HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Beverly Taylor-Wright
Applicant
-and-
York University School of Social Work, Saara Green and Amy Rossiter
Respondents
AND BETWEEN:
Beverly Taylor-Wright
Applicant
-and-
The Women’s Centre of York Region, and Sandra Freer
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: David Muir
Indexed as: Taylor-Wright v. York University ________________________________________________________________
1These are two Applications filed September 8, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination by the respondents on the basis of race, colour and disability while a student at the respondent York University School of Social Work (“York”) and on a practicum placement with the respondent The Women’s Centre of York Region (the “Centre”).
2A Case Resolution Conference (hearing) was held on July 8, 9 and 29, 2009 in accordance with the expectation contained in the Tribunal’s Rules that these matters be adjudicated in a highly expeditious manner.
3I heard from the applicant, her husband and John Bell who both testified in support of the applicant’s position. I also heard from the three personal respondents, as well as Meshia Forrester, Gail Robertson, Viviene Green, Karen Setter, Saddiqua Holder, Joe Gomez and Maureen Boettcher for the respondents. Written submissions were received from the parties on a scheduled agreed to by them. The receipt of submissions was delayed and final submissions from the applicant were received on December 4, 2009.
Background
4The applicant self-identifies as a Black woman. She was a student in the York at the time of the alleged discrimination. As part of the requirements for the degree she was required to successfully complete a practicum placement. For a number of reasons discussed below the respondent Centre ended the placement before its conclusion.
5The applicant had been in a prior placement which was also not successful and ended prematurely. I heard some evidence about this prior placement and it was suggested by the applicant that there was some connection between her experiences in these two placements, although they were with different organizations. This allegation, which is not clearly articulated in the complaints, was cast in vague terms and I find based on all of the evidence that there is no basis for concluding that somehow the applicant’s lack of success in the first placement had any impact on the actions of the respondent Centre in prematurely terminating the second.
6As a consequence of the applicant’s being unsuccessful in two placements the applicant was unable to obtain her degree and graduate from York. It is this issue that is at the heart of the dispute between the parties as framed by the human rights complaints filed with the Ontario Human Rights Commission (the complaint(s)).
7The applicant believes that the reasons stated by the respondent Centre for their decision to end the placement were a pretext and alleges that it was her insisting on an accommodation of her disabilities as well as discriminatory attitudes about her race and colour that led to the termination of the placement.
8The related allegations against the York respondents are that they took the side of the respondent Center and participated in a cover up of the discriminatory treatment the applicant experienced there. Again it is alleged that these decisions by the York respondents were informed by discriminatory attitudes. In addition to these allegations the applicant also alleged that she was subject to discriminatory treatment by the personal respondent Rossiter in a course occurring almost 3 years prior to the filing of the complaint.
9At the outset of the hearing the respondents raised concerns about the scope of the allegations having received, just prior to the hearing, a lengthy document which set out a large number of allegations which are new and in many cases unrelated to the issues framed by the complaints. I clarified with the applicant that the case would proceed on the basis of the allegations made in the complaints. Accordingly the statement of additional facts filed by the applicant on or about June 13, 2009 has been disregarded except to the extent that they directly relate to the allegations made in the complaints.
Evidence and Analysis
10Given the nature of the issues in dispute the focus of the evidence was on the applicant’s experience during the placement with the respondent Centre. In large part the allegations against the York respondents are dependent on the conclusions reached about the allegations respecting the Centre.
11At the hearing the applicant stated that she believed that in her placement with the respondent Centre she experienced discrimination on the basis of race, colour and disability. In respect of her belief that her race and colour were factors informing the negative experiences she had, the applicant stated that she was the first Black woman who had ever worked at the Centre.
12The respondents state that there have been many racialized persons associated with the Centre over the years including during the applicant’s placement, but it was not disputed that the applicant may have been the first Black woman on staff.
13The applicant stated that there were three reasons why she had filed the complaint – two of which raise human rights considerations and are reflected in the complaint. The evidence of the applicant does not support the allegations made in the complaint. My reasons for this conclusion follow.
14The evidence of the applicant was unspecific and general and raised significant credibility issues on several points. Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
15After careful consideration of all of the documentary and vive voce evidence heard I find that the premature termination of the placement at the Centre was so shocking for the applicant that she has reformulated much of her experience during her placement to accord with her belief that Code related issues must be at the root of the decisions taken by the respondents. Of course the passage of time - it is more than four years since the events giving rise to the central issues in the complaints and seven since those made against the respondent Rossiter - has exacerbated the issues with the evidence. However the evidence of the respondents closely accords with the responses they filed with the original complaint while the applicant’s description of events has varied in significant ways.
16I find that the central allegations made in the complaints and the limited evidence tendered to support them are in some part exaggerations or misinterpretations, inadvertent or otherwise, of actual events. For example in the Centre complaint the applicant alleged that the respondent Freer exploited the fact that the applicant was an experienced hair dresser and “told me to do hair cuts”. As discussed below the evidence at the hearing was in sharp contrast to this allegation.
17The applicant also alleged in the Centre complaint and in her evidence at the hearing that she was treated differently than the other student who was white, in that she was given more and different work. In fact, the other student was a college student who was there as part of a different course of study and doing a placement of 40 hours over the course of a term, whereas the applicant’s practicum placement was 650 hours over a similar period of time. In other instances there is no evidence at all to support the allegations – they became mere assertions without evidentiary underpinnings.
The Disability Allegations
18Perhaps the most obvious problem in the applicant’s case is in the evidence surrounding the applicant’s allegation that she informed the respondent Freer at the outset of the placement that she was a person with a physical disability requiring accommodation. The applicant stated in the complaint that on January 10, 2005 she gave the respondent Freer two letters. One was a Police Record and the other was a medical note which outlined her disabilities – carpal tunnel syndrome in both hands and arthritis in her back. I note at this point that although the applicant identified specific documents which were provided to the Ms. Freer no note that makes any reference to arthritis in her back has ever been produced by the applicant.
19At the hearing the applicant stated initially that she provided three documents to Ms Freer at their January 10 meeting: her “police record”; a 2001 letter outlining the academic accommodations afforded the applicant by York; as well as the doctor’s note described above. The applicant stated in her evidence in chief that despite giving the respondent Freer these notes there was no discussion of her physical limitations or her need for accommodation. However in cross-examination when asked why Ms. Freer would have ignored the doctor’s note, the applicant stated that the two of them went through the note together and discussed what she could and could not do. The applicant stated that she could not remember what was said but indicated that it was likely that she would not have indicated to Ms. Freer that there were accommodations that she required.
20The Centre respondents deny that they were provided with any information at the outset of the placement that the applicant was a person with a disability or that she required accommodation. The respondent Freer stated that on April 7 the applicant told her that she had physical limitations and provided two documents - one a note from March 2005 which simply stated that the applicant was unable to do her academic work because of an undisclosed medical issue and makes no reference to carpal tunnel syndrome; as well as the previously discussed 2001 letter outlining a number of academic accommodations afforded to the applicant.
21The applicant agrees that she provided documentation to the respondents on or about April 7 and did so because she was tired of telling staff that she was a person with a disability and was unable to perform the tasks being demanded of her. At the hearing she was unable to be clear about what she provided to Ms. Freer at that time but did indicate at one point that it may have been a note dated December 16, 2004 which stated simply that that the applicant had had right and left carpal tunnel decompression in August and October 2004 respectively. I prefer the evidence of the respondent Centre on this point.
22The evidence of the applicant in respect of this critical issue is different than the allegations made in the complaint. Moreover, her evidence at the hearing was contradictory and in the end not credible. I find based on the evidence that the applicant did not provide Ms. Freer with any documentation of a physical disability nor was the matter discussed when she began her placement in January. I find that there is no evidence that would support the conclusion that the respondents would have reason to know that the applicant was a person with a disability requiring accommodation at any time prior to April 7, 2005.
23Moreover, there is no evidence that the applicant was required to perform any work that might have impacted on her physical restrictions, if any, after April 7, nor is there any evidence to support the conclusion that it was the applicant’s physical restrictions, if any, that were in whole or in part the reason for her being unsuccessful in the placement.
24The applicant alleges that the reason her placement was terminated was because she asked for accommodation of her disabilities. There is no evidence that this is the case. Although the applicant appears to have had surgery for carpal tunnel syndrome in 2004, there is no reliable evidence of any restriction that might have been associated with this condition. There is no medical evidence at all on this latter issue. More importantly there is no evidence that the applicant asked for accommodation or that any was required.
25Even if, as alleged by the applicant in one version of events, she requested an accommodation of her carpal tunnel syndrome on April 7, 2005, the decision to end the placement had already been made by that time for reasons entirely unrelated to any performance issues that might be traced to any physical restrictions that the applicant might have been experiencing. I also note that the applicant only raised an alleged need for accommodation after she was advised that her placement was in serious jeopardy.
Race and Colour
26The applicant has also alleged that she experienced differential treatment based on her race and colour. She stated that she was singled out to perform demeaning jobs such as making coffee, shovelling snow and helping to unload the Daily Bread Food truck. The applicant alleges that she was expected to do these things while other staff were not. This is simply not the case. The evidence is clear that these tasks were shared or were part of the duties associated with the work in which the applicant participated. The Centre is a small not for profit women’s organization, it has few full time staff and no custodial staff. The duties of all staff, including the applicant, would have included some physical component. If there was a need for snow shovelling whoever was present would have to do it. Although the applicant may have shovelled snow, there is no evidence that this was left for her to do, or that she shovelled the snow more often than anyone else or that she was expected to do it because she was the only Black person.
27Other examples cited by the applicant in her complaint were expressly contemplated by the terms of her placement. For example the applicant stated that she was required to make coffee for a group session in which she participated. As part of facilitating this group session for clients of the Centre, coffee and cookies were provided. The applicant was tasked with making the coffee for the group while the other staff person set up chairs for participants in the room.
28As regards the allegation that the applicant was expected to help the Daily Bread employees unload the truck and others were not the respondents’ evidence was, without response from the applicant, that she had selected the Food Room as one of her responsibilities which would in the normal course sometimes include helping carry food.
29The applicant also alleges in the complaint that she was told by Ms. Freer that she was not allowed to use the Food Room, yet all of the white staff and volunteers were permitted to use it. Although there may have been a conversation about staff taking food from the Food Room, it being intended for clients and not staff, there is no evidence to support the allegation that other staff were not also expected to limit their use of this service offered to clients. In fact the evidence of the respondents, which I accept, was that the applicant was given permission to use the Food Room if she needed to.
30The most concrete allegation in the complaint was that when Ms. Freer learned that the applicant had a Hairdresser Instructor Licence she tried to capitalize on this experience by directing the applicant do haircuts for a special event - a task the applicant alleged was demeaning and demanded of her because of her race and colour. At the hearing the applicant admitted that she had not been asked to cut hair and did not cut hair.
31The un-contradicted evidence of the respondents was that the applicant was not asked to cut hair, indeed it would have been entirely inappropriate for the applicant to have cut clients’ hair as this would blur the boundary between client and social worker. The respondents’ evidence was also that the applicant had agreed to run this event from the outset to fulfill the requirement to organize and run such an event as part of her placement. The un-contradicted evidence of Ms Freer was that a hair dressing event was something that the Centre had done in the past and that it was suggested as a possibility for the applicant because of her background as a hairdresser, but that it was entirely her choice.
32Related to this event is the applicant’s allegation in the complaint that she was asked by Ms. Freer to clean the men’s washroom, allegedly a demeaning activity. The undisputed evidence at the hearing was that while the room in question was a men’s washroom it is not used for that purpose and is in fact used as a storage room, but because it has a large counter and mirrors is used to host the hairdressing events. The undisputed evidence of the respondents is that the preparing of the space for the hairdressing event is the responsibility of the organizer of it, in this case the applicant.
33The applicant’s central allegation in the complaints is that the decision to terminate her placement was informed in whole or in part by the considerations of the applicant’s race, colour and her demand for accommodation. As framed in the complaint against the Centre, the applicant alleges that she was terminated on April 10 because Ms. Freer had learned that she was a person with a disability on April 7 and required an accommodation. In addition to being entirely inconsistent with the position that respondent Freer had known from January 10 that the applicant was a person with a disability, there is no evidence to support the contention that the decision to end the placement was in any way related to any Code prohibited ground including the allegation that the applicant was seeking an accommodation.
34For all of the reasons set out above none of the allegations of differential treatment based on race, colour or disability have been substantiated by the evidence. The applicant has not made out a prima facie case in my view. Even if there were sufficient evidence to establish a prima facie case in respect of the decision to terminate the placement, I find that the Centre respondents have established a legitimate non-discriminatory rationale for their decision.
35The respondents state that the applicant’s placement was terminated for a number of reasons:
a. she had failed to demonstrate the skills necessary to engage in the practice of social work;
b. she had failed to perform significant elements of her learning contract,
c. she failed to appreciate the critical nature of the deficiencies in her performance, including her failure to maintain appropriate boundaries with clients; her failure to accept and provide constructive feedback and her failure to engage in the critical skill of self-reflection,
d. she appeared to be unwilling or unable to work toward improving her performance.
36These issues were raised with the applicant in an April 5 meeting with Ms Freer and Ms Greene. The applicant was told at that time that she was failing her placement and that significant improvements would be required in order for the placement to continue. The Centre respondents indicated to the applicant that they were prepared to work with her to address some of these issues and according to the Centre respondents the placement would continue on a probationary basis with the applicant being required to participate in a review of her work over the ensuing weeks. The applicant did not deny this evidence and I accept it as the likely state of affairs at that stage.
37The respondent Freer testified that subsequent to this meeting the applicant was unwilling to complete the review and evaluation process required by the mid year review. The applicant, according to Freer, insisted that the mid-placement review was wrong and unfair and the applicant appeared to be declining to take any steps to remedy her situation. These allegations are not addressed in the applicant’s evidence and I accept Ms. Freer’s evidence on these points.
38As well Ms. Freer testified that she also became concerned about remarks made by the applicant which might be interpreted as being anti-Semitic. These remarks were allegedly made to a colleague in late March and then reported to Ms Freer at some point surrounding during the mid-placement review. The applicant vehemently denied making any anti-Semitic remarks, and suggested that she may have been misunderstood – her reference to those people, meant white people, not Jews. I make no finding with respect to the nature of the comments made to the work colleague there being no direct non-hearsay evidence of what the applicant might have said.
39When the applicant was asked about these remarks, Ms Freer testified that the applicant made other remarks that Freer interpreted as anti-Semitic on two occasions, April 5 and April 7. The respondents also led evidence that the applicant attended at the Centre on April 7 and was hostile with staff.
40The respondents Freer and Greene discussed these issues on April 7 and determined that the placement could not continue as a result of the applicant’s apparent failure to acknowledge the difficulties in her performance in the placement and work to improve her work, as well as what were understood to be anti-Semitic comments and the applicant’s attitude as indicated by her reported hostility to staff on April 7.
41Whether or not the allegations of anti-Semitic remarks are supported on the evidence, I find that this was not a pretext as alleged by the applicant and that the decision to end the placement was amply supported by the other considerations. I find based largely on the evidence of the applicant at the hearing that there was a rational non-discriminatory basis for the respondent Centre’s concerns.
42To cite just one example, it was clear at the hearing that the applicant did not understand that it was entirely inappropriate to suggest to a client of the Centre that they go to lunch. I accept the evidence of the respondents that this lack of understanding and respect for the boundaries to be observed by a social worker is fundamental to good social work practice. It was also difficult not to note the defensiveness and lack of self-reflection in the way that the applicant approached issues. To be clear, my conclusions in this regard do not necessarily mean that the judgements of the Centre respondents were correct, rather I have concluded that they were rational and not based in whole or in part on irrelevant considerations such as the applicant’s race, colour or disability.
43The applicant relies on the manner in which she was told that the placement was being terminated, it being agreed that it was by way of a telephone message left on the applicant’s home phone. The decision to end the placement was made on April 7 according to the respondents. There is no evidence to contradict this and I accept it. The respondent Freer testified that she subsequently made numerous attempts to contact the applicant on the telephone without success, to inform her directly.
44Having not been able to contact the applicant by Sunday April 9, the respondents became concerned that the applicant not attend the Centre on April 10. Most importantly Ms Freer was not able to be in the Centre on the 10th and she and Ms.Setter (the Executive Director) were concerned about the emotional impact of the applicant returning in Freer’s absence given what they understood to be the applicant’s hostility with staff on the 7th. It was for these reasons that a telephone message was left on the applicant’s answering machine –hardly an ideal manner of communicating such a decision. While it may be that the respondents over-reacted to the circumstances they found themselves in, there is no basis to conclude that the decision to effect the termination of the placement in this way was discriminatory.
45It was suggested by the applicant at the hearing that perhaps her cultural background, her patterns of behaviour and the cultural norms that she brought to her work at the Centre might have been the source of her difficulty and that accordingly the requirements of the Centre had an adverse impact on the applicant. The only specific allegedly cultural norm referred to was the requirement that work be submitted in a timely manner. The only evidence in this regard related to an alleged failure on the part of the applicant to provide a piece of work to her co-facilitator of a Life Skills Group in a timely fashion and when delivered it was inadequate requiring the applicant’s colleague to do the work over. Quite aside from the question of whether or not timeliness in such circumstances is a cultural norm that was inappropriately imposed on the applicant, I find that the applicant led no evidence that would support an argument that cultural factors had a bearing on the outcome for her.
46The allegations against the York respondents that they falsified the record of an exit interview after the events described above are not well founded. Whether or not accurate there is no evidence that they were concocted to cover up the real reasons for the termination of the placement, the reasons stated to the applicant at the time being bona fides and rightly or wrongly the real reasons for the decision. There being nothing discriminatory about the decision making, there can be nothing discriminatory about the description of the meeting in which the reasons are discussed with the applicant.
47As regards the allegations that the applicant was subject to inappropriate and discriminatory treatment by the respondent Rossiter in 2002, I find that this aspect of the complaint was out of time when the complaint was filed and although the respondent did respond to the allegations at the hearing, I find that this aspect of the Application should be dismissed for reasons of delay.
48It now appears settled that the timeline to be applied to a transitional application such as this one, is the current one in section 34 the Code which requires that an application be filed within one year of the last incident to which the application relates. These provisions also gives the Tribunal a discretion to accept an application after the expiry of the one year time limit, if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
49It is also settled now that in transitional applications the relevant time period by which to measure the one year period for a transition application is from the date of the last alleged event to the date that the underlying complaint was filed with the Ontario Human Rights Commission.
50In this case the allegations as they relate to the discriminatory conduct of respondent Rossiter are said to have occurred in late 2002. The human rights complaint was filed in July 2005 almost three years after the events implicating respondent Rossiter. Although raising the same grounds as those related to the applicant’s experience at the Centre, they are otherwise unrelated on their face and after hearing three days of evidence there is nothing to link them together in any substantive way. I am not satisfied that these two events are related in a way that would allow them to be characterized as a series of events. Accordingly I find that that there was a delay of two years and at least 7 months between the time these alleged events are said to have occurred and the filing of the complaint.
51Even if there was a good faith explanation for the delay, the prejudice to the respondent was evident as it was plain at the hearing that even the applicant had only the vaguest recollection of the events forming the basis of the allegation. The respondent Rossiter was even less able to recall the circumstances surrounding some of the allegations.
52If I am wrong in the conclusion that these allegations are unrelated to the more timely allegations related to the failed placement and therefore out of time, I also find that the evidence of any inappropriate conduct by the respondent Rossiter is so limited, vague and general that it would be impossible to come to any firm conclusions about any of the allegations. This is perhaps not surprising given that the alleged events occurred more than 7 years ago. As noted above the applicant’s evidence at the hearing was often at odds with the narrative of the complaint and in the course of giving her evidence effectively withdrew several of the allegations involving Rossiter. In the end there is no credible evidence to support any of them and on the contrary, the evidence of the respondent Rossiter, which the applicant acknowledged was credible, completely refutes them.
53Although this allegation was not made in the complaint, the applicant took the position in final submissions that the respondent York’s rule that limited her to two attempts to complete her practicum placement was discriminatory per se. The applicant states that this seemingly neutral rule may have an adverse impact on persons protected by the Code. There is no evidence that this rule had an adverse impact contrary to any Code protected ground. More particularly there is no evidence that it had an adverse impact on the applicant on any Code protected ground – there is no evidence that the applicant’s inability to complete either placement had anything whatsoever to do with any of the Code grounds alleged by her.
54The applicant relied upon an alleged view that the applicant was not “fit” to do the placement and states that this meant that she was not good enough because she was Black, and a person with a disability. The genesis of this position appears to be in the evidence that someone associated with the respondents had described the applicant’s first placement as not having been a “good fit” for her. There is no evidence that anyone ever told the applicant that she was not fit for the first or the second placement or that she was not good enough. There is no basis for the allegation that any of the respondents had determined that the applicant was not good enough because she was Black or a person with a disability.
55For all of these reasons these Applications are dismissed.
Dated at Toronto, this 10th day of February, 2010
“Signed By”
David Muir
Vice-chair