HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amber Zimmermann Applicant
-and-
Ontario Lottery and Gaming Corporation Respondent
DECISION
Adjudicator: Lorne Slotnick
Indexed as: Zimmermann v. Ontario Lottery and Gaming
APPEARANCES
Amber Zimmermann, Applicant ) On her own behalf
Ontario Lottery and Gaming, Respondent ) Caroline Cohen, Counsel
1This is an Application under Section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the basis of sex (sexual harassment) in employment. The Application was filed against Ontario Lottery and Gaming; the respondent’s proper name is Ontario Lottery and Gaming Corporation.
2The applicant was employed as a security guard for about eight weeks starting in July, 2010, at Ajax Downs, one of numerous race tracks where the respondent operates slot machines.
3At the start of the hearing of this matter on December 21, 2011, I initiated some discussions with the parties, and as a result, the applicant withdrew several allegations that were unrelated to any ground in the Code.
4What remains is an allegation that the applicant’s supervisor, in the words of the Application, “vulgarly grabbed his crotch insinuating a sexual action or offensive remark” on September 12, 2010.
5After I heard the applicant’s evidence, the respondent moved to have the Application dismissed on the basis that there was no prima facie case to answer.
6The applicant was working on an overnight shift starting late in the evening of September 11, 2010. As in all legal gambling establishments, all activity in the Ajax Downs slot machine area is captured on video. A central portion of the evidence in this case is a short videotape of the alleged incident taken from two different camera angles. In fact, both parties agreed that this Application stands or falls based on what is seen on this video.
7The video shows an interaction between the applicant and her supervisor, Andrew Rickaby, at 3:56 a.m. on the gaming floor at Ajax Downs. While there is no audio, the applicant and Mr. Rickaby appear to be chatting.
8The applicant’s evidence is that she had met Mr. Rickaby only once before that evening, because he had been on vacation during the summer, and that earlier in the shift they had had a discussion about her progress in her new job.
9The applicant maintains that the video shows Mr. Rickaby grabbing his crotch. She said Mr. Rickaby said nothing at that moment, but looked angry. She said she did not say anything because “I was in shock. I didn’t believe it happened, I just stood there.”
10The applicant’s evidence is that the entire incident is on the video entered into evidence, and that nothing else relevant happened that is not on the video.
11The applicant reported the incident to management. After the respondent’s security manager viewed the video, he advised the applicant that he did not see anything inappropriate.
12I have reviewed the video at least 10 times, and my conclusion is that no reasonable person would agree with the applicant’s description of this interaction.
13The video from the first camera angle shows Mr. Rickaby standing among the slot machines in the gaming area, alone at first, at 3:56 a.m. He walks off camera, then returns, walking with the applicant, and they appear to be talking in a friendly manner. The applicant takes out her hand-held radio, Mr. Rickaby appears to be laughing at something, and then he seems to be reaching down for a split second to touch his trousers. The applicant shows no reaction. Mr. Rickaby’s facial expression cannot be discerned.
14The video from the second camera angle shows the applicant and Mr. Rickaby mainly facing away from the camera, although from a shorter distance than from the first camera. Again, Mr. Rickaby is seen touching his trousers for a split second, and he and the applicant continue to talk. After a few seconds, they walk away together, the applicant following Mr. Rickaby. They walk to another area of the gaming floor, and into the range of a third camera where Mr. Rickaby greets another employee, identified by the applicant as a slot machine attendant to whom Mr. Rickaby wanted to introduce her. The three employees are seen chatting in what appears to be a friendly conversation, and it appears that the applicant is smiling. After a few seconds, the applicant walks to another area of the gaming floor, leaving Mr. Rickaby and the slot machine attendant, who continued talking. About a minute later, from a fourth camera, Mr. Rickaby is seen walking over to where the applicant is now standing, and the two have what appears to be a friendly chat.
15There are several aspects of the video that plainly conflict with the applicant’s description of the events. First, her evidence was that she and Mr. Rickaby were alone, with no patrons in the area. This is clearly not the case, as the video shows several patrons nearby, although they were playing the slot machines rather than paying attention to the applicant and Mr. Rickaby. Second, her evidence is that she was shocked at Mr. Rickaby’s conduct. However, no change whatsoever in her demeanour is observable on the video after Mr. Rickaby touches his trousers. She continues to talk to him, and then walks just behind him to the area where they greet the third employee. Third, and most important, while it is not entirely clear what Mr. Rickaby is doing when he touches his trousers, it is very clear that he is not grabbing his crotch in a vulgar manner as alleged by the applicant. It appears that he is simply adjusting his clothing or briefly scratching the upper part of his leg. It is noteworthy that before the applicant comes into the picture, Mr. Rickaby appears to be doing exactly the same thing with his trousers as he does a few seconds later when the applicant is present.
16As stated above, there is simply no basis for any conclusion that Mr. Rickaby grabbed his crotch in a vulgar matter, as alleged. It is unnecessary to assess whether the applicant’s allegation, if true, would constitute a violation of the Code.
17The respondent has asked me to dismiss the Application on the basis that there is no prima facie case for it to answer.
18While the threshold for a prima facie case is low, the Tribunal has refused to proceed with hearings where there is no hope of success and to proceed would place a burden on the respondent and waste the Tribunal’s resources. See for example Jagait v. In Tech, 2009 HRTO 779.
19This, in my view, is such a case – particularly since the applicant herself has agreed that the claim is based on the incident on videotape and that nothing more happened that is relevant to any alleged violation of the Code. In light of my conclusion that no reasonable person would see on the video what the applicant describes, there is no need for the respondent to answer the allegation.
20The Application is therefore dismissed.
Dated in Toronto this 16th day of January, 2012.
”signed by”_________
Lorne Slotnick
Member