Morris v. Ontario (Finance), 2011 HRTO 1889

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hermilyn Morris Applicant

• and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance and Dianne Lone Respondents

DECISION

Adjudicator: Brian Cook Date: October 19, 2011 Citation: 2011 HRTO 1889 Indexed as: Morris v. Ontario (Finance)

APPEARANCES / WRITTEN SUBMISSIONS

Hermilyn Morris, Applicant ) Self-represented Ministry of Finance and Dianne Lone, ) Respondents ) Susan Munn, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of age, race, colour, and place of origin.

2The hearing started on November 22, 2010 and was adjourned for reasons set out in Interim Decision 2010 HRTO 2327. The original Application identified only age as the basis for the alleged discrimination. After the adjournment of the November 22, 2010 hearing, the applicant asked to amend the Application to add race, colour and place of origin as grounds of alleged discrimination. This request was granted in Interim Decision 2011 HRTO 563. The hearing reconvened on April 5, 2011. The applicant did not appear and the hearing was adjourned for the reasons set out in Interim Decision 2011 HRTO 684.

3The hearing reconvened on October 3, 2011. The applicant attended and was self-represented. Her daughter was present for support. Present on behalf of the Ministry of Finance were Adrienne Leopold, a Human Resources Advisor, Jennifer Price, an Employee Relations Advisor, and Bridget Jeanes, a Labour Relations Analyst. Dianne Lone, who is the personal respondent, was also present. The respondents were represented by Susan Munn.

4At the hearing, the applicant presented her evidence about her employment with the Ministry of Finance. She presented her evidence mostly in the form of answers to questions that I put to her.

5After hearing the applicant’s evidence in-chief, I indicated that I would like to hear some evidence from the personal respondent concerning some of the specific allegations made by the applicant. Ms. Munn agreed to this, on the understanding that she would have the right to cross-examine the applicant and also to call further evidence from the personal respondent if necessary. I heard evidence from the personal respondent. The applicant was given the opportunity to cross-examine the personal respondent.

6We then took a lunch break. I asked the applicant to take the time to consider if she had any other evidence or submissions in support of her allegations. After the lunch break, the applicant provided some further evidence and submissions regarding her allegations of harassment and discrimination.

7Following this, I invited the parties to make submissions in regard to whether the applicant had established proof that she experienced harassment or discrimination contrary to the Code.

8Ms. Munn then made submissions in support of the respondents’ position that the Application should be dismissed because the applicant had been unable to provide evidence to show discrimination in employment because of a Code-protected ground. The applicant was given the opportunity to make submissions on this same issue. The hearing then adjourned to allow me to determine if the Application should be dismissed or if it should be reconvened to hear cross-examination of the applicant and more evidence from the respondent.

Decision

9For the reasons which follow, the Application is dismissed because the applicant has not established that she experienced discrimination in employment contrary to the Code.

Background

10Throughout her employment with the Ministry of Finance, the applicant was employed in the Communications and Corporate Affairs Branch (the “Branch”). The personal respondent has been the Director of the Branch since 2007.

11The applicant started her employment with the Branch in 1999. She was employed by a temporary staffing agency and worked in the Branch through the staffing agency until 2003 when she was offered a contract, although she continued to do the same job. In August 2005, she was offered a permanent position, and continued to do her job as a permanent staff member until July 2009 when her employment ended.

12From 1999, when she started, until 2002, the applicant’s job title was Receptionist. In 2002, her job title changed to Support Clerk and she worked as a Support Clerk until July 2009. She testified that her job duties were essentially the same through the years of her employment. She acted as the Branch receptionist, and also had a number of administrative support duties, such as filing, photocopying, faxing, receiving and sorting mail, and handling incoming and outgoing courier deliveries. She was also involved in the distribution of a media clipping service.

13On July 2, 2009, the personal respondent spoke to the applicant and gave her a letter also dated July 2, 2009. The letter stated that as a result of “Ministry business decisions” and “organizational realignment changes”, the applicant’s position was declared surplus as of July 17, 2009. The applicant was given two options. First, she could receive pay in lieu of notice. Second, she could remain employed with time-limited recall rights, and proscribed rights to access temporary and permanent positions.

14The applicant chose the first option. She testified that she did not feel that the second option was a viable option for her, based on her circumstances at the time.

15The personal respondent testified that the Branch has a specified Full Time Equivalent (“FTE”) compliment that cannot be exceeded. Any new job positions must be established without adding to the compliment. In the 2009 restructuring, a number of Branch employees were moved within the Branch and others had their job duties or reporting lines changed. In particular, the purpose of the restructuring was to enhance strategic communications.

16The applicant’s position was declared surplus as part of the 2009 restructuring. This resulted in the availability of a FTE that could be used to enhance the Strategic Communications department within the Branch. The personal respondent testified that another consideration in declaring the applicant’s position surplus was that because of changes in technology, some of the applicant’s previous job duties were no longer required or were less important. For example, there was a reduced need for receptionist services and the clipping service was done electronically rather than as a paper distribution.

17The personal respondent testified that the restructuring plan was supported by the appropriate human resources personnel and was the subject of analysis and presentation of a business case prior to implementation.

The Applicant’s Allegations of Discrimination

18In 2009, the applicant was 63 years of age. She self-identifies as a black Canadian female of Caribbean origin. The applicant alleges that the decision to declare her position surplus was influenced by discrimination because of her age and also because of her race, colour, and place of origin. The applicant also alleges that she experienced harassment and bullying in her employment before her employment ended.

19The applicant was asked to explain the nature of the harassment she experienced. She testified that co-workers often stood around her desk and mumbled. She believes that the mumbling was harassment, although she does not know what words were used. She testified that she also experienced harassment and bullying on occasion when she left at the end of the workday and when co-workers would surround her as she got on the elevator. She did not allege that there were any specific comments or actions on these occasions.

20The applicant recalled that on one occasion, one of the co-workers who participated in the alleged harassment and bullying was talking to the applicant at the applicant’s desk. The applicant got up to retrieve something and, when she returned, she found a “half dead” fly on her desk. Since flies are never seen in the office environment, the applicant assumed that the co-worker had put the fly on her desk as part of the harassment and bullying.

21The applicant testified that she complained about the harassment and bullying to the personal respondent on three occasions. She testified that she offered to provide names and particulars on these occasions but she was told not to do so.

22The personal respondent testified that she recalled the applicant raising allegations of harassment and bullying on only one occasion. The personal respondent testified that she asked the applicant to provide names and particulars on that occasion but the applicant refused.

23The applicant testified that she attempted to contact her union representative about the harassment and bullying. She was supposed to have a meeting with the union representative on June 17, 2009, but she was unable to attend because of work assignments. She believes that the work assignments were given in order to sabotage her attempt to meet with the union. She did not call the union again until after she received the surplus letter on July 2, 2009. She testified that the union then told her that nothing could be done.

24The applicant alleges that the decision to make her position surplus was influenced by discrimination. She alleges that the personal respondent dislikes older people and prefers to associate with younger people. The personal respondent testified that this is not true. She noted that the people in the Branch are of varied ages. The applicant did not provide any evidence to support her assertion that the personal respondent does not like older people.

25The applicant suggested that age discrimination can be inferred because she was the oldest person in the Branch at the time of the restructuring. The applicant similarly suggests that discrimination on the basis of race, colour, and place of origin should be inferred because at the time of the restructuring she was the only black person in the Branch, which had about 30 employees. The applicant was asked if there was evidence to support the allegation of discrimination on the basis of race, colour or place of origin. She indicated that discrimination against black people could be inferred because of the hiring practices in the Branch. She indicated that at least two other black people had been hired during her employment in the Branch but they did not stay. One left to pursue other interests. The other had a contract but was not the successful candidate when the position was posted on a permanent basis.

26The applicant testified that in her opinion, the main reason that her position was declared surplus was so that room could be made for others in the Branch. The applicant feels that this was very unfair. The loss of her employment had a devastating effect on her, particularly as her pension would have been much higher if she could have continued to work for another two years, when she would have been 65.

27After she received the July 2, 2009 surplus letter, and after she elected the pay in lieu of notice option, the applicant sent an email to the Premier of Ontario. She does not have a copy of the email. Her email was acknowledged by the Office of the Premier and she received a letter indicating that her concerns had been referred to the Deputy Minister of Government Services. The Deputy Minister subsequently wrote to the applicant to advise that there was no indication that the applicant had been treated inappropriately.

28At the hearing, the applicant produced documents about these events. Ms. Munn noted that the applicant had not previously identified these documents as things that she wanted to refer to in support of her Application. The applicant indicated that she had not referred to them earlier because they were in the possession of her previous representatives and she had only been able to get them back about a week before the hearing. Ms. Munn pointed out, however, that the applicant had also not referred to any of the events that occurred after July 2, 2009, or the correspondence with the Premier’s office or the Deputy Minister in the Application which she filed before retaining a representative. The applicant clarified that the only reason that she referred to the documents was to show that she had tried to resolve the unfairness she experienced as best she could before filing the Application with the Tribunal and that she only filed the Application when it was clear that neither the government nor her union were prepared to help her. After reviewing the documents, I agreed with the respondents that it was not appropriate to enter these documents into evidence because they had only been produced at the hearing. In addition, I considered the fact that the applicant indicated that the only reason she referred to them was to show that she had made attempts to raise her concerns before she filed the Application.

The Legal Test

29The issue in this case is whether the applicant experienced discrimination or harassment in her employment, contrary to section 5 of the Code, which provides 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.

30The onus is on the applicant to provide evidence to show that it is more probable than not that she experienced the discrimination or harassment she alleges.

Conclusions

31I conclude that the applicant has not provided evidence to show that it is more probable than not that she experienced the discrimination and harassment she alleges. I conclude this based on the applicant’s evidence and the evidence provided by the respondents.

32The applicant has not provided any evidence of discrimination or harassment because of a Code-protected ground. In regard to the allegations of harassment, the applicant testified that she was bullied. However, in explaining the nature of the bullying, she said that it consisted of people mumbling while standing around her desk, although she was unable to say what words were used by the people because they were mumbling. She also alleged that people stood around her when she was getting on the elevator at the end of the work day. She also recounted the incident involving the fly that she found on her desk.

33Assuming that co-workers did stand around her desk mumbling, and assuming that this was a form of bullying, there is no evidence to show that any of this behaviour was based on Code-related factors.

34The applicant urges me to infer that the behaviour of her co-workers and the respondents was discriminatory and that it related to the Code. In effect, she asks me to infer that because she is a black person and an older worker, the behaviour must have been related to these Code-protected grounds. It is not enough for an applicant to establish that she is a member of a Code-protected group and that she experienced behaviour that might constitute harassment. To find that harassment contrary to the Code occurred, there must be evidence to show that the behaviour occurred because of a Code-protected ground. In this case, there is no evidence that the mumbling that the applicant experienced was related to the applicant’s age, race, colour or place of origin, and no basis to draw the inference suggested by the applicant. As a result, even if the applicant is correct that the mumbling was a form of bullying, it was not harassment contrary to section 5 of the Code.

35The fact that co-workers were around her when she left on the elevator at the end of the day seems like something that most workers experience. It is common for people who work regular hours to leave the workplace at the same time and not unusual for a group of people to be at the elevator at the same time. The applicant provided no evidence to suggest that there was anything unusual in her case and nothing to suggest that she was treated differently when getting on the elevator because of a Code-protected ground.

36In regard to the time that the applicant found the dead or half dead fly on her desk, the applicant conceded that she had no actual proof that the co-worker put the fly on her desk. Even if there was such proof, this in itself would not be evidence of harassment contrary to the Code unless there was evidence or a basis to conclude that the incident occurred because of one of the Code-protected grounds.

37The applicant believes that age, race, colour or place of origin must have been a factor in what happened because she says she was the oldest employee in the Branch and the only black employee. However, apart from her belief that age, race, colour or place of origin must have been a factor, the applicant has provided no evidence that would show a factual basis for her belief.

38In contrast, the respondents have provided clear and convincing evidence that the decision to end the applicant’s employment in the Branch was reached as part of a restructuring that occurred in response to changing needs and changes in technology. I heard the personal respondent’s evidence about this and found her evidence to be credible and supported by the documents provided by the respondents concerning the restructuring process.

39There was a suggestion in the applicant’s account that she had made complaints of harassment and discrimination that were not properly investigated. In certain circumstances, an employer’s failure to properly investigate complaints of harassment and/or discrimination can result in a finding in favour of the employee. See, for example, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30.

40In this case, the applicant testified that she complained to the personal respondent about harassment and discrimination in 2008 and also in 2009. The personal respondent testified that the applicant complained only in 2009. She testified that the complaint arose after the applicant was spoken to following a breach of budget protocol involving the Ontario Provincial Police. The personal respondent testified that the applicant complained but refused to provide any details.

41There is thus conflicting evidence about whether the applicant complained about harassment and discrimination in 2008. On this point, I accept the evidence of the personal respondent. I found her evidence credible and I find that it is supported by the information provided by the applicant in the Application. Question A11 of the Application asks the applicant to indicate if she complained to someone in authority about the alleged harassment or discrimination, and to whom she complained. The applicant answered this question by stating that she “was unable to [complain] due to Job Surplus”. If the applicant had in fact registered a complaint of harassment and discrimination, I would expect her to have indicated on the Application which she herself completed. For the same reason, I conclude that while the applicant may have raised a complaint of harassment and discrimination in 2009, she did not make a complaint that could be investigated because she did not provide particulars. If she had made such a complaint, I would again expect her to have noted this in the Application.

42There is some suggestion that the applicant raised allegations of discrimination and harassment in communications with the Premier’s Office and the Deputy Minister in the period after her employment ended. The information that the applicant had about this was very vague as she did not have some of the actual documents. As discussed earlier, the documents that the applicant did have about this were not disclosed before the hearing. Also, no allegations of an improper investigation were raised prior to the hearing. This is despite the fact that the applicant’s then representative filed a Request for an Order During Proceedings asking that the Application be amended to include additional grounds. In these circumstances it would, in my view, not be appropriate to now further amend the Application to include allegations regarding a failure to properly investigate complaints of harassment and discrimination, even if there was evidence to support such an allegation. I do accept that the applicant attempted to bring her complaint that she had been treated unfairly to the attention of senior government officials, but this does not establish that her Code-protected rights were infringed.

43For all of these reasons, I find that the applicant has not been able to show that she experienced discrimination or harassment in employment contrary to the Code. The Application is dismissed on that basis.

Dated at Toronto, this 19th day of October, 2011.

”signed by”______

Brian Cook Vice-chair