Brenda Palmer v. Canadian Institute for Health Information, 2012 HRTO 2305

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Palmer

Applicant

-and-

Canadian Institute for Health Information; Patricia Sullivan-Taylor and Greg Webster

Respondents

DECISION

Adjudicator: David Muir

Date: December 6, 2012

Citation: 2012 HRTO 2305

Indexed as: Palmer v. Canadian Institute for Health Information

APPEARANCES

Brenda Palmer, Applicant

Milton Verskin, Counsel

Canadian Institute for Health Information, Patricia Sullivan-Taylor and Greg Webster, Respondent(s)

Mark Josslyn, Counsel

Introduction

1This is an Application filed pursuant to section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990 c. H, in which the applicant alleges that she has experienced discrimination on the basis of sex, disability and reprisal.

2In her Application the applicant has alleged that she was subject to systemic and ongoing differential treatment on the basis of sex culminating in her dismissal from employment on October 18, 2012. The applicant also alleges that she was dismissed from employment before the implementation of recommended accommodations for an alleged disability, or, that the employer terminated her rather than continue to implement the recommended accommodations.

3The corporate respondent is the applicant’s former employer. The applicant was employed by the corporate respondent from November 24, 2008 to October 18, 2010. The individual respondent Patricia Sullivan-Taylor was the applicant’ direct supervisor and Greg Webster, her Director.

4This hearing began on September 10, 2012 and continued the following day. I heard the evidence of the applicant. After a short cross-examination of the applicant the respondents sought an Order dismissing the Application on the basis that the applicant had lead insufficient evidence to establish a prima facie case of discrimination, or, on the basis that having heard the evidence of the applicant the Application had no reasonable prospect of success. In order to afford the applicant an opportunity to adequately respond to the respondents’ submission the applicant was given an opportunity to do so in writing. The respondents responded to the applicant’s submissions on October 2, 2012. The applicant made further brief submissions on December 5, 2012. Although the Tribunal does not normally entertain ongoing submissions from the parties, in this case I have reviewed the submissions and documents provided by the applicant, but they do not affect the outcome below.

5The Application is dismissed. I am satisfied based on the applicant’s evidence and submissions that this Application has no reasonable prospect of success. I come to this conclusion because after hearing the evidence of the applicant there is no reasonable prospect that the applicant can establish that she experienced differential treatment on the basis of her sex, or, even more clearly, discrimination in respect of an alleged disability. I also find that there is no basis for a reprisal claim as there is no evidence that any of the respondents’ alleged actions were intended as a reprisal for the applicant seeking to enforce her Code rights.

6In this case, I heard the applicant’s evidence in chief and a brief cross-examination. In addition, a great number of documents were introduced by both parties. The applicant closed her case with the end of her cross-examination. The applicant’s testimony as well as the documents tendered by the parties have been considered in coming to these conclusions.

7The relevant provisions of the Code are ss. 5 and 8 which provide as follows:

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, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

8The Tribunal’s approach to cases where it appears that there may be no reasonable prospect of the Application being successful has been described by the Tribunal in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 in the following terms at paras. 10 to 12:

The Code prohibits discrimination in various social areas, including employment, accommodation, goods, services, facilities, and contracts and reprisals for asserting Code rights. The events that can potentially give rise to a claim of discrimination are therefore extensive. However, the Tribunal’s jurisdiction to evaluate events in these social areas is relatively narrow. As has been stated in many decisions, the Tribunal does not have the power to evaluate general claims of unfairness (see, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27). A successful claim of discrimination or harassment requires an applicant to show that one of the prohibited grounds was a factor in disadvantage experienced by the applicant. A successful claim of reprisal requires an applicant to show that it was the intention of a respondent to take actions in reprisal for asserting Code rights. Discrimination or reprisal need not be the only or even the principal factor in a respondent’s decision or actions, but an applicant must show that it was one of the factors.

The burden of proving that a prohibited ground or an intention to reprise was a factor in a respondent’s decision or action lies on an applicant. An applicant must establish a connection between the disadvantage and the ground on a balance of probabilities. However, often only the person who made a decision or took relevant actions will know why they were taken, and relevant evidence will frequently be in the possession of a respondent. Human rights law recognizes that a respondent’s non-discriminatory explanation may in fact be erroneous or a pretext for discrimination.

Reconciling an applicant’s burden of proof with the reality that information from a respondent may be the only way an applicant can prove his or her case is a tension in deciding Code applications. On one hand, because the reasons for a decision are often only known to a respondent, it is important to ensure that the Tribunal process provides a fair and appropriate opportunity for applicants to obtain evidence that would permit them to establish discrimination and that the Tribunal use its expertise to focus on such evidence. It is also important that neither party undergo the cost, inconvenience, and potential stress of Code proceedings where there is no reasonable possibility that allegations of Code violations will succeed, and that public resources be appropriately used in resolving such disputes. Human rights applications should not be an endless search for an unlikely needle in a haystack.

THE DISABILITY ISSUES

9The details of the applicant’s disabilities are somewhat unclear. For the purposes of the following analysis I have assumed, without deciding, that the applicant had a disability within the meaning of the Code. She was off work for a short period of time in September 2010 and also was identified as a person with a need for ergonomic adjustments to her work station at about the same time. As a result of concerns expressed by the applicant the respondent retained a consultant to do an assessment of her work area. Several adjustments were made immediately at the time of the assessment. Additional recommendations were made by the assessor, including recommendations to purchase some equipment. The report was received by the respondent on October 13, 2010. The applicant was provided with a copy of the report on October 18, 2010. The applicant was terminated for reasons said to be unrelated to the accommodation issues on October 18, 2010.

10Although this is not entirely clear the applicant appears to be claiming that the respondent employer terminated her employment before completing the implementation of the ergonomist’s report thereby depriving her of anticipated accommodation which is a violation of the Code. In my view the termination of an employee in such circumstances does not amount a failure to accommodate to the point of undue hardship. An employer has an obligation to accommodate its employees but is not obligated to maintain the employment of someone it intends to dismiss solely for the purpose of continuing the accommodation process.

11If the applicant is saying that rather than implement the remaining recommendations of the assessment the respondent decided to dismiss her from employment, this position is unsupportable as well. The remaining recommendations were for the purchase of a notebook sized keyboard, a mouse and a footstool which according to the applicant were apparently in process of being purchased when her employment ended. It strains credulity to imagine that the respondent would terminate an employee’s employment rather than give her a mouse and a keyboard.

12The applicant also alleged that she was told expressly that she was required to come in to the office to change her voice mail while she was off work due to illness. The applicant maintained this position at the hearing. The applicant had a recording of the telephone message which contained the alleged direction that the applicant attend at the office to change her voice mail. The applicant had made a transcript of the message which the respondents accepted as accurate. Notwithstanding the respondents’ acceptance of the transcript the applicant insisted that she play the recording at the hearing, which I allowed. After hearing the recording the applicant was asked where in the message she was told that she had to come into the office to change her voice mail. The applicant indicated that the words “go in and adjust your voicemail” meant that she had to go to the office and change her voice mail. The difference between the instructions “go in” and “come in” was pointed out to the applicant but she maintained her view that she was being ordered to attend at the office to change her voice mail. The applicant also testified that she did not know that it was possible to change one’s voice mail remotely. Although the voice message from the office also included an offer of assistance if any was required the applicant did not call in and clarify what was being asked of her.

13Assuming without deciding that what the applicant alleges she was being asked to do could be considered a failure to accommodate a disability, it is clear to me and I find that the voice message the applicant received that day did not require the applicant to attend at the work place to change her voice mail. The only fair and reasonable understanding of the message was that the applicant was being asked to go in and change her voice mail remotely. The message also makes clear that if the applicant had any difficulties in doing so she should call the office and assistance would be offered. There is no reasonable basis for the applicant’s apparently continued belief that this message required her to attend at the workplace while off on sick leave to change her voice mail message.

14The allegation of discrimination on the basis of disability is dismissed. I have however, considered the applicant’s positions and evidence on these issues in considering her evidence in respect of the other issues raised in her Application.

SEX DISCRIMINATION

15The applicant has alleged that she was subject to systemic and ongoing differential treatment on the basis of sex culminating in her dismissal from employment on October 18, 2010. The applicant alleges that her work was unfairly appraised and that when she repeatedly objected to the employer’s appraisal of her performance it was not changed. The applicant also alleges that she received more supervision than the men from the beginning of her employment. However in her evidence the applicant narrowed the scope of her claims somewhat and stated that the differential treatment began with a dispute over a report in the spring of 2009.

16The spring 2009 report is at the heart of this Application and the workplace disputes that plagued this employment relationship. It seems to be agreed that as a result of a management decision a last minute change was made to this report which caused delays in its release. The respondents contend in their Response that errors were discovered in the report, but I have not taken that assertion as fact for purposes of this determination.

17The applicant believes that the delay in the report’s release was then blamed on her which affected her subsequent performance appraisal. The applicant clearly believes that the change made to the report was wrong and made that plain to management over the coming months. The applicant also alleges that the personal respondents wilfully and negligently falsified her performance appraisal in unfairly blaming her for the delay in the release of the spring 2009 report. Despite these allegations the applicant also argues that a factor in her subsequent treatment at work, in the form of unfair performance appraisal and other allegation set out below, was the fact that she was a woman.

18There is no direct evidence to support the applicant’s claim. I am also satisfied, based solely on her evidence without regard to a response from respondents that there is no reasonable prospect that the applicant can proved a link between the many incidents she complains of to the alleged grounds of discrimination. The Application and the applicant’s evidence do describe in great detail ongoing differences of opinion about the quality of her work, but there is no evidence that the applicant was treated differently than any of her male colleagues because she is a woman.

19The applicant was a Project Lead. The impression left after a review of her pleadings as well as her evidence in chief was that she was one of only three Project Leads, the other two being male. In cross-examination it was clarified that the applicant was one of 7 team leads, 5 of whom were women. The applicant lead no substantial evidence that she was treated differently from the two men employed at her level. The evidence of the applicant was clear that in many ways, subsequent to the spring 2009 report she was treated differently than all of her colleagues with no real indication that she was treated differently than the men. Indeed in her Reply and in her evidence the applicant made the point that she knew of no other employee who was treated in the same way as she was. However it was also her evidence, that the trouble began with the dispute over the spring 2009 report and her view that the decision to modify the report was wrong and that subsequently she was unfairly criticized for her work on this project. Much of the performance management issues arose from this incident and the applicant’s insistence that her performance appraisal in the following year was wilfully and negligently incorrect, to use her characterization. This dispute escalated to the point that the applicant in effect refused to be performance managed. In her submissions the applicant notes that she was never provided with the performance appraisals of other employees in order to do a comparison however she never required their production from the respondents. Whether or not such materials would provide evidence to support her claims is pure speculation at this stage.

20However the genesis of the workplace dispute was the spring 2009 report. The applicant testified that when the personal respondents told her she had been responsible for the errors, she responded to them that they were wrong. She maintained that position until the conclusion of her employment. There is no evidence that the respondents’ position that the applicant was in error was in any way related to her sex. The fact was there was a workplace dispute; the respondents took a view of the applicant’s role in the underlying issue which the applicant refused to accept. In a similar way to her view of the voice mail request above, it appears that once the applicant formed a view of the actions taken in relation to the spring 2009 report, she remained unmoved when a different perspective was suggested to her.

21The applicant made a number of other allegations of what she perceived to be differential treatment. Amongst the more significant of these are the following.

22The applicant asserts that she was treated more harshly and male employees were treated more leniently in matters of discipline. However this appears to be another unsupported assertion, as the applicant was unable to point to any substantial evidence that this was the case.

23The applicant asserts that contrary to company policy a member of the Human Resources Department sat in on an interview while that individual was also attempting to persuade the applicant to sign off on her performance appraisal which she considered unfair. There is no evidence that gender was a factor in this incident and the circumstances including the escalating conflict in the workplace indicate something else in play at the time.

24The applicant also gave evidence, which was not disputed, that the applicant’s one on one meetings with her supervisor became a two on one meeting when Mr. Webster began attending as well. The applicant argues that this change was unusual and did not seem to be required of other team leads, either male or female. Again the evidence is clear that the applicant was being treated differently than all other employees in this respect including the four other female team leads, but there was no evidence that this treatment was related to her gender as opposed to performance concerns.

25The applicant also alleges that she experienced delays and or denial of various leave requests. I have reviewed this evidence and although it appears that errors might have been made it is also readily apparent that such errors and miscommunications as there may have been were innocent, minimally, they were innocent in the sense that there is nothing to suggest either directly or by inference that they arose from Code related differential treatment.

26The applicant also alleges that she was restricted in her access to development and training opportunities. This is an assertion; there is no substantial evidence to support this claim and no evidence to support an inference that to the extent that she may have been denied training opportunities that her gender, as opposed to ongoing performance issues was the reason. Similarly the applicant alleges that she did not receive salary increments. This is not denied but the applicant agreed that these increments are connected to performance. Given the unresolved performance appraisal dispute no inference of differential treatment can be drawn from this allegation.

27The applicant alleged that a male employee was promoted and she was not. However in cross-examination she agreed that at least one female employee was promoted along with the male employee. The applicant has no evidence other than that she did not get a promotion while one male and one female colleague were promoted. This is insufficient to conclude that her failure in one job competition was discriminatory.

28I have also considered whether taken as whole the many complaints of unfair treatment of the applicant could support the inference that the applicant had experienced differential treatment on the basis of her gender. After carefully considering this issue I find that even without hearing the responding evidence of the respondents on the points of contention raised by the applicant, I am unable to conclude that there is any basis for the applicant’s claim of gender discrimination.

29As the Tribunal has pointed out on many occasions it does not have any jurisdiction to consider claims of unfair treatment in employment or elsewhere. The applicant asserts that she was treated differently than the male team leads but conceded in her evidence that she was treated differently than every other team lead including four other women. She also conceded that she had no evidence that any of the other team leads including the four women were being performance managed by the employer. I also note again that in her evidence the applicant repeatedly confirmed that the genesis of the conflict in the workplace that snowballed and culminated in her termination, was the disagreement over the report in the spring of 2009. Beginning with what the applicant believed was an unfair performance appraisal flowing from the disagreement over that report the conflict escalated, largely around the respondent employer’s performance management efforts. Her claim that the alleged differential treatment in this process was in whole or in part a consequence of her gender is mere speculation – there is no evidence that this was the case. The genesis of the dispute was her belief that management’s decision about the spring 2009 report was wrong. Management was entitled to be wrong about this issue. They were entitled to punish her no matter how unfair it might have been because she disagreed with the decision. However none of that, if that is what has occurred here, is evidence of gender discrimination.

30The applicant has little more to offer other than her apparently sincere belief that gender was a factor in the respondents approach to managing her. In this regard I have considered the applicant’s evidence with respect to the disability issues above, because I find that her reaction in those two instances is reflected in her response to the other workplace issues. In short I find that the evidence establishes that there was a pattern of the applicant misperceiving normal and appropriate workplace issues as something more problematic.

31To cite another instance which the applicant cited as an example of the differential treatment she experienced, the applicant testified that when she attended at work quite late one morning Ms. Sullivan-Taylor asked her by email for an explanation for her arrival after 10:00 a.m.; reminded her of the expectation that staff be available at 9:00 a.m. and asked that in future if she was going to be late she should notify Ms. Suillivan-Taylor and Greg Webster. It is significant in my view that this event occurred in June 2010, near the conclusion of this troubled employment relationship. Rather than speak to either of Ms. Sullivan-Taylor or Mr. Webster before doing so and not apparently considering the context, the applicant took it upon herself to advise her staff of what she described as a new “expectation”. She communicated her intention to do so in an email to Mr. Webster and Ms. Sullivan-Tayler as follows:

Since this is the first time that this specific expectation has been received from you, I will convey it to other team members, as well, and require them to inform me (and copy Jennifer whenever they will arrive after 9 AM.

32The applicant gave evidence of the conversation she had afterwards with Ms. Sullivan-Tayler. The applicant testified that Ms. Sullivan-Taylor was angry and indicated to the applicant that she was expected to set an example for her staff in relation to not coming in very late. The applicant testified that this was a further example of the differential treatment that she experienced. In my view, however, the applicant’s perception of this incident and response to it was unreasonable. The fact that she was a Project Lead and might be expected to set an example for, and be treated differently than, her staff would not be unexpected. In my view, the respondents’ response to her in this instance was not particularly surprising, but more importantly raised no indication of gender bias.

33In conclusion, although the applicant was apparently sincere in her belief that her difficulties in the workplace were a result of gender discrimination more than a belief is required. I find for all of the reasons set out above that the applicant lead no evidence that could support an inference that she experienced differential treatment in her employment on the basis of sex.

REPRISAL

34It is not clear upon what basis the applicant alleges reprisal as there is no evidence that she raised a human rights issue prior to this Application being filed. The evidence was that she complained extensively about her performance appraisal and did complain that she was being treated unfairly but she did not allege prior to her being dismissed that she was being differentially treated because of her sex. The applicant does seem to rely on a number of alleged errors in paying out certain monies owing to her subsequent to her dismissal, but pleads no facts and gave no evidence that would support the conclusion that these errors, if that is what they were, were intended as a reprisal for filing the Application. Accordingly, there is no basis to conclude that she was subject to reprisal because of a claim of sex discrimination.

35I have already concluded that there is no evidentiary basis to conclude that the applicant was dismissed because the applicant was in need of a new keyboard, mouse and foot stool, accordingly if that formed a basis for the reprisal claim there is no support for it in that circumstance either.

36For all of these reasons the Application is dismissed.