HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Laura Di Pelino
Applicant
-and-
Springer’s Meats Inc. and Richard Bronowicki
Respondents
DECISION
Adjudicator: Douglas Sanderson
Date: June 6, 2013
Citation: 2013 HRTO 1009
Indexed as: Di Pelino v. Springer’s Meats Inc.
APPEARANCES
Laura Di Pelino, Applicant
Self-represented
Springer’s Meats Inc. and Richard Bronowicki, Respondent(s)
Michael Wilson, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age and family status.
2In her Application, the applicant alleged that the individual respondent, Richard Bronowicki, made comments that discriminated against her based on her age and family status during a meeting in December 2011.
3The hearing of this matter was held on March 8, 2013. I heard evidence from the applicant; the individual respondent, Mr. Bronowicki; and Walter Mueller, the organizational respondent's president and owner. The parties adduced two documents into evidence. At the outset of the hearing, the parties were able to agree to the following facts:
The applicant began working for the organizational respondent in early December 2008 as a deli clerk. The organizational respondent operates a meat processing facility as well as a retail deli;
At some point, the applicant began performing some accounts payable work and her work was eventually divided equally between deli work and accounts payable;
Mr. Bronowicki was hired as the controller for the organizational respondent in September 2011;
On December 7, 2011, the applicant asked Mr. Bronowicki to relieve her of or reduce her deli work in order to concentrate on accounts payable functions;
Mr. Bronowicki did not support the applicant's request;
The applicant became upset during the conversation (the reasons for which are disputed);
The applicant left the meeting and never returned to work; and,
The applicant met with Mr. Mueller on December 9, 2011. Mr. Mueller was not able to address the applicant's concerns to her satisfaction and she quit. Specifically, Mr. Mueller advised her that she was needed in the deli and could not work exclusively doing accounts payable work.
Evidence
The Applicant
4The applicant's evidence was that after she worked as a deli clerk for a few months she informed Mr. Mueller that she had taken business administration courses and had completed a co-op placement in accounts payable. Commencing in the spring or summer of 2009, she began to work with the previous controller and eventually split her duties between the deli and the "office", doing accounts payable work.
5When Mr. Bronowicki became the organizational respondent's controller in September 2011, the applicant found that he rarely communicated directly with her. She also noticed that she was assigned more deli work and less office work starting in about October 2011. The applicant stated that she received no explanation for the change in her work allocation.
6The applicant testified that she approached Mr. Bronowicki on December 7, 2011 to seek his help regarding her work schedule. She hoped that he would ask Manuella Mueller (who set her schedule) to allow the applicant to spend more time in the office until she finished producing cheques, as she was falling behind in that regard.
7According to the applicant, Mr. Bronowicki responded by directing the applicant to close the door to his office. The applicant's evidence was that Mr. Bronowicki proceeded to inform her that she was not qualified to do accounts payable work because she started in that position when she was only 21 years old. Mr. Bronowicki then informed the applicant that she should continue working in the deli until she found a job elsewhere and, in any event, she did not need a job because she lived with her mother.
8The applicant stated that she was stunned by Mr. Bronowicki's statements, as she had come to him looking to get one day to complete the "cheque run". The applicant stated that she began crying and went to the washroom to wash her face. The applicant decided that she needed to go home and Mr. Bronowicki directed her not to discuss their conversation with anyone.
9The applicant's evidence was that she met with Mr. Mueller the next day. According to the applicant, Mr. Mueller did not accept her account of the conversation with Mr. Bronowicki, but did ask her if she would complete the cheque run. The applicant responded by walking out. At this point in the evidence, I asked the applicant what her understanding of the situation was and she responded that she believed that Mr. Bronowicki did not want her working in the office any longer.
10In cross-examination, the applicant acknowledged that her responses to questions A2 and A3 in the Application in which she stated that she worked solely in accounts payable and “did the accounts payable” were inaccurate and misleading, as was the statement that she had performed that function for her entire employment with the organizational respondent (question A5). The applicant also admitted that the statement in the Application that there had been no other legal proceeding regarding this matter was misleading because she had also filed a complaint under the Employment Standards Act, 2000, S.O. 2000, c. 41.
11The applicant agreed that her job duties did not change after the meeting with Mr. Bronowicki. That is, she was to continue to do both deli and accounts payable work. The applicant agreed that neither Mr. Bronowicki nor Mr. Mueller terminated her employment, but she took Mr. Bronowicki statement that she was not qualified for accounts payable work and that she should work in the store until she found another job to mean that her employment would be terminated.
The Respondents
12Mr. Bronowicki testified that he rarely had occasion to speak to the applicant and that their interaction was limited to procedural issues. Mr. Bronowicki understood that the applicant began as a deli clerk and eventually began performing accounts payable functions as well. Mr. Bronowicki stated that the applicant's accounts payable duties consisted of entering invoices into the system to produce cheques.
13Mr. Bronowicki's evidence was that the applicant came into his office on December 7, 2011 to speak to him. According to Mr. Bronowicki, the applicant seemed upset; therefore, he asked her to close the door. The applicant then requested that he ask Ms. Mueller to reduce the amount of time she was scheduled to work in the deli to allow her to get caught up with her accounts payable work. Mr. Bronowicki noted that it was his impression that the applicant was having difficulty performing both deli and accounts payable functions.
14Mr. Bronowicki's evidence was that he informed the applicant that he did not support her request, but would bring it to management for discussion. Mr. Bronowicki noted that the weeks leading up to Christmas are a busy time and that the applicant was needed in the deli.
15However, Mr. Bronowicki also stated that he tried to explore the applicant's interests and discuss the education she was pursuing. According to Mr. Bronowicki, the applicant stated that she was interested in human resources and he gave her his advice about how she might attain her goals. Mr. Bronowicki noted that the organizational respondent had no opportunities in human resources. Accordingly, he suggested that the applicant should continue taking human resources courses and eventually pursue a human resources position in another company. Mr. Bronowicki denied stating that the applicant could not do the accounts payable position because she started when she was 21 years old, and denied that he stated that the applicant did not need her job because she was living with her mother. Mr. Bronowicki acknowledged that he commented on the applicant's age, but merely observed that it was a good time in her life to pursue her education because she was young and was living at home.
16Mr. Bronowicki testified that they did discuss the accounts payable position and that he was looking for someone who could "back-up" the accounts payable position as well as other administrative functions. Mr. Bronowicki stated that he would be looking "for more" out of the position in the future, but informed the applicant that he did not consider the applicant to be a candidate for this expanded position.
17Mr. Bronowicki testified that the meeting was positive until it approached its end, when the applicant realized that she would not get the answers she wanted. The applicant became upset and went to the washroom. Mr. Bronowicki stated that he later saw the applicant leaving and asked her if she was returning the next day. According to Mr. Bronowicki, the applicant replied that she would, but ultimately never came back to work.
18Walter Mueller is the president and owner of the organizational respondent, which he purchased in 1986. Mr. Mueller stated that the applicant was hired in the deli department, but was later given work in the office.
19Mr. Mueller's evidence was that he met with the applicant on December 9, 2011 and expressed to her they wanted her to stay. The applicant, however, stated that she did not like the idea of working in the deli. According to Mr. Mueller, he reminded her that it was the Christmas season and she needed to share her time between departments. Mr. Mueller also stated that the applicant informed her that Mr. Bronowicki said that she was not qualified for the accounts payable position. Mr. Mueller noted that the applicant was not an accountant and her background was in human resources. Mr. Mueller recounted that the applicant also said something about her age, which surprised him because he was not aware of how old she was. It became apparent to Mr. Mueller that the applicant was not satisfied with the outcome of the meeting and he asked if she would stay and whether she would finish printing cheques. The applicant, however, put her keys to the workplace on the table and departed, never to return.
20In reply, the applicant maintained that Mr. Bronowicki stated that she was not qualified for the accounts payable position because she was 21 years old in response to her request to be able to concentrate on her accounts payable work. She also maintained that she advised Mr. Mueller of this. The applicant stated that this comment prompted the applicant to advise Mr. Bronowicki that she was taking courses in human resources and accounting. According to the applicant, Mr. Bronowicki then stated that it would be a good idea to continue taking the human resources courses and to look for a job at a company with the human resources function in the future.
21The applicant confirmed that Mr. Bronowicki was considering expanding the accounts payable position, but that he would not consider her for the role because she lacked the necessary qualifications. The applicant denied that Mr. Bronowicki stated that it was a good time to take courses because of her age and because she lived at home. The applicant also denied that Mr. Bronowicki advised her that he would not support a request to reduce her work in the deli.
Analysis and Decision
22The relevant section of the Code is 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.
23The applicant has the onus of proving that the respondents violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondents discriminated against her because of her age or family status. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
24The parties dispute many of the facts regarding the conversation between the applicant and Mr. Bronowicki on December 7, 2011, which is the central incident in this matter. The only witnesses were the applicant and Mr. Bronowicki. Accordingly, I have determined the facts of this case, on a balance of probabilities, based largely on my assessment of the witnesses’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…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 demeanor of the particular witness carried 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 the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
25I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, as follows (at paragraphs 58 to 60):
“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON CA), 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
26The applicant gave her evidence sincerely and was prepared to make admissions against her interests. Consequently, I have no reason to doubt the honesty of her testimony. I did not find, however, that her evidence was reliable. To begin with, the applicant’s evidence was contradictory and it appears that she was unable to clearly observe and recount the conversation with Mr. Bronowicki. The applicant and both respondent witnesses testified that the respondents did not terminate the applicant’s employment or remove her from accounts payable work. There is no dispute that Mr. Bronowicki and Mr. Mueller asked the applicant if she would return to work and if she would complete the cheque run, which is also inconsistent with removing the applicant’s accounts payable duties. Nonetheless, the applicant persisted throughout her testimony to state that she believed that Mr. Bronowicki wanted her to leave her accounts payable role and eventually the employ of the organizational respondent. The applicant’s testimony that Mr. Bronowicki stated that she was not qualified for accounts payable work does not adequately explain the inconsistency in her evidence in light of the clear evidence that the respondents did not terminate her employment or relieve her of her accounts payable duties.
27The applicant’s evidence in chief regarding the meeting with Mr. Bronowicki lacked detail. According to the applicant, she made her request to be allowed to focus on accounts payable work and Mr. Bronowicki responded to the effect that she was not qualified for the accounts payable position because she started when she was only 21, that she should work in the store until she found work in her field and that she did not need to work because she lived with her mother.
28Mr. Bronowicki’s evidence demonstrated a better ability to observe and recount the conversation in detail. Mr. Bronowicki’s evidence described a much more involved discussion regarding the applicant’s goals and the possibility of realizing those goals with the organizational respondent, given the nature of the operation and Mr. Bronowicki’s longer term plans for the accounts payable function. In her reply evidence, the applicant confirmed that they discussed her education, albeit in a different context, and that Mr. Bronowicki suggested that she continue taking courses with a view to finding a suitable position in her chosen field in the future. She also confirmed that Mr. Bronowicki advised her about his plans for an expanded accounts payable function and that she did not fit into those plans.
29I find that it was reasonable and logical for Mr. Bronowicki to raise the applicant’s career goals when the applicant raised the issue of the allocation of her work, since Mr. Bronowicki’s perception was that the applicant was struggling to balance her accounts payable work with her work in the deli and that he did not consider her suitable for the expanded accounts payable role he contemplated. In those circumstances, I also find it was logical that Mr. Bronowicki would attempt to make the applicant aware that she would eventually need to leave the organizational respondent to pursue work in her fields of study. In my view, Mr. Bronowicki’s evidence that he stated that it was a good time for the applicant to take courses because she was young and was living with her mother is consistent with the context of their conversation about her education and goals. On the other hand, the statement attributed to Mr. Bronowicki that the applicant did not need to work because she lived with her mother is apropos of nothing. This statement is also inconsistent with the clear evidence that the respondents wanted the applicant to continue working in both functions as well as the applicant’s evidence that Mr. Bronowicki suggested she continue working while furthering her studies.
30The evidence was that the applicant’s duties in accounts payable consisted of entering data to produce cheques. There was no suggestion that she was incapable of performing this work or evidence that she was experiencing performance issues. The issue was balancing this work with her deli work, which had increased because it was the holiday season. The respondents clearly expected her to continue doing this accounts payable work. Consequently, I find a response to the effect that she was unqualified for her accounts payable work because she was 21 years old when she started would be inconsistent with this context and entirely unresponsive to her request.
31The respondents’ evidence, which the applicant did not contradict, was that she was needed in the deli because it was a busy time of year. In these circumstances, I find it unlikely that Mr. Bronowicki would not have brought this to her attention, as the applicant testified. The applicant statement on her Application that she performed solely accounts payable work was an exaggeration, which she admitted was inaccurate. This exaggeration is mitigated by the narrative of the Application, which indicates that she worked in both accounts payable and “the store” (i.e., the deli). The applicant also stated that her meeting with Mr. Mueller occurred “the next day” after her meeting with Mr. Bronowicki on December 7, 2011, although the parties confirmed that it actually occurred on December 9, 2011. This discrepancy is not serious, but is a further indication of the unreliability of the applicant’s recall of the incidents in question.
32For the foregoing reasons, I find that Mr. Bronowicki’s evidence was more reliable than the applicant’s. Accordingly, I find that Mr. Bronowicki did not state that the applicant was unqualified to perform her accounts payable role because she started when she was 21 years old or that he stated that the applicant did not need her job because she lived with her mother. Consequently, I find that there is no evidence that the respondents engaged in any discriminatory conduct.
33The Application is dismissed.
Dated at Toronto, this 6th day of June, 2013.
“Signed by”
Douglas Sanderson
Vice-chair