Social Justice Tribunals Ontario
Providing fair and accessible dispute resolution
Tribunaux de justice sociale Ontario
Pour une justice accessible et équitable
Human Rights Tribunal of Ontario
655 Bay Street, 14th Floor
Toronto ON M7A 2A3Tel: 416 326-1312 or 1-866-598-0322
Fax: 416-326-2199 or 1-866-355-6099
Tribunal des droits de la personne de l’Ontario
655, rue Bay, 14e étage
Toronto ON M7A 2A3
Tél.: 416-326-1312 ou 1-866-598-0322
Téléc.: 416-326-2199 ou 1-866-355-6099
March 24, 2017
Chantelle Crete
6465 Russell Road
Carlsbad Springs, Ontario K0A 1K0
Via mail and email: chantelle_crete@hotmail.com
Aqua-Drain Sewer Services Inc
c/o Yanick Brulé, President
4537 Hawthorne Road
Ottawa, Ontario K1G 3N4
Via mail and email: yanick@aquadrain.ca
Re: Chantelle Crete v. Aqua-Drain Sewer Services Inc.
HRTO File Number: 2015-21642-I
Please find enclosed a Decision of the Tribunal in this matter, dated March 24, 2017.
HUMAN RIGHTS TRIBUNAL OF ONTARIO
__________________________________________________
B E T W E E N:
Chantelle Crete
Applicant
-and-
Aqua-Drain Sewer Services Inc.
Respondent
__________________________________________________
DECISION
__________________________________________________
Adjudicator: Jennifer Khurana
Date: March 24, 2017
File Number: 2015-21642-I
Citation: 2017 HRTO 354
Indexed as: Crete v. Aqua-Drain Sewer Services Inc.
______________________________________________________________________
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APPEARANCES
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Chantelle Crete, Applicant
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Melynda Layton, Counsel
)
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Aqua-Drain Sewer Services Inc., Respondent
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No one appearing
)
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INTRODUCTION
[1] This Application alleges discrimination with respect to employment because of sex and sexual solicitation or advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant did not name as respondents to this Application any of the individuals alleged to have subjected her to inappropriate and unwelcome comments and conduct of a sexual nature. Rather, the applicant alleges that the respondent failed to investigate and to respond to her complaints of sexual harassment and that she was subjected to a poisoned work environment. Finally, the applicant alleges that her termination was discriminatory and a reprisal for her complaints of sexual harassment.
[2] The respondent filed a Response. The Confirmation of Hearing was sent on June 8, 2015, to the address provided in the Response and was not returned as undeliverable. Prior to the hearing, I issued two Case Assessment Directions (CAD) regarding the parties’ disclosure obligations under Rules 16 and 17. The respondent failed to comply with its obligations under the Tribunal’s Rules and did not respond to the CADs in any way.
[3] The respondent did not attend the hearing and did not contact the Tribunal to explain its failure to attend. I am satisfied that the respondent had notice of the hearing and has chosen not to participate.
[4] For the reasons set out below, I find that the respondent failed to conduct a reasonable investigation, subjected the applicant to a poisoned work environment and terminated the applicant, at least in part, as reprisal for raising human rights issues. I have ordered the respondent to pay the applicant monetary compensation, implement a policy to address harassment, including sexual harassment in the workplace, and obtain and deliver training on the policy.
Reprisal
[5] At the time the applicant filed her Application, she was not represented by counsel. While the applicant checked off “sex” and “sexual solicitation or advances” as grounds in
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the Application, in her narrative and at Question A9 she alleged that her termination constitutes discrimination. At the outset of the hearing, the applicant’s recently retained legal representative requested that the Tribunal amend the Application to include the ground of reprisal.
[6] Rule 1.7(c) of the Tribunal’s Rules of Procedure allows the Tribunal to amend any filing. The proposed amendment does not change the evidence that the applicant was intending to present and the applicant is not seeking to add any new facts in support of the ground of reprisal.
[7] Accordingly, the Tribunal amends the Application to include reprisal as a ground being advanced by the applicant, in addition to the grounds under which the Application was already filed.
ISSUES
[8] The Code prohibits discrimination in employment on the basis of sex.
[9] Section 5 of the Code provides as follows:
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.
[10] Section 7(2) of the Code provides that employees have the right to be free from harassment in the workplace because of sex, by the employer or by another employee. Section 10(1) defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome".
[11] Section 8 protects an employee who makes a complaint of sexual harassment, by providing that every person has a right to claim and enforce rights under the Code without reprisal or threat of reprisal.
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[12] Allegations of sexual harassment, sexual advances, and reprisals for rejecting sexual advances under section 7(2) are exempt from the vicarious liability provisions of the Code set out in section 46.3(1).
[13] For that reason, this Decision determines the following issues:
a. Did the respondent meet its duty to respond to the applicant’s complaints of sexual harassment by carrying out a reasonable investigation and respond appropriately to the allegations?
b. Was the applicant subjected to a poisoned work environment during her employment contrary to ss.5(1) and 7(2) of the Code?
c. Was the termination of the applicant a reprisal for her complaint of sexual harassment?
EVIDENCE
[14] The applicant and a witness, Krista Bursey, testified at the hearing. Relevant portions of their evidence are summarised below.
[15] The respondent is a plumbing and sewer company owned and operated by Yanick Brulé and his brother Patrick. At the time of the applicant’s employment, the respondent employed approximately 36 staff. The applicant was one of three women working in the Ottawa office.
[16] The applicant was employed by the respondent from July 15, 2014 until her termination on July 24, 2015.
[17] The applicant was initially hired as an administrator but was promoted to the position of dispatcher after three months. The applicant initially reported directly to Yanick Brulé, who was the respondent’s Chief Executive Officer (“CEO”). After taking on the dispatcher role in December 2014, the applicant began to report to Richard Gosselin, the office manager and controller who was hired around that same time.
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[18] The respondent occupied two floors of a converted home. The applicant worked in the basement, both when she was an administrator and after taking on the dispatcher job. When the applicant started as a dispatcher, she worked in a common area at the foot of the stairs and shared the space with two co-workers named Keith and Mark. Mr. Gosselin occupied an office in the basement. While Yanick Brulé initially worked in the basement with the applicant, when Mr. Gosselin was hired, Mr. Brulé moved upstairs.
[19] The applicant initially found Mr. Gosselin friendly and professional. In January 2015 Mr. Gosselin began to ask the applicant inappropriate questions about her spouse and children, including whether her spouse was in the mob, whether he was home very much and whether he buried people in cement as he worked in the concrete business. Mr. Gosselin also offered to go running with the applicant after work. She declined. In February and March 2015, Mr. Gosselin became more “forward” with the applicant.
February 2015
[20] The applicant testified that in or around February 2015, when she went to Mr. Gosselin’s office, he put both of his hands on her hips and pulled the applicant towards him and onto his lap. She pushed away from him, left his office and went back to work.
[21] The applicant did not mention this incident in her Application. When asked why it was not included in her Application or in a witness statement, the applicant indicated that she is not sure if she blanked it out or brushed it off at the time but that it was a situation where she felt she was able to get away from Mr. Gosselin.
[22] The applicant did not speak of the incident to anyone other than her colleague Mark. Mark was also aware of the applicant’s general discomfort with Mr. Gosselin and that she did not want to be alone with him. He would change appointments so that the applicant was not left alone in the office alone with Mr. Gosselin, and would ensure he left the office after the applicant for the same reason.
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[23] In or around February 2015 Mr. Gosselin came to her desk to discuss scheduling. He came behind her and draped his arms around her body when looking at her computer screen. He did not touch her but his proximity and his arms around her body made the applicant uncomfortable as she felt he was hovering over her. She did not say anything to Mr. Gosselin but got up and tried to get away from the situation. Mark was present and witnessed this behaviour.
March 2015 incidents
[24] In or around March 2015, the applicant returned to the office upset after going to get her daughter. Mr. Gosselin saw that the applicant was crying and hugged her. The applicant did not invite this behaviour, did not reciprocate, and pulled away from Mr. Gosselin.
[25] Mr. Gosselin also hugged and kissed the applicant on the cheek sometime in March 2015. She could not recall why. They were in the basement common area and he pulled her close to him, hugged her and kissed her. She went back to doing her work afterward. Mark was present but the applicant could not recall whether anyone said anything about the incident to Mr. Gosselin.
The complaint
[26] The applicant spoke about Mr. Gosselin’s behaviour to her colleague Krista Bursey who worked in accounts receivable. The applicant told Ms. Bursey that she was going to put in a complaint to Yanick Brulé but that she was not sure how to go about doing it. The applicant was worried about losing her job and did not know how to approach Mr. Brulé or the situation. On April 15, 2015, the applicant submitted a letter dated April 13, 2015 to Yanick Brulé regarding Mr. Gosselin’s behaviour. The letter read as follows:
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April 13, 2015
Yanick,
There have been a couple of occasions lately that have made me feel very uncomfortable and uneasy in the workplace.
On one occasion Richard Gosselin hugged me, it was a very awkward situation. I brushed it off at that. The next occasion Richard hugged & kissed me, I did nothing to encourage this behavior and it was unwelcome and totally inappropriate. When Richard approaches my desk he drapes his arms around me from behind and leans on the desk, it makes me feel very uneasy. I now feel afraid to be alone in a room with him.
I wanted to make you aware of his behavior as it is not appropriate and needs to be addressed.
[27] Mr. Brulé did not respond. The applicant did not recall showing the letter to Ms. Bursey but she discussed it with her. Ms. Bursey told her she had also experienced similar behaviour by Mr. Gosselin with him coming up behind her at her desk and touching her and rubbing her back. Ms. Bursey told the applicant that she had complained to Patrick Brulé about Mr. Gosselin touching her.
Other comments and incidents
[28] The applicant was responsible for dispatching approximately 30 plumbers and technicians, all of whom were men. The technicians and plumbers would occasionally come in to the office between calls. George was the operations manager until June or July of 2015 when an individual named Mike took over the position. The applicant initially had a good working relationship with George, but he became upset when the applicant began to schedule him on jobs as she had been instructed to do by Yanick Brulé. In the Response the respondent refers to a conflict between the applicant and the operations manager that occurred on May 25, 2015 related to scheduling. The respondent claims that the applicant left the office after the incident and said she was not going to return.
[29] The applicant testified that after the conflict with George she left the office in tears and told Mr. Gosselin that she wanted to meet with Mr. Brulé about the incident. Two days
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later the applicant met with Mr. Brulé and with Mr. Gosselin. In that meeting the applicant also mentioned that she had received sexual advances from other co-workers. The applicant told Mr. Brulé that she had been approached by one of the plumbers who had asked her to have sex with him. Another technician asked the applicant to come to her house and stay awhile when her husband was late.
[30] The applicant did not address her April 13, 2015 complaint letter in the meeting with Mr. Brulé. Mr. Gosselin was present and she did not feel comfortable raising the issue with him in the room. Mr. Brulé indicated that he would speak with George about the scheduling issues and to the team about the behaviour. He asked the applicant if she liked her job, which she said she did. The applicant denies ever having nicknames for her colleagues or participating in any office banter or inappropriate discussions, as was alleged in the Response.
[31] The applicant’s employer did not get back to her about any steps that were taken following their meeting in May 2015. She did note that the service technicians were no longer allowed in the building between calls and that a sign was put up to this effect. This made the environment more comfortable for the applicant though she was never told why the technicians were no longer coming in to the office.
[32] With respect to the existence of any anti-discrimination policy, the applicant testified that in or around July 2015, she was tasked with writing a sexual harassment policy for her employer. The applicant did some research, looked up other policies and procedures and prepared a draft. She was asked to do so in response to incidents involving a technician who had been texting photos of his genitals to customers. To her knowledge the policy was not given to all employees and was not referred to again.
[33] On July 14, 2015 Mike said “hey sugar tits” to the applicant. The applicant testified that Mike used the expression “sugar tits” on multiple occasions. The applicant could not recall if she told him that she did not like being referred to this way. The applicant also heard Mike use the expression while talking to someone on the phone. He would also make inappropriate comments about bringing women home and made degrading
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comments about women, about their appearance and about how they were dressed in the applicant’s presence.
[34] On July 21, 2015, the applicant and Mike had a heated conversation, again relating to the operations manager having to do service calls. Mr. Gosselin was present during this exchange.
The applicant’s termination
[35] On July 24, 2015 the applicant was called in to Mr. Gosselin’s office and was handed a termination letter in an envelope with her record of employment (ROE) and two weeks’ pay in lieu of notice. Mr. Gosselin did not give the applicant any reason for her termination at that time and she did not ask. The ROE indicated in the comments section that the applicant had “conflicts with other staff”.
[36] In its Response, the respondent states that the applicant was not happy with her job and that it was known that she was looking for a job with a competitor. When asked about this at the hearing, the applicant testified that she liked her job and that her termination came as a total shock. She believes that her employer knew that she was looking for work and that she had an interview in May 2015. She testified that she believes her complaint was a factor in her termination because the respondent felt that she was the one that had to go in light of the difficulties that had been ongoing in the workplace. The only conflicts that had arisen had been related to scheduling and the applicant was just following Mr. Brulé’s instructions to schedule the operations manager for service jobs.
Ms. Bursey
[37] Krista Bursey worked with the respondent from April or May of 2014 until October 2015 when she left for another job opportunity. She worked upstairs with Yanick Brulé, as well as with another woman who also worked in administration and accounts. Patrick Brulé was out of the office most of the time. Ms. Bursey reported to Yanick Brulé and the applicant reported to Mr. Gosselin and to Yanick Brulé.
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[38] Mr. Bursey did not like Mr. Gosselin very much but she did not have to deal with him often. She found him unprofessional and described an incident when she was at her desk and Mr. Gosselin came up behind her and rubbed her shoulders. She mentioned the incident to Patrick Brulé, but not to Yanick. She could not recall when the incident occurred. She recalls telling Patrick Brulé that he should speak about it with his brother and that she told Patrick about similar concerns involving Mr. Gosselin and the applicant. Patrick did not follow up with Ms. Bursey about these issues.
[39] Ms. Bursey could not recall when the applicant first spoke to her about Mr. Gosselin’s behaviour. The applicant told her that Mr. Gosselin was weird and that he had kissed her on the cheek. Ms. Bursey testified that the applicant spoke about Mr. Gosselin also rubbing her shoulders and touching her. The applicant felt awkward talking to anyone about what had happened and they spoke about writing Yanick Brulé a letter instead. Mr. Gosselin also made inappropriate comments to Mr. Bursey at times, including a comment about not wanting to come upstairs and find her doing naked yoga.
[40] Ms. Bursey explained that the technicians would occasionally come in to the office and that they were not supposed to do so. She described them using some “salty language” and that when she did go in to the basement, she would hear them using language she described as unprofessional. She did not recall specific comments about women, but remembers them swearing.
ANALYSIS AND FINDINGS
[41] The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 , at paragraph 46.
[42] The applicant alleges that she was subject to sexual harassment and sexual advances or solicitations but did not name Mr. Gosselin or any of the co-workers alleged to
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have engaged in discriminatory conduct as respondents to the Application. Pursuant to section 46.3(1) of the Code, the respondent is not vicariously liable for acts of sexual harassment or sexual solicitation or advances committed by an employee. While the applicant reported to Mr. Gosselin, she is not claiming that he was a “directing mind” of the respondent.
[43] The Tribunal has found, however, that employers have a duty to ensure that workplaces are free of discrimination and harassment contrary to the Code. Pursuant to this duty, employers are obliged to take reasonable steps to address complaints of workplace human rights violations, including sexual harassment and sexual solicitation. Failure to meet this obligation may amount to a Code breach, even in cases where a violation of the Code has not been made out. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (“Laskowska”) and Nelson v. Lakehead University, 2008 HRTO 41. An employer’s obligation to address allegations of workplace sexual harassment and solicitation is triggered when the employer is made aware of the allegations, usually as the result of a complaint.
[44] While the applicant’s evidence was not challenged as the respondent did not participate at the hearing, I found the applicant delivered her testimony in a forthright, candid and direct manner. Ms. Bursey’s testimony was also credible. To the extent that her account of the complaint and the details of the alleged incident of harassment involving Mr. Gosselin differed from that of the applicant, I do not find these differences material. Their testimony was consistent on the points that are relevant to determination as to whether the respondent was aware of the allegations of sexual harassment and sexual solicitation in the workplace. Both the applicant and Ms. Bursey testified that the applicant gave Mr. Brulé a complaint letter about Mr. Gosselin’s behaviour.
[45] I accept the applicant’s evidence about the complaint she made to Yanick Brulé and find that the respondent was aware of the alleged sexual harassment and sexual solicitation. Even if Mr. Brulé did not get the letter for some reason, I have no difficulty accepting that the respondent was aware of the allegations of inappropriate comments and conduct in light of the meeting that transpired in May 2015 with the applicant and Mr.
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Gosselin. Ms. Bursey had spoken to Patrick Brulé as well, who was described as a co-owner and Yanick Brulé’s brother. The employer’s knowledge of Mr. Gosselin’s alleged actions and the other comments being made in the office of a sexual nature triggered the respondent’s duty to address the workplace harassment and solicitation.
[46] In Laskowska the Tribunal, following Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44, identified three criteria to be used in assessing whether an employer met its duty to investigate:
1. Awareness of issues of discrimination/harassment, Policy Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Act: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
3. Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide him/her with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
[47] The Tribunal’s jurisprudence has established that the employer’s duty to investigate is held to a standard of reasonableness, not correctness or perfection. An employer need not satisfy each element in every case in order to be judged to have acted reasonably. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably. See Laskowska, above, at para. 60; Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789 at para. 79; Harriott v. National Money Mart, 2010 HRTO 353 at para. 115; and Lavoie v. Calabogie Peaks, 2012 HRTO 1237 at para. 97.
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[48] I find that the respondent failed in its duty with respect to all of the criteria set out in Laskowska, above. The respondent did not present any evidence of a suitable anti-discrimination/harassment policy, complaint mechanism, or any training with staff. While the applicant had apparently drafted an anti-harassment policy in 2014 following incidents involving another co-worker and the respondent indicates that one exists in its Response, this does not appear to have been disseminated widely or applied. If the respondent investigated the allegations made with respect to Mr. Gosselin or acted on the concerns communicated by the applicant in their May 2015 meeting, the evidence demonstrates that the harassment and culture of sexualised comments continued, as evidenced by the “sugar tits” comment and other degrading remarks made in the office. Neither Yanick Brulé nor Patrick Brulé communicated their actions after the applicant and Ms. Bursey raised their concerns about the inappropriate conduct. If the action taken to prevent the technicians from coming into the building was a response to the applicant’s complaint to Mr. Brulé, this was not communicated to her or to Ms. Bursey. In any case, even if the service technicians stopped coming in the office which improved the situation somewhat, the behaviour in the office continued in light of Mike’s ongoing comments.
Poisoned work environment
[49] It is well established that if a person is subject to discrimination and harassment at work, the work environment can become “poisoned”. If sexually charged comments and conduct contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment contrary to both ss.5(1) and 7(2) of the Code. See Smith v. Menzies Chrysler, 2009 HRTO 1936 (“Smith”) at para. 151. Any difference in the degree of seriousness of a respondent’s conduct that creates a poisoned work environment is a matter to be considered in relation to the remedy awarded, and not in relation to a finding of liability under the Code.
[50] A workplace may become poisoned where discrimination or harassment on a prohibited ground becomes a part of a person’s workplace, becoming a term or condition of employment. See Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 at paragraph 63.
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[51] The term “poisoned work environment” is usually applied in circumstances where the work environment has become toxic because of pervasive discrimination or harassment, most commonly involving grounds relating to race or sex.
[52] I find that the respondent created a poisoned work environment for the applicant in violation of the Code. I accept the applicant’s evidence about the sexualized comments and inappropriate conduct by Mr. Gosselin and by other co-workers.
[53] In making this finding, I have considered that Mr. Gosselin was the applicant’s direct manager and supervisor from December 2014 onwards and that there was a power differential between them. I have considered that the respondent was aware that the comments and conduct were unwelcome because the applicant complained to the respondent, both in writing and in a meeting and that Ms. Bursey told Patrick Brulé about Mr. Gosselin’s behaviour. While it appears that the service technicians were told to no longer enter the office area, the comments did not stop and Mr. Brulé did not report back to the applicant after her complaints. By allowing this behaviour to continue, the respondent permitted the harassment to become a term or condition of employment.
[54] I also find that it is management’s responsibility to set the tone for the workplace and to clearly communicate that a sexualised workplace and discriminatory and harassing behaviour are inappropriate and unacceptable. See Smith, above at para.161. Even if I was to accept the respondent’s claim in the Response that there was no “ill intent” on the part of Mr. Gosselin or in using expressions such as “sugar tits”, this does not make this behaviour acceptable and does not absolve the employer of its duty to ensure the workplace is free from vexatious comments or conduct. The respondent was obligated to take the applicant’s concerns seriously and to properly address them. In failing to do so, the respondent breached its duty to provide the applicant with a workplace free of discrimination and harassment and failed to take adequate steps to address the poisoned work environment.
[55] The respondent knew about the alleged harassment and did not act. Mr. Gosselin and others contributed to this poisoned environment by behaving inappropriately and by
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making sexual comments, and the respondent is liable for subjecting the applicant to this poisoned work environment. The applicant’s other option would have been to endure the ongoing sexual comments and conduct in the workplace. Things did not change after she made her complaints, and there was no indication they would, despite the technicians being barred from the office. It is clear that the discriminatory comments went beyond the technicians and extended to the applicant’s direct manager, Mr. Gosselin, and to the then operations manager at the time, Mike. In the face of inaction and ongoing sexualised comments, the harassment became a condition of employment.
Reprisal
[56] The applicant alleges that the respondent terminated her, at least in part, as a reprisal for her complaints of sexual harassment and sexual solicitation. The applicant must establish an intention on the part of respondent to retaliate against her for having claimed and enforced rights under the Code. See Noble v. York University, 2010 HRTO 878 at para. 33. The respondent’s intention may be inferred based on the complainant’s reasonable perception that the respondent’s action served as retaliation because of the complainant’s assertion of rights. See Noble, at para. 32.
[57] On the evidence before me, I find that the applicant has proven that it is more likely than not that the respondent terminated her, at least in part, as a reprisal for complaining about the alleged sexual harassment.
[58] It is clear that the applicant did not accept the conditions of her work environment and that she complained about the inappropriate sexualised comments and conduct in the workplace. Mr. Brulé did not address these complaints or take the applicant’s concerns seriously. Instead the applicant was terminated, and the reason provided was that she got into “conflicts with other staff”, as set out in her ROE. While the applicant acknowledged that she had disagreements with George and Mike about scheduling, she was only following Mr. Brulé’s instructions to schedule the operations manager for service calls. I do not accept that these were the “conflicts” at the heart of the applicant’s termination. In any event, even if these conflicts with staff were part of the reason, I am persuaded on a
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balance of probabilities that the termination was at least in part a reprisal in view of the timing of the applicant’s termination shortly following her complaints of harassment to which the respondent failed to appropriately respond.
[59] The applicant was terminated approximately 3 months after she left the written complaint letter for Mr. Brulé and approximately a month after she discussed the ongoing sexual harassment and work environment with Mr. Brulé. In light of the applicant’s complaints, the reason provided for her termination, the timing of the termination and in the absence of any evidence from the respondent, I find it that the respondent intended to retaliate against the applicant for her complaints and for asserting her rights under the Code.
REMEDY
[60] Having found that the respondent breached the Code, I turn now to the question of the appropriate remedy in the circumstances. The Tribunal’s remedial powers are set out in sections 45.2(1) and (2) of the Code and permit the Tribunal to award both monetary and non-monetary remedies.
Monetary Compensation
Injury to Dignity, Feelings and Self-Respect
[61] The applicant seeks an award of $40,000 for the violations of the Code and as compensation for injury to dignity, feelings and self-respect.
[62] The applicant is entitled to compensation for injury to dignity, feelings, and self-respect. In assessing damages, the Tribunal considers the objective seriousness of the conduct and the subjective effect on the person who experienced discrimination.
[63] Monetary awards under the Code are compensatory in nature. The intention is to put the applicant into the position he or she would have been in but for the discriminatory
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act. See: ADGA Group Consultants Inc. v. Lane, 2008, 39605 (ON SCDC), at paragraph 150 (“Lane”). An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See Lane, above, at para. 153.
[64] In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 , the Tribunal stated at paras. 51-54:
Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…
…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…
The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. …
…The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious.
[65] I have determined that the respondent failed to reasonably investigate the applicant’s complaints about sexual harassment and discriminatory conduct, subjected the applicant to a poisoned work environment and terminated the applicant as a reprisal for making her complaints of sexual harassment and sexual solicitation.
[66] The applicant’s evidence is that from January or February 2015 until the time of her termination, she was subjected to a poisoned work environment which affected her on a daily basis. The applicant testified that during this period she felt anxious, had difficulty
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sleeping and felt ashamed. At times, she blamed herself for what she experienced. When she was propositioned by the technicians she felt degraded. She went to work because she had to, but she felt cheap while she was there and would go home upset. The applicant began seeing a counsellor approximately 4 months prior to the hearing, and had been on a waiting list for several months. She testified that she has been working through her fear of working with men and developing strategies for facing a toxic environment.
[67] In some decisions in which there were findings of sexual harassment and/or sexual solicitation, as well as job loss and a failure to investigate, the Tribunal has awarded monetary compensation over $20,000, in addition to other monetary remedies, for violation of the applicant’s inherent right to be free from discrimination and harassment. See, for example, Smith, above, at para. 187 and Harriott v. National Money Mart, 2010 HRTO 353 at para. 156. In Payette v. Alarm Guard Security Service, 2011 HRTO 109, the Tribunal awarded $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.
[68] The applicant relied on the Tribunal’s decisions in Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824, Wesley v. 2252466 Ontario Inc. o/a The Grounds Guy, 2014 HRTO 1591, and J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 (“J.D.”) in support of her position that she is entitled to monetary compensation near the higher end of the spectrum of damages awards that often range from $12,000 to $50,000 for sexual harassment. In J.D., the Tribunal found the organizational respondent liable for compensation for creating a poisoned work environment, for failing in its duty to investigate and for reprisal.
[69] I have considered the circumstances of those cases. While the present situation is distinguishable from the cases cited on a number of fronts, I find it appropriate to award $20,000 for the violation of the applicant’s inherent right to be free from discrimination and harassment, for the respondent’s failure to reasonably investigate and for the discriminatory termination.
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[70] In awarding this amount, I have considered the fact that the applicant lost her job and was in a vulnerable position. She is participating in counselling as a result of her experiences.
Lost Wages
[71] After being terminated by the respondent, the applicant looked for other employment and got some interviews. She was offered a job in another male-dominated environment which she declined after her experience with the respondent. She started to look for work in an environment with more women and eventually started a new job on March 16, 2016 at a medical clinic.
[72] The applicant seeks loss of income for a period of 33.5 weeks from the time of her termination on July 24, 2015 until March 16, 2016 when the applicant started a new job, albeit at a slightly lower rate of pay. Although her ROE appears to indicate that the applicant earned $680 per week or $1360 for every two-week period, the applicant is claiming $650 for each week that she was not employed. The applicant also appears to have received Employment Insurance (“EI”) for the full duration of her period of unemployment.
[73] I accept the applicant’s unchallenged evidence that she was searching for a job and that while she was offered a position initially in a more male-dominated environment which she declined.
[74] I see no basis for reducing the number of weeks or the rate of pay requested and award the applicant $21,775 as compensation for the loss of wages, minus any statutory deductions (calculated on the basis of 33.5 weeks at a rate of $650 per week).
[75] As the Tribunal held in Liu v. Everlink Services Inc., 2014 HRTO 202 at para 105, citing the Supreme Court of Canada’s jurisprudence on this point, the EI benefits received by the applicant must not be deducted from her compensation for lost wages: Jack Cewe Ltd. v. Jorgenson, 1980 CanLII 177 (SCC), [1980] 1 S.C.R. 812 at 818; IBM Canada Limited v. Waterman, 2013 SCC 70 at paras. 44 and 51.
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Remedies for future compliance
[76] The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. Under section 45.2(2)(b) of the Code, the Tribunal may also make orders to promote future compliance even if not requested. It is well-established in human rights law that any order intended to promote Code rights and policy
…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances. Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 91.
[77] Although it appears the applicant developed an anti-harassment policy for the respondent, it is not clear that this policy was referred to again, or even disseminated or explained to staff. While the respondent indicated in the Response that such a policy exists, there is no evidence before me to support this assertion.
[78] Furthermore, in light of my findings above regarding the respondent’s failure to reasonably investigate and address the applicant’s complaints, I find that the respondent does not appreciate its obligations under the Code with respect to sexual harassment.
[79] While this was not a remedy that was sought by the applicant, I find it appropriate to require the respondent to create and apply a workplace policy that reflects the responsibilities of employers and employees under the Code and includes a complaint mechanism (“the policy”) within 90 days of this Decision. I refer the respondent 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. The respondent is directed to confirm in writing to the applicant’s legal representative within 10 days of creating the policy that it has complied with this Order regarding the creation and application of the policy and complaint mechanism.
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[80] Yanick Brulé, Patrick Brulé, the operations manager, office manager and any other managerial staff of the respondent are to complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at
www.ohrc.on.ca/hr101) within 30 days of this Decision. The respondent is directed to confirm in writing to the applicant’s legal representative within 45 days of this decision that it has complied with this Order regarding training.
[81] Within 30 days of this Decision the respondent is directed to 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. The respondent is directed to confirm in writing to the applicant’s legal representative within 45 days of this decision that it has complied with this Order regarding the posting of the Code cards.
ORDER
[82] The Application is granted. The Tribunal orders as follows:
a. The respondent shall pay the applicant $20,000 as monetary compensation for injury to her dignity, feelings and self-respect;
b. The respondent shall compensate the applicant for her lost wages in the amount of $21,775, less any monies already paid and less deductions required by law;
c. The respondent shall pay to the applicant pre-judgment interest on the amount due under paragraphs a. and b. above, for the period from the date of the applicant’s termination, July 24, 2015, to the date of this decision, calculated at a rate of 2% pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
d. The respondent shall pay to the applicant post-judgment interest from the date of this decision, calculated at a rate of 2% pursuant to s. 129 of the Courts of Justice Act;
e. Within 90 days of this Decision, the respondent is required to adopt a written policy for dealing with complaints of harassment and discrimination in the workplace, including a complaint procedure, and to confirm that it has to done so to the applicant’s legal representative within 10 days of its completion; Yanick Brulé, Patrick Brulé, the officer manager, operations manager, and any other managerial staff
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of the respondent are to complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at http://www.ohrc.on.ca/en/learning/human-rights-101) within 30 days of the date of this Decision. The respondent is directed to confirm in writing to the applicant’s legal representative within 45 days of this Decision that it has complied with this Order regarding training; and
f. Within 30 days of the date of this decision, the respondent must post in plain view the Ontario Human Rights Commission’s Code cards available on-line as set out in paragraph [81] above. The respondent is directed to confirm in writing to the applicant’s legal representative within 45 days of this Decision that it has complied with this Order regarding the posting of Code cards.
Dated at Toronto, this 24th day of March, 2017.
______________________________________
Jennifer Khurana
Vice-chair
