La’Koya Brown v. Regency Care (Villa Forum), 2009 HRTO 1391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

La’Koya Brown

Applicant

-and-

Regency Care (Villa Forum), John Rushton, Celia Lisi and Maria Cherbel

Respondents

case Resolution Conference DECISION

Adjudicator: Dale Hewat

Date: September 2, 2009

Citation: 2009 HRTO 1391

Indexed as: Brown v. Regency Care (Villa Forum)

AppearanceS BY

La’Koya Brown, ) On her own behalf Applicant ) )

Regency Care (Villa Forum), ) John Rushton, Celia Lisi and Maria Cherbel, ) Steven F. Wilson, Respondents ) Counsel

1This is an Application filed October 29, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint alleging a breach of settlement and reprisal, pursuant to section 8 of the Code was filed with the Ontario Human Rights Commission on December 4, 2007 and abandoned upon filing this Application with the Tribunal

2The Case Resolution Conference (“CRC”) was conducted on June 9 and 10, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner.

Preliminary Issue

3On June 9, 2009, the respondents and their counsel attended the CRC. The applicant did not appear at the scheduled start time. The applicant’s husband was contacted by telephone. He advised that the applicant was at work and had believed the hearing was scheduled for July.

4The respondents requested that the Application be dismissed as abandoned. In the circumstances I adjourned the hearing until the following day when I would consider the request to dismiss.

5On June 10, 2009, the applicant attended the CRC and advised that, during the evening of June 9, 2009, she had been a patient in emergency department at William Osler Health Centre. She provided a doctor’s prescription dated June 9, 2009 as proof of her hospital visit.

6The applicant agreed that she knew about the scheduled CRC dates but explained she had been under physical and mental stress and had difficulty remembering. She also admitted that she was concerned about calling a witness at the CRC for fear of that witness losing her job. The applicant did acknowledge that she went to work on June 9 for her 7:00 a.m to 1:00 p.m. shift. The applicant also agreed that she had responded to the Tribunal’s initial correspondence in March 2009 about setting dates for the CRC and had provided correspondence to the Tribunal and to respondents’ counsel about retaining a lawyer.

7The respondents submitted that the applicant’s explanation confirmed that she was fully aware of the CRC dates and was inconsistent with her husband’s. The respondents argued that the applicant was not truthful and that her failure to attend on June 9, 2009 constituted bad faith which provided sufficient reason to dismiss the Application. Alternatively, the respondents submitted that the inconsistencies in the applicant’s explanation should be viewed as lacking credibility in the event that I dismiss their motion and hear the case on the merits.

8Although I agree the applicant’s explanation for her failure to appear was inconsistent with her husband’s, I do not find that there are sufficient grounds to dismiss the case on the basis of abandonment. I am satisfied the applicant intended to proceed with her Application and that, in the circumstances, this outcome is consistent with fair, just and expeditious resolution of the issues in dispute.

Decision

9The Application is dismissed. What follows are my reasons.

Nature of the Dispute

10On July 19, 2007, the applicant settled a human rights complaint against the respondents arising out the termination of her employment. The minutes of settlement provided that:

1. the applicant was “reinstated” to her employment for a specified period and received a salary continuance package for that time. During that time the Minutes of settlement provide the applicant’s “status will be inactive and she will not attend the workplace nor acquire seniority or service”;

2. the corporate respondent would provide the applicant with a letter of recommendation and a letter of regret;

3. the corporate respondent would post Code cards and provide employees with Human Rights training including a component on cultural sensitivity.

11The minutes of settlement also contained the following confidentiality clause:

The parties agree that these Minutes of Settlement and Release are confidential as between them and will not be disclosed to any third party save and as may be required by law or in order to implement the terms of the settlement contained herein. It is understood that the complainant by disclose the terms herein to his/her immediate family members, legal and/or financial advisors.

12The applicant alleges she was harassed by the respondent John Rushton during a telephone conversation on November 26, 2007, questions whether the Code cards were posted and whether human rights information training had occurred. Further she alleges the corporate respondent breached the confidentiality of the July 2007 settlement and was dissuaded attending a Christmas concert with her child, and this amounts to a reprisal under the Code. The applicant acknowledged that the personal respondents Celia Lisi, Director of Care of Villa Forum and Maria Cherbel, Villa Forum Administrator, were not involved in the subject-matter of this Application.

13The respondents deny that they breached the settlement or that their actions were discriminatory or constituted a reprisal under the Code. They note the child attended the Christmas concert with the applicant’s sister. The respondents also stated that they met all of their obligations under the terms of the settlement.

Evidence

14The corporate respondent Regency Care (Villa Forum) (“Villa Forum”) is a non-profit long term care home currently operated by Chartwell Seniors Housing REIT. Villa Forum is one of 15 long-term care residences managed by Chartwell. Forum Italia Daycare (the ”Daycare”) is housed in the Forum Italia seniors apartment complex. The Daycare and Forum Italia are distinct entities from Villa Forum located in a separate building next door. At all material times the applicant’s daughter was attending the Daycare and the respondents were made aware of the child’s enrolment by the applicant. On November 14, 2007, the Daycare invited families to attend a Christmas concert on December 12, 2007. The concert was to be held in Villa Forum’s auditorium.

15The applicant admitted that since signing the minutes of settlement on July 19, 2007, she had not visited Villa Forum’s workplace. She advised that her husband was the one who primarily dropped off and picked up her daughter from the Daycare but that when she did collect her daughter, it was at the Daycare premises and not at Villa Forum. Other than the applicant mentioning that she had spoken to some former Villa Forum colleagues, she did not state that she attended at Villa Forum following the settlement. She also agreed that Villa Forum did not want her on the premises.

16On November 23, 2007, the applicant received a voicemail message from John Rushton, Director of Human Resources for Chartwell, asking her to call him about the recent settlement with Villa Forum. Mr. Rushton was fairly new in his position, did not know the applicant and had not been involved in the settlement of the original human rights complaint.

17The applicant and Mr. Rushton spoke by phone on November 26, 2007. Their recollections of the conversations differed other than an acceptance that the conversation was cordial. The applicant claimed that Mr. Rushton referred to the fact that she was no longer with the corporate respondent and asked for confirmation of whether her daughter attended the Daycare. The applicant also recalled that Mr. Rushton explained that he had been asked by management to contact her to request that her daughter not be part of the Christmas concert so that the applicant would not cause any trouble. According to the applicant, she replied to Mr. Rushton “do I sound like a troublemaker to you?” and questioned why her daughter was involved. The applicant claimed that Mr. Rushton replied that he did not know the applicant and that he was just the messenger on behalf of Villa Forum. The applicant stated that she made notes about the phone call at the time but admitted that she could not find them and may have thrown them out.

18The applicant explained that she was very upset about the phone call because in her mind her daughter was being singled out and that the respondent’s actions were vindictive. She contacted the mediator of July 2007 settlement to voice her concerns. The applicant’s husband also phoned Mr. Rushton the next day but the applicant refused to answer any questions about that conversation.

19Prior to calling the applicant, Mr. Rushton was advised that there had been a settlement and understood there were concerns the applicant might breach the conditions of the settlement by attending an event at Villa Forum. Mr. Rushton stated that he was not told about the details of the event and did not know that the applicant had a daughter attending the Daycare. His recollection of the phone call was that he told the applicant that management had concerns about her breaching the settlement but that the applicant made reference to her being viewed as a trouble maker. He responded that he did not know the applicant and was not trying to pass any judgement upon her. He claims that the applicant’s daughter was not mentioned during the conversation.

20The next day Mr. Rushton received a phone call from the applicant’s husband who rudely stated that he and his wife were not going to miss another one of their child’s Christmas concerts because of Villa Forum. This was when Mr. Rushton claims he became aware of the daughter’s attendance at the Daycare. At the CRC the applicant’s husband apologized for his behaviour during that phone call.

21The applicant’s daughter was taken to the concert by the applicant’s sister. The applicant dropped off her daughter with her sister on the night of the concert and saw Maria Cherbel standing at the corporate respondent’s front doors. She assumed Ms. Cherbel was patrolling the entrance and had concerns about the police being called. The applicant agreed, however, that there were other valid reasons for Ms. Cherbel’s presence such as managing an emergency situation involving a resident.

22The applicant believed that the Code cards had not been posted until after December 2007. She had heard from the Union representative and friends that human rights training had not been completed but admitted that she had no personal knowledge of either the posting of cards or the progress of human rights training.

23Ms. Cherbel testified that the Code cards were posted in a number of locations within the building on September 10, 2007. She explained that there had been a delay in receiving the cards from the Human Rights Commission following the minutes of settlement. She also stated that the postings were done within a few days of receipt after she had met with the risk management team to explain the postings and advise about future human rights training for staff. Ms. Cherbel also testified at length about in-service training and human rights cultural sensitivity training that was conducted with all staff within the year following the minutes of settlement.

Analysis

Breach of Settlement

(a) Confidentiality Provision

24I have concluded that the respondents did not breach the confidentiality provision of the minutes of settlement when they asked Mr. Rushton to contact the applicant. The specific provision states that the parties agree that the minutes of settlement and release are confidential and will not be disclosed to any third party except as required by law or to implement the terms of the settlement. Having considered all of the evidence the respondents believed that the minutes of settlement dictated that the applicant not attend the workplace for any reason and were acting upon this belief to ensure implementation of the terms of the settlement. The details of the minutes of settlement were not divulged to Mr. Rushton. They asked Mr. Rushton in his capacity as Human Resources Director to relay their concern, which he did.

(b) Postings and Human Rights Training

25The evidence does not point to any violation of the minutes of settlement with respect to either the posting of Code cards or the provision of human rights training by the respondents. The applicant did not have any direct knowledge about the posting of cards or human rights training. In contrast, Ms. Cherbel provided a full explanation of when and where the cards were posted and information about both in-service human rights training and specific small group work and cultural sensitivity training completed according to Villa Forum’s undertakings pursuant to the minutes of settlement.

Reprisal

26Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

27The intention of section 8 is to allow applicants to pursue their rights under the Code without fear of reprisal for doing so. It is established human rights law that reprisal must involve a deliberate intent to retaliate and thus this intention must be demonstrated in order to show that a complainant’s rights under section 8 have been violated. (see, for example, Jones v. Amway, 2001 CanLII 26217 (ON H.R.T.) and Jones v. Amway, [2002] O.J. No. 1504)

28In determining whether a reprisal exists, I must consider whether there was anything in the actions of the respondents in raising the terms of the minutes of settlement with the applicant which disclosed an intention to reprise or threaten reprisal for having enforced her rights under the Code. To make this assessment, I need to examine the respondents’ actions in two parts. First, I have considered whether Mr. Rushton’s phone call conversation with the applicant and his reminder for her not to attend the workplace was done in response as a reprisal for her filing a human rights complaint. Secondly, I have assessed whether the respondent Villa Forum engaged in a reprisal against the applicant by interpreting the minutes of settlement as preventing the applicant from attending the workplace for non-work related purposes and asking Mr. Rushton to make the call in order to prevent her from attending the concert with her daughter.

29In assessing the disputed evidence, I am required to make a finding of credibility. In order to determine which of the evidence is most credible, I have considered not only the demeanour and candour of the witnesses but also which evidence makes the most reasonable and probable sense in the circumstances. On balance, I did not find the applicant’s version of the November 26, 2007 phone call to be credible. In terms of the applicant’s demeanour during the CRC, she was not always cooperative during questioning and refused to answer questions about her husband’s phone call to Mr. Rushton and questions about the wording of the minutes of settlement pertaining to not attending at the workplace.

30Having considered Mr. Rushton’s testimony that he did not know the applicant or the details of her human rights complaint, it does not make sense that he would have either called her a trouble-maker or suggested that she might cause trouble. What seems more plausible is that Mr. Rushton reacted to the applicant’s characterization of herself as a trouble-maker in the eyes of Villa Forum and, not knowing her personally, said that he did not want to pass any judgement on her but was simply asked to pass on management’s concerns about her obligations under the minutes of settlement.

31I also conclude that Mr. Rushton did not ask the applicant anything about her daughter or mention the Christmas concert during the phone call because I believe that he only found out about the daughter and that the event was a Christmas concert when the applicant’s husband called the next day. Since Mr. Rushton had no personal connection or knowledge of the applicant’s initial Code complaint and did not make any remarks about the applicant’s daughter or the conduct of the applicant, I find no basis under which he would have an interest in reprising against her.

32Even assuming that Mr. Rushton was simply the messenger for the respondents, I also cannot conclude that respondents had the requisite intent to establish a reprisal in this case. Having entered into minutes of settlement in July 2007, it is understandable that, just four months later, the respondents would have been very mindful of both parties upholding the settlement. The respondents took the position that the language in the minutes of settlement was clear in specifying that the applicant not attend the workplace even if it was for non-work related reason. From their perspective, if the applicant came to the Christmas concert, she would have breached this provision of the minutes of settlement.

33Although the minutes of settlement did not contain specific language that the applicant agreed not to attend the workplace for non-work related reasons, it is reasonable to assume in light of the serious and confidential settlement that there was an expectation by the parties that the applicant would not attend at the workplace for any reason. The applicant understood the wording to mean that she would receive her salary but that she was not required to come to work. When questioned further about what not coming to work might mean, the applicant refused to answer.

34However, the applicant’s evidence established that her husband generally dropped off and picked up their daughter from the Daycare but that she also picked up her daughter. The applicant emphasized, though, that the Daycare was in a separate building and that she had not attended Villa Forum. Although the applicant mentioned speaking with the Union representative and friends who worked at Villa Forum, she did not attend the workplace in any capacity following the minutes of settlement. She also mentioned her fear of Villa Forum contacting the police if she attended the concert and agreed that the respondents did not want her on the premises.

35In the circumstances, I find that “not attending work” was understood by both parties that the applicant not attend the premises of Villa Forum for any reason. Given this interpretation, I have determined that the corporate respondent had decided to prevent a breach of the settlement by asking Mr. Rushton to contact the applicant. I cannot find that this action amounted to a reprisal against her. The corporate respondent has shown valid reasons for contacting the applicant that do not establish intent to punish the applicant for initiating a human rights complaint.

36Finally, it was agreed by the applicant that the respondents Celia Lisi and Maria Cherbel were not involved in any way in this matter but were named as personal respondents solely because of their managerial positions.

Order

37Accordingly, in light of the above conclusions, I do not find a violation of section 8 of the Code by any of the respondents or a breach of settlement pursuant to section 45.9(3). This Application is dismissed.