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Horner v. Peelle Company Ltd., 2014 HRTO 1211 (CanLII)  

Summary:

In this case the respondent, Christine Horner, worked for Peelle Company Ltd. from 2001 until she resigned in 2012. Ms. Horner was the Financial Controller for Peelle Company Ltd. Hank Peelle (the respondent’s owner), is the sole owner, chief executive officer and president of the respondent. After almost a decade of working together, Mr. Peelle developed romantic feelings for Ms. Horner. These feelings developed throughout the course of their working relationship. During this time Mr. Peelle and Ms. Horner discovered they both had a passion for running. During the time that Mr. Peelle and Ms. Horner worked together their social interactions increased. Leading up to the “attempted kiss” on February 28, 2011, Mr. Horner engaged in what the tribunal described as “secret dating” of Ms. Horner. During this time Mr. Peelle would take Ms. Horner out to lunch and other social functions, always billing the company. On February 28, 2011 Mr. Peelle and Ms. Horner attended the same spin class and after this class Mr. Peelle leaned towards Ms. Horner and asked if he could kiss her. At this point, Ms. Horner indicated that she did not have romantic feelings for Mr. Peelle and that she was in a long-term relationship and that Mr. Peelle was married (at this time, Mr. Peelle and his wife were separated). After Ms. Horner indicated she wasn’t interested in a romantic relationship with Mr. Peelle, they both agreed that the relationship at work did not need to change and that they would keep everything as it was before. After the attempted kiss, Mr. Peelle felt like he had made a big mistake and sent an email to Ms. Horner apologizing and with a copy of the company’s harassment and discrimination policy. He encouraged Ms. Horner to contact legal counsel for the company to discuss the matter further. Ms. Horner did not move forward with a formal process at this time under the auspice that the relationship would remain the same despite the attempted kiss. Unfortunately the relationship between Mr. Peelle and Ms. Horner deteriorated after this point. The in-person conversations diminished and Mr. Peelle began treating Ms. Horner in a colder manner. On October 20th 2011, Mr. Peelle and Ms. Horner met for their quarterly one-on-one meeting. In this meeting Mr. Peelle read notes to Ms. Horner and effectively suggested that Ms. Horner’s conversations with him were in effect “leading him on”. He suggested that although she had indicated she was not interested in him, her actions and conversations conveyed the opposite. On October 24th, 2011, Ms. Horner first tried to resign. After speaking with Mr. Peelle who told her that the relationship would get better and return to what it was like before the attempted kiss, Ms. Horner withdrew her resignation. Unfortunately after this initial attempt at resignation, the situation did not get better and in fact worsened. In March of 2012 Ms. Horner officially resigned from her role with the Peelle Company. Ms. Horner stated that the environment was unworkable.

Question to be Determined:

    1. Is the respondent’s owner’s request for a kiss a sexual solicitation or advance within the meaning of s. 7(3)(a) of the Code?
    2. Was he in a position to confer, grant or deny a benefit or advancement to the applicant?
    3. Did the respondent’s owner know that his request for a kiss would be unwelcome or ought he reasonably to have known that?
    4. Does his changed behaviour after the rejected kiss incident constitute reprisal or a threat of reprisal pursuant to s. 7(3)(b) of the Code?
    5. Does the series of events that occurred constitute sexual harassment pursuant to s. 7(2) of the Code?

Findings:

    1. Is the respondent’s owner’s request for a kiss a sexual solicitation or advance within the meaning of s. 7(3)(a) of the Code?
    YES
    2. Was he in a position to confer, grant or deny a benefit or advancement to the applicant?
    YES
    3. Did the respondent’s owner know that his request for a kiss would be unwelcome or ought he reasonably to have known that?
    YES
    4. Does his changed behaviour after the rejected kiss incident constitute reprisal or a threat of reprisal pursuant to s. 7(3)(b) of the Code?
    YES
    5. Does the series of events that occurred constitute sexual harassment pursuant to s. 7(2) of the Code?
    NO

Reasoning:

1.    Yes, in this case it was determined that the respondent’s owner’s request for a kiss was a sexual solicitation or advance within the meaning of the Code. In this case Mr. Peelle did not dispute the notion that his actions were a sexual solicitation or advance.

2.    In this case Mr. Peelle was in a position to confer, grant or deny a benefit or advancement to Ms. Horner. “The respondent’s owner was the person who decided whether or not to give the applicant her pay raise; on June 20, 2011, he signed the addendum to her employment contract giving her a signing bonus every year for three years” (para 149).

3.    In this case Ms. Horner stated that Mr. Peelle ought reasonably to have known that a kiss would be unwelcomed. Although it was decided that Mr. Peelle genuinely believed that Ms. Horner was romantically interested in him, the judge ruled that even an “honest mistaken belief” does not absolve Mr. Peelle of guilt.

But I do not agree with the respondent’s assertion that he is entitled to an honest but mistaken belief. The phrase “ought reasonably to know that it is unwelcome” means that an honest but mistaken belief will not be sufficient to escape liability under s. 7(3)(a) of the Code unless the mistaken belief is a reasonable one. In all the circumstances here, I am satisfied that the belief of the respondent’s owner in this instance was not reasonable (para 153).

4.    Yes, Mr. Peelle’s changed behaviour after the rejected kiss incident constitutes reprisal or threat of reprisal pursuant to s. 7(3)(b) of the Code.

    In the circumstances here, the evidence establishes that the respondent’s owner was explicitly told by the applicant that his changed behaviour after the rejected sexual advance was unwelcome. After the meeting of May 31, 2011, he essentially acknowledged the reasonableness of the applicant’s perception by promising things would return to the way they were. But they did not. He acknowledges they did not. He wanted to change their interactions because he needed to do that to get over the applicant’s rejection. He tried to make things better by changing her job description but he does not deny that otherwise he continued with the same behaviours the applicant complained about on May 31, 2011, and it is undisputed there was never a return to the kinds of business activities that the applicant was involved in between September, 2010 and February 28, 2011 (para 189).

    That behaviour is the essence of recklessness with respect to intent. He was conscious of what he was doing, knowledgeable of the negative impact he was having on the applicant and he persisted in his behaviour (para 190).

    In addition, attention was paid to the meeting on October 20, 2011 and Mr. Peelle’s “blaming of Ms. Horner for “leading him on”.

    The issue here is not the sad end of the friendship between the applicant and the respondent’s owner; the issue is whether or not his behaviour in blaming her for his discomfort, falsely accusing her of inappropriate behaviour, and telling her not to say anything to him of a personal nature at all can reasonably be said to be a negative action or a threat of negative action. In the context that existed here – a 12-year exemplary employment record and a long-standing friendship – I am satisfied that it can. As the applicant put it, his instructions forced her to put a filter on. She was constantly on edge about what she could and could not say or do; she resigned from the Board of Trade to avoid being in a situation he might misconstrue as being personal (para 184).

5.    In this case it was decided that the series of events that occurred did not constitute sexual harassment pursuant to s. 7(2) of the Code.  In particular, attention was given to the question of whether or not the harassment was related to the applicant’s sex or gender and the frequency of these actions.

    The only behaviour complained of that seems to me to be arguably related to gender is with respect to some of the comments made by the respondent’s owner during the meeting of October 20, 2011. As stated above, the way that the respondent’s owner blames the applicant for his own inability to get over her rejection is in keeping with the blame-the-victim mentality that is historically associated with women. It is a negative stereotype of women that they are temptresses and responsible for the inappropriate sexual behaviour of others (para 201).

    That being said, the evidence does not establish that the respondent’s owner knew or ought to have known that particular aspect of his behaviour was unwelcome or that he ought reasonably to have known it would be. There was no hint that any such behaviour     occurred prior to October 20, 2011; indeed, the applicant’s evidence was that she was shocked by it. No evidence was led that similar remarks were made after October 20, 2011. The respondent owner’s e-mail to his marriage counsellor makes it clear he did not anticipate the applicant’s reaction at all and that he did not understand it (para 202).

    In conclusion, it was stated that “in all circumstances I am not prepared to find that the single incident where a remark was made blaming the applicant for the respondent’s owner’s inability to get past her sexual rejection constitutes a course of conduct for the     purposes of s. 7(2) of the Code” (para 207).

Remedy:

a. The respondent shall pay to the applicant $5,000 for injury to dignity, feelings and self-respect related to the respondent’s infringement of s. 7(3)(a) of the Code and pre-    judgement interest on this amount for the period between February 28, 2011, and the     date of this Decision pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

b. The respondent shall also pay to the applicant $23,000 for injury to dignity, feelings and self-respect related to the respondent’s infringement of s. 7(3)(b) of the Code and pre-judgement interest on this amount for the period between November 1, 2011, and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.

c. The respondent shall also pay to the applicant $50,219 for loss of earnings arising from the respondent’s infringement of the Code less the applicable statutory deductions plus pre-judgement interest on this amount for the period between November 22, 2012,     and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.

 d. The respondent shall also pay to the applicant post-judgment interest on the above awarded amounts from the date of this Decision calculated pursuant to s. 129 of the Courts of Justice Act.