Canadian HR Reporter

CANADIAN HR REPORTER AUGUST 2018 EMPLOYMENT LAW 5 CAREpath is the only Canadian Health Care navigation program of its kind offered in Canada. We have extensive experience in navigating Canadians through the health care system. Cancer Assistance Seniors' Care Assistance HealthCare Assist Your Wellness Partner Immigrant worker suffered decades of sexual harassment, assault by owner Single mother awarded $200,000 for abuse afflicted in Toronto shoe store An Ontario worker has won more than $200,000 in human rights damages for the many years of sexual harassment and assault she endured at the hands of her employer. e 59-year-old worker, identified as A.B. in the trial, was an immi- grant from ailand who came to Canada in 1979. She was hired for her first job in Canada four years later by Joe Singer Shoes in To- ronto. Eventually, the shoe store was taken over by Joe Singer's son, Paul Singer, and the worker moved into an apartment owned by the Singers above the store with her son in 1989. A few years after she began working at the store, Paul Singer began making inappropriate, sex- ually charged comments towards the woman, and inappropriately touching her, according to A.B. is was particularly difficult for her because there was little physi- cal touching in her family. When the worker told Singer not to act this way towards her, he laughed and told her no one would believe her. e comments continued and began including her place of origin, colour of her skin, and shape of her body. e worker claimed Singer be- came more aggressive in his ha- rassment, which included: • cornering her in the stockroom, the basement or his office and grabbing her, licking her neck, kissing her, rubbing himself against her, and trying to pull her pants down • taking a photo of the worker, presumably for an advertise- ment, but later showing it to her with a penis superimposed on her face • calling her into his office after the store closed while playing pornographic movies on a TV • making comments about not knowing the worker's back from her front, which stopped after the worker decided to get breast implants — a decision the work- er said was partly influenced by Singer's abuses • sexual assault when he began forcing her to perform oral sex and have intercourse with him in his office and in her apartment, about twice a month for years • entering the worker's apartment without knocking when her son wasn't there and sexually assault- ing her. e worker developed anxiety, depression and nightmares, and she divorced her husband in 1992. e worker testified she told Singer's secretary about what was going on and the secretary said it had happened to her as well and it was better to have Singer's at- tention on the worker. e worker claimed several other female em- ployees quit after Singer touched them inappropriately. Workplace accident In January 2007, the worker fell off a ladder at work, broke two ribs and injured her head. She received workers' compensation benefits and remained mostly off work, though Singer allowed her to work on Sundays to supple- ment her income. However, in October 2007, the Ontario Workplace Safety and In- surance Board (WSIB) told A.B. it considered her to not be co- operating with return-to-work or medical treatments. And in April 2008, her benefits were suspended for failing to attend a labour mar- ket re-entry assessment, which the worker said she missed be- cause she was in too much pain. In November 2007, Singer evicted the worker from her apart- ment for non-payment of rent since her work injury. Before the injury, the worker's rent had been deducted from her paycheques, but she hadn't received any since her injury. He also told the WSIB that the worker stole money from the till when she worked on Sun- days and there were two break-ins at the store in which money and footwear were stolen. In January 2008, A.B. reported Singer's sexual harassment and assault to the police. She began seeing a psychiatrist in October and was diagnosed with post-traumatic stress disor- der (PTSD) that was aggravated by anything that reminded her of her employer or employment situation — including the police investigation, which ultimately resulted in charges being dis- missed. e PTSD was also ag- gravated by cognitive defects from the worker's head injury. e worker filed a human rights complaint for the sexual harass- ment in her employment, and claimed her eviction — as well as the denial of a parking space behind the store after her police report — was reprisal for her no longer providing Singer with sex. Singer denied all of the allega- tions against him. He denied having a key to the worker's apartment and said his son was good friends with the worker's son, so there was inter- action between the two families. He also explained that he only touched his employees to kiss them on their birthday and some- times made sexual jokes because it was his nature "to have fun and try and relieve stress in the work- place." Singer insisted that none of the employees who quit did so because of his jokes or any inap- propriate touching. Singer also claimed he had health problems that began with hurting his spine in 2004 which limited his strength and mobil- ity, so it would be difficult to force himself on the worker. He provided a note from his doctor that listed several treat- ments, including diabetes, the medication of which made it dif- ficult to have and maintain an erection — though he admitted to taking drugs to do so. e worker said she didn't recall ever seeing Singer in pain or evi- dence of back problems. Inconsistent testimony e Ontario Human Rights Tri- bunal found that though the worker had some cognitive issues that could affect her memory, her overall account was credible, straightforward and consistent, and she was able to provide details of certain events that would have been traumatic to her. Her version of events was also supported by the psychological assessments by medical profes- sionals that her symptoms were consistent with sexual abuse — in- cluding the fact that sexual assault survivors often don't report it for years, said the tribunal. Singer's claim that he didn't have the strength to force the worker was not credible, as there was nothing in the doctor's de- scription that referred to a lack of strength in his hands or that he was incapable of assaulting the worker because of back pain. There were other inconsis- tencies with Singer's account of events that hurt his credibility: •He denied taking a photo of the worker, but then said he likely did at some point for advertising. •He initially said he didn't know how the worker paid her rent but then said he deducted it from her pay. •He reported the store break-ins to the WSIB even though he had no evidence the worker had any- thing to do with them. •He denied having a key to the worker's apartment even though he was her landlord. e tribunal found it was likely Singer sexually harassed and as- saulted the worker both at the store and in her apartment. She was vulnerable due to her social status, and was stuck working at the store because of financial is- sues. Singer had power over her, creating a poisoned work environ- ment, it said. However, the worker was evict- ed before she went to police and the parking space revocation had no evidence supporting it, found the tribunal. As a result, it couldn't find these things were reprisals for the worker going to police with her allegations. Singer and Joe Singer Shoes were jointly and severally liable for damages since the sexual ha- rassment and assaults took place both at the worker's place of em- ployment and her apartment. ey were ordered to pay the worker $200,000 in damages for injury to the worker's dignity, feelings and self-respect and the lengthy period of time over which the harassment and assault took place. In addition, Singer and the store were responsible for 10 years of pre- and post-judgment interest. For more information, see: • A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (Ont. Human Rights Trib.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more, visit www.employmentlawtoday.com. 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