HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gail Woolrich
Applicant
-and-
Royal LePage Relocation Services Inc.
Respondent
DECISION
Adjudicator: Judith Hinchman
Indexed as: Woolrich v. Royal LePage Relocation Services
AppearanceS BY
Gail Woolrich, Applicant ) Self-represented
Royal LePage Relocation Services Inc., ) Jeffrey Hoffman,
Respondent ) Counsel
INTRODUCTION
1This is an Application dated May 3, 2009 made under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission in July 2006 (the “Complaint”) and abandoned upon filing this Application with the Tribunal. A hearing on this matter was conducted on January 14, 2010 (the “hearing”).
2The applicant alleges the respondent discriminated against her in her employment on the basis of disability, ethnic origin, sex, and reprisal. In particular, she alleges that the respondent harassed her and terminated her employment because of her ethnic origin and that it failed to accommodate her disability during employment. In her Complaint, the applicant also alleges that she faced reprisal.
3At the hearing, the applicant withdrew the allegation of discrimination based upon sex. As there are no allegations in the Application specifically describing discrimination based on sex, I agree that it is appropriate to withdraw this ground.
BACKGROUND
4In late May 2005, the applicant began employment with the respondent as a Consultant to provide relocation assistance to Government of Canada employees in its Government Services Division. The position began with a 90-day probation period that included orientation and training.
5The office where the applicant was hired consisted of approximately 15 employees comprised of a team leader, two administrative assistants, and relocation consultants.
6The applicant was hired by Paula Roy who was team leader until the end of August when Debbie Tucker assumed that position and became the applicant’s supervisor.
7The respondent terminated the applicant’s employment for cause by letter dated November 29, 2005.
Issues
8The issues in this matter are:
Did the applicant have a “disability” within the meaning of the Code?
If so, did the respondent satisfy its duty to accommodate the applicant’s disability?
Was the applicant discriminated against and harassed due to her ethnic origin?
Did the respondent terminate the applicant’s employment on the basis of her ethnic origin or disability?
Did the applicant face reprisal as a result of claiming or enforcing her rights under the Code?
If discrimination occurred, what is the appropriate remedy?
ANALYSIS AND FINDINGS
9Section 5 of the Code provides that:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
Did the Applicant have a “disability” within the meaning of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
10“Disability” is defined in section 10.1 of the Code, in part, to include “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect, or illness.” The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), [2000] 1. S.C.R. 665, 2000 SCC 27. For example, if an employer believes that an employee’s condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54.
11The applicant alleges that she felt by mid- September 2005 that she was being “prepared” for dismissal. As a result, she felt increased anxiety and was hospitalized over the Thanksgiving weekend, returning to work on Thursday October 13, 2005.
12She asserts that after speaking to her daughter by telephone on Saturday of the Thanksgiving weekend, her daughter called the police who sent an ambulance. She was admitted to emergency and then to the mental health ward. She testified that she was hospitalized for severe anxiety, depression, and stress. She testified that after she was released the following Wednesday, she began a treatment program including regular psychiatric appointments and medication. She testified that this affected her ability to function on the job.
13At the hearing the applicant testified that prior to this incident she had not been diagnosed with or been treated for any mental illness. The applicant has not produced any medical notes to support her evidence on this point or to indicate what if any diagnosis was made.
14The respondent’s documents produced for the hearing include handwritten notes made by Ms. Tucker for the period of October 11 to 18. According to these notes, the employer was called on Tuesday, October 11 by the applicant’s roommate who stated that the applicant would not be in for three days for personal reasons and that she was too ill to come to the phone. On Wednesday, October 12, Ms. Tucker recorded that the applicant called to say that she was under a doctor’s care. The next day the applicant returned to work and met with Ms. Tucker. Ms. Tucker records that the applicant stated that she was at the hospital over the weekend for high blood pressure and “other issues.”
15Ms. Tucker’s notes also indicate that she asked the applicant if she needed time away from work or if she needed to “back off” her training schedule. She recorded that the applicant said “no” to both questions. At the hearing the applicant testified that she agreed that her responses would lead to a conclusion that she was okay, and that she did not offer any additional information to the respondent. However, she thought that someone would ask. She provided no reasons for this conclusion.
16The notes also record that on each of October 17 and 18, the applicant took a half day for doctor’s appointments. There is no evidence that any further medical appointments were sought or taken prior to the termination of her employment in late November.
17Although I accept the applicant’s evidence that she was hospitalized over the 2005 Thanksgiving weekend, there is no evidence that she was actually diagnosed with an illness that would impact her ability to perform her job duties or that the employer had any reason to believe that she did or would suffer from a condition rendering her unable to perform her job duties.
18The applicant also testified that after this weekend she asked the corporate respondent’s EAP for six weeks of training that she received and was useful. Again, even accepting that such training occurred, there is no evidence of what this training entailed, why it was agreed to, or when it occurred. The materials filed do not evidence any absences following the applicant’s return to work on October 13other than the two half days noted above.
19On a balance of probabilities, I find that the applicant has not met her burden to establish that at the relevant time she had a disability within the meaning of the Code,, nor did her employer have any reason to believe that she suffered from a condition that would impact her job function. This alleged ground of discrimination is dismissed.
Was the applicant discriminated against and harassed due to her ethnic origin?
20The applicant self identifies as a Francophone and a French Canadian. At the hearing she testified that she speaks fluently both English and French, although she can not write French fluently. She grew up speaking French but now speaks English at home and speaks English better than French. In order to maintain her ability to speak French, however, she has sought employment positions where French is required.
21On several points, the parties do not agree. Those are whether or not the applicant was instructed not to speak French in the office and was harassed for doing so, whether or not she was harassed by co-workers for her French Canadian ethnic origin, and whether or not because of her ethnic origin she was given different and inadequate training for her job duties. To make findings on most of these disputed points requires assessing the credibility of the parties’ witnesses.
22Assessing 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.
23Other factors the Tribunal has applied as relevant factors in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties; see Shah v. George Brown College, 2009 HRTO 920. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive to that party’s case. Shah, supra.
24On all the disputed points, for the following reasons I prefer the respondent’s evidence.
Language spoken in the office
25The respondent submits and it is not disputed that the applicant was hired as a bilingual relocation consultant because she was bilingual.
26The applicant alleges that in the office setting, Ms. Roy told her that Francophones could speak French to one another but to speak English if someone else came into the room. The applicant asserts that half the team was Francophone yet the internal meetings were conducted in English. She agreed at the hearing that at the office it was understood who was Anglophone and that they were spoken to in English. And she agreed that she was able to participate if a meeting was held in English because she is bilingual. She also agreed at the hearing that at the office Ms. Roy often spoke to her Francophone colleagues in French.
27At the end of August, Ms. Tucker assumed Ms. Roy’s position as team leader. The applicant testified that she was upset that the respondent replaced Ms. Roy with a unilingual team leader. She maintained that because the respondent conducted its business at a Federal base, anyone who was spoken to in French should understand French.
28After Ms. Tucker became the team leader, the applicant alleges that at internal meetings, when the applicant spoke in French to another colleague, Ms. Tucker would give her a certain disapproving look. The applicant also alleges that Ms. Tucker often told her to speak English and that during a meeting in Ms. Tucker’s office, she demanded harshly that the applicant speak English.
29The applicant also alleges that in September, Ms. Tucker told her that all correspondence used internally should be in English. As a result of this and their earlier conversations, the applicant felt that French was not to be used in the office and that she thus could not speak in her “first” language.
30The respondent’s evidence differs. Ms. Roy testified that she did not tell the applicant that she could not speak French when Anglophones entered a room. However, she did ask that as a matter of courtesy in that event a discussion ought to be in English so that nobody was excluded. For that reason she agreed that internal meetings were generally conducted in English. The only “practice” the respondent maintained was to speak the language of the client when in consultations. And that was precisely why the applicant was hired – so that she could speak French with Francophone clients.
31Ms. Roy did not recall that Ms. Tucker had been rude to the applicant when, at the meeting referred to by the applicant, Ms. Tucker requested the applicant to speak English. Ms. Roy recalls that Ms. Tucker, who is not bilingual, asked politely that the conversation be in English so that she could participate. This is also Ms. Tucker’s recollection. Finally as the applicant has acknowledged, Ms. Roy testified that in the office other than at internal meetings, she generally spoke to the francophone staff in French and the others in English. Ms. Tucker also had this recollection.
32Both Ms. Roy and Ms. Tucker also testified that towards the end of the applicant’s employment she requested that a written performance review be produced in French and this was done promptly. The applicant does not dispute this.
33I found both Ms. Roy and Ms. Tucker to be credible witnesses and that their explanations regarding the use of language in the office were reasonable. It was not disputed that other consultants spoke French and that Ms. Roy often spoke French to them casually in the office. I am not persuaded that either Ms. Roy or Ms. Tucker instructed the applicant not to speak French in the office or discouraged her from doing so in casual conversation. I am also not persuaded that the suggestion to speak English at internal meetings when Anglophones were present was anything but a suggestion to be courteous and inclusive as that is a reasonable explanation given that the staff was comprised of both Francophones and Anglophones. And the applicant has testified that she did not have any difficulty participating in meetings held in English and in fact is fluent in English.
34With respect to the allegations regarding speaking French in the office, language is not a protected ground in the Code although it can, at times, be used as a proxy for race, ethnicity or place of origin based discrimination: see Saadi v. Audmax, 2009 HRTO 1627, also referencing OHRC Policy on Racial Discrimination. See also Arnold v. Stream Global Services, 2010 HRTO 424, in which the Tribunal analyzed the link between language and grounds including ethnic origin. In that case, as here, the employer had need of employees with fluency in French in order to deal with Canadian or global customer demands. In Arnold, the Tribunal noted that:
In some circumstances, where language is inextricably linked with one’s place of origin, the Code may prohibit some forms of discrimination linked to one’s language, such as speaking less grammatically or speaking with an accent: Segula, supra. Similarly, mocking a person who speaks another language has been found to amount to a breach of the Code: Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 aff’d [1998] O.J. No. 4019 (Ont. Div. Ct.).
35I do not find that the request made to the applicant and others when in internal meetings to use English so that all could follow the conversation constituted a proxy for discrimination on any of the grounds alleged against the applicant. I have not found that the applicant was mocked on the occasions when she chose to speak French or that she was instructed that she could not speak French in the workplace. In fact when she asked that a certain document be provided to her in French that was forthcoming.
36The applicant was not discriminated against on the basis of when she chose to speak French at the workplace or her opportunity to do so.
Training provided
37At the hearing the applicant testified that after August 24, she was also treated differently due to her ethnic origin in that her training thereafter was inadequate for the duties required and was not the same amount of training offered to others. She felt that others were given nine to 12 months of training whereas she was being asked to complete the training more quickly. This was made worse she contends because between August 24 and September 24, the respondent kept her too busy doing French consultancies to have time to take additional training.
38The applicant alleges that on September 24 when Ms. Tucker asked her to perform more detailed and complex consultations, the applicant asked for another month of training. She alleges that this training did not occur, in part because she was absent two days following Thanksgiving weekend and then two half days the following week for doctors’ appointments and thereafter she did poorly when she was evaluated in mock consultations scheduled in November. At the hearing, however, the applicant agreed that the respondent was prepared to work with her with respect to additional training following these absences.
39The respondent filed the training schedules and both Ms. Roy and Ms. Tucker testified about the training offered to the applicant. Ms. Tucker testified that the applicant actually received more training than other consultants. She testified that when the applicant requested more training, she complied and that they both developed a modified training schedule. Following the Thanksgiving absence, it is not disputed that Ms. Tucker asked the applicant if she wished to extend her training and the applicant declined. Ms. Tucker also testified and presented calendar notes to support that the applicant missed additional training opportunities.
40The evidence does not support that the applicant was given inadequate or less training than other employees. The schedules show that the applicant was offered additional training in September after she requested it. As well, the parties do not dispute that in October the applicant was asked and declined to again modify her training. She was not therefore denied training, whether because of ethnic origin or any other reason. There is no basis upon which to find that the applicant faced discrimination based on her ethnic origin that resulted in inadequate training for her job duties.
Harassment by co-workers
41The applicant also alleges that she faced harassment from co-workers at the office due to her ethnic origin. She alleges that another consultant, Julia MacLeod, made personal attacks on her with comments such as telling her that her legs were too skinny and often telling her that she was wrong about something. And that she gave the applicant looks and spoke in a tone that was bullying. Both the comments and the looks created a poisoned environment. Finally, every Friday during team meetings the applicant alleges that Ms. MacLeod told “sexual and racist jokes.” Although she recalls that these were not about French Canadians, the applicant can not recall what the jokes were about. And she felt that because Julia gave her a “look” during these meetings she was unable to tell jokes. After first speaking with Ms. Roy, on July 6 the applicant confronted Ms. MacLeod and told her to stop bullying her.
42The applicant testified that because of this incident and the applicant’s complaint to Ms. Roy about the jokes, Ms. Roy brought both the applicant and Ms. Macleod into her office to discuss the situation. Following the meeting, the applicant testified that Ms. MacLeod never spoke to her again, yet the tension continued.
43At the next team meeting, Ms. Roy stated that because someone objected to the jokes, they would no longer be allowed. After that the applicant felt “hounded” by other co-workers, Manon Leibold and Angele Roy, who were determined to learn who had complained.
44The respondent’s evidence was provided by Ms. Roy who testified that although Ms. MacLeod often told jokes at the weekly team meetings, she always asked permission from the rest of the group and the applicant had never complained until the three of them met in Ms. Roy’s office. Furthermore, anyone could tell a joke and Ms. Roy recalls that the applicant had done so at one meeting. Ms. Roy did not recall that the jokes were sexist or racist in nature.
45The applicant approached Ms. Roy to say that she did not like the way Ms. MacLeod treated her, finding the treatment condescending and stating that Ms. MacLeod used an inappropriate tone of voice. Ms. Roy offered to meet with Ms. MacLeod. However, the applicant preferred to handle the situation herself. Sometime later Ms. MacLeod approached Ms. Roy to complain about the applicant. At that point, Ms. Roy called the meeting referred to by the applicant and during that meeting the applicant complained about the team meeting jokes. Ms. Roy consulted the Human Resources department and upon their advice told the team that jokes would no longer be permitted at the team meetings. She did not identify the applicant as the cause for this directive. In early August, Ms. Roy once again held a meeting in her office to settle an incident involving the applicant’s allegations that two other employees had said that Ms. MacLeod had “bullied” them. Ms. Roy felt the matter was cleared up and she did not hear anything further about it. The incident did not involve any allegations that the applicant’s ethnic origin had been a factor.
46Harassment is defined in the Code, s. 10 to mean “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome.”
47With respect to whether or not the applicant was harassed by her co-workers for her French Canadian heritage, there is simply no evidence to support that conclusion. Although she may have had some conflicts with Ms. MacLeod and discomfort that others were trying to learn who had complained about the team meeting jokes, there is no evidence to support that a course of vexatious comment or conduct regarding her ethnic origin occurred to constitute harassment. The Tribunal does not have the general power to inquire into claims of discrimination about every relationship or interaction, but rather only those that properly fall under grounds protected by the Code.
Was the applicant’s employment terminated on the basis of her ethnic origin?
48It is well-established in human rights law that a protected ground need only be one factor in a decision made that adversely affects an applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.
49The applicant alleges that her employment was terminated because she insisted on speaking French in the workplace and because she was French Canadian. I have found that the respondent did not interfere or object to the applicant speaking French in the office, asking only of all employees that as a matter of courtesy English be spoken when Anglophones were present in these meetings.
50It is not disputed that the applicant did not perform well when evaluated in November 2005 nor that she did not complete some additional training that was offered. The evidence is clear that the applicant was terminated for performance related reasons and that her ethnic origin was not a factor in the decision to initiate termination. Consequently, the decision to terminate the applicant’s employment did not contravene her right to be free from discrimination.
Reprisal
51The Code s. 8 provides that:
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.
52Reprisal is a ground for alleging discrimination that is entirely unconnected to any particular act of discrimination and as such it stands on its own to encourage pursuit of Code rights without fear of recrimination for doing so. Abouchar v. Toronto (Metro) School Board (No. 3) (1998), 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411. To prove the ground of reprisal an applicant must establish that a respondent intended to reprise. Intent may be inferred from the facts and is a matter of credibility. Jones v. Amway [2002] O.J. No. 1504.
53The applicant has provided no evidence to show that prior to her termination on November 29, 2005 the respondent had any idea that the applicant was considering filing her Complaint or otherwise seeking to enforce her Code rights. As such I cannot find in this case that the respondent had any intent to reprise or had threatened to reprise against the applicant.
54I have found that on a balance of probabilities the respondent did not discriminate against the applicant on any of the alleged grounds. This Application is dismissed.
Dated at Toronto, this 26th day of March, 2010.
“Signed by”
Judith Hinchman
Member