In A.B. v. C.D., 2022 HRTO 890, the Human Rights Tribunal of Ontario (HRTO) found that the applicant was a victim of discrimination on the basis of sex and that her work environment was poisoned by repeated acts of discrimination and harassment by the company’s owner (Owner), causing her to resign.  The HRTO found that because the Owner was a directing mind of the employer, the employer was jointly and severally liable with the Owner for injury to her dignity, feelings and self-respect ($25,000) and for loss of wages ($31,200) caused by her need to resign from a poisoned work environment.

Background

The applicant, a single mother, was employed in various roles from 2007 until her resignation in 2014.  Shortly after she commenced employment, the Owner was abusive and discriminatory.  He reportedly yelled at her, belittled her, called her names, and disparaged her.  Her doctor recommended that she quit. In 2011 she resigned because of the stress, but returned to work later in that same year because she could not find another job. 

The Owner’s discriminatory behaviour and harassment escalated upon her return.  She also witnessed his abusive behaviour to others, heard him using gendered and vulgar language about women, saw him throwing, smashing, and breaking things, watching pornography, and groping women in the workplace.  When the applicant’s minor daughter visited her at the office, the Owner made vulgar sexual advances toward the daughter.  On a day when the Owner was again abusive toward her and made crude sexual comments about her, the applicant resigned and sought medical treatment.   

The applicant found new work in 2015 and suffered lost income.

A co-worker corroborated the applicant’s testimony and, among other things, stated that the Owner had inappropriately touched her.

In his response to the Application, the Owner did not deny the applicant’s statements but alleged that her stress resulted from health issues and life circumstances that arose prior to and after she became employed.  He also indicated that he would be submitting medical documents to illustrate that he has a mental health disability, but never produced them.

Decision

Applicable Legal Principles

The HRTO reviewed the legal principles that applied to the application.  Some of the more notable principles are: 

• Section 5(1) of Ontario’s Human Rights Code (Code) protects against sex discrimination in employment.   
• To prove that they experienced sex discrimination in employment, an applicant must prove that they experienced adverse treatment, and that sex was a factor in it.
• Section 7(2) of the Code prohibits sexual harassment in the workplace.
• Section 10(1) of the Code defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

Sexual harassment in the workplace was broadly defined in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC) 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…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.

• A “poisoned work environment,” is a form of discrimination prohibited by section 5(1) of the Code.  It exists when there has been:
  
  •  a particularly egregious, stand-alone incident, or
  • serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated enough that it becomes a condition of the complainant’s employment.

To determine whether a poisoned work environment exists, relevant factors include:

• the number of comments or incidents;
• their nature;
• their seriousness; and
• whether taken together, it became a condition of the applicant’s employment that they must endure discriminatory conduct and comments.

The applicant’s subjective experience or genuinely held beliefs are not determinative. There must be evidence that the workplace was poisoned from the perspective of the objective bystander.

• Section 46.3(1) of the Code provides that—with some exceptions—any act or thing done or omitted to be done in the course of their employment by an officer, official, employee or agent of a corporation, etc. shall be deemed to be an act or thing done or omitted to be done by the corporation, etc.  The purpose of s. 46.3 is to confirm the parallel statutory liability of corporations for the actions of their employees, not to replace it.   
• A corporation cannot be held vicariously liable, however, for its employees’, agents’ or officers’ acts of sexual harassment. Complaints of sexual harassment must be brought against the individual who actually committed the harassment.
• If, however, management employees fail to take appropriate action to prevent discriminatory harassment in the workplace once they know of the offending conduct, they are creating a poisoned work environment and they may be found personally liable for infringing an employee’s right to a workplace free from sex discrimination under s. 5(1). The employer may be found vicariously liable for this violation.
• Finally, if the individual responsible for the harassment is a directing mind of the employer, the employer can also be held liable for the individual act of harassment.   

Application of legal principles

Noting that the applicant had nowhere to go within the organization to report the Owner’s conduct, the HRTO concluded that he was the directing mind of the employer, and the “organizational respondent” could be found jointly and severally liable for his conduct. 

The HRTO found that the applicant was a victim of sex discrimination and that her work environment was poisoned by repeated acts of discrimination and harassment, which caused her to resign.   

The HRTO accepted the applicant’s testimony that “she was targeted daily with conduct that was discriminatory, abusive and in some cases, violent” and stated that, “The vulgar and aggressive comments about her appearance, intelligence and work performance struck at the core of her dignity as a woman. She felt that she had no choice but to put up with the respondent’s behaviour if she wanted to maintain her job.”

Noting that the applicant was required to prove that her gender was “a factor” in the respondent’s treatment of her, the HRTO concluded:

The more vulgar or aggressive incidents described by the applicant, including the gendered and sexual comments made to the applicant’s daughter when she was a minor, are sufficiently egregious as stand-alone incidents to constitute a poisoned work environment. Taken together, the incidents the applicant described are sufficiently serious and repeated that any reasonable person would conclude that it became a condition of the applicant’s employment that she must endure the discriminatory and harassing comments and conduct of the respondent to keep her job. The evidence is clear that the bullying and harassment the applicant experienced was an abuse of power, exercised in part because she is a woman, that created a poisoned work environment.

Remedy

Having found that the Owner was a directing mind of employer and was responsible for a poisoned work environment, the HRTO found that the employer was jointly and severally liable with the Owner for injury to her dignity, feelings and self-respect ($25,000) and for loss of wages ($31,200).

Bottom Line for Employers

Employers are encouraged to ensure they have policies in place that prohibit sex discrimination and sexual harassment in the workplace, and to ensure that their employees acknowledge they have read and understand such policies.  Such policies may make employees less likely to engage in such conduct. 

Moreover, employers should be sure to train their management employees to take appropriate action to prevent sex discrimination in the workplace once they know of such offending conduct.  Such training may make management employees less likely to create a poisoned work environment by failing to take appropriate action once they become aware that harassment has occurred in the workplace, thereby protecting management from being found personally liable for doing so, and protecting the employer from being found vicariously liable for management’s violation.