Marshall v. G & A Lock and Security Service, 2010 HRTO 1479

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Marshall

Applicant

-and-

G & A Lock and Security Service Ltd. and Raymond Charron

Respondents

DECISION

Adjudicator: Ena Chadha

Date: July 8, 2010

Citation: 2010 HRTO 1479

Indexed as: Marshall v. G & A Lock and Security Service

APPEARANCES

Melissa Marshall, Applicant ) On Her Own Behalf

G & A Lock and Security Service Ltd., ) Justin Heimpel, Counsel and Raymond Charron, Respondents )

Introduction

1This Application was filed on April 26, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O 1990, c. H.19, as amended (the “Code”), alleging G & A Lock and Security Service Ltd. (“the corporate respondent”) and Raymond Charron (“the personal respondent”) harassed and discriminated against Melissa Marshall (“the applicant”) in employment on the basis of sex. The applicant alleges that, during the course of her employment, the personal respondent subjected to her derogatory conduct and comments that were related to her gender. The applicant also claims that she was forced to quit her employment because, despite requests for assistance, the corporate respondent failed to take appropriate action to halt the personal respondent’s offensive behaviour.

2The respondents deny the allegations of discriminatory and harassing treatment. They say that the applicant and the personal respondent had conflicts arising out of the applicant’s work performance. While the respondents acknowledge that the applicant had once previously raised a concern regarding the personal respondent, they contend that complaint pertained to work friction and was entirely unrelated to gender. The respondents submit that the applicant was disgruntled about the personal respondent’s criticism of her work performance and, as a consequence, resigned her employment in a fit of anger.

3The hearing into this matter was held on June 28, 2010. The applicant testified on her own behalf. The respondents called the personal respondent and Jeffrey Bechard, a manager with the corporate respondent. Both parties tendered documentary evidence in the form of various emails exchanged between the applicant and management of the corporate respondent, as well as the applicant and her co-workers.

BACKGROUND SUMMARY

4The applicant was employed by the corporate respondent for a little over five months, from October 18, 2008 to March 27, 2009. The corporate respondent is a locksmith business with offices in Waterloo and Guelph. The corporate respondent employs approximately 30 employees, nine of whom work at the Guelph location. The personal respondent is a safe technician and has been employed with the corporate respondent’s Guelph office for almost five years.

5The applicant was hired for the Guelph office; however, she trained for approximately two months in the Waterloo office. In addition to the applicant and Jeffrey Bechard (“Bechard”), the manager, at least two employees were present at the Guelph office on daily basis. The applicant was the only female employee in the Guelph office. The applicant’s duties were primarily the implementation and operation of a new computerized dispatch system, processing work orders, telephone customer service, and clerical work.

6The applicant began working in the Guelph office in mid-December 2008. The applicant’s duties necessitated that the applicant and personal respondent interact on a regular basis in the workplace. All parties agree that, in the beginning of her tenure in the Guelph office, the applicant had no problems with the personal respondent. The parties further agree that tension between the applicant and the personal respondent seemed to mount in the last month or so of the applicant’s employment.

APPLICANT’S EVIDENCE

7The applicant alleges that several unnamed staff warned her, during her training in Waterloo, that the personal respondent was “arrogant”, “ignorant”, and “difficult”. The applicant understood these warnings to be in regards to the personal respondent’s interactions with women.

8The applicant testified that the personal respondent had problems adjusting to the new computerized dispatching system and treated her in a rude manner whenever he had difficulties with the new system. She alleges that the personal respondent verbally attacked her and blamed her for any errors, even if the mistakes were as a result of his own misunderstanding.

9The applicant further claims that the personal respondent belittled her advice, while willingly accepting the same advice from male colleagues. She testified about one incident when she attempted to explain a computerized work order to the personal respondent, but the personal respondent dismissed her advice. She later observed the personal respondent receive that identical advice from a male technician. She alleges the personal respondent rudely ignored her and turned his back when she approached him to confirm that she had previously given him the correct information.

10The applicant also described one occasion when she and the personal respondent were discussing shoveling snow and the personal respondent referred to this as “woman’s work”. Although the applicant did not provide any specifics, she further claims that the personal respondent expressed his view that “a woman’s place is in the home”. The applicant explains that she understood the personal respondent’s behaviour towards her was related to her gender because she believed he would never be as disrespectful to a man.

11The applicant alleges that on numerous occasions she informed Bechard, as the manager, about the personal respondent’s mistreatment. The applicant did not provide any details regarding these discussions, except to recall once Bechard advised her to simply treat the personal respondent like she would treat her ten year old son.

12The applicant testified that the incident giving rise to her resignation occurred on March 26, 2009. The applicant alleges that she could tell from the personal respondent’s tone that he was upset with her because she had not completed one of his work orders. When she apologized and attempted to retrieve the work order from his hands, the personal respondent ripped the paper back out from her hands and said “Forget it”. She responded “Don’t be that way Ray” to which the personal respondent replied “Why don’t you do your god-damn job”. The applicant admits that she was angered by this and responded “I am doing my god-damn fucking job”. The applicant alleges that, later that afternoon, when Bechard spoke to her about the verbal altercation, he refused to see the personal respondent’s role in the incident. The applicant felt that Bechard was taking the personal respondent’s side so that she had no choice but to tender her resignation and give two week’s notice. The applicant alleges that the following day she was compelled to immediately quit her employment because when she and Bechard once more discussed the incident he was again unsupportive. The applicant testified that she felt that she would never gain Bechard’s support because the personal respondent was more valuable to the company than she and also because Bechard was married to the corporate owner’s sister.

13The applicant acknowledges that on two separate occasions she was cautioned (once by the owner of the company and once by Bechard) about her use of foul language in the workplace. Under cross-examination, the applicant admitted that she likely used the “F word” between 25-50 times during her five months of employment. The applicant further acknowledges that, early in her employment, she voiced concerns about being unwelcomed and reluctantly trained by a female co-worker and that the corporate respondent and Bechard intervened to satisfactorily mediate the situation.

RESPONDENTS’ EVIDENCE

14The respondents deny that the personal respondent harassed or otherwise discriminated against the applicant. The respondents submit that the applicant openly held men in disdain and frequently spoke in the workplace about her ex-husband in negative terms. The respondents allege that the applicant was not receptive to legitimate criticism of her work performance and this caused a rift between the applicant and the personal respondent. The respondents submit that, once the applicant’s relationship with the personal respondent began to deteriorate, the applicant also began to vocally draw negative comparisons between the personal respondent and her ex-husband.

15The personal respondent alleges that he generally does not use expletive language. He claims that he never verbally abused or harassed the applicant. He denied the “shoveling snow” and “woman’s place” remarks and submits that his common-law wife works outside of the home and they share in the task of shoveling snow.

16The personal respondent testified that he appreciated the applicant’s assistance in implementing the new computer system and, until near the end of her employment, considered her work to be good. He confirmed that, except for the last month, they had a reasonable working relationship. He testified that their working relationship deteriorated after an incident when the applicant took deep offence to the fact that he double-checked information regarding a condominium lock system and discovered that she had provided him with an inaccurate detail. The personal respondent described the applicant as defensive and overwrought when he drew her attention to the error.

17The personal respondent’s recollection of the culminating incident on March 26, 2009 was generally consistent with the applicant. The personal respondent acknowledged that he was upset upon learning that his work order was not completed; however, he denies that he expressed his upset to the applicant through any comment or conduct. He testified the applicant grew defensive when he began to walk away with the outstanding work order and that some sort of tug of war ensued over the work order. As a result, he told the applicant to do her “god-damn job” at which time she swore back at him. He testified that he was surprised to learn that the applicant had resigned the next day.

18Bechard confirmed that he had concerns with respect to the applicant’s frequent use of foul language and spoke to her in this regard. He further testified that, during her training period, the applicant had expressed discontent regarding a female co-worker and that he had worked with the owner of the company to address this situation.

19Bechard testified that the applicant came to him once, a couple of weeks prior to her resignation, with concerns regarding how the personal respondent treated her when he discovered she provided erroneous information about a condominium lock system. Bechard denies that these concerns were in any way related to gender discrimination or harassment. Bechard testified that he spoke to the personal respondent about the incident and determined that the personal respondent had done nothing untoward. Bechard acknowledges that he told the applicant something to the effect that she should talk to the personal respondent like a child. However, he explained that he said this more as a reflection on the applicant, meaning that she shouldn’t lose her temper at, or become stressed with, the personal respondent.

20Bechard testified that he recalled the incident on March 26, 2009 because he was in his office when he heard angry voices. Bechard explained he was on the phone with a client so he was not able to immediately interject to placate the confrontation. He heard an argument which ended with the personal respondent saying something to the effect of “Just do your god-damn job” to which the applicant shouted in reply “Fuck you, I am doing my job”. Bechard saw the personal respondent exit the office at this point. Bechard called the applicant into his office to find out what had occurred. The applicant admitted that she had not completed the personal respondent’s work order, but indicated that the personal respondent had treated her with disrespect. Bechard advised that he would speak to the personal respondent. Soon after, Bechard spoke to the personal respondent and learned that the applicant and personal respondent had both lost their tempers over the work order.

21Later the same day, after speaking to the personal respondent, Bechard again met with the applicant and explained that both individuals had responsibility for the verbal altercation. At this point, the applicant became upset and launched into a tearful tirade that the personal respondent was “picking on her”, that she was “going to charge the company with sexual harassment” and that she was giving two week’s notice. Bechard testified that he stopped the applicant and asked her to back up and explain what she meant by her statement that she was going to charge the company with sexual harassment. The applicant rescinded the comment. Bechard alleged that although he attempted to make further inquiries the applicant refused to discuss the matter further. He testified that when he approached the applicant the next afternoon to again discuss the matter things went further “downhill” with the applicant alleging that the company as a whole did not respect her and that she was quitting immediately.

22Bechard identified an email he received from the applicant two days later acknowledging that it was “regrettable” that she had “walked out”, but that she felt like she had no choice because she did not have Bechard’s support when the personal respondent treated her like “dirt”. The email concludes with the applicant stating that she was uncomfortable with the personal respondent because he has “no respect for the woman gender”.

CREDIBILITY

23In determining the disputed evidence, I am required to evaluate credibility. In assessing credibility, I am mindful of the guidance provided by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357, which states that the real test of the truth of a witness’s story is “...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”. In addition, other factors for consideration include: the motives and relationship of the parties and witnesses, internal and overall inconsistencies and contradictions, and observations as to demeanour and candour. Further, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference. See Shah v. George Brown College, 2009 HRTO 920, at para. 14.

24Based on the totality of the oral and documentary evidence, I did not find the applicant’s version of the events to be credible. Throughout her testimony, the applicant aggrandized her claim, was combative, and presented as overly dramatic. Notwithstanding my repeated requests directing the applicant to stop debating the nature of cross-examination, the applicant was argumentative. The applicant refused to answer questions and was evasive. Frequent refrains in her testimony included that she couldn’t remember and that she didn’t know that she was expected to document everything even when blatant omissions in the materials were pointed out to her.

25Most glaring was the applicant’s lack of explanation for why she did not include the events of March 26, 2009 culminating in her resignation in her Application. Despite the fact that the Application specifies a claim for six months lost wages, the Application is entirely devoid of any details about how or why the applicant’s employment came to an end. The absence of this incident is problematic given the applicant’s testimony that the personal respondent’s alleged mistreatment of her was so traumatic that she was forced to quit. It was apparent during her testimony that the applicant’s story was evolving and that she was both embellishing and deleting details to bolster her claim.

26In contrast, I found the respondents’ witnesses to be plain-spoken and their testimony to be detailed and balanced. Some parts of both the personal respondent’s and Bechard’s evidence could be seen to assist the applicant. For example, the personal respondent described the applicant as a good worker and Bechard acknowledged that the applicant had once previously spoken to him about conflict with the personal respondent. In conclusion, I prefer the evidence of the respondents over the evidence of the applicant. The respondents’ evidence was straightforward and their response was not only consistent with the overall evidence, but more fulsome in filling in the gaps in the applicant’s chronology.

ANALYSIS

27The applicant may genuinely feel that the issues in the workplace are related to her gender, however the evidence before the Tribunal does not lead to that conclusion. The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she was harassed and discriminated against, with respect to employment, on the basis of the prohibited ground of sex. A prima facie case of discrimination “…is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complaint’s favour in the absence of an answer from the respondent-employer”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28.

28Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at paras. 51-52.

29Considering all the evidence, the applicant’s allegations as set out in her Application and the limited information that she provided at the hearing, as well as the respondents’ explanations, I cannot conclude that the respondents violated the Code. The only gender-related references noted in the Application and her testimony were regarding “woman’s work” and “woman’s place”, which the personal respondent denies. The applicant did not provide any context for the statements except for her bald claim alleging these comments were made by the personal respondent. Although the applicant declared that numerous co-workers observed the personal respondent’s mistreatment of her and supported her claim, no such witnesses were called. The applicant had no corroborating or confirmatory evidence that the conditions of her employment were poisoned by offensive gender-related comments or conduct, nor any evidence that the events precipitating her resignation involved inappropriate gender-related treatment or considerations.

30The documentary evidence included several emails from the applicant to Bechard and the owner of the company setting out her personal requests and needs throughout her employment. Despite the degree of familiarity and ease by which the applicant communicated with the respondents which is apparent from the content of the applicant’s various emails, there was no documentary evidence indicating that the applicant ever notified Bechard or the corporate respondent about any of her human rights concerns during her employment. Further, given the evidence that the corporate respondent and Bechard promptly dealt with the applicant’s complaint regarding an unwelcoming female employee, I find it difficult to believe that the applicant would not have raised her concerns regarding the personal respondent’s alleged sexist behaviour.

31The evidence of the respondents’ witnesses, which I found to be more credible than the applicant’s, confirmed that the personal respondent’s criticisms regarding the applicant’s work performance were underlying the conflicts between the applicant and the personal respondent. I conclude that the negative interactions between the applicant and the personal respondent were not related to her gender. In light of my concerns regarding the applicant’s credibility, the applicant’s belief, on its own, that the personal respondent’s treatment was related to her gender is not sufficient to make out a finding of discrimination or harassment. Further, the documentary materials support the respondents’ defence that the applicant never alerted the corporate respondent to any human rights concerns prior to her resignation.

32Based on my review of the evidence and testimony, I find no basis to establish that the applicant was treated unequally or was subjected to negative comments or conduct with respect to her gender. I find that the evidence was insufficient to establish, on a balance of probabilities, that the applicant’s gender was factor in her fractious relationship with the personal respondent or the corporate respondent’s handling of her concerns. Accordingly, I find that the applicant’s complaint, with respect to sex, is not founded.

33For all of these reasons, the Application is dismissed.