“If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet,” she wrote. The movement started in response to the Harvey Weinstein scandal and its ensuing fall out.
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;
 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;
 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;
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,
- Was in a position of power above me
- Considerably older than me
- Married (and recently, too)
- 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;
 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;
 …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;
 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.
 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;
 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;
 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?
 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.
 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…
 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.
 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?
 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;
 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”.
It’s been a year and 5 months in the making, and it’s still not over yet. But today, I finally finished my hearing for my Human Rights action against Theatre 20. While I may have to wait up to 3 months for a decision, I’ve decided, to hell with it, whether I win or lose, I want to get my side of the story out there now. It’s been exhausting and so why wait?
Before I get started, I’d like to point a few things out – namely, because people in the hearing liked to talk as though they were victims, and I had done some horrible injustice to them by insisting they respect my rights. So for them, or anyone who may think like them who wants to try and say I’m doing something wrong here, I’d like to point out;
“Like the courts, the hearings and decisions of the HRTO are public” – HRTO FAQ’s
In fact, at one point I was startled to have a stranger walk in and sit down at the back to watch; he has his own hearing coming up, and wanted to get a feel for it. So yes, I am allowed to say all of this, and yes, everything I am saying is true and based off of sworn statements and/or written evidence. Which means, when two of the Respondents decided to throw out there during testimony that they felt I had “defamed them”, they were wrong. Mainly, because the remarks were true, but also because my following the legal procedures to file a complaint of sexual harassment and discrimination is NOT derogatory, but rather my right as a Canadian, and a human being. So here’s a definition, for reference;
Canadian Defamation Law. … The more modern definition (of defamation) is words tending to lower the plaintiff in the estimation of right-thinking members of society generally. The common law protects every person from harm to their reputation by false and derogatory remarks about their person, known as defamation. – CanLaw Inc.
Since this is a long and relatively complicated thing to explain, I think I’ll break it up into a few posts. I’ll start with the most important one, the thing that after the Hearing, after hearing witness testimonies, I am the most upset about;
I met Brian not long after he took on the position of Executive Director at Theatre 20. It was a job I had applied to as well, and so when I heard he got it I reached out with congratulations, hoping he would keep me in mind if another position opened up. Turns out that several Board Members who were at my interview quite liked me, and encouraged Brian to reach out once he got settled in. So in early 2015, we met up and discussed how I could be involved in the company.
I started off part-time, 20 hours a week, as Brian was still trying to sort out some issues with the management crossover. But by April, I was a full-time employee, and it wasn’t long until he gave me the title of Producer. As any theatre producer knows, the job is varied, and I did everything from web design, research, newsletters, venue coordination, social media, fundraising – anything that needed doing. As he was still settling into his role, I wasn’t given a ton of long-term tasks, but I was constantly assured I would have a contract “this week” and on more than one occasion he referenced the fact that he expected us to both be there for at least 5 years; I considered this a career, moved out of my house in Brampton so I could better manage the commute to work (anxiety & agoraphobia do not mix with long commutes), and that eventually lead to the end of my engagement. While he claimed in the Response that I didn’t care enough about Theatre 20, the fact is I changed everything else in my life to accommodate it. I considered myself in for the long haul.
I won’t go into the details of the issues I had with the day-to-day work with Brian, because frankly, I considered them not much more than an annoyance at the time. He was very slow to approve things, yet I wasn’t allowed to do anything on my own. While this and other issues were frustrating, I had no idea at the time that I was being blamed for anything not being done, and I trusted that he was doing his best, being honest, and that, when it came to the complaints I made, was “on my side”. I have since learned I was very wrong.
I’ll go into the specific complaints in another blog, because otherwise this will be far too long. For now, all you need to know is that I made complaints about 2 main issues;
- Sexual Harassment: Board Member Chris Weber had been overly flirtatious, and in a text message told me that I was “hot” and that he wanted to see me in a “shorter dress” – I told Brian about this and my fear that, if I rejected or complained to Weber about these things, there would be a reprisal. I didn’t want things to escalate in any way – no more flirting, but also no angry board member to deal with. I told Brian I didn’t want to later be accused of “not saying anything” (something you hear about women in harassment cases ALL the time) at the time. We didn’t have any particular policies in place, but after the conversation I felt confident that the issue would be resolved, or, at the very least, that it wouldn’t come back to bite me later. Again, I thought he was on my side.
- Discrimination & Harassment: On many, MANY occasions (we’re talking at least a dozen) I expressed to Brian that I felt the behaviour of certain Board Members – primarily Chris Skillen – during meetings was inappropriate. There was yelling and insulting remarks (mostly towards Brian) and I felt particularly uncomfortable with the way I was spoken about (rather than to), and some comments they had made about using Conservatory members (a youth mentorship program) as “promo girls”, as well as insisting on hugs and other comments made (again, details in another post), had pushed to me request, and eventually insist, that Brian speak to them about their behaviour. I offered from the start to do it myself, but he wanted to be the one to deal with them, so I let it be. But every time a new issue (or, the same issue) would rise again, I’d say “I need you to talk to them about this”. Eventually, I hit a point where I said, “if you don’t talk to them and stop this, I will. And if that doesn’t work I’ll have to make a formal complaint” (again, whether Employment Standards or HRTO, I knew this was inappropriate for the workplace).
Much of this came to a head in July of 2015, when I received what I found to be an especially rude and unprofessional email from Chris Weber. To top it off, he had cc’d a number of people who did not need to be involved in the conversation, something I felt he’d done purposefully in an attempt to embarrass me. I had had enough. I told Brian to say something, found I wasn’t getting a response, and so replied myself – only to Chris and Brian – with the following;
Apparently, this, along with the text I sent at the same time to Brian, saying that I would file a formal complaint if this email didn’t solve things, was “when the penny dropped” for Brian, and he decided I needed to be terminated (this is from sworn testimony given by Dave Morris, Chair of the Board). Dave added, while giving his testimony, that he believed my saying that I would speak to Board Members directly was legitimate cause for termination; it would be breaking the chain of command.
Let’s see what the code says about this;
“Section 8 of the Code protects people from reprisal or threats of reprisal. A reprisal is an action, or threat, that is intended as retaliation for claiming or enforcing a right under the Code.
People with psychosocial disabilities may try to enforce their Code rights by filing a grievance against an employer, making an application at the HRTO, or making an internal discrimination complaint to a service provider, housing provider, or to their employer. However, there is no strict requirement that someone who alleges reprisal must have already made an official complaint or application under the Code. Also, to claim reprisal, a person does not have to show that their rights were actually infringed.
The following will establish that someone experienced reprisal based on a Code ground:
– an action was taken against, or a threat was made to, the claimant
– the alleged action or threat was related to the claimant having claimed, or trying to enforce a Code right, and
– there was an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right. – OHRC
Dave Morris was the only Respondent at the Hearing to admit that Brian had told him about my intention to follow through with my complaint, however, it wasn’t long until Brian made this known to everyone on the Board.
An email was submitted as evidence and I saw it for the first time this November; this was the first thing to make me change from feeling bitter that Brian hadn’t done more to support me (but thinking it wasn’t his choice) to realizing that he had been lying to me, as well as Board Members, and that he was actually the key person behind my unethical termination.
To me, he was saying:
To me, he was claiming to be caring and understanding. To the rest of the Board, he was saying that we hadn’t spoken in 2 days and that I couldn’t be trusted due to my “condition”.
In the July 23 email Brian lists off 3 reasons that he feels I need to be blocked from all accounts (rather than just spoken to) before my imminent termination, they are;
“a) the knowledge of her condition” – here he openly admits, in writing, to the entire Board of Directors, that my disclosed disability, my medical condition, is a cause for his actions.
“b) her threat of human rights action against us on Tuesday night” – he even bolds this, it’s glaring. I am illegally facing reprisal for my request that my human rights be enforced. And if any Board Members were unaware of my complaints before (I do believe, after testimony, that Brian did not disclose this to them, despite my requests, but I’m not sure) they certainly knew from this email.
“c) the fact that I hadn’t heard from her in 2 days and had no idea how vindictive she would be” – this one actually made me laugh. For one, I’m not a vindictive person, and he had no reason to believe I was one, but more importantly, this is a lie. He had spoken to me less than 24 hours before (in that above text) when I disclosed my disability, a conversation he is even referencing here.
There are also a couple key issues with this, firstly, much of it is untrue;
I had told him the day before that I was not well and unable to come in due to anxiety – This text is posted above. While I was later in contacting him that day than usual, I did get in touch, and I had only delayed because I had been up all night in a depressed ball of anxiety – I slept in. I did not attend work that day due to illness.
Chris Morelli did NOT call Brian Goldenberg. Not only did he testify to his fact, under oath, but he managed to check his phone records that day; no calls in or out from Brian’s number, or the Theatre 20 office. Chris further stated that he, a) was not in regular contact with me at that time, and would not have called in regards to my whereabouts, b) I was no longer living with him, he would not have known about my whereabouts or activities, c) he had only twice called Brian, both times on my behalf, and months before this incident. On both occasions it was when I was living with him and because I was sick; I requested he called and he did so.
Guess Brian wasn’t on my side.
The majority of the Respondent’s case relied on their trying to prove that I was not dismissed because of a disability, or as reprisal (they claimed to not know about either, despite evidence to the contrary), but because of poor work performance. In their response they claimed I wouldn’t show up for work, would make mistakes such as spelling and grammatical errors in emails and other writing, and that I was too slow in getting things such as LOIs done. While I requested documents to support this, I never got any; that’s because those things aren’t true. But while I initially assumed they were making it all up, I now believe that Brian told certain Board Members that those were issues – three of them testified to such. Brian, however, never said a negative word to me, and again, no evidence was supported to prove these claims. It all went on Brian’s word.
So what did he have to say about it?
Well you might think that in a case such as this, where 90% of the time the only person I interacted with was Brian, where all the “evidence” provided by the Respondent was based off of “Brian told me..”, that Brian Goldenberg would be their star witness. No such luck. He didn’t attend the hearing, they didn’t bother to summon him, and so a lot of it came down to hearsay. That and my side.
That may make it sound like a victory for me, but honestly I’m disappointed he didn’t attend. I was looking forward to asking him questions under oath, as I truly believed, before this hearing, that he was just afraid to speak up. He has a family, he wouldn’t want to risk his job – I couldn’t respect that in an employer, but I did understand. But now he hasn’t worked for the company for about 6 months (they ran out of money in February, apparently), so I thought, what’s stopping him? However after hearing other’s testify I realized how often he lied to me, and how, at least on several key occasions as I’ve outlined here, how often he lied to his superiors. So would he have told the truth at the hearing? Who knows. But regardless I felt it as time for me to say something here.
More to come.
NOTE: As a side note, while I don’t believe anything I have said implies this, I do want to make something clear; my complaint was against Theatre 20 and in particular 3 men I named as Respondents; Chris Skillen, Chris Weber, and Brian Goldenberg. I have met other members of the company – Board Members, Founding Artists, Volunteers etc. – who have been completely lovely people, and I do not have any issue with them, nor do I think the issues outlined here should be attributed to them in any way. A few bad apples don’t spoil the whole bunch, though they did spoil over a year and a half of my life.