Reasons For Decision: Complainant
Reasons For Decision: Complainant
Reasons For Decision: Complainant
File: 17263
Indexed as: Denness v. PDK Café and others, 2020 BCHRT 184
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:
Jordynn Denness
COMPLAINANT
AND:
PDK Café Inc. and Dima Kondratenko
and Kim Cecile
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Beverly Froese
Counsel for the Complainant: Aleem Bharmal, Q.C.
Counsel for the Respondents PDK Café Inc. Craig E. Jones, Q.C. and Amelia M. Boultbee
and Kim Cecile
On his own Behalf: Dima Kondratenko
Dates of Hearing: June 18, 19, 20 and 21, 2019
July 9, 10 and 11, 2019
Location of Hearing: Vancouver
Submissions Completed: September 12, 2019
I INTRODUCTION
This complaint arose of out events that occurred when Jordynn Denness and Dima
Kondratenko worked two shifts together at the PDK Café [PDK] in Kamloops in late October
2017. Ms. Denness says Mr. Kondratenko sexually harassed her and harassed her on the basis
of her sexual orientation over the course of the two shifts. Ms. Denness says that after
reporting the harassment to her employer, her complaint was not taken seriously. She says her
employer knew Mr. Kondratenko had previously sexually harassed others but did nothing about
it and, therefore, put her in danger. Ms. Denness says PDK and its owner, Kim Cecile, are liable
for the harassment by Mr. Kondratenko and for discrimination in how they responded to her
complaint. She says the Respondents discriminated against her in her employment on the basis
of sex and sexual orientation contrary to s. 13 of the Human Rights Code [Code].
Mr. Kondratenko denies harassing Ms. Denness in any way when they worked together.
Ms. Cecile denies Ms. Denness’ allegations and says all reasonable efforts were made to
respond to and investigate her complaint.
At the outset, I want to acknowledge the length of time it took for this decision to be
issued. I appreciate the importance of this decision to the parties and apologize for the delay.
For the reasons that follow, I find Ms. Denness’ complaint against the Respondents is
not justified. The complaint is dismissed in its entirety under s. 37(1) of the Code.
II EVIDENCE
My findings of fact are derived from the evidence submitted by the parties through 15
witnesses over 7 hearing days and an affidavit that was subsequently filed on behalf of the
Respondents. I reviewed and considered all the evidence and submissions presented by the
parties at this hearing. In these reasons I have not referred to all the evidence I reviewed and
set out only that evidence required to come to my decision.
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A. Witnesses
In addition to Ms. Denness, three witnesses testified on her behalf:
i. Gabrielle Mayhew, who worked at PDK during the relevant period of time.
Ms. Mayhew testified about her interactions with Mr. Kondratenko when
they worked together and what happened when she reported her concerns
about his behaviour to Ms. Cecile in mid‐November 2017;
ii. Danielle Flukinger, who worked at PDK before the events in question. Ms.
Flukinger testified about her interactions with Mr. Kondratenko when they
worked together in 2016 and what happened when she reported her
concerns about his behaviour to Ms. Cecile; and
iii. Magalie Knopf, who was Ms. Denness’ roommate at the relevant time. Ms.
Knopf testified about what Ms. Denness told her about the alleged
harassment by Mr. Kondratenko and her observations of the impact of the
alleged harassment on Ms. Denness.
In addition to Ms. Cecile and Mr. Kondratenko, 10 witnesses testified on behalf of the
Respondents:
i. Jessica Thompson, who was the Team Leader at PDK and Ms. Denness’
supervisor at the relevant time. Ms. Thompson testified about her
conversations with Ms. Denness and the actions she took after Ms.
Denness reported sexual harassment by Mr. Kondratenko;
ii. Staff Sgt. Edward Preto, who was a Watch Commander of the Kamloops
RCMP at the time Ms. Denness received a threat on her Instagram account
in early April 2018 [Instagram Threat]. Staff Sgt. Preto testified about his
involvement in the investigation of the Instagram Threat;
iii. Thirza Ross, who worked at PDK at the relevant time. Ms. Ross testified
about her interactions with Mr. Kondratenko when they worked together,
her recollections of the weekend at issue, and the circumstances in which
she left PDK;
iv. Michael Bruno, who worked at PDK at the relevant time. Mr. Bruno
testified about his interactions with Mr. Kondratenko and Ms. Denness
when they worked together;
v. Dean Poulin, who at the relevant time was PDK’s cook and worked with
Ms. Denness and Mr. Kondratenko during the two shifts at issue. Mr.
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Poulin testified about his recollections of what occurred during those
shifts;
vi. Jerry Johnson, who was PDK’s manager at the relevant time. Mr. Johnson
testified about the actions he took after Ms. Denness reported sexual
harassment by Mr. Kondratenko;
vii. Shayna Roberts, who worked at PDK before the events in question. Ms.
Roberts testified about her interactions with Mr. Kondratenko when she
worked with him;
viii. Gena Chupryna, who is Mr. Kondratenko’s friend. He was at PDK during
one of the shifts at issue and testified about his recollections of what
happened;
ix. Kendra Hill, who worked at PDK at the relevant time. Ms. Hill testified
about her interactions with Mr. Kondratenko when they worked together
and the reason why she left PDK; and
x. Justin Melnychuk, who worked at PDK before the events in question. Mr.
Melnychuk testified about his interactions with Mr. Kondratenko when
they worked together.
In August 2019, Ms. Cecile applied for an order allowing her to admit into evidence the
Affidavit of Scarlett Noel, who worked at PDK before the events at issue and had evidence
about her interactions with Mr. Kondratenko when they worked together. The hearing was
going to be continued to allow Ms. Noel to testify by video but she was not able to attend. In a
letter to the parties dated August 20, 2019, I granted Ms. Cecile’s application and advised the
parties I would take the lack of cross‐examination on Ms. Noel’s Affidavit into consideration
when determining the weight to be given to her evidence.
III ISSUES
The parties presented a significant amount of evidence about what occurred after Ms.
Denness made public her allegations of sexual harassment/sexual violence when she worked at
PDK. As I explain below, that evidence is largely unhelpful to me. The parties also presented a
significant amount of evidence relating to the circumstances surrounding the investigation of
the Instagram Threat. The Instagram Threat does not form part of the complaint but relates to
the Respondents’ application for costs. The issues I must decide in this complaint are:
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Did Mr. Kondratenko harass Ms. Denness on the basis of her sex or sexual
orientation during the two shifts they worked together at PDK?
If so, did Ms. Cecile/PDK fulfill their obligations to provide a harassment‐free
workplace and reasonably respond to Ms. Denness’ complaint against Mr.
Kondratenko?
If so, what is the appropriate remedy?
IV EVIDENTIARY ISSUES
1. Evidence of prior dishonesty
Ms. Denness was recalled to give evidence responding to specific evidence given by
other witnesses to which she had not had an opportunity to address in her previous testimony.
Before she was recalled, Mr. Jones sought to introduce documentary evidence to establish that
Ms. Denness has a prior history of dishonesty.
In addition to raising the admissibility of evidence of prior dishonesty, I raised the issue
of the timing of the introduction of this evidence and how it could be admitted. After hearing
submissions from the parties, I made an oral ruling that the evidence of prior dishonesty was
inadmissible. My ruling was based on the Tribunal’s case law regarding the admissibility of
evidence going solely to impeach a witness’ credibility. In cases such as Bains v. Metro College
Inc. and others, 2003 BCHRT 66 and Jacobs v. Dynamic Equipment Rentals Ltd. and Stewart (No.
2), 2005 BCHRT 353, the Tribunal held that documents tendered for the sole purpose of
impeaching the credibility of a witness are inadmissible under the collateral issue rule. As I
found the evidence of prior dishonesty was not related to the issues I must decide, it was not
admitted. In making my ruling, I also took into consideration the fairness of admitting the
documents to Ms. Denness and that delving further into issues not related to the substance of
her complaint would needlessly broaden the scope of the hearing.
2. Character evidence
Both parties presented what I refer to as character evidence to support their case.
Specifically, Ms. Denness presented evidence through Ms. Mayhew and Ms. Flukinger that she
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says establishes a pattern of progressively worse behaviour by Mr. Kondratenko and a pattern
by Ms. Cecile of not taking complaints against him seriously. The Respondents presented
evidence through several of their witnesses to show that Mr. Kondratenko did not have a
history of making inappropriate sexual comments, using racial slurs, or making derogatory or
threatening comments about LGBTQ people.
I agree with Ms. Denness that just because Mr. Kondratenko did not sexually or
otherwise harass the witnesses who testified for the Respondents does not mean he did not
harass her. By the same token, the evidence of Ms. Mayhew and Ms. Flukinger is not relevant
to the issues raised in her complaint unless it qualifies as similar fact evidence, which neither
party expressly argued.
When assessing the evidence of Ms. Flukinger and Ms. Mayhew, I consider whether it
demonstrates a pattern of conduct that is unique or distinctive and coincides with Ms. Denness’
allegations.
I find that the allegations that Ms. Mayhew and Ms. Flukinger made against Mr.
Kondratenko do not demonstrate a unique or distinctive pattern of conduct that coincides with
Ms. Denness’ allegations against him. By Ms. Denness’ own admission, their allegations against
Mr. Kondratenko are much less serious than hers.
With respect to the evidence of Ms. Mayhew and Ms. Flukinger regarding how Ms.
Cecile handled complaints about Mr. Kondratenko, I find it does not assist me in deciding the
issues raised. I find Ms. Mayhew’s evidence does not demonstrate a pattern of conduct that is
unique or distinctive that coincides with Ms. Denness’ allegations of how PDK/Ms. Cecile
responded to her complaint. I find that Ms. Flukinger’s evidence about what occurred after she
allegedly reported issues with Mr. Kondratenko is not supported by the documentary evidence.
That evidence supports Ms. Cecile’s evidence that Ms. Flukinger’s hours were reduced because
of a misunderstanding or miscommunication about her availability and not because she
reported inappropriate behaviour by Mr. Kondratenko.
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3. Social media evidence
A considerable number of social media posts were presented relating to the fallout from
Ms. Denness’ decision to identify herself as the author of a Letter to the Editor she wrote and
sent to a Kamloops newspaper sometime between November 4 and 7, 2017 [Letter to the
Editor]. I did not give these social media posts any weight or take them into consideration
because they are unexamined hearsay evidence.
V CREDIBILITY AND RELIABILITY OF THE WITNESSES
Credibility and reliability are separate, but related, considerations: Insurance
Corporation of British Columbia v. Singh, 2020 BCSC 1320 [Singh] at para. 174. Credibility is
about whether a witness is telling the truth and reliability is about whether their evidence is
accurate: Andreas v. Vu, 2020 BCSC 1144 at para. 40. When assessing each witness’ evidence, I
took into consideration that a credible witness can give unreliable evidence, but a witness
whose evidence on a certain point is not credible cannot give reliable evidence on that point:
Singh at para. 174.
In making findings of fact, I am guided by the following principles summarized in
Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused [2012]
S.C.C.A. No. 392 at para. 186:
Credibility involves an assessment of the trustworthiness of a witness’ testimony
based upon the veracity or sincerity of a witness and the accuracy of the evidence
that the witness provides … The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of his
memory, the ability to resist the influence of interest to modify his recollection,
whether the witness’ evidence harmonizes with independent evidence that has
been accepted, whether the witness changes his testimony during direct and
cross‐examination, whether the witness’ testimony seems unreasonable,
impossible, or unlikely, whether a witness has a motive to lie, and the demeanour
of a witness generally … Ultimately, the validity of the evidence depends on
whether the evidence is consistent with the probabilities affecting the case as a
whole and shown to be in existence at the time … [citations omitted]
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Generally, I find the witnesses who gave evidence on behalf of the parties to be credible
and testified sincerely and to the best of their ability about matters within the scope of their
knowledge and experience. The principal issue is the reliability of their evidence. There were
discrepancies in the evidence of the witnesses called by the parties that I attribute to memories
that have faded through the passage of time, recollections that have hardened as a result of
this proceeding, or, quite possibly, their personal feelings toward Ms. Denness, Ms. Cecile or
Mr. Kondratenko. When these discrepancies arose, I made findings on the ability of the witness
to accurately observe, recall and recount the events in issue.
Overall, I find Ms. Cecile and Mr. Kondratenko to be credible and testified sincerely and
to the best of their recollection about the events at issue. There were inconsistencies and
discrepancies in their evidence that I identify below, but in general, I prefer the evidence of the
Respondents and their witnesses.
I find that some of Ms. Denness’ evidence is credible and reliable. However, I find that
her evidence on many of her allegations against Mr. Kondratenko is not reliable because her
versions changed in material ways and her negative interpretations of what occurred are not
reasonably supported by the evidence. I also find that much of what is underlying Ms. Denness’
evidence regarding how her employer responded to her complaint against Mr. Kondratenko are
beliefs grounded in assumptions she made that, based on the evidence presented, are not true.
As set out below, I find that some of the discrepancies between Ms. Denness’ evidence
and previous documented accounts, in particular the statement she made to the RCMP three
days after the Saturday Shift, affected the credibility and reliability of her evidence. I am in no
way suggesting from my findings that before a complainant alleging sexual harassment will be
believed there cannot be any inconsistencies or omissions in previous documented accounts of
what happened. My findings are restricted to the particular circumstances of this case.
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VI BACKGROUND
Ms. Cecile and her family moved from Alberta to Kamloops in 2014. In December of that
year, she fulfilled a longstanding dream and opened PDK. The initials “PDK” stand for the first
names of Ms. Cecile’s triplet sons. It is evident from Ms. Cecile’s testimony that planning and
preparing for PDK’s opening was a labour of love.
PDK’s business expanded over the next three years and Ms. Cecile said its growth
exceeded her expectations. At the time the events in question took place, PDK had about 20
employees. Ms. Cecile said the staff was diverse and included many students attending
Thompson Rivers University [TRU], including international students. She testified about the
pride she took in PDK’s staff being from different backgrounds and cultures and said that when
she hired new staff, she looked for something unique about the person that they could bring to
PDK.
In 2016, Ms. Denness moved from White Rock to Kamloops and started classes in TRU’s
science program. In early October 2017, she was hired as a part‐time barista at PDK. She was 20
years old at the time and in TRU’s nursing program.
Mr. Kondratenko was born in Ukraine and Russian is his first language. At the relevant
time, he was an international student at TRU and taking a diploma program in international
business. Mr. Kondratenko started working as a barista at PDK around the time it opened in
2014. While he worked there, he went back to Ukraine for the summer and then returned to
Kamloops in the fall to resume his studies at TRU and employment at PDK. Mr. Kondratenko
was in his early 20’s at the time of the events at issue.
I deal first with Ms. Denness’ allegations against Mr. Kondratenko. I then turn to her
allegations against PDK and Ms. Cecile.
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VII COMPLAINT AGAINST MR. KONDRATENKO
A. Evidence
Ms. Denness alleges that Mr. Kondratenko sexually harassed her and harassed her on
the basis of her sexual orientation when they worked two shifts together on Friday, October 27,
2017 [Friday Shift] and Saturday, October 28, 2017 [Saturday Shift]. Mr. Kondratenko denies
that he harassed Ms. Denness in any way.
It is not in dispute that Ms. Denness and Mr. Kondratenko had never met before they
worked the Friday Shift. It is not in dispute that Mr. Poulin also worked the Friday Shift and the
Saturday Shift with Ms. Denness and Mr. Kondratenko.
Other than agreeing that the Friday Shift started out routinely, Ms. Denness and Mr.
Kondratenko have completely different versions of what happened. I set out their evidence
regarding the two shifts, my findings as to the credibility and reliability of their evidence, and
my conclusions.
1. Ms. Denness’ version of the Friday Shift
Ms. Denness said the Friday Shift started out normally and that in between serving
customers, she and Mr. Kondratenko chatted about subjects such as where they were from,
what they were studying at TRU, and what they did outside of school, including where they
worked out.
Ms. Denness’ evidence was that Mr. Kondratenko’s behaviour deteriorated throughout
the Friday Shift. Specifically, she said Mr. Kondratenko repeatedly grabbed her phone from
where it was stored under the bar and asked her to unlock it. She said he asked if she had
naked photos on her phone that she could show him and she told him she did not. She said that
when she asked Mr. Kondratenko to give her phone back, he laughed and put it down his pants
and under his underwear. Ms. Denness said she asked Mr. Kondratenko again to return her
phone but he laughed and only put her phone back after she walked away.
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Ms. Denness’ evidence was that soon after the phone incident, a customer came in that
Mr. Kondratenko thought was gay. She said Mr. Kondratenko told her, “I’m not serving that
fucking faggot, I’d kill people like that, they’re disgusting”. She said she did not reply and that
after Mr. Kondratenko walked away, she served the customer.
Ms. Denness’ evidence was that a few minutes after the customer left, Mr. Kondratenko
came up behind her while she was behind the bar, placed his hands on the bar so she could not
move, and asked if she is a lesbian. She said she turned around and Mr. Kondratenko’s face was
in front of hers and he asked her again if she is a lesbian. Ms. Denness said she told Mr.
Kondratenko it was none of his business and he said, “You fucking dyke, I knew it”. She said that
before he walked away, Mr. Kondratenko again called her a “dyke”. Ms. Denness said she was
terrified because this happened shortly after Mr. Kondratenko said he wanted to kill gay people
and he knew she is a queer person because that is something she is open about.
Ms. Denness’ evidence was that she was scared to continue working with Mr.
Kondratenko because they would have to close PDK together and it would be dark by the time
the shift ended. She said she tried to avoid Mr. Kondratenko for the rest of the shift but he
seemed angry with her and at some point asked if she was “fucking stupid” and called her a
“retard”.
Ms. Denness’ evidence was that when she got home, she told her roommate, Magalie
Knopf, everything about what happened on the Friday Shift. She testified about feeling scared
and overwhelmed and said she was not sure what to do or who she should talk to because she
had to work with Mr. Kondratenko again the next evening.
2. Mr. Kondratenko’s version of the Friday Shift
Mr. Kondratenko’s evidence was that the Friday Shift started out routinely and after he
and Ms. Denness introduced themselves, they had a casual conversation about such things as
where they were from and what they were studying. Mr. Kondratenko said that when Ms.
Denness told him she was in the nursing program at TRU, he asked if she knew a friend of his
who was also in the nursing program. He said he told Ms. Denness his friend works with
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“retarded” people and he told her stories that his friend told him about her work. Mr.
Kondratenko said he asked Ms. Denness if she had similar experiences working with “retarded”
people and she told him a story about a surgical procedure. I pause here to note that in his
direct examination, Mr. Kondratenko acknowledged that he used to use the terms “retard” and
“retarded” because some of his co‐workers used them but he has since come to understand
that they are offensive.
Mr. Kondratenko gave detailed evidence about what happened during the Friday Shift
after its routine start. He said it was “gamers night”, a regular occurrence on Friday evenings
when a group of around 25 people would come to PDK to play board games from around 6:30
p.m. until closing. Mr. Kondratenko said that before the gamers arrived, he told Ms. Denness
they were going to be busy and they stocked up on the supplies they would need. He said they
divided the stocking tasks and Ms. Denness told him what supplies they needed and he went to
the basement to get the supplies. The evidence of the witnesses who worked at PDK was that
the basement was where supplies were kept and it was also where the recycling bin and Ms.
Cecile’s office were located.
Mr. Kondratenko’s evidence was that shortly before the first gamer arrived, he went to
the post office across the street to pick up a package of hunting‐related items and clothing he
had ordered from a sporting goods store. He said that after he returned, he and Ms. Denness
had a casual conversation that included Ms. Denness asking him questions about why he
moved to Kamloops and why he was going to TRU.
Mr. Kondratenko’s evidence was that for the most part, he and Ms. Denness were busy
serving customers until closing time and they only talked about work‐related things. He said
that in the hour before PDK closed, they completed cleaning tasks and Ms. Denness took the
recycling to the basement. He said that around this time, Ms. Denness told him she had a back
injury and could not sweep or mop so they agreed that he would do those tasks and she would
do dishes and clean the washrooms. Although I find nothing turns on this point, I note here that
in his direct evidence, Mr. Kondratenko said PDK closed at 11 p.m. that night, however it was
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confirmed through his later testimony and the evidence of other witnesses that PDK closed at
10 p.m.
Mr. Kondratenko’s evidence was that there was never any indication that Ms. Denness
was offended by anything he said during the Friday Shift. He said they both asked each other
questions about their lives and he specifically remembered that he and Ms. Denness talked
about where they worked out and she showed him photos of her working out at a gym.
Mr. Kondratenko denied ever asking Ms. Denness to send him naked photos. He said he
was in a relationship with a woman in Ukraine at the time and never asked anyone to send him
naked photos. Mr. Kondratenko also denied putting Ms. Denness’ phone down his pants and
under his underwear. In his direct examination, Mr. Kondratenko said that at one point during
the evening, he took Ms. Denness’ phone and held it behind his back for no more than a minute
and then put it on top of the coffee grinder where she could not reach it. Mr. Kondratenko said
he did that because Ms. Denness kept trying to take photos of him and send them to her
friends. He admitted that he did not return Ms. Denness’ phone when she asked him to and she
had to get a chair to retrieve it. In cross‐examination, Mr. Kondratenko acknowledged that it
was reasonable to assume from Ms. Denness asking him to return her phone that she did not
like what he did.
Mr. Kondratenko denied asking Ms. Denness if she is a lesbian, harassing her in any way
relating to her sexual orientation, or making any derogatory, violent or threatening comments
about or against LGBTQ people. He said that at one point during the Saturday Shift, he and Ms.
Denness talked about relationships and cultural differences and he told her that homosexuality
is not open or public in Ukraine and that it is almost illegal. He said that after Ms. Denness
testified, he asked the interpreter at the hearing what the word “dyke” means because it is a
slang word he had never heard before. Mr. Kondratenko recalled that during the Friday Shift,
he and Ms. Denness talked about homeless and “creepy” people who hung out in front of PDK
and he admitted he referred to them as “retards”.
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3. Ms. Denness’ version of the Saturday Shift
Ms. Denness’ evidence was that she tried to avoid Mr. Kondratenko during the Saturday
Shift and just do her work but he repeatedly harassed her. Specifically, Ms. Denness said Mr.
Kondratenko took her phone throughout the shift, told her she was beautiful and pretty, and
said she looked “sexy on her hands and knees” while she was cleaning up a spill. She said every
time Mr. Kondratenko made an inappropriate sexual comment like that, she told him to stop
and leave her alone but he laughed like he was enjoying it.
Ms. Denness’ evidence was that during the Saturday Shift, Mr. Kondratenko came up to
her and said other offensive and derogatory comments that made her uncomfortable.
Specifically, Ms. Denness said Mr. Kondratenko referred to a customer as the “N‐word” and
told her he thought one of their co‐workers was disgusting because he is gay. Ms. Denness said
that when Mr. Kondratenko made these comments, she either told him not to talk like that
around her or did not participate in the conversation.
Ms. Denness’ evidence was that around the middle of the shift, Mr. Kondratenko came
up behind her at the bar, put his face close to hers, and asked her to go to the basement with
him. She said she told Mr. Kondratenko she would not go to the basement with him and to
leave her alone. Ms. Denness said Mr. Kondratenko then raised his voice and said, “Come down
now”. She said she walked away but Mr. Kondratenko followed her and repeatedly asked her to
go to the basement with him.
Ms. Denness’ evidence was that sometime after that, Mr. Kondratenko messaged his
friend, later identified as Gena Chupryna, from her phone and invited him to come to PDK. She
said Mr. Kondratenko was able to send a message to Mr. Chupryna from her phone because at
some point he had taken her phone and added Mr. Chupryna as a friend on her Snapchat.
Ms. Denness said there were no other customers at PDK when Mr. Chupryna arrived.
She said Mr. Chupryna introduced himself and she was polite to him. Ms. Denness said Mr.
Chupryna asked her how old she was and when she told him she was 20, he said, “That’s a bit
too young for me” and he and Mr. Kondratenko laughed and spoke in another language. Ms.
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Denness said Mr. Kondratenko and Mr. Chupryna kept asking her personal questions about
where she lived, whether she had a boyfriend, where she parked her car, whether she lived
alone, whether her roommates would know when she got home, and where her classes are.
She said the questions they asked were not the normal kinds of questions a person asks
someone they do not know. She described their questions as strange, uncomfortable,
inappropriate and intimidating because they were very specific to her and when she would be
alone. Ms. Denness said that other than telling Mr. Chupryna how old she was, she did not
answer any of their questions and never gave any indication that she wanted to talk to them.
Ms. Denness’ evidence was that between the time Mr. Chupryna left PDK and the end of
the shift, Mr. Kondratenko approached her and told her he always has a gun on him and that he
had a gun with him at work. She said Mr. Kondratenko also tried to show her videos and photos
of him with guns. Ms. Denness said she told Mr. Kondratenko she was not into guns and did not
want to see the videos and photos and she walked away.
Ms. Denness’ evidence was that around closing time, Mr. Kondratenko approached her
when she was behind the bar and told her he would know where to find her and that he knew
where her classes were. She said she did not respond and just tried to finish the shift.
Ms. Denness’ evidence was that after she and Mr. Kondratenko finished their closing
tasks, she waited in the bathroom for about 30 to 40 minutes to make sure he was gone. She
said she did that because she wanted to make sure Mr. Kondratenko was gone. She said that
because of the questions Mr. Kondratenko and Mr. Chupryna asked her about where she
parked her car and whether her roommates knew when she was home, she was worried that
Mr. Kondratenko, and possibly Mr. Chupryna, were waiting for her to leave. Ms. Denness said
she was scared but did not call the police because she had never been in that situation before
and she thought that waiting in the bathroom until Mr. Kondratenko was gone was the safest
option. When it was put to her in cross‐examination that Mr. Poulin’s evidence was that she left
PDK before he did and he left no more than 15 minutes after it closed, Ms. Denness accepted
Mr. Poulin’s evidence and said it only seemed that she was in the bathroom for 30‐40 minutes.
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Ms. Denness said she had pre‐arranged Halloween plans to meet her friends at a nearby
pub and that when she was in the bathroom waiting for Mr. Kondratenko to leave, she changed
into her Halloween costume. She said she was dressed as the TV cartoon character “Kim
Possible” and her costume consisted of green leggings and a long‐sleeved black shirt. Ms.
Denness said she waited in the bathroom for what she felt was a long enough period of time for
Mr. Kondratenko to have left and when she came out of the bathroom, she looked out the
window and saw that his car was gone.
Ms. Denness said Mr. Poulin was still there when she came out of the bathroom. She
said they had a brief conversation about where she was going and then she left. Ms. Denness
said she was upset about what happened during the Saturday Shift and did not want to go
home so she went to meet her friends. Ms. Denness said that while she was at the pub, she
sent a photo to her friends through Snapchat. She said that after she sent the photo, she
realized that an unknown username was Mr. Kondratenko and that he had added himself to her
Snapchat without her knowledge. Ms. Denness said she removed Mr. Kondratenko from her
Snapchat and blocked him. She said she stayed at the pub for about an hour and a half and then
went home.
4. Mr. Kondratenko’s version of the Saturday Shift
Mr. Kondratenko gave a detailed account of what happened during the Saturday Shift.
He said that before he went to PDK that afternoon, he had been at a shooting club and had a
Skype conversation with his girlfriend in Ukraine.
Mr. Kondratenko’s evidence was that at the start of the Saturday Shift, he told Ms.
Denness they would not be as busy compared to gamers’ night the evening before. He said he
and Ms. Denness started working and he went to the kitchen to do dishes left over from the
morning shift. Mr. Kondratenko said that while he was doing the dishes, he put his phone on
speaker and played Ukrainian music. He said about 10 minutes later, Ms. Denness came into
the kitchen and complained about his music. He said he told her he did not care what she
thought about his music and to let him do his job.
15
Mr. Kondratenko’s evidence was that after he finished the dishes and came back up
front, he saw Ms. Denness on her phone and he asked her what she was doing. He said Ms.
Denness told him she was talking to someone on a dating app that he thought might be called
“Badoo”. Mr. Kondratenko said he had never heard of that dating app and he and Ms. Denness
had a conversation about dating apps that included Ms. Denness using graphic language when
explaining why she did not like Tinder.
Mr. Kondratenko’s evidence was that he and Ms. Denness also had casual conversations
during this part of the shift about other topics, including Halloween and their hobbies.
Specifically, Mr. Kondratenko said Ms. Denness asked him if he had any plans to celebrate
Halloween. He said he told her he comes from a different culture and that Halloween is not
celebrated in Ukraine and his religion does not permit him to celebrate Halloween. In his direct
examination, Mr. Kondratenko said that while they were having this conversation, a group of
young women wearing skimpy clothing walked by PDK. He said he asked Ms. Denness if she was
going to dress the same as those “slutty girls” and she said no, she was going to go as a
character from a cartoon she watched when she was young. In cross‐examination, Mr.
Kondratenko’s evidence on that point changed slightly and he said he did not say “slutty girls”,
but rather he asked Ms. Denness if she was going to wear the same “slutty clothes” as the
young women were wearing.
With respect to hobbies, Mr. Kondratenko said he asked Ms. Denness about her hobbies
and she told him she goes to the gym and likes hanging out with her friends. He said Ms.
Denness asked him about his hobbies and he told her he likes hunting, fishing, spearfishing and
shooting. He said Ms. Denness expressed an interest in target shooting and he showed her a
video of him target shooting and a video of his brother’s friend spearfishing. He said he only
mentioned to Ms. Denness that he has hunting rifles and he never said anything about carrying
concealed weapons or that he always has a gun on him.
Mr. Kondratenko’s evidence was that at one point he noticed Ms. Denness was texting
someone on her phone and he asked if she was texting her boyfriend. He said Ms. Denness told
him she was texting her roommate and other friends in a group chat and he asked her who her
16
roommate was and how many roommates she had. Mr. Kondratenko said they also talked in
general about where they lived and she told him she lived in a house and he told her he lived in
student housing.
Mr. Kondratenko denied ever asking or demanding that Ms. Denness go to the
basement with him. He said that around the time they were talking about Halloween and their
hobbies, he asked if Ms. Denness wanted to go to the basement to bring up supplies or
whether she wanted him to do that. Mr. Kondratenko said Ms. Denness told him she would go
to the basement to do the stocking herself and the only thing he did was ask if she needed any
help.
Mr. Kondratenko said that after they finished stocking, it was slow and Ms. Denness was
on Snapchat. He said he also had his phone and Ms. Denness asked him about the photo of the
woman on his screen and he told her it was his girlfriend in Ukraine and that they planned to
get married the next year. He said at some point Ms. Denness said they should text each other
and she added him to her Snapchat.
Mr. Kondratenko’s evidence was that sometime after that, he suggested to Ms. Denness
that she send a message to Mr. Chupryna through her Snapchat and invite him to come to PDK.
He said Ms. Denness agreed and they thought it would be funny to use Ms. Denness’ phone to
record a video of her saying something along the lines of “Hey, come over to PDK” in Russian.
He said he wrote the words down and told Ms. Denness how to pronounce them in English and
she practiced saying them a few times in the kitchen before he recorded the video and she sent
it to Mr. Chupryna. Mr. Kondratenko said that after Mr. Chupryna responded and asked who
sent the video, he and Ms. Denness took a selfie of themselves standing beside each other so
Mr. Chupryna would know the messages were from him.
Mr. Kondratenko’s evidence was that Mr. Chupryna arrived at PDK about 30 minutes
later. He said he introduced Mr. Chupryna to Ms. Denness and he told Ms. Denness that Mr.
Chupryna was also an international student and was staying with him. Mr. Kondratenko said
that during the time Mr. Chupryna was at PDK, the three of them talked about various things.
17
He specifically remembered that Ms. Denness said she was from the Vancouver area, had a
Jeep she nicknamed “Rhonda”, and had recently been on a road trip to eastern Canada. He said
Mr. Chupryna asked questions about Ms. Denness’ Jeep because he is a car enthusiast and she
showed them photos of her Jeep and road trip.
Mr. Kondratenko’s evidence was that after Mr. Chupryna left, it was quiet and at times
he did his homework while Ms. Denness was on her iPad. He said that during this time they also
had casual conversations and he remembered Ms. Denness telling him about a tattoo she has
and about neck and brain injuries she sustained from an incident in high school. Mr.
Kondratenko said that around this time, he raised his arm and asked if Ms. Denness could
“tickle” his arm, which he described as meaning scratching the inside of his arm. Mr.
Kondratenko said Ms. Denness showed him her long nails, told him she was good at tickling
arms, and tickled his arm for about a minute.
Mr. Kondratenko’s evidence was that for the rest of the shift, he and Ms. Denness
served customers and did the clean up. He said Ms. Denness asked him a couple of times if she
could leave early because she was meeting her friends and he told her she had to stay and
finish her tasks.
Mr. Kondratenko’s evidence was that after PDK closed and they wrote down their
hours, Ms. Denness took a beer from the fridge that she had earlier brought into PDK from her
car. He said he asked Ms. Denness how she was going to drive because her car was parked at
PDK and she was drinking. He said Ms. Denness told him she would not be driving and he asked
her where she was going to park her car because there had previously been issues when
someone left their car at PDK overnight and there were not enough parking spots for the
morning shift. Mr. Kondratenko said he also asked if Ms. Denness would give him one of her
bottles of beer so he could take it home but she said no. He said he told Ms. Denness that was
fine, wished her a good night, and left. I note here that in her recall evidence, Ms. Denness
denied she brought beer into PDK that night or drank any alcohol at PDK that night and Mr.
Poulin did not recall this incident. In my view, nothing turns on this point but I include it for the
sake of completeness.
18
Mr. Kondratenko’s evidence was that it was around 10:15 p.m. when he left PDK and he
went straight home. He said sometime after he got home, he received a message through
Snapchat from Ms. Denness, who was at the pub with her friends. He said he replied to Ms.
Denness’ message by saying something along the lines of, “Sounds like fun, have a good night”
and he did not receive any further messages. Mr. Kondratenko denied taking Ms. Denness’
phone at any time and adding himself to her Snapchat without her knowledge.
In response to the specific allegations against him, Mr. Kondratenko said he never saw
Ms. Denness on her hands and knees at any time during the Friday Shift or the Saturday Shift.
He remembered there was a spill in the kitchen at one point and Ms. Denness cleaned it up but
at no time was she on her hands and knees and he never said she looked good or sexy on her
hands and knees. Mr. Kondratenko said he never told Ms. Denness she was pretty, only that
she had beautiful or pretty nails after she showed him her manicured nails. Mr. Kondratenko
said he never asked Ms. Denness where she lived, where her classes were or where she parked
her car.
Mr. Kondratenko denied making any derogatory comments about people of other races
or ever using racial slurs, including the “N‐word”. He said he and Ms. Denness talked about the
diversity of PDK’s staff and how they were all comfortable working together. Mr. Kondratenko
said he told Ms. Denness that unlike in North America, people in Ukraine use the “N‐word” but
he believes that word is disrespectful. Mr. Kondratenko said he and Ms. Denness also talked
about racism in general and he told her about the paper he was writing for his English course
on the topic of racial discrimination.
B. Analysis
1. The law regarding sexual harassment
Sexual harassment encompasses a broad range of conduct, from blatant actions such as
leering, grabbing or sexual assault, to more subtle conduct such as sexual innuendos or
propositions: Araniva v. RSY Contracting and another (No. 3), 2019 BCHRT 97 [Araniva] at para.
19
95. The legal test to establish sexual harassment was set out by the Supreme Court of Canada in
Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252 [Janzen], as follows:
Without seeking to provide an exhaustive definition of the term, I am of the view
that sexual harassment in the workplace may be broadly defined as unwelcome
conduct of a sexual nature that detrimentally affects the work environment or
leads to adverse jobrelated consequences for the victims of harassment. It is […]
an abuse of power. When sexual harassment occurs in the workplace, it is an
abuse of both economic and sexual power. Sexual harassment is a demeaning
practice, one that constitutes a profound affront to the dignity of the employees
forced to endure it. By requiring an employee to contend with unwelcome sexual
actions or explicit sexual demands, sexual harassment in the workplace attacks
the dignity and self‐respect of the victim both as an employee and as a human
being (at 1284).
To prove sexual harassment under the Janzen test, a complainant must establish that
the conduct at issue was:
i. of a sexual nature;
ii. unwelcome; and
iii. resulted in adverse consequences such as endangering continued
employment, negatively affecting work performance or undermining
personal dignity.
Establishing that conduct of a sexual nature is unwelcome requires an objective
assessment of whether “it is reasonable to conclude that a reasonable person would have
recognized the conduct as unwelcome in the circumstances”: Mahmoodi v. University of British
Columbia and Dutton, 1999 BCHRT 56 [Mahmoodi] at para. 140.
2. Findings of fact and credibility
Ms. Denness’ complaint against Mr. Kondratenko turns on the credibility and reliability
of their evidence about what happened during the two shifts they worked together. When
making my findings of fact and credibility, I compared the evidence of Ms. Denness and Mr.
Kondratenko to their documented accounts and considered their explanations for
inconsistencies between those accounts that were put to them in their testimony.
20
Where possible, I compared the evidence of the witnesses to other documentary
evidence, in particular message exchanges, the WorkSafe records, and contemporaneous
written accounts they gave regarding the events at issue.
There are four written or audio accounts of what Ms. Denness previously said happened
during and after the Friday Shift and the Saturday Shift, namely:
the audio statement she gave to the RCMP on October 31, 2017 [2017 RCMP
Statement], three days after the Saturday Shift;
the Letter to the Editor. Although Ms. Denness described the Letter to the Editor
as an “opinion piece” that was “loosely” based on her experience at PDK, in
cross‐examination she said its contents are true;
the written statement she provided to WorkSafe on or around December 8,
2017, together with additional information she verbally provided to WorkSafe
during its investigation [WorkSafe Statement]; and
the complaint, which was received by the Tribunal on January 3, 2018; and
the statement she gave to the Kamloops RCMP in March 2019 regarding the
Instagram Threat [2019 RCMP Statement].
In her closing submission, Ms. Denness argues that the comparison of her evidence at
the hearing should be between her WorkSafe Statement and complaint because they are much
more consistent than the 2017 RCMP Statement. While that may be the case, in my view what
Ms. Denness told the RCMP Officer in her 2017 RCMP Statement is important because it
happened three days after the Saturday Shift. Further, as explained below, I disagree with Ms.
Denness that the inconsistencies between what she told the RCMP Officer and her subsequent
accounts, including her evidence at the hearing, are minor in nature and should not affect the
credibility or reliability of her evidence.
It is not entirely clear from the evidence when Mr. Kondratenko provided his written
statement to Ms. Cecile, however I find it was provided to her by mid‐November 2017. For the
most part, Mr. Kondratenko’s evidence was consistent with his written statement but there
were some inconsistencies that were put to him in cross‐examination. Specifically, Mr.
Kondratenko was asked why he did not mention anything in his written statement about Ms.
Denness telling him she had a back and brain injury, that she had a tattoo, or anything about
21
him taking Ms. Denness’ phone at any time. Mr. Kondratenko was also asked to explain the
inconsistencies in his evidence and his written statement regarding the videos he showed Ms.
Denness during the Saturday Shift.
Mr. Kondratenko acknowledged the inconsistencies between his evidence and his
written statements. He said that after finding out a complaint had been made against him and
speaking with the RCMP Officer, he was depressed and tried to include as many details as
possible in his written statement. He said that after he provided the written statement to Ms.
Cecile, he told her he remembered some additional details but she told him she had already
submitted his statement to WorkSafe. Mr. Kondratenko denied deliberately omitting details
and in redirect said that at the time he wrote the written statement, he did not know all of the
specific allegations Ms. Denness had made against him.
I find Mr. Kondratenko’s explanations for the inconsistencies between his evidence and
his written statement to be credible. I find the inconsistencies to be minor in nature and his
explanation for what he knew about Ms. Denness’ allegations is consistent with the evidence of
other witnesses I find credible on that point. I also find they are consistent with the
documentary evidence, specifically the RCMP records indicating what Mr. Kondratenko was
told about the complaint by the RCMP Officer.
Ms. Denness makes a number of specific allegations or types of allegations against Mr.
Kondratenko. I consider each allegation or type of allegation separately.
a. Allegations about taking Ms. Denness’ phone
Ms. Denness’ evidence was that during the Friday Shift, Mr. Kondratenko repeatedly
grabbed her phone and asked her to unlock it. She said that when she asked him to give her
phone back, he laughed and put it down his pants and underwear. She said that after she again
asked Mr. Kondratenko to return her phone, he laughed and only put it back when she walked
away. Her evidence was that during the Saturday Shift, Mr. Kondratenko repeatedly took her
phone and messaged Mr. Chupryna from her phone, inviting him to come to PDK. She said Mr.
22
Kondratenko was able to do that because he added himself and Mr. Chupryna to her Snapchat
without her knowledge.
There are significant variations in Ms. Denness’ previous documented accounts about
how many times Mr. Kondratenko took her phone. Specifically, Ms. Denness told the RCMP
Officer three days after the Saturday Shift that Mr. Kondratenko took her phone on one
occasion. In subsequent accounts, Ms. Denness alleged that Mr. Kondratenko took her phone
for extended periods of time during both shifts.
There are also significant variations in Ms. Denness’ previous documented accounts of
what Mr. Kondratenko did with her phone when he took it. She told the RCMP Officer that Mr.
Kondratenko took her phone once and asked for her phone number and she said no and told
him not to contact her. Her versions changed in subsequent accounts from alleging that Mr.
Kondratenko took her phone and said, “Come and get it”, to alleging that he took her phone
and put it in his pants or pocket to alleging, for the first time at the hearing, that Mr.
Kondratenko put her phone down his pants and under his underwear.
Lastly, there are significant variations in Ms. Denness’ previous documented accounts as
to whether Mr. Kondratenko had access to her phone. She told the RCMP Officer she was not
concerned that Mr. Kondratenko had her phone number because he did not have the password
to her phone. In subsequent accounts and at the hearing, Ms. Denness alleged that Mr.
Kondratenko had her phone when it was unlocked and added himself and Mr. Chupryna to her
Snapchat and sent messages from her phone without her knowledge.
Ms. Denness was questioned about the inconsistencies in her accounts about Mr.
Kondratenko taking her phone and having access to it. Ms. Denness maintained that Mr.
Kondratenko took her phone multiple times during their shifts, both when it was locked and
when it was unlocked. When asked why she did not mention anything to the RCMP Officer
about the other times Mr. Kondratenko allegedly took her phone, Ms. Denness said she
thought she told the RCMP Officer about all of these allegations. She also said she told the
RCMP Officer that Mr. Kondratenko did not have her password because they were talking about
23
the one time he took her phone and her phone was locked at the time. Lastly, Ms. Denness said
it was upsetting and inappropriate when Mr. Kondratenko took her phone, but it did not cause
her to fear for her safety.
I find Ms. Denness’ explanations for the inconsistencies between her previous accounts
and her testimony to be convoluted. It is reasonable to expect some inconsistencies in a
person’s previous accounts of what happened and I accept that Ms. Denness’ first account to
the RCMP Officer may not contain all the details of what happened. I also accept her evidence
that she was more comfortable telling Ms. Knopf about what happened than she was telling the
RCMP Officer. However, in my view the discrepancies between Ms. Denness’ evidence and the
2017 RCMP Statement regarding these allegations are significant and affect the reliability of her
evidence.
There are also differences in what Ms. Denness told the witnesses who had
conversations with her about Mr. Kondratenko’s conduct that I find credible on this point. What
I take from that evidence is that with the exception of Ms. Knopf, Ms. Denness only said that
Mr. Kondratenko took her phone. She only told Ms. Knopf that Mr. Kondratenko put her phone
in his pants.
I prefer Mr. Kondratenko’s evidence that he took Ms. Denness phone on one occasion
and put it on top of the coffee grinder. I find he did not add himself or Mr. Chupryna to Ms.
Denness’ Snapchat and send messages from her phone without her knowledge or consent.
While there was conflicting evidence as to whose phone they came from, Mr. Kondratenko’s
evidence is consistent with Ms. Ross’ evidence that over the course of that weekend, likely
during the Saturday Shift, she received “silly selfies” of Ms. Denness and Mr. Kondratenko
behind the bar together.
b. Comments about LGBTQ people and Ms. Denness’ sexual orientation
I find that Ms. Denness and Mr. Kondratenko talked about sexual orientation at some
point when they worked together. I accept Mr. Kondratenko’s evidence that he and Ms.
Denness talked about relationships and cultural differences and he told her that homosexuality
24
is not open or public in Ukraine and it is almost illegal. However, for the reasons that follow, I
cannot find on a balance of probabilities that Mr. Kondratenko said he would not serve that
“fucking faggot”, that he would “kill people like that”, or that he thinks gay people are
disgusting. Nor can I find that Mr. Kondratenko cornered Ms. Denness, asked if she is a lesbian,
and called her a “fucking dyke”. I accept Mr. Kondratenko’s evidence that he did not know the
slang word “dyke” before the hearing.
The allegations Ms. Denness makes under this heading are some of her most serious
allegations against Mr. Kondratenko. Her evidence was that she was extremely afraid of Mr.
Kondratenko because of what he said and did and he knew she is an openly queer person.
Ms. Denness’ allegations were included in the WorkSafe statement and her complaint.
However, her evidence is very different from what she told the RCMP Officer three days after
the Saturday Shift. In her direct examination, Ms. Denness said she was certain she told the
RCMP Officer all the “major things”, including that Mr. Kondratenko called her a “fucking dyke”
and said he would kill people like that. Ms. Denness was adamant that the RCMP Officer’s notes
of her statement was just a short summary of everything she said. That was not the case, as the
audio recording confirmed that Ms. Denness did not say anything to the RCMP Officer about
Mr. Kondratenko making threatening comments about LGBTQ people or comments that she
perceived to be threatening because she is an openly queer person. Ms. Denness also did not
tell the RCMP Officer that Mr. Kondratenko cornered her, asked if she is a lesbian and called her
a “fucking dyke”.
Ms. Denness was asked about the discrepancy between her evidence and her 2017
RCMP Statement. Ms. Denness said she thought she told the RCMP Officer about these
allegations. She said the reason why they were not included was because she was scared and
upset when she spoke with the RCMP Officer and had not made any notes or written anything
down before she spoke with the RCMP Officer.
Again, I do not expect Ms. Denness’ evidence to be entirely consistent with the previous
documented versions of what happened. I accept that Ms. Denness was upset when she spoke
25
with the RCMP Officer and it is understandable if she did not include every allegation in her
2017 RCMP Statement. However, given that these allegations are a key aspect of Ms. Denness’
complaint against Mr. Kondratenko, I find it is significant that she never reported them to the
RCMP Officer.
I also note that Ms. Denness said different things about these allegations to the
witnesses who had conversations with her that I find to be credible on this point. Specifically, I
find that Ms. Denness did not tell them that Mr. Kondratenko made comments about wanting
to kill gay people or that he thought they were disgusting.
When assessing the credibility of Ms. Denness’ evidence about these allegations, I also
take into consideration her evidence in her direct examination that Mr. Kondratenko referred
to a co‐worker as disgusting because he is openly gay. In cross‐examination, Ms. Denness
admitted that the co‐worker never told her he is gay and she only assumed he was. Ms.
Denness said she made that assumption after she and the co‐worker had a conversation about
Pride events. In his evidence, the co‐worker said he is not gay and he never said anything to Ms.
Denness to indicate that he is. The co‐worker said Ms. Denness’ allegation that he is openly gay
is “slanderous and false”. The co‐worker is a credible witness and the only conclusion I can
draw is that Ms. Denness assumed the co‐worker is openly gay based on stereotypes of how
she perceives at least some gay people look or act.
In her closing submission, Ms. Denness argues that because the co‐worker testified that
in the past he has had issues with people assuming he is gay and she made that same
assumption, her allegation against Mr. Kondratenko is credible because it is reasonable to
believe he also assumed the co‐worker is gay. I reject that argument. There is no evidence to
suggest that Mr. Kondratenko made the same assumption about the co‐worker that Ms.
Denness did.
When cross‐examined about the contents of the Letter to the Editor, Ms. Denness’
evidence was that the co‐worker told her that Mr. Kondratenko is homophobic and he did not
want to work with him. The co‐worker’s evidence, which I accept, is that the only issue he ever
26
had when he worked with Mr. Kondratenko was work‐related and that after that issue was
resolved, he had no problems working with Mr. Kondratenko. The co‐worker’s evidence, which
I accept, is that Mr. Kondratenko never expressed any views about LGBTQ people to him and
never exhibited any hostility toward them.
The only thing I take from Ms. Denness’ evidence regarding the co‐worker is that it
reflects poorly on her credibility.
c. Going to the basement
In her evidence, Ms. Denness did not allege that Mr. Kondratenko gave her a specific
reason for why he wanted her to go to the basement. However, from the totality of her
evidence it appears clear she interpreted his alleged requests or demands as attempts to get
her alone in the basement for some type of sexual encounter.
I prefer Mr. Kondratenko’s evidence regarding these allegations because he provided
context to conversations he and Ms. Denness had about going to the basement to get supplies
or do the recycling. I find his evidence to be believable and consistent with evidence of other
PDK employees who said it would have been unusual for both baristas to go to the basement
and leave the front unattended for any period of time.
I find that whatever negative interpretation Ms. Denness gave to Mr. Kondratenko’s
comments about going to the basement is not reasonably supported by the surrounding
circumstances.
d. Comments about guns/showing photos and videos of guns
I find that during the Saturday Shift, Mr. Kondratenko told Ms. Denness that he enjoys
hunting, fishing, spearfishing and shooting. I also find that Mr. Kondratenko showed her, or
tried to show her, at least one related video. Lastly, I find Mr. Kondratenko told Ms. Denness he
has hunting rifles and recently purchased a rifle, but he did not tell her he carries concealed
weapons or always has a gun on him.
27
In her 2017 RCMP Statement, Ms. Denness said she did not know what Mr. Kondratenko
meant when he told her he likes to go hunting and shooting and showed her videos of him
hunting and shooting. She told the RCMP Officer that Mr. Kondratenko did not tell her in a
casual or normal way that he had purchased a gun but rather said it in a straightforward way.
Since then, it is clear from her evidence that at some point Ms. Denness interpreted Mr.
Kondratenko’s conduct as part of a deliberate attempt to intimidate or threaten her by letting
her know he has access to guns.
I accept that Ms. Denness was uneasy or uncomfortable with the talk of hunting and
shooting and accept that she did not want to watch Mr. Kondratenko’s videos. However, based
on the evidence of witnesses who testified that they knew Mr. Kondratenko was an avid hunter
and target shooter, I find that his behaviour was not part of an attempt to threaten or
intimidate her. I find that any negative interpretation Ms. Denness attached to Mr.
Kondratenko’s conduct is not reasonably supported by the surrounding circumstances.
e. Questions by Mr. Kondratenko and Mr. Chupryna
Ms. Denness’ evidence was that during the Saturday Shift, Mr. Kondratenko and Mr.
Chupryna asked her personal questions that she found to be inappropriate and intimidating
because they were very specific to her and when she would be alone. Ms. Denness’ evidence
was that other than answering Mr. Chupryna’s question about how old she was, she did not
answer any of their questions or give any indication that she wanted to talk to them. There are
some inconsistencies in her evidence compared to the documented accounts, but I find those
inconsistencies to be minor in nature.
I accept that Mr. Kondratenko and Mr. Chupryna asked questions during their
conversation with Ms. Denness. I accept that Ms. Denness was uncomfortable during this
conversation because it is one of the specific things she mentioned during her interview with
the RCMP Officer. However, I find that the evidence of Mr. Kondratenko and Mr. Chupryna has
the ring of truth in terms of the questions one might ask someone when they are first
introduced and what university students would talk about with one another. I also prefer their
28
evidence because, in the absence of evidence to the contrary, both Mr. Kondratenko and Mr.
Chupryna knew information about Ms. Denness they could only have known because she told
either one or both of them. Specifically, they knew Ms. Denness had a Jeep nicknamed
“Rhonda” and she had recently returned from a road trip to eastern Canada. Further, Mr.
Chupryna recalled photos that Ms. Denness showed them from her road trip. I also find Mr.
Chupryna’s evidence on why he asked Ms. Denness questions about where she parked on
campus to be credible and consistent with evidence presented that student parking at TRU was
in short supply and a popular topic among students.
For these reasons, I find that Mr. Kondratenko and Mr. Chupryna were not asking
personal questions to intimidate Ms. Denness or to find out when she would be alone. I find
that any negative interpretation Ms. Denness put on their questions or the conversation in
general is not reasonably supported in the evidence.
f. The “N‐word”
Ms. Denness’ complaint is one of harassment on the basis of sex and sexual orientation.
For that reason, it is not necessary for me to make a finding as to whether Mr. Kondratenko
used the “N‐word” because it is not relevant to my analysis.
Having said that, this is a serious allegation against Mr. Kondratenko and I feel it should
be addressed in this decision. I find Mr. Kondratenko’s evidence about his conversation with
Ms. Denness about racial discrimination that included him telling her the “N‐word” is used in
Ukraine but he finds it to be offensive, to be credible and sincere. There is no evidence to even
suggest that when he worked at PDK, Mr. Kondratenko used racial slurs or made derogatory
comments about people on the basis of race or colour.
g. Comments such as “I know how to find you” or “I know where to find you”
at the end of the Saturday Shift
I accept that before leaving PDK after the Saturday Shift ended, Mr. Kondratenko said
something to Ms. Denness along the lines of “I know how to find you” or “I know where to find
you”. In the 2017 RCMP Statement, Ms. Denness said she did not know what he meant when
29
he said those things. It is clear from the Letter to the Editor and her evidence at the hearing
that Ms. Denness subsequently interpreted these comments to be a threat that Mr.
Kondratenko would come find her because he knew where she lived and where her classes
were.
Ms. Denness’ evidence was that she waited in the bathroom after the Saturday Shift
ended for what seemed to her to be at least 30‐40 minutes because she was afraid of Mr.
Kondratenko. There is no dispute that while she was in the bathroom, Ms. Denness changed
into her Halloween costume. There is also no dispute that Ms. Denness left PDK before Mr.
Poulin and did not walk out with him.
Ms. Denness told the RCMP Officer three days after the Saturday Shift that she walked
out of PDK with Mr. Poulin. When asked about the inconsistency, Ms. Denness acknowledged
after the audio recording was played that she did not tell the RCMP Officer she was so afraid of
Mr. Kondratenko that she waited in the bathroom for what seemed to her to be about 30‐40
minutes. Ms. Denness’ explanation was that she did not relay that information because she
wanted to be “really factual” about what Mr. Kondratenko did and he did not force her into the
bathroom. Ms. Denness acknowledged that she told the RCMP Officer she left with Mr. Poulin
when, in fact, she left a few minutes before he did. I find the inconsistency between Ms.
Denness’ evidence at the hearing and what she told the RCMP Officer to be significant.
I note there are also inconsistencies in what Ms. Denness told other witnesses about
waiting or hiding in the bathroom after the Saturday Shift. Specifically, I find that other than
telling Ms. Knopf, Ms. Denness did not tell Ms. Thompson, Mr. Johnson or Ms. Cecile that she
felt she had to hide or wait in the bathroom after the Saturday Shift to make sure Mr.
Kondratenko was gone. I accept Ms. Knopf’s evidence that Ms. Denness told her she felt scared
and threatened; however, I find the evidence of the other witnesses is also credible in the sense
that they all believed Ms. Denness was reporting sexual harassment and not violent or
threatening behaviour that caused her to fear for her safety.
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I cannot possibly say what was going on in Ms. Denness’ mind when she was in the
bathroom when PDK closed after the Saturday Shift. I accept that just because Mr. Poulin did
not notice anything amiss, that does not mean Ms. Denness did not feel afraid or unsafe.
However, on my assessment of the evidence, there is no reasonable basis to conclude that Mr.
Kondratenko’s words or conduct were threatening.
h. Comments of a sexual nature
In all her accounts of what happened, whether they were made during conversations
with others or in the documented versions, Ms. Denness has consistently alleged that Mr.
Kondratenko made inappropriate comments of a sexual nature. Specifically, Ms. Denness has
consistently alleged that Mr. Kondratenko told her she is pretty or beautiful, that she looked
good or sexy on her hands and knees while cleaning, and that he asked about naked photos on
her phone.
I note here that in her 2017 RCMP Statement, Ms. Denness reported that Mr.
Kondratenko also asked her inappropriate questions about her sex life but made no mention of
those types of questions in any of the other accounts or in her testimony at the hearing. In her
recall evidence, Ms. Denness said Mr. Kondratenko asked inappropriate questions about her
sex life but did not explain why they were part of her report to the RCMP but not part of her
complaint or mentioned in her direct evidence. I also note here that Ms. Denness did not allege
in her complaint or in her testimony at the hearing that the harassment by Mr. Kondratenko
included him saying something about a “slutty” Halloween costume or asking her to “tickle” his
arm.
Mr. Kondratenko denies that he told Ms. Denness she is pretty or beautiful, asked about
naked photos on her phone, or said she looked good or sexy on her hands and knees while
cleaning.
I accept that Ms. Denness’ interactions with Mr. Kondratenko made her uncomfortable.
She told more than one person she found him to be “creepy” and she did not want to work
with him. However, I find Mr. Kondratenko’s evidence regarding these allegations to be
31
credible. I prefer his evidence about what happened when he and Ms. Denness worked
together because it included details and context to their conversations that, overall, I find
lacking in Ms. Denness’ evidence.
For the reasons set out above, I find that on an assessment of the evidence, Ms.
Denness complaint against Mr. Kondratenko is not justified.
VIII COMPLAINT AGAINST PDK AND KIM CECILE
I now turn to whether Ms. Cecile and PDK discriminated against Ms. Denness by failing
to reasonably respond to and investigate her complaint of sexual harassment and harassment
on the basis of her sexual orientation by Mr. Kondratenko. What follows is a chronological
summary of the relevant evidence and my findings of fact and credibility.
A. Saturday, October 28, 2017
Before the Saturday Shift started, Ms. Denness and her supervisor had a private
conversation during the time their shifts overlapped. It is not disputed that this conversation
was about a complaint Ms. Thompson received about Ms. Denness. They have different
recollections of that conversation. It is not necessary for me to make findings of fact about the
specific nature of the complaint, the source of the complaint about Ms. Denness or what
exactly was said during this conversation. The only finding I make is that before she started the
Saturday Shift, Ms. Denness believed that Mr. Kondratenko complained about her. As Ms.
Denness did not present evidence to the contrary, I accept Ms. Thompson’s evidence that Ms.
Denness did not report any concerns related to sexual or other harassment by Mr. Kondratenko
from the Friday Shift.
B. Monday, October 30, 2017
1. Conversation between Ms. Denness and Ms. Thompson
The first time Ms. Denness reported sexual harassment by Mr. Kondratenko was on
Monday, October 30, 2017. On that day, Ms. Denness went to PDK to speak with Ms.
32
Thompson about what happened during the Friday Shift and Saturday Shift. They have very
different recollections about what was said during that conversation.
Ms. Denness’ evidence is that she clearly told Ms. Thompson she had been sexually
harassed by Mr. Kondratenko and did not feel safe. Ms. Denness was certain she told Ms.
Thompson about all the incidents she testified to that occurred during the Friday Shift and the
Saturday Shift. Specifically, Ms. Denness remembered telling Ms. Thompson that Mr.
Kondratenko was “creepy” and forward in a sexual manner, used the “N‐word”, said he would
kill gay people, called her a “fucking dyke”, talked about having guns at work, and said he would
know where to find her.
Ms. Thompson’s evidence was that Ms. Denness told her the Saturday Shift did not go
well and she still had issues with Mr. Kondratenko. Ms. Thompson said Ms. Denness was visibly
upset during their conversation and had to pause a few times while telling her what happened.
Ms. Thompson remembered Ms. Denness telling her Mr. Kondratenko was “creepy” and made
inappropriate sexual comments such as saying she looked good on her hands and knees
cleaning the bathroom. She remembered Ms. Denness telling her Mr. Kondratenko took her
phone and said, “If you want it, come and get it” and that Ms. Denness said something about
photos and Snapchat. Ms. Thompson remembered Ms. Denness telling her Mr. Kondratenko
repeatedly asked her to go to the basement and that he and his friend asked her personal
questions about where she lives, where she parks her car, where she goes to school, where she
goes to the gym and what she does on weekends. She said it was possible that Ms. Denness
told her Mr. Kondratenko said he would know where to find her.
Ms. Thompson denied that Ms. Denness told her Mr. Kondratenko asked her to send
him naked photos or that he ever restricted or cornered her behind the bar. She denied that
Ms. Denness told her Mr. Kondratenko used the “N‐word”, said he wanted to kill gay people, or
called her a “fucking dyke”. She did not recall if Ms. Denness told her that Mr. Kondratenko said
he owned guns or showed her photos or videos of him shooting a gun.
33
I find Ms. Thompson’s evidence that during this conversation, Ms. Denness did not
report any allegations that Mr. Kondratenko’s behaviour was violent or threatening to be
credible. In particular, I find that Ms. Denness did not tell Ms. Thompson that Mr. Kondratenko
said he wanted to kill gay people, called her a “fucking dyke”, or cornered her behind the bar.
However, based on Ms. Thompson’s own evidence, I find that Ms. Denness reported
sexual harassment as opposed to merely work‐related issues or conflicts she had with Mr.
Kondratenko because they did not get along. On one hand, Ms. Thompson said it was not
possible that Ms. Denness explicitly told her that Mr. Kondratenko sexually harassed her
because had she heard those words, she would definitely have communicated that to Mr.
Johnson and Ms. Cecile. On the other hand, Ms. Thompson testified that Ms. Denness was
visibly upset, and told her Mr. Kondratenko was “creepy” and made sexually inappropriate
comments. She also said she was shocked by what Ms. Denness told her because it was serious.
Lastly, in cross‐examination Ms. Thompson said that while one employee taking another
employee’s phone and saying “come and get it” might not be sexual harassment, she admitted
that a male telling a female co‐worker she looked good on her hands and knees could be.
It is not necessary for me to make findings as to exactly what was said during this part of
the conversation. It is sufficient that I find Ms. Thompson knew, or ought to have known, that
Ms. Denness was making a complaint of sexual harassment by Mr. Kondratenko regardless of
whether she ever used the words “sexual harassment”.
Ms. Denness’ evidence was that after she reported being sexually harassed by Mr.
Kondratenko, Ms. Thompson’s first response was to say, “I knew this would happen”. Ms.
Denness said she was shocked by that response and asked Ms. Thompson what she meant but
she did not elaborate. Ms. Denness said she took Ms. Thompson’s response to mean she knew
there had been numerous similar complaints of sexual harassment made against Mr.
Kondratenko and nothing had been done about them.
Ms. Thompson did not deny that she said, “I knew this would happen” to Ms. Denness.
Her evidence was that she made that comment in a different context and in a conversation she
34
had with Ms. Denness the next day. She said that when she made that comment, she was
referring to communication issues that Mr. Kondratenko had with others because he could be
blunt and stubborn and because of cultural barriers.
It is clear from Ms. Denness’ evidence that her interpretation of Ms. Thompson saying,
“I knew this would happen” was what started her down the road of believing there had been
numerous complaints of sexual harassment by Mr. Kondratenko that had been ignored or
swept under the rug. Even if I accept Ms. Denness’ evidence that Ms. Thompson said, “I knew
this would happen” when she first reported sexual harassment by Mr. Kondratenko, that does
not mean Ms. Thompson meant she knew there had been previous complaints of sexual
harassment by Mr. Kondratenko.
Whether Ms. Thompson’s comment was made during this conversation or the one they
had the day after, by this point Ms. Thompson was aware, or should have been aware, that Ms.
Denness was alleging that Mr. Kondratenko sexually harassed her. It does not seem plausible
that after Ms. Denness reported sexual harassment, she and Ms. Thompson would have
another conversation that was only about work‐related issues or personality conflicts. By her
own admission, Ms. Thompson said that in her mind, cultural barriers, attitudes and
communication issues were part of the explanation for what happened between Ms. Denness
and Mr. Kondratenko.
However, Ms. Denness does not dispute that Ms. Thompson did not elaborate on what
she meant when she said, “I knew this would happen”. I find Ms. Thompson’s evidence that she
had no knowledge of any previous complaints of sexual harassment by Mr. Kondratenko to be
credible. For that reason, even accepting that Ms. Thompson said, “I knew this would happen”
during this conversation, I find she did not mean that she knew Mr. Kondratenko would sexually
harass Ms. Denness because he had done it before and nothing had been done about it.
After their conversation, Ms. Denness and Ms. Thompson exchanged the following
messages:
35
Ms. Denness: Hey girl [heart emoji] so I just wanted to follow up with you about
my future shifts with Dima … So I’ve got Nov. 4th, 5th and 10th with him. I really
don’t feel comfortable working with him in the future, if that means less hours for
me that’s fine [smiley face emoji]
Ms. Thompson: Hopefully we can resolve this issue before it comes to that, but I
understand if that’s what you would like to do in the future. I will speak to him
before your guys next shift together as well.
Ms. Thompson: And hey girl!
Ms. Denness: Yes I would really rather just not work with him, I’ll still do the Sat
shift with him cause I know it’s too last minute to change but if we could switch
the other ones I’d appreciate it
Ms. Thompson: I personally change anything cause the schedule is already out and
done. You can ask around for sure and then just get approval from me to switch. I
can also help you find someone if need be to, but switching shifts is your duty.1
Ms. Thompson: I also will have to talk to Jerry about this matter, just a heads up
in case he says something to you.
Ms. Denness: Ya if he wants to talk to me too that’s totally fine
Ms. Denness: Thirza is gonna cover the 5th and 10th!
Ms. Thompson: Thanks lovely, have a great shift
In her direct examination, Ms. Denness said she was trying to be polite in her messages
because Ms. Thompson was her supervisor and she did not want to quit her job. She said she
was trying to be accommodating when she said she was fine with working fewer hours if it
meant she did not have to work with Mr. Kondratenko. Ms. Denness said she only agreed to
work her upcoming shift with Mr. Kondratenko on November 4 because she could not find
anyone to take that shift and she needed the hours. She said she felt that if she refused to work
that shift or called in sick, she might get fired.
1
I note here that based on the undisputed evidence that Ms. Thompson did not have authority to change a
schedule once it was posted and I accept she meant to tell Ms. Denness that she personally cannot change the
schedule because it is already out.
36
It is not in dispute that Ms. Thompson did not have authority to change the schedule
once it had been posted. It is also not in dispute that the only ones at PDK who had authority to
change the schedule once it was out were Ms. Cecile and Mr. Johnson.
I accept Ms. Denness’ evidence on the message exchange about changing her shifts. I do
not take what she said in her messages to Ms. Thompson to mean she agreed she should be
responsible for changing her upcoming shifts with Mr. Kondratenko, that she willingly chose to
work with Mr. Kondratenko on the November 4 shift, or that she believed she should have to
work fewer hours if it meant she did not have to work with Mr. Kondratenko.
2. Ms. Denness’ Facebook message to Ms. Cecile
It is not clear whether this occurred before or after Ms. Denness and Ms. Thompson
spoke and exchanged the above messages, but sometime during the afternoon of October 30,
2017, Ms. Denness sent the following message to Ms. Cecile through Facebook Messenger:
Hi Kim, I was wondering if you and I could chat with you in person or over the
phone? I am having an issue with Dima and him sexually harassing me on shift last
Friday and Saturday and I would like to deal with this immediately.
Later that night, Ms. Denness sent another message to Ms. Cecile, saying:
Could you give me a call when you have a chance? [Ms. Denness’ phone number]
Ms. Cecile did not respond to either of Ms. Denness’ messages until after she returned
from holidays, as set out below. In her response to the complaint, Ms. Cecile said she was first
informed of Ms. Denness’ allegations of sexual harassment on this day, implying she either
received Ms. Denness’ messages or heard about her allegations from Ms. Thompson or Mr.
Johnson. Ms. Cecile’s evidence at the hearing was that she made a mistake in her response and
that she did not, in fact, receive Ms. Denness’ Facebook messages until after she returned from
her holiday in New Orleans a few days later. I find Ms. Cecile’s evidence on this point to be
credible and consistent with the evidence of Ms. Thompson and Mr. Johnson that Ms. Cecile
did not learn about Ms. Denness’ allegations until she returned from holidays. I also note it is
37
consistent with what Ms. Denness told the RCMP Officer in her 2017 RCMP Statement when
she said she knew Ms. Cecile was out of town.
3. Conversation between Ms. Thompson and Mr. Johnson
Sometime during the evening, Ms. Thompson called Mr. Johnson and they had a brief
conversation about Ms. Denness’ complaint about Mr. Kondratenko. Ms. Thompson only told
Mr. Johnson that Ms. Denness had “issues” or “problems” with Mr. Kondratenko and did not
expressly convey that she was making a complaint of sexual harassment. The only other details
Ms. Thompson shared with Mr. Johnson were that Ms. Denness wanted to talk to someone
about her “issues” or “problems” with Mr. Kondratenko right away and that she did not want to
work with Mr. Kondratenko anymore.
Mr. Johnson’s evidence was that he did not give the matter much thought because it
was late and he was under the impression that this was merely a matter of Ms. Denness and
Mr. Kondratenko not liking each other. I accept Mr. Johnson’s evidence that he told Ms.
Thompson he would speak with Ms. Denness the next day and they would go forward from
there and try to work things out.
C. Tuesday, October 31, 2017
Ms. Denness, Ms. Thompson and Mr. Johnson all worked together the day after she first
reported sexual harassment. It is not in dispute that at the start of their shift, Ms. Denness told
Ms. Thompson this would be her last day at PDK and she was not coming back. Ms. Thompson’s
evidence was that during this conversation, Ms. Denness said that even if Mr. Kondratenko was
told that his behaviour was inappropriate, she would still leave PDK because he was not the
type of person who would change and she just wanted to move on.
Sometime after this conversation, Ms. Denness spoke with Mr. Johnson and they have
different recollections of what was said. Ms. Denness’ evidence was that she told Mr. Johnson
that Mr. Kondratenko sexually harassed her and she did not feel safe. She said Mr. Johnson
responded by saying that Mr. Kondratenko was a “weird guy” and that he would speak to him.
38
Ms. Denness said she told Mr. Johnson that Mr. Kondratenko threatened her and that she
would not be coming back to work at PDK because she did not feel safe.
Mr. Johnson’s evidence was that Ms. Denness was vague about what happened
between her and Mr. Kondratenko. He remembered Ms. Denness telling him that Mr.
Kondratenko made rude and inappropriate “sexually‐oriented” comments toward her as a
female. Mr. Johnson said Ms. Denness looked upset during this conversation and was not her
usual self. In cross‐examination, he remembered referring to Mr. Kondratenko making “dumb
comments” such as Ms. Denness looking good while she was cleaning something. Mr. Johnson’s
evidence was that Ms. Denness told him she did not feel comfortable working with Mr.
Kondratenko, not that she felt unsafe working with him or felt threatened by him.
Mr. Johnson’s evidence was that he told Ms. Denness it was perfectly understandable
that she did not feel that what Mr. Kondratenko said to her was right and that she wanted to
talk to management about what happened. Mr. Johnson said he tried to talk to Ms. Denness
about her complaint but it was a very short conversation because she had already decided to
quit and told him that would be her last shift.
Mr. Johnson’s evidence was that he tried to reassure Ms. Denness that he would look
into her complaint and her allegations were being taken seriously. He said he told Ms. Denness
he hoped she would stay at PDK because she was doing a good job. He said he told Ms. Denness
he would speak to Mr. Kondratenko and going forward they would make sure she did not have
to work with him again.
I accept Mr. Johnson’s evidence and find she reported sexually inappropriate behaviour
by Mr. Kondratenko that made her feel uncomfortable but not behaviour that was physically
aggressive or threatening. I also accept his evidence that he took Ms. Denness’ complaint
seriously and told her she would not have to work with Mr. Kondratenko again.
After her last shift at PDK, Ms. Denness contacted the Kamloops RCMP. At around 9:30
p.m., the RCMP Officer came to Ms. Denness’ home and recorded her 2017 RCMP Statement.
39
D. Friday, November 3, 2017
In the afternoon of November 3, 2017, Ms. Denness sent another Facebook message to
Ms. Cecile that read:
Hi Kim, I would really like to speak with you in person about this issue
It is not clear exactly when Ms. Cecile responded, but sometime later that afternoon she
and Ms. Denness exchanged the following messages:
Ms. Cecile: Hi Jordynn. Sorry I just saw all these messages. For some reason when
I was away I was getting notifications but couldn’t open anything. Would you want
to meet somewhere tomorrow and speak in person. I am horrified to have read
this.
Ms. Denness: No problem, i know Facebook isn’t the best form of communication!
Tomorrow would be great, are you available at noon?
Ms. Cecile: This is not acceptable at all and will be dealt with. I am speechless.
Ms. Denness: Thank you I appreciate that
Ms. Cecile: Absolutely. Want to meet at Starbucks or for lunch somewhere.
Somewhere where you will have some privacy and feel comfortable talking
Ms. Denness: We could meet at Starbucks on Columbia and McGill if that works
for you
Ms. Cecile: Absolutely
Ms. Cecile: I will meet you there at 12
After the exchange of messages, Ms. Cecile went to PDK to speak with Ms. Thompson
and Mr. Johnson about the situation. I find Ms. Cecile’s evidence that she was in “information‐
gathering mode” to be credible. I accept her evidence that at this point she did not have an
opinion about what happened and wanted to get to the truth and rectify the situation. It is not
in dispute that after Ms. Cecile became aware of Ms. Denness’ report of sexual harassment, she
took over the investigation from Mr. Johnson.
40
E. Saturday, November 4, 2017
Ms. Denness and Ms. Cecile met at a local Starbucks on November 4, 2017. Sometime
before they met, Ms. Denness opened an online claim with WorkSafe but had not yet provided
the WorkSafe Statement.
In addition to Ms. Thompson’s saying, “I knew this would happen”, the meeting
between Ms. Denness and Ms. Cecile on November 4, 2017 is a pillar that forms the foundation
of the complaint against her employer. I set out their evidence and my findings separately.
1. Ms. Denness’ evidence about the meeting at Starbucks
Ms. Denness’ evidence was that she told Ms. Cecile all of the things she testified to that
happened over the course of the Friday Shift and the Saturday Shift. She said she also told Ms.
Cecile there had been previous complaints of sexual harassment by Mr. Kondratenko based on
Ms. Thompson saying, “I knew this would happen”. Ms. Denness said she also told Ms. Cecile
that another employee had approached her about Mr. Kondratenko’s inappropriate behaviour
but did not tell her it was Ms. Mayhew. Ms. Denness denied telling Ms. Cecile that other
employees were going to quit because of Mr. Kondratenko or that Ms. Hill and Ms. Ross left
PDK because of him.
Ms. Denness’ evidence was that Ms. Cecile at first seemed upset and agreed that what
Mr. Kondratenko did was not acceptable. She said her impression changed and she came to
believe her complaint would not be taken seriously when Ms. Cecile said she had never heard
of this type of behaviour by Mr. Kondratenko before. Ms. Denness said Ms. Cecile appeared
agitated and started to defend Mr. Kondratenko and question whether she misunderstood him
because of the language barrier.
Ms. Denness’ evidence was that during their conversation, Ms. Cecile told her she had
contacted the Labour Board and that this was a “3‐strikes situation”. Ms. Denness said she
asked if that meant Mr. Kondratenko would have to sexually harass someone three times
before anything would or could be done and Ms. Cecile said her hands were tied.
41
Ms. Denness’ evidence was that before she left Starbuck’s, Ms. Cecile asked her for a
written statement so she could get both sides of the story.
Ms. Denness testified that she felt very angry after her conversation with Ms. Cecile. She
does not believe that Ms. Cecile was unaware of previous complaints of sexual harassment by
Mr. Kondratenko and does not believe this was the first time he sexually harassed someone at
PDK. Ms. Denness believes that Ms. Cecile and PDK’s management, meaning Ms. Thompson
and Mr. Johnson, knowingly put her in a situation where she would be harassed and threatened
by Mr. Kondratenko.
2. Ms. Cecile’s evidence about the meeting at Starbucks
Ms. Cecile testified about the efforts she made to put Ms. Denness at ease when they
arrived at Starbucks. Specifically, she said she offered to get coffee for Ms. Denness and wanted
Ms. Denness to pick the seating so they would be in an area where she could speak freely.
Ms. Cecile’s evidence was that during their conversation, Ms. Denness was vague with
details about what happened and she never got a complete picture in her mind as to what Ms.
Denness was alleging. She said Ms. Denness was not forthcoming about the details and every
time she asked for more details so she could visualize what had happened, Ms. Denness did not
answer and redirected the conversation by saying it did not matter what she said. Ms. Cecile’s
evidence was that she brought a pen and paper to the meeting but only wrote a few things
down because Ms. Denness stopped answering her questions.
Ms. Cecile’s evidence was that during their conversation, Ms. Denness told her that Ms.
Thompson and Mr. Johnson were negligent and irresponsible because they knew of previous
complaints of sexual harassment by Mr. Kondratenko and swept them under the rug. Ms. Cecile
said she was confused by what Ms. Denness was saying because she had never heard of any
previous complaints. Ms. Cecile’s evidence was that Ms. Denness also told her that two female
staff were leaving PDK because of Mr. Kondratenko. She said Ms. Denness did not identify the
female staff by name but they both knew she was talking about Ms. Ross and Ms. Hill because
they were the only two employees who left PDK around that time.
42
Ms. Cecile’s evidence was that Ms. Denness kept telling her she did not need to
investigate her complaint because she had already gone to WorkSafe and the RCMP. Ms. Cecile
said she told Ms. Denness she was still going to investigate her complaint and it made her feel
better to know she had gone to WorkSafe and the RCMP because it meant it would be
thoroughly investigated.
Ms. Cecile’s evidence was that she told Ms. Denness that sexual harassment in the
workplace is never acceptable. She said she shared her own past experiences with sexual
harassment in the workplace and sexual violence so Ms. Denness would feel comfortable
sharing what happened with her. In cross‐examination, Ms. Cecile denied that she tried to
defend Mr. Kondratenko and never said sexual harassment could be excused on the basis of
cultural differences or a language barrier. Ms. Cecile acknowledged that Mr. Kondratenko had
issues with other PDK staff in the past, but no one had ever complained of sexual harassment.
Ms. Cecile testified about those issues and said that anytime she brought an issue to Mr.
Kondratenko’s attention, he did what she asked of him. Ms. Cecile’s evidence was that any
issues about Mr. Kondratenko were solely work‐related and resulting from English not being his
first language, cultural differences regarding such things as how to greet customers, Mr.
Kondratenko’s disciplined personality, and his direct and blunt method of communication that
could be perceived as rude.
Ms. Cecile’s evidence was that she told Ms. Denness she needed to document her
complaint and asked her to provide a written statement. Ms. Cecile said she told Ms. Denness
to take her time preparing the written statement and asked her to include as many details as
possible. Ms. Cecile said she understood that it might take time for Ms. Denness to be able to
share what happened and that is why she told Ms. Denness she would not pursue her for a
written statement. Ms. Cecile said she asked Ms. Denness to provide the written statement
when she was ready and felt comfortable.
Ms. Cecile’s evidence was that she told Ms. Denness she would get a written statements
from Mr. Kondratenko. She said she also told Ms. Denness she would get statements from the
two female staff she said were leaving PDK because of him, which they both knew were Ms. Hill
43
and Ms. Ross. Ms. Cecile said she asked Ms. Denness to give Ms. Hill and Ms. Ross a “heads‐up”
that she would be speaking with them so they would not be blindsided or unprepared. She said
Ms. Denness told her she would not contact Ms. Hill or Ms. Ross because it did not matter. Ms.
Cecile said she told Ms. Denness that after she received her written statement, she would
interview Mr. Poulin because he worked with her and Mr. Kondratenko during the Friday Shift
and Saturday Shift. She said she told Ms. Denness that once she had gathered the written
statements, they would meet again.
Ms. Cecile’s evidence was that she told Ms. Denness she would love to have her come
back to work at PDK and would never allow her to be harmed. Ms. Cecile said she reassured
Ms. Denness that she would never have to work with Mr. Kondratenko again. She said that
after Ms. Denness said she did not want her job back, she told Ms. Denness that if she changed
her mind, her job was there if she wanted it.
Ms. Cecile’s evidence was that sometime during their conversation, Ms. Denness
brought up the “3‐strikes rule” and told her it was ridiculous that Mr. Kondratenko would have
to sexually harass someone three times before anything would be done. Ms. Cecile denied
saying her hands were tied because of the “3‐strikes rule”. She said she told Ms. Denness the
“3‐strikes rule” only applies to task‐related things like not taking out the garbage or doing the
dishes. She said she told Ms. Denness that although bullying and harassment is not acceptable
and would result in immediate termination, a complaint has to first be thoroughly investigated.
Ms. Cecile said they talked about a previous complaint made to the Labour Board against PDK
and she told Ms. Denness it was not a complaint of sexual harassment and had been settled.
She said she told Ms. Denness she implemented the “3‐srtikes rule” after that complaint to the
Labour Board.
Ms. Cecile’s evidence was that she and Ms. Denness were at Starbucks for about an
hour. She said that when they were leaving, she went to hug Ms. Denness but stopped herself
because she did not want Ms. Denness to feel uncomfortable. Ms. Cecile said she grabbed Ms.
Denness’ hand and told her she was sorry for the way she felt and that they would get to the
44
bottom of the situation. She said Ms. Denness seemed nervous when they met but at that
moment she thought Ms. Denness seemed relieved.
Ms. Cecile’s evidence was that after she met with Ms. Denness, she went back to PDK
and spoke with Ms. Thompson and Mr. Johnson again. She said both of them told her they
were not aware of any previous complaints of sexual harassment, whether by Mr. Kondratenko
or anyone else. After that, she went to her office to contemplate the situation and looked up
online how to do a fair investigation. Ms. Cecile said she felt reassured because in addition to
her investigation, independent investigations were being done by WorkSafe and the RCMP.
3. Findings of fact and credibility
Overall, I prefer Ms. Cecile’s evidence about what occurred when she and Ms. Denness
met at Starbucks. I find Ms. Cecile’s evidence is credible and, for the most part, consistent with
the documentary evidence and the witnesses I find to be credible on those points.
That is not to say there are no internal inconsistencies in Ms. Cecile’s evidence or
discrepancies between what she testified to and what she said in her response to the complaint
or to WorkSafe. Specifically, Ms. Cecile’s evidence about what Ms. Denness told her changed
during the course of her testimony. At first Ms. Cecile said Ms. Denness was vague with the
details and she remembered that Ms. Denness only conveyed three or four things, namely that
Mr. Kondratenko asked her several times to go to the basement and took her phone, that other
allegations of sexual harassment by him had been reported to Ms. Thompson and swept under
the rug, and that two employees were leaving PDK because of him. Over the course of her
testimony, Ms. Cecile remembered that Ms. Denness shared other details, including that Mr.
Kondratenko asked about her Halloween costume and refused to serve “faggots”.
In cross‐examination, it was put to Ms. Cecile that in her statement she provided to
WorkSafe in around mid‐December 2017 she said Ms. Denness told her significantly more
details than what she had testified to in her direct examination. Specifically, in her statement to
WorkSafe, Ms. Cecile said Ms. Denness told her that Mr. Kondratenko grabbed her phone on
multiple occasions and asked to see naked photos of her. She said Ms. Denness told her that
45
Mr. Kondratenko asked her to go downstairs four or five times. She said Ms. Denness told her
that Mr. Kondratenko asked if she walked alone at night, asked about her roommates, called
her a “slut”, used the words “retarded” and said he refused to serve gay people.
In cross‐examination, it was also put to Ms. Cecile that she said in her response to the
complaint that Ms. Denness gave her more details than what she testified to in her direct
examination. Ms. Cecile agreed that what she said in her response might be more accurate
because she wrote it within a few months of Ms. Denness filing this complaint. She admitted it
was possible that Ms. Denness told her more that day than what she testified to and she could
be confusing what she heard and when she heard it because so many things have been said and
written about Ms. Denness’ complaint.
These are not minor inconsistencies in Ms. Cecile’s evidence about what Ms. Denness
told her about Mr. Kondratenko’s behaviour when they met at Starbucks. However, I find Ms.
Cecile’s explanations for the inconsistencies and discrepancies in her evidence or between her
testimony and the documentary evidence to be sincere and not deliberate attempts to be
untruthful or deceptive. Further, I find Ms. Cecile’s evidence that Ms. Denness did not report
threatening, physically aggressive or violent behaviour by Mr. Kondratenko when they met at
Starbucks to be credible. I find Ms. Cecile to be sincere when she said that her impression was
Ms. Denness was reporting sexually inappropriate conduct and not physically aggressive,
violent or threatening behaviour.
I also find Ms. Cecile to be sincere when she said she met with Ms. Denness to find out
the truth and did not go there to discredit her or treat her allegations as untrue. I find Ms.
Cecile’s evidence that she would not tolerate sexual harassment in the workplace or excuse
sexual harassment on the grounds of cultural differences or a language barrier to be credible. In
my view, Ms. Cecile’s testimony about her own experiences with sexual harassment in the
workplace and sexual violence and her efforts to put Ms. Denness at ease and understand
where she might be coming from was emotional, compelling and genuine.
46
I find Ms. Cecile’s evidence that she was surprised by what Ms. Denness said about
previous complaints to be credible. While I accept Ms. Denness’ evidence that Ms. Cecile asked
if the situation might be the result of Mr. Kondratenko’s language barrier, I do not find that her
question meant she was not taking Ms. Denness’ complaint seriously.
With respect to the “3‐strikes rule”, I prefer Ms. Cecile’s evidence that regardless of who
brought it up, she did not tell Ms. Denness an employee had to sexually harass someone three
times before anything would be done and that her hands were tied. Ms. Cecile’s evidence
about the “3‐strikes rule” is not only credible, it is consistent with the evidence of PDK staff
who testified about their understanding that it only applied to task‐related issues, not sexual
harassment.
Lastly, I prefer Ms. Cecile’s evidence that Ms. Denness told her two female staff, not
identified but understood to be Ms. Hill and Ms. Thirza, were leaving because of sexual
harassment by Mr. Kondratenko. It does not make sense that Ms. Cecile would want
statements specifically from Ms. Hill and Ms. Ross if Ms. Denness had not told her they were
leaving because of Mr. Kondratenko.
Although I prefer Ms. Cecile’s evidence over that of Ms. Denness regarding the meeting
at Starbucks, that does not mean I find Ms. Denness did not walk away from that meeting
genuinely believing that her complaint would not be taken seriously. All I am saying is that on
the evidence before me, the basis of Ms. Denness’ belief is not, in fact, true.
F. November 5 to December 7, 2017
What follows is a summary of what occurred in the weeks after Ms. Denness met with
Ms. Cecile at Starbucks.
In the two weeks after the meeting at Starbucks, Ms. Cecile made efforts to investigate
Ms. Denness’ complaint of sexual harassment. Her evidence was that she met with Mr.
Kondratenko, gathered written statements, and interviewed all of PDK’s staff to find out if they
had any issues with Mr. Kondratenko or any other co‐worker. Ms. Cecile said it did not matter if
47
it was a minor issue, she just wanted to know if, as Ms. Denness told her, things were
happening at PDK that she did not know about.
Specifically, Ms. Cecile met with Mr. Kondratenko and Ms. Thompson the day after she
met with Ms. Denness at Starbucks. Ms. Cecile’s evidence was that she only told Mr.
Kondratenko that a complaint of sexual harassment had been made against him. She said she
asked Mr. Kondratenko for a written statement from him detailing what happened during the
Friday Shift and the Saturday Shift while it was still fresh in his mind.
There is conflicting evidence on whether Ms. Cecile told Mr. Kondratenko when they
met that she would get statements from Ms. Ross and Ms. Hill because it had been alleged that
they were leaving because of him. Mr. Kondratenko’s evidence was vague on this point but
indicates that by the time he met with Ms. Cecile on November 5, he was already aware that
Ms. Denness was alleging that Ms. Ross and Ms. Hill were leaving because of him. Regardless of
what Mr. Kondratenko knew when and from whom, he obtained letters from Ms. Hill and Ms.
Ross stating they were leaving PDK for unrelated reasons and they never had any issues with
him when they worked together. It is not clear from the evidence when Mr. Kondratenko
provided those letters to Ms. Cecile but based on what Mr. Kondratenko subsequently told the
RCMP Officer, it appears they were sent to her within a few days after they met on November
5.
Ms. Cecile’s evidence was that around the time she was interviewing all her staff, she
spoke with Mr. Poulin and asked him if he noticed anything amiss during the Friday Shift or the
Saturday Shift. Ms. Cecile did not take notes of her conversation with Mr. Poulin and only
obtained a written account of his recollections after the Letter to the Editor was published a
few weeks later. In his written account and testimony at the hearing, Mr. Poulin said he did not
notice anything out of the ordinary during either shift. He remembered that after PDK closed on
the Saturday, Mr. Kondratenko left and he noticed that Ms. Denness was still there. He said Ms.
Denness came out of the bathroom and was dressed in her Halloween costume. He said they
briefly chatted and Ms. Denness left. Mr. Poulin said he finished his double check and left a few
minutes later. I pause here to note that with respect to Mr. Poulin’s evidence, I accept that Mr.
48
Kondratenko could have sexually harassed Ms. Denness without him observing or hearing
anything because he worked in the kitchen. I also accept that Ms. Denness might have been
afraid of Mr. Kondratenko without Mr. Poulin knowing that she felt that way.
On November 7, 2017, the RCMP Officer interviewed Mr. Kondratenko at his home.
According to the RCMP’s records, the RCMP Officer told Mr. Kondratenko to avoid contacting
Ms. Denness and he said he did not wish there to be any trouble and he had no intention of
contacting her. The RCMP’s records state that after speaking with Mr. Kondratenko, the RCMP
Officer contacted Ms. Denness and told her there were clearly two versions of the events that
transpired and the matter would not be pursued any further.
It is not clear from the evidence exactly when Ms. Denness wrote the Letter to the
Editor. In her testimony, Ms. Denness agreed it was written and sent to the Kamloops
newspaper within three days of her meeting with Ms. Cecile at Starbucks.
It is not clear from the evidence exactly when Mr. Kondratenko provided Ms. Cecile with
his written statement of what occurred during the Friday Shift and the Saturday Shift. As it
refers to Mr. Kondratenko’s interview with the RCMP Officer, it must have been sometime after
November 7, 2017. Mr. Kondratenko’s evidence was that he prepared such a detailed
statement because he learned in his business law class that it was good practice for a manager
to write everything down.
Ms. Cecile’s evidence was that by mid‐November, she had met with all her staff
individually to find out if anyone was uncomfortable working with anyone else or had any
concerns about Ms. Thompson and Mr. Johnson. It was during these meetings that Ms. Cecile
spoke with Ms. Mayhew, who testified that she told Ms. Cecile that Mr. Kondratenko had made
sexually inappropriate comments to her when they worked together. Ms. Cecile’s evidence was
that Ms. Mayhew only reported that on one occasion Mr. Kondratenko swore and she
sometimes felt Mr. Kondratenko was yelling at her and telling her to hurry up at the end of
their shift.
49
It is difficult to reconcile Ms. Mayhew’s evidence with Ms. Cecile’s given I find both to
be, overall, credible witnesses. For the purposes of deciding the issues raised in the complaint,
it is not necessary for me to make findings as to what exactly Ms. Mayhew told Ms. Cecile about
her interactions with Mr. Kondratenko and whether Ms. Cecile responded appropriately. The
only relevant finding of fact I make from their conversation is that it was the first time Ms.
Mayhew ever raised any issues she had with Mr. Kondratenko, of a sexual nature or otherwise,
with Ms. Cecile or anyone else in PDK’s management.
Ms. Cecile’s evidence is that during her individual meetings with staff, no one else at
PDK expressed any concerns or issues working with Mr. Kondratenko. There is no evidence to
dispute that so I accept Ms. Cecile’s evidence on that point.
On December 7, 2017, the Kamloops newspaper published the Letter to the Editor
alongside the hashtag #MeToo. The newspaper anonymized the Letter to the Editor so it did
not identify the author by name or gender, the person the author accused of committing sexual
violence, or the business at which the alleged sexual violence took place.
Ms. Denness shared the Letter to the Editor to her personal Instagram and Facebook
accounts on or around the day it was published. Ms. Denness chose to reveal herself as the
author and make public that the Letter to the Editor was about her experiences at PDK. She did
not name Mr. Kondratenko as the person who allegedly committed sexual violence against her.
When Ms. Denness posted the Letter to the Editor to her personal social media accounts, she
wrote:
“I knew this would happen.” Those were the words of the management at PDK
Café in Kamloops when I told them I was being sexually harassed. But this story
isn’t about the asshole who told me “You’d look sexy on your hands and knees” or
“I know where you park on campus” or says “I’d kill all those fucking faggots”. It’s
about how excruciatingly difficult people make it for women to disclose sexual
violence. It’s about how the bodies of authority failed me, put me in danger and
tried to take the easy way out by trying to silence the victim.
If you know me, you know I never EVER go quietly. I can’t be ignored and swept
under the rug. Please feel free to share this post and maybe consider switching
coffee shops … Link to the Kamloops Now story is in my bio and on my FB!!
50
Ms. Denness was cross‐examined extensively on the contents of the Letter to the Editor.
Based on her evidence, I find the Letter to the Editor contained numerous overstatements,
misstatements and claims that, based on the evidence before me, are demonstrably false.
Specifically, Ms. Denness said in the Letter to the Editor that the manager knew Mr.
Kondratenko sexually harassed others and that other PDK employees quit because of him. In
cross‐examination, Ms. Denness admitted that no one told her they were leaving PDK because
of Mr. Kondratenko and that was based on an assumption she made after Ms. Thompson said,
“I knew this would happen”. In the Letter to the Editor, Ms. Denness said not a single employee
would take one of her upcoming shifts with Mr. Kondratenko. In cross‐examination, Ms.
Denness admitted that was a falsehood because, in fact, Ms. Ross took two of her upcoming
shifts. In the Letter to the Editor, Ms. Denness said other PDK employees went so far as to tell
her they would not work with him. In cross‐examination, Ms. Denness acknowledged that no
one ever told her that. In the Letter to the Editor, Ms. Denness said she was forced to quit PDK
but by her own admission, she chose not to stay at PDK regardless of whether Mr. Kondratenko
was there or not. Lastly, in the Letter to the Editor, Ms. Denness said she was told this was a “3‐
strikes” situation but as explained above, I find that Ms. Denness was not told someone would
have to sexually harass someone three times before anything would or could be done.
On January 3, 2018, Ms. Denness filed her complaint with the Tribunal.
On January 23, 2018, WorkSafe denied Ms. Denness’ claim of workplace bullying and
harassment. According to WorkSafe’s records, during its investigation interviews were done
with Ms. Denness, Ms. Cecile and Ms. Thompson. In addition, written statements were
provided by Ms. Cecile, and WorkSafe requested and reviewed the RCMP’s file, including the
2017 RCMP Statement.
In April 2018, Ms. Denness received the Instagram Threat that she believes was sent by
Mr. Kondratenko. At the hearing and in her closing submission, Ms. Denness confirmed that the
Instagram Threat is not part of her complaint.
51
The Respondents presented a significant amount of evidence to show that Mr.
Kondratenko could not possibly have sent the Instagram Threat. They also presented evidence
about what happened to Mr. Kondratenko after Ms. Denness received the Instagram Threat. I
make no findings of fact about any of this evidence as, again, it does not help me address the
issues I must decide. The only evidence about the Instagram Threat that I took into
consideration relates to the Respondents’ application for costs dealt with below.
G. Application of the law to the facts
Under the Code, an employer is obligated to reasonably and appropriately respond to
complaints of discrimination: Jamal v. TransLink Security Management and another (No. 2),
2020 BCHRT 146 at para. 106. An employer’s obligation under the Code includes a duty to
investigate complaints of harassment, “regardless of whether the underlying conduct subject to
the investigation is found to be discriminatory: Employee v. The University and Another (No. 2),
2020 BCHRT 12 at para. 272; see also Beharrell v. EVL Nursery, 2018 BCHRT 62 at para. 21. As
noted by the Tribunal in Jamal:
Some factors the Tribunal may consider are whether the employer and persons
charged with addressing discrimination have a proper understanding of
discrimination, whether the employer treated the allegations seriously and acted
“sensitively”, and whether the complaint was resolved in a manner that ensured
a healthy work environment: at para. 106.
In The Employee, the Tribunal said at para. 273:
The failure to investigate a complaint of discrimination can independently cause
harm, and therefore, can independently be a discriminatory breach under the
Code. It is for these reasons that a complaint of failure to respond can proceed on
its own merits even if the underlying complaint which gave rise to the duty is found
to be unproven. An employer’s liability flows from its own obligations to respond
appropriately to complaints that arise between its employees. An employer has
an obligation to have a discrimination‐free work environment. In general, this
requires that appropriate policies and procedures are in place, and that an
employer respond appropriately to complaints, whether or not a complainant is
ultimately able to establish the underlying allegations of inappropriate conduct.
52
The standard imposed on employers is reasonableness, not correctness or perfection.
Whether an employer has satisfied its duty to appropriately and reasonably respond to a
complaint of harassment by an employee depends on the unique facts of each case: Beharrell
at para. 21.
In Beharrell, the Tribunal cited with approval three criteria set out in Laskowska v.
Marineland of Canada Inc., 2005 HRTO 30 [Laskowska] at para. 53 that should be considered in
these types of cases: at para. 21. I find those criteria to be helpful as a means of measuring the
reasonableness of the actions that PDK and Ms. Cecile took after Ms. Denness first reported
sexual harassment by Mr. Kondratenko on October 30, 2017. In arriving at my conclusion, I am
guided by the principles that the three criteria are of a general nature and:
… their application must retain some flexibility to take into account the unique
facts of each case. … The employer need not satisfy each element in every case in
order to be judged to have acted reasonably, although that would be the
exception rather than the norm. One must look at each element individually and
then in the aggregate before passing judgment on whether the employer acted
reasonably: Laskowska at paras. 59‐60.
1. Criterion #1 – Awareness of issues of discrimination/harassment
Relevant factors under this criterion are whether there was a suitable anti‐
discrimination/harassment policy and a proper complaint mechanism in place, and whether
there was adequate training given to management and employees.
It is not in dispute that at the relevant time, PDK did not have a written anti‐
discrimination/sexual harassment policy in place. However, based on Ms. Cecile’s evidence and
the testimony of former PDK employees on that point, I find that in general, Ms. Cecile and
PDK’s “management”, in which category I include both Ms. Thompson and Mr. Johnson, were
available and accessible. I also find that in general, staff knew they could report complaints of
discrimination, bullying or harassment directly to them. The existence of this unwritten policy
and understanding of its existence by staff is borne out by the fact that Ms. Denness
53
approached Ms. Thompson and sent messages to Ms. Cecile to report that she had been
sexually harassed.
At the relevant time, PDK’s unwritten policy on changing shifts was that if the schedule
was out, staff were responsible for finding coverage themselves if they could not work a shift
and it was only if they could not find coverage that management would assist if they could. In
the case of a complaint of sexual harassment, the unwritten policy was that the accuser and the
person against whom the complaint was made would not have to work together and the
accuser’s shifts would not be changed because that could be interpreted as punishment for
coming forward.
It is not in dispute that Ms. Thompson did not have authority to change the schedule
once it had been made. The only thing that she could do was assist an employee in finding
coverage if they wanted to change their schedule after it had been posted. The only people
who had authority to change a schedule once it was made were Ms. Cecile and Mr. Johnson.
PDK’s unwritten policy on changing shifts after a complaint of sexual harassment has
been made was not followed in this case. Whether Ms. Denness used the words “sexual
harassment” or not when she first reported her concerns about Mr. Kondratenko to Ms.
Thompson after the Saturday Shift, it was, or should have been, clear that she was making a
complaint of sexual harassment. Despite that, Ms. Thompson told Ms. Denness she was
responsible for changing her upcoming shifts with Mr. Kondratenko because the schedule had
already been made. As a result, Ms. Denness made efforts on her own and was only able to find
coverage for two of her three upcoming shifts with Mr. Kondratenko. When Ms. Denness told
Ms. Thompson she had not been able to find anyone to cover the November 4 shift, Ms.
Thompson offered to assist her but never told her about PDK’s policy on shift changes in the
context of an allegation of sexual harassment. Nor did Ms. Thompson tell Mr. Johnson later that
evening that Ms. Denness made a complaint of sexual harassment so he could intervene and
change Mr. Kondratenko’s shifts.
54
I also find that although Ms. Denness said in her messages to Ms. Thompson that she
would work the November 4 shift with Mr. Kondratenko, that did not mean she wanted to or
she should have been expected to. Rather, her messages saying she was willing to work the
November 4 shift because it was too short notice to change and that she was willing to work
fewer hours if it meant not working with Mr. Kondratenko appear to have been accepted at
face value. It does not appear that any consideration was given to the reasons why Ms. Denness
might feel she had to say she would work the November 4 or was okay with working fewer
hours if it meant she did not have to work with Mr. Kondratenko.
Based on the way in which Ms. Denness’ complaint of sexual harassment was initially
handled by Ms. Thompson, I find there was a lack of training or confusion on the part of PDK’s
employees about the shift change policy in situations where there has been a complaint of
sexual harassment. I also find, however, that this deficiency was remedied when Mr. Johnson
spoke with Ms. Denness on her last day at PDK and when Ms. Cecile met with Ms. Denness at
Starbucks. Both Mr. Johnson and Ms. Cecile told Ms. Denness she would not have to work with
Mr. Kondratenko again if she chose to stay.
2. Criterion #2 – Post‐complaint: Seriousness, promptness, taking care of its
employee, investigation and action
This criterion considers actions an employer took after an internal complaint of sexual
harassment has been made. Relevant factors are whether the employer treated the complaint
seriously, dealt with the matter promptly and sensitively, and reasonably investigated and
acted in response to the complaint.
I appreciate that Ms. Denness does not believe her complaint was taken seriously, dealt
with promptly and sensitively, or reasonably responded to. However, based on my assessment
of the evidence, I find this criterion was met.
After she initially reported sexual harassment to Ms. Thompson, Ms. Denness was told
that Mr. Johnson was going to speak with her. Mr. Johnson took the first possible opportunity
55
to speak with Ms. Denness about her complaint and I accept his evidence that he told Ms.
Denness her complaint would be taken seriously.
In her closing submission, Ms. Denness argues that Ms. Cecile should have contacted
her sooner after she first reported sexual harassment. I would agree with that assertion if Ms.
Cecile had received Ms. Denness’ messages and waited almost a week to respond. In my view,
that would demonstrate a failure to take a complaint of sexual harassment seriously and fulfill
an employer’s obligation to respond to and investigate complaints. However, Ms. Cecile did
respond to Ms. Denness as soon as possible after she returned from vacation and arranged to
meet with her the next day. Ms. Cecile’s first reaction to learning of Ms. Denness complaint was
to tell her she was horrified to hear she had been sexually harassed, that it was not acceptable
and it would be dealt with. That indicates Ms. Cecile dealt with Ms. Denness’ complaint
promptly after she first became aware of it.
As noted above, I find Ms. Cecile handled Ms. Denness’ complaint with sensitivity as
evidenced by her response to Ms. Denness’ Facebook messages and the measures she took to
put Ms. Denness at ease when they met at Starbucks.
Lastly, I find Ms. Cecile made reasonable efforts to respond to and investigate Ms.
Denness’ complaint. In her testimony, Ms. Cecile was candid in her acknowledgment that there
was room for criticism in the way in which she conducted her investigation of Ms. Denness’
complaint. She said she had never investigated that type of complaint, she did not have the
means to hire an independent investigator and she did not believe that was required. Ms.
Cecile said she was waiting for a written statement from Ms. Denness and she did not want to
get written statements from potential witnesses until she had a solid statement from Ms.
Denness so she would know what the allegations were. Ms. Cecile said she made a judgment
call on how to investigate Ms. Denness’ complaint and she felt confident the matter was going
to be investigated because in addition to her investigation, WorkSafe and the RCMP were also
conducting investigations.
56
In the circumstances, I find that while mistakes were made, specifically regarding the
lack of documentation, I do not agree with Ms. Denness that this means her complaint was not
taken seriously or properly investigated. In arriving at my finding, I took into consideration that
PDK was a small business and Ms. Cecile was a sole proprietor who did not have the resources
to retain an independent investigator. I find Ms. Cecile’s evidence that she made efforts to find
out how to conduct a proper investigation and the fact that she cooperated with WorkSafe’s
investigation demonstrate her intention to fulfill her obligations as an employer. In the
particular circumstances of this case, I find that any deficiencies in Ms. Cecile’s investigation
were not driven by a desire to discredit Ms. Denness or sweep her allegations under the rug.
3. Criterion #3 – Resolution of the complaint, including providing the complainant
with a healthy work environment and communication
Relevant factors under this criterion are whether the employer provided a reasonable
resolution in the circumstances, whether the employer provided a healthy and discrimination‐
free work environment if the complainant chose to return to work, and whether the employer
communicated its findings and actions to the complainant.
In this case, a resolution of Ms. Denness’ complaint was complicated by her decision to
leave PDK regardless of whether Mr. Kondratenko was there or not, and events that occurred
after Ms. Denness made her allegations public.
As noted above, I find that Mr. Johnson and Ms. Cecile both encouraged Ms. Denness
not to leave PDK. I am not suggesting in any way that Ms. Denness should have chosen to stay
at PDK if she was not comfortable working there or did not feel safe. I am only saying that, in
my view, her leaving PDK was not the result of a failure on her employer’s part to take
reasonable steps to respond to her complaint.
It is not in dispute that after the meeting at Starbucks, Ms. Cecile never followed up with
Ms. Denness to get a written statement from her about what happened. Ms. Cecile’s evidence
was that she was giving Ms. Denness time to provide her written statement but after the Letter
57
to the Editor was published, she did not trust Ms. Denness and was not going to follow up with
her about the statement.
In her closing submission, Ms. Denness says Ms. Cecile should have followed up with her
and that in the circumstances, it was entirely understandable why she did not provide Ms.
Cecile with a written statement. I agree it is understandable why Ms. Denness did not follow up
with Ms. Cecile given her belief that her complaint was not taken seriously. However, in the
circumstances I find it is equally understandable why Ms. Cecile did not follow up with Ms.
Denness for a written statement after the Letter to the Editor became public and Ms. Denness
accused her of knowingly putting her in danger. In my view, the fact that Ms. Cecile did not
follow up with Ms. Denness for a written statement is not evidence that she did not take Ms.
Denness’ complaint seriously.
Ms. Cecile’s evidence, corroborated by other witnesses who worked at PDK, was that
she worked with WorkSafe during or after its investigation of Ms. Denness’ claim to develop
and implement a written anti‐bullying/harassment policy. That evidence demonstrates Ms.
Cecile’s commitment to providing a healthy and discrimination‐free work environment.
4. Conclusion
Taking all the unique circumstances of this case into consideration, I find that Ms. Cecile
and PDK fulfilled their obligations under the Code to reasonably respond to and investigate Ms.
Denness’ complaint of sexual harassment. When looking at the chronology of events, Ms.
Denness’ complaint was initially reported to Ms. Thompson on October 30, 2017. She spoke
with Mr. Johnson the next day but by that time had already decided to quit. When Ms. Cecile
returned from vacation three days later, she immediately responded to Ms. Denness’ messages
and met with her the next day. I understand that from Ms. Denness’ perspective the situation
was not handled the way she would have liked it to be, but I find it was a reasonable and timely
response to her complaint.
For the reasons set out above, I find Ms. Denness’ complaint against Ms. Cecile and PDK
is not justified.
58
IX APPLICATION FOR COSTS
The Respondents apply for costs against Ms. Denness on a number of grounds relating
to some of her allegations against Mr. Kondratenko and events that took place before the
hearing started. Specifically, the Respondents seek costs against Ms. Denness, payable to them
and to the Tribunal, on the grounds that Ms. Denness, either on her own or through Mr.
Bharmal, breached the Tribunal’s Rules of Practice and Procedure [Rules] and used the
Tribunal’s process to smear Mr. Kondratenko’s character by alleging he committed criminal acts
and is a racist.
The Respondents’ application regarding breach of the Rules arises out of an email that
Mr. Bharmal sent to the Tribunal but not to the Respondents about the Instagram Threat. As a
result of that email, security measures were put in place by the Tribunal without giving the
Respondents an opportunity to respond and make submissions as to why they were not needed
and the effect of those measures on the fairness of the hearing to Mr. Kondratenko. The
Respondents do not accuse Mr. Bharmal of any deliberate wrongdoing or allege he was acting
with malice or in bad faith. Rather, they say Mr. Bharmal was the victim of Ms. Denness’
deception and she cannot shield herself from liability because he was an innocent participant in
her ongoing efforts to cause as much harm to the Respondents as she can.
Ms. Denness submits that costs are not warranted in this case because the Tribunal
does not award costs against an unsuccessful complainant even in contentious cases where
competing and irreconcilable versions are presented and one party’s evidence is preferred over
another. She submits this is not one of those circumstances where the Tribunal has awarded
costs against a party for improper conduct during the proceeding or making a complaint the
complainant knows the alleged facts are not true.
Section 37(4) of the Code gives the Tribunal discretion to award costs against a party
who has engaged in improper conduct during the course of the complaint that has had a
significant impact on the integrity of the Tribunal’s process or that had a significant prejudicial
impact on another party: Bedry v. Raincity Athletics and another (No. 2), 2019 BCHRT 210
59
[Bedry] at para. 134. A costs award is intended to be punitive and to have a deterrent effect to
discourage similar types of conduct in the future: Bedry at para. 136.
As I said at the outset of this decision, this case was not just about what happened when
Ms. Denness and Mr. Kondratenko worked two shifts together and she reported sexual
harassment to her employer. The controversy that erupted after Ms. Denness identified herself
as the author of the Letter to the Editor and the circumstances surrounding the Instagram
Threat permeated through the evidence the parties presented at the hearing. At the outset of
the hearing, I told the parties I would decide the issues based solely on the evidence relevant to
what occurred during the Friday Shift and the Saturday Shift and how PDK/Ms. Cecile
responded to Ms. Denness’ complaint of harassment and I have done so.
The Respondents encourage me to find that a cost award is warranted because not only
has Ms. Denness abused the Tribunal’s process, she has used other proceedings and resources
to continue her baseless attacks against Mr. Kondratenko and Ms. Cecile. The Respondents say
Ms. Denness’ has acted with malice and that her false, frivolous and vexatious claims destroyed
Ms. Cecile’s business and ruined lives.
I agree with the Respondents that making an ex parte request to the Tribunal should
only be done when absolutely necessary. I also agree that requests for security measures that
might have a prejudicial effect on a party should, unless necessary, allow for that party to
respond to such a request before a decision is made. I understand and acknowledge Mr.
Kondratenko’s concerns that the security measures in place at the hearing could have a
prejudicial impact on him and put him at a disadvantage from the start. However, I can assure
him that the hearing before the Tribunal was fair and the credibility and reliability of his
evidence was not impacted by what occurred before the hearing started and the security
measures that were put in place during the hearing.
I agree with Ms. Denness that a cost award, particularly in a complaint alleging sexual
harassment, may have a chilling effect and create greater obstacles in making a complaint if a
complainant knows they might face a cost award if unsuccessful. While I find Ms. Denness’
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complaint is not justified, that does not mean I find the entirety of her complaint was based on
allegations she knows are not true.
I also agree that this is not a case about whether Ms. Denness caused PDK’s bankruptcy.
Lastly, I agree that any alleged improper conduct by Ms. Denness in other proceedings can be
dealt with in those proceedings and should not be subject to sanctions in the Tribunal’s
process.
For the reasons set out above, I decline to exercise my discretion and award costs
against Ms. Denness.
X CONCLUSION
For the reasons set out above, Ms. Denness’ complaint against the Respondents is not
justified and it is dismissed in its entirety under s. 37(1) of the Code.
For the reasons set out above, Ms. Cecile’s application for costs against Ms. Denness is
denied.
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