Feniuk v. Sun Media Corporation, 2011 HRTO 402

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darlene Feniuk

Applicant

-and-

Sun Media Corporation

and Angela Zito

Respondents

DECISION

Adjudicator: Mark Hart

Date: February 24, 2011

Citation: 2011 HRTO 402

Indexed as : Feniuk v. Sun Media Corporation

APPEARANCES

Darlene Feniuk, Applicant ) Self-represented

Sun Media Corporation ) Daniel McDonald, Counsel

and Angela Zito, Respondents )

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 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 10, 2008.

2The applicant alleges that she experienced discrimination with respect to employment because of age contrary to sections 5 and 9 of the Code, arising out of her interaction with the personal respondent in the context of applying for positions at the Toronto Sun newspaper.

3The hearing in this matter was held on October 26, 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 the personal respondent. Cross-examination was deferred until I had completed my questioning of both witnesses.

4The basic facts of this case are fairly straightforward. In October 2007, the Toronto Sun newspaper advertised for a Circulation Analyst. The job advertisement directed interested applicants to send their resume to the personal respondent Ms. Zito as the Human Resources Supervisor.

5On October 23, 2007, the applicant contacted Ms. Zito by phone to request the name of the hiring manager so that she could personalize her cover letter and also to ask whether she could meet with Ms. Zito briefly to review her qualifications. What precisely happened during the course of this telephone conversation is hotly disputed as between the applicant and Ms. Zito.

6The applicant states that Ms. Zito refused to provide her with the name of the hiring manager and refused to agree to meet with her. The applicant’s complaint states that the applicant was “extremely polite” during this conversation, although in cross-examination she acknowledged that she became frustrated and may have spoken in a loud voice. The applicant states that Ms. Zito was hostile and yelling at her during the whole conversation, and said that she was too busy to meet with the applicant and that information about the hiring manager could only be obtained from her. The applicant states that Ms. Zito then hung up on her. The applicant states that she immediately called Ms. Zito back, at which time Ms. Zito yelled that she was very busy and then said “we don’t hire old hags here”. The applicant states that Ms. Zito then hung up the phone.

7Ms. Zito’s evidence about this conversation is entirely different. She states that she informed the applicant that it was not part of the process to disclose the name of the hiring manager and that resumes from all applicants were to be sent to her attention. She states that she also told the applicant that it was not part of the process for her to meet with individual applicants, given the volume of applications received. Ms. Zito states that the applicant then became very angry and upset and raised her voice. Ms. Zito described the applicant’s manner on the phone as being aggressive and demanding. Ms. Zito states that she kept her composure and explained that they had to go through the proper process, but the applicant was not accepting her responses. Ms. Zito states that after about five minutes of going back and forth, the applicant then hung up on her. Ms. Zito testified that she believed that the applicant used foul and abusive language on the phone, but she could not specifically recall what words were used.

8After the phone call concluded, Ms. Zito states that she was shocked and emotionally distraught, and went to discuss the call with her manager and was re-assured by him. Ms. Zito states that she remained fearful that the applicant would come down to the building given that she knew Ms. Zito’s name and where she worked, and that she was concerned for her safety. As a result, Ms. Zito contacted security and asked them not to allow the applicant into the building. Security apparently was familiar with the applicant, as she regularly came to the building to pick up a free Toronto Sun newspaper.

9Following her telephone call with Ms. Zito, the applicant contacted the corporate respondent and was able to find out the name of the hiring manager. The applicant then wrote a brief email to Ms. Zito on October 23, 2007, in which she informed Ms. Zito that she had obtained this name and questioned what the big deal or big secret was that prevented Ms. Zito from sharing this information with her. She concluded her e-mail by stating, “Some help you have been!!!” (emphasis in original). No mention is made in this email of Ms. Zito’s alleged comment about the applicant as an “old hag”.

10The next morning, on October 24, 2007, the applicant went to the corporate respondent’s offices to pick up a newspaper and discovered that she was barred from the building. This prompted the applicant to send to Ms. Zito and the hiring manager an email on October 26, 2007 which attached her cover letter, resume and a third document entitled “news flash”. The news flash document is a full-page screed against Ms. Zito, alleging that Ms. Zito had bullied the applicant as an unemployed person and had banned her from the building and being able to pick up a free newspaper because “your poor tiny little ego is hurt”.

11Once again, no mention is made in this document of the alleged “old hag” comment. When I questioned the applicant about that at the hearing, she testified that she didn’t include the comment because of the gravity of the comment, the fact that she still wanted to be employed with the corporate respondent, and because the purpose of the document was to try to get some answers. The applicant testified that when dealing with people, she has been trained not to go over the line and make comments that can’t be taken back. When I questioned the applicant about her repeated reference to Ms. Zito’s “poor little ego” being hurt, the applicant acknowledged that such comments were coming close to the line.

12Finally, on December 24, 2007, the applicant sent a letter to Ms. Zito’s manager. In this letter, the applicant makes express reference to “a serious situation of discrimination” by Ms. Zito and a “total disregard of my human rights”. The applicant states in her letter that she has been strongly recommended to bring this matter to the manager’s attention prior to registering her complaint with the Human Rights Commission. The letter proceeds to go through the applicant’s version of events, and requests a meeting with the manager to discuss the situation. Once again, however, no reference is made in this letter to the alleged “old hag” comment. When asked about this, the applicant responded that she wanted to share this information with the manager in a face to face meeting, and this was not something that she necessarily would put on paper.

13In my view, the determination of this case revolves directly around my assessment of the credibility of the applicant and Ms. Zito, and particularly my determination as to whether the disputed “old hag” comment was made. In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) and particularly the following comments at pp. 356-357:

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

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

14I have several problems with the applicant’s evidence. The primary difficulty I have is that, if Ms. Zito had made the comment as alleged, I have not been provided with a credible explanation as to why this alleged comment does not appear in any of the documents sent to Ms. Zito or her manager in the period following the October 23, 2007 telephone conversation. In particular, I do not accept the applicant’s explanation for why the alleged comment does not appear in the “news flash” document attached to her October 26, 2007 email. There are numerous comments in this document which any reasonable and informed person would regard as going far “over the line”, including not only the references to having been bullied by Ms. Zito and to Ms. Zito’s “poor little ego” but also statements about how Ms. Zito can live with herself, how she can look herself in the mirror, and whether she wants to “put a bag over [her] head for this shameful act”. How the applicant reasonably could expect to be hired following submission of a screed of this nature is beyond comprehension. Given the nature of the comments set out in this document and the omission of any reference to the alleged “old hag” comment, the only reasonable conclusion in my view is that no such comment in fact was ever made by Ms. Zito.

15I further do not accept the applicant’s explanation for why there is no reference to this alleged comment in the applicant’s letter to Ms. Zito’s manager. The letter expressly alleges discrimination and a violation of the applicant’s human rights, but fails to mention the alleged comment or even that the applicant is alleging that she experienced discrimination because of her age. The alleged comment would have been the only and strongest piece of direct evidence that the applicant had experienced discrimination and a violation of her human rights. If she wanted a meeting with Ms. Zito’s manager or a resolution of her allegations, then there would have been every reason to include the alleged comment in this letter. The applicant’s explanation that she was saving this comment for a face to face meeting that never happened does not make sense to me and I do not find it to be credible.

16There also is the issue of the applicant’s alleged prior meeting with Ms. Zito. In the response to the complaint, it is stated that Ms. Zito had never met the applicant and so had no knowledge of her age. This was one of the bases upon which the respondents contend that Ms. Zito did not make the alleged comment. At the hearing, and for the first time, the applicant gave evidence that she had in fact met with Ms. Zito previously, in March 2007. The applicant produced Ms. Zito’s business card, which was tendered into evidence as proof of this meeting. Ms. Zito’s evidence is that no such meeting ever occurred. Ms. Zito also testified that as her name was on job advertisements at the time, there often would be people who would come to the building to drop off their applications and a stack of her business cards was kept at the security desk in the event that such people requested one. Ms. Zito surmised that the applicant may have gotten hold of her business card in this manner.

17I have three difficulties with the applicant’s testimony that she had previously met with Ms. Zito. First, there is no reference to any such meeting in any of the documents filed as evidence in this proceeding or in the applicant’s complaint. In particular, the complaint references emails that the applicant alleges she sent to Ms. Zito on August 7, 2007 and on October 22, 2007 (which were not produced by the applicant), but fails to make any reference to having met with Ms. Zito in March 2007. In addition, the December 24, 2007 letter to Ms. Zito’s manager states that since January 2007 the applicant had been sending in job applications to Ms. Zito and expressly states that the applicant “never, not even once was called in for any of the applications I submitted”. The letter then goes on to reference the emails described in the applicant’s complaint. While I appreciate that the statement made by the applicant in her letter could be interpreted to mean simply that she had never been called in for a job interview, this does not explain the omission of any reference to the alleged March 2007 meeting with Ms. Zito.

18Second, the applicant’s evidence is that the March 2007 meeting was arranged so that she could come in and talk to Ms. Zito about her credentials. If the applicant had done so as she now alleges, then I fail to understand why on October 23, 2007 she was asking for yet another meeting with Ms. Zito to go over credentials that she says she already had discussed with Ms. Zito. Third, and finally, I note that the applicant has produced no documentation relating to this alleged meeting. In her evidence, the applicant states that she received a call from Ms. Zito in February 2007 to come in and talk, but that Ms. Zito was very busy so the meeting could not be arranged until March 2007. While I appreciate that the applicant’s evidence is that the meeting was set up by phone, it is surprising to me that there would not have been some email correspondence, whether confirming the meeting or following up to thank Ms. Zito for taking the time to meet. While the applicant testified that she received Ms. Zito’s business card at this meeting, there is (not surprisingly) no date on the card to confirm this.

19Finally, in accordance with the direction in Faryna v. Chorny, supra, I have considered what is “in 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”. Ms. Zito is a trained human resources professional. At the time, she had been working in the human resources field for over 7 years. She is no longer working for the corporate respondent, but has moved on to a more senior human resources position at another company. She has received training in human rights issues. I do not regard it as being in harmony with the preponderance of probabilities that in response to the requests made by the applicant, Ms. Zito would yell and become hostile and then state “we don’t hire old hags here”.

20I take the applicant’s point that the same could be said of her as a job applicant. As she was trying to get a position at the newspaper, one would expect it to be unlikely for a person in the applicant’s position to yell and become abusive as stated by Ms. Zito. However, I have a record of the applicant’s email sent to Ms. Zito on October 23, 2007 and the news flash document sent on October 26, 2007, which in my view are evidence which are revealing as to the applicant’s state of mind and conduct at the time. As someone who was trying to obtain a job at the newspaper, I would not have thought it appropriate to send either document and the news flash in particular. The news flash document can only be described as abusive, aggressive and threatening. This document in particular in my view supports Ms. Zito’s evidence as to the applicant’s manner during the phone call on October 23, 2007 and lends support and credibility to Ms. Zito’s version of events.

21Accordingly, for all of the reasons I have articulated, I do not accept the applicant’s evidence that Ms. Zito said, “we don’t hire old hags here”, as alleged. As this is the only evidence proffered by the applicant to support her allegation that she experienced discrimination because of her age, I find that this allegation is not supported by the evidence.

22For all of these reasons, the Application is dismissed.

Dated at Toronto, this 24^th day of February, 2011.

”Signed by”

Mark Hart

Vice-chair