Lapcevic v. Pablo Neruda Non-Profit Housing Corporation, 2010 HRTO 927

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Svetlana Lapcevic

Applicant

-and-

Pablo Neruda Non-Profit Housing Corporation and Janet Rose-Jump

Respondents

case Resolution Conference DECISION

Adjudicator: Dale Hewat

Date: April 28, 2010

Citation: 2010 HRTO 927

Indexed As: Lapcevic v. Pablo Neruda Non-Profit Housing Corporation

AppearanceS BY

Svetlana Lapcevic, Applicant ) Clarke L. Melville, ) Counsel

Pablo Neruda Non-Profit Housing Corporation ) Justin Heimpel, and Janet Rose-Jump, Respondents ) Counsel

1This is an Application filed November 11, 2008 under section 53(3) 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 on October 25, 2005 and abandoned upon filing this Application with the Tribunal.

2The following witnesses testified at the Case Resolution Conference: Svetlana Lapcevic and Dave Ozon for the applicant and Janet Rose-Jump, Catherine Logue, and Munif Dak for the respondents. In finalizing my decision, I refer only to testimony necessary to support my findings about the applicant’s allegations. Wherever there is a conflict in testimony, I have noted it and indicated the version of events that I have accepted based on the candour of the witness and what makes the most reasonable sense given the totality of the evidence.

Nature of the Dispute

3The applicant, Svetlana Lapcevic, claims that she was terminated from her employment as the on-site superintendant for the corporate respondent, Pablo Neruda Non-Profit Housing Corporation (“Pablo Neruda”), on July 12, 2005 because of her gender, and because she did not share the same religious beliefs as her supervisor, Janet Rose-Jump, the personal respondent in this matter. The applicant also claims that during her employment she was also harassed by Ms. Rose-Jump because of her gender and religious beliefs.

4With respect to allegations of discrimination on the basis of sex, the applicant claims the following:

a. Her employer directed her not to wear tight clothes, wear make-up or be attractive to tenants during working hours.

b. On September 29, 2004 she was warned by Cathy Logue, President of the Board for the corporate respondent that if she became pregnant she would lose her job.

c. She was told by Ms. Rose-Jump on two different occasions that her job “was not a job for a woman”.

5The allegations regarding discrimination on the basis of religion are as follows:

a. After Ms. Rose-Jump became her supervisor in the fall of 2004, the applicant claims that Ms. Rose-Jump regularly would lecture her about her religious belief system and would require the applicant to stay longer at work-related meetings to discuss religion.

b. Ms. Rose-Jump gave the applicant a Bible and would regularly ask if the applicant was reading it.

c. Ms. Rose-Jump would always provide advice regarding work issues in religious terms.

6The applicant agrees that she never raised her concerns about Ms. Rose-Jump’s religious or sexual harassment because she was afraid that it would negatively affect her performance reviews or result in her losing her job.

7The applicant acknowledges that, following the termination meeting on July 12, 2005, she signed a letter outlining the terms and conditions for her dismissal which contained a release in favour of the respondents. The applicant argues that the release is unenforceable and cannot be used as a bar to this Application. The applicant claims that she was forced to sign the release due to the fact that she was terminated two days before her approved one month family vacation to Serbia leaving the applicant with no time to make alternative housing arrangements. In addition, the applicant states that she was told that if she did not sign the letter she would be required to vacate her apartment unit within seven days. The applicant claims that she did not understand the consequences of signing the letter of termination.

8The respondents deny the applicant’s claims of discrimination on the basis of gender and religion. The respondents submit that the applicant was subject to a one year contract of employment and that they exercised their option not to renew the contract primarily on the basis of concerns with the applicant’s performance and suitability for the position of on-site superintendent. The respondents state that, notwithstanding performance concerns, the applicant was provided with three months pay in lieu of notice and was permitted to stay in the unit until September 30, 2005 in accordance with the termination and notice provisions in the employment contract.

9The respondents maintain that the release is enforceable because the contents of the July 12, 2005 letter of termination were explained in detail and the applicant was given an opportunity to seek independent legal advice. It is on the basis of the release that the respondents seek to have this application dismissed without consideration of the merits.

DECISION

10The Application was heard on the merits and is dismissed on that basis. Having made a determination on the merits, it is not necessary for me to address the validity of this release in this Decision. However, even if I had found the release to be unenforceable, I have concluded that the termination of the applicant’s employment was not based on discrimination either on the grounds of gender or religion. I have also determined that the applicant was not subjected to harassment in employment on the grounds of religion or sex. What follows are my reasons.

Background

11Pablo Neruda is a not-for-profit corporation that consists of 125 residential mixed and low-income rental housing properties in Waterloo, Ontario. Ms Rose-Jump is the property manager for Pablo Neruda and was the applicant’s supervisor commencing in November, 2004. The Board of Directors of Pablo Neruda (the “Board”) retained the company, Dak Property Management and Consulting (“Dak”) to manage the property but Dak was not involved in the day-to-day running or administration of Pablo Neruda. Ms. Rose-Jump was hired in November 2004 and reported directly to Pablo Neruda’s Board of Directors, of which, Cathy Logue was the President until 2008.

12The applicant was hired on April 6, 2003 as the on-site day-time superintendant to care for and maintain the premises known as Pablo Neruda Estates. The applicant and her family also lived in a unit at Pablo Neruda. In her testimony, the applicant advised that she and her family were recent immigrants from Croatia and that they had come to Canada, in part, to be free from religious persecution.

The Employment Contract

13During the first 18 months of her employment, the applicant did not have a written employment contract. Ms. Logue testified that by September 2004 a number of issues regarding the applicant had been brought to the Board’s attention by other tenants who complained that the applicant treated them rudely, was uncooperative and that the Pablo Neruda was not being maintained in terms of cleanliness. In addition there were allegations that the applicant was seen taking household items left by former tenants. There were also rumours that the applicant was spending too much time and possibly that she was having an affair with the evening off-duty superintendant, Dave Ozon during working hours. In response to these complaints the Board decided that it was necessary to prepare a defined term employment contract for the applicant.

14The applicant met with Ms. Logue and Mr. Dak on September 23, 2004. During the meeting the applicant was reminded that Pablo Neruda abides by a code of conduct requiring all employees to conduct themselves in a professional, ethical and business-like manner. The applicant’s terms and conditions of employment including a clear explanation of the reporting structure between the applicant and the property manager were reviewed. Specific reference was made during the meeting to what would constitute inappropriate conduct that would be subject to sanction by the Board such as yelling or threatening tenants or removing items of furniture from garbage bins. Expectations of the role between the applicant and Dave Ozon were also reviewed in terms of re-affirming that each was expected to work independently during their respective working hours, unless an emergency arises, requiring both to be on duty. The applicant was advised that any complaints concerning the property manager were to be forwarded in writing to Dak. Complaints about the superintendant were to be forwarded in writing to the Board.

15As a follow-up to the September 23, 2004 meeting, Ms. Logue met with the applicant on September 29, 2004 in order to review and seek the applicant’s agreement to a new Employment Contract for a Live-in Superintendant. It was not disputed that Ms. Logue reviewed the terms and conditions of the Employment Contract with the applicant and that the applicant signed it signifying her acceptance. Dave Ozon witnessed the Employment Contract after the meeting.

16The Employment Contract included termination of tenancy provisions including an amendment, requested by the applicant and agreed to by Ms. Logue, providing that the applicant’s tenancy terminates on the day employment is terminated under the Contract but that the applicant will be required to vacate the unit within 30 days after the tenancy is terminated. The original provision required that the employee vacate within one week after the tenancy is terminated. The contract also provided that the applicant could seek a 30 day extension of the tenancy at her own cost.

17The employment termination provisions of the employment contract stated that the employer may terminate the agreement at its sole discretion and for any reason, with or without cause. In the event of no cause, the employer was obliged to pay one week’s salary per year of service up to a maximum of three month’s salary.

Work Performance Issues

18Ms. Rose-Jump testified that she had an “open-door” policy, a team-work approach, and that the applicant was not afraid to talk with her. Whereas the applicant recollected daily 20 to 40 minute meetings, Ms. Rose-Jump recalled having regular, but not daily, 10 to 15 minute meetings with the applicant to review what work needed to be completed. Mr. Ozon was present at some of these meetings to find out about outstanding work for his evening shift.

19After Ms. Rose-Jump became property manager, a total of seven written complaints from other tenants about the applicant’s behaviour were received by the respondents in November and December 2004 and in March, April and May, 2005. On January 3, 2005 the applicant was provided with a letter from Ms. Rose-Jump to address some concerns about the applicant’s behaviour and work responsibilities. The letter was not disciplinary in nature but sought to positively reiterate the applicant’s duties and responsibilities and expectations contained in the employment contract.

20In response to this letter, on January 4, 2005, the applicant requested a meeting with the Board only. The applicant was invited and did attend the Board meeting on January 12, 2005 and was provided with an opportunity to discuss her concerns. The applicant admitted that she was not happy with Ms. Rose-Jump. One of the applicant’s concerns pertained to how Ms. Rose-Jump responded to her fear about a tenant’s sexual advances. The applicant explained to the Board that Ms. Rose-Jump did not take her concerns seriously enough and did not act on her behalf.

21Following the meeting the applicant received a detailed letter confirming the issues discussed. Again, the applicant was reminded of the reporting structure and of the superintendant’s job performance and duties. Specific direction was given with respect to reporting of offensive behaviour including contacting the police and reporting to the property manager.

22On May 4, 2005, Ms. Rose-Jump met with the applicant for a verbal performance review which was documented. While the performance review pointed to a number of commendable qualities of the applicant, there were a number of areas that required improvement. Although Ms. Rose-Jump noted that the applicant was a conscientious and reliable worker, there were concerns about the applicant’s marginal people skills, time-management, socializing with co-workers and tenants during work hour and confidentiality issues. Ms. Rose-Jump testified that she decided to meet with the applicant because of a number of work-related issues that had arisen. A copy of the performance review was shared with the Board on May 11, 2005.

23Ms. Logue testified that based on concerns about the applicant’s performance, the Board decided, in a meeting on May 11, 2005 to begin an action plan to terminate the applicant’s employment. Concerns had also been raised about Mr. Ozon and a decision was also made to take steps to terminate his employment, which ultimately was held in abeyance.

24Ms. Logue explained that although a decision was made in May 2005 to not renew the applicant’s contract, the process took some time because Pablo Neruda had to seek direction from the Region of Waterloo in terms of procedure.

25The final decision regarding the applicant’s employment was made at the June 15, 2005 Board meeting. The minutes reveal that there had not been any other complaints about the applicant since the last Board meeting; however the Board decided to proceed with the termination. It was decided that the applicant would be informed about the non-renewal of her employment contract before she was to leave for vacation on July 14, 2005. Ms. Logue confirmed in her testimony that the time period just prior to the applicant’s vacation was chosen because the Board believed it would be an easier exit for the applicant since she would be away from the other residents of Pablo Neruda. In addition, Ms. Logue indicated that the Board wanted to be fair to the applicant by giving her time to find another place to live.

The Termination Meeting

26On July 12, 2005, the applicant was called into a meeting with Ms. Logue and Mr. Dak to discuss the non-renewal of her contract and was provided with a letter of termination of employment setting out a number of terms and conditions. The termination letter provided that, pursuant to the Employment Contract, the applicant would cease her duties as the superintendant but would continue to be paid her salary, less applicable statutory deductions, for a period of three months ending October 14, 2005 and would receive an additional two weeks’ vacation to be taken by the end of August 2005. The letter also provided that rent for the applicant’s unit would continued to be paid for the month of August 2005 and that the applicant would be required to vacate the unit at the end of 30 days after the termination of the Contract. However, the applicant, again in accordance with the Contract, was permitted to request an additional 30 days past August 31, 2005 to remain in the unit at her own expense. The letter also contained a release provision.

27Ms. Logue testified that when she and Mr. Dak met with the applicant, she explained that the contract was not being renewed and referred to some of the reasons for the decision including behaviour with the tenants, lack of cooperation with Ms. Rose-Jump and other performance issues. Ms. Logue also advised that she told the applicant that the tenants would be informed of the decision not to renew the Contract but that the explanation would be framed in terms of budgetary reasons in order to protect the applicant’s privacy.

28The applicant’s recollection of the termination meeting was that she was told that she was not needed due to budgetary reasons. She recalled being upset and asking if she could work for one-half of the salary but was told by Ms. Logue that she would get paid and would be allowed time in the unit if needed. The applicant claims Ms. Logue told her that she would have seven days to get out of the unit if she didn’t sign the letter, but then stated again that Ms. Logue emphasized that she would be paid and that she would not be “on the road”. The applicant said she did not read the letter that she was confused and felt stressed because she was leaving on vacation and did not have time to cancel her trip.

29The applicant also claimed that after the termination meeting she met Mr. Ozon outside who informed her that he had been offered her position. This allegation was denied by the respondents and Mr. Dak noted that he did not have the authority to offer a position to Mr. Ozon.

30Before she left on vacation, the applicant signed the termination letter and received confirmation that she and her family could remain in the unit until September 30, 2005. The applicant ended up vacating the unit prior to September 30, 2005 but did continue to collect her pay in lieu of notice in accordance with the termination letter and employment contract.

Allegations of Discrimination

Pregnancy

31The applicant claimed that during the meeting on September 29, 2004, Ms. Logue said that it was good to have an employment contract but told the applicant that she cannot be pregnant in the superintendant’s position. Ms. Logue denies this allegation. The applicant testified that this was the only time that Ms. Logue made a comment about pregnancy and that she did not respond to the comment because, being her first serious job in Canada, she thought the comment was normal. The applicant also mentioned that Ms. Rose-Jump also made comments to her about being pregnant, because the applicant claimed she had gained weight, but these allegations were never raised in the original human rights complaint or in the applicant’s additional statement of facts and therefore do not form part of this Application.

32Mr. Ozon testified in support of the applicant and admitted that he and the applicant and her family had a close friendship. He recalled Mr. Dak being at the September 29, 2004 meeting. Mr. Ozon claimed that he overheard Ms. Logue’s comment about pregnancy because he was sitting on the bench outside the office during the meeting and that he could hear the conversation even though the door was closed. He also stated that he discussed the comment with the applicant after the meeting and told her that it was not right and that she should call the Human Rights Commission but that she would not do so fearing for her job.

33In cross-examination Mr. Ozon noted that he recalls the pregnancy comment coming after a comment by Ms. Logue about the rumoured affair and that they were speaking in low voices. He indicated that he did not recall other comments but that he only hears what is important. Mr. Ozon did not say anything to Ms. Logue nor did he raise his concern about the alleged comment with the Board or Mr. Dak.

34Based on my review of the evidence and testimony, I cannot conclude that Ms. Logue made any comments about pregnancy as alleged. Ms. Logue’s testimony was thorough in her explanation of the reasons for requiring an employment contract and how she reviewed each section of the contract with the applicant to ensure the terms and conditions were understood. Furthermore, there was no evidence from either Ms. Logue or the applicant that they specifically spoke about rumours of the applicant’s affair with Mr. Ozon. In contrast Mr. Ozon recalled hearing such comments and was certain that Mr. Dak was in the meeting, which was not the case. I found Mr. Ozon’s memory to be very selective in terms of his recollection of hearing only comments about the rumoured affair and pregnancy.

Dress/Appearance

35The applicant’s recollection about comments regarding her form of dress related to alleged remarks made by the former property manager, Fran Powers. The applicant recalled that she had a bad experience with a drunken tenant and that when she advised Ms Powers about it, a discussion arose about dress. The applicant claims that Ms. Powers told her that one never knows who is in a unit and that she should be careful not to be too attractive by wearing loose clothing and not a lot of make-up. The applicant stated that after this discussion she felt that Ms. Powers’ comments were not right.

36The applicant agreed that Ms. Rose-Jump had no concerns about how the applicant dressed. She only recalled Ms. Rose-Jump making a comment about the need to wear safety shoes and long sleeves as a form of practical protection. Ms. Logue also stated that neither she nor the Board had any concerns about the applicant’s appearance or dress.

37The evidence does not support the applicant’s allegations that she was discriminated on the basis of sex due to her appearance. Even if the comments by Ms. Powers did occur, they were likely made in the context of providing advice for the safety of the applicant. The applicant was not asked to change her appearance by Ms. Powers and agreed that no one else raised any concerns about her dress.

“Not a Woman’s Job”

38The applicant claimed that on two occasions she was told by Ms. Rose-Jump that the superintendant position was not a job for a woman. In addition, the applicant believed that the fact that she is female is one of the reasons she was terminated. In support of this claim the applicant relied on the job posting and the hiring of a male to replace her following her termination.

39None of the witnesses who testified about the alleged comments could specifically recall when the incidents happened other than a general time-frame of spring 2005. According to the applicant, an incident occurred when Ms. Rose-Jump observed her lifting heavy salt bags, although Ms. Rose-Jump could not recall that scenario. Other than noting that incident, the applicant had little information other than a vague recollection about Ms. Rose-Jump making a comment about it not being a woman’s job.

40The second incident arose in the garbage room when an emergency arose when the garbage compressor jammed. The applicant recalled that when the garbage compressor jammed, Mr. Ozon came to assist her. She alleged Ms. Rose-Jump said “it’s not a job meant for a woman” because of the heavy nature of the work. In cross-examination the applicant agreed that the comment was said in a nice manner. Mr. Ozon testified that Ms. Rose-Jump said it’s not a woman’s job and he responded that anyone can pick up garbage. Ms. Rose-Jump denies saying it was not a job suitable for a woman but does recall saying something to the effect that she didn’t know how the applicant could manage the jammed compressor. She recalled the applicant responding by saying “girl power” and that she could handle a tough job. The applicant recalled reacting by posing with her fists up in the air to signify her strength.

41Based on the evidence provided, it appears that during the garbage compressor incident, Ms. Rose-Jump did make a comment questioning how the applicant had the strength to manage the jammed compressor. The applicant testified that she responded by making a gesture with her arms up in the air mimicking an army poster and mentioned “girl power”. During her testimony the applicant recalled that Ms. Rose-Jump’s comment was said “nicely”. However, she also stated that after this happened she felt the comment was not right and that her ability to perform her job should not be based on whether she is a male or female. Other than the applicant’s response during that incident, she did not complain to Ms. Rose- Jump or to the Board.

Job Posting

42After the applicant’s employment was terminated, Pablo Neruda posted a job posting on the bulletin boards on the premises and advertised in a local newspaper. The applicant claimed that not only did the positions advertised replace her job, but also, that Pablo Neruda was seeking a male to fill the positions. Ms. Logue testified that the respondent had re-structured the superintendant position into two jobs following the applicant’s departure. One position was for a maintenance/security coordinator and the other for a cleaner/handy person which was more akin to the applicant’s duties. The job posting noted “preferably couple” in conjunction with the cleaner/handyperson position. The successful candidate for the cleaner/handyperson was male. In 2007, a female was hired for that position. In assessing the evidence, I could not find any basis for concluding that Pablo Neruda did not want to hire a female for these positions. The evidence from Ms. Logue established that the positions were skill-based and that Pablo Neruda was keen to hire a couple for ease of sharing the duties.

Religious Harassment

43The evidence differed between each of witnesses differed to some extent. The applicant stated that soon after Ms. Rose-Jump became her supervisor she was asked during a meeting at the end of the work day whether she attended church on Saturdays or Sundays. The applicant claimed that she responded that she was Orthodox and that she did not have time to go to church. She recalled Ms. Rose-Jump telling her that she was 7^th Day Adventist. The applicant also recalled that Mr. Ozon was at that meeting and that he told Ms. Rose-Jump that he was a non-practicing Catholic.

44In addition the applicant remembered Ms. Rose-Jump offering her a Bible during that meeting. About a week after the meeting Ms. Rose-Jump gave the applicant a Bible as a gift which she had signed inside. The applicant stated that Ms. Rose-Jump offered to answer any questions about the Bible and asserted that Ms. Rose-Jump asked her at least once or twice a week if she had read the Bible between February and May 2005. The applicant also mentioned that Ms. Rose-Jump spoke about good and bad angels and suggested that in dealing with people generally it is important to be a good person, to have forgiveness and to believe in God.

45The applicant agreed that she never said anything to Ms. Rose-Jump to indicate that she was not interested in a Bible or in discussing religion. In fact, the applicant stated that she didn’t say anything in response to Ms. Rose-Jump’s comments. The applicant claimed that she felt conflicted by pressure from her husband to not to be influenced by Ms. Rose-Jump and by the fear of losing her job. Although the applicant agreed that she could have gone to the Board regarding the religion issues, she chose not to complain.

46Mr. Ozon recalled religious beliefs being raised by Ms. Rose-Jump on one occasion in a meeting with the applicant, but he remembered the meeting occurring in the spring of 2005. He stated that he told Ms. Rose-Jump during that meeting that she could not force religion on someone else and that Ms. Rose-Jump responded by stating that they would discuss it after work everyday. Mr. Ozon recollected being told by the applicant that she received a Bible and that he told her to take it back because he felt it was not right for Ms. Rose-Jump to have given the Bible to the applicant. Mr. Ozon did not witness any other incidents involving the applicant relating to the allegations of religious harassment.

47Ms. Rose-Jump admitted to having a conversation with the applicant one morning before work. Her recollection was that the applicant saw Ms. Rose-Jump reading a Bible and that the applicant began asking her questions. It was at this point that Ms. Rose-Jump asked the applicant if she believed in God and told the applicant that she did and that she used prayer for comfort. Ms. Rose-Jump recalled offering to give the applicant a Bible as a gift which the applicant accepted.

48When Ms. Rose-Jump gave the applicant the Bible, she mentioned Genesis and Psalms and told the applicant she could ask her any questions that she might have about the Bible. Ms. Rose-Jump also recalled that the applicant had been upset about a sick family member and had approached her about it. Ms. Rose-Jump stated that, in a casual conversation, she told the applicant that she would turn to Psalms and prayer for encouragement and comfort and that God will answer. She denied that she asked the applicant questions about the Bible one or two times per week. Instead, she claimed that the applicant initiated questioning but that it was not frequent. It was also agreed that in responding to issues at work Ms. Rose-Jump might emphasize the concepts of forgiveness and respect in relation to God’s love.

49Ms. Rose-Jump denied asking the applicant to attend her church and stated that although her religion has an outreach component she would not impose her religion and would never initiate a religious discussion unless it is in an appropriate setting. With respect to Mr. Ozon, Ms. Rose-Jump stated that he told her he was a non-practicing Catholic and that he didn’t believe in God after the death of his wife. She admitted that he too knew she was a 7^th Day Adventist from conversations that came up. Ms. Rose-Jump did not discuss her religion with Cathy Logue or any other Board members. She also agreed that dialogue about the Bible or religion stopped after a few months.

50Having considered all of the testimony, I have concluded that Ms. Rose-Jump did make inquiries about the applicant’s religion and her belief in God as well as Mr. Ozon’s religion. It was undisputed that Ms. Rose-Jump did not make the Board or Ms. Logue aware of her religious beliefs and did not discuss any aspects of religion with them. However, she did offer a Bible to the applicant and gifted it to her and engaged in some conversations with the applicant about the role of prayer and turning to Biblical Psalms for comfort, once being in the context of the applicant’s personal family issue.

51I find Ms. Rose-Jump offered to answer any questions that the applicant may have had in regards to the Bible and accept Ms. Rose-Jump would sometimes couch her suggestions in religious tones to the applicant for dealing with conflict at work by encouraging concepts of forgiveness and God’s love. Ms. Rose-Jump also agreed that she talked about Genesis and the Angel Gabriel with the applicant. I am not convinced, however, that Ms. Rose-Jump frequently asked the applicant about the Bible as alleged. There was no detailed evidence from the applicant other than a general time-frame between February and May 2005 when these inquiries might have occurred. I do not accept Ms. Rose-Jump asked the applicant to attend the 7^th Day Adventist Church.

ANALYSIS

52The relevant sections of the Code are as follows:

5(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.

5(2)Every person who is an employee has the right to freedom from harassment in employment 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.

53The Tribunal's jurisprudence has articulated the requirements for a finding of harassment, as follows:

• a course of vexatious behaviour;

• by an employer, employer’s agent or a fellow employee;

• that is known or ought reasonably to be known to be unwelcome; and

• is based on a protected ground under the Code

See Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.).

54The term “vexatious” clearly imports a subjective element into the definition of harassment. The comment or conduct must be annoying, distressing or agitating to the person complaining. See Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.). It has also been said that conduct is vexatious where the complainant finds the comments and conduct worrisome, discomfiting and demeaning. See Saunders v. Morsal Developments Ltd. (August 23, 1995), No. 718 (Ont. Bd.Inq.).

55In addition to considering whether the harasser knew his or her behaviour was unwelcome, human rights tribunals also consider the perspective of the person alleging harassment when assessing whether a harasser ought reasonably to have known that the comments or conduct at issue was unwelcome. For example, it has been held that whether the harasser ought to have known that his behaviour was unwelcome depends on whether a reasonable person in the position of the person alleging harassment would find such conduct to be unwelcome and, if so, whether reasonable people in the respondent's position would know that to be the case. See Ghosh v. Domglas (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.).

56Protest or objection to the allegedly harassing conduct is not a precondition to a finding of harassment: Howard v. deRuiter, 2004 HRTO 8. In Simpson v. Consumers’ Association of Canada 2001 CanLII 23994 (ON C.A.), (2001), 57 O.R. (3d) 351 (C.A.); leave to appeal refused [2002] S.C.C.A. No. 83, it was noted that because of the power imbalance in the supervisor/employee relationship and the perceived consequences of objecting to his supervisor's behaviour, an employee may go along with unwelcome conduct. In Bell v. Korczak (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd.Inq.), the continued willingness of the complainant to work was found not to constitute acceptance of the impugned conduct.

57In Dufour v. J. Rogers Deschamp Comptable Agréé (1989), 1989 CanLII 9087 (ON HRT), 10 C.H.R.R. D/6153 (Ont. Bd.Inq.) at one employee’s interview, the employer told the employee that the owners of the business were Christians and that the atmosphere in the firm was a Christian atmosphere. An employee who was subject to headaches was recommended group prayer sessions by the employer to cure her migraines and at least one session was held in the office board room. One employee was provided a Bible by the employer. It was clear that the employer initiated almost all of the many discussions about religion. Prayer sessions were held each morning in the boardroom, to which employees were invited.

58In Dufour, the Board of Inquiry stated as follows:

44242 A person's religious outlook goes to the heart of his or her being. Harassing or discriminating against someone because of religion is a severe affront to that person's dignity, and a denial theof [sic] equal respect that is essential to a liberal democratic society.

44243 "Human rights legislation," the Supreme Court of Canada has said, "is of a special nature and declares public policy regarding matters of general concern": Winnipeg School Division No. 1 v. Craton, 1985 CanLII 48 (S.C.C.), [1985] 2 S.C.R. 150 at 156, [6 C.H.R.R. D/3014 at D/3016]. The Human Rights Code, 1981, explicitly protects employees against religious pressure or religiously based mistreatment. No matter how convinced anyone may be that he or she has a religious message that others should hear and heed, the Code prohibits him or her from pressing that message in the workplace. A religiously militant employer is no more entitled to impose his or her version of religious enlightenment on employees than a sexually militant employer is entitled to impose his or her sexual ideas or wishes.

44244 It is true that the Code's provisions on religious harassment and religious discrimination do not prohibit all overtures or all conversation on religion, just as the provisions on sexual harassment and sexual discrimination do not prohibit all social overtures by employers or co-workers toward employees, or all discussion of sexual topics. In each case, however, an employer or co-worker must scrupulously avoid taking any advantage of the employment relationship or the workplace environment to put unwelcome pressure, whether sexual or religious, on any employee.

59The applicant has not meet the burden of proof to establish that she was harassed or discriminated against in employment on the ground of sex. First, I found that Ms. Logue did not make the comment about pregnancy to the applicant. In terms of the allegations regarding dress or appearance, the evidence did not establish that the applicant was required to dress differently by her former supervisor. It was apparent that the applicant did receive advice on how she might dress but in the context recounted by the applicant, I cannot conclude that the comment about dress was vexatious or ought to have reasonably known to be unwelcome. In addition, there was no evidence that Ms. Rose-Jump or the Board had any issue with the way the applicant dressed during working hours.

60With respect to the allegations that the applicant was told that it “was not a job for a woman”, I concluded that Ms. Rose-Jump commented or questioned how the applicant had the strength to deal with the compressor but did not say it was not a job for a woman. Despite the limited evidence about the alleged comment when Ms. Rose-Jump observed the applicant lifting heavy salt bags, I am satisfied that Ms. Rose-Jump questioned the applicant in a similar fashion. I am not convinced that it was done in a way that a reasonable person would find to be annoying, distressing or agitating. Ms. Rose-Jump was quite candid in her testimony that she knew she could not physically do that work and she was curious or surprised how the applicant had the strength to complete the tasks.

61Furthermore, the applicant’s evidence was that Ms. Rose-Jump’s comment was said in a nice manner and that the applicant retorted by standing up with her fists up in the air gesturing strength. Ms. Rose-Jump’s recollection that the applicant said the words “girl power” also confirms the light heartedness of these brief instances.

62In terms of the job posting, I am not satisfied that the language of the posting showed that the respondents did not want a woman for either of the advertised positions. On the contrary, the posting made reference to a preference for a couple for the cleaner handy position which could have included a male or female. Ms. Logue’s testimony was clear about the skills and job requirements that Pablo Neruda was seeking. Moreover, there was testimony that a female was hired for the cleaner handyperson position in 2007.

63I cannot find any basis in the evidence to prove the applicant’s allegation that the respondents only wanted to hire a male to replace her position as superintendant. I also am not convinced that Mr. Ozon was offered the superintendant position to replace the applicant. Mr. Dak explained that he did not have the authority to offer a position to Mr. Ozon and in any event, the Board had already decided to take steps to also terminate Mr. Ozon’s employment which had been delayed.

64I have also determined that the applicant was not subject to discrimination on the basis of religion or was harassed by Ms. Rose-Jump on that prohibited ground. The facts of this case are distinguishable from those in Streeter v. HR Technologies, 2009 HRTO 841. In Streeter, a finding of harassment on the basis of religion was found where over the course of 12 years employment the applicant was subject to religious messages, teaching and religious pressure in the workplace. In particular, the evidence in that case clearly demonstrated , at paragraph 39 , that the employee

was uncomfortable and felt coerced with respect to issues such as the gift of a Bible, religious discussions occurring the work day, prayer components to business meetings, weekly Bible study groups that were not perceived by him to be truly voluntary, the requirement to pray during a meal in a public space and especially the “heaven and hell” meeting which took place in the respondent’s office towards the end of his employment. I am satisfied that the applicant found the respondent’s conduct to be unwelcome.

65In Streeter, it was also concluded that the respondent ought to have know his conduct was unwelcome because his actions of introducing religion and religious teachings in the workplace went beyond the normal office discourse or casual discussion.

66In this Application, while the evidence established that Ms. Rose-Jump made inquiries about religion and gave a Bible to the applicant as a gift, I am not satisfied that the applicant has proven the allegations that Ms. Rose-Jump would regularly and consistently impose her religious beliefs on her. The evidence was also inconsistent between Mr. Ozon and the applicant in terms of when the issue of religion was raised by Ms. Rose-Jump with the applicant noting it was soon after Ms. Rose-Jump became her supervisor and Mr. Ozon thinking it was in the spring of 2005.

67There was no evidence the applicant would be called in for meetings and then be lectured about Ms. Rose-Jump’s belief system nor was there evidence to establish that the applicant would be required to stay after work and listen to Ms. Rose-Jump talk about her religious beliefs or that the applicant was asked to attend the 7^th Day Adventist Church.

68What the evidence did show was that Ms. Rose-Jump did occasionally talk to the applicant about how prayer and Psalms were helpful tools to provide comfort. One of these conversations was initiated by the applicant when she told Ms. Rose-Jump about a sick family member. Ms. Rose-Jump also gave advice to the applicant suggesting the consideration of forgiveness and God’s love in personal interactions with tenants at Pablo Neruda.

69In this case, while that applicant testified that she was not comfortable with Ms. Rose-Jump’s gift of the Bible or guidance framed in religious terms, she claimed that she did nothing about it and ignored it because she was afraid of losing her job. She also stated that because her family had emigrated from Croatia, in part, to flee from religious persecution she felt uncomfortable having to talk about religion with Ms. Rose-Jump. I find that, even though the applicant may have found Ms. Rose-Jump’s conduct to be unwelcome, I am not persuaded that Ms. Rose-Jump ought to have known that her conduct was unwelcome.

70While the failure of an employee to complain about an employer’s conduct is not fatal to making a finding of a Code violation, in this case the applicant’s silence is relevant. The applicant’s actions with respect to religious harassment were not consistent with how she dealt with other issues or concerns at work. The applicant was told that if she had concerns she could raise them with the property manager and if the concerns related to her relationship with the property manager she could speak to Dak or the Board. Over the course of her employment in the one year prior to her dismissal, the applicant spoke to her Ms. Rose-Jump about personal safety issue involving a male tenant and demanded a meeting solely with the Board in January 2005 to complain about how Ms. Rose-Jump was treating her and had no issue with speaking up about Ms. Rose-Jump. In addition, Ms. Rose-Jump testified that the applicant had no problem speaking with her.

71Both Streeter and Dufour have recognized the right of an employer to express opinions freely, within the confines of the Code. However, it has also been recognized that an employer must be careful to not put any unwelcome pressure on an employee such that religion or religious adherence becomes a term and condition of employment. See Streeter at paragraph 41. On the whole, the conduct of Ms. Rose-Jump and the way the applicant responded does not show that there was unwelcome pressure on the applicant with respect to engaging in religious conversations or debate and, in fact, any discussion about religion stopped in May 2005.

72The applicant urged me to find a connection between the cessation of conversations about religion after Ms. Rose-Jump’s May 2005 performance review and the Board’s decision not renew the applicant’s employment contract. I am not convinced that Ms. Rose-Jump stopped talking about religion because she knew that the applicant would be terminated from her position.

73The evidence also does not support that Ms. Rose-Jump crafted a poor performance review because of the applicant’s religious beliefs. Based on the evidence provided by Ms. Logue and Ms. Rose-Jump, there had been a number of work performance issues that had been raised with the applicant when she was asked to sign the employment contract in September 2004, in Ms. Rose-Jump’s January 3, 2005 review and there were a number of documented tenant complaints about the applicant. Although Ms .Rose-Jump and Ms. Logue pointed out a number of positive qualities about the applicant’s work performance, it was evident that problems with the applicant’s personal interactions and communication skills continued. The evidence established that it was the Board’s decision to not renew the applicant’s contract and that Ms. Rose-Jump was not involved in the final decision. The Board was also not aware of any discussion about religion that may have taken place.

74I find that the respondents have demonstrated that the reasons for the applicant’s termination were non-discriminatory related to performance concerns. The applicant’s gender and/or religion were not a factor in the decision. I also find that the applicant was not subject to harassment in employment on the basis of gender or religion.

75The Application is dismissed.