HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Mason

Applicant

-and-

Peel Heating Service Experts

Respondent

DECISION

Adjudicator: Alison Renton

Date: October 1, 2012

Citation: 2012 HRTO 1865

Indexed as: Mason v. Peel Heating Service Experts

APPEARANCES

David Mason, Applicant

Self-represented

Peel Heating Service Experts, Respondent

Gita Anand, Counsel

Introduction

1This is an Application filed on October 14, 2009 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 because of ancestry, age, and record of offences. The respondent filed a Response denying the allegations. The applicant did not file a Reply.

2A Decision dated November 15, 2010, 2010 HRTO 2261 (“the 2010 Decision”), was issued by the Tribunal dismissing the Application as abandoned. The applicant had failed to attend a scheduled mediation and failed to respond to the Tribunal’s correspondence asking him to advise of his intentions with respect to his Application and warning him that if he did not respond, the Tribunal would deem the Application abandoned.

3Subsequent to the 2010 Decision, the applicant filed a Request for Reconsideration (“the Request”) requesting that his Application proceed and the respondent filed a Response to the Request for Order During Proceedings. Case Assessment Directions were issued by the Tribunal, dated March 7 and June 6, 2011. Ultimately, the applicant’s Request was granted and the Application was permitted to proceed. See 2011 HRTO 1530.

4A Notice of Confirmation of Hearing, dated November 23, 2011, was issued by the Tribunal scheduling a hearing for May 8, 2012. A Case Assessment Direction, dated April 10, 2012 (“the April CAD”) was issued by the Tribunal when the applicant failed to comply with his disclosure obligations as required by Rules 16 and 17 of the Tribunal’s Rules of Procedure. In addition to requiring immediate compliance with his disclosure obligations, at para. 4, the Tribunal stated:

The Tribunal notes that in the Application, the applicant claims to have lost wages as a result of his allegations against the respondent. Accordingly, the Tribunal would expect that the applicant file documentation supporting his claim for loss of wages. Further, even if the applicant does not have any documentation upon which he intends to rely, given his allegations, the Tribunal would expect that he will testify at the May 8, 2012 hearing. Accordingly, the applicant should be advising the Tribunal, copying the respondent, that he intends to be a witness and setting out a statement of his anticipated evidence.

5A further Case Assessment Direction, dated May 4, 2012, was issued by the Tribunal. In it, the Tribunal noted that the applicant had emailed the Tribunal advising that he intended to testify as a witness, and briefly outlining his anticipated evidence, and referring to a document the respondent submitted from Service Canada, but failing to provide a copy. The respondent also wrote to the Tribunal requesting that the Application be dismissed because the applicant had failed to comply with his disclosure obligations, or alternatively that the applicant be prevented from relying upon new claims and evidence pertaining to “creed”.

6The Tribunal noted that the applicant had not technically complied with the Tribunal’s directions, but he had established contact with the Tribunal and the respondent, indicated that he intended to testify and had provided a brief outline of his evidence. He was reminded about disclosing documentation in advance of the hearing and warned that he may not be able to rely upon such documentation if produced at the hearing.

7At the hearing, the Tribunal heard evidence from the applicant and, for the respondent, Dennis Good, human resources director, Steve Tomalin, general manager, and Wayne Fagan, field supervisor. During the applicant’s final submissions, and after reading the definition of “record of offences” from section 10 of the Code, the applicant stated that he was not pursuing the ground of “record of offences”. Accordingly, given that the applicant withdrew this claim, despite hearing evidence pertaining to allegations about the applicant being called “a criminal” and the respondent’s practices pertaining to background checks, I am not including any evidence pertaining to this Code ground in this Decision.

8Further, given the confusion about who allegedly made discriminatory comments to the applicant, I have referred to Mr. Steve Tomalin and Mr. Wayne Fagan by their first names in setting out the applicant’s evidence as that is how he referred to them during the hearing.

brief conclusion

9For the reasons set out below, I have determined that the applicant has not met his onus to establish on a balance of probabilities that he was discriminated against contrary to the Code and accordingly the Application is dismissed.

the evidence

10The respondent is a business style of Service Experts, a division of Lennox Canada Inc. Lennox is a HVAC company which provides installation and service for residential heating, air-conditioning, ventilation and refrigeration equipment. The respondent had posted a job ad on Workopolis for multiple installation and service technician positions located for their Cambridge, Greater Toronto Area, Kitchener, and St. Catharines locations. A G2 license and 313D certificate of qualification was required for the service technician position, the position for which the applicant applied. The applicant was invited to an interview that took place on October 6, 2009 at approximately 8:00 am. The alleged discrimination took place during the interview.

11On his Application form, the applicant claimed that “Wayne” called him for a job interview and shortly after meeting with Wayne, he met with “Wayne’s” supervisor, “Steve”. During his examination-in-chief, the applicant did not testify about who called him for the interview, or with whom he first met during the interview.

12The applicant testified during his cross-examination that he was taken into a room that he described as a storage room, which was cluttered and which contained broken office equipment. He testified during examination-in-chief that the interview lasted less than 10 minutes and was very unprofessional and “the 2 interviewers were going in and out of the room like they had no time for me”. There were no work related questions, he testified during his examination-in-chief, he was not asked about his work experiences, but he was asked for references, and he was asked how much he wanted as a salary.

13During his examination-in-chief, the applicant testified that the word “Jewish” came up at the end of the interview and he was told “I don’t know that we can hire you people,” “you don’t fit our company profile” and “you look kind of old or something in that manner”. The Tribunal asked the applicant who made the alleged comments, to which the applicant responded he believed it was “Wayne”. He testified that “Wayne” said “you look kind of old” or “something in that manner” but noted that it may not have been those exact words but words to that effect. Further, he testified that “Wayne” told him, “your appearance does not fit our profile”.

14In response to a question from the Tribunal about the identity of “he” on his Application form in the allegation, “… after briefly speaking with [Wayne] at 8:00 am in the morning I was introduced to his supervisor Steve. Right away he was abusive to me”, the applicant said that Steve was the younger man and that Wayne made the abusive comments. The applicant clarified that Steve was hardly in the interview room and that Steve did not make the comments to him.

15During his cross-examination, the applicant was asked to identify which individual was “Wayne” and which was “Steve” as both were present, at this point, in the hearing room. The applicant indicated that he was not sure, but thought that “Wayne” was the older of the two. Later on, in response to further questions by the respondent’s counsel, he believed that Wayne was “the younger person” and testified that he was not 100 per cent sure. He testified that he met them for less than 10 minutes, three years before. Further in his cross-examination, the applicant testified that “it was the younger man who made the comments and I do recall distinctly that the other person was there for a few minutes and didn’t make the comments”.

16The applicant testified, during his cross-examination, that he did not meet with Steve first, but “believed” it was Wayne who showed him into a small cluttered room, containing broken office furniture, which looked like a storage room. He testified that Wayne spoke with him for about a minute or so. The applicant did not remember Wayne saying anything more than “we’re Lennox” and described it as a service company. Wayne then got Steve. Wayne, the applicant testified, talked for 3 to 4 minutes and seemed to “profile” the applicant during these few minutes. The applicant alleges that Wayne made a statement during this time, claiming “he used the word Jewish and me”. He could not exactly recall the statement, but the applicant knew that it was used.

17Further, the applicant testified during his cross-examination, Wayne said “your appearance doesn’t quite fit our profile and you look kind of old”. Later during his cross-examination, and in response to being asked if anyone asked his age, the applicant stated no one asked his age, but rather that they made assumptions.

18Wayne, the applicant alleged during cross-examination, handed the applicant a note with his email address on it so that the applicant could email his references to him. Before handing him the note, the applicant testified that Wayne told him “I’m not sure if we can hire you people without references and we’re Lennox and we can’t hire just anybody”. There were, the applicant testified, no questions about what he did in other jobs, or past working experience, but they did ask him why he had short work experience with other employers. They did not, the applicant testified in cross-examination, ask him if he had residential experience. Wayne told the applicant that the company does background checks. The applicant testified during his cross-examination that he did not provide any references and stated during the hearing, “Why would I?”.

19On his Application form and in response to question 16 asking the applicant to identify what documents he had, the applicant wrote “a hand written letter from [s]teve”. The applicant was cross-examined on this information and testified that the note was from Steve but contained Wayne’s email on it. The applicant confirmed that he had not produced this document and confirmed that it was Steve asking, at the time, for references.

20The applicant was told during his cross-examination that respondent’s witnesses would testify that he appeared unkempt on the day of the interview, with messy hair and dirty clothes, which could explain the “you don’t fit our company profile” comment. The applicant denied that he was unkempt and he insisted that he was judged based upon his appearance which amounts to “open racism”.

21Subsequent to the interview, and on the same day, the applicant sent an email to the customer service department of the respondent (“the complaint email”). The complaint email was marked as an exhibit. It stated:

…. I agreed to come in for an early morning meeting with a branch of your company located at [address] in Brampton. I came in believing your company was good to work for and professional. I met with Steve who took one look at me and made several racist comments and asked illegal questions all going against the human rights code. I met with him for less th[a]n 10 minutes and was disgusted with his unprofessional and immoral attitude. He seemed more concern[ed] that I would work as che[a]p as possible and take his abuse as a manager. Please look into this…

22The applicant did not testify about his complaint email during his examination-in-chief, but on his Application he alleged that he received no response to it. During his cross-examination, the applicant confirmed that someone telephoned him about the complaint email, although he was not sure of the date or who called him. He testified, during his cross-examination, that it could have been Dennis Good who phoned him and it could have been October 19, 2009.

23The applicant testified, during his cross-examination, that he spoke with the person “5 minutes max”. Despite the applicant describing the issues, the person told the applicant that he was “full of it” “we are Lennox and we don’t do this and it didn’t happen and please don’t bother us”. The applicant denied the suggestion that he did not want to speak with Mr. Good because he had already filed his Application. “No, it didn’t happen in that manner and I said that I was going to [file the Application] unless things were resolved properly”, he testified during his cross-examination. Then, after having it pointed out that Mr. Good called him on October 19 and his Application appeared to have been filed on October 14, the applicant testified, “that may have been” because he had called the complaints line a number of times and had been told that someone would get right back to him. Waiting until October 19 was not, he testified during his cross-examination, getting right back to him and he felt that he was “getting the run around” from the respondent.

24During his cross-examination, the applicant was challenged that he did not have the qualifications for the position of service technician, the position for which he applied. The applicant denied this and stated, during cross-examination, that he had more qualifications than the minimum qualifications, a G2 license and 313D, which were listed on the job ad. He testified that he has a G1 license, which is higher than a G2 license, and had a 313A, which takes 5 years of apprenticeship and which covers all aspects of air conditioning versus the 313D which pertains to just residential.

25During his cross-examination, the applicant was challenged on his lack of residential experience. The applicant disputed this stating that he had worked at several jobs dealing with residential pool heaters. He also testified that his 313A covers both commercial and residential sectors. He agreed, somewhat reluctantly, that his résumé contained spelling errors, however, he did not see the relevance of this question.

26The applicant testified in examination-in-chief that as a remedy he was seeking 6 months’ pay, which he quantified as $20,000. He did not produce any documentation to establish that he had any loss of wages. During his cross-examination, the applicant testified that he was not working when he applied for the position with the respondent and did not find other employment until May 2010. In response to a question from the Tribunal explaining that it has the jurisdiction to award other remedies, such as general damages in the event that a violation of the Code is found and whether the applicant was seeking additional remedies, the applicant said that he was not sure and would have to consider them. He wants to see “this type of thing stop” but testified that he did not believe it was “rampant” within Lennox, but only at this office and this location.

27Mr. Good testified during his examination-in-chief that he is the director of human resources for Service Experts which used to be known as Lennox and that the respondent is the business style that was formerly used for Service Experts. He testified, and confirmed in cross-examination, that he was not involved in the decision to interview the applicant, nor in the interview itself, despite his department initially receiving the résumés, but that each location determines who will be selected to be interviewed after the résumés are forwarded to it.

28He testified, during his examination-in-chief, that he called the applicant as a follow up to the complaint email that the applicant sent to the respondent’s call centre. The delay in calling him back, Mr. Good explained, was that he had been on vacation. The first thing that the applicant told him, Mr. Good testified, was that he had filed a complaint with the Ontario Human Rights Commission and accordingly was not prepared to discuss the complaint email.

29During his cross-examination, Mr. Good testified that he took the applicant’s email complaint seriously which is why he called him back, but the applicant told him that he had filed the Application “and the matter was going to court”.

30In response to questions from the Tribunal about what, if any, investigation he conducted into the complaint email, Mr. Good testified that he asked Mr. Fagan to makes notes of what had happened. Mr. Tomalin also provided a statement, although the respondent confirmed that Mr. Tomalin’s statement had not been disclosed to the Tribunal. Mr. Good’s understanding was that Mr. Tomalin met with the applicant for “only a minute” and the rest of the interview was conducted by Mr. Fagan and that he had spoken with them before he called the applicant. Mr. Good told the Tribunal that the applicant was not interested in talking about his complaint email because he had already filed his Application and accordingly this was the respondent’s response to the complaint email.

31Mr. Tomalin (Steve) testified that at the time he was the general manager of the respondent and has worked for the respondent and Lennox for more than 28 years. He testified, during his examination-in-chief, that the respondent was seeking “all kinds of people from helpers to installation lead hands” pursuant to the job ad. While the applicant was not qualified other than for an entry level position as a helper, as he had no experience for the residential work that the respondent conducts, the applicant was interviewed because he wanted to get into the residential business as an entry level position, and because “we are always looking for good people and it is hard to find qualified people”. He believes that he called the applicant in for the interview, but could not recall specifically as it was from 2009.

32Mr. Tomalin testified during his examination-in-chief that a G1 license is higher than a G2 license. However a third year refrigerator apprentice 313A, which is what the applicant held, would only be qualified to be a helper for a 313D. Helpers are entry level positions and earn between $12 to $15 per hour.

33The respondent’s workforce is quite diverse, he testified, in terms of cultural and religious backgrounds, as well as age. Mr. Tomalin testified that co-op students work for the respondent as does a 67 year old male, who is of South Asian origin.

34During his examination-in-chief, Mr. Tomalin testified that he met with the applicant during the interview and took him into the boardroom, which the applicant had described as a storage closet. The applicant’s appearance “was a bit rough” in that he was not dressed as neatly as people usually are who are being interviewed. The applicant did not seem motivated during the interview. During his cross-examination, Mr. Tomalin confirmed that a person’s appearance was subjective.

35After speaking with the applicant, Mr. Tomalin decided to get Mr. Fagan (Wayne), who was the supervisor. He got Mr. Fagan and introduced him to the applicant and then left the boardroom and went back to his office. He did not see the applicant again. He testified, during his examination-in-chief, that he did not ask the applicant any questions, was not present when any references were asked and did not provide the applicant with any written note. He denied making any discriminatory comments about the applicant’s religion or age.

36Mr. Tomalin recalled during his examination-in-chief that Mr. Good asked him questions about the interview, after the fact, and he provided Mr. Good with a written statement, although it was not disclosed by the respondent during the proceedings. Mr. Tomalin testified during his examination-in-chief that it appeared from the complaint email that the applicant was mixing up himself and Mr. Fagan, in that the allegations were all about him but he did not see how they could be against him, since he did not meet with the applicant for more than a minute before getting Mr. Fagan.

37During his examination-in-chief, Mr. Fagan testified that he was the field supervisor having worked 16 years for the respondent and that on October 6, 2009 he met with the applicant. He explained that he became involved because Mr. Tomalin came to the back of the shop where Mr. Fagan had the “guys getting ready to go out” and asked Mr. Fagan to sit with the applicant and interview him. Mr. Fagan was given the applicant’s résumé and had a quick read of it to see his qualifications, how long he had been in the field and what type of residential experience he had. His initial thought was that the applicant did not have any residential experience and he was concerned about the number of companies the applicant had worked for, for short periods of time, and was still a third year apprentice. A third year apprentice who worked in the residential sector would be qualified for the job, but not when the person had only worked in the commercial sector, he opined during his examination-in-chief. After Mr. Tomalin introduced them, he left the room and Mr. Fagan shut the door. Mr. Fagan testified that he did not leave the room and no one came in during the interview.

38When Mr. Fagan first met the applicant, he testified during his examination-in-chief, he was concerned with the applicant’s appearance and the way that he sat and looked at Mr. Fagan. The applicant’s hair was messy, his shirt was “filthy, dirty” and he leaned forward with his hands on his knees. Mr. Fagan testified that he had never interviewed someone with this type of appearance. The applicant did not provide an explanation about his untidy appearance, such as he was coming from work. During his cross-examination, Mr. Fagan said that he himself was in a uniform at the time of the interview, which was “nice and clean” and while job candidates are not required to wear shirts and ties, many do during an interview. He testified during his cross-examination that it did not matter what the person was wearing if they had the skill set for the position, but “normally people show up in clean clothes and not filthy dirty t-shirts that was concerning for me”. He did not have to make a comment to the applicant at the time, Mr. Fagan testified during his cross-examination, but with the Application being filed and Mr. Fagan being required to testify, “I have to make a comment now”.

39During his examination-in-chief, Mr. Fagan testified that he told the applicant about the respondent, how long it had been in business, and its expectations of its employees. He spent a lot of time on the applicant’s résumé and asking why he had been in positions for such a short period of time. The applicant explained that he had performed contract work. Mr. Fagan testified that he asked the applicant about references and the applicant told him that his past employers did not give references which Mr. Fagan thought was an odd statement as he had never heard of this before and it is the respondent’s practice to do a reference check. In re-examination, Mr. Fagan confirmed that the applicant declined to give him references when asked about them.

40Mr. Fagan decided not to move forward with the applicant’s application, he testified during his examination-in-chief, because of the applicant’s lack of residential experience and his overall demeanour. Mr. Fagan denied using the word “Jewish”, denied referring to the applicant as “old” and denied referring to the applicant as a group of “you people” saying that he never uses terminology like that. Mr. Fagan denied telling the applicant to “get out” as alleged in the Application; instead, the interview concluded with them shaking hands at the end. Mr. Fagan’s recollection of the interview is as set out in his statement, prepared for Mr. Good, which was introduced as an exhibit. In response to a question from the Tribunal, Mr. Fagan testified that he did not speak with Mr. Good during his investigation as Mr. Good contacted Mr. Tomalin who then spoke with Mr. Fagan. This was because the complaint email was about Mr. Tomalin and had confused the two of them, as it was himself and not Mr. Tomalin who had met with the applicant the longest.

41Mr. Fagan testified that the position was filled by two other individuals who were hired as helpers, rather than service technicians, because of their lack of experience.

42In cross-examination, Mr. Fagan testified that he did not take notes of the interview because he did not know that he was going to interview someone and that he was brought in by Mr. Tomalin at the last minute. He explained that he does not always use the standard interview form provided by the respondent, but that in his opinion he felt that he conducted himself according to the respondent’s policies. Copies of the respondent’s interviewing policies, along with sample questions, had been entered as exhibits during Mr. Good’s testimony.

43He did not feel, Mr. Fagan testified during his cross-examination, that the applicant was qualified for the position for which he applied, at the salary he was expecting, with some experience in servicing swimming pools and no other residential experience.

44Mr. Fagan testified, during his cross-examination, that he did not attempt to apologize to the applicant because he did make any discriminatory comments. He testified during his cross-examination, “I didn’t make any of these [comments] and I didn’t say you were Jewish or your age and I’ve been dying to meet you to find this out and it’s bugged me to find this out”. In response to the applicant asking “Between 2009 and today did you ever attempt an apology?” Mr. Fagan said “apologize for what? So that would be a no because I didn’t do anything and I speak to people with integrity”.

45In response to a question from the Tribunal about the applicant’s testimony that at the end of the interview he was given a scrap of paper with Wayne’s email address on it to which references could be supplied, Mr. Fagan did not recall giving the applicant this “so I’d have to say no”. He testified that he has business cards to hand out.

onus

46The Supreme Court of Canada has observed, “[a]ssessing credibility is not a science. It is very difficult … to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events,” R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

47In my assessment of the evidence, I have also applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed, which held:

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.

48Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors considered in appraising reliability and credibility, including:

• The internal consistency or inconsistency of evidence;

• The witness’s ability and/or capacity to apprehend and recollect;

• The witness’s opportunity and/or inclination to tailor evidence;

• The witness’s opportunity and/or inclination to embellish evidence;

• The existence of corroborative and/or confirmatory evidence;

• The motives of the witnesses and/or their relationship with the parties;

• The failure to call or produce material evidence

Shah v. George Brown College, 2009 HRTO 920 (“Shah”), at paras. 12 -14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717, at paras. 35-36.

49The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”), that the “balance of probabilities” standard of proof applies to all civil cases and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. The Court held that Courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah, supra, at para. 23.

50The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that he was discriminated against, with respect to employment, on the basis of the prohibited grounds of ancestry and age. A prima facie case of discrimination “… is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complaint’s favour in the absence of an answer from the respondent-employer”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at para. 28.

51Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision does not involve a discriminatory consideration. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13, at paras. 51-52.

law and analysis

52Sections 5(1) and 10 of the Code are the sections that are applicable in this Application. They provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

6. (1) In Part I and in this Part,

“age” means an age that is 18 years or more.

The Interview and Alleged Discriminatory Comments

53Clearly comments about being “Jewish”, looking old, and “you people” would amount to a violation of the Code if the allegations are proven. See, for example, Noble et. al. v. Alley, 1950 CanLII 13 (SCC), [1951] S.C.R. 64 and Byers v. Fiddick’s Nursing Home, 2012 HRTO 952.

54However, in this case, I do not find that the applicant has made out a prima facie case of discrimination. This is due to the fact that his evidence, from his initial complaint email, to his Application and from examination-in-chief to cross-examination was very inconsistent in attributing who made the allegedly discriminatory remarks.

55In his Application, the applicant wrote that he had been contacted by “Wayne” and then was introduced to the supervisor “Steve”. During his examination-in-chief, he testified about the nature of the alleged discriminatory comments, however he did not identify who made the alleged comments until the Tribunal asked him who said them. At this point, he testified that it was “Wayne”, the first of the two that he met on October 9, 2009. He later confirmed, in response to a question from the Tribunal whether “Steve” made a comment about being Jewish, that Steve did not make such a comment as he was hardly in the room and reiterated that Wayne made the comments.

56During his cross-examination, the applicant was asked to identify which of the two individuals who interviewed him was Wayne and which one was Steve as both were present in the hearing room at this point. The applicant “thought” that Wayne was the older of the two individuals and noted that he met with both for less than 10 minutes, three years ago. He testified during cross-examination that initially he met with Wayne and then Steve came into the interview room.

57Later during his cross-examination, the applicant testified that Wayne made the allegedly discriminatory comments and he identified Wayne as being the “younger person”. Again he stated that he was not 100 per cent sure because it was three years ago and he spoke with both of them for less than 10 minutes. He repeated this subsequently during his cross-examination testifying “it was the younger man who made the comments”.

58In his complaint email that he submitted to the respondent’s call centre, he wrote, “I met with Steve who took one look at me and made several racist comments and asked illegal questions all going against the human rights code [sic]”.

59Both Mr. Tomalin and Mr. Fagan testified, with Mr. Tomalin having more work experience with the respondent than Mr. Fagan. Both testified that Mr. Tomalin (Steve) initially met with the applicant, followed by Mr. Fagan (Wayne).

60After hearing all the evidence, and upon reviewing the documentation, it is unclear to me whom the applicant is now alleging made the allegedly discriminatory comments. While I can appreciate that he could be mistaken about the name of the person who made the allegedly discriminatory comments, given that he met both men for a short period of time some three years ago, it is very troubling that his identification of the individual who made such comments changes. During part of his evidence the applicant testified that the person who made the comments was the older of the two interviewers and during other parts of his evidence he testified that it was the younger interviewer. The applicant provided no explanation for this inconsistency.

61Reviewing the materials that the applicant himself completed does not assist me in resolving this discrepancy. In his Application, which was filed October 14, 2009, five days after the interview, the applicant alleged that he met initially with Wayne, and then Steve, and wrote “Right away he was abusive to me … and made several remarks to me right away about being ‘old’ a ‘criminal’ and ‘Jewish’”. In response to the Tribunal’s question about the identity of the “he” in that sentence, the applicant specifically stated, “It was the younger fellow who was here who is Steve and Wayne made the comments” and he confirmed that “Steve” did not make the comments.

62However, in the complaint email which the applicant submitted to the respondent the same day as the interview, he very specifically alleged that it was “Steve” who made the discriminatory comments. Further, in cross-examining Mr. Tomalin and Mr. Fagan, the applicant did not ask Mr. Tomalin or Mr. Fagan about the discriminatory comments that were allegedly made. They both denied during their examination-in-chief that they made such comments. Further, the applicant cross-examined Mr. Good, Mr. Tomalin and Mr. Fagan as to whether or not they had apologized to him. All denied that there was any reason to do so.

63Given these inconsistencies, and the lack of a credible explanation for them, I find the applicant’s evidence on this point unreliable. In the end, I find that the applicant has failed to present clear, convincing and cogent evidence, as the Supreme Court of Canada in McDougall, supra, stated was required, in relation to his allegations that “Wayne” or “Steve” called him “Jewish” and told him that he “looked old”. Accordingly, this part of his Application is dismissed.

64With respect to the “your appearance doesn’t quite fit our profile” comment that the applicant alleges was also made, again, because of the uncertainty set out above, the applicant has not proven on a balance of probabilities that this was said by either Mr. Tomalin or Mr. Fagan. To the extent that it was said, I find that it was said in the context of the applicant’s own appearance on October 9, 2009 and more likely by Mr. Fagan because, from his testimony, he was the one that had the more substantial interview than did Mr. Tomalin. I note that during part of the applicant’s evidence, Mr. Tomalin and Mr. Fagan were excluded as witnesses, and, as such, did not hear all of the applicant’s evidence. Since Mr. Tomalin testified before Mr. Fagan, Mr. Fagan did not hear any of Mr. Tomalin’s evidence.

65Both Mr. Tomalin and Mr. Fagan testified during their examination-in-chief about the applicant’s physical appearance which Mr. Tomalin described as being “a bit rough” as he was not dressed as neatly as people usually do for an interview. Mr. Fagan’s recollection was clear in that he described the applicant as having messy hair and a “dirty filthy t-shirt” and that the applicant failed to provide an explanation for his messy appearance such as he was coming from work. For Mr. Fagan, who testified that on October 9, 2009 he wore a uniform which was “nice and clean” and who, during the hearing, was impeccably groomed, the applicant’s appearance on October 9 could certainly have elicited such a comment from him.

66Given my findings with respect to the applicant’s failure to establish, on a balance of probabilities, that the alleged discriminatory comments were made, I do not need to determine whether or not the applicant was qualified for the position of service technician or whether the applicant was or was not given a paper with either Mr. Tomalin’s or Mr. Fagan’s address on it. I note that despite the applicant referring to this paper on his Application form, he did not produce it during the hearing process.

67However, even if I accept that the applicant was, at a minimum, qualified for a service technician helper position, I accept the respondent’s non-discriminatory reasons as to why it did not hire the applicant. Specifically, I accept the evidence of Mr. Tomalin and Mr. Fagan about the applicant’s unkempt physical appearance during the interview. Further, I accept Mr. Fagan’s evidence that the applicant did not, or would not, provide references from his previous employer. In fact, during his cross-examination, the applicant was asked to confirm that he did not provide Mr. Fagan with references to which the applicant retorted, “Why would I?”

The Complaint Email

68It is well established in the Tribunal’s jurisprudence that a respondent may be held liable for the way in which it responds to a complaint of discrimination. The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Code are meaningful. As stated in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, at para. 53:

It would make the protection under subsection 5(1) to be a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a ‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment.

69The Tribunal’s jurisprudence has established that the employer’s duty to investigate is held to a standard of reasonableness, not correctness or perfection. In Laskowska, supra, the Tribunal set out the relevant criteria for, in that case, an employer to consider in its duty to investigate as:

1. Awareness of issues of discrimination/harassment, Policy Complaint Mechanism and Training.

2. Post-complaint seriousness, promptness, taking care of its employee, investigation and action;

3. Resolution of the complaint and communication.

70At para. 60 of that decision, the Tribunal stated:

While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.

71A respondent can attract liability for its failure to investigate notwithstanding that a violation of the Code has not been made out. See Nelson v. Lakehead University, 2008 HRTO 41.

72It is not disputed between the parties that the applicant submitted the complaint email to a customer service department within the respondent. In response to questions from the Tribunal, Mr. Good testified that he conducted an investigation into the complaint email. This consisted of contacting Mr. Fagan and asking him what happened during the interview and receiving written statements from Mr. Tomalin and Mr. Fagan describing the interview. While Mr. Fagan testified that he did not recall Mr. Good contacting him, but wrote the statement at Mr. Tomalin’s request, and Mr. Tomalin testified that Mr. Good spoke with him, I find that nothing turns on this given that Mr. Fagan’s statement was produced during the hearing and marked as an exhibit.

73Although he does not remember the name of the person or the date of the telephone call, the applicant does not dispute that he was telephoned by someone from the respondent further to the complaint email. The applicant testified during his cross-examination that it could have been Mr. Good and it could have been on October 19, 2009. Mr. Good testified that he telephoned the applicant on October 19 after being away on vacation for several days, and, because his evidence was not seriously disputed on this point, I accept that Mr. Good called the applicant on October 19, 2009.

74On his Application, the applicant alleged that he did not hear back from the respondent. As noted above, the applicant filed his Application on October 14, 2009 before Mr. Good telephoned him. So while at the time of filing his Application, he had not heard back from the respondent, he did so within a very short period of time after he filed his Application. Even if I did not accept Mr. Good’s explanation that he called the applicant after being on vacation, which I do accept, I find that the delay between the complaint email and Mr. Good calling the applicant was very brief. I find that the respondent took the applicant’s complaint seriously.

75While it would have been helpful for the respondent to have produced the written statement that Mr. Tomalin provided to Mr. Good, I find that this failure is not a fatal flaw in the investigation that the respondent conducted. I find it reasonable that Mr. Good spoke with Mr. Tomalin about the applicant’s interview, as in his complaint email the applicant had identified “Steve” as being the person who made the allegedly discriminatory comments and I find it reasonable that Mr. Tomalin, as the general manager, would speak with Mr. Fagan, the supervisor in relation to the allegations.

76Further, I accept Mr. Good’s evidence that he contacted the applicant for the purposes of addressing the complaint email, but the applicant told him that the he had already filed his Application and effectively shut down the discussion between them.

77In these circumstances, I find that the respondent acted reasonably with respect to the complaint email and this part of the Application is also dismissed.

Order

78The Application is dismissed.