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. _________________________________________________________________ _____
Transcript
HUMAN RIGHTS TRIBUNAL OF ONTARIO______________________________________________________________________
Indexed as: Valle v. Faema Corporation 2000 Ltd. ______________________________________________________________________
APPEARANCES
)Marisa Valle, Applicant )
) Emily Shepard, Counsel
)
Faema Corporation 2000 Ltd. andMike Di Donato, Respondents
))))
Caterina Licata, Counsel
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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
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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 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
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personal respondent. Neither Faema nor Mike Di Donato personally filed a
Response to the RFOP.
[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
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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 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.
[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.
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[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. 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.
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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:
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.
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[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 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.
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[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:
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, 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 daughter-in-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
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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.
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
[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.
[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.
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[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. 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.
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[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 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
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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.
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
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[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.
[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.
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[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 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.
20
[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.
[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
21
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 and Mr.
22
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.
23
Ordered to Fire Racialized Employees
[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.
24
[91] The applicant testified that this made her feel very bad as she realized that
she was dealing with a racist person.
[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.”
25
[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 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
26
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.
[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.
27
[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 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
28
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 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
29
[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.
[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
30
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.
[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.
31
[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.
[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.
32
[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:
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.
33
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 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.
34
[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 self-respect of the victim both as an employee and as a human being.
[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.
35
[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.
[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.
36
[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
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
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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.
[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
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[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. 18-19.
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 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 self-respect;
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
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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.
[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”).
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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.
[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 pre-judgment interest on the awards for injury to dignity, feelings and self-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 post-judgment 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.
