HUMAN RIGHTS TRIBUNAL OF ALBERTA

Citation: Mandziak v. Taste of Tuscany Ltd., 2017 AHRC 10

2017 AHRC 10 (CanLII)

BETWEEN:

Renee Mandziak
Complainant

- and -

Alberta Human Rights Commission (Director)

Director

- and -

Taste of Tuscany Ltd.

and
Medhat Salem

Respondents

DECISION ON REMEDY

Tribunal Chair: Kathryn Oviatt, B.A., LL.B.

Decision Date: May 17, 2017

File Number: N2013/05/0060

Office of the Chief of the Commission and Tribunals

Alberta Human Rights Commission
800-10405 Jasper Avenue
Edmonton, AB T5J 4R7
Phone 780-427-2951 Fax 780-422-3563
Website: www.albertahumanrights.ab.ca
Introduction

[1] This decision sets out the remedy award for the complainant, Renee Mandziak, following
my reasons on the merits in Mandziak v. Taste of Tuscany Ltd.1

[2] I previously found that the respondents Taste of Tuscany Ltd. and Medhat Salem
discriminated against Ms. Mandziak on the basis of her gender, through sexual harassment on

2017 AHRC 10 (CanLII)

three occasions and that the sexual harassment was a factor in the conclusion of Ms.
Mandziak’s employment. The parties made their submissions on remedy in writing.

[3] For the reasons that follow, I assess the amount of general damages for injury to Ms.
Mandziak’s dignity at $15,000. No other heads of damages are applicable in the circumstances.

Legislation

[4] Section 32 of the Alberta Human Rights Act, (the Act)2 sets out the powers of the tribunal
in fashioning a remedy:

Powers of tribunal
32(1) A human rights tribunal

(a) shall, if it finds that a complaint is without merit, order that the
complaint be dismissed, and

(b) may, if it finds that a complaint has merit in whole or in part, order
the person against whom the finding was made to do any or all of the
following:

(i) to cease the contravention complained of;

(ii) to refrain in the future from committing the same or any

similar contravention;

(iii) to make available to the person dealt with contrary to this

Act the rights, opportunities or privileges that person was
denied contrary to this Act;

(iv) to compensate the person dealt with contrary to this Act for
all or any part of any wages or income lost or expenses
incurred by reason of the contravention of this Act;

(v) to take any other action the tribunal considers proper to

place the person dealt with contrary to this Act in the
position the person would have been in but for the
contravention of this Act.

1
Mandziak v. Taste of Tuscany Ltd., 2017 AHRC 7
2
Alb erta Human Rights Act, R.S.A. 2000, c. A-25.5

2
The Parties’ Positions

The Director’s Position

[5] The Director requested an award of general damages for the complainant in an amount
between $15,000 and $17,000.

2017 AHRC 10 (CanLII)

[6] The Director referred to Arunachalam v. Best Buy Canada Ltd.,3 which was cited with
approval in the Alberta Court of Appeal decision of Walsh v. Mobil Oil Canada,4 for the
principles underlying damage assessments. These principles include considering: (1) the
objective seriousness of the conduct, and (2) the particular effect on the complainant who
experienced it.

[7] The Director referred to a number of human rights cases as precedents for the damage
award requested. First, the Director referred to the case of Vipond v. Ben Wicks Pub and
Bistro.5 In Vipond, the Ontario Human Rights Tribunal noted a range of damages awards in
sexual harassment cases ranging from $12,000 to $50,000. In discussing this range, the
Ontario Human Rights Tribunal observed at paragraph 55:

In the cases on the low end of the spectrum, the Tribunal generally found that
there were few incidents, the incidents were of a less serious nature, and/or the
incidents did not include physical touching. In cases on the high end of the
spectrum, the Tribunal generally found that there were multiple incidents, the
incidents were of a serious nature, there was a serious physical assault, and/or
there was a reprisal or a loss of employment related to the incidents.

[8] In Vipond, supra, the complainant was a server at a bar. On one occasion, the owner of
the bar made sexual advances to the complainant late at night while severely intoxicated. The
complainant in that case complained that she did not wish to work alone with the respondent
any longer. Instead of addressing the harassment, the respondent cut her hours significantly.
She ended up resigning. The impact on the complainant was significant, and she experienced
serious emotional distress. Ultimately, the Tribunal in that case awarded the complainant
$18,000 for general damages for injury to dignity.

[9] The Director also relied on the case of Granes v. 2389193 Ontario Inc.6 In Granes, the
complainant was a server in a restaurant. She was subjected to one very serious incident of
sexual harassment, which included sexual touching. The employer failed to properly investigate
or address the matter, resulting in a poisoned work environment for the complainant. As a
result, the complainant suffered significant emotional distress. The Tribunal awarded her with
$20,000 in general damages.

[10] Lastly, the Director referred to the Alberta case of Pham v. Vu’s Enterprises Ltd.,7 in
which a restaurant worker was subjected to sexual harassment by her employer. There were
two specific incidents, one where the respondent cornered the complainant and touched her
breast and buttocks and another where he gestured as though he would hug her but then did

3
Arunachalam v. Best Buy Canada Ltd., 2010 HRTO 1880, at paras 46, 49, 52-54 (Best Buy)
4
Walsh v. Mob il Oil Canada, 2013 ABCA 238, at para 60.
5
Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695.
6
Granes v. 2389193 Ontario Inc., 2016 HRTO 821.
7
Pham v. Vu’s Enterprises Ltd., 2016 AHRC 12.

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not. In addition, the respondent made repeated sexual comments and propositioned the
complainant to have sex with him on a few occasions. The complainant resigned as a result. My
colleague awarded the complainant $15,000 in general damages. The Director pointed out that
the Tribunal indicated in her decision that it would have been inclined to award a higher amount,
but that the Director and complainant had only requested $15,000.8

[11] The Director argued that the impact of the sexual harassment on the complainant was

2017 AHRC 10 (CanLII)

significant. She was a young woman who was upset and felt vulnerable. The Director further
submitted that the fact that the sexual harassment was a factor in the employment coming to an
end was a significant factor in the damages award. The Director acknowledged, on the other
hand, that the significant emotional distress that was present in Vipond, supra and Granes,
supra was absent in this case.

The Respondents’ Position

[12] The respondents initially argued that a damages award in this case should be no more
than $7,500. However, they subsequently changed counsel and changed their position on
damages that general damages should be no more than $5,000.

[13] The respondents referred to the three instances of sexual harassment in this case as
isolated incidents. They contended that there was no ongoing or frequent harassment. Further,
the respondents noted that there was no indication in the evidence of lasting psychological
impact.

[14] The respondents referred to the Alberta case of Noel v. 375850 Alberta Ltd.,9 in which
the Tribunal awarded $5,000 in general damages for sexual harassment. In that case, the
Tribunal noted that there was no additional evidence regarding emotional trauma or medical
reports indicating long term emotional effect on the complainant. 10

[15] Similarly, the respondents referred to Harvey v. WWDI Wireless Inc.11 in which the
Tribunal awarded $4,500 in general damages to a complainant for sexual harassment. In that
case, a store manager had harassed the complainant by deliberately coming into contact with
her on a number of occasions, placing her in a bear hug and telling her that she was all his, and
blowing a kiss towards her. After confronting the respondent about the harassment, her
employment was terminated and the respondent improperly indicated on her Record of
Employment that she had been fired for cause.

[16] In McLean v. Market Place Restaurant & Spock’s Bar,12 the Tribunal awarded a sexually
harassed waitress $1,500 in general damages. The respondent had hugged and kissed the
complainant, as well as grabbed her breast and patted her buttocks. The conduct was serious
enough that the complainant filed a police report.

8
Pham, supra at para 76.
9
Noel v. 375850 Alb erta Ltd., 2010 AHRC 10. This decision was later overturned on its merits at Court of Queen’s
Bench as the Court held that the respondent was not the complainant’s employer, which decision was upheld on
appeal. See 375850 Alb erta Ltd. v. Noel, 2011 ABQB 218, and 375850 Alb erta Ltd. v. Noel, 2012 ABCA 372.
10
Noel, supra at para 37.
11
Harvey v. WWDI Wireless Inc., 2009 AHRC 5.
12
McLean v. Market Place Restaurant & Spock’s Bar, 2004 AHRC 13.

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[17] The respondents referred to decisions from other jurisdictions as well, including Bennett
v. Hau’s Family Restaurant.13 In that case, the Nova Scotia Human Rights Board of Inquiry
ordered that the respondent restaurant pay the complainant $2,500 in general damages for
ongoing sexual harassment, which included physical touching of buttocks and breasts, and
verbal abuse.

[18] In B.S. v. Quenneville,14 the Yukon Human Rights Board awarded $5,000 each to two

2017 AHRC 10 (CanLII)

underage waitresses who had been subject to ongoing sexual harassment, which included both
physical touching and verbal harassment. The Tribunal noted the complainants’ particular
vulnerability in fashioning the award.

[19] Lastly, the respondents’ previous counsel cited Green v. Thomas,15 where the Canadian
Human Rights Tribunal awarded a sexually harassed complainant $5,000 in general damages
and $2,500 for reckless conduct. The conduct caused the complainant stress and anxiety,
requiring her to take several months off of work.

[20] The respondents argued that Ms. Mandziak in this case was not particularly vulnerable.
She was able to find full-time work not long after her employment ended. Similarly, the
respondents contended that there was no evidence of a lasting impact on the complainant.

[21] The respondents distinguished the Director’s cases. They noted that in Vipond, supra,
and in Granes, supra, the complainants were particularly vulnerable, and the harassment
resulted in lasting psychological and economic impacts for the complainants in those matters.
They further contended that the objective seriousness of both Vipond and Granes was higher
than in this case.

[22] Similarly, the respondents distinguished Pham, supra, as being objectively more serious,
including the cornering incident with both breast and buttocks touching as well as comments of
a very sexual nature.

Analysis

[23] The Act gives broad remedial authority to this tribunal to fashion a compensatory
remedy:

Powers of tribunal
32(1) A human rights tribunal

(b) may, if it finds that a complaint has merit in whole or in part,

order the person against whom the finding was made to do any or all of
the following:

13
Bennett v. Hau’s Family Restaurant, [2007] NSHRBID No. 1.
14
B.S. v. Quenneville, [2013] YHRBAD No. 3.
15
Green v. Thomas, 2016 CHRT 13, 2016 CarswellNat 2571.

5
 (v) to take any other action the tribunal considers proper to place the
person dealt with contrary to this Act in the position the person
would have been in but for the contravention of this Act.

[24] This broad remedial power includes the authority to award general damages.16 General
damages attempt to provide compensation for injuries to dignity. In Arunachalam, supra, the
Human Rights Tribunal of Ontario explained:17

2017 AHRC 10 (CanLII)

Monetary compensation for injury to dignity, feelings and self-respect recognizes
that the injury to a person who experiences discrimination is more than just
quantifiable financial losses, such as lost wages. The harm, for example, of being
discriminatorily denied a service, an employment opportunity, or housing is not
just the lost service, job or home but the harm of being treated with less dignity,
as less worthy of concern and respect because of personal characteristics, and
the consequent psychological effects.

[25] The leading Alberta decision on general damage awards for discrimination in Alberta is
Walsh v. Mobil Oil Canada, which cited from Best Buy.18 The Alberta Court of Appeal in Walsh
confirmed that the analysis for determining the quantum of damages in human rights
proceedings is two-fold:19

(1) characterize the objective seriousness of the conduct;

(2) recognize the particular effect on the complainant.

[26] The respondents’ case of Bennett, supra, citing Torres v. Royalty Kitchenware Ltd., also
outlines an appropriate framework that takes into account a number of factors:20

1) the nature of the sexual harassment (verbal or physical)

2) the degree of aggressiveness and physical contact
3) the ongoing nature (duration) of the harassment
4) the frequency of the harassment
5) the age of the victim
6) the vulnerability of the victim
7) the psychological impact of the harassment on the victim

[27] The specific factors in Bennett, supra, assist in determining the broader two-fold analysis
dictated by the Alberta Court of Appeal in Walsh, supra.

[28] In the present case, there were three instances of sexual harassment over a four-month
period of employment. These included:

(1) touching of the buttocks;

(2) an attempted kiss; and

16
Berry v. Farm Meats Canada Ltd., 2000 ABQB 682, at paras 14-23.
17
Arunachalam , supra, at para 46.
18
Walsh v. Mob il Oil Canada, 2013 ABCA 238.
19
Walsh, supra, at para 60.
20
Bennett, supra, at para 119, citing Torres v. Royalty Kitchenware Ltd. (1982), 3 C.H.R.R. D/858.

6
 (3) a prolonged hug, that pinned Ms. Mandziak’s arms to her against Mr. Salem’s body,
and touching of the upper buttocks and lower back.

[29] In addition, the sexual harassment was a factor in the employment coming to an end.

[30] Sexual harassment is a serious form of discrimination. In Janzen v. Platy Enterprises

Ltd., the Supreme Court of Canada described the nature of sexual harassment:21

2017 AHRC 10 (CanLII)

… Sexual harassment is a demeaning practice, one that constitutes a profound
affront to the dignity of the employees forced to endure it. … [S]exual harassment
in the workplace attacks the dignity and self-respect of the victim both as an
employee and as a human being.

[31] Ms. Mandziak described her reaction to the sexual harassment much in these terms.
When describing her reaction to the second incident of sexual harassment, Ms. Mandziak stated
that she felt shocked and surprised by the conduct, and that she felt that she had worked hard
to build a professional relationship. However, she stated that the sexual harassment made her
feel that Mr. Salem did not see her for the quality of her work but rather “as something else.” In
short, it was an attack on her dignity.

[32] In this case, there were repeated incidents of sexual harassment in a relatively short
period of time, including two incidents of physical touching. The last incident, the prolonged hug,
was the most serious of the three incidents. In that incident, Mr. Salem pinned down Ms.
Mandziak’s arms so that she could not move or resist and pressed her against his body. At the
time, she was 23 years old while he was approximately 50 years old. He was larger in stature
than she was; she stated that her head was against his chest during this incident. Ms. Mandziak
testified that she was very afraid during this incident, not knowing what he would do and feeling
helpless. I agree that such an interaction is objectively serious. Her reaction was reasonable in
the circumstances. The incident was scary enough that it led to the end of Ms. Mandziak’s
employment, either through her resignation because she felt that she could not continue to work
alone with Mr. Salem, or through termination because she refused to work alone with Mr.
Salem.

[33] The most similar case to the present one, in terms of objective seriousness of the
conduct, is the Pham, supra, case. In Pham, there were two incidents of physical touching or
attempted physical touching, compared to three in this case. The first in Pham was the most
serious, where the respondent cornered the complainant in a storage room and touched her
breasts and buttocks. That incident was similar to the third incident of physical touching in the
present case. Mr. Salem pinned Ms. Mandziak’s arms against her and prevented her from
leaving, similar to how the respondent in Pham had cornered the complainant in that case. Mr.
Salem touched Ms. Mandziak in a sexual manner while she was pressed against his body.

[34] Likewise, in Pham, supra, there was also an attempt at touching, where the respondent
in Pham attempted to hug the complainant, but she avoided it. This was similar to the second
incident of sexual harassment in this case, the attempted kiss.

[35] Factual differences between Pham, supra, and the present case include that in this case
there was an additional incident of physical touching, where Mr. Salem cupped Ms. Mandziak’s
buttock behind the bar of the restaurant. However, in Pham, the respondent made repeated

21
Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 SCR 1252, at p 1284

7
suggestive comments about the complainant’s clothing and wanting to have sexual relations
with her. There were some comments in this case, but they were not as serious as those in
Pham.

[36] Overall, in terms of objective seriousness, I find that the conduct here was similar in
objective seriousness to the facts of Pham, supra, due to the additional incident of physical
touching, the similarities of the other two incidents, and that the sexual harassment led to the

2017 AHRC 10 (CanLII)

end of both complainants’ employment. This was a serious case of sexual harassment on any
objective measurement.

[37] Fortunately, Ms. Mandziak did not testify to ongoing depression, like what occurred in
the Director’s cases of Vipond, supra, and Granes, supra. Similarly and fortunately, Ms.
Mandziak was not as vulnerable as the complainant in Pham, supra, who was a widow with two
small children. Ms. Mandziak was able to obtain alternative employment relatively quickly.

[38] Nevertheless, there was clearly still an impact on Ms. Mandziak. She testified that after
the second incident of sexual harassment, she slept for a prolonged period of time because she
was so upset and missed a shift at work. She likewise testified about feeling shocked and
surprised, and not being valued for the quality of her work. At the conclusion of her testimony,
Ms. Mandziak stated that overall her employment at Taste of Tuscany was a bad experience for
her, and that she felt jaded. She noted that she still has not worked for a small company again
and that she remains uncomfortable working with older males. She had enjoyed her work at
Taste of Tuscany, and that enjoyment changed as a result of Mr. Salem’s conduct.

[39] The Court of Appeal in Walsh, supra, warned against too low of damage awards in
human rights cases:22

Historically, awards for general damages in the human rights context have been
low, arguably nominal. Despite the absence of a cap on awards for mental
distress in Alberta’s legislation, Alberta’s human rights tribunals have sometimes
used caps established in other provinces to set awards.

[40] Following the Court of Queen’s Bench decision in Walsh,23 this Tribunal considered the
range of damage awards for human rights violations across the country in its 2012 decision
Simpson v. Oil City Hospitality Inc.24 The Tribunal concluded that Alberta had tended to award
lower general damages than most other Canadian jurisdictions, without reason: 25

Within Alberta there appears to be considerable variation in the awards of

general damages. Unlike in other jurisdictions where there are legislated ceilings
for specific types of general damage awards, in Alberta there is no such
legislated cap. Yet general damages in Alberta dealing with specific types of
contraventions and similar types of distress and injury, appear somewhat lower
than in other jurisdictions where there are legislated caps. While any remedy
must be awarded based on its individual merits, there appears to be no obvious
reason why general damage awards in Alberta should be lower than they are in
other jurisdictions.

22
Walsh, supra, at para 61.
23
Walsh v. Mob il Oil Canada, 2012 ABQB 527.
24
Simpson v. Oil City Hospitality Inc., 2012 AHRC 8.
25
Simpson, supra, at para 66.

8
[41] Simpson, supra, was a case of racial discrimination and did not have similar facts to
those in this case. Nevertheless, the analysis on the approach to general damages is
applicable. In particular, the tribunal noted one purpose of general damage awards, to promote
respect for human rights protections:26

Recent decisions have also emphasized other factors relevant to the assessment

2017 AHRC 10 (CanLII)

of general damages. There is clear authority that an award of damages must be
high enough to encourage respect for the legislative decision that certain kinds of
discrimination are unacceptable in our society and should not be so low as to
amount to a mere ‘license fee’ for continued discrimination.

[42] The cases presented by the respondents represent awards that are so low as to amount
to a “license fee” for discrimination. Further, all of the respondents’ cases are dated, and
awarded prior to Walsh, supra. For this reason, the award amounts in the respondents’ cases
are of limited assistance.

[43] In looking at the overall circumstances, including the objective seriousness of the case
and the particular impact on Ms. Mandziak, $15,000 is an appropriate award. This is the same
amount that was awarded in Pham, supra, a case that I have found to be very similar in its
objective seriousness. The particular effect on the complainant is less in this case, however,
and in making the award the same as that in Pham, I am mindful of the Tribunal’s comments on
its award:27

… While I may have been inclined to consider a greater amount given my

findings, this is the amount requested by the Director and the complainant.

[44] Accordingly, it is clear that the particular effect on the complainant and the overall
seriousness of the case in Pham, supra, likely would have resulted in a higher amount than
$15,000, had the parties made submissions to that effect. Accordingly, given that the objective
seriousness of this case is similar to that in Pham, but that the particular effect on the
complainant was less than in that case, $15,000 is appropriate here. This amount reflects the
objective seriousness of what occurred in this matter.

Conclusion and Order

[45] The respondents shall pay to Ms. Mandziak general damages in the amount of $15,000.
This award shall be subject to interest pursuant to the Judgment Interest Act.28

May 17, 2017 Kathryn Oviatt, B.A., LL.B.

Tribunal Chair

26
Simpson, supra, at para 63.
27
Pham, supra, at para 76.
28
Judgment Interest Act, J-1 R.S.A. 2000

9
Parties

Renee Mandziak, Complainant

on her own behalf

Tania Sarkar, Legal Counsel

2017 AHRC 10 (CanLII)

for the Alberta Human Rights Commission (Director)

Gabriel Joshe-Arnal, Legal Counsel

Neuman Thompson
for the Respondents Taste of Tuscany Ltd. and Medhat Salem

10