Rowe v. 416 Community Support for Women, 2010 HRTO 2235

Human Rights Tribunal of Ontario

Between: Shawnette Rowe, Applicant -and- 416 Community Support for Women and Rosie Smythe, Respondents

Decision Adjudicator: Mark Hart Date: November 9, 2010 Citation: 2010 HRTO 2235 Indexed as: Rowe v. 416 Community Support for Women

Appearances By: Shawnette Rowe, Applicant | Sidney Klotz and Jennifer Klotz, Counsel 416 Community Support for Women and Rosie Smythe, Respondents | Adrienne Campbell, Counsel

1This is an Application filed May 19, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on May 23, 2007.

2The Application alleges discrimination in employment on the basis of race and ethnic origin contrary to sections 5 and 9 of the Code, on the basis that racial comments are alleged to have been made by the personal respondent and other staff, that her involvement with clients of colour was closely scrutinized, that she was demoted and treated differently than other staff, and that she spoke to the personal respondent about the discrimination and racial slurs but that nothing was done.

3The hearing in this matter was held on April 20, 2010 and May 21, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. I heard from the applicant and five witnesses called on her behalf, and from the personal respondent and four witnesses called by the respondents. On consent, the parties provided final argument in writing.

Background

4416 Community Support for Women (the “Centre”) is a not for profit agency that operates out of two houses, one at 416 Dundas Street East and the other at 448 Ontario Street. The 416 Dundas Street East location focuses on providing basic services and mental health and addiction services to severely mentally ill and/or drug addicted women, most of whom are homeless or live in shelters. These women can come in to get meals, food from a food bank, use showers and washrooms, and obtain assistance dealing with government services to get identification and social support payments. The Centre will also act as trustee to care for their money and pay bills. The 448 Ontario Street location focuses on a more recovery-oriented model for women who are coming from the legal system and need addiction treatment and counselling.

5The applicant, who self-identifies as a Black woman, was employed by the Centre as a Case Manager commencing July 10, 2006. Her employment with the Centre ended in the latter part of May 2007. A prior Interim Decision in this matter, 2010 HRTO 415, ruled that the circumstances surrounding the applicant’s departure from the Centre were beyond the scope of this Application.

6The personal respondent is the Centre’s Executive Director, and has been in this position since March 1, 2006.

Scope of Application

7Transitional applications filed under s. 53 of the Code must be based on the subject-matter of the complaint as filed with the Commission. Because of limitations imposed by the Commission regarding the length of complaints, the Tribunal’s Rules of Procedure for Transitional Applications allows an applicant to file a statement of additional facts to elaborate upon or provide further particulars of allegations made in the complaint. This, however, does not allow an applicant to raise new allegations which were not raised in the complaint.

8In this proceeding, a statement of additional facts was filed by the applicant which, apart from the circumstances relating to the applicant’s departure from the Centre, was determined in the prior Interim Decision to provide more context and detail to the allegations set out in the complaint as opposed to adding new allegations that do not arise from the original complaint. Accordingly, I will consider in this Decision the allegations as set out in the complaint and as expanded upon in the additional statement of facts.

9In the written submissions filed on the applicant’s behalf, the issues were framed somewhat differently than they appear in the complaint and in the additional statement of facts. In this Decision, I will address the issues in the order raised in the original complaint as expanded upon in the statement of additional facts.

Failure to receive job description

10The first allegation raised in the complaint is that the applicant was not given a job description when she was hired to work at the Centre. The respondent states that the applicant was provided with a job description when she was given the letter confirming her employment. In my view, I do not need to resolve this issue as any failure to provide a job description does not support a violation of the Code.

Limits on time spent with clients

11The complaint alleges that the applicant was informed not to associate with women of colour or transgendered women alone in her office with the door closed. This allegation was elaborated upon in the statement of additional facts to state that the applicant was not allowed to have her door closed when she was with a client and that she was told not to be with a client for more than 15 minutes unless there was a serious crisis, when 30 minutes would be permitted.

12In her evidence at the hearing, the applicant states that after she started at the Centre, a lot more Black women came in as clients and the numbers went up tremendously. She states that this was when she was given the time restrictions for how long she should spend with clients. The applicant states that she was the only Case Manager in the office at 416 Dundas Street and she believes that the policy only applied to her. The applicant also gave evidence about one occasion when she was sitting with a White transgendered woman, and was told by the personal respondent not to talk to her.

13On cross-examination, the applicant acknowledged that she was not told to restrict her time only when she was meeting with Black clients, but stated that her clientele at the time was about 89% Black and so she believes that the restriction was imposed because of her Black clients.

14The personal respondent acknowledges that she and the applicant may have discussed limiting time with clients, but does not believe that it would have been down to 15 or 20 minutes. Her evidence is that the Case Manager position was funded by the Ministry of Health (the “Ministry”) through a special case management fund, and as a result she needed to be able to report to the Ministry how many clients were seen and for how long. She states that part of her role when she was brought on as Executive Director was to put systems in place to track this kind of data, and she identified a number of different staff members who also were required to report similar information.

15The personal respondent states that there may have been encouragement not to over-spend time with one client, because of a desire to see services provided equally across the board. The personal respondent denies making any comment about the applicant not talking to a transgendered client.

16Having considered all of the evidence at the hearing, I am not satisfied that the applicant has established a connection between any time restriction placed on her meetings with clients and either her race or ethnic origin or that of her clients. It appears to me that due to the special Ministry funding for the applicant’s position, there was a need for greater accountability in reporting data and no doubt a desire to present to the Ministry that greater numbers of women were being served. I also note the applicant’s own evidence that the number of clients went up tremendously after she started, which may also have contributed to a need to restrict time spent with any one individual client so that a greater number of clients received at least some level of service.

17The applicant points to evidence given by a respondent witness, who works at the Centre and who is White, who testified that no such time restrictions were imposed on her and that she was not required to have her door open when meeting with clients. In my view, this is comparing apples to oranges. The primary duty of this staff member was to assist clients in obtaining government identification. In contrast, as Case Manager, the applicant was responsible for providing services to clients with their substance abuse and/or mental health issues. Quite simply, these two employees were not performing the same job, and it is my view that nothing material can be taken from any difference between how staff members in such substantively different positions were told they should deal with clients.

Monitoring the applicant’s work

18The complaint alleges that the applicant was monitored on the length of time she spent with clients of colour. Part of this allegation has already been addressed above. In the statement of additional facts, the applicant alleges that she also was monitored by the personal respondent and by a consultant employed by the Centre who would come into her office on a daily or even more frequent basis and want to see her notes. It is alleged that they would also look at the applicant’s files.

19No evidence about this allegation was given by the applicant in her testimony in chief. The only actual evidence given by the applicant about this allegation came on cross-examination, when she testified that the consultant was not her supervisor and her role was unclear, but that the consultant had authority to come into her office, pick up her files, and see if she was doing them properly.

20The personal respondent states that she did not go into the applicant’s office to review her notes or files, as that was the responsibility of the applicant’s Team Leader and not the Executive Director. The consultant’s evidence was that she never checked the work that the applicant was doing, except when the applicant brought charts to her for her to see.

21The evidence does not support the applicant’s allegation of discrimination on this basis. Even if I were to accept the applicant’s evidence on this point, at its highest this evidence indicates that the consultant came into the applicant’s office, picked up her files and looked to see if the applicant was doing them properly. There is no evidence that any performance concerns or issues were raised with the applicant as a result of this alleged conduct, nor is there any evidence of adverse treatment in this regard. The applicant’s performance review signed shortly before her departure from the Centre indicates no issue with the applicant’s notes, files or record-keeping. As a result, I find that the applicant has not established that she experienced discrimination in relation to this allegation.

Changes to job duties

22The applicant’s complaint alleges that her job duties were changed at the Executive Director’s discretion with no prior notice.

23In her evidence at the hearing, the applicant states that she was hired as a Case Manager, but then started as a front line worker when she worked some weekends. She states that there was no real role for her at the Centre, and she was asked to do whatever the personal respondent wanted her to do.

24She states that about three weeks after she started, she moved into the attic where she was given an office; but the attic was then turned into a donation room, and she was floated around again. She states that she was then paired up in an office with another staff member, but states that this staff member wasn’t comfortable with her, so she was moved into an office to work with her Team Leader. In her evidence, the applicant initially stated that the first staff member said that the applicant had too many clients who were women of colour, but the applicant shortly afterwards amended her testimony to state that this staff member actually did not make any comment about her clients being women of colour. On cross-examination, the applicant acknowledged that this staff person is the treasurer and deals with money on a daily basis, so sharing this office was not a safe place for the applicant to be with her clients.

25The applicant then briefly shared an office with her Team Leader, who is also a Black woman, but the Team Leader initially did not want to share an office with the applicant and would sometimes have the door closed or locked so that the applicant could not get in. The applicant was then moved to the Centre’s location at 448 Ontario Street and had to walk from there to 416 Dundas Street. A couple of weeks later, the applicant states that she was paired up with her Team Leader again, and that the personal respondent got her a phone and computer. She states that she was then asked to work downstairs at 416 Dundas Street as a welcoming person to greet people who arrived at the agency. The applicant states that after she did that for a few weeks, she was asked by the personal respondent to start an anger management group, but this group never took off. The applicant states that she was then involved with a mediation group, and did not actually become a Case Manager until March or April 2007.

26Based upon my consideration of the evidence before me, it is clear that the applicant was hired by the Centre at a time of significant change. The personal respondent had been hired as Executive Director shortly before the applicant was hired, with a mandate to change how the Centre was functioning and to move the Centre more in line with Ministry standards and requirements. The personal respondent’s evidence was that this involved moving the agency away from its prior practice of simply providing food, clothing, and other basic necessities to vulnerable women to a more recovery-based model where the Centre would try to assist these women in moving forward with their lives in a more positive way. As a result, the roles of all staff members at the Centre were evolving and changing. There is also no doubt from the evidence that office space was limited at the Centre’s premises, and that there were difficulties in locating a permanent space for the applicant to work.

27The evidence before me does not support that the various duties assigned to the applicant and the difficulties in finding her a permanent space were related to her race or ethnic origin. Rather, in my view, the evidence supports that this was due to the Centre being in a process of change and flux at the time the applicant was hired and due to the limited office space available at the Centre’s premises.

Conflict with European staff

28In her complaint, the applicant alleges that there was continuous conflict with European staff that was brought to the Executive Director’s attention with no resolution. The applicant alleges that she spoke with the Executive Director about discrimination and boundaries and confidentiality that affected her, and that she requested that the Executive Director do mediation with White staff around racial slurs and comments but that this was not done.

29In the statement of additional facts, the only specific incident cited by the applicant in support of these allegations is an incident where a White staff member is alleged to have referred to the applicant and other co-workers as “Black bitches”. The applicant’s evidence at the hearing was that there had been a break-in at the Centre, and staff were involved in cleaning up. The applicant states that the personal respondent allowed them to order pizza. The applicant states that when the pizza arrived, a White staff member said, “you Black bitches don’t deserve any because you didn’t do any work”. The applicant states that she then threw the pizza on the floor, and she and this staff member had a physical altercation. She states that the personal respondent was told about the incident, and spoke alone with the White staff member about it. The applicant states that she stood between the two of them, and said that she was going to leave and just wanted to know that she and the White staff member were “cool”. The applicant states that the next day, the consultant came and spoke to staff about how they should work together as a group. The applicant states that she told the personal respondent about the derogatory term that the White staff member had used, and the personal respondent did nothing about it.

30The applicant called one witness who was present for this incident. This witness states that the White staff member said that the applicant didn’t deserve pizza because it was only for workers. This witness testified that the White staff member used the term “you people” and that when the altercation between the White staff member and the applicant broke out, she heard the word “bitches” used. This witness states that she did not hear the White staff member say “Black bitches”, although she was on her way downstairs and didn’t hear the whole exchange. This witness states that she spoke to the personal respondent about the incident and asked if the personal respondent was going to speak to them about their behaviour, but she states that the White staff member did not receive any reprimand.

31The White staff member testified that when the pizza arrived, she went out to get the pizza, and the applicant came in and took the pizza. This witness states that she said, “I don’t think so, this is for the workers”. This witness states that she grabbed the pizza out of the applicant’s hands, and took it in to the staff who were cleaning up downstairs. This witness denies that she referred to the applicant or other staff as “Black bitches” or “bitches”. She states that she doesn’t think it is possible that she referred to the applicant and others as “you people”, although she may have said “you guys”. She also states that the applicant did not throw the pizza on the floor and that there was no physical altercation. This witness states that no-one spoke to her about the incident, although in response to my questions, she said that the personal respondent may have spoken to her that day and she just doesn’t recall it. She states that her relationship with the applicant was fine before this incident and fine afterwards.

32The personal respondent testified that she was upstairs at 416 Dundas Street when this incident happened, and that she heard about it later. She states that the incident was not brought to her attention for intervention, but that she was just informed about it. She states that she was told that the applicant and the White staff member had had an altercation, and that they had made up, so she didn’t get involved in it. She denies going down to speak to the White staff member about this incident, because the incident wasn’t brought to her as any “big deal”. On cross-examination, the personal respondent stated that she did ask the White staff member the next day whether she had had an argument with the applicant, and the White staff member said yes but that it was alright.

33I also heard from one of the respondents’ witnesses who had ordered the pizza that day. This witness states that the applicant came to her and said that there was a dispute about the pizza, and this witness went to speak to the White staff member about it. This witness states that the White staff member’s view was that staff doing the cleaning should get the first round of pizza and that the others should get the second round. This witness states that the applicant did not tell her that the White staff member had made any racist comments or that there had been a physical altercation. The consultant also testified before me, and her evidence is that she was never involved in a meeting with the applicant and the White staff member about this incident.

34With regard to the pizza incident, I have several concerns about this allegation. My first concern is that this allegation does not appear in the applicant’s complaint, and was only raised for the first time two and a half years later when she filed her statement of additional facts. Given that the applicant was filing a complaint alleging discrimination because of her race and ethnic origin, it seems to me that an allegation that she and others were referred to by a White staff member as “Black bitches” and that she reported this comment to the personal respondent is a significant allegation that one would expect to see set out in the complaint. Yet there is no mention of it, despite the fact that the complaint does contain specific reference to alleged comments about “slaves” (addressed below).

35Second, the evidence given by the applicant differs from the allegation as made in the statement of additional facts. In her evidence, the applicant states that there was a physical confrontation between herself and the White staff member, which is not referenced in the statement of additional facts. In the statement of additional facts, the applicant states that after throwing the pizza on the ground, she said “that is where dogs eat” and states that she herself called the White staff member a “bitch”; despite giving her evidence about this incident in chief and again in cross-examination, the applicant made no reference to these statements.

36Third, the only witness called by the applicant in relation to this incident did not provide evidence to corroborate that the White staff member used the term “Black bitches”. Further, while this witness states that she heard the word “bitches” used, she did not attribute the use of this word specifically to the White staff member. Rather, her evidence is that the White staff member used the term “you people”.

37In consideration of all of the evidence before me, I find that I do not have sufficient reliable evidence to establish that the White staff member used the term “Black bitches” in reference to the applicant and other staff members. While the White staff member may have said “you people” or “you guys”, I find that she was referring to the staff members whom she did not regard as helping out with the clean-up, and not as a racial comment. As I have found that the evidence does not support that this alleged racial comment was made, I find that no allegation of a racial comment was raised by the applicant with the personal respondent and accordingly that there was no failure by the personal respondent to appropriately respond to an alleged violation of the Code.

38I also heard some general evidence about racial comments made by White staff at the Centre. The Team Leader testified that the applicant would come and speak to her when White staff members made racist comments, and this witness would direct the applicant to the personal respondent. This witness states that there were a couple of times when the White staff member involved in the pizza incident said that too many Black women were coming into the Centre or that the applicant was giving too much food to Black women. This witness states that she reported these comments to the personal respondent and told her that she needed to intervene but this wasn’t done. However, this witness later stated that the personal respondent would speak to White staff, but that nothing really would be done.

39I am concerned about this evidence for a number of reasons. First, this witness testified that the applicant came to her when White staff members made racist comments, however the only specific evidence I heard from the applicant about alleged racial comments by a White staff member relates to the pizza incident. In other evidence, the applicant stated generally that other racist comments were made by this White staff member, but no specifics were provided and there was no evidence that these were reported to or shared with the Team Leader. In the absence of any other specific evidence from the applicant herself, I place no reliance on the Team Leader’s evidence that the applicant came to her about other racial comments. Second, while this witness gave general evidence about the kinds of comments the White staff member would make and that she reported these to the personal respondent, her evidence was devoid of any specific details or particulars as to when these comments are alleged to have been made, what the specific context was then these comments were made, or any specifics about what was discussed with the personal respondent. I further note this witness’ internal inconsistency in her evidence; she first stated that the personal respondent didn’t intervene, and then shortly after stated that the personal respondent would speak to staff.

40Apart from the pizza incident, there was only one other specific incident where the White staff member admittedly made a racial comment. Sometime in early October 2006, a client of the Centre, who is a Black woman, was running around naked, and was told by the White staff member to get her “Black ass” downstairs. An incident report was prepared by the Team Leader regarding this incident, which records that the Team Leader informed the White staff member that this was an extremely inappropriate and unprofessional comment. As a result of this incident, the White staff member was issued a written reprimand dated October 13, 2006 by the personal respondent, and told to refrain from such behaviour immediately and that if she displayed such behaviour again it could be cause for her to be dismissed from her employment. In my view, this evidence indicates that when a specific incident of a racial comment by a White staff member was reported to the personal respondent, she took appropriate action in response.

41I also heard general evidence about racial comments from one other witness called by the applicant. This witness was not available to testify on the first hearing day, and was allowed by me to provide her evidence on the second day after the respondents had started calling their evidence, over the respondents’ objection. This witness testified that the White staff member involved in the pizza incident made racial comments, and that “Black bitch” comes to mind. She also testified that this staff member made comments about “those people”, which this witness regarded as being racial comments because the staff member was referring to Black people. However, this witness admittedly could provide no specific details or particulars to support this general evidence. In the absence of any such specifics, I place no reliance on this evidence, as it is unfair to both the respondents and the White staff member to be called upon to respond to this type of general evidence without having been provided with any specific incident when it is alleged that such comments were made.

42This witness similarly gave general evidence about the applicant being undermined by the personal respondent, but once again was unable to provide any specifics. Again, in the absence of specifics, I place no reliance on this evidence.

43I also heard evidence from a client of the Centre, who testified generally that she believed that the personal respondent discriminated against women of colour. Once again, this evidence was devoid of specifics, and really amounted to statements of this individual’s impression or perception. Again, in the absence of specifics, I place no reliance on this evidence.

Allegation that applicant was used as a bodyguard

44In the complaint, the applicant alleged that she was used as a bodyguard due to her ethnic origin and connection to the community. In the applicant’s written submissions, it is alleged that the applicant was demoted to a bouncer role because of her appearance.

45Very little evidence was led at the hearing in relation to this allegation. In her evidence in chief, the applicant made passing reference to working on the front line and being a “bouncer” for the agency, but provided no evidence to support any connection to her race or ethnic origin or that this was because of her appearance.

46I find that this allegation is not supported by the evidence.

Allegation re “slaves” discussion

47In her complaint, the applicant alleges that she met with the personal respondent and the consultant working for the Centre, and that they proceeded to explain that Irish people were the first set of slaves. This allegation was expanded upon in the statement of additional facts and in the applicant’s evidence at the hearing.

48The applicant’s evidence is that the personal respondent and the consultant hired by the Centre organized a lunch meeting at a nearby bistro because the Centre was introducing the Case Manager position. The personal respondent, the consultant, the applicant and two other Case Managers were stated to be in attendance at this meeting. The applicant states that she doesn’t recall how this came up, but the personal respondent and the consultant stated that they were from either Scotland or Ireland, and said that this was where the first set of White slaves came from. The applicant states that the consultant said that she didn’t understand where Blacks came from when they said that they were the first slaves, and that the first slaves were in Ireland or Scotland and that there are slaves there up to the present day. The applicant states that she was the only Black person in attendance at this meeting, and the other attendees are White with the exception of one of the Case Managers who is Filipino.

49The personal respondent recalls a lunch meeting with the Case Managers at the bistro, but states that there was no discussion of slaves at this meeting. She states that the only thing she can relate to this allegation is a discussion between the consultant and the Team Leader about the movie “Gangs of New York”, where she and the applicant were also present. She states that the movie was about the difficulties experienced by Irish people when immigrating to New York, but states that there was no discussion about slaves.

50The consultant’s evidence is that she did not ever have lunch at the bistro when the applicant was present, and never had a lunch with the personal respondent where the subject of slaves came up. However, in cross-examination, this witness later stated that there was a work-related luncheon involving the people identified by the applicant, but she states that the discussion was around staff concerns about their work and how things could be improved. She states that there was no discussion comparing White and Black slaves, or about slavery or Irish people at this lunch.

51This witness recalled a discussion on a break at work about the movie “Gangs of New York” involving her, the Team Leader and the applicant, where they were discussing what they felt about the movie. This witness states that the movie was about the Irish when they came to New York and what they had to do to get a start in America. This witness stated in cross-examination that she believes the applicant made a comment about what was in the movie. In response to my questions, this witness stated that what the movie depicted was that when the Irish came over, they were living in conditions of slavery, and that the applicant and the Team Leader talked about slavery. She stated that she does not recall the personal respondent being present for this discussion, but that the personal respondent could have come in at the end.

52In her reply evidence, the applicant states that she has never seen the movie “Gangs of New York” and was never involved in a discussion about this movie.

53Once again, I am concerned about the applicant’s evidence regarding this allegation and how it differs from what is set out in the statement of additional facts filed on her behalf. In the statement of additional facts, it is alleged that the consultant introduced the topic of slavery by talking about “how Blacks are always feeling sorry for themselves” as an introduction to the statement that Northern Ireland is the first place to have slaves. This is significantly different from the applicant’s evidence at the hearing, where she stated that she didn’t know how the discussion about slavery came up and made no mention of any comment about Blacks feeling sorry for themselves. The statement of additional facts also alleges that the personal respondent said, “but the White slaves never felt sorry for themselves”. No such evidence was given at the hearing. The statement of additional facts further states that the applicant asked where this was coming from, to which the consultant replied that “there are a lot of Blacks who feel things only happen to them”. Once again, no such evidence was given at the hearing.

54Had the applicant given evidence at the hearing consistent with what is set out in the statement of additional facts, and had I found that the alleged comments were made, I can understand how it is alleged that these comments were racial and discriminatory. However, I need to base my findings upon the evidence as actually given before me. Even if I were to accept the applicant’s actual evidence about this discussion in its totality, what I am left with is a comment that Irish or Scottish people were the first White slaves and a comment that the consultant didn’t know where Blacks came from in saying that they were the first slaves. Human rights legislation is not intended to prevent or prohibit normal social conversation about matters that touch upon a prohibited ground of discrimination, even where discussion of such matters may touch on difficult issues or provoke disagreement. Even if a discussion had occurred about whether Irish or Scottish people or Black people were the first slaves, I do not find that such a discussion necessarily results in a violation of the Code in the absence of any evidence that the participants in the discussion knew or ought reasonably to have known that the applicant found it unwelcome, and no such evidence is before me.

Allegation re “ghetto” comment

55The applicant’s statement of additional facts alleges that in November 2006, the applicant overheard the personal respondent make a comment that the applicant was “so ghetto” and that she was “definitely from Regent Park”. While this allegation was not raised in the complaint, this Tribunal’s prior Interim Decision determined that it was within the proper scope of the Application.

56The applicant’s evidence at the hearing was that she was involved in arranging housing for a client of the Centre, and needed to speak with her Team Leader who was in a meeting in the library at 416 Dundas Street. The applicant states that she walked up to the library door and was making eye contact with the Team Leader, when she heard the personal respondent say, “Shawnette is so ghetto, I believe she is from Regent Park”. The applicant states that the Team Leader later came to speak with her, and said that she, the Team Leader, and another Black staff member don’t belong at the Centre and was rubbing her Black skin as she said this. The applicant states that the Team Leader also told her that the personal respondent didn’t want the applicant at the Centre. On cross-examination, the applicant stated that she asked the Team Leader whether she had heard right that the personal respondent had said she was “so ghetto”, and the Team Leader responded by saying that the applicant should find another job. The applicant states that at this time the Team Leader didn’t confirm that the personal respondent had said this. Later, in cross-examination, the applicant stated that the personal respondent had said that she was “so ghetto and definitely from Regent Park”.

57The Team Leader, who was in attendance at this meeting, gave evidence about what occurred. She states that the consultant reported at this meeting that the applicant was unhappy with being told that she could not meet with clients behind closed doors and with being moved around the agency. This witness states that once the consultant disclosed this information, the personal respondent made a comment about the applicant being “ghetto”. This witness states that the applicant later spoke to her and said that she had heard this comment, and this witness told the applicant that she needed to look for another job.

58The Team Leader also gave evidence that the personal respondent would insinuate in conversations that the applicant was “ghetto” and had a lack of finesse and professionalism. She stated that the personal respondent made this type of comment more than half a dozen times. In cross-examination, this witness stated that the personal respondent said numerous times that she didn’t like the applicant’s “ghetto behaviour” and referred to Black women clients who came in to see the applicant as the applicant’s “ghetto friends”. This witness did not provide any specific details or particulars about these alleged comments by the personal respondent.

59The personal respondent denies making any comment about the applicant being “ghetto” or from Regent Park. She also denies telling the Team Leader that the applicant is “ghetto” or that she wanted to get rid of her. Her evidence was that the applicant was one of the better staff working at the Centre, and it was never her intention to terminate the applicant’s employment.

60I also heard evidence from three other witnesses in attendance at the meeting when the “ghetto” comment is alleged to have been made. While there was some suggestion in cross-examination that some or all of these witnesses might have been out of the room when the comment was made, I note that the applicant’s evidence is that she saw two of these witnesses in the room when the comment was made and the Team Leader’s evidence is that the consultant, who is the third witness, made the statement that precipitated the alleged comment.

61The consultant’s evidence is that she never heard the personal respondent refer to the applicant as being “ghetto” or as being from Regent Park, and she states that she would remember if the personal respondent had said this. When I questioned this witness as to why she would remember if the personal respondent had simply said that the applicant was from Regent Park, this witness stated that this would be almost like a “put-down” or that she was “less than”. While this witness states that she regularly had meetings in the library, she does not recall an occasion when the applicant came to the door looking for her Team Leader.

62A second respondent witness who was at the meeting testified that she absolutely had not ever heard the personal respondent refer to the applicant as “ghetto” or as being from Regent Park. This witness states that she did attend senior staff or team leader meetings in the library, but does not recall an occasion where the applicant came to the door and needed to speak to her Team Leader. This witness states that the personal respondent did not say at any such meeting that the applicant was “so ghetto” and came from Regent Park.

63A third respondent witness who is alleged to have been at the meeting also testified that she had never heard the personal respondent refer to the applicant as “ghetto” or as being from Regent Park. This witness testified that she did not participate in senior staff or team leader meetings.

64The three respondent witnesses who are alleged to have been at the library meeting are all still employed by the Centre. The Team Leader, who was called to testify by the applicant, resigned from the Centre in March 2007. She also assisted the applicant in the preparation of her complaint.

65I am troubled by the fact that this allegation does not appear in the complaint, and only surfaced two and a half years later in the statement of additional facts. The complaint identifies the Executive Director as a personal respondent and in the complaint specifically attributes to her and the consultant the statement about Irish people being the first slaves. In a complaint alleging discrimination because of race and ethnic origin by not only the Centre but specifically by the personal respondent, one would expect that a racial comment expressly attributed to the personal respondent would have been included. One particularly would have expected such a comment to have been included given that the Team Leader assisted the applicant in preparing the complaint, and this comment is alleged to have been made in the Team Leader’s presence.

66I also am concerned about inconsistencies around the timing of when this comment is alleged to have been made. In the statement of additional facts, it is stated that the comment was made at a meeting held in November 2006. However, in her evidence, the Team Leader was very clear that the alleged comment was made in response to the consultant sharing information at this meeting that she had obtained from the applicant during the course of a staff consultation that she had conducted. This was an issue for the applicant and the Team Leader because discussions during the staff consultation were supposed to be confidential. The consultant’s report is in evidence before me, and indicates that the staff consultation was held from January 30, 2007 to February 12, 2007. As a result, in November 2006, the consultant would not have been in a position to disclose information that had been shared by the applicant as part of the consultation. The Team Leader’s evidence also is that shortly after this meeting, she decided that she no longer wanted to work at the Centre and would be leaving. Her evidence is that she went off on sick leave as of February 23, 2007. This provides further support that the meeting referenced by the Team Leader occurred sometime in February 2007, not in November 2006.

67I am further concerned about the lack of specificity in the Team Leader’s evidence that the personal respondent referred to the applicant as “ghetto” on other occasions. In this regard, I note that in the Team Leader’s evidence in chief, she said that the personal respondent would “insinuate” that the applicant was “ghetto” and made reference to the personal respondent’s views about the applicant’s lack of finesse and professionalism. The Team Leader also testified that the personal respondent made “this type of comment” on several occasions. It was only on cross-examination that the Team Leader became more emphatic in her evidence, and testified for the first time that the personal respondent made reference to the applicant’s “ghetto behaviour” and “ghetto friends”.

68There is no question in the evidence that the personal respondent had concerns about the applicant’s professionalism. This is supported by the performance review dated May 9, 2007, in which the personal respondent writes that the applicant needs to “work on improving . . . her professional presentation”. What troubles me is that the Team Leader’s evidence in chief was not clear as to whether the personal respondent shared her concerns about the applicant’s lack of professionalism and the Team Leader felt that she was insinuating that this was because the applicant was “ghetto” and from Regent Park, as opposed to directly making a comment that the applicant was “ghetto”.

69In weighing all of the evidence before me, I once again find that I do not have sufficient reliable evidence to support the applicant’s allegation that the comment about being “so ghetto” and from Regent Park was made by the personal respondent, particularly in light of the evidence of others who are alleged to have been at this meeting that no such comments were made.

Allegation re monitoring arrival and departure times

70In her complaint, the applicant alleges that staff were instructed to monitor her arrival and departure times and report them to the personal respondent and team leaders. This is contrasted in the statement of additional facts with a White staff member who could come and go as she pleased.

71However, at the hearing, no evidence was provided by the applicant in support of this allegation.

Allegations re being demoted

72In her complaint, the applicant alleges that she was demoted by the personal respondent and various team leaders. In the statement of additional facts, it is alleged that this constitutes differential treatment in relation to her Caucasian counterparts and that other staff were promoted while the applicant was demoted.

73The only specific example of a demotion provided in the statement of additional facts is in relation to a movie and discussion event that the applicant set up for the Centre. It is alleged that this event was taken away from the applicant by the personal respondent, and given to her friend, a White woman, instead.

74In her evidence, the applicant acknowledged that at one of these events she showed a bootlegged copy of the movie “Dream Girls”, which she agreed was illegal. The personal respondent’s evidence is that this is the reason that the applicant was removed from running this event. On the basis of this evidence, I find that the applicant’s race and ethnic origin were not factors in this decision.

75The applicant’s written argument also alleges that the applicant was demoted to other demeaning positions such as mopping floors and wiping tables. To the extent that this refers to the work assigned to the applicant generally at the Centre, this allegation already has been addressed above. The applicant did not give any testimony at the hearing about mopping floors or wiping tables.

76With regard to the allegation about White staff being promoted, the applicant focuses on one specific White staff member who did not have the applicant’s academic qualifications. The entirety of the applicant’s evidence at the hearing about this individual was that the applicant was working on the front line and being the “bouncer” for the Centre, while the White staff member was working as the technical person and was given an office in the library that was well-equipped. I do not regard this as evidence of a “promotion” for the White staff member or of a “demotion” for the applicant. The respondents’ evidence is that they were both working at the same level, and there was never any change to the applicant’s rate of pay. At its highest, the applicant’s evidence may support that different duties were assigned to her and to the White staff member, but in my view the evidence is far from sufficient to establish that this was because of the applicant’s race or ethnic origin.

77There also was an allegation raised about this White staff member being moved into the applicant’s position following the departure of the applicant from the Centre. In my view, given the ruling in the Interim Decision that issues relating to the applicant’s departure from the Centre are not within the scope of this Application, I find that this allegation also is not within the scope of the Application as it relates to events following the applicant’s departure.

Other allegations

78In the course of this proceeding, a number of other allegations emerged. In the statement of additional facts, an allegation is made that the consultant promised to maintain confidentiality around what was said to her during the staff consultation, but breached this promise of confidentiality by telling the personal respondent what the applicant had said. This is denied by the consultant and the personal respondent. In any event, whether or not this occurred, the evidence does not support any link or connection to the applicant’s race or ethnic origin and this allegation does not support any violation of the Code.

79At the hearing, I heard a lot of evidence about whether clothing donations were stolen by staff or clients and whether the applicant was accused by the personal respondent as having stolen certain items. This was not raised in the complaint and was not stated as an allegation of racial discrimination in the statement of additional facts, and thus is not an issue before me. The same applies to allegations about hot coffee alleged to have been spilled on the applicant by a client, and whether or not a baby gate was placed in the applicant’s office door.

80For all of these reasons, the Application is dismissed.

Dated at Toronto, this 9th day of November, 2010.

”signed by”_________________

Mark Hart Vice-chair