HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kamelia Madjova
Applicant
-and-
City of Toronto (Parks, Forestry and Recreation Division)
and Mary Elmassarany
Respondents
case Resolution Conference DECISION
Adjudicator: David Muir
Indexed as: Madjova v. Toronto (City)
AppearanceS BY
Kamelia Madjova, Applicant ) Self-represented
City of Toronto (Parks, Forestry and ) Meredith Gayda, Counsel Recreation Division and Mary Elmassarany, Respondents ) )
1This is an application filed July 22, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant alleges that her right to be free from discrimination in employment on the basis of her age, sex, ancestry, ethnic origin and/or place of origin were infringed by the respondent City and one of its employees. The applicant also alleges that she was reprised against for asserting her rights under the Code.
3A Case Resolution Conference (CRC or hearing) was held in accordance with the expectations expressed in the Code and the Tribunal’s Rules that section 53(3) Applications be adjudicated in a highly expeditious manner. Despite these expectations, the respondents were required to call a great number of witnesses to respond to the allegations of the applicant. Although the complaint only identifies a handful of individuals who were implicated in the applicant’s allegations, during the hearing the number of individuals identified by the applicant as being participants in the alleged discrimination grew, along with the expansion and elaboration of the allegations being made. In the end, the respondents called 13 witnesses. The respondents’ witnesses were all employees or former employees of the corporate respondent with whom the applicant interacted during her employment with the corporate respondent. I also heard the evidence of the individual respondent, the applicant and two witnesses called in support of the applicant’s case. The hearing took place over 8 days in 2009, 2010 and 2011. The parties agreed to make final submissions in writing. The parties also agreed that it would be appropriate to bifurcate the proceeding dealing with liability first and if necessary remedy.
4There was an order excluding witnesses made at the outset of the hearing. All witnesses were affirmed. With respect to many of the witnesses, I directed that the respondents provide detailed willsays for them with a view to shortening their evidence. These witnesses adopted their willsays as their evidence subject to the questions that were asked of them at the hearing.
5For the reasons which follow I have concluded that the Application should be dismissed because there is insufficient evidence to establish that the respondents have violated the Code in any respect. This result flows from my conclusions with respect to the credibility of the applicant. For the reasons set out below I have determined that the problems with the applicant’s evidence are so numerous and profound that I am entirely unable to accept her evidence as a credible description of events in this workplace.
6At the conclusion of their submissions the respondents requested that in the event that the Application is dismissed that the individual respondent be removed from the Application. The respondents state that decisions of the Tribunal are published and searchable online. In the event that the Application is dismissed, the respondents submit that the individual respondent should not have to suffer the indignity of having, for example, a Google search for her name by friends or prospective employers pull up the Tribunal’s Decision as it cannot be expected that such individuals will necessarily read the full decision to determine what the final outcome was. The applicant took no position on the issue.
7I am not satisfied that the granting of such a request is appropriate notwithstanding my conclusions that this Application should be dismissed in its entirety. While not unsympathetic to the respondents’ request, there is in the end nothing particularly unique about this case and nothing that would trump the public interest in open justice and freedom of expression. (See C.M. v. York Region District School Board, 2009 HRTO 735).
Background
8The applicant was employed by the respondent City in a number of capacities but primarily as an Aquatic Instructor, Swim Instructor and Lifeguard at Dennis R. Timbrell pool (“DRT”), Flemingdon Pool and Don Mills CI pool (“Don Mills”), public swimming pools operated by the respondent City, from January 2005 to March 2008.
9The applicant was born in Bulgaria and was a competitive swimmer as a young adult. She is also a trained swim instructor and life guard. She was 51 years old when she filed the complaint underlying this Application in May 2008.
10The applicant alleges that she was subject to harassment by many of her work colleagues. She also alleges that she was subject to differential treatment and or reprisal in the form of disadvantageous shift scheduling and being denied training opportunities. She also alleges that the harassment created a poisoned work environment for her.
11The individual respondent and most of the individuals with whom the applicant worked were somewhat younger than the applicant. Evidence with respect to their precise ages was not tendered but it is evident that most, but not all pool staff, are in their 20s and are part-time employees with other endeavours underway such as college or university educations. However, the applicant was not the oldest person employed by the respondent City in these pools, nor was she the only person with an East European background.
12The individuals identified by the applicant as being primarily responsible for the discriminatory conduct include the following:
a. Mary Elmaassarany, the individual respondent, during the applicant’s tenure of employment was employed as an instructor, life guard and pool manager.
b. Sana Saadati was employed as an instructor, life guard and pool manager during the period of the applicant’s employment. She no longer works for the City.
c. Kevin Quan is employed with the City as a pool manager and head instructor. At the material times he was employed as an instructor, lifeguard and pool manager at both DRT and another city operated pool.
d. Chris Evans is a current employee of the City as a pool manager and a Pool Activity Supervisor on a part time basis. He has a full-time position elsewhere with the City.
e. Andrea Chow was and remains a Recreationist at DRT. She was in the first level of the applicant’s “management” at the material times.
f. Meaghan Tanaka has been employed as a pool manager, lifeguard and instructor, since the Applicant’s employment with the respondent City began.
13Other individuals not identified in the complaint played some role in the allegations of the applicant:
a. Ron Ferguson has been employed as an Aquatics Supervisor since before the applicant began her employment at the City. As a senior manager of the City he played some role in the City’s response to the applicant’s complaints.
b. Rosemarie Wodchis was an acting Aquatics Supervisor at the time that she became involved in investigating some of the applicant’s complaints.
14A note about the management structure of this workplace. Although several of the individuals are referred to as pool managers, the position is not truly managerial in the usual sense but can be thought of as a lead hand – responsible for directing work, ensuring that safety protocols are followed and being responsible for the pool when on duty as a pool manager. These positions were not permanent assignments usually so, for example, an individual might be a lifeguard for a period of time and a pool manager for another period of time during the same day. The first level of supervisor is the Pool Activity Supervisors (PAS) and then Recreationist who in turn reports to an Aquatics Supervisor.
15The particulars of the applicant’s general allegations of discrimination were set out in the complaint as follows:
a. In April 2005, while speaking with Mary Elmaassarany, a pool manager, Ms. Elmassarany told the applicant that she hated old people, especially women and said that “they don't all have to be old, if you know what I mean.”
b. In June 2005, Sana Saadati, a pool manager, assaulted the applicant physically and verbally and make vexatious remarks to another Manager about the applicant's body.
c. On several occasions during the spring and summer of 2005, Ms Tanaka, a pool manager, made offensive remarks about people of east European descent.
d. During the summer of 2005, Ms. Elmaassarany repeatedly humiliated and threatened the applicant in front of co-workers and public.
e. At end of August and on September 21, 2005 the applicant reported some of these incidents to Ms. Chow. When the applicant did so, Ms. Chow threatened to move the applicant. In the Fall of 2005 Ms. Chow gave several of the applicant’s working shifts to younger staff with less seniority.
f. In the winter of 2006, Mr. Quan, a pool manager, made humiliating comments about older women while on the pool deck.
g. In April 2006, Ms. Elmaassarany and Ms. Saadati changed the applicant’s working schedule without advising her and became very hostile when the applicant raised the issue with Ms. Chow.
h. In July 2006, Mr. Quan made discriminatory comments about the applicant while working on the deck.
i. In April 2007, Ms Elmaassarany said to the applicant " Are you too slow? Or am I too fast for you?
j. During the summer of 2007, several unidentified individuals at Flemingdon Pool repeatedly remarked that they hated older women.
k. During the summer of 2007, Ms Tanaka made discriminatory remarks about people of east European descent.
l. City managers very often ignored the applicant’s qualifications and seniority and failed to provide her with a fair number of shifts, instead giving shifts to younger and less senior staff.
m. The applicant was not provided with the same access to training. Reference was made to Ms. Evans' organizing aquafit training but the applicant was told by Ms. Chow that there was no such training.
n. On October 3, 2007, the applicant was detained in Ms. Elmaassarany’s office and verbally and physically assaulted.
o. On November 27, 2007, the applicant was told that she would not be returning to work at the Don Mills Pool and was not given a reason
p. In December 2007, the applicant was refused instructor training shifts. These were given to younger staff with less seniority and qualifications.
q. From January 7 to February 13, 2008, Ms. Elmaassarany and Ms Tanaka continued to harass the applicant. On January 13, 2008, Ms Tanaka kicked the door of the shower the applicant was using.
r. Ms Elmaassarany told the applicant that if she complained about the harassment she would tell the applicant’s superiors that she was guarding with her eyes closed.
16A statement of additional facts was filed by the Applicant. It included a great number of entirely new allegations, which, in oral rulings, I determined were not properly part of the Application because they had not been included in the complaint. The applicant also alleged at the hearing and in her submissions that the respondent did not properly investigate her complaints of harassment and discrimination. This allegation is not made in the complaint except potentially in reference to the allegation that the applicant informed Ms. Chow “of some of these incidents”. The evidence and argument on this issue is at the end of the day, irrelevant. That there was a significant level of conflict between the applicant and her co-workers is beyond dispute. However, as indicated, the applicant did not allege in the complaint that the respondent had been asked to and failed to investigate a human rights complaint, except to the extent that the complaint to Ms. Chow in September 2005 might be said to have raised Code issues. Whether or not City management investigated subsequent complaints in 2006, 2007 and 2008 are not matters that I can deal with because there are no allegations in the complaint to this effect. That said, it is clear that the respondent City did make efforts to resolve the workplace disputes. Because it is not relevant to the issues in this case I will not consider in any detail the various investigations conducted by the respondent City.
The Legal Framework
17The relevant provisions of the Code are ss. 5 and 8, which read 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.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
18The Code prohibits discrimination in various social areas, including employment, goods, services, facilities, and contracts and reprisals for asserting Code rights. The circumstances that can potentially give rise to a claim of discrimination are potentially extensive. However, the Tribunal’s jurisdiction to evaluate events in these social areas is relatively narrow. As has been stated in many decisions, the Tribunal does not have the power to evaluate general claims of unfairness (see, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27). A successful claim of discrimination or harassment requires an applicant to show that one of the prohibited grounds was a factor in disadvantage experienced by the applicant. A successful claim of reprisal requires an applicant to show that it was the intention of a respondent to reprise against him or her for asserting Code rights. Discrimination or reprisal need not be the only or even the principal factor in a respondent’s decision or actions, but an applicant must show that it was one of the factors.
19The burden of proving that a prohibited ground or an intention to reprise was a factor in a respondent’s decision or action lies on an applicant. An applicant must establish a connection between the disadvantage and the ground on a balance of probabilities. In considering the onus on the parties in a proceeding such as this, I found the following discussion in Whale v Keele North Recycling, 2011 HRTO 1724 helpful:
Demonstrative evidence of discrimination is not necessary to establish a breach of the Code. Nor does an applicant need to have a witness to discriminatory conduct. The applicant may rely on circumstantial evidence, which may include evidence concerning any relevant circumstances, including evidence of actions or omissions on the part of the respondent, that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to support such an inference. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence.
The following factors assist in the assessment of reliability and credibility and the application of the ‘preponderance of the probabilities’ test:
the internal consistency or inconsistency of evidence
the witness’s ability and/or capacity to apprehend and recollect
the witness’s opportunity and/or inclination to tailor evidence
the witness’s opportunity and/or inclination to embellish evidence
the existence of corroborative and/or confirmatory evidence
the motives of the witnesses and/or their relationship with the parties
the failure to call or produce material evidence
20For all of the reasons set out below, I have concluded that the applicant has failed to lead sufficient credible evidence to establish a connection between what she claims to have experienced in the workplace and any ground of discrimination prohibited in the Code. For the most part what the applicant described in her evidence was a significant level of workplace conflict and discord with her at the centre of it. What is lacking is credible evidence of a linkage between the conflict and discord in the workplace to a protected Code ground.
21In coming to these conclusions I am mindful of the potential that a number of disparate and apparently unconnected incidents can, taken together, be found to be evidence of differential treatment, where the evidence supports the conclusion that a factor linking the experience of the applicant to differential treatment was a prohibited ground of discrimination such as age or sex. This is often the case where there is little or no direct evidence of Code prohibited discrimination. In such circumstances the Tribunal will be required to consider whether or not it is a reasonable inference that the behaviour of a respondent was informed, in whole or in part, by Code prohibited considerations. However, the onus remains with the applicant to establish discrimination on a balance of probabilities. Where it is submitted that an inference must be drawn, the applicant must establish that the inference is the most reasonable one and that the circumstances are inconsistent with another reasonable inference.
22Moreover, it is not enough to state that I am a member of a protected group and I believe that I have experienced differential treatment because of it. The Code, as indicated above, is concerned with substantive discrimination based on one or more of the prohibited grounds. In the context of a workplace dispute such as this one, the Code, does not police workplace conflict except to the extent that such conflict engages Code grounds.
Credibility
23As indicated above this Application fails because there is insufficient credible direct or circumstantial evidence to support the applicant’s allegations. The allegations of direct discrimination, such as the allegation that shifts were taken from the applicant and given to others more junior than the applicant, are not supported by any evidence. More importantly, the credibility issues raised in the applicant’s evidence are so profound that I am unable to accept the applicant’s evidence regarding the conflict in this workplace. The result is that I am unable to conclude that a reasonable inference can be drawn that the workplace conflict experienced by the applicant and those she worked with was informed in whole or in part by the Code grounds she has alleged.
24In considering the credibility of evidence tendered by the parties, the Tribunal has often relied on the following statement of the law from Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A) at p. 356-57:
…the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted or the circumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time…
If a trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. 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…A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
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 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 a 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. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may be easily self-direction of a dangerous kind.
25Perhaps the most significant problem with the applicant’s credibility flows from the extravagance of some of her claims, particularly as the allegations became more elaborate and extreme over time. In addition to the concern that the applicant was attempting to embellish her allegations to buttress her case, in several instances the more extreme the applicant’s allegations became the less believable they also became. A comparison of the allegations as they were made in the complaint and their ultimate iteration in her evidence is revealing.
26Amongst the applicant’s more serious allegations is one which implicated a number of initially unidentified staff. As set out in the complaint it was described as follows:
During the summer of 2007 several unidentified individuals at Flemingdon Pool repeatedly remarked that they hated older women.
27The applicant’s evidence at the hearing was much more elaborate. She testified that before, after and during all of the aquafit classes during the summer of 2007 all staff present would run on the pool deck and around the pool, waving their arms in the air and shout “I hate old women! I hate aquafit!”. The applicant in her evidence endorsed the respondents’ characterization of her description as a “screamfest”. I note that the description of these alleged incidents in the Statement of Additional Facts bears little relation to the evidence of the applicant. Similarly, in a draft email, which the applicant claims to have sent to Ms Chow in July 2007, she describes this incident as “some of our staff tell me repeatedly that they hate aquafitness and they hate the old ladies that are participating in the program”. It is troubling that from the vague elaboration of this allegation in the complaint and the Statement of Additional Facts, such an extraordinary allegation can emerge at the hearing. The allegation that staff repeatedly remarked to the applicant is simply not the same thing as her evidence that a number of staff engaged in repeated “screamfests” in public on the pool deck. Moreover, I find that the unfolding of such a scene repeatedly over several weeks in a public pool in the presence of the patrons allegedly the subject of the abuse seems at least improbable.
28Similarly, the complaint contains the following allegation:
During the summer of 2005 Ms. Elmaassarany repeatedly humiliated and threatened the applicant in front of co-workers and public.
29At the hearing the applicant testified that the individual respondent while on duty and sitting in the lifeguard chair, spread her legs wide over the chair’s handrails, stared at the Applicant and clapped her hands between her spread legs in a sexually suggestive manner for minutes at a time. The applicant’s daughter claimed to witness this behaviour on at least one occasion and added a further embellishment, including continual, physical hip thrusting, by the individual respondent allegedly for minutes at a time. The applicant also stated in her submissions, but did not testify to this effect, that while engaged in this behaviour the individual respondent would throw things at her.
30The applicant in her submissions claims that the respondent city’s records support the fact that this kind of behaviour occurred and she raised it with them. The applicant significantly exaggerates the evidence. The contemporaneous notes of a meeting with pool management notes that the applicant complained about the way staff sat in the lifeguard chair, but this reference bears little relation to what the applicant alleges was happening and indeed is more consistent with what the individual respondent states was the applicant’s complaint – that staff often slouched in the life guard chair. This complaint made to management, as opposed to what the applicant states in her evidence was occurring, is more like much of what the applicant articulated in her evidence – her concerns with the alleged unprofessional conduct of her work colleagues. I also find that that it is unlikely that the kind of conduct alleged by the applicant repeatedly engaged in by the individual respondent for minutes at a time for several years would not have been noticed by someone and dealt with. The fact that no one else noticed this behaviour taking place in a public place by a person charged with the safety of the pool patrons stretches credulity. The fact that this extravagant allegation emerged from the vague assertion in the complaint makes it even more incredible in my view. In this regard, I do not accept the evidence of the applicant or her daughter who also claimed to witness this behaviour on a number of occasions.
31At the hearing, the applicant made several other serious allegations, which are not hinted at in the complaint. For example, an allegation made by the applicant at the hearing that was not alluded to in the complaint was that Sana Saadati accosted a room full of frightened, totally naked women, demanding that they show her their identification and their bathing suits. This allegation is not contained in the Statement of Additional Facts. Again, that such outrageous behaviour would occur makes no sense. The fact that such an event could occur and never come to light in some other way stretches credulity. The fact that the applicant neglected to make this allegation prior to the hearing is difficult to comprehend as well.
32Similarly, the applicant alleged for the first time in her evidence at the hearing that Mr. Quan assaulted her when she was given her a performance appraisal. This allegation is not contained in the complaint, nor is it included in the lengthy Statement of Additional Facts filed by the applicant in anticipation of this hearing. The applicant also alleged for the first time at the hearing that she was assaulted on a second occasion and held, if only briefly, in a locked room by the individual respondent in January 2008. The applicant offered no explanation for omitting the mention of such serious allegations in the complaint or in her Statement of Additional Facts.
33Another example of this problem was the applicant’s allegation (made for the first time at the hearing) concerning a discussion between Chris Evans, Ms. Chow and Ms. Elmaassarany about what to do with a dead body. The applicant suggested that it was her dead body they were discussing. That such a conversation would have taken place seems unlikely, but the fact that the applicant could not remember to mention it prior to the hearing makes it even less likely to have actually occurred.
34There are numerous other problems with the applicant’s evidence. While the respondents’ witnesses acknowledged when they could not remember something and conceded the possibility at times that their recollections of past events might be imperfect, the applicant claimed to recall with precision every detail of every event. The applicant consistently denied the possibility that she might have mis-remembered a detail or that she might be mistaken about any detail of her narrative. Despite the applicant’s assertion that she had perfect recall, her evidence changed over time. Some examples of this are set out above, but there are instances identified by the respondents of what I find to be a pattern of attempts by the applicant to modify her evidence at the hearing when making her final submissions, including adopting as her evidence suggestions made to her in cross-examination which she denied.
35For example, it was suggested to the Applicant in cross-examination, that Mr. Ferguson would testify that the applicant had asked him to speak with Nina Popovic in March 2006 in order to get confirmation of some of her allegations. The Applicant denied telling Mr. Ferguson this and stated in her cross-examination that Mr. Ferguson asked her if he called Ms. Popovic what would she say. However, in her submissions that applicant claims that she testified that “I told him that Nina Popovic shared with me that she had similar experiences”. This is not what she testified to at the hearing and it is also not what is suggested in the complaint.
36Another instance of this problem related to her cross-examination of Ms. Wodchis, an acting Aquatics Supervisor at the time, who investigated the applicant’s allegations of an assault by the individual respondent. The applicant purported to assert that she told Ms. Wodchis that the workplace environment was “poisoned, its toxic” or words to that effect. I have reviewed my notes and the applicant gave no evidence to that effect in her examination in chief. Then in her written submissions she states that her evidence was that she told Ms. Wodchis that the workplace was poisoned and then claims that it Ms. Wodchis replied “it’s not poisoned, it’s toxic”. Ms. Wodchis did not say anything like this at the hearing. I note here that the whole thrust of the applicant’s submission in this regard is entirely inconsistent with the applicant’s testimony that Ms. Wodchis took the individual respondent’s side in the assault investigation prompting the applicant to file a grievance about the issue.
37In addition to the above concerns with the credibility of the applicant’s evidence, the applicant’s repeated assertions that contemporaneous documents were fabricated or changed by the respondents where such documents were inconsistent with her version of events lacked credibility.
38For example, although these allegations were not contained in the complaint, the applicant alleges that unidentified employee(s) at the central call centre for class registration falsified the registration of participants in the applicant’s winter 2008 Don Mills Aquafit class, by deleting participants or failing to register participants, so that the class would be cancelled. The applicant alleged as well, in the absence of any evidence, that an employee of the respondent deliberately sent her emails to mislead her that she would be teaching an Aquafit at Don Mills pool, when he actually did not intend for her to work there at all
39The applicant also asserts that the individual respondent, Ms. Chow, Ms Tanaka and Ms. Lehman each routinely falsified what were said to be contemporaneous records of events. Some of these were notes of meetings with the applicant and others. For example, Ms. Chow is alleged to have falsified notes of a September 2005 meeting contained in a chronologically organized book of notes, the inference being that Ms Chow began lying about what was occurring from the beginning of her work relationship with the applicant. Others of these allegedly falsified documents were records created in the normal course of business, such as pool work schedules, occurrence reports, daily logs amongst others. In this regard, the applicant’s position is inconsistent. Generally speaking it was her position that the respondent City and its employees routinely fabricated documents, on the other hand the applicant adopted elements of what she claimed were fabricated notes when it supported some point she wished to make. This was done even where her adoption of the note was in direct contradiction to her version of events.
40The applicant also failed to call witnesses who could corroborate her allegations, with the exception of her daughter, as noted earlier, and two other witnesses who were not witnesses to any of the events described by the applicant. On several occasions the respondents indicated that the applicant should call witnesses to support her allegations. In particular, the respondents asked that the purported authors of documents contained in her book of documents be called to be examined on their contents. The applicant’s attempt to explain why it would be “complicated” to produce their alleged authors for examination was not persuasive. The documents in question can not be relied on by the applicant, but more significantly they call into question the credibility of the applicant in tendering self-serving documentation but then declining to produce their alleged authors.
41In addition, other potential witnesses to some of the applicant’s allegation were available to her but were not called. For example, the applicant suggested that she might call one of the women allegedly accosted by Sana Sadaati in the change room. The applicant never did call this witness but offered no explanation for not doing so.
42The applicant also did not call any of the patrons of the pool who would have witnessed staff allegedly exclaiming their hatred for older women and aquafit. Although apparently in a position to do so, the applicant made no attempt to summons any such evidence and I draw the inference that there is not a witness to these alleged events.
43The applicant also purported to rely on three emails that she claimed were sent to the respondent City. Two of them bear on some of the issues she was having in the workplace. These emails were produced by the applicant together with other emails, which were sent to the respondent City and in some instances responded to. One draft email in particular alludes to the ”I hate women, I hate aquafit” allegation although put in quite different terms than in her evidence at the hearing. The respondent denied ever seeing the emails in question and despite assurances by the applicant that they were sent and that the sent versions would be produced they never were. The basis for the respondents’ concern is that each of the emails in question has no sender listed and above the header in each there is a notification “[ Continue composing the message ]”. The applicant claims in her submissions that the emails were not draft and were sent. This contradicts her acknowledgement at the hearing that they were drafts and she would produce the sent versions. It seems more likely than not that these emails were not sent.
44The applicant sought to introduce documents on the last day of hearing and stated that she had produced them previously and had in fact cross-examined one witness on them. This did not happen. The documents were not produced and no questions were asked of any witness about either of them.
45I have considered the possibility that the applicant merely made a mistake. However, if it was merely a mistake there were several opportunities to reconsider the her position. When the documents were introduced the respondents immediately raised their concerns with the late introduction of these new documents. I indicated at the time that I did not believe that they had been introduced – they were not on the exhibit list that I had previously vetted with the parties and I had no recollection of seeing them. However, because the issue arose at the conclusion of the evidence and rather than undertake a detailed review of my notes and the contents of the file I directed that the parties provide submissions with respect to the issue of the documents admissibility including whether they had already been put to any witnesses. After reviewing the parties’ submissions and my notes of the hearing, there is no indication that the documents were tendered by the applicant previously or raised with any of the respondents’ witnesses. Despite being afforded several opportunities to reconsider her position with respect to these documents, the applicant continues to assert that the documents were introduced and witnesses questioned about them. In all the circumstances I find that the applicant’s attempt to introduce them and suggest that they were already in evidence was misleading.
46In coming to this conclusion I have considered the fact that the applicant made other assertions that were clearly inaccurate in respect of easily verifiable facts, such as her complaint that the respondent had not produced a book of documents until months after she had given evidence. This was clearly not the case. The documents in question had been produced one month prior to the first day of hearing and the applicant’s evidence. In fact, the applicant testified that several of the documents were fabricated or had been altered after their initial creation. For example, the applicant stated in cross-examination that Ms. Tanaka’s notes were a fabrication.
47The applicant’s evidence was also internally inconsistent on some important points. The applicant gave evidence about a meeting called by Andrea Chow to address the applicant’s concerns. The applicant stated in her evidence in chief that she was not afforded an opportunity to say anything at the meeting and sat there weeping for the duration of a twenty to thirty minute meeting. When shown notes of Ms. Chow’s that record the applicant talking about her complaints, the applicant stated that the notes were a fabrication. When I asked the applicant if that were the case how was it that the notes contained versions of some of the applicant’s allegations of harassment by her colleagues, the applicant testified that perhaps she had related some of them to Ms. Chow outside of the meeting. I find it more likely than not that the applicant did speak at this meeting and relayed some of her concerns. There is no basis to conclude that the notes of the discussion are a fabrication.
48In her submissions the applicant misrepresents or mis-states the evidence on a number of occasions. For example, the applicant asserted that several of the respondents’ witnesses testified that they were best friends with the individual respondent and that many of them were subordinate to her. Neither assertion is accurate. The applicant also submits that the signatories to a letter of concern written to management about the individual respondent each testified that did so because they were loyal to the individual respondent. None of them said this. Rather they said that they were concerned about what they believed to be false allegations made against the individual respondent.
49I appreciate that mistakes can be made in a case that was as factually dense as this one, particularly by an unrepresented party, however, the problems set out above are too numerous to overlook. Moreover, some cannot be thought of as mere errors.
50In contrast to the multitude of issues with the applicant’s evidence, there was little reason not to accept the evidence of the respondents’ witnesses. As indicated previously, the respondents’ witnesses were all employees of the respondent City at the time of the events complained of by the applicant. Several of them are no longer employed, and others have other careers and have a marginal connection to the corporate respondent. At least two of the respondents’ witnesses were not implicated in any of the applicant’s allegations and therefore were less interested in the outcome of this case than some of the others, such as the individual respondent, might be seen to be.
51All of the respondents’ witnesses gave their evidence in a straightforward manner and appeared to be trying as best they could to recall events that are said to have occurred up to 6 years prior to their testimony and might not have had much significance for them at the time. At times it was clear from their manner of response to allegations made by the applicant that many of them had absolutely no idea what was being described in the questioning. When there was some intersection between an allegation of the applicant and a recollection on the part of one or more of the respondents, their version of events was more coherent, internally consistent and more consistent with the preponderance of probabilities than that of the applicant.
52Several of the respondents’ witnesses made admissions against interest. Some of these were significant. For example, one witness, Ms. Kieser, stated that she was sometimes annoyed by the Aquafit class, which appears to have attracted older patrons, but that she does not hate old women and never said that she did. In some ways this admission is closer to the original form of the allegation the applicant made in the complaint than the version that emerged at the hearing in the applicant’s evidence. Ms. Kieser further testified that despite this annoyance she has kept in touch with an older woman from one of her classes and they have became friends. Similarly, Ms. Tanaka admitted that she did have a discussion with the Applicant about Eastern Europeans, but her evidence was that that the Applicant had distorted what she said. Ms Tanaka testified that she is a chatty person and would engage the applicant in discussions of her country or origin, largely because she was interested. Ms Tanaka also testified that she engaged in a discussion with the applicant about a patron, whom they both stated was Russian, about why she would feel intimidated by him, wondering aloud to the applicant whether it was a cultural issue.
53Mr. Quan testified that he told the applicant about an incident on the subway where an older woman’s undergarments fell off. He testified that he had not meant it to be offensive to older women but as embarrassing for both himself and the woman when he had approached to help her without realizing what had happened. Two of the respondents’ witnesses, including Ms Tanaka, confirmed that there had been an incident involving the door to the shower in January 2008 but that it was an accident. The individual respondent admitted to slouching in the lifeguard chair, which is not proper technique and that she had reason to believe that this annoyed the applicant. Another witness, Mr. Lall, admitted to having an across the pool shouting match with the applicant, which was entirely unprofessional.
54The respondents’ witnesses, including the individual respondent all deny the allegations made against them. The evidence of the respondents’ witnesses was consistent and in most cases where one or more could speak to an issue or allegation was corroborative. For example, Ms. Lall tesitified that the applicant complained to her about the manner in which the individual respondent was sitting in the lifeguard chair. Ms. Lall described what she observed of the individual respondent and agreed that it was likely not proper guarding technique – slouched in the chair with one leg over the arm of the chair and her forearm resting on her thigh. She testified that she did not understand what the applicant’s concern was or why the applicant thought it was directed at her. Similarly Ms. Popovic, who the applicant claimed had told her the meaning of the allegedly lewd gestures of the individual respondent and that she had experienced similar treatment herself, denied endorsing any of the applicant’s mis-treatment by the respondents. Ms. Popovic also denied that she had ever experienced differential treatment in her employment with the respondent City, although she is from a similar background and slightly older than the applicant. This is consistent with what Mr. Ferguson testified Ms. Popovic told him when he spoke with her at the time of his involvement in this workplace dispute.
55Although only relevant to credibility, perhaps the most significant issue to arise out of Ms. Popovic’s evidence was whether or not she and the applicant had known each other in Bulgaria. Ms Popovic testified in chief that she had recommended the applicant to the Recreationist at the time, when the applicant indicated that she was looking for work. She testified that they had known each as young women in Bulgaria in the late 1960’s. In a somewhat bizarre interlude, which in many ways typified the nature of the evidence, the applicant suggested to Ms. Popovic in cross-examination that she was lying and that they had not known each other prior to her employment with the City. The applicant stated that she would call a witness to confirm her suggestion. Ms. Popovic testified that she and the applicant had been members of rival swim clubs in Sofia, and responded that they had known each other and had swum against each other on many occasions. The applicant in the same cross-examination acknowledged that in fact she had known Ms. Popovic. Despite this acknowledgement the applicant called her witness who testified, amongst other things, that the applicant and Ms. Popovic had not known each other.
Positions of the parties on credibility
56The respondents submitted firstly that I should discount the applicant’s evidence entirely because she had engaged in deliberate attempts to mislead the Tribunal on a number of important issues. In this regard, the respondents relied on the reasoning in Giguere v. Popeye Restaurant, 2008 HRTO 2.
57The applicant in her reply to the respondents on the evidentiary points suggested that, for example, the allegation at the hearing that all staff regularly ran around the pool before during and after aquafit classes shouting “I hate aquafit…” was not a new allegation. In justifying this position, she relies on an email (referred to above that she alleges was sent to Ms. Chow). The complete text of the material portion of the email is as follows:
Some of our staff members tell me repeatedly that they hate aquafitness and they hate the old ladies that are participating in the program. To say the least this is unethical. This takes place on a regular basis, before and after every aquafitness class.
58The respondents question whether or not this email was ever sent and I have found above that it was not. Even if it was sent, it simply highlights the problem with the applicant’s evidence. In my view, being told by staff that they hate aquafit and the old ladies who participate bears no resemblance to the allegation that the applicant made at the hearing. The applicant also states that the only opportunity she has had to flesh out what she describes as “mere details” was at the hearing. This is simply not the case. The applicant made several complaints about staff behaviour that were investigated by various members of City management. Multiple grievances were filed. As part of the Tribunal’s process the applicant produced a Statement of Additional Facts. The applicant had several opportunities to describe the details.
59I agree with the respondents’ submission that that the problems with the applicant’s evidence are many and varied. I also agree that the applicant appears to have exaggerated the allegations in the complaint beyond recognition. She has added entirely new allegations that are not hinted at in the complaint.
60I find that the failure to disclose, at any point prior to giving evidence at the hearing, the important details of general allegations in the complaint is troubling and undermines the credibility of the applicant's evidence to a considerable degree. Equally troubling, as indicated above, is the fact that several very serious allegations are not suggested by anything in the complaint. As well, as I have pointed out above, some of the allegations as fleshed out in the hearing are beyond belief. I have also considered the many other problems with the applicant’s evidence as discussed above.
61I accept the applicant’s submission that the situation in Giguere, was different in that there a party had attempted to purchase the false testimony of a witness. However, the case ultimately stands for the not controversial proposition that a deliberate attempt to mislead the Tribunal can amount to an abuse of process. In the Giguere case, the Tribunal entirely discounted the evidence of the party who was found to have engaged in the abuse of process.
62I am not satisfied that the applicant has engaged in a deliberate attempt to mislead the Tribunal. I find that it is more likely that the applicant’s difficulty providing a coherent, consistent and credible version of events is, as suggested by the respondent, due to the applicant reinterpreting workplace conflict as discriminatory conduct by a number of her co-workers. The applicant likely believes that some or all of these things occurred but because they did not in fact occur, at least not in the way she described, she was unable to relate a credible version of events. Because they were not real events in that sense, she engaged in significant embellishment, beyond recognition, of some very general allegations in the complaint, as well the very late addition of some quite serious allegations whose absence from the narrative of the complaint is inexplicable.
63The applicant stated that she was self represented and the respondent had counsel. She states that she may have made errors. Neither explanation is particularly persuasive, the first because of the nature and number of attempts to embellish and add new allegations. There are simply too many to be explained away because the applicant is not legally trained. The allegations she made are about her life and one does not need to be legally trained to explain the events in one’s life relatively consistently and coherently. The applicant is a sophisticated and intelligent woman. I am not persuaded that that any part of the problem with the applicant’s evidence can be attributed to her being self represented. She claimed to have complete recall but as demonstrated above much of her story was fluid and malleable. The applicant also stated that she was constrained by the two pages of the human rights complaint form. This might explain some vagueness or generality in the allegation, but in my view it cannot explain what has occurred here.
64Although I am not satisfied that the applicant has engaged in an abuse of process I nonetheless find myself unable to give the applicant’s evidence any credit because the problems with her evidence, as set out above, are so pervasive that it is impossible to determine based on her evidence what is fact, what is embellishment, and what is reinterpretation of events.
Evidence and Analysis
65In the absence of any evidence from the applicant that I can accept it remains to be determined whether there is any other evidence to support the applicant’s allegations. I find that there is not. As indicated, the applicant called three other witnesses, two of whom had nothing to say about any of the issues in this case and only related their perceptions of how the workplace conflict affected the applicant. The applicant also called her daughter who gave evidence in an attempt to corroborate the evidence of the applicant with respect to the conduct of the individual respondent while in the life guard chair. I do not accept that evidence because, as stated previously, I find that it is so unlikely that such a spectacle could unfold unnoticed by anyone that it is simply not credible. The applicant’s daughter also gave evidence about comments made about east Europeans made by a staff member in the presence of the applicant. I do not accept this evidence because the person allegedly making the remarks was not working on shifts with the applicant during the time frame alleged by the applicant.
66The respondents called 14 witnesses. As I have already indicated, they gave their evidence in a truthful manner. Their versions of events were corroborative, internally and consistent with the preponderance of probabilities. Several of them were not implicated in any of the allegations and had no reason not to be truthful. Most were not intimate friends of the individual respondent and many of them no longer have significant attachment to this employer.
67I have considered all of this evidence and have similarly considered the submissions of the parties and have concluded that the evidence is insufficient to satisfy the burden imposed on the applicant. I accept the respondents’ submission that what has happened here is that the applicant has, looking back at incidents of friction in what became an increasingly dysfunctional workplace through the lens of a perceived sense of grievance, reinterpreted every unpleasant incident as an act of discrimination.
68There is no question that there was conflict in this workplace. The evidence of each of the applicant’s co-workers who testified was that the applicant was difficult to work with, not a team player, and uncooperative with colleagues but at the same time demanding of them. She made many complaints and these were investigated by the respondent City. Steps were taken in attempt to resolve the dysfunctional workplace dynamic with no apparent success.
69I accept the respondents’ submission that the applicant had difficulty taking direction from staff who were younger then she, or whom she perceived as being less qualified. It was apparent throughout the hearing that the applicant held herself and her qualifications in high regard. She bristled at any suggestion that her understanding of guarding procedure or protocol was deficient or incorrect. More than once during the hearing I had to redirect the discussion as the applicant would engage a witness in an irrelevant argument about proper life guarding technique. The applicant repeatedly directed comments at the respondents’ witnesses in an attempt to demonstrate her superior work habits and skills.
70The applicant was perceived as being difficult to work with. Many of the respondents’ witnesses testified that despite their efforts to get along with her it became increasingly difficult to do so. As time passed this became even more apparent. As co-workers sought to distance themselves from her because of her workplace habits the applicant would have perceived, correctly, that she was isolated. But the fact that the applicant was somewhat older, female or of south-eastern European origin was not the source, in whole or in part, of the conflict.
71Turning now to the specific allegations, as set out below, I make the following findings:
Allegation #1:
In April 2005 while speaking with Mary Elmaassarany, a pool manager, she told the applicant that she hated old people, especially women and said that they don't all have to be old, if you know what I mean.
72The statement on its face seems unlikely although it is possible that such a thing might be said. However the individual respondent denies making such a statement. She also denies hating old people. She testified that she does not dislike old people and worked for a time in a nursing home. She testified that she has often worked with elderly people and recalls discussing this with the applicant. For all of the reasons set out above I prefer the individual respondent’s evidence.
Allegation #2:
In June 2005 Sana Saadati, a pool manager, assaulted the applicant physically and verbally and make vexatious remarks to another Manager about the applicant's body.
73At the hearing the applicant testified that Ms. Saadati in the presence of another staff member Ms. Tanaka, grabbed the applicant on the under side of her upper arm and said to the other staff member, “see what I mean”, or words to that effect. The applicant testified that she understood her to be referring to the state of her physique. Ms. Saadati and Ms Tanaka deny that this incident took place. Although such an event is possible and would at a minimum be insensitive and may or may not be considered to be a violation of the Code, I have considered the evidence of the respondents’ witnesses and for the reasons set out above prefer their version of events.
Allegation #3:
On several occasion during the spring and summer of 2005 Ms Tanaka a pool manager made offensive remarks about people of east European descent.
During the summer of 2007 Ms Tanaka made discriminatory remarks about people of east European descent.
74With respect to the 2005 allegations, the applicant only testified about one incident although it is possible that the same incident occurred on more than one occasion. The applicant testified that Ms. Tanaka said to her in reference to a patron who they both believed to be Russian that this individual was rude and cocky, like all east Europeans were rude and she could not deal with him. The applicant’s daughter testified that she witnessed this incident(s) and alleged that it happened in the spring of 2005 on repeated weekends, during family swim. Ms. Tanaka testified that family swim scheduled for the winter, spring or summer of 2005 was between 4 and 5 p.m. She also testified that she and the applicant were not scheduled to work any family swim shifts together during this time period.
75Ms. Tanaka testified that there was a man, who seemed to routinely flout pool rules concerning supervising his young child who he often left unattended in the pool. Ms Tanaka testified at length that after approaching him she told that the applicant that she found him very intimidating, because of the combination of his demeanour and his tone when he responded to her. She testified that she is not usually intimidated by people she interacts with but found it difficult to approach this patron repeatedly over the same issue. Ms Tanaka conceded that she may have made the generalization that, being Eastern European, he may have come across as being more abrupt or terse than he intended to be. Ms Tanaka denied describing the man as rude. There is no evidence that the applicant advised Ms Tanaka that these comments were inappropriate. Ms Tanaka also testified about other conversations she had with the applicant about her origins and her cultural background because she was interested in it. For the reasons set out above I prefer the evidence of Ms Tanaka. I find that the applicant has misremembered the conversation or has as with many other of her allegations embellished it or altered it to conform to her sense of grievance.
Allegation #4:
During the summer of 2005 Ms. Elmaassarany repeatedly humiliated and threatened the applicant in front of co-workers and public.
76For all of the reasons set out above, I find that these incidents did not occur. Ms. Elmaassarany testified that she did have a habit of slinging one leg over the arm of a chair and would on occasion clap her hands to get a pool patron’s attention, but she denied doing anything like what the applicant had suggested she had done. The individual respondent testified about an incident towards the end of the applicant’s employment, but before the alleged assault, where the applicant asked her why she sat “that way”, ie slouched with one leg slung over an arm of the chair. The individual respondent testified that on a subsequent shift she was sitting in the guard chair, slouched with her knees probably a little bit apart when the applicant challenged her and said that the way the individual respondent was sitting was annoying her. The applicant is also alleged to have said that the individual respondent must stop sitting that way or there would be consequences for her. Ms. Elmaassarany testified that on one occasion she made a gesture at the applicant but only in response to the same gesture from her first. I accept the individual respondent’s evidence on these points.
Allegation #5:
At end of August and on September 21, 2005 the applicant reported some of these incidents to Ms. Chow. When the applicant did so Ms. Chow threatened to move the applicant. In the Fall of 2005 Ms. Chow gave several of my working shifts to younger staff with less seniority.
City managers very often ignored the applicant’s qualifications and seniority and failed to provide her with a fair number of shifts, instead giving shifts to younger and less senior staff.
In December 2007 the applicant was refused instructor training shifts. These were given to younger staff with less seniority and qualifications.
77There is no evidence that the applicant was denied shifts because of her age or because she raised issues of concern with Ms Chow. To begin with there is no evidence that the applicant had raised a Code issue at this stage. It appears more likely than not that at this stage the applicant was complaining about inter-personal conflict and personal harassment. Accordingly insofar as the Code analysis is concerned it is immaterial how the respondent might have responded to her complaints. However, I also I find that there may have been a discussion of the applicant re-locating to another pool as a solution but it was not, as characterized by the applicant, a threat or reprisal within the meaning of the Code. It was, as suggested by Ms Chow and Mr. Ferguson, a proposed solution to the applicant’s inter-personal difficulties with other pool staff.
78To the extent that this allegation is relied on to support a claim of differential treatment in terms of shift scheduling on the basis of any of the grounds alleged there is no basis in the evidence for this conclusion. The applicant was not materially disadvantaged and could produce no evidence that she was scheduled out of seniority. She was evidently unhappy with how seniority operated in this workplace and in her submissions purported to suggest how a seniority system should operate.
Allegation #6:
In the winter of 2006 Mr. Quan, a pool manager made humiliating comments about older women while on the pool deck
79The applicant alleged that Mr. Quan made one or two, depending on when she was asked, comments about old women getting “horny” when a young male was in the pool. While it is conceivable that such a thing might be said, I find that it was not. The applicant did not call the other person who witnessed this alleged interaction. Mr. Quan denied making such a remark and testified that it would be completely out of character for him to say such a thing. For all of the reasons set out above, there is no reason not to accept his evidence on this point.
Allegation #7:
In April 2006 Ms. Elmaassarany and Ms. Saadati changed the applicant’s working schedule without advising her and became very hostile when the applicant raised the issue with Ms. Chow
80The applicant, although maintaining this incident took place, could produce no evidence that it had. The respondents’ witnesses testified that schedules can be changed from time to time, usually at the request of staff and that the applicant’s schedule was changed at her request. The only substantial evidence on this point came from the individual respondent who testified that she recalled being approached by Ms. Saadati about a switch of shifts between her and the applicant. The individual respondent made the change but then was approached by Ms. Saadati to change it back as the applicant no longer wanted the switch. The individual respondent changed the schedule back. A schedule confirming this transaction was produced by the respondent. For the reasons set out above I prefer the respondents’ evidence on this point.
Allegation #8:
In July 2006 Mr. Quan made discriminatory comments about the applicant while working on the deck.
81Based on this very general allegation the applicant went on to state that Mr. Quan described her as “gross”, “fat”, “hairy” and “covered in moles” which the applicant alleges that he suggested she have removed. Mr. Quan denies saying such things and testified that it would be out of character for him to say such things to anyone let alone a work mate. All of the respondents’ witnesses who knew Mr. Quan agreed that it is impossible to imagine him saying such things to anyone. There is no reason not to accept the respondents’ evidence on this issue and I accept Mr. Quan’s denial. .
Allegation #9:
During the summer of 2007 several unidentified individuals at Flemingdon Pool repeatedly remarked that they hated older women
82As discussed above, I find that these alleged incidents did not occur. All of the respondents denied ever participating in, or witnessing such an event. For all of the reasons set out above there is no credible evidence that such incidents did take place.
Allegation #10:
The applicant was not provided with the same access to training. Reference was made to Mr. Evans organizing aquafit training but the applicant was told by Ms. Chow that there was no such training.
83The evidence was that there was no training being organized by Mr. Evans. Ms. Chow’s advice to the applicant was accurate at the time it was given. The respondents were unable to entirely explain the confusion but in the end there is no evidence that the applicant was treated differently in this regard.
Allegation #11:
On October 3, 2007 the applicant was detained in Ms. Elmaassarany office and verbally and physically assaulted.
84The individual respondent denies that an assault took place although there was a verbal altercation with her as the victim. For the reasons set out above, I am unable to accept the applicant’s version of events. An investigation by the City did not support the applicant’s version of events. The applicant called the police who determined that no charges would be laid. There is no credible evidence that the individual respondent assaulted the applicant. The respondents also state, and I agree, that there is no Code nexus even on the version of events of the applicant.
Allegation #12:
On November 27, 2007 the applicant was told that she would not be returning to work at the Don Mills Pool and were not given a reason
85The respondent City’s evidence was that the registration for the winter aquafit course that the applicant was scheduled to teach at Don Mills was three persons below the number of registrants required. The applicant had no evidence to the contrary other than her belief in a conspiracy amongst City staff to end her employment. I accept the respondent’s evidence on this point there being nothing to contradict it but the applicant’s belief that it was so.
Allegation #13:
From January 7 to February 13th, 2008 Ms. Elmaassarany and Ms Tanaka continued to harass the applicant. On January 13th Ms Tanaka kicked the door of the shower the applicant was using.
86The applicant elaborated on this allegation to include an allegation of a second assault by the individual respondent, as well as the conversation about what to do with a dead body. As regards the kicking of the shower door, Ms Tanaka concedes that there was an incident where Ms. Tanaka closed the shower door on the applicant while she (the applicant) was in the shower. This shower is located on the pool deck and is generally visible to anyone who is on the deck. Mr. Zimmerman who is not implicated in any of the applicant’s allegations and who was a new employee at the time who did not really know the applicant testified that he was on the pool deck. He testified that he observed Ms. Tanaka lean against the door which was not completely closed, causing it to close with a thud. It appeared to him to have been an accident and was not in any way intended to embarrass or victimize the applicant. Ms Tanaka gave similar evidence. I find that the incident was an accident. There is no credible evidence suggesting the contrary, and most importantly for Code purposes no evidence to link such action to a Code protected ground
Allegation 14:
Ms Elmaassarany told the applicant that if she complained about the harassment she would tell applicants superiors that she was guarding with her eyes closed.
87The applicant gave no evidence on this point beyond repeating the assertion. The individual respondent denied making this threat but agreed that she had asked Ms. Madjova on more than one occasion to keep her eyes open when guarding. The individual respondent testified that the applicant would respond with anger to such direction. The individual respondent’s evidence in this regard was corroborated by some of the respondents’ other witnesses. For the reasons set out above I prefer the individual respondent’s version of these interactions over that of the applicant.
88There were a number of other allegations made for the first time at the hearing, either in the applicant’s evidence, in suggestions made by her to the respondents’ witnesses or in her submissions. I have no jurisdiction to consider many of them because they were not included in the complaint. However many of them are merely re-iterations at other times of the allegations set out above. Many of them bear no relation to any Code issue, such as for example, the applicant’s displeasure with staff use of the pool office as an off-rotation lounge. In any event, for all of the reasons set out above, I am unable to accept the applicant’s evidence with respect to these new allegations.
89For all of these reasons the Application is dismissed.
Dated at Toronto, this 11th day of October, 2011.
“Signed by”
David Muir
Vice-chair