Zimmermann v. Tay (Township), 2012 HRTO 2325

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erwin Zimmermann

Applicant

-and-

The Corporation of the Township of Tay

Respondent

DECISION

Adjudicator: Mary Truemner

Decision Date: December 12, 2012

Citation: 2012 HRTO 2325

Indexed as: Zimmermann v. Tay (Township)

APPEARANCES

Erwin Zimmermann, Applicant

Self-represented

The Corporation of the Township of Tay, Respondents

Andrew Mae, Counsel

Introduction

1This is an Application filed on August 6, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services on the basis of ethnic origin, ancestry and place of origin. The applicant self-identifies as being of German heritage/origin because his parents are German and lived through, at least some of, World War II in Germany.

BACKGROUND

2The applicant owns a house in the respondent’s Township. In 2009, the respondent staff asked the applicant to apply for a grant to improve the siding of his house under the respondent’s Community Improvement Plan (“CIP”) in order to bring it into compliance with the respondent’s property standards by-laws. The applicant wanted vertical siding, but such siding did not comply with the criteria for the grant because it was not in keeping with a “heritage” look being promoted by the CIP. The applicant was convinced to accept horizontal siding to meet the eligibility requirements of the CIP grant. The applicant understood that his agreement with the respondent was that all the facades would be covered by the CIP grant. The applicant’s application for the grant was ultimately approved in 2009, and the grant was used to install some siding, but the amount was insufficient to finance siding for all the facades of the house requiring improvement.

3The applicant attempted to obtain further funding through another application for a CIP grant the following year, but it was rejected in May, 2010, and an Order to Remedy Violation of Standards of Maintenance and Occupancy (“the Order”) was issued to the applicant with respect to the unfinished portion of the exterior of his house.

4The Application states that the applicant was furious, and told by-law officers visiting his home that if the less expensive vertical siding had been permitted, then the grant money would have been sufficient to have completed the facades. The Application states that the by-law officers explained that the vertical siding did not meet the CIP “heritage” criteria, and the applicant threatened to paint his façade with his own heritage which included murals of the Berlin Wall and the swastika.

5On July 19, 2010, the by-law officers again visited the applicant at his house, and told him that if he did not comply with the Order, the respondent would have the siding completed for him, and charge him the costs.

6At the hearing, the applicant confirmed that the first allegation of discrimination is that the respondent’s Director of Planning, Mara Burton, called him a Nazi and told him to return to Germany during a telephone call he made to her on July 19, 2010 after the bylaw officers’ visit. The applicant agrees that he confirmed earlier in the telephone conversation that he would paint a swastika on his wall, but he does not self-identify as a Nazi. The applicant was born and raised in the Midland, Ontario area.

7The second allegation of discrimination is that the applicant reported Ms. Burton’s alleged comment to certain members of the respondent’s Council and to its mayor, Scott Warnock, but they failed to investigate the alleged comment. The applicant confirmed at the hearing that he does not allege that the refusal of the CIP grant in 2010 was discriminatory.

DECISION

8The Application is dismissed. After hearing and assessing the testimony of all the witnesses, I have concluded that the applicant has failed to meet his onus of proving, on a balance of probabilities, that the comment alleged to have been made by Ms. Burton was made. As a finding of fact, on a balance of probabilities, I conclude that it was not made. I also find as fact that while the applicant complained to Mr. Warnock and councillors about the alleged unfairness of denying him a second grant and issuing the Order, the applicant did not communicate to them that Ms. Burton called him a Nazi and told him that he should return to Germany, nor did he mention any allegation of a Code violation. There is consequently no need for me to decide if the Code would be violated by calling the applicant a Nazi in the context of his threat to display a swastika, or by making a comment that he return to Germany. Nor is it necessary for me to decide whether the respondent had any obligation under the Code to have investigated such a complaint, given my findings that the applicant failed to establish that it would have been reasonable for the respondent’s mayor and council members to understand that he was complaining of a Code violation, or that he was reporting allegations that would amount to one.

THE EVIDENCE WITH RESPECT TO THE ALLEGED COMMENT

The applicant’s testimony

9The applicant began his evidence by testifying that he signed his Application and that the contents were all true. It was entered as an exhibit.

10He testified that the reason he decided to telephone Ms. Burton on July 19, 2010 was because two by-law officers had visited his home that day, bringing news with respect to the exterior of his house that he “didn’t like”. The applicant stated that he did not hear well because he has tinnitus, and he therefore used the speaker phone so that his girlfriend, Cheryl Taylor, could listen to his conversation with Ms. Burton. Ms. Taylor was in the room with the applicant.

11The applicant testified that the telephone conversation quickly became heated “because we didn’t always see eye to eye,” and Ms. Burton confirmed that the initial grant the applicant received in 2009 would not cover a second round of work on the walls. The applicant testified that Ms. Burton told him in the conversation that the by-law officers had reported that he was threatening to paint the Berlin Wall on the outside of his home. The applicant testified that he agreed with Ms. Burton, telling her that he had said to the officers, “If they wanted heritage, then I would give her my heritage.” She then asked him if he planned to include a swastika. The applicant testified that he replied, “Yes, it is a part of my heritage. The swastika is all of who I am.”

12The applicant testified that Ms. Burton then replied, “You Nazi bastard. Get back on the boat and go back to where you come from and where you belong.” The applicant testified that Ms. Taylor, who had been listening, yelled out to Ms. Burton, and the conversation then ended.

13The applicant explained in his testimony that he was born in Canada after World War II because his father was a prisoner of war in Scotland and was unable to return to East Germany after the war. He also explained that his father had earlier spent two years in a Nazi concentration camp because he had been accused of aiding and associating with Jews. In cross-examination, the applicant stated that he did not know that most people would interpret a swastika as a symbol of Nazism.

14The respondent’s counsel pointed out to the applicant that his quote of Ms. Burton’s alleged comment was different from what he had quoted in his Application, which states: “You are a Nazi and you should go back home to Germany where you come from.” The applicant admitted that his memory of the telephone conversation isn’t perfect, and that he was very angry at the time of the conversation. He testified that he “may have got some words wrong.” He also testified that there were three people talking at once (himself, Ms. Burton and Ms. Taylor), and he has a powerful voice.

Ms. Taylor’s testimony

15Ms. Taylor, who has been the applicant’s girlfriend for approximately 7 years, was examined by the applicant. She testified that she was present during the applicant’s telephone conversation with Ms. Burton on July 19, 2010, and that she heard both what the applicant said and what Ms. Burton said because the speaker phone had been set up. She testified, however, that the applicant was holding the phone, pacing up and down, and speaking loudly. She testified that the call was approximately 43 minutes long. She testified that the conversation was initially about the CIP grant and about property standards because by-law officers had visited that morning and gave the applicant a sealed letter saying that he was breaking property standards by-laws. She testified that the conversation came to focus on whether the siding was “heritage” siding, and then, in answer to the applicant’s questioning, she testified, “I heard the word ‘Nazi’ and then a comment about you getting back on the boat and going back to your country.”

16The applicant continued his examination of Ms. Taylor and asked her if she heard any words before or after the word “Nazi”, and the witness floundered. Then she said, as if struggling to remember, “She said you are a Nazi.”

17Ms. Taylor testified that the comment made her “ticked off” and prompted her to yell out to Ms. Burton that Ms. Burton didn’t understand who the applicant is and that she was “an ignorant cunt”. Ms. Taylor expressed her regret at having chosen those particular words, and was not sure if she could repeat them in the hearing, but I asked her to be exact. Ms. Taylor stated that she loudly yelled her comments at the telephone, but it did not appear that Ms. Burton heard her, despite Ms. Taylor’s understanding that the speaker phone would pick up her voice. Ms. Taylor said that Ms. Burton did not respond in any way to her interjection.

18In cross-examination, Ms. Taylor testified that the Nazi comment was made approximately 20 minutes into the conversation, and that the next half of the call returned to focus on the CIP grant and exactly what property standards by-laws the applicant had violated. She said that her recollection was “crystal clear”. She also admitted that she has a vested interest in the outcome of these proceedings, the implication being that as the applicant’s longstanding girlfriend, she must be partial to his cause.

19In re-examination, she said that she heard the applicant say in the conversation that he was going to paint a swastika on his house because it was part of his heritage, and Ms. Burton warned him that such an act is a hate crime and the police would be called. Ms. Taylor confirmed that she was sure that the Nazi comment was made about 20 minutes into the conversation, in the middle of it.

Ms. Burton’s testimony

20Ms. Burton is the director of planning and development for the respondent. She denies the comment that she is alleged to have made. She testified that the applicant had received a CIP grant in 2009 with which some of the exterior of his home was renovated in 2009, but his application for the grant in 2010 was refused. She testified that the respondent had issued the Order on June 18, 2010. The Order gave the applicant 30 days to paint and repair his exterior walls that were not in compliance with property standards. She testified that she received a call from the applicant at her office on July 19, 2010, and the applicant said that he was calling because it was the last day to comply with the Order. He said that he was unhappy about being denied the second CIP grant.

21Ms. Burton testified, “I told him that we were a small municipality and didn’t have enough money for everything and he said that he would cut the siding into 10,000 pieces and give everyone their piece of the siding and he suggested that he would paint a swastika on the wall. I heard from by-law officers that he had been thinking of painting a swastika on the façade so I wasn’t surprised. I told him that may be considered a hate crime and we may have to call the police. I wasn’t sure if it was a hate crime so I was careful with my words.”

22Ms. Burton testified that the applicant then asked her if she was calling him a Nazi to which she replied, “No, but do you realize that is the symbol the Nazi’s used?” She testified that this comment was made approximately half way into the phone call which the applicant and the respondent agree was approximately 40-45 minutes long.

23She testified that the applicant then said, “I suppose you want me to go back to Germany where I came from,” which she said surprised her because she thought the applicant went to high school with her husband. She said that she realized that the applicant was quite upset, and, trying to calm the applicant, she answered, “Weren’t you born here? Didn’t you go to high school with my husband?” She doesn’t believe he answered that question, but the next half of the telephone conversation then focused on the applicant’s property, the Order, the CIP grant and possible next steps. She told him that she would write a letter explaining the CIP grant, and a letter from her to him dated the same day was entered as an exhibit. In it, Ms. Burton advised the applicant that his avenue to challenge the refusal of the second CIP grant was “to be a delegation [to make a deputation]” at Council.

24Ms. Burton testified that it did not appear to her that she or the applicant was on a speaker-phone during the conversation, as there was no ambient sound that she said one always hears when speaking to someone on a speaker-phone. She heard someone in the background from the applicant’s end of the conversation, who seemed to be yelling and could have been Ms. Taylor, but Ms. Burton could not make out what was being said by that person.

25In cross-examination, Ms. Burton agreed that she had been involved in issues related to the applicant’s property before. She also stated that she had been told by a by-law enforcement officer that the applicant had invited the officers into his home and shown his father’s degree from Germany which had a swastika on it to explain what he intended to paint on his exterior wall.

26Ms. Burton testified that her secretary, Heather Yates, came into her office when she heard Ms. Burton’s comment that the swastika is a Nazi symbol. Ms. Yates mouthed a question to ask if it was the applicant on the phone, and Ms. Burton silently nodded her head to her to confirm that it was. Ms. Burton explained that her door was open and that there are about eight feet between her and her secretary.

27Ms. Burton testified that Mr. Warnock spoke to her the next day about the grant and the Order, and the fact that the applicant had complained about them. She testified that Mr. Warnock did not “mention anything” about the applicant claiming she had called him a Nazi even though she had informed Mr. Warnock about her conversation with the applicant in which she warned him against painting a swastika on his house. She had no idea that the applicant might have complained about a comment she was alleged to have made.

Ms. Yates’ Testimony

28Ms. Yates stated that she sits approximately seven to eight feet away from where Ms. Burton sits, and can see and hear Ms. Burton from her desk. On July 19, 2010, she testified that her “ears perked up” on July 19, 2010 when she heard Ms. Burton say in a telephone conversation, “No, I am not calling you a Nazi.”

29She also heard Ms. Burton saying something like, “Didn’t you go to school with my husband?” and, “If you were to paint a swastika on your house, it would be a symbol of the Nazi’s and we would probably call the police.”

30She knew that the conversation was with someone who appeared to be dissatisfied with a CIP grant. Because there were not many CIP grant applications, and because she knew that the applicant was upset about being rejected for one in 2010, she mouthed the question if the applicant were on the phone, and Ms. Burton nodded while continuing her conversation.

31Ms. Yates testified that she went to speak to Ms. Burton after the conversation was over as she often does at the end of an unusual conversation. Ms. Burton confirmed to Ms. Yates that she had been conversing with the applicant. Ms. Burton did not appear to be upset, and told Ms. Yates that she was going to write a letter to the applicant about the CIP grant which Ms. Yates recalls was written by Ms. Burton, and which Ms. Yates sent out, either that day or the day after.

32Ms. Yates testified that, the next day, Mr. Warnock asked her questions about the applicant, and she told him what she heard, including Ms. Burton’s line about how she is not accusing the applicant of being a Nazi.

ANALYSIS OF EVIDENCE WITH RESPECT TO THE ALLEGED COMMENT

33In my assessment of the evidence, I apply the well-established principles as articulated in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) at paras. 10-11:

(…) 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. (…)

34As stated in Loomba v. Home Depot Canada, 2010 HRTO 1434, paras. 16-17, there are a variety of factors considered in appraising reliability and credibility, so that “the Tribunal must determine, on a balance of probabilities, whether the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence. It must also assess the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties.” The factors include:

• 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

35As is apparent from the foregoing description of the evidence, there are competing and different versions of what was said during the call of July 19, 2010 between Ms. Burton and the applicant. For a number of reasons that follow, I find Ms. Burton’s and Ms. Yates’ version of the telephone conversation with the applicant to be more reliable than the applicant’s, and more reliable than that part of Ms. Taylor’s version which confirmed that she recalled Ms. Burton telling the applicant that he is a Nazi and should return to Germany.

36First, the Application’s version of the conversation with Ms. Burton, specifically with respect to the alleged discriminatory comment, is inconsistent with the applicant’s testimony at the hearing. He states in his Application:

On July 19, 2010 by-law once again attended my residence. They told me that if I did not comply with the order that the Township would complete the work, pay for it and they would make me subject to those costs.

Shortly after 11am after they left, I called the township of Tay and spoke to Ms. Mara Burton. The phone call was approximately 45 minutes in duration. The phone call was on speakerphone and Cheryl Taylor listened to all what was said by both me and Mara Burton. As Cheryl witnessed from before this all started and back to the very first visit in 2009 had all the knowledge of what transpired. She suggested I call and speak to Mara so I made the call. I asked questions that were not answered. She only made statements or demands. I asked if Mr. Taylor [the man who had installed the siding provided by the first grant] was paid and when as I had no knowledge. I asked her why no member of Council or staff of the Township other than the bylaw had ever attended my residence from the time the work began until this telephone conversation other than the by-law officers as noted. Increasingly our conversation became heated whereas no headway was being made. I reminded her after she brought the Heritage aspect into the conversation of my German Heritage and that it was in no way going to be any other Heritage. In a hateful voice, Ms. Burton, Planner for the mjuaspect [sic] of my worldwide known Heritage and how the Berlin wall and the swastika gave way to democracy.

Ms. Burton told me that if I did that it would be a “Hate crime and that I would be charged, convicted and sent to jail" and in a clear loud tone said, "You are a Nazi and you should go back home to Germany where you come from." [emphasis added]

Upon hearing that Cheryl instantly reacted with pure shock. She yelled out loud for her to hear, "You have no idea who he is you ignorant cunt, maybe you should go back to where you come from”. She responded by "No no no, let me speak and that you live in the past and it is time to move on." For a few seconds nothing was said. I said how I was brought up in the past is how I am today. She laughed. I terminated the phone call.

I was totally devastated and needed time to recuperate.

I cannot remember any time of my life where I've been as angered as I was then. I totally lost all composure. It made me sick to my stomach. I was totally overcome whereas I could not function. There is nothing that could disgust me more in this world. My response, I began to contact by telephone all members of Council. This continued throughout the day…

37In the Application filed on August 6, 2010, the applicant quotes the comment made by Ms. Burton: "You are a Nazi and you should go back home to Germany where you come from." In testimony given on December 15, 2011, he insisted that her exact words were, “You Nazi bastard. Get back on the boat and go back to where you come from and where you belong.” In the Application, there is no use of the word “bastard” and no mention of getting back on any boat. Given that the applicant had earlier confirmed that the Application was all true and adopted it as part of his testimony, I find that the applicant’s evidence on this important aspect of the evidence is not reliable. I also find the insertion of the word “bastard” to be an embellishment that further undermines the applicant’s credibility as I do not find it plausible that the applicant would have forgotten at the time of completing the Application that the respondent’s Director of Planning had called him a bastard in addition to a Nazi.

38Another reason for preferring Ms. Burton’s memory of the incident over the applicant’s is the fact that the applicant admitted to generally having problems hearing and “getting words wrong” which he claimed was why he arranged to have his girlfriend, Ms. Taylor, listen to his telephone conversation with Ms. Burton.

39I also question the applicant’s credibility with respect to his testimony that he would not know that most people would interpret a swastika as a symbol of Nazism. This makes no sense because he admitted that he angrily made the threat to the by-law enforcement officers to paint the Berlin Wall with swastikas, which he would only have done if he thought such a threat would concern them. He noted in his Application that the officers appeared shocked when he made this threat on their visit to his home. As well, the applicant admits that he heard Ms. Burton’s warning that this might constitute a hate crime. His statement at the hearing that he does not know the effect of displaying a swastika is inconsistent with his knowledge of its shock value and the receipt of the information that it might constitute a hate crime. I find that his claim not to know that the swastika is a Nazi symbol so conflicts with his threat to paint one on his house that the applicant’s credibility is undermined.

40The applicant argues that Ms. Taylor’s evidence supports his version of the telephone conversation. While Ms. Taylor testified that she heard Ms. Burton tell the applicant he was a Nazi and should return to Germany, I do not believe that her evidence entirely supports his version of the telephone conversation.

41With respect to when the allegedly discriminatory comment was made, Ms. Taylor was very clear that it was made in the middle of the telephone conversation which all witnesses agreed was approximately 45 minutes long. This conflicts with the applicant’s evidence in both his Application and in his testimony that the comment was made at the very end of the conversation, but is consistent with Ms. Burton’s testimony that the swastika discussion occurred in the middle of it. I make the finding of fact, therefore, that the swastika discussion, in which the word “Nazi” was used, occurred in the middle of the telephone conversation, and, as described by Ms. Taylor and Ms. Burton, the second half of the conversation was about the applicant’s property, the CIP grant, and the by-laws and Order.

42The applicant claims that he was devastated by Ms. Burton’s alleged comment, and immediately ended the call after she made it, and then sought out councillors and the mayor to report her; however, as discussed below, I prefer the evidence of the mayor and the councillors who testified that the applicant did not report the comment, but was upset about the news just brought by the by-law officers that he had run out of time to comply with the by-laws and complete work on his house, so that the respondent would force it on the applicant. Ms. Burton’s evidence corroborates theirs in that she also understood the reason for which the applicant called her and was angry was because his time to comply with the by-laws and an Order that he perceived as unfair had expired. The applicant’s conduct following the telephone conversation involves his angry reports to Mr. Warnock, Mr. Rawson and Mr. Baumgardner about the lack of grant monies and the Order, and, as found below, not about Ms. Burton’s alleged comment. This conduct does not support his evidence that Ms. Burton made the alleged comment and he immediately then ended the call and reported her.

43Not only does Ms. Taylor’s evidence conflict with the applicant’s in terms of when the allegedly discriminatory comment was made, but also I find that it fails to entirely support the applicant’s evidence in terms of what was said. When the applicant asked Ms. Taylor about what was said in his conversation with Ms. Burton after Ms. Burton referred to the heritage requirement for the grant, Ms. Taylor testified, “I heard the word ‘Nazi’ and then a comment about you getting back on the boat and going back to your country.” It is noteworthy that her answer to a properly framed question about what she overheard in the conversation was vague, and she did not specifically ascribe to either speaker the use of the word “Nazi” or the comment about getting back on a boat to return to the applicant’s country. In other words, her initial testimony could be construed as consistent with Ms. Burton’s testimony that the applicant had asked Ms. Burton if she was calling him a Nazi, and that the applicant said, “I suppose you want me to go back to Germany where I came from.” Ms. Taylor remembering only the word, “Nazi” and “a comment” about returning to Germany is also consistent with the circumstances which both parties agree was a heated conversation, with Ms. Taylor yelling, and the applicant, who was angry, raising his voice and pacing the floor while holding the phone upon which Ms. Taylor was dependent for overhearing the conversation. The applicant described his voice as generally powerful, and I noted at the hearing that he has a loud voice when it is not “raised” so I have no doubt that his raised voice is very loud. Both the applicant and Ms. Taylor agreed that three people were talking at around this time in the conversation.

44The applicant next asked Ms. Taylor, “Did you hear any words before or after the word ‘Nazi’?” After some hesitation, appearing to struggle for an answer, Ms. Taylor testified, “She said you are a Nazi.” Her clarification is inconsistent with Ms. Burton’s evidence, but Ms. Taylor is the applicant’s girlfriend, and she admitted to having a vested interest in the outcome of the proceedings. That interest was evidenced in her emotional and profane outburst defending the applicant who she felt was being insulted. Given her initial answer, that interest also causes me to doubt Ms. Taylor’s statement that she remembered that it was Ms. Burton who called the applicant a Nazi, and not that she had just heard the word “Nazi” as her first answer indicated.

45Ms. Burton was certain that she did not tell the applicant that he is a Nazi and should return to Germany, and explained with detail why she was certain. Ms. Burton had previously been alerted by a by-law enforcement officer to the fact that the applicant was thinking of painting a swastika on his house, and Ms. Burton was therefore not surprised by his threat that he would. She explained that she had already had some discussion at the office about whether doing such a thing would constitute a hate crime, and was not clear that it would. Her assertion that she chose her words carefully is therefore logical. Her testimony was that she warned the applicant that displaying the swastika might be a hate crime and that police may be involved. It is logically credible that such a warning would provoke the applicant’s question, “Are you calling me a Nazi?” and her response that she was not and her question, “But you do realize that it is the symbol that the Nazi’s used?”

46I also find convincing and credible the detail in Ms. Burton’s testimony with respect to why she said that she was not telling him to go back to Germany, namely, that she was surprised by the question because she thought the applicant was born “here” and went to high school with her husband. While Ms. Burton doesn’t believe that the applicant confirmed that she was right during the conversation, he admitted at the hearing that he was born in Canada, in the respondent’s community, not in Germany. Ms. Burton’s testimony that she did not tell the applicant to “go back to where he came from” or “back to Germany” is consistent with her belief, which proved true, that he did not come from Germany.

47There was no evidence that Ms. Yates had or has any interest in the telephone conversation or in the outcome of these proceedings. She provided testimony that she heard Ms. Burton say, “No I am not calling you a Nazi,” from a distance of 7-8 feet, when she herself was not speaking and when she could not hear anyone else speaking through the telephone. Ms. Yates therefore had a much better opportunity to hear Ms. Burton clearly than did the applicant or Ms. Taylor who were, by their own admission, upset at the time the alleged comment was made, both speaking loudly at the phone which they claim was on speaker mode so that they could both also hear Ms. Burton interjecting. I find that Ms. Yates had the best opportunity to hear the exact words of Ms. Burton, and her evidence corroborates all of Ms. Burton’s.

DISMISSAL OF ALLEGATION WITH RESPECT TO COMMENT

48In conclusion, I prefer the evidence of Ms. Burton and Ms. Yates over the evidence of the applicant and that part of Ms. Taylor’s evidence which states Ms. Burton told the applicant that he was a Nazi and should return to Germany. I find on balance that Ms. Burton did not tell the applicant on July 19, 2010 that he was a Nazi and that he should return to Germany, or that he should return to where he came from. Consequently, I dismiss the Application with respect to the allegation that the comment or comments were made.

THE EVIDENCE WITH RESPECT TO THE ALLEGED FAILURE TO INVESTIGATE

The Applicant

49The applicant testified that, after speaking with Ms. Burton, he spent the rest of the afternoon making phone calls to councillors and the mayor, Mr. Warnock. He reached someone he understood to be the deputy mayor, Michael Ladouceur, but the applicant was not able to have a discussion with him because Mr. Ladouceur was on the highway travelling. He told the applicant that he would get back to him, but never did. The applicant testified that he also reached Mr. Warnock at his residence, and told him “what happened”. Mr. Warnock did agree to come to his house that evening.

50That evening, Mr. Warnock came to his house and spoke to him outside. The applicant’s brother and a friend who is a reporter were also there. Mr. Warnock asked the reporter to stand at a distance. The applicant testified that he told Mr. Warnock that there was trouble with the grant agreement and that he had talked with Ms. Burton who called him a Nazi. He testified that Mr. Warnock told him that he would get back to him, but never did.

51In cross-examination, the applicant admitted to having discussions earlier in the afternoon with Bill Rawson, who testified that he was deputy mayor although the applicant believed he was a councillor, and with another councillor, Nelson Baumgardner. With respect to Mr. Rawson, he testified, “I called him because of what had happened on July 19, 2010 and to also discuss the CIP grant.” He says that he was venting and couldn’t calm down, and that he couldn’t remember exactly what he had said.

52With respect to Mr. Baumgardner, the applicant testified, “I told him everything,” and said Mr. Baumgardner couldn’t believe that “it was taking place,” but the applicant clarified that he didn’t know what “it” meant.

53The applicant agreed in cross-examination that he did not make a formal complaint in writing or orally that Ms. Burton had discriminated against him because of his ancestry, place of origin or ethnic origin. He also agreed that he did not put into writing his complaint about her calling him a Nazi and telling him to return to Germany.

54The applicant agreed that he received a letter dated July 19, 2010 from Ms. Burton with respect to how to challenge the decision not to provide further CIP grant funding, and another letter dated August 20, 2010 from Alison Thomas, a clerk for the respondent, that said that the respondent would proceed to remedy the applicant’s house’s maintenance issues and charge him the cost through his municipal taxes. He admitted that the first thing that he put in writing to the respondent, after his July 19, 2010 conversation with Ms. Burton, was a letter dated September 15, 2010 to the clerk asking for deficiencies about his property and for a copy of the property standards by-laws.

Walter Zimmermann

55The applicant’s brother, Walter Zimmermann, testified that the applicant called him and asked him to come to be at his house on the evening of July 19, 2012 at the same time as the applicant planned for Mr. Warnock to be there. He said that the applicant appeared angry, and that when he observed the meeting between the applicant and Mr. Warnock, the applicant was also angry. The applicant’s brother heard the applicant and Mr. Warnock speaking, and testified that he heard some conversation about property standards, but “was not sure what was discussed exactly but the subject of Nazism came up.” He testified that he heard the applicant say to Mr. Warnock that he was told to go back to his country “or something like that.” In cross examination, he stated, “From what I recall, someone had said something to my brother about Nazism and going back to his own country.”

Deputy Mayor Bill Rawson

56Bill Rawson is the respondent’s Deputy Mayor. He testified that, on his way home from work, he was stopped by the applicant at the stop sign in front of the applicant’s house on July 19, 2010. The applicant told him that he was angry about work on his house not being finished, and about by-law officers and an order on his house. The applicant told Mr. Rawson about his heritage and that he was going to pay high school students to paint an artistic version of a swastika on the side of his house. Mr. Rawson said that the applicant did not mention Ms. Burton or make a complaint about her or any statement made by her, including a statement that the applicant was a Nazi.

57According to Mr. Rawson, on July 21, 2010, two days after being flagged down by the applicant, the applicant called Mr. Rawson to follow up on the roadside conversation and have Mr. Rawson attend at the applicant’s home. Mr. Rawson decided not to attend. He had asked staff about the respondent’s refusal to provide funding to the applicant for the siding he wanted, and decided that the refusal was reasonable.

58He testified that the first time he heard about the applicant’s allegation that Ms. Burton had called the applicant a Nazi, and that she had told him to return to Germany, was at a Council meeting where Ms. Burton denied having said such a thing. His understanding was that Council did not proceed with any further investigation at that point because the applicant had pushed the matter to something more formal than an internal investigation by filing an Application at the Tribunal.

Councillor Nelson Baumgardner

59Mr. Baumgardner testified that the applicant telephoned him on July 19, 2010 to discuss CIP funding and a confrontation with Ms. Burton and by-law officers. The focus of the conversation was on the fact that the work on the applicant’s house wasn’t finished, and the applicant spoke of his preference for vertical siding instead of horizontal siding. Mr. Baumgardner understood that the reason for which the applicant was upset was because he was frustrated with the whole procedure involved in getting siding put on his house.

60Mr. Baumgardner testified that there was no mention of a swastika in the conversation, nor the word “Nazi” other than when the applicant used the word to say that he thought the whole town thought he was a Nazi. Mr. Baumgardner testified that the first time he learned of an allegation that Ms. Burton had discriminated against the applicant was at a Council meeting at which point the applicant had already filed his Application with the Tribunal. It was Mr. Baumgardner’s understanding that the Council couldn’t “do anything” at that point because “it was a legal matter”.

Mayor Warnock

61Mr. Warnock is the respondent’s mayor. He testified that he received a telephone call on July 19, 2010 from the applicant who he had known throughout the years since he became involved with the Council in 1997. He agreed to meet the applicant at 6:00 p.m. that day at the applicant’s house.

62Mr. Warnock testified that the applicant wanted to talk about by-law enforcement officers who had visited that morning, and the rejection of his application for a second CIP grant. Mr. Warnock was clear that the applicant was very upset because there was an order against his house, and the second grant was not approved to deal with it, but Mr. Warnock said that it was difficult to follow what the applicant was saying because he was “heated” and “rambling” and “waving his arms”. Mr. Warnock remembered that the applicant said, “Someone thinks I am a Nazi,” but the applicant did not expand and focused instead on his house. Mr. Warnock testified that the applicant did not complain that Ms. Burton called him a Nazi. Mr. Warnock said that if the applicant had said that Ms. Burton had called him a Nazi and told him to go back to Germany, he would have ensured there was an immediate investigation.

63Mr. Warnock testified that he told the applicant that he would investigate the by-law enforcement and the CIP grant issues, because that is what he thought the applicant was upset about, and then get back to him. The next day, Mr. Warnock talked to Ms. Burton about these issues, and she showed him the letter she had drafted to the applicant which satisfied Mr. Warnock that the applicant was receiving attention. He felt that if the applicant were not satisfied with the information in the letter, then the applicant would get back to him.

64He testified that Ms. Burton also told him that the applicant had indicated to her that he might paint a swastika on his building, and that she had told the applicant that it might be a violation of the Township by-law and a hate crime, but he felt that the OPP would handle that.

65He did not tell Ms. Burton about the applicant having complained about any comment she might have made, because the applicant had not complained that Ms. Burton called him a Nazi and should return to Germany. Mr. Warnock testified that the first time he learned of the applicant’s complaint about Ms. Burton having called him a Nazi and telling him to go back to Germany was when the respondent received the Application filed at the Tribunal. At that point, Mr. Warnock felt that the matter was a legal situation and they couldn’t do anything else.

ANALYSIS OF EVIDENCE WITH RESPECT TO THE ALLEGED FAILURE TO INVESTIGATE

Whether the applicant complained to Mr. Rawson or Mr. Baumgardner

66I find as fact that the applicant did not complain to Mr. Ladouceur, who never called him back, Mr. Rawson or Mr. Baumgardner that Ms. Burton discriminated against him in relation to a ground under the Code. In the applicant’s testimony, he vaguely stated that he told Mr. Rawson and Mr. Baumgardner “what happened” or “everything” and that he cannot remember exactly what was said. The applicant was very upset after the phone call with Ms. Burton, by all accounts, including his own, and he admitted to not being able to remember well. I find the recollections of Mr. Rawson and Mr. Baumgardner much more reliable. Although Mr. Baumgardner testified that the applicant told him that he believed the whole town thought he was a Nazi, Mr. Rawson and Mr. Baumgardner testified that the applicant’s complaints were about the grant refusal and the work that needed to be done on the house. They were sure that the applicant never mentioned that Ms. Burton called him a Nazi or told him to return to Germany. It is not enough for the applicant to speculate to Mr. Baumgardner that the “whole town” thinks he is a Nazi. For the allegation that the respondent failed to investigate a complaint of discrimination, there must be clear and convincing evidence that the applicant at least complained that it was an employee of the respondent who told him that he was a Nazi.

Whether the applicant complained to Mr. Warnock

67With respect to the applicant’s alleged reporting to Mr. Warnock that Ms. Burton called the applicant a Nazi, I find that Mr. Warnock’s testimony is more reliable than the applicant’s. The applicant admitted that the conversation with Mr. Warnock was about the refusal of the grant monies and the Order. Mr. Warnock was very clear that the applicant’s statement that he was perceived as a Nazi “by someone” was made in passing and without reference to Ms. Burton.

68Mr. Warnock’s and Walter Zimmermann’s testimonies do not generally conflict with each other. Walter Zimmermann testified that the applicant called him on July 19, 2010 to come to his house, which he did, just prior to the arrival of Mr. Warnock, and Walter Zimmermann listened to the conversation between Mr. Warnock and the applicant outside the applicant’s home that evening. Walter Zimmermann stated that he really couldn’t recall clearly the contents of the conversation he overheard between his brother and Mr. Warnock. He testified that the conversation was about property standards, but “was not sure what was discussed exactly.” He testified that “the subject of Nazism came up”, and he heard the applicant say that he was told to go back to his own country, “or something like that”. In cross examination, He stated, “From what I recall, someone had said something to my brother about Nazism.” Walter Zimmermann did not testify that he heard the applicant report that Ms. Burton or an employee of the respondent had told the applicant that he was a Nazi, but instead that “someone” had told his brother “something” about Nazism.

69Walter Zimmermann’s testimony is equivocal and does not sufficiently support his brother’s evidence that he complained Ms. Burton called him a Nazi. His evidence may just as easily be seen to support Mr. Warnock’s version: namely, that the applicant had made a vague reference in passing to “someone”, not an employee of the respondent, calling him a Nazi, but that his purpose and focus in the conversation with Mr. Warnock was to discuss the property standards.

70Mr. Warnock clearly remembered the applicant’s complaints about not getting the grant money and about the Order that the applicant must comply with property standards. He testified that there was no reference to Ms. Burton telling the applicant he was a Nazi and should return to Germany, stating that if such a reference had been made, there would have been an investigation. His version of what the applicant reported to him and what he investigated is corroborated by his conduct the following day as described in Ms. Burton’s evidence. She testified that Mr. Warnock approached her the following day to question her about the applicant’s property and the Order, never mentioning anything about an allegation that she had called the applicant a Nazi.

71Contrarily, I find that the applicant’s subsequent conduct does not corroborate his testimony. After July 19, 2010, the first communication he sent to the respondent is a letter dated September 15, 2010 to the clerk asking for deficiencies about his property and for a copy of the property standards by-laws. Nothing in his letter mentions his allegations of discrimination, which, given that there had been no follow up by the mayor with respect to the alleged comment, does not seem probable if Ms. Burton had indeed called the applicant a Nazi such that he was “totally devastated” by it, and if he had reported it to Mr. Warnock. If the comment had been made, if he had reported it to Mr. Warnock, and if he had heard nothing further about his allegations, then it would be improbable that he would not have referred to the comment in his first written communication about the property standards by-laws, those property standards being the context in which the alleged statement were made.

72In conclusion, I find that the applicant has not met his burden of proof by establishing on a balance of probabilities that he did complain about Ms. Burton having called him a Nazi and having told him to return to Germany.

73Even if I were to find that the applicant did say in his conversation with Mr. Warnock that Ms. Burton had called him a Nazi and should return to Germany, given that such a statement is with respect to his allegation that the respondent failed to investigate a complaint of discrimination, I must also find that the respondent received this alleged complaint. In the circumstances, I make a finding of fact that Mr. Warncock did not receive such a complaint. By all accounts, including the applicant’s, he was angry and upset. Mr. Warnock said that it was difficult to follow what the applicant was saying because he was “heated” and “rambling” and “waving his arms”. Mr. Warnock was credible in his testimony that he did not hear the applicant complain about Ms. Burton (even if the applicant tried to articulate a complaint), and his assertion that if there had been a complaint, he would have investigated it.

Conclusion

74Having found that the applicant has not established, on the balance of probabilities, that he made a complaint to Mr. Warnock or to any Councillor that any of them could have understood to be a complaint of discrimination by Ms. Burton, and in the absence of any communication by the applicant to the respondent after July 19, 2010 about the alleged comment, I dismiss the applicant’s allegation that the respondent failed to investigate.

ORDER

75I dismiss the allegation of discrimination with respect to the allegation that Ms. Burton called the applicant a Nazi and told him to return to Germany. I also dismiss the allegation that the respondent failed to investigate a complaint of discrimination. The Application is therefore dismissed.

Dated at Toronto, this 12th day of December, 2012.

”signed by”

Mary Truemner

Vice-chair