Gomes v. Skyline Boutique Hotels & Resorts Inc., 2012 HRTO 1587

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carlito Gomes

Applicant

-and-

Skyline Boutique Hotels & Resorts Inc. and Nihal Taha

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: August 17, 2012

Citation: 2012 HRTO 1587

Indexed as: Gomes v. Skyline Boutique Hotels & Resorts Inc.

APPEARANCES

Carlito Gomes, Applicant

Self-represented

Skyline Boutique Hotels & Resorts Inc. and Nihal Taha, Respondents

Katherine E. Ford and Gerald Griffiths, 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 with respect to employment owing to race, ancestry, place of origin, citizenship, family status, marital status and reprisal.

2The hearing into this matter was held on July 10, 11 and 12, 2012. At the commencement of the hearing I heard the evidence of Laurence Roptus, who was one of three witnesses for the respondents. The parties consented to this order of questioning. I then heard from the applicant’s only witness, Yvonne Awongada. Again, the parties consented to this order of questioning. After hearing from Ms. Awongada I heard from the applicant. Following the applicant’s testimony, the respondents requested that the Application be dismissed on the basis that it did not have a reasonable prospect of success. I indicated to the applicant the significance of the request but I refused to entertain it until after hearing from the personal respondent.

3At the conclusion of the second day of the hearing, after hearing from the personal respondent, the respondents, citing Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, again requested that I dismiss the application on the basis that it had no reasonable prospect of success. Pellerin states at para. 30:

For all these reasons, I have considered the parties’ arguments in light of the evidence in this case in relation to the question of whether the Application has no reasonable prospect of success. In my view, this question should be considered in light of the evidence that has been heard and that is reasonably expected to be presented. This involves a consideration of whether, in light of the pleadings, witness statements, documents relied upon and evidence that has been heard, there is a reasonable prospect that an applicant can meet his or her burden of proof.

The respondents provided the applicant with a copy of the Pellerin decision. The following morning I heard the parties’ submissions on whether there was a reasonable prospect of success. This decision addresses that issue.

Background

4The applicant’s country of origin is India. He earned his undergraduate and graduate degrees at the University of Bombay. He subsequently moved to Dubai where, for over a decade, he worked in the hotel industry. In 2006, he settled in Canada.

5On or about November 9, 2009, the applicant was hired as a Food and Beverage Controller for the Pantages Toronto Hotel & Spa and the Cosmopolitan Toronto Hotel & Spa. Both the Pantages and the Cosmopolitan are managed by the corporate respondent. The applicant reported directly to the personal respondent, who was the General Manager of the Pantages and Cosmopolitan. The personal respondent is no longer employed by the corporate respondent.

6On or about March 29, 2010, the applicant resigned his employment after being confronted by the personal respondent with a complaint by a young staff member of sexual harassment and the possibility that the police would become involved.

Applicant’s evidence

7The applicant testified that throughout his period of employment with the corporate respondent he was mistreated by the personal respondent. He indicated that she forced him to work excessive hours and that she gave him duties that were outside the scope of his position. In providing examples of the latter, he stated that he had to write operational guides for various departments in the hotels and he cited an occasion when he was required to call the police and file a theft complaint against a staff member who had been recently terminated.

8The applicant testified that every two or three days the personal respondent would yell at him for not doing things in the way she wanted. He stated that the personal respondent would often call him names such as stupid and donkey. The applicant testified that on at least five occasions the personal respondent made disparaging remarks about his background, reminding him that he was from India and although he had worked in the hotel industry in Dubai there were many differences between how things were done there and in Canada. He testified that he felt humiliated by the yelling, name calling and references to his background particularly because they took place in front of, or were overheard by, staff and fellow managers.

9As for his resignation, the applicant testified that the sexual harassment complaint that was made against him was based on a misunderstanding and that the personal respondent pressed him into resigning by threatening to call the police.

Credibility

10Throughout the course of the testimony and in reviewing the documentary evidence, I found that much of the applicant’s evidence was not reliable. In considering issues of credibility I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 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 carries 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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

11In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the Tribunal stated at para. 54:

Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.

Analysis

12The Application raises the grounds of family status, marital status and reprisal. However, the applicant failed to lead any evidence with respect to these grounds. The Application is therefore dismissed with respect to those grounds.

13The Applicant testified that he had to work long hours and that he was given duties outside of his job description. The personal respondent testified that the applicant was actually under-employed and that she was constantly trying to find things for him to do. In any event, I am not satisfied that working long hours or performing additional duties in an employment situation can be characterized as adverse treatment contrary to the Code. Even if I were to assume that working long hours or being given duties outside a job description amounted to adverse treatment the applicant did not lead any evidence linking this treatment to a Code ground.

14The Applicant testified that the personal respondent would yell at him every second or third day for not performing his duties in the way the personal respondent wanted. I would note first of all, having heard the testimony of the personal respondent, the personal respondent speaks not only quickly but loudly as well. Some might even consider this as yelling. Nonetheless, the applicant failed to provide any evidence that the yelling was linked to a Code ground. His own evidence was that he was yelled at when he failed to perform a duty in the way the personal respondent wanted. Moreover he failed to establish that being subjected to yelling was differential treatment. According to the applicant’s own witness Ms. Awongada, a telephone operator who worked right in front of the personal respondent’s office, the personal respondent yelled at all her managers.

15The applicant testified that on a number of occasions the personal respondent called him names and disparaged his background. According to the applicant, the personal respondent would remind him that he was from India and the Middle East, that the work culture in India and the Middle East is different from Canada and that things are done differently in Canada. While such evidence, if accepted, could establish a link between his treatment and his place of origin, I have significant concerns as to the credibility and reliability of the applicant’s evidence in this regard for a number of reasons and therefore have rejected his evidence.

16First is my overall assessment of the applicant’s credibility during his testimony. I found that he was argumentative, often evasive and lacking in candour and prone to exaggeration and embellishment. During his cross-examination, I had to caution the applicant a number of times to give direct answers to the questions he was being asked. In addition, the applicant’s evidence was in many instances internally inconsistent and inconsistent with external evidence. For example, in his testimony in chief, the applicant stated that the personal respondent told him that the corporate respondent’s COO wanted him watched and wanted to get rid of him. When challenged in cross-examination to explain why this allegation was not in his Application, the applicant failed to provide any explanation other than saying “true but…” and not finishing his sentence. The applicant testified that he was reprimanded by the personal respondent for assisting Ms. Awongada and was told by her that his ways from India and Dubai were not appropriate here. Again, this allegation was not in the applicant’s Application. When asked to explain this omission, the applicant stated “that may be so but she did say that”. Apparently Ms. Awongada was party to this interaction; however, though she was the applicant’s witness, she failed to provide any evidence supporting the applicant’s allegation.

17The personal respondent, on the other hand, testified in a straightforward manner, without hesitation and without contradiction. In cross-examination, she testified directly and clearly and I find her evidence reliable. I found her sincere and credible. She testified that she would never call the applicant names and did not under any circumstances do so. She indicated that she would never make disparaging or unflattering remarks about the applicant’s background and did not do so. She indicated that she takes pride in being a professional hotelier and would never make such comments. She did concede that she has a firm manner and a loud voice which may have intimidated some of her staff.

18Second, I am concerned about the lack of corroboration of the applicant’s allegations. The applicant testified that the inappropriate remarks about his background and the name-calling were made in front of, or overheard by, staff and fellow managers. In some instances the applicant identified specific individuals who are alleged to have been present when these alleged comments were made. And yet none of these witnesses were called by the applicant to give evidence before me in support of his allegations. Although he called Ms. Awongada, she did not testify that she heard any of the alleged comments.

19Third, the applicant’s testimony was not consistent with his Application. For example, in his Application the applicant notes that on three occasions the personal respondent made inappropriate remarks about his background. In his testimony the applicant outlined five occasions in which the personal respondent commented on his background. The applicant testified that on one of these occasions the personal respondent stated to him that his degrees from India did not mean anything in Canada. This was not mentioned in the Application. When questioned as to why he did not record all of the allegedly disparaging remarks in his Application, the applicant stated, “I was getting late to file my application so I left out some information”. I do not accept this as a credible explanation. I note that in fact the applicant filed his Application four months prior to the expiration of the limitation period.

20My concern about the credibility and reliability of the applicant’s evidence is heightened by the fact that he did not raise any issue or complain about the alleged comments at any time prior to his termination of his employment. The applicant testified that he did not complain because he was afraid of losing his job. Again, I do not accept this as a credible explanation. While the applicant has provided this as his explanation for why he did not raise it prior to his leaving, it does not explain why he did not raise it afterwards. Following his resignation from his job the applicant sent a number of e-mails to management, including the corporate respondent’s C.E.O., outlining a number of grievances he had with respect to his employment, yet there was no mention of the disparaging comments allegedly made by the personal respondent during the course of his employment. The applicant conceded this to be the case. He testified that he did not raise this issue in these e-mails because he wanted to meet with the corporate respondent’s C.E.O. to tell him about the issue face-to-face. This meeting, it would appear, never took place.

21For all these reasons, I find that the applicant’s evidence with respect to the alleged disparaging comments and name-calling lacks credibility. In my view, there is no reliable evidence that any of the alleged comments were made. Accordingly, a Code violation cannot be established.

22The applicant raises the allegation of discrimination as well with respect to his termination. He alleges that his resignation was coerced. He claims that he had no other choice but to resign when the possibility of police involvement was raised by the personal respondent.

23The applicant’s version of events relating to his resignation is quite different from the personal respondent’s. The applicant claims that he went to the personal respondent’s office to tell her about the harassment allegations and to explain how it was all based on a misunderstanding. According to the applicant, the personal respondent turned on him. She yelled at him. She screamed that she had defended him all along and now she had a harassment complaint from a member of the staff. The applicant alleges that the personal respondent told him that she had spoken to the staff member and the staff member told her that she was going to the police. The applicant testified that the personal respondent told him he must resign to save his career and to sit down and do up a resignation or else she would be calling the police. The applicant alleges that he was told by the personal respondent that his family would be ashamed and what would his kids think.

24The personal respondent claims that she called the applicant into her office to advise him of the harassment complaint. She states that she told the applicant that she had spoken with the staff member and that the staff member had told her she was considering contacting the police about the applicant. According to the personal respondent, the applicant became embarrassed and extremely agitated on being made aware of the allegations. He began to cry and hugged the personal respondent saying that he had abused her trust in him. The personal respondent claims that the applicant confessed that he was having problems in his personal life and that police involvement and the nature of the allegations against him would be ruinous for him in light of those problems. The personal respondent indicates that she asked the applicant what she could do for him. She indicates that the applicant went to his desk and drafted a letter of resignation, tendered it and then left the premises with the plea that the police not be contacted. According to the personal respondent, the staff member ultimately decided not to get the police involved and the police were never contacted.

25Of the two versions of events, I am inclined to accept that of the personal respondent. As I have indicated, there are serious concerns with respect to the credibility and reliability of the applicant’s evidence whereas I have no such concerns with the personal respondent’s evidence.

26Moreover, I am troubled by the applicant’s failure to provide any evidence corroborating his version of events. The applicant provided a will-say statement for Ms. Awongada that he authored which stated, “Witness on Monday, March 29, 2010 as to (events) how I was yelled at, harassed into submitting my resignation and asked to leave the hotel by the GM Nihal Taha”. In fact Ms. Awongada did not testify to this effect. She testified that there was commotion in the office that day but she was not clear why and that it was only “later that I found out what was going on.”

27I find that the applicant resigned on his own accord. In this regard, I find that the applicant did not provide any reliable evidence that would demonstrate a link between the personal respondent’s conduct that he complains of and a prohibited ground of the Code.

28In my view it is evident, based on the evidence presented, that the applicant cannot prove discrimination within the meaning of the Code. There would be little served by hearing from the respondents’ remaining witnesses. Their will-says indicate that their evidence is consistent with that given by the personal respondent.

order

29The Application has no reasonable prospect of success and is therefore dismissed.