THE
JUDGEMENT

Heather McWilliam

HUMAN RIGHTS TRIBUNAL OF ONTARIO 

 

B E T W E E N: 

Heather McWilliam, Applicant 

-and-

Toronto Police Services Board and Angelo Costa, Respondents 

-and- 

Toronto Police Association, Intervenor 

 

DECISION

Adjudicator: Jo-Anne Pickel 

Date: June 29, 2020 

File Number: 2014-18687-I 

Citation: 2020 HRTO 574 

Indexed as: McWilliam v. Toronto Police Services Board 


 

APPEARANCES

Heather McWilliam, Applicant

Kate Hughes, Nadia Lambek, and Tyler Boggs, Counsel

 

Toronto Police Services Board and Angelo Costa, Respondents

Amandi Essonwanne and Swarna Perinparajah, Counsel

 

Toronto Police Association, Intervenor

Anne Cumming, Counsel

INTRODUCTION

 

[1] The applicant is a police officer who alleged that she was subjected to sexual harassment, a poisoned work environment, reprisals, and discrimination because of disability including a failure to provide reasonable accommodations for her posttraumatic stress disorder (“PTSD”).

[2] The applicant and the respondents held widely differing and divergent perspectives on just about every aspect of the case. There is no better illustration of this than the polarized descriptions of the case that they provided in their final written submissions. In their final submissions, the applicant and her counsel argued that she was subjected to a serious pattern of sexual harassment that included sexual assault, reprisals by her superiors and colleagues for raising harassment complaints, and repeated and systemic failures to address or investigate her complaints. In stark contrast, the respondents and their counsel argued that the entire case arose as a result of one comment made by one of the applicant’s staff sergeants. They argued that the applicant then expanded her allegations as she interpreted or reinterpreted interactions to make them seem inappropriate. According to the respondents, the applicant pursued a ‘scorched earth’ strategy in order to seek vengeance against the respondents and in order to win her case at all costs.

 

[3] My findings below are based on my unique position as the only impartial person to have heard, read, and spent a very significant amount of time analyzing all of the evidence in this case. My decision is based on my hearing and detailed review of 35 days of testimony, over 150 exhibits, over 250 pages of final written submissions, and a full day of final oral argument. As I will describe, the story of the case is one that is more complicated than the polarized perspectives presented by the parties.

Summary of Findings

[4] As described in more detail below, I find that the applicant has satisfied her onus of establishing, on a balance of probabilities (in other words, that it is more likely than not), that she experienced a poisoned work environment and that she experienced sexual harassment, including a forced kiss from the individual respondent.

 

[5] The applicant’s allegations of sexual harassment mainly took the form of sexual comments and innuendo, the viewing and discussion of photos of her in the workplace and a sexual assault in the form of a forced kiss. As I describe below, most of the sexually harassing comments or actions that were made out by the evidence in this case were likely not made or carried out maliciously or with an intent to harm the applicant. On the contrary, it is more likely than not that the individuals who made or carried out most of these sexually harassing comments and actions did so in what, from their perspective, was simply a joking manner. However, that does not relieve the respondents of responsibility for these comments and actions. Even joking comments or actions can constitute harassment under the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”). More importantly, even joking sexualized comments and actions can have a serious impact on individuals over the course of time, as they did on the applicant in this case. This is especially so in a context where the applicant was one of a small number of women in her workplace and when most of the individuals making and carrying out the harassing comments and actions were sergeants and staff sergeants who were in a position of power in relation to her.

 

[6] The evidence in this case demonstrates how the cumulative effect on someone of a series of comments and actions may be very significant. In this case, the comments and actions described below occurred over several years and they were made by persons who had a significant degree of power over the applicant’s day-to-day work as well as her career prospects. The temptation will be for some to treat the sergeants and staff sergeants who made and carried out the harassing comments and actions described below as “bad apples” within 23 Division. However, there was evidence in this case that comments in the form of sexual innuendo and comments calling attention to women’s appearance and sexuality were not considered unusual in the applicant’s workplace. This evidence suggests that the individuals who made the comments and carried out the actions detailed below may have been inured or desensitized to the inappropriateness of these comments and actions.

 

[7] I say this not to absolve these individuals of responsibility for any of the inappropriate and harassing comments or actions that they made or carried out. Rather, my point is that my findings below should not be read as an indictment or criticism of particular individuals as much as it is a set of findings about the cumulative harmful effect of a series of inappropriate and harassing actions over the course of time. While some, or even many, of the actions made out in the evidence, other than the forced kiss, might not be considered egregious when viewed in isolation, these incidents became significant and harmful when they formed part of a pattern or series of similar incidents to which the applicant was subjected and which became a condition of her employment. As I will describe below, that is the essence of a poisoned work environment. While my findings below are limited to 23 Division, I have no reason to believe that the officers at 23 Division conduct themselves any differently than their colleagues in other divisions. This is especially the case since many of them had worked in other divisions or parts of the Toronto Police Service before joining 23 Division.

 

[8] In addition to making out her allegations of sexual harassment and poisoned work environment, the applicant has also satisfied her onus of making out some of her allegations of disability discrimination. Specifically, I find that she experienced discrimination because of disability when the Toronto Police Services Board (“Board”) insisted that her medical assessment by its Medical Advisory Services (“MAS”) be performed at the MAS offices which are located at Toronto Police Service headquarters. As I will describe below, the failure of MAS to grant the applicant’s reasonable accommodation request to have the assessment performed off-site gave rise to a chain of events which culminated in the applicant’s superiors warning that she would be marked Absent Without Leave (AWOL) if she did not attend for the medical assessment at MAS. As I will describe below, the root of the Code breach lies in the actions of MAS. These actions set the stage for the subsequent pressure that was placed on the applicant by her superiors in the chain of command. As I discuss below, the latter were acting upon communications they received from MAS (incorrectly) advising them that the applicant was refusing to attend a medical assessment to substantiate her disability.

 

[9] Although the applicant made out the allegations described above, I find that she has not established that the Board failed to properly respond to, investigate, or prosecute the internal complaint she made against one of her staff sergeants. I also find that the applicant has not satisfied her onus of establishing on a balance of probabilities that anyone at the Board reprised against her, or threatened to reprise against her, for making her internal complaint.

 

[10] I detail my reasons for making the findings summarized above in the pages that follow, with references to the evidence to the extent necessary to support these findings. 

THE PARTIES

[11] The applicant has been employed as a police officer by the Board since October 2005. She primarily worked as a Police Constable at 23 Division up to January 2014. From January 2014 up to the time of writing, she has been on an approved medical leave and receiving loss of earnings benefits from the Workplace Safety and Insurance Board (“WSIB”). [12] The Board is the entity that is responsible for the provision of police services in the municipality of Toronto under the Police Services Act. The Board is the employer of police officers who work within the Toronto Police Service. [13] Angelo Costa is the only person that the applicant named as an individual respondent in this case. He was employed as a police officer by the Board. He was a Sergeant of the applicant’s platoon within 23 Division during a portion of the time period that is relevant to this Application. He is now retired.

[14] The Toronto Police Association took part in the case as an intervenor. However, it did not seek to admit any evidence or make any submissions in the case. OVERVIEW OF CHRONOLOGY

 

[15] As noted above, the applicant made four main types of allegations in this case. First, she alleged that she was subjected to sexual harassment, sexual solicitation and advances, and a poisoned work environment as a result of various comments and actions made and carried out by various supervisors and one colleague. These allegations spanned a three-year period from 2011 until the applicant began her medical leave in January 2014.

 

[16] In December 2012, the applicant filed an internal complaint with respect to her sexual harassment allegations against one of her supervisors: Staff Sergeant (“SSgt”) Nolan. In her Application to this Tribunal, she made a number of allegations regarding the Board’s investigation and prosecution of her internal complaint. Starting in January 2013 until the end of September 2013, the applicant was assigned to work in other units, specifically, on a wiretap investigation and the drug squad. She made allegations of reprisal with respect the denial of extensions of these assignments and the denial of another assignment in October 2013. The applicant returned to her unit briefly at the end of 2013 before starting a medical leave in January 2014. She has made allegations of disability-related discrimination in relation to actions of the Board’s representatives during this medical leave.

 

[17] The applicant applied for, and was granted, loss of earnings benefits for traumatic mental stress by the WSIB in May 2014 and has continued to receive such benefits up to the time of writing. She filed her Application to the Tribunal in September 2014.

 

PROCEDURAL AND EVIDENTIARY ISSUES

 

[18] Before turning to the substance of the case, I address some of the more significant procedural and evidentiary issues that form the backdrop to my analysis. 

Witnesses

[19] Over the course of approximately 35 hearing days, I heard testimony from 34 witnesses. I heard evidence in support of the applicant’s case from the applicant; her psychiatrist, Dr. Martin Katzman; her psychologist, Dr. Monica Vermani; and Connie McWilliam, the applicant’s mother.

 

[20] The applicant also called as a witness Andre Goh, Manager of the Toronto Police Service’s Diversity Management Unit (“DMU”, which at the time of hearing was called the Diversity and Inclusion Unit). In addition, I heard evidence from Professor Marilyn Corsianos who I permitted the applicant to call as an expert to provide opinion evidence.

 

[21] I heard evidence in support of the respondents’ case from the following witnesses: Superintendent Scott Baptist; Marisa Cornacchia, a nurse at MAS; the individual respondent, Sergeant (“Sgt”) (retired) Angelo Costa; Deputy Chief Shawna Coxon; SSgt Joe Dawson; Police Constable (“PC”) Joanne Day; Inspector (retired) Mike Ervick; Detective (“Det.”) Bronagh Fynes; Inspector (formerly SSgt) Pauline Gray; Detective Sergeant (“DSgt”) (retired) Colin Kay; SSgt (formerly Det.) Brian Kay; DSgt Jordan Latter; PC Junior McLaughlin; DSgt Richard MacCheyne; station operator Laurie Naughton; SSgt Christopher Nolan; PC Lubomir Panaytov; Sgt Howard Payton; DSgt Paul Qureshi; Det. Kevin Sedore; PC Barbara Skolly; DSgt Les Stasiak; Inspector Ian Stratford; SSgt Brent Swackhammer; SSgt Kim Timbers (formerly Ledgerwood); Sgt (formerly PC) Jocelyn Watson; and SSgt (retired) Joe Zubeck.

 

[22] An issue arose early on in the hearing as to which party should call SSgt Nolan to testify. The respondents did not originally intend to call SSgt Nolan as a witness, despite the fact that he was the focus of some of the applicant’s main allegations in the case. The respondents’ counsel took the position that SSgt Nolan was adverse in interest to the respondents because he had admitted to making two of the comments alleged by the applicant. The applicant’s counsel indicated that she would call SSgt Nolan if necessary since he was a key witness in this proceeding. I advised the respondents’ counsel that I considered SSgt Nolan to be even more adverse in interest to the applicant and therefore it would make much more sense for the respondents to call him as a witness. The respondents’ counsel agreed to do so. However, he periodically continued to reiterate his position that he should not have had to call SSgt Nolan as a witness as he was adverse in interest to the respondents. In my view, even if SSgt Nolan admitted to making two of the comments alleged by the applicant, that, by itself, did not make him an adverse witness. While SSgt Nolan admitted to making two of the comments, he either denied making others or denied that they were inappropriate. He also never sought to evade the questions posed to him by the respondents’ counsel at the hearing. For these reasons, I did not, and still do not, find that the respondents experienced any unfairness from calling SSgt Nolan as a witness. Preliminary and Interlocutory Issues

 

[23] A very large number of preliminary and interlocutory procedural, evidentiary and other legal issues have arisen in this case. This history is extensively documented in the numerous Interim Decisions and Case Assessment Directions I have issued in this case and I will not repeat it here. See the following Interim Decisions: 2015 HRTO 1082, 2016 HRTO 449, 2016 HRTO 704, 2016 HRTO 801, 2016 HRTO 934, 2016 HRTO 1413, 2017 HRTO 8, 2017 HRTO 19, 2017 HRTO 78, 2017 HRTO 127, 2017 HRTO 425, 2017 HRTO 1130, 2018 HRTO 380, 2019 HRTO 1496, 2019 HRTO 1573, and 2020 HRTO 232.

 

[24] It should be noted that part way through the hearing, the respondents brought a request to dismiss certain allegations on the basis that they stood no reasonable prospect of success. I heard oral submissions from the parties in relation to this request. By Interim Decision 2017 HRTO 1130, dated August 31, 2017, I dismissed some of the applicant’s allegations on the basis that they had no reasonable prospect of success.

 

[25] On the same date, I issued a Case Assessment Direction (“CAD”) that summarized the remaining allegations in order to provide clarity on the allegations that remained in this case. I made clear that the allegations set out in the CAD were the only allegations that were properly before me. In their written submissions, the applicant and her counsel seek to rely upon various alleged comments or incidents that I have already ruled do not properly form part of this proceeding. This is clearly improper. Below, I address only the allegations that I included in my August 31, 2017 CAD, as those are the only allegations that are properly before me.

 

Time Taken to Hear Case

[26] The applicant filed her Application in September 2014. The hearing of the case took place over an extended period of time. The applicant and the respondents have at various times sought blame each other for the extended time it took to finalize the case. In my view, there were five primary reasons for the extended period of time it took to hear the case.

 

[27] First, since the applicant raised an allegation of sexual assault against the personal respondent for the first time in her Application, the Special Investigations Unit (“SIU”) was required to investigate this allegation. The SIU is an independent civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury, or allegations of sexual assault. On the consent of the parties, the Tribunal deferred consideration of the Application pending the resolution of the SIU investigation. The Application was deferred for approximately a year, until August 14, 2015.

 

[28] Second, the applicant and her counsel seemed to believe that the applicant could simply add as many allegations as she wanted at the hearing as “context”. I permitted the applicant to add some particular examples of some of the broadly-framed allegations contained in her Application. However, I did not permit her to add various additional allegations that amounted to whole new allegations which should have been included in the Application or Reply. As a matter of procedural fairness, I granted the respondents permission to call additional witnesses to respond to the additional particularized examples provided by the applicant at the hearing. While the applicant and her counsel sought to blame the respondents for lengthening the hearing through the addition of these witnesses, this claim is unjustified. I permitted the respondents to call additional witnesses precisely because I had permitted the applicant to add the particularized examples of allegations. If the applicant had not done so, or if I had not permitted her to do so, the respondents would not have called their additional witnesses and the hearing would have been much shorter. In my view, the applicant could not have it both ways. She could not reasonably expect to raise significant particulars of certain broadly-framed allegations for the first time at the hearing, but also expect that I would deny the respondents a full and fair opportunity to respond to these new particulars.

 

[29] Third, the counsel on this case are both experienced counsel who represented their clients in an exceedingly thorough and rigorous manner. This meant that every single aspect of the case was hard-fought, from the smallest objection at the hearing to the numerous Requests for Orders During Proceedings made by both the applicant and the respondents. This rigorous form of advocacy is evidenced by the very large number of Interim Decisions and Case Assessment Directions I have issued in this case and it lead to a significant extension of the time it took to hear the case.

 

[30] Fourth, I was appointed to a different tribunal before I finished hearing the evidence in the case. This led to a further delay while it was determined whether, and/or how, I could finalize the case.

 

[31] Finally, a few days before he was scheduled to testify in this case, Superintendent Taverner suffered a concussion at work which rendered him medically unfit to testify in the case. His testimony had to be rescheduled at least twice and ultimately cancelled due to the opinion of his treating specialist that he remained medically unfit to testify. I address the issue of Superintendent Taverner’s medical inability to testify in more detail in the next section of this decision.

[32] In my view, these were the five main factors that led to the extended period of time it took to hear the case. The length of the proceeding did not cause any prejudice to the parties’ ability to put forward their case, as evidenced by their fulsome final submissions in the case.

No Adverse Inferences

[33] The applicant has requested that I draw adverse inferences from the failure of two of the respondents’ expected witnesses to testify and from the respondents’ failure to produce certain materials. For the reasons set out below, I decline to do so. Superintendent Taverner’s Failure to Testify

 

[34] Superintendent Taverner was included on the respondents’ list of expected witnesses from the very beginning of the case. As noted above, shortly before his scheduled testimony, Superintendent Taverner suffered a concussion at work. By this time I had also already left the Tribunal. Given that the Tribunal had set aside two hearing days in July 2019 during which I would return to the city to hear evidence, I directed Superintendent Taverner’s family doctor to make himself available by telephone to provide information to the Tribunal and the parties about Superintendent Taverner’s medical restrictions, his fitness or unfitness to testify, and his expected recovery time. Based on the information provided by his doctor, it became clear that Superintendent Taverner was medically unfit to testify and that he likely would not be able to testify for at least another six months. At a certain point, Superintendent Taverner began to be followed by a specialist retained by the WSIB. I ordered this physician to provide two updates on Superintendent Taverner’s ability to testify.

 

[35] In his December 2019 update, the specialist retained by the WSIB indicated that Superintendent Taverner remained medically unfit to testify in the case. At this point the respondents continued to indicate that they wished to call Superintendent Taverner as a witness. By CAD issued in January 2020, I directed the parties to provide their positions in relation to three options for next steps in the case. The three options were (i) the severing of the allegations relating to Superintendent Taverner and the hearing of these allegations by a different Vice-chair when Superintendent Taverner was fit to testify; (ii) proceeding to finalize the case based on the  existing evidence with the parties making whatever submissions they wished to make on whether it was appropriate for me to decide any or all of the allegations against Superintendent Taverner; and (iii) the further deferral of the hearing until Superintendent Taverner was medically fit to testify.

 

[36] Both the applicant and the respondents agreed to setting dates for Superintendent Taverner to testify, and to proceed with option (ii) above in the event that Superintendent Taverner remained medically unfit to testify by the dates that had been set for his testimony. I then issued an Interim Decision ordering Superintendent Taverner’s treating physician to provide a further update on his medical fitness to testify. I advised the parties that, in the event that Superintendent Taverner remained medically unfit to testify on the dates that were set for his testimony, I would proceed to receive final written submissions and final oral arguments from the parties.

 

[37] The last update from the specialist retained by the WSIB indicated that Superintendent Taverner remained medically unfit to testify on the dates in April 2020 that the Tribunal had set aside for his testimony. By CAD dated April 9, 2020, I advised the parties that, as agreed by them, we would proceed with final written submissions and closing oral arguments in the case.

 

[38] In the above circumstances, I do not agree with the applicant’s counsel that I should draw an adverse inference based on Superintendent Taverner’s failure to testify. In my view, the respondents have provided a reasonable explanation for his failure to testify. As noted above, the physician retained by the WSIB advised the Tribunal that Superintendent Taverner remained medically unfit to testify. It may be the case, as noted by the applicant’s counsel, that it would have been preferable for this physician to specifically address the Tribunal’s question as to whether Superintendent Taverner could have testified if provided accommodations. It would also have been preferable for the physician to address why Superintendent Taverner was medically unfit to testify in this proceeding when he was fit to return to work. I note that I have no actual evidence regarding the circumstances of Superintendent Taverner’s return to work beyond the assertions of counsel. It was the applicant’s counsel who advised the Tribunal that Superintendent Taverner had returned to work. However, the respondents’ counsel advised that this return to work was a gradual return to work, rather than a return to full duties. In addition, as noted by the respondents’ counsel, testifying in a very charged legal proceeding is different from returning to work, especially if, as alleged by the respondents, it was a gradual return to work.

 

[39] Ultimately, I decided that it would not be appropriate to draw this proceeding out further by requiring a more detailed medical update from Superintendent Taverner’s treating physician. This is especially the case since, by this time, the COVID 19 pandemic was at, or near, its peak in Canada, and all organizations including the Tribunal, law firms, and the City of Toronto were functioning at reduced capacity, and hospitals, such as the one where Superintendent Taverner’s treating physician worked, were struggling to respond to the pandemic. Perhaps most importantly, I have found that I can decide all of the allegations against Superintendent Taverner based on the evidence I heard from the applicant and various respondent witnesses as well as the documentary evidence admitted in the case.

 

[40] The respondents’ counsel argue that I should admit and rely on Superintendent Taverner’s witness statement for the truth of its contents. I do not find this appropriate for two reasons. First, the witness statements in this case were drafted by legal counsel and they were not made under oath or affirmation. Second, and most importantly, Superintendent Taverner was not subject to cross-examination on the contents of his witness statement. Therefore, in this Decision, I place no reliance upon the witness statement that the respondents’ counsel submitted on behalf of Superintendent Taverner. Nurse Dawn Erickson’s Failure to Testify

 

[41] I also find that it is not appropriate to draw an adverse inference from Dawn Erickson’s failure to testify. Ms. Erickson was the main nurse the applicant dealt with at the Board’s medical advisory service, MAS. Although the applicant’s counsel expressed skepticism that the respondents were truly unable to find Ms. Erickson, I note that the respondents took the step of requesting that I issue a subpoena for Ms. Erickson to appear before the Tribunal. I issued the requested subpoena, but it was unsuccessful in securing Ms. Erickson’s attendance to testify. The respondents requested permission to call as a witness a different MAS nurse, Marisa Cornacchia, who had some involvement in the applicant’s case, even if she was not the principal nurse who had dealt with the applicant. I granted this request, as Ms. Cornacchia was the second-best person to testify about the MAS’s involvement with the applicant during her medical leave.

 

[42] For the same reasons given above regarding Superintendent Taverner, I do not find it appropriate to rely on Ms. Erickson’s witness statement for the truth of its contents. The witness statement was drafted by the respondents’ counsel; it was not made under oath or affirmation; and Ms. Erickson was not cross-examined on it. Respondents’ Failure to Produce Certain Materials

 

[43] In the circumstances of this case, I do not find it appropriate to draw an adverse inference from the respondents’ failure to produce memo books for the officers who testified as witnesses in the case. I note that the applicant’s counsel never made a Request for Order During Proceedings to obtain an order of the Tribunal for the production of these materials. This is despite being very familiar with this process and having used the procedure to obtain many documents or to make many other requests during this proceeding. The applicant’s counsel also did not request that I order witnesses to bring their memo books with them when they appeared to testify. Therefore, I decline to draw an adverse inference regarding the respondents’ failure to produce memo books to the applicant or the failure of the respondents’ witnesses to bring any memo books with them when testifying. That said, I did find it concerning that the police officers who testified on behalf of the respondents did not bring their memo books to the hearing. As noted in the credibility overview below, many of the witnesses called by the respondents testified to having no recall of the various incidents alleged by the applicant. In my view, their recall of events may have been aided by having their memo books with them, even if just to situate them in time in relation to other events, among other reasons.

[44] I also do not find it appropriate to draw an adverse inference from the respondents’ failure to produce certain data and information concerning internal complaints of sexual harassment. In their final written submissions, the applicant’s counsel claim that this data and information would have been covered by a production request they made over five years before and it was not until Deputy Chief Coxon’s testimony that the respondents acknowledged the existence of the materials. As noted by the applicants’ counsel, they did make a wide-ranging production request shortly before the first day of hearings. In Interim Decision 2016 HRTO 1413, I indicated that I would deal with the request at a later date since the parties had raised nine other preliminary issues, many of which were more time sensitive. I then dealt with the applicant’s production request in Interim Decision 2017 HRTO 425 and denied it. In particular, I denied the production request as the documents sought related to certain allegations of systemic discrimination that the applicant had attempted to raise, which I did not permit her to pursue as they extended beyond the actual allegations contained in her Application. In these circumstances, it is not appropriate to draw an adverse inference from the respondents’ failure to produce these materials. They did not produce the materials because I held that they did not have to.

 

Expert Evidence

 

[45] I permitted the applicant to call an expert witness in this case. She called Professor Marilyn Corsianos, who is a professor of criminology and sociology, to provide opinion evidence regarding gender issues in police culture. Professor Corsianos described various characteristics of police culture including its masculinist standards, the importance of being a team-player and the importance placed on supporting the “brotherhood” in its efforts to police the “thin blue line” between chaos and order. She also described how police services, such as the Toronto Police Service, are heavily male-dominated workplaces. According to Professor Corsianos, few women who experience sexual harassment in the workplace actually file complaints. They often develop coping mechanisms by ignoring it or deflecting it through joking or going along with it.

[46] Professor Corsianos also testified that, in her opinion, it would be very difficult for individuals who may have witnessed incidents to openly confess and tell what they saw because they would be shunned or their reputations might be damaged. When asked by the respondents’ counsel whether she was saying that police officers in a case such as this one will always lie under oath, she said “no” and she acknowledged that her research did not provide conclusions as to when officers will lie and when they will not.

 

[47] I found Professor Corsianos’ opinion evidence helpful to elucidate various background issues relating to the social context of gender issues in policing. However, as I made clear in Interim Decision 2017 HRTO 19, Professor Corsianos’ opinion would not replace my own fact-finding. I agree with the arguments made by the respondents in their final written submissions about the assessment of credibility being an adjudicative task and function. Professor Corsianos did not hear the evidence in this case. I did. Therefore, Professor Corsianos was not in a position to make any findings of fact or legal findings in this case. As an expert witness, she also could not provide evidence on the ultimate issues in the case. All of my findings in this case were guided by the testimony I heard in relation to the particular events and allegations in this case. Ultimately, I have not relied on Professor Corsianos’ evidence in making my credibility findings in this case.

 

OVERVIEW REGARDING CREDIBILITY AND RELIABILITY

 

[48] My factual findings in this case, especially in relation to the applicant’s sexual harassment allegations, turn to a large extent on an assessment of the relative credibility and reliability of the applicant’s testimony as compared to the credibility and reliability of the testimony given by the respondents’ witnesses.

 

[49] In assessing the credibility of witnesses, I applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252. In doing so, I have considered which account of the facts is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.

[50] I have considered the following factors in assessing whether a witness’s testimony is in “harmony with the preponderance of the probabilities”:

  • The internal consistency or inconsistency of evidence;

  • The witness’s ability and/or capacity to apprehend and recollect;

  • The witness’s opportunity and/or inclination to tailor evidence;

  • The witness’s opportunity and/or inclination to embellish evidence;

  • The existence of corroborative and/or confirmatory evidence;

  • The motives of the witnesses and/or their relationship with the parties; and

  • The failure to call or produce material evidence.

See Shah v. George Brown College, 2009 HRTO 920 at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.

 

[51] In addition to assessing credibility, I have assessed the reliability of the testimony I heard in this case. While credibility is concerned with a witness’s sincerity, reliability is concerned with the accuracy of a witness’s testimony. The accuracy of a witness’s testimony involves considering issues such as their ability to accurately observe, interpret and recount events. See R. v. Morrissey (1995), 97 CCC (3d) 193 (Ont. C.A.). Applicant

 

[52] With some exceptions, I found that the applicant gave detailed, credible, and largely consistent evidence about the incidents of sexual harassment that she alleged. I do have concerns about the reliability of her perception of certain events that took place after she filed her internal complaint against SSgt Nolan. I will discuss these concerns in more detail below in the section dealing with the applicant’s reprisal allegations and her allegations in relation to SSgt (now Inspector) Gray below.

 

[53] One issue that I have considered in assessing the applicant’s credibility is the fact that, when she took the step of making a sexual harassment complaint, she only made allegations against SSgt Nolan. She did not include previous incidents involving other sergeants and staff sergeants, including the individual respondent. In assessing this issue, it is important to remember that courts have been clear on the importance of avoiding stereotypical thinking and assumptions when dealing with sexual assault or sexual misconduct cases. This includes avoiding stereotypical thinking and assumptions about how a typical victim of trauma like a sexual assault will behave. It also includes avoiding assumptions about if, and when, a victim of trauma such as a sexual assault will make a complaint about it or confide in others about it. See, for example, R. v. D.D., 2000 SCC 43 at para. 65. The courts have made clear that a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of a complainant. It is but one circumstance to consider in the factual mosaic of a particular case.

 

[54] One important part of the factual mosaic of this case was the applicant’s testimony that she felt less concerned about making a complaint against SSgt Nolan because he was new to the Division and not as well-liked and connected as other sergeants and staff sergeants such as the individual respondent. In my view, this reasonably explains why she did not include allegations against other sergeants and staff sergeants in her internal complaint. However, it does not necessarily explain why she did not discuss the actions of the individual respondent or others with supervisors such as DSgt Kay and Det. Sedore, who had supported her in dealing with the difficulties she was experiencing with SSgt Nolan. Unfortunately, the question was never posed to the applicant directly. She did however frequently indicate her view that the individual respondent was well-liked in the Division and that the conduct she alleged against him was accepted at all levels. Overall, I do not think that, in these circumstances, it is appropriate to draw a negative credibility inference from her failure to raise concerns about the individual respondent’s conduct with DSgt Kay and Det. Sedore before filing her Application. To the extent that I have concerns about what seems like inconsistent behaviour on her part in confiding in her supporters about some things and not others, I have taken these concerns into account in my weighing of all of the evidence surrounding particular incidents alleged by the applicant.

[55] I do not agree with the respondents’ counsel that the applicant gave “canned" or scripted testimony and that she was generally evasive on cross-examination. When the applicant gave her testimony early on in this proceeding, there were many members of the public and some representatives of the media in the room. In general, I noted a distinct shift in the tone of the proceedings when representatives of the media attended the hearing. This observation not only applies to the applicant but also to the respondents’ witnesses and even counsel for the applicant and respondents. Except for her refusal to concede certain points, discussed below, I did not find the applicant to be generally evasive on cross-examination. As I commented at the time, a large part of the issue was that the respondents’ counsel asked many questions for which the answer was self-evident. For example, he would ask the applicant to confirm that a particular document said something that it clearly said. When asked this type of question, the applicant would hesitate and she would be reluctant to answer, seemingly thinking that the questions were trick questions.

 

[56] That said, I do agree with the respondents’ counsel that, at times, the applicant refused to concede points that she should have conceded, and in some cases, did eventually concede. For example, she initially testified that she had not seen any workplace harassment posters around the 23 Division police station. She testified to this in such a way as to suggest that she was denying that there were any such posters around the station. After hearing various other witnesses testify to there being posters around the station and seeing photos of at least one such poster, the applicant accepted that there may have been workplace harassment posters around the police station but she did not see them.

 

[57] As another example, the applicant refused to concede that she was equally participating in a joking text exchange with DSgt Kay that was entered into evidence. In her testimony, the applicant sought to characterize the exchange as being inappropriate when it is clear that she had participated in the exchange with DSgt Kay in a joking way. When the respondent’s counsel pointed out to her that she had used the terms “lol” (laughing out loud) and “lmao” (laughing my ass off) in the texts, she testified that these were indications of her being upset. In my view, she was seeking to reinterpret her reaction to this exchange at the hearing. As I will discuss below, in my view, the text exchange is relevant, not because it was inappropriate, but because it documents the kind of sexualized discussion about women (in that case between DSgt Kay and another detective) that was not considered unusual in the applicant’s workplace.

 

[58] I do not agree with the respondents that the applicant similarly refused to concede that she had access to the Board’s policies and procedures including those relating to human rights. Her initial testimony about the policies and procedures related primarily, not to a difficulty in accessing them, but to the fact that the Board had provided little training with respect to the policies and procedures. The main concern raised by the applicant was with respect to the lack of training in relation to the policies and procedures, in particular those relating to human rights, not with access to them.

 

[59] Finally, I note that the applicant’s recall of the timing of certain events was not always reliable. The applicant’s counsel stated that the respondents had refused to provide the applicant with access to all of her memo books and that these would have assisted her in specifying the timing of various incidents. In any event, by the time the applicant made her Application, several years had passed since some of the incidents that formed part of the series of incidents alleged in this case. Even more years had passed by the time she testified in the case. In my view, an error as to the time frame within which an incident occurred does not necessarily indicate that the incident did not occur at all. In each case, it is necessary to consider all of the evidence to determine whether the incident occurred, but on a different date, or whether it did not occur at all.

 

[60] Overall, notwithstanding my reservations about the credibility and reliability of the applicant’s evidence on some aspects of the case and her refusal to concede certain points, I generally found her to be a credible witness.

 

Applicant’s Witnesses

[61] I found the applicant’s mother to be a credible witness. The respondents did not object to the testimony by the applicant’s mother. However, I note that most of her testimony about what the applicant told her about the events that were occurring to her falls into the legal category of “prior consistent statements”. It is well-established in the case law, that such prior consistent statements cannot be relied upon to bolster a complainant’s credibility. Courts have consistently found that the likelihood that a story is true is not increased because it has been repeated many times. However, I discuss below certain exceptions to this rule in the section dealing with the applicant’s allegation regarding the forced kiss.

 

[62] I found the applicant’s psychologist and psychiatrist to be credible. They gave detailed testimony about their assessments of the applicant and her PTSD symptoms. I have no reason to find them not credible.

 

Individual Respondent

 

[63] I found some parts of the individual respondent’s testimony to be credible while I had concerns about the credibility of other aspects of his testimony. The individual respondent made a number of blanket statements in his examination-in-chief that did not always hold up under the pressure and scrutiny of cross-examination.

 

[64] For example, I had significant concerns about the individual respondent’s testimony that he was not a jokester and his steadfast denial that he joked around in the workplace. His testimony on this point was directly contradicted by the testimony of many of the respondents’ witnesses who testified that he was in fact a jokester, that he had a good sense of humour, and that he liked to joke around even at work.

 

[65] I also had concerns about the individual respondent’s evidence about the extent to which officers would make sexual jokes and comments at work. He initially denied ever hearing sexual jokes being made at work. When pressed about this in crossexamination, he admitted to hearing joking-type banter at times in a bar situation. He then agreed that he had heard others engaging in such banter but maintained that he could not recall the terminology used because he did not concern himself with such things. I did not find this credible given that most of the respondents’ witnesses agreed that he was a jokester and enjoyed joking around at work. Moreover, this is an example of how blanket statements that the individual respondent gave in his examination-inchief did not always hold up well on cross-examination.

 

[66] In addition, as I detail below, I have concerns about inconsistencies in the individual respondent’s evidence about the extent to which he had interactions with the applicant before and after she joined his platoon.

 

[67] Overall, I had concerns about the credibility of some aspects of the individual respondent’s evidence, especially the extent to which he joked around at work, the prevalence of sexual jokes at work, and his interactions with the applicant. I have taken these concerns into account in my weighing of the evidence in relation to the various incidents discussed below. Respondents’ Witnesses

 

[68] I had concerns about the credibility and reliability of the testimony given by some, even many, of the respondents’ witnesses. To begin, many of the respondents’ witnesses denied that there was ever any joking or discussion of sexual topics or sexual innuendo in the workplace when this was contradicted by the evidence. For example, as discussed below, SSgt Nolan admitted to making two comments that took the form of sexual innuendo. Other respondent witnesses corroborated these comments and one of these comments was made on parade (the meeting at the start of a shift when officers receive their assignments). In addition, the applicant filed certain text exchanges that referred to certain supervisors having a particular obsessive interest in the applicant. She also filed a text exchange in which DSgt Kay told her that a certain detective had asked whether DSgt Kay was “with” the applicant. DSgt Kay joked with the applicant that he told the detective that the applicant was the best “lay” he had ever had and that the detective congratulated him on “banging a chick 210 (sic) years younger” than him. These exchanges provide evidence of the kind of sexualized discussion about women that occurred at 23 Division. There is nothing in the text exchanges to suggests that the kind of joking and banter that DSgt Kay had told the applicant about (i.e. the banter between him and the detective) was at all unusual or uncommon at 23 Division. In fact, it was so common and accepted that he had no issue telling the applicant about it in the way that he did.

 

[69] Second, some of the respondents’ witnesses, including some of the women, did not seem to recognize clearly inappropriate comments and behaviour as being inappropriate. For example, when asked whether or not it was appropriate for a sergeant to imitate masturbation before parade began, Det. Fynes said that it would depend on the context. Although she testified that a supervisor engaging in sexual innuendo with a subordinate was inappropriate, she did not find it inappropriate for a male supervisor to tell a subordinate female officer that she was “smoking hot”. Similarly, Sgt Ledgerwood testified that it would only be inappropriate for a male officer to discuss the breasts of a female officer if the female officer overheard the conversation. These are just some examples of evidence that suggested that some of the respondents’ witnesses, including some female witnesses, either refused to recognize inappropriate behaviour or had become inured to this behaviour to the point of not recognizing it as inappropriate.

 

[70] Third, many of the respondents’ witnesses provided blanket denials that certain events had occurred in their examination-in-chief only to nuance their testimony when pressed in cross-examination. Many of the respondents’ witnesses who had denied witnessing incidents in their examination-in-chief, conceded that they could not say definitively that certain events did not occur but rather that they had not seen the incidents occur or they “did not recall” them occurring. Similarly, many made bald statements about the lack of sexual joking or innuendo in the workplace only to modify their position when pressed on cross-examination.

 

[71] Finally, an additional factor I have taken into account was the presence of Superintendent Taverner in the room as the respondents’ instructing client. I permitted the respondents’ counsel to designate Superintendent Taverner as their instructing client as counsel claimed that Superintendent Taverner was a key person capable of providing instructions in relation to the case. The applicant’s counsel had argued that this would have an intimidating effect on witnesses in the case. My view at the time was that such an intimidation effect, if there was one, would exist whether Superintendent Taverner was in the hearing room or not, as most of the respondents’ witnesses in this case reported to him as their unit commander. The potential chilling effect of Superintendent Taverner’s presence in the room as witnesses gave their testimony is a factor I have been conscious of in considering the testimonial evidence in this case. APPLICANT’S WORKPLACE

 

[72] While the percentage of women officers in the Toronto Police Service has increased over time, the Service remains highly male-dominated. The Manager of the DMU, Andre Goh, estimated that the percentage of women officers in the Toronto Police Service currently stands at approximately 17-19%. Practically speaking, this meant that the applicant was sometimes the only woman on shift, or one of only two women on shift together. Staff Sergeant Swackhammer testified that, when he was in charge of the applicant’s platoon, there had never been more than four women out of 15 to 20 officers and there were typically two to three women on the platoon at any one time.

 

[73] According to Mr. Goh, like all Toronto Police divisions, 23 Division is organized according to a paramilitary structure. It is split into five platoons, and officers are ranked hierarchically. The lowest rank is that of police constable, which is the applicant’s rank. Next up in the hierarchy are sergeants, staff sergeants, inspectors and then the superintendent. The superintendent is the unit commander and the highest-ranking officer in the unit. There is a similar ranking applicable to detectives within the criminal investigation bureau (“CIB”). Sergeants and staff sergeants hold considerable power over police constables. As Mr. Goh described, sergeants and staff sergeants have control over almost every aspect of a police constable’s job and also their careers, from the details they get on a particular day right up to what job opportunities and promotions they receive.

APPLICANT’S BACKGROUND AND WORK HISTORY

 

[74] The applicant’s father was a police officer. She looked up to him and she felt like she wanted to follow in his footsteps. After completing a law enforcement diploma, she became employed as a police constable for the Royal Canadian Mounted Police (“RCMP”) where she worked until she joined the Toronto Police Service in 2005. The applicant primarily worked as a uniformed officer in 23 Division, although she also completed certain time-limited assignments, for example with the CIB, the Drug Squad and a wiretap project with the Homicide Unit.

 

[75] By all accounts, the applicant was a superior, dependable, reliable and dedicated police officer who was expected to have a bright future in the Toronto Police Service. She has received many awards and commendations. The applicant’s performance appraisals demonstrate, among other things, that she performed exceedingly well; she was a valued member of the police force; she was ambitious and eager to accept new challenges; she mentored junior officers; and she would make an excellent candidate for a supervisory position in the future. The vast majority, if not all, of the respondents’ witnesses agreed that the applicant was a highly qualified and dedicated police officer who was expected to have a bright future in the police force. Some of the respondents’ witnesses testified that, even officers who are expected to have bright futures, do not always succeed as expected. Even if that may be the case, none of the witnesses before me seriously disputed -- nor do I think it can seriously be disputed -- that the applicant was a very high performing police constable who had great potential for a very promising future within the Toronto Police Service.

 

HARASSMENT AND POISONED WORK ENVIRONMENT ALLEGATIONS

 

[76] The applicant’s counsel argue that the applicant and other female officers like the applicant were pressured to tolerate derogatory comments and inappropriate sexist behaviours including so called pranks/jokes that called attention to women’s bodies and sexuality. The applicant primarily made allegations in relation to comments or conduct by some of the sergeants and staff sergeants to whom she reported.

[77] In their written submissions, the applicant’s counsel divide the applicant’s allegations into the following categories: (i) four specific alleged incidents of sexual harassment, (ii) an alleged sexual assault and restraint in the form of a forced kiss; and (iii) general workplace conditions characterized by comments and innuendos as well as the degrading of women. I will adopt this general categorization as I find it to be a useful and appropriate way to categorize, review, and assess the applicant’s harassment and poisoned work environment allegations in this case.

 

Factual Findings: Four Alleged Specific Incidents of Sexual Harassment

 

[78] The four specific incidents highlighted by the applicant in her written submissions are the following: (i) SSgt Nolan’s high brown boots comment, (ii) comments about riding a horse by SSgt Nolan and PC McLaughlin, (iii) SSgt Nolan’s spanking comment, and (iv) the viewing, discussing, and sharing of photos of the applicant by Sgt Payton and others in the workplace. High Brown Boots Comment

 

[79] SSgt Nolan joined 23 Division in 2012. He was a uniformed staff sergeant on E platoon. At the time that SSgt Nolan started at 23 Division, the applicant was working as a detective constable in the CIB at 23 Division. When the applicant returned to a uniformed position, she was assigned to E platoon. As a police constable on E platoon, she reported to SSgt Nolan.

 

[80] One day, shortly after the applicant returned to uniform in October 2012, she entered into the sergeants’ office and saw Sgt Von Schubert and SSgt Nolan. Sgt Von Schubert said “look at you back in uniform now”. Following this, SSgt Nolan said “well, I would rather see her in her high brown boots” and laughed. He made this comment in reference to the high brown boots the applicant wore as part of her uniform when she served in the RCMP. The applicant testified that she felt degraded and took the comment to be a sexual comment. She believed that she may have deflected the comment by saying something like “yes, those boots were my favourite kind of boots”. When asked whether she made a formal complaint about the comment at that time, the applicant said she did not because she was afraid for her career.

[81] At the hearing, SSgt Nolan conceded that he made a comment about the applicant’s high brown boots. He also agreed that the applicant was the lowest ranking officer in the room as he made the comment in front of her sergeant. He testified that he did not intend for his comment to be offensive or degrading to the applicant. However, he agreed that it could be taken this way and he accepted that the applicant took the comment in this way. SSgt Nolan admitted to making the high brown boots comment in the internal investigation of the applicant’s complaint against him. Based on this admission, the Departmental Hearing Officer who issued the decision with respect to the complaint found that SSgt Nolan had made the high brown boots comment. It was one of two comments for which he was found to have engaged in discreditable conduct and he was forced to forfeit 20 days or 160 hours off as a penalty.

 

[82] Based on this evidence, I find that SSgt Nolan made the comment alleged by the applicant that he would prefer to see her in her high brown boots. He did so in the sergeants’ office in front of the applicant’s sergeant. The applicant was the lowest ranking officer in the room and just beginning to report to SSgt Nolan and the other sergeant who was present. The applicant felt degraded by the comment, and SSgt Nolan ought to have known that such a comment would be unwelcome to the applicant.

Horse-riding Comments

[83] The applicant testified about a comment about horse-riding that SSgt Nolan made on parade on December 3, 2012. The parade in question was the parade for the midnight shift which was held in the sergeants’ office since there were no sergeants working that evening. The applicant stood near the doorway because she did not want to see SSgt Nolan. There were approximately 12 officers at the parade, all of whom were men except the applicant. Some officers were complaining about there being no cars available for the midnight shift because they were being used by officers from the afternoon shift. SSgt Nolan replied “Heather used to ride a horse, so what are you complaining about?” According to the applicant, there was a lull between the two parts of the statement which made it sound sexual. She said that SSgt Nolan made the comment in the same sexual way he made most of his comments.

 

[84] The applicant testified that, after SSgt Nolan said “Heather used to ride a horse”, an officer on the her shift, PC Junior McLaughlin, said “I would like her to ride my horse” and everyone laughed, except for the applicant. According to the applicant, PC McLaughlin was standing in front of her and also in front of SSgt Nolan like an “L” with PC McLaughlin in the middle. The applicant testified that she had zero doubt the comment was meant as a sexual comment as PC McLaughlin made the comment in a sexual tone of voice. She testified that SSgt Nolan also laughed at the comment and he did not advise PC McLaughlin that the comment was inappropriate. The applicant just stood where she was. She believed that she had her head down and probably turned beet red.

 

[85] As discussed below, shortly after the December 3, 2012 parade, the applicant met with Andre Goh, the Manager of the DMU, as well as another staff member of the DMU. She told them about ten incidents involving SSgt Nolan including all of the incidents she alleged regarding SSgt Nolan in this proceeding. According to the DMU notes, the applicant told Mr. Goh and the other DMU staff member that PC McLaughlin said “Wish Heather would ride my horse”.

 

[86] In her internal complaint against SSgt Nolan, the applicant stated that, after SSgt Nolan’s comment, “someone made a comment that I did not hear clearly about horse back riding, or riding a horse which caused other officers to laugh including Staff Sergeant Nolan.” The applicant testified that she had had a discussion with DSgt Kay before she put together her complaint against SSgt Nolan. According to the applicant, DSgt Kay suggested she leave out the names of officers who were her direct peers so that she did not affect them as she would still have to work with them in the future. The applicant said she followed DSgt Kay’s advice because she respected him, he had been her direct supervisor for three years, and she always took his advice since she trusted him. She also felt like he was looking out for her best interests and her career by saying that.

 

[87] In his cross-examination at the hearing, DSgt Kay agreed that he had assisted the applicant to put together her internal complaint. He did recall the applicant telling him that PC McLaughlin had made a follow-up inappropriate remark to SSgt Nolan’s horse-riding comment. DSgt Kay denied that he expressly told the applicant not to name PC McLaughlin, but he did tell her that, if her complaint was about SSgt Nolan, she should focus on SSgt Nolan.

 

[88] In her Application, the applicant repeated essentially what she had said in her internal complaint: that, after SSgt Nolan said that she used to ride a horse, “one of the officers then made a comment about riding horses which I could not hear clearly, but which I think had sexual connotations”. In the written narrative she provided to Dr. Katzman, her psychiatrist, the applicant excerpted the internal complaint she made which stated that someone made a follow-up comment that she did not hear clearly about riding a horse which caused other officers to laugh. There is no mention of the follow-up comment by PC McLaughlin in the notes of the applicant’s psychologist, Dr. Vermani. However, Dr. Vermani testified that, when she takes notes during an appointment with a client, she is doing so for therapeutic purposes. She is not taking notes for use in a legal proceeding or to document with precision each and every thing that a client tells her. [89] SSgt Nolan admitted to making the comment that the applicant used to ride a horse but he denied it was inappropriate. He testified that he wanted officers to stop complaining about the lack of available police cars. Both SSgt Nolan and other officers had testified that it was widely known that the applicant had formerly served in the RCMP. SSgt Nolan denied hearing any follow-up comment by PC McLaughlin. However, in cross-examination he agreed that the officers were joking with each other that day on parade. SSgt Nolan said he would have taken action if he had heard the alleged follow-up comment by PC McLaughlin.

[90] PC McLaughlin denied making the follow-up comment about the applicant riding his horse. In his examination in chief, PC McLaughlin said he did not recall hearing SSgt Nolan making the horse-riding comment that he has admitted to making. He also testified that he did not hear SSgt Nolan make a comment about spanking the applicant later at the December 4, 2012 parade. PC McLaughlin testified that he was concentrating on getting his detail and that he came into the discussion later. He said he was not sure at which point SSgt Nolan made the comment but he said he did not hear it. He said he did not make a follow-up comment about the applicant riding his horse and said he was astonished that he was accused of making that comment. PC McLaughlin and the respondents’ counsel suggested that PC McLaughlin was being subjected to a racist trope because he is a black man.

 

[91] In cross-examination, PC McLaughlin agreed that officers are supposed to be listening to what is happening on parade. He also agreed that officers often socialize and joke around on parade when the upper brass is not there. The applicant’s counsel took PC McLaughlin to his witness statement in which he said that he recalled hearing the applicant’s name at the December 3, 2012 parade and other officers laughing but that he did not recall the horse-riding comment made by SSgt Nolan. He then said that this was correct. When asked whether he was there throughout the parade, he said he came in 10-20 seconds late. When asked whether he was saying SSgt Nolan did not make the comment or he did not recall it, he said that all he was saying was that he did not hear it. When the applicant’s counsel asked whether he was in the room, his testimony seemed to evolve. He said that he was in the room except for a few seconds at the end when parade was done and he started walking out. He said it was at this point that he heard the applicant’s name and he heard laughter. He said he was not sure about the context. When the applicant’s counsel asked again whether he had heard the applicant’s name mentioned at the beginning or the end of parade, he said it was at the end when he was walking out. When asked whether it would be appropriate for an officer to say that they would like the applicant to ride their horse, PC McLaughlin became evasive and he said it depended on the context. He then said, for example, it might depend on whether the person making the comment actually owned a horse. The applicant’s counsel was clearly asking about the comment that the applicant had alleged in this proceeding. She asked in what context it would be appropriate to make sexually suggestive comments about riding horses on parade. PC McLachlin responded that it is important to understand the context.

 

[92] PC Panaytov also testified about being at parade on December 3, 2012. He testified that he did not recall either SSgt Nolan or PC McLachlin making any comments about riding horses. However, on cross-examination, it became clear that he did not remember much about the parade in question.

 

[93] Based on SSgt Nolan’s acknowledgement, I find that, in the context of officers on parade complaining about a lack of squad cars, he asked what they were complaining about and said that the applicant used to ride a horse. I do not find the initial comment made by SSgt Nolan inappropriate. However, I find it more likely than not that PC McLaughlin did follow up by saying he wished the applicant would ride his horse. This comment was a form of sexual innuendo that was humiliating to the applicant. PC McLaughlin ought to have known that the comment would be unwelcome to the applicant.

 

[94] I take very seriously the argument made by the respondents’ counsel about racist tropes that exist about black men and sex. I have taken the existence of such widespread stereotypes into account. Nevertheless, I found that PC McLaughlin’s testimony in this case lacked credibility. Even if there was joking around and socializing on the night in question, I do not find it credible that an officer would not be listening to what their staff sergeant was saying on parade. Also, as noted above, PC McLaughlin first simply denied hearing SSgt Nolan make the comment. He said nothing about hearing the applicant’s name and laughing until the applicant’s counsel noted that this is what his witness statement said. He then tried to make it seem like the comment was made at the end of parade as he was walking out when SSgt Nolan had testified that it was during parade because officers were complaining about a lack of squad cars. Finally, I find that he was very evasive about whether a comment about riding a horse would be appropriate, saying it all depended on context. It was clear that the applicant’s counsel was asking him about the comments being alleged in this case not a comment about horse-riding made by the owner of a horse.

 

[95] Overall, I find it more likely than not that PC McLaughlin did make the comment alleged by the applicant as a joking comment and the comment caused other officers to laugh. I also find it more likely than not that the applicant initially sought to minimize the comment because of advice she received from DSgt Kay. While DSgt Kay denied that he told her not to mention the names of colleagues, he testified that he told her to just focus on SSgt Nolan if her complaint was about him. Even if I were to accept his version of his advice, the message to the applicant was clear: that she should focus on her complaints against SSgt Nolan and not be complaining about a colleague such as PC McLaughlin. While it is true that DSgt Kay did not give the applicant advice in relation to this Application, I find it likely that the applicant was continuing to follow his advice as this preceded their subsequent falling out after the release of the results of the SIU investigation. The fact that the applicant mentioned the comment to the DMU staff shortly following the incident further supports her testimony that she clearly heard the comment and that it was made by PC McLaughlin. This evidence establishes that her allegation against PC McLaughlin was not a recent fabrication for the purposes of this Application.

 

Spanking Comment

[96] On parade the next night, December 4, 2012, SSgt Nolan made a comment about spanking the applicant later. The applicant gave the following account of the comment and the circumstances in which it was made. As with the night before, the parade was again held in the sergeants’ office. The applicant stood in the same spot in the doorway where she had stood the previous night. Approximately the same number of officers attended the parade, around twelve, and the applicant again was the only woman present. SSgt Nolan was handing out mail and advised the applicant that she had a provincial offence notice that she needed to amend or fix. The applicant walked forward two steps to take the paper and said “thank you”.

[97] As she returned to her spot by the door, SSgt Nolan said that he would “spank [her] later in private for it.” He then laughed out loud but, this time, none of the other officers laughed and the room went silent. According to the applicant, she saw the other officers’ mouths drop and their eyes bug out as they realized that SSgt Nolan had crossed a line by making the comment. SSgt Nolan did not tell any of the male officers that he would spank them in private and the applicant had never heard any other supervisors say they would spank a male officer in private. The applicant said she could feel herself turning beet red as she was embarrassed and humiliated. She testified that, by blushing, it made her feel weak. She was concerned about this because she said that police officers do not want to work with weak police officers.

 

[98] The applicant debated what she should do and decided that she could no longer stand there so she left parade. The applicant testified that officers are not permitted to leave parade without permission and that you could be written up for it. Many of the respondents’ witnesses confirmed this and confirmed that it is extremely unusual for anyone to leave parade.

 

[99] SSgt Nolan conceded that he made the spanking comment on parade that night. He testified that he often referred to counselling sheets as “spankings”. However, he testified that he understood how the comment could be construed as sexual in nature. He also agreed in cross-examination that, on the night in question, he did not make such comments to his male subordinates who had made similar errors to the one made by the applicant. At the hearing, SSgt Nolan apologized to the applicant for having made the comment that was unwelcome by her.

 

[100] It was not disputed that, after she left parade, the applicant went directly to the detectives’ office and located Det. Sedore since she had worked with him in the past and he had stood up for her in relation to SSgt Nolan. The applicant told Det. Sedore that she wanted to quit and she could not take it anymore. He suggested to her that she book off sick and go home. The constable who was supposed to be the applicant’s partner that night came out to see if she was OK. Det. Sedore asked the constable whether he had heard what SSgt Nolan had said on parade. When he said he had, Det.

Sedore told him to write notes about it in his memo book. When the applicant told Det. Sedore that she would go home sick, Det. Sedore said he would tell SSgt Nolan that he was permitting her to leave so the applicant did not have to speak to him. The applicant’s testimony about her interactions with Det. Sedore were corroborated by Det. Sedore in at the hearing and in the notes he took in his memo book on the night in question.

 

[101] The parties gave divergent testimony about what followed. According to the applicant, as she and Det. Sedore walked past SSgt Nolan, SSgt Nolan shouted that he wanted to speak to the applicant. According to the applicant, SSgt Nolan was shouting loudly and his tone was the kind of tone that would be used to give an order. The applicant went into the detectives’ office to wait for Det. Sedore to return but he did not. The applicant ended up attempting to leave the station at which point SSgt Nolan entered from the door at the back of the station and was standing in the area that is between two doors. The applicant was afraid because she had disobeyed one of his orders. According to the applicant, SSgt Nolan yelled at her again to speak to him. She testified that she replied that she wanted to leave and that SSgt Nolan was preventing her from leaving. The applicant went back down the hallway into the detectives’ office. One of the officers present that night eventually escorted her out to her car and she left.

 

[102] SSgt Nolan did not deny that he was standing in the doorway at the back of the station as the applicant was leaving. Under cross-examination, he conceded that he was raising his voice and calling the applicant’s name. However, he testified that he was calling her name in an attempt to apologize to her. He wrote in his memo book that he allowed the applicant to leave the station due to her agitation and that he would follow up at a later time.

 

[103] Det. Sedore largely corroborated the applicant’s version of events. However, he testified that SSgt Nolan had told him that he wanted to apologize to the applicant. This is corroborated by Det. Sedore’s notations in his memo book that night in which he wrote that SSgt Nolan told him that he wanted to apologize to the applicant and speak with her. Det. Sedore wrote that he advised SSgt Nolan that the applicant did not want to speak with him and that she was booking off sick.

 

[104] Based on the above evidence, in particular the concession from SSgt Nolan, I find that he made the comment about spanking the applicant later and he did so on parade in front of all of the applicant’s colleagues. SSgt Nolan did not make a similar comment to male officers who had made an error similar to the one made by the applicant. The applicant was the only female officer in attendance and her actions make it clear that she considered the comment to be unwelcome and embarrassing. SSgt Nolan ought to have known that the comment would be unwelcome to the applicant.

 

[105] I also find that Det. Sedore provided the applicant with support and told SSgt Nolan that she would be booking off sick. He then filed an internal complaint against SSgt Nolan about the incident. I find it more likely than not that SSgt Nolan initially did stand at the back doorway of the police station insisting that the applicant speak to him. However, I also find it more likely than not that he told Det. Sedore that he wished to apologize to the applicant and, when Det. Sedore said she did not want to speak with him, he relented. Det. Sedore contemporaneously recorded this exchange in the notes he took in his memo book that night. I do not think it can seriously be disputed that Det. Sedore took all appropriate actions to deal with the applicant’s situation that night. Also, from the evidence in this case, it was evident that Det. Sedore was not a friend of SSgt Nolan’s and in fact that they did not get along. In fact, Det. Sedore had accompanied the applicant to meet with SSgt Nolan to support her request to take on a job opportunity in the Homicide Unit in October 2012. There was no reason for Det. Sedore to record in his memo book that night that SSgt Nolan wished to apologize to the applicant if that was not in fact the case.

 

[106] It is true, as pointed out by the applicant’s counsel, that SSgt Nolan did not record in his memo book that he had sought to apologize to the applicant. However, he also did not record that the applicant was being insubordinate or acting inappropriately in leaving. While it is understandable that the applicant might interpret SSgt Nolan’s actions the way she did, I do not find that the evidence establishes that SSgt Nolan was seeking to intimidate the applicant or to prevent her from leaving the station after he made the spanking comment.

 

Viewing, Discussing, and Sharing of Photographs of the Applicant

 

[107] Sgt Payton was the applicant’s supervisor only for a short period of time when she first became employed in the Toronto Police Service in 2005. At the time of the events described below in early 2011, the applicant was working as a detective constable in the CIB at 23 Division. Det. Brian Kay was one of her supervisors in the CIB and Sgt Payton was a uniformed sergeant who worked on the same shift but in the Primary Response Unit.

 

Viewing of Photo of Applicant on Phone While at Crime Scene

 

[108] The applicant testified that Sgt Payton showed Det. Kay a photo of her on his phone when the three of them attended a crime scene at a particular hotel in early 2011. The applicant and Det. Kay were both assigned to the CIB and were investigating the crime in that capacity. Sgt Payton was a road sergeant at the time. The applicant testified as follows about the incident. As she was speaking to an officer inside a hotel room, through the open door, she saw Sgt Payton and Det. Kay in the hallway. She saw Sgt Payton showing Det. Kay his phone which the applicant believed was a flip phone, possibly one of the shared sergeants’ phones that sergeants could sign out. The applicant continued with her duties, as she thought that Sgt Payton was showing Det. Kay something that was work-related.

 

[109] According to the applicant, when she and Det. Kay were on their way back to 23 Division, Det. Kay told the applicant that Sgt Payton had just shown him a picture of the applicant in a bikini along with two other female officers. Detective Kay seemed concerned and told the applicant that he could talk to Sgt Payton for her. The applicant replied that she wanted to deal with the matter herself because she wanted to stand up for herself. The “bikini photo” (discussed again further below) is a photo that was taken on a beach vacation that the applicant took with two of her female colleagues. In the photo, all three women are standing on a beach and all three are wearing bikinis. One of the women in the photo, PC Skolly, posted the photo to her Facebook page.

 

[110] Sgt Payton testified as follows about the events of that day. He remembered attending the hotel crime scene at which the applicant and Det. Kay were present. He recalled showing Det. Kay a photo of the applicant on his personal phone, not the sergeants’ flip phone. The photo of the applicant that he showed Det. Kay was not the bikini photo; instead, it was a different photo which looks more like a profile or “selfie” head shot. He testified that he kept phone numbers for all of the officers working under him on his phone. In cross-examination, he acknowledged that the applicant had not reported to him since 2005. However, he said that he would often have the phone numbers of detectives in the CIB working the same shift as him in case he needed to call them in relation to an investigation.

 

[111] Sgt Payton conceded in cross-examination that there was no work-related reason for him to have the picture of the applicant on his phone. He testified that the photo of the applicant appeared one day in his contacts list and that it was associated with the phone number he had saved for the applicant. He was not certain how the photo got into his contacts list, but he believed that it appeared because the applicant added the photo as a profile photo and it automatically got added to his contacts list because he had her phone number saved in his phone. Sgt Payton recalled the photo because he thought the applicant had an odd or goofy expression in the photo. He said it was one of the first times he had seen a “duck faced” selfie photo and he found it “oddball” and different. He testified that, while at the hotel in 2011, he was thumbing through the contacts on his phone looking for a number to call, the photo of the applicant caught his eye and he asked Sgt Kay what he thought of it.

 

[112] When asked whether he had ever seen the bikini photo before, Sgt Payton recalled coming across it once or twice on Facebook but he did not remember whose page it was on or where on Facebook he saw it. He believed he was Facebook friends with PC Skolly but he was not Facebook friends with the applicant. He said that he saw it as he was scrolling through photos but did not stop to specifically look at it. 

 

[113] When asked whether other police officers had seen the bikini photo, Sgt Payton said that he knew it was seen by others because he recalled someone else asking something like “did you see those vacation pictures on Facebook?” He did not recall if the question was directed at him. He said he recalled the question raised when he was in a group with others and that it may have been on parade. He did not recall if any of the female officers who were in the photo were present when the question was asked but he said he did not think so.

 

[114] Det. Kay testified that he recalled the particular investigation at the hotel about which the applicant had testified. He did not recall Sgt Payton showing him a photo of the applicant. According to Det. Kay, if it happened, there would have been something more important going on. Det. Kay testified that, if Sgt Payton had shown him something irrelevant, he would have told him he was busy but he did not remember being shown a picture of the applicant. In cross-examination Det. Kay acknowledged that, just because he did not recall Sgt Payton showing him a photo, it did not mean it did not happen. He added that it was a busy crime investigation.

 

[115] When shown the bikini photo at the hearing, Det. Kay first testified that he did not recall Sgt Payton showing him that photo. He later testified that Sgt Payton had not shown him the bikini photo. In his witness statement, Det. Kay stated that he had seen the bikini photo but that he did not recall who showed it to him. However, in his testimony, he first said he was pretty sure that it was PC Skolly, who was also in the photo. He later testified that it was PC Skolly and that she had shown him the photo on her work computer in the CIB upstairs at 23 Division. When asked in cross-examination about this apparent inconsistency with his witness statement, Det. Kay stated that, it was only after being shown the photo by the respondents’ counsel that he recalled that it was PC Skolly who showed him the bikini photo. Det. Kay also testified that he did not recall telling the applicant about Sgt Payton showing him a photo of her. He also did not recall telling the applicant that he could speak to Sgt Payton on her behalf.

 

[116] Based on this evidence, it is not disputed that Sgt Payton showed Det. Kay a photo of the applicant when they and the applicant were working at a crime scene. Sgt Payton admitted showing Det. Kay the photo on his personal phone. The key aspect of the story in dispute was whether the photo of the applicant was the bikini photo, as alleged by the applicant, or a head shot, as alleged by Sgt Payton. To some extent, it does not matter which photo it was, as there would have been no work-related reason for Sgt Payton to show any photo of the applicant to Det. Kay, especially as the three of them were working at a busy crime scene. However, the incident would be all the more inappropriate if the photo was the bikini photo.

 

[117] In my view, it is more likely than not that the photo that Sgt Payton showed to Det. Kay at the crime scene was the bikini photo. As noted below, the bikini photo was being viewed by many of the applicant’s colleagues and supervisors around that time. Det. Kay was the only person other than the applicant and Sgt Payton involved in the incident. I had concerns about the credibility and reliability of his testimony about the incident. As noted above, he testified that he was not saying that Sgt Payton did not show him a photo at the crime scene, just that he did not “recall” being shown a photo, and then later said Sgt Payton had not shown him the photo. His witness statement said that he did not recall who showed him the bikini photo but in his testimony at the hearing he said it was PC Skolly. Overall, I found his testimony inconsistent on these points and therefore lacking in credibility and reliability. I find it more likely than not that Sgt Payton did in fact show him the bikini photo at the crime scene. I find that this incident formed a pattern with the incidents discussed below in which Sgt Payton viewed photos of the applicant at work including reproducing one several times to use as the background on his computer screen.

Viewing of Bikini Photo in Office

 

[118] According to the applicant, a couple of days later, SSgt Timbers (who, at the time, was Sgt Ledgerwood) walked out of the sergeants’ office and told the applicant that Sgt Payton had shown her the bikini photo and that he was showing it to other people. The applicant replied that Det. Kay had already mentioned something to her about that and she said nothing further to SSgt Timbers at that time. The applicant testified that she felt like SSgt Timbers was afraid to address the photo.

 

[119] SSgt Timbers testified that she recalled seeing the bikini photo on Sgt Payton’s computer screen at work. She was in the sergeants’ office which was a relatively small office. Her desk faced the door and Sgt Payton was to her right with his back to her so she could see his computer screen. She could see the bikini photo on Sgt Payton’s computer screen. According to SSgt Timbers, Det. Sedore was also in the sergeants’ office at the time. She did not know whether Sgt Payton was looking at the photo from Facebook or whether it was a screen saver. According to SSgt Timbers, the applicant walked in just as she saw the photo and she told the applicant “you’re just in time your picture is on the computer” or something to that effect. When asked in crossexamination whether she was afraid to address the photo, SSgt Timbers testified that she did not find the photo inappropriate.

 

[120] Sgt Payton denied specifically showing the bikini photo to SSgt Timbers but agreed that she may have seen it on his computer screen in the sergeants’ office when he was logged onto Facebook. As noted above, Sgt Payton said he had come across the bikini photo once or twice on Facebook when he was scrolling through photos but did not stop to look specifically at it. Sgt Payton denied downloading the bikini photo, saving it on his computer, receiving a copy from anyone, or circulating the photo to other officers. He conceded that he and several of his colleagues had been discussing the bikini photo, possibly on parade.

 

[121] PC Skolly testified that the photo was taken on a beach vacation she took with the applicant and another female officer. She posted it on her Facebook page and any colleagues or supervisors who she had friended on Facebook, and perhaps all of their Facebook friends, had access to the photo. PC Skolly testified that she did not find the photo inappropriate but eventually, under cross-examination, she testified that she did not find it appropriate for Sgt Payton to be viewing the photo in the workplace. PC Skolly testified that the applicant asked her to take down the photo and she did so a day or two later.

 

[122] DSgt Kay testified that he had heard about the bikini photo from more than one person and that it was being viewed throughout the workplace. While DSgt Kay would not agree that Sgt Payton had taken an inappropriate interest in the applicant, he did concede that he and the applicant had joked, in an e-mail entered into evidence, about how Sgt Payton would be aware that the applicant had moved to a different house, suggesting that he was stalking her. He also agreed that Sgt Payton’s having a photo of the applicant on his phone and using her photo as the wallpaper on his computer were both inappropriate.

 

[123] Based on the above evidence, I find that PC Skolly posted the bikini photo featuring herself, the applicant, and another female officer in bikinis on her Facebook page. Many of the applicant’s colleagues and supervisors viewed and discussed the photo in the workplace. There is no evidence to establish that it is more likely than not that any of the applicant’s supervisors or colleagues downloaded the photo and circulated it around the workplace. However, many of the applicant’s colleagues and supervisors had access to the bikini photo on PC Skolly’s Facebook page and there was general discussion about the photo at work. I find it more likely than not that Sgt Payton was viewing the photo of the applicant and her two other colleagues while he was in the sergeants’ office during work hours.

 

[124] The issue here is not with PC Skolly or anyone else posting vacation photos on their Facebook pages, even photos of themselves and others in bikinis. The issue is not even with Sgt Payton viewing the photo in his free time. The issue is that, by viewing the photo in the sergeants’ office at work where others could also see it, he contributed to a general environment in which it was acceptable to look at and comment upon the bodies and sexuality of female officers, including female officers who reported to him. Photos of Applicant as Wallpaper on Computer

 

[125] The applicant testified that, around this time, she spoke to another female officer about Sgt Payton’s showing her photo to others. The other officer suggested that the applicant send Sgt Payton an email about it if she did not want to confront him face-toface. The applicant began to draft an email but never sent it. According to the applicant, either the day she drafted the email or the following day, Sgt Payton approached her and told her he wanted to show her something. He brought her over to his computer in the sergeants’ office. He closed two windows on his screen to show the applicant that he had a photo of her reproduced approximately 25 times across the screen. Sgt Payton was laughing about it. The applicant testified that the photo she saw reproduced multiple times across Sgt Payton’s computer screen may have been a photo she had saved on her Facebook page. The applicant was not sure how Sgt Payton would have gotten access to it since they were not Facebook friends. The applicant told Sgt Payton to remove the photo and he said he would.

 

[126] Sgt Payton testified that he had transferred the profile photo of the applicant that was connected to her contact in his phone to his work computer. He added the photo to a collection of pictures he used as wallpaper (that is, as background) on his computer screen. According to Sgt Payton he collected photos he considered to be “off the beaten path” that he used as wallpaper on his work computer to lighten the mood. He gave as examples a photo he had of former Mississauga mayor Hazel McCallion sitting on Superintendent Taverner’s lap, a photo of former city councillor and MPP Olivia Chow with what appeared to be a stolen milk crate, and a photo of former police chief Bill Blair standing beside a much shorter police officer. Sgt Payton set the photos on a rotation for his wallpaper. The profile photo he used of the applicant was “tiled” meaning that multiple copies of the photo would appear as the wallpaper at the same time. He testified that he used this tiling function due to the low resolution of the photo. He agreed that it was possible that the applicant’s photo was tiled 25 times across his computer screen. It is not clear how long he had been using the applicant’s photo as wallpaper on his computer screen by that point. Sgt Payton denied that he used the photo as his wallpaper because he found it sexy or sultry. He also denied posting it for a sexual purpose.

 

[127] According to Sgt Payton, when the applicant asked him to take the photo down, he realized that he had used poor judgment and he testified it was not his “finest moment”. According to Sgt Payton, the applicant had told him to remove the picture in a “negative way” and, in cross-examination, he agreed that she was not consenting to, or welcoming, his use of the picture. After the applicant filed her Application to this Tribunal, the Professional Standards unit (“PRS”) investigated the incident. Sgt Payton acknowledged that he had posted the photo of the applicant as wallpaper on his computer. He received an eight-hour penalty for the incident.

 

[128] Based on this evidence, in particular the concession from Sgt Payton, I find that he used a photo of the applicant which he reproduced approximately 25 times as wallpaper on his computer. It is likely that the other sergeants’ working in the same office at the time would have seen the photo. There was nothing about the photo in question that was “off the beaten path” as he claimed. I find it more likely than not that his use of the photo as wallpaper on his computer formed part of a pattern which suggested a personal interest he had in the applicant or at the very least her appearance. Even some of the respondents’ other witnesses described the incident as “weird” or “creepy”. I note that Sgt Payton did remove the photo as soon as the applicant told him to take it down from this computer screen. However, he ought to have known that his conduct would be unwelcome to the applicant before he loaded the photo to use it as wallpaper on his computer.

 

[129] Overall, I find that these three incidents in which Sgt Payton viewed and discussed photos of the applicant in the workplace made the applicant feel harassed and upset. She saw it as part of a pattern with incidents she had experienced in the past that was now being carried out by her supervisors. Sgt Payton ought to have known that his actions in relation to the three incidents would be unwelcome to the applicant. They also contributed to an environment where such actions was accepted and not considered out of the ordinary, as evidenced by the fact that other supervisors were aware of his conduct and did nothing to address it. Factual Findings: Alleged Sexual Assault and Restraint

 

[130] The applicant alleged that the individual respondent forcibly kissed her and tried to force his tongue into her mouth when they were out for afterwork drinks with colleagues. The individual respondent denied the allegations. The applicant and the individual respondent gave very diverging evidence about the events at the bar on the night in question. Given the seriousness of this allegation, I review the evidence relating to it in some detail.

 

[131] It is not disputed that the events at the bar occurred on October 11, 2012. This was the week that the applicant was transitioning from the CIB to a uniformed position in E platoon. The individual respondent was not her supervisor in the CIB. The applicant did not join the individual respondent’s shift until four days later. However, the CIB is located in the same police station upstairs from where uniformed officers work. Therefore, the individual respondent did cross paths with the applicant before she joined his shift in mid-October 2012. The extent to which they had crossed paths was a matter on which the applicant and the individual respondent gave diverging evidence.

 

Applicant’s Testimony

 

[132] The applicant testified that, on the day in question, she told DSgt Kay about problems she had with SSgt Nolan threatening her career in a meeting she had with him earlier that day. DSgt Kay suggested they meet after work to discuss the issue. He said that a number of supervisors would be meeting at a local bar that they often frequented. He told the applicant that she could join them and they could speak there. DSgt Kay had been working at another police station so the applicant met him at the bar. Det. Sedore was there as well as the individual respondent and station operator Laurie Naughton. 

[133] According to the applicant, the individual respondent, Ms. Naughton and a supervisor from another division were sitting on the opposite side of the 10-12-foot table at which the applicant was sitting. The table had high stools around it and it was located in a nook of the bar. Det. Sedore was sitting in the middle and the applicant as well as DSgt Kay were sitting at the other end. There was no one sitting beside the applicant. The applicant was able to have a private conversation with DSgt Kay about how SSgt Nolan had threatened her career earlier in the day. DSgt Kay wanted to help the applicant.

 

[134] The applicant testified that, after she had spoken to DSgt Kay for 20 to 30 minutes, she could see in her peripheral vision that the individual respondent had stood up and that he started hugging some people who were around him such as Ms. Naughton and some of the men next to him. The applicant assumed that the individual respondent was about to leave. According to the applicant, as she saw him beginning to make his way toward her end of the table, she got nervous because of a comment that he had previously made to her about why she never hugged him as she hugged others. I note that the individual respondent did not deny making this comment when asked about it in cross-examination; he said anything was possible but he did not recall it.

 

[135] According to the applicant, when the individual respondent went around giving hugs to others at the bar, she rose from her chair because she had a terrible feeling about what was going to happen and her body froze. She began thinking about how bad it would look if she left right then as he was about to come to her end of the table and possibly give her a hug. She was concerned about how it would look if she disrespected him in front of the others. The applicant told herself it was just a hug and she could handle it.

 

[136] According to the applicant, as the individual respondent went to give her a hug, he grabbed her shoulders. Instead of hugging her, the individual respondent pushed his lips onto hers and tried to drive his tongue into her mouth. The applicant had her hands on his shoulders and tried as hard as she could to forcefully push him off her. According to the applicant, the individual respondent did not stop. He continued to try and push his tongue inside her lips which she had shut as hard as she could so he would not be able to get his tongue inside her mouth. The individual respondent ended up giving up, walked around the end of the table, shrugged, laughed and left out the front door of the bar.

 

[137] The applicant testified that her body went into shock and she sat down. No one was saying anything. She walked to the bathroom and washed her mouth off. She said she felt disgusted and humiliated because she had been sexually assaulted and no one, including no supervisor, around her had done or said anything. The applicant returned to the table and approximately five minutes later she told DSgt Kay she was leaving. She said that, normally, when she was about to leave DSgt Kay would plead for her to stay, saying things like “who are you going to meet that’s more important than me, stay.” That night, he did not try to get the applicant to stay longer.

 

[138] The applicant got into her car and she was crying. Her mother called her and her phone was on speaker phone in the car. As the applicant drove, she told her mother that she had just been sexually assaulted and she told her what had just happened. According to the applicant, she was so embarrassed that she could not go to her mother’s house that night.

 

[139] It is not disputed that the applicant never discussed the events of that night with DSgt Kay, Det. Sedore, or anyone else who had been at the bar that night. She also never made an internal complaint against the individual respondent. When asked why not, she said that SSgt Nolan had just threatened to ruin her career that day and then these events happened. She also testified to being disgusted and humiliated. In her reply evidence, the applicant testified that she did not make a formal complaint against the individual respondent because she was afraid for her career.

 

[140] In cross-examination, the respondents’ counsel simply asked the applicant to acknowledge various portions of the documentary evidence. He asked her to confirm that the transcript of her interview with the SIU recorded that she had told the SIU that the forced kiss lasted approximately 15 seconds. He also asked her to confirm that, in a summary she gave to her psychiatrist, she had indicated that the forced kiss lasted 30 seconds. In re-examination, the applicant explained that she was sexually assaulted and she was traumatized. She said it was hard to give an exact time estimate. She testified that the forced kiss likely lasted 15 seconds and that it felt like a long time.

Individual Respondent’s Testimony

 

[141] The individual respondent provided fairly detailed testimony about the events of that night. He remembered being at the bar with the applicant and others during the time frame of her allegations. In his examination-in chief, the individual respondent testified that he recalled interacting with the applicant only twice before he became her supervisor: once at a “plaque party” for DSgt Kay in April 2012 and the only other time was at the bar on the evening in question. The respondents tendered into evidence a photo taken of the applicant at the “plaque party” in which, as noted by the individual respondent, the applicant was sitting on the lap of one of the other officers. On crossexamination, the individual respondent clarified that the two instances he had spoken of were the only times he had interacted with the applicant outside the police station. He admitted to knowing her in passing but that he rarely spoke with her except the odd time when he might see her in the CIB and say hello. He then said he never had a conversation alone with the applicant, only conversations in front of others and only professional ones. However, he did provide an example about speaking to the applicant when she once approached him to sign a brief and they had idle chit chat about the case at hand.

 

[142] According to the individual respondent, he had a quick beer on the night in question and then left. He remembered the group meeting on the patio outside. Before leaving, he went around giving partial (shoulder to shoulder) hugs to everyone and described the path he took to leave the bar and ride his motorcycle home. The individual respondent testified that the applicant’s conduct with him did not change after the evening in question.

[143] When the applicant’s counsel put to him that he had no personal relationship with the applicant and no reason to hug her, the individual respondent replied that he hugged the applicant as a way of saying “welcome to the platoon”. He denied forcibly kissing the applicant. In cross-examination, he testified that the applicant gave him no reason to believe that she was not willing to hug him. The applicant’s counsel asked the individual respondent how he could recall the circumstances at the bar that night if, as he testified, nothing significant happened. The individual respondent replied that he was shocked when he read the allegations contained in the applicant’s Application. He said that he then tried to recall everything he could about the night at that point. He also said that he did not go out to bars very often.

 

[144] I heard testimony from three other witnesses who were at the bar on the night in question: DSgt Kay, Det. Sedore, and Laurie Naughton.

 

DSgt Kay’s Testimony

 

[145] In his examination-in-chief, DSgt Kay testified that he never saw the individual respondent forcibly kissing the applicant. He also testified that the applicant did not discuss the incident with him. The respondents’ counsel asked him what he made of the fact that the applicant had never discussed the incident with him. DSgt Kay responded that he was surprised that she would bring up the incidents with SSgt Nolan and that the first time he heard about the incident at the bar was when he was called in for an interview by the SIU. DSgt Kay would have expected the applicant to have come to him if something had happened in the bar that evening. When the respondents’ counsel asked DSgt Kay whether the incident at the bar would be the worst thing that had allegedly happened to the applicant, DSgt Kay said he was not sure whether it was the worst thing. He said that the applicant had told him about the problems with SSgt Nolan and he would have expected her to come to him about the incident with the individual respondent if it had occurred. He added that the applicant had shared with him intimate details about her personal life in the past.

[146] In cross-examination, DSgt Kay made a significant clarification to his testimony. He said that he did not recall being at the bar on Oct. 11, 2012 at all. When asked by the applicant’s counsel whether it was possible that the individual respondent forcibly kissed the applicant in the bar that night, DSgt Kay said it was possible but that he did not recall seeing the alleged incident. When asked whether he recalled the applicant telling him about the problems she had had earlier in the day with SSgt Nolan, he said that his recollection was that he heard about all of the applicant’s problems with SSgt Nolan at the same time – that is, after she left parade in December 2012. When asked in cross-examination whether he considered the applicant truthful, he said yes. He also agreed that she would have no reason to lie about the incident.

 

Detective Sedore’s Testimony

 

[147] Det. Sedore testified that he did not witness the incident the applicant had alleged in the bar. He also testified that he never witnessed any physical contact between the individual respondent and the applicant. The respondents’ counsel asked Det. Sedore whether he wished to adopt a summary of his SIU interview entered into evidence as to the kinds of questions and responses he provided to the SIU. Det. Sedore said he did. The summary of Det. Sedore’s interview indicates that he told the SIU that he had no knowledge of the applicant’s allegation at all. He told the SIU that he was very surprised at the allegations and felt that the SIU investigation came out of “left field”. He told the SIU that, if he had witnessed anyone sexually assaulting the applicant he would have dealt with it. In cross-examination, Det. Sedore testified that he could remember being in the bar with the applicant and DSgt Kay but he did not remember the individual respondent being there with them. When asked whether he was saying that the forced kiss did not occur, he replied that, if he had seen the individual respondent forcibly kissing the applicant, he would have taken appropriate action. When asked whether the applicant would make up a lie about the incident, he said that he did not know why she would.

Laurie Naughton’s Testimony

[148] Ms. Naughton was also called by the respondents to testify in this case. The respondents’ counsel asked Ms. Naughton what she recalled about the incident. She replied that she did not recall it. The respondents’ counsel took Ms. Naughton to the summary of her SIU interview in which she stated that she had no memory of an inappropriate incident occurring at a local bar while she was in the company of the applicant and the individual respondent. He asked her whether the summary accurately documented the information she provided to the SIU about the incident and she said yes.

Applicant’s Mother’s Testimony

[149] The applicant’s mother testified that she called the applicant on the evening in question when she was in the car on the drive home. When she asked the applicant how she was, the applicant burst into tears and tried to explain what had happened. The applicant’s mother testified that the applicant started to cry and described how the individual respondent had grabbed her, kissed her, and tried to force his tongue into her mouth. According to the applicant’s mother, the applicant told her she was going home to have a shower and stay in. In cross-examination, the applicant’s mother acknowledged that she had told the SIU in a letter in 2015 that it was the applicant who called her on the evening in question. She testified that she and the applicant phoned back and forth and that she had misspoken in the letter to the SIU.

SIU Investigation

[150] The SIU conducted an investigation into the applicant’s allegation of sexual assault. The applicant, DSgt Kay, Det. Sedore, and Ms. Naughton were all interviewed by the SIU. The SIU did not interview the individual respondent. Ultimately, the SIU found that there was no reasonable grounds to believe that the individual respondent committed a criminal offence in connection with the applicant’s sexual assault allegation.

Factual Findings

[151] It is the applicant who has the onus of making out her allegations in this case. She does not have to prove her allegation on a criminal standard of beyond a reasonable doubt, but she does have to satisfy the civil standard of a balance of probabilities. That is, she must establish that it is more likely than not that the incident in question occurred. After having spent a significant amount of time reviewing and assessing the evidence relating to this incident, I find that the applicant has satisfied her onus of establishing on a balance of probabilities that the individual respondent forcibly kissed her, as she alleged.

 

[152] I found the applicant’s testimony about the forced kiss to be clear, forthright, detailed and very specific. As noted by the respondents’ counsel, there were some small inconsistencies between her testimony and the statement she gave to the SIU. However, these inconsistencies were relatively minor and her accounts of the event were largely consistent. Respondents’ counsel also did not attempt to impeach the applicant on the inconsistencies but instead simply asked her to acknowledge certain inconsistencies in her accounts of the incident.

 

[153] In addition to being detailed and specific, parts of the applicant’s testimony were corroborated by her mother’s testimony. That is, her mother corroborated the fact that she had called the applicant on the night in question. She also corroborated the applicant’s testimony that the applicant was crying while driving home after the incident. The respondents did not object to the testimony from the applicant’s mother about what the applicant told her had just occurred. While this part of the testimony from the applicant’s mother may be considered a prior consistent statement, which cannot be used to bolster the applicant’s credibility, the testimony from the applicant’s mother can be relied upon for two purposes. First, it can be relied upon to show that the applicant did not later fabricate her account of the event in response to any subsequent events. In other words, the testimony from the applicant’s mother can be relied upon to establish that the applicant did not recently fabricate the incident for purposes of this Tribunal Application or for some other purpose. Second, the evidence from the applicant’s mother corroborates the fact that the applicant was upset and crying on her drive home that night. I do not agree with the reasons provided by the respondents for why I should find the applicant’s mother not credible. I will address those arguments further below.

 

[154] The individual respondent was consistent in his denial that he had forcibly kissed the applicant. However, I do not find it likely that the individual respondent would have such a detailed recollection of the night in question if nothing of any significance occurred, as he alleged. I have no doubt that, as he testified, he tried to reconstruct his memories of the evening after he became aware of the applicant’s Tribunal Application. However, that was a full two years after the incident at the bar. I do not find it likely that the individual respondent would have such a precise recollection of the events on the night in question if he had just stopped in for a quick drink at the bar that night and nothing of note occurred. In addition, I find that he sought to downplay the extent to which he had previously interacted with the applicant. This attempt to downplay the fact that they had previously had some interactions caused me concern regarding the credibility of his testimony about the event in question. As noted above, I was also concerned that the individual respondent denied being a jokester and someone who would often joke around at work despite the fact that many of the respondents’ witnesses had testified to this being the case. I find it more likely than not that the individual respondent intended the kiss as a joking way to welcome the applicant to his platoon, mistakenly believing that she could take the joke, and that it would simply be a joking matter her.-

 

[155] The respondents raise a variety of arguments as to why I should find that the applicant has not made out her onus regarding the forced kiss. In large measure, these arguments can be divided into three categories: (i) there were inconsistencies between the applicant’s testimony and parts of her prior descriptions of the incident which were recorded in the exhibits entered as evidence in the case; (ii) DSgt Kay, Det. Sedore and Laurie Naughton all said they did not see the individual respondent forcibly kiss the applicant and none remarked on the applicant seeming distressed before she left the bar that night; (iii) the evidence from the applicant’s mother must be viewed cautiously; and (iv) the applicant’s subsequent behaviour toward Det. Sedore and the individual respondent was inconsistent with her testimony about the incident.

 

[156] Before I address each of the respondents’ arguments below, I note that I have considered whether the applicant’s failure to make a complaint about the incident or to discuss it with DSgt Kay or Det. Sedore negatively affected the credibility of her account of the incident. As noted above, courts have been clear on the importance of avoiding stereotypical thinking and assumptions when dealing with sexual assault or sexual misconduct cases. This includes stereotypical thinking and assumptions about how a typical victim of trauma like a sexual assault will behave. In the circumstances of this case, I do not find it relevant that the applicant did not file a formal complaint about the incident or include it in her complaint against SSgt Nolan. She provided a reasonable explanation for her decision not to include the individual respondent in her complaint against SSgt Nolan. She explained that the individual respondent was more established and well-liked around the station and therefore making a complaint against him was riskier in terms of her career.

 

[157] I have considered the fact that the applicant did not confide in DSgt Kay and Det. Sedore about what happened. It was clear that the applicant sought out, and received, support from DSgt Kay and Det. Sedore in relation to her problems with SSgt Nolan. She also had a friendly relationship with them in which she sometimes shared details about her personal life. That said, the applicant testified to feeling disgusted and humiliated following the forced kiss. As she testified, she also saw the individual respondent as someone who was well-liked at work. He and DSgt Kay had also known each other for many years. In these circumstances, I do not find that the applicant’s failure to confide in DSgt Kay and Det. Sedore about the forced kiss suggests that it did not occur or that she consciously or subconsciously fabricated the incident out of a desire for vengeance or for some other unknown reason.

[158] I now turn to the arguments made by the respondents in support of their position that the applicant has not met her evidentiary onus with respect to the incident. The first category of arguments made by the respondents relates to certain inconsistencies in the applicant’s description of the incident. To begin, I note that the respondents’ counsel did not ask the applicant to explain these inconsistencies in their cross-examination of the applicant. They simply asked her to confirm what was recorded in various exhibits. As noted by the respondents, the applicant testified that the individual respondent tried to drive his tongue into her mouth but he was unsuccessful. However, in one of the reports issued by the Center for Addiction and Mental Health (“CAMH”) as part of the applicant’s WSIB claim, the psychiatrist states that the applicant commented that the individual respondent had “forced his tongue down my throat” despite her clear statements that it was not welcome. The applicant was not asked to explain this discrepancy. I note that the report in question was written by the psychiatrist and not the applicant. In the transcription of the SIU interview, the applicant stated “he tried to force his tongue through my lips” and that she had tried to push the individual respondent away. This verbatim account was consistent with her testimony at the hearing. In light of this, I do not find the discrepancy in the CAMH report significant. This is especially so given that the report was not written by the applicant but instead by the CAMH psychiatrist.

 

[159] The respondents also noted that the applicant did not tell the SIU in her interview that her mother had called her when she was driving home and that she had told her mother about being sexually assaulted. In fact, the applicant did tell the SIU that she had told her family about the incident. However, it is true that she did specifically tell the SIU that her mother had called while she was driving home. Again, the respondents’ counsel did not provide the applicant a chance to explain this in his cross-examination. In my view, her failure to tell the SIU about her mother’s call relates to peripheral information. The key witnesses from the applicant’s perspective were DSgt Kay and Det. Sedore who she thought could and would corroborate her account of events as they were with her at the bar that night.

 

[160] Finally, the respondents noted that the applicant gave inconsistent evidence as to whether DSgt Kay and Det. Sedore saw the forced kiss. She told the SIU that they likely saw it but then said they may not have seen it. In her Application, she said that they did witness the incident. In my view, the applicant would not have been in a position to reliably know what people saw or did not see that night. She may have thought that DSgt Kay and Det. Sedore saw what occurred but she cannot know with any degree of certainty whether they did or not. I also do not find that any discrepancies in her evidence as to who she believes saw or did not see the incident adversely affects the credibility of her account of the incident itself.

 

[161] For all the above reasons, I do not agree that the small discrepancies highlighted by the respondents in their written submissions were significant enough to adversely affect the credibility of the applicant’s account of events. This is especially the case since the account of events she provided to the SIU was otherwise consistent with her testimony in this case.

 

[162] The second category of arguments made by the respondents turns on the fact that DSgt Kay, Det. Sedore and Ms. Naughton all said they did not see the individual respondent forcibly kiss the applicant and none commented about the applicant seeming distressed before she left the bar. The respondents also rely upon the fact that the applicant told the SIU that the whole incident “was such a scene that you couldn’t not look” to argue that, if the incident had occurred, DSgt Kay, Det. Sedore and Ms. Naughton would have seen it. As just noted, the applicant would not have been in a position to reliably know what people saw or did not see on the evening in question. It was not disputed that DSgt Kay was the person who would have been positioned closest to her that evening. The individual respondent recalled the gathering taking place outside but he did not dispute the applicant’s account of the seating arrangements with DSgt Kay being closest to her, Det. Sedore being midway, and Ms. Naughton being at the other end of the table.

[163] I have serious concerns about the credibility of DSgt Kay’s evidence that he did not remember the gathering at the bar that night at all. I say this because the applicant had specifically asked DSgt Kay to meet her that night and they had spent 20-30 minutes discussing her problems with SSgt Nolan. I find it unlikely that DSgt Kay would not be able to remember this conversation when he had a very detailed memory of the next time the applicant sought out his assistance regarding SSgt Nolan, that being the evening after SSgt Nolan’s spanking comment. His recollection about the assistance he offered the applicant the night of the spanking comment and the next day was extremely detailed. Therefore, I have concerns about the credibility of DSgt Kay’s testimony in cross-examination that he had absolutely no recollection of the night at the bar which occurred just three months earlier.

 

[164] Even if I were to set this concern aside, I would be more inclined to agree with the respondents’ arguments if DSgt Kay, Det. Sedore and Ms. Naughton had clear recollections of the events in the bar on the evening in question and in addition testified that they likely would have seen the forced kiss it if it had occurred. However, that was not the case. As noted, DSgt Kay testified that he did not remember being in the bar that night at all. In cross-examination, he also conceded that it was possible that the individual respondent forcibly kissed the applicant in the bar that night but that he did not recall seeing the incident. Like DSgt Kay, Det. Sedore did not have a clear recollection of the evening in question. In cross-examination, he said he did not even remember the individual respondent being at the bar that evening. He also did not testify that he definitely would have seen the forced kiss if it had occurred. He only stated that he did not witness the incident and that, if he had, he would have taken appropriate action. Similarly, Ms. Naughton did not have a clear recollection of the night in question. She also could not say for sure that she would have seen it if it had occurred. Instead, she only said that she “did not recall” anything inappropriate occurring in the bar that night. In these circumstances, I do not agree with the respondents that the testimony from DSgt Kay, Det. Sedore or Ms. Naughton assist in assessing whether the forced kiss occurred or not.

 

[165] The fourth argument made by the respondents was that the evidence from the applicant’s mother must be viewed cautiously. The respondents made three arguments in this regard. First, they note that there was a discrepancy between her testimony and the letter that she wrote to the SIU as to whether she called the applicant that night or the applicant called her. I agree that there was a discrepancy in the evidence on this point, but I do not consider it serious given that the applicant’s mother explained that they often called back and forth. Second, the respondents argue that the testimony from the applicant’s mother should be viewed with caution because she testified that, when Professional Standards investigated the applicant for fraud in 2007, it caused the applicant stress but did not threaten her career, whereas the applicant believed that the Professional Standards investigation threatened her career at the time. I do not see how these different points of view regarding an investigation that occurred five years earlier would be a reason to treat the evidence of the applicant’s mother in this case with caution.

 

[166] Finally, the respondents note that the applicant’s mother did not contact anyone about the issue after the applicant told her that she was sexually assaulted. The respondents point out that the applicant’s mother contacted the Toronto Police Association when the applicant received an AWOL warning letter a year and a half or so later. The respondents did not put this issue to the applicant’s mother in crossexamination so she did not have a chance to explain why this was so. Overall, I do not think this is a reason to treat her testimony with caution since the AWOL warning letter was much later in the chronology of events and I have little to no evidence about the circumstances surrounding the contact that the applicant’s mother made with the Toronto Police Association.

 

[167] The final category of arguments made by the respondents related to certain statements or conduct of the applicant in the aftermath of the incident. First, the respondents note that the applicant told Ms. Naughton a couple of years later that Det. Sedore had gone to bat for her when she needed it. In the text exchange in question, the applicant and Ms. Naughton were discussing the stressful and poisoned environment in which they worked and Ms. Naughton said that she had little faith in any of the supervisors except one in particular who had gone to bat for her. The applicant responded “Yep that’s what kev [Sedore] and colin [Kay] did for me and shuby Men.” The respondents’ argument seems to be that the applicant would not have said this if she felt disappointed in Det. Sedore or DSgt Kay’s lack of response following the incident in the bar. The respondents’ counsel never asked the applicant to explain this perceived inconsistency in cross-examination. When considering the evidence as a whole, I am not persuaded that the applicant’s comment about Det. Sedore and DSgt Kay having gone to bat for her is inconsistent with the individual respondent having forcibly kissed her in the bar on the night in question. Her statement in the text seems based on the fact that they had supported her at various points when dealing with the issues she had with SSgt Nolan. As well the text in question is just a short text and therefore it is difficult to draw any conclusion one way or the other from it.

 

[168] Second, the respondents’ counsel note that the individual respondent testified that the applicant’s conduct had not changed toward him after the night at the bar. That was the individual respondent’s perception, not a proven fact. Also, and in any event, the applicant testified to being wary of the individual respondent before the incident in the bar and wary of him after. Therefore, it is possible that her demeanour around him had not changed. Finally, the respondents’ counsel note that the applicant did not mention the forced kiss in notes she took on her cell phone. The notes in question are random notes on a variety of topics. Again, the respondents’ counsel did not ask the applicant about the omission of the incident from the notes. The section of the notes referred to by the respondents’ counsel seems to be a list of issues that the applicant was having with SSgt Nolan. Therefore, I do not think it is appropriate to assign importance to the applicant’s failure to mention the forced kiss in the notes. This is especially the case since she was never asked about it at the hearing.

 

[169] Determinations of this kind are never simple or straightforward. Ultimately, I did not find the testimony of DSgt Kay, Det. Sedore and Laurie Naughton useful given the general lack of recall they claimed regarding the events of the night in question. As noted above, I have serious concerns about DSgt Kay’s alleged lack of recall of being at the bar that night, given his very detailed recall of other events that took place around the same time. I found the applicant’s evidence in relation to the forced kiss to be credible for the reasons given above. As described above, parts of it were also corroborated by her mother and I find this corroboration significant. On the other side of the coin, I had certain concerns about the credibility of the individual respondent’s testimony about the incident for the reasons set out above. Having weighed all of the evidence, I find that the applicant has satisfied her onus of establishing the allegation on a balance of probabilities.

 

Factual Findings: General Workplace Conditions Characterized by Sexualized Comments and Innuendo

 

[170] The applicant alleged that her supervisors and colleagues repeatedly made and tolerated sexual comments, sexual jokes and innuendo as well as comments and conduct that were degrading to women. She alleged that such comments were so frequent that many officers and supervisors accepted it as normalized behaviour. She described comments about her body, appearance, and personal life; comments in the nature of sexual innuendo, solicitation or advances; comments that were implicitly or explicitly sexual in nature; and comments that were degrading to women. She also testified that supervisors would often minimize or condone this conduct.

 

Comments about the Applicant’s Body, Appearance, and Personal Life

 

[171] The applicant testified that she was subjected to repeated comments about her body, appearance, and personal life. Some examples of this can be found in the section on the four particular examples of sexual harassment above. In addition, the applicant provided examples of comments made by SSgt Dawson regarding her body and appearance. SSgt Dawson was one of the staff sergeants to which the applicant reported for a period of time. She also dated his stepson.

 

Observations Regarding Credibility

 

[172] At the outset, I note certain concerns I had with the credibility of the testimony that SSgt Dawson gave in this proceeding. SSgt Dawson denied all of the allegations against him outright. This is not a reason to find him not credible. However, at several points in his testimony he both answered that he did not recall certain events and also denied that they occurred. By doing so, I find that he did not always show care in distinguishing between not recalling an incident that occurred many years ago and denying the incident outright. Perhaps the part of his testimony that caused me the greatest concern was his attempt to downplay the power he had over the applicant and her career. SSgt Dawson was a staff sergeant at 23 Division. He was not only a staff sergeant but he was a staff sergeant whose opinion held weight in the Division. Not only did the applicant testify to this but it was corroborated to a great extent by DSgt Kay’s testimony about a time in 2012 when he had approached SSgt Dawson to support a transfer the applicant was seeking out of the Division. It was clear from DSgt Kay’s testimony, that SSgt Dawson was someone who he thought who would have the power to assist the applicant in obtaining the transfer. As a DSgt in the Division, I find that he would have a reliable perception of who held power within the Division and who did not. For these reasons, I have concerns about the credibility of the testimony he gave in this proceeding and I approached his testimony with caution as a result.

 

[173] I have made general comments about the applicant’s credibility in the credibility overview section above. I noted how, in general, I had concerns about the applicant’s interpretation of certain events that occurred after she filed her complaint against SSgt Nolan. These concerns do not apply to the allegations against SSgt Dawson. In general, where the applicant’s testimony and SSgt Dawson’s testimony diverge, I accept her testimony over his.

 

“Smokin’ hot” Note

 

[174] In her Application, the applicant alleged that, during one of her shifts at the CIB, SSgt Dawson came up behind her and handed her a note that said “You are smokin’ hot”. When her counsel asked her whether she recalled the exact words on the note, the applicant testified that she believed that there were three words on the note: “Y-o-u- ‘-r-e”, “smokin’” and then “hot”. SSgt Dawson then started laughing and told her not to show the note to anyone. The applicant was upset, ripped the note up in front of him, and threw the note in the garbage. Since the applicant was not working with SSgt Dawson at the time, he had no work-related reason to be speaking to her. She testified that she felt like the only thing that mattered was what she looked like and that she brought him sexual gratification. According to the applicant, after she returned from a temporary assignment to the Homicide wiretap project in 2013, SSgt Dawson approached her and thanked her for not making a complaint against him because he had just been joking. This was after it was widely known that the applicant had made a complaint against SSgt Nolan.

 

[175] SSgt Dawson denied giving the applicant a note that said she was smokin’ hot. He also denied having any control over her career because he and the applicant were only on the same shift from April to August 2010. SSgt Dawson testified that he then went to another unit and would not have had much to do with the applicant.

 

[176] I find that the evidence establishes that it is more likely than not that SSgt Dawson handed the applicant a note when she was working in the CIB in 2012 saying that she was “smokin’ hot”. It is true, as noted by the respondents’ counsel, that the applicant testified that the note had the contraction “you’re” whereas the Application says “you are”. However, I find that the key part of the note was the “smokin’ hot” part on which the applicant provided consistent testimony. I find it likely that the applicant was more focused on this part of the note than on the first part. I also do not think that her inconsistent evidence about the spelling of “you are”/”you’re” undermines her credibility about having received the note and the note having said that she was “smokin’ hot”.

 

[177] I also do not agree with the respondents’ counsel that the applicant’s testimony that she tore up the note and threw it in the garbage in front of SSgt Dawson undermines her credibility about receiving the note. In my view, SSgt Dawson likely meant the note as a “joke” or perhaps even a compliment to the applicant. In this context, it is quite possible that he would have taken her tearing it up as all part of the joke. Therefore, I do not agree with the respondents’ counsel that SSgt Dawson would not subsequently have given the applicant an excellent evaluation if she had actually ripped up the note in front of him.

[178] I do not agree with the respondents’ further argument that the applicant’s ripping up of the note was inconsistent with her claim that SSgt Dawson had control over her and her career. In my view, this control is made clear by the fact that he signed off on her evaluation as Acting Inspector in October 2012.

 

[179] Finally, I do not think that the applicant’s statement that SSgt Dawson had no reason to be in the CIB undermines the credibility of her testimony because some of the respondents’ witnesses testified that it was not unusual for staff sergeants to be in the CIB. In cross-examination, the applicant stated that SSgt Dawson had no reason to be in the CIB at the time he handed her the note and also no work-related reason to hand her such a note. I do not find that this testimony is inconsistent with, or undermines, the credibility of her testimony about the note.

 

[180] For all these reasons, I find that the evidence establishes that it is more likely than not that SSgt Dawson did hand the applicant a note saying she was smokin’ hot in 2012. While he likely meant it as a joke, as a staff sergeant whose opinion carried weight, he was a person with a considerable amount of power over the applicant and her career prospects. Comments about Watching Applicant on Security Cameras in the Gym

 

[181] The applicant alleged in her Application that SSgt Dawson told her on a few occasions that he had watched her over the security cameras while she was in the gym. At the hearing, the applicant testified that SSgt Dawson had some interest in the officer she was dating at the time and that he felt it was his business to watch her. He told her that he could see her on the security cameras and that he was watching her. She said that SSgt Dawson would press the buttons hooked up to the public address system quickly so that she would know that he was watching her. The applicant testified that it was a joke to him and he would laugh.

 

[182] SSgt Dawson admitted that he beeped the intercom at the applicant when she entered 23 Division while she was not on duty and this was usually when she was bringing meals to her boyfriend who was also a police officer. SSgt Dawson testified that officers were required to report to the officer in charge if they entered the station while not on duty. He said that the applicant never complied with that requirement. SSgt Dawson said he beeped the intercom at other officers, both male and female, who came into the station early, late, or when they were not on duty.

 

[183] When the respondents’ counsel asked for SSgt Dawson’s response to the applicant’s testimony that he had told her he watched her when she was working out in the gym, SSgt Dawson responded that he never watched her when she was working out and that, if he had wanted to, he would need to be standing in the gym. He had previously testified that there were no security cameras in the gym. When asked in cross-examination whether he told the applicant he was watching her in the gym, SSgt Dawson said the could not watch her in the gym therefore he would not have told her that. In cross-examination, the applicant’s counsel pressed SSgt Dawson about the difference between telling the applicant that he was watching her versus watching her. The applicant’s counsel put to SSgt Dawson that he had told the applicant that he saw her going to the gym to which he replied that he could not know where people were going when they were walking down the hallway. The applicant’s counsel pressed further saying that, regardless of whether he actually watched the applicant in the gym, he had told her that he watched her. It was only at this point that SSgt Dawson denied telling the applicant that he had watched her in the gym.

 

[184] I find it more likely than not that SSgt Dawson told the applicant that he watched her in the gym even if it were the case that he did not in fact have the capacity to do so. I find that SSgt Dawson was evasive in his testimony on this issue. Even if I accept his evidence that there were no security cameras in the gym, it does not necessarily follow that he would not have told the applicant that he was watching her while she was in the gym. Also, even if it was SSgt Dawson’s usual practice to beep at people who had not signed in as required, since I find the applicant’s testimony more credible in general, I find it more likely than not that SSgt Dawson did repeatedly beep at the applicant as a kind of running joke.

Comments about the Applicant’s Clothing and Changes in her Weight

 

[185] The applicant testified that SSgt Dawson would often comment on her clothing and changes in her weight. She said that he would comment on which clothes he liked seeing her wear. She gave an example of SSgt Dawson stopping her in the hall one day when she was working in the CIB, and therefore not in uniform. According to the applicant, SSgt Dawson said “You know what clothes I liked you wearing this week?” and he would then proceed to tell her which clothes he liked on her. The applicant testified that she did not understand how he would have known what she was wearing every day. The applicant also testified that SSgt Dawson would comment that he noticed her weight going up and down, to which the applicant replied that she it was due to a medical issue.

 

[186] SSgt Dawson denied commenting on what the applicant wore or her weight. He testified that he would only comment if someone was not dressed appropriately for the workplace.

 

[187] Given that I find the applicant’s testimony more credible than that of SSgt Dawson, I find it more likely than not that he did comment on the applicant’s clothing and changes in her weight.

 

Comments about Applicant Liking to Party, etc.

 

[188] The applicant testified that SSgt Dawson would comment that she liked to party and there must be a lot of men coming and going from her house. He also commented that she lived on Resurrection Road and there was nothing religious about her. The applicant testified that there was no reason for SSgt Dawson to be talking to her about where she lived and that she found it creepy as she did not know whether he was actually watching her house.

 

[189] SSgt Dawson denied making these comments. When the respondents’ counsel asked whether it was easy to find an officer’s home address, SSgt Dawson testified that there was a list of addresses available at the front desk. In cross-examination, SSgt Dawson conceded that he knew that the applicant lived on Resurrection Road. He testified that it was important for supervisors to know where their people lived. He said he would not need to remember the exact number but it would be important to know, for example, if they lived in Georgetown, Oakville, etc. When the applicant’s counsel suggested that knowing the exact street is different from knowing that someone lived in Brampton, SSgt Dawson disagreed. He testified that if he was looking at where someone lives in the city, he might look at the street names and would just be doing so because he was curious, not for some unlawful purpose. When the applicant’s counsel asked whether he was curious where the applicant lived, SSgt Dawson replied that he needed to know where officers lived in case he had to call an officer in for a shift.

 

[190] Given that I generally found the applicant more credible than SSgt Dawson, I find it more likely than not that he did make comments about the applicant liking to party, that she lived on Resurrection Road, that there was nothing religious about her and that there must be a lot of men coming and going from her house. Moreover, I do not find it likely that SSgt Dawson would have memorized the street names of all the officers on his shift. The fact that he remembered that the applicant lived on Resurrection Road suggests that he had a particular interest in the applicant, even if it was just to tease her about the name of her street and other aspects of her personal life. Comments in the Nature of Sexual innuendo, Solicitation, or Advances

 

[191] The applicant also testified to a number of comments made to her that were in the nature of sexual innuendo or else in the nature of sexual solicitation or advances.

 

Comment about Wanting the Applicant’s Phone Number

 

[192] The applicant testified that SSgt Nolan once commented about wanting her phone number. One day in July 2012 when the applicant and Det. Quereshi were leaving on a detail, Det. Quereshi contacted SSgt Nolan to provide him with his phone number in case he needed to reach them while they were on the road. After Det. Quereshi gave SSgt Nolan his number, SSgt Nolan replied “Well, what I would really like is Heather’s number” in a creepy or flirtatious sexual tone of voice and then chuckled. Det. Qureshi laughed back, and then quickly ended the conversation. The applicant asked Det. Qureshi why SSgt Nolan wanted her phone number and he replied that he did not know. The applicant felt like Det. Qureshi did not want to speak further about the conversation he had had with SSgt Nolan. The applicant stated in her Application that the phone was on speaker phone. However, in her testimony she said that the phone was not on speaker phone but the volume was set loud enough for her to hear what was being said since she was sitting beside Det. Qureshi in the car.

 

[193] The applicant testified that, at this point, she was starting to see a pattern emerging in terms of how SSgt Nolan was starting to sexually harass her in the way SSgt Dawson had sexually harassed her. She said she felt like she had been intimidated before by a staff sergeant (SSgt Dawson) and told not to rock the boat, to be a team player and not go against the thin blue line. She felt like she was having to deal with yet another staff sergeant sexually harassing her, someone who could possible affect her career which was her life.

 

[194] SSgt Nolan denied ever saying that he would like the applicant’s phone number. He testified that, if he needed the applicant’s phone number, he had access to it on the emergency call list available to staff sergeants.

 

[195] Det. Quereshi testified that he did not remember the call being referred to by the applicant but then testified that what she alleged did not occur. This causes me concern about his credibility. He confirmed that he did not remember the incident in crossexamination. If he did not remember the call, it is of concern to me that he would so definitively testify that SSgt Nolan did not make the comment in question. He also testified that SSgt Nolan would be able to get the applicant’s number off the call list if he wanted it. When asked in cross-examination whether the applicant may have heard what was said on the call if she was sitting next to him in the car, Det. Quereshi replied that it would depend on the context, whether the windows were rolled down etc. He also replied that it would be difficult to hear tone and context. However, he conceded that it would be possible to be able to hear tone and context if the applicant was listening closely because she had heard her name. 

 

[196] I find it more likely than not that SSgt Nolan did joke with Det. Quereshi on the phone that what he would like was the applicant’s number. The testimony by both SSgt Nolan and Det. Quereshi that SSgt Nolan would have access to the applicant’s phone number and would not have to ask for it completely misses the point. The point is not that SSgt Nolan was actually asking for the applicant’s number but rather that he was saying that he would like to have her phone number. The latter statement can reasonably be interpreted as a kind of innuendo or commentary on the applicant as being someone of personal interest to him.

 

[197] I do not find it significant that the applicant wrote in her Application that the phone was on speaker phone whereas she testified that it was not on speaker phone but loud enough for her to hear. As acknowledged by Det. Quereshi in his testimony, it is possible that the applicant would have been able to hear what was being said on the phone. This is especially the case if she was listening particularly closely because she heard her name being mentioned.

 

Comments about Oral Sex, Taking Applicant out for Wine and a Picnic

 

[198] The applicant testified as follows about various comments made by the individual respondent in or around mid-2012 while she was still working in the CIB. According to the applicant, between three and five times, when she was at the front of the station, the individual respondent told her that he wanted to take her for wine and a picnic and he claimed to be good at oral sex. He told the applicant that, even though he is an old Italian man, he could still satisfy her sexually. The applicant ignored him. The applicant never complained because the individual respondent said it so often and no one ever did anything.

 

[199] When asked by his counsel whether he ever recalled any discussion about picnics, the individual respondent testified that he only ever remembered making one comment which he said got blown out of proportion. He said that he walked up to the front desk one day and saw all the officers with their heads buried in their phones. He testified in his examination-in-chief that he said something along the lines of “what about romance, doesn’t anyone go to picnics and talk anymore?”. He denied ever offering to take the applicant out for wine and oral sex. In cross-examination, the individual respondent reiterated making this observation but denied that he had ever said anything about sex. Later in his cross examination, he said that he did not ever recall referring to wine and picnics. The applicant’s counsel took him to a section of the Response which stated “Costa agrees that he had a general conversation with staff about wine, picnics and romance but he denied making any statement about having oral sex with the applicant”, and asked if that refreshed his memory. The individual respondent replied that he did not recall saying anything about picnics and wine. He said that he himself did not draft the Response and he perhaps did not review it for accuracy.

 

[200] I find that the applicant met her onus of establishing on a balance of probabilities that, on a few occasions, the individual respondent told her that he wanted to take her for wine and a picnic and that he claimed to be good at oral sex. The applicant’s testimony about the incidents was consistent and detailed. By contrast, I find that the individual respondent sought to reformulate his comment but that his testimony in relation to this reformulated comment was internally inconsistent and also inconsistent with the Response filed by the respondent.

 

Comment about Wanting to Lick the Applicant

 

[201] The applicant testified that, in or around June 2013, the individual respondent whispered into her ear that he would like to lick her. She was standing in the report room, which is a small hallway where police officers use computers to file their reports. The applicant was reading another officer’s report. She saw PC Jocelyn Watson standing at a nearby computer as her partner typed in a report. The individual respondent approached the applicant and whispered in her ear that he wanted to lick her. He then whispered in PC Watson’s ear, and both the applicant and PC Watson looked at each other in disgust. According to the applicant, with the look on each of their faces, they knew that each of them was disgusted by what the individual respondent had said. However, she also testified that she and PC Watson never in fact discussed the licking comment.

[202] The individual respondent denied ever whispering in the applicant’s ear that he wanted to lick her. When asked what she recalled about the incident, PC Watson said she did not “recall” it. When asked by the respondents’ counsel whether the individual respondent had ever whispered anything to her that she found disgusting, she said no. She also testified that she would remember it if Sgt Costa ever whispered anything “gross” in her ear. She denied that the individual respondent had ever said that he wanted to lick her or made any sexual advances or sexually inappropriate comments to her. When PC Watson was asked about the applicant’s testimony that she and the applicant shared disgusted looks, she just shook her head and smiled. When asked about it again, she said that she did not know what the applicant was talking about. PC Watson testified that she and the applicant never spoke about the incident, saying that they were not that close and they did not confide in each other about anything. When asked about the incident in cross-examination, she once again said she did not “recall” it. She made clear that she was the kind of person who would just tell someone to “fuck off” if they made that sort of comment. She agreed that, if the incident occurred, she likely would not have heard what the individual respondent whispered into the applicant’s ear. When asked by the applicant’s counsel whether it was possible that he whispered in her (PC Watson’s) ear, she said he absolutely could have. However, she said that if he had said anything like the applicant was alleging she would remember something like that.

 

[203] As with many allegations in this case, the applicant gave very forthright, detailed and credible testimony about the incident and the individual respondent denied that it occurred. Overall, there are factors that weigh in both directions. On the one hand, such a comment would fit with the tenor of other comments that I find the individual respondent made on a balance of probabilities. Also, as noted above, I am concerned about his attempt to downplay the extent to which he joked around in the workplace. On the other hand, as pointed out by the respondents’ counsel, by the time of this comment, the individual respondent knew that the applicant had made a complaint against SSgt Nolan. The respondents’ counsel questioned why the individual respondent would risk having the applicant file a complaint against him. This argument has some merit except that the applicant also testified that the individual respondent had told her that SSgt Nolan had told him to be careful around her but he was not worried. I find it likely that the individual respondent felt secure as to his position in the Division. Moreover, he had testified to feeling like he had a good relationship with the applicant. In these circumstances, and given that the applicant had not complained about prior comments he had made, it is unlikely that he would fear that the applicant would file a complaint against him.

 

[204] While PC Watson’s testimony was intended to support the respondents, I found it to be lacking in credibility with respect to the applicant’s allegation about the licking comment and therefore it worked against the respondents. First, the fact that PC Watson seemed amused by counsel’s questioning about the applicant’s testimony negatively affected the credibility of her testimony. It was clear that she considers herself someone who would just call someone out if they did anything she found inappropriate. Perhaps because of this, she seemed not to fully understand the seriousness of the allegation for the applicant. Second, she only said she did not recall the incident and that she would recall if the individual respondent whispered something she found to be disgusting or gross. She did not seem at all shocked by the applicant’s allegation nor did she testify that such a thing could not possibly have occurred or was unthinkable in her workplace. She also acknowledged that she would not have heard what the individual respondent whispered to the applicant if the incident did in fact happen despite the fact that she could not recall it. With respect to PC Watson’s testimony that the individual respondent had never made any inappropriate comments to her, it was clear from her testimony that she has a very high tolerance level for inappropriate comments. The applicant’s counsel put to her various examples of inappropriate comments alleged by the applicant in this case and she either said she did not find them inappropriate, she only found them weird, or she said it would depend on the context.

 

[205] On balance, I find that it is more likely than not that the individual respondent did make the licking comment to the applicant and that he did so in the same joking way he more likely than not made the prior similar comments about picnics, wine and oral sex referred to above. The applicant had not complained or called him out on those comments and therefore he likely assumed, wrongly, that the applicant was simply taking them as harmless jokes. Alleged Comment about Putting her Neck to Good Use

 

[206] The applicant testified that, after a neck injury she suffered in November 2013, the individual respondent made a sexual innuendo about putting her neck to good use. The applicant testified that she strained her neck late in 2013 and ended up going off on sick leave. One day during her sick leave in November 2013, she received a call from the individual respondent who asked her what her picks were for annual leave. The applicant told the individual respondent that she had to wait until her neurologist gave her the OK to return to work and that she had an appointment coming up. The applicant told the individual respondent that it was difficult being off work and not to be able to do anything because of her injury. The individual respondent replied that he could put her neck to use and started laughing. The applicant took this to mean that she could perform oral sex on him. She said that the individual respondent’s tone of voice was sexual and disgusting. The applicant said she changed the subject and asked the individual respondent about a police officer who had just been killed in 22 Division because she felt humiliated, degraded and disgusted.

 

[207] The individual respondent testified that he remembered the applicant going off work due to a neck injury and calling her to ask her about her annual leave selection. He denied making any comment about putting her neck to good use or speaking with her in a sexual or disgusting tone of voice.

 

[208] I find that the applicant has made out this allegation on a balance of probabilities. I have already found that the applicant has satisfied her onus to make out her allegations regarding various comments in the form of sexual innuendo that the individual respondent had made to her in the past. Accordingly, I prefer the applicant’s evidence over the individual respondent’s evidence with respect to this allegation as the tenor of the comment is consistent with the tenor of other similar comments taking the form of sexual innuendo that I have found made out on a balance of probabilities.

 

Other Implicitly or Explicitly Sexual Comments

 

[209] The applicant also testified to other comments that were implicitly or explicitly sexual in nature.

 

Comment about Admiring Appearance of Woman at Front Desk

 

[210] In her Application, the applicant alleged that, one day in March 2012, SSgt Nolan walked out of his office and told her he had been admiring the physical appearance of a female civilian who had been standing at the front desk. She alleged in the Application that he commented on how he liked her large breasts and her long blonde hair. When the applicant testified she provided a slightly different account of events. She testified that SSgt Nolan commented to the applicant that he had been admiring the physical appearance of a female member of the public who had been standing at the station’s front desk. The applicant testified that SSgt Nolan said that was the kind of woman he liked. The applicant then herself added that the woman had long blonde hair and large breasts. She did not testify that SSgt Nolan himself commented on the woman’s large breasts and long blonde hair. [211] In their written submissions, the applicant’s counsel quoted the applicant as saying that SSgt Nolan himself commented on the woman’s large breasts and long blonde hair. They quote her as saying:


he liked her appearance, and [how] this woman had very long very bright blond hair and large breasts. [emphasis added]

[212] However, it is the applicant’s counsel who added the “how” in the transcript. The transcript records the applicant’s counsel asking her whether she could give some examples of other women that police officers or supervisors would talk about. She replied as follows: 

Well, for instance, with Staff Sergeant Nolan, when a female from the community entered 23 Division, he would comment on that he liked her appearance, and this woman had very long very bright blond hair and large breasts. (Transcript November 16, 2016, p. 94) [emphasis added]

[213] Likewise, later on she testified:

… there was one female solely at the front desk at the time, and he said that he was admiring her appearance. And that was the kind of female that he liked. And she had long blond hair and large breasts. And at that time, I was in utter shock that is what he said to me. And I turned around and walked back through the police station and continued my day. (Transcript November 16, 2016, p. 184) [emphasis added]

[214] Similarly, I note that the applicant did not allege that SSgt Nolan had commented on the woman’s breasts or her long blond hair in her 649 complaint. She stated only that he had commented on admiring her physical appearance.

 

[215] SSgt Nolan denied saying that he had been admiring the physical appearance of a civilian and commenting on her breasts. He testified that, in March 2012, he was only temporarily assigned to 23 Division with the hope of being made permanent. He said it would be ridiculous for him to make such a comment in front of people he barely knew.

 

[216] I find it possible that SSgt Nolan commented that he liked the appearance of a woman who had attended at the front desk of the police station. However, I find that the applicant has not established that it is more likely than not that SSgt Nolan made a comment about admiring her large breasts and long blonde hair. As noted above, her testimony at the hearing was inconsistent with her Application in that she herself added in her testimony that the woman had large breasts and long blonde hair. As noted, her testimony was also consistent with her 649 complaint in which she did not allege that SSgt Nolan commented on the woman’s breasts.

 

Comments about Goatee

[217] The applicant testified that, one day in the spring of 2012, when she was working in the CIB, SSgt Nolan asked her whether she preferred him with a goatee or no facial hair. She was sitting at her desk in the CIB, across from Det. Sedore, when SSgt Nolan passed by their desks. Det. Sedore’s desk was in front of hers and SSgt Nolan was standing just at the point that their desks met. He stopped at their desks and said that he now had a goatee and he asked the applicant whether she preferred him with or without facial hair. He then said that only the applicant’s opinion mattered. The applicant did not look up until he was finished speaking because she could not believe what he was asking. She eventually looked up and said that it was fine. After the applicant replied, SSgt Nolan left and, according to the applicant, she and Det. Sedore looked at each other in disbelief. The applicant believed that Det. Sedore said “Oh well, that was really odd” and they continued working. The applicant testified that there was no reason for SSgt Nolan to come to her desk and speak to her as she had had very minimal interactions with him at that point.

 

[218] SSgt Nolan testified that it was possible that he would have asked the applicant about a goatee he had grown as he had asked a great many people about it. He testified that it would just have been friendly conversation in the workplace. However, SSgt Nolan denied telling the applicant that it was only her opinion that mattered. He testified that he asked almost everyone he knew about his goatee. When asked in cross-examination who he had asked about it, SSgt Nolan could not provide the names of anyone he had asked about his goatee. When it was put to SSgt Nolan in crossexamination that it would have been awkward for the applicant to either not answer or tell him to get lost, he agreed that he could understand the trepidation she would have in saying that. When asked if it would be a bad career move, he replied that it would be embarrassing. He also acknowledged that he did not know the applicant very well at the time that he asked her about his goatee.

 

[219] Det. Sedore testified that he recalled SSgt Nolan coming into the CIB and asking the applicant jokingly what she thought of his goatee. He said that it occurred shortly after the rules against facial hair had been relaxed and many men were growing goatees at the time. Det. Sedore testified that it was no secret that he and SSgt Nolan did not like each other. He said that SSgt Nolan sidelined him from the conversation and said that his opinion did not matter and he wanted to hear from the applicant. Det. Sedore said that he considered the incident a non-issue at the time. In crossexamination, he agreed that the incident likely occurred when both he and the applicant were working together in the CIB in 2012. When shown a news article reporting that the rules against facial hair were relaxed in 2009, Det. Sedore agreed that the incident could not have occurred shortly after the rule against facial hair was relaxed as he had testified in his examination-in-chief.

 

[220] I find it more likely than not that SSgt Nolan asked the applicant about his goatee when she was working in the CIB with Det. Sedore in 2012. The incident did not occur shortly after the rule against facial hair was relaxed. I also do not find it likely that SSgt Nolan went around asking everyone about his goatee, as he claimed. If that were the case, he should have been able to name at least one or more people who he had asked about it. This comment is one of the comments which seems innocuous when considered in isolation but takes on a different hue when considered as part of a pattern with the other comments made by SSgt Nolan. I find it likely that SSgt Nolan specifically asked for the applicant’s opinion because she is a woman and he wanted to know whether women would likely find the goatee attractive.

 

Comments about Being “ladies’ man”

 

[221] The applicant alleged that SSgt Nolan made other comments about being a “ladies’ man” in his younger years. She testified that, one day while she was on lunch on a day shift, she was standing at the front desk of the station, possibly talking to station operator Laurie Naughton. SSgt Nolan started a conversation with the applicant from the Staff Sergeants’ office which led her to have to speak to him in the office. SSgt Nolan said he used to be a “player” or “ladies’ man” back in the day before he was married and that now he was playing hockey to lose weight. The applicant found the conversation inappropriate as she interpreted the comment to mean that he used to date or have sex with many women. She just wanted to leave the office without appearing to disrespect him as he was a higher-ranking officer. I note that there is no mention of this incident in the applicant’s Application, Reply or witness statement. She did include it in the internal complaint (the 649 form) that she made against SSgt Nolan. In her complaint she alleged that it occurred the week of November 10, 2012.

 

[222] SSgt Nolan conceded that he may have had a discussion about playing hockey with the applicant but it would have been in the context of one of their numerous conversations relating to fitness. Ms. Naughton testified that she did not recall any conversation in which SSgt Nolan said he was a ladies’ man.

 

[223] I find it more likely than not that SSgt Nolan likely made some kind of comment about being a player back in the day but now he was playing hockey to lose weight. It is likely that the comment was made in the context of a discussion about fitness. I do not find there is support for the additional interpretation that the applicant put on the comment that he was bragging about dating a lot of women. The fact that the applicant did not include the incident in her Application leads me to believe that the applicant did not consider this allegation to be one of her main allegations. Even when considered in the context of the other comments made by SSgt Nolan, I do not find that this is a comment that SSgt Nolan ought to have known would be unwelcome by the applicant.

 

Allegation About “Penis Mug”

 

[224] The applicant worked on a project led by then SSgt Pauline Gray in early 2013 after she had made her complaint against SSgt Nolan. At the hearing, the applicant testified that SSgt Gray had handed out a mug with a comment about a penis that had been heard on the wiretap to which the officers had been listening. Officers on the assignment found the statement funny and it became a running joke as they would repeat the statement over and over again. The applicant testified that, at the end of the project, SSgt Gray gave everyone a mug that had the statement on it as a thank you for being part of the project. The applicant claimed that the mug was inappropriate and illustrated the sexualized nature of the workplace.

 

[225] Staff Sergeant Gray brought one of the mugs to the hearing when she testified. The mug looks like any other mug but had the following quote on it “You and your penis can go to hell”. She testified how work on the wiretap project could be tedious and that, in order to keep up morale, they had a white board with a quote of the day which was usually something that was heard on the wiretap that day. She described how, one day, officers overheard a conversation between a woman and her boyfriend who was a target of the investigation. The boyfriend had given the woman a ring that he claimed was worth a lot of money but the woman later found out that the ring was worthless. She told the boyfriend “You and your penis can go to hell”. Over the course of their investigation, the officers had heard the boyfriend treating the woman in a way that was not very kind or loyal and they were happy to hear her standing up to the boyfriend. Staff Sergeant Gray decided to put it on the mug because the officers working on the project had found the quote entertaining. She put the mugs on a table at the party that was held to mark the end of the project. Officers were free to take one or not.

 

[226] I find that SSgt Gray did make the mug described above available to officers. However, I find below that there was no reason that SSgt Gray ought to have known that the applicant would find the mug to be unwelcome. In my view, there is nothing inappropriate about the inclusion of the quote on the mug in the context described above. 

Alleged Demonstration of Sex and Masturbation During Parade

 

[227] The applicant testified that, in either November or December 2013, the individual respondent demonstrated in front of officers during parade how he would perform oral sex on a woman, how he manually stimulated women and how he masturbates. In her Application, the applicant said that the incident occurred in January 2014, but she testified that the month she gave in her Application was wrong, that it happened in November or December 2013 and that that it was dark out so it must have been on a midnight or afternoon shift. The applicant testified that, on the afternoon or evening in question, the individual respondent was sitting at one end of the table among other officers. The applicant went to the place where she usually sat, at the far end of the table on the opposite side. The parade was being held in the lunchroom since evening parades are less formal than parades for the day shift.

 

[228] The applicant looked down the table and the individual respondent had his hands up in front of his mouth showing the officers how he could perform oral sex. His tongue was out and going back and forth and his head was moving. The applicant was either the only female officer in the room or there may have been one other. She estimated that approximately ten male officers were there including SSgt Brent Swackhammer. The applicant put her head down and looked at her notebook. Eventually she looked up again and saw the individual respondent with his legs up on the desk and he was demonstrating how he masturbates and simulating masturbation with a very large penis. The applicant just put her head down on her desk. The applicant testified that SSgt Swackhammer was laughing and looked at her to see what her reaction was. The individual respondent also looked at her and was laughing. The applicant just put her head down. The applicant testified that she did not make a complaint against the individual respondent because his behaviour was accepted at all levels.

 

[229] The individual respondent denied that he simulated oral sex or masturbation on parade. He testified that he took night shifts off as vacation time and timesheets entered as evidence confirmed that the individual respondent did not work any night shifts in November or December 2013. The time sheets also confirmed that the individual respondent and the applicant had not worked on the same shift during this time period except for a period of time when the applicant was on modified duties at the front desk and would not have been attending parade.

 

[230] In addition, SSgt Swackhammer denied ever seeing the individual respondent simulating masturbation or oral sex on parade. He testified, in accordance with the time sheets, that Sgt Costa and the applicant had not attended a parade together in November or December 2013. When asked about the applicant’s allegations in crossexamination, SSgt Swackhammer said he did not witness the incident she had described. When the applicant’s counsel asked him whether it was possible that it happened and he did not see it, SSgt Swackhammer testified that the Sgt leading parade is usually at a podium at the front and he would be facing all of the officers sitting at tables. When asked later in the cross-examination whether there was a podium in the lunchroom, SSgt Swackhammer conceded there was not. When asked in reexamination whether he likely would have seen it if Sgt Costa had his feet up on the table in the lunchroom as described by the applicant, SSgt Swackhammer said “yes”.

 

[231] In her reply evidence, the applicant testified that she did not disagree with the timesheets. She said that she did not have the correct time period but that there was no doubt in her mind that the incident occurred as she had an independent recollection of it as well as flashbacks of it.

[232] I find that the applicant has met her onus of establishing on a balance of probabilities that this incident did occur even if she was wrong about the timing of when it occurred. I have taken into account that the applicant did not call any witnesses who were prepared to corroborate her account of the incident. However, I am cognizant of the difficulty of finding colleagues who are still employed with an employer (any employer not just the police) to come forward and corroborate incidents when these colleagues remain in the workplace. I also have taken into account the fact that the applicant could not recall the timing of this incident. However, the fact that she could not recall precisely when it occurred does not necessarily mean that it did not occur at all. In my view, the importance of the incident to the applicant would be far greater than the importance to the individual respondent or SSgt Swackhammer. It was clear from his testimony that SSgt Swackhammer had no recollection of the night in question as he initially testified that the parade occurred in the room with the podium where morning parades take place. Althought he did say in cross-examination that he likely would have seen Sgt Costa carrying out the actions described by the applicant if they had occurred in the lunchroom as alleged by the applicant, I find it unlikely that he would necessarily recall the incident. It is striking that SSgt Swackhammer did not testify to the effect that the conduct alleged by the applicant would have been so unsual, unacceptable, and beyond the pale that he could not help but remember it if it had occurred. He simply replied “yes” when asked whether he likely would have seen it if Sgt Costa had his feet on the table carrying out the actions described by the applicant. Both the applicant and many of the respondents’ witnesses testified that afternoon and night parades were much more informal than morning parades. Except for the timing of the incident, the applicant provided clear and detailed testimony about the incident that was not shaken in cross-examination. I find her recall of this incident more credible and reliable than that of the respondents’ witnesses. Overall, I find that she has made out her onus of establishing that this incident occurred on a balance of probabilities.

 

Alleged Comments about Sexual Acts on Parade

 

[233] The applicant testified that, on January 8, 2014, the individual respondent made unspecified joking comments on parade about engaging in sexual acts with women. Since it was a day shift parade, it was attended by all units working day shift as well as certain high-level supervisors often referred to as “white shirts”. Superintendent Taverner was in attendance as well as Inspector Mike Ervick who had just started as Inspector in the Division that day. The applicant sat at a desk at the back of the room. She described where people were sitting in the room. She testified that the individual respondent “was making jokes about women, degrading women, sexual jokes”. According to the applicant, Detective Stasiak said “[o]f all the years that you’ve made all these jokes, no one has ever complained about you”, to which the individual respondent, Supreintendent Taverner, and SSgt Swackhammer laughed. According to the applicant, they then looked over at the applicant to see what her reaction was and she put her head down to look at her notebook. The applicant testified that it was that day that she realized that “there was no hope and that she had no chance of safety from this type of abuse.” Later that day, the applicant had her first appointment with Dr. Vermani which she had booked some time before. The applicant called in sick the following day and Dr. Vermani wrote a letter a few days later for the applicant to begin a sick leave (discussed further in below).

 

[234] The individual respondent denied making any sexual jokes about women on parade on January 8, 2014. DSgt Stasiak denied making the comment alleged by the applicant. However, his testimony became much less definite and even evasive when pressed in cross-examination. When asked in examination-in-chief whether he remembered anyone laughing, he said that he did not remember anyone laughing and did not remember saying the comment. When asked in cross-examination whether he was saying that the individual respondent did not make jokes about women at the January 8, 2014 parade, DSgt Stasiak said he did not hear them and he said he did not remember laughing. When asked about the applicant’s evidence about what he said, DSgt Stasiak said he did not recall it and he did not believe he said it. When the applicant’s counsel asked him whether someone who had been repeatedly the object of sexual innuendo would be more likely to remember occasions where people told sexual jokes than other persons in the room, DSgt Stasiak said he agreed. He also agreed that the applicant’s recollection would be better than his since for him it was not something personal. In re-examination, the respondents’ counsel asked whether DSgt Stasiak would recall making the alleged comment if he had made it, he said he did not hear the original comments from the individual respondent so he would not comment on something he did not hear.

 

[235] Inspector Ervick testified that January 8, 2014 was his first day at 23 Division and that as far as he was concerned what the applicant alleged did not happen. He said he “did not recall” anything that could possibly be interpreted as harassing or degrading to women. He also said he “did not recall” the follow-up comment by DSgt Stasiak alleged by the applicant. In his examination-in-chief, SSgt Swackhammer denied that the individual respondent made the comments alleged by the applicant.

 

[236] PC Panaytov also testified that he did not recall the comments. In his examination-in-chief, he testified that he was detailed to work with the applicant that day and he did not notice anything different in her demeanour. However, in his crossexamination it became clear that he did not remember anything about the parade or the day other than the fact that the individual respondent led the parade and the fact that he and the applicant were assigned to work as partners. He said he had had a chance to review his memo book before testifying and he had noted both of these things in his memo book and nothing else.

 

[237] I find that the applicant has made out that the individual respondent made the comments on a balance of probabilities. I have found above that the individual respondent was a jokester who more likely than not made other joking sexual comments alleged by the applicant. I also found that some of the respondents’ witnesses, like DSgt Stasiak and PC Panaytov significantly nuanced their testimony in cross-examination, as both testified that they simply could not recall or hear the comments, not that they were not made. I found DSgt Stasiak somewhat evasive when pressed in cross-examination but then I found it surprisingly candid of him to acknowledge that the applicant would likely have better recall of the incident than others who would not be as personally affected by the comments. While I cannot say for certain that the individual respondent made the comments, I find it more likely than not that he did.

 

[238] I have taken into consideration the respondents’ argument that Dr. Vermani’s clinical notes from the applicant’s appointments from that day and three days later do not mention the comments by the individual respondent. January 8, 2012 was the applicant’s first appointment with Dr. Vermani and her notes are focused on the applicant’s symptoms and background, not on any specific experiences. Dr. Vermani’s notes from January 11, 2012 make reference to the applicant’s experiences with SSgt Nolan as well as other “rambling details of painful experiences.” When asked by respondent’s counsel in cross-examination about a lack of specific reference to the individual respondent in her notes, Dr. Vermani replied that, when she is taking notes, she is mostly focused on the patient’s symptoms not recording all of the events they claim caused the symptoms. Dr. Vermani testified that the applicant talked about several sergeants and staff sergeants in their appointments.

[239] On some level, I agree with the respondents that the comments by the individual respondent did not distress the applicant as much as the comments and actions by SSgt Nolan. Otherwise, one would expect them to figure more prominently in Dr. Vermani’s notes. However, that does not mean that the applicant did not experience what she alleged or fabricated her allegation. On her own testimony, the applicant seemed particularly disturbed by the fact that the comments seemed accepted and normalized as a result of the comment from DSgt Stasiak. The fact that the applicant did not actually specify what the comments were suggests that what bothered her more was not the precise comments, whatever they were, but the fact that they were considered normalized and accepted.

 

Comments Degrading to Women
 

[240] The applicant also testified that comments degrading to women were common in the workplace. She provided the following examples.

 

Alleged Reference to Female Staff Sergeant as a “cunt”

 

[241] According to the applicant, in or around May 2013, the individual respondent commented that he did not want any female supervisors on his shift and referred to Sgt Kim Ledgerwood (now Timbers) as “that cunt”. The applicant testified that he made the comment to other sergeants in the sergeants’ office. She did not know which sergeants were there and she did not hear any responses.

 

[242] The individual respondent denied ever calling Sgt Ledgerwood a cunt. He testified that he was surprised at this allegation as he did not know Sgt Ledgerwood until she transferred into 23 Division in March 2013. In cross-examination, the individual respondent admitted to using the word cunt outside the workplace but denied that he had ever used it at work. The applicant’s counsel put to him the applicant’s testimony that once, when Kathleen Wynne appeared on a TV at the police station, he said that he did not want to work for a “dyke cunt”. The individual respondent replied that he does not work for Kathleen Wynne. When the applicant’s counsel followed up to ask whether that was his response to the question, he said it was. Obviously, his response did not answer the question.

 

[243] In her testimony at the hearing, Sgt Ledgerwood/Timbers denied being aware of the individual respondent calling her names. She denied that she and the individual respondent had a confrontational relationship at work. Other respondent witnesses denied ever hearing the individual respondent call Sgt Ledgerwood a “cunt”.

 

[244] I do not find that the applicant has made out this allegation on a balance of probabilities. I do find it possible that the individual respondent referred to Sgt Ledgerwood as a “cunt” as he did concede to using this word outside the workplace and his response to questions in cross-examination about calling former premier Kathleen Wynne a “dyke cunt” were far from satisfactory. Nevertheless, I do not find that this allegation is made out on a balance of probabilities especially given the lack of detail in the applicant’s testimony about the comment and the lack of any corroborating evidence given that the comment would have been made in the presence of others.

 

Reference to Female Station Operator as Being “on her rags”

 

[245] The applicant testified that, in or around January 2014, the individual respondent made comments about Ms. Naughton being “on her rags”. One day, the applicant was working at the front desk with Ms. Naughton as she was on modified duties due to her neck injury. She testified that the individual respondent came out of the sergeants’ office and asked Ms. Naughton whether she was on her rags. Ms. Naughton did not respond. The individual respondent then said “this is how women act when they’re on their rags”. Then he asked the applicant what Ms. Naughton’s problem was. The applicant did not respond. Prior to the comments, Ms. Naughton had told the applicant that the individual respondent had given her work that she should not be doing and she was upset that he was not doing his job. When asked whether she later discussed the individual respondent’s comments with Ms. Naughton, the applicant said she had not since she and Ms. Naughton did not need to speak, they understood what was going on without having to go over it. The applicant described Ms. Naughton as a vocal person, so she thought that Ms. Naughton’s lack of response indicated that she was afraid to stand up for herself as she might get into trouble. 

[246] The individual respondent denied that he asked Ms. Naughton whether she was on her rags. When asked about the comment in cross-examination, the individual respondent said that he had known Ms. Naughton for 20 some odd years. He testified that he had asked her to do something on the day in question and she was unhappy about it. He also testified that she had come into his office and they had a discussion about the situation. He said he did not recall making a comment about her being on her rags. The individual respondent also testified that he and Ms. Naughton were work friends and that he had supported her when her son had died due to injuries sustained in an accident.

 

[247] Ms. Naughton testified that she remembered having a heated discussion with the individual respondent in his office in November or December 2013 and that he was complaining about having to do all the work. She said that she did not remember the whole conversation but they had words back and forth. She said she did not recall him using the words alleged by the applicant but that she did not recall the whole conversation only that they had words.

 

[248] I find it more likely than not that the individual respondent did make a comment about Ms. Naughton being on her rags. It is not disputed that the individual respondent and Ms. Naughton had a heated discussion on the day in question. In crossexamination, the individual respondent did not deny making the comment, he said he did not recall making it. I also found Ms. Naughton very evasive in her testimony. She also said she did not “recall” the comment but then made a point of adding that she did not recall the whole conversation.

Alleged Discrimination in Assignment of Work by SSgt Gray

[249] The applicant testified that, when she was detailed to work on a wiretap project supervised by Inspector (then SSgt) Gray, male officers were given assignments to go on the road and she was left in the wiretap room to listen to phone calls. According to the applicant, one day, SSgt Gray stood in the door and said “women were meant to stay in and do paperwork, male officers were meant to go out on the road.” The applicant also testified that, one day, a male detective assigned her to go out and interview people. She said that, when SSgt Gray found out about the assignment the next day, she took the detail away from her and gave it to a male officer instead. The applicant claimed that this treatment degraded her as a woman.

 

[250] Staff Sergeant Gray testified that the applicant was specifically brought onto the project to work in the wiretap room and not as a detective. This is corroborated by notes the applicant herself wrote to submit to her treating physicians in which she commented that she would not be receiving “the extra 6%” that detectives on that assignment received. SSgt Gray said the vast majority of the work on the project was paper work and that it was important work. She also testified that the applicant did a good job and that is why she asked her to stay on to finish up some of the work on the project. She further testified that the applicant was interested in staying on and had never given her the impression that she was disappointed in her role on the project.

 

[251] Based on the above evidence, I do not find it credible that SSgt Gray made the alleged comment about women being meant to stay in and do paperwork while male officers were meant to go out on the road. I accept as credible that the applicant was hired specifically to work in the wire room. That is why she was assigned to this task rather than going out on the road with the detectives who were part of the project.

Alleged Comment about Hating PWs

[252] The applicant testified that when she first met with SSgt Gray and a team of officers at the start of the wiretap assignment mentioned above, SSgt Gray immediately stated that she hates PWs and then carried on with giving instructions about the assignment. The applicant said it made her feel like she did not matter.

 

[253] SSgt Gray denied ever saying she hated PWs. She testified that PW is not a term she ever uses because she does not like it. She said the term used to be a rank within the police force. SSgt Gray testified that she has spent the bulk of her career helping women police officers. She was recognised with an award for mentoring officers. She also worked with an international association of women in police and was one of the women who started Ontario Women in Law Enforcement.

 

[254] I do not find it credible that SSgt Gray would have said that she hates PWs as alleged by the applicant. I find that the applicant likely misheard or misinterpreted something that SSgt Gray said during her first meeting with the officers on the wiretap project. If SSgt Gray truly hated PWs, she would not be involved in women in law enforcement organizations. I also find that there would be no reason for her to say she hated PWs or police women if that is not how she felt. I find it particularly unlikely that she would do so at the very beginning of a project with a new team of officers.

 

Individual Respondent’s Minimizing of the Applicant’s Complaint

 

[255] The applicant testified that the individual respondent made a number of comments in relation to her internal complaint when she returned to work in midDecember 2012. According to the applicant, during parade a few days after she returned to work, the individual respondent announced that if he had been present on December 4, 2012 (the date on which SSgt Nolan made the comment about spanking the applicant in private), he would have been able to resolve the matter “without all of this”. The individual respondent also said that a staff sergeant would be writing down anything that was said to the applicant. This made the applicant feel like other officers were even more afraid to talk to her. The individual respondent also made what the applicant considered to be inappropriate jokes by mimicking SSgt Nolan and his mannerisms on parade in front of everyone and later again in the CIB. The applicant spoke to the individual respondent after a parade and told him that it needed to stop. He said that he was just joking and that SSgt Nolan had warned him about the applicant but that he was not worried.

 

[256] The individual respondent denied all of the above allegations. He testified that he thought that the applicant took his comments to the platoon out of context. He did admit to speaking to the members of the platoon about the spanking comment incident when he returned from vacation in mid-December. He said that he told the members of the platoon on parade that if he had been around, what happened in the parade on December 4, 2012 would not have happened. He testified that he told the platoon not to discuss the incident and to give the applicant some room.

 

[257] In cross-examination, he agreed that he may have referred to the applicant’s complaint as “all of this”. When asked whether the applicant had told him that she was uncomfortable with his joking, he said he did not recall and that he did not recall having a conversation with her in which she told him to stop joking about the matter. Also, in cross-examination, Sgt. Costa gave evolving inconsistent evidence as to whether he was aware that the applicant had filed a complaint against SSgt Nolan at that point. In his evidence-in-chief, he implied that he knew about the complaint but later in crossexamination he denied knowing about the complaint and had only picked up tidbits here and there. When asked if he knew who the complainant was, he said he only found out later. However, this was inconsistent with his earlier testimony that he told the platoon not to discuss the matter so that the applicant could have some breathing room.

 

[258] Due to the generally inconsistent testimony provided by the individual respondent on parts of this issue, I prefer the applicant’s evidence over his. The individual respondent himself admitted that he may have referred to the applicant’s complaint as “all of this” and said he did not recall whether the applicant told him to stop joking about the matter. I find that the applicant has satisfied her onus of establishing on a balance of probabilities her allegations that the individual respondent minimized her complaint and joked about it in front of her colleagues as alleged. As noted by the respondents, minimizing someone’s complaint is not an incident of sexual harassment. However, in my view, it formed part of the poisoned work environment that I discuss below.

Legal Findings

 

[259] The Code provides that every person who is an employee has a right to freedom from harassment in the workplace because of sex: s. 7(2) of the Code. Harassment is defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”: s. 10(1) of the Code. The Tribunal’s case law has held that this definition includes both subjective and objective elements, the subjective element being that the conduct was vexatious to an applicant and the objective element being that the alleged harasser knew or ought reasonably to have known that the conduct was unwelcome. See, for example, Taucar v. University of Western Ontario, 2015 HRTO 629 at para. 38. It is well-established under human rights case law that intentions and motivation are irrelevant to a finding of discrimination or harassment.

 

[260] I have found above that the applicant has made out her onus of establishing the following comments and actions:

a. The individual respondent forcibly kissed the applicant when they were out with colleagues for an afterwork drink and made the comments discussed above about taking her out for wine, a picnic and oral sex, licking her, putting her neck to good use, Ms. Naughton being on her rags, and unspecified other sexual jokes about women on parade on January 8, 2014. He also simulated sex and masturbation during a parade that was held in the lunchroom.

b. SSgt Nolan made the comments discussed above about the applicant riding a horse, spanking the applicant in private, asking the applicant about his goatee, and being a ladies’ man.

c. Sgt Payton showed another officer a photo of the applicant in a bikini on his phone when the two were working a crime scene. He also viewed the bikini photo in front of others in the sergeants’ office. In addition, he reproduced a photo of the applicant several times for use as wallpaper on his computer.

d. SSgt Dawson passed the applicant a note saying she was “smokin’ hot”, commented on her clothes and changes in her weight, and made the other comments described above about watching her on the security cameras, the applicant liking to party, men coming and going from her house, the fact that she lived on Resurrection Road and there was nothing religious about her.

e. PC McLaughlin made a comment to the effect that he wished that the applicant would ride his horse as a follow-up to a horse-riding comment made by SSgt Nolan during parade.

Sexual Harassment by the Individual Respondent

[261] The only individual respondent named in the Application is Sgt Costa. In my view, the incidents involving the individual respondent satisfy the Code’s definition of harassment and amount to a violation of the Code’s protection against sexual harassment: s. 7(2) of the Code.

 

[262] I find it more likely than not that the individual respondent did not intend his actions to sexually harass or harm the applicant. However, it is well-established that it is not necessary to establish an intention to sexually harass or harm an applicant under the Code.

 

[263] In order to establish a case of sexual harassment in employment, an applicant must establish four conditions. First, the applicant must establish that the individual respondent was her employer, her employer’s agent, or another employee. This condition is satisfied as the individual respondent was the applicant’s work supervisor. [264] Second, the applicant must establish that the individual respondent engaged in a course of vexatious comment or conduct towards her that was known or ought to be known to be unwelcome. The case law has found that one incident may amount to a course of vexatious conduct if it is sufficiently egregious. See Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 and Romano v. 1577118 Ontario Inc., 2008 HRTO 9. I find that an incident of sexual assault such as a forced kiss is sufficiently egregious to amount to a course of vexatious conduct that ought to be known to be unwelcome. This finding of harassment is only reinforced by the addition of the other comments and actions established in the evidence.

[265] Third, the harassment must have occurred in the “workplace”, broadly defined. The courts have made clear that this may include after-work hours and it may include incidents that occurred outside the physical confines of a business. See Simpson v. Consumers’ Association of Canada, (2001), 57 O.R. (3d) 351 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 83. In my view, the gathering of work colleagues and supervisors at the bar after work in this case falls within the scope of the workplace and the comments made out in the evidence all occurred within the workplace as it is traditionally understood.

 

[266] Finally, the harassment must have occurred because of the applicant’s sex. That condition is also made out. The Tribunal has held that the very nature of sexual harassment and sexual assault can be sufficient to establish that the sex of the applicant was a factor in the conduct. See P.T. v. Rahman Consulting Services, 2018 HRTO 1566 at para. 31. Moreover, I do not believe that the individual respondent would have forcibly kissed a man in the way I have found that he forcibly kissed the applicant, nor is it likely that he would have made the sexualized comments he made to a man.

Poisoned Work Environment

[267] In my view, when considered collectively, the comments and conduct that have been established in this case satisfy the Code’s definition of sexual harassment as they form a course of conduct that was vexatious to the applicant that the individuals involved knew or ought to have known would be unwelcome. However, beyond that, they also rose to the level of a poisoned work environment for the applicant.

 

[268] A poisoned work environment can be created in two circumstances: (i) if there has been a particularly egregious stand-alone incident or comment, or (ii) if there has been serious wrongful behaviour sufficient to create a hostile or intolerable environment that is persistent and repeated. See General Motors of Canada Ltd. v. Johnson, 2013 ONCA 502 at paras 66-67 as adopted in the human rights context by the Divisional Court in Crêpe it Up! v. Hamilton, 2014 ONSC 6721 at paras. 18-19. The perspective to be adopted in assessing whether a poisoned work environment was created is that of an “objective reasonable bystander”. In determining whether or not a poisoned work environment exists, relevant factors include: the number of comments or incidents; their nature; their seriousness; and whether taken together, it had become a condition of the applicant’s employment that she or he must endure discriminatory conduct and comments: see Crêpe It Up! v. Hamilton, above, at para. 19 and George v. 1735475 Ontario Limited, 2017 HRTO 761 at para. 58 (“George”).

 

[269] In their final written submissions, the respondents’ counsel seek to parse out the comments to examine the allegations one-by-one to argue that none of them meet the test for a poisoned work environment. However, allegations of sexual harassment and poisoned work environment must be examined in context and not considered in isolation. The reason for this is that a comment or action that may not seem inappropriate on its own may become so when considered in the context of a series of comments and actions. I agree with the respondents that some of the comments above may not have been inappropriate if made in isolation. However, when considered collectively, they rise to the level of a poisoned work environment.

 

[270] I find that the comments and conduct that the applicant has established on a balance of probabilities meet the test for a poisoned work environment in that they amounted to (i) serious wrongful behaviour sufficient to create a hostile or intolerable environment, and they were (ii) persistent and repeated such that they became a condition of her employment.

 

[271] The comments and conduct described above amount to serious wrongful behaviour sufficient to create a hostile or intolerable environment for a number of reasons. First, almost all of the comments and conduct were made or carried out by the applicant’s supervisors – that is, sergeants or staff sergeants who held a significant degree of power over the applicant and her career prospects. These were also individuals to whom she was expected to report incidents of harassment under the Board’s policy on human rights.

[272] Second, even if many of the comments or actions were made jokingly, they were serious in that they were vexatious and unwelcome, often sexual in nature, about the applicant, her appearance, her sexuality and her personal life. They also included commentary in the nature of sexual advances and a sexual assault in the form of a forced kiss. Taken together, these comments and actions delivered a message to the applicant that, as a woman, she was seen as a sexual object or an object of personal interest by many of her male supervisors. This put her in a position of having to engage in various coping practices such as deflecting the comments or playing along for fear of suffering consequences due to the degree of power her sergeants and staff sergeants held over her. Third, additional supervisors and colleagues condoned or minimized the conduct by laughing along, joking about the conduct, and ignoring or failing to address the conduct. That said, there were also instances where supervisors were responsive to the applicant’s concerns. For example, Sgt. Payton did remove the photos of the applicant that he had been using as wallpaper on his computer when she told him to take it down. Likewise, PC Skolly did take down the bikini photo after the applicant asked her to do so. Det. Sedore also took appropriate steps to assist the applicant after the spanking comment made by SSgt Nolan. Nevertheless, due to the number of harassing comments and actions described above, I find that there is sufficient evidence to find that it had become a condition of employment to endure such comments and conduct.

 

[273] In addition to being serious wrongful behaviour sufficient to create a hostile or intolerable environment, the comments and conduct that have been established in this case were persistent and repeated during the relevant time period set out in the Application. The comments and conduct made out in the evidence spanned a period of approximately three years and arose, not from one person, but from several sergeants and staff sergeants to whom the applicant reported at various points during that time.

 

[274] For all these reasons, I find that the applicant has satisfied her onus of establishing that she was subjected to a poisoned work environment. As I discuss below, while the Board is not vicariously liable for the sexual harassment by the applicant’s supervisors and colleague, it is vicariously liable for the poisoned work environment that was created by their actions, as a poisoned work environment is a violation of the general protections against employment-related discrimination contained in s. 5(1) of the Code. See George, above, at para. 61.

 

ALLEGATIONS REGARDING THE HANDLING OF THE NOLAN COMPLAINT

 

Applicable Law

 

[275] Employers have a duty to reasonably respond to allegations of discrimination or harassment in the workplace and a failure to do so will result in liability under s. 5 of the Code. [276] In Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (“Laskowska”), the Tribunal identified three criteria to be used in assessing whether an employer has responded appropriately to a discrimination or harassment complaint:

  1. Awareness of issues of discrimination/harassment, Policy Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

  2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

  3. 3. Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide him/her with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

 

[277] The Tribunal’s jurisprudence has established that, in its duty to take reasonable steps to respond to complaints, the employer is held to a standard of reasonableness, not correctness or perfection. An employer can reach the wrong conclusion and nevertheless have conducted a reasonable investigation, and investigations do not need to mirror hearings. In addition, an employer need not satisfy each element set out above in every case in order to be judged to have acted reasonably. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably. See Laskowska, above, at para. 6.

 

Factual and Legal Findings

Failure of Supervisors to Intervene

[278] The applicant argues that various supervisors failed to intervene when they witnessed some of the conduct and commentary discussed above. She argues that this gives rise to a separate Code breach as they failed to address the situation.

 

[279] It should be noted that an employer’s obligation to take reasonable steps to respond to a complaint of harassment or discrimination requires that a complaint or concern be communicated by the applicant or otherwise known to the respondent in a manner sufficient to engage its obligation to respond to it. See Patterson v. Hamilton Health Sciences-Chedoke, 2011 HRTO 1582 at para. 313. In my view, the actions or inactions of various supervisors are most appropriately considered to form part of the poisoned work environment detailed above.

 

Alleged Attempts to Dissuade Applicant from Filing Formal Complaint

 

[280] The applicant alleged that Superintendent Taverner attempted to pressure or dissuade her from filing a formal complaint about SSgt Nolan’s conduct.

 

[281] As noted above, after SSgt Nolan made the spanking comment on December 4, 2012, the applicant sought out the assistance of Det. Sedore who had been working in the CIB that night. The next day SSgt Nolan reported the incident to Superintendent Taverner and told Det. Sedore that Superintendent Taverner wanted him to file a 649 form (internal complaint form) outlining the incident. Detective Sedore filled out a 649 form. 

[282] The applicant met with Superintendent Taverner and a representative of the Toronto Police Association that same day, December 5, 2012. She told Superintendent Taverner that an incident occurred the previous night (the spanking comment discussed above) and that it was sexual harassment. She advised him that SSgt Nolan had made an inappropriate comment and that she had left work. The applicant testified that Superintendent Taverner advised her that he could deal with it internally. She advised him that it was too serious to be dealt with internally, that there were other incidents and that she wanted to make a formal complaint. According to the applicant, Superintendent Taverner advised her again that he could handle the matter internally and that he would be able to deal with it in a serious manner for her. The applicant then told Superintendent Taverner that she would like to make a formal complaint and he asked why. The applicant responded that she wanted the abuse to stop. Superintendent Taverner then said that he could change her shift to work on the opposite shift as SSgt Nolan. She responded that she did not want to be removed from the shift as she did nothing wrong. The applicant told Superintendent Taverner that she would not return to work until SSgt Nolan was removed from the station. Superintendent Taverner replied that he would see what he could do. SSgt Nolan ended up being transferred to a different Division.

 

[283] According to the applicant, Superintendent Taverner told her to complete a 649 form and to hand it to him with all the details of the incidents with SSgt Nolan. He also ordered her not to speak to anyone about any of the incidents including the Inspector of the Division at the time as he would blow things out of proportion. At this point, the applicant pointed to a picture on Superintendent Taverner’s wall that, according to the applicant, said “loose lips sink ships”. She said “like the picture on the wall” and Superintendent Taverner laughed and said “yes, like that”. He told the applicant not to tell anyone about the meeting as it was a secret meeting. She testified that he repeated his comments about loose lips sink ships in early January 2013 when they were driving to go meet SSgt Gray about the wiretap project to which the applicant was being temporarily assigned.

[284] As noted above, Superintendent Taverner did not testify in this proceeding as his doctor confirmed that he was not medically fit to give evidence due to a concussion he had suffered. For the reasons set out in above, I have declined to draw any adverse inference from Superintendent Taverner’s failure to testify. Neither the applicant nor the respondents called the Toronto Police Association representative who was present for the December 5, 2012 conversation to testify in this proceeding.

 

[285] Even if I were to accept as true the applicant’s version of her conversation with Superintendent Taverner, I do not find that his response to her on December 5, 2012 was unreasonable. Even if I accept the applicant’s account of events, I do not find that the evidence establishes that Superintendent Taverner was seeking to dissuade her from filing a formal complaint. The Board’s Human Rights Procedure, like many organizational human rights policies, includes the option of resolving matters informally. Superintendent Taverner’s offer to resolve things internally is consistent with the informal resolution option in the procedure.

 

[286] I also do not find there is anything unreasonable about Superintendent Taverner’s telling the applicant to keep the matter confidential. The Human Rights Procedure, like many organizational human rights policies, requires persons to maintain the confidentiality of information relating to complaints. I note that the applicant’s concern in this proceeding appeared to be less with Superintendent Taverner’s telling her to keep the matter confidential and more with the fact that word got around 23 Division about her complaint. While the evidence does support that word got out about her complaint, there was no evidence as to how this occurred nor any evidence that Superintendent Taverner had spread the news about her complaint.

 

[287] For all these reasons, I do not find that the evidence establishes that Superintendent Taverner inappropriately tried to dissuade the applicant from filing a formal complaint. I also do not find that any of his actions when the applicant met with him December 5, 2012 amounted to an unreasonable response to her telling him that she had experienced several inappropriate incidents with SSgt Nolan.

Alleged Flawed Investigation and Prosecution of Nolan Complaint by PRS

[288] I previously dismissed many of the applicant’s allegations of inadequate investigation and prosecution as having no reasonable prospect of success. I did so because I found that a consideration of them would require hearing evidence that I found inadmissible on the basis of statutory privilege. See Interim Decision 2017 HRTO 1130 and Interim Decision 2016 HRTO 934. I set out the remaining allegations of inadequate investigation and prosecution in my August 31, 2017 CAD and those are the only allegations I address below.

 

[289] The applicant filed an internal complaint against SSgt Nolan which was investigated and prosecuted through the process for such complaints set out in Part V of the Police Services Act. Under this process the PRS investigates all allegations of officer misconduct. If allegations are substantiated following an investigation, they are referred to a prosecutor to determine the charges to be adjudicated by a Hearing Officer in the Departmental Hearing Office. The Hearing Officer determines liability as well as the applicable sentence or remedy.

 

[290] I do not find that it is a breach of the Code for the Board to deal with the applicant’s complaint using the process set out in Part V of the Police Services Act. I do not agree that the evidence shows that the investigators failed to seek appropriate guidance from the DMU. They did seek guidance from Andre Goh, the Manager of the DMU, who recommended that the matter continue in the process and be forwarded to the Tribunal for consideration. The complaint was then forwarded to the prosecutions branch as required under the process contained in Part V of the Police Services Act.

 

[291] The applicant also alleged that the investigators assigned to her complaint did not have proper human rights training and experience. I do agree with the applicant that it is important for investigators assigned to cases involving human rights allegations to have training in human rights law and the application of human rights principles in their work. While one of the investigators did not receive human rights training until after the investigation of the applicant’s complaint, the other had received human rights training approximately three months before the applicant filed her complaint. Therefore, I do not find that this allegation is made out.

 

[292] In addition, the applicant alleged that the prosecutor failed to properly prosecute the Nolan complaint in the following ways:

  • Failing to provide the applicant with an opportunity to participate in the prosecution by consulting on an Agreed Statement of Facts, failing to advise of changes in hearing dates, and failing to provide the applicant with the opportunity to give evidence or make submissions; and

  • Dropping some of the applicant’s allegations against SSgt Nolan; and  Failing to charge SSgt Nolan with violations of the Code and failing to seek human rights training.

 

[293] With respect to the applicant’s opportunity to participate in the PRS prosecution, the prosecution was part of a proceeding under Part V of the Police Services Act. Under that Act, the applicant is not considered a party and she has no right to participate in the proceeding. See ss 83(3)-(5) and 85(8)(c) of the Police Services Act. I do not find that it was unreasonable for the prosecutor to have followed the process set out in the Police Services Act. Whether these provisions are appropriate or not appropriate, they are applicable statutory provisions and therefore I do not find that it was unreasonable for the prosecutor to follow them.

 

[294] In terms of the prosecutor’s decision to proceed only with the allegations that were admitted by SSgt Nolan, that decision falls within the scope of the prosecutor’s discretion. In any event, I note that the two allegations he did proceed with were the allegations relating to the two most significant comments alleged by the applicant. It was not unreasonable for the prosecutor to go forward with admissions regarding the two most significant comments rather than engage in what could be extended litigation of the other comments.

 

[295] I have no evidence as to what the prosecutor charged SSgt Nolan with since any charging document he produced was inadmissible due to the statutory privilege contained in s. 83(8) of the Police Services Act. See Interim Decision 2016 HRTO 934. However, from the Hearing Officer’s decision, it is evident that the prosecutor charged SSgt Nolan with discreditable conduct which includes, among other things, failing to treat a person equally without discrimination and using profane, abusive or insulting language that relates to Code-based grounds.

 

[296] As to the prosecutor’s failure to seek human rights training as part of the resolution of the of the Police Services Act proceeding, there is no dispute that the prosecutor, Inspector Ian Stratford, told the applicant that he did not seek training for SSgt Nolan because he did not think that such training would be effective. This was either because of SSgt Nolan’s age (as claimed by the applicant), or because SSgt Nolan was an “experienced and knowledgeable member of the Service who was already informed about his responsibility and obligations” (as claimed by Inspector Stratford). Either way, the message was the same, that Inspector Stratford ruled out seeking human rights training because he thought it would not be effective.

 

[297] Under the scheme set out in Part V of the Police Services Act, the prosecutor had discretion over what remedy to seek. The reason that Inspector Stratford gave for not seeking remedial human rights training for SSgt Nolan does not seem reasonable. It also appears that he may not have considered the impact his decision could have on officers in the division to which SSgt Nolan was transferred. Nevertheless, I find that his decision-making about the remedy he sought in the case falls within his exercise of discretion as a prosecutor and would not violate the Code unless it was discriminatory, an exercise of reprisal, or breached the Code in some other way. I agree that it was problematic for Inspector Stratford to rule out human rights training as a remedy simply because of an assumption that it would be ineffective. However, I find that this decision fell within his discretion to make and did not violate the Code.

 

[298] For all the above reasons, I find that the applicant has not made out her allegations that the Board failed to appropriately respond to her internal complaint against SSgt Nolan.

REPRISAL ALLEGATIONS

[299] The applicant alleged that she experienced the following two types of reprisals following her complaint against SSgt Nolan: (i) lost job opportunities and (ii) shunning. The applicant alleged that Superintendent Taverner prevented her from pursuing three job opportunities after she filed her complaint against SSgt Nolan: (i) a 2013 opportunity on a wiretap project; (ii) a 2013 opportunity with the Drug Squad; and (iii) an October 2013 opportunity with Homicide. She also alleged that she was shunned by her supervisors and colleagues as a result of speaking up against the sexual harassment she had experienced.

Applicable Law

 

[300] The term reprisal under the Code has a very particular meaning which is set out in s. 8 of the Code as follows:

 

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal of threat of reprisal for so doing.

 

[301] In order to make out a claim of reprisal, an applicant must establish that the actions taken against them were taken with an intent to punish or retaliate against them for claiming or enforcing their Code rights. See Noble v. York University, 2010 HRTO 878 at paras. 31-33. Intention must be proven on a balance of probabilities. It may be proven by inference drawn from the whole of the evidence but there must be a basis beyond mere speculation and accusations to establish an intention to reprise against an applicant. See Forde v. Elementary Teachers. Federation of Ontario, 2011 HRTO 1389 at para. 17.

 

Factual and Legal Findings

Denied Extensions and Job Opportunities

Background: Previous Denied Job Opportunity in Homicide (October 2012)

[302] Before reviewing the evidence relating to the three job opportunities that the applicant alleges she was denied as a reprisal for making the complaint against SSgt Nolan, I note that she testified to having been denied opportunities to go the Homicide Unit on three occasions before she filed her complaint against SSgt Nolan or anyone else in 23 Division. At the hearing, the applicant testified that the last of the three denials was when SSgt Nolan met with her in his office in October 2012 and threatened her career. The applicant testified that SSgt Nolan told her that Superintendent Taverner advised that she would not be getting the two-year opportunity in Homicide. SSgt Nolan also told her that “Colin Kay no longer works here and he can do nothing for you.” This was a reference to the fact that the applicant and DSgt Kay were friends and that he had supported her requests to be transferred to the Homicide Unit in the past. In the October 2012 meeting in SSgt Nolan’s office, he told the applicant that Superintendent Taverner was “pissed” at her but that he (SSgt Nolan) had smoothed things over.

 

[303] The applicant initially alleged that this denied opportunity amounted to a Code violation. When the respondents brought their request to dismiss various allegations on the basis of no reasonable prospect of success at the end of the applicant’s case, they argued that the allegation had no reasonable prospect of success as a reprisal allegation. This was because the denial of the opportunity occurred before the applicant had complained about SSgt Nolan or anyone in 23 Division. In Interim Decision 2017 HRTO 1130, I dismissed the applicant’s allegation regarding the denial of the two-year opportunity in Homicide in October 2012 as having no reasonable prospect of success. Quite obviously, even if she was denied the Homicide assignment as alleged, the denial occurred before she claimed or enforced any of her Code rights and therefore it could not amount to a reprisal under the Code. I also found that the denial could not be characterised as one of a series of incidents of sexual harassment since it was Superintendent Taverner who denied her the assignment and she had made no sexual harassment allegations in her Application against Superintendent Taverner. For all these reasons, I dismissed the allegations relating to the denied Homicide assignment in October 2012 as having no reasonable prospect of success.

[304] I raise the allegation here for two reasons. First, I raise it because the applicant’s counsel have argued in their written submissions that the applicant had been “repeatedly told” that Superintendent Taverner was “pissed” with her. They rely on this to support the applicant’s reprisal allegations which I address below. In fact, the applicant testified to two particular times when she was allegedly told that Superintendent Taverner was “pissed” at her. The first was when SSgt Nolan told her this in October 2012. Even if it is true, as the applicant alleged, that Superintendent Taverner was pissed with her at this time, it predated her taking any action to claim her rights under the Code. It may well have been unfair for Superintendent Taverner to be pissed at her in October 2012 but, clearly, any such feelings of displeasure had no connection to her claiming her Code rights. The only other particular time when the applicant alleged that Superintendent Taverner was “pissed” at her was when SSgt Gray offered her an extension of her assignment on the wiretap project. I discuss this incident further in the next section.

 

[305] Second, I raise the circumstances surrounding the October 2012 denial of a job opportunity to show that the applicant was denied job opportunities even before she took steps to claim or enforce her rights under the Code. Therefore, just because she was denied extensions of two job opportunities and another job opportunity after she made her complaint against SSgt Nolan, that does not mean that the denials were made because she had made the complaint. In each case, the circumstances surrounding the denied extensions and denied job opportunity must be examined to determine whether it is more likely than not that the persons denying her these opportunities did so with the intention to reprise against her for claiming and enforcing her Code rights.

 

[306] I now move onto the denied job opportunities that the applicant alleged as reprisals in her final written submissions.

Denied Extension of Wiretap Assignment

[307] It was not disputed that, in early 2013, shortly after the applicant had filed the Nolan complaint, Superintendent Taverner offered her a temporary assignment on a wiretap assignment. A homicide had taken place in the region covered by 23 Division and a wiretap project was arranged in order to investigate the homicide. SSgt Gray testified, and it was not disputed, that she met with Superintendent Taverner and told him that she would need officers for the project. Superintendent Taverner suggested the applicant. The applicant worked on the wiretap project for SSgt Gray for approximately three months. Near the end of the assignment, SSgt Gray asked the applicant whether she would like to stay on to finish some paperwork. The applicant agreed and said that she would like to have the experience.

 

[308] It is at this point that the parties’ evidence diverged. The applicant testified that SSgt Gray told her she had gotten approval from Superintendent Taverner but then called her back later in the day to say that Superintendent Taverner was pissed at her and that she needed to return to 23 Division. The applicant felt that Superintendent Taverner refused the extension to punish her for filing a formal complaint against SSgt Nolan rather than taking him up on his offer to deal with the situation internally.

 

[309] By contrast, SSgt Gray testified that Superintendent Taverner was upset with her (SSgt Gray) for not following the proper procedure by asking the applicant about the extension before speaking with him first, as would be the proper procedure. Meanwhile, SSgt Swackhammer testified that the applicant was asked to return to 23 Division because he had informed Superintendent Taverner that he needed her back for operational reasons. He testified that he had only one other female officer in his platoon and that he required another female officer to run the platoon efficiently. He testified that female officers are better able to de-escalate situations and that they are more empathic.

 

[310] I find it more likely than not that Superintendent Taverner did not say that he was pissed at the applicant but that, instead, he was upset with SSgt Gray for not following the proper procedure. I find SSgt Gray’s testimony more credible and reliable than the applicant’s testimony on this point. Superintendent Taverner was the person who suggested the applicant for the opportunity. Therefore, it makes no sense that he would be displeased with her for accepting to stay on when SSgt Gray offered to extend her assignment to finish some paper work. It is more probable that Superintendent Taverner would be displeased with SSgt Gray because she had not cleared the extension before asking the applicant about it. There was also no evidence to dispute SSgt Swackhammer’s testimony that he was the person who asked that the applicant return to 23 Division. It was SSgt Swackhammer who was in charge of the day-to-day running of the Division and he would be the person who was in charge of ensuring that all operational needs were met.

 

[311] I should note that I do not find credible the reasons given by SSgt Swackhammer for why he needed the applicant, as a female officer, back to his platoon. In their Response, the respondents stated that the applicant was required back at 23 Division because female officers are able to search female prisoners and they may be more effective in interviewing certain victims. In my view, it is more likely than not that this was the actual reason that SSgt Swackhammer told Superintendent Taverner that he required the applicant back rather than because of any skills that she, as a female officer, might have with de-escalation or empathy. [312] In any case, I find that the applicant has not established that Superintendent Taverner or SSgt Swackhammer refused to extend her assignment to the wiretap project as a reprisal for her having filed the complaint against SSgt Nolan. In my view, if Superintendent Taverner or SSgt Swackhammer truly intended to punish the applicant for filing the complaint against SSgt Nolan, they would not have assigned her to the wiretap investigation at all.

Denied Extension of Drug Squad Assignment

 

[313] It is not disputed that, in July 2013, shortly after the wiretap assignment, the applicant was offered, and accepted, an assignment with the Drug Squad.

 

[314] The applicant testified that Superintendent Taverner brought her into his office with one of the Drug Squad officers to tell her about the opportunity. She testified that she was very apprehensive since she had no training for being an undercover officer and minimal experience with surveillance. The applicant testified that Superintendent Taverner told her “this is where you’re going to be going.” I note that, even if the applicant may have been apprehensive at first, she soon grew to like the assignment so much that her complaint is about not being able to stay on permanently.

 

[315] SSgt Swackhammer testified that Superintendent Taverner asked him if he had a candidate to participate in a five-week training opportunity in Drug Squad. SSgt Swackhammer recommended the applicant and Superintendent Taverner approved the placement.

 

[316] By email dated June 25, 2013, one of the supervisors at the Drug Squad informed others there that the applicant had been approved to participate in the training opportunity and he copied various members of the management team from 23 Division on the email. Superintendent Taverner replied to all recipients to say that 23 Division was OK with the training dates that had been pIanned. He also said that the applicant would do an “awesome job”.

 

[317] In early August 2013, the applicant’s supervisor at the Drug Squad asked her to stay on for an additional three weeks. She approached SSgt Swackhammer for approval. By email dated August 6, 2013, SSgt Swackhammer told the applicant that he checked the “manpower” situation and there did not appear to be an issue with coverage. He told her that he and Superintendent Taverner were in agreement that the request for the extension should come directly from her supervisor at the Drug Squad in order to facilitate the extension. The applicant’s supervisor at the Drug Squad forwarded a request for the extension to Superintendent Taverner saying that the applicant was doing very well and that he would like to extend the applicant’s training opportunity as one of his officers was off work and not anticipated back until mid-September. Superintendent Taverner replied by email saying that he spoke to the Staff and that they could extend the training opportunity for three weeks. The applicant sent SSgt Swackhammer an email saying she received the update that the extension was approved and thanked him once again for the opportunity.

 

[318] By email dated September 6, 2013, the applicant’s supervisor at Drug Squad emailed Superintendent Taverner to say that, as he (Superintendent Taverner) had predicted, the applicant was doing really well at the Drug Squad. He asked that she be extended until September 27, 2013 since he had a member off sick and another on light duties. Superintendent Taverner replied by email approving this second extension to September 27, 2013. Near the end of her second extension, the applicant’s supervisors at the Drug Squad asked her to stay on permanently since they were so impressed with her work.

 

[319] The parties gave diverging evidence about the denial. The applicant testified that her supervisors at the Drug Squad asked her to stay on permanently and that, when she approached Superintendent Taverner about it, he denied her request. In crossexamination, the applicant testified that it was her and not her supervisor at the Drug Squad who asked Superintendent Taverner whether she could move to Drug Squad permanently. She testified that Superintendent Taverner had granted two extensions but when she asked to stay there permanently he said “No”. The applicant felt that Superintendent Taverner was trying to punish her for going forward with the complaint against SSgt Nolan and that he was taking active steps to impede her career from advancing.

 

[320] Meanwhile, SSgt Swackhammer testified that the applicant had approached him about the position. He said that he told the applicant that he had no problem with the transfer but it would have to be a “body for body” transfer, meaning that someone from the Drug Squad would have to be transferred to 23 Division. It is not disputed that there was a hiring freeze in the Toronto Police Service at the time. According to SSgt Swackhammer, the “body for body” transfer was required due to this hiring freeze. According to SSgt Swackhammer no one ever followed back up with him about a “body for body” transfer.

 

[321] I find that the applicant has not established that Superintendent Taverner or SSgt Swackhammer denied her the permanent transfer to the Drug Squad out of an intention to reprise against her for making her complaint against SSgt Nolan. SSgt Swackhammer’s evidence about the need for a transfer to be a “body for body” transfer was not seriously contested or shaken in cross-examination. In my view, it is more likely than not that, if Superintendent Taverner truly intended to punish the applicant for filing her complaint, he would not have recommended her for the Drug Squad assignment at all and he would not have approved two extensions of the assignment. It is also unlikely that he would have told his counterparts in the Drug Squad that she would do an “awesome job”.

 

Denied Homicide Assignment

 

[322] In October 2013, someone from the Homicide Unit asked the applicant to assist with a project in that unit but her request to pursue the assignment was denied. The parties had diverging evidence about the denial.

 

[323] The applicant testified that she spoke to SSgt Swackhammer about it and he told her that Superintendent Taverner turned down her request. She felt that Superintendent Taverner once again denied her the opportunity due to her complaint against SSgt Nolan.

 

[324] Meanwhile, SSgt Swackhammer testified that he was the person who recommended the denial. He said that he told Superintendent Taverner that the applicant should not be allowed to go out of fairness to other officers. He testified that other officers had not received any special assignment opportunities whereas the applicant had been given the two opportunities described above. As it turned out, the Homicide opportunity was offered to PC Joanne Day.

 

[325] I find that the applicant has not established that Superintendent Taverner or SSgt Swackhammer denied her request to be assigned to the Homicide project in October 2013 out of an intention to reprise against her for making the complaint against SSgt Nolan. The evidence supports Staff Sergeant Swackhammer’s testimony that the applicant had been provided with various job opportunities already in 2013 and it is credible that he would be concerned about ensuring that other officers would also have the opportunity to be assigned such opportunities.

 

Shunning Allegations

 

[326] In her Application, the applicant made general allegations of shunning by many colleagues and supervisors. When pressed to provide particular examples, she provided the example of being shunned by Det. Fynes after she made the complaint against SSgt Nolan and by Sgt Payton after she asked him to remove the photo of her on his computer.

 

Detective Fynes

 

[327] The applicant testified that she had previously had a good working relationship and friendship with Det. Fynes. The applicant testified that Det. Fynes had told her several times that she wanted her to join her unit. However, according to the applicant, in early to mid 2013, Det. Fynes stopped talking to her altogether and actively avoided her in the workplace. The applicant testified that, one day, Det. Fynes held up a piece of paper in her hand as she walked by the applicant blocking her face and line of sight. The applicant felt that she was doing this to make her feel unwanted. The applicant also testified that, another time, Det. Fynes walked into the CIB office asking for help for something but ignored the applicant when she offered three times to assist.

 

[328] Det. Fynes denied that she had shunned the applicant. She testified that she did not know that the applicant had filed the complaint against SSgt Nolan until it was reported in the media when the hearing first started. She testified that her social relationship to the applicant did not change after she made the complaint against SSgt Nolan. She also denied that she had once raised a piece of paper to her face to avoid the applicant when she passed her in the hallway. Regarding the allegation of not accepting help from the applicant, she testified that if she comes in asking for help, she takes any help being offered.

 

[329] In my view, the applicant has not made out her onus of establishing on a balance of probabilities that Det. Fynes shunned her out of an intent to retaliate against her for filing the complaint against SSgt Nolan. I have some concerns about Det. Fynes’ testimony that she was not aware that the applicant had made a complaint against SSgt Nolan during the relevant time period given that many people around 23 Division knew about the complaint. However, as noted above, I do have some concerns about the reliability of the applicant’s perception of events around this time. Overall, I do not find that the applicant has met her onus of establishing that Det. Fynes shunned the applicant due to her complaint against SSgt Nolan.

Sgt Payton

 

[330] The applicant testified that Sgt Payton began avoiding her after she asked him to remove photos of her that he had used as wallpaper on his computer. The applicant testified that, after this incident, Sgt Payton left the uniformed officer platoon to work with SSgt Dawson. According to the applicant, whenever she would see in him in the station he would veer off into a doorway or hallway. He would not acknowledge her and just kept his head down to avoid her.

 

[331] Sgt Payton denied going out of his way to avoid the applicant. He said that he realized that their relationship was no longer what it had been. He testified that they worked in separate areas and they did not cross paths a lot.

 

[332] In my view, the applicant has not satisfied her onus of establishing that it was more likely than not that Sgt Payton began to avoid her in order to shun her for claiming her Code rights. The applicant did not make, or threaten to make, a sexual harassment complaint against Sgt Payton the day she saw him using her photo as the wallpaper to his computer. She did not make any complaint against Sgt Payton until she filed her Application in this case. She only told him to remove the photo and there is no evidence that she claimed any Code rights, for example by telling him she considered the photos to amount to sexual harassment. While Sgt Payton may have avoided the applicant after the incident, I do not find that he do so out of an intent to reprise against her for claiming her Code rights.

 

ALLEGATIONS OF DISCRIMINATION AND HARASSMENT BECAUSE OF DISABILITY

 

[333] The applicant alleged that she was discriminated against and harassed because of her disability in two ways: (1) when the Board failed to provide reasonable accommodations for her disability, and (2) when representatives of the Board harassed her because of her disability.

 

[334] The respondents do not dispute that the applicant has been diagnosed with PTSD and related mental health conditions, all of which amount to disabilities under the Code. The respondents dispute that any of the actions for which they are liable caused the applicant’s PTSD and they note that the evidence from the applicant’s doctors indicates that she had some symptoms of PTSD before the time period covered by this Application. I address that issue in the remedy section below. The respondents also dispute that they failed to provide reasonable accommodations for the applicant’s PTSD or harassed the applicant because of her disability. For the reasons set out below, I find that the Board discriminated against the applicant because of disability when employees of MAS insisted that she attend for a medical assessment at MAS offices located at Toronto Police Service headquarters despite her reasonable accommodation request to have the assessment carried out off-site. This then led to an escalation of pressure on the applicant up to and including a warning that she would be marked AWOL if she did not attend at MAS offices for the assessment. As I describe below, all of this flowed from the initial failure by MAS to grant her reasonable accommodation request.

[335] The events surrounding the applicant’s accommodation and disability harassment claims are interrelated and overlap significantly, and depend in large measure on a detailed review of the evidence. Therefore, I set out in this section a review of events and communications that took place between the date that the applicant began her medical leave and the date on which Dr. Vermani filed an updated Med 23 form (the form used by MAS for psychological/psychiatric conditions). Much of the communications between the applicant, Dr. Vermani, her supervisors at 23 Division and the staff of different units of the Board are documented in emails, letters, and notes. Therefore, there is little dispute about the chronology of these communications and events. The elements of the story that are in dispute are: the exact nature of the applicant’s medical restrictions, the extent to which representatives of the Board were aware of her medical restrictions, the intentions of the applicant’s supervisors in pressuring her to attend for a medical assessment at MAS, and whether the actions taken by representatives of the Board during this period amounted to a violation of the Code.

 

Factual Findings: Applicant’s Medical Restrictions

 

[336] As noted above, the respondents do not dispute that the applicant has been diagnosed with PTSD and related mental health conditions. In terms of the medical restrictions relating to the applicant’s PTSD and her accommodation needs, Dr. Vermani testified that seeing police and police men, in particular male police officers in uniform, was a trigger for the applicant’s PTSD. Dr. Vermani testified that the applicant told her about many details and emotional symptoms she was experiencing related to the sexual harassment she had experienced. According to Dr. Vermani, the applicant relayed certain triggers to her regarding male police officers in particular. When asked about a part of her clinical notes about the applicant feeling that all police knew she had PTSD, Dr. Vermani testified to what, in psychology, is called a spotlight effect where a person has a heightened focus on themselves and a hyperalertness that makes them feel that everyone knows their business and that everyone is part of a team against them in certain ways. She testified that attending at police headquarters for a medical assessment would likely trigger the applicant’s PTSD-related symptoms.

[337] The respondents’ counsel cross-examined Dr. Vermani on a portion of her clinical notes in which she recorded telling Dawn Erickson, the MAS nurse, that the applicant could not attend at police headquarters for a medical assessment since she might see men she worked with, or had been victimized by, walking down the hallway. The respondents’ counsel noted that the incidents described by the applicant occurred at 23 Division which is in Etobicoke, far from police headquarters which is located in downtown Toronto. Dr. Vermani replied that the applicant had many triggers and workplace complications which she had noted in the Med 23 forms she submitted to MAS on behalf of the applicant. She testified that triggers can be very subtle, even a colour could be a trigger for someone with PTSD. It was Dr. Vermani’s opinion that the applicant’s PTSD symptoms might be triggered by any police station, including police headquarters. That is why, as described in more detail below, she informed nurse Dawn Erickson that the applicant could not attend for a medical assessment at the MAS offices which are located at Toronto Police Service headquarters and she offered her office as a “safe space” to conduct the assessment.

 

[338] Based on Dr. Vermani’s evidence, which I found credible, I find that one of the medical restrictions arising from the applicant’s PTSD was to avoid places where she might come into contact with police, especially male police officers in uniform, as this might trigger her PTSD symptoms. I also find that Dr. Vermani and the applicant had communicated these restrictions to nurse Erickson at MAS. As I describe below, the MAS did not grant the applicant’s request and, both MAS and the applicant’s superiors continued to insist that she attend at MAS for the assessment. Not only did they continue to insist that she attend at MAS for the assessment, but they continued to put increasing pressure on the applicant to do so. Based on the testimony of the applicant and Dr. Vermani, it is clear that this increasing pressure ultimately caused a significant degree of distress for the applicant and likely contributed to a worsening of her PTSDrelated symptoms.

Factual Findings: Events Relating to the Applicant’s Leave of Absence

[339] In this section, I detail the evidence relating to key events and communications pertaining to the applicant’s medical leave for the period of time that is relevant to the applicant’s disability discrimination allegations.

 

Events From Start of Medical Leave to Reception of First Med 23

 

[340] By letter dated January 11, 2014, Dr. Vermani advised MAS that the applicant required a sick leave and that she (the applicant) would inform MAS of what she required to facilitate her treatment and health condition. Dr. Vermani ended her letter saying that, if the MAS required further information, they should contact her at their convenience. However, there is nothing in the letter about any of the applicant’s medical restrictions or accommodation needs.

 

[341] The Toronto Police Service’s Sickness Reporting Procedure has a policy of wellness contacts when an officer has been absent for a certain number of consecutive days. Under the Sickness Reporting Procedure, wellness contacts are defined as meaning “to telephone or visit, for the purpose of expressing care and concern or for an official inspection.” The wellness contacts may be performed by the Medical Advisor and/or a supervisor or any other member of the Toronto Police Service designated by the unit commander. In practice, wellness checks are not performed by MAS but instead by frontline supervisors.

 

[342] On January 18, 2014, the applicant received a text message from Laurie Naughton, the station operator at 23 Division, advising her that the staff sergeant was sending the individual respondent to her house to check on her and saying that the individual respondent suggested that the applicant call the staff sergeant so he did not have to go. The applicant replied that she was on medical leave and there was no reason to go to her house. Shortly after her texts with Ms. Naughton, the applicant texted SSgt Swackhammer to tell him that she was on medical leave, that MAS had the information, and to please stop having people messaging her. SSgt Swackhammer replied that the individual respondent was detailed to do a wellness contact as per the rules and procedures. He said he could only assume that the messaging was done as a courtesy to the applicant. Following this, the individual respondent filled out a Medical and Health Sick Report (Form 757) indicating that staff had contacted the applicant by text and he noted “advises is on medical leave as per MAS. Advises no contact.” This form was faxed to MAS and received on January 29, 2014. At this point, the only medical information that the applicant had provided to MAS was the January 11, 2014 letter from Dr. Vermani.

 

[343] On January 29, 2014, MAS sent a letter to the applicant advising her that, since she had been absent for more than ten days, she must have her physician complete one of the required medical forms to substantiate her absence by February 14, 2014. MAS uses two different forms: A Med 2 for physical injuries and a Med 23 for psychological/psychiatric conditions.

 

[344] On January 30, 2014, the Manager of Occupational Health and Safety emailed Superintendent Taverner to inform him that MAS had left messages for the applicant but that they had been unable to make telephone contact with her. The Manager advised Superintendent Taverner that MAS sent out the letter described in the previous paragraph and that she would keep him up to date if anything else arose.

 

[345] According to a note written by nurse Dawn Erickson contained in the applicant’s MAS file, Ms. Erickson received a call from the applicant and Dr. Vermani on February 12, 2014. The note from Ms. Erickson indicates that Dr. Vermani advised her that the reason that the applicant was reluctant to contact MAS was due to internal harassment issues she had which led her to lack trust in the Toronto Police Service. According to the note, the applicant told Ms. Erickson about the events with SSgt Nolan and her difficulty returning to work. Ms. Erickson noted that Dr. Vermani told her that she would complete the Med 23 and send it to her by February 24, 2014. Ms. Erickson noted that she consulted Dr. Kapoor from MAS and that the applicant had to provide medical support for her absence and see a medical advisor.

 

[346] The applicant testified that MAS left her a voicemail on February 19, 2014 saying that she was required to attend at MAS for an assessment on April 9, 2014.

[347] The next day, February 20, 2014, is another key date in this story. According to Dr. Vermani’s clinical notes, about which she testified at the hearing, Ms. Erickson contacted her that day during one of the applicant’s appointments and Dr. Vermani put Ms. Erickson on speaker phone. Ms. Erickson advised that she wanted to set up a time for the applicant to attend for an assessment with an MAS doctor at the MAS offices. The three spoke in detail about the applicant’s health issues, including her PTSD. Dr. Vermani advised Ms. Erickson that the applicant was unable to attend an assessment at Toronto Police Service headquarters, as this could lead to a relapse for her. Dr. Vermani offered her office for the assessment, noting that her office was not far away from the MAS offices. Ms. Erickson said she would need to talk to her “work people”. Dr. Vermani again reinforced that the applicant would not be able to attend at the MAS offices for the assessment as it might trigger her PTSD symptoms. As described below, MAS never agreed to the accommodation request made by the applicant and Dr. Vermani to conduct the assessment in Dr. Vermani’s office or in any another off-site location. In fact, as detailed below, MAS – and later the applicant’s supervisors -- continued to insist that she attend for an assessment at the MAS offices.

 

[348] Dr. Vermani filled out the Med 23 form the same day that she and the applicant spoke with Ms. Erickson. The form includes the following sections: diagnosis, history, treatment, prognosis, cognitive/mental impairment, return to work, and attending physician/psychologist information. Dr. Vermani filled out all of the sections. On the form, Dr. Vermani indicated, among other things, that the applicant’s condition was improving but that she continued to have many severe symptoms. In the section titled “return to work” Dr. Vermani indicated that the applicant’s return to work date was uncertain and that she was unable to return to work due to her ill health and problematic symptoms which inhibited her functioning. The Med 23 form did not ask about the applicant’s medical restrictions/accommodation needs and Dr. Vermani did not fill in any such medical restrictions, such as the applicant’s inability to attend for an assessment at MAS. The only medical restrictions that the form asked about were whether the applicant was fit to be able to carry and use a firearm and whether she was able to attend court to give evidence. Dr. Vermani ticked the “no” box for each of these questions. Although Dr. Vermani completed and signed the Med 23 form on February 20, 2014, for some unknown reason, MAS did not receive the form until over a week later on February 28, 2014.

 

Events Between Reception of First Med 23 Form and the AWOL Warning Letter

 

[349] According to an email in evidence from Dawn Erickson, she called the applicant on March 13, 2014 and left a voicemail to confirm an appointment date and time for an assessment with an MAS doctor at MAS offices. She proposed either April 9 or April 23, 2014.

 

[350] Dr. Vermani testified with the assistance of her clinical notes that, a few days later, on March 18, 2014, a nurse from MAS called her and Dr. Vermani gave her dates on which MAS could conduct the assessment of the applicant in her office. Dr. Vermani reiterated to the nurse that “going to the police station” would trigger the applicant’s PTSD. The nurse said she would get back to Dr. Vermani. She said that she was not sure if it would be possible as it would be the doctor assessing the applicant. Dr. Vermani repeated that the applicant’s PTSD would preclude her from attending at a “police station” where men she worked with or was victimized by would be walking down the hallway. The nurse said that the assessment would have to be done by the MAS doctors. Dr. Vermani once again offered her office as a safe space to do the assessment.

 

[351] Three days later, on March 21, 2014, the MAS sent the applicant a letter signed by Dawn Erickson advising her to attend an assessment on April 9, 2014. The letter does not state the location of the assessment but it is implicit that the location was the usual location for such assessments which was the MAS offices at Toronto Police Service headquarters. In the letter, Dawn Erickson stated that MAS had tried to reach the applicant by phone and left several messages. The letter does not acknowledge or reference any of the calls that Dawn Erickson and/or another MAS nurse had with Dr. Vermani and the applicant.

[352] On March 27, 2014, Dawn Erickson sent an email to the Manager of Labour Relations, copied to Superintendent Taverner as well as another MAS nurse and the Manager of Occupational Health and Safety, to update them on the applicant’s situation. In the email, Ms. Erickson advised that, despite efforts to meet the applicant to initiate discussions regarding her return to work, MAS was unsuccessful in doing so. In the email, Ms. Erickson set out a chronology of key dates and indicated “[t]he member [the applicant] has advised that she has a barrier about coming to HQ to meet with our Medical Advisor and has asked to meet off site.” However, the email ends with the fact that MAS sent the applicant a letter offering her an April 9, 2014 appointment with Dr. Kapoor and the applicant failed to reply.

 

[353] Inspector Ervick wrote a letter dated April 1, 2014 ordering the applicant to attend MAS for a medical assessment. In the letter, Inspector Ervick stated that several attempts to contact the applicant had gone unanswered and that it was mandatory that she respond to the requests from MAS. The Board attempted to serve the letter on the applicant by sending two uniformed officers to the applicant’s residence on April 2, 2014. The Board had difficulty serving the applicant with the letter as she was not home whenever officers were sent to her house.

 

[354] On April 4, 2017, Inspector Ervick emailed Superintendent Taverner to inform him that the officers had had no luck serving the April 1, 2014 letter on the applicant. He told Superintendent Taverner that he had contacted DSgt Kay who said he had been in touch with the applicant the previous day. In the email, Inspector Ervick said DSgt Kay advised that the WSIB and the applicant’s doctor recommended no contact with MAS. This was incorrect as Dr. Vermani was not recommending no contact with MAS, but instead that the assessment be conducted off-site. In the email, Inspector Ervick said that he advised DSgt Kay of “our position” and said “he is in agreement”. Inspector Ervick said that he asked DSgt Kay to continue his communication with the applicant with the message that her sick time was running out and someone needed to communicate with MAS or a superior to resolve the situation. Inspector Ervick noted in the email that “the problem may be in the area of PTSD not disclosed by her” and then added “it is good to know that she is otherwise Okay and not at risk.” He ended the email saying SSgt Kay would come by Monday to discuss the matter further.

 

[355] On April 4, 2014, the applicant spoke to nurse Erickson and told her that her doctor considered it detrimental for her to attend at Toronto Police Service headquarters to see an MAS doctor. According to the applicant, Ms. Erickson said that there was nothing she could do about it.

 

[356] On April 7, 2014, the MAS requested an updated Med 23 from the applicant by April 23, 2014.

 

[357] On April 7, 2014, DSgt Kay texted the applicant to say that Superintendent Taverner was willing to reclassify her time off but that she would have to request it. In this same text, DSgt Kay gave the applicant the name of a contact at the Toronto Police Association (“TPA”). He also offered to attend at MAS with the applicant if MAS continued to insist on meeting her at police headquarters.

 

[358] Shortly after this, the applicant was in touch with the TPA to see if they could assist her. On or around April 14, 2014, a TPA representative called her to tell her that MAS scheduled a meeting for her to see an MAS doctor on April 23, 2014 at the MAS office. On April 24, 2014, the TPA representative told the applicant that he had just left a meeting of the Toronto Police Service medical committee and that Superintendent Taverner was planning to issue her an Absent Without Leave (“AWOL”) letter.

 

[359] On May 14, 2014, Nurse Erickson emailed Deirdre Ostrom-Peake, the Manager of Labour Relations, and advised her that the applicant declined her appointment with MAS. She also advised Ms. Ostrom-Peake that MAS had asked for an updated Med 23 on April 7, 2014 and there had been no response to date. Nurse Erickson told Ms. Ostrom-Peake that, if she had sent out any letters to the applicant, to please send copies for the file so that MAS would know what was happening through Labour Relations. Ms. Ostrom-Peake responded to Ms. Erickson that Superintendent Taverner had attempted to send her letters ordering her to attend the appointment at MAS but that she was not living at the address on record and would not respond to voicemails or emails. Ms. Ostrom-Peake also noted that the applicant had 52 hours left in her sick bank. Ms. Erickson thanked Ms. Ostrom-Peake for the update and said it was very helpful to know that the applicant’s unit was corresponding with her as “we” (MAS) often do not know what is going on in the background. Based on these emails, it is evident that MAS is not always aware of the actions being taken by a police officer’s superiors in the chain of command. Even the respondents concede in their written submissions that different units of the Toronto Police Service were not coordinating well about the applicant’s absence.

 

[360] On May 14, 2014, SSgt Joe Zubeck from Labour Relations contacted someone at Occupational Health and Safety to say that the applicant had only 52 hours left in her sick bank and would be in a situation of not being paid at the end of the following week. He asked whether the applicant had cooperated with MAS and whether MAS could provide any information regarding the situation. He then emailed a representative at the TPA to tell him that the applicant only had 52 hours left in her sick bank and that she needed to be in touch with Inspector Ervick immediately.

 

[361] On May 15, 2014, SSgt Joe Zubeck contacted Occupational Health and Safety to find out whether the applicant had filed a WSIB claim and found out that she had.

 

[362] On May 20, 2014, Superintendent Taverner sent the applicant a letter warning her that she would be marked AWOL if she did not report to MAS as directed. In the letter, he indicated that, on January 29, 2014 and April 7, 2014, MAS had sent the applicant letters asking her to complete a Med 23 and that, as of the date of the letter, Occupational Health and MAS had not received any updated medical information regarding her current absence. In his letter, Superintendent Taverner then said that, as a result, the applicant’s absence from the workplace had not been medically substantiated. He said that, therefore, he was ordering the applicant to attend MAS for an assessment on May 27, 2014. In the letter, Superintendent Taverner stated that, if the applicant did not report to MAS as directed, she would be marked AWOL and her pay and benefits would be discontinued. In addition, he advised the applicant that an internal conduct investigation would be initiated to determine the reasons for her failure to attend MAS and that it could lead to discipline. SSgt Zubeck testified that he had recommended the AWOL warning letter to Superintendent Taverner to ensure that the Board got the applicant’s attention to avoid her going into no-pay status once she ran out of sick time. Events Between AWOL Warning Letter and Updated Med 23

 

[363] On May 22, 2014, a nurse from MAS left a voicemail for the applicant advising her that she needed to attend an assessment at MAS on May 27, 2014. The applicant and MAS nurse, Marisa Cornacchia, spoke on May 26, 2014. The applicant advised Ms. Cornacchia that she was seeing her doctor the following day and she would not be attending at MAS for an assessment.

 

[364] Around this time, staff from Labour Relations began contemplating the potential for a disciplinary proceeding against the applicant. In an email dated May 23, 2014, SSgt Zubeck of Labour Relations advised the Coordinator of Occupational Health and Safety to take careful notes in his communications with the WSIB in case the matter ended up at a Police Services Act hearing.

 

[365] On May 26, 2014, the WSIB accepted the applicant’s claim of traumatic mental stress.

 

[366] That same day, SSgt Zubeck wrote to an employee of Occupational Health and Safety as well as MAS nurse, Marisa Cornacchia, copying Inspector Ervick, to ask whether the applicant’s attendance at MAS was a moot point given that her WSIB claim was approved. He noted that, in any event, she was ordered to go by her unit commander so she should be attending. SSgt Zubeck then wrote to Occupational Health and Safety to see whether all of the sick time used by the applicant since January 2014 would be returned to her sick bank.

[367] On May 27, 2014, Dr. Vermani called Marisa Cornacchia to inform her that the applicant would not be attending the appointment at MAS as she could not handle the risk of bumping into officers with whom she had worked. When the applicant did not attend at the MAS assessment scheduled for May 27, 2014, SSgt Joe Zubeck emailed Inspector Ervick to inform him of this and to suggest that it might be prudent to commence a Police Services Act investigation to determine why she failed to attend. Dr. Vermani spoke to Ms. Cornacchia the next day to reiterate once again that the applicant could not have the assessment performed at the MAS offices.

 

[368] On May 29, 2014, SSgt Zubeck emailed Inspector Ervick copying Deirdre Ostrom-Peake, Manager of Labour Relations, to say that “LBR” (labour relations) had received information regarding the applicant. He said “considering this information and the confidential nature of it” he was requesting that any internal investigation that may have been commenced by 23 Division be stopped and held in abeyance until further notice. SSgt Zubeck testified that he did not recall what the confidential information was that made him send the above email. [369] On May 30, 2014, Marisa Cornacchia left a voicemail for the applicant. The applicant testified that she left many messages in response which were not returned.

 

[370] On June 2, 2014, Dr. Vermani provided MAS with the updated Med 23 form which had been due April 23, 2014. In the Med 23, she indicated that the date by which the applicant would be able to return to work date was still uncertain. She noted that she was working with the applicant to alleviate trauma symptoms so that she could go to police headquarters for an assessment.

 

Legal Analysis and Findings

 

[371] The applicant’s counsel argue that the Board discriminated against the applicant because of disability and breached both the procedural and substantive components of the duty to accommodate by ignoring her medical restrictions and ordering her to attend at Toronto Police Service headquarters despite her stated medical inability to do so. The applicant’s counsel also argue that the Board breached its duty to accommodate the applicant due to discriminatory comments made by MAS nurse Dawn Erickson while the applicant was on sick leave. The respondents deny any disability discrimination or breach of the duty to accommodate. For the reasons below, I find that the applicant has established her accommodation allegations in relation to the Board’s insistence that she attend at MAS offices for her medical assessment. However, she has not made out her other disability-related allegations.

 

Insistence on Attendance at MAS

 

[372] The Tribunal has reiterated on several occasions that the duty to accommodate is not a free-standing obligation. Rather, the duty to accommodate arises only where a person establishes a prima facie case of discrimination. If an applicant establishes a prima facie case of discrimination, the onus shifts to the respondent to demonstrate a bona fide occupational requirement, including that it accommodated the applicant up to the point of undue hardship. See Baber v. York Region District School Board, 2011 HRTO 213.

Prima Facie Discrimination

[373] In order to establish prima facie discrimination, an applicant must establish the following: (i) that they have a characteristic protected by the Code; (ii) that they experienced adverse treatment or impact; and (iii) that the protected characteristic was a factor in the adverse treatment. See Stewart v. Elk Valley Coal Corp., [2017] 1 S.C.R. 591 at para. 23 (“Stewart”); Peel Law Association v. Pieters, 2013 ONCA 396 at para. 126. As noted by the respondents, courts have cautioned that not all distinctions amount to discrimination. Some courts have noted that the essence of discrimination revolves around the arbitrariness of the adverse treatment or barriers being imposed on an individual. See, for example, McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161 at para. 44 (“McGill University Health Centre”). However, the Supreme Court made clear in Stewart, that the existence of arbitrariness or stereotyping is not a stand-alone requirement for proving prima facie discrimination: para. 45 of Stewart, above.

 

[374] I agree with the applicant’s counsel that the applicant has established a prima facie case of discrimination, as all three conditions set out above are satisfied. First, it is not disputed by the respondents that the applicant has various mental health conditions, including PTSD, which constitute a disability under the Code. Second, I find that the applicant suffered adverse treatment when she was repeatedly contacted and ordered to have her medical assessment performed at the MAS offices. Her superiors also threatened to mark her AWOL and contemplated disciplinary proceedings against her if she did not attend at the MAS offices for her medical assessment.

 

[375] Third, the applicant’s disability was a factor in the adverse treatment or impact she suffered. In my view, the respondents miss the point when they argue that none of the Board’s actions were taken against the applicant because of her disability. Such an argument fails to take into account that discrimination does not just include direct discrimination but also can take the form of adverse effects discrimination. While the organizational rules or practices being applied to the applicant in this case may have been neutral on their face, they had an adverse impact on her due to her disabilities. The Board’s policies, practices, or usual procedures requiring attendance at MAS offices for assessments are not necessarily discriminatory on their face. However, they had an adverse impact on the applicant due to her medical restrictions which prevented her from attending at Toronto Police Service headquarters for the MAS medical assessment. I do not agree with the respondents that this adverse impact falls far from the essence of discrimination referred to in the McGill University Health Centre case. The applicant’s medical restrictions prevented her from attending locations where she might encounter police officers, especially male police officers who might be in uniform, as this might trigger her PTSD symptoms and further exacerbate her condition. Forcing her to attend at MAS despite these restrictions is about as close to the essence of discrimination as one can get.

 

Failure to Provide Reasonable Accommodations

[376] Since the applicant established a prima facie case of discrimination, the Board bears the onus of establishing a bona fide occupational requirement, including that it accommodated the applicant up to the point of undue hardship. It is well accepted in the case law that the duty to accommodate includes both a procedural and substantive component. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) at para. 104 (“ADGA Group Consultants Inc.”).

 

[377] In this case, the applicant and Dr. Vermani communicated to MAS on several occasions the applicant’s medical restrictions against attending at MAS offices for an assessment due to the offices’ location at Toronto Police Service headquarters. Dr. Vermani offered her office to MAS on several occasions, saying it was a safe space to conduct the assessment and also not far from police headquarters. Although nurse Dawn Erickson said she would “speak to her people”, the evidence shows that MAS as well as the applicant’s supervisors continued to insist that the applicant attend at MAS for the assessment.

 

[378] I find it beyond surprising that the respondents would argue that MAS “never refused” to allow the applicant to meet the MAS doctor off-site but instead simply never got back to the applicant and Dr. Vermani about it. With respect, such an argument utterly fails to take into account the evidence in this case. MAS did not simply fail to get back to the applicant about her accommodation request; it continued to insist that she attend at its offices for the assessment.

 

[379] It is more likely than not that, Ms. Erickson, as a nurse, would not be the one making the ultimate decision relating to the applicant’s accommodation request. Such a decision would likely be made by an MAS doctor. Based on MAS’s continued insistence that the applicant attend at its offices for the assessment, two circumstances are possible. Either Ms. Erickson never communicated the applicant’s medical restriction and accommodation request to the doctor, or else she did communicate the request and the doctor denied it. In either case, it is clear that, notwithstanding the fact that the applicant and Dr. Vermani had communicated the applicant’s medical restrictions and accommodation request to MAS, MAS disregarded them and continued to insist that the applicant attend at their offices for the assessment. I agree with the respondents that Dr. Vermani had emphasized that the applicant could not risk running into her colleagues and harassers and most of these individuals worked at 23 Division, not at police headquarters. However, there is no evidence that MAS failed to accept the applicant’s accommodation request due to any lack of precision in Dr. Vermani’s characterization of the applicant’s medical restrictions. If MAS disputed these restrictions, it had an obligation as part of its procedural duty to accommodate to seek more information from Dr. Vermani, which it did not do.

 

[380] To make matters worse, MAS not only failed to grant the applicant’s reasonable accommodation request but it advised the applicant’s supervisors and Labour Relations that the applicant was refusing to attend for an assessment at MAS. This then led Superintendent Taverner and Inspector Ervick, with the support of Labour Relations, to order the applicant to attend for an assessment at MAS or else be marked AWOL and possibly face disciplinary consequences. In light of all of this, it cannot seriously be argued that MAS simply failed to get back to the applicant about her accommodation request.

 

[381] I do not agree with the respondents that the Board’s actions towards the applicant, up to and including the AWOL warning letter, were justified by the fact that they were undertaken solely with the intention to preserve the applicant’s livelihood. As noted above, SSgt Zubek testified that the respondents took the actions they took, up to and including the AWOL warning letter, in order to get the applicant’s attention so that she would not fall into no-pay status if she ran out of sick days. While this may have been a secondary concern for some of the Board’s representatives, I do not find it credible that this was their primary motivation in sending the AWOL warning letter for several reasons.

 

[382] First, it is clear from the email correspondence leading up to the issuance of the letter that MAS, Labour Relations, and the applicant’s supervisors were all becoming increasingly displeased by the applicant’s refusal to attend at MAS for a medical assessment.

[383] Second, it is abundantly clear from the text of the letter itself that the primary motivation behind sending the AWOL warning letter was to secure the applicant’s attendance at MAS. In the letter, Superintendent Taverner specifically ordered the applicant to report to MAS as directed or she would be marked AWOL. The only reference to pay or benefits in the letter is that the applicant might lose them if she were marked AWOL. The letter says nothing about any concern on the part of Superintendent Taverner or the Board that the applicant might run out of sick time and stop receiving her pay cheque.

 

[384] Third, if the overriding concern of the applicant’s supervisors and Labour Relations was really that the applicant not run out of sick time, there would have been more appropriate ways to communicate this concern to the applicant rather than threatening to mark her AWOL.

 

[385] Finally, the primary motivation behind the AWOL warning letter is manifest by the stance taken by SSgt Zubeck after the Board was informed that the WSIB had accepted the applicant’s traumatic mental stress claim. If the main motivation behind the AWOL warning letter was to avoid the applicant’s going into no-pay status, the AWOL warning should have been rescinded and any investigation of the applicant should have been abandoned immediately. However, that was not the case. SSgt Zubeck continued to take the position that the applicant had been ordered to attend at MAS and that this order remained in place. It was not until Labour Relations received some unspecified confidential information that SSgt Zubeck directed that any investigation be stopped and held in abeyance until further notice. In light of all of the above, I do not find it credible that the applicant’s supervisors and Labour Relations took the actions they did primarily to avoid her running out of sick leave benefits and having her pay cheque stopped. The evidence is abundantly clear that the applicant’s supervisors and Labour Relations got involved due to the communications they were getting from MAS indicating that the applicant was refusing to attend at MAS for an assessment.

 

[386] I do not agree with the respondents that the AWOL warning letter would not have been issued to the applicant if she had taken a few simple steps such as the following: (i) acknowledging the Board’s letters to her; (ii) getting Dr. Vermani to provide the updated Med 23 by the date it was requested; (iii) complying with requirements under the Workplace Safety and Insurance Act, 1997 to maintain communications with her employer; and (iv) simply calling or sending an email to Superintendent Taverner to change her time off to “Injured on Duty”.

[387] Even if the applicant had acknowledged the Board’s letters to her, it would not have altered the fact that MAS was continuing to disregard the applicant’s medical restrictions by insisting that she attend at its offices for the assessment. The AWOL warning letter was issued to reinforce MAS’s demands. Therefore, I do not find it likely that the applicant’s supervisors would not have issued the AWOL warning letter if the applicant had acknowledged the Board’s letters.

 

[388] It is true, as argued by the respondents, that Dr. Vermani failed to submit the updated Med 23 by the date it was requested. However, as shown in the chronology set out above, it is not as if she and the applicant had not been in regular contact with MAS during the relevant time period. Dr. Vermani and the applicant had been in contact with nurse Erickson on several occasions to reiterate the applicant’s inability to attend the MAS offices for the assessment and her accommodation request that MAS perform the assessment off-site.

 

[389] As for complying with the applicant’s obligation to maintain communications with her employer under the Workplace Safety and Insurance Act, 1997, the applicant was in fact maintaining communication with her employer through MAS. During this proceeding, the respondents’ counsel have spoken of the applicant’s employer as though it was composed exclusively of the chain of command in her Division. That is not the case. MAS is part of the Board and therefore part of the applicant’s employer. Not only is it part of the applicant’s employer, it is the part of the Board that is mandated to monitor the medical fitness of officers and to ensure that employees satisfy the criteria for sick leave benefits. Therefore, it was appropriate for the applicant to maintain contact with her employer through MAS. This is clear from the Board’s Sickness Reporting Procedure and it was also agreed to by Inspector Ervick on crossexamination.

 

[390] With respect to calling or sending an email to Superintendent Taverner to change the applicant’s time off to Injured on Duty, this may have assisted to some extent but it would not have altered the key issue which was MAS’s insistence that she attend at their offices for an assessment to substantiate her disability. It was the applicant’s refusal to do so due to her medical restrictions that led to the escalation of demands being placed on her which ultimately resulted in the AWOL warning letter.

 

No Undue Hardship

 

[391] Based on all of the above, I find that the applicant’s accommodation request was a reasonable request and it should have been granted. I note that the respondents have not explicitly argued that granting the applicant’s request would have amounted to undue hardship. The only reference to undue hardship in their written submissions is contained in a footnote in which they state that it is noteworthy that Dr. Vermani was too busy to fill out the Med 23 but she believed that it was not a major inconvenience for a doctor to attend her office to complete an off-site assessment, leaving other patients waiting. I take this footnote to be an offhand comment in response to Dr. Vermani’s explanation that she failed to submit the updated Med 23 by the date on which it was requested because she was very busy at the time. Certainly, if the remarks by the respondents’ counsel in the footnote are meant to be an argument of undue hardship, it must be rejected. There was no evidence to support that it would have been a “major inconvenience” for an MAS doctor to perform the medical assessment outside of police headquarters. In any event, I do not find that such an inconvenience (which was not established) would amount to undue hardship. There was also no evidence that conducting the assessment at Dr. Vermani’s nearby office would have had an undue impact on other MAS patients.

 

[392] For all the above reasons, I find that the Board discriminated against the applicant because of disability when MAS and the applicant’s supervisors continued to insist that she attend at MAS offices for her medical assessment. By doing so, the Board failed in its procedural and/or substantive duty to accommodate her reasonable request to have the assessment performed off-site due to the medical restrictions arising from her PTSD.

 

Comments by Dawn Erickson

 

[393] I do not find that the comments made by Dawn Erickson to the applicant while she was on sick leave amount to a breach of the duty to accommodate. The applicant’s counsel argue that an employer’s duty to accommodate may include adjusting how it communicates with an accommodated employee about a matter that would potentially impact their accommodation. Even if I were to accept this proposition, I do not find that it applies to the comments attributed to Ms. Erickson. Unlike in the one case cited by the applicant’s counsel, the comments made by Ms. Erickson were not made by a supervisor discussing changes in the accommodation provided to an employee. In my view, the comments are best addressed as instances of alleged harassment on the basis of disability (see below).

Harassment Because of Disability

[394] The Code provides protections against harassment because of disability: s. 5(2) of the Code. As noted above, harassment is defined by the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome: s. 10(1) of the Code. A subjective-objective standard is to be used in determining whether harassment has occurred, not simply the subjective impressions of the person who is alleging harassment.

 

[395] The applicant’s counsel argue that the applicant was harassed because of disability in three respects: (1) when the applicant was repeatedly contacted and pressured to return to work and had her medical information shared without her consent, (2) when orders were issued for armed male police officers to attend at her residence while she was on leave, and (3) when MAS nurse Dawn Erickson made belittling and inappropriate comments regarding the applicant’s need for accommodation.

 

Pressure to Return to Work and Sharing of Medical Information

 

[396] The applicant alleged that the Board repeatedly attempted to pressure and coerce her into returning to active duty. She points to two types of “pressure” or “coercion”: (i) when Superintendent Taverner and Detective Rob North contacted her to offer job opportunities after she had begun her medical leave, and (ii) the Board’s actions leading up to and including the AWOL warning.

 

[397] In my view, the latter actions are best addressed as part of the Board’s failure to provide appropriate accommodations for the applicant’s disability as I have done above.

 

[398] With respect to the offers of job opportunities, on February 13, 2014, Superintendent Taverner left the applicant a voicemail saying in its entirety:

This is Superintendent Taverner. If you get a chance, could you give me a call. There is an opportunity, there is another project coming up and I didn’t know whether you would be interested or what the situation is but certainly if you want to give me a call we can talk about it. I’m at [phone number omitted]. Thank you.

 

[399] I fail to see how this voicemail can be characterized as “pressuring” or “coercing” the applicant.

 

[400] On February 25, 2014, Detective Rob North contacted the applicant to offer her an opportunity in the Homicide Unit. While the applicant claimed that this was an attempt to “coerce” her to return to work, I do not see it as such. In fact, Dr. Vermani testified, consistent with her clinical notes, that, at her appointment a couple of days after the call, the applicant was frustrated that she could not take advantage of the opportunities being offered to her due to her symptoms. This is clearly inconsistent with the applicant’s claim of “coercion” or any allegation that the offers were vexatious. Further, I do not find that it can reasonably be said that Superintendent Taverner and Detective North ought to have known that the job offers were unwelcome because the applicant was on medical leave. There was no evidence that Superintendent Taverner and Detective North to have known the extent of the applicant’s medical restrictions at the time that they made the job offers to the applicant in February 2014. As noted above, MAS did not receive the applicant’s first Med 23 until February 28, 2014 and she had only communicated with MAS about the details of her condition. For all these reasons, I do not find that these job offers constituted an attempt to “coerce” the applicant back to work and I also find that they do not amount to harassment because of disability under the Code.

 

[401] With respect to the alleged sharing of the applicant’s medical information, the applicant has not provided any authority for the proposition that such sharing of medical information amounts to a violation of the Code. While such sharing of information may be a breach of some kind of privacy interest, I do not find that it is a breach of the Code.

 

[402] In their written submissions, the applicant’s counsel argue that various supervisors and members of the Board’s Labour Relations and Occupational Health and Safety departments harassed the applicant by discussing and receiving information regarding the applicant’s private medical information. To begin, I do not think this is an accurate characterization of these discussions, most of which I have summarized above in the section on the duty to accommodate. In any event, I do not agree with the applicant’s counsel that such communications about the applicant amount to harassment.

 

[403] The communications or comments that the applicant complains about were communications between her supervisors and members of the Board’s Labour Relations and Occupational Health and Safety departments. They were not comments made to the applicant. Moreover, there is no evidence that representatives of the employer improperly received confidential medical information relating to the applicant. The fact that Inspector Ervick made a comment that the problem may be in the nature of PTSD undisclosed by the applicant does not mean that he improperly received this information from anyone at MAS, Labour Relations or any other department. He credibly testified that he was speculating based on the difficulties they were having reaching the applicant and the fact that PTSD had been much discussed in the service around that time.

Armed Male Police Officers Attending at the Applicant’s Residence

 

[404] In the circumstances of this case, I do not find that it was disability-based harassment for armed male police officers to attend at the applicant’s residence to do wellness checks. As noted above, such checks are performed in accordance with the Toronto Police Service’s Sickness Reporting Procedure. Other visits referred to by the applicant in her written submissions were the visits by officers seeking to serve her with the AWOL warning letter discussed above. I do not agree that sending armed male police officers to deliver a letter to the applicant even though she was on sick leave is, by itself, conduct that was known or ought reasonably to be known to be unwelcome. Such visits might have formed part of the failure to accommodate the applicant’s disability if she had requested as an accommodation that such visits not take place. However, neither she nor Dr. Vermani did so. The applicant’s only communication with her employer about the visits was her text to SSgt Swackhammer in which she asked that the Division no longer communicate with her following the text she received from Ms. Naughton about a wellness check. Neither the applicant nor Dr. Vermani ever requested as an accommodation for the applicant’s disability that no male officers ever attend at the applicant’s residence either for wellness checks or to serve her with correspondence.

 

Comments by MAS Nurse

[405] The applicant alleged that nurse Erickson made inappropriate comments to her that belittled her disability. She testified that she spoke to Ms. Erickson at length and advised her that she was unable to attend at MAS in the Toronto Police Service headquarters due to her disability. According to the applicant, Ms. Erickson told her that this (sexual harassment) happens every day, that she just had to put up with it, that she went to school for this and what else would she do with her life. The applicant testified that Ms. Erickson told her that they could tranquilize her to be able to attend at MAS and that she was too young to be off work. Ms. Erickson also asked if the applicant was upset with Superintendent Taverner and whether she had anything against him. She also asked whether the applicant had a lawyer and said that the applicant sounded medicated when she was in fact wearing braces. As noted above, Ms. Erickson did not respond to a summons to testify at the hearing and therefore I did not hear testimony from her in relation to the above comments.

 

[406] In my view, even if the comments were made, they do not amount to harassment because of disability. The applicant’s counsel argue that Ms. Erickson would not have made the comments to the applicant if she had not been on medical leave since they would not otherwise have been in contact. In my view that is not enough to establish that the comments were linked to the applicant’s disability. In order for comments to amount to harassment “because of disability”, there must be a sufficient link between the comments and an applicant’s disability. While Ms. Erickson’s comments may have been inappropriate or insensitive, I do not find that there was a sufficient connection between them and the applicant’s disability for them to amount to harassment because of disability. [407] For all the reasons above, I do not find that the applicant has made out her allegations of harassment because of disability.

 

BOARD LIABILITY

 

[408] The Board argued that it was not liable for any Code violations that might be found in this case. For the reasons below, I do not agree.

 

Effect of S. 46.3(1) of the Code

 

[409] With certain exceptions, s. 46.3(1) of the Code deems employers liable for the conduct of their employees undertaken in the course of their employment. Specifically, s. 46.3(1) provides that any act or thing done or omitted to be done by an employee in the course of his or her employment is deemed to be an act or thing done or omitted to be done by the employer. S. 46.3(1) excludes the Code’s harassment provisions from its application. Therefore, employers are generally not deemed liable for harassment carried out by their employees except in two circumstances (i) if the harasser is part of the employer’s “directing mind” or (ii) where management knew or ought to reasonably have known of the harassment and failed to take appropriate steps to address it. See George, above at para. 60 and Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.).

 

[410] However, a finding of a poisoned work environment constitutes a violation of the general protections against employment discrimination found in s. 5(1) of the Code which is not exempted from the deemed liability provision in s. 46.3(1) of the Code. Therefore, a corporate or organizational respondent will be deemed liable for a poisoned work environment under the Code without regard to: (i) whether or not the comments or conduct found to create the poisoned work environment were reported to management or whether or not management took reasonable steps to address such comments or conduct; or (ii) whether the person(s) responsible for the comments or conduct found to create the poisoned work environment were part of the employer’s “directing mind”. See George, above at para. 61.

 

[411] Since I have found that the harassing comments and conduct to which the applicant was subjected amounted to a poisoned work environment, the Board is deemed liable for the conduct of the employees who made the harassing comments and carried out the harassing conduct that amounted to the poisoned work environment.

 

REMEDY

 

[412] The Tribunal’s remedial powers are set out in s. 45.2 of the Code. It is wellestablished that remedies under the Code are intended to be remedial or compensatory, not punitive. The purpose of Code remedies is to restore a complainant as far as is reasonably possible to the position that they would have been in had the discriminatory conduct not occurred. The applicant requested $180,000 as compensation for injury to dignity, feelings and self-respect as well as $25,000 for lost wages and benefits. She also requested a wide-range of public interest remedies. 

 

[413] I note that I heard testimony at the end of this proceeding from Deputy Chief Shawna Coxon about different initiatives the Board and Chief of Police are undertaking to address human rights and sexual harassment within the Toronto Police Service. As I advised the parties at the time, the fact that the Board may be taking some steps which may overlap with any of the remedies that I order below does not preclude the awarding of the remedies. At most, it simply means that the Board may already be on its way to fulfilling some of the remedies I have ordered.

 

Compensation for Injury to Dignity, Feelings and Self-respect

Applicable Law

 

[414] The Tribunal’s jurisprudence has primarily applied two criteria in assessing the appropriate compensation for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced the Code violation. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880. The Tribunal has considered the following non-exhaustive factors in assessing the proper amount of compensation to award for injury to dignity, feelings and self-respect: humiliation experienced by the applicant; hurt feelings; loss of self-respect, dignity, selfesteem and confidence; the experience of victimization; and the seriousness, frequency and duration of the offensive treatment. See Sanford v. Koop, 2005 HRTO 53 at para. 35; ADGA GroupConsultants Inc.

 

Seriousness of the Conduct

 

[415] While the applicant testified that she experienced harassing conduct “most of the time” meaning “every shift, a few times a day”, my remedial award can only be based on the violations of the Code I found in this case.

 

[416] I found above that the applicant has met her onus of establishing the following violations of the Code: harassing comments and conduct which amounted to a poisoned work environment and discrimination because of disability when the Board continued to insist that the applicant’s medical assessment be performed at MAS offices.

[417] The applicant has also established that the individual respondent sexually harassed her when he forcibly kissed her and made and carried out a series of other harassing comments and actions.

 

Impact on the Applicant

 

[418] I find that the incidents of sexual harassment and the poisoned work environment I have found above were significant factors contributing to the applicant’s PTSD and related mental health conditions.

 

[419] Both the applicant’s psychologist, Dr. Vermani, and her psychiatrist, Dr. Katzman, testified at the hearing. It was not disputed that they have expertise in relation to diagnosing and treating PTSD. They both diagnosed the applicant with PTSD and related mental health conditions through assessments that they performed in the first part of 2014. Dr. Katzman testified that PTSD can be divided into two categories: simple PTSD – which is usually caused by one traumatic event – and complex PTSD which is usually caused by multiple episodes and traumatic events. Dr. Katzman testified that the applicant has the complex version of PTSD. Both Dr. Vermani and Dr. Katzman testified that they performed tests to ensure that the applicant was not malingering or engaging in conscious or unconscious fabrication. They both concluded she was not. Dr. Katzman testified that he evaluates every patient’s story and at no point did he question that what the applicant was telling him was true.

 

[420] Dr. Katzman testified that the applicant’s PTSD was caused by her work environment including repeated episodes of sexual harassment. When the respondents’ counsel cross-examined Dr. Katzman on how he came to this conclusion, Dr. Katzman testified that, when one has a history of trauma, it triggers symptoms related to trauma, for example, nightmares, flashbacks and intrusive memories. He testified that all of the applicant’s nightmares, flashbacks and intrusive memories were related to the incidents of sexual harassment she had experienced. According to Dr. Katzman, individuals with PTSD will have triggers which cause physiological and psychological arousal such as a rapid heart rate or palpitations. He testified that the applicant would develop such physical symptoms when seeing police officers or when she was reminded of the trauma she had experienced.

 

[421] Dr. Vermani and Dr. Katzman were cross-examined as to whether other factors may have caused or contributed to the applicant’s PTSD. The respondents’ counsel asked them about the potential for the applicant’s PTSD to have been caused by certain other factors such as the break-up of one of her relationships, the fact that she had been investigated (and found not guilty) of mortgage fraud, or possible genetic factors. Both Dr. Vermani and Dr. Katzman reiterated several times that the nightmares, flashbacks and intrusive thoughts experienced by the applicant all centre around the vulnerability she feels around the sexual harassment she described to them.

 

[422] I note that Dr. Vermani testified that the applicant had symptoms of PTSD since approximately 2007. In her medical assessments, the applicant described other sexual harassment incidents at work and work-related incidents that caused her to have symptoms of PTSD. However, based on the evidence of Dr. Vermani and Dr. Katzman, complex PTSD arises from the cumulative effect of a series of events. Based on their evidence, I find that the incidents of sexual harassment and poisoned work environment I have found above contributed to an exacerbation of the applicant’s PTSD symptoms in 2012-2013 which led to her diagnosis and her need to finally go off work as of January 2014. The evidence in this case establishes that the applicant continues to suffer from PTSD and she was continuing to receive WSIB benefits as of the date of final oral arguments in this case.

 

[423] The opinions of Dr. Vermani and Dr. Katzman were consistent with the findings contained in reports produced by two independent medical examiners -- a psychologist and a psychiatrist – retained by the WSIB. Ultimately, the WSIB approved the applicant’s claim of traumatic mental stress in May 2014. Her WSIB claim was based on the comments and actions of SSgt Nolan in late 2012.

Appropriate Compensation

 

[424] The applicant has requested compensation of $80,000 from the Board for the poisoned work environment to which she was subjected due to the harassing comments and conduct she experienced. She has requested compensation of $20,000 from the individual respondent for his sexually harassing comments and actions.

 

Sexual Harassment and Poisoned Work Environment

 

[425] The range of compensation awarded by the Tribunal for sexual harassment and a related poisoned work environment extends from approximately $10,000 to $200,000. The compensation awarded depends on the number and types of harassing comments and whether an applicant experienced sexual assault or sexual touching of any kind. As noted by the Tribunal in AM v. Kellock, 2019 HRTO 414 at paras. 128 - 129 (“AM”):

 

  • The highest awards granted by this Tribunal are in cases of sexual harassment, solicitation, and advances involving sexual conduct by a person in a position of authority over a vulnerable employee. This is such a case. The highest awards also involved additional factors, such as objectively more vulnerable applicants and significant incidents of reprisal. In OPT v. Presteve Foods Ltd., 2015 HRTO 675 (“OPT”) the Tribunal awarded compensation of $150,000 and $50,000 to the two applicants. In others, such as GM v. X Tattoo Parlour, 2018 HRTO 201 where the Tribunal awarded $75,000 in compensation, the applicant was a minor and the respondent was a trusted family friend. In AB v. Joe Singer Shoes Limited, 2018 HRTO 107 (“AB”), the Tribunal awarded $200,000 in compensation. There the applicant was not only an employee but tenant of the respondent, and the conduct occurred over a period of many years.

  • Compensation in the $40,000-$50,000 range has been awarded for findings of sexual harassment that involve propositions or unwelcome sexual touching. See JD v. The Ultimate Cut Unisex, 2014 HRTO 956 where the Tribunal awarded $40,000, $40,000, and $25,000 to the three applicants. In CK, the Tribunal awarded $51,760, including compensation for lost wages, for a single incident of sexual harassment and sexual assault by a co-worker who was not in a position of authority.

 

[426] The poisoned work environment in this case mostly took the form of sexual innuendo and harassing conduct in the form of the viewing and discussion of photos. This commentary and conduct would lie at the less serious end of the sexual harassment spectrum. However, a number of factors increase the seriousness of the poisoned work environment in this case. First, I have found that the forced kiss by the individual respondent formed part of the poisoned work environment experienced by the applicant. This incident was serious as, in law, it would amount to a sexual assault. Second, the seriousness of the commentary and conduct that led to the poisoned work environment was increased by the fact that most of this commentary and conduct was carried out by supervisors who were in a position of power in relation to the applicant. Third, the incidents occurred over many years.

 

[427] In terms of the impact on the applicant, it has been very significant. The poisoned work environment significantly contributed to her PTSD which has kept her off work for six years as of the time of writing this decision. The applicant testified that she felt humiliated, degraded, and disgusted from the comments she experienced. I found above that the sexually harassing conduct to which she was subjected became conditions of her employment. She had to accept these conditions if she wanted to continue working as a police officer in 23 Division. Based on the evidence of the applicant’s psychiatrist and psychologist, it is not clear if she will ever be able to return to work in her current workplace. The evidence from her doctors indicates that she suffered from many symptoms of PTSD and anxiety such as sadness, crying, anxiety, flashbacks, nightmares, poor self worth, nervousness, sleep issues, poor appetite, racing thought and poor memory.

 

[428] The applicant’s mother testified that her daughter lost the will to live as a result of her experiences in the workplace and on many days she could barely get out of bed. She also testified that her daughter has been forever changed by what she experienced. She said that one of the things she noticed was that the applicant always took pride in her appearance when she left the house but that stopped being the case for a long period of time. She said that the applicant will start to cry over little things, that she is very moody, that she does not join in physical activities in groups or socialize the way she used to. She said that, overall, she is not the girl she used to know.

[429] In the circumstances of this case, it is my view that an award of $75,000 is appropriate. This was the amount awarded in two recent sexual harassment cases: AM, above, and GM v. X Tattoo Parlour, 2018 HRTO 201 (“GM”). The sexual harassment in each of these cases was far worse than in this case because both involved sex or sexual touching. However, the conduct involved only one person and it took place over a much shorter period of time than in this case: three months in AM and just one incident in GM as compared to three years in this case. Also, the impact of the sexual harassment and poisoned work environment on the applicant in this case appears greater than the impact on the applicants in the two cases cited above. Therefore, balancing all of these factors, I find that the same award is appropriate in this case.

 

[430] I find that the Board and the individual respondent are jointly and severally liable for $10,000 of the $75,000 awarded above due to my finding that the individual respondent sexually harassed the applicant.

 

Discrimination Because of Disability

 

[431] The applicant has requested compensation of $50,000 from the Board for the breach of her rights to be free from discrimination and harassment because of her disability.

 

[432] I found that the Board discriminated against the applicant because of disability when MAS and the applicant’s supervisors continued to insist that she attend at MAS offices for her medical assessment, thus failing to accommodate her reasonable accommodation request to have the assessment performed off-site due to the medical restrictions arising from her PTSD. This insistence continued to escalate up to the point that the applicant’s supervisors threatened to mark her AWOL and to start disciplinary proceedings against her if she did not attend at MAS for the medical assessment.

 

[433] In the circumstances of this case, it is my view that an award of $10,000 is appropriate for the disability discrimination established by the applicant. The applicant has submitted no case law in support of her request. The amount she requested might be granted in a case involving a failure to accommodate that leads to a termination of employment. That was not the case here. However, the Board’s failure to accommodate the applicant did set into motion a chain of events that led to the applicant’s supervisors threatening to mark her AWOL and threatening disciplinary action against her. Based on Dr. Vermani’s testimony, the Board’s actions which I have found amounted to disability discrimination caused the applicant a significant amount of distress. Overall, I find that the award set out above is appropriate to compensate for the distress caused to the applicant by the disability discrimination in this case.

 

Lost Wages and Benefits

 

[434] The applicant has requested $25,000 for lost wages and an additional award for lost opportunities. The applicant has been in receipt of WSIB benefits covering her lost earnings for the entire time she has been off work due to her PTSD. While the applicant testified that these benefits do not cover the paid duty, overtime hours, etc. that she would have been paid if she were at work, she provided no actual evidence to support this assertion or to support the amount she claimed was not covered by her WSIB benefits. In these circumstances, the applicant has not made out her claim for lost wages and benefits.

 

Interest

 

[435] The applicant requested pre-judgment and post-judgment interest to be paid in accordance with ss. 128 and 129 of the Courts of Justice Act. These requests are granted. Under s. 128 of the Courts of Justice Act, pre-judgment interest is to be calculated from the date the cause of action. Since the cause of action in this case took the form of a series of incidents over a three-year period, I exercise the discretion set out in s. 130 of the Courts of Justice Act to allow pre-judgment interest as of the date of the Application.

Public Interest Remedies

[436] S. 45.2(1)3 of the Code permits the Tribunal to make an order directing any party to do anything that, in the Tribunal’s opinion, the party ought to do to promote compliance with the Code. Such remedies are commonly referred to as public interest remedies. Any public interest remedies must be reflective of the facts in the case, should be remedial, should focus on ensuring the objects of the Code to eradicate discrimination and ensure future compliance. See Giguere v. Popeye Restaurant, 2008 HRTO 2. Any remedy must flow from the claim as adjudicators are called upon to adjudicate the particular claims before them and they are not royal commissions of inquiry. See Moore v. British Columbia (Education), 2012 SCC 61 at para. 64. The Tribunal has the power to order public interest remedies whether they were requested by an applicant or not: s. 45.2(2)(b).

Human Rights Strategy

 

[437] The evidence in this case establishes that the Board has various policies and procedures that relate to human rights and disability discrimination. However, these policies and procedures did not prevent the occurrence of the poisoned work environment and the disability discrimination that I have found in this case. The Board’s policy on human rights requires the Chief of Police to create a Human Rights Strategy. It is unclear whether the Chief of Police has ever created such a strategy. Deputy Chief Coxon testified that she had never seen one and it is reasonable to believe that, as Deputy Chief, she would be aware of a Human Rights Strategy if one existed.

 

[438] I agree with the respondent that my jurisdiction does not extent to enforcing the Board’s policies. However, I agree with the applicant that ensuring a proper policy framework is important for ensuring the Board’s future compliance with the Code. Therefore, I find it appropriate to order the Board to direct the Chief of Police to comply with his obligation to ensure that the Toronto Police Service develops a Human Rights Strategy in accordance with the Board’s policy on human rights. As set out in the policy, the Human Rights Strategy must set clear targets and objectives and include initiatives related to public education and outreach, continuous training and education of uniform and civilian Service members, and related future plans. The Human Rights Strategy must also include a provision for the identification of emerging human rights themes and the development of appropriate procedures. The Human Rights Strategy must also be reviewed at least on an annual basis and updated as required. The Board must review the Human Rights Strategy developed by the Chief of Police and ensure that it meets all of the criteria set out above which are also found in the Board’s human rights policy.

 

Human Rights Training

 

[439] The applicant requested that I order the Board to initiate annual mandatory training by an independent expert in policing culture and human rights. She asked that this training include:

a. Additional training for supervisors on their obligations to proactively provide a workplace free of sexual harassment;

b. Additional training on reprisals;

c. Training of all internal investigators conducting human rights investigations overseen by the DMU once it is adequately resourced; and

d. Enhanced training for new hires to the Toronto Police Service.

 

[440] The applicant asks that she have the opportunity to review the curriculum on sex discrimination and harassment, disability discrimination, and reprisals to ensure that these remedies are appropriately implemented.

 

[441] I find that it is appropriate to order that the Board retain an external expert on policing and human rights to conduct additional training for supervisors within 23 Division on their obligations to proactively provide a workplace free of sexual harassment. In addition, the Board shall provide yearly training for all police officers (including supervisors) specifically dealing with sexual harassment, human rights, and poisoned work environments. This training must be conducted in-person or by videoconference and not simply by way of modules that officers complete on the computer. In my view, this training should be provided to all divisions since I have no reason to believe that the officers at 23 Division are simply “bad apples” who conduct themselves any differently from officers in the rest of the Toronto Police Service. Indeed, many of the sergeants and staff sergeants who made and a carried out the harassing comments and conduct described above had worked in other divisions before working in 23 Division. That said, since my findings in this case are limited to 23 Division, I limit the order in this paragraph to 23 Division. I do not grant the applicant’s request to review the curriculum prior to the training, but the respondents shall inform her of the curriculum it used for the training.

 

[442] Since I did not find any breaches of the Code relating to the investigation of the applicant’s internal complaint, I do not grant the applicant’s request that I order training in human rights for all internal investigators. The evidence in this case showed that one of the two investigators had received human rights training before he dealt with the applicant’s complaint with the second investigator receiving human rights training approximately one year later. I do agree with the applicants’ counsel that it is important for internal investigators to have human rights training in order to conduct proper investigations of human rights-related allegations. However, since I have not found any breaches of the Code arising from the conduct of the investigators, any order of training would not flow from the breaches I have found in this case.

 

External Auditor on Gender Issues in the Police Force

 

[443] The applicant requests that I order the Board to fund an external and independent auditor to conduct an audit on gender issues within the police force within six months of this Decision. She also requests that I order the Board to publish the results of the audit as part of the annual report referred to in the Board’s policy on human rights and that I order the implementation and issuing of recommendations, as appropriate. In my view, such a remedy extends beyond the Code breaches I have found in this case and therefore I decline to grant it.

 

Exit Interviews

[444] The applicant requests an order requiring the Board to conduct exit interviews with all female employees leaving the Toronto Police Service and that the interviews provide an opportunity for women to raise concerns free from intimidation. In my view, such a remedy extends beyond the Code breaches I have found in this case and therefore I decline to grant it.

 

Complaint Tracking and Reporting

 

[445] The applicant requests that I order the Board to ensure that complaints, investigations, findings, and penalties under Part V of the Police Service Act process are appropriately tracked and reported on. She submits that, in the case of human rights complaints, this tracking and reporting on both complaints and findings should be included in the Board’s annual reports concerning human rights.

 

[446] Under the Board’s policy on human rights, the Chief of Police is required to “ensure that the Annual Professional Standards report includes information about the complaints that involve discrimination and harassment contrary to the Code”. This must include “information about all internal and external complaints made against the Board, the Chief of Police, and any member of the Service” alleging discrimination or harassment including “the area of discrimination or harassment (service provision or employment) complained about.” [emphasis added] However, the Annual Professional Standards report only includes information about complaints filed by members of the public at the Tribunal alleging discrimination in police services contrary to the Code. The reports do not comply with the direction in the Board’s policy on Human Rights that the reports must include information about all internal complaints made against the Board as well as applications made to the Tribunal by employees such as the applicant. Concretely, this meant that the applicant’s internal complaint against SSgt Nolan and her Application to the Tribunal were not reported as part of the data provided in the Annual Professional Standards reports for 2012 and 2014, respectively. This is despite the fact that such reporting is required under the Board’s Human Rights policy. I agree with the applicant that this means that the Board publicly underreports the number of sexual harassment and human rights complaints that are made by employees such as the applicant internally and to this Tribunal.

[447] In her cross-examination in this case, Deputy Chief Coxon conceded that proper tracking of sexual harassment investigations is important in order to know the extent of the problem. While she testified that some tracking is done within the Toronto Police Service, the results are only accessible to very few people within the organization.

 

[448] Therefore, I order the Board to ensure that all internal complaints with a human rights component and all applications to this Tribunal by employees are tracked and reported on in the Annual Professional Standards reports.

 

Updating of Complaint and Medical Forms

 

[449] The applicant requests that I order the Board to update certain forms as follows:

a. Update the 649 form to provide sufficient guidance in relation to human rights complainants;

b. Update the 901 form to ensure the proper classification of complaints; and

c. Update the Med 23 form because it reveals the nature of an individual’s illness without their consent since it applies only to individuals who have a psychological/psychiatric condition.

 

[450] While I agree that an amendment of the 649 form to provide guidance to human rights complainants is a good idea, I do not find that this remedy follows from the content of this Application. While the applicant was generally unsure as to the recourses available to her, the 649 form she filed is very detailed and extensive.

 

[451] I do agree that the Board must amend the 901 form which is the form completed by unit commanders to start an investigation. The form includes boxes for different types of complaints including “uniform internal complaint”, “human rights” and “workplace harassment”. Only the “uniform internal complaint” box was ticked on the 901 form that Superintendent Taverner caused to be filled out after he spoke to the applicant. Neither the “human rights” nor the “workplace harassment” boxes were ticked. This meant that the applicant’s complaint was misidentified as being solely a uniform internal complaint. Such a miscoding of complaints may lead to an underreporting of human rights and workplace harassment cases and could potentially affect how the PRS handles complaints.

 

[452] Therefore, the Board shall amend the 901 form to advise the persons filling out the form that they must select as many boxes as are applicable, including the “human rights” and/or “workplace harassment” boxes if the complaint raises those issues. In addition, the Board shall inform all unit commanders of the necessity to ensure the appropriate coding of complaints by selecting as many boxes as applicable when they complete 901 forms in the future.

 

[453] I do not find that the amendment to the Med 23 form requested by the applicant flows from the findings I have made in this case. However, in my view, it is appropriate to order the Board to amend the Med 23 form to include a section which specifically asks physicians completing the form to identify their patient’s medical restrictions and any accommodation needs. In my view, the existence of such a question may have avoided some of the problems that occurred in relation to the treatment of the applicant’s accommodation request in this case.

 

Anonymous Complaint System

 

[454] The applicant requests that I order the Board to put in place an anonymous complaint system for individuals to make complaints about human rights violations and harassment in the Toronto Police Service. Although, as pointed out by the applicant’s counsel, the applicant testified that she felt it was “career suicide” to come forward with her complaints, I have found that she has failed to make out her allegations of reprisal in this case. Therefore, I do not find that her request for an anonymous complaint system flows from my findings in this case and I decline to grant it.

 

Peer Support Centre

 

[455] The applicant requests that I order the Board to provide appropriate financial support for the creation of an independent third-party peer support centre for female officers. I agree that a peer support centre would be of great benefit to women like the applicant who wish to come forward with complaints of sexual harassment. However, I decline to grant this request as I believe that it extends beyond what is appropriate in light of the scope of my findings in this case.

 

Review of the DMU/DIU’s Mandate

 

[456] The applicant requests that I order the Board to fund an independent review of the DMU (now DIU) by a mutually agreed upon individual to explore how the DIU fulfills its mandate. She also asks that I order the Board to ensure that the DIU has an ongoing adequate operating budget and appropriate staffing to fulfill its mandate. I agree that this is a worthy set of objectives. However, I decline to grant this request as I believe that it extends beyond what it is appropriate for me to order as an adjudicator of this claim rather than a commission of public inquiry that would have a mandate to make broad non-binding recommendations.

Training for Senior Officers on the Handling of Medical Information

[457] The applicant requests that I order the Board to fund training of senior officers on the confidential handling of medical information. I decline to grant this remedial request because it does not flow from any of the Code violations I have found in this case.

 

Appropriate Penalties for Misconduct

 

[458] The applicant requests that I order the Board to ensure that appropriate penalties are ordered under Part V of the Police Services Act taking into account the need for general and specific deterrence. I decline to grant this remedial request as remedies are ordered as part of the legal proceeding that takes place under Part V of the Police Services Act. 

ORDER

 

[459] For the reasons set out above, the Tribunal orders as follows:

a. The Application is granted in part;

b. The Board is liable to pay the applicant $75,000 as compensation for injury to dignity, feelings and self-respect arising from the breaches of the Code set out above, plus pre-judgment interest on this amount in accordance with s. 128 of the Courts of Justice Act calculated from September 3, 2014 to the date of this Decision. This sum must be paid within 30 days of the date of this Decision;

c. The Board and the individual respondent are jointly and severally liable to pay the applicant $10,000 as compensation injury to dignity, feelings and self-respect arising from the individual respondent’s breaches of the Code, plus pre-judgment interest on this amount in accordance with s. 128 of the Courts of Justice Act calculated from September 3, 2014 to the date of this Decision. This sum must be paid within 30 days of the date of this Decision;

d. The Board and the individual respondent shall pay the applicant post-judgment interest calculated in accordance with s. 129 Courts of Justice Act on any of the foregoing amounts for which they are liable that remain unpaid more than 30 days after the date of this Decision;

e. The Board shall carry out the following actions as public interest remedies:

  • i. Within one month of the date of this Decision, direct the Chief of Police to comply with his obligation to ensure that the Toronto Police Service develops a Human Rights Strategy in accordance with the Board’s policy on human rights. Such a strategy must be prepared within four months of the date of this Decision. Within two weeks of the Chief of Police’s completion of the Human Rights Strategy, the Board must review the Strategy and ensure that it meets all of the criteria set out in para. 438 above, which are also found in the Board’s human rights policy;

  • ii. Within one month of the date of this Decision, retain an external expert on policing and human rights to conduct additional training for supervisors within 23 Division on their obligations to proactively provide a workplace free of sexual harassment. The training must be provided within four months of the date of this Decision;

  • iii. Provide yearly training for all police officers (including supervisors) specifically dealing with sexual harassment, human rights and poisoned work environments. This training must be conducted in-person or by video-conference and not simply by way of modules that officers complete on the computer. As noted above, this training should be provided to all divisions since I have no reason to believe that the officers at 23 Division conduct themselves any differently from the officers in the rest of the Toronto Police Service. However, since my findings in this case are limited to 23 Division, I limit the order in this paragraph to 23 Division.

  • iv. The first training session must be provided within four months of the date of this Decision;

  • v. Ensure that all internal complaints with a human rights component and all applications to this Tribunal by employees are tracked and reported on in the Annual Professional Standards report;

  • vi. Within one month of the date of this Decision, amend the 901 form to advise the persons filling out the form that they must select as many boxes as are applicable, including the “human rights” and/or “workplace harassment” boxes if the complaint raises those issues. The Board shall ensure that only the amended 901 forms are used on a going forward basis once the amendments are made. In addition, within one month of the date of this Decision, the Board shall inform all unit commanders of the need to ensure the appropriate coding of complaints by selecting as many boxes as applicable when they complete 901 forms; and

  • vii. Within one month of the date of this Decision, amend the Med 23 form to include a section that specifically asks physicians completing the form to identify their patient’s medical restrictions and any accommodation needs. The Board shall ensure that only the amended Med 23 forms are used on a going forward basis once the amendments are made.

f. Within four months of the date of this Decision, the Board shall notify the applicant’s counsel in detail of the steps it has taken to comply with this order. It shall also provide the applicant’s counsel with a copy of the curriculum used in the training referred to in subparagraphs (ii) and (iii) of paragraph (e) above.

Dated at Toronto, this 29th day of June, 2020.

“Signed by”

_________________________________

Jo-Anne Pickel

Vice-chair