Szabo v. Regional Municipality of Niagara, 2010 HRTO 1083

Human Rights Tribunal of Ontario

B E T W E E N:

Mary Szabo Applicant

-and-

Regional Municipality of Niagara Respondent

DECISION

Adjudicator: Jay Sengupta Date: May 14, 2010 Citation: 2010 HRTO 1083 Indexed as: Szabo v. Niagara (Regional Municipality)

APPEARANCES

Mary Helen Szabo, Applicant ) George Limberis, Counsel, and ) Ron Allan, Student at Law

Regional Municipality of Niagara, Respondent ) Darryn M. Jeffries, Counsel, and ) Brian McDonald, Student at Law

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged that she suffered harassment, discrimination and reprisal in employment on the grounds of sex, family status and marital status and that she was subjected to sexual solicitation or advances. The respondent disputes the allegations.

2The Application initially named a number of personal respondents in addition to the respondent municipality. However, at the beginning of the hearing, at the request of the applicant, the personal respondents were removed as parties to this Application on consent. During opening argument, counsel for the applicant also made clear that he would not be adducing evidence or argument regarding harassment and discrimination on the grounds of family status and marital status and that the applicant intended to proceed on the remaining grounds named in the Application.

3The hearing into this Application was held over a number of days in October and November, 2009. I heard evidence from the applicant and her daughter. The respondent presented evidence from David Farley, Drew Semple, Patrick Robson and Jim Hagar, all of whom were employed by the respondent municipality during the material time.

Interim Evidentiary Ruling

4On the third day of hearing, I made an interim ruling orally which is set out below. A request was made by the applicant that I hear reply evidence on the question of whether she had made further complaints to the respondent between July 7, 2008 and November 3, 2008, allegations that the respondent argued had not been raised in advance of the hearing. I heard submissions from the parties and ruled as follows:

1. The Application document, which is very detailed and provides dates of contacts between the applicant and employees of the respondent, did not raise any allegations of complaints made during that time frame. (I put aside the July 23, 2008 dress code issue, which although contained in the pleadings had not been put before me in evidence.) The Application did speak of two other meetings and provided the dates of those meetings. There was no suggestion in the Application that complaints were made during those meetings.

2. The respondent, in paragraph 9 of its Response, stated its position that no further complaints or allegations were raised during that time frame. This position has not changed during the course of this hearing.

3. The language used by the applicant in her Reply to paragraph 29 was general, did not refer to complaints made during the material time and, in fact, complained about the inaccessibility of the person to whom she would have made the complaint, Patrick Robson.

4. The Tribunal’s Rules of Procedure provide for opportunities for a party to seek to amend pleadings. That was not done in this case. The parties to the process are entitled to know the case they must answer. I ruled that I would not, therefore, grant the applicant’s request. In my view, it would not be consistent with the fair, just and expeditious process contemplated by the Code and our Rules to permit the applicant to give evidence concerning additional allegations not raised until the hearing had commenced.

5Following my oral ruling, counsel for the applicant requested that I reconsider my ruling on the basis that the applicant had not had benefit of counsel, all relevant evidence would not be before me and that there would be no prejudice to the respondent were I to allow the applicant to call this evidence, as it could recall the witnesses.

6The Tribunal’s Rules contemplate that the Tribunal’s power to reconsider its decisions is limited to “final” decisions and an interim procedural ruling is not a “final” decision that disposes of any of the central issues in the application as between the parties. In any event, I noted that the Application documents show that the applicant did, in fact, have legal representation at the time she filed her Application. I saw no basis to reconsider or revisit my ruling. As a result, I denied the applicant’s request to reconsider my interim procedural ruling.

Post-Hearing Materials

7In addition, following closing submissions on November 27, 2009, the applicant sent a number of emails and attachments to the Registrar and to counsel for the respondent. Although represented by counsel, she sent the materials herself and did not appear to have sent copies to her own counsel.

8I issued a Case Assessment Direction indicating that the respondent did not need to provide a response to the materials sent in by the applicant as I had not called for post-hearing submissions. I further indicated that I would have no regard to any of the materials submitted to the Tribunal after the case had been closed.

The Law

9The relevant sections of the Code are set out below:

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, age, record of offences, marital status, family status or disability.

5(2). Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

7(2). Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee7(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

8. 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.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

The Issues

10The issues in this Application are as follows:

1. Did the applicant suffer discrimination and harassment contrary to the Code?

2. Did the respondent take appropriate steps to address the complaints of harassment?

3. Did the applicant suffer reprisal?

4. If liability is established, what is the appropriate remedy?

The Evidence

11The applicant testified that before working for the respondent, she had been the administrative assistant to the Executive Director of the Niagara Health District Council, a position she had held for 25 years. The parties agree that the applicant began working for the respondent municipality in April 2005. She initially worked for the Public Health Department. In July 2007, she moved to a position as the Administrative Assistant to the Commissioner of Planning and Development.

12She gave evidence that she was interviewed by the then Commissioner, Corwin Cambray, and by David Farley. When hired, she indicates that she sought and received assurances from Cambrey that her position would survive the restructuring process that the municipality was undergoing and that she would remain the Administrative Assistant even though the role of the position may change. She points to language in a letter received at the time of hire for support for this position.

13The respondent takes a different view. It suggests that Commissioner Cambray did not and would not have made any such assurances and interpret the language in the letter differently.

14By the time that the applicant transferred into the department, it was called the Department of Integrated Planning and Development, Commissioner Cambray had already left and in his place were two people, Patrick Robson and David Farley. The applicant testified that she reported to both men and that 80% of her work came from Robson and 20% from Farley.

15The respondent provides a slightly different picture of the reporting relationship. Patrick Robson gave evidence that while he and Farley were co-directors originally, as of March 2008, he was the Acting Commissioner and Farley was Director of Special Initiatives and that the applicant reported to him alone, although Farley would occasionally assign her some work.

16The applicant described having difficult working relationships with David Farley, a Director in the department, and George Nicholson and Drew Semple, two senior members of the planning staff. She felt her role as budget coordinator was not respected and that these individuals were resistant to the changes she was tasked with implementing. She feels they were hostile to her and reports being yelled at by Drew Semple when discussing one of his accounts and feeling embarrassed and demeaned as a result. Mr. Semple, for his part, denies ever having yelled at the applicant or having behaved in a hostile or unprofessional manner towards her.

17The applicant indicates that on one occasion, she heard Mr. Semple make the comment “It’s like foreplay with Mary”. She believed the comment was about and directed at her and felt so demeaned and diminished by the comment that she went home and cried during the weekend.

18Mr. Semple’s evidence on this point is quite different. He testified that he was arranging a retirement party for his co-worker of over three decades, George Nicholson, a man of Irish descent. Mr. Nicholson, apparently known around the workplace as a humorous and skilled raconteur, was in the habit of telling jokes and stories, referred to by his friends and co-workers as “Georgeisms”. One such “Georgeism” was a joke that Mr. Semple retold to two co-workers who were also helping with the arrangements for the retirement event, whose work stations were within earshot and viewing distance of the applicant’s office. The joke was, “What is Irish foreplay? Brace yourself, Mary.”

19Mr. Semple testified that the joke was not about the applicant, she was not involved in the conversation and he did not even know she was present.

20The allegations surrounding Mr. Farley are more numerous. The applicant testified that Mr. Farley would constantly “look her up and down”, making her very uncomfortable and that on more than one occasion he made direct and inappropriate comments to her such as “you have the perfect figure” and “I’m too old for you”. She further testified that he would often clasp her hands and that he touched or caressed her hair as they were standing near the photocopier on one occasion.

21She testified that he made suggestive comments and remarks to her. She described one occasion when she said that they were operating with a “skeleton crew” the day before the long weekend, he responded by looking at her and saying that he thought they were “full-bodied”. Mr. Farley’s explanation is that he was thinking of wine when he made the full-bodied comment.

22Finally, the applicant testified that Mr. Farley had made a comment following a conversation about how she had spent her long weekend gardening that it would “keep her on and off the streets”. She took that comment to refer to streetwalkers or prostitutes.

23Mr. Farley says that a common and harmless expression used in his childhood was that doing something worthwhile would keep you out of trouble and “off the streets” and that is the context of a casual conversation that he made the comment.

24It was following this comment that the applicant spoke to Mr. Farley about the effect that his conduct and comments were having on her. She testified, and Mr. Farley agrees, that she told him that she found his comments offensive and that if they continued she would report him to Human Resources. Both of them agree that Mr. Farley apologized. Mr. Farley also testified that he told the applicant that he had not intended to cause her any offence.

25The applicant approached Patrick Robson for the first time in May 2008. She told him that she was having a problem with Mr. Farley and described the hand touching and hair touching incidents and said that he had made suggestive comments to her.

26There is agreement that this contact took place. Mr. Robson, a former investigator with the Ontario Human Rights Commission, testified that he told the applicant of her options.

27On June 2, 2008, the applicant told Mr. Robson about comments that she found offensive made by Mr. Semple and Mr. Farley. Mr. Robson felt that it would be appropriate to have a Human Resources person speak to the applicant about the matter, and he contacted Jim Hagar who attended a meeting with the applicant later that same day.

28During the meeting, the conduct and comments made by both men were discussed as was the applicant’s concern that her role as budget assistant was meeting with resistance and even hostility from certain long-serving staff members.

29Jim Hagar testified that he assured the applicant of her right to work in a harassment-free environment, outlined the processes available to deal with the issues being raised by her, and that he presented her with a number of options. The result of the meeting, confirmed by emails from Mr. Hagar to Mr. Robson and later emails from the applicant to Mr. Robson, confirm that the applicant wanted the issues raised to be held in confidence as she intended to monitor the situation and if any problems arose, she would be in touch with either Mr. Robson or Human Resources so that the incident could be addressed as soon as possible.

30The next contact between the applicant and the respondent followed the July long weekend, when she reported the “full bodied” and “on and off the streets” comments and her conversation with Mr. Farley during which she “warned” him, in her words.

31Patrick Robson then spoke with Dave Farley and the email traffic suggests that Mr. Farley wanted to meet with the applicant and Mr. Robson to “clear the air”, a suggestion about which Mr. Robson consulted with the applicant. The applicant, in responding by email on July 7, 2008, said the following:

…With due respect, I have stated my concerns, and do not wish to discuss it further with him unless there is another incident at which time I will need to have you and an HR rep present.

32The respondent’s position is that no further incidents took place other than discussions by email about a proposed dress code policy and that the municipality honoured the applicant’s wishes, as earlier stated, to monitor the situation and expected that if she wished them to investigate and take further action, she would let them know.

33The applicant gave evidence in support of her belief that the termination of her employment, contrary to assurances received from former Commissioner Cambray, amount to reprisal for having raised concerns about harassment by Mr. Farley and Mr. Semple.

34The evidence given by both Jim Hagar and Patrick Robson was that job loss experienced by the applicant was the result of a restructuring process that resulted in the elimination of her position and was unrelated in any way to her allegations of harassment.

35Patrick Robson indicated that during the time in question, he was competing for a job as his position was scheduled to be eliminated. He testified that he was not involved in discussions concerning the restructuring that resulted in the elimination of the applicant’s position.

36Similarly, Mr. Hagar testified that his role in the process did not involve decision-making authority with respect to which position would be eliminated. He was responsible for calculating entitlements and preparing separation packages for employees once decisions had been made to eliminate positions.

Analysis and Findings

Credibility

37In assessing the credibility of the parties I have relied on the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he [or she] has seen and heard as well as other factors, combine to produce what is credibility…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 probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…

Did the applicant suffer harassment contrary to the Code?

38In order to constitute sexual harassment, the evidentiary burden on the applicant is to demonstrate that the impugned behaviour was (i) a course of vexatious conduct or comment, (ii) by an employer or employer’s agent, (iii) unwelcome or ought to be known to be unwelcome and (iv) related to sex or gender. See Canada (Human Rights Commission) v. Canada (Armed Forces), 1999 CanLII 7907 (FC), [1999] 3 F.C. 653.

The Allegation concerning Drew Semple

39I found the evidence provided by Mr. Semple straightforward and direct. He stated that he was not aware that the applicant was present and the joke did not refer to her in any way. He testified that he was in the process of gathering material for a retirement party for a colleague with whom he had worked for over three decades. The material included jokes make by this colleague and it was one of these jokes that he retold on the occasion in question. The applicant was not party to the conversation and I find that no comment was directed at her. As such, Mr. Semple did not know and, given the context, could not know that his comment was offensive or unwelcome.

40In addition, although a single incident has been found sufficient to meet the definition of harassment in some circumstances, (Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 and Romano v. 1577118 Ontario Inc., 2008 HRTO 9, I find that the single re-telling of a joke by Mr. Semple to co-workers other than the applicant, with no comment directed towards her, that is the basis of the only allegation against Mr. Semple, does not constitute harassment on the basis of sex.

41In addition, Mr. Semple was not the applicant’s supervisor. As a member of the planning staff, he was a co-worker in the department. The incident described does not constitute an incident of sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit to the applicant

The Allegations concerning David Farley

42There are a number of allegations concerning David Farley. They include conduct such as looking the applicant up and down, moving a chair and causing the applicant to fall, repeated hand clasping and touching her hair on one occasion. There is also an allegation that he made a number of comments such as the “too old for you” comment, the “perfect figure” comment, the “on and off the streets” comment and the “full bodied” comment.

43First, I do not have any meaningful particularized or detailed evidence before me of Mr. Farley looking at the applicant in an inappropriate way and cannot conclude that he engaged in “vexatious conduct” in that regard. I have the evidence of the applicant that he “looked her up and down”. However, I find this allegation vague, generalized and impressionistic. I prefer the evidence of Mr. Farley that he did not look at the applicant in the way described.

44I am unable to conclude that an unfortunate series of events that resulted in the applicant falling to the floor because the chair was pulled out by Mr. Farley to make room for her in a cramped office space had sexual undertones. Although counsel for the applicant argued that Mr. Farley pulled the chair out because he wanted to get close to her, the evidence was that he moved further away from her when he pulled the chair out and I have no reason to believe that his object was to get close to her. Both people in the room confirm that Mr. Farley apologized profusely and appeared upset and distressed that the applicant had fallen to the floor. I am not of the view that this incident can be described as vexatious conduct constituting harassment on the basis of sex.

45The hair touching incident is an event that both parties agree happened but, concerning which, they differ on the details. The applicant describes the contact as a “caress” and Farley gave evidence that he picked lint out of the applicant’s hair. Again, given the fleeting nature of the physical contact, I do not find it constitutes vexatious conduct.

46Although there is no persuasive particularized or detailed evidence of generalized hand touching, clasping or caressing as alleged by the applicant, there was one occasion on which Mr. Farley did touch the applicant’s hand.

47On that occasion, Mr. Farley’s explanation is that he did so because she had what he described as “an angry burn” on her hand. He describes holding her hand with one of his, pointing to the burn and saying “you should put vitamin E cream on that”. Although there was no mention of the reference to vitamin E cream in her Application, the applicant acknowledged in giving her evidence that Mr. Farley did mention vitamin E cream but she also testified that he said “Maybe (or) perhaps I’m too old for you” on that occasion. Mr. Farley denied making the second comment. I find in the context of the discussion of a burn and vitamin E cream that the applicant agreed took place, that it seems unlikely that Mr. Farley would have introduced the topic of their respective ages and, as a result, cannot conclude that the second remark was made.

48There is an explanation for the physical contact and, given the context of discussing a burn on the applicant’s hand, I am not convinced that Mr. Farley ought reasonably to have known that it would have been unwelcome.

49As I indicated above, I find it unlikely that Mr. Farley made the comment that he was too old for the applicant. There is not a significant gap in their ages and the applicant testified that the comment was made at the same time that she and Mr. Farley were talking about the burn on her hand and whether she ought to apply vitamin E cream to it.

50I find that it is unlikely that Mr. Farley made the comment attributed to him by the applicant regarding her figure. In giving his testimony, Mr. Farley has not shied away from admissions that, on some occasions, have not cast him in an entirely positive light. I am persuaded by his evidence that it is not something he would or did say.

51The comment concerning “on and off the streets” or “keeps you off the streets” is not, in my view, one that Mr. Farley intended to be suggestive or that he ought reasonably to have known would be unwelcome. It was part of a conversation about what the applicant had done over a long weekend in the summer and is a common, colloquial expression that was used in context. It is not objectionable and does not meet the definition of harassment.

52On the other hand, the explanation provided by the respondent’s witness regarding the “full bodied” comment is just not plausible. Mr. Farley’s suggestion that he was referring to wine when he made the comment in response to the use of the phrase “skeleton crew” does not make sense. Skeletons do not have anything to do with wine and everything to do with bodies. It is more likely that the remark was meant as a reference to bodies.

53The question for me is whether it constitutes harassment and ought reasonably to have been known to have been unwelcome. This awkward and somewhat suggestive comment, unlike the one involving Mr. Semple, was part of a conversation involving the applicant and could only have been directed to her as the two of them were the only participants in the conversation. Mr. Farley could reasonably be expected to know that such a comment would be unwelcome.

54Despite this, I must consider whether as a single incident, the comment is egregious enough under the circumstances to constitute harassment under the Code. When viewed against other cases where a single incident was found to constitute a violation of section 5 of the Code, such as in Romano, supra, which involved a clearly vexatious comment made to the applicant asking whether she liked to have sex from the front or doggy style and in Murchie, supra, where the respondent was found to have deliberately touched the applicant’s breast, in my view, the event described here is not of the same magnitude and does not constitute a breach of section 5 of the Code.

55Although Mr. Farley was employed as a director by the respondent municipality and assigned work to the applicant and may be considered a person in a position to confer, deny or grant a benefit or advancement, I find that the conduct described above cannot be seen to constitute sexual solicitation or advances.

Were the actions of the respondent in dealing with the complaints of harassment adequate and reasonable?

56Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination or harassment in the workplace and that a failure to do so will itself result in liability under the Code. See Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd. Inq.) and Jones v. Amway of Canada Ltd. (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 (Ont. Bd. Inq.) at para. 74.

57The applicant argues that the response to her complaints was inadequate and that her former employer did not take her concerns seriously. She argues that they had a positive obligation to look into the concerns she had brought forward because David Farley was a Director, she reported to him directly and he assigned work to her. She points to the respondent’s policy and argues that they did not follow it.

58On my review of the evidence, I find that the respondent municipality did take adequate and reasonable steps. Once Patrick Robson, to whom she reported, was made aware of the applicant‘s concerns, he arranged for a meeting with a representative from Human Resources, Jim Hagar, who outlined the options available to the applicant. I am satisfied, having reviewed the email traffic surrounding these events, that the applicant told both Patrick Robson and Jim Hagar that she would monitor the situation and if problems persisted and she wanted the intervention of supervisors or human resources, that she would contact them.

59I was persuaded that the respondents sought the applicant’s input on how she wished to proceed, received it and gave effect to her wishes. Given her stated and written intention to monitor the situation and report any further allegations of harassment, it is my view that the actions taken by the respondent were reasonable and that they met their obligations under the Code.

Was there reprisal?

60Section 8 of the Code provides, in part, that every person has a right to claim and enforce their Code rights and to institute and participate in human rights proceedings without reprisal or threat of reprisal. Reprisal has been held to be a separate ground of liability distinct from the discrimination and harassment protections of the Code. The test for reprisal includes a requirement that there be some evidence of the respondent’s intention to reprise or evidence of a link between the complainant’s invocation of rights and the respondent’s subsequent conduct that is considered to be retaliatory. The respondent’s intention may be inferred based on the complainant's reasonable perception that the respondent's action served as retaliation because of the complainant’s assertion of rights.

61In the case at hand, the applicant has not adduced any credible evidence that the termination of her employment was connected to her concerns and complaints about harassment in the workplace. Neither can an intention to reprise be inferred from the evidence before me.

62There is clear evidence that the restructuring process had been ongoing for a number of years and, in fact, that the applicant was aware of the ongoing changes at the time she was hired and during the course of her employment at the municipality.

63There is also evidence that, while she was working with the budget in her department, the applicant would have been aware of ongoing developments in the restructuring process. Although she gave evidence that at the time she was hired, assurances were made by Commissioner Cambray, the respondent points to a different interpretation of the letter on which the applicant relies for support for that proposition. I am persuaded by the respondent’s argument that it was not in Commissioner Cambray’s power to make assurances to the applicant as to her continued employment after a restructuring process that was likely to last for several years, the results of which would not have been known to him at the time. The respondent argues that he would not have made blanket assurances to the applicant.

64The restructuring decisions that impacted the applicant were made by personnel not involved in the harassment and discrimination complaint. Her manager, Patrick Robson, was himself competing for a job in the newly restructured environment. Both he and Jim Hagar, the human resources specialist addressing the applicant’s human rights complaint, gave uncontradicted evidence that they did not have any involvement in the decisions leading to the loss of the applicant’s position.

65Accordingly, I find that the applicant has not established that she suffered reprisal as defined under the Code.

66For the reasons outlined above, the Application is dismissed.