Canadian Employment Law Today

6 | July 18, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends ticularly difficult for her because there was little physical touching even in her family and she had gotten married before getting intimate with her husband. When the work- er told Singer not to act this way towards her, he laughed at her and told her no one would believe her. Singer's comments continued and began including her place of origin, the colour of her skin, and the shape of her body. He also made fun of her accent and said she had chicken or monkey feet because she was bowlegged. e worker also claimed that Singer be- came more aggressive in his harassment, which included: •Cornering her in the stockroom, the store basement, or his office and doing things like grabbing her, licking her neck, kissing her, rubbing himself against her, and trying to pull her pants down. •Once taking a photo of the worker, pre- sumably for an advertisement, but later showing it to her on her computer with a superimposed penis on her face. •Calling her into his office after closing with pornographic movies playing on the television. •Comments about not knowing her back from her front, which stopped after the worker decided to get breast implants — a decision the worker said was partly influ- enced by Singer making fun of her. •Progressing to sexual assault when he began forcing her to perform oral sex and have in- tercourse 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 assaulting her. e worker said all of this had a negative effect on her marriage, she felt dirty and wondered if she was a bad person. She de- veloped anxiety, depression and nightmares. She divorced her husband in 1992. e worker testified she told Singer's sec- retary about what was going on and the sec- retary said it had happened to her as well and it was better for her to have Singer's attention on the worker. Another store employee also told her "it happened with every girl so what could she do," and the worker claimed sev- eral other female employees quit after Singer touched them inappropriately. Mental health issues worsened after workplace accident In January 2007, the worker fell off a lad- der 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 Sun- days to supplement her workers' compensa- tion income. However, in October 2007 the Ontario Workplace Safety and Insurance Board (WSIB) told her it considered her to not be co-operating with return-to-work or medical treatments. In April 2008 her ben- efits were suspended for failing to attend a labour market re-entry assessment, which the worker said she missed because she was in too much pain. In November 2007, Singer evicted the worker from her apartment for non-pay- ment of rent. Before the injury, the work- er's rent had been deducted from her pay- cheques, but she hadn't had any paycheques from the shoe store since her injury. He also told the WSIB that the worker stole money from the store when she worked on Sundays and there were two break-ins at the store in which money and footwear were stolen. e worker's psychological issues wors- ened while she was off work and she real- ized the problems with her boss, Singer. e worker began seeing a therapist in January 2008 and reported Singer's sexual harass- ment 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 em- ployment situation — including the police investigation, that ultimately resulted in the charges being dismissed. e PTSD was also aggravated by cognitive defects from the worker's head injury. e worker also filed a human rights com- plaint for sexual harassment experienced in her employment. Singer denied all of the allegations against him. He said he only called the worker into the office so she could try on shoes, as her size was an ideal general size. He denied having a key to the worker's apartment and his son was good friends with the worker's son, so there was interaction between the two families. He also explained that he only touched his employees to kiss them on their birthdays and some- times made sexual jokes because it was his nature "to have fun and try and relieve stress in the workplace." Singer insisted that none of the employees who quit did so because of his jokes or any inappropriate touching. Singer also claimed that he had health problems that began with hurting his spine in 2004 that limited his strength and mobil- ity, so it would be difficult to force himself on the worker even though he was much larger. He provided a note from his doctor that list- ed treatment and medication for diabetes, degenerative disc disease, osteoarthritis of the knees, and disc herniation between 2004 and 2007. Singer also said his diabetes medi- cation made it difficult to get and maintain an erection, though he admitted to taking drugs for that purpose. e worker said she didn't recall ever see- ing Singer in pain or with back problems. Employer's version of events not credible: Tribunal e Ontario Human Rights Tribunal found that though the worker had some cognitive issues from her accident that could affect her memory and ability to describe events, her overall account was credible — she was straightforward and consistent, and she was able to provide some detail to certain events that would have been traumatic to her. Her version of events was also supported by the psychological assessments by medical professionals that her symptoms were consistent with sexual abuse — including the fact that sexual assault survivors are often likely not to report it for years, said the tribunal. e tribunal found Singer's claim that he didn't have the strength to force the worker not credible, as there was nothing in the doctor's description of Singer's ailments that referred to a lack of strength in Singer's hands or that he was incapable of assaulting the worker because of back pain or difficulty getting an erection. ere were other inconsistencies with Singer's account that hurt his credibility: He denied taking a photo of the worker, but then said he likely did for advertising; he initially said he didn't know how the worker paid her rent but then said it was deducted from her paycheque; he reported the break-ins to the WSIB even though he had no evidence the worker had anything to do with them; and 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 assaulted the work- er both at the store and in her apartment. e worker was vulnerable with no family in Canada, she was single, lived above the store, and English wasn't her first language. She was stuck working at the store because of financial issues and Singer had power over her, said the tribunal, and the harassment plus belittling and mocking comments cre- ated a poisoned work environment. Singer and Joe Singer Shoes were jointly and severally liable for damages since the sexual harassment and assaults took place both at the worker's place of employment 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, plus 2.5 per cent pre-judgement inter- est for the 10 years from the worker's police report and the tribunal's decision, along with two per cent post-judgment interest. For more information see: •A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (Ont. Human Rights Trib.). $200,000 in damages for decades of harassment « from WORKER on page 1

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