HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Peters

Applicant

-and-

Tong Zhang

Respondent

a n d B E T W E E N:

Andrea Kovacs

Applicant

-and-

Tong Zhang

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: April 8, 2010

Citation: 2010 HRTO 782

Indexed as: Peters v. Zhang

Appearances

David Peters, Applicant ) On his own behalf

Andrea Kovacs, Applicant ) On her own behalf

Tong Zhang, Respondent ) On his own behalf

BACKGROUND

1These are two separate Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), against the same respondent making allegations of discrimination in employment.

2The matters were heard together on February 10 and 11, 2010 in Toronto. The applicants both testified and called evidence from Frank Macri, a Pizza Nova franchise executive, and Andrea Rushton-Boer, a neighbour. The respondent testified and called evidence from Ahmed Soha Basil, a former employee.

THE EVIDENCE

3The respondent was the owner of a Pizza Nova franchise in Dundas, Ontario. In April 2007, he hired the applicant, David Peters, to work on an as-needed basis as a delivery driver. For a short while in 2007, the respondent assigned Mr. Peters to shifts in the kitchen, but this was discontinued after it became apparent to the respondent that Mr. Peters was better suited as a driver. He worked as an on-call driver for other pizza businesses in the area as well.

4In March 2008 the respondent needed to hire a replacement for his night cook. Mr. Peters suggested that his girlfriend at the time, the applicant Andrea Kovacs — who is now his wife — be hired in that full-time position. Mr. Peters and Ms. Kovacs lived together as common-law spouses across the road from the pizza shop, in an apartment building where they worked as the building superintendents. Their duties as superintendents required them to be at home during daytime hours, making evening and night work an ideal arrangement.

5Ms. Kovacs was assigned a full-time schedule consisting of working Mondays through Thursdays from 5 p.m. until close (around 1 a.m.), Friday rush hour (5 p.m.-8 p.m.) and on Saturdays during the day (8 a.m.-4 p.m.). Mondays through Wednesdays she worked alone at night. The respondent and his wife worked daily until around 5 p.m. On Thursday nights, Ms. Kovacs worked with a delivery driver named Sil, who was assigned to assist in the kitchen when he was not making deliveries. The events giving rise to this Application arise out of the Thursday night shift.

6There is no disagreement between the parties that Ms. Kovacs and Sil had a troubled working relationship. Ms. Kovacs felt that Sil was rude and coarse. She testified that he frequently made racial remarks denigrating “Blacks” and other minorities. Specifically, she alleges that he would refer to Black customers as “niggers” and “monkeys” behind their backs to Ms. Kovacs, who, like Sil, identifies as White. She also testified that on at least two occasions, Sil used offensive language to denigrate one of the store’s regular customers, a Muslim, who routinely asked that the pizza slicer be washed before slicing his pizza for religious reasons. Ms. Kovacs testified that Sil’s comments were deeply offensive to her even though she is neither Black nor Muslim. She stated that she told Sil to keep his thoughts to himself but that he did not respect her wish.

7On another occasion, one Thursday night in late May 2008, Ms. Kovacs testified that Mr. Peters had come to the store late at night to watch a DVD movie. Her evidence was that the respondent allowed staff to eat and watch films at night as long as business was not affected, though in his evidence the respondent disagreed that such practices were condoned.

8Ms. Kovacs and Mr. Peters prepared to watch the film “Last Holiday”, starring Queen Latifah, a well-known, plus-sized, Black American hip-hop artist turned actor. Ms. Kovacs testified that when Sil saw the film they were about to watch, he referred to Ms. Latifah as a “singing monkey”. Mr. Peters gave evidence about this incident as well, which was consistent with Ms. Kovacs’ story. The respondent objected to the applicants raising this incident for the first time at the hearing. I heard the evidence, but will give it very little weight, considering the prejudice to the respondent of this late allegation.

9Ms. Kovacs testified about another incident where she alleged she had left the store after a Friday shift and returned later to purchase a can of pop. Sil was working with another employee, Ahmed Soha Basil, who was a witness at the hearing. Ms. Kovacs testified that Sil made racist comments about a customer who had just left the shop. Mr. Basil gave contradictory testimony, stating not only did he not remember the alleged incident, but additionally that he had never heard Sil make any racist comments in the time they worked together.

10Ms. Kovacs also testified that Sil made inappropriate comments of a sexual nature. The only incident she recounted, which was also described in Mr. Peters’ evidence, was on a Thursday night in early May 2008. She testified that when Mr. Peters came to pick her up at the end of her shift, Sil said to Mr. Peters that to help Ms. Kovacs relax he should take her home, give her a back rub and then have sex. Mr. Peters testified that he told Sil that such things are none of his business and that he did not appreciate the comment.

11Mr. Peters also testified that it was common for Sil to bring a cooler of beer into work and to drink on the job. The respondent and Mr. Basil both testified that they had never witnessed Sil drinking on the job, though they agreed he would buy alcohol from the liquor store nearby and keep it in the pizza shop until the end of his shift.

12On May 15, 2008, the last Thursday that Ms. Kovacs and Sil would work alone together, a dispute arose between them after Sil shouted at Ms. Kovacs in front of customers about the way she prepared a serving of chicken wings, telling her she had “no sense”. He then proceeded to make derogatory comments about bikers after a customer approached on a motorcycle. Ms. Kovacs testified that, with this incident, she had “had enough” of Sil’s behaviour and phoned Mr. Peters to come to the pizza shop. When he arrived, Ms. Kovacs asked him to phone the respondent to inform him of what had transpired. The respondent testified that when he received Mr. Peters’ phone call, he determined immediately that Sil’s comments were inappropriate. He then phoned the store telephone and spoke with Ms. Kovacs, telling her that Sil’s comments were unacceptable and that he would speak with Sil the next day.

13There was some dispute between the parties about the content of the conversations on the night of May 15, 2008. Both Ms. Kovacs and Mr. Peters testified that they complained to the respondent about Sil’s racial and sexual comments when they reported the chicken wing incident. The respondent denied this, and stated that the conversation only concerned the shouting and biker comment, which the respondent accepted were inappropriate though not discriminatory.

14As a result of the incident, the respondent testified he determined that Sil and Ms. Kovacs should no longer be scheduled to work alone together, and accordingly, the respondent moved Sil off the Thursday night shift. On May 16, 2008, the respondent phoned Ms. Kovacs to advise her that Sil would no longer be working on Thursdays and to offer the shift to Mr. Peters. Even though the respondent had previously determined Mr. Peters was ill-suited to kitchen work, the respondent testified he decided to give him “another chance”. It is also during this conversation that Ms. Kovacs alleges the respondent admitted that he “knew of Sil’s behaviour” and yet did nothing about it. The respondent denied that he made any such admission and stated on the contrary that he would not tolerate discrimination in his workplace.

15After two Thursdays, May 22 and 29, the respondent found that Mr. Peters was again not performing well. On June 5, 2008, the respondent’s wife, Shu, told Ms. Kovacs that Mr. Peters was no longer needed on the Thursday night kitchen shift. Instead, Shu would stay through rush hour and Ms. Kovacs could call on Mr. Peters for any late-night deliveries as per the usual arrangement. The parties agreed that as of June 5, 2008, Mr. Peters was relieved of his in-store duties. There was a conflict in the evidence about how late Shu actually stayed on Thursdays after Mr. Peters was let go; Ms. Kovacs testified she rarely worked past 6 or 7 p.m., while the respondent testified his wife worked until 8 or 9 p.m. to help through the rush hour.

16On June 10, 2008, Ms. Kovacs got into an argument with Shu and stormed out of the pizza shop during the middle of her shift. Later that night, Mr. Peters returned to the premises and dropped off Ms. Kovacs’ store key. The respondent testified that he understood this to mean that Ms. Kovacs had quit.

17On June 12, 2008, the respondent phoned the applicants and asked them to come into the store to discuss things. The parties’ evidence about this conversation is contradictory, at least with respect to the human rights issues. The applicants’ testimony supports a theory that Ms. Kovacs raised a number of complaints with the respondent regarding wages, hours, vacation and holiday pay, as well as her dissatisfaction with the resolution of the situation with Sil. The respondent testified that the conversation was entirely about money and that Sil’s name was not mentioned at all, nor were any allegations of sexual or racist comments. At the conclusion of the meeting, the evidence is consistent that an agreement was reached that the applicants would return to work and would each receive a small pay raise.

18Ms. Kovacs testified that her dissatisfaction with the resolution of the situation with Sil continued to grow now that Mr. Peters was relieved of his Thursday night kitchen shift. Ms. Kovacs found Thursday nights to be difficult to work without the extra help in the kitchen. She testified that after Shu would leave, she had to work very hard to keep up with the orders. Ms. Kovacs stated that there had always been two people working to closing time on Thursday nights, and felt that she was being punished for having complained about Sil. She felt it was unfair that she had to work harder on Thursdays, while Sil was given an easy Sunday shift. She felt he should have been punished, not rewarded, for his behaviour. The respondent testified that, for a delivery driver, who earns tips, being assigned to a slow shift is not a reward.

19After being let go from the Thursday night shift, Mr. Peters continued to come in to the store even though he was not scheduled to work and was technically “on call”. Ms. Kovacs testified that franchise policy stipulates that there must always be a driver in the store in addition to any on-call drivers, which necessitated Mr. Peters being on-site. The respondent testified that it was not within the applicants’ duties to interpret franchise policies and make scheduling decisions. However, it appears that while the respondent did not ask Mr. Peters to attend on Thursdays and did not pay him for it, he was aware and did not object. While there, Mr. Peters assisted Ms. Kovacs in the kitchen and, according to the respondent, also spent time watching movies and socializing.

20The respondent produced delivery reports that show the date and time of each phone-in pizza order, and identifies which driver delivered the order. For example, on June 26, 2008, the last Thursday Ms. Kovacs worked, the reports establish that there were just two delivery orders at night after Shu had gone home, received at 9:07 p.m. and at 11:22 p.m. Both were delivered by Mr. Peters. It is possible to track when Shu went home because the orders indicate whether the deliveries were handled by her or by Mr. Peters (the deliveries prior to 9 p.m. were handled by Shu).

21Ms. Kovacs testified that June 26, 2008, was an example of a shift in which she was overwhelmed with business. She testified that the print-out reports only account for call-in orders but not walk-ins. On that night, she testified she had a line-up out the door and that her inability to keep up with the overwhelming demand caused slow service and burnt or late pizzas. The respondent disputed that demand was so overwhelming, even with walk-ins, after 9 p.m. He further testified that he repeatedly told Ms. Kovacs that she should work her best and that she would not be held personally responsible for burnt or late pizzas.

22On June 30, 2008, Ms. Kovacs and Mr. Peters drafted a letter outlining their grievances with the respondent. The letter is addressed to “Tony and Shui” [sic], referring to the respondent and his wife, and is signed by Ms. Kovacs. The letter raises a number of claims unrelated to the Code, such as wages, vacation pay, breaks, training pay and holiday pay. It also takes issue with the fact that Mr. Peters was terminated from his Thursday night shift after just two weeks. Further, the letter refers to the “situation with Sil”, and states that Ms. Kovacs felt it was not handled appropriately. She wrote: “Under the law I have a right to not be subject to sexually inappropriate comments and to have to listen to racist comments about our customers and to be told ‘I have no sense’ in front of customers for giving them what they paid for was totally inexcusable.”

23Ms. Kovacs demanded retroactive payment for the difference between what she believed she should have been paid and what she was in fact paid. She also demanded that “appropriate disciplinary action” be administered to Sil and that either Mr. Peters be re-hired or another employee be added to the Thursday night shift, plus payment of holiday and vacation pay going forward. If the respondent failed to accede to her demands, she said she intended to phone the area supervisor and threatened to commence legal action, reminding the respondent that “in Ontario it is illegal to terminate the employment of someone asking for what they are legally entitled to under the law and/or for seeking assistance from another Supervisor or the Ministry.” Finally, Ms. Kovacs advised the respondent that she would not be attending her shift that evening because the issue “has upset me and I have not been sleeping well and I am stressed out.”

24Ms. Kovacs printed the letter out at home on the morning of June 30 at around 8:00 a.m. She gave her store key and the letter to Mr. Peters who attended at the pizza shop early enough so he would not encounter the respondent or his wife, and left the note. Upon arriving to open up the store, the respondent’s wife discovered the note and immediately phoned her husband, who was at home resting after working a night shift. Because Shu’s English comprehension is limited, the respondent was able to ascertain only the gist of the note; he understood that Ms. Kovacs and Mr. Peters were still dissatisfied with the money issues he thought they had resolved in their meeting on June 12, 2008. He did not immediately understand that the applicants were now raising Code issues as well.

25The respondent phoned Mr. Peters’ cell phone and left a voice mail message, a recording of which was played in the hearing. The parties agreed that in the message, the respondent advises that he did not read the note but that his wife had told him about it. The critical part of the message is when the respondent states: “Since she is not happy working here and we cannot meet all her requirements, I do not see the point she comes to work anymore. Please take back the store key at the first convenient time for you guys.” The respondent’s evidence was that at the time he left the message, he had still heard no allegation of discrimination or harassment.

26The applicants testified that they understood this message to mean that they were both terminated, pointing to the respondent’s repeated use of the term “you guys”. The respondent testified that he was only thinking about Ms. Kovacs when he left the message. He further testified that in his mind he had terminated Mr. Peters earlier in June when he cancelled his Thursday night shifts, keeping him only on an on-call basis. After Mr. Peters failed to return two of his phone calls after June 30, the respondent testified he understood that Mr. Peters did not want to do deliveries for him any longer, which the respondent stated was understandable.

27On July 1, 2008, Ms. Kovacs sent a lengthy letter to Thanos Dimitrakopoulos, the area supervisor of Pizza Nova, in which she outlined all of her grievances, mostly related to pay and hours, but also made reference to her “right under the Human Rights Code to work in an environment not poisoned by sexually inappropriate comments and racial degrading of the customers.” She threatened legal action against Pizza Nova head office if her demands were not met. These included payment of $1,066, representing the wage differential claimed earlier, training hours and vacation pay. She also demanded three months’ severance pay, threatening to seek more if forced to go to court.

28Frank Macri, Franchise Director of Pizza Nova, testified that on July 1, 2008, he was forwarded correspondence addressed to Thanos Dimitrakopoulos, Area Supervisor of Pizza Nova, signed by Ms. Kovacs. In the detailed letter, Ms. Kovacs addresses many of the same issues raised in her June 30 letter, including grievances about hours of work, pay and staffing. Additionally, the letter refers to the incident with Sil, describing him as “extremely rude, makes sexually inappropriate comments and racial comments about the customers.” She goes on to summarize the events leading to, and including her termination, and states:

Also I found out that I have a right under the Human Rights Code to work in a environment not poisoned by sexually inappropriate comments and racial degrading of the customers. I am extremely upset that this employee received no disciplinary action, was given more shifts and I seem to have suffered the consequences of having to work alone on a busy night.

29Mr. Macri testified that after Mr. Dimitrakopoulos forwarded the correspondence to him, the two of them spoke, but that Mr. Dimitrakopoulos had no further information. Mr. Macri testified that he then spoke with both the respondent and Ms. Kovacs, but that the information was conflicting and he did not know who to believe. There was nothing to independently corroborate the information Ms. Kovacs provided him, such as customer or other staff complaints.

30Between July 1 and July 6, 2008, Mr. Macri spoke with Ms. Kovacs and received additional correspondence from her, dated July 3 and July 6, outlining in further detail her concerns and demands. Responding to a voice mail the respondent left on July 2, 2008 asking her to return the store key, Ms. Kovacs was outraged to learn that when Mr. Peters attended at the store to return the key he discovered Sil working Ms. Kovacs’ Thursday night shift. Mr. Macri testified that his approach to the dispute was to encourage the parties to meet.

31On July 6, 2008, at the urging of Pizza Nova Head Office, the respondent, his wife Shu, Ms. Kovacs and Mr. Peters met at a coffee shop to work out their issues. The discussion focused only on issues arising under the Employment Standards Act, 2000, S.O. 2000, c.14, as amended (“ESA”). Neither Ms. Kovacs nor Mr. Peters raised any allegation of Code breaches with the respondent during this meeting. They were unable to reach a resolution to the ESA issues and the meeting ended.

32Both applicants filed a complaint under the ESA and were successful in obtaining orders for unpaid wages.

Findings

33I find that Ms. Kovacs has failed to establish the necessary factual foundation to enable me to accept the allegations of inappropriate comments and harassment by Sil and of a failure by the respondent to effectively address inappropriate comments and harassment. The only evidence of any racial and sexual comments is the testimony of the applicants themselves, whose stories are virtually identical. However, the evidence of the respondent contradicts their evidence, and more importantly, the evidence of the only other witness to the alleged incidents, Mr. Basil, directly contradicts the applicants’ evidence on all counts.

34My findings on the evidence are largely based on credibility findings. Ms. Kovacs, the respondent and Mr. Basil all delivered their evidence in a clear and reasonably persuasive manner. Mr. Peters was less certain on the witness stand; on certain key facts in support of his Application he remembered with absolute precision, while he claimed memory lapses with respect to more challenging questions on related topics. More importantly, he seemed to recall with absolute certainty and precision many of the key elements in support of Ms. Kovacs’ case, while his memory faltered on matters less supportive.

35In assessing credibility, however, I must also look beyond the words and demeanour of the witnesses on the stand. I must also consider the overall context and objective reasonableness of the evidence. As the British Columbia Court of Appeal succinctly stated, in a passage often cited by the Tribunal, “…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…”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at pp. 356-357 (B.C.C.A.). In a case such as this, so driven by credibility findings, it is necessary for me to examine the overall context to determine which evidence is most reliable for grounding my conclusions.

36Mr. Basil is no longer working for the respondent. The pizza shop was sold and the respondent is employed as a bus driver. Sil left the employ of the respondent some time after the incidents that are alleged in the Application. While I might otherwise be inclined to draw an adverse inference from the fact that Sil did not testify, I accept the respondent’s evidence that Sil left the company, and then the company itself was dissolved and the respondent has moved on to a new career. It is noteworthy that Ms. Kovacs did not name Sil personally as a respondent in the Application.

37Mr. Basil was the only third-party witness to testify on key facts. He stated that he was initially contacted by Ms. Kovacs to testify for her case, but when he refused to corroborate her recollection of events, she told him she would not require his assistance. While he then agreed to give evidence for the respondent, I was provided with no reason to question his credibility or assume that he has an interest in these proceedings. He delivered his evidence clearly and cogently. There is no compelling reason to discount this witness’ evidence.

38There are numerous logical gaps in the applicants’ story for it to hold together on a balance of probabilities.

• There is no evidence corroborating the applicants’ allegations against Sil. Some of the applicants’ key allegations suggest that Sil did act this way in front of Mr. Basil, who directly contradicted the applicants’ evidence.
• The parties agree that the respondent immediately reacted to the chicken wing incident and biker comments. If sexual harassment and racism allegations were made, it follows that the respondent would similarly have taken appropriate action.
• The respondent otherwise had a good working relationship with Ms. Kovacs and considered her to be a competent and valuable employee. He had no reason to ignore serious allegations or to evade responsibility for ensuring respect for the Code.
• There is no logical basis to conclude that the respondent deliberately understaffed his store so as to punish Ms. Kovacs for having complained about discrimination and harassment. He had no demonstrable interest in hurting his business for such a purpose. Moreover, the evidence fails to support a theory that understaffing on Thursday was an unintended consequence of the respondent’s handling of the Sil situation. Ms. Kovacs’ allegation that Thursday nights, such as June 26, 2008, were unbearably busy was not supported by the evidence, nor was her allegation that Shu regularly left her alone from 6 or 7 p.m. on.
• Ms. Kovacs maintains that she first complained to the respondent about racial and sexual comments by Sil on May 15, 2008, after the chicken wing incident, and that she raised the issue several times after that. Yet, this was several days after the alleged “massage and sex” comment, and it was not until the hearing that either applicant addressed the alleged “singing monkey” comment. It makes little sense that Ms. Kovacs would have immediately reported the “no sense” comment, or that she stormed out and quit after a workplace dispute with Shu, yet waited several days if not weeks to report alleged violations of the Code.

39The only specific incident described in which Sil is alleged to have made sexually inappropriate comments was the incident involving both Mr. Peters and Ms. Kovacs, when Sil is alleged to have urged Mr. Peters to take Ms. Kovacs home, give her a back rub and have sex with her. The respondent states that during his internal investigation, Sil admitted to having recommended a back rub but denied urging the couple to have sex. While hearsay evidence is generally unreliable, this statement was elicited as part of the respondent’s investigation process and, given the overall context, I find it unlikely that the statement was as alleged by the applicant.

40Neither Application mentions the incident of Ms. Kovacs’ conflict with Shu, her storming out in the middle of a shift and her apparent resignation, followed by the reconciliation on June 12, 2008, and the respondent’s agreement to reinstate the applicants with a pay raise. This incident came out in oral evidence only. If the human rights issues were in fact raised in the June 12, 2008 reconciliation meeting, one would expect this incident to be recounted in the otherwise detailed Applications.

41The respondent maintains that no allegations of sexual or racial discrimination were raised during the June 12, 2008 reconciliation, and I accept his evidence in this regard. It is important to recall that at this time Mr. Peters had already been terminated from in-store employment and Ms. Kovacs had effectively resigned by returning her store key. If they had in fact raised their concerns about discrimination and harassment and the respondent did not accept them or refused to take appropriate action, why would the applicants have agreed to return to work in an allegedly “poisoned” workplace, even with a modest pay raise? They did not allege financial hardship or other extenuating circumstances that compelled them to accept an unsatisfactory resolution. Moreover, the issue of Thursday night scheduling, which Ms. Kovacs makes central to her reprisal allegation, appears not to have been addressed at all. The applicants failed to advance a plausible explanation for why they reconciled with the respondent and accepted reinstatement if none of their alleged human rights issues were addressed.

Sex Discrimination, Harassment and Reprisal against Applicant Kovacs

42Ms. Kovacs alleges that she complained repeatedly about inappropriate sexual and racial comments starting from May 15, 2008. This allegation is not established on the evidence. I am satisfied that the first time she communicated any concern with sexual or racial discrimination in the workplace was in her letter dated June 30, 2008. I also accept that when the respondent terminated Ms. Kovacs’ employment, he had no knowledge of her human rights allegations. He understood her to be dissatisfied with the way he ran his business and with the terms of her employment. He drew the conclusion that if she was unhappy, then there was no need to continue the relationship.

43The termination was not a reprisal for having raised Code issues; rather, it was as a result of the respondent’s perception that Ms. Kovacs was not happy with the terms of her employment and was making increasingly vociferous demands, unrelated to human rights matters. Whether these demands were justified and supported under the ESA is irrelevant to the question of whether the respondent met his obligations under the Code.

44Ms. Kovacs has failed to establish the evidentiary basis to support a finding that the Code was breached. Her Application is accordingly dismissed.

Family Status Discrimination against Applicant Peters

45The issue of Mr. Peters’ employment requires further consideration. Even if Ms. Kovacs’ termination was not discriminatory, Mr. Peters alleges that he was terminated by simple fact of his relationship with Ms. Kovacs. The respondent denies this allegation, arguing first that Mr. Peters was “terminated” from kitchen work in early June 2008, well before Ms. Kovacs’ termination. The respondent further argues that as an on-call driver, there was no employment to terminate. Therefore, he argues that the July 1 voice mail was intended for Ms. Kovacs alone, and only after Mr. Peters failed to return the respondent’s calls did he reasonably conclude that Mr. Peters was not interested in continuing to be an on-call driver for the respondent, which the respondent testified he accepted as understandable.

46Whether Mr. Peters was an “employee” or an on-call driver retained by way of an informal contract, the relationship falls within the Code. Though not technically a “termination”, the denial of work on the basis of a prohibited ground could still amount to a Code violation. However, the evidence must be examined on the whole. The surrounding context and history are important to identifying the parties’ legal rights and responsibilities.

47Mr. Peters and Ms. Kovacs worked as a team. It was clear that, from the time Ms. Kovacs started with the pizza shop, she and Mr. Peters were treated as a team and acted as one. When the respondent resolved the situation with Sil by inviting Mr. Peters to take over the Thursday night kitchen support shift, this was communicated not to him directly but to Ms. Kovacs. Similarly, when the respondent decided to terminate Mr. Peters’ Thursday night shift, this was communicated by Shu to Ms. Kovacs. There was no allegation by either applicant that this pattern of communication was discriminatory or improper.

48The evidence establishes similarly that Mr. Peters and Ms. Kovacs also mixed roles. Mr. Peters initially phoned the respondent to complain about Sil’s behaviour towards Ms. Kovacs; Ms. Kovacs complained to the respondent about Mr. Peters’ pay and scheduling. After Mr. Peters was removed from the Thursday night shift, he continued to attend the workplace and provide kitchen support to Ms. Kovacs without pay (though he subsequently successfully claimed pay under the ESA). When Ms. Kovacs stormed out of the pizza shop after her argument with Shu, it was Mr. Peters who returned to drop off her store key, signalling that Ms. Kovacs had resigned. The June 30, 2008 letter, which I am satisfied was drafted by both Ms. Kovacs and Mr. Peters, was signed by Ms. Kovacs but delivered by Mr. Peters, who used Ms. Kovacs’ store key to enter, without authorization, when no one else was in the store. When the respondent received the letter signed by Ms. Kovacs, he phoned Mr. Peters’ cell phone and left a message.

49I disagree with the applicants that the respondent’s voice mail clearly communicated that both Ms. Kovacs and Mr. Peters were terminated. While the respondent’s choice of words is somewhat ambiguous, it would have been reasonable for Mr. Peters to seek clarification as to the status of his employment. Instead, he avoided the respondent’s subsequent phone calls. Similarly, he failed to seize the opportunity to confront the respondent about the allegedly discriminatory “termination” in the July 6, 2008 meeting.

50It is also a fact, however, that from the time of Ms. Kovacs’ termination, Mr. Peters received no further work from the respondent. This fact must not be approached formalistically. The mere fact that he stopped receiving work at the same time that Ms. Kovacs was terminated attracts Code scrutiny, but is not determinative. The respondent has an opportunity to demonstrate that there were legitimate non-Code related reasons for his decision to end the relationship with Mr. Peters.

51When examining the overall context, it is clear that Mr. Peters and Ms. Kovacs operated as a team, and their employment issues and relationships with the respondent became, with time, inextricably intertwined.

52I accept the respondent’s evidence that he tried to follow-up with at least two further phone calls to Mr. Peters’ cell phone in early July 2008, which went unanswered. To be clear, I do not accept that the respondent was calling to offer Mr. Peters work; rather, he was trying to secure the return of Ms. Kovacs’ store key. In any event, it makes little sense why Mr. Peters would ignore the respondent’s phone calls, when the evidence established that normally, Mr. Peters always answered his phone or returned the respondent’s calls promptly. When the calls went unanswered, the respondent reasonably concluded that Mr. Peters was not interested in continuing the on-call relationship.

53I also accept the respondent’s evidence that, based on the way in which the applicants conducted themselves from the time of Ms. Kovacs’ hire, it was reasonable to conclude that the dissatisfaction communicated in Ms. Kovacs’ letter of June 30, 2008 was shared by Mr. Peters and that his employment relationship was likely strained beyond repair. His failure to return the respondent’s phone calls supported this conclusion. It is not family status discrimination where there is an actual basis to conclude that the employment relationship cannot be salvaged, as opposed to a presumption based on Code-related reasons or stereotypes. It was reasonable of the respondent to conclude that a workable employment with relationship with Mr. Peters was unsalvageable.

54I find that family status was not a factor in the decision to terminate Mr. Peters’ employment. His Application is therefore dismissed.