HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.D.
Applicant
-and-
The Children’s Aid Society of Hamilton
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: A.D. v. The Children’s Aid Society of Hamilton
APPEARANCES:
A.D., Applicant ) On his own behalf )
The Children’s Aid Society of Hamilton, ) Carolyn Jenkins, Counsel
Respondent )
1This Application was filed on February 11, 2010 pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in the provision of services on the basis of race, ancestry, ethnic origin and reprisal.
2In an Interim Decision dated December 19, 2011, 2011 HRTO 2271, the Tribunal dismissed a number of the applicant’s allegations based on s 45.1 of the Code and determined that the Application would proceed only in relation to three specific allegations:
that on January 25, 2010 Sherry Power, the respondent’s Family Service Worker assigned to work with the applicant and his family asked the applicant if he had been drinking, a question the applicant alleges is racially offensive because he is Aboriginal;
that on January 28, 2010 Jennifer Elwood O’Brien, the respondent’s Access Facilitator who facilitated the applicant’s supervised access visits with his children told the applicant that Ms. Powers had proudly disclosed to her that she had asked the applicant this offensive question;
that on January 25, 2010 the applicant emailed Kim Van Louwe, the respondent’s Manager of Quality Assurance, Communications and Development, to complain about Ms. Power’s actions and that subsequently the respondent decided to no longer accept emails from the applicant and that the respondent would only respond to the applicant’s correspondence once a month. The Application states that this is in reprisal for the applicant’s complaint about Ms. Power.
3A three day hearing was held. I heard testimony from five witnesses; the applicant, “E.J.” the applicant’s common law partner, Sherry Power, Jennifer Elwood O’Brien and Kim Van Louwe. Both parties disclosed substantial documentary evidence including numerous letters and emails from the applicant to the respondent generally raising issues about the respondent’s services and case notes made by respondent staff recording their interactions with the applicant.
DECISION
4The Application is dismissed. I do not find that Ms. Power asking the applicant whether he had been drinking is an act of discrimination. I do not find Ms. Power’s subsequent communication to Ms. Elwood O’Brien about what she said to the applicant to be an act of discrimination. I do not find these actions of Ms. Power’s gave rise to the applicant being treated differently or in a discriminatory manner. Finally, I do not find the decision to limit the applicant’s communication with the respondent to be an act of reprisal for the applicant pursuing his rights under the Code.
BACKGROUND
5The applicant is an Aboriginal man who self identifies as Haudenosaunee, a member of the Wolf Clan Cayuga Nation of the Six Nations of the Grand River Territory. The applicant is the father of two young children. The applicant and his former spouse have been involved in long and contentious court proceedings over custody and access rights to their two young children.
6The respondent was involved with the applicant’s family on a number of occasions during the period 2005-2009. In March 2009, the respondent investigated allegations related to how the applicant was treating his children while in his care. In April 2009, the Unified Family Court, in response to a motion filed by the applicant’s ex-spouse, determined that the applicant’s access to his children would be limited to weekly supervised visits.
7The respondent supervised the applicant’s weekly 90 minute visits with his children at the Dofasco Access Centre from May 2009 to the time the applicant filed his Application in February 2010. The respondent also assigned a Family Service Worker to work with the applicant, his ex-spouse and their children during this period. Ms. Power was the third Family Service Worker to work with the applicant.
8The Application originally included several broader allegations in addition to the three allegations arising from specific incidents in January 2010 that were the subject of the present hearing. I dismissed these broader allegations in an Interim Decision dated December 19, 2011, 2011 HRTO 2271.
9The Application originally alleged that the respondent’s general, ongoing interactions with the applicant beginning in March 2009 were influenced by the applicant’s race, ancestry and ethnic origin, and that when the applicant complained about this, he was subject to reprisal.
10Specifically, the Application alleged that the respondent, including Ms. Power, had ignored the applicant’s requests that it become more familiar with the applicant and family’s Haudenosaunee traditions and culture and to notify and facilitate the involvement of his band in order to provide more culturally-appropriate service as required by Part 10 of the Child Family Services Act (“CFSA”). Part 10 of the CFSA is a section of the CFSA that deals specifically with how services including children’s aid services are to be provided to Aboriginal families.
11The Application further alleged that the respondent reprised against the applicant for continually asking for culturally appropriate services and for challenging the respondent for its narrow view of its obligations under Part 10 of the CFSA.
12The applicant filed a complaint with the Children and Family Services Review Board (“CFSRB”) in June 2009 that the respondent had failed to notify and involve his band and community as required under Part 10 of the CFSA. A hearing before the CFSRB was held on August 18-19, 2009 and the CFSRB issued a written decision on September 18, 2009 dismissing this complaint.
13The applicant filed a further complaint to the CFSRB in January 2010 that the respondent had failed to gain knowledge and an understanding of the importance of the applicant’s Haudenosaunee tradition and culture thus failing to meet its obligations under Part 10 of the CFSA. This complaint was settled on February 23, 2010, at a pre-hearing settlement discussion facilitated by the CFSRB.
14The Tribunal held a case conference on December 7, 2011 to consider the respondent’s requests for the early dismissal of the allegations in the Application that formed the basis of the applicant’s complaints to the CFSRB. The respondent submitted that these allegations had been appropriately dealt with by the CFSRB and therefore should be dismissed pursuant to section 45.1 of the Code. The Tribunal dismissed the allegations in question in its Interim Decision of December 19, 2011.
15There was some potential ambiguity about the status of the reprisal allegations in the original Application. At the outset of the hearing the applicant indicated that the reprisal allegation he wished to proceed with was his allegation that once he complained about Ms. Power’s conduct on January 25 the respondent retaliated against him by blocking his emails and thereby limiting his ability to communicate with the respondent. I subsequently ruled that this was the reprisal allegation that I would determine at the hearing of this Application.
EVIDENCE AND FINDINGS
16The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46. While the onus of whether a violation of the Code has occurred always remains with the applicant, the Tribunal must often determine whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent. See Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.).
17This is also a case in which witnesses have provided differing versions of events which has required me to make a number of credibility assessments. In determining credibility, I follow the Tribunal’s usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):
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 is reasonable in that place and in those conditions …
18In addition to these factors, the Tribunal has considered the following factors set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.
January 25 Telephone Call
19The applicant and Ms. Power agreed that their January 25 telephone conversation was principally about the applicant’s children having an after school program that might affect the applicant’s supervised access visit scheduled for January 28. Ms. Power wanted to change the scheduled visit, the applicant opposed the proposed change. Ultimately, the decision was to leave the visit as originally scheduled.
20The applicant testified that the conversation took place around noon and lasted about 15 minutes. Ms. Power’s case notes for this telephone conversation record the call as beginning at 12:11p.m.
21It was further agreed that the applicant got angry at the fact that his access visit might not take place as scheduled and at one point yelled at Ms. Power. The applicant testified that after he had angrily made a point with Ms. Power she asked him if he had been drinking. The applicant testified that the question came out of nowhere. He testified that he responded by asking her whether she had been drinking. The applicant testified that this was the extent of the exchange between him and Ms. Power before they resumed discussing his concerns about whether his scheduled access visit should be changed.
22Ms. Power testified that she did ask the applicant if he had been drinking and did so because he was slurring words. She testified that the applicant responded to her by asking if she had been drinking. She testified that she then told the applicant he had been slurring his words.
23The applicant testified that he had not been drinking. He testified that he has never been identified as having a drinking issue. He testified that his voice may have been quavering because he was angry and that Ms. Power may have misinterpreted his quavering voice for being drunk or that she may have chosen to misinterpret the situation. Under cross-examination the applicant agreed that it was open to the respondent to ask if someone has consumed substances as long as it was done in a culturally sensitive way.
24Ms. Power testified that she recognized that her question about drinking would likely not have been well received but nonetheless felt it was reasonable given the applicant had been slurring words and that a client drinking around noon would be a child protection concern.
25I accept the respondent’s contention that under its child protection mandate the respondent may have to ask difficult questions of clients including whether a client may have been drinking. In my view the applicant effectively agreed that the respondent could ask questions about drinking when he acknowledged that it was the respondent’s prerogative to ask whether a person has been using substances although he clearly stated that asking such questions should be done in a culturally sensitive manner.
26I find Ms. Power’s testimony that she believed that the applicant was slurring his words to be credible. I note that this testimony is consistent with Ms. Power’s detailed contemporaneous case notes for this telephone call which include:
- … (f) [father] said $ not an issue – (m) [mother] & lawyer don’t want to participate because they are hiding something
- (f) was really slurring his words)
- this worker asked (f) if he had been drinking
- (f) said no and asked worker if she had
- advised that the (f) is really slurring his words
- the (f) didn’t respond & said you need to listen because you haven’t given me an opportunity to be heard …
27The applicant did not specifically agree or deny that he may have been slurring words. His evidence was his voice may have been “quavering.”
28Ms. Power testified it was because of the applicant’s slurred words that she asked him if he had been drinking. I find this explanation for her question to be credible. Again this is supported, in my view, by Ms. Power’s case notes when they refer to Ms. Power advising the applicant he was really slurring his words after asking the applicant whether he had been drinking and the applicant asking Ms. Power if she had been drinking. In other words Ms. Power was, in my view, providing an explanation to the applicant for why she was asking him if he had been drinking; she believed he was slurring his words.
29The applicant testified that Ms. Power did not say to him that he had been slurring his words. I prefer Ms. Power’s testimony on this point. I find Ms. Power’s overall testimony which was detailed, consistent and forthrightly given, to be credible while I find many aspects of the applicant’s testimony, as I will identify later in this Decision, not to be credible. This overall credibility assessment contributes to my determination that Ms. Power is credible in relation to this particular issue, that she told the applicant that she thought he had been slurring his words. In making this assessment I give weight to the fact that Ms. Power’s contemporaneous case notes record that she did say this.
30I also find Ms. Power’s contention that the applicant was slurring words and that this was the reason she asked if he had been drinking is corroborated by Ms. Power’s further actions on January 25.
31Ms. Power testified that she informed her supervisor about her January 25 telephone conversation with the applicant. She testified that she also spoke to Mr. Van Louwe about her conversation with the applicant because Mr. Van Louwe knew the applicant from the applicant’s frequent emails and contact with the respondent. She testified that she provided Mr. Van Louwe with a voice message left for her by the applicant and asked him to review it to consider whether Mr. Van Louwe was of the view that the applicant was slurring his words during this voice mail and what this might mean.
32Mr. Van Louwe testified that Ms. Power talked to him on January 25 about her conversation with the applicant and told him her concern that the applicant may have been drinking because he had slurred his words. Mr. Van Louwe testified that Ms. Power provided him with a voice message that he believed had been sent by the applicant to Ms. Power from earlier on January 25 that Ms. Power asked him to review to determine whether the applicant was slurring his words. Mr. Van Louwe testified that, based on his review, he was of the opinion that the applicant had slurred words (in particular his own name) but this was not because the applicant had been drinking but rather because the applicant was agitated.
33I find Ms. Power and Mr. Van Louwe’s very specific and consistent evidence about their exchanges on January 25 credible and that this evidence corroborates the applicant’s testimony that she believed that the applicant had been slurring words and that this served for the basis for asking whether he had been drinking.
34The applicant testified that he was flabbergasted by the applicant’s question about whether he had been drinking. He testified that as an Aboriginal the question was highly insensitive and offensive. He testified that Ms. Power should have had more cultural sensitivity.
35Under cross examination Ms. Power accepted that her question could be perceived as “oppressive,” a term put to her by the applicant, but testified it was not intended as such and that she believed she handled a difficult situation sensitively.
36Ms. Power testified that she tried to provide an explanation for why she was asking the question by telling the applicant that he had been slurring words. She testified that she was prepared to discuss why she felt she had to ask the question further with the applicant if he had, during their telephone conversation, expressed an interest in doing so. She testified that when the applicant went on to talk about a different topic that she felt it best to accept the applicant’s interest in moving to changing the topic of conversation.
37I accept the applicant’s contention that he found the Ms. Power’s question offensive, that as an Aboriginal person a question about using alcohol can have particular meaning and can reasonably give rise to concerns about the intentions of the questioner and about possible stereotyping. Perhaps Ms. Power could have asked a question about drinking in a different way, providing further context for why the question was being asked rather than asking the question as directly as she did. Perhaps, the parties could have had a further conversation once the question had been asked that may have addressed some of the applicant’s concerns. In my view, the situation was likely complicated by the fact that there was already a strained relationship between the applicant and Ms. Power.
38However, the fact that Ms. Power asked a question about drinking and did so in a very direct manner does not lead me to find that the question itself violates the Code. Ms. Power, in my view, provided a reasonable non-discriminatory rationale for why she asked the question; she believed and I accept as true, based on Ms. Power’s testimony, her case notes and Mr. Van Louwe’s related testimony, that the applicant was slurring words. I accept that Ms. Power believed she was acting pursuant to her child protection mandate and I find that it was reasonable that she ask such a question pursuant to this mandate.
39I do note that the applicant described his voice as quavering and that Mr. Van Louwe did not think that the applicant’s slurred words were indicative of drinking. However, I accept Ms. Power’s assessment that the applicant was slurring his words in a manner that reasonably led her to asking her question. I find the fact that Ms. Power provided the applicant with an explanation for why she asked him whether he had been drinking, and was prepared to discuss the issue further with the applicant, evidence that she felt she had reasonable grounds for asking the question. I find the fact that Ms. Power forthrightly raised her concern that the applicant might have been drinking with Mr. Van Louwe and sought his opinion as to whether the applicant was drinking evidence that she thought her question was reasonable and one she could discuss with a peer. Under these circumstances I do not find that the very asking of the question constitutes an act of discrimination.
40The applicant testified his further concern was what Ms. Power might do after having questioned whether he had been drinking and the possible further impact this incident could have on his ongoing relationship with the respondent. He testified that this concern was heightened when he learned that Ms. Power shared what had happened with Ms. Elwood O’Brien.
41Ms. J., the applicant’s common law partner, testified that the applicant called her at her work on January 25 to tell her about his telephone call with Ms. Power. She testified that the applicant expressed to her that he was concerned about the service he would receive from the respondent in future given that he had been previously accused of mistreating his children and was now being accused of drinking.
42I find it understandable that the applicant would be concerned with what might happen as a result of Ms. Power’s question. However, as I will address in further detail later in this Decision, I find there is no evidence that Ms. Power’s question about the applicant drinking led to the applicant being differentially treated by the respondent. I am satisfied that Ms. Power asked the question, conferred with Mr. Van Louwe about whether her initial belief that the applicant may have been drinking was reasonable and communicated the fact that she had asked the question to her supervisor and Ms. Elwood O’Brien. I do not find any of these actions are discriminatory and there is no persuasive evidence that there were any further actions taken by the respondent that somehow arise from Ms. Power’s questioning of the applicant on January 25 that discriminate against the applicant.
The Alleged Second Telephone Call
43The applicant testified that he received a further telephone call from Ms. Power on January 25 at about 5:30 pm. He testified that it appeared to be a call made from Ms. Power’s home. The applicant testified that Ms. Power anxiously asked what the applicant wanted. He testified that she told him that she was a widow with a young child. He testified that she made a number of comments about knowing persons who are native and Aboriginal culture that the applicant found patronizing and insulting. The applicant testified that Ms. Power also told him that she would help get his kids back. The applicant testified that the conversation concluded with him telling Ms. Power not to ever call him again.
44The applicant was of the opinion that Ms. Power called him for a second time because she knew that asking the applicant if he had been drinking was wrong. He testified it was significant that there are no case notes for this telephone call.
45Ms. J. testified that she recalled the applicant telling her that he had spoken to Ms. Power by telephone again. She testified that the applicant told her that Ms. Power had said to him that she was at her wits’ end as to how to work with the applicant. She testified that the applicant told her that Ms. Power referred to the term “patriarchal” in a manner that the applicant believed indicated that she had Googled information about Haudenosaunee traditions and that the applicant found Ms. Power’s comments insulting and patronizing. Ms. J. testified that the applicant told her that Ms. Powers had asked whether the applicant wanted his kids back and that she had stated that she could get his kids. Ms. J. testified that she recalled the applicant telling her this second telephone call had taken place on January 25.
46Ms. Power denied making this telephone call. She testified that she records all her contacts with clients and there are no case notes for this alleged call. She testified that she had had previous difficult conversations with the applicant and there would have been no reason for her not to record this alleged telephone call. She testified that she would not have referred to herself as a widow or made comments to the effect that she had native friends or that she would help the applicant get his children back.
47Ms. Power testified that the applicant may be referring in some way to a telephone call they had on March 1, 2010 for which she did make case notes (which were before me). According to Ms. Power, she called the applicant on March 1 at 5:00 pm from her home (Ms. Power testified it was not unusual for her to call clients from home) and that it was during this conversation the applicant indicated that he did not want any further communication with Ms. Power. The applicant testified that there may have been a telephone conversation on March 1 that overlapped in content with the second conversation on January 25, but maintained that there was indeed a second conversation on January 25.
48I do not find the claim that this second telephone call took place on January 25 to be credible. The applicant testified that he found Ms. Power’s behaviour during this call to be offensive, including patronizing comments about Aboriginal culture, Ms. Power’s having native friends and comments that Ms. Power would help the applicant get his children back. In my view the applicant was clearly suggesting that this telephone call was important in revealing Ms. Power’s inappropriate and insensitive treatment of the applicant.
49I find it significant that the first time the applicant referred to this telephone call in any documentation that was before me was in the will say statement he disclosed for the hearing. There is no reference to this telephone call and its contents in any of the applicant’s correspondence with the respondent including emails to Ms. Power on January 26 and to Mr. Van Louwe on January 27; emails that explicitly complain about various of the respondent’s actions. There is no reference to this telephone call in the applicant’s February 14, 2010 Application to the Tribunal. When asked during the hearing why the applicant had not referred to this telephone call before, the applicant testified that he felt this was the first time he felt it safe to raise this incident, noting that all his previous complaints had been unsuccessful.
50I do not find this explanation credible. The fact is that the applicant regularly complained to the respondent about its service. There were numerous emails from the applicant to respondent staff detailing concerns he had with the way he was being treated. The applicant filed further complaints with the CFSRB and the Tribunal. I do not find it credible that the reason he did not previously refer to this telephone conversation to the respondent is because he did not feel safe in raising it. I do not find it credible that he would refer to the telephone conversation on January 25 that took place around noon in his Application to the Tribunal but not to a second conversation on the same day- a very much related conversation- on the basis that he did not feel safe to do so.
51I am not prepared to find that this January 25, 2010 telephone conversation between the applicant and Ms. Power took place as alleged even though Ms. J. also testified that the applicant told her of the conversation and that she recalled that it took place on January 25. I find Ms. J.’s brief testimony in which she stated she believed she recalled the applicant telling her in January of this alleged January 25 telephone call not credible in view of my finding that it is wholly improbable that the applicant would not have complained about this telephone call at any time prior to the filing of his will say.
52I am of the view that some aspects of this alleged conversation may have taken place in a telephone conversation between the applicant and Ms. Powers on March 1 (after the filing of the Application). I note that Ms. Power’s notes for this conversation record the applicant telling her to no longer contact him, a statement the applicant alleged he made during the second January 25 conversation. The notes record that Ms. Power says she is trying to help the applicant and that the applicant does not believe Ms. Power is taking his culture into consideration which somewhat relate to issues the applicant alleges were raised during the January 25 conversation. However, I am not prepared, given the applicant’s insistence that he had a second conversation with the applicant on January 25, to give any weight to the allegations that Ms. Powers made racially insensitive comments in a telephone conversation with the applicant on March 1 or any other time after January 25 in assessing the allegations that are before me.
January 28, 2010 Incident
53The applicant testified that on January 28 he attended a supervised access visit with his children. He testified that at the end of the visit he was speaking with Ms. Elwood O’Brien, the respondent’s staff person who facilitates and observes the applicant’s access visit. He testified that he asked Ms. Elwood O’Brien if she had been talking to Ms. Power. The applicant testified that Ms. Elwood O’Brien put her hands to her face in a gesture to indicate surprise and that she then asked the applicant whether Ms. Power had questioned the applicant about whether he had been drinking. The applicant testified he then turned away and Ms. Elwood O’Brien noticed the applicant’s embarrassment which brought an end their exchange.
54Ms. Elwood O’Brien testified it was the applicant who initiated the conversation about what had happened between him and Ms. Power on January 25, not Ms. Elwood O’Brien. She testified that the applicant told her that he got a telephone call from Ms. Power who asked him if he had been drinking and that he believed he had been asked this because he is native. Ms. Elwood O’Brien testified that she then told the applicant that Ms. Power had already told her of the applicant’s conversation with Ms. Power on January 25. She testified that there was no further discussion with the applicant on January 28 about this topic.
55Ms. Elwood O’Brien testified that she did not put her hands to her face during her conversation with the applicant on January 28. She testified that she was not surprised because Ms. Power had already told her of the telephone call and that there were no discrepancies in what Ms. Power told her about the telephone call and what the applicant said to her on January 28.
56Ms. J. testified that she was present during the applicant’s conversation with Ms. Elwood O’Brien at the access centre on January 28. She testified that it was the applicant who asked Ms. Elwood O’Brien if she had heard that Ms. Powers had previously asked the applicant if he had been drinking. She testified that Ms. Elwood O’Brien seemed taken aback by the question. She testified that Ms. Elwood O’Brien did not go on to indicate that Ms. Power had already spoken to her about the telephone conversation on January 25.
57Ms. Elwood O’Brien testified that sometime between January 25 and January 28 Ms. Power had told her about her January 25 telephone conversation with the applicant focusing on the fact that the applicant had been angry and upset about the possible change in his January 28, 2010 access visit. She testified that Ms. Power also told her about the fact that she had asked the applicant whether he had been drinking and that the applicant had denied the allegation.
58Ms. Elwood O’Brien testified that it was normal for Family Service Workers and Access Facilitators to be in contact and to discuss issues that related to clients and their visits to the access centre. She testified that her conversation with Ms. Power about the applicant was professional, that she had no concerns that Ms. Power was speaking in an inappropriate manner. She testified that Ms. Power did not refer to the January 25 telephone call again.
59Ms. Power testified that she told Ms. Elwood O’Brien about her January 25 telephone conversation with the applicant because it was about the applicant and his access visit on January 28th and that this was relevant information for Ms. Elwood O’Brien to know. She testified that she felt it important to communicate that the applicant had been angry during this conversation and the fact that she had asked the applicant about drinking came up as part of her conversation with Ms. Elwood O’Brien.
60Ms. Elwood O’Brien testified that she had never had a concern that the applicant had come to the access centre drunk. She testified that if a parent does appear intoxicated at the access centre she is required to ask that person about drinking because of safety. She testified that it is difficult to ask these types of questions but one has to ask.
61The Application alleges that Ms. Elwood O’Brien told the applicant that Ms. Power had proudly disclosed to her that she had asked the applicant if he had been drinking. I do not find there is evidence to support this allegation.
62It was the applicant’s testimony that Ms. Elwood O’Brien told him unprompted that Ms. Power had told her about asking the applicant if he had been drinking. Both Ms. Elwood O’Brien and Ms. J testified that it was the applicant who raised the topic with Ms. Elwood O’Brien. I find that it is more likely that the applicant was the one who raised the issue of Ms. Power’s question and not Ms. Elwood O’Brien given the testimony before me. This is a further instance in which I do not find the applicant’s version of events to be credible.
63I heard differing accounts of how Ms. Elwood O’Brien reacted during her conversation with the applicant on January 28 whether, for example, she acted surprised or not. However, I fail to see how I can conclude from the evidence before me what Ms. Elwood O’Brien said or how she reacted (no matter which version I accept), that Ms. Power “proudly announced” to Ms. Elwood O’Brien that she had asked the applicant whether he had been drinking. There is no evidence before me to suggest the way in which Ms. Power may have communicated with Ms. Elwood O’Brien was inappropriate or done in order to deride the applicant.
64I am satisfied, based on Ms. Power and Ms. Elwood O’Brien’s explanations, that it was a standard and regular practice for Family Service Workers and Access Co-ordinators to communicate about shared clients, that it was reasonable for Ms. Power to share information about the January 25 conversation that she had with the applicant given that is centred on the applicant’s January 28 supervised access meeting that would involve Ms. Elwood O’Brien.
65The applicant testified that, based on Ms. Elwood O’Brien’s reactions, he was concerned about what Ms. Power might be communicating to other respondent staff about the January 25 telephone call. The applicant was clearly concerned about Ms. Power’s motives and whether he was being unfairly labelled or now susceptible to unfair treatment arising from Ms. Power’s question.
66There is no evidence that the fact that Ms. Power shared information about what she asked the applicant with Ms. Elwood O’Brien and with Mr. Van Louwe led to the applicant being differentially treated or treated in a discriminatory manner.
67There is no evidence nor, in fact, no allegation that Ms. Elwood O’Brien or Mr. Van Louwe treated the applicant differently after January 25 except for the allegation of reprisal that I will address shortly. There is no evidence that the respondent took action based on Ms. Power’s question, for example, by communicating to the applicant a further concern about whether he was drinking or by initiating an investigation into whether he was drinking. So while the applicant may have had concerns I see no evidence of differential treatment arising out of the event of January 25 and 28.
Decision to Limit the Applicant’s Correspondence with the Respondent
68Mr. Van Louwe testified that the decision to block the applicant’s emails was taken at a Consultation and Support Team (“CAST”) meeting on January 19 that was held to consider how to continue to provide services to the applicant and his family. The respondent disclosed a series of internal emails about how this decision was implemented. This included a January 20, 2010 email from Ms. Power to the respondent’s Information Systems manager stating “we recently had a CAST and it was decided that we need to block a client from emailing the agency. How do we go about blocking his email correspondence?” The applicant provided further internal correspondence that describes the internal steps being taken to block the applicant’s correspondence.
69I find that the decision to no longer accept the applicant’s emails was made on January 19 and consequently this decision cannot be considered an act of reprisal for the applicant complaining about Ms. Power’s actions during the January 25 telephone call. I am satisfied that the respondent’s documentary evidence does establish that a CAST meeting was held on January 19 to consider how to continue with providing services to the applicant’s family and that on January 20 the respondent was taking steps to implement a decision to block the applicant’s emails. It is true that, according to the respondent’s documents, there are further administrative steps that take place on January 26 to block the applicant’s emails but the initial decision and implementation clearly predate January 25.
70The Application also alleges that the respondent determined that it would only respond to the applicant’s emails once a month. However this decision was not made in January 2010 as alleged in the Application. The applicant agreed in testimony that it was in August 2009 the respondent informed him that due to the volume of his emails that the respondent would only respond once a month to his correspondence.
71In his Application and during his testimony the applicant alleged that he did complain to the respondent about Ms. Power and what happened during their telephone call on January 25. This raises a question as to whether the respondent had a duty to investigate this complaint.
72The Tribunal has held that a respondent has a duty to investigate complaints of discrimination or harassment; that the duty to investigate is the means by which a respondent ensures that it is achieving its Code mandated responsibility of operating a discrimination free environment.
73The applicant testified that he wrote an email to Mr. Van Louwe on January 25 to complain about Ms. Power’s behaviour on January 25 and that Mr. Van Louwe telephoned him later that day. He testified that during their telephone conversation he and Mr. Van Louwe specifically discussed what Ms. Power had said to the applicant on January 25. He testified that he asked Mr. Van Louwe to act as his liaison with the respondent. He testified that he later received a letter back from Mr. Van Louwe saying he could not play this role.
74Mr. Van Louwe denied receiving a written complaint from the applicant on January 25 and having a telephone conversation with the applicant on that date about Ms. Power. He testified that the first time he heard from the applicant after his January 25 telephone call with Ms. Power was by email on January 27. He testified that the applicant raised a number of issues of concern in his January 27 email and that this email made only a brief reference to Ms. Power having asked the applicant about drinking. He testified that he did have a subsequent telephone conversation with the applicant in which a number of issues were discussed including the applicant wanting Mr. Van Louwe to act as his liaison with the respondent. However, Mr. Van Louwe testified that there was no discussion about Ms. Power’s comments.
75I prefer Mr. Van Louwe’s account of events which, in my view, is supported by the documentary evidence before me. This is another instance in which I find the applicant’s version of events not to be credible.
76In terms of documentary evidence, I find it particularly significant that I have no correspondence before me from the applicant dated January 25 complaining about Ms. Power’s actions to support the applicant’s claim that he submitted such an email. The applicant, who disclosed an extensive number of his emails, did not disclose such an email. The respondent did produce two emails from the applicant dated January 25, 2010; one sent to Mr. Van Louwe and one to the respondents’ senior counsel. Neither of these emails refers to the applicant’s January 25 telephone call with Ms. Power.
77The respondent’s also produced an email from the applicant to Ms. Power dated January 26 in which the applicant does complain at length about a January 26 telephone call from Ms. Power. The applicant’s complaint is that Ms. Power was prepared to reschedule the applicant’s January 28 scheduled access meeting without confirming the legitimacy of his ex-spouse’s request to do so and without confirming with the applicant. There is no mention of the January 25 call.
78I did have before me an email from the applicant to Mr. Van Louwe dated January 27 in which the applicant does complain about Ms. Power, listing a number of her behaviours including that “she has offensively suggested that I require a mental assessment, asked me if he was drinking or drunk during telephone conversations and has even suggested that I should stop my pursuit of bringing resolution to the ongoing access and custody battle with ___ [the applicant’s ex-spouse].” However, significantly in my view, Ms. Power’s actions are not the focus of this email. The clear purpose of the applicant’s January 27 email is to provide two charts containing information about the history of the applicant’s relationship with his ex-spouse and his potential future relationship with her. The applicant specifically asks that the respondent review the first chart and fill in the second. He makes a number of comments about his concerns about the actions of his ex-spouse.
79I am not prepared on this evidence to accept that the applicant made both a written and a verbal complaint to Mr. Van Louwe about Ms. Power on January 25 as claimed.
80I also do not find that the applicant’s January 27 email with its brief reference to Ms. Power’s question about the applicant’s drinking constitutes a complaint that would trigger the respondent’s duty to investigate. This email does not specifically ask the respondent to take action in relation to Ms. Power nor does it suggest that the applicant’s concerns with Ms. Power’s actions on January 25 are related to the applicant’s race, ancestry or ethnic origin.
Other Evidence
81Both parties in presenting their cases included evidence about what they believed the nature of the relationship between the applicant and the respondent was in the period April 2009 to January 2010. It was understood at the hearing that this evidence was being adduced not for the purposes of having the Tribunal making findings as to what happened during this period and whether the applicant was subject to discriminatory treatment during his ongoing relationship with the respondent but rather to potentially assist the Tribunal in its determining the significance of the events in January 2010 that were before it.
82The applicant testified that the relationship was difficult in large measure because in his view the respondent was not providing culturally appropriate services for both him and his children. It was also clear from the applicant’s oral and documentary evidence that he was deeply dissatisfied with the respondent’s role in the investigation in March and April 2009 of his alleged treatment of his children (and why he believed this investigation was flawed and did not duly consider his views). It was also clear that the applicant objected to the actions of his ex-spouse in her dealings with the children and with the respondent. He also referred to an assessment report prepared by Gary Direnfeld in part to support his contention that the respondent should take other steps to provide him with culturally appropriate services.
83The respondent adduced its evidence in order to principally show that its efforts in working with the applicant during this period were reasonable, that there was an awareness of the applicant’s concern about culturally appropriate services and how difficult it was to provide service to the applicant given his propensity to complain and, in the respondent’s view, not always co-operate. It too, referred to the Mr. Direnfeld’s report and its findings in relation to the applicant’s behaviour with his children and others.
84Ultimately I did not need to rely on this evidence to make my findings and determinations because I was able to make findings of fact and credibility arising out of the evidence I heard about events that took place in January 2010.
85I also heard brief evidence (and submissions) about proposed remedies if I was to find that there was a violation of the Code. In light of my decision dismissing the Application I need not refer to this material.
86For all of these reasons the Application is dismissed.
Dated at Toronto this 7th day of August, 2012
Signed by
Eric Whist
Vice-chair