to work in the basement, and there is no dispute that after the first incident the personal respondent must have known that there was a possibility that the applicant would be in the basement. Given that the personal respondent’s office door is made from glass, and the space is not private, I find that he knew or reasonably ought to have known that the applicant would see him naked or partially clothed on the two days in question.

8Further, at para. 57 the Tribunal states:

Lastly, it is also peculiar that the personal respondent would choose to change twice in his office knowing that the applicant worked in that area, and given that the space was not private. If the June 23, 2017 were the only incident in question in this Application, then arguably there may be insufficient evidence to conclude that the applicant was subject to discrimination under the Code. However, after the first incident on June 23, 2017, the personal respondent chose to disrobe in his office. Twelve days prior to July 5, 2017 the personal respondent encountered the applicant while naked. Yet, instead of choosing not to continue that behaviour in view of the lack of privacy, he repeated it. These facts lead to an inference that neither the first nor second incident were accidental.

9This reasoning is both rational, logical and grounded in the evidence.

10With respect to the second argument, at para. 62 of its decision the Tribunal found as follows:

I am satisfied that the personal respondent engaged in the impugned conduct because of sex: namely, because the applicant is female. Discrimination can be a function of male/female power dynamics. The personal respondent may have engaged in this behaviour to display power or sexual interest or both. In any event, the personal respondent created a hostile and sexual working environment by persisting in behaviour that can be characterized as sexual in nature.

11The reality of male/female power dynamics is not a stereotype. It has been recognized by the Supreme Court of Canada on multiple occasions. In Janzen v. Platy Enterprises Ltd., 1989 97 (SCC), [1989] 1 SCR 1252, Chief Justice Dixon noted that "In the present sex stratified labour market, those with the power to harass sexually will predominantly be male and those facing the greatest risk of harassment will tend to be female.” (para. 57)

12In its decision, the Tribunal had regard to all of the circumstances surrounding the two incidents. It was in that context that the Tribunal made reference to the dynamics between men

and women. In its role in enforcing the Human Rights Code, the Tribunal necessarily takes account of the social context in which complaints are made.

13With respect to the third argument, the Tribunal adopted an expansive definition of "employee" and "employment" and found that, based on the evidence, Ms. D'Alesio was an employee due to the level of control exerted by the applicants over her working conditions. In making this determination, the Tribunal had regard to a number of factors, including the fact that the applicants had directed Ms. D'Alesio to work in a space located in the basement of the building, which was where Mr. Walker's office was also located.

14As found by the Tribunal at para. 38 of its decision, "The applicant's work location made it possible for her to be a captive audience to someone who sought to discriminate against her, namely, the owner and directing mind of the company".

15In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada rejects the suggestion that the British Columbia Human Rights Code only prohibits discrimination based on traditional employer/employee relationships and emphasizes that one very important factor to consider is the reality that an employee in the context of their work can experience because they are a "captive audience to those who seek to discriminate against them." (para. 44)

16Thus, the Tribunal's conclusion that Ms. D’Alesio was an employee is consistent with the jurisprudence and is reasonable.

17On the question of remedy, we agree with the respondent that the applicants have not identified any reason to interfere with the Tribunal's award of damages. As this court has previously stated: "The quantum of damages awarded by the Human Rights Tribunal lies at the heart of the Tribunal's expertise and therefore such awards are entitled to an extremely high degree of deference." (London Sales Arena Corp. v. Salsman, 2015 ONSC 7243 at para. 11).

18In fashioning its damages award, the Tribunal had regard to both the relevant caselaw and the impact of the impugned conduct on Ms. D'Alesio. In our view, both her approach and the result were reasonable.

19Given our decision that the decision under review is reasonable, we need not address the Tribunal's argument that the appropriate standard of review is patent unreasonableness. For these reasons, the application is dismissed.

ELLIES J. (Orally):

20I have endorsed the record "For reasons delivered orally by Sachs J. on behalf of the court, the application is dismissed. The respondent shall have her costs in the amount of $9,500, all-inclusive."

___________________________ H.E. Sachs J.

I agree

M.G. Ellies R.S.J.

I agree

L.G. Favreau J.

Date of Reasons for Judgment: February 7, 2020

Date of Release:

CITATION: Walker Real Estate Inc. v. D’Alesio, 2020 ONSC 947

DIVISIONAL COURT FILE NO.: DC-19-36 DATE: 2020-02-07