Appearances:

¶ 1      The complainant, Nicole Curling ("Curling"), filed a complaint with the Human Rights Commission ("Commission") against the Victoria Tea Company Ltd. ("Victoria Tea")  and Alexander Torimiro ("Torimiro") on April 15, 1994.  The complaint alleged that Torimiro had sexually harassed Curling and subjected her to sexual solicitation and advances, contrary to s. 7(2) and s. 7(3)(a) and s. 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code").  On August 28, 1998, the complaint was amended to add an allegation that the respondents had discriminated against Curling by treating her unequally in employment on the basis of sex, contrary to s. 5(1) of the Code.

¶ 2      The original and amended complaint were referred by the Commission to the Board of Inquiry ("Board") for a hearing.  The complaints were received by the Board on April 6, 1999.  The hearing commenced before me by conference call on May 5, 1999, and was concluded on November 8, 1999, after several days of evidence in July, September and October.  In an interim decision, released on September 30, 1999, I made orders:

¶ 3      The personal respondent and corporate respondents have not participated in or been represented at this hearing since September 22, 1999, despite having had notice of all subsequent hearing days, including a day scheduled to deal with their motion for a stay of proceedings, among other matters.  Torimiro has sent correspondence to the Registrar of the Board stating that he does not intend to participate further in the hearing and will be seeking a stay of proceedings in Divisional Court.  No court documents have been served on the Board to date.  At the point at which Torimiro last attended the hearing, the complainant was being cross-examined.  Torimiro was conducting the cross-examination himself.  Re-examination of Curling was conducted in the absence of the respondents.  In addition to the complainant's testimony, I heard evidence from several other witnesses testifying on behalf of the Commission or the complainant. For ease of reference, the names of the witnesses are set out below and the relationship of the witness to one or more of the parties is noted:

¶ 4      This is my decision on the merits of this complaint.

RECORDING OF THE EVIDENCE

¶ 5      Pursuant to amendments to the Code in 1994, the Board is no longer required to record the evidence given at its hearings.  The Board currently has a policy of tape-recording its proceedings in exceptional circumstances only.  This case was no exception.  However, when the respondents retained counsel several days into the hearing, that counsel requested that the Board re-commence the hearing because he was disadvantaged by the absence of a transcript. On the September 22, 1999 conference call, Mr. Hamalengwa advised the Board that he would be bringing a motion to seek an order that the hearing be re-commenced, or requiring that he be given a copy of the handwritten hearing notes of Commission counsel, or my own notes.  As it turned out, Mr. Hamalengwa resigned from representing the respondents before such a motion was filed.

¶ 6      When the hearing reconvened on September 28, 1999, I decided, after hearing submissions from the parties in attendance, that the remaining evidence would be tape-recorded, as an exception to our general policy, because of the possibility that Torimiro would rejoin the hearing, with or without new counsel, at a later stage.  Consequently, there is a tape available for the evidence from September 28, 1999 forward, with the exception of the testimony of Sharon Hykoski, who testified by telephone.  Unfortunately, through inadvertence, the tape-recorder was not turned on during her brief evidence.

RELIABILITY OF THE EVIDENCE

¶ 7      The respondents did not lead any evidence or participate in the last several days of the hearing.  In assessing the credibility of the witnesses for the complainant and Commission, I did not have the benefit of cross-examination except for a limited cross-examination of Curling by Torimiro.  Despite these circumstances, I have no difficulty in finding that Curling, and each of the witnesses called in support of the complaint, gave credible testimony upon which I can rely in making findings of fact.  The overwhelming consistency of all of the testimony as to the events at issue provided me with a firm basis for making findings of fact.

¶ 8      As the summary of the evidence will demonstrate, Curling's testimony was corroborated by both the direct observations of several witnesses, notably Sulph and Yassini, and also by the evidence of these and other witnesses as to what Curling told them about the events as they were unfolding.  Indeed, it is unusual to have so much corroborative evidence in a sexual harassment case, particularly first-hand observations of the offending conduct such as were offered by Sulph and Yassini.  Although both Sulph and Yassini were owed money by Torimiro, and might be thought to harbour ill-feeling towards him which could affect their evidence, in fact each testified that Torimiro telephoned them as the hearing process began, to discuss their evidence and he took the opportunity to promise each of them that he would be repaying them soon.  I have concluded, on the basis of the internal consistency of their evidence, as well as its consistency with that of all the other witnesses, that Sulph and Yassini gave credible testimony which was unaffected by either their own monetary losses or by Torimiro's promise of repayment.

¶ 9      Moreover, based particularly on the corroborative testimony of Sulph and Yassini, I accept the evidence of Curling in its entirety.  She testified in a straightforward manner, without exaggerating incidents to which she was the only witness, such as Torimiro's behaviour on two out-of-town trips dealt with in her evidence.  If anything, Curling appeared to understate her account of events, adding detail with hesitation, seemingly because of her discomfort with the situation in which she found herself in the summer of 1993.

¶ 10      Curling gave hearsay evidence in two areas which are noted in my summary of her testimony: her indirect knowledge of Torimiro's treatment of a subsequent employee named Razacka; and her indirect knowledge of statements which Torimiro is alleged to have said to others about her and her family after her complaint was filed and as the hearing began. Although I did not disallow her evidence in these areas, I did not rely upon it in making factual findings.

¶ 11      Finally I note that the complainant introduced, as corroborative evidence, photocopied pages of her diary for the period of her employment at Victoria Tea.  I was able to examine the original diary and the complainant offered to allow the respondents' counsel to review the entire diary in her counsel's office.  Curling was also willing to have the original diary examined by a forensic expert but opposed the respondents' motion for an order requiring her to release it to Torimiro on an unrestricted basis.  My interim decision discusses the positions of the parties on the admissibility and reliability of the diary.  Unfortunately, this issue was never fully argued before me.  In any event, I have found it unnecessary to rely on the diary in making factual findings.

¶ 12      Because the respondents did not participate in most of the hearing, I will summarize the evidence in some detail, particularly the unrecorded evidence.

SUMMARY OF EVIDENCE

Nicole Curling

¶ 13      The events that give rise to this complaint took place in the summer of 1993, when she was 23 years old.  She had just graduated with a Bachelor of Arts degree, specializing in mass communications and fine arts.  She was considering graduate school or looking for full-time employment, particularly in advertising or marketing.  Curling testified that, with this in mind, she accepted the offer of a family friend, Hyacinth Sulph, to introduce her to Torimiro, who was looking for an executive-assistant to work with him in developing and marketing his business, Victoria Tea.

¶ 14      Sulph arranged an introductory meeting between herself and Torimiro which took place at a restaurant and was followed by a visit to his apartment to taste the tea.  In addition to Curling and Torimiro, Sulph and Curling's sister, Deone, were also present.  During the meeting, Torimiro spoke about the success his company was having in the business of importing and packaging tea for sale in Canada.  Within the next few days, Curling met with Torimiro at the company's small packing plant and office in Mississauga.  Curling testified that he offered her the position "on the spot", telling her that she would be his "right-hand person", and that she accepted.

¶ 15      Curling testified that she was very excited about the opportunity to work at Victoria Tea.  She was impressed with Torimiro, who was articulate and pleasant, and did not seem concerned that she lacked any work experience.  She was to be involved in advertising and customer relations, and to develop an employee manual for the staff, which consisted of three or four packers and a plant manager, as well as two office staff and two salespeople.  Torimiro told her that her salary would be $26,000 and she would be given a company car for her sole use.  Curling was surprised when Torimiro told her that she would also receive a $1000 clothing allowance. She testified that he told her that he wanted her to dress appropriately to represent the company, particularly in business suits "with skirts, not slacks".

¶ 16      It was Curling's evidence that Torimiro told her to spend as much of her day as possible with him, to learn "how he ran the company".  When she began, she was with him about half of her working day.  As well, he asked her to lunch two or three times a week, and invited her to his condominium to play squash and tennis.  She accepted the invitation to play squash a couple of times, and then began to turn him down, saying she was busy, because she felt uncomfortable spending so much time alone with him.  She was surprised when he bought her gifts, including a skirt, and wanted to meet her father, who was, and is, a Member of the Provincial Legislature.

¶ 17      Curling testified that Torimiro began discussing his personal life with her and the sexual affairs of her co-workers.  He told her that he had had an affair with the receptionist, a married woman, but no longer found her attractive because she had gained weight.  He said that Patrick Henry, one of the salespeople, was engaged and also in a second relationship with a woman named Rachel, a friend of Torimiro.  At one point, obscene material came over the fax at work from Rachel and was treated as a humourous matter by Torimiro.  Curling was uncomfortable with all the talk about the affairs of her co-workers.  She was particularly uncomfortable with the fact that Torimiro began to ask about her social life and whether or not she was dating.  His personal questions made her apprehensive.

¶ 18      Curling testified that, from the beginning of her employment, Torimiro would sometimes kiss her on the cheek when he came into the office in the morning.  When she told him that she thought it was odd to kiss her in the morning, and that she was not, in her words, "a very touchy person", she testified that he told her that "Canadians were cold", and that the kissing was his way of expressing happiness and "the African in him".  She testified that he would tell her that she was an attractive woman and that she told him that she was not comfortable with his compliments because he was her boss. His response was that she should just relax, and that in time, she would "come around".  Curling testified that Torimiro began to touch her.  He would sometimes close the door when he came into her office, and had a tendency to pull his chair to her side of her desk and to touch her arm or leg while they talked.  She felt uncomfortable, but thought that maybe she was a little too stiff, and needed to, in her words, "loosen up".  She assumed that Torimiro would back off when he realized that she was not reciprocating.  Curling did not want to do anything to jeopardize her position particularly because Sulph had recommended her.  It was important to her that she live up to Sulph's expectations and make the most of the great opportunity which she had been given.

¶ 19      After her first few weeks of employment, Torimiro began to express an increased interest in Curling.  She testified that he told her that she had "a great body" and that he loved her.  Torimiro told her that the two of them would "make a great team" in taking the company forward.  He said that he could picture her as a marriage partner and that, since they would be working together for so many hours, it was a "natural progression" for them to have a relationship.  He told her about his past relationships with other women who had worked for him and began to touch her more often.  She testified that she thought that she must be giving him the wrong signals, and that she had to be clearer.  She began to push him away when he tried to kiss her or touch her.  She asked Sulph to speak to him and make it clear that she was not interested in a relationship.  Once, Torimiro was at Sulph's apartment for dinner, Sulph saw him touch Curling on the buttocks and immediately spoke to him about it.  Curling testified that she was so embarrassed, she went upstairs as they talked.

¶ 20      Notwithstanding her growing discomfort, in mid-August, Curling went on a business trip to Washington with Torimiro and the two salespeople.  They all stayed with friends and relatives of Torimiro.  She testified that, as she made up her bed the first night, he came into the room and said that he might have to sneak into her room in the middle of the night.  This made her feel uncomfortable, and she told him, "Don't even think about it".

¶ 21      Around the time of the Washington trip, Curling again asked Sulph to speak to Torimiro about his behaviour towards her.  Sulph testified that she did so.  Afterwards, Torimiro talked to Curling and told her that he would change his behaviour, not be so "touchy".  Curling testified that he did change and for a period of time, she thought the problem was over.  He was no longer, in her words, "overly friendly". It was at this time that Torimiro borrowed $15,000 from Sulph to help out the business.  Curling testified that she prepared the documentation for the loan, but that Torimiro never signed.  Curling had begun to suspect that the financial position of the company might not be as favourable as she had been led to believe.  She became aware of several unpaid bills, and was required to put off creditors when they phoned.

¶ 22      During the first week in September, Torimiro and Curling went on a second business trip to New York.  Sulph drove them to the airport and took the opportunity to remind Torimiro of their previous discussion about his conduct towards Curling, telling Torimiro, in front of Curling, to "make sure that the [hotel] rooms aren't even on the same floor".  Curling testified that, upon arrival at the hotel, Torimiro went to the front desk alone and then told her that there was a "mix-up" and the hotel only had one room available for them.  Curling testified that she asked him: "Did they make a mistake or did you make a mistake?".  She sent him back to the front desk, but he returned to say that the hotel was over booked.

¶ 23      Curling testified that she considered going back to Toronto right away, even though she had worked long hours preparing a presentation for several publications in New York. Torimiro tried to reassure her by telling her that he would telephone Sulph.  He went to a pay phone, made a call, and then told her that Sulph was on her way to catch a flight, but she understood that it was a mix-up and that Curling should not worry about it.  Curling agreed to look at the hotel room. When he said he would sleep at a friend's place for the first two nights, she agreed to stay.

¶ 24      Curling stated in her evidence that, during the first two days in New York, Torimiro took her around town and, to her surprise, he bought presents for her family.  On the third night, he insisted on staying in the room because the presentations were scheduled for the next day.  Curling testified that Torimiro did not behave inappropriately that night and that the following morning, she attended the meetings, and then took an early flight home.  She had been scheduled to stay until the next day but went home to avoid spending another night in the same hotel room as Torimiro. When she got home, she spoke to Sulph, who told her that Torimiro had not called her from New York to tell her about the hotel room.

¶ 25      Curling testified that, the next day at work, Torimiro gave her the presents that he had bought for her family, telling her that he planned to be a member of the family soon, and pressing up against her as he spoke.  Curling was so upset that she went to the bathroom and vomited.  She testified that she vomited because she blamed herself for staying in New York and because she realized that he had not changed and that she did not know how to deal with the situation.  She stayed home from work for several days that week and began working at home as often as she could.  She did not want to quit after only a couple of months, and hoped that she could stay with the job long enough to use it in her application for a Masters in Business Administration program. Also, at this point, Torimiro owed her back wages for two weeks, as well as for the cost of a car which he had rented in New York on her credit card.  She did not want to walk away from the job while she was owed money.

¶ 26      After the New York trip, Curling became very distressed and pre-occupied with the situation with Torimiro. She had begun to confide in Abdul Yassini, the plant manager, about her difficulties with Torimiro.  In late September or early October, she again confided in Sulph about her now extreme discomfort.  Curling testified that Sulph spoke to Torimiro afterwards about his conduct towards Curling.  The next week, Torimiro became rude and distant towards Curling, criticizing her severely for something that she did not do. Curling stated that through the rest of September and October, his behaviour alternated between "coming on" to her and, at other times, being angry or cold towards her, with no middle ground.

¶ 27      It was Curling's evidence that, during this period, Torimiro would try to kiss her on the mouth or would press up against her in the office, once or twice a week.  He often made comments about her body, telling her that her body was an "entrapment" and that it was only normal for him to need to touch her.  At one point, she testified that she was so uncomfortable that she started crying.  Another time, she told him that his conduct "bordered on harassment", but he replied that he loved her, and that she could go ahead and call the Human Rights Commission.

¶ 28      Curling testified that she finally decided to give him an ultimatum.  She told Torimiro that if he did not stop touching her and trying to kiss her, she would quit.  He told her that he would stop, but according to Curling's evidence, two days later he pushed up against her again and touched her buttocks with his hands.  The next week, apparently after two more touching incidents, Curling resigned from Victoria Tea.  She left a resignation letter on Torimiro's desk on a Sunday evening.  Curling was asked by her counsel if she had ever expressed a romantic interest in Torimiro, to anyone.  She testified that she had not.  She was asked if she was aware of other women who had been experienced similar treatment by Torimiro.  She testified that she spoke to another woman, named Razacka, when she attended a Ontario Labour Relations Board (OLRB) hearing on February 1995, to try to collect back wages from Torimiro.  Razacka and Yassini were also claimants before the OLRB.  Curling testified that Razacka told her that she had also been harassed by Torimiro.

¶ 29      The final area of Curling's testimony concerned the impact of the discrimination on her.  Curling testified that her experience at Victoria Tea had changed her.  She is, as a result, a more reserved person, who tries "to keep her private life very private".  She testified that she is "extremely uncomfortable with getting attention" and with comments about her personal appearance.  She stated that it has affected the way she dresses, the way she interacts with people, and that it is difficult for her to explain her reservations even to people close to her.

¶ 30      Curling testified that, at work, she always tries to avoid being alone with a male supervisor and stays away from personal conversations.  She stated her goal is to have a work situation with as much autonomy as possible.  This is one reason why she is currently studying architecture: she believes this is a career where she can be independent because, in her words, she does not "trust as much in the employee-employer relationship".

¶ 31      Curling testified that Torimiro's conduct had a greater impact on her when she learned, after she filed her complaint, that he was telling people that he would destroy her and her family.  She also stated that, after the hearing began, she learned from Commission counsel that Torimiro had implied to her that Curling's father had had several affairs and had an incestuous relationship with her.  She testified that she was devastated to learn that Torimiro was saying these things about her and her family and that it made the hearing very difficult for her.

¶ 32      Curling's evidence on these two points was hearsay.  Curling did not testify as to how she became aware of the threats which Torimiro allegedly made in 1994, when the complaint was filed, nor did I hear direct evidence from Commission counsel as to Torimiro's alleged comments after the hearing began.  Accordingly, I will disregard this evidence in assessing the impact of the discrimination on Curling. Nonetheless, I accept Curling's testimony that the hearing was very difficult for her as this was apparent from the manner in which she gave her evidence.  She testified that she was afraid to see Torimiro and is still afraid of seeing him.  She testified that she lost weight during the July hearing dates and was unable to eat or sleep.

¶ 33      With respect to her more tangible losses, Curling claimed an amount for her unpaid wages and vacation pay still outstanding after the OLRB order awarding her $1742.16.  She estimated that 20-30% of the award remained unsatisfied.  As well, she claimed damages for one month's wages, amounting to $2000 after taxes, on the basis that she was unable to obtain a new position until about one month after leaving Victoria Tea.  She also claimed her legal costs as a result of retaining her own counsel for this hearing.  She stated that she was paying counsel $1000 a day for attendance at this hearing, and had paid a retainer of $2000 in respect of a civil action which Torimiro commenced against her after the hearing began.

¶ 34      The civil action against Curling is the basis for the allegation of reprisal which was added to this matters at issue in this proceeding by my interim order of September 30, 1999.  On October 22, 1999, Curling gave evidence with respect to the allegation of reprisal.  She testified that Torimiro personally served her with a Statement of Claim in the Board's hearing room during a break in her cross-examination in July. In that document, Torimiro claims the sum of $1,500,000 as damages for "slanderous and defamatory statements in her [Curling's] complaint to the Ontario Human Rights Commission". Curling testified that Torimiro threw the Statement of Claim across the table at her, and that she felt violated and burst into tears.  She testified that, after that, she felt so intimidated about facing Torimiro that she felt that she had to retain her own counsel.  Her Statement of Defence in the civil action was introduced as an exhibit.

¶ 35      During her evidence, Curling was shown copies of two letters, dated August 23 and 27, 1999, sent to her counsel and the Commission, respectively, after service of the Statement of Claim.  The letters were entered as exhibits and excerpts from the letter to the Commission are in my interim order and form part of the basis for my direction that Torimiro be limited in his direct contact with Curling and her witnesses.  Torimiro writes that he is "sending a direct warning to the commission and to all persons involved in this matter on behalf of the complainant".  He also states that the Commission is seeking to have witnesses perjure themselves. The August 23rd letter, faxed to her counsel, threatens to bring civil actions against Yassini, Sulph and Hykoski. Curling testified that she was shown both letters at the time of receipt.  The letters made her "feel that he was stepping up the pressure" and that she was very upset and "did not know how far he would go".  She stated that she did not know if she wanted to go on with the hearing after reading the letters. With respect to her witnesses, she stated  that "people were trying to do the right thing and he was going after them". She testified that she became depressed and did not see the point of continuing the hearing.  She told her lawyer not to show her any more letters from Torimiro because she felt that he was trying to intimidate her and she did not want to know what he was saying.

¶ 36      Torimiro cross-examined Curling for part of one day.  Much of her testimony in cross-examination dealt with the lay-out of the plant/office and the lay-out of his apartment and the condominium building.  She was asked detailed questions about what could be heard or seen from different areas of the office and plant.  She was asked about her personal appearance in 1993; about whether she wore a hearing aid in 1993; about her first meeting with Torimiro; and her prior work experience.  She was asked if she knew what testimony Abdul Yassini would give at the hearing, as well as what she expected several of Torimiro's proposed witnesses would say in their evidence.  She was asked whether she recalled when he first touched her buttocks.  She testified again about the incident in Sulph's apartment in late August, but stated that she was not sure if this was the first time he touched her in that way.  None of her evidence in cross-examination contradicted her testimony in chief.

Deone Curling

¶ 37      Deone Curling ("Deone") is the complainant's older sister.  She testified that she is a mental health counsellor at a community health center.  In the summer of 1993, she was working as a counsellor for emotionally abused children and living in Markham with her mother, while Nicole lived in Scarborough with her father.  She testified that she and Nicole talked on the telephone every day and saw each other frequently on the weekends.

¶ 38      Deone's evidence was consistent with that of her sister in every instance.  She gave evidence about the role of Sulph in introducing Torimiro; the particulars of the initial meeting, including Torimiro's offer of a clothing allowance; Curling's initial excitement about her position; the growing impact of Torimiro's conduct on her sister's emotional state; the fact that Torimiro threw the Statement of Claim across the hearing table at Curling.

¶ 39      Deone testified that, after the first few weeks of employment, her sister began to complain that she was uncomfortable about the fact that Torimiro wanted to have lunch with her often and wanted to play tennis or squash after work.  Deone helped her sister think of excuses to avoid Torimiro, but did not realize the extent of her sister's discomfort around Torimiro until one evening when Sulph invited the three of them to her home.  Deone testified that it was obvious that Curling did not like being around him. She stayed upstairs, saying that she had a headache, and did not eat dinner.

¶ 40      Deone testified that her sister began to tell her that Torimiro "always wanted to hug and kiss her".  She said that Torimiro kept saying that they "should get together" and run the business as a couple.  Deone testified that, after the New York trip, Curling told her that things were terrible at work, and that Torimiro was chasing her around the office, trying to touch her buttocks.  She testified that Curling cried when she talked about what Torimiro was doing to her; that she did not want to go to work and became very depressed. Eventually, Deone testified, Curling could not sleep or function normally at all and had no choice but to quit her job.

¶ 41      Deone testified that Curling was very depressed for one month after she left Victoria Tea and became extremely depressed and stressed again when this hearing began and was not able to sleep or eat.  Deone became afraid for her sister. She testified that Curling screamed and cried after attending the hearing, and thought that her life was threatened, particularly after Torimiro threw the Statement of Claim across the hearing table.  Deone stated that Curling was "scared for her life" and that she, Deone, was also scared of seeing Torimiro.  She testified that Torimiro had had an effect on her whole family, by hurting her sister so deeply; because of "the disgusting things" he was saying about their father; and because of the financial strain.

Abdul Yassini

¶ 42      Yassini testified that he worked for Victoria Tea from May 1993 to August 1994, first as a shipper/receiver and later as production manager, supervising 2 - 6 people at the packing machines.  He spent most of his working day in the plant located in the same building just behind the offices, but he walked through the office space six or seven times a day.  He remembered being introduced to Curling when she started work; she looked so young that he thought she was just a high school student hired for the summer.  Yassini testified that Torimiro later introduced Curling as his "right hand" person, hired as a management assistant to whom other staff were to report.

¶ 43      Yassini and Curling began to chat from time to time.  Yassini testified that eventually Curling began to talk to him about Victoria Tea, about why it was not paying its creditors, and about Torimiro's behaviour towards her. Curling told him that Torimiro came too close to her and touched her.  Later, she told him that he was kissing her good morning.  Yassini testified that Curling said that she had told Torimiro that she did not like to be kissed and that Torimiro had replied that it was "cultural".  Yassini testified that Curling was upset when she told him about what Torimiro was doing to her.

¶ 44      Yassini's evidence as to what Curling told him while they worked together was consistent with Curling's testimony.  In addition to telling him about the kissing, he testified that she said that she had spoken to Sulph about the problem and later she told him about the hotel room in New York.  He testified that she was very upset and angry when she told him about New York.  Later, Curling told him that she was going to give Torimiro an ultimatum over lunch.  Yassini testified that she cried when she told him about her plan to confront Torimiro.  Yassini stated that, afterwards, when Torimiro did not change his conduct, Curling told him that she realized that she had to quit, and that she believed that Torimiro would eventually fire her if she did not.

¶ 45      Yassini testified that he once saw Torimiro kiss Curling as he came into the office in the morning.  He also gave evidence about another incident that he had observed. Yassini walked into the office area and saw Curling pressed up against a window, standing on her toes, with Torimiro standing very close to her.  Torimiro had apparently not seen Yassini. Yassini testified that, as he entered the room, he heard Curling say: "Alex please let me go".  He described Curling as sounding definite but "shaky", testifying that her voice was "not smooth".  He testified that Torimiro stepped away when he realized Yassini was there and that Curling left the room, looking down and without saying anything.  After Curling left, Yassini stated that he overheard Torimiro say to Patrick Henry, who was in the next office, that "the only good thing about Nicole is her ass".

¶ 46      In response to an issue raised by Torimiro, Yassini was asked if Curling had ever tried to sell fundraising tickets for her father at Victoria Tea.  He testified that she did not.  Yassini was asked if Curling had ever expressed a romantic interest in Torimiro.  He stated that she had not.  He testified that, after Curling quit, Torimiro told him that Curling had been "after him".  He was asked if he knew why Curling had not quit earlier, and he testified that she told him it was because she respected Sulph and also was worried about how it would look on her resume.

¶ 47      Yassini was asked if he knew other employees whom Torimiro had treated in a similar way.  He testified that two other women, who had worked for Victoria Tea after Curling, had told him that Torimiro had asked them out.  The names of these two women were Razacka and Michele.

¶ 48     Finally, Yassini was asked about the circumstances under which he stopped working for Victoria Tea. He stated that he quit his job because he had not been paid for two months.  He was initially owed $7000, but was paid $5000 through the OLRB after the hearing in 1995.  He obtained a similar position at another company, and eventually that company started doing packing for Victoria Tea.  Yassini testified that, after he left the other company in 1998, Torimiro contacted him to ask if he was interested in working for him.  Yassini told him that he was not, but agreed to fix Torimiro's machines from time to time if he was paid for the work.  He did work for Torimiro three times.  The last time was four months before he gave evidence and he was not paid on that occasion.  Yassini testified that, when the hearing began, Torimiro telephoned him to talk about the case and about Yassini's 1994 statement to the Commission.  Torimiro promised to pay Yassini the money he owed him and told Yassini that if he lied at the hearing, he would go to jail.  Torimiro also told him that the reason the complaint was going forward was that Curling had seen Torimiro with his wife.

Hyacinth Sulph

¶ 49      Sulph is a flight attendant and a community social worker who owns and operates homes for the psychiatrically disabled and seniors.  She testified that she knew Curling through Curling's father and that she had met Torimiro in the 1980's.  She testified that Torimiro was a friend, but "not a good friend", and that she introduced Gillian Patterson, a close friend, to him as a potential employee in the late 1980's.  At the time, Torimiro was operating a company called Sonap Canada ("Sonap") and he hired Patterson as a receptionist.

¶ 50      Sulph testified that Patterson was happy with the position at first but later told her that Torimiro was avoiding creditors and was behind in the employees' pay cheques.  Patterson also told Sulph that Torimiro was touching her and harassing her at work.  Sulph testified that she spoke to Torimiro about it and he said that Patterson was lazy and would be fired.  Sulph testified that she did not give the incident too much thought, partly because, as a flight attendant, unwanted touching was part of the job.  She lent Patterson some money and she lost contact with Torimiro.

¶ 51      Sulph testified that she next came across Torimiro on a flight in 1993.  He told her how successful his new company was and that he was looking for people to work with him to promote the business.  Sulph told him about Curling.  Sulph had recently hired Curling to do some public relations work for her.  Sulph's evidence about the introductory meeting was consistent with that of Curling and Deone.

¶ 52      Torimiro told Sulph, during Curling's first few weeks of employment, that he was very pleased with her performance.  Sulph saw Curling about twice a week over the summer.  After the first month or so, Sulph heard from Curling that Torimiro was avoiding his creditors.  About the same time, Curling told Sulph that Torimiro always wanted her to have lunch with him.  Sulph testified that, afterwards, Curling told her about Torimiro touching her, but said that she would handle it herself and that she thought that he was just friendly.

¶ 53      According to Sulph's evidence, Curling eventually told her that Torimiro was touching her often, "especially her bottom".  Curling also complained that he was "digging into her personal life".  It was apparent to Sulph that Curling was very uncomfortable.  She offered to speak to Torimiro and did so.  She testified that Torimiro promised to stop, said he was sorry and that it was "the African" in him.  He told her that African men like a "big butt" and that he could not control himself.

¶ 54      Sulph testified that Torimiro convinced her that he was madly in love with someone else, a married woman. Partly for this reason, she believed Torimiro was sincere in saying that he would stop bothering Curling.  However, she saw him touch her on the buttocks on a later occasion, at her apartment, when she turned around suddenly.  She testified that she spoke to Torimiro about it right away, after Curling became very upset and went upstairs.  Sulph testified that Torimiro said: "What do you expect with that beautiful bottom. The African in me cannot leave it alone."  Sulph testified that she was very angry with Torimiro and spoke to him for a long time about his behaviour.  She then went upstairs and spoke to Curling, telling her to be careful with Torimiro. Sulph testified that, once again, she thought Torimiro would change his behaviour because she had been so definite with him.  Around this time, she lent him $15,000, to pay his employees, because she wanted to keep the company afloat.  She stated that Torimiro never signed a loan agreement and never paid her back the money, although he did phone her and say he would pay after Curling's complaint was referred to the Board for a hearing.

¶ 55      Sulph gave evidence related to the New York trip which was consistent with Curling's testimony.  She stated that she drove them to the airport; gave Torimiro a warning about having hotel rooms on different floors; and that Torimiro did not phone her from New York.  Sulph testified that, after Curling told her about the single hotel room, she spoke to Torimiro about his behaviour on the trip.  She stated that, afterwards, she heard from Curling that Torimiro was treating her badly at work and that he did not stop touching her.  Eventually, it was obvious to Sulph that Curling had to quit her job and she told her so.

¶ 56      In 1998/99, Sulph became friendly with a receptionist who worked for Torimiro after Curling, Sharon Hykoski.  Sulph began chatting with Hykoski when she phoned Victoria Tea to try to collect her $15,000.  Eventually Hykoski gave Sulph her home telephone number.  Sulph testified that Hykoski told her that Torimiro had initially loved her work but then began to criticize her when she did not want to be "very friendly" with him.  Sulph asked Hykoski if she would speak with the Commission and she agreed to do so.

Sharon Anita Hykoski

¶ 57      Hykoski was employed by the Torimiro Corporation from December 1997 to March 1998.  She was referred by a Canada Employment Center and interviewed by Torimiro for a position as an administrative assistant.  She was 22 years of age and was initially impressed with Torimiro whom she described as "very professional, very nice, very well-spoken". Later he began talking to her about how active his "sex life" was; about the sexual affairs of other employees; about how attractive she was; about an ex-employee who had "wanted him"; about how she should dress in skirts and dresses.

¶ 58      After a short time, Torimiro promoted Hykoski to the position of Sales and Marketing Manager.  He began to take her to trade shows, and told her that her good looks were drawing people to his product.  She testified that, on a couple of occasions, he put his arm around her, and once went to her side of her desk and kissed her on the cheek.  She testified that she was happily married and did not really need the job. She paid little attention to Torimiro's inappropriate conversation and just ignored the kiss.

¶ 59      Near the end of her employment, Torimiro asked Hykoski to hire someone to replace her as administrative assistant.  She testified that he told her that she was to find someone "pretty like you".  He refused to hire the applicant recommended by Hykoski on the basis of her skills. He asked about the woman's appearance and then did not hire her on the basis that she was overweight.  In February 1998, he hired a friend of Hykoski, Melissa, who badly needed work but could barely use a computer.  He only asked about her personal appearance before hiring her.  Shortly after, in March 1998, he fired Hykoski on the basis that her performance had deteriorated.

¶ 60      Hykoski testified that she kept in touch with her friend, Melissa, who worked for Torimiro for about four months and during that time was promoted to the Sales and Marketing position.  She stated that Melissa told her that Torimiro "tried to kiss her on many occasions" and pinned her against the wall and fondled her before she quit.

Alison Hall

¶ 61      Hall was the complainant in a previous human rights proceeding in which Torimiro is named as a respondent. That hearing led to a 1989 decision of the Board finding that Torimiro had sexually harassed Hall when she worked for him at a company he owned and operated called Sonap Canada: Hall v. Sonap Canada (1989) 10 C.H.R.R. D/6126.  The events which gave rise to that complaint are reported in the decision.  Hall testified as to the long term impact of harassment which she experienced.  Her job with Torimiro's company, Sonap, was her first full time position.  She was 21 years old at the time and employed as a trainee under a Government of Ontario program to assist young people entering the job market.

¶ 62      Hall testified that, after she quit her position with Sonap, she felt vulnerable and helpless, and became reserved and less trusting of people.  She testified that she worked for women in her next two positions and that this made her more comfortable.  She stated that she wanted to work for herself, if possible, in the future, because that would be more "hassle-free".

¶ 63      Hall stated that she has not received the monies awarded to her in the 1989 decision.  She kept in touch with the Commission for about four years, and was told about the enforcement steps taken, but has now given up any hope of collecting her award.

Mollie Kermany

¶ 64      Kermany is a legal clerk employed by the Commission since 1989.  She is responsible for the enforcement of Board orders where there is non-compliance.

¶ 65      Kermany stated that sexual harassment and solicitation cases form approximately 60% of the files which come to her for enforcement.  Virtually all of the outstanding harassment/solicitation collection files involve sole proprietorships or small businesses, where an owner, president or manager is directly or indirectly involved in the offending conduct and the company has few if any assets by the time the enforcement process is underway.

¶ 66      Kermany testified that the oldest unenforced order is against Torimiro in the Hall v. Sonap decision.  She traced the history of the Commission's enforcement efforts, and testified that Torimiro had told her that he would use every means to evade payment.  She testified that Victoria Tea was still an active company as of July 20, 1999, but that to her knowledge neither the company nor Torimiro himself had any assets.

FINDINGS OF FACT

¶ 67      Based on the testimony of Curling, Yassini and Sulph, which I have found to be credible, I conclude that Torimiro engaged in a course of conduct in respect of the complainant which included sexual touching and kissing and the persistent pursuit of a sexual relationship.  I find that Torimiro was told by both Curling and Sulph that his advances were unwelcome, and that he engaged in retaliatory behaviour, treating Curling coldly and unfairly at work, when his advances were rejected.  In addition, I find that Torimiro created a workplace atmosphere which was uncomfortable for the complainant by, for example, commenting frequently on her clothing and her body; by making excessive demands on her to spend time with him at work and outside the office; by repeatedly discussing his own sexual relationships and those of Curling's co-workers; and by asking her personal questions, including whether or not she was dating.

¶ 68      Further, I find that Torimiro served Curling with a Statement of Claim seeking $1.5 million for damage to his reputation arising out of this complaint and did so in a manner that was intended to intimidate her.  I find that Torimiro made threatening statements in correspondence, which statements were intended to discourage Curling, and her witnesses, from participating in this hearing.

¶ 69      I note that it was unnecessary to rely on the testimony of Deone Curling, or on the similar fact evidence offered by Hykoski, in making my findings of fact.  There was also no need to consider the findings made against the personal respondent in the Hall v. Sonap decision, which included the acceptance of similar fact evidence that Torimiro had sexually harassed two women other than the complainant Hall, named Lisa Barras and Barbara Beggs.  Further, in making my findings of fact, I gave no weight to the hearsay evidence of Curling, Yassini, Hykoski or Sulph attesting to other instances in which Torimiro is alleged to have behaved in a similar fashion towards other women, named as Razacka, Patterson, Michele and Melissa.  The direct and credible evidence of Curling, Yassini and Sulph provided me with a firm and sufficient basis for making the requisite findings of fact in respect of this complaint.  However, the Hall v. Sonap decision, the testimony of the expert witness, summarized below, as well as the direct evidence of Hykoski, Hall, Deone Curling and Kermany, will all be relevant to a determination of the appropriate remedies to be ordered.  As well, the hearsay evidence indicating a pattern of conduct may be relevant in considering appropriate non-monetary remedies.

EXPERT EVIDENCE

Sandy Welsh

¶ 70      Welsh is an Associate Professor of Sociology at the University of Toronto who has specialized in research on sexual harassment and is recognized as a leading expert in the area.  Welsh testified as an expert witness on workplace harassment at the 1997 Ontario Coroner's Inquest into the deaths of Teresa Vince and Russell Davis: Verdict of Coroner's Jury, December 2, 1997. [See Note 1 below]  Notably, she has recently completed a study, funded by Status of Women Canada, of all sexual harassment complaints filed with the Canadian Human Rights Commission during the 17-year period from 1978 to 1995.

   Note 1:  Vince was murdered at work by Davis, who then killed himself.  Davis was Vince's supervisor and was found to have been subjecting her to unwanted attention for many years.

¶ 71      Counsel submitted that, in making findings of law and in assessing appropriate remedies, the Board should consider Curling's experience in the broader context which was the subject of Welsh's evidence.  I note that Welsh's testimony was not subject to cross-examination.  In summarizing her evidence below, I have considered her publications entered as exhibits [See Note 2 below].

¶ 72      The key points in Welsh's evidence can be summarized as follows:

   Note 2:  Gender and Sexual Harassment.  Annual Review of Sociology. 1999.25:169-90; Not Taking it Anymore: Women Who Report or File Complaints of Sexual Harassment, Canadian Review of Anthropology. December 1999; The Multidimensional Nature of Sexual Harassment: An Empirical Analysis of Womens Sexual Harassment Complaints (Forthcoming - Feb. 2000) .

   Note 3:  The studies relied upon by Welsh document that only 5% of men experience sexual harassment in the workplace.  In the discussion below, the victims that are the subject of the reported studies are overwhelmingly or entirely women.

¶ 73      Welsh described the history of Curling's experience at Victoria Tea as fairly typical.  The sexualized climate of the workplace, where explicit discussion of sexual relations was common, created an atmosphere in which it was more difficult for Curling to identify appropriate boundaries of behaviour and to complain.  Curling's coping strategies, such as working at home and soliciting the assistance of Sulph, her physical symptoms, such as nausea and eventually weight loss, and the psychological impacts, including depression and inability to sleep, were also consistent with the patterns demonstrated by research.  Welsh testified that in her view Curling had no choice but to leave her employment at Victoria Tea.

¶ 74      Welsh also gave evidence about the pattern of behaviour that emerged from the evidence of the prior witnesses and the Hall decision.  She described Torimiro as a repeat offender, who did not recognize his responsibility and who engaged in a pattern of escalating behaviour.  With reference to Hall and Curling, Welsh noted that Torimiro appeared to target young women at the beginning of their working lives, who were vulnerable because they needed the work, for financial reasons and in order to gain the experience to launch a career.

FINDINGS OF LAW

¶ 75      The Commission is seeking a finding that the respondents have infringed the rights of the complainant in contravention of the sections 5(1), 7(2), 7(3)(a), 8 and 9 of the Code, set out below.  I have added section 7(3)(b) and the definition of harassment in section 10(1).

Sex/Gender Discrimination, Sexual Harassment, Sexual Solicitation

¶ 76      This is not a case in which the conduct of a respondent is neatly captured as a violation of a single section of the Code.  Torimiro's behaviour towards Curling infringed her right to be free from sex/gender discrimination, sexual harassment and sexual solicitation in employment. From the beginning of Curling's employment at Victoria Tea, Torimiro created an uncomfortable workplace environment for Curling, poisoned by, for example, his talk of past and present sexual relationships, his questions about whether or not she was dating, his unusual attention and persistent invitations to spend time alone with him outside the office, his wardrobe advice, his gift of a skirt and so on.  Torimiro treated Curling differently as an employee because of her gender.  If his behaviour had not gone on to more explicit forms of harassment, it is very doubtful that he would ever have faced a human rights complaint from Curling, but his conduct would still have infringed her right to be treated equally in employment without regard to her gender.  Based on my findings of fact, I hold that the personal respondent violated the right of the complainant, under s. 5(1) of the Code, to be free from gender discrimination in employment.

¶ 77      On the basis of the expert evidence before me, I find that the creation of a poisoned or sexualized work atmosphere had the effect of increasing the vulnerability of Curling to more direct sexual advances by blurring the lines of appropriate conduct, particularly for her as a young woman in her first job.  Curling's testimony supports this interpretation.  She stated that, during the first several weeks of employment, she questioned her own aversion to Torimiro's attentions, including his hugs and kisses.  When she spoke to him about his behaviour, Torimiro told her that she should relax and she took this suggestion seriously, waiting until his touching became more sexual before she sought outside help and advice.

¶ 78      I hold that Torimiro's behaviour towards Curling after her first few weeks of employment, particularly the unwanted touching, kissing and his comments about her body, constituted sexual harassment in violation of s. 7(2). Further, Torimiro's persistent pursuit of a sexual relationship with Curling, who was his employee and who, to his knowledge, did not want a relationship, constituted sexual solicitation in violation of s. 7(3)(a).  Torimiro's conduct towards Curling can be described as "relational advances" as that term was used by the Commission's expert witness.  When Curling rejected Torimiro's advances, and asked Sulph to make that message clearer to Torimiro, he retaliated by treating her coldly at work, getting angry and blaming her for mistakes she had not made, in violation of s. 7(3)(b).

Reprisal

¶ 79      I find, based on the Statement of Claim for $1.5 million, its manner of service on the complainant, and based on the correspondence of the personal respondent dated August 23 and 27, 1999, that Torimiro has infringed Curling's right, under s. 8 of the Code to claim and enforce her human rights without reprisal or fear of reprisal.

¶ 80      It would be against the public policy expressed in the preamble to the Code for a complainant to be vulnerable to a civil proceeding on the basis of his or her filing of a human rights complaint.  Curling had a statutory right to file her human rights complaint and, under the legislative scheme, it was the decision of the Commission, not Curling herself, that the complaint would be referred to the Board for a hearing.  I have found that the complaint was well-founded.

Corporate Liability

¶ 81      Pursuant to s. 45(1) of the Code, a corporation is deemed liable for any act of "an officer, official, employee or agent" in violation of the legislation, with some exceptions.  Two of the exceptions are relevant to this complaint.  A corporation will not be deemed liable under s. 45(1) for conduct which contravenes s. 5(2) (sexual harassment) and s. 7 (sexual solicitation).

¶ 82      However, human rights jurisprudence has held that a corporation can be held liable for sexual harassment and solicitation if the person responsible for the offending contact is a member of management or is part of the "directing mind" of the corporation: Wei Fu v. Ontario Government Protection Service (1985), 6 C.H.R.R. D/2797 (Ont.Bd.Inq.); Naraine v. Ford Motor Company Ltd. (1996), 28 C.H.R.R. D/267 (Ont. Bd.Inq.), upheld Ford Motor Company v. Ontario (Human Rights Commission) [1999] O.J. No. 2530 (QL) (Div.Ct.).

¶ 83      I find that The Victoria Tea Company is liable, under s. 45(1), for the discriminatory workplace atmosphere created by Torimiro in violation of the complainant's right to equal treatment in employment under s. 5(1).  Further, I find that The Victoria Tea Company is liable for the conduct of Torimiro, as its owner, director and manager, which has been held to constitute sexual harassment and solicitation in violation of s. 5(2) and s. 7.  Finally, I find that The Victoria Tea Company is liable for the acts of reprisal taken by Torimiro against the complainant, in contravention of s. 8.

¶ 84      Neither counsel for the Commission or the complainant made submissions on the corporate liability of The Victoria Tea Company or The Torimiro Corporation.  Although I have proceeded to make findings with respect to the liability of the former, I have not had the benefit of hearing from either counsel with respect to the liability of The Torimiro Corporation in respect of any of the violations. In these circumstances, I decline to make a decision at this time with respect to the liability of The Torimiro Corporation for the violation of s. 5, s. 7 and s. 8.

¶ 85      In the event that the Commission or the complainant is seeking an order against The Torimiro Corporation, the Board should be so advised by correspondence to the Registrar, copied to the respondents, and received no later than January 20, 2000, setting out the basis on which finding of liability is sought.  If the respondents wish to file responding submissions, such submissions are to be served and filed by February 10, 2000.

REMEDY

¶ 86      Counsel for the Commission requested that she be allowed a further period of time to obtain instructions from the Commission with respect to the reporting requirements which it is seeking in an order against the respondents. Submissions on the latter issue have already been made by counsel for the complainant.  Commission counsel also stated that she would be advising the Board as to whether or not the Commission would be proceeding to seek the consent of the Attorney-General to institute criminal proceedings under s. 44 of the Code.

¶ 87      Should the Commission wish to address either of these issues before issuance of a decision on remedy, this can be done by correspondence sent to the Registrar, served and filed no later than January 20, 2000.  I have allowed a considerable period of time because of the unlikelihood of counsel being able to obtain instructions promptly over the holiday period.  Should the complainant or the respondents wish to respond to the Commission's submissions, this can be done by letter to the Board served and filed by no later than February 10, 2000.

¶ 88     The decision on remedy will follow.

¶ 89      The Board remains seized of this matter.

QL Update:  20000111
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