HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Francesca Ortepi Applicant
- and-
Dr. T.H. Tsang Dentistry Professional Corporation and Teodoro Tsang Respondents
DECISION
Adjudicator: Brian Cook Date: April 13, 2012 Citation: 2012 HRTO 742 Indexed as: Ortepi v. Dr. T.H. Tsang Dentistry Professional Corporation
APPEARANCES and WRITTEN SUBMISSIONS
Francesca Ortepi, Applicant ) Self-represented
T.H. Tsang Dentistry Professional Corp. and Teodoro Tsang, Respondents ) ) David Goodman, Counsel
INTRODUCTION
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of race, ethnic origin and creed.
2The Application was heard on April 2, 2012. The applicant appeared on her own behalf. The personal respondent, Teodoro Tsan, also appeared. The respondents were represented by David Goodman, counsel.
3At the hearing, I heard first from the applicant. Her evidence in chief came out primarily in response to questions I put to her. After hearing the applicant’s evidence in chief, Mr. Goodman asked that I dismiss the Application on the grounds that, in his view, the applicant had not provided evidence to show that she had experienced discrimination contrary to the Code. I denied that request and indicated that I wished to hear from Dr. Tsang. Mr. Goodman then questioned Dr. Tsang. I asked some questions of him as well and the applicant was given the opportunity to cross-examine Dr. Tsang. Mr. Goodman then indicated that he wished to ask the applicant some further questions on cross-examination, which he had earlier waived in favour of hearing from Dr. Tsang first, and I allowed him to ask the applicant further questions.
4Both parties indicated that they might wish to call two further witnesses each. The applicant’s proposed witnesses are past employees of the corporate respondent. The applicant indicated that one of her witnesses had not been able to get the day off work to attend the hearing. The other was unable to attend because she was home with a sick child. The respondents’ proposed witnesses were a current employee of the corporate respondent and one of the dentists who is part of the respondents. The respondents’ witnesses were standing by for the second day of the two-day scheduled hearing.
5The Notice of Confirmation of Hearing that was sent to the parties by the Tribunal reminded the parties that the Tribunal’s Rules of Procedure require a party to an Application to file with the Tribunal and the other party various documents in advance of the hearing. These include a witness list and a summary of what each witness is expected to say. Neither party filed a witness list or summary.
6As explained in more detail below, after hearing the evidence of the applicant and Dr. Tsang, I determined I did not need to hear from any additional witnesses. I invited the parties to make submissions on the merits of the Application.
DECISION
7For the reasons which follow, the Application is dismissed.
Background
8The corporate respondent is a dentistry practice. There are five dentists in the practice including Dr. Tsang. The applicant was hired in March 2010 in the position of Lead Practice Coordinator. She signed an Employment Contract on March 27, 2010 although it appears she started work a few days earlier. The applicant resigned her employment on April 22, 2010, after working for the respondent for approximately one month.
9The applicant alleges that she was forced to resign because she experienced constant harassment and discrimination.
10The applicant indicated that when she was hired by Dr. Tsang, she understood that the practice was not operating very efficiently. There had originally been one location and a second location was added in 2008. The applicant had in the past worked for several years as an office manager of a dental practice and her understanding was the Dr. Tsang wanted her to use her management experience to revamp procedures and improve staff efficiency.
11Dr. Tsang testified that he did not expect the applicant to revamp the office procedures. The practice has been operating very successfully for almost twenty years. He did however think that things could be done to “tweak” procedures to increase efficiency and hoped that the applicant could accomplish this.
12Dr. Tsang testified that the applicant did not improve procedures and that instead things became less efficient. He spoke to her about this but things did not improve.
13The applicant alleges that Dr. Tsang “defamed” her by accusing her of not having the experience and expertise she should have had. She noted that some of the existing procedures seemed to have been developed by more than one person. She had a sense that things were not working out in regard to her own employment and was reluctant to simply provide procedures that she had developed over the years if she was not going to be employed for long. She suggested that the procedures were intellectual property that she did not want to simply provide without having the ability to have the changes she felt were needed implemented. These changes included a proposal that one or perhaps two of the existing staff be fired. Dr. Tsang did not agree to this proposal.
14The applicant testified that she did institute a new binder procedure but it was not effective because the other staff refused to co-operate.
The Applicant’s Code-related Allegations
15As discussed at the hearing, the fact that a person has a negative experience in employment does not necessarily mean that the person’s Code-protected rights have been infringed. There must be evidence that the negative or unfair treatment was influenced at least in part by a Code-protected ground.
16In the Application, the applicant identified race, ethnic origin and creed, all of which are Code-protected grounds.
17In respect of race and ethnic origin, the applicant testified that during the interview, Dr. Tsang asked her if she was Italian. She said that she was. He asked her if he knew the Italian spouse of one of his relatives. She said she did not. She testified that after this her own ethnic origin or race never came up in discussions with Dr. Tsang or with any of the other staff or dentists.
18The applicant testified that the office staff was ethnically diverse. There were several Filipina women in the office. Dr. Tsang’s mother was Filipina and his father was of Chinese origin and the applicant believes that he favoured the Filipina women in the office. At the time the applicant was employed, there were about fifteen staff working in the office, not including the dentists. The parties agreed that five people were Filipina.
19The applicant testified that some of the Filipina staff would talk together in a Filipino language. This had the effect of excluding her and she felt that they were talking about her in a negative way. She complained to Dr. Tsang about this but nothing happened.
20Dr. Tsang testified that the applicant did complain about staff talking in their own languages. He indicated that he encouraged staff to speak languages other than English when talking to patients of the same language who were not comfortable speaking in English. He also felt that it was appropriate for staff to talk in whatever language they might like on their own time. He testified that in response to the applicant’s complaint he told the staff that everybody should speak English when conducting office business unless they were talking to patients or were on their own time.
21The applicant testified that Dr. Tsang discriminated against her because he frequently referred to his “loyal Filipina staff”. She took this as a suggestion that while they were loyal and hardworking, she was not.
22Dr. Tsang denied that he frequently talked about his loyal Filipina staff. However, he noted that some of the Filipina women had been with the practice for several years. This included one of the staff members that the applicant felt should be fired, who had been working for the practice for about eight years.
23The applicant believes that she was discriminated against when a staff meeting was called and she was not invited. She heard from one of the people in attendance that the applicant was the main topic of conversation. Dr. Tsang testified that there was a meeting at which the applicant was discussed but it did not involve the whole staff. The applicant was discussed because the other staff had complaints about her.
24In addition to race and ethnic origin, the Application identified creed as another Code-protected ground that was relevant.
25The applicant testified that discrimination or harassment on the grounds of creed arose on one occasion, just before the Easter weekend. She testified that Dr. Tsang asked her if she was going to Church on the weekend. She said that she was not. Although he did not specifically say anything, she could tell by the look on his face that he disapproved.
26Dr. Tsang recalled a conversation about Church. However, he recalled that the applicant asked him what he was doing on the weekend. He told her that he would be going to Church. He did not recall asking the applicant if she was going to go to Church or suggesting that she should.
Analysis and Conclusions
27Section 5 of the Code provides as follows:
- (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.
28“Harassment” is defined in section 10 of the Code:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
29To prove harassment or discrimination under the Code, an applicant does not have to show that the actions of the employer were only because of a factor in section 5. However, she does have to show that a Code-protected ground was a factor that influenced the employer’s behaviour or decision.
30In this case, the applicant clearly feels that she was not treated fairly by Dr. Tsang. She felt he belittled her and would not acknowledge her accomplishments or allow her to do the job she thought she had been hired to do. Rather than supporting her in her attempts to reform procedures, he supported his existing staff even though in her analysis at least some of them were the source of many of the problems. As a result she felt increasingly isolated from the other staff and increasingly frustrated and unhappy. She realized that the situation would not likely improve and she resigned.
31After hearing the applicant and Dr. Tsang, it appears to me that some friction was likely in this situation. If it is true that the applicant understood that she was hired to overhaul an office that was not functioning very well whereas Dr. Tsang thought that she was hired to “tweak” procedures, there was a significant gap in expectations about what the applicant was supposed to do. This difference could very well explain why the employment relationship did not work out.
32However, even if I accept that the applicant was treated poorly in employment, this is not in and of itself a basis for the Application to succeed. As noted, for the applicant to succeed, she must be able to show that the bad treatment that she alleges occurred because of one of the Code-protected grounds that she identified in the Application, specifically, race, ethnic origin and creed.
33I find that the applicant has not shown that the bad treatment that she alleges was based upon or influenced by race, ethnic origin or creed.
34In the circumstance, the fact that Dr. Tsang asked the applicant if she was Italian is not in itself evidence of harassment or discrimination under the Code. Nor is the fact that he asked her if she knew the spouse of one of his relatives. Such questions could conceivably raise a Code-related concern if they were the start of some course of conduct that continued and was known or ought to be known was unwelcome or if there was some reason to think that the applicant was treated differently because of her race or ethnic origin. However, in this case the applicant agrees that the topic of her race or ethnic origin never came up again.
35The applicant suggests that even if she was not directly harassed or discriminated against because of her race or ethnic origin, she was nevertheless treated differently in relation to the Filipina women in the office. She alleges that Dr. Tsang sided with them over her and referred to them as his “loyal Filipina staff”. Dr. Tsang did refuse to fire some of the Filipina staff as the applicant felt he should. However, this is evidence that he did not agree with the applicant’s assessment of his staff and is not evidence of discrimination. In my view, in this context, it would not be discriminatory for Dr. Tsang to comment on the loyalty of staff who had been with him for some years, in contrast with the applicant, who had been employed for only a few weeks. In any event, his comment about staff loyalty was not linked in any way to the place of origin of that staff but appears rather to have been a reference to their years of service.
36The fact that others in a workplace are talking in a language other than the main language of the workplace can lead to feelings of exclusion. It is possible that in some circumstances, such exclusionary activity could lead to a finding of differential treatment and discrimination. In this case, Dr. Tsang testified that the applicant did bring this concern to his attention. He told the staff to speak only English when conducting the business of the office except when speaking to patients who were more comfortable using another language or when speaking privately to each other when on their own time. The applicant does not dispute this and I accept Dr. Tsang’s testimony on this point. The applicant does allege that the other staff continued to speak in a language other than English when conducting office business. However, it appears that she did not advise Dr. Tsang of this because she left the employment.
37I find that the applicant has not provided evidence of discrimination on the grounds of race or ethnic origin. She has provided no evidence or expected evidence, beyond speculation, to support the allegations of discrimination or harassment in respect of things that are covered by the Code.
38In regard to the allegation of discrimination on the grounds of creed, the allegation is limited to one occasion when the applicant says that Dr. Tsang asked her if she was going to attend Church on the Easter weekend. The applicant felt that Dr. Tsang felt that she should attend Church.
39I find that the applicant has not provided evidence of discrimination or harassment on the grounds of creed. As noted earlier, under the Code, “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The alleged harassment in this case constitutes only a question of whether the applicant intended to go to Church on the Easter weekend. Since the subject of religion had not previously come up and did not come up again, the alleged question could not, in my view, constitute a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The applicant agrees that there was no other discussion of her creed and does not suggest that the fact that she did not attend Church provides an explanation for the bad treatment she alleges she was subject to during her employment.
40As discussed at the outset of this Decision, both parties indicated that they might wish to call additional evidence from witnesses. The applicant’s witnesses were not available. The respondent’s witnesses were standing by for the second day of hearing.
41The applicant felt that her witnesses might be available for the second day of the hearing but she was not sure. I asked the applicant to elaborate on what she expected the witnesses would say if I did hear from them. She indicated that she was not completely sure what they would say but she expected that they would support her case. In discussing this further, the applicant indicated that in particular, they would be provide evidence to show that the applicant was badly treated during the period of her employment. She suggested that they would testify that they too were badly treated and that race might have been a factor in how they were treated. She said that one of the witnesses is of Pakistani background and the other is of Chinese background.
42I determined that it was not necessary to hear from any of the proposed witnesses. In addition to the fact that neither party provided a witness list or witness statement prior to the hearing, it appeared unlikely that the proposed witnesses would add anything of substance in respect of the question of whether the applicant experienced harassment or discrimination on the grounds of race, ethnic origin or creed. A witness may provide support for an applicant’s evidence of discrimination or harassment, but if an applicant is unable to provide evidence to support a finding of harassment or discrimination contrary to the Code on the basis of her own testimony and the testimony of the respondent, additional witnesses are unlikely to provide a basis for such a finding.
43At the hearing, I indicated that if while reviewing the evidence I found that the applicant had established evidence to support a finding of harassment or discrimination contrary to the Code, I would take appropriate steps, which could include reconvening the hearing to hear additional evidence from witnesses. However, I have concluded that this is not necessary because I find that the applicant has not established evidence to support a finding of harassment or discrimination contrary to the Code.
44For these reasons, the Application is dismissed.
Dated at Toronto, this 13^th^ day of April, 2012.
”Signed by”__________________
Brian Cook
Vice-chair