HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kimberly Allen
Applicant
-and-
Lafarge Canada Inc., John Squire and Anson Le
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: Allen v. Lafarge Canada
APPEARANCES BY
Kimberly Allen, Applicant ) David Gullacher, Representative
Lafarge Canada Inc., )
John Squire and Anson Le, ) Daniel McDonald, Counsel
Respondents )
1This is an Application made under s. 53(5) of the Ontario Human Rights Code (the “Code”), dated April 8, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on November 17, 2006.
2The applicant alleges that she experienced discrimination in employment because of her sex in relation to an incident involving the respondent, John Squire that occurred on November 2, 2006, in violation of ss. 5 and 9 of the Code. The applicant further alleges that she experienced reprisal in relation to an alleged comment by Anson Le and when her employment was terminated following her making a complaint about this incident, contrary to ss. 8 and 9 of the Code.
3The hearing in this matter was held on December 9, 2009 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 as befitting the issues raised. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, the two personal respondents, and three witnesses (one by teleconference). Also on consent, cross-examination of opposing witnesses was deferred until I had completed my questioning of the witnesses.
Background
4Lafarge Canada Inc. (“Lafarge”) is a provider of construction materials, operating out of a number of locations in Ontario. The events at issue in this proceeding occurred at Lafarge’s New Lowell location, in a small office building on site.
5The applicant worked as a dispatcher for Lafarge, having commenced work in April 2006. As a dispatcher, the applicant was responsible for receiving and dispatching customer orders and scheduling deliveries. The applicant worked in an open area at the front of the New Lowell building.
6The applicant’s position as dispatcher was seasonal in nature and she was scheduled to be on layoff as of November 3, 2006, the day following the incident at issue in this proceeding. However, there was some expectation that dispatchers would be re-hired the following spring depending upon business conditions and needs.
7At the relevant time, the personal respondent, John Squire worked three days per week as a consultant for Lafarge, with responsibility for sales, customer service and the growth of Lafarge’s business. Mr. Squire had an office in the New Lowell building a short distance down a hallway from where the applicant worked.
8The personal respondent, Anson Le was employed by Lafarge as its Customer Service Manager, and was the applicant’s direct supervisor. Mr. Le did not work at the New Lowell site.
Scope of Application
9At the commencement of the hearing, I heard submissions from the parties regarding the proper scope of the allegations raised in the Application. After hearing and considering the parties’ submissions, I issued the following oral ruling:
In her complaint and in certain material filed with the Tribunal, the applicant made reference to general allegations regarding the conduct of the personal respondent, Mr. Squire prior to November 2, 2006. However, no factual details or specifics were provided by the applicant in these materials regarding any specific incidents or the dates or specific context in which any such specific incidents of such conduct are alleged to have occurred.
At the outset of this hearing, I sought to clarify from the applicant whether she was intending to rely upon any specific incidents that occurred prior to November 2, 2006, and was advised that she intended to rely upon two specific prior incidents, one that occurred sometime in June or July 2006 in relation to a dispute over “slingers” and a second that occurred on August 23, 2006 in relation to scaling of trucks.
With regard to the former incident, the respondents advise that slingers are something that are utilized in the business on a regular basis, and there is nothing about the context provided by the applicant that enables Mr. Squire or any other respondent witness to have any specific recollection about the incident alleged by the applicant.
With regard to the latter incident, while the applicant did document the health and safety issue that occurred on August 23, 2006 and while Mr. Squire did receive discipline over this issue, the documentation filed by the applicant at the time does not include specific reference to the comments that she is now alleging were made by Mr. Squire on that occasion. Respondents’ counsel has advised that Mr. Squire has no specific or independent recollection of this incident except as is recorded in the documentary record, and so is unable to respond to the specific allegations now raised.
Rule 3.4 of the Tribunal’s Transitional Rules provides that where a fact or issue is not raised by an applicant in her Application, complaint or supplemental statement of facts and issues, the Tribunal may refuse to allow the applicant to present evidence about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.
In this case, I am not satisfied that there would be no substantial prejudice if the applicant were allowed to present evidence regarding these alleged prior incidents. These events occurred over three years ago, and it is clear that the ability of the respondents and their witnesses to recall and respond to these incidents has been impaired by the passage of time. In the absence of the applicant having raised these specific allegations at an earlier point in time and in accordance with the Rules, I am not prepared to hear evidence regarding these prior alleged incidents.
Accordingly, the issues to be addressed in this proceeding will be restricted to consideration of the applicant’s allegations regarding the events of November 2, 2006.
The November 2, 2006 Incident
10The applicant’s evidence is that on November 2, 2006 at approximately 10:00 a.m., she was questioned by Mr. Squire in “not a very nice tone” as to whether she knew anything about a load of stone having been delivered early to a customer the previous day. She states that Mr. Squire proceeded to ask why the load was delivered early and put in the wrong place. The applicant states that she told Mr. Squire that she was not the driver and did not deliver the load and that she would have to pull the ticket and ask the driver when he came in, because she clearly didn’t understand what Mr. Squire was talking about. The applicant states that she was not made aware of anything prior to this day regarding this load of stone having been delivered to the customer, and she believes that Mr. Squire was aware of it but did not let her know about it.
11The applicant states that Mr. Squire did not like the answer that she had given to him, and called her a “stupid bitch”, told her that she didn’t know what she was doing, and said that it was going to cost a lot of money to remove the stone that had been put in the wrong place. The applicant states that she reiterated to Mr. Squire that she didn’t deliver the load of stone, and that Mr. Squire again reiterated that she was a “stupid bitch”. The applicant states that she said back to Mr. Squire over and over again that she hadn’t delivered the stone and that they would have to wait for the driver.
12The applicant states that Mr. Squire kept pacing back and forth from his office, but that when the driver came in, Mr. Squire’s demeanour changed and he asked the driver if the foreman at the customer’s construction site had been present when the stone was delivered and what the circumstances were. The applicant states that the driver said that the foreman had been on site and had signed the delivery ticket and there had been no issues about the load at all. The applicant states that Mr. Squire then left a couple of minutes later.
13Mr. Squire’s evidence is that when he got into the office on the morning of November 2, 2006, there was a voicemail message from a customer who had ordered a load of stone for delivery the previous day that had arrived 40 minutes early. The customer’s concern was that the load of stone was to be divided into two jobs, and because he was not there when the load was delivered, the load was all left at one spot and the customer was going to have to hand shovel some of the stone back out of the basement where the stone had been dumped.
14Mr. Squire states that he went out and asked the applicant who had delivered the stone to this customer and said that the load had been delivered 40 minutes early. Mr. Squire states that the applicant told him who she thought the driver was, and then said that she didn’t know what the “big deal” was. The applicant denies making this comment.
15Mr. Squire states that he responded that the big deal was that “the whole fucking load” had been put in the basement at the customer’s job site. He says that the applicant’s response was that she didn’t deliver the load and he would have to talk to the driver.
16Mr. Squire states that the driver was not there, so he went back into his office, but then turned around and went back out and said that they have to be more considerate to their customers. Mr. Squire was upset because the customer had said that he had asked to be called when the load was coming. Mr. Squire states that the applicant said that she didn’t have to listen to his comments, and her voice got louder and as a result his voice got louder.
17Mr. Squire states that the driver came in later and he went out and asked the driver who was on site when the load had been delivered. The driver said that there was a “kid” there who had signed the delivery ticket. The kid said that he did not work for the customer but knew where he wanted the load to be put. The driver also told Mr. Squire that he did not know that he was early for the job.
18Mr. Squire denied calling the applicant a “stupid bitch”, although he does acknowledge swearing when making the comment about where the load was dumped. Mr. Squire testified that he was upset because there was a specific request from the customer that he be called prior to the load being delivered, and he believed this request had been made by the customer to the applicant. The applicant’s evidence is that she hadn’t taken this customer’s order and was not aware that he had wanted to be called prior to delivery.
19I also heard evidence from two witnesses who were present in the New Lowell office for some part of this exchange. The first witness was the Plant Foreman, who also had an office in the building. The second witness was a Quality Control Technician who was at the New Lowell office to meet with the Plant Foreman.
20The Plant Foreman recalls Mr. Squire asking the applicant questions regarding the load, such as whether the customer had been called to say that the load would be delivered early, whether the customer had asked to be there during delivery of the load, or if the customer had stated that half the load was to be dumped in the basement and the other half out. This witness states that the applicant then asked Mr. Squire what was the big deal, to which Mr. Squire responded that there was a “fucking load in the basement that needed to be shovelled out”. This witness states that the rest of the interaction was about the applicant finding the ticket, and somewhere along the line the applicant stated that Mr. Squire would have to talk to the driver and she didn’t deliver the load.
21The Plant Foreman states that Mr. Squire’s voice was elevated when he was initially asking questions of the applicant, and that the applicant’s voice also was elevated when she was responding back. This witness states that Mr. Squire elevated his voice louder after the applicant made the comment about not knowing what the “big deal” was, but he would not describe it as getting to the point of yelling. This witness states that he did not hear Mr. Squire call the applicant a “bitch”.
22This witness recalls there being a second part of the conversation between Mr. Squire and the applicant when the witness was in his office with the Quality Control Technician, which was about who had delivered the load, and states that this exchange was very brief and was not as loud as the first exchange. This witness states that he did not hear the exchange between Mr. Squire and the driver.
23The Quality Control Technician states that he clearly remembers Mr. Squire coming into the front of the New Lowell office. This witness states that Mr. Squire was agitated and upset from the very start. He says that Mr. Squire was quite loud and was speaking quite quickly and was certainly upset, although he doesn’t know if he would describe Mr. Squire as angry. This witness described Mr. Squire as “barging” into the room, and said that he was a little intimidated by Mr. Squire’s behaviour. This witness says that the applicant wasn’t upset to begin with, but fairly quickly both of them became excited.
24This witness states that he can’t quote words or phrases, but remembers that the altercation had to do with a load that had been delivered when the customer wasn’t on site. He doesn’t recall Mr. Squire calling the applicant a “bitch” or using any curse or swear words during this interaction.
25The evidence clearly indicates that Mr. Squire was upset at being made aware of this issue by the customer, and he directed his upset towards the applicant on the basis of his belief that she had been asked by the customer to call before the load was delivered. I did not hear any evidence from the customer, and so have no basis or reason to doubt the applicant’s evidence that she was not aware of this request.
26I accept the evidence of the applicant as supported by the evidence of the Quality Control Technician, that Mr. Squire was upset and agitated from the outset and was speaking to her in a louder than normal voice. I also accept the applicant’s evidence that she felt that she was being unfairly blamed for this incident. In my view, Mr. Squire’s conduct in jumping to the conclusion that the applicant was to blame and in expressing his upset in the manner that he did from the outset was clearly inappropriate.
27Based upon the evidence of Mr. Squire as supported by the Plant Foreman, I find that the applicant did make a comment about what the “big deal” was, and that this triggered Mr. Squire to elevate his voice even louder and to make a highly inappropriate use of foul language. Mr. Squire himself acknowledged the inappropriateness of his use of foul language in this context, and this was addressed with him by Lafarge management in the wake of this incident.
28However, the mere fact that Mr. Squire conducted himself inappropriately on this occasion is not sufficient to support a finding that the applicant experienced discrimination because of her sex. With regard to the applicant’s allegation that Mr. Squire called her a “stupid bitch” during this altercation, this is not supported by the witness evidence. While the applicant states that she reported this comment to Mr. Le when she spoke to him that day about the incident, this is not supported by Mr. Le’s evidence and no reference is made to this alleged comment in the e-mail sent by the applicant to Mr. Le that day, nor in the notes made by Mr. Le regarding his discussion with the applicant that day, nor in the transcript of the voicemail message left by the applicant later that day for Lafarge’s occupational health and safety manager.
29Further, this allegation was not made in the applicant’s complaint filed on November 17, 2006, nor was it alleged in relation to this specific incident at any time in any of the documents filed by the applicant prior to the applicant giving evidence at the hearing. When asked why she had not made this allegation in her complaint, the applicant states that she did not know whether she should put offensive language in that document. This is an issue confronted by numerous applicant and complainants, who often will include just the first letter of the offensive word followed by a line or dashes. In my view, this does not explain the complete absence of any reference to this alleged comment either in the complaint, in subsequent material filed by the applicant, or in the e-mail sent and voicemail message left by the applicant on the day of the incident. Accordingly, I do not find that this alleged comment was made by Mr. Squire.
30The applicant also alleges sex discrimination on the basis of the difference in manner between how Mr. Squire spoke to her as compared to how he spoke to the driver, who is male. In my view, in the context of this specific case, the evidence is not sufficient to establish sex discrimination. As stated above, I find that Mr. Squire unfairly blamed the applicant on the basis of his belief that the customer had told her that he wanted to be called prior to delivery, which explains (though it does not justify) why Mr. Squire directed his upset towards the applicant. I also accept Mr. Squire’s evidence that he had “cooled down” by the time he spoke to the driver.
31I am aware that the applicant would have liked to have been able to rely upon evidence regarding prior alleged incidents involving Mr. Squire to establish a pattern of conduct directed towards her. However, in the absence of the applicant providing details or particulars of this alleged conduct prior to the hearing, it is my view that it would have been unfair to require the respondents to respond to the specific evidence that the applicant proposed to give for the first time at the hearing.
32For all of these reasons, I find that the evidence does not support the applicant’s allegation of sex discrimination.
Reprisal Allegation
33The applicant sent an e-mail about the incident to her supervisor, Mr. Le immediately after the incident occurred, reporting that Mr. Squire had been “extremely verbally abusive” to her and asking that immediate action be taken. Mr. Le called the applicant shortly after receiving her e-mail, and stated that he would look into her concern. While the applicant’s evidence is that she specifically told Mr. Le that Mr. Squire had called her a “stupid bitch”, for the reasons stated above I do not accept this evidence.
34The applicant states that she also asked Mr. Le at that time if he could guarantee her safety for the rest of the day, and he said that he could not guarantee that. The applicant states that she also asked Mr. Le whether her reporting this incident to him would have an effect on her returning in the following spring, and Mr. Le responded that he could not guarantee that. The applicant states that she expressed to Mr. Le that she believed it was against the law to do this, and he said it wasn’t against the law.
35Mr. Le’s evidence is that when he spoke to the applicant that morning, he asked her what had happened specifically, and she described the situation exactly as she had written it in her e-mail. She said that Mr. Squire had been loud and verbally abusive, and she felt that the delivery mistake had been entirely blamed on her and she was upset about it. Mr. Le’s evidence is that the applicant did not advise him that Mr. Squire had called her “bitch” and did not mention anything specific, except to say that he was loud and she felt that she was being blamed for the mistake that had occurred with the customer. Mr. Le states that the applicant did not specifically say to him that Mr. Squire had used any swear or curse words.
36Mr. Le’s spoke to the applicant again later that day, at approximately 1:00 p.m. Mr. Le’s evidence, as supported by his contemporaneous notes, is that the applicant requested that he guarantee her that Mr. Squire would not show up at the New Lowell office the following day, because she felt that their conflict was upsetting her and she felt blamed by him for the mistake. Mr. Le states that he responded that Mr. Squire did not report directly to him and that in order for Mr. Squire to do his job, he needed to interact with her. As a result, Mr. Le states that he told the applicant that he couldn’t guarantee that Mr. Squire wouldn’t be there the following day. However, Mr. Le states that his intent was to speak to Mr. Squire to see if he could work elsewhere.
37Mr. Le denies that the applicant asked him whether he could guarantee her safety in workplace, although he does acknowledge the applicant asking if he could guarantee that Mr. Squire wouldn’t be there.
38Mr. Le’s does recall the applicant asking specifically if her complaint would have any bearing on her coming back in the spring, to which Mr. Le answered, no it wouldn’t. Mr. Le states that the applicant then asked if he could guarantee that she would come back on recall the following spring, and Mr. Le said that he couldn’t give her a guarantee because of the nature of the business. However, Mr. Le’s evidence is that he thought he was very clear that her complaint would have no bearing on her coming back in the spring.
39The applicant left work early on November 2, 2006 and did not report for work the following day. On Friday, November 10, 2006, the applicant was contacted and advised to attend a meeting on Tuesday, November 14, 2006 at 9:30 a.m. in order for the company to investigate her complaint. In response, the applicant sent a fax to the company on Monday, November 13, 2006 advising that she would not be attending the meeting as the issue of Mr. Squire’s conduct had been discussed on many occasions in the past.
40On November 13, 2006, Mr. Le sent a letter to the applicant stating that the applicant had left work on November 2, 2006 without authorization, and had sent an e-mail and left a voicemail message stating that she had a complaint. In reference to the fax sent by the applicant that day, Mr. Le asked the applicant whether she was resigning from Lafarge. If not, Mr. Le advised the applicant that the meeting was being re-scheduled to Friday, November 17, 2006 at 9:30 a.m. and stated that failure to attend as directed would be regarded as insubordination and provide cause for the termination of her employment and also would result in her complaint being concluded.
41On November 16, 2006, the applicant sent a letter to Mr. Le reciting the events that had transpired on November 2, 2006 and stating that she had been instructed not to attend any meetings with Lafarge employees until she had secured proper representation for herself. She further said that once all paper had been filed and received, she would be glad to have mediation with any member of Lafarge, but not until then.
42In response, the applicant was sent a letter from Mr. Le dated November 17, 2006 stating that her employment had been terminated.
43The applicant’s human rights complaint was signed by her on November 17, 2006. On the front page of the complaint, reference is made to the termination of the applicant’s employment, so it is clear that the complaint was formally filed with the Commission after the termination of the applicant’s employment.
44The applicant alleges that she experienced reprisal as a result of making her complaint against Mr. Squire both in respect of Mr. Le’s alleged comment that he could not guarantee that her complaint would not affect her coming back the following spring and in relation to the termination of her employment.
45Section 8 of the Code provides as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
46The problem with the applicant’s allegation of reprisal is that, while there is no doubt that she made a complaint about Mr. Squire using verbally abusive language towards her, there is no evidence before me to support that the applicant had made the respondents aware that she was seeking to claim and enforce her rights under the Code either at the time of Mr. Le’s alleged comment or at the time of her termination.
47At the time she reported the incident to Mr. Le, the evidence does not support that she alleged that she had experienced sex discrimination or that the respondents ought reasonably to have known that this was the nature of her complaint. The complaint as recorded in her e-mail to Mr. Le is that Mr. Squire had been “extremely verbally abusive” towards her, but does not state or provide any reasonable basis to conclude that she believed this was because of her sex. While the applicant alleges that she told Mr. Le that Mr. Squire had called her a “stupid bitch”, I have not accepted this evidence.
48In addition, the voicemail message that the applicant left for the occupational health and safety manager frames the incident as a “health issue” and states that she is going to go to the Labour Board. Once again, no reference is made to this incident giving rise to a human rights issue. Further, in the two letters that the applicant sent to the company prior to her dismissal, no reference is made to any allegation of sex discrimination or any human rights issue.
49In the absence of the applicant having sought to claim and enforce her rights specifically under the Code, as opposed to raising an occupational health and safety issue or an issue of inappropriate behaviour under the company’s internal code of conduct, there is no proper foundation to support the applicant’s allegation that she experienced reprisal in violation of section 8 of the Code.
50For all of these reasons, the Application is dismissed.
Dated at Toronto, this 5th day of February, 2010.
“Signed by”
Mark Hart
Vice-chair