Nastiuk v. Couchiching First Nation and Thomas Sinclair

Nastiuk v. Couchiching First Nation and Thomas Sinclair
Collection
Canadian Human Rights Tribunal
Date
2012-06-08
Neutral citation
2012 CHRT 12
File number(s)
T1406/3209, T1407/3309
Decision-maker(s)
Craig, Wallace G.
Decision type
Decision
Grounds
Disability
Sex
Sexual Orientation
Decision Content
Between:
Marlo Nastiuk
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Couchiching First Nation
- and -
Thomas Sinclair
Respondents
Decision
Member: Wallace G. Craig
Date: June 8, 2012
Citation: 2012 CHRT 12
I............. Background. 1
A. Scope of the Inquiry. 1
B. Recusal of Adjudicator 2
C. Tribunal Member Wallace Gilby Craig. 3
II........... Prima Facie Evidence of the Complainant 3
A. The GHC Program.. 4
B. Hiring Ms. Nastiuk as a Full-Time Employee. 5
C. Office Relocation. 7
D. The “Mìss Me?” Incident 9
E. Promoting Ms. Nastiuk. 10
F. Interactions Between Ms. Nastiuk and Mr. Sinclair During the Summer of 2005. 13
G. Events Taking Place in the Fall of 2005. 20
H. Events Taking Place in Winter 2005-2006. 24
I. Working on the Suicide Prevention Program.. 27
J. Confronting Mr. Sinclair 29
K. Events Leading up to the Complaint 31
L. Meeting with Chief McPherson. 33
M. The Complaints. 35
N. The Retaliation Complaint 38
III......... Response of Mr. Sinclair 39
A. Working with Ms. Nastiuk. 40
B. Ms. Nastiuk’s Relations with GHC Staff. 43
C. MS. Nastiuk’s Health Issues - testimony of Mr. Sinclair 44
D. Mr. Sinclair’s Response to Particular Allegations of Harassment 45
(i) Humiliation. 45
(ii) Sexual Comments. 48
(iii) Phone calls: 57
(iv) Visits to Ms. Nastiuk’s home: 57
(v) Repairing Ms. Nastiuk’s automobile: 58
(vi) Assisting Ms. Nastiuk with her purchase of an automobile: 58
(vii) The alleged sexual “lesbian” comment: 59
(viii) The alleged sexual comment about Ms. Nastiuk’s hair fragrance: 60
E. Meeting with Chief McPherson. 60
F. Ms. Nastiuk’s Medical Treatment 61
G. Remarks by Mr. Sinclair at the End of his Direct Evidence. 63
IV......... Response of CN.. 64
A. Knowledge of Ms. Nastiuk’s Complaint 64
B. Meeting with Ms. Nastiuk, Mr. Emes and Mr. Sinclair 65
C. Hiring Dale Morrisseau. 68
D. Dale Morrisseau’s Investigation. 69
E. Alleged Prior Knowledge of Allegations Against Mr. Sinclair 72
F. Ms. Nastiuk’s Return to Work. 73
G. Alleged Failure of CFN to Protect Ms. Nastiuk. 75
H. Ms. Nastiuk’s Retaliation Complaint 78
I. The Underwear Incident 80
J. Abandonment of Position by Ms. Nastiuk. 81
V........... Standard of Proof. 84
VI......... Assessing Credibility. 87
A. Credibility of Ms. Nastiuk. 87
B. Cross-Examination of Ms. Nastiuk by Mr. Sinclair 92
VII....... Complainant Must Establish a Prima Facie Case. 93
A. Determination: Credibility of Ms. Nastiuk. 93
B. Determination: Credibility of Mr. Sinclair 95
C. Determination: Credibility of Dale Morrisseau. 96
VIII..... Decision. 96
I. Background [1] This case involves three complaints of Marlo Nastiuk (Ms. Nastiuk), a residential worker employed by the Respondent Couchiching First Nation (CFN) at its Giizhikaandag Healing Centre (GHC) in Fort Frances, Ontario, under the supervision and direction of the Respondent Thomas Sinclair (Mr. Sinclair), Executive Director of GHC.
[2] On May 1, 2009, in accordance with the provisions of the Canadian Human Rights Act (R.S.C., 1985, c. H-6) (CHRA), the Canadian Human Rights Commission (Commission) requested that the Canadian Human Rights Tribunal (Tribunal) institute an inquiry into complaint 20060869, received July 25, 2006, of Ms. Nastiuk against CFN and complaint 20061038 against Mr. Sinclair, alleging discrimination relating to sexual harassment in the workplace pursuant to s. 14 of the CHRA said to have occurred between March 2005 and July 2006.
[3] On September 15, 2009, the Commission made a second request for inquiry into a third complaint (20080128), received March 31, 2008, of Ms. Nastiuk against CFN of retaliation under s. 14.1 of the CHRA, alleged to have occurred “August, 16, 2006 and ongoing”.
A. Scope of the Inquiry [4] On March 1, 2010, Member Kerry Lynne D. Findlay Q.C. commenced an inquiry into the three complaints filed by Ms. Nastiuk. The inquiry continued March 2-5, May 31-June 4, and June 14-18 in Fort Frances, Ontario.
[5] In discussions at the beginning of the hearing Member Findlay explained the scope of the inquiry:
The Chairperson: Now one further thing Ms. Nastiuk, are you clear that we’re here to deal with the complaints to do with sexual harassment and retaliation and we’re not dealing with disability?
Ms. Nastiuk: Yes, I guess. I understand, although to me, those – that perceived disability, perceived orientation are part of it, but, yeah, I understand.
The Chairperson: Okay, because there’s already been a ruling of the Tribunal before today that that’s what we’re confining ourselves to all right?
Ms. Nastiuk: Yes.
Transcript: page 28, lines 18-25; page 29, lines 1-6.
[6] Ms. Nastiuk and Mr. Sinclair were without counsel during the inquiry, CFN was represented by Counsel Chantelle Bryson (Ms. Bryson). The parties’ final submissions and Ms. Nastiuk’s reply to the Respondents’ final submissions were all received by the Tribunal by August 11, 2010.
B. Recusal of Adjudicator [7] On July 6, 2011, following her resignation from the Tribunal due to her recent election as a Member of Parliament, Member Findlay recused herself from the case, without rendering a decision. The case was therefore reassigned to the Tribunal’s Vice-Chairperson, Susheel Gupta.
[8] Following his assignment, the Vice-Chairperson presented the parties with two options for proceeding with the file:
i. To set dates for the holding of an entirely new hearing with the recalling of witnesses, submission of documentary evidence and presentation of both oral and written arguments. And then, to allow the Tribunal’s process to proceed to a final decision. Such a Hearing would be presided over by the Vice-Chairperson.
ii. If the parties consent, without delay, to allow the Vice-Chairperson and Full-Time Member of the Tribunal to listen to all of the Hearing recordings and thoroughly review all documentary material submitted to the Tribunal that is part of the Hearing’s Record of the Case and allow the Tribunal to render a final decision.
[9] By November 15, 2011, the Tribunal had received a response from all parties who, for reasons of efficiency and cost, selected option ii. However, due to additional responsibilities at the Tribunal and personal matters at home, the Vice-Chairperson decided that for reasons of efficiency and expediency, it would be in the best interests of the parties if he resigned from the case. The Vice-Chairperson resigned from the case on March 9, 2012, and remitted the matter back to Chairperson Shirish Chotalia for reassignment. On March 13, 2012, Chairperson Shirish Chotalia assigned the case to Member Wallace Gilby Craig.
C. Tribunal Member Wallace Gilby Craig [10] On March 13, 2012, I received a transcript of all the evidence given by all witnesses who appeared either in person or by teleconference before Member Findlay. In addition, I received copies of all exhibits that had been received into evidence, and the written arguments tendered by the parties in the aftermath of the Inquiry.
[11] Between March 13 and April 30, 2012, I read the 3500-page transcript of the proceedings, scrutinized the relevant documentary evidence that had been received by Member Findlay, considered the written arguments submitted by the parties, and rendered this decision.
II. Prima Facie Evidence of the Complainant [12] I refer first to the evidence of Ms. Gail Roach-Leforte, a witness for the Complainant, because her testimony describes the workplace at the GHC and the circumstances surrounding the Complainant’s allegations of discrimination and retaliation by the Respondents.
[13] Ms. Roach-Leforte testified that she had worked in child welfare for 16 years in a variety of positions with several organizations: as a case aid, residential care worker, case manager with sexually exploited youths, specialized foster care, college instructor, and that she is currently a social worker. Ms. Roach-Leforte began work at GHC (CFN’s residential treatment centre) in late 2004 as an on-call casual employee doing one-on-one work with youths in residence at the treatment centre.
[14] Douglas Broman was also called as a witness by Ms. Nastiuk, and testified that in 2005 he worked at CFN’s treatment centre dealing with difficult youths on a one-to-one basis and that in early 2006 he was appointed acting case manager.
A. The GHC Program [15] The Giizhikaandag Healing Centre (GHC) is operated by CFN, it is a residential treatment centre for adolescent sexual offenders. It provides or arranges for therapy, psychiatric treatment, medical services, educational training and referrals to community services.
[16] In December 2004, GHC’s interim executive director, Estelle Simard, informed Ms. Roach-Leforte that the treatment program was failing and that she was resigning. Having just become aware of Ms. Roach-Leforte’s resume, she suggested that Ms. Roach-Leforte ask CFN’s Chief to employ Ms. Roach-Leforte as manager of the programs at GHC.
[17] When asked by Ms. Bryson, CFN’s counsel, to provide details that would explain why GHC’s program was on the verge of collapse in 2004 Ms. Roach-Leforte stated that the provincial ministry had cited 33 violations relating to recordkeeping, issues of health, safety, food not in accord with menus, and broken lights. With respect to work-intensive violations or non-compliance, she testified that the ministry was dissatisfied with case management, reports not being signed or with content appearing to have been cut and pasted, and that they wanted a service delivery manual developed.
[18] Ms. Roach-Leforte and three others therefore went to the Chief and Council with the proposal that she take over the program. The Chief and Council agreed to give her a number of months to try and redevelop and turn the program around. Ms. Roach-Leforte informed them that she did not have executive director experience and would need guidance regarding the financial and executive duties of her new post.
[19] A few weeks later, in either late December 2004, or early January 2005, Chief McPherson called Ms. Roach-Leforte and told her that she would be employed to manage the program, and that CFN had obtained the services of a consultant, Mr. Sinclair, who would work with her for six weeks to possibly three months. Ms. Roach-Leforte accepted the appointment, expecting that she would receive assistance in learning finance and executive duties. In her discussions with the Chief concerning the consultant and her role, it was agreed that Ms. Roach-Leforte would be GHC’s program manager. It was her expectation that in time she would be appointed Executive Director. However, by the spring of 2005, Mr. Sinclair’s role as a consultant had ended and it became apparent to all GHC employees, including Ms. Roach-Leforte and Ms. Nastiuk, that he had become the Executive Director of GHC, in charge of the entire operation and answerable only to the Band Manager, and through the Band Manager to the Chief and Council.
[20] When asked by CFN’s counsel to explain her duties and those of Mr. Sinclair, Ms. Roach-Leforte stated they were both involved in clearly defining the duties of workers at GHC, including the program manager, case manager, and team leaders. However, it is apparent that Ms. Roach-Leforte had to salvage and manage the existing program, while at the same time working with Mr. Sinclair to reorganize the program in a way that would satisfy CFN, provincial authorities and a federal funding agency.
B. Hiring Ms. Nastiuk as a Full-Time Employee [21] On September 10th, 2004, one month after graduating from the University of Manitoba, Ms. Nastiuk began working at GHC. Ms. Nastiuk’s Bachelor of Arts degree, for a minor in psychology and major in sociology and criminology, was the hard-earned result of an eight-year struggle complicated with health problems, debilitating effects fibromyalgia, narcolepsy, and a prolapsed disk. Ms. Nastiuk worked as a casual relief counselor at GHC until February 2005.
[22] In early January 2005, Ms. Roach-Leforte called a meeting of GHC staff. As she put it, she gave them a pep-talk to boost their morale. She told them that the ministerial review was behind them, she didn’t want them to lose their jobs, they were a team which needed to recommit itself, and that a consultant was coming and this would assist them in becoming a more professional organization.
[23] Ms. Roach-Leforte suggested to Mr. Sinclair that Ms. Nastiuk be assigned to work with them in redeveloping a new program:
…Tom and I … the first week … we spent many hours, probably 10, 12-hour days …I understood residential care, I have done that work for several years, but – and I knew how to operate a computer and I knew how to … do documents, but I wasn’t very good at it, and I knew that you were, meaning the complainant, and so I had suggested to Tom that I really needed help there and I thought it was a -- misuse of your skill and your education, and I thought we should have you come over and assist me with a lot of those redevelopment pieces.
Transcript: page 976, lines 12-25; page 977, line 1.
…I don’t recall an interview, other than to have you (Ms. Nastiuk) come over. I think they just called you over to the building and talked to you about, you know, do you think you could do this, and you agreed that you could and I was relieved. All I remember is that I was going to get some help in a big, big task.
Transcript: page 979, lines 3-10, 24-25; page 980, lines 1-10.
[24] Ms. Nastiuk’s full-time employment was accepted by Mr. Sinclair and Ms. Nastiuk’s described it in her evidence as intense work for the first few weeks. It was Ms. Nastiuk’s first social services job with a First Nation. Ms. Roach-Leforte also testified that the working hours were extremely long for the three of them.
Ms. Bryson: So what were you doing together, all of you?
Ms. Roach-Leforte: A lot of discussion. I mean, I wasn’t there the long hours that I was working, I wasn’t always in that building. I did have other duties.
I had to be at the other program – like, right on site, and we met lots with the staff as well. I mean morale was just the lowest you could ever get, so I know a big part of what we did was to try to have a lot of team meetings and try to reassure them that – you know, the program was done, there’s no doubt about it.
But I think we were trying to instill in them a hope that it was being resurrected because I think it was.
Ms. Bryson: And the program still exists, right?
Ms. Roach-Leforte: It still exists.
Transcript: page 1119, lines 1-23.
[25] Ms. Roach-Leforte described in particular the chaos of this early time, working 10 to 12-hour days in a boardroom:
Throughout that period we didn’t have an office, we spent most of our time -- well, we had papers all across the board table and in Mr. Sinclair’s office and we -- just kept spreading out our papers and our piles of different tasks.
Transcript: page 981, lines 14-19.
C. Office Relocation [26] In late March 2005, after discussing the impracticability of their situation with Ms. Nastiuk, Ms. Roach-Leforte suggested to Mr. Sinclair, and claims he agreed, that she and Ms. Nastiuk be moved from the GHC’s “east” building to a vacant office in the “middle” building. Ms. Roach-Leforte set up an office expecting Ms. Nastiuk to be moved so they might continue to work together on the redevelopment of the GHC program. However, Ms. Nastiuk was not moved with her, but rather was assigned to Mr. Sinclair’s office, where he had a table and a computer set up for her. In his testimony, Mr. Sinclair asserted that he had no computer skills and that it was critical that he have someone working with him who was skilled.
Ms. Nastiuk asked Ms. Roach-Leforte: Where did I end up located?
You didn’t get to move over, and – but I noticed – I just noticed, you know, patterns happening for you. At one point you had come to my office and you kind of flopped on the chair and said, oh, I just need to get away from the craziness for a while or his craziness for a while. And it was really hard for us because we were – we just weren’t being able to get the work done that we needed to do together.
Transcript: page 987, lines 11-20.
[27] Ms. Nastiuk testified that in those first weeks she began to feel uncomfortable with Mr. Sinclair because of his queries into her background:
But then he started making comments, like, oh, I dated his wife, when were standing outside having a cigarette, and men would pull up, or talking about different people or, oh, I dated his partner.
And then he was talking about how women liked him, and it just always struck me, as I didn’t really know him, I was only an on-call staff, part-time staff, and it just kind of seemed inappropriate to me. And I didn’t engage – or I didn’t really comment to it. I just kind of cringed back.
Transcript: page 150, lines 5-16.
[28] When Ms. Nastiuk described her frustration with being assigned to Mr. Sinclair’s office:
Other staff were coming and going and doing what they wanted, and I just always seemed to have to be right there and answerable most of the time during the day. Which, I mean, in any workplace, I guess that – you know, it’s kind of standard, but the way everybody else could have more freedoms and not have to answer to him the same way kind of bothered me.
…
And then one night he asked me to work late, and we were in the office until 10:00 that night. Now, I’m thinking that was between March or April. …but I’m not absolutely certain about that because there were so many long days that you couldn’t really look back and figure out exactly what day that was. Around 7 – between 7 and 8 in the evening …I went to put a document on his desk … As I’m sitting down, he said, oh, I can smell your hair. And as I was sitting down, I was just like, what was that? And I was already uncomfortable enough. And it wasn’t like …typical …like someone trying to touch you or talk about details of their sexual life – like intimate details of their sexual life. It wasn’t that kind of thing it was just – I really don’t know what to make of that and how to term that.
But then it went on, and I just – I sat down and started working. And about 20 minutes later, it had been really quiet and I was just trying to work, and then all of a sudden he took his pen and he pitched it on the table and he said something to the effect, you know, Marlo, I’ve been in this business for 20 years or so, …and I’ve never not been able to figure anyone out and I can’t figure you out.
…I know I commented something like, well, I’m pretty much -- well you can pretty much take me at face value …
Transcript: page 153, line 25; page 154, lines 1-7, 17-25; page 156, lines 14-25; page 157, lines 1-16.
D. The “Mìss Me?” Incident [29] Ms. Roach-Leforte recalled another occasion after moving to the middle building when Ms. Nastiuk had come to speak with her, and then Mr. Sinclair “barged” into her office without knocking, startling Ms. Nastiuk, who asked Mr. Sinclair “Miss me?”. Shortly afterwards Ms. Nastiuk left to return to her office. Ms. Roach-Leforte testified that she was concerned that Ms. Nastiuk appeared anxious and disturbed.
[30] Ms. Nastiuk also testified about the “Miss me?” incident. She explained that some time later, when Mr. Sinclair had taken her for a drive outside the town limits, he started to talk about the “Miss me?” comment. Ms. Nastiuk testified:
…immediately in my head, I knew where he might be going with that, or thought that I knew where he might be going with that. And I just, no, you know, it meant nothing. It’s just I say that, you know to my parent’s dogs, it’s just something – or the girls at work. We just say that if we haven’t seen each other for a while. And, you know, if you work in isolation, quite often because of separation and the location of the different office and buildings.
The Chairperson: Was he suggesting that it did mean something?
Well, he referred to the miss me comment, and I’m like, yeah, but it didn’t mean anything. Like, from when I was in Gail’s office in June.
And he kept, like, no, but you’re not listening to me, and I’m like, it didn’t mean anything and somewhere in there, he threw in a comment that he had an interest – he found me attractive and he had an interest in me as a woman or a female. But I – I really – I think – I just know I shut that down. I didn’t want to hear it, I didn’t want to have to deal with that, I didn’t want to have to tell him directly. I am just – don’t do that because I was really worried about my income.
I believe I was still -- I wasn’t a salary staff yet. …
...it just felt really horrible. It was very horrible.
Transcript: page 179, lines 23-25; page 180, lines 1-25; page 181, lines 1-4, 15-16.
E. Promoting Ms. Nastiuk [31] Ms. Roach-Leforte testified that case management duties at GHC had been carried out by a variety of staff, that at one time the duties were assigned to all care workers, another time they were given to team leaders. Within the redevelopment of GHC’s program, the case manager was tasked with described duties. Ms. Roach-Leforte said it was her hope that GHC would have one case manager for all the youths in treatment:
… those duties would be more of a social work type responsibility. The residential care workers would work with the kids, they would document things. They would discuss with the case manager concerns, whether they were every day concerns, whether they were behaviour concerns, the clinician should be consulting with the case manager about things that were happening in terms of the clinical work that was being done with their kids.”
Transcript: page 1010, lines 6-15.
[32] Ms. Nastiuk and another staff member applied for the new position of Case Manager, they were interviewed by Mr. Sinclair and Barbara Delsig. Ms. Nastiuk was selected and appointed Case Manager on July 20, 2005.
[33] Ms. Nastiuk described the nature of her work when she was formally appointed GHC’s Case Manager:
So I just started doing a lot of research on the internet and putting the pieces together. … Mr. Sinclair asked me to develop an accountable case-management system. I met with Paula Isler (ph). She was the resident with the Ministry of Community and Social Services. She came in for a review about that time. She gave me what she called her Bible, her pieces from the Child and Family Services Act and she said this is my Bible. This is what guides what I do, this is what will guide what you do, and we had quite a discussion about that.
Transcript: page 186, lines 13-25.
So based on that, that helped me develop the system that I had, and I think that Mr. Broman felt that there was a – system of case management that you could – someone else should be able to step into and follow.
So I struggled –well, I can’t say, well, I really struggled. It was exciting work, but it took a lot of time, a lot of energy. You’ve got the regular case management duties, you’ve got a lot of time spent with Mr. Sinclair, and Gail, bless her heart, she’s a real talker too. So it was a lot of time spent listening to other people talk about work accomplishments. Or what – Gail particularly, something that she was really proud of that she dealt with during the day or issues, and so – yeah, my day was a long day, and the work was – it just seemed like I was accountable for a lot of the treatment planning also at the time.
So while I was having to do all the administrative, I was also having to spend enough time with the boys to kind of gauge what was going on with them, and I think I did a pretty fair job juggling all of these different tasks. And no training on case management, but I believe I learned, but there was still pieces for me that were missing that I couldn’t get the help with or assistance or guidance.
I guess a comment to make is, like, this was – it was all encompassing. I had my job and it just seemed when I went home, I still had my – something related to work. There was a lot – I felt a lot of expectation and pressure put on me. I wanted to do a good job, but basically I’m pretty much a self-starter. I work along independently very well.
Transcript: page 187, lines 1-19; page 188, lines 5-22.
[34] Ms. Nastiuk asked Ms. Roach-Leforte what her transition “looked like within the whole of GHC.”
Ms. Roach-Leforte: …from an administrative perspective your transition was very positive in that you had the skills to develop things like that, we were getting feedback from the ministry that that piece was coming along really well, she liked the design. She liked a lot of the changes that we were making. … In terms of the team though – there was some negative feelings about you being given the position. You were the more qualified, you had a degree, Joe had a diploma, but she had been at the program longer, so I think there was just – there was a lot of bitterness I think initially about that. But, like a lot of things, I know from my perspective I really always tried to work on building bridges and so wherever there were negative comments I would try to bring team – you know, team members together and sort through problems. One of the other problems though was because of the change to the case management style, people were really upset about that.
Transcript: page 1013, lines 11-25; page 1014, lines 1-11.
[35] Ms. Roach-Leforte described the work environment as being more positive during the early days of working on the development of the new program. When asked by CFN’s counsel how long the staff lasted, however, she stated that by the summer of 2005, things had already begun to deteriorate.
And it lasted for – well, it was just kind of up and down because I’m not saying it’s Mr. Sinclair’s fault, but when Mr. Sinclair came that added a whole other mix, it became a change to the program, and then when Ms. Nastiuk was brought over to the case management – or to the management part, that brought another change. And just – I mean, changes started happening, but there started to be in the summertime, just this suspicion that was creeping in with people. Promises were being made about little – you know, pieces of the program and then they wouldn’t happen, or they would get started and then get kiboshed or – you know, the role was, you know, really, really (inaudible) and scheduling, oh my God, what a nightmare, so things started to go downhill towards summer I think.
Transcript: page 1136, lines 12-25; page 1137, lines 1-5.
F. Interactions Between Ms. Nastiuk and Mr. Sinclair During the Summer of 2005 [36] Ms. Nastiuk testified to some of the tension that arose between herself and the other staff. This led Mr. Sinclair to act as an intermediary, a situation Ms. Nastiuk said she found particularly frustrating.
Oh, yes. Yeah, that – that was pretty much at the inception of case management. I was aware that there were issues with staff, but my understanding, and I don’t feel like I’m -- my assessment skills are pretty good, Mr. Sinclair used to say that, and my current boss says that. And my feeling was with staff – some of the issues with staff, there was a lot of resentment that some of the old staff like Brian, Nicky, they were resentful that some of us on-call, part-time staff was moving up and they were down on the floor. And they had kind of hoped that Jill would get the case manager job and there was just – or Krista, Brian’s sister, she was really resentful that I was working upstairs with Mr. Sinclair and Gail.
So there – that’s, to me, how a lot of that got started, and somewhere in there, I don’t know how that got turned around. There might have been some thoughts on my own. I remember I used to make the comment, because it – it used to bother them so much, so I would try to say, well, it’s basically a good fit because I’ve gained a lot of skill and knowledge through my education.
It turned out that was absolutely the worst thing I could have said because it put up even more of a barrier. And between, you know, all of that that came up, that I couldn’t go to front line staff, that I couldn’t go to the shifter – shift supervisor or team supervisor, whatever. I had to go directly to him for reports I should have got from front line staff, from the shift supervisor or team leaders or whatever they were called at the time.
Information on how the progress of the boys, how the groups were doing, anything like that it had to be passed through Mr. Sinclair. Oh, another reason to have to go to his office, and it was very frustrating. …That would have been the first few days in July when I was told the position was mine, July ’05.
Transcript: page 190, lines 24-25; page 191, lines 1-25; page 192, lines 1-13, 22-24.
[37] Ms. Nastiuk testified with a great deal of intensity concerning her work at GHC, particularly the difficulties she experienced with Mr. Sinclair resulting from what she perceived as his infatuation with her:
And the type of attention and intensity of Mr. Sinclair’s focus, I had to deal with that and I -- I just knew. Like, at some point, okay, you have to take the blinders off, you have to stop minimizing, you have to stop denying, deflecting, rationalizing – well, I can’t say denying but rationalizing.
I had to do something because I started getting concerned based on the behaviours that I saw of Mr. Sinclair that he was the one in control, he was used to getting what he wanted.
How do I deal with that and maintain my employment and try to put up – try to get it to stop, so finally – it took me a little while. I was pretty anxious, but I finally approached Gail Roach-Laforte about it, and she was the program manager for Giizhikaandag. And, you know, I – I told her that – I told her how he just seemed to think that there was a bond of friendship, and I didn’t really get where that was coming from (Inaudible) because I didn’t feel it, and I just – he’s stopping at my house and it – I did not want it.
Like, it just seemed like I can’t -- I couldn’t escape work, at home, than it was – if felt – I’m not sure what’s the right word for it. It was frightening. It was really frightening because – and also to say – just prior to that, I had just gotten off of several years of Ontario Disability Support. I had left (Inaudible) to income housing. I felt very, very, vulnerable.
And I kind of just said to Gail, like, I believe that he’s interested in me – as more than an employee, and that when he realizes that that’s not what I want and I – like I wasn’t giving him any indication that that was what I wanted, nothing. For me that personal space – how to say it – I was afraid that if I had to tell him straight out, because it didn’t seem like he was getting it otherwise that that would put my employment in jeopardy.
So I – you know, I just continued to put up that – cringe, try to avoid, put up the cold wall, not engage, not be emotional, respond, that he’s eventually just get over it and move on.
Transcript: page 188, lines 22-25; page 189, lines 1-25; page 190, lines 1-19.
[38] When Ms. Nastiuk recalled the date of July 20, 2005 as the date she “technically” became a full-salaried Case Manager, she immediately made a garbled statement which may be attributed to stress and confusion on her part in giving evidence without the assistance and guidance of a competent barrister:
It just seemed like all of a sudden – like, I mean, it was kind of just – it just seemed like all of a sudden it was like he just – I guess the way to explain it is, like, he swooped and it was like I said this to him and not to the – just to the position.
[39] Ms. Nastiuk then testified:
And I don’t mean he was asking me for sexual favours, or sexual favours or else, that type of thing, it was just like all of a sudden he just thought we were, like – like just there was a bond or – it was more than like an executive director/supervisor/case manager relationship.
Transcript: page 183, lines 6-18.
[40] During her examination of Ms. Roach-Leforte, Ms. Nastiuk asked whether she had expressed concerns to her, Ms. Roach-Leforte replied:
…Yes, you did. That was my role. I was your supervisor, or I thought I was your supervisor, and that’s how I think I worked with all of the team. The team came to me all the time with concerns. …Yes you did… but I expected that. I was seeing things as I stated earlier, about the incident in my office …there were things that I was seeing. You see it and you kind of put it on the back burner, but then when you came to me with your concerns I did expect it. … I didn’t expect necessarily the content of what you complained to me about.
Transcript: page 1015, lines 5-24.
The Chairperson: And what was that content?
Well, I know that Ms. Nastiuk was very uncomfortable even bringing this up to me and she – she really hemmed and hawed and she hinted at things at first. She kind of had asked me questions. I think she was sort of gauging maybe number one, if I was – if I was actually going to listen to her. Number two, if -- if this was just a natural thing this happened to everybody.
For instance she had asked if Mr. Sinclair ever asked me personal questions about things that I experienced and I said to her, yeah, and I shared things. I mean, they’re nothing so personal, I would only share something with him that I would publish anyway.
And, you know, those questions kind of came at me, I said why, what’s going on? And again, with some hemming and hawing she talked about how uncomfortable she felt. I don’t recall every little detail, but the gist of it was there were things happening to you that you were very uncomfortable with, you didn’t like, you felt you didn’t know what to do about. And as I hear, you know some of the details, I remember just saying to you, you know, you need to do something about this you were, I guess you were coming to me but I had suggested, I think, that you go to the Chief or Chief and Council about it.
The Chairperson: When was that conversation?
That was in the summer. In July or August of ‘05.
There were several discussions that took place over – we sometimes discussed them at work, we sometimes – I know that we – you and I had gone out to the lake one time to be away from the program and you had talked about some concerns …
The Chairperson: Did she give you any specifics at that time?
Yeah, she talked about Mr. Sinclair, you know, coming to her house, she talked about, you know, the late hours. I saw a lot of things that I wasn’t comfortable with.
The Chairperson: Like what?
We were having a staff meeting one day and I was in the middle building, it was in the summer, and – and Mr. Sinclair had called me over to the – to his building to review agenda notes before a staff meeting, and so when I went over, Ms. Nastiuk was in his office and she was on her knees fixing the hem on his pants and – oh man I can still see that. It was disturbing to me to see that, and –
The Chairperson: What do you mean by “fixing”?
She was on her knees adjusting the hem, and then he kind of turned to me and laughed and said, you know, they didn’t feel comfortable, they felt like they were too long. And then he made her do that again because he said, oh, now I think they’re too short or something.
And I didn’t – I didn’t say anything at the time, I just – it was very disturbing. And when I asked Marlo later, Ms. Nastiuk later, what was that? Why were you doing that? Why did you do that? And she just said I felt like I had to. So I said – I think I told her that it fits into a pattern that she’s been talking about, and it was just more, you know, part of a discussion that – several discussions that we had had. And in different way I had suggested to her, you know, go to Chief and Council, this is harassment, you know, maybe you should complain to the Human Rights Commission, this isn’t right, maybe you should go to the Labour Board.
But I also say that she was – she felt intimidated. I guess, you know, personally, I would never fudge reports and I would never get on my hands and knees to fix somebody’s hem so that to me is …it just wasn’t okay.
Transcript: pages 1016 to 1020.
[41] When asked by Ms. Nastiuk about Mr. Sinclair’s behaviour away from GHC, Ms. Roach-Leforte testified:
A lot of (your) concerns were around him coming to your home unannounced in the evening for non-work related reasons. In fact, I remember driving by your home, not right by it, but on Crow Avenue and seeing his truck there, and I had asked you about it the next day, and you told me that he showed up and Tiffany, your daughter, was there and you said to her or whispered to her, you know, stay here.
Again, though every time you talked about things like that I said – I’d ask you, you know, to do something about it, you need to do something about this. Tell him that, you know, that you don’t want this happening or that it’s not professional, but you were scared to do that.
The Chairperson: Do you remember when that was approximately?
…in the late in the summertime … of ’05.
Transcript: page 1027, lines 12-25; page 1028, lines 1-13.
[42] According to Ms. Nastiuk, she asked Ms. Roach-Leforte to keep these confidences as she did not yet know how to ‘coin’ Mr. Sinclair’s conduct towards her. She testified that she started to do research on the Internet on sexual harassment.
I guess about that time, I was just like, what the heck is going on, because It wasn’t like – you know, I started going to the website – the human rights website, what’s the definition, what is this? Because it’s not from the blatant examples of sexual harassment or those kind of behaviours on those sites, it didn’t quite fit that, but it just felt – it was almost harder to deal with and more – I don’t know how to – it was very intrusive. I felt very violated.
But you’d go to the website and find out the information. It wasn’t – like, other than, you know, the leering, the weight loss comments, that sort of thing, it wasn’t like touching or saying you have to have sex with me or else, you have to go out for dinner with me or else, it wasn’t those kinds of behaviour that you see listed on the site.
So what the heck is this, and it just – it wasn’t – it didn’t feel right. I knew it was wrong. It made me feel really bad, but by law, it didn’t seem to fit that criteria that you see posted as – there were examples.”
Transcript: page 193, lines 1-25.
[43] Ms. Nastiuk then recounted that other things started to happen, small matters: she brought an umbrella to work, then Mr. Sinclair purchased one; he knew she was a roller blade skater, he went and purchased a pair. She testified that this was a type of symbiosis and it made her feel horrible. She said that about this time, in July/August, 2005, she developed a bald spot. She claimed that Mr. Sinclair was phoning a lot and stopping by her home frequently, always about work, but inevitably turning to personal queries that Ms. Nastiuk likened to psychoanalysis; she felt that the things he was saying didn’t make sense, they weren’t a reason for him to show up at her home.
[44] During her direct testimony, Ms. Nastiuk made some very broad allegations, prompting the Chairperson to ask her to give specific examples:
And I know it was about August 23rd when – he was phoning me a lot, giving me a lot of information, still stopping by frequently. It was always about work. It would turn into queries about me, but even that wasn’t – that became more intense. That part of that became more intense in the fall.
The Chairperson: More intense, you mean more personal or more often?
Ms. Nastiuk: I wouldn’t say more often but it was just like he was trying to drive his point home and it was like it kind of changed and it was more like a psychoanalysis, but that psychoanalysis is like – and he’d always approa