When Non-Compliance Becomes Costly: Damages in Cloutier v. Back Country Tours Inc.
The Ontario Human Rights Tribunal’s decision in Cloutier v. Back Country Tours Inc.[i] is a reminder that ignoring legal obligations—both substantive and procedural—can substantially increase liability under the Human Rights Code (the “Code”). In this case, the Tribunal awarded $32,500 in damages to an employee who worked for the company for approximately one month, underscoring that misconduct will be penalized.
Additionally, while the nature of the underlying conduct is certainly an important focus item, the decision highlights the Tribunal’s “no nonsense” response to employer non-compliance and a party’s failure to participate meaningfully in the proceeding.
The case also serves as a reminder of the exceptions to personal liability that may apply in cases involving harassment.
Background
Chelsey Cloutier, in her early 20s at the time, worked for Back Country Tours Inc. (the corporate respondent) under a fixed-term contract. Although her contract described her as an independent contractor, the Tribunal confirmed that the social area of employment under the Code was engaged, consistent with the Canada Revenue Agency’s determination that Ms. Cloutier was an employee of the company.
Ms. Cloutier reported to the company’s sole owner, director, and operator, Dudley Hookong (the personal respondent). In her application to the Tribunal, Ms. Cloutier submitted that Mr. Hookong engaged in conduct that made her feel uncomfortable, sexually harassed, and unsafe, leading her to resign approximately a month into her employment. For example, Mr. Hookong manipulated accommodation arrangements during business travel with Ms. Cloutier to force them to share a bed and made comments of a sexual nature regarding Ms. Cloutier and other staff. Additionally, Ms. Cloutier submitted that she made a complaint to Mr. Hookong about a coworker’s comments and conduct towards her, but the respondents failed to take any steps to address her complaint. She claimed that the conduct she endured created a poisoned work environment that forced her to resign.
The Failure to Participate
At the end of 2020, Ms. Cloutier learned that Mr. Hookong had died and sought information about his estate. Although the parties initially agreed to settle the application, issues arose after Mr. Hookong’s counsel advised that his estate would enter bankruptcy.
Around the same time, the Tribunal set disclosure deadlines for the parties, which included outlining to the parties the consequences of failing to comply with the deadlines. Ms. Cloutier requested to suspend the Tribunal’s deadlines and sought an order for more information about the bankruptcy issue. The Tribunal granted her request and ordered the respondents to produce documents about their legal status[ii].
The respondents did not initially produce the documents, so the Tribunal issued a direction for the respondents to provide the requested documents. It yet again warned the respondents about the consequences for failing to comply with the Tribunal’s orders. Once the respondents provided the documents regarding their legal status, the Tribunal reinstated the parties’ disclosure deadlines, adding another reminder to the parties about the impact of non-compliance. While Ms. Cloutier met her disclosure obligations, the respondents ultimately failed to produce any documents.
As such, the Tribunal proceeded without the participation of the respondents. Importantly, the respondents were deemed to waive their rights to notice and were deemed to have accepted all of the allegations in the Application. The Tribunal held a merits hearing, whereby Ms. Cloutier was the only witness present.
The Tribunal’s Decision
Liability of the personal respondent, Mr. Hookong
At the hearing, the Tribunal accepted Ms. Cloutier’s detailed evidence and found that Mr. Hookong engaged in conduct that was known or should have been known to be unwelcome. Further, the Tribunal found that the unwelcome comments and conduct were directly related to Ms. Cloutier being a young woman. As such, the Tribunal found that Mr. Hookong discriminated against her by engaging in sexual harassment, sexual solicitation or advances towards her. The Tribunal also held that Mr. Hookong subjected Ms. Cloutier to a poisoned work environment.
2. Liability of the corporate respondent, Back Country
Under the Code, employers are generally liable for an employee’s acts or omissions that are committed in the course of the employee’s employment, save for limited exceptions. Those exceptions include if an employee commits harassment or sexual harassment[iii].
Despite this exception, the Tribunal has held that a corporate respondent may also be held liable in a case of harassment committed by an employee where the harasser is part of the “directing mind” of the corporate respondent, or where management knew or should have known of the harassment and failed to address it.[iv] In this case, the Tribunal held that Mr. Hookong was a directing mind of Back Country Tours Inc. as the sole owner, director and operator. As such, the Tribunal found that the company was jointly and severally liable with Mr. Hookong for the discrimination Ms. Cloutier experienced at the hands of Mr. Hookong, and the poisoned work environment.
The Tribunal’s Award of Damages
At the hearing, Ms. Cloutier sought $50,000 for injury to dignity, feelings, and self-respect (i.e. “general damages”) and $19,890 for lost wages representing her earnings for the remainder of her employment contract.
The Tribunal assessed various awards in other decisions to determine the appropriate quantum of general damages to award Ms. Cloutier. For example, the Tribunal considered some previous awards it made, including the following:
An award of $12,000 where the applicant experienced sexual harassment through sexual innuendos, comments about her and her clothing, derogatory remarks about her language abilities, and incessant demands about where she was.[v]
An award of $18,000 where the applicant was subjected to sexual harassment, reprisals and a poisoned work environment when the manager of her workplace attempted to kiss her on multiple occasions, made vulgar sexual references, and held her head with his hands.[vi]
An award of $50,000 where the applicant’s supervisor was found to have repeatedly and forcibly touched the applicant in the workplace, including touching her buttocks, and made vexatious, sexualized comments to the applicant.[vii]
An award of $200,000 where the applicant was sexually assaulted by her employer for almost 20 years.[viii]
The Tribunal found that an appropriate award of general damages in this case was $32,500.
It declined to award Ms. Cloutier lost wages since she did not provide any evidence regarding how she calculated the amount claimed.
Takeaways
The decision in Cloutier serves as a reminder of the following:
Non-compliance with Tribunal directions can be fatal. The Tribunal is severely under-resourced, so if a party is not participating in the process, it will not use its resources to see the process through. This is particularly the case when the Tribunal has issued repeated reminders to parties about the consequences of non-compliance.
If an employee is considered a directing mind of an organization, the organization may be held liable for the employee's harassment of another employee.
Even if there is documentation that characterizes a worker as a contractor instead of an employee, the Tribunal may still determine that the social area of employment under the Code is engaged.
When determining a general damages award, the Tribunal will look to its past awards and will compare the nature, severity, and duration of the conduct. Typically, awards for conduct over a prolonged period of time versus conduct of a relatively short period will be distinguishable.
[i] Cloutier v. Back Country Tours Inc., 2025 HRTO 2867 (CanLII) [“Cloutier”]
[ii] Cloutier v. Back Country Tours Inc., 2024 HRTO 822 (CanLII)
[iii] See section 46.3 of the Code.
[iv] George v. 1735475 Ontario Limited, 2017 HRTO 761 (CanLII)
[v] Chuvalo v. Toronto Police Services Board, 2010 HRTO 2037 (CanLII)
[vi] Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 (CanLII)
[vii] Aloy-Sadakane v. Data & Scientific Inc., 2024 HRTO 770 (CanLII)
