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Sexual harassment under the Code: Smith v. The Rover’s Rest

The case of Smith v. The Rover’s Rest, 2013 HRTO 700 is a recent case dealing with sexual harassment and reprisal under the Human Rights Code of Ontario.

At the time of the incidents, the applicant, Debbie Smith was a 39-year-old mother being paid $7.00 per hour as a bartender at the Rover’s Rest in Ajax, Ontario. The applicant worked at the bar between February and September of 2009. On November 8, 2009 Ms. Smith filed an application with the Human Rights Tribunal of Ontario alleging that the individual respondent, the manager and owner of the small business, Bruce Dorman had subjected her to sexual harassment and advances during employment. Further, the application alleged she was terminated when she refused these advances and when the respondent wrongly believed that she was in a relationship with someone else.[1] She further alleged, that after she was terminated, the respondent delivered discriminatory, harassing and threatening letters to her.

The respondent, Mr. Dorman, denied the allegations stating that the applicant never indicated that anything that was said made her uncomfortable. Having admitted he had terminated the applicant’s employment, he stated that it was due to the fact she had ignored his repeated warnings to not become involved with the customers. [2]

The hearing

During the course of the two-day oral hearing, the applicant alleged that while working with the respondent, his conduct included: standing close to her, brushing up against her when passing by her, putting both hands on her waist when he passed behind her, and unwanted touching.[3] The applicant also stated that the respondent complimented her ass and publicly announced that he was going to, “bend her over the pool table and smack her bare ass.” In addition the respondent wrongfully accused the applicant of sleeping with customers and was told she should not behave like a “whore”, slut/and or slag”.[4]

In spite of these allegations, the individual respondent denied that he had ever sexually harassed the applicant or made sexual advances towards her. He did admit to having made the comment in regards to the pool table, but stated that, “it was a joke” at which the respondent had laughed.[5] The respondent also testified that he had not referred to the applicant as a “whore, slut/and or slag”, but other people called her these names.[6]

The evidence

What may be the most tangible evidence substantiating the allegations of sexual harassment and reprisal are the letters which the respondent hand-delivered to the applicant following her termination. In one such letter submitted as evidence the respondent writes:

When you first started working days you looked great and dressed the part, you are a very attractive lady (I have told you that before), but now you look and dress more like the charlady coming in to scrub the floors.”[7]

Shortly thereafter, the respondent hand-delivered a second letter to the applicant. The letter contained profanities and accusations as to her character and her relationships with the men at the bar. The letter concluded with, “You have a very nice daughter, Debbi, I hope she never finds out what her mother is really like.” [8]

The respondent’s third and final letter continued with harassing and threatening remarks, including a paragraph threatening the applicant with bodily harm:

You are going to get a lawyer. O.k., get a good one….Once you charge me with something, I can respond, and I will cut your legs off. So please, think carefully, before you act.”[9]

The effect upon the applicant

The respondent’s behavior affected the applicant emotionally and financially. Her testimony stated that due to the incidents she began to suffer from depression and was frightened to leave the house. The applicant was prescribed anti-depressants and sleeping pills. She testified that the incidents also compromised her relationship with her teenage daughter.

Applicable law and decision

The Tribunal in its analysis of the case identified several sections of the Human Rights Code, (5,7,8,9 and 10) as being relevant to the Tribunal’s examination of the facts. The Tribunal also referred to the “Code” to provide a definition of harassment:

harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;[10]

In the Tribunal’s decision, it was stated that the Tribunal found Ms. Smith’s testimony to be far more credible and reliable than that of the respondent whose testimony was characterized as “often vague, lacking in detail and internally inconsistent, and/or implausible.”[11] For example, the respondent had tried to lie about what he had written in his letter to the applicant after he terminated her employment.

The Tribunal found that the respondent had breached the “Code”, and that the mistreatment of the applicant was serious, stating that the Tribunal believed the applicant was subjected to the treatment as had been alleged. Examples included: sexual harassment and advances, a poisoned work environment, discrimination and harassment because of her sex, and reprisals, by, repeatedly asking her out, invading her personal space, touching her body, hugging her, patting her buttocks, monitoring her interactions with male customers, wrongfully accusing her of sleeping with those customers, terminating her employment, delivering sexist and misogynist letters to her, intimidating her by making repeated, uninvited visits to her house, and making an implicit threat of physical violence.[12]

Remedies

The Tribunal awarded Ms. Smith $35,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. She was also awarded $4,868.86 as monetary compensation for lost income. Additional remedies included that the individual respondent retain a consultant with expertise in sexual harassment and gender discrimination to provide training on his obligations under the “Code” and proof of the completion of the training to be submitted to the Tribunal within 75 days.

While often Tribunal decisions from larger more established companies are noted, Smith v. The Rover’s Rest serves as a reminder that regardless of the size of the company, the “Code” still applies, and all employers are required to comply.


 

[1] Smith v. The Rover’s Rest, 2013 HRTO 700 para. 5

[2] Ibid., para. 6

[3] Ibid., para. 16

[4] Ibid., para. 25

[5] Ibid., para. 24

[6] Ibid., para. 32

[7] Ibid., para. 36

[8] Ibid., para. 37

[9] Ibid., para. 42

[10] Ibid., para. 57

[11] Ibid., para. 63

[12] Ibid., para 120

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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