HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rychard Sobun
Applicant
-and-
The Floor Shop and Andrew Cooper
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Sobun v. The Floor Shop
appearances
Rychard Sobun, Applicant ) Self-represented
The Floor Shop and Andrew Cooper, ) Self-represented
Respondents )
1The applicant is 62 years-old and worked on sub-contract as a floor installer for the organization respondent for several years. Andrew Cooper (the “respondent Cooper”) is the general manager of the organization respondent.
2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 12, 2010, which alleged that the respondents discriminated against him with respect to employment because of his age.
3Specifically, he alleged that on December 23, 2009, when he was on the premises of the organization respondent, the respondent Cooper told him three times that he was too old to work for the organization respondent. He further alleged that when he complained to Peter Schultz, the owner of the organization respondent, about the discriminatory comment immediately afterwards, Mr. Schultz rolled his eyes and walked away.
4The respondents filed a Response on August 6, 2010, which denied the allegation of discrimination.
5Specifically, they stated that in December 2009, when the applicant’s partner refused to continue working with him, the respondent Cooper informed the applicant that installs available to him alone would be few and far between, and they never heard from the applicant again. The respondents denied that the respondent Cooper made a discriminatory comment to the applicant relating to his age. They also stated that the respondent Cooper was in Florida from December 17-26, 2009, which is proof that he could not have had a conversation with the applicant on December 23, 2009.
6The applicant filed a Reply on August 24, 2010, which stated that he made a mistake in his Application with respect to the date that the respondent Cooper made the discriminatory comment to him. He stated that the comment was made on the last day that he was on the premises of the organization respondent. He stated that he put down December 23, 2009 in his Application because his calendar shows that is when his last job was booked for. He stated that he now remembers that the December 23, 2009 job booking was cancelled.
7The Reply did not specify when the respondent Cooper made the alleged discriminatory comment, but suggested that it was prior to December 23, 2009.
8A hearing took place on July 19, 2011. I heard the evidence of three witnesses: the applicant, the respondent Cooper, and Mr. Schultz. I also admitted into evidence the respondent Cooper’s electronic flight itinerary for the December 17-26, 2009 trip that he made to Florida, and a credit card receipt of a purchase that he made while in Florida.
9In his testimony, the applicant stated the respondent Cooper made the discriminatory comment to him, and he complained to Mr. Schultz about the comment, on December 23, 2009. When he was confronted by the fact that there is documentary evidence that the respondent Cooper was in Florida on December 23, 2009, the applicant stated that the comment must have been made on December 16 or 17, 2009.
10The applicant stated that he is confused about the date because his brother was extremely ill and passed away around that time. He stated that he also told his former work partner about the comment that same evening. When asked why he did not call his former work partner as a witness, he stated that he did not want to get him involved.
11In his testimony, the respondent Cooper denied making a discriminatory comment to the applicant, and stated that he was in Florida from December 17-26, 2009. Mr. Schultz also denied that the applicant complained to him about such a comment.
12The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.
13This is a straight credibility case. In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) 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 demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]
14The respondent Cooper and Mr. Schultz provided testimony that was forthright, straightforward, and consistent. I have no reason to doubt their credibility. By contrast, the applicant’s evidence was inconsistent and shifting about the date that the alleged discriminatory comment was made. Furthermore, he could have called a key witness who allegedly would have supported his testimony, but he decided not to do so. In these circumstances, I find that the applicant’s allegation of discrimination was not credible and that the applicant has not satisfied his onus to establish that a violation of the Code occurred.
15The Application is dismissed.
Dated at Toronto, this 3rd day of October, 2011.
”signed by”__________
Ken Bhattacharjee
Vice-chair