Peterson v. Canadian Rubber Dealers and Brokers Ltd.
1980-11-19
Ontario Board of Inquiry
CHRR Doc. 81-005
Mrs. Mary Peterson and Mrs. Grace Carter
Complainants
v.
Canadian Rubber Dealers and Brokers Ltd.
Respondent
Hearing Date:
October 3, 1980
November 19, 1980
Place:
Bowmanville, Ontario
Before:
Ian A. Hunter, Ontario Board of Inquiry
Appearances by:
Ms. Janet Minor, Counsel for the Commission and the complainants
Mr. Charles Jones, Counsel for the respondent
AGE DISCRIMINATION — employment terminated — PROCEDURE — adjournment due to absence of complainant
Summary: One complainant's allegations are dismissed because she failed to respond to the Notice of Hearing. The second complainant's arguments are dismissed an the basis of employer's evidence that age was not the reason for dismissal. [s. 4(1)(b) and (g)]
DECISION
- Appointment
1On 13 June, 1980, I was appointed by the Honourable Robert Elgie, Minister of Labour, as a Board of Inquiry to hear and decide the complaints of Mrs. Grace Carter and Mrs. Mary Peterson that they had been discriminated against in their employment by the Canadian Rubber Dealers and Brokers Limited, in particular by the Champlain Truck Shop and Restaurant, because of their age. The Ministerial appointment, together with copies of both complaints, were filed as exhibits at the outset of the hearing.
- The Complaint of Mrs. Mary Peterson
2On 24 May, 1979, Mary Peterson, 68 East Beach, General Delivery, Bowmanville, Ontario signed a complaint of discrimination under the Ontario Human Rights Code.
3On 18 August, 1980, a Notice of Hearing was sent by registered mail to Mrs. Peterson at the above address; this Notice of Hearing was subsequently returned marked "unclaimed".
4Ms. Minor, counsel to the Commission, indicated to the Board that several attempts by the Commission and its officers to contact Mrs. Peterson had been unavailing. However, Ms. Minor had reached the complainant's husband, Mr. Peterson, by telegram advising him of the date and place of hearing; she had had no response.
5Mrs. Peterson made no effort to contact anyone from the Ontario Human Rights Commission for several months and all efforts on their part to contact her had been unavailing. Neither Mrs. Peterson, nor any representative on her behalf, was present at the hearing and no explanation of her absence was forthcoming.
6In these circumstances, Ms. Minor urged at the outset that the Board adjourn Mrs. Peterson's complaint sine die; Mr. Jones suggested that I defer consideration of Mrs. Peterson's complaint until after Mrs. Carter's complaint had been dealt with. I accepted this suggestion and the hearing proceeded in respect of Mrs. Carter's complaint.
7At the conclusion of the evidence and argument in respect of Mrs. Carter's complaint, it being then late afternoon, Ms. Minor again requested an adjournment of Mrs. Peterson's complaint to another date to be named. Still, Mrs. Peterson had not appeared.
8I declined to grant an adjournment in these circumstances and, Ms. Minor being unable to proceed in Mrs. Peterson's absence, the complaint of Mrs. Peterson was dismissed for lack of evidence.
9Section 21 of the Statutory Powers Procedure Act, S.O. 1971, c. 47 states:
- A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal the adjournment is required to permit an adequate hearing to be held.
10Given Mrs. Peterson's apparent lack of interest in the complaint, as evidenced by her failure to respond to the Notice of Hearing, to written, telephonic or telegram attempts to reach her, and her failure to contact the Commission, I cannot conclude, in these circumstances, that an adjournment should be granted. An adjournment would have put the respondent to considerable inconvenience and the additional expense of at least an extra day of hearing; four witnesses for the respondent would have been similarly inconvenienced. Had I granted the adjournment this inconvenience would have occurred in the absence of any explanation of Mrs. Peterson's failure to attend on October 3, 1980 and in the absence of any statutory authority in the Code which would allow the Board of Inquiry to redress the respondent's inconvenience and added expense by way of costs.
11The granting of an adjournment is at the discretion of the Board, a discretion not to be exercised arbitrarily, but fairly and equitably, having regard to the balance of convenience to both parties. Speaking of the Ontario Labour Relations Board, Robins J. recently wrote:
In the case of a request for an adjournment, it [i.e., the Board] is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances. Re Flamboro Downs Holdings Limited and Teamsters Local 879, 1979 CanLII 1669 (ON HCJ), [1980] 99 D.L.R. (3d) 165 at 168.
12It was not shown to my satisfaction that an adjournment should be granted in these circumstances. Accordingly, Mrs. Peterson's complaint is dismissed.
- The Complaint of Grace Carter
13Mrs. Grace Carter was born on July 26, 1926 and resides at 86 Little Avenue in Belleville. Her husband is unemployed as a result of a permanent disability and she is the primary source of her family's income. She is presently employed full-time as a cashier at the Voyageur Restaurant in Newcastle, Ontario.
14Prior to April, 1979, Mrs. Carter worked full-time for approximately four years as a waitress at the Voyageur Restaurant on Waverly Road in Bowmanville. In 1979 this restaurant was sold and Mrs. Carter's employment there ended on April 2, 1979.
15On April 20, 1979, Mrs. Carter was hired as a waitress by Mrs. Harold Price, the wife of the proprietor of Champlain Truck Stop and Restaurant. Filed as exhibit No. 3 at the Board of Inquiry were copies of the business and partnership registration showing Champlain Truck Stop and Restaurant to be a limited partnership in the name of Mr. Harold Price and Canadian Rubber Dealers and Brokers Limited. Mrs. Carter testified that when Mrs. Price hired her she inquired concerning her age and expressed no concern on learning that Mrs. Carter was 52 years old. Mrs. Price did not give evidence; Mr. Price gave evidence but was not present when his wife hired Mrs. Carter, so that this evidence as to age being no barrier to her initial hiring remains uncontradicted.
16The evidence established the Champlain Truck Stop and Restaurant is a busy restaurant which draws its primary clientele from motorists on Highway 401 and truckers. The restaurant is open 24 hours a day and waitresses work shifts from 11 p. m. to 7 a.m.; 7 a.m. to 3 p. m.; and 3 p. m. to 11 p. m. Mrs. Carter worked five days a week, forty hours a week, at $3.25 per hour remuneration.
17Prior to the events of May 19, 1979 Mrs. Carter testified that she was unaware of any dissatisfaction or complaints about her work. Mr. Harold Price, who is not the restaurant manager but oversees the whole operation and has, as he testified, overall responsibility for the "dirty work" such as firing employees, is frequently "in and out" of the restaurant and thus had an opportunity to observe Mrs. Carter's work which he described as "slow". However, he conceded that he had not complained to Mrs. Carter about her performance and, accordingly, I accept her evidence that prior to May 19, 1979 she had no reason to believe that her employers were not happy with her work.
18On May 14, 1979 Mrs. Mary Peterson, a 49-year-old woman, was hired as a waitress by Champlain Truck Stop. Prior to her coming to work at Champlain Mrs. Carter had only a nodding acquaintance with Mrs. Peterson who was an occasional customer in the restaurant. Personnel records for Champlain confirm that Mrs. Carter and Mrs. Peterson worked together on the 11 p. m. to 7 a.m. shift in the restaurant throughout the week beginning May 14, 1979.
19There was no dispute from the respondent as to the facts alleged so far. Nor is it in dispute that at approximately 7:15 a.m. on Saturday, May 19, 1979 Mr. Price and Mrs. Carter had a conversation in the lobby area of Champlain Restaurant, as a result of which Mrs. Carter ceased to be employed as a waitress at Champlain and this complaint was subsequently filed with the Human Rights Commission. What is at issue is the reason why Mrs. Carter's employment at Champlain Restaurant ceased, and this turns on what was said or not said by both participants in that conversation.
20In the early hours of Saturday morning May 19, Mrs. Carter was busy serving breakfast. Her shift normally finished at 7 a.m. but she was extremely busy and remained until approximately 7:15 a.m. to finish up serving some customers. At that time Mr. Price indicated to her that he wished to speak with her in the lobby.
21The lobby area is in the nature of a front entrance with a door to the right leading into the restaurant and a door to the left leading into the tire area. If one entered the front door and turned left one would encounter a hallway with a pay telephone and washrooms running parallel to the wall of the tire shop. Mr. Price testified that he chose this area for the conversation because it was quieter than in the restaurant, although he conceded that the place where they were standing was near the front entrance where patrons would be coming in and out. Approximately six feet away from the place where this conversation occurred is a pay telephone in the hallway; as it happened, two men were waiting there for a return telephone call from their boss when the May 19th conversation took place.
22Mrs. Carter's testimony about this conversation was as follows:
He [Price] said, "I don't know how to tell you this, but", he says, "I've been having calls on the C.B., from the truckers and asked me what was going on, that they have two old ladies working on the night shift."
Q. Yes.
A. And he said he should never have put us together, like.
Q. Yes.
A. And he says –, well, I said, "why, what's wrong?" Like he said "well" he said "it's not because of your work", he said "you can cut circles around those young ones", he says, "It's because of your age," And he said, "I have your pay, and your holiday pay is all made up", and he passed it to me.
Q. Did he say anything else to indicate any other reasons for terminating you?
A. No, he didn't.
Q. Alright.
A. No other reason. (Transcript, p. 24)
Q. Now what happened after Mr. Price told you that? Did he suggest that you might be employed elsewhere in his business?
A. No, no he didn't.
Q. Alright. What did you do after he told you?
A. I just stood there, like I was tired and I was – I felt highly insulted, and I just, I just didn't know what to say. This is the first time that I really couldn't say nothing, like, really, I didn't know what to say.
Q. And what did you do then, did you leave?
A. Yes ... (Transcript, p. 27)
23On cross-examination, Mrs. Carter was emphatic that the only reason Mr. Harold Price gave for what she unequivocally interpreted as a dismissal was her age. Mr. Price then gave her a separation slip and she left Champlain Restaurant with her daughter.
24Mr. Price's account of this conversation is different. He testified that he decided on Thursday, May 17th to change Mrs. Carter's job by separating the jobs of Mrs. Carter and Mrs. Peterson so that they would not work so closely together. His primary reason for doing so was that the two women were reported to be fighting and arguing on the job so much so that a "common joke" was circulating among the truckers who patronized the restaurant that "you pay 25 ¢ for the fight and get your coffee for nothing". Two subsidiary factors in his decision were (a) that he had observed Mrs. Carter at her waitress work and considered her "slow", and (b) there had been cash shortages which, he concluded, must have resulted from pilferage by one of the three women on the night shift. Mr. Price repeatedly stressed that he had no reason to specifically suspect Mrs. Carter over the other two women. Mr. Price conceded that, prior to May 19, he had raised none of these concerns with Mrs. Carter.
25Mr. Price testified that, in the lobby, he told Mrs. Carter that he would have to take her off the floor and that he offered her a job in the kitchen as cook's helper or dishwasher. She allegedly replied that she would rather take a layoff, plus some other response that Mr. Price could not remember. Mr. Price was emphatic that at no point in his conversation did he mention her age.
26On cross-examination, Mr. Price admitted that he had had the bookkeeper make up a separation slip for Mrs. Carter on Thursday, May 17, and that, when they went into the lobby on May 19, he had the separation slip with him and in fact gave it to Mrs. Carter when she said that she would rather take a layoff. He explained this by saying that although he did not intend to dismiss Mrs. Carter, he wanted to have the slip ready "just in case" he had to fire her.
27Commission counsel introduced Mrs. Carter's original separation slip as an exhibit; Box 6, entitled: Reason for Issuing This Record is checked off next to the reason "Layoff Shortage of Work". Mrs. Carter testified that Box 6 was filled in on the following Monday when she returned to Champlain Restaurant and spoke to Mrs. Price requesting her to complete the form for unemployment insurance purposes. Mr. Price produced a xerox copy of what is alleged to be the original slip given to Mrs. Carter by Mr. Price in which Box 6 is not completed; there was some suggestion that perhaps Mrs. Carter filled the reason in herself, presumably to buttress her complaint that she had been laid off rather than merely offered alternative employment in the kitchen.
28Both parties, however, agree that the original form left Box 6 incomplete and I prefer Mrs. Carter's explanation that it was filled in the following Monday by Mrs. Price. The respondent called no evidence to refute this assertion.
29Mr. John Emburg and Mr. Wayne Douglas are both employees of Taunton Tire Company in Oshawa and both were in the lobby area of Champlain Restaurant on the morning of May 19. Both men testified and their accounts of how they happened to be in the lobby in a position to overhear the conversation between Mr. Price and Mrs. Carter were virtually identical. Between 6:45 a.m. and 7 a.m. on May 19, 1979 they arrived at Champlain to pick up some tires for transport to Toronto; due to an administrative foul-up, these tires were not ready. At approximately 7:05 a.m. they telephoned their boss from the telephone box in the lobby and related the situation to him; they then stood by the telephone awaiting a return call with new instructions. Mr. Douglas went briefly to the restaurant area to buy coffee and then rejoined Mr. Emburg in the lobby near the telephone.
30At approximately 7:15 a.m. they overheard a conversation between a woman they identified as Mrs. Carter and Mr. Harold Price. Mr. Emburg estimated that they were approximately six to eight feet away from the parties with a partially obstructed view of the conversants. Mr. Douglas was less certain of the distance but testified that he was within "two or three feet" of the phone which I find, on all the evidence, is six to eight feet from the front lobby where the conversation occurred. Although both men were vigorously cross-examined concerning their possible relationship with Mr. Price, I accept their evidence that they were, at most, casual acquaintances (Mr. Price testified that he did not know either man's name) and would have no motive for giving false testimony as to this conversation. Thus, in choosing between Mrs. Carter's version of the conversation on May 19, 1979 and Mr. Price's version, the Board has the benefit of two independent witnesses who overheard the conversation.
31John Emburg testified:
... he said something, that he had to talk to another waitress, and that she was a little slow, there was a little trouble or something, and that he'd have to move her to something else, or lay her off, like.
And then there was a couple of, she – there was a little arguing there, and she called him, some bald-headed, something, fat something, and said, "that's it," and that's about the last I heard.
Q. Did you hear the word "age" mentioned at all, in either conversation?
A. No.
Q. Did you hear anything, in either conversation that you would interpret, or understand, as referring to age?
A. Not really, no.
Q. Did you hear anything about C.B. radios?
A. No. All I heard was, Iike, that I guess their work wasn't satisfactory, and there was some trouble at the time, or something. (Transcript, pp. 82–83)
32The evidence of Wayne Douglas, although more uncertain, is to the same effect on all material points.
33Both witnesses testified that they heard no reference to "age" which is, of course, the crux of Mrs. Carter's discrimination complaint. A review of the transcript of testimony of Mr. Emburg and Mr. Douglas leaves no doubt in my mind that their version of what was said on May 19, 1979 supports Mr. Price's version of the conversation rather than Mrs. Carter's version.
34Mr. Price testified that the primary reason for his decision to "separate" Mrs. Carter and Mrs. Peterson was "to get Mrs. Carter off the floor" because their bickering had become a common joke among the truckers.
35The respondent called another witness, Mrs. Helen Tibbitts of Bowmanville, who testified that on two occasions she was in the Champlain Restaurant and heard Mrs. Carter and Mrs. Peterson arguing with each other. Since Mrs. Peterson's employment overlapped with Mrs. Carter's employment only for one week, this occasion must have occurred, if Mrs. Tibbitts's testimony is believed, during the week commencing May 14, 1979. Mrs. Tibbitts testified that she would have been in the restaurant at approximately 7:30 or 8:00 p.m. The evidence of Mrs. Carter and Mr. Price, confirmed by the personnel records, is that both Mrs. Peterson and Mrs. Carter worked the 11 p. m. to 7 a.m. shift all that week. Therefore, either Mrs. Tibbitts is mistaken about the time of day when these arguments she allegedly witnessed occurred, or else her evidence is to be given very little credence.
36I take the former view. I listened to Mrs. Tibbitts give her evidence and I observed her demeanour. I am satisfied that she was telling the truth about the arguments between Mrs. Peterson and Mrs. Carter and I accept that her confusion as to the time of day when she was in the restaurant is due to the fact that the incidents which she is recalling occurred some seventeen months before the hearing.
37The significance of Mrs. Tibbitts's evidence is that it is further independent corroboration supporting Mr. Price's testimony as to the reason for desiring to speak with Mrs. Carter on the morning of May 19, 1979; namely, to deal with the conflicts between Mrs. Carter and Mrs. Peterson.
38Mrs. Carter's complaint alleges that on May 19, 1979 Mr. Price dismissed her from employment at Champlain Restaurant because of her age.
39On May 19, 1979 did Mr. Harold Price "... dismiss or refuse ... to continue ... to employ" Mrs. Carter (s. 4(1)(b)) or "... discriminate against [her] with regard to any term or condition of employment ... because of ... [her] age ..."? Unless I am satisfied that the Commission has proved this, on the balance of probabilities, then I must dismiss Mrs. Carter's complaint.
40First, I am not satisfied that Mrs. Carter was "dismissed". I accept Mr. Price's evidence as to the May 19, 1979 conversation, corroborated as it is by two independent witnesses who overheard the conversation. On that evidence, Mrs. Carter was offered alternative employment in the kitchen and declined to accept it. Whether an offer of less congenial or less remunerative employment could, in some circumstances, amount to a dismissal is a question I need not resolve since there was no evidence to indicate that the alternative employment offered here was either less congenial or less remunerative. Consequently, I am not satisfied on the evidence before the Board that Mr. Price "dismissed ... refused to continue to employ ... or discriminated against [Mrs. Carter] with regard to any term or condition of employment ..." within the meaning of s. 4(1) of the Code.
41Secondly, and more importantly, even if I were satisfied that s. 4(1)(b) or (g) of the Code had been contravened, which I am not, I do not believe Mr. Price's decision was "... because of ... age." In reaching this conclusion, I have regard to the following evidence:
(1) Champlain Restaurant, through Mrs. Price, hired Mrs. Carter knowing her age; Mrs. Carter's own testimony verifies this.
(2) Mr. Price's account of the primary reason for speaking with Mrs. Carter on May 19. 1979 is corroborated, at least to some extent, by the evidence of Mrs. Tibbitts.
(3) Mr. Price's account of the critical May 19, 1979 conversation with Mrs. Carter is corroborated by the testimony of two independent witnesses who overheard the conversation and their evidence is in direct conflict with Mrs. Carter's version of that conversation.
42The onus of proving both elements of the offence created by s. 4 of the Code – that is (a) "... dismissal; refusal to continue to employ; or discrimination with respect to any term or condition of employment"; and (2) "... because of age" is on the Commission. On a full review of the evidence I hold that the Commission has not discharged this onus.
43Submissions were made concerning Mr. Price's general fairness in dealing with employees in general and Mrs. Carter in particular. It was suggested that he ought to have told her of his concern about the arguments with Mrs. Peterson, her slowness, and the alleged cash shortages before May 19 and have given her an opportunity to explain before preparing a separation slip. Enlightened personnel practices would no doubt suggest that he should have done this. But the issue before this Board is not Mr. Price's personnel policy, nor his personal sensitivity, nor his procedures for resolving staff problems. The issue is whether the evidence establishes, on a balance of probabilities, that on May 19, 1979 Mr. Harold Price discharged Mrs. Grace Carter from her employment as a waitress because she was 52 years old.
44The evidence does not establish this and the complaint of Grace Carter is dismissed.