HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ruth Nyaamine
Applicant
-and-
United Steel, Paper and Forestry, Rubber Manufacturing Energy, Allied Industrial and Service Workers International Union, Local 2004 (United Steelworkers) and John Dinnery
Respondents
DECISION
Adjudicator: Judith Hinchman
Indexed as: Nyaamine v. United Steelworkers Local 2004
AppearanceS BY
Ruth Nyaamine, Applicant ) Yan Wang, Counsel
United Steelworkers Local 2004, )
John Dinnery, Respondents ) Robert Healey, Counsel
INTRODUCTION
1This is an Application received January 21, 2009 filed under section 53(5) 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 September 25, 2006 and abandoned upon filing this Application with the Tribunal.
2The applicant alleges the respondents discriminated against her in employment and terminated her employment on the basis of age and sex, specifically sexual harassment.
BACKGROUND
3In early 2006, the corporate respondent, United Steelworkers, Local 2004 (the “Union”), determined that it required an office in Ontario and one support staff. It decided to rent space in a Toronto office building in the same proximity as the Steelworkers’ Canadian National Office. At that time, the applicant was working for the Canadian National Office under a temporary contract.
4In March 2006, the Union assumed the applicant’s temporary contract and she began working as a secretary/bookkeeper. When the temporary contract expired, the Union hired her directly.
5At the relevant time, the personal respondent Mr. Dinnery was the Union President and the applicant reported to him. The Union office was located in Toronto and the applicant worked at that office; however, Mr. Dinnery lived in Saskatchewan and conducted most of his Union work from his home office located there. For the first part of the applicant’s employment she and Mr. Dinnery communicated by telephone and email. They first met when Mr. Dinnery came to Toronto in May 2006 for an Executive Council meeting. The Union’s Executive Council consisted of the President, a Vice-President, a financial Secretary, a Treasurer, and five Regional Chief Stewards. These council members lived and worked in a variety of different provinces across Canada.
6The parties agree that during the applicant’s employment, issues arose respecting her salary, the fact that Union dues were withheld from her salary yet she was not considered a member of the Union, requirements that she translate certain Union documents into French, and other job performance disputes such as her authority to make certain decisions. That these were issues between the parties is well documented in a series of emails that were submitted.
7By letter dated September 18, 2006, following an Executive Council discussion and decision, on behalf of the Union, Mr. Dinnery terminated the applicant’s employment.
8The applicant’s allegations in her Complaint are:
In and around April 2006, Mr. Dinnery started making very lewd sexual comments pertaining to women.
During a May 2006 Executive Council meeting in Toronto, on the street outside the building where the meeting was held and in front of other Council members, Mr. Dinnery told the applicant that the members were busy watching girls walk by and she should strut her stuff for them to see.
On several occasions over the telephone, Mr. Dinnery advised that he was naked and thinking of very sexual things, and that on one occasion he said that she should use her imagination to see what he was doing, and then laughed and made other comments of a sexual nature.
Mr. Dinnery “always made comments alluding to the fact that [she] was young.” In particular during a phone conversation on August 22, 2006, he said to her: “I will treat you like a little girl, and show you how adults should act.”
When she complained to Mr. Dinnery about the discriminatory comments, he began sending demeaning emails that he often copied to other individuals.
She not only complained about the comments to the personal respondent, but also to members of the Executive Council.
Mr. Dinnery terminated her employment as a form of reprisal both for concerns she raised about her benefits but also in part because of her objections to the unwanted sexual comments.
Issues
9The issues in this Application are:
Was the applicant subjected to discriminatory comments about her age and/or was she subjected to comments comprising sexual harassment?
Did the personal respondent threaten reprisal for the applicant’s rejection of sexual advancements?
Did the respondents satisfy their obligation to investigate the alleged discrimination?
Did the respondents terminate the applicant because she objected to or raised the issue of sexual harassment and/or was her age a factor in the termination?
If discrimination occurred, what is the appropriate remedy?
ANALYSIS AND FINDINGS
10The Application relates to sections 5, 7 and 9 of the Code, which provide:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of (…) sex, (….) age,
(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 (…) age,
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 employee.
(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.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
11The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. For the reasons that follow, I have decided that the applicant has not proven her case.
12This Decision turns largely on my assessment of the credibility of the witnesses. Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor 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 as 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.
13Other factors the Tribunal has applied as relevant in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties. See Shah v. George Brown College, 2009 HRTO 920. Also, 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 that the party did not call a particular witness because the witness would not have been supportive to that party’s case.
EVIDENCE
Discriminatory comments about age and/or comprising sexual harassment
14The applicant has not indicated her age but implies that it is the fact that she is younger than the personal respondent that gives rise to this allegation. In her Complaint, she stated that the personal respondent “always” made comments alluding to her age, however at the hearing she only gave evidence regarding the August 22 phone conversation in which she alleges he said she was acting like a little girl and she testified that “others” called her “kiddo.” The applicant provided no further details to support her allegations of discrimination based upon age such as who called her kiddo or how she was treated differently due to her age. And for reasons discussed below, I am not persuaded that the personal respondent made the alleged remarks during the August 22 phone conversation.
15With respect to lewd sexual comments beginning in April 2006, the applicant’s evidence is limited to three alleged communications of sexual harassment: one occurring during a smoke break at the May Executive Council meeting, the second occurring during a phone call in either June or July, and the third occurring during the August 22 phone conversation. At the hearing the applicant did not provide any details regarding any other communications of a sexual nature, and there is no evidence to substantiate there were other communications of this nature.
16With respect to the first alleged comment, the applicant testified that this occurred at an Executive Council meeting in Toronto scheduled sometime between mid to end of May 2006. She said that during a smoke break, several Council members including Mr. Dinnery, went outside the office building. In the Complaint, she alleges that she went outside to ask Mr. Dinnery a question, and he made the offensive comment. In her statement of additional facts filed on July 2009, the applicant added that everyone laughed at Mr. Dinnery’s comment that they were “watching the ladies walk by” after which he made the comment that she should strut her stuff. The applicant testified that although she was shocked, she did not take the communication seriously.
17She stated that there were witnesses to these comments. One of the individuals whom the applicant stated was present when the alleged comment was made, Mr. Paul Wright, testified that he did not recall the incident at all and that he usually did not take smoke breaks. The applicant testified that although Mr. Cormier was also present at the incident, she did not ask him to testify as she did not want to involve him.
18With respect to the second alleged comment, in her Complaint the applicant stated that during several telephone conversations Mr. Dinnery advised her that he was naked and she should use her imagination to see what he was doing. And that he then laughed and made other sexual comments “pertaining to the same train of thought.” In her statement of additional facts the applicant narrows this down to one incident during a phone call sometime in June or July. She submits:
During another executive meeting, Mr. Dinnery was in the Best Western Roe Hampton Hotel. He contacted my office and I said “hello” and he asked what I was doing and I answered him with a list of items I had completed for the day and I then in turn asked him what he was doing. He responded with, “I am naked and thinking of very bad things, use your mind and you will see.”
19The applicant did not prior to the hearing give a date for this alleged call. At the hearing she stated that it was during an Executive Council meeting, which was held in Toronto in either June or July. Although she could not be sure of the month, she was sure that it was the next Executive Council meeting in Toronto after the May meeting.
20With respect to the third alleged comment of both a sexual and age-related nature, the applicant alleges that during the August 22, 2006 telephone conversation, Mr. Dinnery made the comment that she was acting like a little girl and he would treat her like one and show her how adults act. At the hearing she explained that following several email exchanges that she found unprofessional, she called Mr. Dinnery to discuss the emails. When she asked him “why are you treating me this way?” he responded with the alleged statement.
21The applicant called several witnesses at the hearing and none of them were aware of comments regarding the applicant’s age or any comments of a sexual nature. Although one would not expect witnesses to conversations that occurred over the phone, given the totality of the evidence and for the reasons below, I do not accept the events as described by the applicant.
22Two of the witnesses Mr. Nakitsas, Assistant to the President of the National Office, and Mr. Piche, Staff Representative for the Union during the relevant period, did agree that the applicant had spoken to them about work-related concerns; however, their evidence is that this was limited to her concerns about paying Union dues and her general dissatisfaction about working with the personal respondent. The applicant’s other witnesses included Leslie Koziel, a manager of Administration for United Steel Workers Head Office, who was able to shed no light on the allegations.
23Another witness was Alexandra Essleman, who at the relevant time was the Assistant to the National Director. The applicant’s evidence was that she had communicated many times to Ms. Esselman how she had been treated. Ms. Esselman agreed that the applicant had spoken to her; however, not about the allegations in this Application. Ms. Esselman’s evidence was that the applicant felt overwhelmed and was often upset about the workload, in particular her difficulties with the requirement that she translate and transcribe Union materials into French and also that the applicant felt it was wrong to pay Union dues when she was not given the benefits of Union membership including Union representation.
24Mr. Dinnery testified that until reading the Complaint he had not heard the allegation regarding the May Executive Council meeting comment. Mr. Dinnery testified that he recalled the day well. His evidence is that there is a café at street level near the building entrance and during scheduled breaks it was typical for the executive group to go downstairs where some would enter the café and others would smoke or mill about outside. He recalled that on that day during a break, the applicant approached him in front of the building. He recalled that others present were George Nakitsas and John Vukoja. Mr. Dinnery recalls that the applicant tapped Mr. Vukoja on the shoulder and said that she had received a call; she then gave Mr. Vukoja a post-it note with a number on it. He testified that he said nothing to her and she walked away. In Mr. Nakitsas’ testimony he too did not recall the comment she alleges.
25The parties do not differ in their recollection that members of the Executive Council went outside during a break. With respect to what happened when the applicant joined the group; however, I found Mr. Dinnery’s evidence more persuasive in that he had a clearer recollection of the meeting date and clearer description of the events of the day. Moreover, none of the witnesses who were present that day were able to corroborate the applicant’s version of events. Under the circumstances I find that Mr. Dinnery’s recollection is more reliable than the applicant’s. I find that the evidence does not support, on a balance of probabilities, that the alleged comments at the May 2006 Executive Council meeting occurred.
26With respect to the second alleged comment, Mr. Dinnery testified that the date of the Executive Council meeting following the May meeting was not in June or July but on September 18. He agreed that when he was in Toronto, he would stay at the Roe Hampton as that was a two-minute walk from the Union office. He disputes that the alleged conversation occurred.
27In assessing the conflicting recollections of the applicant and Mr. Dinnery, I find the applicant’s version vague. As well, the applicant has changed her story from claiming that several phone conversations occurred in which Mr. Dinnery stated he was naked to one conversation that occurred sometime within a two-month period. She was specific in her additional facts filed on July 2009 and in her testimony at the hearing, that this occurred during the Executive Council meeting following the May meeting. However, the applicant did not challenge Mr. Dinnery’s evidence that the Executive Council meeting after the May meeting happened on September 18, 2009. That is the date that the applicant’s employment was terminated. It was not disputed that the Executive Council made the decision prior to that date to terminate the applicant’s employment and in fact had drafted the letter previously. All that awaited was to present the letter to her on that day. In that context, her evidence that a phone conversation including the alleged comment occurred when Mr. Dinnery came to Toronto for the September 18 meeting is not reasonable.
28As a result I do not accept the applicant’s evidence that Mr. Dinnery made the alleged phone call stating that he was naked followed by the other comments the applicant attributes to him.
29Mr. Dinnery’s recollection of the August 22 conversation is also somewhat different from the applicant’s. He agrees that they spoke on that date. However, he claims that the applicant expressed displeasure with his decision to refer her questions regarding the payment of Union dues to the Executive Council. He then recalls that he requested that the applicant complete certain tasks respecting the Union newsletter, which they disagreed about. Following that, he recollects that he related complaints that he had received regarding her translation of documents into French and ended the conversation telling the applicant that he was increasingly concerned about her work performance and intended to begin documenting problems as they occurred.
30It is not disputed that the applicant and Mr. Dinnery had several disagreements regarding work assignments. In fact both parties submitted numerous email chains between the applicant and Mr. Dinnery that substantiate their disagreements and that suggest tensions between them regarding work related issues increased over time and that Mr. Dinnery was increasingly dissatisfied with the applicant’s work performance. And Mr. Dinnery does not deny copying some of the emails to others. He explained that with respect to the applicant’s concerns over salary and paying Union dues, he was required to consult with the Executive Council. The emails also do not allude to any inappropriate sexual comments. And in fact the content of the emails corroborate Mr. Dinnery’s explanation and recollection of the content of the August 22 phone call.
31Thus I am unable to accept the applicant’s testimony concerning the content of this phone conversation with the personal respondent and prefer the evidence of the respondents. I find that the personal respondent did not make the comments on August 22 that the applicant alleges.
32I am therefore not persuaded that on a balance of probabilities the evidence supports any of the applicant’s allegations regarding the communications of a sexual nature or regarding her age.
Threat of reprisal for the rejection of a sexual solicitation or advance
33Having found that on a balance of probabilities the evidence does not support that Mr. Dinnery made sexual solicitations or advances to the applicant, it is not necessary for me to determine if she faced the threat of reprisal for rejecting sexual solicitations or advances.
[34] I observe that much of the applicant’s submissions both prior to and at the hearing had to do with disagreements concerning her salary, the requirement to pay Union dues, and her dissatisfaction with certain work requests and the manner in which Mr. Dinnery made the work requests. The many emails submitted into evidence suggest that she disagreed with many of the work directions given by the personal respondent and that over time the working relationship became tense. This however, is not in and of itself grounds for a Code violation. The Tribunal does not have the general power to inquire into claims of unfairness or wrongdoing outside the areas or grounds prescribed in the Code. See Cooper v. Pinkofskys, [2008 HRTO 390](https://www.minicounsel.ca/hrto/2008/390). The Tribunal’s jurisdiction is limited to dealing with disputes that properly fall under the Code.
Respondents’ obligation to investigate
35Although I have found that the personal respondent did not discriminate against the applicant on the basis of age or sex, nonetheless the applicant alleges that she “raised … concerns to several individuals, but was told that was simply how the ‘men’ acted in this setting and that [she] would simply have to get used to it.” She further alleges that she raised her concerns with members of the Executive Council who advised that she should be happy with the treatment she was receiving as “Betty” the last receptionist received worse treatment. She also alleges that during the August 22, 2006 phone call with Mr. Dinnery she “address[ed] several issues in regards to the vulgarity of his sexual comments.” Even if the personal respondent did not discriminate as alleged, if the applicant suggested to the Union that he had then it would have had a duty as her employer to investigate.
36In her statement of additional facts the applicant admits that she never advised Mr. Piche or Mr. Nakitsas that her issues with Mr. Dinnery were related to conduct of a sexual nature. In fact the applicant has not provided any evidence that she spoke to any Union officials or members about the alleged discrimination. At the hearing, both Mr. Nakitsas and Mr. Piche confirmed that the applicant had not told them that Mr. Dinnery had made remarks of a sexual or age-related nature to her or had harassed her sexually although both recall that she expressed concerns about work related issues including the fact that she felt it was unfair to pay Union dues when she was not afforded the benefits of Union membership. Both witnesses testified that there had been nothing that led them to suspect the alleged discrimination.
37The applicant’s other witnesses, Leslie Koziel and Alexandria Essleman, also testified that the applicant had not told them that the personal respondent made any discriminatory comments or otherwise sexually harassed her.
38The applicant has not presented any evidence to suggest that the employer knew, or ought to have suspected, that the personal respondent was discriminating against her on the basis of age or sex. Therefore, the employer’s obligation to investigate was not triggered.
Employment termination
39It is well-established in human rights law that in order to establish discrimination, the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252. However in this case I have found that the respondents did not discriminate or harass the applicant on the basis of sex and no evidence has been presented that age or sex were a factor in the termination.
40On a balance of probabilities the applicant has not demonstrated that Mr. Dinnery made a sexual solicitation or advance to her or that he sexually harassed her. Nor has she demonstrated that the employer had any reason to suspect this had happened. Finally, I have found that age or sex was not a factor in the Union’s decision to terminate the applicant’s employment.
41For all of the above reasons, this Application is dismissed.
Dated at Toronto, this 16th day of August, 2010.
“Signed by”
Judith Hinchman
Member