HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vivian Randell
Applicant
-and-
Frank J. McDonald Property Management Inc.
Respondent
AMENDED DECISION
Adjudicator: Jay Sengupta
Indexed as: Randell v. Frank J. McDonald Property Management
APPEARANCES:
Vivian Randell, Applicant ) Karin Galldin, Counsel
Frank J. McDonald Property Management Inc., ) Chris Rutherford, Counsel
Respondent )
ii
Introduction
1This is an Application filed on March 31, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in employment on the basis of marital status. Specifically, the applicant alleges that the respondent, her former employer, terminated her employment as a property manager a few days after her husband informed the company he would no longer be working with them.
2The respondent, a property management company, denies discrimination, alleges her employment was terminated for cause and seeks dismissal of the Application.
3The applicant’s argument concerning the termination is that the company was displeased with her husband’s decision to stop working with them doing apartment clean up, “turnovers” and general handyman work and that they dismissed her because of her connection to her husband and their displeasure at his decision to discontinue his working relationship with them.
4The company’s witnesses say the dismissal in early February, 2009 had nothing to do with the applicant’s husband. Rather, they assert that it was the result of a 6 week inquiry into a discovery that the applicant had purchased appliances worth $5997.19 in June 2007 for personal use in her own home using company funds. The respondent says the discovery of this transaction resulted in a loss of confidence and trust in the applicant, which in turn led to her dismissal. Finally, they assert that replacing the applicant was far more difficult than replacing her husband given the respective positions they held within the company.
5The applicant does not deny having purchased the appliances for her own use but says that a now deceased co-owner of the respondent company authorized the purchase and knew that financial difficulties prevented her from repaying the money immediately and gave her to understand that she could repay the money when she was able. She says that the dismissal was the result of her husband’s decision to leave the company and, therefore, done for discriminatory reasons.
6For the reasons that follow, the Application is dismissed.
The Law
7Subsections 5(1) and 5(2) of the Code provide as follows:
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(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 race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
The Evidence
8At the hearing, I heard from the applicant, her husband, Lorne Randell, and two former co-workers, Ron Smith and Tammy Wood. The respondent called evidence from Andrew Fuller, the company’s comptroller, and Harvey Belfer, an owner of the company.
9The applicant testified that she and her family moved to Ottawa from Newfoundland and began working for the respondent company at various properties owned or managed by it, she as a rental agent and then property manager and her husband, Lorne, as a handyman and contractor.
10A number of their relatives have also worked for the respondent company at various times. She says that she enjoyed her work, had friendships with her co-workers and felt the owners, Frank and Harvey, were good to their employees.
11Frank, in particular, was helpful to her and her husband and even helped them financially on occasion. It was Frank who authorized the purchase of a full set of appliances when she and Lorne bought their home in the summer of 2007. She says she asked him because he was approachable and she was aware that a co-worker, Ron Smith, had purchased an appliance through the company recently.
12She acknowledges there is nothing in writing confirming that she and Frank discussed the appliances or that he authorized their purchase using the company’s account. Her evidence is that she and Frank were alone when they had that conversation and that there is no written agreement setting out the terms for the purchase, no limit set on the total amount to be spent or a schedule for repayment of the $5997.19 eventually paid by the company for the appliances.
13Her evidence is that she and her family had a run of bad luck following the home and appliance purchase and that Frank told her to repay “whatever, whenever”. She also says that Frank never asked for an update on how much money had been spent by the company and when she would repay the money, nor did she offer one. She acknowledges that, at the time Lorne resigned in January 2009 and she was terminated in February 2009, they had not made a single payment towards the debt owed to the respondent company.
14The applicant says that she and Lorne were very open about the purchase of the appliances and she was told by a co-worker, Marianne, who is now deceased, how she should enter the appliance purchases in the invoices. She entered them as being destined for use in empty rental units.
15She acknowledges that she was not present when the invoices for their appliances were given to Harvey to sign and that there was no note on the document to identify it as being bought for her and Lorne and destined for their home as opposed to the vacant apartment units referenced on the invoice.
16She says that she and Lorne were open about their financial difficulties and their co-workers knew about the difficulties they were having. She could not specifically say whether Harvey knew about their financial problems.
17The applicant and her husband gave detailed evidence of her devastation at learning she had been terminated and how difficult it was for her to cope with the loss of her job.
18Tammy Wood and Ron Smith, the applicant’s former co-workers, both confirm that the applicant and her husband were good people to work with, that they were buying appliances following their home purchase and that they were short of money around that time due to increased expenses.
19However, neither were party to any conversations between the applicant and the owners of the company involving the appliances or her termination. In fact, Tammy Wood began working for the respondent in July 2007, after the purchase had taken place, and replaced the applicant as property manager for a short time. Nor were either of the witnesses aware of the particulars of any financial arrangements between the parties.
20Ron Smith gave evidence that he bought one appliance through the company and that he repaid the amount within a month of purchase. He was not aware of how the invoice for his appliance was prepared as the applicant took care of that part of the transaction.
21The respondent company’s comptroller, Andrew Fuller, testified that he had been hired by the respondent company in August 2008 to review processes with a view to streamlining them and saving money. He was also brought on to learn how to operate new software and train staff on how to use it.
22As part of his review of costs, he reviewed appliance replacement costs. He says that he followed up on the invoices involving the applicant’s purchase because they were unusual in two respects: first they were more expensive than the appliances normally purchased by the company and, secondly, washers and dryers were usually not purchased by the respondent for apartment units.
23As a result of his review, he discovered the purchase made by the applicant and no corresponding agreements about loans outstanding, receivables or payments made towards the purchase. He then spoke to Harvey Belfer, who said that he would check with Frank McDonald to find out if he had made any arrangements with the applicant. Andrew Fuller testified that he did not make the decision to terminate the applicant, nor was he present when she was told of the decision.
24He did communicate with Harvey about receiving the letter concerning Lorne Randell’s resignation.
25Andrew Fuller gave evidence about steps taken to replace the functions performed by both Randells and that the apartment turnover and tiling functions performed by Lorne Randell were done by other contractors. He said that the transition for replacing the property management function performed by the applicant was far more difficult given the nature of the work she did and the fact that she had been a 10 year employee in a position of trust.
26The co-owner of the respondent company, Harvey Belfer, gave evidence that when he spoke with his partner, Frank McDonald, about the applicant’s appliance purchase, the latter had no knowledge of it and the decision to terminate her was made because of the loss of trust resulting from the discovery that she had misappropriated funds from the company.
27He said that he had found Vivian Randell to be a trusted and valued employee until this discovery. He had no difficulties with her until that point. However, given her role in property management, information involving financial impropriety was serious and had to be addressed. His evidence is that Lorne’s resignation had no impact one way or the other on the decision that had already been made to terminate Vivian’s employment.
Analysis
28As the applicant rightly pointed out, in order to prove discrimination contrary to the Code, discrimination on the basis of family status need only be a reason for the termination, as opposed to the only or primary reason.
29The respondent submits that I need not decide whether the rationale for the termination was correct, merely whether it was influenced by a prohibited ground under the Code.
30Having heard the evidence put forward by the parties, I am unable to conclude that the applicant’s marital relationship with Lorne Randell was a factor in the decision to terminate her employment.
31In assessing credibility, I am guided by the decision of the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence in the case, and assess the impact of any inconsistencies on questions of credibility and reliability pertaining to the core issue in the case.
32Both Randells appear to have been valued for the roles they played in the respondent company’s operations. However, it appears that it was the applicant that was the harder of the two to replace and that the decision to terminate her employment was not taken lightly.
33A number of factors lead me to conclude that the respondent company was not aware of the appliance purchase until its discovery by Andrew Fuller and that the respondent company’s decision to terminate the applicant’s employment was based on information connected to that issue and not connected to reasons involving Lorne Randell’s departure from the company.
34First, there is uncontroverted evidence before me that appliances for personal use by the Randells were purchased in June 2007, by the applicant using the respondent company’s account. Unusually, there is no corresponding written record authorizing this purchase by the applicant from either Frank McDonald or Harvey Belfer, any indication a monetary limit was set for the purchase or that terms for repayment of quite a substantial amount of money were made. There is no record of an amount owing to the company arising out of this transaction.
35At the time of termination and leading up to it, Frank McDonald did not indicate in any way that he had known of the transaction, authorized it or had any conversation with the applicant concerning it. Although he was gravely ill at the time, there is no evidence before me that his memory was impaired or impacted by his illness. If the applicant’s account is to be believed, this omission by someone the applicant described as a generous and helpful employer would be required and none was offered. Instead, Harvey Belfer’s evidence is that before making the termination decision, he checked with his partner to make sure there was no arrangement in place between Frank and the applicant. The answer he received was that no arrangements had been made.
36Unlike the similar purchase made by the applicant’s co-worker, Ron Smith, whose invoice clearly identified the appliance was a staff purchase, the applicant’s appliances were invoiced as being destined for use in vacant units. The person alleged to have known of the purchase and counselled the applicant on how to prepare the related invoices, Marianne Montgomery, is deceased and not available to corroborate the applicant’s evidence.
37The applicant offered no explanation for having prepared these invoices differently from the one she prepared earlier on the occasion of Ron Smith’s purchase, other than to say that Marianne told her how to prepare the invoices. Her evidence suggests that she did not question the two completely different methods of documenting staff purchases, despite the importance of the transaction and that she took no further steps to alert the owners, Frank and Harvey, such as attaching a note to let them know that these invoices contained her purchases and not the company’s.
38Again, unlike the purchase made by Ron Smith which was repaid within a month of purchase, the amount advanced is not recorded anywhere, not a single payment has been made towards the purchase and the applicant gave evidence that, other than one conversation with Frank McDonald when he is alleged to have told her to pay “whatever, whenever”, she had no conversations with anyone else in the company about the outstanding amount owing and when payment would be made until the termination meeting in February 2009, more that eighteen months after the purchase.
39Andrew Fuller’s account of the process by which the invoices were discovered was not challenged in any meaningful way; neither was his testimony about the steps he took to follow up on his discovery or his assertion that he was not party to the decision to terminate or present during the meeting when the decision was communicated to the applicant.
40The applicant suggests that the timing of the dismissal is suspicious and urges me to find a connection between Lorne Randell’s departure and the respondent’s decision to terminate her a few days later. The mere fact that the events took place within a few days of each other is not enough to persuade me that they are connected. I have not heard any evidence that would contradict Andrew Fuller’s explanation of the appliance purchase discovery and subsequent events leading to the termination.
41As indicated, it is not necessary for me to conclude that the rationale for the termination was justified, and I have not done so. I have concluded that there is insufficient evidence before me to conclude that the applicant’s family status was a reason for the termination.
42Accordingly, the Application is dismissed.
Dated at Toronto this 6th day of October, 2010, amended at Toronto this 28th day of January, 2011.
”signed by”__________
Jay Sengupta
Vice-chair