2017 Ahrc 7

HUMAN RIGHTS TRIBUNAL OF ALBERTA
Citation: Mandziak v. Taste of Tuscany Ltd., 2017 AHRC 7
2017 AHRC 7 (CanLII)

BETWEEN:
Renee Mandziak
Complainant
- and -
Alberta Human Rights Commission (Director)

Director
- and -
Taste of Tuscany Ltd.

and
Medhat Salem
Respondents
DECISION
Tribunal Chair: Kathryn Oviatt, B.A., LL.B.
Decision Date: March 21, 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 is a sexual harassment case, arising in employment. The complainant,

Renee Mandziak, was employed by the respondent Taste of Tuscany Ltd. (Taste of
Tuscany) as a server between January 2013 and April 2013. The complainant alleged
that during her employment she suffered discrimination on the ground of gender,
contrary to section 7 of the Alberta Human Rights Act (the Act).1 The complainant

alleged three instances of sexual harassment. In addition, the complainant alleged that
she was terminated from her employment in contravention of the Act after expressing
concerns about working alone with the owner of the restaurant, Mr. Medhat Salem.
[2] The Director of the Alberta Human Rights Commission (the Director) brought a
preliminary application to add Mr. Salem as an individual respondent to the complaint.
Mr. Salem is a director and shareholder of Taste of Tuscany and is the alleged
perpetrator of the harassment of which Ms. Mandziak complains. After the evidence and
submissions on the preliminary application, I issued an oral decision without reasons,
directing that Mr. Salem be added as a respondent to the complaint. Reasons for that
decision are set out below.
[3] On the merits, this case turned on the credibility and reliability of the witnesses.
Three witnesses gave evidence, Ms. Mandziak, Mr. Salem and Ms. Pam Roth-Salem,
Mr. Salem’s wife. Ms. Mandziak presented as a credible witness, but with limitations in
her memory of the overall workplace environment. Mr. Salem was not credible and gave
exaggerated and self-serving evidence which was not believable. Ms. Roth-Salem
presented as a credible witness but was not present for key events. Although there
were difficulties with both Ms. Mandziak’s and Mr. Salem’s evidence, for the reasons
that follow I preferred Ms. Mandziak’s evidence to Mr. Salem’s.
[4] I find that the complainant has established, on the balance of probabilities, that
she was discriminated against in her employment on the ground of gender, contrary to
section 7 of the Act.
Legislation
[5] Section 7(1)(b) of the Act creates the legal prohibition against discrimination in
the workplace:
7(1) No employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any term
or condition of employment,
1
Alb erta Human Rights Act, R.S.A. 2000, c. A-25.5
2
because of the race, religious beliefs, colour, gender, gender identity,
gender expression, physical disability, mental disability, age, ancestry,
place of origin, marital status, source of income, family status or sexual
orientation of that person or of any other person.
[6] Section 20(2)(b) provides that all complaints must be made within one year after
the alleged contravention of the Act occurs:

20(1) Any person, except the Commission, a member of the Commission
and a person referred to in section 18, who has reasonable grounds for
believing that a person has contravened this Act may make a complaint to
the Commission.
(2) A complaint made pursuant to subsection (1) must

(a) be in a form acceptable to the Commission, and
(b) be made within one year after the alleged contravention of the
Act occurs.
[7] Section 28 of the Act identifies certain persons as parties to a complaint and
permits the addition of other persons as parties to the human rights complaint:
28 The following persons are parties to a proceeding before a human

rights tribunal:
(a) the director;
(b) the person named in the complaint as the complainant;
(c) any person named in the complaint who is alleged to have been
dealt with contrary to this Act;
(d) any person named in the complaint who is alleged to have
contravened this Act;
(e) any other person specified by the tribunal, on any notice that the
tribunal determines, and after that person has been given an
opportunity to be heard against being made a party.
Issues
[8] The following issue arose in the Director’s preliminary application:
1. Should Mr. Medhat Salem be added as a respondent to the complaint?
[9] Several other evidentiary and procedural issues arose which I have identified and
addressed under the preliminary issues section of my decision.
[10] The following issue arises on the merits:
1. Has the complainant established discrimination on the grounds of

gender in contravention of section 7 of the Act?
3
Preliminary Issues
The Tribunal’s Authority to Review the Investigation
[11] Prior to the hearing, by way of letter dated September 21, 2016, legal counsel for
the respondent wrote to the Registrar of the Office of the Chief of the Commission and
Tribunals expressing concern about perceived unfairness in the processing of the

complaint at the office of the Director of the Alberta Human Rights Commission. The
Registrar referred that letter to me, as the appointed Tribunal Chair for the hearing. By
way of letter dated September 22, 2016, I responded by advising as follows:
With respect to legal counsel for the respondent’s concerns about the
investigation of this matter before the director, any concerns about the
investigation are a matter for judicial review and I have no jurisdiction to
provide a remedy regarding those concerns. Accordingly, this is not an
issue properly before me.
[12] The respondent provided supplemental written submissions on November 17,

2016, which again raised the issue of fairness in the investigation. The respondent’s
supplemental written submissions referred to Slattery v. Canada (Human Rights
Commission)2 and to the case of Al-Ghamdi v. Peace Country Health Region 3 for the
principles relating to the duty of fairness in the course of a human rights investigation.
[13] My appointment was made under section 27(1)(a) of the Act, after the Chief of
the Commission and Tribunals (Chief Commissioner) received a report that the partiers
were unable to settle the complaint. My role as Tribunal Chair is to adjudicate the
dispute in a de novo hearing, and if merit is found, to make one or more of the orders
identified in section 32 of the Act. The Act provides no express or implied authority for
the Tribunal to assume an oversight role over the Director’s process prior to the
Tribunal’s appointment.
[14] The Ontario Human Rights Board of Inquiry, which functioned similarly to the
tribunal in Alberta, considered its jurisdiction on this issue in Bryan v. PMI Food
Equipment (No. 1):4
I agree with the Board's decision in Joe, supra (at 14 [D/477, para. 30],
that it is not the role of the Board to play a supervisory function over the
Commission:
In my view, a board of inquiry has no general authority under

the Code to determine if the jurisdictional prerequisites to the
establishment of a board of inquiry have been satisfied. That
responsibility lies with the courts — either on judicial review
2
Slattery v. Canada (Human Rights Commission), 1994 FC 3463
3
Al-Ghamdi v. Peace Country Health Region, 2015 ABQB 155
4
Bryan v. PMI Food Equipment (No. 1) (1997), 29 C.H.R.R. D/420 (Ont. Bd.Inq.), at para 22
4
or a motion to quash the appointment of the board of inquiry.
…
Further at p. 16 [D/477, para. 34]:

The jurisdiction of a board of inquiry is limited by statute. A
board has no general oversight powers. Consequently, even
assuming, without deciding, that Sections 33(1) and 34(1)(d)

establish conditions precedent to the establishment of a
board of inquiry and thus their absence deprives the board of
jurisdiction, it is not within the ambit of a board of inquiry to
decide that question. It is for the courts as overseers of the
administrative process to determine.
I also adopt the Board’s reasoning in Jack, supra, that the task before a
board of inquiry is statutorily defined and does not include a review of the
conduct of the Commission and the handling of a complaint prior to the
appointment of a Board.
[15] This analysis is equally applicable to Alberta’s framework. The Act authorizes the
appointment of a human rights tribunal to hear de novo evidence and submissions on
the complaint and to finally decide the matter, subject to appellate review. There is no
inherent jurisdiction to review or oversee the Director’s functions prior to the tribunal’s
appointment. In the normal course, any investigation materials or reports prior to the
appointment of the tribunal are considered hearsay and inadmissible. The Ontario
Divisional Court in Ford Motor Company of Canada v. Ontario (Human Rights Comm.)
observed:5
Even if there was a poor or biased investigation and notwithstanding the

extremely lengthy period upon which the complaints are based, if there
was evidence upon which the Commission could recommend the
appointment of a board the Commission had such authority. The Board
conducts a full hearing and it is the evidence before the Board that
governs, not the investigator's report to the Commission. The Board
correctly decided that even if the investigation was not impartial, that it did
not affect the Board's de novo hearing.
[16] I take no issue with the principles of the duty of fairness laid out in the cases
cited by the respondent. However, both Slattery, supra, and Al Ghaemdi, supra,
involved judicial review applications of decisions of administrative decision makers, and
did not address the issue of whether the tribunal had supervisory powers over decisions
of the Director or the Chief Commissioner.
[17] Additionally, I note that while the supplemental written submissions contended
that the investigation was inadequate or noncompliant with the requirements of the Act,
5
Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (1995), 24 C.H.R.R. D/464 (Ont. Ct. (Gen.Div.)), at
para 12
5
there was no suggestion that it was so tainted that the respondents could not fully
participate in the hearing. The respondents were aware of all of the issues, including the
issue of adding Mr. Salem as a respondent, from at least the date of the pre-hearing
telephone conference, which occurred approximately four months prior to the hearing.
They were given a fulsome opportunity to participate and be heard in the hearing
process.

Adding the Individual as a Respondent to the Complaint
Summary of the Circumstances and Evidence on the Preliminary Application to Add the
Individual Respondent
[18] The Director brought a preliminary application to add Mr. Salem as a party to the
complaint. Legal counsel for the Director first raised this preliminary application at the
pre-hearing telephone conference on July 27, 2016. At that time, counsel for the
corporate respondent and the proposed individual respondent (collectively the
respondents) consented to Mr. Salem being added as a party to the complaint. The
respondents filed their written submissions with the Office of the Chief of the
Commission and Tribunals on September 13, 2016 and repeated the respondents’
consent to add Mr. Salem as a party to the complaint.
[19] Subsequently, the respondents changed legal counsel, although they retained
the same law firm. Their new counsel withdrew consent to adding Mr. Salem as a party
to the complaint and took the position that adding Mr. Salem after one year after the
alleged discrimination occurred was contrary to the limitation period set out in section
20(2)(b) of the Act. The respondents further argued that this limitation period could not
be extended by consent. The initial hearing date was adjourned to allow the parties to
provide supplemental authorities and argument on this preliminary application.
[20] The Director entered a corporate search for the Taste of Tuscany showing that
Mr. Salem was one of two directors and a 50 per cent shareholder of Taste of Tuscany.
[21] Ms. Mandziak testified that she understood Mr. Salem to be the owner of Taste
of Tuscany at all times. She applied for a position at the restaurant by attending in
person. Mr. Salem interviewed her on the spot and offered her a position. She stated
that Mr. Salem communicated to her that he owned the restaurant. She stated that Mr.
Salem trained her and that she worked primarily with him. At all times, Ms. Mandziak
understood that Taste of Tuscany was Mr. Salem’s business.
[22] Ms. Mandziak stated that Mr. Salem was always present at the restaurant when
she worked. She stated that she worked a few days per week on weekdays and also on
weekends. On weekdays, Ms. Mandziak stated that it was primarily only herself and Mr.
Salem working at the restaurant. Occasionally kitchen staff were called in to assist in
the back of the house on weekdays, but these employees were usually gone prior to her
arriving.
6
[23] Ms. Mandziak stated that Mr. Salem supervised her work and was the ultimate
authority at Taste of Tuscany. She acknowledged that Ms. Roth-Salem gave her
directions at work about the front of the house, but stated that Mr. Salem always had the
final say. Ms. Roth-Salem had another full-time job and only worked at the restaurant on
weekends. She worked in the front of the house with Ms. Mandziak and directed the
front of the house when she was present.

[24] Ms. Mandziak stated that her schedule was delivered to her orally by Mr. Salem.
At the conclusion of her shift, she or Mr. Salem would write in her hours on a timesheet
posted in the kitchen.
[25] The respondents presented a payroll summary, which identified the corporate
Taste of Tuscany as the employer on the payroll. Similarly, the respondents produced
Ms. Mandziak’s Record of Employment and T4, both of which identified Taste of
Tuscany as Ms. Mandziak’s employer. Ms. Mandziak stated that she did not recall ever
receiving either of those records, possibly due to having moved from the identified
address approximately two months after her employment ended. Ms. Mandziak
maintained that she was not aware that Taste of Tuscany was a corporation and always
considered it Mr. Salem’s business, although she conceded that her paycheques were
issued by the corporation.
[26] Ms. Roth-Salem testified with respect to this preliminary issue on behalf of the
respondents. She testified that she managed the front of the house and took on a
supervisory role with respect to front of the house staff. She stated that she trained
servers, including by presenting them with a handout that listed the employment duties
of front of the house staff. In addition, she performed payroll duties, including entering
time entries for the preparation of pay cheques. Ms. Roth-Salem was responsible for
ensuring that data for payroll and T4 forms was entered and forwarded to their payroll
management company.
[27] On cross examination, Ms. Roth-Salem acknowledged that Taste of Tuscany

was essentially a “mom and pop” restaurant, run primarily by Mr. Salem and herself. Mr.
Salem was the chef and she worked in the front of the house. At all relevant times, Ms.
Roth-Salem was employed full-time elsewhere and only worked at the restaurant on
weekends while Mr. Salem worked full-time at the restaurant.
[28] Ms. Roth-Salem stated that they sold the restaurant in 2015. Mr. Salem signed
the sale documents on behalf of the corporation. As of the date of the hearing, Ms.
Roth-Salem stated that the corporation is not in operation. She agreed that the
corporation exists on paper but does not carry out business.
7
The Director’s Position on the Preliminary Application to Add the Individual Respondent
[29] The Director applied to add Mr. Salem as a party to the complaint pursuant to
section 28 of the Act. The Director referred to the case of Pham v. Vu,6 which the
Director submitted was identical to the facts of this matter.
[30] The Tribunal’s decision in Pham followed its earlier decision of Abdulkadir v.

Creative Electric Co. Ltd. and McEwan 7 to establish a two-part test for adding
respondents to an already existing complaint. The first step is to consider whether there
are facts alleged that, if proven, could support a finding that the proposed respondent
violated the complainant’s rights. The second is to consider whether the addition of the
proposed respondent would cause substantial prejudice to the respondent’s ability to
make full answer and defence.8
[31] The Director took the position that both steps of this test have been made out.
First, the allegations are being made directly about Mr. Salem’s conduct and, if proven,
could support a finding that he violated Ms. Mandziak’s rights. Counsel for the Director
asserted that Mr. Salem was the employer for the purposes of the Act, as a director and
shareholder of the corporation at all relevant times.
[32] On the second portion of the test, the Director argued that there was no
substantial prejudice to Mr. Salem in being added. He has been aware of the
proceedings since the filing of the complaint. He filed the response form on behalf of the
corporate respondent and has participated throughout.
[33] The Director emphasized the importance of providing meaningful remedies to

complainants under the Act. The Director referred to the case of Ontario Human Rights
Commission v. Farris9 (Farris) in which the Ontario Supreme Court granted a judicial
review in favour of a complainant. The Ontario tribunal’s error was that it refused to add
the individuals who had engaged in the discriminatory conduct as respondents to the
complaint. Only the inoperative corporation was found to be liable, which did not provide
a meaningful remedy to the complainant.
[34] With respect to the limitation period argument raised by the respondents, the
Director stated that jurisprudence relating to section 20 of the Act is not relevant to the
analysis under section 28. Section 28 does not include a limitation period for adding a
party to an existing complaint and section 20 relates to filing the initial complaint.
[35] The Director distinguished the respondents’ cases. In particular, the Director
stated that the Court of Queen’s Bench decision in Walsh v. Mobil Oil Canada 10 is
inapplicable in the circumstances. Walsh interpreted section 20(2)(b) of the Act as it
6
Pham v. Vu, 2016 AHRC 12
7
Ab dulkadir v. Creative Electric Co. Ltd. and McEwan, 2012 AHRC 11, cited in Pham, supra, at para 16
8
Ab dulkadir, supra, cited in Pham, supra, at para 16
9
Ontario Human Rights Commission v. Farris, 2012 ONSC 3876
10
Walsh v. Mob il Oil Canada, 2007 ABQB 305, overturned on other grounds Walsh v. Mob il Oil Canada, 2008 ABCA
268
8
relates to damages assessments. The Court of Queen’s Bench held that the limitation
period in section 20(2)(b) of the Act “determines the time in which a complaint about
[the respondent’s] conduct can be filed” but cannot be used to limit liability for
damages.11
[36] Similarly, the Director distinguished St. Albert and Area Student Health Initiative
Partnership v. Polczer12 (Polczer). Polczer involved a judicial review of the decision of

the Chief Commissioner to refer a complaint to a hearing. The complaint related to the
alleged failure of a school division to accommodate a student with a disability. The
complainant requested that several agencies be added to the complaint. One such
agency, the St. Albert Partnership, was added to the complaint eight days after the one-
year limitation period in section 20(2)(b). The Court of Queen’s Bench held that the
Chief Commissioner was in error in adding the agency after the limitation period.
[37] Legal counsel for the Director submitted that the analysis in Polczer did not apply
because the party being added was a true third party in the sense that it was not a
director or shareholder of the initial respondent. It was not aware of the proceedings
from the outset of the complaint, nor was it added as a party under section 28.
According to the Director, Polczer is not relevant to an inquiry under section 28.
[38] The Director also distinguished the case of Rivard v. Alberta (Human Rights
Commission).13 That case concerned whether the discoverability rule applied to the
limitation period in section 20(2)(b) of the Act. In Rivard, the complainant had an
undiagnosed disability. By the time that her disability was diagnosed, it was more than
one year after the alleged discrimination. The Alberta Human Rights Commission
refused to accept the complaint, since it was time barred. The complainant sought
judicial review of that decision. The Alberta Court of Queen’s Bench held that the
specific language of section 20(2)(b) fixed the time limit for filing the complaint from the
date of the conduct complained of.
[39] Similarly, the Director distinguished the case of Greater St. Albert Catholic
Separate School, District No. 734 v. Buterman 14 (Buterman) on the basis that it
concerned the deadline for filing a judicial review application, and was not related to the
analysis for adding a party under section 28 of the Act.
[40] Likewise, the Director spoke to the decision of Raczynska v. Alberta (Human
Rights Commission),15 in which the Alberta Court of Queen’s Bench dismissed an
application to add a professional corporation to a judicial review application. The issue
was whether the limitation period in the Rules of Court for filing the judicial review could
be extended.
11
Walsh, supra at paras 38-40
12
St. Alb ert and Area Student Health Initiative Partnership v. Polczer, 2007 ABQB 692
13
Rivard v. Alb erta (Human Rights Commission), 2014 ABQB 392
14
Greater St. Alb ert Catholic Separate School, District No. 734 v. Buterman , 2014 ABQB 14
15
Raczynska v. Alb erta (Human Rights Commission), 2015 ABQB 494
9
[41] Similarly, the Director distinguished Ruhl v. Alberta (Human Rights
Commission),16 on the basis that it addressed the timelines for filing for judicial review,
and not an application under section 28 of the Act.
[42] The Director noted that the respondents had included in their materials the
tribunal decision of Bruehl v. Oasis Medical Clinic Ltd.17 That decision supports the
Director’s position. In particular, the Director noted that the Tribunal in Bruehl

considered the application of the limitation period in section 20 of the Act to an
application under section 28 of the Act and found that it did not apply.
[43] The Director submitted that the respondents’ interpretation that section 20(2)(b)
creates a limitation period against adding a party to the complaint would have serious
implications in limiting the ability of section 28 to create meaningful remedies for
meritorious complaints. The Director submitted that any respondent corporation could
deliberately dissolve itself as soon as the one-year limitation period was up in order to
make itself judgment proof. While there is no suggestion that this occurred in this case,
it is what occurred in Pham, supra, and remains a risk on future cases. Further, since
many complaints are filed on the last day before the limitation period, it makes it then
impossible to add or amend parties to the complaint subsequently.
The Respondents’ Position on the Preliminary Application to Add the Individual

Respondent
[44] The respondents took the position that section 20(2)(b) of the Act is a firm
limitation period such that no respondents can be added to the complaint at any time
after one year from the date of the discrimination. According to the respondents, this
limitation period is a question of law,18 which this Tribunal has no authority to extend.
[45] Legal counsel for the respondents contended that the decisions of Pham, supra,
Abdulkadir, supra, and Bruehl, supra, were wrongly decided by improperly importing the
Ontario analysis in Farris, supra. Since Ontario has different statutory language than
Alberta, this analysis was not appropriate for Alberta. Counsel for the respondents
submitted that the law in Alberta is clear that the limitation period in section 20(2)(b) is
to be narrowly construed.
[46] The respondents pointed to a number of cases to support their position that the
limitation period in section 20(2)(b) should be applied to prohibit the adding of Mr.
Salem as an individual respondent in this complaint. In Walsh, supra, the Alberta Court
of Queen’s Bench outlined the legislative reason for including a one-year limitation
period in section 20(2)(b) of the Act: 19
16
Ruhl v. Alb erta (Human Rights Commission), 2015 ABQB 513
17
Bruehl v. Oasis Medical Clinic Ltd., 2016 AHRC 15
18
Heredity Homes (St. Alb ert) Ltd. v. Scanga, 2009 ABQB 237, at para 21
19
Walsh, supra, at para 37
10
… A limitation period merely outlines the period within which the complaint
must be filed. It is a time limit imposed on the complainant. Section
20(2)(b) gives the complainant one year from the time of the alleged
contravention of the Act to file their complaint. This ensures that there are
no complaints being filed arising from circumstances occurring many
years back. Chief Justice McLachlin writes, in Novak v. Bond, 1999 CanLII
685 (SCC), [1999] 1 S.C.R. 808, at para. 67, that limitation periods are:

... intended to: (1) define a time at which potential
defendants may be free of ancient obligations, (2) prevent
the bringing of claims where the evidence may have been
lost to the passage of time, (3) provide an incentive for
plaintiffs to bring suits in a timely fashion, and (4) account for
the plaintiff’s own circumstances, as assessed through a
subjective/objective lens, when assessing whether a claim
should be barred by the passage of time. To the extent they
are reflected in the particular words and structure of the
statute in question, the best interpretation of a limitations
statute seeks to give effect to each of these characteristics.
[47] The respondents referred to Polczer, supra, as a particularly parallel case. As is

outlined above, Polczer involved a decision by the Chief Commissioner to add a third
party to a complaint eight days after the limitation period expired. Counsel for the
respondents noted that the Court considered the liberal and purposive interpretation
that is afforded interpretation of human rights legislation, but nevertheless concluded
that the Chief Commissioner erred when he allowed the addition of the third party after
the limitation period. The Alberta Court of Queen’s Bench held: 20
… In my view, as was found in Walsh v. Mobil Oil Canada, supra, the

limitation period contained in section 20(2)(b) of the Act must be
interpreted as an absolute bar to complaints made beyond a year after the
alleged contravention of the Act took place, regardless of any other
factors.
[48] Similarly, the respondents referred to Rivard, supra, where the Alberta Court of
Queen’s Bench held that the discoverability principle did not extend the limitation period
to the date of discovery:21
I agree with the Applicant that special rules of construction apply to human
rights legislation as the protection offered is not merely statutory but is
also quasi ‑constitutional. From this follows the principle that human rights
legislation must be given a broad, purposive and liberal interpretation…
20
Polczer, supra, at para 84
21
Rivard, supra at paras 19-20
11
However the nature of human rights legislation does not fundamentally
change the interpretative task: an interpretation of the text of the statute is
required which respects the words chosen by the Legislature…
[49] The respondents also referred to Raczynska, supra, in which the Alberta Court of
Queen’s Bench denied an application to add a party to a judicial review of a decision of
the Chief Commissioner after the applicant missed the limitation in the Rules of Court

for filing the judicial review. Counsel for the respondents submitted that this Tribunal is
bound by the principle of stare decisis to follow the interpretation of section 20(2)(b)
given by higher courts.22
[50] The respondents argued that the complainant knew or should have known that
Mr. Salem’s conduct was in issue prior to the expiry of the one-year limitation period in
section 20(2)(b) of the Act. That limitation period cannot now be extended.
[51] In the alternative, the respondents contended that Mr. Salem should not be
added as a party to the complaint because he was not the employer, the corporate
Taste of Tuscany was. The respondents relied on the Alberta Court of Appeal decision
in Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship
Commission, Director)23 (Lockerbie), in which the Court determined that Syncrude, the
owner of a large industrial site, was not the employer of an employee hired to provide
services on its site by an arms’ length contractor. The respondents contended that
Lockerbie stands for the proposition that there can only be one employer for the
purposes of discrimination under the Act.
Analysis on the Preliminary Application to Add the Individual Respondent
[52] I find that Mr. Salem is properly a party and he is added to the complaint. I agree
with the submissions and authorities of the Director that the limitation period in s.
20(2)(b) of the Act does not limit an application to add a respondent to the proceedings
in these circumstances. Section 28 provides as follows:
The following persons are parties to a proceeding before a human rights

tribunal:
(a) the director;
(b) the person named in the complaint as the complainant;
(c) any person named in the complaint who is alleged to have been
dealt with contrary to this Act;
(d) any person named in the complaint who is alleged to have
contravened this Act;
(e) any other person specified by the tribunal, on any notice that the
tribunal determines, and after that person has been given an
opportunity to be heard against being made a party.
22
Corlac Inc. v. Weatherford Canada Ltd., 2012 FCA 261
23
Lockerb ie & Hole Industrial Inc. v. Alb erta (Human rights and Citizenship Commission, Director) , 2011 ABCA 3
12
[53] The Director did not specify under which subsection of section 28 its application
was being made. Section 28(e) clearly applies since Mr. Salem was given notice of the
application and an opportunity to be heard against being made a party.
[54] Section 28(d) may also apply since the complainant’s complaint form identifies
Mr. Salem as the respondent. Under Section B of the complaint form, “Who are you
complaining about? (This is the respondent)”, the complainant wrote, “Taste of Tuscany,

owner Sal.” Mr. Salem was referred to as “Sal” throughout the hearing. Clearly, Mr.
Salem was personally identified and aware of the complaint from its initial filing. This
subsection was not argued before me, however, so I have proceeded with the
application under section 28(e).
[55] This tribunal’s recent decisions in Pham, supra, and Bruehl, supra, described the
framework for applications to add a respondent under section 28. Both Pham and
Bruehl followed Abdulkadir, supra,24 to apply a two-part test for adding respondents to
an already existing complaint:
1. Are there facts alleged that, if proven, could support a finding that the
proposed respondent violated the complainant’s rights?
2. Will the addition of the proposed respondent cause substantial

prejudice to the respondent’s ability to make full answer and defence?
[56] On the first stage of the analysis, there are alleged facts that could support a
finding that Mr. Salem violated the complainant’s rights. The facts alleged in the
complaint relate to sexual harassment in the workplace. Sexual harassment constitutes
discrimination on the ground of gender, which ground is protected under section 7 of the
Act. If proven, the alleged facts will support a finding of discrimination.
[57] On the second stage of the test outlined above in Abdulkadir, supra, there is no
significant prejudice to Mr. Salem. He has always been aware of the allegations and has
had notice of all the proceedings throughout. The allegations against him personally are
the same as those against the corporation. Mr. Salem completed the respondent’s
response form to the complaint and directly responded to allegations about his personal
conduct.
[58] Mr. Salem was a director and shareholder of the corporate employer and the
alleged perpetrator of the discriminatory acts. He was normally present at the restaurant
when it was open. He directed the affairs of the corporation. Ultimately, when it was
sold, he was the one who sold the restaurant on the company’s behalf. This was a small
operation with few employees. Mr. Salem was the chef, a director, a shareholder, and
ran almost every aspect of the business. I find that Mr. Salem was the directing mind of
Taste of Tuscany.
24
Ab dulkadir, supra, cited in Pham, supra, at para 16
13
[59] The issue on this preliminary application is similar to that in Hansen v. Big Dog
Express Ltd.,25 in which this tribunal permitted the adding of an individual respondent
where the individual was the owner/operator, director and shareholder of the corporate
respondent, as well as the perpetrator of the discrimination.
[60] Similarly, the reasoning in the Ontario case of Farris, supra, is of use in this case.
While acknowledging that there are differences in Alberta’s governing legislation from

that of Ontario, the principles arising from Farris are nevertheless applicable. The
purpose of the Act is to eliminate discrimination. It does so by providing relief to victims
of discrimination. Its purposes can only be achieved if the remedies available are
effective. No effective remedy can be made against a corporation with no assets or
operations.
[61] Although the employer in this matter was Taste of Tuscany, a corporation, it is
appropriate to name Mr. Salem as jointly and severally liable for the actions of that
corporation for three reasons: (1) he was the perpetrator of the alleged discriminatory
acts, (2) he was the directing mind of the corporate employer, and (3) there is no
prejudice because Mr. Salem has been involved in the complaint since the
commencement of the proceedings under the Act.
[62] The Lockerbie, supra, decision cited by the respondents is distinguishable from
the circumstances in this case. Lockerbie dealt with drug testing on an industrial site.
Syncrude owned the site and retained a general construction manager. The general
construction manager in turn granted subcontracts to two subcontractors, one of which
was the complainant’s employer. It was a situation involving the owner of an industrial
site and an employee of an arm’s length contractor. In those circumstances, the Court
of Appeal found that the relationship between the complainant and Syncrude was not of
sufficient proximity to find that Syncrude was the employer.26
[63] The circumstances could not be more different in the present case. Instead of
considering whether contracting corporations several layers down are related enough to
create an employment relationship with one of the subcontractor’s employees, the
question here is whether the directing mind of a corporation, an individual who allegedly
directly performed the discriminatory acts, should be liable for those acts.
[64] With respect to the respondents’ position that Mr. Salem cannot be added as a
party to the complaint because it is now more than one year after the date of the alleged
discrimination, I disagree. The deadline in s. 20(2)(b) of the Act is a limitation period for
the purposes of filing the initial complaint. That is not an issue in this case. The
complaint was filed well within the time limit imposed by s. 20(2)(b) of the Act. In fact, it
was filed within days of the alleged conduct.
25
Hansen v. Big Dog Express Ltd., 2002 AHRC 18, cited in Pham, supra, at para 18
26
Lockerb ie, supra, at paras 24-25
14
[65] This Tribunal expressly considered the effect of section 20(2)(b) of the Act on an
application under s. 28 in its Bruehl, supra, decision:27
Section 28 provides that the Tribunal may specify a party to the

proceeding. There is no time limit specified in the legislation. A party may
be specified on application of a party or on the Tribunal’s own initiative as
long as the proposed party has been given an opportunity to be heard

against being made a party.
I am mindful of section 20 of the Act that directs that a complaint must be

filed within one year of the alleged contravention. While the complaint
must be made within one year of the alleged contravention, there is no
time limitation specified in either section 20 or section 28 for adding a
respondent to an existing complaint. Indeed, section 28 allows for the
addition of a respondent in a number of different circumstances.
[66] I agree with this analysis. Section 20(2)(b) applies to limit the time in which a
complaint may be filed. Neither section 20(2)(b) nor section 28 speak to a limitation
period for adding a respondent to an existing complaint.
[67] There may be circumstances where section 20(2)(b) will be applicable to an

analysis under section 28. These circumstances include where the addition of a party to
the complaint effectively results in the filing of a new complaint. The Polczer, supra,
decision cited by the respondents represents one of the instances where the limitation
period in section 20(2)(b) is applicable to an application to add a respondent under
section 28 of the Act. Polczer is distinguishable from the facts of this case, because the
addition of a new respondent amounted to a new complaint.
[68] In Polczer, the complaint alleged that a school board had failed to accommodate
an autistic child. The late addition of a third party respondent, a partnership of regional
school authorities, the health authority, and the child services authority raised different
issues than those in the original complaint and expanded the scope of the complaint.
The third party was a true third party in that it had not been involved in the complaint
prior to the application to add it, and no facts were pled in the initial complaint relating to
the third party. In essence, the addition of the third party amounted to a new complaint.
Accordingly, that new complaint was time barred by section 20(2)(b) of the Act.
[69] I also note that in Polczer it was the Chief Commissioner’s addition of the new
party, when he was performing his function under section 26 of the Act, that was in
issue on the judicial review. The Chief Commissioner had no statutory authority to add a
party, when performing his limited, gatekeeping function under section 26, as contrasted
with the specific authority of the Tribunal under section 28.
[70] The respondents’ other cases are likewise not applicable to these circumstances.
The Walsh, supra, decision stands for the proposition that section 20(2)(b) limits the
27
Bruehl, supra at paras 20-21
15
time for filing a complaint, but does not limit the time frame for which damages can be
assessed.28 Walsh also provided a summary of the policy reasons to strictly construe
limitation periods. 29 The Alberta Court of Queen’s Bench in Walsh did not consider or
rule on the issues involved in this matter. Notably, all of the policy reasons discussed in
Walsh are absent in this case, including that there is no concern about a new complaint
being filed from circumstances arising many years ago or evidence being lost due to the
passage of time.

[71] Similarly, Rivard, supra, dealt with the discoverability principle, and whether
discoverability applied to extend a limitation period. That case was about the time frame
for filing an initial complaint. As is outlined above, there is no issue in this case about
the time of filing the initial complaint.
[72] Raczynska, supra, Buterman, supra, and Ruhl, supra, were about the limitation
period in the Rules of Court for filing a judicial review application and are not applicable
to the analysis of an application under section 28 of the Act. Likewise, Heredity Homes,
supra, referred to by the respondents, was a case involving construction arbitration
under the Arbitration Act and is of very little value to the circumstances of this case.
[73] I agree with the Director that the potential repercussions of importing a time limit
into section 28 of the Act is not in accordance with one of the core purposes of the Act,
to provide meaningful remedies to victims of discrimination, or consistent with the
principles of statutory interpretation. Section 20 speaks to the time of filing the
complaint. It is silent about when respondents may be added to an existing complaint.
Section 28 does not impose a time limit on establishing that a person is a party to a
complaint. The legislature clearly did not intend to limit section 28 in the way suggested
by the respondents.
Evidentiary and Procedural Issues
Application to Appeal the Decision on the Preliminary Application
[74] After delivering my oral decision on the preliminary application, the respondents
requested that the hearing be adjourned so that they could seek judicial review of that
ruling. While it is up to the parties as to whether or not they wish to file a judicial review,
I denied the request to adjourn the hearing. The hearing on the merits had already been
adjourned once and the witnesses were present and ready to testify. Further, they had
been advised in my letter of September 22, 2016 that we would proceed with the
hearing on the merits directly following the preliminary application.
[75] The respondents referred to the Bruehl, supra, decision as precedent for
proceeding in two stages, with one hearing and decision on the preliminary application
and a further hearing and decision on the merits. While this did occur in Bruehl, there is
28
29
16
no authority for the suggestion that the tribunal must bifurcate to allow appeals or
judicial review of preliminary applications.
[76] Bifurcating the preliminary application from the hearing on the merits would not
further the interests of justice and would only result in delay through litigation by
instalment. The Alberta Court of Appeal considered this issue in Syncrude Canada Ltd.
v. AHRC and Wadwa:30

The jurisprudence of this Court has consistently discouraged appeals from
preliminary decisions and frowned upon fragmented litigation. Litigation by
instalment is discouraged…
Workum v. Alberta Securities Commission (at para. 2) conveys the long-

standing approach of this Court to appellate review of interim decisions:
“… We do not hear appeals from rulings given partway

through a hearing that will not resolve any final or significant
issues, except in rare and exceptional circumstances… There
are many reasons for doing so, including added costs, time
delays, waste of judicial resources and the need to
discourage premature applications… In most cases,
disagreement with an interim ruling can be a ground for the
appeal of the final decision.”
…
The Act, in my view, should be interpreted with the following principles in

mind:
…
3. In addressing the temporal aspects of a right of appeal of a
preliminary ruling, the Court should also be concerned with the
timely expedition of complaints under the Act.
[77] The most expeditious way to finally resolve this complaint was to proceed directly
to a hearing following the preliminary application. Proceeding in this way caused no
prejudice to either party, who both had ample notice and preparation time for the
hearing on the merits.
Witness Preparation While Under Oath
[78] During the preliminary application to add Mr. Salem as a respondent to the
complaint, the respondents adduced documentary evidence that had not been disclosed
in advance, despite a disclosure order being given in the pre-hearing telephone
conference. Counsel for the Director did not seek an adjournment but did request that
she be given an opportunity to review the documents and to discuss them with the
complainant. I granted that request and the Director was provided an opportunity to
30
Syncrude Canada Ltd. v. AHRC and Wadwa, 2008 ABCA 217, at paras 8-11
17
review the newly disclosed records with the complainant during the break between the
preliminary application and commencing the hearing on the merits.
[79] At the time of reviewing these additional records with counsel for the Director, the
complainant had given evidence in chief on the preliminary application and been cross
examined on her preliminary application evidence. She remained under oath and had
not yet given evidence in chief on the merits of the hearing.

[80] Proceeding in this manner was appropriate in the circumstances due to the very
late disclosure of material evidence by the respondents and the interests of proceeding
efficiently without further adjournment.
[81] At all times, the Director’s counsel was bound by the Law Society of Alberta’s
Code of Conduct. With respect to communication with witnesses while under oath, the
Law Society of Alberta’s Code of Conduct provides:
Communication with Witnesses Giving Evidence
5.4-1 A lawyer must not influence a witness or potential witness to give

evidence that is false, misleading or evasive.
5.4-2 A lawyer involved in a proceeding must not obstruct an examination

or cross-examination in any manner.
[82] The Director was entitled to review all relevant evidence in advance and to
prepare its witnesses. Proceeding in this manner avoided further delay and was
appropriate in the circumstances.
Order of the Witnesses
[83] The respondents presented evidence through two witnesses. In the normal
course, witnesses are excluded from the hearing prior to their testimony so that their
evidence is not tainted by hearing others’ evidence. One exception to this is where a
witness is a party to a proceeding and is entitled to attend the entirety of the
proceedings. As a respondent, Mr. Salem was entitled to be present for the entirety of
the proceedings.
[84] The respondents sought to have Ms. Roth-Salem testify first, which would have
resulted in Mr. Salem being present for her testimony prior to giving his own. The
Director objected and requested that the order of the witnesses be reversed so that Mr.
Salem would not hear Ms. Roth-Salem’s evidence prior to his own testimony.
[85] While I did not want to interfere with the respondents’ presentation of their case, I
agreed with the Director. In this difficult credibility analysis, directing Mr. Salem to give
evidence without being tainted by having the opportunity to hear and potentially alter his
18
version of events was in the interests of justice so that proper weight could be given to
his evidence.
Scope of Cross Examination
[86] Ms. Roth-Salem gave limited evidence on the merits of the application. Counsel
for the respondents objected to cross-examination on anything outside of her evidence

in chief. I allowed cross-examination on any issues relevant to the complaint.
[87] Master Funduk spoke to the scope of cross examination in two Alberta cases. In
Westland Homes (Alberta) Ltd. v. Wauer, he considered the admissibility of cross
examination on an affidavit. In that case, the cross examination addressed issues not
raised in the affidavit. Master Funduk explained that the cross examination was not
limited by the witness’s evidence in direct, but rather only by relevance to the case: 31
… it is not the law that the scope of a cross-examination is limited to the

witness's evidence on examination in chief. A witness can be cross-
examined about anything relevant to the issues before the Court.
[88] Similarly, in Esso Petroleum Canada v. Oyen (Town), Master Funduk considered
the appropriateness of cross examination on an affidavit in support of a summary
judgment application. The Master considered the principles relating to the scope of
cross examination in general: 32
No one can seriously argue that at a trial that the cross-examination of a

witness must be restricted to matters raised in the direct examination of
the witness. The law is the opposite. The witness can be cross-examined
on anything relevant to the issues at trial.
[89] While the contexts of these decisions were different from the present case, the
principles apply equally here. It was appropriate for the Director to cross examine Ms.
Roth-Salem on any issues that were within the witness’s knowledge and which were
relevant to the complaint.
Application to Dismiss Prior to Hearing All of the Evidence
[90] At the conclusion of Ms. Mandziak’s evidence on the merits, the respondents
requested that the complaint be dismissed for failure to establish a prima facie case of
discrimination. I declined to make a ruling on their application at that time in order to
make a determination based on all of the evidence. In doing so, I was mindful that the
burden of proof remained on the complainant to establish that the discrimination likely
occurred. Further, the complainant’s evidence alone was sufficient to establish a prima
facie case of discrimination. She testified at length as to the circumstances of the
31
Westland Homes (Alb erta) Ltd. v. Wauer, [1991] A.J. No. 205, (1991) 118 A.R. 32, at p. 5 of 7 (online)
32
Esso Petroleum Canada v. Oyen (Town), [1990] A.J. No. 1041, (1990) 112 A.R. 10, at p. 4 of 5 (online)
19
discrimination. Although there were minor inconsistencies in her evidence, she was
credible and I believed her version of events.
[91] The respondents could have chosen to call no evidence, at which time I would
have made a determination based only on the complainant’s evidence. However, the
respondents called evidence to contradict the complainant’s. In Peel Law Association v.
Pieters,33 the Ontario Court of Appeal provided a comprehensive analysis for

understanding the burden of proof and the role of respondent evidence in making
findings of discrimination:
In discrimination cases as in medical malpractice cases, the law, while

maintaining the burden of proof on the applicant, provides respondents
with good reason to call evidence. Relatively “little affirmative evidence” is
required before the inference of discrimination is permitted. And the
standard of proof requires only that the inference be more probable than
not. Once there is evidence to support a prima facie case, the respondent
faces the tactical choice: explain or risk losing.
If the respondent does call evidence providing an explanation, the burden

of proof remains on the applicant to establish that the respondent’s
evidence is false or a pretext.
[92] This is what occurred in this case. The complainant provided evidence of the
discrimination while the respondents provided evidence to suggest that the
discrimination did not occur. I took into account all of the evidence adduced, while
maintaining the burden of proof on the complainant.
Hearing on the Merits
The Complainant’s Evidence
[93] Ms. Mandziak testified that at the time of the alleged events that she was 23
years old and a business student at NAIT. She applied to Taste of Tuscany as a server
in early January 2013. She attended the restaurant in person and Mr. Salem hired her
on the spot. She worked at Taste of Tuscany between January and April 2013.
[94] Ms. Mandziak testified that she worked part-time at the restaurant, including
shifts every weekend and some weekday evening shifts. During weekday shifts, it would
only be her and Mr. Salem working in the restaurant. On weekends, she stated that
there would be a busser and occasionally another server along with her in the front of
the house. She did not recall the names of any other staff, other than Ms. Roth-Salem
who worked weekends. She stated that she could not recall any shifts when Mr. Salem
was not present in the workplace.
33
Peel Law Association v. Pieters, 2013 ONCA 396, at paras 73-74
20
[95] Ms. Mandziak explained that Mr. Salem was the chef in the back of the house,
but came out front regularly to make coffees, talk to customers and work on the till. She
stated that if the restaurant was busy that he remained in the back. She explained that
Taste of Tuscany had a bar on the side of the front of the house where drinks were
prepared. She stated that both she and Mr. Salem prepared customer drinks at the bar.
She stated that when it was not too busy that Mr. Salem would help her with preparing
coffees and other drinks.

[96] Ms. Mandziak did not have a clear memory of all of her job duties. She described
the process of recording orders, providing orders to the kitchen, generating a print out
and presenting a bill to customers. However, she could not recall how customers paid.
Ms. Mandziak insisted that she had no access to the till or cash, except when
customers paid in cash and told her to keep the change. She did not recall the use of an
electronic payment device. She also described cleaning duties but was not clear on how
long these took her to complete.
[97] Ms. Mandziak stated that her relationship with Mr. Salem was good when she
first started. She indicated that she had many questions and that Mr. Salem helped her
to learn. They worked closely together and were friendly. She stated that her
relationship with Ms. Roth-Salem was also good, but not as close as with Mr. Salem.
She stated that Ms. Roth-Salem was a hard worker and always doing something, with
little time for “chit chat.”
[98] Ms. Mandziak explained that there was a lot of chit chat with Mr. Salem but that
the relationship was not beyond an ordinary friendship. She indicated that
approximately once per week on weekdays, when it was just the two of them, that he
would offer her a glass of wine after work and he would tell her about his life. Topics
included discussions about Mr. Salem meeting a woman at a bar and Ms. Mandziak’s
boyfriend at the time. She stated that, on occasion, these drinks after work included
shots from the bar. She was not expected to pay for these drinks. On weekends, this
type of after work socializing also occurred with Ms. Roth-Salem and any other staff
who had been working. Ms. Mandziak maintained that she did not pay for after work
drinks, even with Ms. Roth-Salem present.
[99] On cross examination, Ms. Mandziak was questioned about giving away free
drinks to friends and to a regular customer in exchange for a free tattoo. Ms. Mandziak
denied these allegations. She stated that Mr. Salem gave away free drinks to regular
customers on occasion, and that regular customers would commonly be present in the
restaurant, visiting with Mr. Salem prior to her arrival for evening shifts.
[100] Ms. Mandziak was likewise cross-examined about a gift that she had purchased
for Mr. Salem’s birthday. She explained that Mr. Salem had discussed bringing back
expensive purses from Italy for her on an upcoming trip, and that she felt obligated to
buy him a gift for his birthday.
21
[101] According to Ms. Mandziak, Mr. Salem requested to socialize with her outside of
work but that she declined. She indicated that he drove her home on a number of
occasions. She estimated that it occurred approximately five times, but was uncertain
about the specific number of times. She also indicated that on one occasion Mr. Salem
assisted her by driving her to a pick-a-part lot so that she could obtain parts for her
vehicle. On cross examination, she acknowledged that she had asked for money from
Mr. Salem to assist with her car purchase. She stated that Mr. Salem offered her cash

so that Ms. Roth-Salem would not know about it, but that ultimately she did not need
financial assistance. Instead, Mr. Salem had assisted her by taking her to the pick-a-
part lot.
[102] The occasions in which Mr. Salem requested Ms. Mandziak to socialize with her
outside of work included an invitation to attend Easter dinner at Mr. Salem’s home with
Ms. Roth-Salem and himself, where she was invited to stay overnight. In addition, she
stated that Mr. Salem invited her to go to Banff with him and to share a hotel room. Her
evidence at the hearing was that she expected Ms. Roth-Salem to be there as well. Ms.
Mandziak stated that she never did attend Mr. Salem’s home or travel to Banff with him.
[103] Ms. Mandziak stated that Mr. Salem discussed the opportunity for her to take on
more managerial roles, including during a potential upcoming trip to Italy and beyond.
She stated that this was discussed many times. She asked for the particulars in writing
but never received them. Ms. Mandziak was excited about the opportunity to be a
manager because of her studies in business and the work experience it would provide.
Ms. Mandziak acknowledged that she was not ever appointed to the role of manager.
[104] On cross-examination, Ms. Mandziak was shown a print out of her LinkedIn
profile, dated May 27, 2013, approximately one month after leaving employment at the
Taste of Tuscany. On it, she had stated that she had been a manager at Taste of
Tuscany. She stated that her description on the LinkedIn profile was a mistake and that
she had “jumped the gun” in posting that because she was excited about the
opportunity. The reason it remained on the profile after leaving Taste of Tuscany was
that she does not go into LinkedIn frequently.
[105] In addition to occasional drinks after work, Ms. Mandziak stated that she
occasionally smoked before shifts with Mr. Salem, who provided her with cigarettes.
However, at some point during her employment, Ms. Mandziak converted to a religion
that prohibited her from drinking alcohol, coffee, smoking or dating. She testified that
Mr. Salem did not understand her new lifestyle and complained that she was being
ridiculous or that she used to be so much fun, or words to that effect. Ms. Mandziak also
stated that Mr. Salem shared with her his interest in Islam. She stated, however, that
she was not ever aware that Mr. Salem professed to be a devout Muslim.
[106] Ms. Mandziak described three instances of sexual harassment. The first occurred
near the bar area in the restaurant approximately one to two months after starting
employment at the restaurant. According to Ms. Mandziak, Mr. Salem cupped her right
buttock with his hand. She stated that she was near the till and counter over to one side.
22
She was uncertain where Mr. Salem came from, but guessed he came from the back of
the restaurant. She stated that he cupped her buttock for approximately one second and
then moved away with his back to her, but she could see that he was smiling. Ms.
Mandziak described his expression as a smirk and believed that the contact was
intentional. She did not consent to the contact.
[107] Ms. Mandziak believed that there were cameras in the restaurant for the purpose

of recording employee interactions with money. She stated that Mr. Salem had caught a
previous employee stealing from the till, which was why she was not permitted to use
the till with customers. Ms. Mandziak believed that her positioning at the time of the first
incident occurred at a place outside of the camera range. On cross-examination, Ms.
Mandziak was questioned about the existence of cameras. She stated that she was told
that they were there and saw physical cameras but was not aware if they were hooked
up or not.
[108] Ms. Mandziak stated that she was completely thrown off by the first incident of
sexual harassment and shocked by the unprofessionalism. She was not sure if she said
anything about it immediately after the contact but stated that she texted him either that
night or the next morning. Ms. Mandziak described herself as upset by Mr. Salem’s
behaviour.
[109] At her next shift, she initiated a discussion with Mr. Salem where she indicated
that his behaviour was unwelcome and could not happen again. Ms. Mandziak stated
that Mr. Salem apologized to her, explained that he had deleted her texts so that Ms.
Roth-Salem would not see them, and then remarked that she had a nice butt, or words
to that effect. Ms. Mandziak stated that she did not respond but was frustrated by Mr.
Salem’s response. Further, she was frustrated that she had had to initiate the
discussion.
[110] The second incident of alleged sexual harassment occurred on or near

Valentine’s Day. Ms. Mandziak stated that it had been a particularly busy evening. After
closing and cleaning up the restaurant late in the evening, Ms. Roth-Salem, Mr. Salem
and Ms. Mandziak sat at the restaurant’s round tables and drank wine. When Ms. Roth-
Salem went to the bathroom, Mr. Salem leaned in to kiss Ms. Mandziak.
[111] Ms. Mandziak stated that Mr. Salem leaned in with his whole body and that she
leaned away. She did not believe that he was impaired at the time and estimated that
they were both working on their first glass of wine. Ms. Mandziak stated that she asked
him what he was doing or words to that effect and got up to walk beside the bar. Ms.
Mandziak was concerned about Ms. Roth-Salem returning and becoming angry. She
also stated that she felt shocked and surprised. She felt that she had worked hard to
build a professional relationship and that she worked hard when at work. Mr. Salem’s
conduct in attempting to kiss her made her feel that she was not valued for the quality of
her work.
23
[112] Ms. Mandziak stated that she was so upset by the attempted kiss that she slept
for a prolonged time and either missed her next shift or came very late. She explained
that this is a behaviour that she displays when very upset. As a result of either coming
very late or missing the shift entirely, Ms. Mandziak stated that Ms. Roth-Salem was
very angry at her. She indicated that Mr. Salem later communicated that he had
intervened with Ms. Roth-Salem so that she would not be fired and that she should
thank him.

[113] On cross-examination, Ms. Mandziak was shown her time sheet for February 15,
the day after Valentine’s Day. It showed that Ms. Mandziak had worked 5:15 p.m. to
10:45 p.m. that day, which was normal working hours for her. She stated that it was
possible that Mr. Salem had written in her hours for her, which hours she had missed.
She was also not certain on the date of this alleged incident, only that it was around
Valentine’s Day.
[114] Ms. Mandziak indicated that she wanted a good working relationship and wanted
to remain working at Taste of Tuscany. Her intention was to set boundaries and
continue her employment more smoothly.
[115] The third incident occurred at the end of a shift in April. The restaurant had been
cleaned and the lights in the front of the house were off. Ms. Mandziak stated that Mr.
Salem was “happy drunk,” and that if a group of sober people came into the restaurant
that they would definitely recognize that he had been drinking. The incident occurred
near the kitchen.
[116] Mr. Salem reached out to give Ms. Mandziak a hug. However, he then pinned her
arms to her side so that she was unable to move and pushed her up against his body.
According to Ms. Mandziak, Mr. Salem touched her upper buttock and back. Her head
was against his chest and they were stomach to stomach. This contact lasted
approximately 15 seconds. Ms. Mandziak testified that it felt like much longer. She
stated that she was really afraid. She did not know what he would do and she felt
helpless.
[117] Ms. Mandziak stated that her next shift was a weekend shift. She attended that
because she knew that Ms. Roth-Salem would be there. Ms. Mandziak stated that she
did not talk to Mr. Salem and that she felt uncomfortable. She stated that she
approached Ms. Roth-Salem near the bathrooms and advised Ms. Roth-Salem that she
did not feel comfortable working alone with Mr. Salem but that she would like to keep
working there if others were present.
[118] Ms. Mandziak stated that Ms. Roth-Salem later phoned her and advised that she
did not have to come into work anymore. Ms. Mandziak assumed Taste of Tuscany
could not afford to staff a server who worked only weekends. She stated that she did
not formally resign and there was nothing in writing from either her or anyone at Taste
of Tuscany. Ms. Mandziak was cross-examined on the circumstances of the end of her
24
employment at Taste of Tuscany. She was not certain about the particulars of her end
of employment, but believed that she was effectively terminated.
[119] Subsequent to her employment at Taste of Tuscany, Ms. Mandziak obtained a

job in construction for the summer. She did not recall her pay but believed that she likely
made more money at that job because it was full-time work.

[120] Ms. Mandziak stated that leaving Taste of Tuscany under these circumstances
was a bad experience for her and that she felt jaded. She stated that she has not
worked for a small company again and continues to feel uncomfortable working with
older males.
The Respondents’ Evidence
[121] Mr. Salem testified that he was the chef at Taste of Tuscany, an Italian fine
dining restaurant in St. Albert that opened in November 2011, and which closed in or
around 2015. He agreed that the restaurant was small with approximately 12 tables in a
600 square foot space, and usually with just one or two servers in the front of the house.
[122] Mr. Salem gave a very different description of his personal collegiality at the
restaurant from what Ms. Mandziak described. He stated that at all relevant times he
was a devout Muslim, which included that he never consumed alcohol at any time. He
insisted that he strictly followed his religious creed on this point. He strongly denied ever
drinking with Ms. Mandziak at work at any time, or to providing her with drinks.
[123] Mr. Salem testified that his main role at the restaurant was in the back of the
house as the chef, and that he could not leave the kitchen unless it was not busy. He
described himself as fastidious with cleanliness and insisted that he never shook hands
with customers, in order to avoid cross contamination. Similarly, he stated that he never
hugged anyone in the restaurant at any time. He stated that he had to be 110 per cent
on top of things. He insisted that he did not joke with customers and that all
relationships at the restaurant with him were completely professional in nature. He
insisted that Ms. Roth-Salem was the person to develop relationships with customers
and that he rarely spoke with them. However, he acknowledged on cross-examination
that occasionally customers would come to the kitchen or visit him out back when he
was on smoke breaks. Nevertheless, he insisted that all discussions were strictly
professional.
[124] On cross examination, Mr. Salem acknowledged that during the week, the
restaurant was open for lunch and that servers were not scheduled to begin until
evening service, meaning that he would be working both the back of the house and the
front of the house.
[125] Mr. Salem insisted that he never gave free drinks to anyone, whether staff or
regular customers. He stated that he occasionally gave a piece of cake to regular
customers on their birthdays, but never any drinks. He testified that food only had a 25
25
per cent profit margin, while alcoholic beverages had a 65 per cent profit margin, and
accordingly would not give away free drinks. On cross-examination, he acknowledged
that on occasion Ms. Roth-Salem would consume alcohol with Ms. Mandziak after a
shift. He believed on those occasions, that Ms. Mandziak was expected to pay for half
of the price of the drinks.
[126] Mr. Salem stated that he was 110 per cent professional with staff at all times. He

stated that he was confused as to why Ms. Mandziak gave him a birthday present
because he did not feel that their relationship was close enough to warrant a gift. He
denied that he ever shared particulars of his personal life with anyone outside of his
family. He also denied that he had ever driven Ms. Mandziak home on any occasion or
taken her to the pick-a-part lot for parts for her vehicle. He insisted that his discussions
with Ms. Mandziak were always related to work and that he was not there to make
friends. He acknowledged that Ms. Mandziak had asked him for a loan for her car
purchase but that he had refused.
[127] Mr. Salem acknowledged that he took unscheduled smoke breaks in the back of
the restaurant, and that others might join him on occasion. He stated that he did not
invite anyone to join him but acknowledged that Ms. Mandziak occasionally joined him
to smoke behind the restaurant. He denied that he chatted with her on those occasions
or that he gave her cigarettes. He insisted that they stood there and smoked only. He
strongly denied having a friendly relationship with Ms. Mandziak.
[128] Mr. Salem denied that there were cameras at all in the restaurant, or that he had
ever discussed with Ms. Mandziak her becoming a manager of the restaurant. He was
adamant that there was no role in the small organization to add a manager, or that there
were ever any plans to take a vacation that would require Ms. Mandziak to assume a
managerial role in his absence. He described his life at the time of operating the
restaurant as very busy, with few days off and days off spent in running errands or
performing cleaning duties for the restaurant. He denied that he would even have had
the opportunity to go to Banff at the time, let alone invite Ms. Mandziak to join him. He
acknowledged that at one point in the restaurant’s business, that Mr. Salem had
travelled to Egypt for 10 days, at which time the restaurant closed. Ms. Mandziak was
not employed at that time.
[129] Mr. Salem vehemently denied all alleged incidents of sexual harassment. He
stated that he had never made physical contact with Ms. Mandziak at any time. He
denied ever even inadvertently bumping into her or having occasion to be at the bar at
the same time as her. Similarly, he denied attempting to kiss Ms. Mandziak or to
hugging her as described in the third alleged incident. He stated that he was a man of
integrity and brought up in a good home. He became emotional in describing his 26-
year marriage and the respect that he had for his wife. Mr. Salem insisted that he had
spent 24 years in Canada and had never even acquired a parking ticket or broken the
law in any way.
26
[130] With respect to the conclusion of Ms. Mandziak’s employment, Mr. Salem
testified that Ms. Mandziak had left a voice message on his phone to indicate her
resignation.
[131] Ms. Roth-Salem also testified on behalf of the respondents. She explained that
Mr. Salem was present at the restaurant every day while she was there mostly on
Fridays and Saturdays. At all relevant times, she had a full-time job in facility and supply

chain management. Her duties at Taste of Tuscany included payroll, laundering linens,
cleaning duties, meeting with beverage suppliers, and working the front of the house.
She explained that Mr. Salem was responsible for suppliers of food, while they both had
responsibility for dealing with suppliers of alcohol.
[132] Ms. Roth-Salem stated that the restaurant customers were mostly regulars and
that it was common to chat with them. She stated that she occasionally gave free
desserts to customers and occasionally free drinks to better customers. Ms. Roth-Salem
stated that Mr. Salem did not drink alcohol ever, due to his faith. She described him as
coming out to the front of the house only on occasion on busy weekend evenings.
[133] With respect to staff, Ms. Roth-Salem stated that it was a small group that
worked in the restaurant and that they all got along well. She stated that on occasion
she would have a glass of wine after a shift with Ms. Mandziak. This would occur while
finishing and cleaning up, or restocking shelves. Occasionally Ms. Mandziak would have
a glass of wine while waiting on a bar stool for a ride.
[134] Ms. Roth-Salem testified that Ms. Mandziak had resigned from her employment
at Taste of Tuscany by way of voice mail. Accordingly, she had processed Ms.
Mandziak’s Record of Employment as a resignation.
[135] Ms. Roth-Salem had no knowledge of the alleged incidents of sexual

harassment.
Analysis on the Merits
[136] The Supreme Court of Canada addressed the meaning of sexual harassment in
the workplace in Janzen v. Platy Enterprisess Ltd.:34
… 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 … an abuse of power. …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.
34
Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, at p 1284
27
[137] The complainant has the burden of proof to establish a prima facie case of
discrimination, on the balance of probabilities.35 In Moore v. British Columbia
(Education),36 the Supreme Court of Canada established a three-part test that must be
satisfied in order to prove a prima facie case of discrimination:
1. the complainant has a characteristic that is protected from discrimination

under the Act;

2. the complainant experienced an adverse impact; and
3. the protected characteristic was a factor in the adverse impact.
[138] In the present case, Ms. Mandziak complains that she was discriminated on the
basis of her gender, through sexual harassment in the workplace. Section 7(1) of the
Act prohibits discrimination on the basis of gender in employment. As set out in Janzen,
supra, sexual harassment has long been accepted as a form of gender discrimination.
The first stage of the Moore test is easily made out in this case. Ms. Mandziak is a
woman, and her gender was a protected ground under the Act.
[139] The respondents contended that the second and third branches of the Moore
analysis were not made out for two reasons. First, they argued that the alleged events
did not happen, and urged me to reject the complainant’s evidence on the sexual
harassment. Second, they said that the alleged instances of sexual harassment should
not be seen as related to the employment because they occurred after hours. That is,
they urged me to find that there was no adverse impact on Ms. Mandziak’s employment.
[140] For the reasons that follow, I find that all three stages of the Moore analysis are
established in this case. Ms. Mandziak has a characteristic that is protected ground
under the Act, namely her gender. She suffered an adverse impact in the form of three
instances of sexual harassment during the course of her employment. Her gender was
a factor in this adverse impact. Further, I find that Ms. Mandziak has established that
her gender was a factor in the end of her employment with the respondents. Even
though the respondents did not refuse outright to employ the complainant, the end of
her employment did come about because of the respondents’ sexual harassment.
Credibility and Reliability
[141] Whether the complainant has met the burden of proof in this case turns entirely
on the credibility and reliability of the witnesses. Like in Pham, supra, the parties agreed
on the essential terms and length of the employment and little else. The Supreme Court
of Canada provided direction on assessing credibility in its seminal case of Faryna v.
Chorney:37
35
Queb ec (Commission des droits de la personne et des droits de la jeunesse) v. Bomb ardier Inc. (Bomb ardier
Aerospace Training Center), [2015] 2 SCR 789, at para 59
36
Moore v. British Columb ia (Education), 2012 SCC 61, at para 33
37
Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 at para 11
28
The credibility of interested witness, particularly in cases of conflict of
evidence, cannot be gauged solely by the test of whether the personal
demeanour of the particular witness carried conviction of the truth. The
test must reasonably subject his story to an examination of its consistency
with 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.
[142] The relevant factors in a credibility assessment include:38
 the internal consistency or inconsistency of evidence

 the witness’s ability and/or capacity to apprehend and recollect
 the witness’s opportunity and/or inclination to tailor evidence
 the witness’s opportunity and/or inclination to embellish evidence
 the existence of corroborative and/or confirmatory evidence
 the motives of the witnesses and/or their relationship with the parties
 the failure to call or produce material evidence[.]
[143] Ms. Mandziak and Mr. Salem both gave evidence that was at times inconsistent.
However, Mr. Salem’s evidence was so inconsistent and self-serving that it affected his
credibility. While I found Ms. Roth-Salem's evidence to be measured, she was not
present for key events. For the reasons that follow, I preferred Ms. Mandziak’s
testimony to Mr. Salem’s, and find that her evidence was credible and meets the
balance of probabilities standard for proving a contravention of the Act.
[144] I accept Ms. Mandziak’s version of events as it relates to the incidents of sexual
harassment. She was measured in her descriptions. She did not cast herself in an
overly positive light or cast Mr. Salem or Ms. Roth-Salem overly negatively. She
admitted to drinking and smoking at the workplace, admitted to asking for a loan for her
car, and admitted to being excessively late or to missing one or more shifts. I found that
Ms. Mandziak did not tend to exaggerate and her version of events was both believable
and reasonable in light of the preponderance of the probabilities.
[145] I acknowledge that Ms. Mandziak had trouble with her recollection in some
areas. She had difficulty recalling specific dates and basic restaurant protocol, like the
use of the debit machine. There were also a few inconsistencies between her evidence
and her complaint form. For example, on her complaint form she indicated that she was
not sure if Mr. Salem had been drinking at the time of the third alleged incident, but
during evidence she testified that he was clearly impaired. Similarly, on the complaint
form, Ms. Mandziak indicated that during the third incident that Mr. Salem had “moved
his hands down [her] side and grabbed [her] butt.” However, in evidence, Ms. Mandziak
38
McKay v. Toronto Police Services Board, 2011 HRTO 499 at paras 11-13, cited in Echavarria v. The Chief of
Police of the Edmonton Police Service, 2016 AHRC 5, at para 68
29
stated that he touched her upper butt and back. I attribute these inconsistencies to the
passage of time, and I find that they do not fundamentally change the nature of the
incidents alleged.
[146] The respondent takes issue with Ms. Mandziak’s testimony surrounding the
incidents of sexual harassment in relation to the second incident, which occurred on or
near Valentine’s Day in 2013. Ms. Mandziak’s version of events was that Mr. Salem

tried to kiss her after work in the restaurant, and that she then slept for an extended
period due to being very upset about the situation. She was then very late or missed the
following shift. Ms. Mandziak was shown copies of her time sheets for February 15,
2013, the day after Valentine’s Day, and they showed Ms. Mandziak as having worked
a normal full shift that day.
[147] However, Ms. Mandziak, in her testimony, was not certain about the date of the
attempted kiss. In her evidence in chief, she stated that she believed that the incident
occurred on Valentine’s Day but was unsure. She only recalled that it was a very busy
night. She stated that the restaurant was set up for two days of celebration for the
holiday, and that the kiss incident may have been on the Wednesday instead of the
Thursday, but that she was not certain on the date.
[148] In reviewing Ms. Mandziak’s timesheets, it is clear that Valentine’s Day occurred
on the Thursday of that week. It is reasonably possible that Taste of Tuscany was busy
on both Thursday, February 14 and Friday, February 15 as part of the Valentine’s Day
weekend celebrations. It is reasonably possible that the attempted kiss incident
occurred on the Friday. This would mean that Ms. Mandziak missed her Saturday shift
due to over sleeping. Ms. Mandziak’s time sheets show her working both Thursday,
February 14 (Valentine’s Day) and Friday, February 15, but not Saturday, February 16.
Ms. Mandziak often worked Saturdays during her employment at Taste of Tuscany. She
was clear in her descriptions of the incident and her insistence on their occurrence. She
was unclear on when exactly it happened. I find that the events, which she stated
occurred on or around Valentine’s Day, were consistent with her testimony.
[149] I acknowledge that there was a difference between Ms. Mandziak’s evidence and
Ms. Roth-Salem’s evidence (and Mr. Salem’s evidence) as to whether Mr. Salem drank
alcohol. Ms. Mandziak stated that Mr. Salem drank after work with her on occasion and
that he had likely been drinking at the time of the third incident. Ms. Roth-Salem, who
had been married to Mr. Salem for many years, stated that he did not drink alcohol ever.
Mr. Salem stated that he never drank. I place no weight on Mr. Salem’s evidence as I
do not find him to be a credible witness, for reasons set out below. I find that both Ms.
Mandziak and Ms. Roth-Salem were attempting to tell the truth, and in reconciling their
evidence I find that it is more likely than not that Mr. Salem did drink but that he did not
do so in front of Ms. Roth-Salem. To the extent that Ms. Mandziak believed that Mr.
Salem was drinking the night of the second incident when Ms. Roth-Salem was present,
I find that Ms. Mandziak may have been mistaken on that point. In making this finding, I
wish to emphasize that I find Ms. Mandziak to be a credible witness. She was trying to
30
tell the truth and not be deceitful. However, she was not always a reliable witness in the
sense that her memory was imperfect.
[150] The Ontario Human Rights Tribunal in McKay v. Toronto Police Services Board 39
explained that rejection of a witness’s testimony in one aspect does not automatically
result in rejection of the entirety of that witness’s evidence:

There is no rule as to when the existence of inconsistencies shifts
evidence outside the realm of the preponderance of probabilities. In
McDougall at para. 58, the Supreme Court advises to:
(...) look at the totality of the evidence to assess the impact

of the inconsistencies in that evidence on questions of
credibility and reliability pertaining to the core issue in the
case.
A finding of lack of credibility or reliability with respect to one aspect of a

witness’s testimony does not automatically render the entirety of the
witness’s evidence as incredible or unreliable. … As such, a tribunal is
entitled to accept or reject some, all or none of a witness’s evidence.
[151] I accept Ms. Mandziak’s version of events in relation to the three sexual assault
allegations, and find that her evidence was sufficient to meet her burden of proof on the
balance of probabilities.
[152] In contrast to Ms. Mandziak’s evidence, which, while imperfect, I accept as

generally credible, Mr. Salem’s evidence was self-serving and embellished. I did not find
him credible. Mr. Salem’s evidence, particularly on cross-examination, was strict and
unbending, without any room for error. On direct, his responses appeared rehearsed;
while on cross-examination, his responses were defensive and exaggerated. For
example, Mr. Salem repeatedly insisted that he performed at 110 per cent, stated that
he had never even had a parking ticket in his life, and stated that every conversati on at
the restaurant was always professional without failure.
[153] The insistence of never having a social conversation at the work place was
repeated and not believable. For example, Mr. Salem was so insistent on this point that
when questioned about having occasional smoke breaks in the back with Ms. Mandziak,
he stated that he would not speak to her on these occasions and would just stand and
smoke. He completely denied that he had a friendly relationship in any way with Ms.
Mandziak.
[154] Mr. Salem painted a picture of himself as restricting all conversations and
conversing very rarely, but that image differed with other facts offered, such as regular
loyal customers seeking him out in the kitchen or out back on breaks, Ms. Mandziak
39
McKay, supra, cited in Echavarria, supra, at para 68
31
buying him a birthday gift, and the overall collegial and even fun atmosphere at the
restaurant that both Ms. Mandziak and Ms. Roth-Salem described.
[155] Another example of Mr. Salem’s self-serving rigid testimony was his evidence
about giving away drinks at the restaurant. Mr. Salem stated that he never gave away
drinks to regular customers or staff on any occasion and that he would not ever do that
as the owner of the business. In contrast, Ms. Roth-Salem, also an owner of Taste of

Tuscany, stated that on occasion when she was working that she would give drinks to
regular customers and that she would also occasionally give drinks to staff after work.
They were both owners of the restaurant. While giving away drinks may have been rare,
it is clear that as owners of the business, it made sense to do so from time to time. Mr.
Salem’s rigid testimony and vehement denials were at odds with logical conclusions and
Ms. Roth-Salem’s more measured testimony.
[156] Similarly, Mr. Salem’s evidence that he had not had a past problem with
employee theft from the till was contradicted by Ms. Roth-Salem who indicated that
there was such a past problem. Whether drinks were given out or not or whether minor
employee theft had occurred in the past is not directly material to the allegations of the
complaint, but both are examples of the manner in which Mr. Salem gave evidence,
which was to deny anything he thought helpful to the complainant in a very rigid and
inflexible manner.
[157] In sum, although there were minor inconsistencies in the testimony of Ms.
Mandziak, her overall narrative of what happened during the sexual harassment
incidents was consistent throughout. She was not rehearsed or self-serving, and
admitted her deficiencies. Further, her version of events was logical in the
circumstances and likely occurred, given the preponderance of the probabilities, as set
out in Farnya, supra. In contrast, I did not find Mr. Salem credible. His testimony was
inconsistent and self-serving.
[158] I find, as per Janzen, supra, and in contravention of section 7(1)(b), that the
alleged three incidents, as described by Ms. Mandziak, constituted unwelcome conduct
of a sexual nature that detrimentally affected Ms. Mandziak’s work environment.
[159] With respect to the conclusion of her employment relationship at Taste of

Tuscany and a breach of section 7(1)(a) of the Act, Ms. Mandziak’s testimony differed
from Ms. Roth-Salem’s and Mr. Salem’s testimonies. Ms. Mandziak stated that she
spoke to Ms. Roth-Salem at the restaurant to indicate that she did not want to work
alone with Mr. Salem any longer but that she wanted to remain employed. According to
Ms. Mandziak, Ms. Roth-Salem later communicated to Ms. Mandziak that she should
not return to the workplace. In contrast, Ms. Roth-Salem testified that Ms. Mandziak had
left a voice message on the restaurant phone indicating that she was resigning and that
she had obtained alternative employment.
[160] I believe that both Ms. Roth-Salem and Ms. Mandziak were attempting to tell the
truth about what happened. It is not clear on the evidence whether Ms. Mandziak
32
resigned or whether Taste of Tuscany terminated her employment. What is clear,
however, is that the sexual harassment was at least a factor in the employment coming
to an end. That is, if Ms. Mandziak resigned, she did so because of the sexual
harassment. Ms. Mandziak stated that she was unwilling to continue to work alone with
Mr. Salem, and that she believed that Taste of Tuscany could not afford to employ a
server with that requirement. Accordingly, even if she resigned, the sexual harassment
was at least a factor in that decision. Similarly, if Ms. Mandziak was terminated for

refusing to work shifts alone with Mr. Salem, the sexual harassment was clearly a factor
in her termination. Either way, section 7(1)(a) has been contravened.
After Work Incidents Related to the Employment
[161] The respondents argued that because the three instances of sexual harassment
occurred outside of working hours, that Ms. Mandziak’s employment was not adversely
impacted. The respondents referred me to Schofield v. AltaSteel Ltd.,40 Robichaud v.
Canada,41 and Cluff v. Canada (Department of Agriculture).42 These cases stand for the
proposition that an employment related event must be directly or indirectly related to
work activities. The respondents particularly relied on the Schofield decision, in which
my colleague determined that sexual harassment occurring at a union event did not
occur in the course of employment because it happened outside of work hours, away
from the workplace, and did not involve job-related duties.
[162] I agree with the principles arising from the respondents’ cases, however, the
circumstances are distinguishable. All of the incidents in this case occurred in the
workplace, immediately following working hours between the owner and an employee
and were either directly or indirectly related to the employment relationship.
[163] The first alleged incident of sexual harassment, the buttocks touch, occurred at
the bar in the restaurant. It was not clear from the evidence whether Ms. Mandziak was
performing work-related duties at the time or if she was waiting there following
completion of her duties. Either way, Ms. Mandziak was in the workplace, an incident
occurred between her and her boss, and she was there at a minimum following
completion of work duties. Likewise, the second incident, the attempted kiss, occurred
after work but in the work place between the owner and the employee, who were
celebrating the completion of a busy shift. In the case of the most serious of the
allegations, the prolonged hug, where Mr. Salem allegedly pinned down Ms. Mandziak’s
arms, it occurred as Ms. Mandziak was going to leave and was saying good night at the
conclusion of her shift. These incidents were inextricably connected to the employment
and took place in the workplace.
[164] The Director referred me to the Ontario Court of Appeal decision in Simpson v.
Consumers Association,43 a wrongful dismissal case, in which the court found that
40
Schofield v. AltaSteel Ltd., 2015 AHRC 15
41
Rob ichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84
42
Cluff v. Canada (Department of Agriculture), [1994] 2 FC 176
43
Simpson v. Consumers’ Assn. of Canada, 2001 CanLII 23994 (ON CA)
33
incidents occurring outside of work and business meetings were work related. These
incidents occurred at a hotel hospitality suite and at a private cottage, but were
nevertheless connected to the work place and work related duties enough to warrant a
finding that the discrimination occurred in the course of employment. The Court held:44
It would be artificial and contrary to the purpose of controlling sexual

harassment in the workplace to say that after-work interaction between a

supervisor and other employees cannot constitute the workplace for the
purpose of the application of the law regarding employment-related sexual
harassment. The determination of whether, in any particular case, activity
that occurs after hours or outside the confines of the business
establishment can be the subject of complaint will be a question of fact. …
[165] In this case, I make a finding of fact that the incidents occurring within the
workplace, but after working hours, were directly related to Ms. Mandziak’s employment
and constituted sexual harassment in her employment.
Conclusion and Order
[166] The Director and the complainant have established that section 7 of the Act has
been contravened.
[167] Remedy will be addressed through written submissions. The parties addressed
remedy to some degree in their initial written submissions. However, full argument was
not completed on the issue due to time constraints.
[168] The complainant and Director will have 14 days from the date of this decision to
file supplemental written submissions on remedy.
[169] The respondents will have 28 days from the date of this order to file
supplemental written submissions on remedy.
March 21, 2017 Kathryn Oviatt, B.A., LL.B.

Tribunal Chair
44
Simpson, supra, at para 61
34
Appearances:
Renee Mandziak, Complainant

on her own behalf
Tania Sarkar, Legal Counsel

for the Alberta Human Rights Commission (Director)

Catherine Zrymiak, Legal Counsel
Weary & Zrymiak
for the Respondents Taste of Tuscany Ltd. and Medhat Salem
35

2017 Ahrc 7

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2017 Ahrc 7

Uploaded by

Copyright:

Available Formats

HUMAN RIGHTS TRIBUNAL OF ALBERTA

Citation: Mandziak v. Taste of Tuscany Ltd., 2017 AHRC 7

2017 AHRC 7 (CanLII)

Alberta Human Rights Commission (Director)

Taste of Tuscany Ltd.

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

Decision Date: March 21, 2017

File Number: N2013/05/0060

Office of the Chief of the Commission and Tribunals

[1] This is a sexual harassment case, arising in employment. The complainant,

2017 AHRC 7 (CanLII)

7(1) No employer shall

(a) refuse to employ or refuse to continue to employ any person, or

2017 AHRC 7 (CanLII)

(2) A complaint made pursuant to subsection (1) must

28 The following persons are parties to a proceeding before a human

[8] The following issue arose in the Director’s preliminary application:

1. Should Mr. Medhat Salem be added as a respondent to the complaint?

[10] The following issue arises on the merits:

1. Has the complainant established discrimination on the grounds of

The Tribunal’s Authority to Review the Investigation

2017 AHRC 7 (CanLII)

[12] The respondent provided supplemental written submissions on November 17,

In my view, a board of inquiry has no general authority under

Further at p. 16 [D/477, para. 34]:

2017 AHRC 7 (CanLII)

Even if there was a poor or biased investigation and notwithstanding the

2017 AHRC 7 (CanLII)

2017 AHRC 7 (CanLII)

[27] On cross examination, Ms. Roth-Salem acknowledged that Taste of Tuscany

2017 AHRC 7 (CanLII)

[33] The Director emphasized the importance of providing meaningful remedies to

2017 AHRC 7 (CanLII)

2017 AHRC 7 (CanLII)

The Respondents’ Position on the Preliminary Application to Add the Individual

2017 AHRC 7 (CanLII)

[47] The respondents referred to Polczer, supra, as a particularly parallel case. As is

… In my view, as was found in Walsh v. Mobil Oil Canada, supra, the

2017 AHRC 7 (CanLII)

Analysis on the Preliminary Application to Add the Individual Respondent

The following persons are parties to a proceeding before a human rights

2017 AHRC 7 (CanLII)

2. Will the addition of the proposed respondent cause substantial

2017 AHRC 7 (CanLII)

Section 28 provides that the Tribunal may specify a party to the

2017 AHRC 7 (CanLII)

I am mindful of section 20 of the Act that directs that a complaint must be

[67] There may be circumstances where section 20(2)(b) will be applicable to an

2017 AHRC 7 (CanLII)

Evidentiary and Procedural Issues

Application to Appeal the Decision on the Preliminary Application

2017 AHRC 7 (CanLII)

Workum v. Alberta Securities Commission (at para. 2) conveys the long-

“… We do not hear appeals from rulings given partway

The Act, in my view, should be interpreted with the following principles in

Witness Preparation While Under Oath

2017 AHRC 7 (CanLII)

Communication with Witnesses Giving Evidence

5.4-1 A lawyer must not influence a witness or potential witness to give

5.4-2 A lawyer involved in a proceeding must not obstruct an examination

Order of the Witnesses

Scope of Cross Examination