minicounsel

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Renee Stead

Applicant

-and-

Trehaven Golf & Country Club Inc., Joe Cvik and Barb Cvik

Respondents

Case Resolution Conference decision

Adjudicator: David Muir

Date: June 12, 2009

Citation: 2009 HRTO 830

Indexed as: Stead v. Trehaven Golf & Country Club

AppearanceS BY

Renee Stead, Applicant ) James E. Bowden,

) Counsel

Trehaven Golf & Country Club Inc., ) Joseph N. Tascona,

Joe Cvik and Barb Cvik, Respondents ) Counsel )

[1] This is an Application filed October 7, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[3] The applicant alleges that she was discriminated against in employment on the basis of disability and family status. It is also alleged by the applicant that she was subject to reprisal contrary to section 8 of the Code.

[4] The applicant’s employment was terminated on or about September 11, 2006. She alleges that she was terminated by the respondents because she was married to Rick Cvik and/or because she could not work the hours she had been working because of a medical condition.

[5] The respondents, Barb and Joe Cvik, are the owners of the corporate respondent, Trehaven Golf & Country Club Inc., a golf course. The golf course has been for sale for some time. Rick Cvik is the son of the owners and was the General Manager of the golf course for much of the material time and was the applicant’s spouse at all material times.

[6] The applicant began to work with the corporate respondent in October 2004 but did not receive a regular salary until April 2005. There was some dispute about her title. I find that she functioned as the Food and Beverage Manager/Assistant Manager of the golf course and Rick Cvik, the General Manager, was responsible for the grounds and golf side of the business.

[7] Coincident with beginning work for the respondents in October 2004 the couple sold their matrimonial home and moved into the residence attached to the Club House. At that time they intended to purchase the golf course from Barb and Joe.

[8] The couple were married in January 2006. The applicant stated that she did not receive a wedding gift, flowers or even a card from her parents-in-law and no one from her husband’s family, other than her husband, spoke at the reception. In contrast, several members of her family spoke welcoming her husband into their family. Joe Cvik explained that gifts and things were his wife’s responsibility and that he is a terrible speechmaker.

[9] By September 2005 the applicant states that she began to have health problems. The diagnosis provided by her doctors was diabetes. The applicant stated that her condition was caused in part by the stress and her long work hours. The applicant stated that her hours of work were long, up to 12 hours per day for six and sometimes seven days per week. A typical work week was about 50 hours. The respondents initially denied this but when challenged Rick Cvik conceded the applicant could work six and sometimes seven days a week and in excess of 50 to 60 hours per week in some weeks. The applicant states that she wanted to hire more staff but was told there was no money for extra staff.

[10] The applicant states that the respondents were aware of her diabetes. She testified that she had at least two conversations about it with Joe Cvik who was also a diabetic. One conversation occurred in the Fall of 2005 in the Club House at the bar. A further conversation happened in April 2005 at about the time that she obtained a qlucose monitor.

[11] Joe Cvik testified that he did not recall either discussion. Rick Cvik stated that he was aware that his wife was on “watch” for diabetes but stated that he did not know that there had been a firm diagnosis.

[12] It is agreed that the applicant reduced her work week by one day per week beginning sometime in July, 2006. Rick Cvik acknowledged the applicant sought to reduce her hours due to her health concerns but testified that he thought there were other reasons including the fact that the deal to purchase the golf course had fallen apart by that point. It is agreed that her salary was not reduced as a consequence of the reduction in her work week.

[13] In July 2006 the applicant purchased a house. The applicant testified that she discussed the idea with her spouse and they agreed that she should put her money into a property as an investment because by this time the plan to purchase the golf course had fallen through. Rick Cvik agreed but suggested in his evidence that the applicant moved out of the Club House and into the newly purchased house in July. The applicant denies moving out but testified that she was at the new house a lot preparing it for her daughter and grandchildren to move in on September 1, 2006 and did sleep there on occasion. When challenged on his version of events on this point, Rick Cvik was vague and evasive. To the extent that it is material, I prefer the applicant’s evidence that she continued to reside at the golf course until the termination of her employment on September 11, 2006.

[14] The applicant acknowledges that there were problems in the marriage by the summer of 2006 but that at least in her view they were not irreparable at that point. The marriage fell apart after September 11, 2006 and was not clearly over in the applicant’s mind until after the couple took a vacation together in October.

[15] Joe Cvik testified that he did not want to “step on any toes” and he had left the running of the golf course to his son and daughter-in-law. He also testified that he was not there all that often, only golfing one or two days per week. He specifically denied meeting with Rick Cvik on a weekly basis to discuss the operation of the course. The applicant disputed the respondents’ evidence in this regard and testified that Joe Cvik remained a presence at the golf course.

[16] Despite his allegedly hands off approach to management in early September 2006, Joe Cvik made a number of decisions about its future. On September 10, 2006, he met with his daughter, Carol Dunn, and obtained her agreement to return to run the golf course. This would require her to take a leave of absence from her work. He testified that at some point prior to speaking with Carol Dunn, he had made enquiries at the bank and based on the information provided by the bank, decided that the golf course was in a perilous financial position. Although the information he relied on was quite limited and there had been some extraordinary expenses over which Rick Cvik and the applicant had little control, Joe Cvik’s concerns were not obviously unreasonable.

[17] On the morning of September 11, Joe Cvik arrived at the golf course. He told his son what was going to happen. There was no discussion. If control over the golf course had ever been relinquished, Joe Cvik had taken it back. The applicant was to be fired. Ms. Dunn would become General Manager, take over the applicant’s responsibilities and be paid half her salary. Rick Cvik was stripped of his title of General Manager and his pay would be cut in half. It seems to be agreed that Joe Cvik intended to tell the applicant she was fired but Rick Cvik persuaded him that he should do it out of concern for his father’s health.

[18] The applicant testified that Rick Cvik called her into the residence from the Club House and told her that he had to fire her at the direction of Joe Cvik. Rick Cvik told her that he was delivering the message because his father was unwell. He also said that she should not feel bad because he had been fired as General Manager and re-hired as Superintendent and Carol Dunn was taking over. He told her that she had to immediately leave the property and she told him she could not leave without her purse. The applicant testified she was told that the reason for her termination was that she was not putting in enough hours. That is why she believes she was able to collect employment insurance. The applicant testified Rick Cvik was visibly shaken as he delivered this message. Rick Cvik retrieved her purse and keys and she left the residence. There was no discussion of a cut in salary similar to that imposed on her husband or the possibility of seasonal part-time work that was always available and would have been of interest to her.

[19] Mr. Cvik denies that he gave his wife a reason for her termination and recollected nothing of the applicant’s description of their conversation as set out above.

[20] The respondents state that after leaving that day the applicant never returned to the golf course. The applicant denied this and testified that she re-attended the golf course on a number of occasions to meet with her husband, have dinner with other members of the family and obtain personal items from her former home. It is not disputed that no one in the Cvik family expressed any regret to her about the end of her employment relationship with the Cvik family.

Admissibility of HRDC evidence

[21] An evidentiary issue arose in the context of the questioning of the applicant about a record of employment (ROE) that was issued to her by the corporate respondent. At the time of the hearing neither party had produced an ROE. Rick Cvik was asked what he had recorded on the ROE as the reason for dismissal and he stated that he could not remember. It was suggested to him that he had stated as the reason for termination that the applicant was unable to work the hours required due to illness. Mr. Cvik denied this.

[22] The applicant was later asked by her counsel about the ROE and what she recollected was the reason it recorded for her termination. The respondents objected to the question on the basis that it required a hearsay response. I allowed the question. The applicant recollected that the ROE recorded that the reason for dismissal was that she could not work the hours required of her due to illness.

[23] At the conclusion of the day the applicant raised the issue of the ROE and inquired whether I wanted it produced if it could be located. Largely at the instance of the respondents, I directed both parties to look again and see if they could locate the document, and both parties undertook to do so within a reasonable period of time. No specific deadline was included in my direction but it was my expressed expectation that the document be retrieved from whatever file it might be located in within a week to 10 days of the CRC hearing.

[24] The employer subsequently located an ROE from its files and provided a copy to the applicant and the Tribunal on April 24, 2009. The ROE indicates that the reason for its issuance was a dismissal (Code M). No reason for the dismissal is provided.

[25] Meanwhile in furtherance of her efforts to obtain a copy of the ROE, the applicant made enquires of Human Resources and Skills Development Canada (HRDC) on April 22. On April 23, 2009, her counsel wrote to the HRDC requesting six enumerated documents. On the same date, counsel wrote to Tribunal to advise that enquires had been made of HRDC which had provided information as follows:

a. Trehaven did not “in the first instance provide a reason for the interruption of earnings on the Record of Employment”.

b. There is a follow up communication between Trehaven in which there is indication that “Trehaven advised HRDC that the reason for the interruption of earnings was that Ms. Stead was ill and that she could no longer work as many hours, that the hours she was able to work did not then justify her salary”

Counsel requested in the same letter that, given the importance of this information to the issue for determination in the liability phase of the CRC, the applicant be given 45 days (to June 7, 2009) to produce the information and present it to the Tribunal.

[26] On May 7, 2009, the respondents wrote to the Tribunal objecting to the granting of further time to obtain anything beyond the ROE, which the employer had already produced from its files. The respondents stated that the claim there is a record of communication in HRDC files (as set out above) is not supported by any documentation. The respondents also stated that the applicant ought to have sought such documents well in advance of the hearing so that whatever existed would have been available to challenge the evidence of the respondents at the case resolution conference.

[27] On May 13, 2009, applicant’s counsel filed with the Tribunal and delivered to the respondents a number of documents produced by HRDC pursuant to the earlier request. One of the documents contains what purports to be a summary record of a November 16, 2006 telephone conversation between an employee of HRDC and Rick Cvik:

Spoke with Richard Cvik concerning the reason for the dismissal. He advised that the hours of work for salaried staff generally started at 9:00 a.m. and would go until the Club closed, at least 12 hour days. After Renee had been off sick she could no longer do the long hours. The employer let her go for that reason.

[28] I requested the submissions of the parties with respect to the following issues:

a. Is the document or its contents admissible in evidence at this stage of the proceeding in light of my direction at the end of the first day of hearing, requiring both parties to make their best efforts to obtain the ROE?

b. If admissible, on what basis is it admissible?

c. If the document or its contents are admissible is any further evidence required in respect of the document itself or its contents; or as a consequence of its being admitted?

[30] It would be unfair to the applicant to allow into evidence what the respondents chose to disclose to the HRDC in the ROE without the rest of the information obtained by the HRDC in the course of its follow-up to the incomplete information provided by the employer at first instance.

[31] The respondents made a number of technical arguments to the effect that I had no jurisdiction to consider this evidence as it was tendered outside of the CRC. To my mind these submissions are without merit.

[32] More substantively the respondents state that they are prejudiced by the admission of this evidence, after Rick Cvik has given his evidence and before he could respond to this new information and claim Rick Cvik was never asked about the ROE or what reason was given for the applicant’s termination. I do not agree. Rick Cvik was questioned about the content of the ROE and the reasons given to the HRDC for the termination. It was suggested that he had stated on the ROE that the reason for dismissal was the applicant’s inability to work the hours required because of illness. It is true that he was not asked about any subsequent discussion with HRDC. However, to my mind, the questions asked of him might reasonably have prompted Rick Cvik to recollect this alleged communication with the HRDC on November 16, 2006. I also note that the respondents have not asked to recall Rick Cvik to comment on the HRDC documents.

[33] The applicant acknowledges the respondents’ position that the contents of the record are hearsay, but submits there are some guarantees of reliability surrounding the statements it contains. The document was created by the government agency charged with administering the employment insurance program and in this case determining whether or not she was entitled to the benefit.

[34] Although the content of the document is itself hearsay, I am entitled to admit hearsay evidence and will do so in this case because, as the applicant has stated, it is a government record created in the course of an investigation of the applicant’s claim to employment insurance benefits. It was created by the government agency charged with responsibility of administering employment insurance claims. It also cannot be said to be tainted by self-interest or an interest in the outcome of this Application.

[35] The respondents also state that the admitting of this document offends the rule in Browne v. Dunn. I do not agree. Rick Cvik was asked about what he recorded on the ROE and in particular it was suggested that he had said that she was unable to work the hours required of her due to illness. The rule in Browne v. Dunn is a rule of evidence intended to ensure fairness between the parties. It is to my mind somewhat disingenuous in all the circumstances to now rely upon part of his communication with the HRDC as set out in the ROE but at the same time claim that it is unfair that the second half of the dialogue be admitted. A strict application of the rule in these circumstances would visit a clear unfairness on the applicant and I decline to do so.

Analysis

[36] The applicant states that the employer failed to take steps to accommodate her diabetes and ultimately it was her disability or perceived disability that was the reason she was summarily dismissed from her employment. While I find that the corporate respondent and Rick Cvik initially accommodated the applicant’s health concerns for a period of time, her inability or perceived inability to work the kind of hours required of her was a factor in the decision to terminate her employment. In this respect the respondents failed to meet both their procedural and substantive obligations to provide reasonable accommodation of the applicant’s disability. The claim of discrimination in employment on the basis of disability succeeds.

[37] A note about the credibility of the witnesses called. The divergence in the version of events offered by the applicant and respondents is at times stark. Although in some cases the differences can be explained by the passage of time and fading memories, on many key issues some of the witnesses were not entirely truthful. In sorting out some of these issues, I have considered the following from a traditional test for credibility set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A):

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 demeanour 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 is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

[38] The applicant gave her evidence in a straightforward manner. She was able to recall events with sufficient surrounding detail to give them the ring of truth. The manner in which Joe and Rick Cvik delivered their testimony was not nearly as persuasive on key points. When challenged on their version of events, they both would too often claim to not recall. At other times their evidence was at odds with the usual and normal course of events. For example, the applicant relies upon the fact that her disability was known to both her husband and Joe Cvik. Rick Cvik acknowledges that he had some awareness of his wife’s diabetes, but downplays the extent of his knowledge. Joe Cvik denies knowing anything. Aside from the fact that the applicant was able to describe in detail her discussions with Joe Cvik, it stretches credulity that he was as unaware of her health concerns as he claims. It also seems inconsistent with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in the circumstances that Joe Cvik was never aware that the applicant reduced her hours of work in July 2006 and that she did so because of health concerns.

[39] Even more so for Rick Cvik to on one hand acknowledge that his wife was reducing her hours of work during the busiest time for the golf course due to her health concerns, but then to claim that he really did not know what those health concerns were. This seems unlikely. If he had doubts about what was motivating the applicant to reduce her hours, which is what he suggests, it would be more consistent with his suspicions that he would have discussed it with her. There was no such evidence. On these and other key points I prefer the applicant’s evidence over that of Rick and Joe Cvik. The evidence of Ms. Dunn was limited and not particularly at odds with the applicant’s evidence on the material issues.

Was the applicant’s employment terminated in part because she was perceived to be or was a person with a disability?

[40] Given my findings on credibility, I am satisfied that both Joe and Rick Cvik were aware of the applicant’s diabetes and her claim that she could no longer work the long hours required of her due to her medical problems. There is no dispute the applicant is diabetic and that it was a serious issue for her. The medical evidence supports the conclusion that her condition was deteriorating between January and September 2006.

[41] I also accept the applicant’s evidence that she was told by Rick Cvik that the reason that Joe Cvik had decided to terminate her was that she was unable to work the hours required of her. My conclusion in this regard is reinforced by the contents of the documents obtained from the HRDC. The statement attributed to Rick Cvik is consistent in most material respects with what the applicant claims she was told. The statement is in a record of the government agency responsible for the administration of the employment insurance program and appears to have been obtained during the course of the entitlement investigation. Given the similarity between the HRDC record and what the applicant claims she was told, I am satisfied it is more likely than not that the record reflects what Rick Cvik said to the HRDC when contacted by them.

Was employment terminated because the applicant was married to Rick Cvik?

[42] While I accept that one inference that can be drawn from the circumstances is that Joe Cvik terminated the applicant’s employment because she was married to his son, there are other possible inferences. I have already found that one of the facts was his concern that her health problems might limit her effectiveness running the food and beverage side of the business. The evidence might also lead to the inference that he just did not like her. There is nothing in the evidence that pushes one possible inference ahead of the other possible explanations. I am not satisfied the evidence shows applicant’s marital relationship was a factor in the decision to end her employment.

[43] More importantly I note the applicant alleges discrimination based on family status not marital status. Family status is a defined term in the Code and means the “status of being in a parent and child relationship”. There is no evidence that would support a finding on this ground.

Was termination a reprisal for having sought to enforce rights under the Code?

[44] The applicant made no submissions in this regard and in any event I find that while a possible inference, considering all of the circumstances I am not satisfied there is sufficient evidence to support a finding on this ground.

Case Management

[45] Given my conclusion that the respondents violated the Code in the manner in which they terminated the applicant’s employment, the CRC will resume to consider the remedies issues, unless the parties advise the Registrar-Transition in writing that they wish to resolve those issues themselves within 10 days of the date of this Decision and file a completed Form TR-10 Confirmation of Settlement with the Registrar-Transition no later than 90 days from the date of this Decision.

Dated at Toronto, this 12th day of June, 2009.

“Signed by”

David Muir

Vice-chair