Cécile Filion v. Capers Restaurant, 2010 HRTO 264

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cécile Filion

Applicant

-and-

Capers Restaurant

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: February 5, 2010

Citation: 2010 HRTO 264

Indexed as: Filion v. Capers Restaurant

APPEARANCES

Cécile Filion, Applicant ) Pamela Sero-Thompson, Representative )

Capers Restaurant, Respondent ) Gregory Landon, Representative

BACKGROUND

1This is an Application filed April 8, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination on the basis of age in employment and in the termination of her employment by the respondent and two individuals named as personal respondents. The respondents filed a Response on August 4, 2009, denying the allegations.

2A hearing was held in Kingston on January 19, 2010. The applicant testified and also called evidence from one witness, Ashley Cronk. The respondent called evidence from Jeffrey Camacho.

PRELIMINARY REQUEST TO REMOVE THE PERSONAL RESPONDENTS

3At the outset of the hearing, the respondent requested that the two personal respondents be removed. The applicant did not consent to the request. I heard submissions from the parties and decided to grant the request.

4Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined a “non-exhaustive list of factors” that may be helpful in assessing whether a personal respondent should be removed including:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

5I concluded on my review of the submissions and the material before me, including the allegations made by the applicant and the relief sought, that the personal respondents should be removed from this proceeding. There are no allegations relating to their actions as individuals, distinct from their function as managers with the corporate respondent. Further, there are no facts alleged that, if proved, could give rise to a finding that they personally violated the Code. I saw no prejudice to the applicant’s ability to proceed with the hearing of this matter and her ability to receive an adequate remedy if an infringement of the Code were established. I therefore ordered that the personal respondents be removed and the title of proceedings be amended accordingly. References to the “respondent” for the remainder of this Decision relate to the corporate respondent alone.

EVIDENCE

5There was little disagreement between the parties as to the general facts at issue.

6The applicant, a 58-year-old woman, began working as a server for the respondent restaurant on September 6, 2005, assigned to Monday to Friday shifts, 10 a.m. to 4 p.m. Sometime around April 2008, her hours were changed when the restaurant began closing on Mondays. From that point on, the applicant worked a double shift on Tuesdays, and then Wednesday to Friday as before. By all accounts, her performance was stellar and her relationships with management, co-workers and customers were all positive.

7In September 2008, the restaurant came under new management. Jeffrey Camacho was hired as the new executive chef and General Manager. His wife, Jeining Lei, joined him as staff supervisor.

8It is clear that the new management brought a new approach to running the restaurant and began a process of re-structuring around the middle of October 2008. Changes included a revised menu, new plate settings, new server settings, and many changes in the kitchen. These changes necessitated training for the staff. The training included new guidelines for standardized interactions with customers, table setting and staff uniforms. There was some friction between the applicant and Ms. Lei after a misunderstanding about the applicant’s hours. That conflict, and other points of friction concerning the new standards, led the respondent to have growing concerns about the applicant’s attitude and fit with the restaurant’s new business model.

9Specifically, the new management wanted to fashion the restaurant into a trendy, urban wine bar and brasserie. They planned to train all the staff about wine in the spring of 2009, but prior to that, they would use the winter transition to determine who would stay on board. The applicant had little expertise in wine and would require training in any event. However, the new management’s concerns about the applicant’s willingness to embrace the changes, plus a perception that she was not a team player, led to a growing sense on the part of the company that it must sever its relationship with the applicant.

10The applicant felt there was little space for her, as an older server, in the new management’s business approach. Mr. Camacho and Ms. Lei were a young couple whose fresh thinking appeared not to value the applicant’s seniority and age. In fact, she believed she was targeted because of her age, being more than twice the average age of the other servers.

11The applicant believed the discriminatory treatment began with a misunderstanding about her hours; around December 2008, she made a request for Tuesday nights off. The applicant testified that her request was limited to six weeks in duration; Ms. Lei believed the request was for six months; Mr. Camacho believed it was indefinite. Another server was hired, and the applicant lost her Tuesday night double shift. Pay stubs entered into evidence support the applicant’s claim that her hours dropped following the change in management, demonstrating a reduction from an average of 33 hours per week between late June and late October 2008, to an average of 27 hours per week between mid-November 2008 and mid-March 2009. This average reduction by six hours roughly corresponds to the lost 4 p.m. to 10 p.m. Tuesday night shift.

12The applicant did not make her request in writing, so there is no independent corroboration of the applicant’s claim that she stipulated a six-week limit on her Tuesday night accommodation. Ms. Lei did not testify, but I accept Mr. Camacho’s evidence that there was a misunderstanding between his wife and him about the applicant’s Tuesday night availability, which led to the hiring of additional staff. I am therefore unable to find that this reduction was anything other than a misunderstanding.

13On March 26, 2009, the applicant was called into Mr. Camacho’s office and told her employment was being terminated. She was handed a letter, which cited a downturn in business as the reason for the dismissal. It was made clear to her that she was not being terminated for cause, but rather due to a shortage of work. The applicant told Mr. Camacho that she felt it was unfair that she was being terminated out of seniority order.

14Although the applicant did not raise the issue of discrimination to management at the time of her dismissal, she testified that she believed work shortage was a veil for a discriminatory decision to terminate her due to her age. The average age of the other servers was 25. Of greater concern to the applicant was the fact that the restaurant had just hired a new server shortly before that (around the time of the Tuesday night shift misunderstanding), and she later learned that two additional servers were hired within weeks of her termination. All of the new servers were young people.

15In his oral testimony, Mr. Camacho maintained that the only reason for the applicant’s termination was the downturn in business. I do not find that explanation to be credible. While insisting business reasons formed the basis of the decision, the witness’s responses to questions revealed other factors at play. He had difficulty answering straightforward questions, often giving long-winded responses on unrelated issues. His testimony returned frequently to the applicant’s difficulties with the restaurant’s new standards, and to her conflict with the supervisor, Ms. Lei. He testified that, although the applicant was never formally disciplined in writing, she was spoken to on multiple occasions by Ms. Lei about her failure to follow the new standards, and on one occasion by Mr. Camacho about insubordination.

16In response to a question on cross-examination about why additional staff were hired shortly after the applicant was let go, Mr. Camacho did not suggest that the downturn had reversed itself. Instead, he focused on the skills of the new staff (in relation to the applicant), describing them as potential trainers for other servers and possessing important knowledge about wine. These were qualities the applicant lacked. He also testified that other servers, who were younger than the applicant, were also let go during the restructuring of the restaurant. According to his evidence, only one server remains with the company out of a staff of seven at the time of the applicant’s termination. One server (other than the applicant) was terminated, and four have resigned.

17Furthermore, Mr. Camacho testified that concurrent hiring and firing of staff, even in a slow period, can be explained by understanding the difference between permanent and seasonal employees, all of whom work under 22 hours a week. Seasonal servers are hired for periods of three or four months, while permanent servers work year-round. The applicant was a permanent server. Mr. Camacho testified that the applicant was replaced by two seasonal workers. In a staff list admitted as an exhibit to Mr. Camacho’s testimony, it is apparent that at least one of the two individuals hired as a server in April 2009 left the restaurant in September 2009.

18Finally, Mr. Camacho acknowledged in his testimony that the spring is always a slow period, after the holiday spike in business. Presumably, this was a pattern each year, yet there was no evidence demonstrating that the spring of 2009 was any worse than previous springs. The evidence of Ms. Cronk, a server who worked for the respondent for three years, confirmed that while business slowed in early 2009, it was not a significant or unusual downturn.

19I am persuaded on a balance of probabilities that the applicant was terminated during a typically slow season at least in part because she was found to perform below the expectations of new management and was deemed not to be the right fit for the respondent’s new model for the business.

20The applicant testified that after her termination, she felt down and sought medical assistance, though no evidence was admitted on that point. She searched for work but testified that at her age it was very difficult to secure new employment in the restaurant business. She relied on this as evidence of systemic discrimination against persons of advanced age in the restaurant service industry. Eventually, she moved to British Columbia after her husband found a better job there. At the time of hearing, she remained unemployed.

ANALYSIS

21The Application relates to subsection 5(1) of the Code, which prohibits discrimination in employment, and states: “Every person has a right to equal treatment with respect to employment without discrimination because of… age.” The applicant bears the onus of establishing on a balance of probabilities that a violation of the Code has occurred. Accordingly, the issue that I am required to determine is whether the applicant has established that age was a factor in the treatment she received and in the termination of her employment by the respondent.

22The applicant’s allegation of discrimination is premised on circumstantial evidence. There are no words or actions that the applicant specifically points to as evidence of age discrimination or which reveal a discriminatory motive for her dismissal. Rather, her case rests on a number of key facts which, together, she argues, should be interpreted as age discrimination.

23The applicant argues that the changes in the workplace initiated by Mr. Camacho and Ms. Lei led to unfair treatment, including a reduction in her hours and a termination of her employment based on an unsubstantiated rationale of slow business, while at the same time the respondent hired new serving staff.

24I have concluded on the evidence that the reduction in the applicant’s hours was the result of a misunderstanding. I therefore cannot find this allegation to be circumstantial evidence of discrimination based on the applicant’s age. I have also concluded that the applicant was replaced by seasonal staff and by individuals who possessed knowledge and expertise deemed important by the respondent in fashioning its new image for the restaurant. I therefore have accepted that the respondent has advanced a plausible explanation for why the applicant was replaced.

25It may still be that age was a conscious or unconscious factor when management decided to terminate the applicant’s employment. The possibility of discrimination is not, however, sufficient to find a breach of the Code. The standard to which I must be persuaded on the evidence is the “balance of probabilities”, which means that it must be more likely than not that the respondent’s decision to terminate the applicant’s employment was motivated or affected by her age.

26It is important to emphasize that a discriminatory consideration need not be the main or predominant reason for the termination. Even when there are legitimate grounds for terminating the applicant’s employment, if one of the considerations is related to a protected ground under the Code, then the termination will be held to be a violation of the Code. See, for example: Quattroci v. Boz Electric Supply, 2009 HRTO 1082 at para. 43; Dominion Management v. Velenosi, 1997 CanLII 14482 (ON C.A.) at para. 1; and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.) at para. 11. The significance or weight of the discriminatory consideration in the overall decision to terminate might be a factor to bear in mind when determining the appropriate remedy.

27On the evidence, I am not able to find on a balance of probabilities that age was a factor—major or minor; conscious or unconscious—in the decision to terminate the applicant’s employment. In the face of a plausible explanation by the respondent to the allegations, evidence of workplace restructuring including major staff changes, and the absence of a likely age rationale for the termination decision, the applicant’s case cannot succeed.

28This conclusion is not to say that the applicant may not have been treated unfairly or even unjustly, in an employment law sense. Those are not issues within my jurisdiction and I make no findings with respect to those questions. As is the case with many of the rights protected in the Code, a claim of age discrimination will often require looking behind the words and actions of the respondent. The applicant bears the onus of establishing, through circumstantial or direct evidence, that discriminatory considerations were most likely a part of a decision to terminate.

29Finally, the applicant gave oral evidence about systemic discrimination against older people in the restaurant business generally. There was insufficient evidence for me to make such a finding, though this conclusion should not be interpreted to mean I am finding that it does not exist. Given that the Application was based on an allegation of discrimination against the applicant personally, and was not intended to be a complaint about systemic discrimination, a systemic finding would not at this time be appropriate.

30The Application is accordingly dismissed.