N.A. v. 1416992 Ontario Ltd. and L.C.

N.A. v. 1416992 Ontario Ltd. and L.C.
Collection
Canadian Human Rights Tribunal
Date
2018-12-19
Neutral citation
2018 CHRT 33
File number(s)
T2106/2215, T2107/2315
Decision-maker(s)
Bryan, J. Dena
Decision type
Decision
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2018 CHRT
33
Date:
December 19, 2018
File Nos.:
T2106/2215 and T2107/2315
Between:
N.A.
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
1416992 Ontario Ltd. and L.C.
Respondents
Decision
Member:
J. Dena Bryan
Table of Contents
I. Introduction 1
II. Preliminary Matters 3
Request for the Exclusion of Witnesses 3
Request for a Confidentiality Order 3
III. Legal Framework 7
IV. Evidence at the hearing 14
1. N.A. (Complainant) 16
2. Janette Dinner 31
3. Mahir (Mark) Marson 40
4. Mustafa Hussein 43
5. L.C. (individual Respondent) 44
6. Vivek Sharma 53
7. S.A.S, the Owner 53
8. A.S., the owner’s son 60
V. Credibility and Findings of Fact 61
VI. Conclusion 67
VII. Remedy 69
A. Lost wages 69
B. Pain and Suffering Compensation 72
C. Wilful and Reckless Compensation 73
VIII. Order 74
Compensation 74
Interest on Compensation Awards Payable by the Respondents 75
Confidentiality 75
Retention of Jurisdiction 76
I. Introduction
[1] This is a decision regarding two consolidated complaints that are both dated June 4, 2014. The first complaint is against her former co-worker who is the individual Respondent. The second complaint is against her former employer, the corporate Respondent: 1416992 Ontario Ltd. o/a ATL Logistics. The allegations arise from the Complainant’s period of employment between October 3, 2011 to January 25, 2012.
[2] The Complaint alleges the individual and corporate Respondents discriminated against the Complainant on the ground of sex while she was in employed as an office clerk by the corporate Respondent. The Complainant alleges she was subjected to a series of sexually harassing behaviours from the individual Respondent, including unwelcome sexual comments and requests, which the Complainant perceived as intimidating, verbally abusive and offensive.
[3] The Complainant alleges she informed the corporate Respondent’s office manager of the individual Respondent’s offensive conduct toward her. The Complainant also alleges she informed the spouse of the owner of the corporate Respondent, of the individual Respondent’s offensive conduct toward her. The Complainant alleges that following her complaints regarding the individual Respondent’s offensive conduct toward her, the corporate Respondent did not investigate her complaint or stop the offensive behaviour. The Complainant alleges the corporate Respondent reduced her hours and changed her job duties.
[4] On January 25, 2016, the owner of the corporate Respondent held an office meeting in his office, which included the Complainant, the individual Respondent and other co-workers. The Complainant alleges the owner of the corporate Respondent inappropriately confronted her regarding her complaint against the individual Respondent, acted angrily and aggressively toward her, which made her feel embarrassed, humiliated and fearful. The Complainant alleges she fled the workplace after the meeting and waited to hear from the corporate Respondent that she could return to work in the main office building rather than work alone with the individual Respondent in the dispatch building.
[5] On August 25, 2015, pursuant to s. 44(3)(a) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the “CHRA”), the Canadian Human Rights Commission (the Commission) requested the Chairperson of the Canadian Human Rights Tribunal (the “Tribunal”) institute an inquiry into the Complaint.
[6] The Complainant filed a Statement of Particulars setting out the details of her Complaint. The Commission filed a Statement of Particulars setting out the details of the Complaint. The corporate Respondent filed a Statement of Particulars to respond to the Complaint and set out the details of its defense. The Complainant filed a Reply to the corporate Respondent’s Statement of Particulars.
[7] Ms. Warsame represented the Commission throughout the proceedings. The corporate Respondent participated, although sporadically, and had counsel for some Case Management Conferences. Immediately prior to and at the hearing the corporate Respondent was represented by the owner’s son. The Complainant was self-represented throughout the proceedings.
[8] The individual Respondent, although given the opportunity to do so, provided no Statement of Particulars and disclosure and did not file response to the Complaint or Statements of Particulars filed by the other parties. At times, the Registry did not have contact information for the individual Respondent.
[9] In light of the individual Respondent’s inconsistent and infrequent participation in Case Management Conference Calls, the individual Respondent was informed prior to the commencement of the hearing that if he did not provide the usual pre-hearing disclosure and documentation, prepare a witness list or indicate if he planned to participate in the hearing by calling witnesses or cross-examining witnesses, that his participation at the hearing may be limited to being a witness and making final submissions. The individual Respondent did not file any documents, disclosure or give notice of his intention to call witnesses, cross-examine witnesses.
[10] The corporate Respondent called the individual Respondent as a witness on July 27, 2016. The individual Respondent attended the hearing for some days of the hearing, arriving after the hearing was underway, sitting at the back of the room and left before the days’ testimony was complete. On one occasion, he arrived in the midst of the cross-examination of a witness and indicated he would like to cross-examine the witness. Since he had not been present for the witness’ direct examination and cross-examination and had not notified the Tribunal of his intention to attend and participate that day, the Tribunal informed the individual Respondent his request for cross-examination could not be accommodated on short notice and would unreasonably prolong/delay the testimony of the witness. The individual Respondent informed the Tribunal he planned to give closing submissions on the final day of the hearing but he did not appear.
[11] Five days of hearings were held in Brampton, Ontario, from July 25 to 29, 2016. A total of nine witnesses were heard.
[12] For the reasons set out below the Tribunal has determined that the Complaints against both the individual Respondent and corporate Respondent alleging sexual harassment as a discriminatory practice within the meaning of s.14 of the CHRA have been substantiated.
II. Preliminary Matters
Request for the Exclusion of Witnesses
[13] In pre-hearing email exchanges, the corporate Respondent requested an exclusion of witness. The Commission and the Complainant did not object and so this request was granted.
[14] In the context of the discussion regarding exclusion of witnesses, the Tribunal advised the parties that unidentified members of the public would not be permitted to enter the hearing room unannounced and all parties agreed to this procedure.
Request for a Confidentiality Order
[15] In a pre-hearing case management conference call just prior to the hearing, the Complainant expressed concern that the Tribunal decisions are posted on the Tribunal’s website and CanLII, and that her children and others could look up the decision and read the graphic details of what she alleges the individual Respondent said to her. The Complainant requested the decision posted publicly not include her full name.
[16] At the commencement of the hearing, the Complainant’s motion for a confidentiality order was discussed as a preliminary matter. The corporate Respondent had no objection and made its own request that reference to its operating name, ATL Logistics, not appear on the heading since it had sold the assets of the Company and the purchasers were using the operating name, ATL Logistics. The corporate Respondent retained the numbered company as Respondent in this complaint. The owner of the corporate Respondent also requested his initials be used. During the hearing, the owner’s son, also requested his initials be used.
[17] The Complainant did not object to the corporate Respondent’s request to remove the operating name “ATL Logistics” from the heading and to the use of initials for the owner of the corporate Respondent.
[18] The Commission did not object to the Complainant’s request for initials and the corporate Respondent’s request to remove the operating name “ATL Logistics” from the heading and to use the initials of the owner of the corporate Respondent.
[19] The individual Respondent was not in attendance for the commencement of the hearing but arrived before opening statements and was present for the discussion regarding the confidentiality order. He had no objection to the parties’ requests to use their initials and confirmed he would like his initials used as well. The Complaint, the Commission and the corporate Respondent did not oppose the individual Respondent’s request.
[20] At the hearing, I granted the parties request for a confidentiality order. These are the reasons for that decision.
[21] Section 52 of the CHRA provides that an inquiry should be heard by the Tribunal in public. Section 52 of the CHRA also provides that the Tribunal may, in very specific circumstances and if it is satisfied, take any measures and make any order that it considers necessary to ensure the confidentiality of the inquiry. Those very specific circumstances are defined in s. 52(1) of the CHRA.
[22] Section 52(1)(c) of the CHRA stipulates that the Tribunal may take any measures and make any order necessary to ensure the confidentiality of the inquiry if the Tribunal is satisfied that there is a real and substantial risk that the disclosure of matters will cause undue hardship to the persons involved and that this outweighs the societal interest in a public hearing.
[23] The Tribunal also notes the decision of A.B. v. Eazy Express Inc., 2014 CHRT 35, which confirms the Tribunals authority to use initials to ensure confidentiality in this instance. In Eazy Express Inc., the Commission requested the Tribunal use initials for the Complainant, a witness, and two additional persons preferably not their own, who did not testify. The Commission claimed that the personal matters discussed during the hearing that did not deal with discrimination, would create undue hardship for these individuals if the personal matters became public. The Respondent objected to the Commission’s request.
[24] The Tribunal agreed that some of the personal matters discussed at the hearing could be potentially harmful to the Complainant and another witness should they be publicly disclosed. The Tribunal decided to anonymize the decision by using initials for the Complainant and one of the witnesses.
[25] Lastly, the Tribunal the notes the decision of Wall v. University of Waterloo (1995), 27 CHRR D/44 (ON Bd Inq.). The individual Respondent requested a publication ban on the evidence that related to him. He was an elected official and did not want the allegations to have “undue impact on his public reputation”. As a preliminary matter, the Tribunal imposed a publication ban on the individual Respondent’s name pending the release of the decision.
[26] Subsequently, the Commission requested a publication ban of the Complainant’s name and the respondent University also requested a publication ban of its name, arguing that it would be unfair to impose a publication ban for only one party and the ban should be available for each party who requested it. The Tribunal imposed the publication ban of the parties’ names until the decision was released because all parties had requested it. The Tribunal reviewed the authorities and provincial legislation regarding in camera hearings and publication bans.
[27] In Guzman v. T, [1997] BCCHRD No 1, 27 CHRR D/349, the Tribunal citing the legal principle that tribunals are masters of their own procedure and processes, including publication of identifying information (paragraphs 9 and 10).
[28] In the present case, none of the parties requested an in camera hearing or publication ban so the public interest in human rights hearings is respected. The Complainant requested her initials be used because the details of what she alleged the individual Respondent said and did to her had not been shared with her young daughters and she did not want them or other family and friends to read about the details on-line. The other parties did not object and requested the same use of initials in the public decision to protect their identities.
[29] In light of the agreement of the parties on the issue of confidentiality, and pursuant to paragraph 52(1)(c) of the CHRA, I am satisfied that the public disclosure of the more sensitive material could cause undue hardship to the Complainant, individual Respondent, and corporate Respondent. I thus find it appropriate to ensure the confidentiality of the parties as requested. Consequently, the individual Respondent is hereinafter referred to by his initials “L.C.” The owner of the corporate Respondent shall hereafter be referred to as “the owner”. The owner’s son is hereinafter referred to as “A.S.”. The corporate Respondent will be referred to as such throughout and the numbered company name used on the heading. The complainant is hereinafter referred to as “N.A.”
[30] Having granted the parties’ original request for confidentiality, the Tribunal on its motion has determined that all documents placed into evidence which make reference to the above-mentioned parties’ names should also be redacted accordingly to give full and proper effect to the parties’ original request for confidentiality.
III. Legal Framework
[31] The complaint is brought under two different sections of the CHRA, i.e., 7 and 14. Section 7(a) of the CHRA makes it a discriminatory practice to refuse to employ or continue to employ an individual, because of a prohibited ground of discrimination. Section 14(1)(c) of the CHRA makes it a discriminatory practice for an employer in matters related to employment, to harass an individual on a prohibited ground of discrimination. Section 14(2) of the CHRA states that sexual harassment is deemed to be harassment on a prohibited ground of discrimination.
A. Prima facie Case of Sexual Harassment
[32] The Complainant has the burden of establishing a prima facie case of sexual harassment. To establish a prima facie case under s. 14 of the CHRA, the Complainant must establish that the individual Respondent sexually harassed the Complainant in or related to the workplace.
[33] A prima facie case is “...one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent-employer” (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC) at para. 28, herein “Simpson-Sears”).
[34] The degree of proof required for to establish a prima facie case of discrimination was addressed in Quebec (Commission des droits de la personne et des droits de la Jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2SCR 789, (herein “Bombardier”) in the context of Quebec’s Charter of human rights and freedoms. The Court confirmed that the Complainant must satisfy the standard of proof on a balance of probabilities, and that the reference to a prima facie case did not indicate a lesser evidentiary burden:
“[65] Thus, the use of the expression “prima facie discrimination” must not be regarded as a relaxation of the plaintiff’s obligation to satisfy the tribunal in accordance with the standard of proof on a balance of probabilities, which he or she must still meet. This conclusion is in fact supported by the passage from O’Malley quoted above, in which the Court stated that the case must be “complete and sufficient”, that is, it must correspond to the degree of proof required in the civil law. Absent an exception provided by law, there is in Quebec law only one degree of proof in civil matters, namely proof on a balance of probabilities: art. 2804 of the Civil Code of Québec; see also Banque Canadienne Nationale v. Mastracchio, [1962] S.C.R. 53, at p. 57; Rousseau v. Bennett, [1956] S.C.R. 89, at pp. 92-93; Parent v. Lapointe, [1952] 1 S.C.R. 376, at p. 380….”
[35] Once a Complainant establishes a prima facie case of discrimination, the Complainant is entitled to relief in the absence of justification by the employer (Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, at p. 208; Lincoln v. Bay Ferries Ltd., 2004 FCA 204, at para. 18).
[36] In Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, at 1284, the court described sexual harassment as follows:
Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. […] Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.
[37] In Canada (Human Rights Commission) v. Canada (Armed Forces) and Franke, 1999 CanLII 18902 (FC), [1999] 3 FC 653, the court held that for a sexual harassment allegation to be substantiated, the following must be shown:
The acts that form the basis of the complaint must be unwelcome, or ought to have been known by a reasonable person to be unwelcome;
The conduct must be sexual in nature;
Ordinarily, sexual harassment requires a degree of persistence or repetition, but in certain circumstances even a single incident may be severe enough to be detrimental to the work environment; and
Where the sexual harassment takes place in an employment context and the employer has a personnel department and an effective sexual harassment policy, the victim of the harassment must notify the employer of the alleged offensive conduct.
At page 662, the Court described the elements of “unwelcome” as follows:
[…..]
In order to determine if the conduct is welcome or unwelcome, the Tribunal will look to the complainant’s reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. If the evidence shows that the complainant welcomed the conduct, the complaint will fail.
[…..]
The degree of difficulty will depend on the type of activity involved: a pressing sexual advance will normally bring a quick refusal. More subtle solicitations or “verbal” innuendos may be ignored and as such simply endured by the complainant.
Thus, the proper inquiry will not require a verbal “no” in all cases. Nonetheless, the complainant must establish, for instance by her body language or by her repetitive failure to respond to suggestive comments, that she had in some way signalled to the harasser that his conduct was unwelcome. I leave the door open to certain limited circumstances which may force an employee to endure objectionable conduct, such as fear of losing a job. In these cases, the appropriate standard against which to assess the conduct will be that of the reasonable person in the circumstances.
At page 662, the Court described the elements of “sexual in nature”:
[…]
Sexual harassment is any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity. […]
…..
Sexual harassment can manifest itself both physically and psychologically. In its milder forms it can involve verbal innuendo and inappropriate affectionate gestures. It can, however, escalate to extreme behaviour amounting to attempted rape and rape. Physically the recipient may be the victim of pinching, grabbing, hugging, patting, leering, brushing against, and touching. Psychological harassment can involve a relentless proposal of physical intimacy, beginning with subtle hints which may lead to overt requests for dates and sexual favours.
[…]
Sexual annoyance, the second type of sexual harassment, is sexually related conduct that is hostile, intimidating, or offensive to the employee, but nonetheless has no direct link to any tangible job benefit or harm. Rather, this annoying conduct creates a bothersome work environment and effectively makes the worker’s willingness to endure that environment a term or condition of employment.
The second subgroup encompasses all other conduct of a sexual nature that demeans or humiliates the person addressed and in that way also creates an offensive work environment. This includes sexual taunts, lewd or provocative comments and gestures, and sexually offensive physical contact.
[38] The Court stated that the Tribunal’s determination of the behaviour or conduct alleged as “sexual in nature” and “harassing” or “annoying” should be conducted on a case-by-case basis, based on the objective test of the reasonable person in the circumstances and avoid gender-based stereotypes of what behaviour is acceptable or common in workplace dominated by one gender.
[39] In relation to “persistence and/or gravity of the conduct”, the Court stated at page 665:
….harassment requires an element of persistence or repetition, although […]a single incident may be enough to create a hostile work environment.
…some forms of sexual harassment, such as physical assault, may be severe enough to constitute, in themselves, sexual harassment. Such incidents would, because of their gravity, immediately create a poisoned work environment. [….] a crude sexual joke, although perhaps in poor taste, will not generally be enough to constitute sexual harassment and would rarely create a negative work environment.
I agree with the proportionality test proposed by M. Drapeau in Le harcèlement sexuel au travail:
[translation]
the more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated.
Again, in assessing whether the conduct is sufficiently severe or persistent to create a poisoned workplace, the trier of fact will apply the objective “reasonable person standard” in the context.
[40] In relation to the “notification of the employer”, the Court stated at pages 665 and 666:
Although this was not an element considered by the Supreme Court in Janzen, I believe that fairness requires the employee, whenever possible, to notify the employer of the alleged offensive conduct.
…..in order for sexual harassment policies to work, the employee should inform the employer of any problems, in order to give [the employer] the opportunity to remedy them.
[….]
The goal of sexual harassment policy is to achieve a healthy workplace; and, therefore, the sooner action is taken to eliminate harassing conduct, the less likely it is that any such conduct will become detrimental to the work environment.
[41] Together, Janzen and Franke define the elements of sexual harassment that the Complainant’s evidence must address to establish a prima facie case. If the Complainant establishes a prima facie case, the burden then shifts to the Respondents to establish on the balance of probabilities that there was no sexual harassment. In other words, casting doubt regarding the reliability or credibility of the Complainant.
[42] Pursuant to Section 65 of the CHRA, the employer is deemed responsible for the sexual harassment of its employees, unless it can be established pursuant to subsection (2) that the employer did not consent to the sexual harassment and exercised all due diligence to prevent the act or omission from being committed, or, if it occurred notwithstanding the employer’s diligence, the employer took steps to mitigate or avoid the full negative effects of the sexual harassment on the employee.
[43] Section 65 of the CHRA states:
65.(1) Subject to subsection (2), any act or omission committed by an officer, a director, an employee or an agent of any person, association, or organization in the course of the employment of the officer, director employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization.
(2) An act or omission shall not, by virtue of subsection (1), be deemed to be an act or omission committed by a person, association or organization if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof. (Emphasis added)
[44] This provision makes employers liable for harassment in the workplace, where the harassment involved one or more of the proscribed grounds enumerated in section 3 of the CHRA, unless the employer can satisfy the elements of the due diligence defence described in Section 65(2) of the CHRA.
[45] If there was sexual harassment, the corporate Respondent has the burden of evidence to establish on the balance of probabilities that it did not consent to the sexual harassment and exercised all due diligence to prevent the act or omission from being committed, or, if it occurred regardless of its diligence, it took steps to mitigate or avoid the full negative effects of the sexual harassment on the employee, pursuant to Section 65(2) of the CHRA.
[46] In Robichaud v. Canada (Treasury Board), (1987) 2 SCR 84, (herein “Robichaud”), La Forest J., clarified at page 92, that the purpose of CHRA and the employer liability provision:
… is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. At page 94, he continued: …if the Act is concerned with the effects of discrimination rather than its causes (or motivations), it must be admitted that only an employer can remedy undesirable effects; only an employer can provide the most important remedy – a healthy work environment.
[47] In Hinds v. Canada (Employment and Immigration Comm.)(1988), 10 C.H.R.R. D/5683 (C.H.R.T.), at para. 41611, applying s. 48(6) of the CHRA [s. 65(2) as it then read], the Tribunal wrote:
Although the C.H.R.A. does not impose a duty on an employer to maintain a pristine working environment, there is a duty upon an employer to take prompt and effectual action when it knows or should know of co-employees’ conduct in the workplace amounting to racial harassment…To avoid liability, the employer is obliged to take reasonable steps to alleviate, as best as it can, the distress arising within the work environment and to reassure those concerned that it is committed to the maintenance of a workplace free of racial harassment. A response that is both timely and corrective is called for and its degree must turn upon the circumstances of the harassment in each case.
[48] Included in this duty to mitigate is an examination of the steps taken by a corporate respondent to investigate, make findings and impose a resolution. In Sutton v. Jarvis Ryan Associates et al., 2010 HRTO 2421, at paras. 130-33, the Human Rights Tribunal of Ontario dealt with a corporate respondent’s duty to investigate a complaint of discrimination or harassment:
It is well established in the Tribunal’s jurisprudence that an employer may be held liable for the way in which it responds to a complaint of discrimination.
[49] The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Human Rights Code of Ontario (the Code) are meaningful. As stated in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII) (“Laskowska”), at para. 53:
It would make the protection under subsection 5(1) to be a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a ‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment.
[50] The Tribunal’s jurisprudence has established that the employer’s duty to investigate is held to a standard of reasonableness, not correctness or perfection. In Laskowska, the Tribunal set out the relevant criteria for an employer to consider in its duty to investigate as:
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;
Post-Complaint:Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: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
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?
[51] The Tribunal in Laskowska also stated the following at para. 60:
While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.
IV. Evidence at the hearing
[52] N.A. described the actions and comments she alleges L.C. directed toward her that she found offensive. N.A. worked alone in the dispatch building with L.C. so there were no witnesses to L.C.’s offensive behaviour toward her. She described the steps she took to deal directly with L.C., and her discussions with her supervisor and the owner’s wife. N.A. stated that L.C.’s offensive behaviour did not stop. The corporate Respondent reduced her hours and asked her to do different job duties that she found difficult and demeaning, i.e., cleaning the bathroom and helping the mechanic in the truck yard.
[53] On the advice of the Ontario Human Rights Tribunal, N.A. wrote a letter to the owner, which she gave to Ms. Dinner on January 25, 2012 to give the to the owner. The owner called a group meeting. N.A. asserts the owner angrily and aggressively confronted her about her complaint about L.C. with L.C. and other co-workers in the room, which she said made her feel frightened, humiliated and ashamed. N.A. left the premises after this meeting and did not return. N.A. said she hoped the corporate Respondent would contact her and agree to move her desk to the main office building. The corporate Respondent did not communicate with N.A. after the meeting regarding her complaint about the individual respondent or her request to move her workspace to the main office building. After a couple of weeks with no communication between N.A. and the corporate Respondent, the corporate Respondent issued a Record of Employment indicating N.A. quit her job since she had not returned since January 25, 2012.
[54] N.A. and the Commission called Ms. Janette Dinner, the office manager, of the corporate Respondent, and N.A.’s immediate supervisor, in relation to the manner in which N.A. reported the offensive conduct and the corporate Respondent’s response. Ms. Dinner also recounted her own experience with L.C.’s conduct toward her that she found offensive, which occurred in private with no witnesses.
[55] L.C., the individual Respondent, was called as a witness by the corporate Respondent and denied all of the sexual comments and behaviour alleged by N.A. and Ms. Dinner. L.C. suggested N.A. and Ms. Dinner were lying and their false allegations were motivated by money and/or racial bias against him.
[56] The corporate Respondent believed L.C.’s denial of the offensive behaviour and comments toward N.A. and Ms. Dinner had occurred. The corporate Respondent suggested N.A. was lying and motivated by money. The corporate Respondent suggested Ms. Dinner’s evidence was false and that she was improperly assisting N.A. The corporate Respondent suggested Ms. Dinner’s motivation was racial bias toward L.C. and she bore a personal grudge against the corporate Respondent.
[57] The corporate Respondent’s alternative position was that even if L.C. did behave toward N.A. in the manner alleged, that N.A.’s manner of dress and sharing of intimate personal details at work, may have invited and/or acquiesced to L.C.’s behaviour. The corporate Respondent also blamed Ms. Dinner for not addressing the situation sooner, for failure to provide a harassment free workplace and for failing to advise the owner properly with respect to the nature of N.A.’s complaint and how to respond to the complaint. In addition to L.C., the corporate Respondent called five witnesses.
[58] N.A.’s last day worked was January 25, 2012. The corporate Respondent issued a ROE on February 8, 2012, indicating she quit because she abandoned her job. N.A. denies she quit and claims she was constructively dismissed on or after January 25, 2012.
[59] In light of the fact that there were no witnesses to the alleged conduct by L.C. toward N.A. and Ms. Dinner and the evidence was contradictory regarding the manner in which N.A. reported the offensive conduct, if at all, and the corporate Respondent’s knowledge of and response to the Complaint, if any, the Tribunal must weigh the oral testimony of all witnesses and assess reliability and credibility of each witness and make findings of fact based on the assessments of credibility.
[60] In relation to assessing reliability and credibility of the witnesses, the Tribunal considered Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.), regarding witness credibility and reliability. Mr. Justice O'Halloran stated at p. 357:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
a. credibility can not be determined solely on the demeanour of the witness;
b. acknowledge that a witness may be honest, and therefore credible, but mistaken in some evidence, and therefore the witnesses’ evidence in unreliable in some respects;
c. consider the opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what the witness has seen and heard; and,
d. examine the witness’ evidence in the context of the known and probable factors and circumstances so that a practical and informed person could assess the witness’ evidence as reasonably reliable or credible in that place and in those conditions.
1. N.A. (Complainant)
[61] After being a homemaker for 15 years, N.A. accepted a part-time position at a coffee shop located within a Petro Canada service station near her home. The corporate Respondent was a trucking company operating nearby and was a regular customer of the Petro Canada service station. When the Petro Canada service station was sold, the owner of the corporate Respondent offered N.A. a job interview with his office manager, Ms. Janette Dinner.
[62] Ms. Dinner told N.A. the position for an office assistant, working Monday to Friday for the full day until 4:00 or 4:30. N.A. was interested in full-time employment but wanted to be available when her children got out of school. N.A. explained to Ms. Dinner that she would need to leave at 3:30 or 3:45 each day and Ms. Dinner told her that was fine. N.A. testified that Ms. Dinner told her that after she completed the probationary period, the hourly wage would be reviewed and would likely increase to $14.50 and employment benefits would be considered.
[63] N.A. was offered the job, commencing October 3, 2011. The employment offer is marked Exhibit HR1-Tab 3 and confirms N.A. was to report to Ms. Dinner, that she would be paid $12.50 an hour for the 3 month probationary period and N.A. was to provide two weeks’ notice if she quit. The offer mentions “lunches will be docked 30 minutes if working 5 hours or more.”
[64] The offer does not confirm her hours of work, in terms of start and end time or length of a workday. N.A. testified her regular hours at the start were 8:30 a.m. to 3:30 p.m. Monday to Friday.
[65] Marked Exhibit HR1-Tab 4, page 1, is a photograph of two mobile buildings situated adjacent to one another so that the corners of the buildings are perpendicular to one another. In the smaller building, herein “the dispatch office building”, N.A. worked alongside the L.C., the individual Respondent, who was the dispatcher (depicted Exhibit HR1-Tab 4, pages 4 and 5). The photographs show that N.A.’s desk was very close to L.C.’s desk. The drivers, staff, applicants and others, would frequently enter this building to use the washroom (depicted Exhibit HR1- Tab 4, page 5) and/or to deal with L.C. or N.A..
[66] In the larger building, herein “the main office building”, Ms. Dinner and Ms. Bushra Mohammed, the owner’s wife, had adjacent work desks (depicted Exhibit HR-1, Tab- 4, page 2) and the owner of the corporate Respondent had an office at the other end (depicted Exhibit HR-1, Tab 4, page 3).
[67] N.A.’s job duties began with basic reception duties, such as answering the phone and greeting visitors to the dispatch trailer. She gradually received training from the owner, his wife and Ms. Dinner, to enable her to cover dispatch for brief periods when L.C. was away, screen job applicants, create portfolios for each driver, pay the owner’s visa bills, solicitation calls for businesses to advertise on the trucks and payroll.
(i) Conduct of L.C.
[68] N.A. testified that when she started work on October 3, 2011, L.C. was friendly and complimentary, telling her she was pretty. L.C.’s comments, demeanour, and behaviour quickly escalated to be offensive, demeaning, humiliating and intimidating to N.A. and she gave the following examples:
he asked her if her breasts were real and if he could touch her breasts;
he asked her if her vagina was neatly tucked away or if she had folds hanging on the outside;
he would regularly simulate performing oral sex on a woman by inserting his tongue into a pizza pocket, while makin