Meikle v. Fiedler, 2010 HRTO 1306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Channel Meikle

Applicant

-and-

Nelson Fiedler

Respondent

Case resolution conference decision

Adjudicator: Ailsa Jane Wiggins

Date: June 9, 2010

Citation: 2010 HRTO 1306

Indexed as: Meikle v. Fiedler

AppearanceS BY

Channel Meikle, Applicant ) Cathy Davis,

) Representative

Nelson Fiedler, Respondent ) Self-represented

Introduction

1This Case Resolution Conference Decision deals with an Application filed on December 15, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on March 3, 2006 and abandoned upon filing this Application with the Tribunal.

2The Complaint named Canadian Select Farm Foods as corporate respondent and Nelson Fiedler, a branch manager of Canadian Select Farm Foods, as personal respondent. By letter dated February 25, 2009, Ridgley Receivers Inc. advised the Tribunal that it had been appointed as the receiver of Canadian Select Farm Foods. On March 4, 2009, the applicant’s representative advised the Tribunal that the applicant wished to proceed against Nelson Fiedler alone.

3The applicant alleges that, in the course of her employment she was sexually harassed by the respondent, Nelson Fiedler, to whom she reported. She says that the owner of the company, Russ Urbanoski, offered to transfer her to another branch but it was too far away and she had no choice but to quit her job. The respondent denies that he sexually harassed the applicant.

4A one day Case Resolution Conference (“hearing”) was held on November 12, 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.

5At the hearing I heard testimony from the applicant, the respondent, Renaldo Duncan, the applicant’s fiancé, Glen Bradour and Sarah Gortlieb, former employees of Canadian Select Farm Foods, Russ Urbanoski, former owner of Canadian Select Farm Foods, and, via teleconference, Amanda Nielsen, a former employee of Canadian Select Farm Foods and co-worker of the applicant.

6On consent of the parties, I took an active role in questioning the applicant, respondent and their witnesses.

The Facts

7The applicant was hired by Canadian Select Farm Foods (the “Company”) as a telemarketer in October of 2005 and, after about three weeks, promoted to the position of day manager.

8The applicant described six incidents in her complaint and in her testimony:

i) The respondent made several trips to the washroom, telling the applicant that his girlfriend was away and that he’d never masturbated so many times.

ii) The respondent asked the applicant what Jamaican girls were like, using his index finger and thumb to make varying sizes of circles.

iii) The respondent took a picture of the applicant and Ms. Nielsen and under the picture wrote “Cans can sell”. Referring to their breasts he asked, “What size are those?”

iv) In a weekly meeting to go over business matters he showed the applicant and Ms. Nielsen pornographic pictures on his computer.

v) The respondent gave the applicant an unsolicited shoulder rub. When she shrieked he said her fiancé must really love her “because it sounds like you orgasm really fast and loud”.

vi) Papers fell off a desk and when she bent over to pick them up the respondent slapped her on the buttocks.

9The applicant also testified that the respondent had shown the telemarketing crew a nude picture of his girlfriend.

10The last incident, described in paragraph 8 vi) above, occurred on or about February 2, 2006. After that incident the applicant called the Company’s head office and complained about the respondent’s behaviour.

11The applicant testified that the incidents embarrassed and humiliated her, she became withdrawn and depressed, and left the Company as a result of the respondent’s inappropriate behaviour. She stayed at home for five or six months, not wanting to leave the house. It took her ten months to find another job.

12Renaldo Duncan, the applicant’s fiancé, testified that the applicant had told him about the incidents and that they had caused her to become withdrawn, especially around male strangers. He testified that she was not flirtatious and that she had never had problems with other employers.

13Amanda Nielsen, a co-worker of the applicant, testified about four incidents, those set out in subparagraphs iii), iv) and vi) of paragraph 8 above and the incident involving the respondent showing the telemarketing crew, who were all teenaged girls, a nude picture of his girlfriend.

14Ms. Nielsen was dismissed from the Company in April 2006.

15The respondent testified that the incidents described by the applicant and Ms. Nielsen never occurred. He also testified that a salesman at the Company frequently slapped Ms. Nielsen’s backside, and that the applicant’s descriptions of the incidents sounded like what was going on between the salesman and Ms. Nielsen.

16Ms. Nielsen denied this, describing the salesman as a gentleman and saying that her relationship with him was “business only”.

17The respondent said that he had “written up” Ms. Nielsen for inappropriate behaviour in the office and had spoken to the salesman about his behaviour with Ms. Nielsen. When asked why he had not called the salesman as a witness, the respondent indicated that he had tried but had been unable to find him.

18Ms. Nielsen denied having received any verbal or written reprimands from the respondent.

19The former owner of the Company, Russ Urbanoski, testified that the applicant had called him in February 2006 to complain about inappropriate talk in the office and that the respondent had touched her buttocks. He said that he immediately called the respondent into the head office and had a candid conversation with him about the complaint. The respondent denied any inappropriate conversations and touching the applicant. Mr. Urbanoski also spoke to Dave Steel, the regional branch manager and the respondent’s direct supervisor, to see if he had any relevant information about the respondent’s behaviour. He did not.

20Mr. Urbanoski called the applicant and told her that the respondent had denied the allegations. According to Mr. Urbanoski, he did not ask and the applicant did not tell him if there were witnesses to any of the alleged incidents. He said that he told her that he wasn’t sure what else he could do to investigate her complaint and that if she didn’t feel comfortable working with the respondent, she could have a position at one of the Company’s two other offices. The applicant acknowledged that she was offered alternate positions but said that she could not take either of them because of transportation issues.

21Mr. Urbanoski said that while “no numbers were thrown around”, the applicant wanted to know what the Company was going to do for her. The applicant denied asking for financial compensation from the Company. Mr. Urbanoski testified that he suggested to the applicant that she call the police as her allegations were serious. She denied that it was his suggestion to call the police.

22The applicant did contact the police. The police occurrence report indicates that she did not wish to pursue charges of sexual assault. The applicant testified that the report is inaccurate, she did want to press charges but the police were uncooperative.

23Mr. Urbanoski testified that he visited the branch where the parties worked about once every 10 days and never saw anything inappropriate.

24Mr. Urbanoski testified that there were no other complaints about the respondent, other than regarding office management. He stated that while there were no disciplinary issues with the applicant, there were some performance issues regarding her results. He said that there were disciplinary and performance issues with Ms. Nielsen. She was frequently absent and he felt that she was “taking advantage” of the respondent’s nature. Ms. Nielsen was dismissed in April 2006 when she didn’t show up for work. Although Mr. Urbanoski testified that there were no other complaints about the respondent, he later said that after Ms. Nielsen was dismissed, she made allegations concerning the respondent. Mr. Urbanoski said that he met with Mr. Steel and the respondent and could not find any evidence that supported Ms. Nielsen’s allegations.

25Glen Bradour briefly reported to the respondent, then worked at the same level for the Company, and now works for the same company as the respondent. He testified that the respondent was always completely professional and that everybody liked him and was happy working with him. Mr. Bradour admitted that he participated in what he described as “flirty” conversations with both the applicant and Ms. Nielsen. The respondent testified to having overheard these conversations. The applicant and Ms. Nielsen on the other hand denied having any such conversations with Mr. Bradour.

26Sarah Ortlieb, who had worked with the respondent at the Company and now works for the same company as the respondent, testified that she had never heard any complaints about him or that he had any issues with women.

Analysis and Decision

27This would have been a different case had the Company not gone into receivership. While it appears from the evidence that the Company did not have a harassment policy and did a less than adequate job of investigating the applicant’s allegations of harassment, the issue as regards this respondent is whether he himself sexually harassed the applicant.

28This CRC decision turns largely on my assessment of the credibility of the evidence given by the witnesses. In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

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 carries 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 a 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.

29In addition, I have considered the following factors set out in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.

30The onus is on the applicant to show that, on a balance of probabilities, the respondent sexually harassed her as alleged. I am not satisfied that the applicant has provided a credible or reliable account of events in regards to her allegations that the respondent sexually harassed her and in so doing discriminated against her based on her sex.

31Russ Urbanoski, Glen Bradour and Sarah Ortlieb testified in a forthright manner and, although they still work with the respondent, they had nothing to gain by testifying for the respondent and I have no reason to believe that they had ulterior motives for their testimony.

32Ms. Nielsen on the other hand had been dismissed by the Company and for that reason alone may not have been particularly friendly towards the respondent, her former boss. While Ms. Nielsen described herself as an acquaintance rather than a friend of the applicant and the applicant described Ms. Nielsen as a co-worker, it seems likely that they were at least work friends and that as such Ms. Nielsen would be inclined to support the applicant’s version of events.

33An unfavourable inference may be drawn when a party fails to call a material witness. Such a failure may be viewed as an implied admission that the evidence of the absent witness would be contrary to or would not support the party’s case.

34The applicant testified that a possible witness, a co-worker, had moved and she didn’t have his address, only his cell phone number. She said that without his address she couldn’t serve him with a summons. She also testified that she had a cousin who worked at the Company and would have come to the hearing, but the applicant didn’t know if other witnesses would be allowed. Given the fact that the applicant was represented, albeit not by counsel, I do not find that explanation credible. However, the fact that they are cousins would likely have affected the weight that I would have given the applicant’s cousin’s evidence had she testified. The applicant also testified that “a couple of other sales reps” witnessed the final incident. She did not call them to testify at the hearing either.

35Both the applicant and Ms. Nielsen testified that the telemarketing crew witnessed one of the incidents and that incident was mentioned in Ms. Nielsen’s statement, so the respondent would have been aware of the allegation. No explanation was given for why no member of the crew was called by either party.

36The respondent testified that he tried but couldn’t locate the salesman who he alleged was having an affair with Ms. Nielsen. Had the respondent managed to locate the salesman it is questionable how helpful his evidence would have been to the respondent. If the respondent’s allegations concerning the relationship between Ms. Nielsen and the salesman were true, the salesman might have been more likely to support the applicant’s version of events.

37I do not believe that the offer of alternative positions indicates that the Company thought that the respondent had sexually harassed the applicant. On the contrary, Mr. Urbanowski testified that he had no evidence to substantiate the applicant’s allegations and did not know how to go about further investigation.

38I find that on a balance of probabilities, in all the circumstances, after considering all the evidence, I am not satisfied that the respondent subjected the applicant to sexual harassment.

ORDER

39For all of these reasons the Application is dismissed.