HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jon Wagner
Applicant
-and-
Russ Bishop
Respondent
DECISION
Adjudicator: Naomi Overend
Indexed as: Wagner v. Bishop
APPEARANCES
Jon Wagner, Applicant ) Self-represented
Russ Bishop, Respondent ) Self-represented
INTRODUCTION
1The applicant, Jon Wagner, was hired as labourer/driver by the respondent, Russ Bishop, who runs a roofing company in the Kitchener area. The applicant alleges that on the last day he worked with the respondent he was subject to a crude and offensive comment of a sexual nature, which was followed-up by related comments during the remaining hours of the work day.
2The applicant alleges that this amounted to sexual harassment and a sexual advance. When he was fired approximately a week later, he alleged this was reprisal for not responding to the advance.
3For the reasons that follow, I find that the applicant was subject to sexual harassment, but that there is no link between the termination of his employment and the harassment.
FINDINGS
4The applicant was hired in early November, 2008 and worked approximately five weeks as a labourer and driver for the roofing component of the respondent’s company. In mid-December 2008 the company shut down its roofing operation for the winter season, but the applicant was kept on to work for the snow-removal operation run by the company in the winter.
The Allegations
5The applicant states on December 18, 2008, the last date he worked directly with the respondent, they were doing a roofing job, which involved a fair amount of glue. In the midst of doing this job, the applicant alleges that the respondent asked if his hands were clean, to which he answered yes. The applicant alleges that the respondent then said, “Great. Pull out my dick and hold it, I gotta take a whiz.”
6The applicant states that this comment was made in the early afternoon. He states that the respondent would not let the comment go, and made two or three further references to “how eager [the applicant] was to hold his unit” (collectively, “the remarks”).
7The applicant did not respond to the remarks, although he testified he was angry and disgusted by them at the time, because he knew that the respondent would be leaving the province for an extended visit to Alberta the next day. He also viewed the respondent as “mercurial and capricious” and did not want to set him off.
8The respondent testified that he did not make the remarks attributed to him. Specifically, he testified:
a. The applicant did not work on December 18, 2008;
b. The respondent is in a heterosexual marriage, and does not engage in homosexual activities;
c. The applicant failed to complain at the time and showed no sign of being upset with him, even coming to the respondent’s house shortly after this alleged act and accepting a present from him; and
d. The applicant and a co-worker conspired to concoct this story because they were angry that they were subsequently fired.
9As noted above, his employment was terminated shortly after the respondent went to Alberta for reasons that were not clear to the applicant. In his Application he stated the following: “…the rant left on my voice-mail indicated that Russ was unimpressed with my attitude and I was fired. I am led to believe that my not responding to his homosexual advances with good grace was in part responsible for my termination.”
10At the hearing, the applicant did not testify in his case-in-chief about the termination of his employment, but was asked questions about it by the respondent in cross-examination. In addition, the respondent led evidence concerning his reasons for firing the applicant.
11While the respondent’s evidence on his reasons for firing the applicant was contradictory (as discussed below), there was no evidence led on which I could draw the inference or otherwise make the link between the respondent’s remarks and the subsequent termination of the applicant’s employment. Indeed, the applicant did not urge me to make any link in his final argument.
12Accordingly, the remainder of this section on findings deals with whether the offensive remarks were made.
Credibility
13The applicant testified the remarks were witnessed by a co-worker, Richard McNeil; the respondent alleged that there were two other co-workers working with the applicant who would have been in position to overhear any inappropriate comments, had any been made. However, none of these co-workers testified.
14I must, therefore, decide which of the two parties’ testimony was more credible. The respondent attempted to discredit the applicant by making spurious allegations about his mental health and employment history, but I ruled that he could not lead what was only going to be unreliable hearsay on irrelevant and highly prejudicial theories. This, however, did not stop him from periodically making inappropriate references to these theories in his evidence. In turn, the applicant attempted to discredit the respondent by cross-examining him on his criminal record. In the end, none of this character evidence was relevant to my determination on credibility.
15With respect to their demeanour, the applicant gave his evidence in a relatively straightforward manner, while the respondent was argumentative and at times disrespectful of the process and, as noted above, the Tribunal’s rulings. However, one must be careful not to read too much into the demeanour of the witnesses. The respondent was not a sophisticated man with respect to legal matters and disrespect cannot be equated with untruthfulness.
16This Tribunal has relied on the formulation set out by the British Columbia Court of Appeal in Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 to determine credibility disputes. Thus, rather than relying on character evidence or differences in demeanour, I have based my credibility assessments of the parties by assessing which of their respective positions was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.”
17In his testimony, the respondent attacked the applicant’s version of events as being unlikely for four reasons which are set out in paragraph 8. This provides a useful framework for scrutinizing the respective positions of the parties. In addition, the respondent proffered several explanations for why he terminated the applicant’s employment and scrutinizing this evidence is also helpful to assess credibility.
The Applicant Did Not Work on December 18, 2008
18The applicant states that the remarks in issue were made on the last day he worked, which was December 18, 2008. The respondent’s spouse, who is responsible for the payroll for the company, produced the applicant’s payroll records, which she says proves that his last day of work was a week earlier.
19She also testified that the last day Richard McNeil worked was December 12, 2008 and produced his payroll records as proof of that assertion. This would be significant because the applicant states that Mr. McNeil was a witness to the remarks.
20In fact, the payroll records for the applicant and Mr. McNeil reveal that both men worked the same days, and the last day on which they were recorded as working was a Thursday. It is not entirely clear from the records whether this was Thursday, December 11 or 18, 2008. There is a hand-written notation in Mr. McNeil’s record (but inexplicably not the applicant’s record) that his “last day worked was 12th”, but I note that December 12, 2008 was, in fact, a Friday.
21It is simply not possible for me to rely on the payroll records as an accurate record of when either the applicant or Mr. McNeil worked. It is not in dispute that Mr. McNeil continued to work for the company ploughing snow with the applicant, and yet there is no record of this. In contrast, the applicant’s record shows him receiving a cheque for this work (described as an “advance” payment).
22In cross-examination, Ms Bishop acknowledged that she and the respondent sometimes paid their employees in cash or in kind and this would not be recorded in the records. Moreover, although the respondent testified that he thought the applicant worked with him on a job on December 15, 2008, this, likewise, is not reflected in the payroll records.
23It may be that the applicant’s last day of work was December 11, 2008 and that he mistakenly remembered it as December 18, 2008, although I am not prepared to make that finding. Even if he was mistaken, given the level of confusion about dates reflected in the testimony of the respondent and his wife, I cannot draw an adverse inference from the fact that the applicant believes the impugned comments were made on December 18, 2008.
The Respondent Has Never Engaged in Homosexual Activities
24The respondent testified that he has been married for six years, and has never engaged in homosexual activities. Although not explicitly stated, it would appear that the inference I am to draw from this evidence is that he would not have made the remarks attributed to him because they imply that the respondent was inviting the applicant to hold his penis for his sexual gratification. The applicant testified that he was confused about the meaning behind the respondent’s remarks, but he thought they might constitute a sexual advance
25Harassment is defined in s. 10(1) of the Code as, “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” It is not necessary to show sexual attraction in order to establish “harassment because of sex.” In Shaw v. Levac Supply (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont.), the Board of Inquiry determined that that term included bullying remarks, designed to demean the sexuality of the recipient. Moreover, the Board of Inquiry ruled that not all harassment because of sex necessarily involved pressure to engage in sexual activity.
26It is, thus, unnecessary for me to delve into the respondent’s sexual orientation as a precondition to determining whether the remarks were made. Remarks of the nature attributed to the respondent could be used to assert his dominance over the applicant with the not-so subtle suggestion implied by them that “holding his unit” is something the applicant might enjoy doing. Indeed, the manner in which the respondent comported himself at the hearing gives credence to the theory that these remarks were in the nature of bullying.
The Applicant Did Not Complain or Show Any Discomfort Post-Incident
27Prior to receiving the Application, the respondent testified that the applicant made no complaint to him or his wife, and that he observed no sign that the applicant was in any way upset with him. Prior to the respondent’s departure to Alberta, the applicant came to his house, at which time the respondent gave him a Christmas gift. Indeed, the respondent testified that the applicant was not upset or angry, but hugged both the respondent and the respondent’s spouse and told them not to worry, that he would take care of business.
28The applicant acknowledged that he did not complain, that he did go to the house, and that he hugged the respondent’s spouse, although he denied hugging the respondent. The applicant testified that he felt too intimidated to stand up to the respondent at the time, and that he needed the work. Since this was his last day in which he would have to work directly with the respondent (the respondent was going to Alberta for an extended period of time while he and Richard McNeil took over the snow ploughing business), he did not want to rock the boat.
29Although Ms. Bishop was technically responsible for human resources, the applicant understandably thought of her loyalties as being more aligned with her husband, which is why he testified he did not feel comfortable broaching the topic with her. Much was made of the fact that Ms. Bishop was the applicant’s step sister, but this relationship was only discovered after the applicant started work for the respondent (i.e., approximately a month prior to the remarks), and was not one of any depth.
30As for the applicant’s attendance at the respondent’s house, the respondent acknowledged in his testimony that the reason for his attendance was to receive his pay.
31The absence of a complaint about an incident is not, in itself, a basis for questioning whether the incident occurred. Human rights jurisprudence is replete with examples of employees who tolerated discriminatory behaviour for extended periods of time before some precipitating event prompted them to take action. In this case, had the respondent not fired the applicant, it is conceivable that he might never have complained.
The Applicant Conspired with a Co-Worker Because He Was Fired
32The respondent expounded the theory in his Response to the Application, which he alluded to in his evidence, that Richard McNeil and the applicant conspired to concoct this bogus claim of discrimination in order to exact revenge for the manner in which the respondent terminated their employment. In particular, the respondent testified that Richard was angry because he advised the welfare officials that Richard had quit rather than be fired from the snow ploughing job.
33The problem with this theory is that there is no evidentiary foundation for such a conspiracy. There was no suggestion in the evidence that Mr. McNeil also filed an application to this Tribunal, nor did he testify on the applicant’s behalf. The fact that both the applicant and Mr. McNeil apparently made claims for unpaid wages from Employment Standards is not a remarkable fact on which I can infer that they conspired with respect to the applicant’s human rights claim.
The Applicant was Fired for Cause
34During the course of his testimony, and his cross-examination of the applicant, the respondent stated that he fired the applicant because he could not safely drive the snow ploughing truck and because he was “stealing” from the company by taking money directly from customers. The applicant denied both allegations.
35In a letter addressed “To Whom It May Concern,” dated 07/04/09, which the respondent attached to his Response to the Application, he stated that he hired another driver to drive the plough truck while he was gone because he had concerns about the applicant’s driving. He also said that he received “constant” complaints from customers that their driveways were not being ploughed. There is no mention of the applicant “stealing” from the company in this letter.
36In the Response itself, which was dated February 2, 2010, the respondent stated: “While I was out West I come to find out that Richard and Jon were plowing snow asking for cash, with my customers and using my truck to get other contracts of there [sic] own and splitting the money.” In this version of events there is no mention of the applicant’s driving abilities or customer complaints about their driveways not being ploughed.
37Specifically with respect to the allegation of bad driving, I noted that the respondent would have had at least five weeks in which to observe the applicant’s driving skills. If defies logic that he would have retained the applicant for the snow ploughing business if the applicant’s driving was as bad as the respondent suggests.
Findings on Harassment
38Given the enormous discrepancy between the three sets of reasons the respondent gave for firing the applicant – as well as the implausibility of some these explanations – there is reason to be concerned about the respondent’s truthfulness and/or recall. I do not have this same concern about the applicant’s evidence, which was both internally consistent and, to use the test in Faryna, in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.”
39Accordingly, I accept that the applicant was subject to the remarks on his last day doing the roofing job. I find that these remarks fall within the definition of harassment, in that they were “a course of vexatious comment.” The respondent did not dispute that they would have been unwelcome, which is not surprising given that he denied making them.
REMEDY
40The Tribunal’s remedial powers are set out in section 45.2 of the Code:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.
41As noted above, the applicant testified that he was hurt, disgusted and angry at the time the remarks were made, and felt powerless because he needed the job and felt he could not react. Subsequently, he testified that when he was looking for work, he had difficulty in job interviews because his suspicions made him ask pointed questions.
42In assessing the quantum of compensation, I have taken into account the fact that the remarks, while offensive, occurred on only one afternoon, after which the applicant was not required to work with the respondent. The applicant testified that these remarks had a strong, immediate emotional impact of him, but a more limited longer term impact. There was no evidence of particular vulnerability of this applicant. In light of the above, the appropriate level of compensation for the injury to the applicant’s dignity, feelings and self-respect is $2,000.00.
ORDER
43The respondent is ordered to pay to Jon Wagner the following amounts:
$2,000.00 as compensation for injury to his dignity, feelings and self-respect;
Prejudgment interest on the $2,000.00 in accordance with the Courts of Justice Act, R.S.O. 1990 c. C. 43, from December 18, 2008; and
In the event that the respondent fails to make the payments described above within 30 days of the date of this Decision, the respondent shall pay postjudgment interest in accordance with the Courts of Justice Act.
Dated at Toronto, this 30th day of December, 2010.
“Signed By”
Naomi Overend
Vice-chair