Butson v. Canadian Red Cross Society, 2010 HRTO 386

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Butson

Applicant

-and-

Canadian Red Cross Society, Laurie Paavola and G. S.

Respondents

CASE RESOLUTION Conference DECISION

Adjudicator: Jim Dimovski

Date: February 19, 2010

Citation: 2010 HRTO 386

Indexed as: Butson v. Canadian Red Cross Society

AppearanceS BY

Lisa Butson, Applicant ) Tim Bragg-Smith,

) Representative

Canadian Red Cross Society and Laurie Paavola, ) Amanda J. Hunter,

Respondents ) Counsel

G. S., Respondent ) On his own behalf

1This is an Application filed 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 that she was subjected to discrimination by the respondents on the basis of sex and sexual solicitation in employment.

2The corporate respondent, Canadian Red Cross Society (“corporate respondent”), provides services to persons requiring personal care and home support services. The applicant’s supervisor, Laurie Paavola was also named as a personal respondent. Community Care Access Centres (“CCAC”) make referrals to the corporate respondent and it will assign a personal support worker (“PSW”) or homemaker to work with the CCAC’s clients in their homes.

3The applicant was hired as a PSW by the corporate respondent in April 2005. She provided personal support services to DS at her home for approximately 16 hours per week on Tuesdays and Fridays. I have used initials to identify DS and her partner, the personal respondent, GS in this Decision given the nature of the allegations and the impact they may have on DS, a non-party to this Application.

4On or about early December 2005, the applicant alleges she was subjected to sexual solicitation by the personal respondent, GS. At the time, the applicant had worked with DS, her only permanent client, for approximately five months.

5She reported the situation to the other respondents. In addition to not appropriately training her for such situations, the applicant alleges the respondents did not respond in a timely fashion to her complaints and made her feel like she had done something wrong. As a consequence, she felt compelled to resign from her position, in early January 2006,

6A Case Resolution Conference (“CRC” or “hearing”) was held on June 29 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Application (the “Rules”), that section 53(3) applications proceed in a highly expeditious manner. At the hearing, I heard testimony from the applicant, Ms. Paavola, and Julie Matuszek, a Branch Manager of the corporate respondent. I also heard testimony from the personal respondent, GS. At the hearing it was agreed that the respondents could rely on “will-say” statements as their evidence-in-chief.

BACKGROUND

7The applicant alleges that on December 10, 2005, her birthday, GS kissed her on the lips. She was uncomfortable but did not give it much thought because it appeared it was for her birthday. On her following shift, the applicant alleges that GS caught her off guard and kissed her on the lips under the mistletoe. In her Application, she alleges that she reported the incident to her Resource Supervisor by phone but the matter was swept “under the carpet”.

8She alleges that on December 20, 2005, while in the course of washing dishes, GS entered the kitchen, approached her from behind, grabbed her then turned her around, pulling her close to him while attempting to kiss her. She felt degraded. GS became embarrassed and left. In her Application, she wrote that she called Ms. Paavola and after discussing the matter she agreed to finish her shift but to never return to DS and GS’s residence again.

9On January 5, 2006, in a follow-up meeting with the corporate respondent, in the presence of her Union representative, the applicant alleged she was made to feel degraded and as if she had provoked GS. After losing her shifts with DS, the applicant’s hours were not replaced and she was reprimanded “for anything they could hold against her”. As a result, she felt compelled to resign.

10Contrary to the applicant’s allegations and testimony, the corporate respondent states the applicant had been provided training on its policies and procedures to address instances of sexual harassment or abuse by clients and their family members. The corporate respondent’s procedures require PSWs to report such sexual advances to their supervisors immediately.

11The corporate respondent denies the applicant reported the incidents with GS until after the last kissing incident. Contrary to the applicant’s testimony, the corporate respondent states her last shift with DS was on December 14, 2005. In response to her report, the applicant’s DS assignment was removed from her schedule, she was offered the assistance of the Employee Assistance Program (“EAP”) and an investigation was instigated. The corporate respondent states it acted in accordance with its harassment policy.

12The corporate respondent denies that the applicant’s working hours were reduced as result of her complaints about GS. The applicant’s work hours were not fixed but varied from week to week and were made in accordance with the collective agreement and the dates the applicant made available. The corporate respondent’s position is that the applicant continued to work as many hours as available per the collective agreement, in-spite of the reduction of her hours due to the holiday season and as a result of refusing assignments on the basis of calling in sick. Additionally, it claims the applicant subsequently lost an overnight assignment because she had been found asleep during her shift and it was the client who refused to continue her service.

13The corporate respondent was in the process of investigating certain performance issues respecting alleged breaches of policies and procedures regarding calling in sick, missing client appointments, refusing assignments within her indicated availability periods, sleeping on shift, among other things, as well as failing to maintain the required professional therapeutic relationship with clients. A meeting was scheduled to discuss these issues on December 21, 2005. The applicant cancelled the meeting and it was rescheduled for January 5, 2006.

14On January 5, 2006, the corporate respondent also met with GS. He did not deny kissing the applicant but he denied the instances were inappropriate. GS also revealed that he and his spouse exchanged gifts with the applicant, attended the applicant’s house for dinner and she had taken them out for outings in her personal car.

ANALYSIS

15After applying the applicable legislation and weighing the relevant evidence, including the parties’ testimony and submissions, I dismiss the Application for the following reasons.

Did the respondents violate the Code?

Training

16In her testimony the applicant was adamant that she had not received any training at all, especially with regard to the corporate respondent’s harassment policy.

17I placed no weight on the applicant’s testimony since it is not supported by the balance of evidence. Instead, I preferred the testimony of the corporate respondent’s witnesses that the applicant received training or orientation with regard to the harassment policy in April 2005 since it was corroborated by documentary evidence (time sheet summaries) which indicated that she was paid for such training in April 2005. Also, the applicant’s signature at the back of the Homemaker Handbook, which contained the harassment policy, dated April 17, 2005, was consistent with Ms. Paavola’s testimony that the applicant was provided such material in the course of her training.

18Further, I also find that the applicant’s testimony contradicted her allegation of improper training. For example, the applicant showed, prior to the incidents with GS, that she was sufficiently aware of her employer’s policy regarding reportable incidents and had followed it when she reported a patient with a “mental condition” that had physically abused her.

19As such, I find that the balance of evidence supports that the applicant had been informed of the type of incidents which her employer considered “immediately reportable” and that she was likely aware of the appropriate procedure to follow in reporting such incidents to her employer. Furthermore, even if she was not specifically aware, I find that she had been provided with materials that contained the relevant information which she could have consulted.

Response to the Harassment

20A relevant question for this matter is whether the respondents properly responded to the alleged sexual harassment. In my view, the corporate respondent responded appropriately and in a timely fashion once notified of the alleged incidents involving GS.

21I place little weight on the applicant’s evidence and prefer the corporate respondent’s evidence for the following reasons.

22I do not find the applicant’s version of the sequence of events to be accurate. The applicant states the last incident did not occur until December 20, 2005. However, the dates she referred to in her Application and testimony did not correspond to her actual work schedule. I take notice (as I did at the hearing) that her schedule in December 2005, starting with a Wednesday, included: December 7, 9, 14, 16, 21.

23Further, in light of the inconsistency noted above and the lack of any other evidence in her support, I relied on the corporate respondent’s evidence which indicates that the applicant did not work with DS on December 16, 2005 or thereafter. Ms. Paavola’s notes from the relevant time and the applicant’s own schedule both indicate that DS was removed from the applicant’s workload sometime after her December 14, 2005 shift. I relied on the corporate respondent’s documentary evidence because it was produced with information compiled more contemporaneous to the events in question and thus in my view is a more accurate reflection of the applicant’s December 2005 schedule and the possible timing of the incidents alleged by the applicant.

24I also find significant contradictions in the applicant’s version of events. For example, in her Application she indicated that she did not give the first incident much thought but in her testimony she indicated she reported each incident to her resource manager. I am also not satisfied that she reported these incidents as she described since she had failed to do so earlier when GS had become “very touchy” and had invited her to his office to enjoy wine which pre-dated the first kissing incident.

25There were other contradictions and when viewed together persuaded me to place little weight on the applicant’s version of events. For example, in her Application the applicant suggested she had maintained a professional relationship with her clients but her testimony confirmed that she crossed the therapeutic boundaries required by PSWs when she exchanged gifts with DS and GS, decorated their door through personal expense, and hosted them for dinner at her home. Also, at the hearing, she stated that she was not aware that she had the ability to have GS criminally charged but her Application, made a few weeks after the last incident, noted that she could have pressed charges but “she refused” out of respect for DS. Further, her Application notes she spoke with Ms. Paavola during her last shift, but in her testimony she acknowledged she would not have told her about the GS incidents since she did not want DS to overhear.

26In contrast with the applicant’s evidence, the corporate respondent’s witnesses were able to provide a coherent story consistent with documentary evidence made at the time of the events in question. For example, the resource manager’s call logs did not record any calls made by the applicant during the relevant time. Additionally, Ms. Paavola’s notes from the time indicate that she first discussed the GS incidents with the applicant after her December 14, 2005 shift.

27I find that the balance of evidence supports that the applicant reported the incidents with GS after her December 14, 2005 shift. Since the corporate respondent removed her DS work assignment prior to her next scheduled shift (December 16, 2005), I find that it acted in a timely fashion.

28On this basis, and since I preferred Ms. Paavola’s testimony, I find it likely that the applicant was also offered assistance through the Employee Assistance Program (EAP) and Ms. Paavola instigated an investigation of the matter.

Did the applicant experience differential treatment for complaining?

29In her Application, the applicant wrote that during her meeting with her employer she was made to feel like she had “provoked” GS and that she was being reprimanded for “anything they could hold against her”. This response contributed to her resignation.

30In my view, the January 2006 meeting has to be placed in context. At the time, the applicant had been removed from her DS assignment and offered EAP assistance. The meeting had been originally scheduled for December 21, 2005 in order to address performance related incidents. As the applicant was ill, it was rescheduled for January. Prior to the January meeting, the employer states that it learned the applicant’s relationship with DS and GS went beyond the client’s particular care plan and breached the therapeutic boundary she was to maintain as a PSW. For example, the employer learned from GS that the applicant had exchanged gifts among other things. The applicant admitted she did these things out of the kindness of her heart. Additionally, the employer learned from another of the applicant’s clients (referred to as B), that she had been sleeping during her night shifts, among other things. The applicant denied B’s accusations.

31While I can understand her perception that she was being assessed, I do find her employer’s response during this meeting, objectively viewed and in light of the context, is insufficient to support the applicant’s belief that she was being reprimanded for “provoking” GS. Instead, as was made evident from her testimony, the corporate respondent sought her response to various issues which involved how she provided care in general. Dealing with allegations of sexual harassment in the context of a broader discussion about performance related incidents was not inappropriate or not in accordance with its own harassment policy. Further, the GS issue had been scheduled for further investigation after the meeting.

32In the circumstances I do not find that there is a sufficient nexus with the applicant’s reduced work after December 14, 2005, and any violation of the Code. Indeed, the nature of the applicant’s schedule was that it was varied and that it was determined by a variety of other factors, such as the collective agreement and her availability. There is a lack of evidence to support that the applicant would not have been able to replace her hours lost due to the GS incidents had she made herself available. Accordingly, I do not find a violation of the Code contributed to the applicant’s resignation.

33I dismiss the Application as against the corporate respondent and Ms. Paavola.

Did GS violate the Code?

34The applicant’s original complaint filed at the Commission alleged that she was subjected to discrimination in her employment on the basis of “sex” and “sexual solicitation” by GS pursuant to sections 5 (1), 7(3) (a) and 9 of the Code.

35The relevant provisions of the Code provides as follows:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of …sex.

7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

7(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. (1) In Part I and in this Part,

“harassment” means engaging in a course of vexatious conduct or comment that is known or ought reasonably to be known to be unwelcome.

36I am satisfied that GS’s conduct in December 2005, based on his own admission, was sufficient to constitute sexual solicitation or advance. GS did not deny the applicant’s allegations regarding the incidents described within this Decision.

37The question is whether GS falls within the jurisdiction of the Code. Both GS and the applicant were invited to make submissions in this regard but did not submit anything relevant for my consideration. As such, I make the following assessment based on the evidence presented.

38Although the applicant worked in GS’s home, I am not satisfied that, in the circumstances of this case, GS is an individual who can be found to have violated the applicant’s rights under the Code. GS is the spouse of a client of the applicant’s employer. There was no evidence to support any contract of service between GS and the applicant. The applicant’s services, assistance with the activities of daily living – dressing, bathing and exercising – were delivered solely to DS as directed by the corporate respondent. Also, there was no exchange of payment for services between the two. More importantly, however, I do not find any evidence to support GS had any management authority or control over the applicant in the performance of the services she provided to DS. Indeed, the applicant followed the care plan which GS had no unilateral authority to amend or change. Additionally, the evidence from the corporate respondent supported that no PSW had a right to a particular assignment and that it could reassign any PSW to meets its business and client needs. As such, I do not find that a breach of section 5 can be maintained as against GS in these circumstances. Since DS was restricted functionally and physically due to paralysis, the applicant provided personal assistance and household care such as washing the dishes. For the same reasons, I find that GS is not the employer, agent of the employer or another employee as set out in section 7(2) of the Code.

39There is a question as to whether section 7(3) is applicable in the circumstances of this matter. Specifically, was GS in a position to confer, grant, or deny a benefit or advancement to the applicant? The applicant did not provide any evidence to support GS was in a position to confer or grant a benefit or an advancement. Accordingly, I do not find GS had such an ability.

40Could GS have denied the applicant a benefit or advancement? The corporate respondent’s evidence was that if a CCAC client requested that a particular PSW not work with a particular client, the corporate respondent had to comply with the request. As affirmed by Ms. Paavola such requests happen for various reasons and PSWs are simply reassigned. The applicant’s hours were variable and there was no evidence to support GS was in that position, even if he had the power to deny or end the applicant’s work assignment with DS by complaining about her. The evidence from the corporate respondent did not link such action necessarily to reduced hours or pay. As such, I do not find the circumstances of this case fall within the purview of section 7(3) of the Code. Accordingly, I dismiss the Application as against the personal respondent GS.

41In all the circumstances, this Application is dismissed.