Human Rights Office

Human Rights Office
Human Rights Office

Shelby Anne Opheim v. Gagan Gill and Gillco Inc., 2016 CHRT12 (CanLII)

Summary

Shelby Anne Opheim worked for the Respondents between May and June 2011.  During this time Ms. Opheim alleged she was subjected to a series of harassing bahaviours from Mr. Gill as a result of her sex and age, including the following unwelcome sexual conduct: a sexualized and demeaning work request, sexual comments, sexual requests and sexual touching.

Ms. Opheim was 18 years old when she began working for the Respondents. She testified that within the first two weeks of her employment, Mr. Gill began to make sexually explicit comments to her. Soon thereafter, Mr. Gill was grabbing and slapping her buttocks, attempting to grab her by the hips and pull her into his lap. She asked him to stop on each occasion, but he only laughed at her. This unwanted sexual touching continued and accelerated in severity, as Mr. Gill began forcing his hands up Ms. Opheim’s skirt and grabbing at her breasts.

Of particular note in the analysis of the case is that part of the claim was for the clothing that was requested of Ms. Opheim to wear while at work, she was requested to wear a skirt and heels and the Tribunal found that this constituted “creating a sexualized work environment”.

Questions to be Determined and Findings

  1. Is there a prima facie case of sexual harassment? (YES)
  2. Is there a prima facie case of discrimination based on sex? (YES)
  3. Is there a prima facie case of discrimination based on age? (NO)

Analysis

The CHRT deemed that the complaint had made both a prima facie case of sexual harassment and discrimination based on age, but not on discrimination based on age. In the analysis the CHRT stated that the complainant gave clear and specific evidence consistent with the allegations in her complaint of sexual conduct to which she was exposed – both verbal and physical.

The harassment involved both verbal and physical, and in the physical aspects of the complaint, it is alleged that the respondent grabbed the complainant’s breasts and buttocks and forced a hand up the complaint’s skirt – a severe enough incident to constitute sexual harassment on a sole occurrence.

Since the owner of the Mobilicity was also the offender and the complainant indicated that she had asked him to stop, this constitutes notice to the employer.  Furthermore, the Respondent opted not to call his wife, Jasmin Gill, to testify and dispute that Ms. Opheim made a complainant regarding the sexual harassment to her.  This weighed in the favour of the complainant.

Further, because the harasser is also the sole proprietor of the corporate Respondent, in accordance with s.65 of the CHRA both are deemed responsible.

Citing Robichaud v. Brennan (1984) and Janzen v. Platy, supra where the courts held that sexual harassment constitutes discrimination based on sex, the Tribunal found in favour of the complainant.

The Tribunal accepted Ms. Opheim’s evidence as it was consistent, given in a forthright and straightforward manner. Further, the Tribunal had concerns about the Respondents’ failure to call Mr. Gill’s wife, the only alleged witness in the matter, and their failure to produce the videotapes that they indicated would exonerate them in relation to the allegations.

In accordance with sections 7(b) and 14 of the Canadian Human Rights Act (“the Act”) the Tribunal concluded that the Respondents committed a discriminatory practice in sexually harassing Ms. Opheim and that this also constituted adverse differentiation in the course of her employment based on the prohibited ground of sex. The Tribunal dismissed the Complainant’s allegation of discrimination based on age, due to lack of evidence.

The Tribunal found that although the complainant’s age was mentioned in conversation that that in and of itself does not constitute discrimination based on age and there was no other evidence presented to support such a claim and therefore the court’s dismissed this claim.

Remedy

  1. $1,788 as compensation for lost wages;
  2. $7,500 as compensation for pain and suffering;
  3. $12,000 as compensation for willful and reckless conduct.