Therese Kowalczyk v. The Hudson’s Bay Company, Linda Forbes, Anne Donnelly and Homer Caliwag, 2010 HRTO 1312

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Therese Kowalczyk

Applicant

-and-

The Hudson’s Bay Company, Linda Forbes, Anne Donnelly and Homer Caliwag

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: June 9, 2010

Citation: 2010 HRTO 1312

Indexed as: Kowalczyk v. Hudson’s Bay Company

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 9, 2009.

2The purpose of this Interim Decision is to address the further evidence that applicant’s counsel proposes to elicit from the applicant when the hearing in this matter resumes on June 24, 2010. I also will address some case management issues at the conclusion of this Decision.

3The hearing in this matter commenced on April 19, 2010. At that time, the applicant appeared with counsel, who was just in the process of being retained although he had been assisting the applicant for the previous few days. At that time, the applicant proposed that the first day of hearing be used for case management, which was opposed by the respondents. I proposed to proceed with the hearing, with me taking the lead in questioning the parties and their witnesses and deferring cross-examination of party witnesses until I had complete my questioning of all parties and witnesses. All parties were in agreement with this proposal, and on the first hearing day I completed my questioning of the applicant and I also heard from one witness.

4At the end of my questioning of the applicant, applicant’s counsel proposed to ask the applicant some further questions in chief. As we had a witness waiting and it was near the end of the day, I proposed that we hear from this witness first before completing the questioning of the applicant in chief. The evidence of the witness took us to the end of the day.

5In light of the issues that had arisen already in this proceeding relating to the scope of the Application, I directed the applicant to provide the further particulars that he intended to cover in the applicant’s evidence well in advance of the next hearing day, and I set a schedule for the respondents to make any objection to this proposed evidence and for the applicant to reply. All parties provided written submissions in accordance with the schedule I set.

6I will address the proposed evidence in the order set out in the initial correspondence received from applicant’s counsel.

Group A

7The applicant wishes to provide evidence that she “was told that if she gave the flowers she was holding to so and so, he would reward her with such and such sexual activity in one of the walk-in fridges”. In her reply submissions, the applicant has clarified that she was holding the flowers when Duc Ly told her that if she gave the flowers to Patrick, Patrick would surely reward her with sexual acts in the walk-in fridge next to the soup kettles in the kitchen.

8The respondents object to this proposed evidence on the basis that it is not within the scope of the subject-matter of the Application as addressed in my prior Interim Decision, dated December 30, 2009, 2009 HRTO 2281. In this regard, I note that in the “Meaning of Dignity” document that I reviewed in my prior Interim Decision, the statement does not include any express reference to “sexual” activity. The applicant states that she left this to be implied from the context, and shouldn’t be penalized for a drafting error. Having received this clarification and at least some of the particulars requested by the respondents, I am prepared to hear this evidence.

9The applicant next wishes to provide evidence that she “was asked what kinds of men she liked – hairy or those with smooth skin”. In her reply submissions, the applicant has clarified that Mr. Caliwag asked her whether she preferred hairy men or those with smooth skin during a lunch shift while he was preparing food at his station, and that she refused to answer.

10The respondents object to this evidence on the basis that it was not included in the original complaint as filed by the applicant with the Commission, nor does it appear in any of the other materials submitted by the applicant with her Application. The applicant states that this allegation was included in her original complaint on a page that the applicant submitted to the Commission to be inserted into her complaint. She further states that this additional page was filed with the Tribunal at the time the applicant electronically filed her Application.

11I have reviewed the Tribunal’s file and have found the page referenced by applicant’s counsel, although without the heading addressed to Mr. Martens. This document does appear to form part of the complaint in at least one version of the Application as filed by the applicant and does include reference to the evidence that she proposes to lead. Accordingly, I will hear this evidence.

12The applicant next wished to provide evidence that Mr. Caliwag addressed her and other women as “you sexy so and so”. In her reply submissions, the applicant further alleges that Mr. Caliwag greeted her by saying “you sexy British woman”. Once again, the respondents object to this evidence on the basis that it was not included in the applicant’s complaint or in any of the other material submitted with her Application. The respondents also object on the basis that the applicant has failed to provide sufficient particulars of this allegation, as directed by me.

13The applicant again asserts that this allegation was included in the additional page submitted with her original complaint, and this is correct from the page that I located in the Tribunal’s file. However, while I am prepared to hear the applicant’s evidence that Mr. Caliwag addressed her as “you sexy British woman”, I am not prepared to hear evidence that Mr. Caliwag addressed unidentified “other women” as “you sexy so and so”. The applicant was directed to provide particulars of the additional evidence that she proposed to provide, and this was underscored in the submissions filed by the respondents. Nonetheless, the applicant even in her reply submissions has not identified the “other women” whom Mr. Caliwag is alleged to have addressed in this manner or the date or context in which such alleged comments were made, which makes it virtually impossible for the respondents to respond to such evidence at this late stage of the proceeding.

14The applicant next proposes to provide evidence that Ms. Donnelly ordered the applicant to say only “yes” or “no” when communicating with her, and that the applicant was barred from speaking with her managers, Ms. Donnelly and Mr. Caliwag. The respondents object to this evidence on the basis that it is not within the proper scope of the Application as addressed in my prior Interim Decision.

15The applicant states that this evidence is properly understood as part of the “harsh environment” that the applicant was experiencing in her employment, which made it difficult for her to approach management with her concerns. Viewed in this light, this proposed evidence is not a new allegation of a violation of the Code, but merely an explanation from the applicant as to why she did not report her human rights concerns more fully to management, which may be relevant to the applicant’s credibility. As a result, I am prepared to hear this evidence for this limited purpose.

16The applicant also states that this is an example of “reprisals” experienced by her. In order for something to constitute a “reprisal” in violation of s. 8 of the Code, the applicant must have experienced a reprisal or threat of reprisal for, inter alia, claiming and enforcing her rights under the Code. Thus, to maintain a reprisal allegation, there must be a statement that the applicant sought to claim or enforce her Code rights and that she experienced reprisal or threat of reprisal because of doing so.

17The allegation that she was told by Ms. Donnelly only to respond “yes” or “no” is set out in a document entitled “My Complaint” that was filed with the Application. It appears in the context of a paragraph outlining an allegation of gender discrimination by Ms. Donnelly that I ruled in my Interim Decision was beyond the scope of the Application. There is no allegation in this paragraph that Ms. Donnelly did this because the applicant sought to claim or enforce any rights under the Code.

18The allegation that the applicant was barred from speaking with her managers is included in a document entitled “My Response to the Bay’s Response of Oct 25th 2006”, which was not filed with the Tribunal until March 30, 2010, well after the deadline for the applicant to file any statement of additional facts. Further, there is no allegation that the applicant was barred from speaking to her managers because she sought to claim or enforce any rights under the Code.

19As a result, while I am prepared to hear this evidence for the limited purpose identified above, I am not prepared to consider this evidence as forming part of the allegations of any violation of the Code.

20The applicant next proposes to provide evidence that Ms. Donnelly often humiliated her in front of her colleagues and subjected her to harsher treatment and a more demanding workload than her colleagues, as reprisals for the applicant’s voiced concerns about Ms. Donnelly’s management of the Arcadian Court. Once again, the respondents object to this evidence on the basis that it does not fall within the proper scope of the Application.

21The applicant relies upon the following passage from the additional page to her complaint:

I believe I was fired in retaliation because of my objections to workplace malpractices and environment which I tried to raise during my last performance appraisal. The appraisal which in theory gave me the chance to express my views was used against me. Instead of according me with understanding, courteous consideration and keeping communication lines open, insecure Anne Donnelly felt threatened responding with unacceptable excessive harassment and persecutions, trivial fault finding, publicly undermining my authority, over monitoring me, turning her two assistants against me, spreading malicious innuendos, withholding necessary information, barring me from communicating with her or giving me impossible deadlines, all designed to belittle, isolate, exclude and break my spirit. One of the forms of that harassment was mispronouncing of my name to annoy me.

22As this paragraph makes clear, the applicant believes that she was fired in retaliation “because of my objections to workplace malpractices and environment which I tried to raise during my last performance appraisal”. She further states that “the appraisal which in theory gave me the chance to express my views was used against me”, which is followed by specific references to how she alleges it was used against her in relation to the manner in which she says she was treated by Ms. Donnelly.

23At this point, I already have heard the applicant’s evidence about what was raised in the performance appraisal meeting. The applicant made it clear several times in her evidence in response to specific questions from me that she did not raise her concerns about sexual comments or behaviour in this meeting. Nor is there evidence before me that the applicant otherwise sought to claim or enforce her Code rights during the performance appraisal meeting. As a result, I am not satisfied that the proposed evidence is relevant to any reprisal allegation within my jurisdiction, and accordingly this evidence is disallowed.

24Finally, within this group of proposed evidence, the applicant proposes to lead evidence that Ms. Donnelly said, referring to the applicant, “this one will do me in”. The applicant submits that this is a further demonstration of reprisal. For the reasons already discussed above, this is not an allegation within the proper scope of the Application, and I will not hear this evidence for that purpose. However, the applicant also seeks to rely upon this evidence as a demonstration of the harsh attitude that Ms. Donnelly had towards the applicant and the hostile environment in which the applicant was expected to seek help for her concerns. In this context, I am prepared to hear this evidence for the limited purpose of explaining why the applicant did not raise her human rights concerns more fully with Ms. Donnelly.

Group B

25The applicant proposes to lead evidence that Josephine Dirienzo, a manager in the Arcadian Court, repeatedly reminded the applicant that because of her poor English she was not to answer the telephone. The respondents object to this proposed evidence on the basis that it is a wholly new allegation not contained in the complaint. In reply, the applicant takes the position that this allegation was raised in her statement of additional facts, which she was entitled to file in accordance with the Tribunal’s Transitional Rules.

26While the Tribunal’s Transitional Rules do allow the parties to file a statement of additional facts that they intend to rely upon at the hearing, this does not permit a party to introduce new allegations that are beyond the subject-matter of the complaint as filed with the Commission. While the applicant’s complaint does allege discrimination because of her ancestry, ethnic origin and place of origin, her allegation as it relates to those grounds pertains specifically to the issue regarding the proper pronunciation of her name. The complaint does not refer to any allegation relating to statements about the applicant’s poor English. As a result, I find that this allegation is not within the scope of the subject-matter of the complaint, and this proposed evidence is disallowed.

27The applicant also proposes to lead evidence that, on a number of occasions, Ms. Donnelly mocked the applicant for her choice of words when they differed from Canadian English. Once again, this is not an allegation that was raised in the complaint, and therefore is not within the proper scope of the Application. This proposed evidence is disallowed.

Group C

28The applicant proposes to lead evidence that, when Mr. Rodriguez hit the gallery conference room door very violently and said “bitch come out!”, Ms. Donnelly’s response was simply to say she’d look into the situation and that was the end of it. The respondents object on the basis that evidence regarding this specific incident expressly was excluded by my Interim Decision.

29Paragraph 19 of my prior Interim Decision distinguishes between the use of sexually charged language by this individual and management’s alleged failure to respond to that issue, which I allowed, and general allegations of threatening/violent behaviour, which I found were not raised in the complaint and were beyond the scope of this proceeding. In my view, evidence that Mr. Rodriguez is alleged to have used the word “bitch” on this occasion and Ms. Donnelly’s response to any reporting of that aspect of the incident would fall within the scope of my prior ruling, and I will allow this evidence to that extent.

Group D

30The applicant proposes to lead evidence that the respondents were aware of her disabilities prior to her termination. Specifically, the applicant seeks to provide additional evidence regarding her request for Employee Assistance, as well as her numerous requests for assistance from her co-workers Shelly Garrison and Marilyn Semple in the performance of her work tasks as a result of her disabilities.

31The allegation before me is that the applicant believes that the termination of her employment was based at least in part on her disability. As a result, evidence that management was aware of any disability the applicant may have had would be relevant to that allegation. Thus, to the extent the applicant’s request for Employee Assistance was made to someone in management, I am prepared to hear this evidence. With regard to the applicant’s requests for assistance from her co-workers, this evidence would only be relevant if these requests for assistance were known to management and were known to relate to a disability. As there is no indication in the applicant’s submissions that her requests for co-worker assistance were known to management, I am disallowing this evidence.

32The applicant next proposes to provide evidence that the December 2005 Christmas cards are properly understood in the context of the applicant’s relationship with each recipient, and in no way express any homophobic or racist ideas. This is clearly a relevant issue before me, as the dissemination of these Christmas cards is being relied upon by the respondents as the reason for the termination of the applicant’s employment. Typically, in questioning the parties and their witnesses, I first question the applicant to obtain her evidence in support of her allegations and don’t question the applicant to obtain evidence regarding her response to the evidence that is anticipated to be given by the respondents and their witnesses. The reason I do this is because I find it more appropriate and expeditious to hear the applicant’s response in relation to the actual evidence given by the respondents and their witnesses, as opposed to the anticipated evidence as described in pre-hearing materials filed. I often find that there is a difference between what it is anticipated that these witnesses will say and what they actually say, and I only need to hear an applicant’s response to what these witnesses actually say. That having been said, I am not averse to hearing this evidence now from the applicant, and will allow her to provide this evidence.

33The applicant next proposes to give evidence that “the basis for the Applicant’s termination was because of her disabilities and complaints about management and the view that the Applicant was different because of her religious beliefs, her disabilities and the perception that she did not fit in.” The respondents object to this evidence on the basis that the allegations that the applicant was terminated because of her religious beliefs and because she did not fit in are new allegations that were not raised in the complaint. I agree. The allegations relating to the termination of the applicant’s employment as raised in the complaint are: that she believes she might have been fired at least in part for her work-related disabilities; that she was fired in retaliation because of her objections to workplace malpractices and environment which she tried to raise during her last performance appraisal; and that she asked for employee assistance and got fired. There is no allegation that the applicant believed that she was fired because of her religious beliefs or because of a perception that she did not fit in. As a result, this proposed evidence is not within the scope of the Application and is disallowed. Evidence that the applicant was terminated because of “complaints about management” also is not relevant as it is not within my jurisdiction under the Code, unless and except as any such complaints relate expressly to attempts by the applicant to claim or enforce her Code rights.

34The applicant further proposes to lead evidence that she “would frequently be asked to work faster and would be denied breaks in spite of the fact that the employer was aware of the injuries to her hands and feet and that she was in need of breaks and a slower work pace in order to accommodate her physical disabilities which ultimately resulted in a WSIB complaint”. The respondents object to this evidence on the basis that there was no allegation raised in the complaint that the applicant was denied accommodation for any physical disabilities. I agree. The allegation as it relates to disability is that the applicant believes that her termination may have been at least in part been related to her work-related disabilities. As I have indicated above, evidence that management was aware of the applicant’s disabilities prior to her termination would be relevant to that allegation. However, while the statement of this proposed evidence makes reference to the employer being aware of the injuries to the applicant’s hands and feet, no particulars are provided as to how or when the applicant made the employer aware of this. I also note that in her evidence in response to my questions, the applicant stated that she did not speak to anyone in management about her need for modified duties. Accordingly, this proposed evidence is disallowed.

35Finally, the applicant proposes to provide evidence that “the employer’s justification for termination of the Applicant’s employment does not amount to just cause and reflects a wrongful termination of employment based upon discriminatory grounds”. In my view, this is a submission and not evidence. In addition, I agree with the respondents that whether the employer had just cause to terminate the applicant’s employment is not an issue before me. The applicant also proposes to provide evidence that she experienced significant difficulties with repetitive motions such as chopping, cutting and stuffing about which the employer was aware but failed to take adequate steps to accommodate her disabilities. This evidence is disallowed for the reasons already stated above, namely that lack of accommodation is not an issue raised in the complaint, there are no particulars provided as to how or when management was made aware of the applicant’s disabilities, and this proposed evidence is in conflict with the applicant’s evidence as already given before me.

Case Management

36I note that all parties now have agreed to the bifurcation of this proceeding to first address whether or not the respondents violated the Code, and then at a subsequent time and only if a violation of the Code is found, to address the issue of remedy. As a result, on consent, the hearing is bifurcated accordingly.

37I further confirm that the applicant no longer proposes to call medical evidence in support of her allegations, although she may call such evidence at the remedial stage of this proceeding. I also confirm that the applicant will not be calling any further witnesses in support of her allegations.

38When the hearing resumes, the applicant will be questioned by her counsel in relation to the areas I have allowed in this Decision and then I will allow any questions from respondents’ counsel for the purpose of clarifying or better understanding the applicant’s evidence but not for the purpose of challenging or confronting her evidence, which will be left for cross-examination.

39I next will question the respondents and their witnesses. As the respondents and their witnesses have filed detailed witness statements, I propose to get them to affirm the truth of the content of their statements and then will ask only supplementary questions of these witnesses. After each witness, I will afford respondents’ counsel the opportunity to elicit any further relevant evidence and, for witnesses who are a named respondent, I will afford applicant’s counsel the ability to ask any questions for clarification. For non-party witnesses, cross-examination will proceed immediately after I have completed my questioning and respondents’ counsel has asked any further questions of the witness.

40Once the respondents and their witnesses have been completed, I will go back to the applicant to hear any further evidence she has to provide in response to the respondents’ evidence. Following this, we will proceed with cross-examination of the parties to this proceeding followed by final submissions. My expectation is that we will be able to complete the hearing of this matter over the next two hearing days. The respondents’ non-party witnesses should be available to give their evidence on June 24, 2010.

41Finally, I note that the respondents have sought to submit an additional document, which is an “HBC Workplace Harassment Protection Program” issued in August 2005. At this time, I am not clear as to the relevance of this document to the issues currently before me. In this regard, I note that this policy appears to have been issued in August 2005 and the applicant’s employment was terminated in January 2006. I would need to understand whether it is being alleged that the applicant was made aware of this policy prior to the termination of her employment and failed to act in accordance with its requirements, and if so, why this document and the reason for seeking to rely upon it was not raised at an earlier stage of this proceeding. As a result, I will hear submissions about the admissibility of this document at an appropriate time following the continuation of this proceeding on June 24, 2010.