Date Issued: June 13, 2011 File: 7389 Indexed as: Kang v. Hill and another (No.

2), 2011 BCHRT 154 IN THE MATTER OF THE HUMAN RIGHTS CODE R.S.B.C. 1996, c. 210 (as amended) AND IN THE MATTER of a complaint before the British Columbia Human Rights Tribunal B E T W E E N: Fei Kang COMPLAINANT A N D: Scott Hill and From Scott to Finish Custom Kitchens RESPONDENTS

REASONS FOR DECISION

Tribunal Member: On her Own Behalf: On Behalf of the Respondents: Dates of Hearing:

Murray Geiger-Adams Fei Kang Scott Hill January 5-6, 2011

Introduction [1] Fei Kang filed a complaint in which she alleged that Scott Hill and From Scott to

Finish Custom Kitchens (the company; collectively, the respondents) discriminated against her regarding her employment because of her sex (sexual harassment), contrary to s. 13 of the Human Rights Code. The respondents deny that they discriminated. [2] I conducted a full oral hearing on the merits of the complaint. No party asked for

an order excluding witnesses until they gave their evidence, so all were present while Ms. Kang, Melissa Hill (Mr. Hills spouse), and Mr. Hill testified, in that order, all under a solemn promise to tell the truth. [3] This is my decision on whether or not the complaint is justified, and, if it is, what

remedies are appropriate. Facts [4] In the following account, I discuss the evidence of the witnesses and the

documentary evidence, identify any conflicts in that evidence, give my reasons for accepting or rejecting the evidence, and state the facts I find. [5] The complaint and response filed by the parties sometimes contain different or

more detailed accounts of the events in issue than their oral evidence. I made clear to the parties at the opening of the hearing that, though the Tribunal marked the complaint and response as exhibits, they were not evidence of the facts stated in them, and my decision would be based only on the evidence presented by the parties at the hearing. Accordingly, I have relied only on evidence given orally by the parties at the hearing, or contained in documents identified by them in giving their evidence. [6] In resolving conflicts between and among the witnesses evidence, and

determining whether to accept the evidence of any witness, in whole or in part, I have adopted and applied the test set out by the B.C. Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with 1

the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. (p. 357) [7] In addition, I have considered the witnesses motives for testifying, their powers

of observation, opportunity for knowledge, judgment and memory, ability to describe clearly what they saw and heard, their relationship to each other, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses evidence and the documentary record. As in all cases when assessing credibility, I am entitled to accept some, none, or all of a witness testimony. [8] Mr. Hill hired Ms. Kang to work as a full-time administrative assistant for the

company, beginning June 29, 2009, a short time after she graduated from university. She had a detailed list of job responsibilities, and there is no issue that she did her work well. Within a couple of weeks of her starting work, Mr. Hill gave her a raise. [9] Ms. Hill was also an employee of the company. She was not at work during the

first few days of Ms. Kangs employment. Ms. Hill came in about July 8 to train Ms. Kang in some of her duties, but was distracted by having to also care for the Hills twoyear-old daughter. Ms. Hill left, visibly upset, apparently out of frustration over dealing with work and childcare at the same time, after two or three hours. Mr. Hill apologized to Ms. Kang to make it clear that Ms. Hill was not upset with Ms. Kang. [10] Mr. Hill testified that, after Ms. Hill left, Ms. Kang asked him a number of

personal questions, including how his sex life was, whether he was truly happy in his marriage, and whether he had really found the right person, or had made a hasty decision he would regret. Ms. Kang said in cross-examination that she did not recall asking questions about Mr. Hills personal life at this time, but did not deny doing so. She acknowledged in her direct evidence that she later asked him many questions about his life and his relationship with his wife. [11] From both her demeanour when testifying, and the content of what she admitted

saying to Mr. Hill during the short course of her employment, Ms. Kang impressed me as

a person who was, from the beginning of her employment, capable of being very direct, frank, and even challenging in her dealings with Mr. Hill when she chose. [12] My assessment of Mr. Hill is that he was seeking throughout his evidence to

minimize the import of the embarrassing things he said and wrote in relation to Ms. Kang (discussed below) in part because he was clearly uncomfortable testifying about them in public in Ms. Hills presence, and in part because he saw this as a way to limit his own liability. However, when he was merely recounting what was said and when, his

evidence was clear, consistent with the surrounding circumstances, and generally consistent with the evidence of the other witnesses. Not only did he testify in his direct evidence to Ms. Kangs intrusive questions on July 8, but also, in an unguarded moment in his cross-examination, when the subject was not the July 8 conversation, but the various possible meanings of love, he said to Ms. Kang, spontaneously, You saw Melissa upset and stressed. You thought I wasnt happy in my marriage. You said maybe I got married too young, and now regretted it. [13] Considering Mr. Hills evidence on this point, which I accept, my assessment of

Ms. Kang as a witness, and the absence of a direct denial from her that this conversation occurred on July 8 as Mr. Hill testified, I find as a fact that Ms. Kang responded to Ms. Hills upset and exit from the workplace on that day, and to Mr. Hills apology for Ms. Hills behaviour, by asking Mr. Hill very personal questions about their sex life, marriage, and relationship. [14] I accept Ms. Kangs evidence that at no time did she show interest in, or seek out

a sexual or romantic relationship with Mr. Hill, but I also find that her questions and comments led Mr. Hill to believe, correctly, that, notwithstanding their employment relationship, she was prepared to discuss deeply personal matters with him. [15] There is no dispute that, on July 24, Mr. Hill was visibly agitated and distraught.

Ms. Kang asked him what was wrong. He said, Nothing. She persisted. Eventually, he confessed that he thought he had feelings for her. [16] Ms. Kang testified that she was shocked. She said she immediately assessed the

situation, and decided she had only two choices: to risk losing her job if she told Mr. Hill she did not share his feelings, or to engage him in an objective assessment of his 3

feelings. She did not explain why she thought it would be more palatable to Mr. Hill, and thus likely to protect her job, to pursue the latter course, rather than the former. She agreed in cross-examination that Mr. Hill did not do or say anything to suggest that her job was in jeopardy. Rather, she testified that she thought that his ability to fire her, and the resulting power imbalance between them, automatically meant that her job was at risk. [17] In any event, Ms. Kang testified that she insisted to Mr. Hill that it was absurd

for him to have feelings for her. She told him she had only worked for him for a short time. She reminded him that he was married, and that Ms. Hill was pregnant. She testified she told him then, and on numerous occasions, that she could understand he might feel that way, because she was his assistant, and did anything he asked me to do. [18] Mr. Hill testified that, once he told Ms. Kang that he thought he might have

feelings for her, she asked, So, is it just a penis thing? He responded that it was not; that if she chopped off his penis and threw it in the garbage can, he would still have the same feelings. Mr. Hill said this was intended to communicate that his feelings were not sexual; Ms. Kang seems to have interpreted it as an indication how strong his feelings were. Mr. Hill testified that Ms. Kang went on to ask him, if she just hopped over the desk, tore off her clothes, and raped him, whether that would be it. He testified she stated she was not offended if it was just a shallow sexual attraction. Mr. Hill was not cross-examined on this evidence. [19] In her cross-examination, Ms. Kang acknowledged that she asked Mr. Hill if he

was experiencing a shallow sexual attraction, as that would be completely natural something she understood, that happened every day. She first agreed that she told him that if it was just a penis thing, then maybe it was something they needed to get past. She then said she didnt recall using the term penis thing, but said that it would have been fine to do so if it was not said in a sexual context. Still later in her crossexamination, Ms. Kang denied that she ever said penis thing. I do not accept Ms. Kangs self-contradictory and inconsistent denials on this point. [20] Ms. Kang testified, and Mr. Hill corroborated, that they agreed to talk openly

about the situation. Ms. Kang said they agreed that was the only route to maintain my

employment there. They both also testified that, until the last day of July, the focus of their conversation was on his feelings, and that she declined to discuss hers. Ms. Kang testified that she avoided discussing her own feelings, in spite of Mr. Hills persistent attempt to get her to say what she felt, in hopes we could reconcile and carry on my work there. [21] I infer that Mr. Hill, by contrast, understood Ms. Kangs reluctance to respond

when he asked her if she was experiencing the same kind of feelings as an indication that she might share them. Further, he observed in his evidence that he could not have known whether their conversations made her uncomfortable, because she repeatedly and explicitly declined his requests to tell him how she felt. [22] I accept Mr. Hills evidence as to the conversation between himself and Ms. Kang

after he disclosed his feelings on July 24. I find that she communicated to him that his expression of feelings for her was not shocking but natural, and that she was open to continuing to discuss them with him. At the same time, and in spite of her assertion that she avoided telling him about her own feelings out of fear for her job, I find that she made clear to him that she regarded his feelings as absurd, impulsive, and related to his personal circumstances, rather than to any characteristic or behaviour of hers. [23] I do not accept Ms. Kangs evidence that she chose the course she did in dealing

with Mr. Hill because any other course would have put her job at risk. There is no logical reason why telling him, as gently and tactfully (or as forcefully) as she thought necessary, that she was well-disposed toward him in an employer-employee relationship, but that she could not and did not share any romantic feelings towards him, would do more damage to her employment than immediately characterizing his feelings as absurd and illfounded, which is what she did. [24] Ms. Kang testified that, early in the week following July 24, Mr. Hill showed her

two printed lists. One was a list of song titles with the heading Feis playlist. He told her he played the songs on it when he thought about her, and that he had been playing it repeatedly in the previous few days. In her evidence, Ms. Kang described the songs as incredibly intimate [though] perhaps not sexually. One was called, You Dont Know Me. Ms. Kang testified that, as part of his pre-hearing document disclosure, Mr. Hill

produced a partial list of the songs on the playlist, without the heading referring to Ms. Kang. Neither party put any version of the list in evidence. [25] Ms. Kang testified that the second list had the title, Reasons Why I Think You

Love Me Too. It was approximately a page-and-a-half long. It included items such as the way Ms. Kang dressed, the colours Mr. Hill thought looked good on her, the fact that she had used her own credit card to pick up supplies from Home Depot when the company card was declined, and the fact that she got down on her hands and knees to vacuum the floor. [26] Ms. Kang testified that Mr. Hill printed this second list in his office, and gave it to

her to read. She wanted to keep it, but he insisted she return it, and eventually snatched it from her hand. She testified that the items on the list were hurtful to her, because they wrongly interpreted her efforts to excel in her job as indications of an intimate or sexual interest in Mr. Hill. She asked him why he felt that way, whether he and his wife were okay, and whether something was going on in his life that would explain his feelings. [27] her. Ms. Kang could not put the list in evidence, because Mr. Hill had taken it from In the course of Ms. Kangs cross-examination, Mr. Hill put to her what he

suggested was a copy of the list, but which she testified was significantly different from the one he showed her in July 2009. She said, and Mr. Hill did not contest, that he did not produce any version of the list in his prehearing disclosure. I ruled that I would not allow Mr. Hill, having failed to disclose the list, to put it in evidence at the hearing. I accept Ms. Kangs evidence about its general content and tone. [28] Ms. Kang testified that, after she became aware of the lists, she asked Mr. Hill

many questions about his life and his relationship with his wife, that Ms. Kang told him she thought it was ridiculous that he thought he loved Ms. Kang within such a short period of time, and that she urged him to consider his feelings as emotional transference from trauma in his own life. In cross-examination, she acknowledged that she told Mr. Hill it was okay to have shallow sexual attractions, that she wasnt offended, and that she just wanted to bring the struggle to light. [29] In spite of her participation in these conversations, her stated lack of offence, and

her efforts to bring Mr. Hills struggle with his feelings into the open, Ms. Kang testified 6

that, after Mr. Hill disclosed the two lists, she felt that any hope of salvaging the relationship was dashed. She said, without elaboration, that she had dealt with abuse of a sexual nature in the past (though not from an employer), that she didnt want someone in a position of power to overpower her again, and that she thought that was the direction her relationship with Mr. Hill was heading if she continued to stay at the company. She decided to tell him exactly how I felt. [30] On July 31, on what subsequently turned out to be her final day of work, Ms.

Kang testified that she told Mr. Hill that she shared none of his feelings; in fact she felt the complete opposite. She testified she used the word disgust in this connection, and that she told him she didnt think his behaviour was appropriate at all. She said that she told him if she continued to be quiet about the way she felt, she would be compromising her personal dignity. [31] Ms. Kang testified that Mr. Hill responded with evident emotional distress, put his

arms over his head on the desk, and said, I dont think you can work here anymore. She said, I dont think this is right, and left the office. Ms. Kang was not crossexamined on this evidence, and I accept it. I do not find, however, that Mr. Hill intended this remark, or that Ms. Kang understood it, as saying her employment was at an end. In her cross-examination, she referred to her leaving on that day as her initial quitting. [32] Mr. Hill testified that on July 31, he asked Ms. Kang if she was having the same

kinds of feelings as him, and she said she wasnt going to tell him how she felt until he decided what he wanted. Mr. Hill further testified that, three minutes after she left on July 31, Ms. Kang called him and said she would not leave unless he gave her a settlement. In her cross-examination, Ms. Kang acknowledged that she did so, and described her actions in this respect as incredibly overzealous, completely inappropriate, and as done in the heat of emotion. Mr. Hill said that she didnt have to leave, and that he would talk to Ms. Hill about it. Mr. Hill was not cross-examined on this evidence, and I accept it. [33] Between July 31 and August 2, Mr. Hill told Ms. Hill at least some of what had

transpired between himself and Ms. Kang after July 8.

[34]

On August 2, Mr. Hill called Ms. Kang. He apologized for overreacting on July

31, and she said his behaviour was understandable, and she apologized for leaving that day. He said he had told Ms. Hill everything. He proposed a meeting of Ms. Kang, Ms. Hill and himself, to perhaps move along and have her continue working for the company. Ms. Kang agreed to meet. In her cross-examination, Ms. Kang agreed that Mr. Hill told her explicitly that he wanted her to continue working for him. [35] office. The meeting took place on the morning of Tuesday, August 4, at the companys Though they differed in some details which are not relevant to my factual

findings, the evidence of Ms. Kang, Ms. Hill and Mr. Hill was generally consistent as to the August 4 conversations, as discussed in the following account. [36] Initially, Ms. Kang met alone with Ms. Hill. They discussed the two lists, and

their feelings about the events around them. [37] After some time, Mr. Hill joined the conversation. Part of the discussion was

about why, in the interval between showing the lists to Ms. Kang and showing them to Ms. Hill, Mr. Hill had changed the wording of the heading of the second one from Reasons Why I Think You Love Me Too to Reasons Why I Think You Like Me Too. In the meeting, Mr. Hill explained the change by saying his feelings had changed. According to Ms. Kangs evidence, the conversation regressed into accusations and interrogation of how I was creating turmoil in their relationship as a result of Scotts admission of feelings for me. employment, and did so. [38] Though she did not refer to this aspect of the August 4 conversation in her direct She said she had no other choice but to quit her

evidence, in her cross-examination, Ms. Kang acknowledged that she told the Hills during that meeting she didnt think she could stay unless something changed. She said that there were two reasons why people stayed in employment: a favourable working environment, and money. She asked Mr. Hill to increase her hourly wage from $14.50 to $17.00, to compensate for what she described as a compromised work environment. [39] In her cross-examination, Ms. Kang also acknowledged that she became very

angry during the August 4 meeting. She said she couldnt work there with Mr. Hill anymore. She called him incredibly immature, and said talking to him was like talking 8

to a three-year-old child. She said she could understand how Mr. Hill had been through so many employees, and why his father had left the business. She said she had Mr. Hills fathers contact information, and that she was sure he would be interested to hear about this. Mr. Hill added that Ms. Kang said looking at him made her sick, that he didnt know how to run a business or his personal life, and that he was the stupidest person she had ever met. Mr. Hill was not cross-examined on this evidence. [40] Ms. Kang left and did not return. On August 5, 2009, she filed the present

complaint. Arguments Complainants argument [41] The complainants argument, in brief, is that Mr. Hills disclosure of his feelings

for her on July 24, and his subsequent sharing of the two lists a few days later, constituted sexual harassment. She says she was prevented from telling him on July 24 that she did not share his feelings, because he was her employer, and she feared she would lose her job. [42] Ms. Kang cites the following definition of sexual harassment from Janzen v.

Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, para. 56: Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and selfrespect of the victim both as an employee and as a human being. [43] Ms. Kang relies, in particular, on the following passage from Mahmoodi v.

University of British Columbia and Dutton, [1999] B.C.H.R.T.D. No. 52, paras. 140-41:

To establish that conduct constitutes sexual harassment, a complainant must establish that it was "unsolicited" and "unwelcome." The test for determining whether conduct is unwelcome is an objective one: taking into account all the circumstances, would a reasonable person know that the conduct in question was not welcomed by the complainant? A complainant is not required to expressly object to the conduct unless the respondent would reasonably have no reason to suspect that it was unwelcome. In Zarankin v. Johnstone (1984), 5 C.H.R.R. D/2274 (B.C. Bd. Inq.), the Board of Inquiry held that, where a "reasonable person" would know that the conduct was unwelcome and the complainant did nothing to invite or encourage the actions, overt protest is not required. In that case, the complainant had been subjected to frequent coarse remarks, pats on her "bum" and hands around her shoulders. When she was invited into the back room by the perpetrator, she said nothing and laughed because she was afraid of losing her job. Not only overt, but also subtle indications of unwelcomeness may be sufficient to communicate that the conduct is unwelcome. The fact that a complainant submits to or tolerates sexual demands does not necessarily mean that they are welcome or solicited. Behaviour may be tolerated and yet unwelcome at the same time. The reasons for submitting to conduct may be closely related to the power differential between the parties and the implied understanding that lack of co-operation could result in some form of disadvantage. (Dupuis, supra) [44] Ms. Kang argues that, in a professional setting, any conduct of a sexual nature is

inherently unwelcome. She says that Mr. Hill should have known that his disclosure of his feelings would be unwelcome, and said that she did not expressly object because she feared the practical possibility of losing her job. She says that her persistent questions to Mr. Hill as to what was wrong on July 24 should be interpreted neither as pressure to engage in intimate conversations, nor as a sexual or intimate advance. She says that if any of her own behaviour was inappropriate, Mr. Hill as her employer never brought that to her attention. She says that her request on August 4 for a raise was not an ultimatum, but consideration for returning to work [in a] compromised work environment. Finally, she says that the discriminatory nature of events compromising her personal dignity forced her to quit. Respondents argument [45] So far as his argument addresses the matters raised by Ms. Kang, Mr. Hill says

that his expressions were based on questions she asked of him, and statements she made

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to him. He says his research has not disclosed any case in which a respondent has been penalized for telling someone about their feelings after being asked to express them, and after being assured that they could discuss their feelings openly. He says that Ms. Kang never said that his comments made her uncomfortable, or that she wanted them to stop. Finally, he says that the reason she quit was not because he had made the working environment intolerable, but because he would not agree to her demand on July 31 for a settlement as the price for her leaving, or her demand on August 4 for a raise as the price for her staying. Analysis [46] In order to prove a prima facie case of discrimination, Ms. Kang must prove that

she falls within one of the enumerated grounds under s. 13, that the respondents treated her adversely in her employment, and that her sex was a factor in the adverse treatment: Armstrong v. British Columbia (Ministry of Health), 2010 BCCA 56, para. 21. [47] There is no doubt that, as a woman, Ms. Kang is protected under the Code from She says that the adverse treatment consisted of unwelcome

sex discrimination.

comments from Mr. Hill, which forced her to quit her job, and that the Tribunal should find that at least part of the reason these comments were directed at her, or affected her negatively, was her sex. [48] Though neither party referred to it in their brief oral arguments, I have found

some assistance in the Tribunals decision in Courchaine v. aaahBalloon Delights Inc., [1994] B.C.C.H.R.D. No. 28. That case bears some similarity to the present one, in that the female complainant was a junior probationary employee, and the married male respondent was the owner of the small business in which she worked. The respondent invited the complainant to have an affair with him, and directly propositioned her for sex while they worked alone in the companys premises at night. He was larger, more than twice her age, and she felt physically afraid of him. He engaged in physical contact with her which she neither invited nor welcomed. He offered her money to sign out early so his wife, also an employee, would not be aware they had been alone together. In the days after the complainant made it clear that she was not interested, the respondent continued to make sexual comments to her, and repeated his interest in an affair. The Tribunal said: 11

Counsel for the Respondent argued that Perritts conduct did not amount to sexual harassment because: the interactions between Courchaine and Perritt were voluntary; the invitation to have an affair was an isolated event; and the conduct was not of a physical nature. He also described the working environment as a family operation in which the owners and employees worked together as colleagues, without the imbalance of power that often characterizes the employer-employee relationship. Citing Bell v. Ladas and the Flaming Steer Steakhouse (1980), 1 C.H.R.R. D/155 (Ont. Bd. of Inq.) and Robinson v. The Company Farm Ltd. (1984), 5 C.H.R.R. D/2243 (Ont. Bd. of Inq.), he argued that normal social interaction between management and employees, or an isolated invitation by an employer to have an affair, is not unlawful. It is true that human rights legislation does not prohibit social or sexual contact between employers and employees: in Bell, supra, the tribunal stated at D/156: One must be cautious that the law not inhibit normal social contact between management and employees or normal discussion between management and employees. It is not abnormal, nor should it be prohibited, activity for a supervisor to become socially involved with an employee. An invitation to dinner is not an invitation to a complaint. (emphasis in original) However, in determining whether particular conduct constitutes sexual harassment, all the circumstances must be considered. The following analysis from Sexual Harassment Claims of Abusive Work Environment under Title VII (1984), 97 Harv. L. Rev., 1449 at 1458, has been quoted with approval in a number of Council decisions (Hanlon v. T.G. Mobile Aerial Equipment Ltd. (1986), 7 C.H.R.R. D/3475; Wagner v. KerseyReimer Enterprises Ltd. (1992), 15 C.H.R.R. D/413; and Nicholson v. Gordon Fish Automotive Ltd., unreported, April 28, 1993): In order to establish a prima facie case of abusive environment sexual harassment, a plaintiff should have to prove that more than one isolated incident of sexually offensive conduct has occurred. Unlike quid pro quo sexual harassment, which may involve only a single incident (for example, firing or demotion for refusal to engage in sexual activity), abusive environments are characterized by multiple, though perhaps individually non-actionable, incidents of offensive conduct. The greater injury results not simply from a single offensive act or comment, but from the risk of repeated exposure to such behaviour. Thus, a finding that offensive conduct is a condition of the workplace should require a showing that such conduct occurs with some frequency. Nevertheless, because the effect of only one or a few physical advances or threats may 12

be as devastating as that of repeated sexual propositions and innuendoes, the threshold for determining whether there has been repeated exposure should vary inversely with the offensiveness of the incidents. In other words, both the severity and the frequency of the conduct, which can be either verbal or physical or both, must be considered. (paras. 37-40) [49] The present case lacks a number of elements that contributed to the Tribunals finding that the respondents conduct in Courchaine constituted sexual harassment. Mr. Hill did not proposition Ms. Kang; he expressed feelings for her. There was not a wide age differential between them. There was no physical contact between them. Ms. Kang did not fear for her safety at any time. Mr. Hill did not repeat behaviour that Ms. Kang had communicated was unwelcome. I hesitate to characterize Mr. Hills behaviour

towards Ms. Kang (or her response) as normal social interaction, but in all the circumstances established in the evidence I do not think it crossed the line into sexual harassment. [50] In my view, in light of the facts I have found, and the law which applies to them,

Ms. Kangs complaint is not justified. She did not invite or intend to encourage Mr. Hills sexual or romantic interest in her, but, very early in her employment, she did ask him highly personal questions about his marriage, from which he correctly concluded that she was not averse to discussing such intimate matters in the workplace. [51] On July 24, Mr. Hill, in the grip of what appears to have been a sudden, irrational

infatuation, responded to Ms. Kangs persistent questions about what was troubling him by professing his feelings for her. I do not accept her argument that she could not then have told Mr. Hill that she did not share his feelings, because she feared for her job. Not only had he said or done nothing to suggest objectively that her job was at risk, but also I infer from her willingness to characterize his feelings as ridiculous that she did not have a subjective fear that her reaction, one way or the other, would threaten her employment. [52] I do not think that Mr. Hills confession was wise or even appropriate, but in the

context of his workplace relationship with Ms. Kang at that time, I find that it did not, standing alone, amount to discrimination against her based on her sex. Rather than being

13

simply an assertion of his power, it was also an acknowledgement of his weakness, which to some degree placed him under her power, rather than the other way around. [53] I am not overlooking the fact that there is a necessary imbalance of power

between a new, probationary employee and her boss. However, from the course of dealings between Ms. Kang and Mr. Hill over the course of her brief employment, I conclude that the power relations between them were much more nuanced than she suggests, and that she both recognized, and was prepared to attempt to exercise, her own power over him to meet her own personal and financial needs. As stated in Janzen, sexual harassment is an abuse of sexual and economic power. The circumstances of this case do not reveal an assertion of either form of power by Mr. Hill over Ms. Kang. [54] During and after their conversation on July 24, I find that Ms. Kang actively

invited and encouraged Mr. Hill to engage with her in an articulation and exploration of his feelings, both in relation to her, and in relation to Ms. Hill and his marriage. I find that she has not established that he knew, or could reasonably have known, that his participation in that exercise after July 24, which she both initiated and directed, was unwelcome to her as that term has been discussed in the relevant authorities. [55] I find that on August 4, Mr. Hill and Ms. Hill both made clear the companys

interest in continuing to employ her. Although I accept that the situation triggered by Mr. Hills profession of feelings, and Ms. Kangs misguided efforts to respond to that profession, were uncomfortable for all three of the principals in this matter, I find that what caused her to quit her employment was not an intolerable environment of sexual discrimination created by Mr. Hill, but his reluctance to give Ms. Kang a substantial raise. [56] In some cases, words and actions like Mr. Hills, standing alone, might constitute If they forced an employee from her employment, that would

adverse treatment.

certainly constitute adverse treatment. However, I find that Ms. Hill has not established, on a balance of probabilities, either that Mr. Hills words and actions were unwelcome, or that they caused her to leave her employment.

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[57]

I conclude that Ms. Kang has not made out a prima facie case against the

respondents that they discriminated against her because of her sex, and that her complaint is not justified. Decision [58] Code. Ms. Kangs complaint is not justified, and is dismissed, pursuant to s. 37(1) of the

Murray Geiger-Adams, Tribunal Member

15