Palazzi v. Nova Ceramic and Marble Tile, 2011 HRTO 296

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marco Palazzi

Applicant

-and-

Nova Ceramic and Marble Tile Ltd., Antonio Pugliese and Dennis Bearzatto

Respondents

DECISION

Adjudicator: Mark Hart

Date: February 11, 2011

Citation: 2011 HRTO 296

Indexed as : Palazzi v. Nova Ceramic and Marble Tile

APPEARANCES

Marco Palazzi, Applicant ) Self-represented

Nova Ceramic and Marble Tile Ltd. ) Self-represented and Antonio Pugliese, Respondents )

Dennis Bearzatto, Respondent ) Not appearing

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. h.19, as amended (the Code) dated June 21, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 19, 2006.

2The applicant is deaf. He alleges that he experienced discrimination in respect of employment because of his disability contrary to sections 5 and 9 of the Code, arising out of his work installing tiles for the respondents.

3The hearing in this matter was held on September 2, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and three witnesses called on his behalf, as well as from the personal respondent Antonio Pugliese and one other witness on behalf of the respondents. On consent, cross-examination of all party witnesses was deferred until I had completed my questioning of all witnesses. Cross-examination of non-party witnesses proceeded in the normal course. Sign language interpreters were provided by the Tribunal and utilized throughout the hearing.

Background

4The personal respondent Antonio Pugliese is the owner of Nova Ceramic and Marble Tile Ltd. (“Nova”), which at the relevant time was in the business of supplying and installing ceramic tiles. Nova operated a retail store in Ottawa, and also did some commercial work. The personal respondent Dennis Bearzatto is a former Nova employee.

5The applicant commenced working for Nova as a co-op student when he was 15 years old, and performed work for Nova on and off until November 2005.

6As time progressed, the applicant became increasingly involved in doing commercial work for Nova. Disputes arose between the applicant and Mr. Pugliese around the payment of the applicant’s invoices for this work. The applicant’s position is that he was consistently underpaid by Mr. Pugliese. The position of Nova and Mr. Pugliese is that the applicant’s invoices were not paid in full due to incomplete work and holdbacks that commonly apply in the construction industry.

7Ultimately, these disputes soured the relationship between the applicant and Mr. Pugliese, and led to their parting ways in November 2005 after the applicant worked on a job at a Milestone’s restaurant. A civil action ensued in which Nova claimed that the applicant had improperly taken property and construction materials belonging to Nova, and in which the applicant counter-claimed for full payment of his invoices. Judgment was rendered in the applicant’s favour on November 10, 2009. Mr. Pugliese states that this judgment is under appeal.

8In light of the civil action, I confirmed with the applicant that there is no claim before me in which he is seeking full payment for his invoices, as any such claim would be duplicative. As a result, the claim before me is restricted to a claim for compensation for injury to the applicant’s dignity, feelings and self-respect arising out of how he alleges he was treated by Mr. Pugliese during the period when he performed work for Nova.

9When I say that the applicant “performed work” for Nova, I expressly am not characterizing the nature of the relationship between the applicant and Nova, which is not an issue before me. I am aware that the applicant regards himself as having been an employee of Nova, while Nova and Mr. Pugliese regard the applicant as having been an independent contractor who performed commercial work under the business name Palazzi Tile. It is not necessary for me to decide on the specific nature of the relationship between the applicant and Nova in order to determine the issue of whether or not the respondents have violated the applicant’s rights under the Code.

The applicant’s allegations

10In paragraph 4 of his complaint, the applicant alleges that Mr. Pugliese disrespected him, yelled at him, was rude to him and called him names. This allegation is tied in the complaint to the dispute between these two individuals regarding the payment of the applicant’s invoices.

11At the hearing, I asked the applicant whether he was alleging that Mr. Pugliese engaged in this behaviour because the applicant is deaf, and the applicant said that he was. The applicant states that Mr. Pugliese was more angry with him than he was with other people. No specifics or particulars were provided by the applicant to support this allegation. In fact, the applicant called as one of his witnesses another individual who is deaf and who worked for Nova for two years, who testified that while he had observed disputes between the applicant and Mr. Pugliese, he personally did not have any issues with Mr. Pugliese and was treated well by him. Another witness called by the applicant testified that she saw other workers going in to see Mr. Pugliese and having problems with payment, and states that Mr. Pugliese made rude comments about them.

12As a result, while there is no doubt that there were disputes between the applicant and Mr. Pugliese about payment of invoices and while the applicant may have regarded Mr. Pugliese at times as yelling or being rude or disrespectful, I find that this is attributable to the work-related disputes that became the subject matter of the civil action and is not due to the applicant being deaf.

13In terms of name-calling, the applicant alleges that Mr. Pugliese called him “fucking mute”. This is denied by Mr. Pugliese. The applicant’s evidence is that Mr. Pugliese said this over and over to him repeatedly when they would argue about pay. The applicant states that he can lip read, and so could make out what Mr. Pugliese was saying. The applicant states that Mr. Pugliese would be red in the face when he would say this. I asked the applicant whether any witnesses were present when Mr. Pugliese said this, and the applicant identified one witness whom he said was present. However, this witness testified that she was not present when Mr. Pugliese referred to the applicant as a “fucking mute”, although she did testify that she heard Mr. Pugliese refer to the applicant as a “stupid idiot” and a “stupid fucker”. Another witness called by the applicant also had not heard Mr. Pugliese refer to the applicant as “fucking mute”.

14The applicant also called his father to testify on his behalf, and I asked the father whether the applicant had ever reported to him that Mr. Pugliese had called him a “fucking mute”. The father at first said that the applicant had told him this, and later said that he didn’t recall if he had, and then said that perhaps the applicant had but perhaps he didn’t understand the applicant’s sign language. The father did testify that the applicant told him once that in the context of a dispute about money, Mr. Pugliese had called the applicant “deaf and dumb”. No details or particulars were provided as to when Mr. Pugliese is alleged to have said this to the applicant, and the applicant himself did not testify that Mr. Pugliese had said this.

15I note that there is no allegation in the complaint that Mr. Pugliese called the applicant a “fucking mute”. This seems extraordinary to me, given that the applicant was filing a complaint against Mr. Pugliese of discrimination because of his disability and given that the complaint sets out other things that Mr. Pugliese is alleged to have said. In addition, given the conflicts in the evidence, the absence of supporting witness evidence, and the lack of specifics or details about incidents when Mr. Pugliese is alleged to have said this, I find that I do not have sufficient reliable evidence to support a finding that Mr. Pugliese called the applicant “fucking mute” during the time period at issue in this proceeding.

16In paragraph 5 of the complaint, the applicant alleges that Mr. Pugliese rarely brought tiles and accessories to the job site and made the applicant come pick it up. Mr. Pugliese’s evidence is that this was because the applicant was working for him as an independent contractor, and that all independent contractors were required to pick up their materials. At the hearing, the applicant acknowledged that other workers also had to go and pick up materials, and confirmed that he was not alleging that this was because of his disability.

17The applicant also alleges that he was never paid for gas. At the hearing, he alleged that other hearing employees were paid for gas, but he wasn’t. Once again, Mr. Pugliese’s evidence is that the applicant wasn’t paid for gas because he was an independent contractor and no independent contractors were paid for gas. There is no evidence to contradict Mr. Pugliese’s evidence and no specific details or further evidence were provided by the applicant to support his allegation that hearing employees were paid for gas. While it is not an issue before me to decide whether the applicant in fact was an independent contractor, I accept Mr. Pugliese’s evidence that he regarded and treated the applicant as an independent contractor in relation to the non-payment of gas money. There is no evidence before me to support that other individuals who were not deaf and who were regarded and treated by Mr. Pugliese as independent contractors were paid gas money. Accordingly, this allegation by the applicant is not supported by the evidence.

18Paragraph 5 of the complaint also raises health and safety concerns about the job at Milestone’s restaurant. The applicant acknowledged in his evidence that these were health and safety issues, and not allegations of discrimination because of disability in violation of the Code.

19Paragraphs 6 and 7 of the complaint raise an allegation relating to a specific incident where Mr. Pugliese is alleged in the complaint to have said, “sign language interpreters are bullshit”. It is also alleged that Mr. Pugliese was rude to the person who accompanied the applicant on that day to provide sign language interpretation, and called her “ignorant” and kicked her out of his office.

20I heard much disputed evidence about this alleged incident. First, there is a dispute in the evidence about when this incident even occurred. In his initial evidence, the applicant testified that it occurred in November 2005. Later, the applicant’s witness, Myra McMahon, testified that the incident occurred shortly before Christmas in December 2004. Subsequently, the applicant agreed with Ms. McMahon that this was when the incident occurred. In contrast, Mr. Pugliese testified that Ms. McMahon worked with the applicant at a site at 134 York Street, and that the work on this job was completed in August or September 2004. A witness called by the respondents then testified that she couldn’t recall what job the discussion related to, and that the incident having occurred in December 2004 “sounds about right”. Accordingly, I find that this incident occurred in or about late December 2004.

21The applicant’s evidence is that on this occasion, he and Ms. McMahon went to see Mr. Pugliese about the applicant not being paid properly for a job he had just completed. The applicant states that he asked Ms. McMahon to interpret between himself and Mr. Pugliese. The applicant’s evidence is that Mr. Pugliese said, “that’s bullshit” and completely ignored the applicant’s request. The applicant states that he could not completely understand what Mr. Pugliese said due to the communication issue, but Ms. McMahon was there and heard what Mr. Pugliese said. The applicant did say that he caught Mr. Pugliese saying “bullshit” by reading his lips. The applicant states that Mr. Pugliese ordered Ms. McMahon out of his office.

22Ms. McMahon’s evidence is that she was asked by the applicant to accompany and sign for him when he discussed the pay issue with Mr. Pugliese. She states that Mr. Pugliese asked why she was there, and she told him that she was there to interpret for the applicant. Ms. McMahon states that Mr. Pugliese said, “interpreters are bullshitters”. When Ms. McMahon asked Mr. Pugliese how he could say that, she states that Mr. Pugliese kicked her out of his office. She says that she responded by telling Mr. Pugliese that she was going to human rights.

23Mr. Pugliese provided a very different version of this encounter. His evidence is that the applicant was in his office to discuss the holdbacks in relation to the 134 York Street job, and they were not having an argument. Mr. Pugliese states that the applicant asked whether the holdbacks were due, and he responded that they were still awaiting approval from the architect. Mr. Pugliese states that Ms. McMahon was not interpreting for the applicant at this time and was not even in his office. He states that after his discussion with the applicant, the applicant went outside the office and spoke with Ms. McMahon using sign language. He believes that the applicant and Ms. McMahon were arguing over money. He states that Ms. McMahon began raising her voice and using profanity, and as a result, he asked her to leave because there were customers in the store downstairs. Mr. Pugliese denies saying that “interpreters are bullshitters”.

24Bettina Denning, who is Mr. Pugliese’s ex-wife, was called as a witness for the respondents. She started the company with Mr. Pugliese and ran the office. She states that she was present for part of the conversation involving the applicant, Mr. Pugliese and Ms. McMahon. Ms. Denning’s evidence is that the applicant was discussing holdbacks on a job with Mr. Pugliese. She states that at a later point, Ms. McMahon came upstairs and had a discussion with the applicant. Ms. Denning states that the applicant and Ms. McMahon seemed to be arguing about something, and she could tell by the way that they were signing that it was a heated discussion. Her evidence is that Ms. McMahon then went in to Mr. Pugliese’s office and started talking to him. She says that Mr. Pugliese asked Ms. McMahon to keep her voice down, as there were customers in the store downstairs. Ms. Denning’s evidence is that she never heard Mr. Pugliese say “interpreters are bullshitters”. While Ms. Denning acknowledges that she was not present the whole time during this exchange as her office was partially down the hall and she was answering the phones, she states that she heard the whole thing even if she was sometimes on the phone.

25I find it impossible to make any reliable finding on the basis of the evidence before me. This incident occurred almost 6 years prior to the hearing in this matter. The complaint itself wasn’t filed until almost a year and a half after this incident occurred. Even then, while there are paragraphs in the complaint which touch upon this incident, there is no clear description of the incident in the complaint. It is apparent from the respondents’ Response to the complaint that they did not understand paragraphs 6 and 7 to be referring to the specific incident from December 2004 about which I heard evidence at the hearing. Particulars regarding this incident were not provided until Ms. McMahon’s witness statement was filed with the Tribunal on August 30, 2010, three days before the hearing. It was clear to me at the hearing that Mr. Pugliese and Ms. Denning were struggling to recall this incident, and were able to recall an incident where the applicant and Ms. McMahon appeared to be having an argument using sign language and where Ms. McMahon was asked to keep her voice down and leave the office.

26Whether this is the same incident being referenced by the applicant and Ms. McMahon is entirely unclear to me. Mr. Pugliese recalls the incident that he testified about to have occurred in relation to the 134 York Street job, which was completed in August or September 2004. Ms. McMahon is adamant in her evidence that the incident she gave evidence about occurred in the latter part of December 2004. As a result, it is entirely possible that Ms. McMahon is talking about an entirely different incident than is being recalled by Mr. Pugliese.

27In these circumstances, in my view, it would be unfair to the respondents to base a finding against them on evidence about an incident that occurred some 6 years ago and for which they were only given specifics or particulars days before the hearing. There is no question in my mind that if a business owner in an employment context says to a person doing work for the owner and who is deaf that “interpreters are bullshitters”, this would be sufficient to find a violation of the Code. I also am not saying that the applicant and Ms. McMahon are being untruthful in their evidence, and there may indeed have been an occasion in December 2004 when Mr. Pugliese said this. What I am saying is that it is unfair to accuse a person of conduct in violation of the Code arising out of a very specific incident, and then wait 6 years before providing details of the specific incident and only do so on the eve of the hearing. Whether Mr. Pugliese said these words or not, it is unfair for him to be put in the position at the 11^th hour to try to scramble to recall what may have occurred.

28In paragraph 6 of the complaint, the applicant also alleges that he repeatedly asked Mr. Pugliese for sign language interpreters but Mr. Pugliese would brush the applicant off. The applicant’s evidence at the hearing was that when he would ask for an interpreter, Mr. Pugliese would break eye contact and would ignore him. The applicant states that sometimes he wrote down his request for an interpreter on a piece of paper, but Mr. Pugliese would not look down at the paper. I asked the applicant if, apart from the December 2004 incident, he could recall any other specific occasions when he had asked for an interpreter, and he was unable to do so.

29Ms. McMahon testified that she was present on occasions when the applicant asked Mr. Pugliese for an interpreter and he refused, saying “what for, don’t need that, we’re doing fine”. Once again, however, Ms. McMahon was unable to recall any specific incidents in terms of dates or details, apart from the December 2004 incident. The applicant’s father testified that he recalls his son telling him many times that he asked Mr. Pugliese for an interpreter and Mr. Pugliese refused and that the applicant would write his request on a piece of paper but Mr. Pugliese would not even look, but once again this witness could not recall any dates or details of specific incidents.

30Mr. Pugliese testified that the applicant has never asked for an interpreter in all the years he did work for Nova. He states that the only time a sign language interpreter attended the business premises with the applicant was when he was first hired as a co-op student when he was 15 years old. Mr. Pugliese testified that he had no problem communicating with the applicant, and would use Bell relay to communicate about three or four times per week and would also exchange faxes with the applicant as he had a fax machine.

31Ms. Denning also testified that she was not aware of any occasion when the applicant asked for an interpreter. She states that the applicant’s deafness was never an issue, and it never stopped him from communicating or doing the work. Her evidence is that the applicant always got along because he was very adept at communicating despite his deafness.

32After hearing the respondents’ evidence, I asked the applicant about his communications with Mr. Pugliese by Bell relay and fax. He stated that he would not communicate so much through Bell relay because he is not very literate in terms of written English, so he states that most of the time he would communicate by fax. The applicant’s position in this proceeding was not that he needed a sign language interpreter at all times when he was performing work for Nova, but that he requested the assistance of an interpreter for the purpose of communicating with Mr. Pugliese in relation to their disputes over payment issues. Accordingly, I asked the applicant why didn’t he send a fax to Mr. Pugliese requesting that a meeting be set up with an interpreter present to discuss these issues. In response, the applicant stated that he had sent such a fax to Mr. Pugliese and then said that he “bet” such a fax would be in his lawyer’s file. I reminded the applicant of his obligation to produce all arguably relevant documents, which had passed some months prior to the hearing, and that no such document had been produced by him.

33Once again, I am not satisfied with the evidence provided by the applicant in support of this allegation. Neither he nor any of his witnesses could provide evidence of any specific occasion when he asked Mr. Pugliese for an interpreter and Mr. Pugliese refused. The applicant’s own evidence is that sometimes he would write his request for an interpreter on a piece of paper, and yet no such document was produced into evidence before me. In his initial evidence, the applicant did not testify that he had made such a request by fax. It was only after hearing Mr. Pugliese’s evidence about communications by fax and in response to a specific question by me that the applicant for the first time gave evidence that he had made a request for an interpreter by fax and stated that he “bet” such a document was in his lawyer’s file. I do not accept this evidence. If such a document exists, it should have been disclosed well in advance of the hearing and at the very least should have been available to be presented into evidence before me. While I appreciate that the applicant is not a lawyer, it is readily apparent that a document that would support or corroborate the applicant’s allegation that he requested that Mr. Pugliese provide him with an interpreter would not only be relevant to this proceeding but would be extremely significant. In my view, the fact that no such document was produced and that the existence of such a document did not come forward until after I re-questioned the applicant following the respondents’ evidence supports a finding that no such document exists.

34As a result, I find that I do not have sufficient reliable evidence to support a finding that the applicant asked Mr. Pugliese for a sign language interpreter and that Mr. Pugliese refused.

35In paragraph 8 of the complaint, the applicant alleges that when Mr. Pugliese is short of workers, he would ask the applicant to find someone to work. The applicant alleges that when he had his deaf friends help out, Mr. Pugliese would treat them the same way that he treated the applicant. The applicant was unable to provide direct evidence of any such incidents that he observed. In addition, he made specific reference to a friend who had come to work for Nova around the time that the applicant left, and stated that this friend was not happy with how he was treated by Mr. Pugliese. However, this individual later testified for the applicant, and his evidence was that he was treated well by Mr. Pugliese. The applicant made specific reference to one other individual, but this individual did not testify before me. Accordingly, I place no reliance on this evidence.

36I find that the evidence does not support the applicant’s allegation that Mr. Pugliese treated his deaf friends badly when they did work for Nova. In the complaint, the applicant also alleged that Mr. Pugliese was short on their pay, but the applicant agreed that this was not an allegation of a violation of the Code.

37It is unfortunate that the work relationship between the applicant and Mr. Pugliese deteriorated to the extent that it did. I heard evidence at the hearing that hard feelings from the deteriorated relationship and the ensuing litigation have continued to trouble all parties at least to the time of the hearing. The applicant provided material to the Tribunal alleging that Mr. Pugliese had made threats against him arising out of Mr. Pugliese’s failed claim in the civil action, which caused the applicant to involve the police. Mr. Pugliese for his part expressed concern that the applicant was sending material about these issues to Mr. Pugliese’s family members, which Mr. Pugliese regards as inappropriate and a violation of his privacy. At the hearing, and without making any determination as to whether he had done so in the past which is not my jurisdiction, I directed Mr. Pugliese not to make any threats towards the applicant. I also directed the applicant to only send materials to Mr. Pugliese’s attention.

38There clearly are ongoing disputes between the parties. The human rights dispute has now been resolved in the respondents’ favour. In contrast, the civil action was resolved in the applicant’s favour. This Tribunal and the Court are the appropriate legal bodies to address these disputes. If any party takes issue with the determination made by this Tribunal or by the Court, then there are legal mechanisms available for review. The appropriate method to contest or challenge the findings of this Tribunal or the Court is through these legal mechanisms. If a party chooses not to pursue legal mechanisms for review or is not successful in having a decision by this Tribunal or the Court changed on review, then the legal avenues have been exhausted and the appropriate response at that time is to abide by the determination made by this Tribunal or the Court. It is not appropriate or permissible to take the law into one’s own hands and to take steps outside of the legal process to defy an order of this Tribunal or the Court. It is my sincere hope that all parties, despite any disagreements they may have with each other or with the decisions of this Tribunal or the Court, will abide by the determinations made through the legal process and will be able to move on with their lives.

39For all of these reasons, the Application is dismissed.