Tribunal Awards Over $38,000 Damages to Esquimalt Denture Clinic Employee Fired Following Sexual Harassment

sexual harassment at work, office woman and her lustful boss

In reasons released for the case of Basic v Esquimalt Denture Clinic and another, 2020 BCHRT 138 on July 7, 2020, BC Human Rights Tribunal Chair Diana Juricevic held that the Complainant Jasmine Basic was sexually harassed by her employer Andrew Lee at an Esquimalt, BC Denture Clinic and that this harassment was a factor in the termination of Ms. Basic’s employment. This constituted discrimination based on sex and Mr. Lee and his clinic were ordered to pay Ms. Basic over $38,000 in damages.

Ms. Basic had been employed as a receptionist at Mr. Lee’s Esquimalt Denture Clinic Ltd. While at the clinic, Mr. Lee engaged in a extensive conduct of a sexual nature. The conduct is outlined by the Tribunal at paragraphs 94 and 95 of the decision as follows:

He repeatedly commented on the size of her breasts and asked whether her “boobs” were fake. In the context of one conversation, he remarked that she was so attractive that she would likely be sexually assaulted in another workplace. He complimented parts of her body – skin, legs, breasts – and overall appearance.

…..

[95] Mr. Lee also engaged in physical conduct of a sexual nature. Mr. Lee slapped Ms. Basic’s butt with a magazine. He repeatedly grabbed her breasts and looked down her shirt. On one occasion, he tried to look down her pants. He hugged her, rubbed her back, rubbed her leg, rested his head on her shoulder, and kissed the top of her head. He pressed his body up against hers when she was putting away an air compressor. He pulled her onto his lap when she was trying on scrubs.

The case largely turned on whether Mr. Lee’s conduct was unwelcome. Mr. Lee argued that the interactions were consensual in the context of an intimate personal relationship. Regarding this issue, the Tribunal held as follows at paragraph 118:

As explained further below, I have no difficulty reconciling the facts that Ms. Basic enjoyed many aspects of working with Mr. Lee, shared personal information, and at the same time, did not welcome his sexual advances.

Mr. Lee asserted that Ms. Basic sexualized the workplace by engaging in sexualized behaviour and wearing provocative attire. Those arguments were rejected, partly because it is a “myth or stereotype that ‘promiscuous’ or ‘party’ individuals are more likely to consent or less worthy of belief.” Ultimately, found the Tribunal, Ms. Basic was touched sexually by Mr. Lee, she told him to stop, and he persisted.

All of this sexual harassment, held the Tribunal, resulted in Ms. Basic being immersed in a poisoned work environment and terminated.

The Tribunal made the following damages awards against Mr. Lee and his clinic:

  1. $11,796.04 for wage loss and wage differential that flowed from the discrimination;
  2. $1,612 for expenses associated with the hearing; and
  3. $25,000 for injury to dignity, feelings, and self-respect.

Tribunal Denounces Use of Prior Sexual History as Consent Defence and Orders Employer pay over $40,000 Damages for Sexually Assaulting House Cleaner

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In reasons released on June 26, 2020, the BC Human Rights Tribunal awarded a woman nearly $45,000 in damages after she was sexually assaulted by a man who employed her for cleaning services in his home.

The events occurred on October 17, 2017. The case turned on whether the Respondent JS’s conduct towards the Complainant MP was unwelcome (their identities were anonymized by the Tribunal). The evidence about both parties was at odds and they were the only witnesses to the events, so JS and MP’s credibility was a major issue in the case. JS was an 87-year-old man who immigrated to Canada as a youth and owned a house where he lived with his wife until her death in 2013 (paragraph 27). He also owned a second home abroad. MP was a middle-aged woman who immigrated to Canada with her husband in 2009 and eventually began working as a house cleaner.

Tribunal Member Emily Ohler stated at paragraph 3 of her decision that at the hearing, she heard extensive evidence about ongoing sexual relations between the parties prior to October 17, 2017. In JS’s response, he asserted that the Complainant MP had consented to sexual contact with him in exchange for money over the course of years. In response to this evidence, the tribunal stated as follows at paragraph 4:

I would like to acknowledge the issues that arise from seeking to defend against sexual assault allegations on the basis of prior sexual history. Evidence of a complainant’s prior sexual history to argue a greater propensity to consent to the encounter at issue is presumptively inadmissible because of its reliance on myths and stereotypes: R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577, R. v. Barton, 2019 SCC 33 [Seaboyer].

While Tribunal Member Emily Ohler recognized that the rules of evidence in the named court cases did not apply to the Tribunal, she noted that the myths and stereotypes referred to in those court cases are similar to three myths and strereotypes recently identified by the Tribunal regarding a sexual harassment complaint in The Employee v. The University and another (No. 2), 2020 BCHRT 12. Those myths and stereotypes were as follows, per paragraph 4:

First, a lack of protest. The Tribunal said at para. 178, “[i]t is not necessary for a complainant to expressly object to the conduct and the law recognizes that a person’s behaviour “may be tolerated and yet unwelcome at the same time”: Mahmoodi, para. 141.” Second, a delay in reporting. The Tribunal observed at para. 179, “I acknowledge that non‐reporting is a stereotype that privileges complainants who resist and report immediately. … A person may choose not to report for a variety of reasons including fear of negative job‐related consequences, not being believed, attacks on their reputation, or the difficult nature of the investigations: Hastie.” Third, participation in prior behaviour. At para. 180, the Tribunal rejected an argument suggesting “a pattern of consent”, saying that such evidence does not support “a finding that the Employee welcomed the conduct, that she is less worthy of belief, or that it is unreasonable to know that the conduct would be unwelcome.”

Consent always needs to be obtained on an ongoing basis. Prior consent does not amount to current consent and is no defence for sexual assault.

Ultimately, the Tribunal made the following findings of fact:

a. JS had a friendly relationship with MP and her family. This included periodic visits
to each other’s houses; a handful of outings together; and MP and her family
sometimes turning to JS for favours.

b. Around 2015, JS began touching MP in a sexual way that was unwelcome. At the
same time, he warned her that if she said anything or stopped working for him,
he would tell her Husband and break up her family.

c. One day, in response to this continuing treatment, MP told JS that she would no
longer return to work for him. After a few weeks of MP not attending the House,
JS visited MP’s Husband to tell him that MP had stopped working for him and ask
the Husband to speak with her. MP reasonably viewed this as a signal that JS
would make good on his threats to tell her Husband about what had been going
on. MP returned to work.

d. The unwelcome sexual contact continued. On October 27, 2017, just before JS
left for overseas, he sexually assaulted her. At this time, MP decided she had
enough and told him she would not be returning to work for him.

e. Once JS left for overseas, MP’s Husband noticed her phone logs showed frequent
telephone calls with JS. When he questioned her, she told him the entire story.
MP and her Husband cut off contact with JS.

f. JS’s conduct has had a lasting impact on MP, leaving her depressed and less able
to engage with work and her family life.

According to MP’s evidence, the unwelcome touching started when JS would brush up against her as she was changing the garbage, for example. Then he asked her for hugs and if she said no, he would hug her from behind. Then, when she was changing the sheets on his bed, he would approach her and push or pull her by the waist on the bed and put his legs over hers when she would try to retreat. He would grab her and grope her, tell her to be quiet, and say that he only wanted to “have fun.” She said that he would try to convince her to have sex with him by complaining that his other cleaners in his home abroad would do it (paras 64 to 73).

Around 2015 or 2016, MP took a break from working for JS as a result of the unwelcome sexual contact. She returned after JS’s visit to her husband, as noted above. The sexual contact and JS’s force escalated, with him forcing himself upon her and then giving her extra money afterwards. The Tribunal made the following findings of fact about the October 27, 2017 events at para 112:

On a balance of probabilities, on the whole of the evidence, I find that it is more likely than not that on October 27, 2017, JS pushed MP onto the bed, put his hands under her clothing, and touched her in a sexual way that she did not want. I find that it is more likely than not that JS touched MP’s breasts, put his fingers into her vagina, and put her hand on his penis. I find that after this encounter, MP told JS that she would not return to work for him when he got back from abroad.

As a result of all of this, MP attended counselling and was diagnosed with depression and PTSD. The sexual assaults impacted her marriage, her relationship with her children, and her work. She stopped working, had suicidal ideations, and retreated from her family and community (para 201).

The Tribunal made the following awards:

  1. $4,300 to replace the income MP would have earned from JS but for the discrimination;
  2. $49.98 for antidepressant medication;
  3. $106.50 for MP’s parking expenses to attend the hearing; and
  4. $40,000 for injury to dignity, feelings, and self-respect

Tribunal Dismisses Complaint Against Strata for Discrimination in Addressing Noisy Neighbour Situation

annoyed stressed woman covering her ears, looking up loud noise upstairs

In his reasons issued on June 16, 2020, BC Human Rights Tribunal Member Paul Singh dismissed a complaint against a strata for allegedly failing to enforce a noise bylaw against the complainant’s neighbours because of her sex and marital status. The complaint was made under section 8 of the BC Human Rights Code, as strata councils are considered to be providers of accommodation, services, or facilities customarily available to the public.

The complainant owns a condo in a strata. She alleged that the residents in the unit above hers were too loud. According to the Tribunal, several actions were taken by the strata and neighbours in an effort to address the complainant’s concerns. The strata:

  • sent caution notices to the upstairs neighbours,
  • conducted noise inspections,
  • tried to arrange a mediation and other voluntary dispute resolution processes between the neighbours and the complainant,
  • included a note in strata council meeting minutes to keep residents aware of the noise issue,
  • sent out “good neighbour” noise notices to all unit owners in the building,
  • sent a letter to the upstairs neighbours suggesting a change of flooring,
  • adopted a bylaw regarding installation of underlay for new flooring to reduce noise, and
  • retained an engineer to determine whether any structural deficiencies existed between the units.

The upstairs neighbours apparently changed their flooring and started wearing slippers.

The Complainant argued that all of these measures were inadequate.

She alleged that her sex and marital status were a factor in the strata’s failure to adequately address her noise concerns. She thought this was the case because of an exchange she had in the building’s parkade with a strata council member who said something to the effect of “you shouldn’t have to put up with that because you are a single woman.” She said that aside from the discrimination which should be inferred from the comment in the parkade, there was no other explanation for why the strata “did nothing” over three years.

The Tribunal held that there was no reasonable prospect of the complainant succeeding in showing a nexus between her sex or marital status and any adverse impact she experienced from the noise in her unit. It held as follows at paragraph 59 of the decision:

The Respondents do not specifically deny that the Comment was made to Ms. Dolinsky. However, the Comment, even if made, cannot reasonably be seen as anything other than an offhand remark made during a brief, casual conversation. A Strata Council member telling Ms. Dolinsky that she should not have to put up with noise issues because she was a “single woman” is simply not sufficient to establish discrimination under the Code given all the steps the Strata had taken through the years to help address and ameliorate Ms. Dolinsky’s noise concerns.

The Tribunal also held the following at paragraph 62:

…it is not the Tribunal’s role to assess the merits of a strata’s management decisions for its building, including the process for investigating and enforcing bylaws, so long
as those decisions are not used as a pretext for discrimination. What concerns the Tribunal is only whether a characteristic protected by the Code was a factor in these decisions: Li v. Options Community Services and others, 2020 BCHRT 104 at para. 84.

Employee Awarded Over $23,000 for Employer’s Withholding of Work when Jealous of her Sexual Relationships with other Men

Young woman on scaffolding by roof

Tribunal Member Emily Ohler issued her reasons on June 10, 2020 for allowing a woman’s complaint regarding sexist discrimination in employment and retaliation.

The complainant LL had worked for a roof repair company from 2009 to 2017. She and the owner of the company, DM, began a personal, sexual relationship around 2011. Following an eight-day hearing, the Tribunal held that although DM did not exploit LL’s reliance on him for work by making work conditional upon her having sex with him, he did “impose adverse employment-related consequences on LL for issues arising from their personal relationship rather than the employment sphere,” and that LL’s sex was a factor in these consequences. The Tribunal also held that DM retaliated against LL in breach of section 43 of the BC Human Rights Code by texting a link to a pornographic video LL appeared in to her cousin and others.

DM had a wife who did not like LL. At some point, he apparently confided in LL about his unhappiness at home with his wife. And then the relationship between LL and DM began. LL’s evidence was that she never enjoyed having sex with DM or wanted him to leave his wife for her, but went ahead with the relationship because she thought she needed to in order to work for DM. DM’s evidence was that LL was a manipulator who used her sexuality to exploit him for financial and other benefits.

At paragraph 72, the Tribunal stated the following about the facts:

While I accept that LL exercised a high degree of autonomy and independence in her own life as well as in her relationships with the Respondents, as I will discuss further below, it is clear to me that DM understood how to exercise his own kind of control in the relationship when he became jealous or had his feelings hurt. As I will discuss, he did so by not showing up when LL counted on him, reclaiming the cars that he had given her, or – central to this complaint – withholding work.

At paragraphs 134 and 135 of the decision, the Tribunal Member sets out how DM imposed adverse employment-related consequences on LL when he was jealous about her having other men in her life:

[134] I do, however, find that there were occasions on which DM withheld work from LL when he became jealous or his feelings were hurt. On this point, I accept that LL sought to ‘keep DM happy’ in the relationship in part to avoid such repercussions. While it is undisputed that she derived a number of benefits from the personal relationship, I accept that she could not have normal relationships with other men in the way that she wanted to and that the possibility of a
fight with DM impacting her work adversely impacted her.

[135] In particular, on a balance of probabilities, in the context of the evidence of both LL and DM, and LL’s journal entries, I find that on the day of the February 2016 Incident in 2016, and on September 22, 29, and October 22, 2017, DM either did not pick LL up or did not tell her about where to go for work, and that he did this specifically in response to his feeling jealous about other men in LL’s life.

The tribunal stated the following about why these actions were in breach of the Human Rights Code:

[175] I am satisfied that LL has met her burden on a balance of probabilities in establishing that she experienced an adverse impact in her employment related to her sex. In Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 [Araniva], the Tribunal found that an employer’s decision to reduce an employee’s hours of work because the employee declined an invitation to socialize with him constituted a breach of s. 13 on the basis of sex. Here, DM’s jealousy over LL’s sexual relationships with other men cannot be extricated from her sex. DM imposed employment‐related consequences because that was one place where he had power
over LL when his feelings were hurt in their personal relationship.

[181] While I have not found that DM coerced LL into sex with the promise of work, I do find that DM periodically withdrew or withheld work when he became jealous or, in his words, his feelings were hurt, by LL’s standing him up or being with other men. This is, in fact, undisputed. DM explained that he loved LL, and so his feelings would be hurt when LL spurned him by not seeing him or by seeing someone else. DM would deny LL work simply because he stopped speaking to LL entirely during these periods when his feelings were hurt. This is not a defence, but an admission. DM was the boss. If DM’s feelings got hurt because he loved LL, with whom he was in a sexual relationship, it was his responsibility to put those feelings aside and treat LL fairly in the workplace regardless.

After LL filed the complaint, DM sent her cousin a pornographic video that she had appeared in many years ago when she was 19 years old. He knew the video upset her and would bring it up when he was angry at her.

Ultimately, the Trinbunal awarded LL $640 damages for the days it ruled she was denied work due to DM’s jealousy. It also awarded the complainant $15,000 for injury to her dignity, feelings, and self-respect in relation to the discrimination complaint and $7,500 for the retaliation.

The Tribunal stated the following about the retaliation damages:

It takes courage to file a complaint. In particular, LL’s complaint required her to publicize highly private, intimate details about her life. I view DM’s actions, taken in the context of his comments that the video showed people that LL is a “nasty” person, as depending upon and looking to further stereotypes about women generally and sexually active, sex‐positive women in particular. He wielded this as a weapon in response to his anger about LL’s complaint. Such actions must be discouraged.

Human Rights Tribunal Agrees to Hear Complaint from Stay at Home Mom that BC Speculation Tax Sets Women Back Many Decades

In a news article published by CBC, Victoria BC Complainant Melany Startek alleges that BC’s speculation and vacancy tax discriminates against stay at home parents (who are most often women) because her contributions of raising a family, volunteering, and community involvement are not considered in the assessment regarding implementation of the tax.

Since those aspects of her life are not considered, and her husband works in the US, she is considered a “satellite” of her husband and an “untaxed worldwide earner” in a “vacant” home. To the contrary, Ms. Startek is a BC resident. She lives in her home full time raising her children and is not a “speculator.” If the work that she does at home were valued, she would not be considered someone who makes less than 50% of the household income and this wouldn’t be the case. Instead, she’s been hit with a $13,250 tax bill for 2019.

The tax was designed to target foreign speculators who leave properties empty while they live and pay taxes abroad.

Startek’s lawyer told CBC that the tax has made certain family the scapegoats of BC and that if the Human Rights complaint is successful, it could open up the government to a realm of human rights complaints.

Complaint About Hair Salon’s Alleged Refusal to Provide Hair Cut to Transgender Woman Dismissed

In reasons for decision regarding X v Hot Mess Hair Salon (No 2), 2020 BCHRT 42, the BC Human Rights Tribunal dismissed a complaint against Hot Mess Hair Salon for allegedly refusing to provide a transgender woman hair style and cut services.

When complaint X inquired on a hair stylist’s Facebook page about pricing for a style and cut, the stylist replied that she only does women’s hair. When the complainant stated “actually I’m a girl ha, ha (it happens a lot lol)” and then went on to ask about availability, she received no answer. It appeared to her that the stylist blocked her from Facebook.

X then searched for the stylist on the internet and found that she worked for Hot Mess. X contacted Hot Mess to express her frustration, the owner apologized, assured her that she had not been blocked (she said the stylist’s Facebook page had been “locked”), and offered her a free hair style and cut. The stylist did the same. X refused and filed the Human Rights Complaint.

Ultimately, the tribunal dismissed the complaint, finding that X did not establish a connection between her gender identity and her inability to schedule a hairstyling appointment. It stated the following:

[32] In order for the complaint to succeed it would be necessary for the Tribunal to draw the inference that her gender was at least a factor in her being prevented from making an appointment to have her hair styled and cut. I am unable to draw such an inference for the following reasons.

[33] I have the evidence of X that she is satisfied that the stylist was not actually locked out of Facebook. Unfortunately, her reasons for reaching that conclusion are not supported by any expert evidence with respect to the use of Facebook or Instagram. Combine that with apparent efforts by the stylist to have a conversation with X and to book her in for a style and cut and then an attempt by Ms. Simpson to do the same, and I am not in a position to conclude that the events of March 5 were precipitated by X’s gender. It is just as probable that they were precipitated by the stylist’s expressed inability to respond to X via Facebook.

Landlord’s Harassment Forces New Mother to Vacate Suite 12-days after C-Section

In a decision issued on February 19, 2020, Valdez v Bahcheli, the BC Human Rights Tribunal held that a landlord’s conduct amounted to discrimination on the basis of sex and family status, in violation of section 10 of the BC Human Rights Code.

A few days after Germaine Valdez gave birth, her landlord Meltem Bahcheli texted her saying that she would need to find a new place to live. The day Valdez returned from the hospital, Bahcheli came to the suite and began yelling at her. Bahcheli told Valdez that if her family did not cooperate and agree to vacating the suite, she would be evicted and refused a reference. Further, Bahcheli would not allow Valdez to stay present in the suite while it was shown to prospective tenants. This meant Valdez would have to walk around outside in the cold with her baby for two hours while recovering from her recent c-section. Her baby was 11 days old.

The Tribunal ordered that Bahcheli pay Valdez $1,923.56 for moving expenses and $9,000 as compensation for injury to her dignity, feelings, and self-respect.

In delivering reasons, the Tribunal held as follows:

[30] Ms. Bahcheli’s behaviour was having a serious impact on Mrs. Valdez. She was frequently crying. She was having to physically exert herself more than she should have been, immediately following a c‐section. As a result, she experienced some unusual bleeding that required medical attention. Mr. Valdez testified emotionally about this time. He explained that all he wanted to do was make sure his wife was safe, but they had very limited resources. He was working and going to school and so could not be at the apartment all day to intervene with Ms. Bahcheli. They could not afford to hire movers and he wanted to make sure Mrs. Valdez was doing as little physical activity as possible.

[40] There were no issues in the Valdezes’ tenancy until Mrs. Valdez told Ms. Bahcheli that she had given birth. A person’s family status includes the size and composition of their family: Fakhoury v. Las Brisas Ltd (1987), 8 CHRR D/4028 (Ont. Bd. Inq). It includes having a baby: Cha v. Hollyburn Estates Ltd., 2005 BCHRT 409. In the housing context, the protection from discrimination based on family status “exists precisely to protect families, and others who may be screened out of tight housing markets, from being unjustifiably excluded from safe and secure housing”: Abernathy v. Stevenson, 2017 BCHRT 239 at para. 15.

[43] The birth triggered Ms. Bahcheli to begin what would become a torrent of accusations that the Valdezes had lied to her and misrepresented themselves. Over the next few weeks, she refused to meet and deal with the Valdezes in a professional way, threatened to start legal action against them and charge them sums of money for wasting her time, and insisted on frequent, uninterrupted access to their apartment at her own convenience. I am satisfied that Ms. Bahcheli’s conduct over this period constituted harassment at a point when Mrs. Valdez was particularly vulnerable. The harassment was directly connected to the birth of Mrs. Valdez’s child.