HUMAN RIGHTS TRIBUNAL OF ONTARIO
______________________________________________________________________
B E T W E E N:
Marisa Valle
Applicant
-and-
Faema Corporation 2000 Ltd. and Mike Di Donato
Respondents
______________________________________________________________________
DECISION
______________________________________________________________________
Adjudicator:
Josée Bouchard
Date:
May 26, 2017
File Number:
2015-20944-I
Citation:
2017 HRTO 588
Indexed as:
Valle v. Faema Corporation 2000 Ltd.
______________________________________________________________________
APPEARANCES
)
)
)
)
Marisa Valle, Applicant
)
)
)
)
Faema Corporation 2000 Ltd. and
Mike Di Donato, Respondents
2
Emily Shepard, Counsel
Caterina Licata, Counsel
INTRODUCTION
[1]
This Application arises out of incidents that occurred while the applicant, Marisa
Valle, was employed full-time by the corporate respondent, Faema Corporation 2000 Ltd.
(“Faema”), from January 13, 2015 to May 6, 2015. The personal respondent, Mike Di
Donato, is the founder, President and sole shareholder of Faema. The personal
respondent prides himself in the success of Faema. He began the Faema business on
Davenport Road in Toronto more than 50 years ago, when he moved to Canada and
began importing coffee products from Italy. He was the first to offer the Faema brand of
coffee equipment in Canada. Faema sells and provides, among other things,
maintenance services for coffee machines, grinders, accessories, coffee and commercial
equipment.
[2]
Faema has grown since its inception and includes locations on Dupont Street in
Toronto and in Hamilton, Vaughan and Etobicoke. The personal respondent’s sons Rocco
Di Donato (“Rocco”) and Pat Di Donato (“Pat”) operate the Dupont location as an
independent business.
[3]
The applicant self-identifies as Roman Catholic. She was hired at the beginning of
January 2015 to work at the Davenport location for what she believed would become a
management position. She left her position at her former employment thinking this new
position would provide better opportunities for advancement. The fact that she has
customer service experience, a university degree in business administration from Italy
and is fluent in Italian and English were assets to working at Faema.
[4]
Little did she know that she would be subjected to inappropriate creed and gender
based comments by her employer, the personal respondent, and that she would be the
victim of reprisal. The applicant filed this Application on May 19, 2015 alleging
discrimination with respect to employment because of ethnic origin and gender identity
contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). At
the hearing, the grounds of ethnic origin and gender identity were amended to the grounds
of sex and creed and reprisal or threat of reprisal was added to the Application as
3
described below. The Tribunal held the hearing in this matter on March 15, 16 and 28,
2017 in Toronto.
[5]
I find that the personal respondent subjected the applicant to inappropriate sexual
and religiously-based comments amounting to sexual harassment and harassment based
on creed, and that he reprised against the applicant in violation of the Code. I also find
that the harassment and reprisal created a poisoned workplace environment that
culminated in the termination of the applicant.
PRELIMINARY MATTERS
[6]
At the beginning of the hearing the Tribunal addressed the following preliminary
matters:
a. The applicant’s request to add Mike Di Donato as a party;
b. The applicant’s request to amend the Application;
c. The respondents’ request for an adjournment;
d. The respondents’ request to dismiss the Application because a Ministry
of Labour (“MOL”) Decision, claim number 70154255-7, has
appropriately dealt with the substance of the Application.
[7]
I made oral orders in response to the requests at the hearing with full reasons to
follow. The reasons are provided below.
Request to Add Mike Di Donato as a Party
[8]
On January 27, 2017, the applicant advised the Tribunal that she was represented
by counsel. On February 8, 2017, the applicant filed a Request for an Order During
Proceedings (“RFOP”) requesting to add Mike Di Donato as a personal respondent.
Neither Faema nor Mike Di Donato personally filed a Response to the RFOP.
4
[9]
The applicant submitted that it was appropriate to add Mr. Di Donato as a personal
respondent as it would lead to the fair, just and expeditious resolution of the merits of the
Application. In support of this position, the applicant argued as follows:
a. The Application is based solely on the actions of Mike Di Donato;
b. Faema may not be in a position to remedy the harassment allegations;
c. The substance of the hearing would not be altered; and
d. The parties would not experience prejudice.
[10]
Counsel for the respondents submitted at the hearing that Mike Di Donato is the
President of Faema and was acting in its name. She argued that it was not necessary to
add Mike Di Donato as a personal respondent, as Faema is financially stable and will be
in a position to comply with any remedy awarded by the Tribunal.
[11]
The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that
when determining a request to add a respondent, the Tribunal should consider the
following three questions:
1. Are there allegations made that could support a finding that the
proposed respondent violated the Code?
2. If the proposed respondent is an individual and an organization is also
named, is there a compelling reason to include him or her as a
respondent?
3. Would it be fair, in all the circumstances, to add the proposed
respondent?
[12]
When considering the second factor set out in Smyth, the Tribunal has applied the
factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5
(“Persaud”). These factors focus mainly on whether the corporate respondent is
responsible for the conduct of the proposed personal respondent, and whether there is a
compelling legal reason for an individual to be named as a personal respondent. In
particular, there may be a compelling legal reason for an individual to be named as a
personal respondent if his or her conduct is a central issue in the case and extends
beyond implementing organizational policies or practices. A compelling legal reason may
5
also exist where the nature of the alleged conduct may make it appropriate to award a
remedy specifically against the proposed personal respondent if a Code infringement is
found. See Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO
14 at para. 42 and Persaud at para. 5.
[13]
I found that it would be fair to add Mike Di Donato as a personal respondent to the
Application. The Application includes allegations that Mike Di Donato made a series of
discriminatory comments and actions and used religious and sexist slurs toward the
applicant that could amount to violations of sections 5(2) or 7(2) of the Code.
[14]
Pursuant to section 46.3(1) of the Code, harassment under sections 5(2) and 7(2)
attracts personal liability but does not attract deemed liability by a corporate respondent
for the actions of its officers, officials, employees or agents. Even if liability could be
attracted to Faema in the event of a finding in favour of the applicant, for example on the
basis that Mike Di Donato was the directing mind of Faema, the fact that a
corporate respondent may also be jointly and severally liable for the conduct of its officers
or employees is not a basis to insulate the officers or employees from personal liability.
See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 34.
[15]
I also find that Mike Di Donato’s conduct is central to the Application as the
allegations relate to his comments and actions. I have considered the timing of the
applicant’s request to add Mr. Di Donato as a personal respondent. Although it would
have been preferable for the applicant or her counsel to have sought to add him as a
personal respondent sooner, I note that Mr. Di Donato was identified as the contact
person for the corporate respondent in the Application and he not only filed the Response
on behalf of the corporate respondent but represented them up until the date of hearing.
He has had effective notice of the allegations from the time Faema was served and has
effectively been participating in the proceedings throughout in his role as the principal for
Faema. He also raised no issue of prejudice either in response to the RFOP or during
submissions at the hearing.
6
[16]
In the circumstances, Mike Di Donato is added as a party to the proceedings and
the style of cause is amended accordingly.
Request to Amend Application
[17]
In the February 8, 2017 RFOP, the applicant also made a request to amend her
application.
[18]
The applicant requested that the Tribunal change the grounds of discrimination
from “gender identity” to “sex” and from “ethnic origin” to “creed”. The applicant submitted
that the request does not alter the allegations made in any way and is a formality to
properly frame the Application.
[19]
The applicant also requested the addition of the ground of reprisal to her
Application. She argued that the substance of these allegations are already contained in
the Application and addressed in the Response.
[20]
The respondents failed to file a Response to the request to amend the Application.
At the hearing, counsel for the respondents opposed the request to amend. She argued
that there are no allegations or particulars in the Application related to sex or women. She
maintained that the respondent is of the same religion as the applicant and there are no
allegations or particulars in the Application related to creed. She submitted that the
Application does not include particulars related to the ground of reprisal.
[21]
Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for
a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any
filing to be amended”.
[22]
In deciding requests to amend applications the Tribunal generally considers the
nature of the proposed amendments, the reasons for the amendments, the timing of the
request to amend and the prejudice to the respondents. See, for example, Dube v.
7
Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009
HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
[23]
I found that the Application should be amended as described in the RFOP.
[24]
The amendments to change “gender identity” to “sex” and “ethnic origin” to “creed”
do not change the allegations but ensure that the grounds more accurately reflect the
particulars contained in the Application. When filing her Application, the applicant did not
have the benefit of legal representation. The applicant selected the ground “gender
identity” to represent the discrimination she allegedly experienced as a woman. I find that
the ground “sex” more accurately captures the allegations. The applicant also chose the
ground “ethnic origin” but handwrote “(religion)” next to the ground to capture the
discrimination she allegedly experienced as a person of the Catholic faith. I find that the
ground “creed” more accurately captures the allegations.
[25]
I also find that the Application should be amended to include the ground of reprisal.
The substance of the allegation of reprisal is already contained in the Application and
addressed in the Response.
[26]
The respondents have not argued that they will be prejudiced by the amendments.
I find that there is no apparent prejudice to the respondents in granting the Request.
Request for an Adjournment
[27]
The respondents requested an adjournment of a few days because counsel had
only been retained the morning of the hearing and required time to prepare.
[28]
The applicant opposed the request for an adjournment, arguing that the
respondents have been on notice about this hearing since November 28, 2016 and have
not made compelling arguments to adjourn the hearing.
[29]
The Tribunal’s Practice Direction on Scheduling of Hearings and Mediation,
Rescheduling Requests and Requests for Adjournments states:
8
Requests for adjournments, particularly at the last minute, are a
significant impediment to fair and timely access to justice. Therefore, the
Tribunal will only grant adjournments in extraordinary circumstances
such as illness of a party, witness or representative. Absent exceptional
circumstances, the Tribunal will not grant adjournments, even when all
parties consent.
[30]
In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal
stated that it is not only the interests of the parties that must be considered in deciding
whether or not to grant an adjournment. The Tribunal is also obligated to ensure that
public resources are used effectively. For this reason, once a hearing has been
scheduled, parties have 14 days from the Notice of a Confirmation of Hearing to consult
with each other on alternate dates and to advise the Tribunal if no agreement can be
reached. Adjournments
after
this
period
are
granted
only
under exceptional
circumstances.
[31]
The Tribunal has held that a party’s decision to retain counsel after the hearing
has been scheduled is not an “extraordinary circumstance” justifying an adjournment
simply because counsel is unavailable or unprepared: Wilson v. York (Regional
Municipality), 2009 HRTO 2020, and Schenk v. OSAD, 2010 HRTO 446.
[32]
The parties were notified of the hearing date on November 28, 2016. Contrary to
the Tribunal’s Practice Direction, there was no timely request for an adjournment following
that notice.
[33]
On February 23, 2017, Mr. Di Donato wrote to the Tribunal to indicate that he
wished to attend only on the second hearing day. I note that at this point he was the sole
representative for Faema, and was also on notice of the request to add him in his personal
capacity. The Tribunal issued a Case Assessment Direction on March 6, 2017 warning
that if he did not attend the first day of the hearing, the Tribunal may proceed in his
absence.
[34]
The respondents’ sole reason for the adjournment request was to allow legal
counsel time to prepare for the hearing. Mr. Di Donato, both in his capacity as principal
9
for Faema and in his personal capacity, had sufficient time to retain counsel in advance
of the hearing but chose to disregard the Tribunal’s Rules of Procedure and to wait until
the morning of the hearing to obtain counsel. The request for an adjournment was denied.
The Respondents’ Request to Dismiss the Application because of a MOL
Decision
[35]
The respondents argued that the Application should be dismissed because there
is a MOL Decision, claim number 70154255-7, that has appropriately dealt with the
substance of the Application. The respondents maintained that they have already
compensated the applicant in compliance with the MOL Decision.
[36]
The applicant argued that section 45.1 of the Code does not apply as the MOL
Decision and the matter before the Tribunal are different. The MOL Decision only dealt
with termination pay while the matter before the Tribunal is about discrimination and
harassment based on creed and sex and alleged reprisal.
[37]
Section 45.1 of the Code states:
The Tribunal may dismiss an application, in whole or in part, in accordance
with its rules if the Tribunal is of the opinion that another proceeding has
appropriately dealt with the substance of the application.
[38]
In interpreting this section, the Tribunal is guided by two decisions of the Supreme
Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC
52 (“Figliola”) and Penner v. Niagara (Regional Police Services Board), 2013 SCC
19. This Tribunal has considered how these decisions impact the Tribunal’s interpretation
of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services
Board, 2013 HRTO 1298 (“Claybourn”).
[39]
In Post v. Stevens Resources Group, 2014 HRTO 1470 (“Post”), the Tribunal
reviewed these decisions and concluded:
10
According to Figliola and Penner, once it has been confirmed that
concurrent jurisdiction exists to decide the human rights issues, there are
three primary questions to consider in order to determine if another
proceeding has appropriately dealt with the substance of the Application.
These are:
1. whether there was an opportunity for the complainants or their privies
to know the case to be met and have the chance to meet it;
2. whether the previously decided legal issue was essentially the same
as what is being complained of to the Tribunal; and
3. whether it would be unfair to apply the doctrine of issue estoppel in
the particular circumstances of the case?
[40]
There is no question that a proceeding before an employment standards officer as
a result of a complaint under the Employment Standards Act, 2000, SO 2000, c. 41
(“ESA”) is a “proceeding” within the meaning of s. 45.1 of the Code: see Smith v. Singh,
2015 HRTO 887; Chen v. Harris Rebar, 2009 HRTO 227; James v. Kuehne &
Nagel, 2011 HRTO 2317; Windrem v. JF Moore Lithographers Inc., 2012 HRTO 785 ;
and Law v. Noonan, 2013 HRTO 437.
[41]
The Tribunal’s jurisprudence is clear that in making a determination of whether a
matter has been appropriately dealt with, the issue is not whether the applicant has
received the result and remedy that he or she was hoping for. The applicable criterion is
whether the other proceeding appropriately dealt with the substance of the Application.
See Sikorski v. Vaughan (City), 2015 HRTO 1740 at para. 15 and Taylor v. Hamilton
(City), 2013 HRTO 1591.
[42]
I found that the MOL Decision has not appropriately dealt with the substance of
the Application. The case before the MOL was about termination pay under the ESA,
above, vacation pay, unauthorized deductions and wage statements. There was nothing
before me to indicate that the MOL Decision considered and addressed the substantive
allegations of discrimination and harassment based on sex and creed during the course
of employment or reprisal by the respondents. Given the limited scope of the ESA claim,
11
I could not conclude that the MOL proceeding dealt with the substance of the
various Code-related allegations in the Application.
EVIDENCE
[43]
In addition to herself, the applicant called Francesco Puggione, a former employee
of the respondents. In addition to the personal respondent, the respondents called Paola
Catalano, a former employee of the respondents.
Respondents’ Request to Call Additional Witness
[44]
On March 16, 2017, after one day of hearing, the respondents informed the
Tribunal that they wished to call Franca Di Donato, the personal respondent’s daughterin-law who also worked as a receptionist at the Faema Dupont location, to testify to the
April 14, 2015 events.
[45]
The applicant opposed this request as Ms. Di Donato had not been identified as a
witness during disclosure, pursuant to Rule 17 of the Rules of Procedure. She argued
that she would be prejudiced by this late addition. The applicant also expressed concern
that the proposed witness is a family member of the personal respondent. Finally, the
applicant maintained that she may have presented her evidence differently had she
known Ms. Di Donato would testify.
[46]
I granted the request to add Ms. Di Donato as a witness. I ordered the respondents
to provide a witness statement to the applicant before the mid-day break to allow the
applicant to prepare for Ms. Di Donato’s testimony. I also restricted the testimony to the
events of April 14, 2015 for which Ms. Di Donato was present.
12
Credibility
[47]
This is a case where credibility and reliability of the evidence is key; the parties’
evidence differs in key areas and the determination of the issues turns largely on my
assessment of credibility.
[48]
In evaluating the evidence, I have given consideration to the following analyses
frequently cited in decisions of this Tribunal, see Kinanga v. Toronto (City), 2016 HRTO
577, at para. 63, and Marne v. Aptco Capital Corporation, 2014 HRTO 1756, at para. 11:
1. “When one is concerned with a witness's veracity, one speaks of the
witness's credibility. When one is concerned with the accuracy of a
witness's testimony, one speaks of the reliability of that testimony.”
Reliability is influenced by a witness’s ability to “accurately observe, recall
and recount” events. Credibility goes to the propensity to tell the truth or the
“sincerity” of the witness. See R. v. Morrissey (1995), 1995 CanLII 3498
(ON CA), 97 C.C.C. (3d) 193 (ON C.A.) at p.205
2. Credibility can be determined by evaluating whether the story provided
by the witness is consistent with the “preponderance of the probabilities
which a practical and informed person would readily recognize as
reasonable in that place and in those conditions:” see Faryna v.
Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)
3. In evaluating the credibility or reliability of evidence, one looks to a
number of interrelated factors such as its probability, logical connection with
other findings and support from independent evidence. In evaluating the
credibility of a witness, one looks to such factors as the ability to “perceive
and recall,” “level of candour or evasiveness” and “attitude towards the
parties.” See Visic v. Elia Associates Professional Corporation, 2011 HRTO
1230 at para. 54
4. “A finding of lack of credibility or reliability with respect to one aspect of
a witness’s testimony does not automatically render the entirety of the
witness’s evidence as incredible or unreliable.” See Visic, above.
[49]
Where it is necessary to resolve a conflict in the evidence in order to arrive at my
determinations, I have indicated my reasons for doing so below. The following are general
observations about the witnesses’ evidence.
General Comments on Credibility and Reliability
13
[50]
The manner in which the applicant gave her evidence appeared sincere and was
straightforward and logically coherent. The applicant provided detailed accounts of each
incident. She was able to recall the behaviour she experienced in a believable manner.
She discussed multiple incidences without confusion or hesitation. The applicant did not
exaggerate and her testimony was clear, precise, not contradicted, logical, plausible and
consistent. I find the applicant a credible witness.
[51]
The applicant also used diary entries made on the day of or up to five days after
incidents as an aide-mémoire. I find it unlikely that the entries were fabricated or invented
after the fact. The applicant testified that she did not write every occurrence in her diary
and I accept that the entries are coloured by the applicant’s account of the events and
cannot be seen as a completely accurate account of what occurred.
[52]
I do not find the personal respondent credible or reliable and, as such, give very
little weight, if any, to his testimony. The personal respondent’s testimony was evasive,
defensive and inconsistent both on its own and considered in the context of the testimony
of other witnesses, including his own witnesses. Much of the personal respondent’s
testimony was focused on justifying actions he denied taking, leading me to believe that
he had in fact taken such actions as described below. The personal respondent was also
uncooperative in cross-examination and did not provide direct answers to questions.
[53]
The personal respondent provided numerous inconsistent answers to simple
questions from his counsel and in cross-examination. For example, the word “Negri” is an
Italian word. When asked if he knew the word “Negri”, notwithstanding his fluency in the
Italian language, he answered he does not understand what that means. When asked
whether he had ever heard the word “Negri”, he testified that it means black and in his
view it is not a bad word. He testified that he did not know if “Negri” could be a bad word
for other people. He added that a Black person is called “Neri” or “Nero”. The personal
respondent later said that “Negri” means the continent of Africa. Notwithstanding the
implausibility of whether the personal respondent had an understanding of the meaning
of this word, which would go directly to his credibility, he was completely inconsistent in
his answers on this question making his testimony very unreliable.
14
[54]
In final submissions, the personal respondent’s counsel raised concerns about the
personal respondent’s capacity to hear the questions and to understand the questions in
English. I note that counsel only raised these issues after all the evidence was tendered.
[55]
There was nothing to indicate that the personal respondent’s hearing ability
impeded his capacity to fully answer the questions. The personal respondent did not notify
the Tribunal of any hearing impairment, he rarely asked counsel or the Tribunal to repeat
questions and he generally answered without hesitation. His answers, although often
vague and inconsistent, were usually relevant to the questions asked and I find that the
personal respondent’s demeanor could not be explained by his hearing ability.
[56]
I also find that the personal respondent’s ability to speak the English language was
not a barrier to answering questions. The personal respondent testified that he was proud
to be Canadian and to conduct his business at Faema in both English and Italian. The
Tribunal understood the personal respondent and there was nothing to suggest that
counsel did not. The personal respondent did not ask the Tribunal to provide an interpreter
even though the “Guide to Preparing for a Hearing Before the HRTO” clearly indicates
that such services are available. In fact, the Tribunal provided interpretation services in
English/Italian upon request for one of the witnesses and I am satisfied that the personal
respondent knew it could be made available to him. I find that the personal respondent’s
inability to answer questions with specificity and consistency was not related to problems
with the English language. See Brathwaite v. Komenda Contracting Corporation, 2013
HRTO 1979 at para. 8.
[57]
In my view, the other witnesses presented precise, plausible and consistent
evidence not only when considered on their own but when taken as a whole.
BACKGROUND
The Applicant’s Faith
[58]
The applicant testified that she is a member of the Roman Catholic faith and her
religion is very important to her; it has helped her go on with her life on many occasions.
15
She maintains that Mother Mary or the Virgin Mary (hereinafter “Mother Mary”) plays a
very important role in her life; she is like a second mother. This is particularly important
because the applicant no longer has her own mother. The applicant usually attends
Church on Sundays and when she does she takes the sacrament. She prays every day
and her first and last thoughts of the day are with God. She had asked the personal
respondent not to work on Sundays because of the tenet of her faith.
[59]
The applicant told the Tribunal that she has never used religious swear words
related to the Mother Mary or God and she believes that religiously-based swearing is a
bad sin.
[60]
The respondents did not challenge the applicant’s creed-based beliefs.
The Applicant is Hired by Faema
[61]
The applicant worked as a Team Member for another company prior to her move
to work for the respondents. She testified that she was introduced to the personal
respondent by a common friend, Patricia Botton, between the end of October and the
beginning of November 2014. The applicant was looking for a position that would allow
her to progress in her career. She was told the personal respondent was looking for an
employee who speaks Italian and could assist him in doing business with Italian
customers.
[62]
The applicant explained that she met the personal respondent in November four
or five times on Wednesdays as he wanted to know her better before hiring her. She
recalled that during those meetings, the personal respondent would ask her questions
about her professional experience in Italy, her customer service experience and her
private life, such as whether she was married with children. The applicant testified that
she told the personal respondent that she had married in a white dress in Church.
[63]
The personal respondent first denied having been introduced to the applicant
through a common acquaintance. He testified that he advertised the position and both the
16
applicant and Ms. Catalano applied in writing. He said that he first met the applicant at
the beginning of January 2015.
[64]
In cross-examination, the personal respondent testified he did not know that the
applicant and Ms. Botton were friends. He was adamant that it was not through Ms. Botton
that he met the applicant. However, the personal respondent later admitted to knowing
that Ms. Botton knew the applicant before she began working for Faema, but he could not
remember whether Ms. Botton had provided a reference for the applicant.
[65]
The personal respondent’s testimony was in direct contradiction with the witness
statement he provided for Ms. Botton in which he indicated that Ms. Botton introduced the
applicant as a potential employee of Faema. Although a witness statement was filed on
behalf of Ms. Botton by the respondent, she was not called to testify and no reasons were
provided for her absence or for the discrepancy between her witness statement and the
personal respondent’s evidence.
[66]
I do not find the personal respondent credible or reliable on these points and I
believe the applicant’s testimony that she had met the personal respondent numerous
times before joining Faema. I also believe that the applicant shared professional and
personal information with the personal respondent during that period.
[67]
It is undisputed that the applicant was offered a position and began her
employment on January 13, 2015 and that Ms. Catalano was hired at around the same
time for the same position.
17
The Applicant’s Responsibilities
[68]
The applicant began writing a diary on January 13, 2015. She testified that she
would write what happened in her diary either on the same day or shortly thereafter, up
to five days after the incidents.
[69]
The applicant testified that the personal respondent told her he was looking for a
person to manage the location on Davenport. This is also noted in the applicant’s diary
for the January 14, 2015 entry: “I understand he hired Paola [Ms. Catalano] for the same
position I was hired (manager of Davenport Rd. location)”.
[70]
The applicant also said that she had been told she was to work full-time at $13 per
hour. The applicant frequently asked the personal respondent to put the parameters of
the contract on paper so that she could sign a contract of employment but the personal
respondent always refused.
[71]
The applicant testified that after a few days at the Davenport location, the personal
respondent brought her to the Hamilton Faema location and asked if she wished to work
there for $12.50 per hour. The applicant reminded the personal respondent that she had
accepted the position at the Davenport location and indicated that she would never have
accepted a position in Hamilton. The applicant told the personal respondent that she
wished to sign an employment contract but he responded that he did not have one and
asked the applicant to stay at home the next day.
[72]
The applicant told the Tribunal that on January 19, 2015, she met with the personal
respondent for about 3 ½ hours and informed him that she no longer wished to work at
Faema because he could not keep his word. She recalled that the personal respondent
convinced her to stay by telling her he needed “a person tough like me”. The personal
respondent also told the applicant that she would get benefits after six months of
employment.
18
[73]
The personal respondent testified that he hires on a trial basis. He hired the
applicant and Ms. Catalano as general employees without titles and he insisted that he
never promised the applicant a managerial position.
The applicant and personal
respondent’s testimonies are consistent when describing the applicant’s employment
conditions: she was hired without a written contract in a position without a title and without
fixed assigned responsibilities.
[74]
Whether or not the personal respondent offered or promised the applicant a
managerial position is in dispute. The applicant was consistent throughout her testimony
that Mr. Di Donato had offered her a managerial position, and I find it more probable than
not that she would be willing to leave her former position, which she liked, largely for the
promise of a position that would allow her to progress in her career. I believe that the
personal respondent told the applicant she would manage the Davenport location at some
point.
Religious Swearing Related to the Mother Mary
[75]
The applicant testified that starting on February 2, 2015 her position mainly
consisted of taking the inventory at the Davenport location. She remembered, and noted
in her diary, that on February 17, 2015, there was no heat in the Davenport location and
she worked with coats and gloves on. She also had a fever that day. She recalled that
the personal respondent looked at her and said: “Look how you are dressed! You look
like Mother Mary!”. It was the applicant’s view that this was not a compliment and that the
personal respondent was comparing her to someone who is sad, the Mother Mary,
because she has lost her son. The applicant did not say to the personal respondent that
she was offended but she justified what she was wearing by responding “Well me, I am
coming to work with fever and it’s really cold in here”.
[76]
The applicant observed that the personal respondent often referred to Mother Mary
when he was angry, either with customers, his sons or with her. She explained that the
personal respondent did not swear unless he was angry. When angry, he would regularly
compare Mother Mary to a pig in Italian (“porca Madonna”). Toward the end of her
19
employment, the applicant recalled that the personal respondent would use swear words
related to the Mother Mary about three out of four times when he spoke to her. She
observed that she would always tell him how inappropriate she found that language. She
noted that he never changed his attitude and continued to regularly swear by referring to
the Mother Mary in vain. These events are described in the applicant’s diary.
[77]
The applicant testified that she did not think she had to tell the personal respondent
the impact that his language had on her. In her view, there was no question that the
personal respondent knew she was Roman Catholic. Before beginning her employment,
she had told him that she got married in a white dress in a Church. The applicant had
also made it clear to the personal respondent that she does not work on Sundays.
[78]
The applicant testified that Roman Catholics sometimes use religiously based
swear words related to Mother Mary to emphasize what they are saying. In her view it is
very offensive particularly for women because the expression is clearly directed at
women. She noted that she prayed for the personal respondent and asked for forgiveness
for him when he swore as he was not aware of whom he was offending.
[79]
Mr. Puggione testified that he worked for Faema from April to December 2015. He
was brought in from the Davenport location to the Dupont location at the beginning of his
employment and regularly worked with the applicant. Mr. Puggione is Catholic and
believes in God. He observed that the personal respondent would often come to the
Dupont location to assign tasks to his employees. Mr. Puggione recalled that he heard
the personal respondent use religiously based swear words related to God and the
Mother Mary almost on a daily basis. The words used were so bad that Mr. Puggione
refused to repeat them on the stand. He explained that they meant referring to Mother
Mary as “pig like”. He noticed that the personal respondent would use these expressions
when he was dissatisfied with other people’s work. Mr. Puggione was offended by the
use of the personal respondent’s language but never said anything for fear of losing his
job. He testified that the applicant would ask the personal respondent to refrain from
swearing as it bothered her.
20
[80]
Ms. Catalano testified that she was hired at the same time as the applicant to
perform the same position but she always worked at the Davenport location. This was her
first work experience and she was happy for the opportunity and grateful to the personal
respondent. In her view, the personal respondent was kind to teach her the job. She never
heard the personal respondent make inappropriate comments.
[81]
Ms. Catalano testified that the personal respondent sometimes asked the
employees to stay home, usually on Saturdays but sometimes during the week. Ms.
Catalano recalled that she heard the personal respondent get upset once or twice but
found that it was normal. She described him as an older gentleman “who has his own
character”. When he got upset, his voice was loud, or perhaps not loud but stronger than
normal. She could not recall the personal respondent using religiously-based swear
words related to the Mother Mary, but thought it was possible he did.
[82]
The personal respondent testified that he did not remember the day when the
building was without heat. He maintained that he never said to the applicant “you look like
Mother Mary”. He remembered that he sometimes used the expression “you look like a
Madonna” but as a compliment and never at work. In his view, it means you look good
and intelligent. He also noted that the “Madonna” refers to the American artist, not the
Mother Mary. In cross-examination, the personal respondent testified that even though
he could not remember the day when the heat was off, it was not possible that he would
say to the applicant “you look like Mother Mary”.
[83]
The applicant’s evidence on this point is corroborated by Mr. Puggione, who
testified in a straightforward manner and had no motivation to fabricate evidence; he is
no longer an employee at Faema and there was no evidence of any personal relationship
with either party. I accept their testimonies as more plausible. Although Ms. Catalano
testified she could not recall the personal respondent using religiously-based swear
words, she believed it was possible he did. While I found Ms. Catalano generally credible
for reasons similar to those I found Mr. Puggione credible, I also found her evidence on
this point to be less specific in nature, and conclude it did not undermine the applicant
21
and Mr. Puggione’s testimonies. The personal respondent’s testimony on the other hand
was contradictory and implausible and I disregard it on this point.
The Applicant Does not Obey
[84]
At the beginning of March, the applicant started to realize that there was not much
work at the Davenport location. The applicant testified that at the beginning of her
employment, she was sometimes asked to stay home because of lack of work. She would
frequently go into work anyway as she had been hired full-time. She was never disciplined
for coming into work when asked to stay home and was always given tasks to do.
[85]
The applicant testified that on March 9, 2015, she was asked to stay home. She
replied that she had been off for 3 days already and as the position was full-time she was
coming into work. The personal respondent phoned the Davenport location on that day
and the applicant answered. She identified herself and passed the phone to her
colleague, Mina Mendoza. The personal respondent asked Ms. Mendoza whether Ms.
Catalano was also in. Ms. Mendoza told the respondent that Ms. Catalano had stayed
home as asked. The personal respondent replied “Oh, only Marisa doesn’t obey!” Ms.
Catalano did not remember if she was asked to stay home on March 9, 2015, but she
testified that it could have happened.
[86]
The personal respondent initially testified that he did cut the applicant’s hours. He
then said he did not remember asking the applicant to stay home. He later added that he
never asked the applicant to stay home. In his view, when the applicant did not come into
the office, it was because she did not feel like coming in and had taken the day off. He
denied telling her to stay home except on Saturdays when the employees had rotating
shifts. The personal respondent’s testimony on this matter was inconsistent and I give
little weight to it. I believe that the applicant was frequently asked by the personal
respondent to stay home.
Ordered to Fire Racialized Employees
22
[87]
It is undisputed that on March 30, 2015, the personal respondent brought the
applicant and a colleague to the Dupont location because there was work to be done
there. The personal respondent asked the applicant and her colleague to work on
cleaning up the storage room and construction area and to take an inventory with the help
of one of his sons, Rocco.
[88]
The applicant testified that between April 10 and 14, 2015, the applicant continued
to work in the storage area at the Dupont location. The personal respondent’s two sons,
Rocco and Pat, and Ms. Di Donato appeared to appreciate the applicant’s work as they
thanked her for it. It is also around that time that Francesco Puggione began working at
Faema.
[89]
The applicant could not remember the exact date of the next incident but she
testified that it occurred shortly before April 14, 2015. According to the applicant, the
personal respondent wanted her to take over as manager of the café at the Dupont
location and in order to do so, he ordered her to fire all the “dark skinned people”. She
specified that the personal respondent used the word “Negri”, which in her view means
“Nigger”. She also testified that he wanted her to fire the employees with tattoos and
colourful hair. The applicant recalled being shocked and telling the personal respondent
she could not fire employees who had been hired by the personal respondent’s sons and
appeared to be performing well.
[90]
The applicant testified that the personal respondent started swearing and saying
these people are “non sono buoni a fare un cazzo” or, according to the applicant, “they
are not good at doing a fuck”. She also remembered the personal respondent adding “via,
via stagente inutile” which she understood to mean “go, go useless people”. The applicant
also heard the personal respondent refer to Ms. Mendoza, her colleague, as “not knowing
fuck… she is not Italian”. The applicant made notations of these events in her diary.
[91]
The applicant testified that this made her feel very bad as she realized that she
was dealing with a racist person.
23
[92]
The applicant noted that the idea of firing the racialized employees came up again
when the personal respondent said a few days later “these people are still here” and the
personal respondent got angry again. The applicant could not remember when that
incident happened but testified that it happened after April 14, 2015.
[93]
The personal respondent testified that he asked the applicant and Mr. Puggione to
do the inventory at the Dupont location. The personal respondent was asked both in
examination and cross-examination whether he asked the applicant to “fire all the dark
skinned employees”. As an answer, the personal respondent acknowledged that two of
the cooks at the Dupont location are “dark skinned”. He explained that they have been
working at that location for about 10 years and although he is the boss, he is not
responsible to manage or fire them. The Dupont location café has its own manager. He
said that they fed him good food and noted that if they did not perform well, he would
mention this to them. He was asked about saying “the dark skin people are not good at
doing a fuck” and replied that this is embarrassing and he never said that.
[94]
It was put to the personal respondent that the word he used for “dark skinned
people” was “Negri”. As described above, he said he does not understand what that word
means, then said it means black and in his view it is not a bad word. He added that a
Black person is called “Neri” or “Nero” and later said that “Negri” means the continent of
Africa.
[95]
The personal respondent explained that it was easier for Italian individuals to work
at Faema. For him, the Italian language is an asset because he does a lot of business
with Italian dealers and customers. Also, he believes that if you are Italian, you have a
better grasp of the Italian products. He gave the following example: you know the
difference between a cheese grater and a meat grinder. “When Italians see a cheese
grater, they know what it is.”
[96]
The applicant’s testimony on the question of whether the personal respondent
asked her to fire all the “dark skinned employees” was consistent, detailed and
straightforward both in examination and cross examination. She remembered what the
personal respondent asked her to do and the terminology he used when he asked her to
24
fire all the racialized employees. She also described in consistent detail how he reacted
and what he said when she refused. She did not embellish her story and freely admitted
that she did not remember the exact dates of the incidents. I find it implausible that the
applicant would fabricate such a story.
[97]
The personal respondent’s answer, on the other hand, was evasive. He appeared
to say that he could not order the applicant to fire racialized employees because he was
not their manager. The fact that the personal respondent was not the manager of the
Dupont location café is not in dispute and does not explain why he could not have given
the order to fire racialized employees. In any event, by his own admission, the personal
respondent was the boss and testified that employees of the Dupont location knew this. I
find it quite plausible that he would ask the applicant to fire employees at the Dupont
location, for example to see if she would follow his instructions. In addition, as mentioned
above, the personal respondent’s testimony on the word “Negri” was implausible and
completely inconsistent, making his testimony on that point unreliable.
[98]
The personal respondent also said that he preferred hiring Italian employees as in
his view they already know his products and can more easily interact with Italian dealers
and customers. I find that the personal respondent’s hiring preference for Italian
employees makes it more plausible that he would order the applicant to fire racialized
employees, whom in this case were not identified as Italian.
Inappropriate Name Calling based on Sex
[99]
The applicant testified that on April 14, 2015, she was finishing her work and
wanted the personal respondent to direct her to do something else. The personal
respondent brought the applicant to the storage area where they were alone and asked
the applicant to take the inventory. The applicant told the personal respondent that she
needed support because she does not have the mechanical and electrical knowledge of
the parts. She also informed the personal respondent that his son Rocco was not
available to help her. Rocco had also indicated that he did not need an inventory and that
whatever was in storage was about to be moved to another location. The applicant
relayed that information to the personal respondent.
25
[100] According to the applicant, the personal respondent reacted really badly; like
someone who does not want to hear what was said. The applicant asked again what her
position was at Faema and reminded the personal respondent that she was hired to
manage the Davenport location.
[101] The applicant recalled that the personal respondent “freaked out” and got very
angry. She testified that he swore in Italian using religiously-based expressions related to
the Mother Mary: “for that pig of Mother Mary, you are breaking my balls” and then added
“in here you are not even good to be a whore”. In her diary, the applicant noted that the
expressions used in Italian were: “Porca Madonna, mi hai rotto I coglioni” and “tu qui
dentro non sei buona neanche a fare la sgualdrina”.
[102] The applicant recalled that she was shocked and told the personal respondent that
she would not allow him to treat her that way. She left but the personal respondent
followed her to the reception area. Ms. Di Donato and Mr. Puggione witnessed the
following interaction. The applicant testified that she was crying and she began telling Ms.
Di Donato what had happened. According to the applicant, the personal respondent was
trying to justify himself by denying that the word “sgualdrina” refers to prostitution and by
saying that he used the word “sguattera” not “sgualdrina”. In the applicant’s view, it is not
a compliment either as it means “doing menial household tasks”. The personal
respondent told the applicant that he no longer wanted her in his company. The applicant
replied that all he had to do was put it in writing. As he did not, she continued to go into
work. The applicant took note of these events in her diary.
[103] The applicant testified that “sgualdrina” means “whore” and it has no other
meaning. She also specified that it refers to women. She felt useless after being insulted
by her boss. As a woman, she was offended as she realized that her superior did not
respect women.
[104] Mr. Puggione testified that he was in the reception area at the time and saw the
applicant and personal respondent arguing. He heard the personal respondent say to the
applicant “you are breaking my balls” and the applicant say to the personal respondent
26
that he should not permit himself to call her a whore. He recounted hearing the personal
respondent say that he did not mean it, that in his country that was not a bad word. He
also recalled the applicant’s reply that in all of Italy, the word has the same significance.
He remembered that the applicant asked him for his take on it and he said that in his city
it has an awful significance. Mr. Puggione testified that the applicant’s exact words to the
personal respondent were “do not call me a whore” and the personal respondent’s
response was that he was not referring to prostitution but to someone who is incapable
of working.
[105] Ms. Di Donato testified that on that day, the applicant was at the Dupont location
to organize the parts room (storage room). She noted that the applicant was doing a good
job. She remembered that the personal respondent came in and went to the parts room.
She heard the applicant get very upset but she did not hear the personal respondent. The
applicant then came to the desk where Ms. Di Donato was sitting. The applicant and the
personal respondent had words for each other. The applicant was upset. Ms. Di Donato
testified that her Italian is quite limited but she clearly remembered the applicant telling
her that the personal respondent had called her “sgualdrina”.
[106] The personal respondent’s side of the story is quite different. He testified that the
applicant’s story is made up. She wanted to be manager but in his view she did not know
the position well enough. He recalled that in the storage room, the applicant asked him
what her position was. The personal respondent told her she did not have a specific
position and if she wanted to know what to do she could call him. He testified that the
applicant was crying and he did not know why as he never gave her hope that she would
become a manager. In cross-examination, the personal respondent said that he really
could not remember whether the applicant asked him what her position was because she
asked him every day.
[107] The personal respondent testified that he never called the applicant “sgualdrina”
or “sguattera” and that he never screamed or offended anyone. The personal respondent
added that in any event the word “sgualdrina” is not bad. It is just an expression in Italian.
When reminded that the interpreter had translated the word “sgualdrina” to “whore”, he
27
explained that in Italian it is often used in conversation for example by saying “you want
to sgualdrina me”. Even though the personal respondent testified that the word
“sgualdrina” is not bad, he did not hesitate in cross-examination to say that he would
never call his sister sgualdrina. When asked if he agreed that the applicant told Ms. Di
Donato that he used the word “sgualdrina” he replied that he did not hear the applicant
say that. He testified that in any event he never said these words.
[108] The personal respondent’s testimony was contradictory and inconsistent with the
testimonies of three reliable and credible witnesses, the applicant, Mr. Puggione and Ms.
Di Donato, his own witness. I give no weight to the personal respondent’s testimony on
this point and rely on the other witnesses’ testimonies. In particular I find that Mr. Di
Donato did utter the words alleged by the applicant in para 101 above, including referring
to her as a “sgualdrina”. I find, based on the testimony of the applicant and Mr. Puggione,
and considering the manner in which the interpreter translated this term, that “sgualdrina”
not only has the meaning “whore” but was understood by the personal respondent to have
that meaning.
The Applicant’s Performance
[109] The applicant never received a performance review from the personal respondent.
However, the applicant testified that the personal respondent usually seemed happy with
her tasks particularly at the beginning of her employment. She completed a thorough
inventory of the Davenport location so that the personal respondent would know the value
of his inventory. The applicant recalled that the personal respondent appeared happy with
that work and told others that he was.
[110] During the course of the applicant’s employment and more specifically after the
mid-April incidents, the personal respondent appeared increasingly displeased with the
applicant. The applicant testified that “he could not stand me anymore”. The personal
respondent showed his displeasure with the applicant by regularly calling her a
“syndicalista”, a union member, which she interpreted to mean that he disliked that she
stood up for herself.
28
[111] The applicant testified that as the personal respondent became more displeased
with her, he increasingly asked her to remain at home, often saying “I do not want to see
you anymore” or “I no longer want you to go into work”. The applicant’s diary indicates
that the personal respondent made such requests at least five times in the last half of
April. When that happened, the applicant would ask the personal respondent to terminate
her in writing. The personal respondent ignored such requests until her termination on
May 6, 2015.
[112] The personal respondent’s view of the applicant’s performance was quite different.
He testified that the applicant was a “nice girl” but she had character: every day she had
a different mood or expression, she did not finish her work, she abused the system, she
did not respect his orders, and she was a character with attitude who made life
complicated. The personal respondent presented no specific examples of this alleged
erratic behaviour.
[113] The personal respondent testified that the applicant would disappear all the time.
He would ask people where she was and they would call her on the loud speaker but she
would not respond. According to him, most of the time she was not where she was
supposed to be. This, he said, happened almost every day.
[114] The personal respondent testified that the applicant wasted a lot of his time
because he had to explain over and over. He could not say that she was good as she
was asking too many questions that made no sense. In his view, the applicant had a lot
of personal problems, although he did not talk to her much and did not know her well. The
personal respondent said that the applicant was absent almost every day.
[115] When asked to specify the types of questions the applicant asked him, the
personal respondent could not remember. He said that it would depend on the situation.
He recalled that the applicant asked him three times about a thing in a box that was
labelled in Italian and English. He could not be more specific than that.
29
[116] The personal respondent’s testimony on the applicant’s performance was vague
and inconsistent with the overall evidence of the applicant’s performance. As such, I
disregard the personal respondent’s evidence related to the applicant’s performance.
The Applicant’s Termination
[117] The applicant testified that on May 6, 2015, she went to work at the Dupont location
to assist Rocco clean a vitrine and vacuum motor parts. She went for lunch at around
1:20 p.m. where employees usually have their lunches and where she was told to have
her lunch: in an empty area on the second floor. At 1:40 p.m., the personal respondent
and Ms. Mendoza arrived in the room and he said “What are you doing? Playing?” The
personal respondent appeared upset and said he did not want to see her anymore. The
applicant explained to him that she was on her unpaid break.
[118] The applicant went back to work in the café. The personal respondent noticed her
and got very angry. He told the applicant not to come into work anymore as he no longer
wanted to see her. The applicant worked until 4:50 p.m. that day.
[119] At the end of the day, Ms. Di Donato told the applicant that the personal respondent
called and asked her to wait because he was coming over from the Davenport location.
At 5 p.m. Ms. Catalano arrived to the Dupont location. She told the applicant “do not kill
the messenger” in Italian. She handed the applicant an envelope, which contained a
termination letter, her paystub and a cheque. The reason for the termination as stated in
the letter was “you didn’t demonstrate the quality of a worker you are supposed to do.
Instead you didn’t follow my order”.
[120] Ms. Catalano testified that she remembered delivering the termination letter to the
applicant. She recalled saying “I am not involved in this” in Italian which in her view is
tantamount to saying “do not kill the messenger”. She testified that when the applicant
read the termination letter, she became very upset.
30
[121] The personal respondent testified that on May 6, 2015, he attended at the Dupont
location and could not find the applicant. The applicant was supposed to be at her job but
no one had seen her. She had disappeared. He tried to find her in the building and could
not. He paged her on the intercom and she did not reply. He finally found the applicant in
a room playing with her phone. He was of the view that it was too late for the applicant to
be on her lunch break. The personal respondent admitted that he does not expect
employees to take their lunch at the same time but they should take their lunch before 2
p.m. The personal respondent testified that the applicant took 1 ½ hour off that day, but
had no idea where she could have gone or what she was doing. Also, he noted that the
applicant was in a room that was far away and not the usual employee lunch room.
[122] It is undisputed that the personal respondent was accompanied by Ms. Mendoza
when he located the applicant but, without drawing an adverse inference I note that Ms.
Mendoza did not testify.
[123] The personal respondent was vague in his recollection and did not know how long
the applicant had been on break. While I accept that he arrived at the Dupont location,
could not immediately find the applicant and was upset by this, I do not find his
subsequent explanations for why he was upset credible or reliable. As with much of his
testimony I find these were after the fact justifications which do not withstand scrutiny.
For example he testified that one of the reasons he was upset was because the applicant
had taken 1 ½ hours off that day; yet there was no explanation for how he could have
drawn such a conclusion when, based on his own testimony, he had only just attended at
the location. The applicant recalled exactly what happened on the day of her termination.
Where their testimony differs, I find the applicant’s version more plausible, reliable and
credible than the personal respondent’s.
ANALYSIS AND DECISION
The Law
[124] It is useful to set out the applicable provisions of the Code:
31
Employment
5(1) Every person has a right to equal treatment with respect to
employment without discrimination because of […] creed, sex […].
Harassment in employment
5(2) Every person who is an employee has a right to freedom from
harassment in the workplace by the employer or agent of the employer or
by another employee because of […] creed […].
Harassment because of sex in workplaces
7(2) Every person who is an employee has a right to freedom from
harassment in the workplace because of sex […] by his or her employer or
agent of the employer or by another employee.
Reprisals
8. Every person has a right to claim and enforce his or her rights under
this Act, to institute and participate in proceedings under this Act and to
refuse to infringe a right of another person under this Act, without reprisal
or threat of reprisal for so doing.
Harassment
[125] I find that the above requirements for harassment based on creed and sex have
been met.
[126] In order to establish a case of harassment based on one or more Code grounds,
the onus is on the applicant to prove that (1) the personal respondent was her employer,
her employer’s agent, or another employee; (2) the personal respondent harassed her by
engaging in a course of vexatious comments or conduct towards her that was known or
ought reasonably to have been known to be unwelcome; (3) the personal respondent
harassed her in the workplace; and (4) the personal respondent harassed her because
of her sex and/or creed. See ss. 5(2), 7(2) and 10(1) of the Code. See Anderson v. Law
Help Ltd., 2016 HRTO 1683 at para. 61 in which the Tribunal outlines the criteria to find
sexual harassment.
[127] It is uncontested that the personal respondent, the President and sole shareholder
of Faema, was the applicant’s employer during the material time and that the alleged
32
inappropriate comments were made “in the workplace”, while the applicant was working
at Faema.
[128] I turn now to the following two issues:
a. whether the personal respondent engaged in a course of vexatious
comments or conduct towards her that was known or ought reasonably
to have been known to be unwelcome, see s. 10 of the Code;
b. whether the personal respondent harassed the applicant because of her
sex and/or creed.
[129] I find that some of the personal respondent’s comments were based on the
grounds of creed and sex, while others were strictly related to the ground of sex.
[130] The Supreme Court of Canada defined the term “religion” in Syndicat
Northcrest v. Amselem, [2004] 2 SCR 551, 2004 SCC 47 at para. 39 as follows:
In essence, religion is about freely and deeply held personal convictions or
beliefs connected to an individual’s spiritual faith and integrally linked to
one’s self-definition and spiritual fulfilment, the practices of which allow
individuals to foster a connection with the divine or with the subject or object
of that spiritual faith.
[131] In Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252 (“Janzen”) at para. 56, the
Supreme Court of Canada broadly defined sexual harassment in the workplace 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. It is, as Adjudicator Shime observed in Bell v.
Ladas, supra, and as has been widely accepted by other adjudicators and
academic commentators, an abuse of power. When sexual harassment
occurs in the workplace, it is an abuse of both economic and sexual power.
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 selfrespect of the victim both as an employee and as a human being.
33
[132] More specifically, in Bell v. Ladas (1980), 1 CHRR D/155 (Ont. Bd. Inq.), which
was cited with approval by the Supreme Court in Janzen, the Ontario Board of Inquiry
stated at para. 1389 that sexual harassment runs
[…] the gamut from overt gender based activity, such as coerced
intercourse to unsolicited physical contact to persistent propositions to more
subtle conduct such as gender based insults and taunting, which may
reasonably be perceived to create a negative psychological and emotional
work environment.
[133] I find that the personal respondent engaged in a course of vexatious comments
that were religious and gender based: he said to the applicant that she looked like “Mother
Mary” in a way that was not complimentary and he frequently used religiously based
swear words related to God and the Mother Mary. The swearing related to the Mother
Mary specifically denigrated women and I find that such swearing was vexatious because
of both its religious and gender connotations. I also find that the comments were not
isolated but made throughout the course of her entire employment period and so amount
to a course of conduct.
[134] The applicant is of the Roman Catholic faith and she deeply holds personal
convictions or beliefs connected to her faith. The applicant was visibly upset when
witnesses recounted the personal respondent’s offensive comments. She prays every
morning and evening and even prayed for the personal respondent for his offensive
language. The respondents did not challenge the applicant’s sincerely held beliefs and I
accept that she is deeply religious.
[135] I find that the personal respondent knew or ought to have known that his offensive
religious and gender based comments were inappropriate in the workplace and
unwelcome by the applicant. I believe that the personal respondent knew of the
applicant’s Catholic faith: she had mentioned to him that she was married in a white dress
in a Church; he admitted that Catholicism is the predominant religion in Italy and he knew
the applicant to be of Italian descent. The personal respondent also knew that the
comments were unwanted and offensive to the applicant as she regularly told him so.
34
[136] I believe that, in addition to the religious and gender based comments described
above, the personal respondent called the applicant “sgualdrina” on April 14, 2015 when
he was alone with her. I also accept that the personal respondent indicated that he had
used the word “sguattera” to refer to the applicant in an attempt to downplay his use of
the word “sgualdrina”. These words are both offensive and made her feel useless as a
woman.
[137] I find that the personal respondent knew or ought to have known that the words
were offensive. He speaks Italian fluently and testified that he would never use the word
“sgualdrina” to describe his sister. He also used the word “sguattera”, meaning doing
menial tasks. I find that the personal respondent knew or ought to have known that
“sguattera” was also disrespectful and offensive to the applicant. The applicant also told
him not to use those words as they offended her.
[138] I find that the personal respondent denigrated the applicant through the use of
gender based obscenities reflected in the view that she was less valued as a person
because she was a woman. See Costigane v. Nyood Restaurant & Bar, 2015 HRTO 420
and Knox-Heldmann v. 1818224 Ontario Limited o/a Country Style Donut, 2015 HRTO
1376.
[139] I find that the personal respondent harassed the applicant throughout her
employment at Faema based on her creed and sex.
The Reprisal
[140] In order to establish reprisal, one must show the following, See Noble v. York
University, 2010 HRTO 878 at para. 32:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed,
or attempted to enforce a right or refusing to infringe a right of another
person under the Code; and
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c. An intention on the part of the respondent to retaliate for the claim or
attempt to enforce the right or refusing to infringe the right of another
person.
[141] During the middle of April, the personal respondent indicated to the applicant that
he wished her to take over as manager of the Dupont location café. In order to do so, he
wanted her to terminate all the racialized employees. This was an extremely offensive
request and one that the applicant categorically refused to follow. She would not terminate
employees based on racist views. The applicant felt terrible about this request as she
realized that she was working for a racist employer.
[142] The evidence shows that the personal respondent expected the applicant to follow
his order. A few days after the request, he asked her why the racialized employees were
still working at the Dupont location.
[143] From that initial request and refusal to comply, I find that the personal respondent
began retaliating against the applicant by regularly asking her to stay home for no other
reason than her refusal to comply with his order to fire the racialized employees.
[144] The personal respondent’s termination letter specifically states “you didn’t
demonstrate the quality of a worker you are supposed to do. Instead you didn’t follow my
order”. The term “my order” could mean a number of demands made by the personal
respondent. However, I believe that the applicant completed the numerous tasks asked
of her on a daily basis and that the personal respondent was pleased with the inventories
and cleaning she performed. The personal respondent increasingly showed his
dissatisfaction with the applicant largely after her refusal in mid-April to fire all the
racialized employees; her refusal to infringe the rights of other employees. He asked her
to stay home more frequently and to not come back to work. This culminated in her
termination within a month of the order to fire all the racialized employees and her refusal
to comply.
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[145] I find that the personal respondent reprised against the applicant by asking the
applicant to stay home after the order to terminate all racialized employees and by
terminating her for that refusal.
Poisoned Work Environment
[146]
The Tribunal’s jurisprudence states that:
In the employment context, the Courts have found that a poisoned work
environment will be created in two circumstances: (1) where there has been
serious wrongful behaviour sufficient to create a hostile or intolerable work
environment that is persistent or repeated; or (2) where there has been a
particularly egregious, stand-alone incident: see General Motors of Canada
Ltd. v. Johnson, 2013 ONCA 502 at paras. 66-67, as adopted in the human
rights context by Crêpe It Up! v. Hamilton, 2014 ONSC 6721 at paras. 1819.
See Poursina v. Southern Lights Co-operative Homes Inc., 2016 HRTO
1551 at para. 40 and Insang v. 2249191 o/a Innovative Content Solutions
Inc., 2017 HRTO 208 at para. 38.
[147] In Brooks v. Total Credit Recovery Limited, 2012 HRTO 1232 (“Brooks”), the
Tribunal was asked to decide whether the comments made by the personal respondent,
using the term “ghetto” to refer to the applicant’s manner of dress on a particular day,
along with jokes and other commentary made subsequently by his co-workers created a
poisoned work environment for the applicant because of his race, colour or ethnic origin.
The Tribunal found at para. 36:
While the offending comments were made within a very short time span on
the morning of one particular day, I find that these comments were sufficient
to poison the applicant’s work environment based on the following
factors. First, the comments were made in a public setting in the workplace
where they were capable of being heard and were in fact heard by the
applicant’s co-workers. Second, Mr. Jaipaul repeated the offending
comments at least two times after he knew that the comments were
offensive and unwelcome to the applicant. Third, Mr. Jaipaul’s position with
[…] as a very senior manager served to increase the impact and effect of
the comments on the applicant. Fourth, based on the applicant’s evidence,
which is uncontradicted and which I accept, these comments became the
source of jokes and other commentary by his co-workers, which changed
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how he felt about reporting for work and his desire to spend time with his
co-workers on breaks and lunches.
[148] Since Brooks, above, the Court of Appeal for Ontario in General Motors of Canada
Ltd. v. Johnson, 2013 ONCA 502, at para. 67 (“Johnson”) confirmed that a stringent
standard applies to a finding of a poisoned workplace:
Moreover, except for particularly egregious, stand-alone incidents, a
poisoned workplace is not created, as a matter of law, unless serious
wrongful behaviour sufficient to create a hostile or intolerable work
environment is persistent or repeated: Bobb at paras. 85-87; Canada
(Canadian Armed Forces) (re Franke) at paras. 43-46.
[149] I find that the applicant was subjected to serious wrongful behaviour sufficient to
create a hostile or intolerable work environment and that the comments poisoned the
applicant’s work environment based on the following factors: the comments were made
in a public setting and some of the comments were heard by co-workers. The personal
respondent repeated comments that he knew were offensive while he was at all material
time the applicant’s employer and the directing mind, President and sole shareholder of
Faema. Finally, even though the applicant voiced her objections to the offensive
comments, the personal respondent simply dismissed her concerns.
[150] I find that the comments made by the personal respondent over the course of the
applicant’s employment with Faema, along with the personal respondent’s actions that
led to the applicant’s termination, created a poisoned work environment for the applicant
because of her sex and creed, contrary to s. 5(1) of the Code. Although I have found the
conduct of the personal respondent amounted not only to harassment but also created a
poisoned work environment, I am aware of the overlap between these findings and have
taken that into account for the purposes of my assessment on liability, below.
REMEDIES
[151] The applicant requests the following remedies:
a. $25,000 for compensation for injury to her dignity, feelings, and selfrespect;
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b. Two weeks for loss of wages.
[152] Section 45.2 (1) of the Code provides:
On an application under section 34, the Tribunal may make one or more of
the following orders if the Tribunal determines that a party to the application
has infringed a right under Part I of another party to the application:
1. An order directing the party who infringed the right to pay monetary
compensation to the party whose right was infringed for loss arising
out of the infringement, including compensation for injury to dignity,
feelings and self-respect.
2. An order directing the party who infringed the right to make
restitution to the party whose right was infringed, other than through
monetary compensation, for loss arising out of the infringement,
including restitution for injury to dignity, feelings and self-respect.
3. An order directing any party to the application to do anything that,
in the opinion of the Tribunal, the party ought to do to promote
compliance with this Act.
Award for Injury to Feelings, Dignity and Self Respect
[153] In Sanford v. Koop, 2005 HRTO 53 (“Sanford”), the Tribunal outlined the following
factors to assess the appropriate amount of the award for injury to dignity, feelings, and
self-respect:
a. Humiliation experienced by the applicant;
b. Hurt feelings experienced by the applicant;
c. An applicant’s loss of dignity;
d. An applicant’s loss of self-esteem;
e. An applicant’s loss of confidence;
f. The experience of victimization;
g. The vulnerability of the applicant;
h. The seriousness, frequency, and duration of the offensive treatment.
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[154] The following principles are also relevant:
a. An award for monetary compensation must not be set too low as to
trivialize the social importance of the Code by creating a “licence fee” to
discriminate. See ADGA Group Consultants Inc. v. Lane (2008) 91 O.R.
(3d) 649 (Div. Ct.) at para. 153 (“ADGA”).
b. The low end of the monetary spectrum involves circumstances of a few
incidents, less serious incidents, and/or incidents that did not include
physical touching. Conversely, the high end of the monetary spectrum
includes multiple incidences, incidences of a serious nature and physical
assault and/or reprisal or loss of employment. See Vipond v. Ben Wicks
Pub and Bistro, 2013 HRTO 695 at para. 55 (“Vipond”).
[155]
The Tribunal has consistently held that monetary awards under the Code are
compensatory in nature. The intention is to put the applicant into the position he or she
would have been in but for the discriminatory act. See Insang v. 2249191 o/a Innovative
Content Solutions Inc., 2017 HRTO 208 at para. 49 (“Insang”).
[156] The applicant seeks $25,000 in damages for restitution for injury to dignity, feelings
and self-respect. For the reasons outlined below, I find that this amount is reasonable
compensation for the combined effect of the following incidents: the ongoing creed and
gender based harassment, the personal respondent’s multiple requests for the applicant
to stay home as a result of her refusal to comply with racist requests, her termination as
reprisal for refusing to fire racialized employees and the toxic environment she was forced
to work in. I rely on the following case law to come to that conclusion.
[157] In Knox-Heldmann v. 181224 Ontario Limited o/a Country Style Donut, 2015
HRTO 1376 (“Knox-Heldmann”) and in Insang, above, the Tribunal awarded substantial
damages for injury to dignity, feelings and self-respect for discrimination and harassment
based on multiple grounds under the Code that amounted to poisoned work
environments.
[158] In Knox-Heldmann, above, the applicant was dismissed from her employment in
whole or in substantial part because she was perceived to be a person with a disability
and she experienced a poisoned work environment on the basis of her sex, age, marital
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and family status during the course of her employment. The Tribunal found it appropriate
to award $15,000 as monetary compensation for the violation of her right to be free from
discrimination and for injury to dignity, feelings and self-respect.
[159] In Insang, above, the respondents discriminated against the applicant because of
his creed and race. In addition, his supervisor touched him on the buttocks on three
occasions which amounted to sexual harassment. The Tribunal found that the combined
effect of the continuing harassment and failure to accommodate the applicant’s
religiously-based needs amounted to a poisoned work environment. The Tribunal
awarded $7,500 as compensation for the failure to accommodate the creed-based
requirements and $12,500 for compensation for injury to dignity, feelings and self-respect
for the harassment experienced by the applicant.
[160]
In Brathwaite v. Komenda Contracting Corporation, 2013 HRTO 1979, the
Tribunal awarded significant damages for injury to dignity, feelings and self-respect where
only two racist comments had been made in violation of the Code. The Tribunal noted
that the supervisor showed no sign of understanding the significance of his comments
and simply dismissed the applicant’s concern. In determining damages, the Tribunal took
into account the facts that the first racist comment was made in front of another employee
by the employer while the second was made despite the fact that the applicant
complained to the supervisor about the first and told him he could not make such
comments. The Tribunal awarded $15,000 for the infringement of the Code and the injury
to dignity, feelings and self-respect.
[161]
In Morgan v. Herman Miller Canada Inc., 2013 HRTO 650, the Tribunal awarded
substantial damages for injury to dignity, feelings and self-respect because of the
significant effect caused by the termination of the applicant as an act of reprisal. The
Tribunal did not find discriminatory comments or conduct, or harassment contrary to the
Code but found that the respondents terminated the applicant’s employment because he
had threatened to sue the company. The respondents’ failure to address the applicant’s
workplace issues and his ultimate termination from employment had a significant impact
41
on the applicant and he was awarded $15,000 as damages for injury to dignity, feelings
and self-respect.
[162] I note that the incidents in this case are all part of a continuum that led to the
applicant’s termination. As such I do not award separate damages for each incident but
use a contextual approach to award $25,000 in damages for the overall injury to dignity,
feelings and self-respect. Because of the combined effect of the harassment/poisoned
work environment, which had a significant impact on the applicant’s sincerely held
religious beliefs and on her self-worth as a woman, and the reprisal through work
conditions and termination, I award damages that are well within the range of what is
warranted.
[163] The finding that the applicant was terminated primarily for failing to wrongfully
terminate racialized employees is not only objectively a very serious breach of the Code
based protections from reprisal, but it also had an important subjective impact on the
applicant as described below. Also, even though the harassment based on sex and creed
formed part of the overall negative work environment, they also had unique characteristics
that impacted the applicant both as a woman and as a Christian.
[164] The applicant was in a vulnerable and precarious position at Faema. The applicant
described the inappropriate comments and incidents as making her less valued: during
her employment she was crying regularly and, after April 14, 2015 when the personal
respondent made offensive gender based comments to her, she started taking 2 Advils
every day and was not eating properly. She included numerous notations in her diary that
conveyed her distress: “Why does he treat me like that? I do whatever he asks me to do!
I leave crying. I am doing my best”, “I left work at 5:30 p.m. in tears, and huge stomach
ache!” “I left at 5 p.m. Mi sento demoralizzata e frustrate” (I feel demoralized and
frustrated).
[165] The applicant felt alone and her experience at Faema had a significant impact on
her health: she had difficulty managing her diabetes and began requiring insulin which,
she believed, was related to her level of stress. She testified that she would have seen a
42
therapist in Canada but could not afford it. She found herself moving back to Italy where
she has family and support, and began seeing a psychologist there. She testified that her
return to Italy was upsetting. She had come to Canada to build her life and career and
lost that opportunity because of the stress encountered while working at Faema.
[166] The applicant did not produce medical evidence to corroborate her medical
condition but testified that it was a challenge to get such documentation from her medical
practitioner in Italy.
[167] The applicant had to endure the harassment based on creed and sex throughout
her employment, notwithstanding her constant reminder to the personal respondent that
she found the comments offensive. The personal respondent made offensive comments
directly to the applicant and in front of colleagues and he showed no sign that he
understood the offensiveness and impact of his comments. He simply dismissed the
applicant’s concerns.
[168] The incidents had a significant impact on the applicant’s self-worth and well-being:
she felt useless as a women, she was stressed and had difficulty managing her diabetes.
The applicant was ordered to fire all the racialized employees which she found unethical.
She was terminated for refusing to comply with a request that would have her violate her
colleagues’ human rights.
[169] I find that the harassment based on sex and creed, the reprisal through termination
and the overall toxic work environment that the applicant had to work in had a cumulative
and significant impact on the applicant’s dignity and self-worth and $25,000 is an
appropriate award to compensate the applicant for the injury caused to her dignity,
feelings and self-respect. I note specifically that while I made separate findings of both a
poisoned work environment and harassment on the basis of creed and sex, these findings
relate to the same underlying conduct and I have taken that into account in assessing a
global compensation award.
Lost Wages
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[170] The applicant requests 2 weeks for lost wages. The applicant was terminated on
May 6, 2015 and received one week termination pay, ending on May 13, 2015, through
an MOL Decision. She found another employment at the end of May (which ended a few
months later for lack of work) and as such requests two weeks of lost wages from May
13 to May 27, 2015.
[171] The applicant introduced in evidence the award from the MOL that calculated one
week of wages at $471.51. She relies on that amount to request wage losses. The MOL
Decision refers to “the gross assessment due to the claimant” as $471.51 and the
applicant did not produce evidence about whether the amount was “net” after deductions
or “gross”. Accordingly, I treat the amount of $471.51 as gross weekly wages.
[172] I award to the applicant $943.02 for 2 weeks of wage loss.
Liability
[173] The evidence is clear that the personal respondent is the directing mind of Faema.
He is its President and sole shareholder, and was at all material time the applicant’s
employer. The personal respondent made all the decisions related to Faema and he
signed the applicant’s pay cheque and directed her work.
[174] I find that it is appropriate, given the nature of the Faema business and the central
role that the personal respondent played in the incidents of harassment and reprisal that
have occurred that the respondents are jointly and severally liable.
Interest
[175] Pursuant to s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43 (“CJA”),
as amended, pre-judgment interest runs from the date the cause of action arose to the
date of the order. Accordingly, I find the respondents jointly and severally liable to pay the
applicant pre-judgment interest on the awards for the injury to her dignity, feelings, and
44
self-respect, and for lost wages from the date of the Application (May 19, 2015) to the
date of this Decision.
[176] Pursuant to s. 129(1) of the CJA, I find the respondents jointly and severally liable
to pay the applicant post-judgment interest on the awards for the injury to her dignity,
feelings, and self-respect, and for lost wages not paid within 30 days of the date of this
Decision.
[177] The applicable interest rates may be found on the website of the Ministry of the
Attorney General of Ontario:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp
ORDER
[178] For the reasons set out above, The Tribunal orders as follows:
a. Mike Di Donato is added as a respondent to this Application and the
style of cause is amended accordingly;
b. The applicant’s request to amend the Application is granted. The
Application is amended to change the grounds of discrimination claimed
from “gender identity” to “sex” and from “ethnic origin” to “creed” and to
add the ground of “reprisal” to the Application;
c. The respondents’ request for an adjournment is denied;
d. The respondents’ request to dismiss the Application pursuant to section
45.1 of the Code because another proceeding, namely Ministry of
Labour Decision - claim number 70154255-7, has appropriately dealt
with the substance of the Application is denied;
e. Within 30 days of this Decision, the respondents shall, jointly and
severally, pay $25,000.00 to the applicant in monetary compensation for
injury to her dignity, feelings and self-respect;
f. Within 30 days of this Decision, the respondents shall, jointly and
severally, pay $943.02 to the applicant for her wage loss for two weeks;
g. The respondents shall jointly and severally, pay to the applicant prejudgment interest on the awards for injury to dignity, feelings and self-
45
respect and wage loss, above, from May 19, 2015 to the date of this
Decision, calculated in accordance with section 128 of the CJA;
h. The respondents shall, jointly and severally, pay to the applicant postjudgment interest on any accumulated principal and interest arising from
the awards for injury to dignity, feelings and self-respect and wage loss,
above, calculated in accordance with section 129 of the CJA, from the
date that is 30 days after the date of this Decision.
Dated at Toronto, this 26th day of May, 2017.
“Signed by”
_____________________________________
Josée Bouchard
Vice-chair
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