Canadian Tire, Is This A Penis Or A Mushroom?
In a recent decision released by the Human Rights Tribunal of Ontario (the “Tribunal”), an employer, Timothy J Tallon Sales Inc. (“TJTS”) which operates as a Canadian Tire store at 2129 St Clair Ave W in Toronto, has been ordered, jointly and severally with a personal Respondent, Willzen Bonagua, to pay the Applicant one year of lost wages and $20,000.00 in compensation for injury to dignity, feelings, and self-respect, with prejudgment interest accumulating since August of 2018.
The decision sends a clear message that the Tribunal will not be tolerant of unacceptable conduct in the workplace.
The Respondents originally defended this matter, denying the Applicant’s allegations, but were noted in default before the hearing of this matter after counsel for the Respondents stopped responding to the Applicant’s counsel and to the Tribunal. As such, the hearing went forward without the Respondents’ further participation.
The toxic working environment and reprisal
The Applicant, a 22 year-old single-mother, was employed as a Sales Floor Associate by TJTS. Mr. Bonagua was also an employee, operating as a Promotions Manager for the store, and responsible for co-ordinating the Applicant’s day-to-day routine. He was in a position of power relative to the Applicant, and he subjected the Applicant to unacceptable sexual comments and advances at work.
The Tribunal accepted the Applicant’s evidence that Mr. Bonugua subjected her to ogling, vulgar comments, lewd gestures, and inappropriate personal inquiries, including about her sex life, all while at work. On one occasion Mr. Bonagua asked the Applicant “You girls get itchy when you shave down there? I shaved and my balls are very itchy”.
The Respondents originally defended this action, even though some of Mr. Bonagua’s conduct towards the Applicant was in text messages. Mr. Bonagua was trying to “set up” the Applicant with another employee of the store she had yet to meet. Even after the Applicant said, in text, that she was not interested, Mr. Bonagua persisted. He responded, included a picture of the employee and, referring to the man’s beard, wrote “He can use it to tickle your butt hole.”
He also sent to the Applicant two emojis which, when used in concert, refer to sexual intercourse.
On another occasion, Mr. Bonagua sent to the Applicant a text message containing a cartoon depiction of male genitalia, wearing sunglasses and a large necklace. The Respondents in their filed response addressed this image by confirming that Mr. Bonagua “acknowledges that on one occasion he did circulate a cartoon depiction of a mushroom to a number of employees, including the Applicant. Unfortunately, it is the Applicant who may have mistakenly interpreted the image as a depiction of a penis.” Here is the image from the text message, so you can decide for yourself if this was a mushroom or a penis:
This response is frankly offensive. The image in question too closely resembles male anatomy to be misinterpreted. Further, a reverse image search leads one to a song available for purchase on Bandcamp called “Average Size Dick” by Drennon Davis, originally released on December 3, 2013.
Instead of admitting that Mr. Bonagua’s conduct was clearly inappropriate, the Respondents questioned the intelligence of the Applicant, her lawyer, and the Tribunal by suggesting that it was a mushroom. They belittled the harm done to the Applicant, and sought to protect an employee who was sexually harassing other, vulnerable employees. The position was, in our opinion, advanced in bad faith.
Further, the Respondents’ position was that the image was sent to “a number of employees”, leaving us concerned for the workplace, overall, if this conduct is quickly excused and swept under the rug.
The Tribunal also accepted that Mr. Bonagua asked the Applicant repeatedly to go on dates with him, which she consistently refused. When he asked her to go to a hotel and “what happens there, stays there”, the Applicant again refused the advances. He thereafter began treating her adversely, by reducing her hours, nitpicking her actions (where other employees were not nitpicked), refusing requests for time off to attend to childcare, and instructing her to refrain from speaking to other employees.
When the Applicant gathered the courage to speak to the General Manager of the store, she was told that nobody else had complained about Mr. Bonagua’s behaviour. To the best of her knowledge, TJTS did nothing to investigate or address her complaints. Instead, the focus turned to the Applicant’s alleged poor performance and, about two weeks later, her employment was terminated.
The outcome of the hearing
Following the one-day hearing, the Tribunal found that the Applicant’s rights to be free from sexual harassment in the workplace, and to be free from sexual solicitation made by a person in a position to confer, grant, or deny a benefit or advancement where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome, had been violated.
The Tribunal further found that Mr. Bonagua had subjected the Applicant to a poisoned work environment, and in doing so, violated her right to equal treatment with respect to employment without discrimination.
Because Mr. Bonagua was an employee of TJTS, his actions are deemed to be an act also of the corporation. As such, TJTS was also found to have violated her rights. The Tribunal also found that the Applicant faced reprisal from the Respondents, culminating in the termination of her employment.
In addition to the monetary relief awarded, the Tribunal also ordered that Mr. Bonagua, Timothy J. Tallon, and all members of the store’s management team were to complete the “Human Rights 101” e-learning module. This was ordered with a view of promoting future compliance with the Ontario Human Rights Code.
Given the Respondents’ refusal to accept that what the Applicant experienced was inappropriate and harmful, and the statement that other employees were recipients of the “Average Size Dick” image, this training is very appropriate.
The Applicant was a relatively short-term employee. She has been awarded a years’ pay and $20,000.00 for injury to dignity, feelings, and self-respect, plus interest from when she was terminated in 2018. Further, the Tribunal has turned its mind to preventing such further conduct by requiring participation in a training program. We believe that this outcome sends a clear message that inappropriate conduct in the workplace is harmful to those who experience it, and should be deterred.
Our firm represented the Applicant, and we are happy with this outcome, if the Respondents will pay. As noted, the Respondents were noted in default after they ceased responding to our office, or to the Tribunal. They are now seeking reconsideration of this decision; they say that their counsel changed his email address. Counsel never, however, gave us notice of the change, gave the Tribunal notice of the change, and we received no bounce-back when reaching out to be advised that the account had been closed. We are hopeful that the Tribunal will deny this unreasonable request, but it remains to be seen if the Respondents will pay what they have been ordered.