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Leon Gonzales v. Western Pacific Engineering Group Ltd. and another, 2024 BCHRT 295

Date Issued: October 23, 2024
File: CS-001456

Indexed as: de Leon Gonzales v. Western Pacific Engineering Group Ltd. and another, 2024 BCHRT 295

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN:

Elizabeth de Leon Gonzalez

COMPLAINANT

AND:

Western Pacific Engineering Group Ltd. and Fabio A. Morales

RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Sonya Pighin

Counsel for the Complainant: Lauren Marshall and Tanya Lovrich

Counsel for the Respondents: Gradin D. Tyler and Anastasia Fairfield

Dates of Hearing: July 24 to 28, 2023 and September 18, 2023

Location of Hearing: Microsoft Teams Video

TABLE OF CONTENTS

I INTRODUCTION

[1] Fabio A. Morales is a Columbian immigrant who came to Canada in 2008. Since 2012, he has been the sole owner of Western Pacific Engineering Group Ltd. [ Western Pacific ], which is a business with a strong focus on structural engineering for residential projects. It also provides civil design services for subdivisions, septic systems, utilities, and bigger projects such as road design and lot grading. Most of its clients are developers, architects, and homeowners.

[2] In early 2017, Mr. Morales began operating Western Pacific from an office space located in the lower floor of his home, in a partially underground space. Mr. Morales also hired Mr. V as a civil designer.

[3] In late November 2017, a colleague of Mr. Morales’ wife introduced Mr. Morales to Elizabeth de Leon Gonzalez. Ms. de Leon was seeking mentorship. In late-2016, she had moved from her home country of Mexico to Canada to be with her now husband, Mr. R. Mr. Morales and Ms. de Leon met in person shortly after their introduction to one another. When they first met, Mr. Morales offered Ms. de Leon one day per week of work so she could become familiarized with what Western Pacific does, and she accepted his offer.

[4] In December 2017, Ms. de Leon began working for Western Pacific under the supervision of Mr. Morales. Over time, her hours of work increased to that of a full-time employee. She worked intermittently with Mr. V., generally when Mr. V. required assistance on site inspections. Otherwise, they did not work closely on projects. On October 23, 2019, Ms. de Leon resigned from her position at Western Pacific.

[5] This decision addresses a complaint Ms. de Leon filed with the Tribunal alleging that Mr. Morales and Western Pacific, who I refer to together as the Respondents, discriminated against her regarding her employment based on her sex, contrary to s. 13 of the Human Rights Code [ Code ]. She alleges that, between January 15, 2019 and October 16, 2019, Mr. Morales discriminated against her when he sexually assaulted her three times, and when he made sexual comments towards her at work. Ms. de Leon also alleges that the Respondents discriminated against her in her wages, contrary to s. 12 of the Code . She alleges that the Respondents agreed to pay her the same hourly wage as Mr. V. but failed to follow through with doing so.

[6] The Respondents deny Ms. de Leon’s allegations about sexual comments and sexual assault. According to them, for approximately three weeks in early 2019, Ms. de Leon and Mr. Morales engaged in a consensual sexual relationship, which was also an extramarital affair for both of them. They say that eight months after that affair ended, Ms. de Leon resigned from her employment because of Mr. R.’s aggressive behaviour toward Mr. Morales during two encounters that occurred after the extramarital affair had ended. The Respondents admit that they paid Ms. de Leon less than the amount they paid to Mr. V. but say their conduct in doing so was not discrimination.

[7] Between July 24 and 28, 2023, I heard the parties evidence over Microsoft Teams. Each party had legal counsel represent them. Ms. de Leon put forward two witnesses: herself and Mr. R. The Respondents also put forward two witnesses: Mr. Morales and Mr. V.

[8] On September 18, 2023, the parties provided both oral and written submissions. Their submissions consisted of various arguments about the applicable legal tests involved in proving sex discrimination, and about issues of credibility and the facts that I should find to be true. While I have considered all the evidence and arguments put forward by the parties, I do not reiterate the parties’ arguments in detail. Instead, I focus on the evidence and credibility issues, and I address each of their arguments as far as doing so is necessary to explain my reasons.

II PRELIMINARY MATTERS

A. Bifurcation

[9] At the outset of the hearing, the parties made a joint application to bifurcate the hearing into two parts: liability and remedy. They both provided oral submissions, and I made an oral decision on the matter. I made an order to bifurcate the hearing, and I explained my reasons for that order to them. As such, this decision only addresses whether discrimination occurred. It does not address the issue of an appropriate remedy.

B. Credibility and reliability

[10] Ms. de Leon and Mr. Morales’ respective levels of credibility are key issues in this decision. There are various instances where they provided conflicting evidence on significant issues. As such, I comment on how I have addressed issues of credibility and reliability throughout this decision.

[11] Credibility has to do with the truthfulness of a witness’s testimony. Reliability has to do with the accuracy of that testimony, including the witness’s ability to accurately observe, recall, and recount what happened. Credibility addresses whether a witness is telling the truth, and reliability is about an honest mistake: R. v. J.M., 2021 BCCA 263 [ J.M. ] at para. 53. Where I have made decisions about a witness’s credibility, I have started from the presumption that the witness is telling the truth: Hardychuk v. Johnstone , 2012 BCSC 1359 at para. 10. I have then considered whether the person’s testimony:

a. is internally consistent, including whether they change it in cross-examination or resist influences put to them in cross-examination to modify their recollections of events: Bradshaw at para. 186; J.M. at para. 53.

b. harmonizes with independent or external evidence that I accept, such as a corroborating witness’s evidence, documentary, or other evidence: Bradshaw at para. 186; J.M. at para 53.

c. seems unreasonable, impossible, or unlikely: Bradshaw at para. 186; J.M. at para 53.

d. is in “balance,” meaning they had an apparent willingness to be fair and forthright considering any potential interests, motives, or biases: Bradshaw v. Stenner, 2010 BCSC 1398 [ Bradshaw ] at para. 186; Van Hartevelt v. Grewal, 2012 BCSC 658 [ Van Hartevelt ] at para. 31; J.M. at para. 53.

e. is overall plausible, meaning it fits into the general picture revealed by all the evidence, or it is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognise as reasonable in that place and in those conditions: Faryna v. Chorny , [1951] B.C.J. No. 152 at para. 11; Bradshaw at para. 186; Van Hartevelt at paras. 33 and 34.

[12] In assessing Ms. de Leon’s credibility, I will also consider that it is both a myth and stereotype that when a person:

a. remains passive or fails to resist sexual advances from another person, either physically, by saying “no,” by crying out, or by struggling or fighting against that person they must have consented to the sexual act that they engaged in: R. v. Barton, 2019 SCC 33 [ Barton ] at para. 98; R v. Kruk, 2024 SCC 7 [ Kruk ] at paras. 36 and 41; MP v. JS, 2020 BCHRT 131 [ MP ] at para. 4; R. c. Burke, 2021 QCCQ 3626 [ Burke ] at para. 288.

b. associates with or does not avoid the person they say sexually assaulted them it suggests that they must have consented to the sexual act they engaged in: Kruk at para. 41; Burke at para. 288.

c. consents to one sexual act with another person, it means they have provided broad advance consent to all future sexual activities of an undefined scope with that person: Barton at para. 99; Burke at para. 288.

d. does not report sexual conduct immediately, or at all, then it must not have been sexual harassment: Basic v. Esquimalt Denture Clinic and another , 2020 BCHRT 138 [ Basic ] at para. 104; Jamal v. TransLink Security Management and another (No. 2) , 2020 BCHRT 146 [ Jamal ] at para. 112; MP at para. 4.

e. participates in similar sexual activities, they are promiscuous and more likely to have consented to the sexual activities in question: Basic at para. 104; Jamal at para. 114; MP at para. 4.

f. dresses or behaves provocatively, they are more likely to have consented to the sexual conduct in question: R. v. Cain, 2010 ABCA 371 at para. 30; R. v. Find, 2001 SCC 32 at para. 101.

g. does not appear to be emotionally distraught afterwards, or their behaviour afterwards is unchanged, they are more likely to have consented to the sexual activities in question: Burke at para. 288.

[13] I will not consider on any evidence or arguments that rely on these myths and stereotypes in my assessments of Ms. de Leon’s credibility. Doing so would be an error in law: Kruk at para. 43; R. v. Campbell, 2023 BCCA 19 at para. 49. Before moving on, I note that the cases within which higher courts discuss these myths and stereotypes predominantly focus on how they relate to issues of consent in criminal sexual assault cases. For this decision, I replace the words “consented to” in the above statements of myths and stereotypes with the word welcomed, which is similar to consent but not the same as consent. I will explain the relationship between whether something is “welcomed” or “consented to” later, in my overview of unwelcomeness.

[14] Where a witness does not give credible evidence on an issue, I will find their evidence to also be unreliable on that issue. However, I keep in mind that a credible witness may still give evidence that is unreliable: R. v. H.C., 2009 ONCA 56 at para. 41. I also keep in mind that I may accept some, all, or none of a witness’s testimony: Kruk at para. 81.

[15] Next, I move on to what Ms. de Leon must prove to establish that the Respondents discriminated against her under s. 13 of the Code and my decision regarding whether she has proven such discrimination. Later, I turn to what she must prove to establish that the Respondents discriminated against her under s. 12 of the Code, and my decision regarding whether she has proven discrimination under s. 12 of the Code .

III PROVING DISCRIMINATION UNDER SECTION 13 OF THE CODE

A. The Code and Supreme Court of Canada authorities regarding sex-based discrimination

[16] Section 13 of the Code states, in part, that:

13 (1) A person must not

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

(b) discriminate against a person regarding employment or any term or condition of employment

because of the … sex … of that person …

[17] In 1989, the Supreme Court of Canada confirmed that where a person proves that sexual harassment occurred, they have also proven sex-based discrimination occurred under s. 6 of the Manitoba Human Rights Act , which is similar to s. 13 of the Code, and sets out as follows:

6(1) Every person has the right of equality of opportunity based upon bona fide qualifications in respect of his … employment … and, without limiting the generality of the foregoing

no employer or person acting on behalf of an employer shall refuse to employ, or to continue to employ…, or discriminate against that person in respect of employment or any term or condition of employment;

because of the … sex … of that person.

[18] It reached this conclusion after considering whether the Manitoba Court of Appeal had erred in holding that sexual harassment was not sex discrimination under the Manitoba Human Rights Act: Janzen v. Platy Enterprises Ltd. [ Janzen ] [1989] 1 SCR 1252. It decided that the Manitoba Court of Appeal did err in doing so. In explaining its reasons, it provided the following non-exhaustive definition of sexual harassment in a person’s workplace:

… 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.

[19] It concluded that the appellants had proven their supervisor sexually harassed them at work, so they had also proven discrimination in their employment based on sex.

[20] After the SCC decided Janzen, the Tribunal began to point to Janzen as an authority that sexual harassment is sex discrimination. If a complainant could prove they experienced sexual harassment, as defined in Janzen, and that it occurred in the context of a protected area under the Code, the Tribunal would find that sex-based discrimination under the Code occurred: See Willis v. Blencoe, 2001 BCHRT 12 [ Blencoe ] at paras. 55 to 67; Dietrich v. Dhaliwal, 2003 BCHRT 6 at para. 25; Newman v. Gujral, 2003 BCHRT 16 at paras. 52 to 55; andSoroka v. Dave’s Custom Metal Works and others, 2010 BCHRT 239 at paras. 68 to 70.

[21] In November 2012, the Supreme Court of Canada [ SCC ] confirmed another test for discrimination in the context of complaints regarding discrimination under s. 8 of the Code: Moore v. BC (Education) , 2012 SCC 61 [ Moore ] at para. 33. It has since confirmed that the same test applies to complaints made under other areas of the Code: Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 24. The Moore test, read together with s. 13 of the Code, sets out that to prove discrimination Ms. de Leon must establish that:

a. She is a person with a protected characteristic under s. 13 of the Code ;

b. She experienced an adverse impact regarding her employment or a term or condition of her employment; and

c. Her protected characteristic was a factor in the adverse impact she experienced.

[22] Since the SCC confirmed the Moore test, the Tribunal has taken two approaches to complaints about discrimination based on sex. First, it has relied solely on the Janzen test for proving sexual harassment to determine whether a person has proven sex-based discrimination under the Code. For the most part, when it takes this approach, it does not comment on how the Moore test intersects with the Janzen approach to discrimination: For example, see MacDonald v. Najafi and another (No. 2), 2013 BCHRT 13 at paras. 61 to 68; Mace v. Imperial Parking Canada and another, 2015 BCHRT 181 at para. 89; Davis v. Teck Coal Ltd. and another, 2018 BCHRT 285 at para. 24; Araniva v. RSY Contracting and another (No. 3) , 2019 BCHRT 97 at para. 95. However, in a few cases where it takes this approach, it does comment on areas where criteria in the Moore test intersect with the definition of sexual harassment in Janzen: For example, see PN v. FR and another (No. 2), 2015 BCHRT 60 at paras. 93 to 98;The Employee v. The University and another (No. 2), 2020 BCHRT 12 [ Employee ] at paras. 142 and 184; Basic at paras. 90 and 91.

[23] Second, the Tribunal has assessed complaints about discrimination based on sex in accordance with the Moore test, as informed by the definition of sexual harassment in Janzen: Ms. K. v. Deep Creek Store and another , 2021 BCHRT 158 [ Ms. K ] at para. 75 to 77. In doing so, it has said that, where a complainant can prove that a respondent’s sexualized conduct resulted in an adverse impact, it is implicit in that finding that the conduct is unwelcome: at para. 93.

B. The parties’ arguments about the legal tests that apply and how they apply

[24] Ms. de Leon points to both the Moore and Janzen tests as authorities the Tribunal must follow to decide whether she has proven that sex-based discrimination occurred. She makes brief arguments about whether she has established discrimination based on the Moore test, and extensive arguments on whether she has established that discrimination occurred because she experienced sexual harassment in accordance with the Janzen definition.

[25] The Respondents also point to both tests. However, they only make arguments about whether Ms. de Leon has established discrimination based on the Janzen test. Their arguments predominantly focus on the legal threshold that Ms. de Leon must meet to establish that Mr. Morales sexual conduct toward her was unwelcome, and whether she has proven that she experienced negative employment-related consequences because of Mr. Morales sexual conduct toward her.

C. My approach to assessing whether Ms. de Leon has proven that sex-based discrimination occurred

[26] Since the SCC confirmed the Moore test for proving discrimination, neither it, the B.C. Court of Appeal, nor the B.C. Supreme Court have provided guidance on whether a person must reconcile and /or prove the criteria in both Janzen and Moore to establish that sex-based discrimination has occurred.

[27] In my view, the Tribunal can independently apply either the Moore or the Janzen test to find that sex-based discrimination occurred. However, the two tests also overlap, and the Tribunal can assess complaints based on both, read together. I will assess Ms. de Leon’s complaint using the Moore test, as follows. In doing so, I also consider the Janzen test in areas where the two tests overlap:

a. First, I will consider whether Ms. de Leon has proven that she has a protected characteristic, under s.13 of the Code, which includes a persons sex.

b. Second, I will consider whether Ms. de Leon has proven that she experienced an adverse impact regarding her employment. Ms. de Leon may prove this by establishing that:

i. Mr. Morales’ conduct toward her was unwelcome and it occurred in the context of her employment. If she proves this, I will infer from it that she had to endure conduct in her employment that she did not welcome or want to endure, which I will treat as an adverse impact regarding her employment; or

ii. Mr. Morales’ conduct toward her had an otherwise adverse impact on her regarding her employment.

c. Last, I will consider whether Ms. de Leon has proven that her sex was a factor in the adverse impacts she experienced because of Mr. Morales’ conduct toward her. One way she can prove this is by establishing that Mr. Morales’ conduct toward her was of a sexual nature. If she proves this, I will infer from it that her sex was a factor in his conduct toward her, which resulted in those adverse impacts, creating the necessary connection between her sex and the adverse impacts she experienced to bring it within the realm of discrimination.

[28] I have now explained how I will assess whether Ms. de Leon has proven discrimination under s. 13 of the Code. Next, I address a dispute amongst the parties about what Ms. de Leon must prove to establish that Mr. Morales’ conduct toward her was unwelcome.

IV DETERMINING WHETHER CONDUCT OF A SEXUAL NATURE IS “UNWELCOME”

[29] I am not aware of any authority that is binding on me that explains how I must assess unwelcomeness. The B.C. Supreme Court has said that whether a respondent’s conduct of a sexual nature is unwelcome is central to a finding of sexual harassment: Dutton v. British Colombia (Human Rights Tribunal), 2001 BCSC 1256 [ Dutton ] at para. 70; Bartman v. Twohey et al . , 2004 BCSC 1211 [ Bartman ] at para. 45. However, it has not explained what a complainant must establish to prove that a respondent’s conduct was unwelcome. Neither has the B.C. Court of Appeal or Supreme Court of Canada.

[30] The parties point me to two different approaches the Tribunal takes to determine whether a respondent’s sexual conduct toward a complainant was unwelcome, and each of them argues that the approach they put forward is the correct test for me to apply in assessing unwelcomeness.

[31] The Respondents argue that to prove conduct was unwelcome, a complainant must establish, on an objective standard, that considering all the circumstances, a reasonable person would know or should have known that the conduct in question was not welcomed by the complainant, and the complainant did nothing to invite or encourage the actions, although overt protest by the complainant is not required. In support of this standard, the Respondents point to Mahmoodi v. UBC and Dutton, 1999 BCHRT 56 [ Mahmoodi ] at para. 140.

[32] When the Tribunal adopted this standard in Mahmoodi, it pointed to Johnstone v. Zarankin, 1984 CanLII 5029 (BC HRT) [ Johnstone ] and Dupuis v. British Columbia (Ministry of Forests), 1993 CanLII 16472 (BC HRT) [ Dupuis ] as its authorities on the matter. However, it did not discuss why the standard is appropriate. In Johnstone, the former Human Rights Board of Inquiry also did not grapple with the standard that a person must meet to establish that sexual conduct toward them was unwelcome.

[33] In Dupuis, the Tribunal grappled with whether a complainant’s voluntary engagement in a sexual act is determinative proof that the respondent’s conduct toward them was unwelcome. In considering this matter, it pointed to a United States Supreme Court appeal decision regarding a sexual harassment case in the civil law context: Meritor Savings Bank v. Vinson , [1986] USSC 139 [ Vinson ]. In that case, writing for a majority of the United States Supreme Court, Justice Rehnquist said:

The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” 29 CFR § 1604.11(a) (1985). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of [the employee’s] participation in the claimed sexual episodes. The correct inquiry is whether [the employee] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

[34] Justice Rehnquist also said that a complainant’s sexually provocative speech and dress is relevant to determining whether the respondent’s sexual advances toward them were unwelcome because the trier of fact must determine the existence of sexual harassment considering “the record as a whole” and “the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.”

[35] I accept that the Tribunal should consider the totality of the circumstances in which sexual conduct occurs when it assesses whether that sexual conduct was unwelcome by a complainant. However, I do not accept that all evidence regarding a complainant’s conduct, or evidence about the way a complainant dresses or behaves, is relevant to whether a respondent’s sexual advances toward them were unwelcome. Where that evidence relates to the myths and stereotypes that I have identified as relevant to assessing a complainant’s credibility, it is not relevant evidence.

[36] In Dupuis, the Tribunal also pointed to its decision in Dyson v. Louie Pasin Plaster & Stucco Ltd. , 1990 CanLII 12485 (BC HRT): para. 44. However, in Dyson it does not grapple with the standard that a person must meet to establish that sexual conduct toward them was unwelcome, so I do not find that case helpful to me in understanding Dupuis.

[37] Next, in Dupuis, the Tribunal pointed to academic literature, where a professor said that:

a. When welcomeness is at issue, it should be determined whether the victim’s conduct is consistent or inconsistent with her assertion that the sexual conduct is unwelcome; and

b. To establish unwelcomeness, a complainant is generally expected to establish that they either expressly or implicitly made it known to the respondent that their sexual advances are unwelcome: Sexual Harassment in the Workplace, 2d ed. (Toronto: Butterworths, 1992), at 67 discussed at paras. 45 and 46.

[38] I adopt the Tribunal’s approach as it relates to paragraph 37(a), above. However, I decline to adopt its approach described in paragraph 37(b), above, because relying on that approach would mean improperly importing myths and stereotypes into my analysis.

[39] Last, in Dupuis, the Tribunal said that indications of unwelcomeness may be implicit, and an overt refusal may not be necessary: at para. 47. Protest is also strong evidence, but not a necessary element of proving unwelcomeness: at para. 48. Without further explanation, it concluded that to establish whether a respondent’s sexual conduct was unwelcome by the complainant, the Tribunal must assess whether:

a. Considering all the circumstances, the complainant’s actions were consistent with their allegation that the conduct was unwelcome; and

b. There is evidence that the respondent knew or ought to have known that the conduct was unwelcome: at para. 49.

[40] The Respondents also point to Mayes v. RFind Systems and others , 2012 BCHRT 304 [ Mayes ] in support of their argument about the standard a person must meet to establish that sexual conduct was unwelcome. In Mayes, the Tribunal points to Huhn v. Joey’s Only Seafood Restaurant , 2002 BCHRT 18 [ Huhn ] in support of its approach, without any further comment on the matter: at para. 16. In Huhn, the Tribunal points to Bates v. City Copy Centre Ltd. (16 March 1995, unreported decision, B.C.C.H.R.) [ Bates ], which I do not have the benefit of its reasons in here. It also points to Shouldice v. Stevens , 1999 CanLII 35087 (BC HRT) [ Shouldice ] in support of its approach, without further comment: at para. 16. In Shouldice , the Tribunal points to Dupuis and Bates: at para. 51. It does not further explain its approach.

[41] Last, the Respondents point to British Columbia Hydro and Power Authority , [2020] B.C.C.A.A.A. No. 78 in support of their argument about the standard a person must meet to establish that sexual conduct was unwelcome: at para. 2014. The arbitrator in that decision does not explain why they adopted the approach that a person must prove the respondent knew, or ought to have known, his conduct was unwelcomed by the complainant. So, I do not find that case helpful in understanding why this should be the relevant standard.

[42] I do not adopt the Respondent’s position that to prove unwelcomeness a complainant must establish on an objective standard that, considering all the circumstances, a reasonable person would know or should have known that the conduct in question was not welcomed by the complainant, and the complainant did nothing to invite or encourage the actions, although overt protest by the complainant is not required.

[43] As I understand it, the test that the Respondents point me to focusses on whether a reasonable person in Mr. Morales’ position would know or should have known that Ms. de Leon did not welcome his sexual conduct toward her . This approach is problematic because, in my view, welcomeness has to do with the state of mind of a complainant at the time of a respondent’s sexual conduct toward them. It is about whether, in the complainant’s mind, they either invited or accepted the sexual conduct at the time it occurred. Welcomeness has nothing to do with a respondent’s understanding of what a complainant wanted, or what a respondent should have known the complainant wanted or did not want in the circumstances. None of the cases that the Respondents have pointed me to, or the cases that those cases point me to, explain how the perspective of the respondent, or the perspective of a reasonable person in their position, can assist the Tribunal in understanding the complainant’s state of mind. At most, a respondent may give evidence about the totality of the circumstances surrounding the sexual conduct at issue, which the Tribunal may use in its assessment of the complainant’s evidence about their state of mind at a given point in time.

[44] Now that I have provided an overview of the Respondents’ arguments about the test for unwelcomeness, and explained why I do not adopt it, I move on to Ms. de Leon’s argument on the matter. Ms. de Leon argues that a complainant can prove the respondent’s conduct of a sexual nature was unwelcome by proving that it had an adverse impact on them. In support of her argument, she points to Ms. K at para. 93, where the Tribunal said that if a complainant can prove that the sexual conduct of a respondent adversely impacted them, then it is implicit in that finding that the conduct is unwelcome.

[45] I do not adopt the approach taken in Ms. K, which I understand requires that the Tribunal treat all adverse impacts a person experiences because of another person’s sexual conduct toward them as proof that the sexual conduct was unwelcome. I accept that the Tribunal must focus on the adverse impacts a person experiences from another person’s sexual conduct toward them and that under the Moore test adverse impacts are necessary to prove discrimination. I also accept that where a complainant can prove that the sexual conduct of a respondent adversely impacted them, the Tribunal may also make an inference based on that finding to conclude that the conduct was unwelcome. However, adverse impacts are not definitive proof of unwelcomeness. Adverse impacts are only circumstantial evidence regarding the state of mind of the complainant at the time of the respondent’s sexual conduct.

[46] To determine whether Ms. de Leon has proven that Mr. Morales’ sexual conduct toward her was unwelcome by her at the time it occurred, I will consider what her state of mind was at the time of that sexual conduct, which only Ms. de Leon can give direct evidence about. I will then conduct a credibility assessment of any evidence she gives about that sexual conduct being unwelcomed by her. In doing so, I will consider those factors discussed at paragraphs 11 to 13 of this decision, along with the totality of the circumstances surrounding each instance of alleged sexual harassment, which include:

a. the nature of Ms. de Leon and Mr. Morales’ relationship with one another at the time of each instance of alleged sexual harassment; and

b. whether Ms. de Leon’s conduct during and after the sexual conduct occurred was consistent or inconsistent with her evidence that it was unwelcome.

[47] I have now set out how I will decide whether Mr. Morales’ sexual conduct toward Ms. de Leon was unwelcome by her. However, before I move on, I comment on the Respondents’ argument that each of the sexual encounters between Mr. Morales and Ms. de Leon were mutually consensual, and the role that consent has in my assessments of unwelcomeness. When it comes to whether Ms. de Leon consented to each sexual encounter, meaning she engaged in that sexual encounter voluntarily, her consent is not determinative of the issue of unwelcomeness. When assessing the unwelcomeness of each sexual encounter, Ms. de Leon’s consent is only one of many factors that contribute to the totality of the circumstances.

[48] I have now explained how I will address the issue of unwelcomeness. Next, I set out my decision regarding whether Ms. de Leon has proven that the Respondents discriminated against her contrary to s. 13 of the Code, and then I explain how I have reached that decision.

V DECISION AND ORDERS REGARDING SECTION 13 COMPLAINT

[49] Ms. de Leon has proven that the Respondents discriminated against her, contrary to s. 13 of the Code, when:

a. Between March and October 2019, Mr. Morales made a comment toward Ms. de Leon about how if he had known the sexual past of his wife before getting married to her, he would not have married her.

b. Sometime in July 2019, Mr. Morales asked Ms. de Leon how she was feeling since he was not flirting with her or “being that way” with her anymore.

c. On October 16, 2019, Mr. Morales made a comment to her about having good memories of a hotel they were driving by, and about having had dreams about her.

d. On October 21 and 22, 2019, Mr. Morales deactivated Ms. de Leon’s access to Western Pacific’s email and cloud-based document management systems while he sought legal advice on terminating Ms. de Leon’s employment after telling his wife about their sexual encounters with one another.

[50] Ms. de Leon has justified those parts of the complaint having to do with the matters set out in paragraph 49. Under s. 37(2)(a) of the Code, I order that the Respondents cease their contraventions of the Code, as set out in paragraph 49, and that they refrain from committing the same or a similar contravention.

[51] The Tribunal will reach out to the parties to set additional hearing dates regarding an appropriate remedy for the discrimination that Ms. de Leon has proven. In the meantime, it is within their rights to negotiate an appropriate remedy amongst themselves and settle the remedy portion of the complaint on their own. If the parties settle the remedy portion of the complaint, Ms. de Leon may advise the Tribunal of such, and the complaint process will end.

[52] Ms. de Leon has not proven that the Respondents discriminated against her, contrary to s. 13 of the Code, when:

a. On January 15, 2019, Mr. Morales said to Ms. de Leon that “it feels weird to be with a woman that isn’t my wife.” Ms. de Leon has not established that Mr. Morales’ making of this comment toward her resulted in her experiencing an adverse impact regarding her employment.

b. On January 18, 2019, Mr. Morales allegedly sexually harassed her at work by kissing her and touching her breasts and vagina. Ms. de Leon has not proven that this sexual encounter occurred the way she says it did, or that Mr. Morales’ conduct toward her during this sexual encounter was unwanted.

c. On January 22 or 23, 2019, Mr. Morales allegedly sexually harassed her by having sexual intercourse with her. Ms. de Leon has not proven that this sexual encounter occurred the way she says it did, or that Mr. Morales’ conduct toward her during this sexual encounter was unwanted.

d. On February 8, 2019, Mr. Morales allegedly sexually harassed her by getting her to give oral sex to him and then having sexual intercourse with her. Ms. de Leon has not proven that this sexual encounter occurred the way she says it did, or that Mr. Morales’ conduct toward her during this sexual encounter was unwanted.

e. In May 2019, Mr. Morales allegedly made a comment toward her about why women get dressed up so nicely, and then responded to himself that it is because they want men to say things to them. Ms. de Leon has not proven that Mr. Morales made this comment toward her.

f. Between March and October 2019, Mr. Morales allegedly made sex-based discriminatory comments toward Ms. de Leon about putting cameras on her, and about how he did not want her to wear a skirt to work the following day. Ms. de Leon has not proven that Mr. Morales made the former comment toward her. She has not proven that the latter comment he made toward her was of a sexual nature.

g. On October 23, 2019, Ms. de Leon’s resignation from her employment at Western Pacific was a discriminatory constructive dismissal. Ms. de Leon has not established that the sex-based discrimination she experienced at Western Pacific poisoned her work environment to the point where she had no choice but to resign.

[53] Under s. 37(1) of the Code, I make an order to dismiss those parts of the complaint having to do with those matters set out in paragraph 52.

[54] Before I explain my reasons, I address the liability of Western Pacific. In each instance where Mr. Morales discriminated against Ms. de Leon, Western Pacific is also responsible for that discrimination because any act done by Mr. Morales within the scope of his authority as an officer, director or official of Western Pacific, is deemed to be an act done by Western Pacific: Code, at s.44(2).

VI ANALYSIS REGARDING SECTION 13 COMPLAINT

A. Has Ms. de Leon proven she has a protected characteristic under the Code ?

[55] It is undisputed that Ms. de Leon is a person of the female sex. As such, she has proven she has the protected characteristic of sex under s. 13 of the Code.

B. Preliminary matter regarding Ms. de Leon’s evidence about unwelcomeness

[56] Before I explain why I have found that Ms. de Leon did not prove Mr. Morales’ conduct toward her on January 18 and 22 or 23, and February 8, 2019 was unwelcomed by her, making it sexual harassment, I provide preliminary comments on her arguments about her testimony that his conduct toward her on those dates was unwelcome. Ms. de Leon argues that when the Tribunal assesses her credibility regarding her evidence, it must consider that:

a. Mr. Morales was her direct supervisor, and she was an employee;

b. from a professional perspective, Mr. Morales was significantly more experienced than her;

c. there is an age gap between herself and Mr. Morales of approximately 17 years;

d. she and Mr. Morales had differing financial backgrounds with him being a business and homeowner and her being a renter and previous shoe store employee;

e. Mr. Morales came to Canada eight years before she did;

f. Mr. Morales is taller than her; and

g. within the workplace Ms. de Leon was the only female employee other than Mr. Morales’ wife who helped with human resources, so she had nobody to go to regarding what was happening except for Mr. Morales’ wife.

[57] The Tribunal has consistently recognised that sexual harassment is often gendered and that predominantly men are the perpetrators and women are the receivers of sexual harassment. It has also consistently recognised that sexual harassment occurs widely in situations of power imbalance, for example, when an employer exploits their position of authority and economic power over an employee: See Curken v. Gastronome Enterprises , 2023 BCHRT 2 at 108; Ms. K. at paras. 71 to 73.

[58] I accept that the contexts within which sexual harassment occurs often involve power dynamics, whether they are based in gender, economic power, or otherwise. However, for me to determine that a specific contextual factor is relevant to an assessment of Ms. de Leon’s evidence about unwelcomeness, there must be evidence before me that connects that contextual factor to Ms. de Leon’s state of mind.

[59] When Ms. de Leon described each instance of alleged sexual harassment, she did not include descriptions of what was on her mind throughout each instance occurring. However, she provided general evidence that:

a. Throughout each sexual encounter with Mr. Morales, it was in her mind that she did not understand fully what was going on in the sense that Mr. Morales was asking her to do something, and she felt pressured to do what he wanted.

b. In the moments of each sexual encounter, she did not feel there was an option where she could just leave or say no to what Mr. Morales wanted from her.

c. Aside from the first sexual encounter, where she told Mr. Morales that she did not feel comfortable with what was going on, she just went with the flow because she was very scared and did not feel she had the option to say no to him.

d. She needed her job desperately and could not lose it because she was the one who was making the money to pay for her and Mr. R.’s rent and other basic needs. She engaged in each of the sexual acts with Mr. Morales to just get them over with.

e. She was fearful that Mr. Morales would fire her if she did not engage in the unwelcome sexual encounters with him.

f. During her sexual encounters with Mr. Morales, she was working toward British Columbia recognising her foreign earned credentials. She did not know that she could apply for employment insurance from the government if she were to lose her job, both of which she said made her think that if she complies to Mr. Morales’ sexual advances on her, then he will leave her alone afterwards.

[60] During cross-examination, Ms. de Leon agreed that Mr. Morales never said or did anything to her to pressure her in any way to engage in sexual encounters with him. He never told her that she had to participate in sexual acts with him to keep her job. However, she felt afraid that if she said no to him, he would get upset and fire her, a chance she could not take. She said she just believed that he expected her to engage with him sexually, and she felt immense pressure to do so. Ms. de Leon provided no further evidence about the source of the immense pressure she felt to engage in sexual acts with Mr. Morales. She also provided no further evidence about her thoughts or fears about what might happen if she said no to engaging in sexual encounters with Mr. Morales.

[61] Based on Ms. de Leon’s evidence, I accept that Mr. Morales had the following types of power over her and that these contextual factors are relevant to my credibility assessments of her evidence about his sexual conduct toward her being unwelcome by her:

a. Formal power, meaning he had the power to make decisions about whether Western Pacific would continue to employ Ms. de Leon.

b. Positional power, meaning that he was responsible for making and implementing work policies that affected Ms. de Leon’s employment, assigning her tasks, and directing her on how to undertake tasks.

c. Coercive power, meaning that he had the ability to deliver work-related consequences to Ms. de Leon if she did not comply with his wishes. He had the ability to use fear, threats, and punishment as tools to force her compliance.

[62] I also accept that Ms. de Leon’s status as a newcomer to Canada is a relevant factor for me to consider in my assessments of her credibility about evidence regarding whether Mr. Morales sexual conduct toward her was unwelcome. Ms. de Leon did not know that she could apply for employment insurance as financial assistance if she were to lose her job.

[63] However, Ms. de Leon provided no evidence about how Mr. Morales’ age, financial background, level of professional experience, amount of time in Canada, or height, compared to hers, had any connection to her state of mind during each incident of alleged sexual harassment. She has also provided no arguments that explain why the Tribunal should infer that such a connection exists. As such, I do not find her arguments about those contextual factors relevant to my assessments of whether she has established unwelcomeness.

[64] I now turn to why I have found that Ms. de Leon has not proven Mr. Morales discriminated against her on January 15, 2019. I start with what happened on that date.

C. January 15, 2019 – Mr. Morales’ comment about his wife

1. What happened on January 15, 2019?

[65] The parties agree that, on January 15, 2019, Ms. de Leon accompanied Mr. Morales on a work trip to Kelowna. In advance, Mr. Morales had asked Ms. de Leon to confirm that her husband was okay with them doing an out-of-town work trip. This was the first time they had travelled out of town together for work. Mr. Morales picked Ms. de Leon up early in the morning and they drove to Kelowna, which was between three and four hours drive away. They conducted a site assessment and then went for lunch. During their lunch, Mr. Morales said to Ms. de Leon, “it feels weird to be with a woman that isn’t my wife.” After lunch, Mr. Morales and Ms. de Leon commenced the return drive, stopping for dinner along the way.

[66] Ms. de Leon testified that in response to Mr. Morales’ comment about being with a woman who is not his wife, she did not say anything to him, she thought it was strange, and she thought “he likes me.” During cross-examination, Ms. de Leon stated that she understood his comment to mean that he felt like it was strange to be “just hanging now” with someone other than his wife. I accept her testimony on these points.

2. Has Ms. de Leon proven she experienced an adverse impact regarding Mr. Morales’ conduct toward her on January 15, 2019?

[67] Ms. de Leon has not proven she experienced an adverse impact regarding Mr. Morales’ conduct toward her on January 15, 2019. First, Ms. de Leon has not made any arguments or provided any evidence about Mr. Morales’ comment being unwanted by her. Second, she has not made any arguments or provided any evidence about other adverse impacts she experienced regarding her employment because of his comment to her. For example, she did not say it made her feel uncomfortable, unsafe, or any other undesirable feeling in his presence. She did not say that when she thought to herself that his comment was strange, or that “he likes me,” it was a terrible thing, or disturbing in any way. She also provided no other evidence of negative impacts his comment had on her employment context, or otherwise.

[68] Before moving on, I note that the parties provide different versions of the rest of their conversation during their drive to and from Kelowna. However, I do not find it necessary to resolve their conflicting testimonies about that conversation. They both agree that they shared personal information with one another. They also agree that afterwards the dynamic in their relationship changed in a positive way, not in an adverse way. Ms. de Leon testified that they became closer than they were before, they knew more about one another, and she felt like Mr. Morales was a good friend. Afterwards, they told one another they had enjoyed the trip. Mr. Morales testified that after their trip it was a different atmosphere, it felt like they had become friends, and they began to discuss non-work-related things. He also testified that Ms. de Leon started to smile at him, keeping her gaze longer than normal, and they maintained less physical space between them when she asked him to come to her desk to discuss work stuff. Ms. de Leon did not challenge Mr. Morales’ testimony on these points. With no evidence or arguments before me that bring his testimony into question, I accept it to be true.

[69] I now turn to why I have found that Ms. de Leon has not proven Mr. Morales discriminated against her on January 18, 2019 based on her sex by sexually harassing her. I start with what happened on January 18, 2019.

D. January 18, 2019 – The first sexual encounter

1. What happened on January 18, 2019?

[70] The parties agree that they had a sexual encounter on January 18, 2019 that started by Ms. de Leon’s desk with a kiss and then continued in the office bathroom for no more than five minutes. Ms. de Leon argues that this encounter was a sexual assault. Mr. Morales argues that Ms. de Leon initiated it, and it was mutually consensual. They have provided conflicting testimonies about what occurred.

[71] Ms. de Leon has not proven this sexual encounter occurred how she says it did. I start with her version of events. She testified that she was working at her computer when Mr. Morales came to her desk to assist her with something. He kissed her then went back to his desk. He returned to her desk, took her to the bathroom either by her hand or her wrist, motioning to her as if saying “come, come,” but did not say anything to her while he did this. She complied. Once inside the bathroom, they continued to kiss, and then she remembers having her hands on his shoulders, that he touched her breast, pulled up her shirt, and kissed a nipple. When he touched her breast, she used her arm to push his arm away. He then unbuckled her pants and digitally penetrated her vagina. When he was unbuckling her pants, she tried again to push his arm away. She was scared and confused. Next, she said, “I don’t wanna do anything here” because she saw where things were going, and she did not want to have sexual intercourse. In response, Mr. Morales said, “I can not resist anymore” and he grabbed her by either the hips or buttocks and pushed her toward him. That was it. He left her in the bathroom, where she fixed her clothing and returned to her desk.

[72] During cross-examination, Mr. Morales denied that Ms. de Leon moved her hands to push him away from her chest area. He further denied putting his fingers in her vagina. Instead, he said he put his hand between her pants and panties. He also denied that Ms. de Leon said anything to him during their interaction in the bathroom. He said neither of them talked, other than him asking her if she wanted to continue after they heard a noise. He also denied that he told Ms. de Leon he could no longer resist and then pulled her closer to him by the hips.

[73] Next, I turn to Mr. Morales’ version of events. Mr. Morales testified that Ms. de Leon called him over to her desk and said she had a question. He went, put a stool down, sat on it, and answered her question. She had another question, swivelled her chair around and put her hand on his leg. They looked at one another and she smiled then moved her hand. He answered the question. She said she had another question, and again swivelled her chair toward him. Their legs touched, she put her hand on his hand, he did not pull his hand back, she looked at his eyes, then lips, then leaned forward and kissed him, which lasted a couple of seconds. Mr. Morales asked if she had any other questions, she did not, and he went back to his desk.

[74] Minutes later, Ms. de Leon called Mr. Morales over again, and again he sat beside her. They had a short conversation then started to kiss again. He asked her whether she wanted to go to the bathroom and she said yes. He had suggested that they go to the bathroom so nobody could walk in and see what they were doing. He took her hand, and she led him to the bathroom. He closed the door, leaving it slightly open and they continued kissing. Their kiss grew in intensity, and he put his hand on her breast, then she lowered her bra, and he kissed her breast. He then unbuckled her pants, and she helped him lower them. He put his hand inside her pants and then they heard a noise. They stopped and froze but did not hear the noise again. So, he asked her if she wanted to continue, she said no, and he left to go upstairs and check what the noise was.

[75] Mr. Morales further testified that while in the bathroom, he and Ms. de Leon were caressing each other’s backs, he could see her face clearly, and she was smiling. They did not talk throughout the encounter. When Mr. Morales went upstairs, he saw his two dogs, but not his children or wife, so he went back downstairs. Ms. de Leon was still in the bathroom and then went back to her desk. Twenty minutes later, she approached him and said she had wanted to stop so that Mr. Morales’ wife and Mr. A. would not see what they were doing but she would like to “continue this in a more private place.” Mr. Morales told her he both liked and agreed with her idea.

[76] During cross-examination, Ms. de Leon agreed that before the “first kiss,” she called Mr. Morales to her desk, and he placed a stool next to her and sat on it. She also agreed that she could have swiveled her own chair toward him and their knees touched. She could not remember if she smiled at him, but said she probably did smile. She denied leaning toward and kissing him, and instead said it was him who kissed her. When asked if she kissed him back, she did not provide a direct answer to the question. Instead, she said “I didn’t push him away. He kissed me and it happened. I didn’t move away.” Ms. de Leon also agreed that after the kiss, Mr. Morales went back to his desk and then came back to her desk a second time, but she denied that there was a “second kiss” and insisted there was only one kiss. Ms. de Leon could not remember, but agreed it is possible, that later she and Mr. Morales told each other they enjoyed their kiss. She denied that he asked her if she wanted to go to the bathroom and that she said yes. However, she agreed that it is possible he put his hand out and lightly held her hand by the fingertips as they went to the bathroom. She then denied that she led them to the bathroom and insisted he pulled her, guiding her. When asked whether once in the bathroom, she and Mr. Morales began to kiss more passionately, she responded, “yes, we kissed. We kissed each other.” She also agreed it is possible that she rubbed his shoulders during their encounter. However, she denied actively participating in any adjustments to her shirt, bra, and pants. She said that her hands stayed up the whole time. She denied shimmying her jeans down and that Mr. Morales kept his hand outside of her underwear. Last, Ms. de Leon denied that there was a noise, that they froze and then Mr. Morales asked if she wanted to continue, and she said no. She said she had been saying to him that his wife or Mr. A. would arrive and see them and that she did “not want to do anything here.” She said she didn’t want to have intercourse, and she said this to get him worried so he would stop.

[77] I now turn to why I accept Mr. Morales’ version of events regarding this encounter over Ms. de Leon’s version of it. First, Ms. de Leon extensively cross-examined Mr. Morales on his testimony and each detail in his answers remained consistent with his direct testimony. He readily admitted to parts of the sexual conduct that he had initiated. Overall, his testimony was in balance. It was internally consistent and forthright. In contrast, parts of Ms. de Leon’s testimony were internally inconsistent. During cross-examination she agreed that it is possible Mr. Morales led her to the bathroom by lightly touching fingertips despite having provided direct testimony that he pulled her to bathroom by her hand or wrist which would require more than a light touching of fingertips. Ms. de Leon also responded to a question about the “first kiss” they had, and then later insisted there was only one kiss as described in her direct testimony. During Ms. de Leon’s direct testimony she also said she only remembers her hands being on Mr. Morales’ shoulders. Then, during cross-examination, she agreed both that it is possible she rubbed his shoulders during their encounter and said that her hands stayed up the whole time during their encounter. I am not able to reconcile these parts of Ms. de Leon’s evidence with her evidence of trying to push him away with her hands when he grabbed her breast and again when he was unbuckling her pants.

[78] Before moving on, I note that during Ms. de Leon’s testimony she said that “days later” Mr. Morales told her that when their sexual encounter ended, he went upstairs to masturbate. Mr. Morales denied making this comment. Ms. de Leon made no allegations in her complaint about this occurring, and neither party made arguments in their closing submissions about whether this alleged comment was discrimination or about how it can help prove that another act of Mr. Morales’ was discrimination. As such, I do not find it necessary to decide whether Mr. Morales made this comment.

[79] I have now explained why I accept Mr. Morales’ version of events about what happened on January 18, 2019 over Ms. de Leon’s evidence about those events. Next, I turn to explaining how Ms. de Leon has proven she experienced an adverse impact regarding her January 18, 2019 sexual encounter with Mr. Morales.

2. Has Ms. de Leon proven she experienced an adverse impact regarding the January 18, 2019 sexual encounter by establishing that it was unwelcome by her, making it sexual harassment?

[80] I start with why I am not satisfied that Ms. de Leon has proven she experienced an adverse impact regarding the January 18, 2019 sexual encounter by establishing that it was unwelcome by her, making it discrimination on the basis that it was sexual harassment. First, I do not accept Ms. de Leon’s evidence that she was fearful Mr. Morales would fire her if she did not engage in this sexual encounter with him. While I recognise that Mr. Morales had formal, positional, and coercive power over Mr. de Leon, there is no evidence that he exercised that power over her during this sexual encounter or that he did anything prior to this sexual encounter that could have led Ms. de Leon to believe that he would exercise that power over her. Ms. de Leon readily admits that Mr. Morales never threatened her regarding the security of her employment. He did nothing to indicate to her that if she did not engage in a sexual act with him, he would fire her, take away tasks from her, give her tasks she did not want, or otherwise punish her for not engaging in a sexual act. To the contrary, Ms. de Leon described her relationship with Mr. Morales around this time as a good relationship, where she considered him to be a good friend.

[81] Second, parts of Ms. de Leon’s testimony are admissions of her active role in this sexual encounter, which is inconsistent with her evidence that it was unwelcome by her. Ms. de Leon was not a passive participant who was just going with the flow and failing to resist Mr. Morales. Ms. de Leon said that once she was in the bathroom with Mr. Morales “we continued to kiss.” She also said “yes, we kissed. We kissed each other.” She did not say he kissed her, or he continued to kiss her, and she let him. Instead, she used language that indicates both parties were actively engaged in kissing one another. She also evaded directly answering questions during cross-examination about whether she kissed Mr. Morales back. I infer from her evasive responses that she did kiss him back. Ms. de Leon also admitted that she rubbed Mr. Morales’ shoulders during the encounter, which is another indication that she was an active participant in it. Her active participation in this sexual encounter is not consistent with her assertion that it was unwelcome by her.

[82] I have now explained why I do not accept that Ms. de Leon experienced an adverse impact regarding the January 18, 2019 sexual encounter because it was unwelcome by her. Next, I turn to why I am satisfied that Ms. de Leon experienced an adverse impact regarding her employment in connection with the sexual encounter she had with Mr. Morales on that date.

3. Has Ms. de Leon proven that she experienced any other adverse impacts regarding the January 18, 2019 sexual encounter?

[83] Ms. de Leon has not proven that she experienced those adverse impacts that she claims to have experienced because of Mr. Morales’ alleged conduct toward her on January 18, 2019. However, I am satisfied that in October 2019, Ms. de Leon experienced adverse impacts regarding the January 18, 2019 sexual encounter she had with Mr. Morales.

[84] I start with the adverse impacts that Ms. de Leon gave evidence about regarding the January 18, 2019 sexual encounter. Ms. de Leon testified that during January and after “the incidents,” which I understand to include the sexual encounters between her and Mr. Morales on January 18, 22 or 23, and February 8, 2019, there were periods where it was hard for her to concentrate on projects. She would try hard to forget what happened and go on as normal. Ms. de Leon also gave evidence that she developed depression, and started taking longer to work on projects, she had low concentration, struggled with sleeping, and was “remembering things.” She said there were days where she could not even think at all, or finish what she was doing because instead she was thinking about “what is going to happen with Mr. Morales,” and what he will say or do. She said she was constantly in fear and would sometimes get up to drink water or coffee because she could not think straight.

[85] Parts of Ms. de Leon’s evidence about how Mr. Morales’ conduct toward her on January 18, 2019 impacted her are so vague in nature that I am unable to assess whether they are adverse in nature. For example, Ms. de Leon does not provide any details about what the “things” are that she was remembering or say when and how those memories arose for her. She also does not provide any details that can help me understand what she meant when she said she had thoughts about “what is going to happen with Mr. Morales.” This phrase can mean almost anything. Last, she does not say what it is that she felt fear regarding. For example, she does not provide any evidence that she feared Mr. Morales would do or say anything specific toward her during this period about their sexual encounter, or that he would use it against her.

[86] I accept Ms. de Leon’s testimony that she struggled with concentrating at work and getting work completed in a timely manner, that she had struggles sleeping, and that she experienced feelings of depression. I am also willing to infer from the timing of these experiences that they related to her having engaged in a sexual encounter with Mr. Morales on January 18, 2019. However, I do not accept that Mr. Morales’ conduct toward Ms. de Leon during that sexual encounter was the cause of her having these experiences. Ms. de Leon has provided no details about her struggles with concentrating on work, completing her work, and sleeping that connected those struggles to Mr. Morales’ conduct toward her during their sexual encounter. She has also provided no details about her feelings of depression, the thoughts she had that led to those feelings, or any other evidence that can connect those feelings to Mr. Morales’ conduct toward her during their sexual encounter.

[87] I now turn to the October 2019 adverse impacts that Ms. de Leon has proven she experienced regarding her January 18, 2019 sexual encounter with Mr. Morales. First, the parties agree that on October 17, 2019, Mr. R. confronted Mr. Morales about a comment he had made toward Ms. de Leon the day prior, and about three sexual encounters that had occurred between Mr. Morales and Ms. de Leon, including the one that occurred on January 18, 2019. In confronting Mr. Morales, Ms. R. used the word rape to describe what he understood at least one of those sexual encounters to have involved. Mr. R. also commented on how Mr. Morales’ actions relate to his morals and Catholicism, and he criticized Mr. Morales’ accent.

[88] Up until this point, Mr. Morales had not told his wife about his sexual encounters with Ms. de Leon. Mr. Morales testified that Mr. R. told him he would talk to Mr. Morales’ wife about what happened, and he would destroy Mr. Morales’ family. Mr. R. was talking loud enough that Mr. Morales feared his wife, who was home upstairs, would hear their conversation. Mr. Morales cried in response to Mr. R.’s comments and criticisms.

[89] During cross-examination, Mr. R. could not recall whether he told Mr. Morales that he would tell his wife about the “previous affair” he had engaged in with Ms. de Leon. He agreed that he may have told Mr. Morales this. He disagreed that he told Mr. Morales he would destroy his family. Instead, he said he told Mr. Morales he would lose his family. Given that Mr. R. does not deny threatening to tell Mr. Morales’ wife about his sexual encounters with Ms. de Leon, and he admits that he commented to Mr. Morales on how he would lose his family because of his actions, I accept that he said these things to Mr. Morales.

[90] Mr. Morales provided evidence that, on October 18, 2019, he and Ms. de Leon were working alone together in the office. Sometime that morning he went to the door to pick up a package. He looked down the street and believed that he could see Mr. R.’s vehicle parked down the road. Unbeknownst to Ms. de Leon, Mr. Morales then went upstairs to talk to his wife. He told her that he and Ms. de Leon had engaged in a sexual relationship at the beginning of the year, and he shared his version of what that entailed with her.

[91] Mr. Morales also provided evidence that on October 19 and 20, 2019, which were a Saturday and Sunday, Mr. Morales and his wife further discussed what had happened between him and Ms. de Leon. I treat Mr. Morales’ use of the phrase “what had happened between him and Ms. de Leon” as a reference to his versions of events about each of the sexual encounters he had engaged in with her. Mr. Morales further testified that during this conversation with his wife, they concluded that they need to terminate Ms. de Leon’s employment with Western Pacific. However, before doing so they needed to seek legal advice on the matter.

[92] On either October 19 or 20, 2019, Ms. de Leon received a message on her phone about someone disconnecting her work accounts so she could no longer access them. Unbeknownst to Ms. de Leon, Mr. Morales had restricted her access to her email account and Western Pacific’s cloud-based document management system, while he and his wife were seeking legal advice on their intention to terminate her employment. When Ms. de Leon received the message on her phone, she sent Mr. Morales a message and asked him what is going on. He told her he was trying to move all the accounts to a shared drive from Google but was having problems.

[93] On October 21 and 22, 2019, Ms. de Leon had every intention of going to work. However, on both days Mr. Morales told her not to come into work because he was having the floors re-done. Mr. Morales and Ms. de Leon provided conflicting evidence about whether he told her to work from home or to take days off work with pay. However, I do not find it necessary to resolve their conflicting testimonies on that point.

[94] Ms. de Leon testified that during October 21 and 22, 2019, she felt stress and anxiety about Mr. Morales having deactivated her access to Western Pacific’s email and cloud-based document management systems and about him having told her not to come into the office. Given the circumstances of Mr. R. having just confronted Mr. Morales at the office, Ms. de Leon thought that Mr. Morales was lying to her about why he had deactivated her access to Western Pacific’s accounts. I accept this part of Ms. de Leon’s evidence, and I treat it as proof that she experienced a job-related adverse impact regarding the January 18, 2019 sexual encounter she had with Mr. Morales. There is a direct connection between Mr. Morales telling his wife about that sexual encounter, and Mr. Morales taking steps that led to Ms. de Leon feeling this stress and anxiety.

[95] I have now explained how Ms. de Leon has proven that she experienced a job-related adverse impact regarding the January 18, 2019 sexual encounter she had with Mr. Morales. Next, I turn to how she has established that her sex was a factor in those adverse impacts.

4. Has Ms. de Leon proven that her sex was a factor in the adverse impacts she experienced regarding the January 18, 2019 sexual encounter?

[96] I am satisfied that Ms. de Leon’s sex was a factor in the adverse impacts she experienced regarding the January 18, 2019 sexual encounter she had with Mr. Morales. First, Mr. Morales and Ms. de Leon’s sexual encounter involved hand to breast and hand to vaginal contact, the latter of which could not have occurred if Ms. de Leon were not of the female sex.

[97] Second, their sexual encounter was the cause of Mr. Morales and his wife’s decision to cut off Ms. de Leon’s access to Pacific Western accounts and to tell her not to come into the office. They did this as an interim measure as they sought legal advice on whether to terminate Ms. de Leon’s employment. If Mr. Morales and Ms. de Leon’s sexual encounter had not occurred, Mr. Morales and his wife would not have discussed whether they should terminate Ms. de Leon’s employment because of it, and they would not have taken the interim measure of cutting off her access to the business accounts and telling her to stay home while they sought legal advice on whether to terminate her employment. As a result of Mr. Morales and his wife’s decision to cut Ms. de Leon’s access to those account off and have her stay home from work, Ms. de Leon experienced an adverse impact in the form of stress and anxiety.

[98] I have now explained why I do not find that Mr. Morales discriminated against Ms. de Leon on January 18, 2019, based on her sex, by sexually harassing her. I have also explained how Mr. Morales discriminated against Ms. de Leon, based on her sex, regarding their sexual encounter on January 18, 2019 by cutting her access to Western Pacific’s accounts and telling her not to come into the office.

[99] Next, I explain why I do not find that Mr. Morales discriminated against Ms. de Leon on January 22 or 23, 2019, based on her sex, by sexually harassing her. I start with what happened on January 22 or 23, 2019.

E. January 22 or 23, 2019 – The second sexual encounter

1. What happened on January 22 or 23, 2019?

[100] The parties agree that Mr. Morales and Ms. de Leon had sexual intercourse in the office bathroom on one of these dates, while they were the only two people in the office. They have provided differing versions of the events that transpired. I accept Mr. Morales version of those events over Ms. de Leon’s version of them. I will now explain why, starting with Ms. de Leon’s evidence about what happened.

[101] Ms. de Leon testified that she and Mr. Morales went into the bathroom. It was not something they had planned; It just happened. He gave her orders about what to do. He did not ask whether she wanted to go to the bathroom. In the bathroom, he took off her clothes from the waist down. He laid down on the floor and told her to go on top of him. He took a condom out of his pocket and put it on. She complied with his order, and they had sexual intercourse. When he finished, he told her to get off and she did. She left the bathroom after he did.

[102] During cross-examination, Mr. Morales said he could not recall who suggested going to the bathroom and denied that he was the one who undressed Ms. de Leon in the bathroom. He agreed that he took off his own pants, laid down, and put on a condom. He disagreed that he directed her to get on top of him and said she did that on her own. He also denied that he told her to get off.

[103] During Mr. Morales’ direct testimony about this encounter, he said he had a condom on him because of what had occurred on January 18, 2019, and over the weekend he had exchanged messages with Ms. de Leon that led him to believe they may have sex. He did not provide further details about those messages. He also wanted to have sex with her. She invited him to her desk because she had a question for him. He went to her desk, and they started kissing. She then turned on a podcast on her computer. Next, they went to the bathroom. He could not recall who entered the bathroom first. Once inside the bathroom, she took her clothes off and he pulled down his pants. He laid on the floor and put on a condom, then they had sexual intercourse. Ms. de Leon was an active participant in this interaction, she kissed him back, had an expression of pleasure on her face, and vocalised pleasure with noises. When they finished, he stood up and went to see whether anybody was around. She stayed in the bathroom a bit longer.

[104] During cross-examination, Ms. de Leon agreed that Mr. Morales may have come and sat next to her and that it is possible they started to kiss again. She also admitted that she turned on a video on her computer before going to the bathroom with Mr. Morales. When asked if she did it to create noise in the room, she responded, “I don’t know why, but I did it.” When asked if it is possible, it was her idea to turn a video on, she said she did not remember. When asked if she put the video on because she knew she was going to have sex in the bathroom, she did not answer directly. Instead, she responded, “yes, I put something on the computer.” She provided no further evidence and made no arguments about why she stopped to turn on a video before going into the bathroom with Mr. Morales.

[105] During cross-examination, Ms. de Leon agreed that Mr. Morales did not use any physical force to take her to the bathroom or while they were having sex. She could not remember him saying anything to her to pressure her in any way or to suggest that she must participate to keep her job. However, she said she felt an immense pressure that she had to do it, and she was afraid that if she said “no,” he would get upset and fire her. She believed him to be a vengeful, pity person who would hold grudges, and that he was a person who did not like to hear the word “no.”

[106] Before moving on to my findings about Mr. Morales conduct toward Ms. de Leon during this encounter, I find it helpful to address the parties’ communications with one another during Ms. de Leon’s vacation in Mexico, immediately after this encounter occurred. Ms. de Leon and Mr. Morales’ evidence about those communications is circumstantially significant to my findings about what occurred.

[107] On either January 22 or 23, 2019, Ms. de Leon left for Mexico on vacation. February 6, 2019 was her first day back at work following that vacation. While in Mexico, Mr. Morales messaged Ms. de Leon and suggested they open snapchat accounts because after a recipient receives and reads a message in snapchat, the app automatically deletes it. Ms. de Leon agreed to do so. They began to use snapchat to communicate. At Mr. Morales’ suggestion, they used a communications code where they would send one another a work picture on Whats App, which was a signal to check snapchat. Both used this code to initiate private conversations that their respective spouses would not have access to.

[108] Mr. Morales testified that while Ms. de Leon was on vacation, she sent him a photo of herself topless. He argued that he did not solicit her to send him this photo. On cross-examination, Ms. de Leon admitted to having sent him the photo. She provided no evidence and made no arguments about whether he solicited the photo, or about why she sent it to him. It is within my discretion to draw an adverse inference from Ms. de Leon’s failure to provide evidence or arguments about why she sent Mr. Morales a topless photo of herself. I may treat this, and her failure to protest Mr. Morales’ argument about the photo being unsolicited, as an implied admission that she sent the photo to him on her own initiative. I am prepared to draw this inference, and I find that Ms. de Leon, on her own initiative, sent a topless photo of herself to Mr. Morales while she was on vacation in Mexico.

[109] According to Mr. Morales, while Ms. de Leon was on vacation, she also sent him messages about having sex with Mr. R. and about a problem Mr. R. had with Ms. de Leon’s brother. Ms. de Leon did not challenge Mr. Morales on these points by objecting to the evidence, during her cross-examination of him, or in her arguments to the Tribunal. As such, I accept these parts of his evidence as true.

[110] During cross-examination, the Respondents asked Ms. de Leon whether, while she was in Mexico, she had also told Mr. Morales to keep his beard because she liked how it felt when he kissed her. She did not provide a direct answer. Instead, she said she remembers making a comment about his beard and saying that she thinks it looks good on him. I infer from the timing of her answer that it was while she was in Mexico that she commented on his beard and told him it looks good on him.

[111] Before moving on, I note that the parties provided conflicting testimony about whether, during Ms. de Leon’s vacation, they discussed going to a hotel upon her return from Mexico. However, I do not find it necessary to resolve their conflicting evidence on this point. Later, I come back to their plan to visit a hotel together.

[112] I now explain why I accept Mr. Morales’ version of events about the January 22 or 23, 2019 sexual encounter over Ms. de Leon’s version of those events. First, Mr. Morales version of events harmonizes best with Ms. de Leon’s behaviour afterwards. While in Mexico, Ms. de Leon engaged in secretive and sexual communications with Mr. Morales. She opened a snapchat account. Without any coercion from Mr. Morales, she sent him a topless photo of herself, talked to him about her relationship with Mr. R. and having sex with Mr. R., and told him that she thinks his beard looks good on him.

[113] Second, during Ms. de Leon’s direct testimony, she left out a key fact that makes Mr. Morales’ version of events more plausible. While she admitted the fact during cross-examination, she did not explain how it reconciles with her version of events. She left out the fact that she stopped to turn on a video on her computer before going with Mr. Morales to the bathroom. When Mr. Morales gave his evidence, Ms. de Leon did not challenge his testimony that she turned on a podcast. Then, during cross-examination, the Respondents asked Ms. de Leon specific questions about why she put the video on before going into the bathroom. Her first response was that she does not know why she did it. In her second response, she admitted it is possible it was her idea and then says she can not remember. When asked a third time why she put the video on before going to the bathroom with him, she simply admitted to having done it and evaded answering the question all together. In my view, the most likely scenario is that she knew what was about to happen, and she put a video on to mask any noise that she and Mr. Morales may make.

[114] I have now explained why I accept Mr. Morales version of events about what occurred between him and Ms. de Leon on January 22 or 23, 2019 over her version of those events. Next, I turn to whether Ms. de Leon has proven she experienced an adverse impact regarding her January 22 or 23, 2019 sexual encounter with Mr. Morales.

2. Has Ms. de Leon proven she experienced an adverse impact regarding the January 22 or 23, 2019 sexual encounter by establishing that it was unwelcome by her, making it sexual harassment?

[115] Ms. de Leon has not proven she experienced an adverse impact regarding the January 22, 2019 sexual encounter by establishing that it was unwelcome by her. As such, she has not established that this sexual encounter was discrimination on the basis that it was sexual harassment. First, Ms. de Leon’s after-the-fact conduct of sending Mr. Morales topless photos and initiating conversation with him about her sex life with her husband is not consistent with her assertion that her sexual encounter with Mr. Morales on January 22 or 23 2019 was unwelcome by her.

[116] Second, I am prepared to infer from Ms. de Leon’s failure to explain why she turned a video on before going into the bathroom, her admission that it could have been her idea to do so, her evasive responses to specific questions about why she did so, and her lack of any evidence or arguments that illustrate Mr. Morales told her to do so, that Ms. de Leon is the person who decided to turn the video on and that she did so to mask any noise that she and Mr. Morales might make while in the bathroom. Her conduct in doing this, knowing that she was going to the bathroom with Mr. Morales to have a sexual encounter, is inconsistent with her evidence that the sexual encounter was unwanted by her moments later.

[117] Third, Ms. de Leon has argued that she did not feel like she had the option to say no to going to the bathroom with Mr. Morales and that she felt compelled to do so because she was worried about loosing her job. I accept that Ms. de Leon needed her job so she could make ends meet financially and that losing her job would have had a detrimental impact on her. I have also already accepted that Mr. Morales had formal and coercive power over her. However, I do not accept that Mr. Morales exercised that power over Ms. de Leon. I also do not accept that because of that power dynamic, Ms. de Leon felt compelled to have sexual intercourse with him. First, Ms. de Leon has agreed that Mr. Morales never said or did anything to her to lead her to believe that he would fire her if she said no to him or that she could not say no to his initiation of sexual conduct. Second, Ms. de Leon has not provided any evidence to support her alleged belief that Mr. Morales was a vengeful person who holds grudges if a person says no to him, or who would fire her if she said no to him. She testified that Mr. Morales did not like to hear “no” from people, and he did not like people to challenge him. However, she gave no examples of this occurring. She also provided no evidence of Mr. Morales being vengeful or inflicting punishment upon either her or any other person in response to them saying no to him or challenging him.

[118] Fourth, Ms. de Leon argues that Mr. Morales had a condom with him, and that his carrying of that condom is evidence that he expected her to have sexual intercourse with him, an expectation that she merely complied with. I do not accept that Mr. Morales’ possession of a condom could have made Ms. de Leon feel compelled to have sexual intercourse with him. There is no evidence that Ms. de Leon knew Mr. Morales had the condom on him until after they had entered the bathroom and undressed themselves in preparation for sexual intercourse.

[119] I have now explained why Ms. de Leon has not proven she experienced an adverse impact regarding the January 22 or 23, 2019 sexual encounter by establishing that it was unwelcome by her. Next, I turn to why I am satisfied that Ms. de Leon experienced another form of an adverse impact regarding her sexual encounter with Mr. Morales on that date.

3. Has Ms. de Leon proven that she experienced any other adverse impacts regarding the January 22 or 23, 2019 sexual encounter?

[120] I find that Ms. de Leon has not proven that she experienced those adverse impacts that she claims to have experienced because of Mr. Morales’ alleged conduct toward her on January 22 or 23, 2019. However, she has proven that in October 2019 she experienced adverse impacts regarding the sexual encounter she had with Mr. Morales on January 22 or 23, 2019, which included her experiencing stress and anxiety after Mr. Morales told his wife about their sexual encounters, and then he and his wife decided to cut off Ms. de Leon’s access to Western Pacific accounts. My reasons for these findings are the same as those set out in paragraphs 83 to 94 of this decision, however I replace all individual references to January 18, 2019 in those paragraphs with January 22 or 23, 2019.

4. Has Ms. de Leon proven that her sex was a factor in the adverse impacts she experienced regarding the January 22 or 23, 2019 sexual encounter she had with Mr. Morales?

[121] I am also satisfied that Ms. de Leon’s sex was a factor in the adverse impacts she experienced regarding that sexual encounter. My reason for this finding is the same as the reason I set out at paragraph 97 of this decision, however I replace all individual references to January 18, 2019 in that paragraph with January 22 or 23, 2019.

[122] I have now explained why I do not find that Mr. Morales discriminated against Ms. de Leon on January 22 or 23, 2019, based on her sex, by sexually harassing her. I have also explained how Mr. Morales discriminated against Ms. de Leon, based on her sex, regarding their sexual encounter on that date by cutting her access to Western Pacific’s accounts and telling her not to come into the office.

[123] I now turn to why I have found that Ms. de Leon has not proven Mr. Morales discriminated against her on February 8, 2019 based on her sex by sexually harassing her.

F. February 8, 2019 – The third sexual encounter

1. Planning the February 8, 2019 hotel visit

[124] First, the parties provided conflicting evidence about whose idea it was to visit a hotel together on February 8, 2019. However, I do not find it necessary to resolve their conflicting evidence on this point. Regardless of whose idea it was, they discussed going to a hotel together and Mr. Morales was responsible for booking the hotel. These discussions may have been while Ms. de Leon was in Mexico but could have been upon her return to work. Ms. de Leon has provided no evidence that Mr. Morales unilaterally planned the hotel visit for them and then persuaded her to go to the hotel with him. To the contrary, the evidence is that they had back and forth conversation about the plan.

[125] On either February 6 or 7, 2019, which is immediately upon Ms. de Leon’s return from her vacation in Mexico, Mr. Morales provided Ms. de Leon details regarding a hotel they could go to on February 8, 2019. Mr. Morales testified that after he presented the hotel plan to Ms. de Leon, she appeared to be happy with it and she told him she was. Ms. de Leon did not challenge Mr. Morales on this part of his testimony. As such, I accept it to be true.

[126] Ms. de Leon testified that when Mr. Morales presented the plan to her, he said, “you feel more comfortable we could go to that hotel.” She provided evidence about what she interpreted his statement to mean. However, she did not provide any further evidence about what she said back to him, or what happened next in their conversation. As such, I do not find this part of her evidence helpful to understanding what happened.

[127] During cross-examination, the Respondents asked Ms. de Leon whether it is possible that she was also excited about going to the hotel and that she was interested in doing so. She did not give a direct answer. Instead, she responded that it is possible that she “said that because she was agreeing to go to the hotel.” Later, the Respondents asked Ms. de Leon a second time whether she was interested in the hotel idea. Again, she did not give a direct answer. Instead, she responded, “hmmm, the same way, I um, can I have a second to think about my response, … [pause] … hmm, the way I saw it is that I accepted going to the hotel because from my perspective I had to go.”

[128] I am willing to infer from Ms. de Leon’s failure to challenge Mr. Morales on his testimony about her appearing happy with the hotel plan, her lack of evidence about her response to him when he told her about the hotel plan, and her avoidant responses to direct questions about whether she was excited or interested in going to the hotel, that she had at least some interest in going to a hotel with Mr. Morales on February 8, 2019, and that she was content with the plan to do so.

[129] Next, I turn to what happened on February 8, 2019.

2. What happened on February 8, 2019?

[130] On the morning of February 8, 2019, Ms. de Leon had second thoughts about going with Mr. Morales to the hotel. Mr. Morales and Ms. de Leon attended the office knowing their plan was to have sexual intercourse at a hotel that afternoon. Ms. de Leon testified that on the morning of February 8, 2019, she told Mr. Morales she was sick with allergies and not feeling very good. Her goal was to get out of going to the hotel. He responded by asking her if she is going to work slowly in the afternoon. She responded by telling him she did not feel very good in general. In cross-examination, Ms. de Leon speculated about what Mr. Morales’ comment to her was a reference to. However, she provided no further details regarding their conversation. During cross-examination, Mr. Morales denied that this conversation took place. I accept Ms. de Leon’s testimony about this conversation having taken place. However, I give no weight to her evidence about Mr. Morales’ response to her telling him she felt sick. I infer from Ms. de Leon’s evidence on this point that she was, at minimum, having second thoughts about going with Mr. Morales to the hotel.

[131] At approximately 2:00 p.m., Mr. Morales told Mr. A. that he and Ms. de Leon were going out to do a site inspection. Mr. Morales and Ms. de Leon left the office together and travelled to a hotel. Mr. Morales testified that on the way to the hotel, he and Ms. de Leon were having fun, Ms. de Leon was smiling, and they were sharing jokes with each other. Ms. de Leon did not challenge this part of Mr. Morales’ testimony or provide any arguments or evidence to the contrary. Absent any evidence or arguments to the contrary, I accept that Ms. de Leon and Mr. Morales were having fun, and that she was smiling and joking with him, on their drive to the hotel. I infer from this that she was again feeling at least content with their plan to go to the hotel and have sexual intercourse.

[132] Either on their way to the hotel or after they checked into their hotel, Mr. Morales purchased alcohol. While at the hotel, Ms. de Leon drank some of that alcohol, Ms. de Leon performed oral sex on Mr. Morales, and they had sexual intercourse. They then shared food and Mr. Morales drove Ms. de Leon home. While Ms. de Leon and Mr. Morales agree that these events occurred, they gave conflicting evidence about how they occurred.

[133] I am not convinced that this sexual encounter occurred how Ms. de Leon said it did. I start with Ms. de Leon’s testimony. She testified that on the way to the hotel, she and Mr. Morales stopped at a liquor store, and Mr. Morales purchased alcohol. He also had tequila with him, but she could not recall whether he bought it at the liquor store or had it in his car already. During cross-examination, Mr. Morales denied that they stopped at a liquor store on their way to the hotel, and that he had tequila in his car.

[134] Ms. de Leon testified that when they got to the hotel, Mr. Morales told her to drink so she will lose her shyness. She then proceeded to drink as much as she could because she “didn’t want to think about it.” Then, she got “super drunk,” and cannot remember the rest in detail. However, she recalled that they had oral sex and sexual intercourse.

[135] Ms. de Leon also testified that when she returned home from the hotel on February 8, 2019, she told Mr. R. that she and Mr. Morales had engaged in sexual intercourse and that they had been at a hotel together. However, at that time, she did not give Mr. R. details about what had happened. When Mr. R. heard this, he understood that Ms. de Leon had engaged in an affair with Mr. Morales. Ms. de Leon recalled him looking very sad about what she told him. During cross-examination, Ms. de Leon could not remember when she told Mr. R. that the sexual encounters between her and Mr. Morales were non-consensual, but she said that it was many weeks afterwards. She said she has many conversations with Mr. R., so, it “isn’t like she said everything in one conversation.” She said she told him on multiple occasions what had occurred, giving him a bit of information here and there over the course of months.

[136] I now turn to Mr. Morales testimony. Mr. Morales testified that after he and Ms. de Leon arrived in the hotel room, they sat on the bed and talked for a few minutes, then he asked her if she wanted to drink something, and she said yes. Next, he went to the liquor store in the same plaza as the hotel, bought three cans of Smirnoff vodka drinks, and went back to the hotel.

[137] During cross-examination, the Respondents asked Ms. de Leon whether she recalled sitting on the bed with Mr. Morales when they arrived in the hotel room, and she said she did. They asked her whether Mr. Morales asked if she wanted something to drink while they were sitting on the bed. She said she could not remember, and he may have. Next, they asked if she said yes, she wanted a drink. She said she probably did but she was not sure.

[138] The Respondents asked Ms. de Leon whether there is a liquor store in the same plaza as the hotel is located in. She did not answer the question. Instead, she reiterated that they had stopped to purchase alcohol on their way to the hotel. She disagreed that they went directly to the hotel without stopping anywhere.

[139] The Respondents then proposed to Ms. de Leon that, after she said to Mr. Morales that she would like a drink, he left the hotel room and went to the liquor store in the same complex as the hotel to get drinks. Ms. de Leon neither agreed nor disagreed with their proposal. Instead, she reiterated her earlier testimony that Mr. Morales purchased alcohol when they stopped on their way to the hotel. Then, when they arrived at the hotel they sat on the edge of the bed and he said, “why are you so shy?” Ms. de Leon then made a consecutive series of statements about Mr. Morales leaving the room to get alcohol and again to get food, and about how much alcohol she drank while at the hotel. In summary, she said:

a. Mr. Morales left the hotel room at some point, but she could not state exactly when it was, or whether he went back to the “same liquor store.”

b. Mr. Morales left the hotel room twice. The first time, he brought back tequila and the second time he brought back food.

c. She knows Mr. Morales left the hotel room once, and maybe twice, but she could not be sure which because she got so drunk after he told her to drink to get rid of her shyness.

d. She had a few drinks of Smirnoff, which made her so drunk she could not remember how long Mr. Morales was away for when he left the hotel room.

e. She started drinking when Mr. Morales was with her at the hotel room, then he left, and she drank many cans of the Smirnoff.

[140] Mr. Morales testified that after he returned to the hotel with the three Smirnoff drinks, Ms. de Leon stated that she was hungry, so he went back out to get them food, which took him approximately 45 minutes. When he arrived back at the hotel, he noticed one and a half cans of the Smirnoff drinks he had purchased were gone. One can was empty and crushed and the other was open.

[141] During cross-examination, the Respondents proposed to Ms. de Leon that after Mr. Morales went to get drinks from the liquor store in the same complex as the hotel, she told him she was hungry and asked him to get food for them. Ms. de Leon said she could recall that there was food, but said it was not shortly after their arrival to the hotel that there was food. The Respondents then suggested to Ms. de Leon that Mr. Morales was away for 45 minutes. She said she could not remember. Next, they proposed to her that she stayed and waited for him to return with the food. She said she could not remember anything other than that she said she was hungry, and he said he would go pick something up. Next, they asked if she drank while he was gone, and she said she did. They proposed to her that she drank one and a half cans of Smirnoff drinks, and she disagreed. She said she remembered that she was “drunk the whole afternoon,” and if she had to estimate how many drinks she had, her estimate would be between six and eight drinks, but she did not know how many drinks she had.

[142] Next, Mr. Morales testified that he and Ms. de Leon talked a bit, started kissing, took their clothes off and she performed oral sex on him. After this, they talked for twenty to thirty minutes and then had sexual intercourse. Next, they laid in bed for another thirty minutes and she tried to “jump on” him again, but he was unable to have another erection. They then ate the food, and he drove Ms. de Leon home.

[143] During cross-examination, the Respondents proposed to Ms. de Leon that she performed oral sex on Mr. Morales. She said she remembered doing so. They then proposed that after the oral sex, she and Mr. Morales talked for awhile before having sexual intercourse. She said she could not remember if there was conversation, but she remembered having oral sex first, and then intercourse. She agreed that after having intercourse, they likely had conversation. The Respondents then proposed to her that after twenty to thirty minutes, there was an effort to have sex again, but Mr. Morales could not maintain an erection. Ms. de Leon did not respond directly to their proposal. Instead, she stated that she remembered he could not maintain an erection. She then agreed that after that occurred, they could have and likely did have more conversation. Last, the Respondents proposed to Ms. de Leon that they ate, and Mr. Morales drove her home. In response, she said that it was later in the evening when they ate, and that it was dark when he drove her home, but she could not confirm the exact time.

[144] I now turn to explaining why I accept Mr. Morales’ version of events about what happened on February 8, 2019 over Ms. de Leon’s version of those events. First, I accept Mr. Morales’ evidence that upon their arrival at the hotel, he asked Ms. de Leon whether she wanted a drink, and she said yes. Ms. de Leon agreed that it is possible this occurred. Her agreement to this having possibly been their conversation conflicts with her direct testimony that they sat on the bed and then Mr. Morales told her to drink to get rid of her shyness.

[145] I also accept that Mr. Morales then went to the liquor store in the same plaza and came back with Smirnoff drinks. I accept this because Mr. Morales evidence about when he purchased liquor was consistent across his direct testimony and cross-examination. In addition, Ms. de Leon was evasive when the Respondents questioned her about whether there was a liquor store in the same plaza as the hotel and when they asked her about whether Mr. Morales left the hotel shortly after arriving to go to that liquor store and get alcohol for her. Instead of answering these questions directly, Ms. de Leon reiterated her own version of events. I presume that Ms. de Leon was evasive in her answers to these questions because her direct answers would have been prejudicial to her case; they would have supported Mr. Morales’ version of events and undermined her own version of events.

[146] Next, I accept Mr. Morales evidence that shortly after offering Ms. de Leon a drink, and her accepting it, she asked him to get her food, and then he left the hotel for approximately 45 minutes to purchase food. Ms. de Leon gave evidence that she started drinking when Mr. Morales was with her at the hotel room, then he left, and she drank many cans of the Smirnoff. This part of her evidence is consistent with Mr. Morales’ version of events up to this point. The remainder of Ms. de Leon’s evidence about when Mr. Morales left to get food was internally inconsistent and jumbled. I do not find it to be reliable.

[147] I also accept that when Mr. Morales returned from getting food, he noticed that one and a half cans of Smirnoff that he had purchased and left with Ms. de Leon were empty, and more likely than not Ms. de Leon consumed them. Mr. Morales testimony about how many drinks were gone when he returned to the hotel remained unscathed throughout his direct testimony and cross-examination. Ms. de Leon was the only person in the hotel room while he was away. Ms. de Leon provided no direct evidence about how much she drank during this period. Instead, she provided broad statements about how much she drank throughout the time they were at the hotel. Absent direct evidence to the contrary, I accept Mr. Morales’ testimony.

[148] Last, I accept Mr. Morales’ evidence that when he returned from getting food, he and Ms. de Leon talked for a bit, started kissing, took their clothes off and then she performed oral sex on him. They then talked for twenty to thirty minutes and had sexual intercourse. Afterwards, they laid in bed for another thirty minutes and then Ms. de Leon tried to “jump on” him again but he could not achieve another erection so no further sexual intercourse occurred.

[149] I accept Mr. Morales evidence on these points because Ms. de Leon did not challenge these parts of his testimony. Ms. de Leon has also not provided any evidence that conflicts with these parts of his testimony. To the contrary, Ms. de Leon has agreed to parts of Mr. Morales testimony on these points, which supports his version of these events. For example, she agreed that after having sexual intercourse they talked for a while. She also remembered that he could not get an erection at some point.

[150] I have now explained why I accept Mr. Morales version of events about what occurred between him and Ms. de Leon on February 8, 2019 over her version of those events. Next, I turn to how Ms. de Leon has proven she experienced an adverse impact regarding her February 8, 2019 sexual encounter with Mr. Morales.

3. Has Ms. de Leon proven she experienced an adverse impact regarding the February 8, 2019 sexual encounter by establishing that it was unwelcome by her, making it sexual harassment?

[151] Ms. de Leon has not proven she experienced an adverse impact regarding the February 8, 2019 sexual encounter by establishing that it was unwelcome by her. As such, she has not established that this sexual encounter was discrimination on the basis that it was sexual harassment. First, Ms. de Leon’s attempt, half an hour after having had allegedly unwanted oral sex and sexual intercourse with Mr. Morales, to initiate another round of sexual intercourse with him, does not reconcile with her evidence that the oral sex and sexual intercourse she had with him was unwanted, and that she was just going with the flow or complying with what Mr. Morales wanted from her to get things over with so she would not lose her job. Going with the flow and complying with a sexual act means not resisting and just letting it happen. It is much different than taking steps to have further sexual acts.

[152] Second, Ms. de Leon’s other conduct after this sexual encounter is inconsistent with her evidence that it was unwelcome. It is extremely unreasonable and unlikely that, if this sexual encounter was unwelcome by Ms. de Leon, a few weeks later she would invite Mr. Morales over to her apartment while Mr. R. was not home, agree to him bringing alcohol, and then drink that alcohol with him alone in her apartment while tracking Mr. R.’s whereabouts knowing that the last time they were in similar circumstances (alone and drinking alcohol) she ended up having unwanted oral sex and sexual intercourse with him. I will come back momentarily to Mr. Morales’ visit to Ms. de Leon’s apartment two weeks after this sexual encounter occurred.

[153] I have now explained why Ms. de Leon has not proven she experienced an adverse impact regarding the February 8, 2019 sexual encounter by establishing that it was unwelcome by her. Next, I turn to why I am satisfied that Ms. de Leon experienced another form of an adverse impact regarding her sexual encounter with Mr. Morales on that date.

4. Has Ms. de Leon proven that she experienced any other adverse impacts regarding the February 8, 2019 sexual encounter?

[154] I find that Ms. de Leon has not proven that she experienced those adverse impacts that she claims to have experienced because of Mr. Morales’ alleged conduct toward her on February 8, 2019. However, she has proven that in October 2019 she experienced adverse impacts regarding the sexual encounter she had with Mr. Morales on February 8, 2019, which included her experiencing stress and anxiety after Mr. Morales told his wife about their sexual encounters, and then he and his wife decided to cut off Ms. de Leon’s access to Western Pacific accounts. My reasons for these findings are the same as those set out in paragraphs 83 to 94 of this decision, however I replace all individual references to January 18, 2019 in those paragraphs with February 8, 2019.

5. Has Ms. de Leon proven that her sex was a factor in the adverse impacts she experienced regarding the February 8, 2019 sexual encounter?

[155] I am also satisfied that Ms. de Leon’s sex was a factor in the adverse impacts she experienced regarding that sexual encounter. My reason for this finding is the same as the reason I set out at paragraph 97 of this decision, however I replace all individual references to January 18, 2019 in that paragraph with February 8, 2019.

[156] I now come back to Mr. Morales’ visit to Ms. de Leon’s apartment on February 22, 2019.

G. The events of February 22, 2019

1. Mr. Morales’ visit to Ms. de Leon’s apartment

[157] February 22, 2019 is two weeks after Mr. Morales and Ms. de Leon’s sexual encounter at the hotel. Mr. Morales made a visit to Ms. de Leon’s apartment, upon her request. That afternoon, while Mr. Morales and Ms. de Leon were at the office, they had the following Whats App conversation. Each of their initials indicate who said what:

FM: [Sends Ms. de Leon a photo, indicating she should check her snapchat account.]

FM: Are you alright? You seem worried.

ED: Sorry, I deleted my snapchat. I am a little sad, but you don’t worry about it. Everything is alright.

FM: Do you have plans for today? Would you like to talk to someone?

ED: I have no plans. Just to come back to my home. When you say someone, are you referring to yourself?

FM: Yes. What time does your husband arrive?

ED: Don’t worry, Jordan gets out at 5pm, it won’t be enough time.

FM: Oh 🙁 🙁

ED: Sorry Fabio.

FM: Whatever have you sad, I hope you can turn it into happiness, and I will be glad to help you anything you need.

ED: Thanks Fabio, I hope so too.

[158] Ms. de Leon testified that she told Mr. Morales that Mr. R. gets out at 5:00 p.m. because she wanted to “discourage Mr. Morales” and she did not want to talk to him. However, I do not accept her evidence on this point because between 5:39 p.m. and 7:19 p.m., while Ms. de Leon was at home, she initiated another conversation with Mr. Morales, which went as follows:

a. Ms. de Leon asked Mr. Morales if he has a minute. He responded by saying hello to her and asking her how she was doing.

b. In reply, she asked if he still wanted to talk, and told him that Mr. R. just left for a meeting of the masons, that she is doing so-so, and that Mr. R. comes back at 10:00 p.m. She told Mr. Morales that they can meet at her apartment.

c. Mr. Morales asked her if she is tracking Mr. R.’s whereabouts on their tracking app, and she said she was. She then said she checked the tracking app and Mr. R. is at the ward of the masons. They agreed that Mr. Morales would come to Ms. de Leon’s apartment at 7:15 p.m.

d. Mr. Morales asked Ms. de Leon if she would like him to bring tequila. She said yes, but she had no soda or mineral water. They discussed whether to drink the tequila without a mix, and Ms. de Leon asked Mr. Morales to pick up a mix. He said he would.

[159] Ms. de Leon testified that she chose her apartment as a location to talk to Mr. Morales because it was a safe space for her. She felt that she “had to comply” because “he wanted to talk to her,” and she was worried that he would be upset if she said no to him. I am not convinced that this is true. When Ms. de Leon declined talking to Mr. Morales earlier in the day, his response toward that denial was positive. He was not upset with her for it. Instead, he wished her well and offered to help in any way he could. It was Ms. de Leon who then took the initiative to reach out to Mr. Morales asking if he had time and letting him know that Mr. R. was out until 10:00p.m., which I treat as her saying that they have time to get together without Mr. R. knowing.

[160] Ms. de Leon also testified that she agreed for Mr. Morales to bring tequila with him to her apartment because she felt more secure in her own apartment. I am not convinced that this is true. According to Ms. de Leon, two weeks earlier Mr. Morales had sexually assaulted her for a third time, while they were alone, and she was drunk. It makes no sense that she would then, on her own initiative, reach out to him when she knows her husband won’t be home, invite him to her apartment where they would be alone together, and agree for him to bring alcohol over so they could drink together because being in her apartment felt more secure to her.

[161] According to Ms. de Leon, while Mr. Morales was at her apartment, he either tried to take her shirt off, or he took her overshirt off, leaving her undershirt on. Mr. Morales disagreed that either of those things occurred. However, he said that he and Ms. de Leon may have kissed while he was at her apartment. He could not remember. I do not find this part of Ms. de Leon’s testimony to be credible because she provided conflicting testimony about her sexual encounter with Mr. Morales on February 8, 2019 being their last sexual encounter. I treat that part of her testimony as her stating that he did not engage in sexual conduct of a touching nature toward her after February 8, 2019. Ms. de Leon also provided inconsistent evidence about whether Mr. Morales tried to, or actually did, take her shirt off.

[162] Ms. de Leon, Mr. Morales, and Mr. R. provided consistent evidence that Mr. R. arrived home early from his masons meeting while Ms. de Leon and Mr. Morales were alone in her apartment together. Mr. R. was angry to find Mr. Morales in his home alone with Ms. de Leon. Immediately after Mr. R. entered the apartment, he and Mr. Morales were in the hallway and Mr. R. pushed Mr. Morales. Ms. de Leon was also in the hallway trying to calm things down. Things somewhat calmed down and the three of them moved into the common area, where Mr. Morales sat on the couch. Mr. R. took a photo of Mr. Morales and Ms. de Leon tried to put herself in front of the camera to stop Mr. R. from taking the photo. After Mr. R. took the photo, Mr. Morales insisted that he delete it, and they had a heated discussion about the conditions upon which Mr. R. would delete it. Mr. R. eventually agreed to delete the photo on certain conditions. He and Mr. Morales’ versions of what those conditions were differ. However, I do not find it necessary to resolve their conflicting evidence on this point because doing so will not assist me in deciding whether Ms. de Leon has proven discrimination.

[163] Before moving on, I recognise that during Mr. R.’s direct testimony he said that he told Mr. Morales to stop harassing Ms. de Leon, and that he wanted Mr. Morales to not sexually harass Ms. de Leon anymore. However, I do not accept that he said these things to Mr. Morales on this date. I do not find these parts of his evidence to be reliable because during cross-examination Mr. R. agreed that when he was talking to Mr. Morales in his apartment, he told Mr. Morales that the “sexual relationship” between Mr. Morales and Ms. de Leon was over and that nothing is going to continue to happen regarding their “affair.” I infer from Mr. R’s evidence in cross-examination and Ms. de Leon’s evidence about when she told Mr. R. that her sexual encounters with Mr. Morales were non-consensual, that on February 22, 2019, Mr. R. understood that Ms. de Leon and Mr. Morales’ had been having a consensual sexual relationship, being an affair.

2. After Mr. Morales left Ms. de Leon’s apartment

[164] I also wish to address evidence that Ms. de Leon provided the Tribunal about a Whats App conversation she had with Mr. Morales after he left her apartment, while Mr. R. was in a different room than her. At the time, Mr. R. did not know she was having this conversation with Mr. Morales. Mr. Morales was concerned that Mr. R. may be coming to his house. At this time, Mr. Morales had not told his wife about his sexual encounters with Ms. de Leon. Ms. de Leon reassured Mr. Morales that she spoke to Mr. R. and that Mr. R. was not coming to his house. She told Mr. Morales that Mr. R. had gone to his parents house. In the remainder of their Whats App conversation:

a. Ms. de Leon both said sorry to Mr. Morales and asked him to forgive her eight times.

b. Ms. de Leon assured Mr. Morales that Mr. R. would not say anything to anybody, and that nothing bad would happen. She told him that she never wanted to drag him into “this” and that she had checked Mr. R.’s phone and he had nothing, which I treat as a reference to Mr. R. having no photos of Mr. Morales on his phone. She also said that Mr. R. “knows that what happened between us is ending,” that “he’s jealous, that’s all,” that she believed the worst that happened in Mr. Morales’ life was him meeting her, and that it’s her fault and that she is going to talk with him, which I treat as meaning she will talk to Mr. R.

c. Mr. Morales told Ms. de Leon to please speak with Mr. R. who he said believes that he and Ms. de Leon “have something,” that “it’s a misunderstanding and he’s right to think wrongly,” to speak with Mr. R. and calm him down please and that Mr. R. is a good man, that he feels a lot of shame for what Mr. R. might think, and that he and Ms. de Leon weren’t doing anything but it’s within Mr. R.’s right to think wrongly.

[165] Ms. de Leon testified that during this conversation, she was trying to calm Mr. Morales down. She thought he was furious, upset and going to fire her. She said she wanted him to forgive her and let her continue working. However, nothing in Mr. Morales’ messages to Ms. de Leon support a finding that she needed to calm him down. If Ms. de Leon had any thoughts about him being furious with her, upset with her, or that he might fire her, those thoughts were speculative, and she has not provided any sound basis for them.

[166] During cross-examination, Ms. de Leon said that when she wrote “forgive me” to Mr. Morales, she meant “forgive me for the whole incident of the whole evening, not specifically what [her] husband did.” When she wrote “sorry” to him, she meant for the whole situation, for herself, for everybody, and the consequences it will bring into the future. Without any evidence to the contrary, I accept that this is what Ms. de Leon meant in her messages.

[167] Ms. de Leon also said that when she wrote “he knows what happened between us is ending,” she was referring to a rough patch her and her husband were going through and that their relationship might be ending. When she wrote “he is jealous, that’s all,” she meant that her husband was jealous that she was in the apartment with Mr. Morales. When she wrote that her husband knows “what we had is ending,” she was not referring to her sexual relationship with Mr. Morales. She was referring to her and her husband’s relationship ending.

[168] I am not convinced by Ms. de Leon’s evidence about what she meant about things “ending.” I accept that Ms. de Leon and Mr. R. were experiencing financial stress during this period. Both provided evidence to that regard. Ms. de Leon also testified that since she had told Mr. R. about her and Mr. Morales having sex her relationship with Mr. R. had been going through a rough patch. However, neither Ms. de Leon nor Mr. R. provided any evidence that they were discussing an end to their relationship during this time.

[169] Last, Ms. de Leon said that when she wrote “he’s not going to say anything to anybody,” she meant that Mr. R. would not say anything to Mr. Morales’ wife about “the relationship.” I treat this as her saying that Mr. R. would not say anything to Mr. Morales’ wife about the relationship between her and Mr. Morales. I note that Ms. de Leon’s reference to what occurred between her and Mr. Morales having been a “relationship” is irreconcilable with her story that their sexual encounters were unwelcome by her.

[170] Now that I have provided contextual information about Mr. Morales’ February 22, 2019 visit to Ms. de Leon’s apartment, I comment on when Ms. de Leon and Mr. Morales’ agreement that no further sexual contact between them would occur.

H. Ms. de Leon and Mr. Morales’ agreement to end their intimate relationship

[171] Ms. de Leon gave evidence that sometime shortly after February 8, 2019, she told Mr. Morales she only wants a professional relationship with him and nothing else, and that whatever it was that happened, it has gone in the past, that’s it. He was surprisingly accepting of what she said to him.

[172] Mr. Morales denied that he and Ms. de Leon had the conversation she said they did about ending their intimate relationship. To the contrary, he gave evidence that, in mid-March, he and Ms. de Leon went for dinner at a Mexican restaurant. While he drove her home, he told her it was time to end their relationship. She agreed that it was best for them to end things. During cross-examination, Ms. de Leon recalled going out for dinner with Mr. Morales but could not remember when. She remembered talking to him on the way home but denied that their discussion included them agreeing to mutually end their relationship.

[173] Neither party has made arguments about how this evidence is relevant to whether discrimination occurred. So, there is no need for me to determine which version of events is true. Regardless of which is true, both Ms. de Leon and Mr. Morales agree that by mid-March 2019 at least one of them had vocalised to the other that what occurred between them has ended and the other had agreed to what they had ending.

I. May to October 2019 – The alleged discriminatory comments

[174] Now that I have provided context about Ms. de Leon and Mr. Morales’ agreement regarding their intimate relations ending, I move on to Ms. de Leon’s allegations that after she and Mr. Morales ended their intimate relationship, he made comments toward her that were discriminatory based on her sex. I start with preliminary remarks about the parties evidence and arguments about the alleged comments. First, I comment that part of Ms. de Leon’s evidence about comments that Mr. Morales allegedly made focuses solely on Mr. Morales making comments that made her feel a certain way, or that she understood to mean certain things about her. Those parts of her evidence do not include specifics about what Mr. Morales said, or when, where, or how he said it. As such, I am unable to address those parts of her evidence. I focus only on the specific comments that Ms. de Leon provided evidence about.

[175] Second, I note that Ms. de Leon provided no arguments and little evidence about how each of Mr. Morales’ alleged comments adversely impacted her. Where she has proven that Mr. Morales made a comment toward her and provided no evidence about adverse impact, I have had no choice but to dismiss that part of her complaint.

[176] I now move on to assessing whether Ms. de Leon has proven each of the alleged comments. For each comment that Ms. de Leon has proven Mr. Morales made to her, I assess whether she has also established that the comment was discriminatory based on sex.

1. The “women get dressed up” comment

[177] Ms. de Leon testified that in April, May or June, Mr. Morales said to her something to the effect of “why do women get dressed up so nicely because they want men to say things to them.” Ms. de Leon described his comment as feeling “like torture.” Both in his direct testimony and in cross-examination, Mr. Morales denied making these comments to Ms. de Leon.

[178] During cross-examination, the Respondents proposed to Ms. de Leon that there are no allegations in her complaint that pre-date May 2019. Ms. de Leon pointed them to a part in her complaint where he said to her “why do women get dressed so nicely,” and then he responded to himself, “it’s because they want men to say things to them.” The Respondents then proposed to Ms. de Leon that this did not occur. She disagreed.

[179] Ms. de Leon has not convinced me that Mr. Morales made a comment toward her about why women get dressed up so nicely, and then responded to himself that it is because they want men to say things to them. It is on this basis that I have dismissed this part of her complaint. While Ms. de Leon’s evidence is that Mr. Morales did say this to her, it appeared to me that while she was giving her evidence on this matter, she was not recalling an event that occurred. Instead, she was reiterating what she had written in her complaint to the Tribunal.

2. The comments about Ms. de Leon wearing a skirt

[180] Ms. de Leon testified that on another occasion, Mr. Morales commented on her skirt three times, telling her to dress appropriately. She said at the end of the day, he told her in English, “don’t bring a skirt tomorrow because it’s a site inspection.” The following day, Ms. de Leon told Mr. Morales she did not like him telling her so many times to dress appropriately. When she said the words “so many times,” she accentuated them, making them a prominent part of what she said. Ms. de Leon further testified that when Mr. Morales made these comments toward her, it made her think that he is trying to control what she is wearing and treat her like an infant, or something.

[181] Mr. Morales admitted that there was one occasion where he told Ms. de Leon not to wear a skirt the following day. Ms. de Leon was wearing a skirt, and he wanted to remind her not to wear one the following day due to safety reasons on the inspection site they were going to. He denied making other comments about her clothing either before or after this comment. Mr. Morales also admitted that after he commented on Ms. de Leon wearing a skirt, Ms. de Leon told him that she felt bad about his comment and told him not to make such comments again. He apologised and told her his comment had to do with the construction site.

[182] I accept Ms. de Leon’s evidence about the comments that Mr. Morales made over Mr. Morales’ evidence about having only made one comment. Her evidence about Mr. Morales commenting four times about her skirt and telling her to dress appropriately harmonizes the best with her having told him the following day that his comments upset her.

[183] Ms. de Leon has proven that Mr. Morales’ comments toward her had an adverse impact on her. They made her feel like he was trying to control what she wore, and he was treating her as an infant.

[184] However, Ms. de Leon has not proven that Mr. Morales’ comments about her skirt were of a sexual nature, or that her sex was otherwise a factor in the adverse impacts she experienced. On this basis, I have dismissed this part of her complaint. I am satisfied that Mr. Morales comments about Ms. de Leon not wearing a skirt and dressing appropriately related to that fact that she should not wear a skirt the next day because she will be attending a site inspection, which takes place in an environment where skirts are not acceptable attire due to rules around health and safety. Ms. de Leon has not provided any evidence that could support a finding that Mr. Morales’ told her not to wear a skirt to work the next day because it was too feminine, provocative, etcetera. Ms. de Leon has also not established that it was the nature of Mr. Morales’ comment that upset her. It was more likely than not the repetitive nature of his comments, as opposed to the content of them, is what upset her and made her feel bad. I have made this finding based on her accentuation of the words “so many times” when she gave evidence about telling Mr. Morales that she did not like what he had said to her. I have also made this finding based on her use of the term infant to describe how she felt she was being treated when Mr. Morales told her so many times not to wear a skirt the next day.

3. The comment about “putting cameras on” Ms. de Leon

[185] Next, Ms. de Leon testified that Mr. Morales said he would “put cameras on me, if, if, basing on what we have done.” She then said he told her that “he will put cameras on me, based on my behaviour.” Last, she said that he told her, “if I were your husband, I would put cameras on you.” I treat her use of the phrase “put cameras on you” as meaning record what she is doing by setting up surveillance cameras that track her activities.

[186] I am not convinced by Ms. de Leon’s testimony that Mr. Morales made any comments toward her about “putting cameras on her.” I have dismissed the part of her complaint that has to do with this type of a comment because Ms. de Leon’s testimony is not credible. Her evidence on this matter is internally inconsistent. On the one hand, she said his comment had to do with him putting cameras on her. On the other hand, she said his comment had to do with what he would do if he were her husband.

4. The comment about Mr. Morales’ wife’s past sexual history

[187] The parties have provided consistent evidence that Mr. Morales and Ms. de Leon had a conversation where Ms. de Leon told Mr. Morales that before she and Mr. R. got married, she had told Mr. R. everything about her life, including details about her sex life. In response, Mr. Morales said to her that if knew those sorts of things about his wife prior to getting married, he probably would not have married her. Ms. de Leon testified that Mr. Morales’ comment upset her. She cried and she got Mr. R. to come pick her up. She went home, and she cried more.

[188] I have found that Mr. Morales’ making of this comment toward Ms. de Leon is sex-based discrimination. First, Ms. de Leon has proven she experienced an adverse impact in her employment regarding Mr. Morales’ comment toward her. Her uncontradicted evidence that after he made this comment toward her, she cried and then got Mr. R. to pick her up, went home and cried some more is evidence that she experienced harm from his comment and left work due to how bad it made her feel.

[189] Second, Ms. de Leon has established that Mr. Morales’ comment was of a sexual nature, making her sex a factor in the adverse impacts she experienced. In making this comment, Mr. Morales compared his view on discussing sex with his wife before they got married to Ms. de Leon’s discussions with her husband about her own sex life before they got married. The comment predominantly focussed on what Mr. Morales found to be acceptable regarding his wife vocalising her past sexual activities to him.

5. The comment about not flirting with Ms. de Leon anymore or “being that way” with her

[190] Next, Ms. de Leon testified that she recalled Mr. Morales saying to her something like “how are you feeling now that I’m leaving you, that you, things are [calmer] and all that.” She thought he was talking about the phone, which had been “ringing like crazy” before. She responded that she was happy not to have to answer the phone. He replied, “no that’s not what I mean. I mean like, I’m not flirting with you, and you know, I’m not being that way with you.” She responded to him, “Oh. Ok. Everything’s good.” She testified that she did not further engage in this conversation with Mr. Morales, which I treat her as saying that this is all there was to that conversation and that she did not engage in it further because she did not want it to continue.

[191] Mr. Morales gave evidence that he recalled asking Ms. de Leon how things were in the office since it was calmer. He believed he made this comment in reference to whether Ms. de Leon could help with the phones because sometimes clients would call from India. Their accents were strong, and he wanted to know how things were going for Ms. de Leon and whether she could help with the phone calls. Later in his testimony, he gave evidence that he believed his comment was about how he and Ms. de Leon “weren’t having this kind of conversation after work hours texting” anymore. He denied that he made any comment toward Ms. de Leon about flirting.

[192] During cross-examination, Ms. de Leon acknowledged that when she says Mr. Morales made a comment to her about him not flirting with her anymore, it had been approximately five months since they had been in “a relationship.” I treat this as her acknowledging that it was sometime in July 2019 when Mr. Morales made these comments toward her. Ms. de Leon disagreed with the Respondent’s proposition about what Mr. Morales meant by his comment about things being calmer. She also disagreed that Mr. Morales did not make a comment about not flirting with her anymore.

[193] I accept Ms. de Leon’s evidence over Mr. Morales evidence about this conversation. Ms. de Leon gave internally consistent evidence in both her direct and cross-examination. Her recollection about what occurred was reasonable and had a flow to it. I find her evidence to be both reliable and credible. To the contrary, Mr. Morales was unable to clearly recollect what the conversation at hand was about. He gave evidence about what he believed he meant by a comment about it being calmer but was not consistent in that evidence, which indicates to me that he does not clearly recall what occurred. As such, I do not find his evidence to be reliable.

[194] Ms. de Leon has proven that she experienced an adverse impact regarding Mr. Morales making these comments toward her. She provided general evidence that it was stressful for her when Mr. Morales made these comments toward her, and that she was constantly thinking about whether her responses to him may cause a reaction that she did not want to cause from him.

[195] Ms. de Leon has also proven that Mr. Morales’ comment about not flirting with Ms. de Leon anymore was of a sexual nature. I treat his reference to not flirting anymore with her as a reference to him no longer making any comments or gestures toward her that signal his interest in an intimate or sexual relationship with her. I am also satisfied that his comment about not “being that way” with Ms. de Leon anymore was of a sexual nature. I treat his comment as a reference to his behaving toward her as if they were in an intimate sexual relationship.

6. The October 16, 2019 meeting in North Vancouver and comments about the hotel and dreaming about Ms. de Leon

[196] On October 16, 2019, Mr. Morales and Ms. de Leon attended a work-related meeting in North Vancouver. Mr. Morales drove them to and from the meeting. On their way home, Mr. Morales drove past the hotel they had visited together on February 8, 2019. As they drove past it, he pointed to it and said it brings him good memories. She responded, “ah, ok.” He also said he had been having dreams about her. Mr. Morales understood this conversation to be part of a normal conversation they were having along their drive. He testified that he wanted to express to Ms. de Leon that what they had meant something to him. He was not trying to convince her to have sexual relations with him again.

[197] I have found that Mr. Morales’ comment toward Ms. de Leon is sex-based discrimination. First, Ms. de Leon has proven that she experienced an adverse impact regarding Mr. Morales making these comments. Ms. de Leon provided uncontradicted evidence that when she arrived at home, she was upset about the comments he had made toward her. Second, Mr. Morales’ comments were of a sexual nature, making Ms. de Leon’s sex a factor in the adverse impacts she experienced. His comments were about him having memories of a previous sexual encounter with Ms. de Leon.

[198] Before moving on, I comment on Ms. de Leon’s evidence that the impact of Mr. Morales’ comments toward her in this instance left her in a state of trauma and shock, a panic mode, fearful that Mr. Morales would “force her and put pressure on her to have something with him again.” She said it reminded her of what happened before and made it so she could not concentrate on work anymore. I do not accept this part of Ms. de Leon’s evidence. I treat her use of the phrases “have something” and “what happened before” as references to her past sexual encounters with Mr. Morales, which I have already found were not instances of sexual harassment. Ms. de Leon’s evidence about experiencing trauma, shock, fear, and panic because of Mr. Morales’ comments toward her do not reconcile with what occurred between them, which was an intimate sexual affair.

[199] I also comment on Ms. de Leon’s arguments and evidence about how Mr. Morales deceived her about the date of their work meeting in Vancouver, and then waited until last minute to tell her about it so that she had no choice but to drive with him to the meeting when she had told him she does not want to be alone in the car with him again and that Mr. R. would drive her to the meeting. Ms. de Leon has not established that Mr. Morales did this. Mr. Morales provided uncontradicted testimony, supported by documentary evidence, that the client they met with in Vancouver set the date for the meeting, and had rescheduled it multiple times. It was only days prior to the meeting that Mr. Morales learned of the date on which it would occur. The parties have also both agreed that Mr. Morales offered to reimburse Mr. R. for mileage if Ms. de Leon were to have him drive her to the meeting, instead of her going with Mr. Morales in his car. However, Mr. R. could not get the time off work to drive her.

[200] I also comment on Ms. de Leon’s arguments and evidence that on their way home from the meeting in Vancouver, Mr. Morales purposefully took a longer route home so they would drive by the hotel they had visited together. Ms. de Leon has not provided sufficient evidence regarding the location of the meeting in Vancouver, the location where they stopped for food on their drive back from that meeting, the location of her home, the route that Mr. Morales drove, and the other routes that he could have driven to bring her home that day, upon which I am prepared to conclude that he did this.

[201] I have now concluded my reasons regarding which of Mr. Morales’ comments toward Ms. de Leon are sex-based discrimination, and which of his other actions are sex-based discrimination.

[202] Next, I move on to why I have found that Ms. de Leon has not proven that she experienced a discriminatory constructive dismissal.

J. October 23, 2019 – The alleged discriminatory constructive dismissal

1. Proving discriminatory constructive dismissal

[203] I start with what Ms. de Leon must prove to establish a discriminatory constructive dismissal. Justice Wagner, writing on behalf of a majority of the S.C.C., confirmed that when an employer’s conduct demonstrates that the employer no longer intends to be bound by the employment contract, the employee may either accept the employer’s conduct, or treat their conduct as a repudiation of the employment contract. Since the employer has not formally dismissed the employee, the employer’s act is known as a constructive dismissal: Potter v. New Brunswick Legal Aid Services Commission 2015 SCC 10 [ Potter ] at para. 30.

[204] Justice Wagner also confirmed that there are two ways an employee can prove a constructive dismissal. First, constructive dismissal can result from a single unilateral act of the employer. An employee may establish that there is an express or implied contract term that the employer has breached, and that the employer’s breach of that contract term was sufficiently serious, or substantial enough, to constitute a constructive dismissal: Potter at paras. 32, 35. The employee must establish that, at the time the breach occurred, a reasonable person in the same situation as the employee would have felt that the employer substantially changed the essential terms of the employment contract: Potter at para. 39.

[205] Second, constructive dismissal can result from a series of acts of the employer. An employee may establish that the employer’s treatment of them made the continuation of their employment intolerable. The focus here is on the cumulative effects of the employer’s conduct toward them: Potter at para. 33. The employee must establish that, considering all the circumstances, the employer’s conduct would lead a reasonable person to conclude that the employer no longer intends to be bound by the terms of the employment contract: Potter at para. 42.

[206] The Tribunal has described discriminatory constructive dismissal as follows:

An employer is required to provide a respectful work environment that is free from discrimination: Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC) , [1987] 2 SCR 84. Where there is a discriminatory work environment, there may be no reasonable option but for the employee to depart: Morgan-Hung v. Provincial Health Services and others (No. 4), 2009 BCHRT 371 , paras. 463 – 470 (rev on other grounds, Morgan-Hung v. British Columbia (Human Rights Tribunal) 2011 BCCA 122 . There is no requirement for complainants to continue to subject themselves to discriminatory practices: McCreath v. Victoria International Running Society, 2013 BCHRT 53 , para. 276 .

Where the work environment deteriorates to such an extent that it may be poisoned because of racism or harassment, the employer’s behaviour in creating this environment may amount to a “constructive dismissal” of the affected employee as that concept is applied within the human rights context.

Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 at paras. 152 to 155

[207] The Tribunal has also adopted the Ontario Court of Appeal’s approach to determining whether incidents of discrimination have created a poisoned work environment. To determine this, the Ontario Court of Appeal has said “there must be evidence that, to the objective reasonable bystander, would support a conclusion that a poisoned workplace has been created”: See General Motors of Canada Limited v. Johnson, 2013 ONCA 502 at para. 66; Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 373; Jones v. BC Clinical and Support Services Society and another , 2020 BCHRT 99 at para. 33; and Loiselle v. Windward Software Inc. (No. 2) , 2021 BCHRT 7 [ Louiselle ] at para. 315.

[208] Consistent with the SCC and the Tribunal’s approaches to constructive dismissal, I will consider that all employment contracts include an essential implied term that the employer will provide the employee a work environment that is free from discrimination. In assessing whether Ms. de Leon has proven that Mr. Morales’ discriminatory comments and/or actions toward her resulted in a discriminatory constructive dismissal, I will consider whether she has proven that:

a. At the time of at least one of Mr. Morales’ sex-based discriminatory comments or actions toward her, a reasonable person in the same situation as her would have felt that Western Pacific had substantially changed the term of her employment contract that requires it to provide her a work environment that is free from discrimination;

b. Considering all the circumstances, Mr. Morales’ sex-based discriminatory comments and actions toward Ms. de Leon would lead a reasonable person to conclude that Western Pacific no longer intends to provide her a work environment that is free from discrimination; or

c. The cumulative effects of Mr. Morales’ discriminatory comments and actions toward Ms. de Leon deteriorated her work environment to such an extent that it was so poisoned that she had no reasonable option but to depart from it. To establish this, Ms. de Leon must provide evidence that, to the objective reasonable bystander, would support a conclusion that Mr. Morales’ discriminatory comments created a poisoned workplace.

[209] I have now explained how I will assess whether discriminatory constructive dismissal occurred. Next, I provide a summary of the context within which Ms. de Leon is claiming discriminatory constructive dismissal.

2. The context of Ms. de Leon’s discriminatory constructive dismissal claim

[210] I have found that in January and February 2019, Ms. de Leon and Mr. Morales had three sexual encounters, each of which were part of a sexual affair that their respective spouses were not aware of. Ms. de Leon has not established that any of those sexual encounters amount to discrimination on the basis that they were sexual harassment.

[211] By mid-March 2019, Ms. de Leon and Mr. Morales told each other they do not wish to continue their relationship and agreed it was over. However, they wished to continue having a professional / work-focussed relationship. For the most part, Mr. Morales and Ms. de Leon’s relationship moving forward remained professional / work focussed. However, there were three instances at work where Mr. Morales brought up their past intimate relationship during conversation with Ms. de Leon. I have found that each of these three instances were discrimination based on sex.

a. First, sometime between mid-March and October 2019, Mr. Morales said to Ms. de Leon that if he had known the details of who his wife had engaged in sexual intercourse with prior to getting married to her, he probably would not have married her.

b. Second, sometime in July 2019, Mr. Morales asked Ms. de Leon how she was feeling now that he was not flirting with her anymore or “being that way” with her anymore.

c. Last, on October 16, 2019, Mr. Morales made a comment to Ms. de Leon about having good memories of a hotel they were driving by where one of their sexual encounters had occurred. He also told her he was having dreams about her.

[212] I have also found that, between October 19 and 22, 2019, Mr. Morales discriminated against Ms. de Leon, based on her sex, when he deactivated her access to Western Pacific’s email and cloud-based document management systems and told her not to come into the office for two days in a row.

[213] On October 23, 2019, Ms. de Leon resigned from her employment. In the complaint, she alleges that her resignation was a discriminatory constructive dismissal.

[214] I have now summarized the context within which Ms. de Leon claims she experienced a discriminatory constructive dismissal. Next, I turn to the parties’ arguments about whether a discriminatory constructive dismissal occurred.

3. The parties’ arguments

[215] First, I comment that neither party has made arguments about whether discriminatory constructive dismissal occurred in accordance with those criteria I summarise at paragraphs 208(a) and (b), above. As such, I do not treat the complaint as including an allegation that those types of discriminatory constructive dismissal occurred.

[216] Ms. de Leon made arguments about whether discriminatory constructive dismissal occurred in accordance with those criteria I summarise at paragraph 208(c), above. She argues that Mr. Morales sexual harassment toward her poisoned her work environment so much that she could no longer go to work. As I have already explained, Ms. de Leon has not proven that Mr. Morales’ conduct toward her was sexual harassment. It follows that she has not proven that his sexual harassment toward her poisoned her work environment so much that she could no longer go to work. However, she has established four instances of sex-based discrimination in the workplace. So, I have considered whether she has proven that those instances of sex-based discrimination poisoned her work environment so much she could no longer go to work.

[217] In response to Ms. de Leon’s arguments about discriminatory constructive dismissal, the Respondents have argued that Ms. de Leon resigned from her position because she suspected that they were going to terminate her employment because Mr. R. was aggressive and threatening toward Mr. Morales on February 22 and October 18, 2019. However, the Respondents have provided no evidence upon which I could accept their argument. They have provided no evidence that illustrates Mr. R.’s conduct on those dates contributed to Mr. Morales’ reasons for deciding to terminate Ms. de Leon’s employment. They also provide no evidence that Ms. de Leon suspected they were going to terminate her employment because of Mr. R.’s conduct toward Mr. Morales. To the contrary, Ms. de Leon testified that when she decided to resign from Western Pacific, she was not worried that it was planning to terminate her employment. Absent any supporting evidence, I do not accept the Respondents arguments on this point.

4. Has Ms. de Leon proven that her resignation from Western Pacific was a discriminatory constructive dismissal?

[218] I now come back to Ms. de Leon’s allegation of discriminatory constructive dismissal. Ms. de Leon has not convinced me that the cumulative effects of Mr. Morales’ discriminatory conduct toward her deteriorated her work environment to the point where it was so poisoned that she had to no reasonable option but to depart from it. She has not provided evidence upon which a reasonable bystander would conclude that Mr. Morales’ discriminatory comments and actions created a poisoned workplace.

[219] First, on October 17, 2019, Ms. de Leon testified that she did not want Mr. R. to come to the office and confront Mr. Morales about the comment he had made to her the day prior. I infer from her testimony about not wanting Mr. R. to confront Mr. Morales that Mr. Morales’ discriminatory comment, combined with his previous two discriminatory comments toward her about their intimate relationship, did not make her so uncomfortable at the office that she could no longer stand to be there and had no other option but to depart from that work environment. Ms. de Leon’s preference would have been for Mr. R. not to confront Mr. Morales and for her to continue working at Western Pacific.

[220] Second, on October 18, 2019, Ms. de Leon attended work. I treat this as evidence that as of that date, her work environment had not become so poisoned that she could no longer attend it. She and Mr. Morales worked alone together at the office. Mr. A. had gone away on holidays. Ms. de Leon testified that she and Mr. Morales carried out a normal workday.

[221] Third, Ms. de Leon testified that on both October 21 and 22, 2019, which were after Mr. Morales cut off her access to Western Pacific’s computer accounts, she had every intention of going to work at the office. When Mr. Morales told her not to come into the office on those dates, she expected she would return to work on October 23, 2019. I treat this as evidence that Mr. Morales three discriminatory comments towards Ms. de Leon over the span of 8 months, combined with his decision to cut her off from Western Pacific’s computer accounts, did not result in her work environment becoming so poisoned she could no longer attend it on either October 21 or 22, 2019. The question remains whether Mr. Morales telling Ms. de Leon to stay home on October 21 and 22, 2019, combined with his other discriminatory conduct toward her, resulted in Ms. de Leon’s work environment becoming so poisoned on October 23, 2019, that she could no longer attend it.

[222] On October 22, 2019, Mr. Morales told Ms. de Leon that she could come into the office the next day. However, on the morning of October 23, 2019, Ms. de Leon did not attend work. She sent Mr. Morales a text message stating that she was sick. She testified that she did this because she was feeling stress about Mr. Morales restricting her access to Western Pacific’s accounts, and she believed he was lying to her about why he had done so. I accept this part of Ms. de Leon’s evidence. However, Ms. de Leon provided no evidence or arguments about how Mr. Morales’ actions in telling her to work from home for two days, combined with his other discriminatory conduct, affected her work environment to the point that she had no choice but to depart from it. So, this part of her evidence does not support a finding of discriminatory constructive dismissal.

[223] Ms. de Leon also testified that she did not attend work on the morning of October 23, 2019 because she felt fear for her own safety. She said Mr. Morales was building a room next to his office, and she was worried something was coming, and he would try to do something to her. She said, at this point, every day she was afraid of going to work. Even if I were to accept this part of Ms. de Leon’s evidence, it does not support a finding that Mr. Morales’ actions in cutting off her access to work accounts and telling her to work from home, combined with his discriminatory comments toward her, resulted in her work environment becoming so poisoned that she had no choice but to depart from it. Ms. de Leon has provided no evidence that explains how Mr. Morales discriminatory conduct toward her caused her to fear for her safety at work.

[224] On the afternoon of October 23, 2019, Ms. de Leon sent Mr. Morales an email stating that she is resigning from her employment at Western Pacific because she had experienced discrimination, sexual abuse, and misconduct at work because she is a woman. She further stated that she had tried to endure such hostilities, harassment, and discrimination, but it had become unbearable, and she could no longer attend such an unsafe work environment.

[225] Mr. Morales did not respond to Ms. de Leon’s allegations in her resignation letter. He testified that he had received legal advice not to respond. Absent any evidence to the contrary, I accept his evidence on this point.

[226] Ms. de Leon’s resignation letter does not support a finding that Mr. Morales’ actions in cutting off her access to work accounts and telling her to work from home, combined with his discriminatory comments toward her, resulted in her work environment becoming so poisoned that she had no choice but to depart from it. Her resignation letter does not provide any details about the incidents that she says created an unsafe work environment for her.

[227] I have how explained why Ms. de Leon has failed to establish discriminatory constructive dismissal. Next, I move on to why Ms. de Leon has not proven that she experienced discrimination regarding her wages, contrary to s. 12 of the Code. I start with what she must establish to prove that such discrimination occurred.

VII PROVING DISCRIMINATION UNDER SECTION 12 OF THE CODE

[228] To prove discrimination under s.12 of the Code, Ms. de Leon must prove that:

a. She was an employee of the Respondents: Pennock v. Centre City Drywall (No.3), 2009 BCHRT 192 [ Pennock ] at para. 105 ; Upheld in Kraska (c.o.b. Centre City Drywall) v. Pennock, 2011 BCSC 109 .

b. The Respondents paid her less than at least one other employee who also worked for the Respondents: Pennock at paras. 110 to 114 ; Prpich v. Pacific Shores Nature Resort Ltd., 2001 BCHRT 26 at para. 24 [ Prpich ].

c. The other employee, who the Respondents paid more than her, is a person of a different sex than her. Prpich at para. 24 .

d. The other employee, who the Respondents paid more than her, worked in a similar job to hers. The other employee’s job does not need to be identical to Ms. de Leon’s job, but it must be substantially like her job in terms of its core duties: Pennock at paras. 110 to 114 ; Prpch at para. 25.

[229] Section 12(3) of the Code sets out a defence to a s. 12 complaint, where a difference in the rate of pay between employees of different sexes based on a factor other than sex does not constitute a failure to comply with s. 12 of the Code if the factor on which the difference is based would reasonably justify the difference: Code at s. 12(3). The Tribunal has confirmed in past cases that an employer may pay employees of different sexes differently if they do so on the basis of non-discriminatory legitimate factors that explain that difference in pay: Yargeauj v. JYSK and another, 2010 BCHRT 242 at para. 24 ; Bond v. Nootka Administration and Sales, 2012 BCHRT 340 at paras. 17 and 18 .

VIII DECISION AND ORDER REGARDING SECTION 12 COMPLAINT

[230] Ms. de Leon has not proven that the Respondents discriminated against her, contrary to s. 12 of the Code. She has established that Mr. A.’s job was substantially like her job regarding the core duties that they each performed. However, the Respondents have established that they have non-discriminatory legitimate reasons for paying Mr. A. $1 to $2 more per hour than they paid to Ms. de Leon.

[231] For these reasons, under s. 37(1) of the Code, I make an order to dismiss that the part of the complaint having to do with a contravention of s. 12 of the Code.

IX ANALYSIS REGARDING SECTION 12 COMPLAINT

A. Has Ms. de Leon proven the Respondents discriminated against her based on her sex in the area of wage?

[232] There is no question that Ms. de Leon was an employee of the Respondents, or that the Respondents paid her $1 or $2 less than they paid to Mr. V at the time she resigned. When Ms. de Leon started working at Western Pacific, her wage was $18 per hour. Throughout her employment, the Respondents increased her wage in increments of $1 per hour. Ms. de Leon understood that these wage increases were merit based and that as she gained experience, she was receiving wage increases. By September 2019, Ms. de Leon’s wage was $24 per hour. Mr. V.’s wage was either $24 or $25 per hour. There is also no question that Mr. V. is male, and Ms. de Leon is female, which means they are not persons of the same sex. The issue is whether Ms. de Leon and Mr. V. worked in substantially similar jobs.

[233] Neither of the parties made arguments about the differences or similarities between the types of duties that Ms. de Leon and Mr. V. were responsible for. Regardless, based on the small amount of uncontested evidence that the parties provided about Ms. de Leon and Mr. V.’s core job duties, I am satisfied that they were substantially the same.

[234] For the most part, both Ms. de Leon and Mr. V. worked on projects regarding lot subdivision design and septic system design. Mr. A. also worked on road design, utilities design and lot grading. Despite Ms. de Leon providing no evidence about working on road design, utilities design or lot grading projects, the parties evidence is that Ms. de Leon and Mr. A.’s work on all projects had a similar flow to it and required them to undertake substantially similar tasks, which included:

a. attending site visits;

b. preparing technical calculations of slopes and other matters related to the projects that clients wanted to have designed;

c. preparing technical drawings and plans that communicate to the client how they should construct their project in accordance with certain specifications so that it will be functional and meet their project needs; and

d. attending site inspections with Western Pacific’s clients.

[235] I recognise that Mr. V. conducted site visits and site inspections on his own and Ms. de Leon conducted them either with Mr. V. or Mr. Morales present. However, as I understand it, their core duties at site visits and site inspections were substantially similar in nature. At site visits they met with Western Pacific clients and took instructions from them on what they want designed for their sites At site inspections they met with the same clients to compare what the clients were doing on the site to what Western Pacific had provided them in terms of plans and drawings for their projects.

[236] Now that I have explained why I am satisfied that the core duties of Ms. de Leon and Mr. V.’s jobs were substantially similar in nature, I move on to why I am satisfied that the Respondents had legitimate and non-discriminatory reasons for paying Ms. de Leon $1 to $2 per hour less in wages than they paid to Mr. A.

B. Have the Respondents proven they had legitimate and non-discriminatory reasons for paying Ms. de Leon less in wages than they paid to Mr. A. in wages?

[237] The Respondents argue that there are non-discriminatory legitimate factors that explain the difference between what they paid Ms. de Leon and Mr. V. in wages, including that:

a. Mr. V. had worked at Western Pacific for a year longer than Ms. de Leon, giving him more seniority than her;

b. Mr. V. had substantially higher qualifications than Ms. de Leon;

c. Mr. V. had 15 years experience in the engineering industry, while Ms. de Leon had no experience whatsoever;

d. Mr. V. had enough experience to work on more complicated engineering projects than Ms. de Leon could, and he did work on those more complicated engineering projects than Ms. de Leon throughout his employment; and

e. Mr. V. had enough experience to conduct site inspections on his own and Ms. de Leon did not.

[238] Ms. de Leon has not made any arguments about whether the non-discriminatory legitimate factors put forward by the Respondents can explain the difference between what Western Pacific paid to her compared to what it paid to Mr. A. in wages.

[239] First, I am not convinced by the Respondents argument that Mr. A.’s one-year of seniority over Ms. de Leon at Western Pacific is a non-discriminatory legitimate factor that justifies Western Pacific paying Ms. de Leon less in wages than Mr. A. I also note that Ms. de Leon had almost 2 years of experience in the engineering industry at the end of her employment with Western Pacific, contrary to the Respondents’ argument that she had no experience whatsoever.

[240] In any event, I am satisfied that Mr. A. had 15 years more experience than Ms. de Leon in related industries, the ability to work on more complicated engineering projects than Ms. de Leon, and enough experience to undertake tasks on his own that Ms. de Leon did not have enough experience to do on her own. Ms. de Leon admits to so much in her testimony. She said that she did not have the same skills as Mr. A., was not at the same level of experience as Mr. A., and that he did more things than her at work, including more complicated tasks and solo site inspections.

[241] I am also satisfied that these legitimate and non-discriminatory factors justify Western Pacific paying Ms. de Leon $1 to $2 less per hour than they paid to Mr. A. during the end of her employment with Western Pacific. It is on this basis that I have dismissed the part of Ms. de Leon’s complaint that has to do with wage discrimination.

X CONCLUSION

[242] I have dismissed Ms. de Leon’s s.13 complaint, in part. I have also dismissed her s. 12 complaint.

Sonya Pighin

Tribunal Member