Finally.

Standard

It’s going on 2 years, more than 3 months since the hearing, and I finally have the results of my Human Rights complaint against Theatre 20.

It’s been a long day, so I’m not going to comment on it much now, I’ll just post a link to the entire document (which is public information, and will be available on the HRTO website soon, not sure exactly how long it takes them to post them but I’ve seen some from the end of March), and put some excerpts here.

I’ll point out, again, that I am well within my legal right to post all of this, though I’m sure I’ll get more complaints for doing it. I think it’s important to speak up when you’re mistreated, especially when the HRTO agrees – if I hear complaints again that this will damage anyone’s reputation I’ll repeat, as before, it’s not my saying it that’s hurting you, it’s that you’ve done it.

You can read a copy of the entire decision, here: 2017 HRTO 394 Dix Final 4-April-2017.
The only thing I have edited is the contact information for myself and the Respondent at the top of the page.

For those of you that don’t feel like reading all 43 pages, here’s the Coles Notes version:

Injury to Dignity & Self-Respect

I didn’t manage to prove all aspects of my case, unfortunately, but that wasn’t surprising considering it was very difficult for me to find any proof. Many of the things that were said or done happened in-person, so I had no written documents, no video or anything to support my claims. Since I worked with Brian Goldenberg alone (with the exception of a part-time student employee sometimes, and some volunteers, none of whom were privy to the conversations and issues that I raised in my complaint), the majority of really was “he said/she said”, though of course in this situation, the “he” didn’t even attend the hearing. So it came down to me versus the men in my complaint, none of whom were there for daily operations and all of whom I had complaints against; nonetheless, I was able to prove my points well enough that I was awarded “compensation for injury to dignity, feelings and self-respect” (page 43). So let’s look at what that means.

Well in my case, it broke down into 2 main sections; my complaint of sexual harassment from Chris Weber, and the threat of reprisal I received when stating that I would file a formal complaint if that harassment, and other issues, did not stop. When it comes to sexual harassment and the code;

[48] Section 7(3)(a) of the Code provides that “every person has a right to be free from a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome”.

As the Vice Chair notes in the assessment;

[49] Mr. Weber was clearly a person in a position to confer, grant or deny a benefit to the applicant. He was a member of the respondent’s board of directors where the applicant was an employee. He described himself as being in a leadership and mentorship role to the applicant. He had recommended her to be hired for her position with the respondent.

While there were other issues as well, the one piece of hard evidence I had in regards to this was the text message, which I posted in my last blog about the hearing;

screenshot-2016-12-17-21-00-32

As I stated in my claim, this message made me uncomfortable not just in its nature, but more so in the fact that he was,

  1. Was in a position of power above me
  2. Considerably older than me
  3. Married (and recently, too)
  4. Was apparently hitting on me to my face, while insulting me and complaining about me behind my back

It felt very much like a power trip, and apparently the Vice Chair agreed;

[50] Even if I were to accept Mr. Weber’s evidence that the semi-colon was intended by him as a smiley face, and not as a winky face, and that the “hehehe” was intended as a light-hearted hee-hee-hee, the fact remains that Mr. Weber sent text messages to the applicant describing her outfit from the event as “hot” and telling her that he was “looking forward to [her] coming out with the shorter dress”. In my view, these comments are clearly and obviously sexual in nature.

He goes on to discuss the legal definition of an “advance” and what that means in regards to the code, all of which again, you can read in full if you click the link at the top. The main point however is summed up here;

[50] …I have no hesitation in finding that Mr. Weber ought reasonably to have known that these comments were unwelcome to the applicant.

How does that come back to what is officially a complaint against The Twenty Theatre Company? Well;

[51] As Mr. Weber is vice-chair of the board of directors of the respondent theatre company, I find that Mr. Weber is part of the directing mind of the respondent. As such, the respondent is liable for his conduct: see Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583; Strauss v. Canadian Property Investment Corporation (No. 2), (1995) 24 C.H.R.R. D/43 at para. 55; and Ghosh v. Domglas (No. 2), (1992) 17 C.H.R.R. D/216 at para. 54.

[52] Accordingly, I find that the respondent is liable for the violation of the applicant’s rights under s. 7(3)(a) of the Code.

Their other violation of the Human Rights Code was in the threat of reprisal; I told Brian that I had complaints, he said he’d deal with them, he didn’t (according to testimony, he never even shared them with the Board Members), so I said I would speak to them myself and that if things didn’t change, I would have to file a complaint. They stated that was a reason for my termination, which is illegal.

In testimony from Board Member Dave Morris, it was clearly stated that this was the case, as is described here;

[78] Mr. Morris testified that the executive director said that the “penny dropped” in his mind and he decided to terminate the applicant’s employment after she had indicated to him that unless he spoke up to the board and committee members about their behavior towards the applicant, then she was going to go do it herself. Mr. Morris testified that this was described to him by the executive director as the “deciding moment”.

In regards to how exactly this is dealt with by the code;

[105] Section 8 of the Code provides, in its relevant part: “Every person has a right to claim and enforce his or her rights under this Act . . . without reprisal or threat of reprisal for so doing”. In Noble v. York University, 2010 HRTO 878 at para. 33, the Tribunal stated that in an application alleging reprisal, the following elements must be established: (1) an action taken against, or threat made to, the applicant; (2) the alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and (3) an intention on the part of the respondent to retaliate for the claim or attempt to enforce the right. Intent may be proved by direct evidence or by inference: Entrop v. Imperial Oil Ltd. (No. 7) (1995), 23 C.H.R.R. D/213, upheld with respect to reprisal, (2000), 37 C.H.R.R. 481, 2000 CanLII 16800 (ON CA).

And when it comes to my case?

[106] With regard to the first element, there is no question that the termination of the applicant’s employment is an adverse or negative action taken against the applicant.

[107] With regard to the second element, the first issue is whether and, if so, when the applicant claimed or attempted to enforce her Code rights

[108] While I am not convinced that a generic reference to “workplace rights” would be sufficient to establish that an applicant had claimed her Code rights, I note that her use of this term was clearly understood by the executive director to refer to human rights. This is evidenced by the executive director’s e-mail dated July 23, 2015, in which he makes reference to the applicant’s “threat of human rights action against us on Tuesday night” (July 21, 2015 was a Tuesday). As a result, I find that, whatever words she used, the applicant was clearly understood by the executive director, and hence by the respondent, to have claimed and threatened to enforce her human rights under the Code at least as of the night of July 21, 2015.

[109] The next question for me to consider is whether the applicant’s claim of, and threat to enforce, her human rights was related to the decision to terminate her employment…on the basis of Mr. Morris’ evidence, it was this very text from the applicant, in which she threatened to go directly to the board members to raise her concerns about how she perceived they were treating her and the executive director, which was the proverbial “final straw” that caused the executive director to make the final termination decision.

Basically it needs to be proven that, not only did a say I would make a complaint and that I felt my rights were being violated, but that they understand it as such, and that then I faced reprisal because of it. The result?

[111] As a result, I find that the applicant has established that her right to be free from reprisal has been violated by the respondent, in contravention of s. 8 of code on the basis of my finding that her threat of human rights action against the respondent was a factor in the final decision to terminate the applicant’s employment. In making this finding, I am cognizant of the well-established principle that a protected right under the Code need not be the only or even the principal reason for the adverse treatment, and that it is sufficient for the protected right to have contributed to, or played a role in, the adverse treatment: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 43 to 52.

The amount of money I am supposed to be compensated with will be just enough (literally) to pay back the debt I have from the loans I had to take to avoid being homeless after losing that job. So please don’t think I’m getting rich off this, or coming out ahead. As I’ve said from the start I was much more concerned with having this heard, and I do understand that a judgement saying I’m awarded a certain amount doesn’t mean I’ll actually ever see it, so who knows how that will go. So I guess it’s not actually all over, but I can’t tell you the relief I felt reading this today.

Finally, while it didn’t exactly play into the end result, since this is an issue of particular importance to me, I’ll end this off with this note;

[101] The third allegation of discrimination because of disability relates to the respondent’s decision to cut off her access to her e-mail account on July 23, 2015. There can be no dispute that the applicant’s medical condition was expressly relied upon by the executive director as stated in the July 23, 2015 e-mail as one of the reasons for cutting off access. I further find that the executive director’s fear that the applicant may become “destructive” in light of the decision to terminate her employment plays on stereotypes about persons with mental health disabilities.

I have clinical depression and anxiety with agoraphobia. I have been being treated for part of this for about 7 years, and the other about 4, and have been medicated most of this time. It does sometimes make it difficult for me to get out of bed, to go outside, to not want to crawl into a hole and die, BUT, it in no way makes me “destructive” and the fact that Brian Goldenberg explicitly said to Board Members that my “condition” meant I couldn’t be trusted is not only insulting but idiotic. I feel like most people will realize it, but I’ve still gotta say it.

If I could give anyone advice from any of this (and of course, this is not legal advice, it’s just what I wish I had done differently), it would be to disclose any disabilities early on in your job. Admittedly, not in the first 3 months; you can be fired for anything then, and the sad truth is that most people are not very accepting or tolerant of mental illness or disability, so I would not count on them being “good people” about it. However, despite the fact that Brian stated to the Board Members that “my condition” was a reason for not trusting me, I was unable to prove that I was fired based on discrimination due to a disability, primarily because I made other excuses for it before. Since I was initially told it was fine to work from home, I didn’t think agoraphobia would be a problem. If I could have days where I didn’t need to go out, I could still work. However, when I had those days, instead of saying that I needed to stay home because of anxiety or depression, I would say I was “sick”. While technically that was true, and while I did that because of the types of negative responses I had had in the past when I did disclose my mental illness, it eventually came back to bite me, as they could now claim that my disability didn’t prevent me from doing any work, and that it had never come up before. It’s sort of a catch 22 in my opinion, but that’s how it is, I suppose. I’ve been very lucky in that, the jobs i’ve had since then – at Tarragon Theatre and now with Canamedia’s Teens 101 – I’ve worked with incredibly kind, accepting and understanding people. And while I have still had many days where I couldn’t go to work, it was never because of what was waiting for me there. Those were and are both happy and (to use the popular term of the moment) “safe places”.

-E.

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