Mason v. Peel Heating Service Experts, 2012 HRTO 1865 (CanLII)
| Date: | 2012-10-01 |
| Docket: | 2009-03767-I |
| Citation: | Mason v. Peel Heating Service Experts, 2012 HRTO 1865 (CanLII), <http://canlii.ca/t/ft1bx> retrieved on 2015-06-23 |
- Cited by 1 document
HUMAN RIGHTS TRIBUNAL OF ONTARIO
______________________________________________________________________
B E T W E E N:
David Mason
Applicant
-and-
Peel Heating Service
Experts
Respondent
______________________________________________________________________
DECISION
______________________________________________________________________
Adjudicator: Alison Renton
Date: October 1, 2012
File Number: 2009-03767-I
Citation: 2012 HRTO 1865
Indexed as: Mason v. Peel Heating Service Experts
______________________________________________________________________
APPEARANCES
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David Mason,
Applicant
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Self-represented
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Peel Heating Service
Experts, Respondent
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Gita Anand, Counsel
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Introduction
[1]
This is an Application filed on October 14, 2009 under
section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c.
H.19, as amended (the “Code”), alleging discrimination
with respect to employment because of ancestry, age, and record of offences.
The respondent filed a Response denying the allegations. The applicant did not
file a Reply.
[2]
A Decision dated November 15, 2010, 2010 HRTO 2261 (CanLII)
(“the 2010 Decision”), was issued by the Tribunal dismissing the Application as
abandoned. The applicant had failed to attend a scheduled mediation and failed
to respond to the Tribunal’s correspondence asking him to advise of his
intentions with respect to his Application and warning him that if he did not
respond, the Tribunal would deem the Application abandoned.
[3]
Subsequent to the 2010 Decision, the applicant filed
a Request for Reconsideration (“the Request”) requesting that his Application
proceed and the respondent filed a Response to the Request for Order During
Proceedings. Case Assessment Directions were issued by the Tribunal, dated
March 7 and June 6, 2011. Ultimately, the applicant’s Request was granted and
the Application was permitted to proceed. See 2011 HRTO 1530 (CanLII).
[4]
A Notice of Confirmation of Hearing, dated November
23, 2011, was issued by the Tribunal scheduling a hearing for May 8, 2012. A
Case Assessment Direction, dated April 10, 2012 (“the April CAD”) was issued by
the Tribunal when the applicant failed to comply with his disclosure
obligations as required by Rules 16 and 17 of the Tribunal’s Rules of
Procedure. In addition to requiring immediate compliance with his disclosure
obligations, at para. 4, the Tribunal stated:
The Tribunal notes that in the Application, the applicant claims to
have lost wages as a result of his allegations against the respondent.
Accordingly, the Tribunal would expect that the applicant file documentation
supporting his claim for loss of wages. Further, even if the applicant does not
have any documentation upon which he intends to rely, given his allegations,
the Tribunal would expect that he will testify at the May 8, 2012 hearing.
Accordingly, the applicant should be advising the Tribunal, copying the
respondent, that he intends to be a witness and setting out a statement of his
anticipated evidence.
[5]
A further Case Assessment Direction, dated May 4,
2012, was issued by the Tribunal. In it, the Tribunal noted that the applicant
had emailed the Tribunal advising that he intended to testify as a witness, and
briefly outlining his anticipated evidence, and referring to a document the
respondent submitted from Service Canada, but failing to provide a copy. The
respondent also wrote to the Tribunal requesting that the Application be
dismissed because the applicant had failed to comply with his disclosure
obligations, or alternatively that the applicant be prevented from relying upon
new claims and evidence pertaining to “creed”.
[6]
The Tribunal noted that the applicant had not
technically complied with the Tribunal’s directions, but he had established
contact with the Tribunal and the respondent, indicated that he intended to
testify and had provided a brief outline of his evidence. He was reminded about
disclosing documentation in advance of the hearing and warned that he may not
be able to rely upon such documentation if produced at the hearing.
[7]
At the hearing, the Tribunal heard evidence from the
applicant and, for the respondent, Dennis Good, human resources director, Steve
Tomalin, general manager, and Wayne Fagan, field supervisor. During the
applicant’s final submissions, and after reading the definition of “record of
offences” from section 10 of the Code, the applicant
stated that he was not pursuing the ground of “record of offences”.
Accordingly, given that the applicant withdrew this claim, despite hearing
evidence pertaining to allegations about the applicant being called “a
criminal” and the respondent’s practices pertaining to background checks, I am
not including any evidence pertaining to this Code ground in this
Decision.
[8]
Further, given the confusion about who allegedly made
discriminatory comments to the applicant, I have referred to Mr. Steve Tomalin
and Mr. Wayne Fagan by their first names in setting out the applicant’s
evidence as that is how he referred to them during the hearing.
brief conclusion
[9]
For the reasons set out below, I have determined that
the applicant has not met his onus to establish on a balance of probabilities
that he was discriminated against contrary to the Code and accordingly
the Application is dismissed.
the evidence
[10]
The respondent is a business style of Service
Experts, a division of Lennox Canada Inc. Lennox is a HVAC company which
provides installation and service for residential heating, air-conditioning,
ventilation and refrigeration equipment. The respondent had posted a job ad on
Workopolis for multiple installation and service technician positions located
for their Cambridge, Greater Toronto Area, Kitchener, and St. Catharines
locations. A G2 license and 313D certificate of qualification was required for the
service technician position, the position for which the applicant applied. The
applicant was invited to an interview that took place on October 6, 2009 at approximately
8:00 am. The alleged discrimination took place during the interview.
[11]
On his Application form, the applicant claimed that “Wayne”
called him for a job interview and shortly after meeting with Wayne, he met
with “Wayne’s” supervisor, “Steve”. During his examination-in-chief, the
applicant did not testify about who called him for the interview, or with whom
he first met during the interview.
[12]
The applicant testified during his cross-examination that
he was taken into a room that he described as a storage room, which was
cluttered and which contained broken office equipment. He testified during
examination-in-chief that the interview lasted less than 10 minutes and was
very unprofessional and “the 2 interviewers were going in and out of the room
like they had no time for me”. There were no work related questions, he
testified during his examination-in-chief, he was not asked about his work
experiences, but he was asked for references, and he was asked how much he
wanted as a salary.
[13]
During his examination-in-chief, the applicant
testified that the word “Jewish” came up at the end of the interview and he was
told “I don’t know that we can hire you people,” “you don’t fit our company
profile” and “you look kind of old or something in that manner”. The Tribunal
asked the applicant who made the alleged comments, to which the applicant
responded he believed it was “Wayne”. He testified that “Wayne” said “you look
kind of old” or “something in that manner” but noted that it may not have been
those exact words but words to that effect. Further, he testified that “Wayne”
told him, “your appearance does not fit our profile”.
[14]
In response to a question from the Tribunal about the
identity of “he” on his Application form in the allegation, “… after briefly speaking
with [Wayne] at 8:00 am in the morning I was introduced to his supervisor
Steve. Right away he was abusive to me”, the applicant said that Steve was the
younger man and that Wayne made the abusive comments. The applicant clarified
that Steve was hardly in the interview room and that Steve did not make the
comments to him.
[15]
During his cross-examination, the applicant was asked
to identify which individual was “Wayne” and which was “Steve” as both were
present, at this point, in the hearing room. The applicant indicated that he
was not sure, but thought that “Wayne” was the older of the two. Later on, in
response to further questions by the respondent’s counsel, he believed that
Wayne was “the younger person” and testified that he was not 100 per cent sure.
He testified that he met them for less than 10 minutes, three years before.
Further in his cross-examination, the applicant testified that “it was the
younger man who made the comments and I do recall distinctly that the other
person was there for a few minutes and didn’t make the comments”.
[16]
The applicant testified, during his
cross-examination, that he did not meet with Steve first, but “believed” it was
Wayne who showed him into a small cluttered room, containing broken office
furniture, which looked like a storage room. He testified that Wayne spoke with
him for about a minute or so. The applicant did not remember Wayne saying
anything more than “we’re Lennox” and described it as a service company. Wayne
then got Steve. Wayne, the applicant testified, talked for 3 to 4 minutes and
seemed to “profile” the applicant during these few minutes. The applicant
alleges that Wayne made a statement during this time, claiming “he used the
word Jewish and me”. He could not exactly recall the statement, but the applicant
knew that it was used.
[17]
Further, the applicant testified during his
cross-examination, Wayne said “your appearance doesn’t quite fit our profile
and you look kind of old”. Later during his cross-examination, and in response
to being asked if anyone asked his age, the applicant stated no one asked his
age, but rather that they made assumptions.
[18]
Wayne, the applicant alleged during
cross-examination, handed the applicant a note with his email address on it so
that the applicant could email his references to him. Before handing him the
note, the applicant testified that Wayne told him “I’m not sure if we can hire
you people without references and we’re Lennox and we can’t hire just anybody”.
There were, the applicant testified, no questions about what he did in other
jobs, or past working experience, but they did ask him why he had short work
experience with other employers. They did not, the applicant testified in
cross-examination, ask him if he had residential experience. Wayne told the
applicant that the company does background checks. The applicant testified
during his cross-examination that he did not provide any references and stated
during the hearing, “Why would I?”.
[19]
On his Application form and in response to question
16 asking the applicant to identify what documents he had, the applicant wrote
“a hand written letter from [s]teve”. The applicant was cross-examined on this
information and testified that the note was from Steve but contained Wayne’s
email on it. The applicant confirmed that he had not produced this document and
confirmed that it was Steve asking, at the time, for references.
[20]
The applicant was told during his cross-examination
that respondent’s witnesses would testify that he appeared unkempt on the day
of the interview, with messy hair and dirty clothes, which could explain the
“you don’t fit our company profile” comment. The applicant denied that he was
unkempt and he insisted that he was judged based upon his appearance which
amounts to “open racism”.
[21]
Subsequent to the interview, and on the same day, the
applicant sent an email to the customer service department of the respondent
(“the complaint email”). The complaint email was marked as an exhibit. It stated:
…. I agreed to come in for an early morning meeting with a branch of
your company located at [address] in Brampton. I came in believing your company
was good to work for and professional. I met with Steve who took one look at me
and made several racist comments and asked illegal questions all going against
the human rights code. I met with him for less th[a]n 10 minutes and was
disgusted with his unprofessional and immoral attitude. He seemed more
concern[ed] that I would work as che[a]p as possible and take his abuse as a
manager. Please look into this…
[22]
The applicant did not testify about his complaint
email during his examination-in-chief, but on his Application he alleged that
he received no response to it. During his cross-examination, the applicant
confirmed that someone telephoned him about the complaint email, although he
was not sure of the date or who called him. He testified, during his
cross-examination, that it could have been Dennis Good who phoned him and it
could have been October 19, 2009.
[23]
The applicant testified, during his
cross-examination, that he spoke with the person “5 minutes max”. Despite the
applicant describing the issues, the person told the applicant that he was
“full of it” “we are Lennox and we don’t do this and it didn’t happen and
please don’t bother us”. The applicant denied the suggestion that he did not
want to speak with Mr. Good because he had already filed his Application. “No,
it didn’t happen in that manner and I said that I was going to [file the
Application] unless things were resolved properly”, he testified during his
cross-examination. Then, after having it pointed out that Mr. Good called him
on October 19 and his Application appeared to have been filed on October 14, the
applicant testified, “that may have been” because he had called the complaints
line a number of times and had been told that someone would get right back to
him. Waiting until October 19 was not, he testified during his
cross-examination, getting right back to him and he felt that he was “getting
the run around” from the respondent.
[24]
During his cross-examination, the applicant was
challenged that he did not have the qualifications for the position of service
technician, the position for which he applied. The applicant denied this and
stated, during cross-examination, that he had more qualifications than the
minimum qualifications, a G2 license and 313D, which were listed on the job ad.
He testified that he has a G1 license, which is higher than a G2 license, and
had a 313A, which takes 5 years of apprenticeship and which covers all aspects
of air conditioning versus the 313D which pertains to just residential.
[25]
During his cross-examination, the applicant was
challenged on his lack of residential experience. The applicant disputed this
stating that he had worked at several jobs dealing with residential pool
heaters. He also testified that his 313A covers both commercial and residential
sectors. He agreed, somewhat reluctantly, that his résumé contained spelling errors, however, he
did not see the relevance of this question.
[26]
The applicant testified in examination-in-chief that as
a remedy he was seeking 6 months’ pay, which he quantified as $20,000. He did
not produce any documentation to establish that he had any loss of wages.
During his cross-examination, the applicant testified that he was not working
when he applied for the position with the respondent and did not find other
employment until May 2010. In response to a question from the Tribunal
explaining that it has the jurisdiction to award other remedies, such as
general damages in the event that a violation of the Code
is
found and whether the applicant was seeking additional remedies, the applicant
said that he was not sure and would have to consider them. He wants to see
“this type of thing stop” but testified that he did not believe it was
“rampant” within Lennox, but only at this office and this location.
[27]
Mr. Good testified during his examination-in-chief
that he is the director of human resources for Service Experts which used to be
known as Lennox and that the respondent is the business style that was formerly
used for Service Experts. He testified, and confirmed in cross-examination,
that he was not involved in the decision to interview the applicant, nor in the
interview itself, despite his department initially receiving the résumés, but
that each location determines who will be selected to be interviewed after the résumés
are forwarded to it.
[28]
He testified, during his examination-in-chief, that
he called the applicant as a follow up to the complaint email that the
applicant sent to the respondent’s call centre. The delay in calling him back,
Mr. Good explained, was that he had been on vacation. The first thing that the
applicant told him, Mr. Good testified, was that he had filed a complaint with
the Ontario Human Rights Commission and accordingly was not prepared to discuss
the complaint email.
[29]
During his cross-examination, Mr. Good testified that
he took the applicant’s email complaint seriously which is why he called him
back, but the applicant told him that he had filed the Application “and the
matter was going to court”.
[30]
In response to questions from the Tribunal about
what, if any, investigation he conducted into the complaint email, Mr. Good
testified that he asked Mr. Fagan to makes notes of what had happened. Mr.
Tomalin also provided a statement, although the respondent confirmed that Mr.
Tomalin’s statement had not been disclosed to the Tribunal. Mr. Good’s
understanding was that Mr. Tomalin met with the applicant for “only a minute”
and the rest of the interview was conducted by Mr. Fagan and that he had spoken
with them before he called the applicant. Mr. Good told the Tribunal that the
applicant was not interested in talking about his complaint email because he
had already filed his Application and accordingly this was the respondent’s
response to the complaint email.
[31]
Mr. Tomalin (Steve) testified that at the time he was
the general manager of the respondent and has worked for the respondent and
Lennox for more than 28 years. He testified, during his examination-in-chief,
that the respondent was seeking “all kinds of people from helpers to
installation lead hands” pursuant to the job ad. While the applicant was not
qualified other than for an entry level position as a helper, as he had no
experience for the residential work that the respondent conducts, the applicant
was interviewed because he wanted to get into the residential business as an
entry level position, and because “we are always looking for good people and it
is hard to find qualified people”. He believes that he called the applicant in
for the interview, but could not recall specifically as it was from 2009.
[32]
Mr. Tomalin testified during his examination-in-chief
that a G1 license is higher than a G2 license. However a third year
refrigerator apprentice 313A, which is what the applicant held, would only be
qualified to be a helper for a 313D. Helpers are entry level positions and earn
between $12 to $15 per hour.
[33]
The respondent’s workforce is quite diverse, he
testified, in terms of cultural and religious backgrounds, as well as age. Mr.
Tomalin testified that co-op students work for the respondent as does a 67 year
old male, who is of South Asian origin.
[34]
During his examination-in-chief, Mr. Tomalin
testified that he met with the applicant during the interview and took him into
the boardroom, which the applicant had described as a storage closet. The
applicant’s appearance “was a bit rough” in that he was not dressed as neatly
as people usually are who are being interviewed. The applicant did not seem
motivated during the interview. During his cross-examination, Mr. Tomalin
confirmed that a person’s appearance was subjective.
[35]
After speaking with the applicant, Mr. Tomalin
decided to get Mr. Fagan (Wayne), who was the supervisor. He got Mr. Fagan and
introduced him to the applicant and then left the boardroom and went back to
his office. He did not see the applicant again. He testified, during his
examination-in-chief, that he did not ask the applicant any questions, was not
present when any references were asked and did not provide the applicant with
any written note. He denied making any discriminatory comments about the
applicant’s religion or age.
[36]
Mr. Tomalin recalled during his examination-in-chief
that Mr. Good asked him questions about the interview, after the fact, and he
provided Mr. Good with a written statement, although it was not disclosed by
the respondent during the proceedings. Mr. Tomalin testified during his
examination-in-chief that it appeared from the complaint email that the
applicant was mixing up himself and Mr. Fagan, in that the allegations were all
about him but he did not see how they could be against him, since he did not
meet with the applicant for more than a minute before getting Mr. Fagan.
[37]
During his examination-in-chief, Mr. Fagan testified
that he was the field supervisor having worked 16 years for the respondent and
that on October 6, 2009 he met with the applicant. He explained that he became
involved because Mr. Tomalin came to the back of the shop where Mr. Fagan had
the “guys getting ready to go out” and asked Mr. Fagan to sit with the
applicant and interview him. Mr. Fagan was given the applicant’s résumé and had
a quick read of it to see his qualifications, how long he had been in the field
and what type of residential experience he had. His initial thought was that
the applicant did not have any residential experience and he was concerned
about the number of companies the applicant had worked for, for short periods
of time, and was still a third year apprentice. A third year apprentice who
worked in the residential sector would be qualified for the job, but not when
the person had only worked in the commercial sector, he opined during his
examination-in-chief. After Mr. Tomalin introduced them, he left the room and
Mr. Fagan shut the door. Mr. Fagan testified that he did not leave the room and
no one came in during the interview.
[38]
When Mr. Fagan first met the applicant, he testified
during his examination-in-chief, he was concerned with the applicant’s
appearance and the way that he sat and looked at Mr. Fagan. The applicant’s
hair was messy, his shirt was “filthy, dirty” and he leaned forward with his
hands on his knees. Mr. Fagan testified that he had never interviewed someone
with this type of appearance. The applicant did not provide an explanation about
his untidy appearance, such as he was coming from work. During his
cross-examination, Mr. Fagan said that he himself was in a uniform at the time
of the interview, which was “nice and clean” and while job candidates are not
required to wear shirts and ties, many do during an interview. He testified
during his cross-examination that it did not matter what the person was wearing
if they had the skill set for the position, but “normally people show up in
clean clothes and not filthy dirty t-shirts that was concerning for me”. He did
not have to make a comment to the applicant at the time, Mr. Fagan testified
during his cross-examination, but with the Application being filed and Mr.
Fagan being required to testify, “I have to make a comment now”.
[39]
During his examination-in-chief, Mr. Fagan testified
that he told the applicant about the respondent, how long it had been in
business, and its expectations of its employees. He spent a lot of time on the
applicant’s résumé and asking why he had been in positions for such a short
period of time. The applicant explained that he had performed contract work.
Mr. Fagan testified that he asked the applicant about references and the
applicant told him that his past employers did not give references which Mr.
Fagan thought was an odd statement as he had never heard of this before and it
is the respondent’s practice to do a reference check. In re-examination, Mr.
Fagan confirmed that the applicant declined to give him references when asked
about them.
[40]
Mr. Fagan decided not to move forward with the
applicant’s application, he testified during his examination-in-chief, because
of the applicant’s lack of residential experience and his overall demeanour. Mr.
Fagan denied using the word “Jewish”, denied referring to the applicant as
“old” and denied referring to the applicant as a group of “you people” saying
that he never uses terminology like that. Mr. Fagan denied telling the
applicant to “get out” as alleged in the Application; instead, the interview
concluded with them shaking hands at the end. Mr. Fagan’s recollection of the
interview is as set out in his statement, prepared for Mr. Good, which was
introduced as an exhibit. In response to a question from the Tribunal, Mr.
Fagan testified that he did not speak with Mr. Good during his investigation as
Mr. Good contacted Mr. Tomalin who then spoke with Mr. Fagan. This was because
the complaint email was about Mr. Tomalin and had confused the two of them, as
it was himself and not Mr. Tomalin who had met with the applicant the longest.
[41]
Mr. Fagan testified that the position was filled by
two other individuals who were hired as helpers, rather than service
technicians, because of their lack of experience.
[42]
In cross-examination, Mr. Fagan testified that he did
not take notes of the interview because he did not know that he was going to
interview someone and that he was brought in by Mr. Tomalin at the last minute.
He explained that he does not always use the standard interview form provided
by the respondent, but that in his opinion he felt that he conducted himself
according to the respondent’s policies. Copies of the respondent’s interviewing
policies, along with sample questions, had been entered as exhibits during Mr.
Good’s testimony.
[43]
He did not feel, Mr. Fagan testified during his
cross-examination, that the applicant was qualified for the position for which
he applied, at the salary he was expecting, with some experience in servicing
swimming pools and no other residential experience.
[44]
Mr. Fagan testified, during his cross-examination,
that he did not attempt to apologize to the applicant because he did make any
discriminatory comments. He testified during his cross-examination, “I didn’t
make any of these [comments] and I didn’t say you were Jewish or your age and
I’ve been dying to meet you to find this out and it’s bugged me to find this
out”. In response to the applicant asking “Between 2009 and today did you ever
attempt an apology?” Mr. Fagan said “apologize for what? So that would be a no
because I didn’t do anything and I speak to people with integrity”.
[45]
In response to a question from the Tribunal about the
applicant’s testimony that at the end of the interview he was given a scrap of
paper with Wayne’s email address on it to which references could be supplied,
Mr. Fagan did not recall giving the applicant this “so I’d have to say no”. He
testified that he has business cards to hand out.
onus
[46]
The Supreme Court of Canada has observed,
“[a]ssessing credibility is not a science. It is very difficult … to articulate
with precision the complex intermingling of impressions that emerge after
watching and listening to witnesses and attempting to reconcile the various
versions of events,” R. v. Gagnon, 2006 SCC 17 (CanLII), [2006] 1 S.C.R. 621, at para. 20.
[47]
In my assessment of the evidence, I have also
applied the well-established principles stated by the British Columbia Court of
Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354, which is often cited by
the Tribunal in cases in which credibility is assessed, which held:
The credibility of interested witnesses,
particularly in cases of conflict of evidence, cannot be gauged solely by the
test of whether the personal demeanour of the particular witness carries
conviction of the truth. The test must reasonably subject his story to an
examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions.
[48]
Underlying this traditional “harmony with the
preponderance of the probabilities” are a variety of factors considered in
appraising reliability and credibility, including:
•
The internal consistency or inconsistency of
evidence;
•
The witness’s ability and/or capacity to apprehend
and recollect;
•
The witness’s opportunity and/or inclination to
tailor evidence;
•
The witness’s opportunity and/or inclination to
embellish evidence;
•
The existence of corroborative and/or
confirmatory evidence;
•
The motives of the witnesses and/or their
relationship with the parties;
•
The failure to call or produce material
evidence
Shah v. George Brown College, 2009 HRTO 920 (CanLII) (“Shah”), at paras. 12 -14; Staniforth v.
C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 (CanLII), at paras. 35-36.
[49]
The Supreme Court of Canada confirmed in F.H.
v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41 (“McDougall”), that the “balance of
probabilities” standard of proof applies to all civil cases and, in order to
satisfy this standard, evidence must be “sufficiently clear, convincing and
cogent”. The Court held that Courts must “look at the totality of the evidence
to assess the impact of the inconsistencies in that evidence on questions of
credibility and reliability pertaining to the core issue in the case”, at para.
58. A balance of probabilities means that it is more likely than not a
violation has occurred or a “50% plus one” probability. See Shah, supra, at
para. 23.
[50]
The initial evidentiary burden rests with the
applicant to establish, on a balance of probabilities, a prima facie case
that he was discriminated against, with respect to employment, on the basis of
the prohibited grounds of ancestry and age. A prima facie case of
discrimination “… is one which covers the allegations made and which, if they
are believed, is complete and sufficient to justify a verdict in the
complaint’s favour in the absence of an answer from the respondent-employer”.
See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2
S.C.R. 536, at para. 28.
[51]
Upon establishing a prima facie case, the
burden shifts to the respondent to provide a credible and rational explanation
demonstrating, on a balance of probabilities, that the impugned conduct or
decision does not involve a discriminatory consideration. If the respondent is
able to rebut the prima facie case, the burden returns to the applicant
to establish, again on the balance of probabilities, that the respondent’s
explanation is erroneous or a pretext masking the discriminatory ground. See Wedley
v. Northview Co-operative Homes Inc., 2008 HRTO 13 (CanLII), at paras. 51-52.
law and analysis
[52]
Sections 5(1) and 10 of the Code are the
sections that are applicable in this Application. They provide:
5. (1) Every person has a right to
equal treatment with respect to employment without discrimination because of
race, ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, gender identity, gender expression, age, record of
offences, marital status, family status or disability.
10. (1) In Part I and in this Part,
“age” means an age that is 18 years or
more.
The Interview and Alleged
Discriminatory Comments
[53]
Clearly comments about being “Jewish”, looking
old, and “you people” would amount to a violation of the Code if the allegations are proven. See, for example, Noble et. al.
v. Alley, 1950 CanLII 13 (SCC), [1951] S.C.R. 64 and Byers v. Fiddick’s Nursing Home, 2012
HRTO 952 (CanLII).
[54]
However, in this case, I do not find that the
applicant has made out a prima facie case of discrimination. This is due
to the fact that his evidence, from his initial complaint email, to his
Application and from examination-in-chief to cross-examination was very inconsistent
in attributing who made the allegedly discriminatory remarks.
[55]
In his Application, the applicant wrote that he
had been contacted by “Wayne” and then was introduced to the supervisor
“Steve”. During his examination-in-chief, he testified about the nature of the
alleged discriminatory comments, however he did not identify who made the
alleged comments until the Tribunal asked him who said them. At this point, he
testified that it was “Wayne”, the first of the two that he met on October 9,
2009. He later confirmed, in response to a question from the Tribunal whether
“Steve” made a comment about being Jewish, that Steve did not make such a
comment as he was hardly in the room and reiterated that Wayne made the
comments.
[56]
During his cross-examination, the applicant was
asked to identify which of the two individuals who interviewed him was Wayne
and which one was Steve as both were present in the hearing room at this point.
The applicant “thought” that Wayne was the older of the two individuals and
noted that he met with both for less than 10 minutes, three years ago. He
testified during cross-examination that initially he met with Wayne and then
Steve came into the interview room.
[57]
Later during his cross-examination, the
applicant testified that Wayne made the allegedly discriminatory comments and
he identified Wayne as being the “younger person”. Again he stated that he was
not 100 per cent sure because it was three years ago and he spoke with both of
them for less than 10 minutes. He repeated this subsequently during his
cross-examination testifying “it was the younger man who made the comments”.
[58]
In his complaint email that he submitted to the
respondent’s call centre, he wrote, “I met with Steve who took one look at me
and made several racist comments and asked illegal questions all going against
the human rights code [sic]”.
[59]
Both Mr. Tomalin and Mr. Fagan testified, with
Mr. Tomalin having more work experience with the respondent than Mr. Fagan.
Both testified that Mr. Tomalin (Steve) initially met with the applicant,
followed by Mr. Fagan (Wayne).
[60]
After hearing all the evidence, and upon reviewing
the documentation, it is unclear to me whom the applicant is now alleging made
the allegedly discriminatory comments. While I can appreciate that he could be
mistaken about the name of the person who made the allegedly discriminatory
comments, given that he met both men for a short period of time some three
years ago, it is very troubling that his identification of the individual who
made such comments changes. During part of his evidence the applicant testified
that the person who made the comments was the older of the two interviewers and
during other parts of his evidence he testified that it was the younger
interviewer. The applicant provided no explanation for this inconsistency.
[61]
Reviewing the materials that the applicant
himself completed does not assist me in resolving this discrepancy. In his
Application, which was filed October 14, 2009, five days after the interview,
the applicant alleged that he met initially with Wayne, and then Steve, and
wrote “Right away he was abusive to me … and made several remarks to me right
away about being ‘old’ a ‘criminal’ and ‘Jewish’”. In response to the
Tribunal’s question about the identity of the “he” in that sentence, the
applicant specifically stated, “It was the younger fellow who was here who is
Steve and Wayne made the comments” and he confirmed that “Steve” did not make
the comments.
[62]
However, in the complaint email which the
applicant submitted to the respondent the same day as the interview, he very
specifically alleged that it was “Steve” who made the discriminatory comments.
Further, in cross-examining Mr. Tomalin and Mr. Fagan, the applicant did not
ask Mr. Tomalin or Mr. Fagan about the discriminatory comments that were
allegedly made. They both denied during their examination-in-chief that they
made such comments. Further, the applicant cross-examined Mr. Good, Mr. Tomalin
and Mr. Fagan as to whether or not they had apologized to him. All denied that
there was any reason to do so.
[63]
Given these inconsistencies, and the lack of a
credible explanation for them, I find the applicant’s evidence on this point
unreliable. In the end, I find that the applicant has failed to present clear,
convincing and cogent evidence, as the Supreme Court of Canada in McDougall,
supra, stated was required, in relation to his allegations that
“Wayne” or “Steve” called him “Jewish” and told him that he “looked old”.
Accordingly, this part of his Application is dismissed.
[64]
With respect to the “your appearance doesn’t
quite fit our profile” comment that the applicant alleges was also made, again,
because of the uncertainty set out above, the applicant has not proven on a
balance of probabilities that this was said by either Mr. Tomalin or Mr. Fagan.
To the extent that it was said, I find that it was said in the context of the
applicant’s own appearance on October 9, 2009 and more likely by Mr. Fagan
because, from his testimony, he was the one that had the more substantial
interview than did Mr. Tomalin. I note that during part of the applicant’s
evidence, Mr. Tomalin and Mr. Fagan were excluded as witnesses, and, as such,
did not hear all of the applicant’s evidence. Since Mr. Tomalin testified
before Mr. Fagan, Mr. Fagan did not hear any of Mr. Tomalin’s evidence.
[65]
Both Mr. Tomalin and Mr. Fagan testified during
their examination-in-chief about the applicant’s physical appearance which Mr.
Tomalin described as being “a bit rough” as he was not dressed as neatly as
people usually do for an interview. Mr. Fagan’s recollection was clear in that
he described the applicant as having messy hair and a “dirty filthy t-shirt”
and that the applicant failed to provide an explanation for his messy
appearance such as he was coming from work. For Mr. Fagan, who testified that
on October 9, 2009 he wore a uniform which was “nice and clean” and who, during
the hearing, was impeccably groomed, the applicant’s appearance on October 9
could certainly have elicited such a comment from him.
[66]
Given my findings with respect to the
applicant’s failure to establish, on a balance of probabilities, that the
alleged discriminatory comments were made, I do not need to determine whether
or not the applicant was qualified for the position of service technician or
whether the applicant was or was not given a paper with either Mr. Tomalin’s or
Mr. Fagan’s address on it. I note that despite the applicant referring to this
paper on his Application form, he did not produce it during the hearing process.
[67]
However, even if I accept that the applicant
was, at a minimum, qualified for a service technician helper position, I accept
the respondent’s non-discriminatory reasons as to why it did not hire the
applicant. Specifically, I accept the evidence of Mr. Tomalin and Mr. Fagan
about the applicant’s unkempt physical appearance during the interview.
Further, I accept Mr. Fagan’s evidence that the applicant did not, or would
not, provide references from his previous employer. In fact, during his
cross-examination, the applicant was asked to confirm that he did not provide Mr.
Fagan with references to which the applicant retorted, “Why would I?”
The Complaint Email
[68]
It is well established in the Tribunal’s
jurisprudence that a respondent may be held liable for the way in which it
responds to a complaint of discrimination. The rationale underlying the duty to
investigate a complaint of discrimination is to ensure that the rights under
the Code are meaningful. As stated in Laskowska v. Marineland of
Canada Inc., 2005 HRTO 30 (CanLII), at para. 53:
It would make the protection under subsection
5(1) to be a discrimination-free work environment a hollow one if an employer
could sit idly when a complaint of discrimination was made and not have to
investigate it. If that were so, how could it determine if a discriminatory act
occurred or a poisoned work environment existed? The duty to investigate is a
‘means’ by which the employer ensures that it is achieving the Code-mandated
‘ends’ of operating in a discrimination-free environment and providing its
employees with a safe work environment.
[69]
The Tribunal’s jurisprudence has established
that the employer’s duty to investigate is held to a standard of
reasonableness, not correctness or perfection. In Laskowska, supra, the
Tribunal set out the relevant criteria for, in that case, an employer to consider
in its duty to investigate as:
1. Awareness
of issues of discrimination/harassment, Policy Complaint Mechanism and
Training.
2. Post-complaint
seriousness, promptness, taking care of its employee, investigation and action;
3. Resolution
of the complaint and communication.
[70]
At para. 60 of that decision, the Tribunal
stated:
While the above three elements are of a
general nature, their application must retain some flexibility to take into
account the unique facts of each case. The standard is one of reasonableness, not
correctness or perfection. There may have been several options – all reasonable
– open to the employer. 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.
[71]
A respondent can attract liability for its
failure to investigate notwithstanding that a violation of the Code has
not been made out. See Nelson v. Lakehead University, 2008 HRTO 41 (CanLII).
[72]
It is not disputed between the parties that the
applicant submitted the complaint email to a customer service department within
the respondent. In response to questions from the Tribunal, Mr. Good testified
that he conducted an investigation into the complaint email. This consisted of
contacting Mr. Fagan and asking him what happened during the interview and
receiving written statements from Mr. Tomalin and Mr. Fagan describing the
interview. While Mr. Fagan testified that he did not recall Mr. Good contacting
him, but wrote the statement at Mr. Tomalin’s request, and Mr. Tomalin
testified that Mr. Good spoke with him, I find that nothing turns on this given
that Mr. Fagan’s statement was produced during the hearing and marked as an
exhibit.
[73]
Although he does not remember the name of the
person or the date of the telephone call, the applicant does not dispute that
he was telephoned by someone from the respondent further to the complaint
email. The applicant testified during his cross-examination that it could have
been Mr. Good and it could have been on October 19, 2009. Mr. Good testified
that he telephoned the applicant on October 19 after being away on vacation for
several days, and, because his evidence was not seriously disputed on this
point, I accept that Mr. Good called the applicant on October 19, 2009.
[74]
On his Application, the applicant alleged that
he did not hear back from the respondent. As noted above, the applicant filed
his Application on October 14, 2009 before Mr. Good telephoned him. So while at
the time of filing his Application, he had not heard back from the respondent,
he did so within a very short period of time after he filed his Application.
Even if I did not accept Mr. Good’s explanation that he called the applicant
after being on vacation, which I do accept, I find that the delay between the
complaint email and Mr. Good calling the applicant was very brief. I find that
the respondent took the applicant’s complaint seriously.
[75]
While it would have been helpful for the
respondent to have produced the written statement that Mr. Tomalin provided to
Mr. Good, I find that this failure is not a fatal flaw in the investigation
that the respondent conducted. I find it reasonable that Mr. Good spoke with
Mr. Tomalin about the applicant’s interview, as in his complaint email the
applicant had identified “Steve” as being the person who made the allegedly
discriminatory comments and I find it reasonable that Mr. Tomalin, as the
general manager, would speak with Mr. Fagan, the supervisor in relation to the
allegations.
[76]
Further, I accept Mr. Good’s evidence that he
contacted the applicant for the purposes of addressing the complaint email, but
the applicant told him that the he had already filed his Application and
effectively shut down the discussion between them.
[77]
In these circumstances, I find that the
respondent acted reasonably with respect to the complaint email and this part
of the Application is also dismissed.
Order
[78]
The Application is dismissed.
Dated at
Toronto, this 1st day of October, 2012.
“Signed by”
__________________________________
Alison Renton
Vice-chair
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