Lewis v. Lakeridge Health, 2010 HRTO 1737

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Lewis

Applicant

-and-

Lakeridge Health Corporation and Caterina Colangeli

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: August 23, 2010

Citation: 2010 HRTO 1737

Indexed as: Lewis v. Lakeridge Health

APPEARANCES

Elizabeth Lewis, Applicant ) On her own behalf

Lakeridge Health Corporation and ) Gordon Fitzgerald, Counsel

Caterina Colangeli, Respondents )

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), naming numerous corporate and personal respondents. In a previous Interim Decision, 2009 HRTO 530, the Tribunal granted the applicant’s request to withdraw the Application as against one corporate respondent and four individual respondents. Just prior to the hearing, the applicant withdrew as against two additional personal respondents.

2The allegations in the Application relate to an unsuccessful job application by the applicant with the respondent Lakeridge Health Corporation (“Lakeridge”). The applicant alleges that Lakeridge reprised against her when it failed to offer her employment in November 2008, based on her disclosure of the fact that she had filed a human rights complaint against a former employer.

3A hearing into the matter was held May 25-27, 2010 in Toronto.

4At the outset of the hearing, respondents’ counsel requested that Ms. Colangeli be removed as a personal respondent. I did not grant the request. Given the nature of the allegations against the personal respondent, it was not appropriate to remove her prior to hearing any evidence.

5I also heard a preliminary request by the applicant to amend the remedies she seeks. The respondents opposed the request. Upon hearing submissions on the question, and with the consent of the parties, I ordered that the hearing would be bifurcated and that evidence and submissions on the issue of remedy would be heard only in the event of a finding that the Code had been breached.

6The applicant’s evidence consisted of her testimony only. At the conclusion of the applicant’s evidence, I heard a motion by the respondent for dismissal on the basis that the applicant’s evidence failed to disclose a prima facie case. I found there was no basis for early dismissal and proceeded to hear the respondent’s evidence, which consisted of testimony from the personal respondent, Patricia Dingman and Wanda Leach, all employees of Lakeridge.

THE FACTS

7On October 3, 2008, the applicant attended a job fair organized by Lakeridge, which runs four hospitals in the Durham region. The applicant was, at the time, still on staff at another hospital and was off work on maternity/parental leave. She left her resume with Patricia Dingman, who urged the applicant to follow up with a phone call if she was interested in work.

8On October 29, 2008, the applicant contacted Ms. Dingman to express interest in pursuing employment with Lakeridege. Ms. Dingman advised the applicant that someone would contact her shortly to set up an interview. Later that day, the personal respondent contacted the applicant and they agreed to meet the next day.

9The personal respondent is a Recruiter in the Human Resources Department, responsible for preparing job postings, screening resumes, scheduling interviews, preparing for and participating in interviews, checking references and related tasks associated with hiring and placing employees within the company.

10During their telephone conversation, the personal respondent advised the applicant that she would send documents for her review by email in advance of the interview. When the applicant opened the documents, she became concerned about a form entitled Request for References (“References Form”). This document forms the central basis of the applicant’s allegation of a Code violation so it is worth re-producing key passages of it.

11The References Form contains three main clauses:

a. the first is authorization for former employers to provide “any previous employment record, reasons for leaving and any other pertinent information concerning [the applicant’s] previous employment”.

b. the second releases the former employer “from any claim, or liability for any damages whatsoever which [the applicant] could, or might claim because of such disclosure.”

c. the third authorizes Lakeridge to “investigate… all statements made in [the applicant’s] application for employment” and acknowledges that “in the event any statement in such application for employment is found to be false or misleading, [the applicant’s] application for employment will no longer be considered.”

Beside each clause is a line for the applicant to print her name, and at the end she was prompted to date and sign. At the bottom of the page is a chart with space for the applicant to list former employers and provide their contact information.

12The applicant testified that when she saw the References Form she was “quite surprised”. She had never seen anything like it, and had concerns about signing it. In particular, her concern was with the second clause, which she understood required her to release her former employer and referee from any current or potential claim for damages. At the time, she had an outstanding human rights application pending against her then-employer, another hospital. She believed she could obtain a positive reference despite the outstanding litigation, but she did not wish to disclose the existing litigation to the respondents out of fear that it would be used against her in her new employment. She worried that a prospective employer would view unfavourably someone who had commenced human rights litigation against an employer, regardless of the merits of the claim.

13The applicant testified that in preparing for the interview, she decided not to sign the Reference Form and instead to provide her own list of references, which she hoped would be satisfactory. She admitted in testimony that she had not given much thought to how she would explain her refusal to sign the Form.

14The next day, the applicant attended the interview, and met with the personal respondent and Ms. Dingman. When the applicant stated that she was not comfortable signing the release clause, the personal respondent replied that she would have to “check with someone”.

15In her evidence, the personal respondent agreed that the applicant attended the interview without the References Form signed, but that after a brief discussion the applicant agreed to sign the first and third clauses. The personal respondent said the applicant disclosed that she had an existing human rights complaint against one of her references and was therefore not able to sign the second clause. The personal respondent testified that the applicant’s disclosure of this fact made her “a little uncomfortable”. She stated that she had received interview training, and believed it was inappropriate to discuss the applicant’s prior human rights case in the interview.

16Regarding the applicant’s refusal to sign the second clause, the personal respondent testified that she told the applicant she would have to check with her supervisor, Wanda Leach, because she had never had someone refuse to complete the Form. She emphasized in her evidence that she never required or requested disclosure of the prior human rights case and that the applicant did so of her own free will.

17The applicant further testified that the personal respondent asked her if she was sure she wanted to use her reference given the circumstances. The applicant told the personal respondent that she was confident the reference would be positive, despite the human rights litigation. The personal respondent agreed that she gave the applicant an opportunity to speak with her references before contacting them, but that the applicant declined.

18The personal respondent testified that, as a human resources professional, she has participated in over 1,000 interviews, and conducts between five and 15 per week. The applicant’s interview consisted of a number of pre-set questions based on a standard template.

19The subject of the applicant’s prior human rights complaint came up a second time in the interview in response to a question about resolving workplace conflict. The evidence on this point was conflicting. The applicant testified that Ms. Dingman urged her to use the situation leading to her prior human rights complaint as an example of conflict and to describe how she dealt with it. The personal respondent and Ms. Dingman denied that either of them prompted the applicant to speak about that situation. Ms. Dingman testified that the applicant asked if it was “ok” to use it as an example, and that she said that was fine. Both the personal respondent and Ms. Dingman testified that they had received training and understood it to be “illegal” to ask Code-related questions or to require the applicant to speak about a prior human rights case. They maintained it was the applicant who raised it on her own volition.

20The parties’ evidence also diverged considerably on the feeling at the end of the interview. The applicant testified that she began to feel “like a plague” and that her hopes for obtaining the job were diminishing by the end of the interview because of the disclosure of her prior human rights complaint. The personal respondent and Ms. Dingman both testified that the applicant performed well in the interview and that they were interested in offering her employment. They advised the applicant that they were hiring for two positions, anticipated to start in mid-December 2008. Any job offer would be made only after two appropriate references were verified.

21The personal respondent testified that she understood the Form to be useful in obtaining frank and honest references from former employers, who otherwise may be reticent about their reservations if there is a threat of litigation. She said that, while she had never encountered a candidate who refused to sign the Form, she did not believe that signing it was a strict requirement. The applicant presented an exceptional situation and the personal respondent felt she needed to seek direction.

22After the interview, the personal respondent made enquiries of Ms. Leach regarding the release clause, and was directed to proceed to contact the applicant’s references based on the consent the applicant had provided. Once receiving Ms. Leach’s authorization, the personal respondent testified the Form was no longer an issue and she set out to follow through on checking the applicant’s references.

23Between the date of the interview, October 30, 2008, and December 21, 2008, the applicant’s application for employment stalled. The facts are disputed as to the cause of the delay. A brief survey of what transpired is necessary to identify potentially discriminatory action, and to determine whether an inference can be drawn regarding an intention to reprise on the part of the respondents.

24On November 10, 2008, the personal respondent emailed the applicant apologizing for not replying sooner to a voicemail the applicant had left. The personal respondent informed the applicant that they were still interviewing for the position and would be checking references “this week”. She also confirmed that she would “notify both the successful and unsuccessful applicants once interviews and references are complete.”

25In oral evidence, the personal respondent testified that she made efforts to contact the applicant’s two references to no avail. She stated that she left voicemail messages for Jennifer Wellman on November 12 and 14, 2008, and for Sandra Kuchmach on November 12, 2008. On November 26, 2008, the parties spoke on the phone and the personal respondent informed the applicant that she had not yet heard back from her references. She suggested that the applicant contact them to confirm their willingness to assist. In this conversation, the personal respondent also advised the applicant that one of the positions had already been filled, but that another remained open.

26The personal respondent testified that sometime after November 26, 2008, she received a reply voicemail from Ms. Kuchmach, who said that she was unable to provide a substantive reference for the applicant because she was insufficiently familiar with her work. Ms. Kuchmach indicated that she would be prepared to confirm the applicant’s dates of employment. The personal respondent testified that she did not phone Ms. Kuchmach back because she required more than confirmation of dates of employment. She never heard back from Ms. Wellman.

27On December 3, 2008, the personal respondent received a voice mail from Anne Kennie, who stated that she was phoning in respect of the applicant. The personal respondent testified that she did not know who Ms. Kennie was because the applicant had not listed her as a reference and had not provided authorization to speak with her, so she did not return the call.

28On December 4, 2008, the applicant sent the personal respondent an email to “follow up” on their November 26 telephone conversation. She indicated that she had left a message for Ms. Kuchmach and had spoken with Human Resources. She apologized “for any inconvenience” and asked the personal respondent to contact her at her earliest convenience.

29On December 9, 2008, the applicant sent the personal respondent another email confirming that she remained interested in the position, and that she had just left her a voice mail to the same effect. She also indicated that she had spoken to her two references. Ms. Kuchmach had told her that she had left a voicemail for the personal respondent but had not heard back. Ms. Wellman had admitted to her that she had never responded to the personal respondent’s voicemail. The applicant offered Anne Kennie as an alternative reference. She then expressed appreciation for the personal respondent’s advice up to that point, and asked for additional “feedback” on the status of her application.

30The personal respondent admitted that she did not respond to either the December 3 or December 9 email, or to the applicant’s December 9 voicemail, and took no further action on the applicant’s file. She testified that the beginning of the month is a busy time and that she was preoccupied with other work. She had also not noticed that the applicant had, in effect, provided authorization in her December 9 email for the personal respondent to speak with Anne Kennie. The personal respondent believed at the time that it was up to the applicant to provide references, without which the hiring process could not advance.

31On December 21, 2008, the applicant sent an email withdrawing her name from consideration for employment with the respondents. In her email, she articulated a theory of reprisal, stating, “I have come to realize that my enforcing my rights under the Code played a role in your decision to evade calls and emails from myself and my current employers, as well as in your hiring decisions.”

32On December 22, 2008, the personal respondent replied, defending her actions. She left open the possibility that the applicant could continue to compete for a position if she provided another reference name. The applicant believed that this offer was insincere. In her mind, she had already provided sufficient references and therefore interpreted the personal respondent’s email as another evasion tactic.

33On December 31, 2008, the personal respondent sent another email to the applicant clarifying her position. Notably, she acknowledged an error on her part and apologized for missing the additional reference, i.e. Anne Kennie, provided by the applicant. Commenting on the delay, the personal respondent stated that it “was not motivated by the disclosure of your previous Human Rights complaint.” She confirmed that one of the two jobs remained vacant and asked the applicant to confirm whether she was still interested in pursuing employment with the corporate respondent.

34The applicant testified that she believed the respondents’ offer was a disingenuous attempt to cover up their discriminatory conduct after the applicant raised her concerns about reprisals under the Code. She felt that pursuing employment with the corporate respondent would lead only to further reprisals. She never responded to the personal respondent’s emails of December 21 or December 31, 2008.

35The applicant maintained that the respondents engaged in a “conspiracy” to deny her employment by giving her false hope, all the while having no serious intent to offer her employment. She stated they ignored her calls and emails, made insincere efforts to contact her references, and pre-judged her suitability for the job based on the fact of her prior human rights complaint. The respondents’ evidence was that they operated in good faith, and in fact were enthusiastic about the applicant’s candidacy, subject to obtaining positive references. They acknowledged that communications were not ideal, and apologized for the mix-ups and delay, but maintained that their conduct was not in breach of the Code.

FINDINGS

36There are many factual disputes, not all of which are relevant to my determination of this case. I have summarized only material factual issues, namely concerning the disclosure of the prior complaint during the interview, and with respect to the delay in processing the applicant’s reference checks.

37I find that the respondents did not require the applicant to disclose or discuss a prior human rights complaint and did not invite her to use it as an example of workplace conflict. On the evidence as a whole, I am satisfied that discussion of the prior human rights complaint arose inadvertently in the interview. The applicant admitted on cross-examination that she was not asked directly about it. I accept that she had no intention to disclose the prior complaint. However, I also find that she did not prepare herself for how she would handle the subject when addressing her reservations about the Form.

38Regarding the events between October and December 2008, I am satisfied, viewing the evidence on the whole, that the two-month delay in the applicant’s job application was caused by a series of missteps and miscommunications, not by an intentional plan to deny the applicant employment. I am persuaded by the respondents’ evidence that, while their conduct was far from perfect, the delays were unintentional. The respondents’ witnesses testified in a straightforward manner, and gave reasonable explanations for each of the actions that were interpreted by the applicant to have been suspicious. They were credible in firmly denying ill-intent, but also demonstrated sincere understanding of the applicant’s point of view.

39More importantly, I find the respondent’s version of the facts more consistent with the totality of the evidence and what is most reasonable and probable in all the circumstances. Simply because a “conspiracy” is possible does not mean it is probable. If the respondents’ intent truly had been to deny the applicant employment on the basis of her prior complaint, their conduct between October and December 2008 does not reveal such an intention. Their conduct was poorly directed, and was not executed the way a deliberate plan for reprisal (i.e. “conspiracy”) would reasonably be expected to be carried out. I see no basis for inferring such intent based on the evidence.

40The applicant was not credible in identifying at what point her theory of reprisal crystallized. In oral evidence, she testified that on November 9, 2008, she still had hope for securing the job, but that by November 26, 2008, all such hope had dissipated as a result of the personal respondent’s inaction. Yet, she admitted on cross-examination that the cause of the delay between November 9-26, 2008, was her references’ failure to respond to the personal respondent’s voice mails, not any deliberate delays by the respondents. She provided no explanation of how the respondents could be carrying out a reprisal when she had admitted it was the inaction of her references that had stalled the application process. The applicant offered a vague assertion that the personal respondent’s knowledge of the prior complaint caused her to be suspicious of the applicant, and to interpret in a negative light the fact that the applicant’s references had been non-responsive.

41I have no doubt the applicant gave truthful evidence about matters of which she has direct knowledge. Where I am not persuaded is the extent to which she speculates about the meaning behind the facts. Thus, I accept that the applicant genuinely believed the respondents were conspiring with her former employer. However, in order for the facts to support this theory, one must read motives into the minds of the corporate respondent’s employees and of the personal respondent. There were no admissions by those individuals, who firmly denied any discriminatory or revenge motivation.

42Absent ill-intent, the applicant’s case depends entirely on indirect evidence and the applicant’s speculative theory. Based on my factual findings above, I am unable to make the inferences the applicant asks of me regarding the respondents’ intent.

ANALYSIS AND DECISION

43Section 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 prohibition on discrimination in the Code: Jones v. Amway of Canada, 2001 CanLII 26217 (ON H.R.T.).

44In Noble v. York University, 2010 HRTO 878, at para. 33, the Tribunal stated that in an application alleging reprisal, the following elements, summarized below, must be established:

a. An action taken against, or threat made to, the applicant;

b. The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

45Damages can be awarded separately for a violation of section 8: see Ketola v. Value Propane Inc. 44 C.H.R.R. 20, 2002 CanLII 46510 (ON H.R.T.), and Curling v. Victoria Tea Co Ltd., 38 C.H.R.R. 216, 2000 CanLII 20870 (ON H.R.T.).

46A reprisal is a different kind of breach of the Code than discrimination. One need not establish that one is in fact a member of a protected group to claim a breach of section 8, nor need one establish that one was in fact ever discriminated against: Noble, supra at para. 34. All an applicant must establish is that she claimed her rights under the Code and was subject to threats of, or actual, negative consequences as a result.

47Intent need not only be proved by direct evidence. The respondent’s intention to reprise may be inferred based on the applicant's reasonable perception that the respondent's action served as retaliation because of the applicant’s assertion of her rights: see Jones, supra at paras. 107-115 and Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213, upheld with respect to reprisal, (2000), 37 C.H.R.R. 481, 2000 CanLII 16800 (ON C.A.).

48Based on my factual findings, it is apparent that the evidence does not support a finding that the respondents reprised against the applicant for having filed a previous human rights application. The applicant has failed to establish, either by direct evidence or by reasonable inference, that the respondents intended to reprise against her for having filed a previous human rights complaint.

49Furthermore, I am not persuaded that the applicant was actually denied anything. A final decision was never reached with respect to the applicant’s hire because the applicant withdrew. The evidence was that, as at December 31, 2008 - ten days after the applicant withdrew from the competition - a position was still available to her. If her access to employment with the respondent was slowed and obstructed, it was due to a series of events I have characterized as unintentional mis-steps and mis-communications. There is no basis for me to infer from those events an intention on the part of the respondents to deny the applicant a fair opportunity to compete for employment, or a motive by the respondents to punish the applicant for her prior human rights case. Absent the requisite intent, there can be no finding a breach of section 8.

50I appreciate that, from the applicant’s perspective, it was logical to be suspicious of the respondents. The personal respondent testified that she understood why the applicant felt the way she did. The applicant perceived herself a victim of prior employment discrimination. She felt compelled to disclose this fact in a job interview and was asked to sign a release in favour of her former employer while litigation was still ongoing. I am not unsympathetic to the applicant’s discomfort with this aspect of the interview. The unfortunate events following the interview then crystallized the idea in the applicant’s mind that she was being punished. She felt ignored, treated “like a plague”, and believed she had been disqualified from the job competition by the personal respondent.

51The pieces of the applicant’s theory might fit together if one assumes the worst; those who believe they have experienced discrimination often have every reason to assume the worst. However, notwithstanding the strength of the applicant’s belief that she experienced a reprisal, upon hearing the respondents’ evidence and argument, the applicant’s theory does not withstand objective scrutiny.

52Finally, the applicant seemed to suggest that the second clause in the References Form constituted a discriminatory question on its face, triggering liability, at minimum, for a breach of the Code and for damages for the affront to her dignity. I also raised the applicability of section 11, which prohibits indirect discrimination caused by a neutral rule that carries an adverse impact. Because these arguments were not raised until the hearing, I gave the respondents the opportunity to file additional written submissions on the issue, which I have reviewed.

53Section 11(1) provides:

A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

54Sections 23(2) and 23(3) of the Code provide as follows:

23(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

23(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

55The fact of having filed a human rights application is not in and of itself a listed ground in the Code. There is no ground of protection for “people who have filed an Application”. While section 8 protects those who have filed an application from adverse treatment as a result of having filed the application, it does not create a distinct ground of discrimination.

56To establish a breach of section 11, there must be an underlying “requirement”. Here, my factual finding is that the applicant was never required to do anything. While she was requested to sign the References Form, which arguably led to her involuntary disclosure of the prior complaint, she never did sign it and her refusal was accommodated at no cost, aside from administrative delay.

57Even if signing the Form had been a requirement, it must operate to exclude, restrict or prefer a group of persons identified by a prohibited ground of discrimination. In other words, it must have some harmful effect and be based on a protected ground. It was neither in this case. The applicant was not denied employment, and any effect was not on a Code-protected ground. Similarly, section 23 only shields against improper questions linked to a prohibited ground of discrimination, which reprisal is not.

58Based on all of the above, the Application is dismissed.