Stevens v. Nothing But Water Products Inc., 2009 HRTO 2136

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Stevens

Applicant

-and-

Nothing But Water Products Inc.

and Dan Polhamus

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: December 9, 2009

Citation: 2009 HRTO 2136

Indexed as : Stevens v. Nothing But Water Products

AppearanceS BY

Timothy Stevens, Applicant ) On his own behalf

Nothing But Water Products Inc. )

and Dan Polhamus, Respondents ) Sheryl Johnson, Counsel

1This is an Application made under s. 53(3) of the Ontario Human Rights Code (the “Code”), dated December 3, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 28, 2008.

2The applicant alleges that he experienced discrimination because of disability and reprisal in respect of his employment contrary to ss. 5, 8 and 9 of the Code, in relation to the termination of his employment following a workplace injury he sustained on April 27, 2007 and his subsequent claim to the Workplace Safety and Insurance Board (“WSIB”). As part of the allegations raised by the applicant, he alleges that his termination was related to a request that he made to have his pay properly recorded, which would affect his WSIB benefits.

3The Case Resolution Conference (“hearing”) in this matter was held on October 29, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, the personal respondent and two witnesses called by the respondents. All parties were given the opportunity to cross-examine opposing witnesses after I had completed my questioning.

Background

4The corporate respondent Nothing But Water Products Inc. supplies and delivers water to customers. The personal respondent, Dan Polhamus is the owner and principal of Nothing But Water Products Inc.

5The applicant was hired by the respondents on April 17, 2007 to work as a delivery driver.

Evidence

6On Friday, April 27, 2007, the applicant suffered a back injury in the course of making a delivery. While there is some dispute between the parties as to exactly how this injury came about, the precise details of how the injury was sustained are not relevant to this proceeding. The WSIB has confirmed that the injury was work-related, and no issue was taken with that determination by the parties in this proceeding.

7It also is not in dispute that the applicant did not immediately report the injury to Mr. Polhamus on the day it occurred. After experiencing increasingly severe symptoms over the course of the weekend, the applicant called Mr. Polhamus on the morning of Monday, April 30, 2007 to report that he had sustained the injury and would not be able to come in for work.

8The applicant’s evidence is that he was told by Mr. Polhamus not to report to his doctor that he had gotten injured at work and to tell his doctor that he had injured himself some other way. The applicant states that Mr. Polhamus said that he had never had a WSIB claim before and had never had anyone injured at his workplace before. The applicant states that he was told by Mr. Polhamus that he was not to worry, and that Mr. Polhamus would take care of him. The applicant states that he felt uncomfortable by these statements, and didn’t respond directly to them. He just said that he was going to see his doctor and would call Mr. Polhamus back after he had done that.

9Mr. Polhamus’ evidence regarding this telephone conversation is entirely different. Mr. Polhamus denies telling the applicant not to tell his doctor that his injury was work-related. While it is correct that the respondents had never had a WSIB claim before, Mr. Polhamus states that he had nothing to fear by an employee making such a claim because that is what WSIB is for. Mr. Polhamus does acknowledge “digging” about the nature of the injury and asking the applicant whether he was sure that he had injured himself at work, and he further acknowledges saying to the applicant that he should let his doctor make the decision as to whether or not the injury was work-related, rather than himself or the applicant making this determination. Mr. Polhamus further acknowledges that he may have said that he would take care of the applicant, in terms of providing him with work within his restrictions and any assistance that he may require.

10Mr. Polhamus states that he asked the applicant to call him right away after he had seen his doctor, because he knew that he needed to deal with this situation promptly and if necessary file a Form 7 with the WSIB. Mr. Polhamus’ evidence is that he contacted the WSIB that day in order to find out what he needed to do, as he had never previously dealt with a WSIB claim.

11Mr. Polhamus’ evidence is that, when he had not heard from the applicant by late afternoon, he followed up by calling the applicant’s home four times at one hour intervals from 4:00 p.m. until 7:00 p.m., and left messages saying that he needed to hear from the applicant right away. There is no dispute that that evening, at around 8:00 p.m., Mr. Polhamus went to the applicant’s home (Mr. Polhamus lives nearby) in a further attempt to speak with the applicant. After waiting for some time and knocking loudly, the door was finally answered by the applicant’s daughter, who informed Mr. Polhamus that the applicant would not be in for the remainder of the week. The applicant acknowledges that he was at home at the time.

12The applicant’s evidence was unclear as to precisely when he next spoke to Mr. Polhamus after seeing his doctor. I accept Mr. Polhamus’ evidence and find that they next spoke on the morning of Tuesday, May 1, 2007. The applicant’s evidence is that on this call, he informed Mr. Polhamus that his doctor had reported his injury to WSIB. The applicant states that he could tell from Mr. Polhamus’ tone of his voice that he was getting upset with the applicant.

13Mr. Polhamus’ evidence is that during this call, the applicant confirmed that his injury was work-related. Mr. Polhamus states that the applicant did not say that his doctor had filled out a WSIB form. Mr. Polhamus denies that he was angry with the applicant. Mr. Polhamus states that he again offered the applicant light duties or any duties if the doctor recommended it, and the applicant said that he would let Mr. Polhamus know.

14After this call, Mr. Polhamus filled out the WSIB Form 7 (Employer’s Report of Injury) and filed it with the WSIB the next morning. Mr. Polhamus states that he had been advised by the WSIB to offer the applicant modified work, and he did so on April 30, May 1 and again on May 2, 2007. In this final conversation, Mr. Polhamus states that the applicant asked him not to call again and said that he would let Mr. Polhamus know when he was ready to return to work.

15The applicant called the respondents and made arrangements to come in on May 8, 2007 to pick up the pay for his last day worked. The applicant states that he attended at the respondents’ office that day, and while he was there raised an issue about how he had been paid for the preceding week. The respondents’ employees are paid on a weekly basis from the preceding Friday until the following Thursday, with the pay handed out every Friday. The applicant’s evidence is that, when he received his pay on April 27, 2007 for the period from April 20 to 26, 2007, he received an envelope containing a paycheque for 40 hours worked and a further $142.00 in cash representing an additional 9.5 hours overtime.

16The applicant states that he asked Mr. Polhamus to fix the records showing the amount he had been paid for that week, so they would show the true hours that he had worked. The applicant states that Mr. Polhamus said that this was how everyone was paid, and that he wasn’t going to fix the records. The applicant states that he then said that if Mr. Polhamus didn’t fix it, he would file complaints with the appropriate agencies and have it fixed. The applicant states that Mr. Polhamus replied, “If you do that, you won’t have your job much longer”, to which the applicant replied that he would get a lawyer and then sue Mr. Polhamus for wrongful dismissal. The applicant states that he basically left at that point and walked out in a proper manner. The applicant denies that he made any threats to Mr. Polhamus or his business, and denies that he slammed any doors on his way out.

17Mr. Polhamus’ evidence regarding the events of May 8, 2007 is that, after some initial discussion about how the applicant was doing, the applicant asked whether his previous pay for the period from April 20 to 26, 2007 could be changed to also include the 9.5 hours of work that he had performed on April 27, 2007. Mr. Polhamus states that the applicant asked that this be changed so that his pay reflected what he had reported to WSIB. Mr. Polhamus denies that the applicant’s request related to an additional 9.5 hours of overtime work that the applicant alleges he performed during the April 20 to 26, 2007 pay period.

18Mr. Polhamus denies that the applicant worked an additional 9.5 hours of overtime during the April 20 to 26, 2007 pay period, and further denies that the applicant received any cash payment for those additional hours. This evidence is supported by Mr. Polhamus’ daughter, who prepares the paycheques for employees. Her evidence is that all employees are paid by cheque, and that she is the one who puts the cheques in the envelopes for distribution to employees. She testified that she has no knowledge of any cash payments being put into those envelopes in addition to the paycheque. I also heard evidence from another employee of the corporate respondent, and she testified that she had never received any additional cash payments and had no knowledge of other employees receiving any additional cash payments. Mr. Polhamus testified that he sometimes did pay a newly hired employee in cash for the first day worked, while the employee saw whether they liked the job, and states that he may have done do so for the applicant when he was first interviewed on April 17, 2007, but did not otherwise make cash payments to employees. The applicant denies receiving any cash payment on April 17, 2007 and states that he did not work that day.

19After the termination of his employment, the applicant filed a complaint with the Employment Standards Branch, alleging that he had experienced reprisal under s. 74 of the Employment Standards Act, 2000, S.O. 2000, c. 41 on the basis that he had been terminated because of his request that his pay be properly recorded and reported by the respondents. This claim was investigated by an Employment Standards Officer, who attended at the respondents’ premises and reviewed the payroll records for the applicant and other employees and took statements from the applicant, the employer and independent witnesses. The Officer determined that there was not sufficient evidence to prove that the applicant had experienced reprisal. The applicant did not appeal from this decision within the required 30 day time period.

20Mr. Polhamus states that after he told the applicant that he would not change his pay records, the applicant said that he would report a discrepancy in his pay to the Ministry of Labour and he would have the respondents searched and looked into, and that the respondents would spend more money defending allegations than it would cost Mr. Polhamus simply to change the applicant’s pay records. At some point, Mr. Polhamus said, “Look you’ve got a pretty good job here, you better stop making threats”. Mr. Polhamus also recalls the applicant saying that he would sue for wrongful dismissal, and also file a human rights claim that he had been fired for his injury or for claiming WSIB benefits.

21Mr. Polhamus states that the applicant became livid and agitated. Mr. Polhamus states that the applicant said that he was smart, that he wasn’t just a dumb kid, and that he didn’t need Mr. Polhamus to change his pay records because he had ways of making the WSIB pay him. Mr. Polhamus states that the applicant said that if he didn’t cooperate, the applicant had ways of making things very rough on him and would ruin his reputation. Mr. Polhamus states that at this point, he told the applicant to get out, and the applicant did eventually go out the door. Mr. Polhamus states that the applicant did not leave calmly, and threw the door back so that it hit the wall.

22Mr. Polhamus then contacted the Ministry of Labour and the WSIB to find out what his options were in terms of dealing with an employee who had just threatened him and his company. Mr. Polhamus states that the advice he received was that he was not required to continue the employment relationship in these circumstances. As a result, Mr. Polhamus prepared a termination letter for the applicant, which was dated for the following day. Mr. Polhamus also prepared the applicant’s Record of Employment and a final cheque for holiday pay, which were sent out to the applicant by mail.

23The termination letter states that the applicant was dismissed from his employment due to the threats made by him the previous day not only to the company but also personally to Mr. Polhamus as President.

24On May 8, 2007, just prior to the applicant’s arrival, Mr. Polhamus was meeting with his daughter, Nadine Polhamus, in a back office. Ms. Polhamus testified that the back office is about 12 feet away from the front of the office where the applicant was speaking with Mr. Polhamus and the office door was not closed, so she was able to hear what was being said. This witness testified that she clearly heard the applicant ask Mr. Polhamus to change his pay records to include Friday, April 27 onto his previous week’s pay, and she heard her father say that he couldn’t do that. This witness states that the applicant tried to persuade Mr. Polhamus to change his pay and was adamant that this needed to be done.

25When her father refused, Ms. Polhamus states that the applicant seemed to get upset and almost desperate that his demands weren’t being met, and he threatened that he would drag her father’s name through the mud and make him pay through damages. Ms. Polhamus says that the applicant mentioned about going to the Labour Board and that he would cause her father to pay more money in lawyer’s fees than he could imagine, that he knew people in places that could make what he wanted to happen, that he would cause as much damage as possible, that he would cost her father far more money in paying damages and in defending himself than it would cost to change his pay records, and that he would basically ruin the company by these actions.

26Ms. Polhamus states that near the end of the conversation, she got up and visually observed what was happening. She states that her father asked the applicant to leave and said that he had a good job with the company. She states that she was distracted by someone from the back warehouse who peeked through the door to seek instructions, and she had to shoo this person away. While she didn’t see the applicant leave the premises, Ms. Polhamus testified that she heard the door hit the wall like it was swung open with great force.

27Ms. Polhamus states that she was frightened by the applicant’s behaviour, and contemplated calling the police while the situation was ongoing, but didn’t do so because her father seemed to be getting the applicant out the door. She states that after the applicant left, she did suggest to her father that he should call the police, but recalls Mr. Polhamus saying that the applicant was just mad and he didn’t think it would come to a point where the police needed to become involved.

28Ms. Polhamus states that at a certain point in the interaction between the applicant and her father, she took out her cell phone and taped portions of the exchange. Her cell phone could only record a maximum of two minutes at a time, and she estimates that she taped about 8 minutes of the exchange in total. These recordings were not available as evidence at the hearing. Ms. Polhamus testified that she had dropped her cell phone into the toilet at some later point, and despite efforts being made to retrieve the recordings, they were lost. While the applicant took issue with the loss of this alleged evidence, I do not find that this recording was intentionally destroyed such that I should draw an adverse inference from its non-availability.

29One other employee testified about the May 8, 2007 incident. This employee was working in the back warehouse, and did not directly observe the incident. However, she did hear yelling and she heard both the applicant and Mr. Polhamus raise their voices, but she was not able to make out any specific words.

30There was an issue about the applicant not receiving the termination letter, Record of Employment or cheque when it was originally sent out, and discovering much later in July 2007 from a physiotherapist that his employment had been terminated. The applicant then contacted the respondent company and was re-sent these documents. A copy of the stop payment on the original cheque was entered into evidence before me, and I am satisfied that the applicant was terminated at the time the letter was originally prepared on May 9, 2007. In the end, in my view, nothing turns on the delay in the applicant receiving these materials.

31There also was reference in the evidence to some property damage that was done to the respondent company’s premises and vehicles, which resulted in the involvement of the police. While there is some issue as to whether the police ever attempted to contact the applicant regarding this damage, the fact is that there is no evidence before me to indicate that the applicant was responsible for this.

Analysis and Decision

32This case really turns upon my assessment of the evidence and the credibility of the parties. In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pp. 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried 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 the 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.

33The applicant alleges that he experienced discrimination in employment because he suffered a work-related injury and because he made a claim for WSIB benefits. In assessing whether this allegation has been proven on the evidence, in my view there are two critical factual issues: first, whether in fact Mr. Polhamus discouraged the applicant from reporting to his doctor that the injury was work-related; and second, whether the applicant was terminated because he wanted his pay accurately recorded and reported to the WSIB.

34With regard to the first factual issue, I find that in the telephone conversation between the applicant and Mr. Polhamus on April 30, 2007, there was significant room for misinterpretation of what Mr. Polhamus was saying. Mr. Polhamus’ evidence is that he said that it wasn’t up to him or the applicant to determine whether the applicant’s injury was work-related and that this determination should be left to the applicant’s doctor. In my view, this could have been misinterpreted by the applicant as Mr. Polhamus discouraging him from reporting to his doctor that the injury was work-related, when the reality is that this was just a statement that the determination of work-relatedness should be left up to the doctor.

35The evidence appears to be clear that Mr. Polhamus wanted the applicant to call him back after he had seen the doctor. I accept Mr. Polhamus’ evidence that he was anxious to get this report, so that he could get the doctor’s confirmation as to whether the injury was work-related and if so file the Form 7 with WSIB. The fact that Mr. Polhamus was anxious to get this information is evidenced by the phonecalls he made to the applicant later in the afternoon on April 30 and the visit he made to the applicant’s home. When Mr. Polhamus and the applicant finally spoke on May 1, 2007, I do not doubt that Mr. Polhamus may have seemed angry or upset with the applicant, but I attribute this more to his repeated and unsuccessful attempts to contact the applicant the previous day than to any displeasure with the applicant pursuing a WSIB claim.

36The fact is that Mr. Polhamus did file the Form 7 as soon as he had heard from the applicant that he had seen his doctor, and was in touch with the WSIB regarding his obligations as an employer. Accordingly, I do not find that the evidence supports the applicant’s allegation that Mr. Polhamus sought to discourage him from filing a WSIB claim.

37With regard to the termination of the applicant’s employment, the Employment Standards Branch already has investigated the applicant’s claim that his pay was not properly recorded and reported by the respondents, and did not find sufficient evidence to support this claim. I see no basis in the evidence before me to come to any different conclusion. Apart from the applicant’s own evidence that he received a cash payment for overtime, there is no other evidence to support this allegation and there is significant contrary evidence. The making of a cash payment of this nature not only was denied by Mr. Polhamus, but also by his daughter who was responsible for preparing the paycheques and pay envelopes. The other employee who testified gave evidence that she had never received any such cash payment and had no knowledge of others receiving this kind of payment. Further, the evidence is that this was a slow period for the respondents’ business, such that a requirement to work a significant amount of overtime during the April 20 to 26 pay period was unlikely.

38In relation to the reason for the termination of the applicant’s employment, the evidence appears clear that he was terminated as a result of the altercation at the respondents’ premises on May 8, 2007. While the applicant did raise the prospect of filing a human rights complaint during the course of this altercation, I do not find that this was the reason or even a material factor in why the respondents decided to terminate his employment. Rather, his employment was terminated because of the manner in which the applicant conducted himself in that incident.

39The applicant’s evidence is that he was asking for an additional 9.5 hours to be added to his pay records for the April 20 to 26 pay period. The respondents’ evidence is that they understood him to be asking that the hours he worked on April 27, which also was 9.5 hours, be added to the prior pay period. Given that the competing evidence of the parties relates to precisely the same number of hours, it is possible that there may have been some misunderstanding here. However, whichever evidence is believed, I cannot find that the evidence supports that the applicant was making a legitimate request for the alteration of his pay records. Either he was asking the respondents to put a workday from a subsequent pay period onto a prior pay period, which is clearly improper, or he was asking the respondents to add 9.5 hours to the prior pay period, which I have found the evidence does not support that he worked or received payment for.

40As a result, the respondents’ refusal to make this adjustment was reasonable and not discriminatory. In response, I find that the applicant went far beyond merely stating his intention to pursue appropriate legal avenues, including the filing of a human rights complaint. I find that the applicant raised his voice to the point of yelling, and that he also slammed the door against the wall on the way out of the premises. I also find that the applicant made threats to cost the respondents significant sums of money in damages and legal costs, and to damage the reputation of the business and Mr. Polhamus personally. I find that the applicant’s conduct in this regard provided a legitimate, non-discriminatory reason for the termination of his employment and that there was no intention to reprise against the applicant for threatening to file a human rights complaint.

41For all of these reasons, the Application is dismissed.