Nyonzima v. Idlewyld Manor, 2011 HRTO 1517

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronique Nyonzima

Applicant

-and-

Idlewyld Manor

Respondent

-and-

Service Employees’ International Union Local 1 Canada

Intervenor

A N D B E T W E E N:

Veronique Nyonzima

Applicant

-and-

Cindy Perrodou

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: August 15, 2011

Citation: 2011 HRTO 1517

Indexed as: Nyonzima v. Idlewyld Manor

APPEARANCES

Veronique Nyonzima, Applicant ) Ayoob Khan, Representative

Idlewyld Manor and Cindy Perrodou ) Jane M. Gooding, Counsel

Service Employees’ International Union ) Jesse Kugler, Counsel

Local 1 Canada, Intervenor )

1These Applications were filed August 5, 2009, and November 9, 2009, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and are being heard together.

2The purpose of this Interim Decision is to address the Request for Order During Proceedings (“Request”) filed by the respondents on June 17, 2011. The Request seeks the dismissal of the Applications on the basis of abuse of process. It is the respondents’ postion that the Will Say Statements (“Statement(s)”) of Rebecca Robinson and Kathleen Kinnear submitted to the Tribunal and the respondents by the applicant have been fabricated. The respondents submit that the provision of such Statements has undermined the efficiency and integrity of the Tribunal’s process and that to proceed would violate the principles of fundamental justice and constitute an abuse of the Tribunal’s process.

3In support of the Request the respondents filed affidavits from Rebecca Robinson and Kathleen Kinnear. In support of the Response to the Request the applicant filed an affidavit from Glen E. Morrison.

4On June 28, 2011, the Tribunal issued a Case Assessment Direction indicating that at the outset of the hearing scheduled for July 5, 2011, the parties should be prepared to address the Request, including cross-examination of all affiants, namely, Ms. Robinson, Ms. Kinnear and Mr. Morrison.

5The Request was dealt with at the commencement of the hearing as a preliminary matter. I heard from the applicant and the three affiants, Ms. Robinson, Ms. Kinnear and Mr. Morrison. Following submissions from the parties, the hearing was adjourned so that I could deliberate on the Request. My decision follows.

BACKGROUND

6Idlewyld Manor (“Idlewyld”) is a long-term care facility located on the West Mountain of Hamilton. It is the home of 192 residents in six resident home areas. Idlewyld has a staffing compliment of 150 employees who are represented by the Ontario Nurses Association and the Intervenor.

7The personal respondent, Ms. Perrodou, is the Director of Nursing for Idlewyld. She is responsible for the overall operation of the Nursing Department which consists of Registered Nurses, RPNs and Healthcare Aides.

8The applicant commenced her employment at Idlewyld in August 2007 as a part-time Healthcare Aide and continues to be employed in that position. She alleges that she faced discrimination in employment at Idlewyld owing to her race, colour, place of origin and ethnic origin and reprisal. The allegations are the basis of these Applications.

9On or about March 28, 2011, the Tribunal and the respondents received the applicant’s Witness List and Will Say Statements. The Index attached to the Will Say Statements lists the Will Say Statements of six witnesses, including a “Self drafted witness statement of Rebecca Robinson” and a “Self Drafted witness statement of Cathy Kinnedr”.

Mr. Morrison’s testimony

10The applicant is currently represented by Mr. Ayoob Khan, a licensed paralegal, however, she was initially represented by Mr. Morrison who is also a licensed paralegal.

11Mr. Morrison testified that on November 2, 2009, an envelope was delivered by ordinary post to his office in Mississauga. He explained that the envelope contained a typewritten Statement of two pages beginning: “My name is Cathy kinnedr (sic) and I am writing this letter in support of Susan Nyonzima who works with me at Idlewyld Manor.” Typewritten at the end of the letter is “Signed by Cathy Kinnedr”. There is in fact no signature. Mr. Morrison indicated that he had never communicated with Ms. Kinnear either prior to receiving the Statement or prior to filing it with the Tribunal as a self-drafted witness Statement. Mr. Morrison stated that he did not retain the envelope containing the Statement although he recalled that the envelope did not bear a return address.

12Mr. Morrison testified that on January 28, 2010, an envelope was delivered to his office by priority post. He indicated that the envelope contained a typewritten Statement of one page beginning: “Hello my name is Rebbecca (sic) Robinson and I work at idlyewd (sic) Manor…”. The concluding sentence reads: “We have treated Susan in a very inhumane way” following which is a signature, supposedly that of the author. Mr. Morrison indicated that he had never communicated with Ms. Robinson either prior to receiving the letter or prior to filing it with the Tribunal as a self-drafted witness Statement. Mr. Morrison produced the envelope containing the Statement. It does not bear a return address, however, it does have a stamp identifying the date of posting as January 27, 2010, and the post office at which the letter was posted as Rosedale Post Office, Hamilton ON L8K 1W0.

13Mr. Morrison testified that he reviewed each of the Statements, paragraph by paragraph, with the applicant at his office within days after receiving them. When asked by respondents’ counsel whether the applicant had recognized that Ms. Kinnear’s name was misspelled in her putative Statement, Mr. Morrison testified that she did not mention anything so she must have thought Ms. Kinnear’s name was correctly spelled.

14Mr. Morrison was directed to provide the Tribunal with the original Statement he received purportedly from Ms. Robinson. The original statement he provided was a photocopied document bearing a photocopied signature.

Ms. Robinson’s testimony

15Ms. Robinson is a Health Care Aide at Idlewyld who, during the period in question, worked with the applicant in the same home area. She testified that her given name is Rebecca with one “b” and not Rebbecca with two “b”s as written in her putative Statement. She testified that she did not draft the Statement, nor did she help draft the Statement. Ms. Robinson testified that the Statement is not reflective or a summary of any discussion she had with the applicant or her representative. She indicated that she has never spoken to the applicant or her representative about the Statement. She testified that she saw the Statement for the first time on June 7, 2011, when it was given to her for review by her Executive Director, Maureen Goodram.

16Ms. Robinson indicated that the signature appearing at the bottom of the Statement is not her signature. She testified that the comments in the Statement are false, that they do not reflect her experience at Idlewyld, that she does not endorse the comments and would not be repeating them at the hearing.

17Ms. Robinson pointed out that the names of the many co-workers identified in the Statement are spelled wrong, including the name of the personal respondent, Ms. Perrodou. She testified that if she had given this Statement, the names of her co-workers would have been spelled correctly, as would her own name.

18Ms. Robinson testified that she does not live near the Rosedale Post Office and she has never used that post office. She indicated that she never knew that the applicant had made a human rights complaint or that Mr. Morrison was the applicant’s representative until she was asked to review the Statement by the respondents on June 7, 2011.

Ms. Kinnear’s testimony

19Kathleen (Kathy) Kinnear is a Health Care Aide at Idlewyld. She testified that her given name starts with a “K” and not a “C” as written in the Statement purportedly drafted by her. As well, she pointed out that her family name is “Kinnear” and not “Kinnedr” as written in the Statement. Ms. Kinnear testified that she did not draft the Statement and that she saw it for the first time on June 7, 2011.

20Ms. Kinnear testified that it has been over three years since she had worked in the same home area as the applicant. She indicated that she has no knowledge of how the applicant had been treated or any of the events described in the Statement. She explained that she did not even know the applicant’s surname until she saw the Statement.

21Ms. Kinnear testified that she never talked to the applicant about her Applications. She also testified that she never knew that the applicant had made a human rights complaint or that Mr. Morrison was representing her until she was asked to review the Statement by the respondents in June 2011.

22She testified that she does not know many of the co-workers identified in the Statement and to the extent that she was familiar with the named co-workers, she testified that their names are spelled wrong. She indicated that if she had drafted a statement the names of her co-workers would have been spelled correctly, as would her own name.

The applicant’s testimony

23The applicant testified with the assistance of a French interpreter. Although the applicant is fluent in English and chose to complete her Applications in English, she chose to testify in French, her first language. There was no indication at the hearing that the use of a translator caused the applicant to experience any difficulties in understanding the questions asked of her or in the provision of her evidence.

24The applicant was asked to spell Kathleen Kinnear’s name. She spelled her first name as “Cathy” with a “C”. She then proceeded to spell Ms. Kinnear’s surname. She spelled it “Kint”. In a second attempt she spelt it “Kiniy”. She refused to make any further attempts at spelling Ms. Kinnear’s surname. The applicant testified that “Kiniy” is how she would spell Ms. Kinnear’s surname in French and that she did not know how to spell it in English.

25After pointing out to the applicant that Ms. Kinnear spells her first name with a “K” and not a “C”, and after further noting that the author of the Statement allegedly drafted by Ms. Kinnear spells Ms. Kinnear’s first name with a “C”, respondents’ counsel asked the applicant if she would agree that someone drafting a statement such as the one in question would spell his/her own name correctly. The applicant refused to answer the question. When I directed her to provide an answer she again refused to answer. When I once again directed her to provide an answer she replied: “It depends on the person, if they are rested or in a hurry.”

26Respondents’ counsel directed the applicant to her Response to the Request, completed by Mr. Khan, wherein Ms. Kinnear’s putative Statement is described as “self drafted statement of Cathy Kinnedr as she is known to the Applicant”. When asked by respondents’ counsel if this is how she knows Ms. Kinnear, the applicant remained silent.

27When asked by respondents’ counsel, “Isn’t it more likely for someone drafting a statement for someone else to spell the name wrong?” the applicant was evasive in answering, finally replying, “It depends on the person”.

28When asked by respondents’ counsel whether it was her position that Ms. Kinnear wrote the putative Statement, the applicant responded, “I don’t know anything.” When respondents’ counsel repeated her question, the applicant again replied, “I don’t know anything”.

29Early in her testimony, the applicant testified that she had never seen the Statements prior to this hearing and therefore was in no position to comment on them. She also testified that Mr. Morrison had never called her to review the Statements at his office. Later in her testimony, having been pressed by respondents’ counsel, she conceded that in fact Mr. Morrison did call her and that they reviewed the Statements at his office several months prior to this hearing.

30Respondent’s counsel told the applicant that Ms. Robinson would be testifying that she did not write the Statement attributed to her and then asked the applicant if she had any comment. The applicant responded, “No comment.”

31The applicant testified that the Rosedale Post Office is the closest post office to her residence. She did not dispute that Ms. Robinson’s putative Statement was mailed from the Rosedale Post Office; however, she volunteered, “I’m not going to change my evidence. I did not send the letter”.

ANALYSIS

32I am satisfied that the Statements provided by the applicant to the Tribunal and held out as being self drafted by Ms. Kinnear and Ms. Robinson were not drafted by those individuals. Ms. Kinnear and Ms. Robinson testified honestly and in a straightforward manner without contradiction. I accept that Ms. Kinnear had not been working in the applicant’s home area for the past three years and therefore would not have been privy to the events outlined in her putative Statement or to the mistreatment the applicant allegedly faced in her home area. I find it highly unlikely that Ms. Kinnear and Ms. Robinson would have misspelled their own names if they were to have drafted will say statements such as the ones in question.

33I am satisfied that the Statements were drafted by the same person. In both Statements, a number of Idlewyld employees are named, and there is a consistent pattern in both Statements of names being misspelled, including those of Ms. Kinnear and Ms. Robinson. In both Statements Idlewyld is mistakenly referred to as “Idlyewd Manor”. There is a pattern in both Statements of using lower case letters when upper case would be appropriate. For example, in Ms. Robinson’s Statement one sees “idlyewd Manor”, “idleywd manor” and “Nancy cook”. In Ms. Kinnear’s Statement, one sees “susan” on several occasions, “sandy” (should read “Cindy”) and “Cathy kinnedr”. These patterns, common to both Statements, lead me to conclude that the Statements have the same author.

34I find that the author of the Statements is the applicant. As noted earlier, Ms. Kinnear’s given name is Kathy. When asked to spell Ms. Kinnear’s given name, the applicant spelt “Cathy”. When asked to spell her surname, the applicant on two occasions misspelled it. Ms. Kinnear’s putative Statement opens: “My name is Cathy kinnedr…”. In my view, on a balance of probabilities, Ms. Kinnear’s putative Statement was written by the applicant.

35I am satisfied that Ms. Kinnear and Ms. Robinson did not know Mr. Morrison and did not know that the applicant was being represented by him. Both Ms. Robinson and Ms. Kinnear testified in a forthright manner that they had not spoken with either the applicant or her then representative, Mr. Morrison, about the Applications. Mr. Morrison testified that he had never communicated with either Ms. Robinson or Ms. Kinnear prior to receiving the Statements or prior to filing them with the Tribunal as self drafted witness Statements. It follows therefore that Ms. Robinson and Ms. Kinnear could not have posted the putative Statements to Mr. Morrison. The fact that Ms. Robinson’s Statement was posted in an envelope addressed to Mr. Morrison at the Rosedale Post Office, the post office nearest to the applicant’s home, leads me to conclude that the Statement was created by the applicant and posted by the applicant.

36Ms. Kinnear and Ms. Robinson testified that they never saw the Applications. I accept that Ms. Kinnear was never privy to the events outlined in her putative Statement. Ms. Robinson denies that the events outlined in her putative Statement ever occurred. In my view, the Statements would have had to be drafted by someone who was very intimate with the applicant’s allegations, since the Statements mirror with uncanny consistency the many allegations raised by the applicant in her Applications. The person who had the most knowledge of the applicant’s allegations and who would gain the greatest benefit from the Statements was the applicant herself.

37This case requires me to assess the credibility of the applicant, who has testified that she did not draft the Statements and that she did not mail them to Mr. Morrison. In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and particularly the following comments at pp. 356-357:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour 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.

38As demonstrated earlier, the applicant evaded answering questions. She was often non-responsive to questions. She was often contradictory. In short, she was not a credible witness. In my view her evidence does not accord “with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

39In summary, I find that the applicant drafted the Statements without any participation by Ms. Robinson or Ms. Kinnear and mailed them to Mr. Morrison, who filed them with the Tribunal as self-drafted witness statements. To be clear, in this regard, I am not making a finding that Mr. Morrison was aware that the Statements were not drafted by Ms. Robinson or Ms. Kinnear or that the applicant drafted them.

ABUSE OF PROCESS

40Section 23(1) of the Statutory Powers Procedure Act, R,S.O. 1990, c. S.22, as amended, gives the Tribunal the power to “prevent abuse of process”. An abuse of process is “something that would shock the public, conduct which would violate those principles of fundamental justice which underlie the community’s sense of fair play and decency or is vexatious or oppressive in character.” Patel v. Minto Developments (No. 2) (1996), 1996 CanLII 20055 (ON HRT), 26 C.H.R.R. D/444 (Ont. Bd. Inq.). See also Jeffrey v. Dofasco, (2001), 2001 CanLII 26216 (ON HRT), 9 C.C.E.L. (3d) 133, 39 C.H.R.R. 500.

41The Tribunal’s Rule 1.1 provides:

These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.

42The Tribunal’s Rule 1.7(v.1) states that the Tribunal may:

make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of the participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants.

43In Giguere v. Popeye Restaurant, 2008 HRTO 2, the Tribunal found that the applicant had attempted to have a friend give false testimony to the Tribunal in exchange for $2,000 of the financial award she was expecting to receive upon the completion of the proceedings. In response the Tribunal denied the applicant all damages. The Tribunal stated that the applicant’s deliberate attempt to mislead the Tribunal was “one of the gravest abuses a party can commit. It undermines the Tribunal’s ability to determine complaints based upon the facts and true merits of the case.” (at para. 80).

44In Quattrochi v. Boz Electric Supply, 2009 HRTO 1082, the Tribunal considered the respondent’s allegation that the applicant had made false statements in his pleadings. The applicant had made differing claims about the date of termination of his employment and the amount of termination pay he received in his application and reply in comparison with his oral testimony at the hearing. The Tribunal found that these false statements were an abuse of process designed to mislead the Tribunal and maximize his claim for lost income. As the hearing had already been completed, the Tribunal discounted the applicant’s $5,000 award to $3,500 and ordered the respondent to allocate the remaining $1,500 to a charity.

45In File No. TSL-26416-SA, a decision of the Ontario Rental Tribunal, the Tribunal found that the drafting of the witness statements by the landlord and effectively forcing the tenants to sign them was a form of fabricating evidence and an abuse of process that justified the dismissal of the landlord’s application. In addition, the Tribunal ordered the landlord to pay costs of the proceedings in favour of the tenant in the amount of $500.00.

46In my view, the applicant engaged in a scheme to subvert and abuse the Tribunal’s process by fabricating the two Statements in order to bolster her case. This is an extremely serious breach of the Tribunal’s process. It undermines the Tribunal’s ability to determine applications based upon the facts and true merits of a case.

47In Giguere v. Popeye, supra, the then Chair of the Tribunal, Michael Gottheil, addressed the issue of abuse of process with the following remarks:

A complainant who engages in this type of behaviour also demeans the human rights process and the Code itself. Human rights statutes are quasi-constitutional legislation, and the rights protected under the Code are rights of critical importance in our society. A human rights complaint, which seeks to enforce those critically important rights, is a serious matter. It is a serious matter for the complainant who believes that her rights have been infringed. It is a serious matter for a respondent who has been accused of discrimination. And it is a serious matter for society, because the violation of human rights is a public wrong in addition to an individual wrong. A human rights complaint should not be used as a kind of “get rich” scheme, or a process where a party can employ any strategy to “win”.

48What is the appropriate response to this abuse of process? In Giguere v. Popeye and Quattroci v. Boz Electric Supply, supra, the abuses came to light during the course of the hearing on the merits. In both cases the Tribunal found that the appropriate response to the abuse of process was to deny the successful applicants all or a portion of the damage awards to which they were otherwise entitled. In the present case the abuse of process has come to light prior to the hearing on the merits. Consequently the remedies in Giguere and Quattroci are neither available nor appropriate.

49As was ordered by the Rental Housing Tribunal in File No. TSL-26416-SA (supra), a cost order in favour of the respondents might have been an appropriate response to this abuse of process. I am of the view, however, that the Tribunal does not have the authority to award costs (see for example, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; Farris v. Staubach Ontario Inc., 2011 HRTO 979; Clennon v. Toronto East General Hospital, 2010 HRTO 506; and M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174).

50To respond to the abuse of process by simply ruling that the applicant cannot use the Statements at the hearing on the merits is of little consequence since there are no real witnesses behind them in any event.

51In the circumstances, I find it to be neither fair nor just to require the respondents to continue to participate in this process in the face of the applicant’s conduct. I find that the appropriate response to the applicant’s abuse of process is the dismissal of the Applications.

52For these reasons the Request seeking the dismissal of the Applications for abuse of process is granted and the Applications are dismissed.