Campe v. Borland Canada, 2010 HRTO 2352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Campe

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Borland Canada Inc., Borland Software Corporation,

David Schmiedendorf and Christopher Corey

Respondents

RECONSIDERATION DECISION

Adjudicator: Brian Eyolfson

Date: November 26, 2010

Citation: 2010 HRTO 2352

Indexed as: Campe v. Borland Canada

WRITTEN SUBMISSIONS BY

Susan Campe, Applicant ) Sharon Ffolkes Abrahams,

) Counsel

Ontario Human Rights Commission ) Prabhu Rajan,

) Counsel

1On June 4, 2010, the Tribunal issued its Decision in this matter, 2010 HRTO 1257, upholding the Complaint, in part. The complainant has asked the Tribunal to reconsider its Decision. The Commission supports the complainant’s request.

background

2The Tribunal’s Decision stated as follows, at para. 8:

I find that the respondents subjected the complainant to a poisoned environment, when the personal respondent, Schmiedendorf, made inappropriate gender-related comments on one occasion, and discrimination, when she raised allegations of unequal pay based on gender which were not appropriately dealt with, contrary to sections 5(1) and 9 of the Code. I also find that Schmiedendorf’s comments subjected the complainant to a threat of reprisal, contrary to sections 8 and 9 of the Code.

3The Tribunal did not find that the complainant was discriminated against on the basis of gender in relation to her compensation while employed with Borland Canada Inc. (“Borland Canada” or “Borland”), as alleged in the Complaint. The Tribunal also did not find that the complainant was subjected to discrimination and/or reprisal when her employment with Borland was terminated, as alleged in the Complaint.

THE REQUEST FOR RECONSIDERATION

4The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. The Complainant submits that the Tribunal has denied the complainant and the Commission natural justice and fairness by disallowing disclosure regarding the compensation scheme for Borland in the Unites States of America, while relying on the explanation from John Fisher about compensation levels in the U.S. In addition, the Tribunal failed to provide reasons for the said denial of the request for disclosure and thus contravened the complainant’s and the Commission’s right to natural justice and fairness.

b. The Tribunal has placed the burden of proof so high on the complainant and the Commission as to be insurmountable.

c. The Tribunal has made errors clerical and otherwise that go against the manifest intention of the decision.

d. The Tribunal has misapprehended material facts in rendering its decision.

DECISION

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with the Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. Most relevant to this Decision are Rules 98 and 102 of the Tribunal’s Rules of Practice which state as follows:

98. Any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision.

99. A request for reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing;

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

7The complainant relies upon categories (c) and (d) above.

8The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

9As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obligated to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

10In the present case, I find that the complainant has not met the burden of establishing any of the threshold criteria justifying reconsideration.

Natural justice and fairness

11The complainant submits that the Tribunal denied the complainant and the Commission natural justice and fairness by disallowing disclosure regarding the compensation scheme for Borland in the U.S., while relying on the explanation from John Fisher (“Fisher”) about compensation levels in the U.S. More particularly, the complainant submits that she sought disclosure of the compensation levels of male and female sales persons in the U.S., and the Tribunal denied all requests regarding information from the U.S. in regard to similar fact evidence of compensation levels in the U.S.

12The Tribunal notes that the Commission referred the Complaint to the Tribunal by letter dated April 30, 2007 (amended May 14, 2007). The parties were to provide disclosure to each other by August 30, 2007. At a Pre-hearing Conference Call held on November 21, 2008, the following hearing dates were scheduled: May 12, 13, 14, 26, 27 and 29, and June 3, 9, 10 and 16, 2009. It was also determined that, on or before April 27, 2009, the complainant and/or the Commission were to provide the other parties and the Tribunal with a document book containing a copy of all the documents they intended to rely upon at the hearing. The respondents were to provide their document book on or before May 1, 2009. The Commission advised that it would be communicating with the respondents with respect to the production of documents.

13On the afternoon of May 11, 2009, the Commission filed a motion for production. Later that afternoon, the May 12, 13 and 14, 2009 hearing dates were adjourned, for reasons unrelated to the Commission’s motion. However, the Tribunal convened for case management purposes on May 12, 2009, at which time additional hearing dates were scheduled and the respondents agreed to respond to the Commission’s motion by May 19, 2009. In addition, the Tribunal scheduled a conference call for 4:00 p.m. on Friday, May 22, 2009, to deal with the Commission’s motion for production.

14Attached to the Commission’s motion was a copy of a letter to the respondents, dated April 8, 2009, requesting production of fifteen categories of documents. In addition, the Commission attached a copy of a letter to the respondents, dated May 4, 2009, requesting production of personnel files for six individuals. One of the categories of documents requested in the April 8, 2009 letter to the respondents was any and all documentation with respect to the 2002 base salary and commission eligibility of 27 sales executives employed by Borland Software Corporation (“Borland U.S.”) in various cities in the U.S.

15As set out in paragraph 6 of the Tribunal’s Decision, at the next scheduled hearing date (May 26, 2009) the Tribunal ordered that the respondents provide the other parties with the following arguably relevant documents, that existed: copies of all resumes, offers of employment, hiring dates, compensation plans for 2001-2004, and 2003 T4 tax forms for six particular individuals, and the same information and, in addition, job descriptions, for six other individuals; compensation plan for B.D.; and, the complainant’s resume. All of the documents that the Tribunal ordered the respondents to produce were in relation to individuals employed by Borland Canada. The Tribunal did not order production of the documentation requested concerning the compensation of the 27 sales representatives employed by Borland U.S.

16In light of the timing of the Commission’s motion for production, the Tribunal’s decision on the motion was given orally. The Tribunal commenced hearing evidence the following day.

17With respect to the Commission’s production request, the Tribunal notes that the complainant was employed by Borland Canada, and the allegations of discrimination in the Complaint concerning differential pay based on gender focus on the compensation levels of the complainant and other sales representatives employed by Borland Canada. The Complaint does allege that, shortly after the complainant was terminated, Borland U.S. terminated two remaining female Account Executives. However, there are no allegations in the Complaint concerning the compensation of sales representatives with Borland U.S.

18Similarly, the statements in the complainant’s and the Commission’s pleadings concerning differential pay based on gender focus entirely on the compensations levels of the complainant and other sales representatives employed by Borland Canada.

19The complainant submits that the Tribunal denied disclosure of similar fact evidence of compensation levels of male and female sales representatives in the U.S., while relying on Fisher’s evidence of why he hired new representatives. The complainant refers to paragraphs 96 and 108 of the Tribunal’s Decision which state as follows:

Fisher testified that he was given a mandate to get some senior sales people. They had more senior sales people in the U.S., carrying bigger quotas and earning more, and they wanted the Canadian sales force to look more like the U.S. He testified that their focus was to go after larger accounts, sell more Enterprise business and he had a recruiter look for people who would “fit the bill”. …

However, I accept Fisher’s evidence that he had a mandate to hire some senior sales people, similar to the more senior sales people in the U.S. that would carry larger quotas, and this is what he did. I have also reviewed the resumes of R.S., B.D. and S.D. that were entered into evidence at the hearing and I accept Fisher’s evidence regarding their senior sales experience

20As I understand it, the complainant asserts that similar fact evidence of compensation levels of male and female sales representatives in the U.S. is relevant to the issue of whether or not Fisher had a mandate to hire some senior sales people, similar to more senior sales people in the U.S. I do not agree. In any event, whether or not Fisher had a mandate to hire some senior sales people, and whether or not there were more senior sales people in the U.S., the Tribunal accepted, based on a review of the resumes of R.S., B.D. and S.D., that they had senior sales experience.

21The Tribunal also stated as follows at paragraph 113:

… In my view, it is clear from the evidence that the new hires, specifically R.S., B.D and S.D, had much more experience selling Enterprise and business solutions than did the complainant. They were hired as senior sales people, with a focus to go after larger accounts and sell more Enterprise business. As set out above, although their quotas were ramped, the evidence indicates that they were ultimately expected to target 3.4 million on an annual basis by the fourth quarter of 2002, a significantly larger quota than the complainant’s. …

22In the circumstances, I am not satisfied that the Tribunal’s Decision is in conflict with established jurisprudence or Tribunal procedure or that the Tribunal otherwise denied the complainant and/or the Commission natural justice or procedural fairness.

Burden of proof

23The complainant submits that the Tribunal found that Corey was not credible on core issues of his testimony. The complainant also refers to the Tribunal’s finding, at paragraph 181 of the Decision, with respect to “the reason why the complainant’s employment was terminated, which was that Corey wanted to hire B.T. for a position in Ottawa, and the complainant was the only individual on the sales team who held a large number of Ottawa area accounts, and not because of gender.” The complainant submits that this is a very strange and unfortunate outcome given the fact that Corey himself did not plead that his desire to have his male Ottawa associate rather than the complainant as a business associate was the reason for firing the complainant.

24The Tribunal notes that the Commission, in final oral argument, submitted that Corey “wanted to hire his buddy up in Ottawa” and that there was “some suggestion about that” in the evidence. The Commission indicated that “might be despicable, but not necessarily a human rights violation”.

25The respondents denied that the complainant’s employment was terminated by Corey in an effort to facilitate his personal agenda to hire his former colleague, B.T. However, in both their final written and oral argument, the respondents submitted in the alternative that, even if Corey had structured the Ottawa recruitment process in an effort to hire B.T., this in no way constitutes unlawful conduct or conduct which contravenes the Code. The respondents submitted that it would be evidence only of a fairly common practice whereby a manager hires a former colleague who is a known entity to the manager and with whom the manager has had a successful working relationship.

26The complainant also submits that there was testimony that Corey poisoned the workplace for women and that he had a penchant for making derogatory remarks about women’s anatomy at board meetings. The complainant submits that this was not taken into account by the Tribunal in considering that Corey’s behaviour suggested that he preferred to have male associates working for and with him and that, therefore, gender could have been a factor in why the complainant was dismissed.

27The complainant refers to the Divisional Court’s decision in Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811, wherein the Court stated as follows, at paragraph 24:

Where termination occurs within a poisoned work environment, a proper consideration of whether the termination was discriminatory requires that it be examined in the context of the poisoned work environment…

The complainant submits that the Tribunal did not consider the effect of the poisoned environment created by Corey in the decision to fire the complainant and that this is an error of law.

28The Tribunal notes that, at paragraph 49 of the Decision, the Tribunal found that “sexist remarks were made by Corey at some meetings at Borland.” Contrary to the complainant’s submission that the Tribunal did not take this into account in considering whether gender was a factor in the complainant’s dismissal, the Tribunal stated as follows, at paragraph 140 of the Decision:

… Corey, who was responsible for the complainant’s termination, I have found made inappropriate remarks about women at meetings. Having regard to the evidence and the overall context, it is my view that a finding of discrimination based on gender could be made, with respect to the termination of the complainant’s employment, in the absence of a reasonable non-discriminatory explanation from the respondents. However, I am satisfied that the respondents have established a reasonable non-discriminatory explanation for the termination of the complainant’s employment.

29In addition, with respect to the complainant’s assertion that Corey’s behaviour suggested that he preferred to have male associates working for and with him and that, therefore, gender could have been a factor in the complainant’s termination, the Tribunal stated as follows at paragraph 187 of the Decision:

I am alive to the concern that a male supervisor’s decision to select a former male colleague and/or friend for a job may be infused by gender discrimination. As such, I have carefully considered whether the termination of the complainant’s employment in order for a male supervisor to hire a former male colleague and/or friend amounts to discrimination based on gender. I do not doubt that in some situations it could; however, based on the circumstances of this case and after a thorough assessment of the evidence, on a balance of probabilities, I conclude that it does not. I find that the respondents have provided a non-discriminatory explanation for the termination of the complainant’s employment and I do not find that the complainant was subjected to discrimination on the basis of gender, or reprisal, when her employment was terminated.

30I am not convinced that the findings of the Tribunal that the complainant takes issue with, as set out above, are in conflict with established jurisprudence.

31The complainant also refers to the Tribunal’s findings at paragraph 132 of the Decision, wherein the Tribunal stated as follows:

However, the fact that Corey knew the complainant’s salary does not necessarily mean that Corey also knew the complainant had complained about gender disparity in her pay prior to the termination of her employment. While the complainant testified that Fisher assured her that Corey knew all about her request for pay equity, Corey specifically denied knowing this or having these discussions. Fisher’s evidence was the he couldn’t recall pay issues coming up in conversation with Corey, but that he would have talked over any pay issues he thought were there. However, he essentially couldn’t recall if there was a pay issue with the complainant at the time. He was not specifically asked, and did not deny, assuring the complainant that Corey knew all about her request for pay equity. Although, even if Fisher did provide such an assurance to the complainant, it also does not necessarily follow that Fisher actually made Corey aware that the complainant had concerns about compensation that were related to gender.

32The complainant submits that, given the above-noted findings of the Tribunal, it is quite surprising that no nexus was found between the firing and the complainant’s gender. The complainant submits that it is inconsistent for the Tribunal to make the finding that Fisher understood that the complainant’s concerns were gender-related, even though he denied this, and then not find that those gender-related concerns were passed on to Corey.

33The complainant also submits that the Tribunal accepted the fact that the complainant’s concerns regarding gender were communicated to Schmiedendorf. The complainant submits that Schmiedendorf did not testify and Corey indicated that Schmiedendorf spoke to him about firing the complainant. The complainant submits that since Schmiedendorf did not testify, the Tribunal should have drawn an adverse inference as to whether he communicated this information to Corey and that a nexus should have been found between the complainant’s dismissal and her gender-related complaints.

34In these submissions, the complainant essentially raises issues that were the subject of submissions before the Tribunal and dealt with in its Decision. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the above submissions amount to additional argument on issues already fully canvassed before the Tribunal. In addition, while the complainant clearly disagrees with the conclusions of the Tribunal, I am satisfied that the complainant’s submissions have not established that the Tribunal’s Decision is in conflict with established jurisprudence.

Clerical errors

35The complainant submits that the Tribunal has made a number of clerical errors or errors that are fundamental in nature and affect the integrity of the Decision. The complainant refers to an alleged error in paragraph 25 of the Decision which reads as follows:

She believed Schmiedendorf went directly to speak to Fisher about their conversation. Fisher confirmed that Schmiedendorf told him that the complainant raised pay and that is [sic] was a problem for her. Schmiedendorf did not testify.

36The complainant submits that the statement in the Decision that the complainant “raised pay” is unreasonable in the circumstances. The complainant submits that she raised pay equity concerns, not her pay, and that she had no authority to raise her pay.

37Fisher testified on cross-examination that Schmiedendorf told him that the complainant “raised pay”. The Tribunal recognizes that Fisher gave this evidence in the context of being questioned about the complainant raising “concerns” in relation to pay. In any event, Fisher’s testimony is accurately reflected in paragraph 25 of the Decision.

38The complainant refers to a second alleged error in paragraph 29 of the Decision, wherein it states “[Fisher] compared her with a male employee, S.D., who was earning a significantly higher amount than her but because she had outperformed him in the quarter, she was going to take home more money.” The complainant submits that “significantly higher” should read “significantly lower” because, although the male employee was being paid at a higher rate than the complainant, the complainant earned significantly more because she outperformed him.

39The complainant testified that Fisher compared her to S.D. “who was earning a significantly higher amount than [her]”. The Tribunal recognizes that when the complainant stated S.D. “was earning a significantly higher amount” she meant, to the effect, that S.D. was eligible to earn a significantly higher amount than her, as she clearly also testified that she “had outperformed him in the quarter” and “was going to take home more money”. As such, the complainant’s testimony is accurately set out in paragraph 29 of the Decision.

40Aside from a minor typographical error in paragraph 25 of the Decision, the Tribunal disagrees that it made errors as alleged by the complainant and referred to above.

Misapprehension of material facts

41The complainant submits that the Tribunal misapprehended material facts in a number of respects and, in particular, in relation to the quota system and the complainant’s quotas relative to her male counterparts. Although, for the most part, the complainant appears to be attempting to re-argue the case, I will address some of the complainant’s main points.

42The complainant refers to paragraph 88 of the Tribunal’s Decision, wherein the Tribunal stated, in part, as follows:

[Fisher] also testified, and it appears undisputed, that [the complainant’s] salary was made retroactive at the end of April 2002, but not her commission, as she was into accelerators and the increased quota with the new plan would have penalized her in terms of commissions.

The complainant submits that the documents do not support Fisher’s testimony, however, the Tribunal has relied on this erroneous statement of fact. In particular, the complainant submits that the documents show the complainant did receive a retroactive increase, however, the documents also show there was no increase in quota and there was no new plan.

43To begin with, the complainant has not identified which documents before the Tribunal do not support Fisher’s testimony and show there was no increase in quota and no new plan. More importantly, the complainant has not identified how the Tribunal has relied on any erroneous statement of fact. In paragraph 88 of the Decision, the Tribunal refers to Fisher’s oral evidence and noted that it appeared undisputed. However, there is no indication that the Tribunal relied in any way on Fisher’s evidence that the complainant now takes issue with, or that this evidence was material to any issue determined by the Tribunal (see paragraph 118 of the Tribunal’s Decision).

44The complainant also submits that the Tribunal relied on the erroneous representations of the respondents that were not in evidence with respect to quotas for 2003. Again, the complainant has not identified how the Tribunal has relied on any such erroneous representations.

45The complainant submits that the Tribunal failed to apprehend the import of the comment by Fisher that if the complaint wanted to make equal pay to the men, then she would have to outperform the men by more than $1,000,000 in sales. To be clear, the Tribunal did not actually find that such a comment was made by Fisher.

46The complainant refers to paragraph 118 of the Tribunal’s Decision, wherein the Tribunal stated, in part, that “[i]t appears from B.S.’s resume that he had somewhat greater experience than the complainant as an AE in direct software sales since the mid-1990s”. The complainant submits that the Tribunal has misapprehended the resume of both B.S and the complainant in that Dell, where B.S. was previously employed, is a computer hardware company rather than a compute software company. However, the Tribunal notes that B.S.’s resume indicates that he was engaged in the sale of hardware, software, software agreements, and network management solutions while employed by Dell. In any event, as is also set out in paragraph 118 of the Tribunal’s Decision, prior to B.S. transferring to the U.S., the complainant and B.S. had the same compensation plan.

47In my view, the complainant’s remaining submissions amount to additional argument on issues already fully canvassed before the Tribunal. I am satisfied that the complainant has not demonstrated that the Tribunal misapprehended any material facts in rendering its Decision. Moreover, the complainant has not established that the Tribunal’s Decision is in conflict with established jurisprudence or Tribunal procedure, or that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

48In sum, I find that the complainant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Reconsideration Request is denied.