HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Arllene Leonardo Perez
Applicant
-and-
Young Women’s Christian Association of Greater Toronto
Respondent
DECISION
Adjudicator: Maureen Doyle
Indexed as: Perez v. Young Women’s Christian Association of Greater Toronto
APPEARANCES
Arllene Leonardo Perez, Applicant
Self-represented
Young Women’s Christian Association of Greater Toronto, Respondent
Frances Gallop, 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 with respect to goods, services or facilities because of creed, in addition to reprisal. The subject of the Application is alleged events during the time that the applicant and her infant daughter were residents of the respondent’s shelter for abused women, from approximately the end of November 2009 to the end of May 2010.
2In its Response, the respondent denied any discrimination or reprisal. The respondent asserted that in early February 2010, the applicant had confronted other women at the shelter and accused them of being witches, creating conflict in the shelter and a potential violation of other women’s rights. The respondent stated that it had intervened and had encouraged the women to resolve the conflict. It stated that the applicant apologized, but that she continued to accuse the other women of practicing witchcraft.
3The applicant filed her Application on July 14, 2010. The respondent’s Response was filed November 24, 2010. On January 21, 2011, the applicant filed her Reply, in which she included a new allegation.
4On August 25, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) in which it indicated that a hearing date would be scheduled for evidence in this matter and directing the parties to be prepared to argue about whether the Application has a reasonable prospect of success, having heard evidence.
5On September 26, 2011, the applicant filed a Request for Order During Proceedings (“RFOP”), seeking to amend “section 8 of form 1” of her Application. The respondent opposed the request and submitted that the issue should be dealt with at the hearing.
6On December 7, 2011, the Tribunal issued a CAD in which it noted that the applicant had not explained what further details or allegations she sought to add, and directed her to provide such details within three weeks of the CAD. It indicated that the respondent would then be given the opportunity to make further submissions. On December 15, 2011, the applicant wrote to the Tribunal, advising that she was withdrawing her request to amend her Application.
7A hearing was convened and the applicant gave testimony and was cross-examined over two days. At the conclusion of the applicant’s evidence-in-chief, the respondent made submissions regarding the fact that the applicant had made new allegations in her testimony.
8Following the applicant’s testimony, on September 26, 2012, the Tribunal issued a further CAD in this matter, delineating the scope of the Application. It directed that, especially in light of the fact that the applicant had withdrawn her request to amend her Application after having been directed to provide particulars, no new allegations would be considered at this stage. However, it also directed that as she had withdrawn her request subsequent to having made her Reply and as she had no legal representation, a new allegation made in her Reply would be considered, and the respondent would be given the opportunity to provide testimony or other evidence and submissions regarding that allegation.
9The applicant was cross-examined at a second day of hearing. Following the cross-examination, the parties made submissions regarding whether this Application should be dismissed as having no reasonable prospect of success.
10The respondent made detailed submissions, considered below, regarding the question of whether the Application should be dismissed as having no reasonable prospect of success. The applicant submitted that she feels the Application will succeed. When given the opportunity to reply to the respondent’s submissions, she declined.
11Having heard the applicant’s evidence and her account of what her witnesses would say should they be called upon to give evidence, I am persuaded, for the reasons set out below, that there is no reasonable prospect that this Application will succeed and it is dismissed on that basis.
Applicable Legal Principles
12In Macanovic v. Mount Sinai Board of Directors, 2012 HRTO 1954, the Tribunal dismissed an application as having no reasonable prospect of success based on the principles established in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. At paras. 32-43 and 45-47 of Macanovic, the Tribunal set out the following legal principles, which I find are also largely helpful, with necessary modifications, in analyzing this case:
Although this analysis arises from the request by the respondent that this Application be dismissed as having no reasonable prospect of success, I considered it appropriate in this case to set out the basic principles which lead to a finding of discrimination under the Code.
It is well established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.
The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, confirmed that the “balance of probabilities” standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”.
There is no dispute that the respondents were providing a service to the applicant within the meaning of the Code.
In Shaw v. Phipps, 2012 ONCA 155, the Court of Appeal re-stated the long-standing principle from the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, that the onus rests on the complainant to establish a “prima facie” case of discrimination which is described as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of answer from the respondent.”
Discrimination is not defined in the Code; however, it has been consistently defined by the Tribunal and the Courts to mean adverse treatment, or a distinction which creates a disadvantage, on the basis of a prohibited ground (Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143).
In this case, the applicant satisfies the first part of her burden because she self-identifies with the prohibited ground of disability, which the respondents do not dispute.
In order to satisfy the second part of her burden, the applicant must establish proof of adverse treatment. The respondents dispute that the applicant’s allegations support a finding of adverse treatment and as a result, this issue will have to be determined.
If the applicant is able to demonstrate adverse treatment, she must also be able to demonstrate that there is some nexus between the adverse treatment and the prohibited grounds alleged. The applicant must be able to prove that her disability was a factor in bringing about the treatment she experienced.
If the applicant meets this burden, the respondent then has the onus of demonstrating, on the balance of probabilities, a credible, non-discriminatory justification for its actions. If the respondent is unable or unwilling to establish such a justification, or the applicant proves that the justification is pre-textual, the Tribunal will find a breach of the Code and order an appropriate remedy.
The applicant has also alleged a breach of the Code … on the basis of Section 8 of the Code, which provides protection against reprisal or threat of reprisal when a person attempts to claim and enforce his or her rights under the Code:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
The burden is on the applicant to point to sufficient evidence from which the Tribunal can draw the inference that it is more likely than not that there was an intentional act of reprisal against the applicant for attempting to claim or enforce her or his rights under the Code. It is not necessary for the applicant to have filed an application under the Code nor is there a requirement that the Tribunal find that the respondent did in fact violate the applicant’s right to be free from discrimination (Noble v. York University, 2010 HRTO 878).
… the respondents argued that the Application had no reasonable prospect of success of success, engaging the Tribunal’s decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, 2011 HRTO 1777. …. The question in this case is whether, at this stage in the hearing, the Application should be dismissed because there is no reasonable prospect of success of the applicant succeeding in proving the elements required for a finding of discrimination.
In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of a summary hearing into whether an application has a reasonable prospect of success will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.
As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.
13As in the Macanovic case, there is no dispute that the respondents were providing a service to the applicant within the meaning of the Code.
14Much of this case then turns on whether or not the applicant has any reasonable prospect of establishing proof of adverse treatment, and if so whether the applicant is able to demonstrate that there is some nexus between the adverse treatment and the prohibited ground of creed which has been alleged.
ALLEGATIONS WITHOUT CONNECTION TO A GROUND OF DISCRIMINATION
15As noted above, the Application claims discrimination on the sole ground of creed.
16In her Application, the applicant made several complaints regarding treatment she received from staff of the respondent. She complained about interaction she had with her counsellor and alleged that her counsellor made her feel as if she was responsible for her situation. The applicant also made allegations against staff of the respondent for having told her that she would not have had to deal with the Children’s Aid Society (“CAS”) if she had not “gotten [herself] in this situation”, she alleged that a manager told mothers not to permit their children to talk to her, she alleged that staff “tried to convince head office that [she] had a ‘mental problem’”, she alleged that staff were constantly “putting us down”, that staff told one resident she was bothering her when the resident asked her for juice, and that the staff told refugee claimants and people with no status that they should not complain and that they might lose their status.
17The applicant alleged that she took her complaints regarding her counsellor to the manager at the shelter who directed her to talk to the counsellor about the issue, as the manager was not sure what had happened and could not make any judgement. She also alleged that she took her complaints to a director at the shelter and to the Chief Executive Officer (“CEO”) of the respondent, who did nothing to assist her.
18The power of the Tribunal is limited to dealing with Applications which allege a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties. While it is clear that the applicant has not been satisfied with the services she has received at the respondent’s shelter, she has made a number of allegations of unfair treatment where she has not linked the respondent’s alleged actions to the Code-protected ground upon which she makes her Application. In particular, I note that her allegations regarding her counsellor and other staff making her feel as if she was to blame for the situation in which she found herself and her allegation regarding a manager telling others not to permit their children to talk to her, as well as her allegation that staff was constantly putting her (and other residents) “down”, she has not provided evidence establishing a link between these allegations and the grounds of discrimination alleged.
19The evidence she has indicated that her witnesses would provide relates to some of these allegations which are characterized better as allegations of unfairness, as there is no nexus between the allegations and the Code.
20Finally, the Application indicated that staff of the respondent had “tried to convince head office that [the applicant] had a ‘mental problem’”. The connection of this allegation to creed is not clear, but more importantly, the applicant did not testify or make any submissions with respect to this allegation, nor did she indicate that she would have any witness who would support this allegation. She has done nothing more than make a bald assertion.
21Without evidence of a nexus between her allegations and the ground of discrimination alleged, the Application in regard to these allegations cannot succeed, and it is dismissed with respect to these allegations.
Credibility
22The applicant’s allegations connected to the ground asserted, and her allegation of reprisal, will be dealt with below. However, some general findings with respect to the credibility of these allegations will be made here.
23Throughout the course of her testimony and in reviewing the documentary evidence, I find that much of the applicant’s evidence was not reliable. In considering issues of credibility, I am guided by the principles as set out by the British Columbia Court of Appeal in Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at pp. 356-357:
…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 an 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.
24In Visic v. Elia Asociates Professional Corporation, 2011 HRTO 1230, the Tribunal stated at para. 54:
Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witnesses, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of the witness’s evidence does not automatically ender the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.
25My overall assessment of the applicant’s credibility during her testimony was that she was often evasive and lacking in candour, prone to exaggeration and embellishment and I found that she provided testimony which strains credulity. During her cross-examination, I had to caution her not to argue with counsel and to give direct answers to the questions she was being asked.
26During her cross-examination, she often indicated that she did “not recall” events about which she was being questioned, including key information relating to her allegation that staff reprised against her by filing a police report when she did not return from an “overnight”. For example, she indicated that she did not recall when it was that she told one staff member that she would be taking an “overnight” on April 22, 2010, and whether or not she told her counsellor, who was the staff member working that overnight period, that she would be taking the “overnight”. Of course, in circumstances where she alleges that staff at the respondent called police precipitously as part of a plot by certain staff to “force her out” of the shelter, the details of when or how she alerted which staff to the fact that she would be taking an overnight, would be significant. Having been referred to a log entry regarding her Saturday morning conversation with staff, she stated that she could not recall being told that staff had been worried about her and her baby. Her refusal to consider that staff may have had a genuine concern about her and her baby indicates a refusal to consider facts which do not conform to the conclusions she reached about staff at the respondent and undermine her reliability. Rather than answer respondent counsel’s questions about what the respondent’s policy says regarding “overnights” and Missing Person’s Reports, she argued for her interpretation of the policy. Her refusal to discuss the actual policy is a further indication of her refusal to consider facts which do not conform to the conclusions she reached about staff at the respondent. Rather than directly answer whether she had told anyone where she was for the “overnight”, she evaded the question and simply insisted that they knew where she was as she had told a staff member that she was “taking an overnight”. It was only on direct questioning by me that she admitted that the staff would not have known how to find her. Of course, in considering whether staff acted reasonably or not, whether they knew where to find her is an important consideration. Instead of allowing that there was reason for staff to worry, she sought to obfuscate the fact that her whereabouts were unknown. Rather than answer the question as to whether she was aware that her mother and her sister had gone to the police about her before the respondent did, she evaded the question and instead insisted on talking about why her mother and sister had gone to the police. Again, she sought to avoid the important question of whether or not the actions of staff at the respondent could be understood as springing from understandable concern, by ignoring the concerns evidenced by her own mother and sister in going to the police. Rather than concede that it was apparent that the police were concerned for her safety as they had publicized her disappearance, she evaded the issue by answering that she was not sure why the police had publicized her disappearance. Once again, she sought to negate or avoid anything which would support a view of the staff’s actions as reasonable.
27The applicant’s CAS worker wrote a letter on April 13, 2010, in support of the applicant’s application for priority housing, wherein she stated that there was a warrant out for the arrest of the applicant’s former abuser and that priority housing for the applicant and her daughter “being available in a timely fashion… would greatly assist her in ensuring her safety and the safety of her child”. When asked in cross-examination if she would agree that the April 13, 2010 letter written by her CAS worker indicates that the worker was concerned for her safety, the applicant would not agree and answered instead that she believed that the CAS worker “trusted [her] judgment”.
28Another credibility issue arose with respect to the applicant’s assertions, in chief and in cross-examination, that she had not had any contact with a former staff member of the respondent, whom she intended to call as a witness, since she left the respondent’s shelter. Counsel for the respondent put her Application, filed July 14, 2010, before her as well as an Application filed May 19, 2010, by the former staff member, both of which were filed after the applicant left the respondent’s shelter. Counsel for the respondent drew the applicant’s attention to portions of the Applications which were, for all purposes, identical, including spelling errors. In particular, in response to the question in the Application, which asks the applicant to tell how the events described affected her, the applicant stated:
At this point i [sic] am disappointed, in pain, in tear, and with broken heart as how women put each other done [sic] and the horrible experiences that i [sic] have encountered at YWCA Women’s Shelter. I have experiencing discrimination, mental harassment, and abusive language towards me from the program manager and in particular some staff. I have been affected emotionally/ [sic] mentally, financially, and in particular socially. I feel that i [sic] am a failure!
29In response to the same question in her Application, the former staff member wrote:
At this point i [sic] am very disappointed, in a lot of pain, in tears, and with a broken heart due to my experience at the YWCA Women’s shelter. I have been experiencing Discrimination [sic], Mental [sic] harassment, and abusive language towards me from my program manager. I have been affected financially, emotionally/mentally and socially.
30Counsel asked the applicant how she could explain the striking similarities, if she had not spoken to the former staff member since leaving the shelter. The applicant responded that it was simply “coincidence”.
31Similarly, counsel for the respondent put before the applicant copies of an RFOP filed by the applicant, and one filed by the same former staff member with respect to her own Application.
32In her RFOP, dated September 26, 2011, in describing the order sought, the applicant stated “I am requesting the tribunal to grant me to amend my application section 8 of form 1”. In stating the reasons for her Request, she stated:
At the time i [sic] filed my application, i [sic] did not have full knowledge of human rights procedures and rules and as a result i [sic] did not connect the respondent’s actions and the grounds cited. I was thinking that i [sic] will be asked in tribunal process to show my links between the respondent’s actions and the grounds cited.
33In her RFOP dated September 12, 2011, in describing the order she sought, the former staff member stated “I am requesting the tribunal to grant me to amend my application in whole”. In stating the reasons for her Request, she stated:
At the time of filing of my application, i [sic] did not have full knowledge of human rights procedures and rules and i [sic] have missed to connect the respondent’s actions and the grounds cited. I thought that i [sic] will be asked in tribunal process to show the link between the respondent’s actions and the grounds cited.
34Again, counsel drew the applicant’s attention to portions of the RFOPs which were, for all purposes, identical, including grammatical errors, and asked her how she could explain the striking similarities. Again, the applicant responded that it was simply “coincidence”. Counsel for the respondent asked the applicant again if she had been in contact with the former staff member since leaving the shelter and again she responded that she had not.
35It is not entirely clear what advantage the applicant sought to gain by insisting that she had not been in contact with the former staff person. However, I find that the “coincidences” she asserts are so improbable as to be incredible. The documents have clearly been created by or with the close assistance of the same person (either the applicant or the former staff person) and I draw the necessary conclusion that the applicant and former staff person have been in close contact. The applicant’s insistence to the contrary, for whatever reason, undermines her overall credibility.
36Additionally, during the course of the applicant’s testimony, I found that there were internal inconsistencies. She would not agree that there was reason for the respondent’s staff to be concerned for her safety after the Missing Person’s report had placed her in the “public eye”, and yet she also insisted that the respondent had compromised her safety by making the Missing Person’s report, which became public. She insisted that she had not accused her fellow residents of witchcraft, but also testified that she did say that she believed that they were practicing witchcraft, and still later testified that she had accused two of her fellow residents of witchcraft.
37During the course of her testimony, I also found the applicant to be prone to exaggeration and embellishment. An example of this can be found below at paragraph 42.
Allegations relating to creed
38The applicant made two allegations which she related to her creed.
39In the narrative section of her Application, she alleged that during a “check-in” once, her counsellor
…asked me if I think God really talks to me or is it just my belief because either way people are going to think that I am crazy, I have mental health problems and that I hear voices in my head, and she suggested to me to keep it to my self and never talk about my beliefs to anyone...
She told me people were going to think that I was crazy because of my religious beliefs.
40In responding to the question on the Application form which instructed her to explain why she felt she was discriminated against based on her creed, she stated:
Because i [sic] believe in God and pray to God by speaking to God in private and couple of staff and the program manager at Women’s shelter thought that I am Crazy [sic], and I have mental health problems. And they have suggested to me to keep it to my self and never talk about my beliefs to anyone.
41In responding to the question on the Application which asks her to describe her creed, she wrote:
Believe in God!
42In her evidence-in-chief, the applicant testified that, during counselling sessions, her counsellor made several comments to her about the applicant’s assertion that God spoke to her, saying that if she really believed that, she should keep it to herself as people would think she was “crazy and had mental problems”. She also testified that “staff” told her not to talk to anyone about her beliefs as they would think she had “mental problems”. However, when asked directly if this happened once or more than once, and how many staff she says made the remark, she testified that it happened once only and that the only staff member making the remark was her counsellor.
43In pinpointing when she alleges the remark was made, the applicant testified that she had become convinced some other residents of the shelter were doing voodoo and on February 10, 2010, there was a mediation session with staff and one of the women she suspected of voodoo, to resolve interpersonal issues which had resulted from this suspicion. She testified that at the mediation, one of the staff members asked her how she knew that the residents of room #3 were trying to do witchcraft on her. She testified that her answer was that God told her so, and that God had told her that He was letting them continue to do it to see how far they would go, but they would not be able to harm her or her daughter with witchcraft. She testified that she believes her counsellor made the comment she complains of at her next counselling session following the mediation, approximately late February. She testified that the only people present at her counselling session were herself and the counsellor. She testified that she objected to the comment because spiritual closeness with God should not make anyone say that someone is “crazy”, but that she did not address her concern about the alleged comment with her counsellor.
44On cross-examination, the applicant agreed that on February 24, 2010, she wrote a two-page letter of praise for a group for abused women which was run by her counsellor and another staff member. Her letter detailed how she had found the group to be helpful both emotionally and socially and indicated that she was grateful for having had the opportunity to attend the group. She insisted in cross-examination, however, that she was really only happy with the work of the other counsellor.
45She agreed that according to the staff logbook, she had some “social contact” with her counsellor after the mediation and then a “check-in” with her counsellor on February 25, 2010. She agreed with the logbook entry for the “check-in”, which indicates that she advised her counsellor that she was very pleased with the group and that she stated she was learning concrete coping skills which she was using often. She agreed that there was nothing in the logbook to indicate that she was having any difficulty with her counsellor at that time. She testified that she had just considered that the alleged comment made by her counsellor was “rude” but she was not sure what she felt at that point.
46The second allegation the applicant made regarding discrimination on the basis of creed was not contained in her original complaint, but was raised for the first time in her Reply to the respondent’s Response. In her Reply, she stated that there was a rumour that some residents of the shelter were practicing “voodoo”, as one resident found a doll which was placed in a way which she said frightened her. The applicant alleged that the women “all got scared” and started Bible study in the living room. She alleged that “one day… the program manager approached us and told us that we are not allowed to read Bible in the living room. Accordingly, the respondent violated of [sic] our religion rights”.
47In her evidence-in-chief, the applicant alleged that she and three other residents “got a little paranoid” after another resident found what she thought were “voodoo dolls” and they decided to buy journals and do Bible study for protection at some point in the week prior to the February 10, 2010 mediation. She indicated that included in the group doing Bible study was the resident she said found the dolls. She testified that they were doing the first session of Bible studies and were in the dining room, discussing, when the manager came into the dining room and told them that they were not allowed to read the Bible there, as it might make other residents feel uncomfortable. She testified that she and the women said nothing to the manager, but simply did Bible study in their rooms after that. She testified that she felt this was discrimination on the basis of creed because the manager would not allow them to have Bible study in the dining room.
48Though the applicant indicated that she proposed to call as a witness the resident who she says found the dolls, and a resident who she says participated in the Bible study, she confirmed that she did not propose to call any witnesses to support her allegation regarding the manager’s instructions to the women not to use the dining room for Bible study.
49In cross-examination, she testified that the manager had made the comment in the evening, likely at some point between 7 p.m. and 8:30 p.m. When advised that the manager would deny having made such a remark and that the manager does not work in the evenings, but only works from 9 a.m. to 5 p.m., the applicant had no explanation for the discrepancy in time frames. She confirmed that the women doing Bible study were in the dining room. She agreed that she had never raised the issue with the manager, nor had she raised it with the Director of Shelter and Housing. With regard to a complaint she made to the respondent’s CEO she testified that she had a list of issues about which she wanted to complain, but she did not retain that list or produce it through the course of these proceedings. She agreed that she had not specifically raised the issue in her June 14, 2010 letter of complaint to the Minister, though that letter did provide many details regarding other complaints she had about treatment and staff at the shelter.
50In cross-examination, the respondent made it clear that the respondent’s evidence would include a denial of the applicant’s allegations regarding both a comment by her counsellor and the manager’s direction not to do Bible study in the Dining Room/Living Room space.
51In its submissions regarding dismissal of the Application, the respondent submitted that in any event, even if the applicant’s evidence in this regard were to be believed, the respondent’s alleged actions would not amount to discrimination on the basis of creed contrary to the Code. The respondent cited Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, in which the Supreme Court held that a person
advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.
52The respondent also cited the S. L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, which stated:
Although the sincerity of a person’s belief that a religious practice must be observed is relevant to whether the person’s right to freedom of religion is at issue, an infringement of this right cannot be established without objective proof of an interference with the observance of that practice.
53Additionally, the respondent cited the Ontario Divisional Court decision in Audmax Inc. v. Ontario (Human Rights Tribunal), 2011 ONSC 315, [2011] O.J. No. 210. The respondent noted that the Divisional Court (at paras. 86 and 88) found that:
… [t]he logical step that the adjudicator missed was a consideration of whether it was possible for Ms. Saadi to comply with the dress code without compromising her religious requirements. There was nothing about Ms. Saadi’s religion that required her to wear the particular form of hijab she was wearing on the day in question. If it was possible for her to wear a religiously acceptable form of hijab that was fully consistent with the dress code (as indeed she had done every day for six weeks), her religious rights were not affected. All that was affected was her sense of style, which apparently was in conflict with that of her employer.
… He ought to have considered whether the dress code, or the employer’s enforcement or interpretation of it, conflicted with what the employee was required to wear as part of her religion. He did not consider that issue, and reached a conclusion that is not logically supportable.
54With regard to the allegation of a comment by her counsellor, the respondent submitted that there is no evidence that the applicant subscribed to any particular faith, or had a sincerely held belief about God talking to her, nor is there evidence that her creed required her to discuss her beliefs with others. Therefore, the respondent submitted, if the applicant was not required to talk about her belief with others, there is no evidence that the alleged comment by the counsellor interfered with what was required of the applicant by her religious beliefs. Further, the respondent submitted, even if the counsellor had been “rude” as the applicant alleged, there is no evidence that the counsellor had not made such comments to people of other creeds also, and therefore there was no evidence of differential treatment or of disadvantage with regard to creed.
55Whether the applicant has a sincerely held belief that God talks to her or not, I do not find that her allegation regarding a comment by her counsellor has a reasonable prospect of success. I note first that her allegation has not been consistent. Even in the Application itself, she has indicated in her narrative that at a check-in, once, her counsellor made a comment advising her to keep her belief regarding God talking to her to herself, as others may conclude that she is “crazy”, and in another section of her Application, she alleged that “a couple of staff” and her “program manager” told her not to tell people that she believes in God and that she speaks to God in prayer.
56Her testimony was similarly inconsistent, and it was only on direct questioning that she stated that a comment had been made once only, by her counsellor. She has also testified that the only ones present when the comment was allegedly made were herself and the counsellor.
57Given the inconsistencies of her allegation, and given the lack of any reference to such a comment either in her letter regarding her counsellor’s group during that time period and the lack of mention of any such discussion in the log book, I find the applicant’s evidence on this point unreliable. Further, as noted above, I have not found the applicant to be a credible witness and conclude that based on her testimony alone, there is no prospect that she will be able to establish on a balance of probabilities that the counsellor made such a comment. Accordingly, this allegation is dismissed as having no reasonable prospect of success.
58In any event, even if the applicant were able to establish that the counsellor made such a comment, I find that there is no reasonable prospect that she would be able to establish that this comment constituted discrimination on the basis of creed. While it may not have been a particularly sensitive or even well-advised comment, if made, the comment was not a prohibition of any kind. If the counsellor made the comment, she was not forbidding the applicant from talking about her belief that God speaks to her. If made, the comment was in the therapeutic context of a discussion with the counsellor, and it was advice given to the applicant regarding the reception she may expect her revelation to have in public. It is an unfortunate reality that people perceived as mentally ill are not always treated well in society and this comment, if made, reflected the counsellor’s concern that if the applicant publicly espoused this particular aspect of her beliefs she would likely be subject to such perceptions and it would thus be in her best interests to protect herself against such mistreatment.
59With regard to the applicant’s second allegation relating to creed, the respondent submitted that the applicant did not provide evidence of a sincerely held belief regarding the need to do Bible study, noting that the applicant had described the women’s reaction to the finding of the dolls as “paranoia”. The respondent submitted that there was no evidence of a nexus between Bible study and a deeply held religious belief, but rather, it was connected to “transient paranoia.” Further, the respondent submitted that the applicant had provided no evidence that her creed required her to do Bible study in the living room or dining room area, and that there was no evidence of interference with a religious requirement, as she testified that the women simply decided to do Bible study elsewhere. The respondent also submitted that there was no evidence of any differential treatment.
60The respondent also submitted that though there was no evidence of interference with a religious requirement, even if there had been, it would have been reasonable and bona fide. The respondent submitted that the Bible study in which the applicant was engaged must be contextualized, recalling that it was taking place at a time when, and in direct relation to, the applicant having accused other women in the shelter of “practicing witchcraft”. The public areas of the dining room and living room would have been accessible to the women who were being accused of “witchcraft”. In that unusual context it could reasonably be seen as having the effect of provoking or antagonizing these other women. Where the respondent is responsible for the well-being of all of the women in the shelter, it would be reasonable for the respondent to curtail the applicant and the other women from having Bible study sessions aimed at “warding off witches” in public areas of the shelter.
61As noted above, I have not found the applicant to be a credible witness. The allegation regarding the manager’s comments about Bible study did not form part of the Application itself, nor did it form part of any earlier expressions of her dissatisfaction. It was stated for the first time in the Reply, almost one year after filing the Application. A further minor discrepancy is found between the allegation in the Reply which stated that the manager did not permit the applicant and the other women to do Bible study in the living room and the allegation made by the applicant in her testimony. In her testimony, she alleged that she and the women were at the dining room table.
62The applicant agreed that she never discussed this matter with the manager or the director, and has failed to produce a list of issues which she said she had in approaching the CEO with complaints. There is no record of Bible study or of any incident regarding Bible study in the log book. Perhaps most significantly, in the applicant’s very detailed letter of complaint to the Minister in June, 2010, there was no mention of this allegation either.
63There is no evidence to corroborate the applicant’s allegation and while that may not necessarily be fatal to a claim, in these circumstances, where the applicant’s credibility is compromised, the absence of any corroborating evidence is important. The applicant has indicated that she intended to call one of the former residents as a witness to say that it was she, not the applicant, who had discovered the dolls. Further, this potential witness was one she identified as being part of the Bible study group when she says the manager spoke to them. When I asked her if she intended to call any evidence from any witness in support of her allegation that the manager told them they could not do Bible study in the area where they were, she was clear that she did not intend to call any evidence in support of that allegation. In these circumstances, not only is there no corroboration for the applicant’s allegation, I draw an adverse inference from the fact that she has indicated that she would not call evidence regarding this allegation from a witness who surely would have had material and direct knowledge of such a statement, had it been made, despite the fact that she identifies that individual as someone she intends to call as a witness for another purpose. While the respondent would certainly have been entitled to cross-examine the witness regarding this allegation, the fact that the applicant herself intends to avoid the issue is very troublesome. I conclude that the applicant’s choice not to call a witness to testify about this disputed fact is due to the fact that the witness would not have been supportive of her case.
64The evidentiary burden rests on the applicant to establish her allegations on a balance of probabilities, and not on the respondent to disprove the allegations. The applicant’s allegation was not made out on her own evidence. For the reasons described above, in my view, there is no reliable evidence that the alleged comment regarding Bible study was made. Without such evidence, the applicant is unable to establish even an arguable breach of the Code.
65Even if the applicant had been able to establish that the alleged comment was made, and even had she been able to establish that engaging in Bible study, or engaging in Bible study in the living room or the dining room, was for her a religious requirement in relation to a sincerely held belief, I find that she would not be able to establish discrimination on the basis of creed contrary to the Code. With respect to the question of direct discrimination, she has not provided or pointed to any evidence she could rely upon to establish differential treatment.
66Further, with respect to the question of whether she could establish that the manager’s alleged direction to her not to do Bible study where she was doing it had an adverse impact on her, I am satisfied that even if she were able to establish such impact, a requirement not to engage in Bible study in the shelter living room or dining room would have been reasonable and bona fide in the circumstances. The applicant agreed that all residents of the shelter had a right to feel safe and to be treated with respect. In circumstances where she has accused fellow residents of “doing witchcraft or voodoo”, at least one resident took offence to the accusation, and she indicated that the Bible study was to ward off their “witchcraft or voodoo”, it would be reasonable for the respondent to restrict Bible study in area of the shelter which was for the use and enjoyment of all residents, especially when residents were free to gather in private areas of the shelter for Bible study.
Allegation of Reprisal
67Section 8 of the Code, which prohibits reprisals or threats of reprisals, states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.
68As the Tribunal stated in Noble v. York University, 2010 HRTO 878 (“Noble”) at paras. 31 and 33:
In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
69In her Application, the applicant alleged that staff was displeased with her for having complained to the CEO and that they “decided to plot, and force me out of here. So a few weeks later, their plan went into action”. She alleges that when she took an “overnight”, away from the shelter, on Thursday, April 22, 2010, she advised staff that she would not be back for the night. Further, she alleges that on Friday night she did not have access to a phone in order to call the shelter and advise them that she would be back on Saturday, but that when she called in on Saturday morning, she was advised that staff had filed a Missing Person’s report, which she described as “fraudulent” and as having been filed contrary to the respondent’s policy. She alleges that if staff at the shelter does not hear from a resident for 24 hours, they are to wait until the curfew, which is 3 a.m., and then contact the individual’s emergency contact person, then file a missing person’s report. She asserted that therefore, as she was expected back at the shelter on Friday night, the staff should have waited 24 hours after that and then they should have called her emergency contact at 3 a.m. on Sunday morning when she did not return from her Thursday “overnight”. She stated that the staff called her mother and her sister on the Friday night, needlessly worrying them. She also stated that by calling the police, who put her picture and her infant daughter’s picture on the news, the respondent had put her and her daughter’s safety at risk from her abuser. She also alleged that this had humiliated her in the eyes of her friends, as they had not known she was staying at the shelter. She alleged that she tried to speak to the manager about this, but that she “tried to cover up her and the particular staff’s (The Gang) malicious action and blamed me instead”. She alleged that for her safety, she decided to leave the shelter.
70The respondent stated in its Response that when the applicant did not return to the shelter within 24 hours and did not contact staff, staff became “very alarmed”. On a previous “overnight” away from the shelter on March 28, 2010, the applicant’s abuser had assaulted her in front of her daughter. On that occasion the police had been called and the CAS notified. When the applicant did not return as expected from the “overnight” in April, staff contacted her emergency contacts, who confirmed that they did not know where the applicant was. Staff determined that it was necessary to advise the police. The respondent agreed that the police then issued a Missing Person’s Report press release which included pictures of the applicant and her daughter and that the release “also included some information which could compromise the safety of the Applicant, her daughter and the shelter community”. The respondent asserted that it made efforts to meet with the applicant afterward, “to address her concerns and to conduct updated safety planning” but that the applicant “declined to meet with management to resolve any concerns or discuss safety planning”.
71As noted above, I have not found that the applicant’s allegations of discrimination have a reasonable prospect of success. However, for an allegation of reprisal, an applicant does not have to be successful in establishing that discrimination on a prohibited ground took place. The applicant must, however, establish that the respondent retaliated because she or he attempted to claim or enforce rights under the Code.
72According to the evidence before me at the hearing, when the applicant arrived at the shelter, the intake process included having her sign consent for the respondent to contact her mother in the event of an emergency, and Missing Person’s reports were partially completed for her and her daughter, setting out their physical descriptions, in case the reports were ever needed. Additionally, she received a copy of the Handbook, which set out the respondent’s Mission and vision, roles and responsibilities of staff, rights and responsibilities of residents, services available, conflict resolution process information, “communal living and other settlement issues” and information relating to moving out of the shelter. Included in the “communal living” section of the handbook was the policy regarding “overnights”:
Overnights/Missing Person’s Report
For the purpose of establishing a criteria for overnights, residents have to return to the shelter by 3:00 am. If a resident is not in the shelter by 3:00 am then staff will consider it an overnight. However, it is necessary for residents to inform staff of their intention to take overnights before they are actually taken. In case a resident does not return to the shelter 24 hours after leaving and does not communicate with staff, a missing person’s report is filed with the police for safety.
73On March 17, 2010, a staff member wrote a letter of support to Toronto Community Housing, providing a detailed history of the applicant’s abuse and indicating that she should receive “safety at risk priority” for housing as she was fleeing two abusive former partners.
74On March 12, 2010 and March 15, 2010, the applicant’s sister and mother, respectively, swore affidavits that they had witnessed the applicant’s abuse and that they considered her and her daughter to be in danger if they did not find a new place to live.
75The applicant’s CAS worker wrote the above-noted letter on April 13, 2010, in support of the applicant’s application for priority housing, in which she stated that there was a warrant out for the arrest of the applicant’s former abuser and stated that priority housing for the applicant and her daughter “being available in a timely fashion… would greatly assist her in ensuring her safety and the safety of her child”.
76The respondent submitted that the applicant had not claimed or attempted to enforce her rights under the Code prior to the filing of the Missing Person’s report. The respondent submitted that the applicant’s evidence that she raised any Code-related concerns with the manager or the director are not credible. In any event, the respondent submitted that its actions in filing the report were entirely consistent with its policy, which states that if a resident does not return to the shelter or call staff within 24 hours of leaving, a Missing Person’s report is filed. The respondent submitted that especially in the applicant’s particular circumstances, with a history of abuse by two different men, staff had good reason to be very concerned for the safety of the applicant and her daughter. The respondent submitted that the applicant’s mother, sister and CAS worker were also all fearful for her safety. The respondent submitted that its actions were entirely reasonable. Further, the respondent noted that the applicant had failed to meet with the manager or the director regarding a safety plan subsequent to the publication of the Missing Person’s report.
77The respondent also referred to the factors identified in Noble (above) and submitted that the filing of the Missing Person’s report was not an action taken against the applicant, but rather, was for her safety.
78The applicant took an “overnight” on Thursday, April 22, 2010. According to the policy as explained in the respondent’s handbook, if a resident did not return to the shelter within 24 hours after leaving, and did not communicate with staff, a Missing Person’s report would be filed in the interest of safety. Though the applicant interprets that policy as meaning a report would only be filed 24 hours after she was expected back, that is not what the policy states. By Friday evening, she had been away 24 hours and had not contacted the staff. The respondent acted in accordance with the policy contained in the handbook the applicant possessed. It contacted the emergency contact she had provided. When her emergency contact was unable to assist, the respondent contacted the police. The applicant alleged that the report was made in bad faith, due to the fact that she had made a complaint, but has given no evidence to indicate that this policy was applied any differently to her than it was applied to others. There is absolutely no basis for her assertion that this report was filed as a reprisal. Indeed, given the applicant’s history of abuse, including an assault by one of her abusers when she was out on an “overnight” the previous month, the respondent’s concern for her safety was entirely reasonable and its actions in contacting her family and in reporting to the police were responsible. The reasonableness of the respondent’s actions in following its own policy in the context of the facts of this case is significant because it significantly undermines any potential argument that their actions were a pretext for some intent to target the applicant for making a complaint against them.
79While the Missing Person’s report had the unfortunate result of worrying her family and potentially compromising her and her daughter’s safety, for the reasons stated above, I am not persuaded that the respondent’s actions were “an action taken against, or threat made to” the applicant. Additionally, I note that the applicant has agreed that she did not respond to the respondent’s attempts to address the resulting safety issues and find her new, safe accommodation. Further, given the fact that she was engaged, at least as far back as March, 2010, in seeking permanent safe accommodation, with the assistance of both the respondent’s staff and her CAS worker, there is little basis for her claim that the respondent was trying to “drive her out” of the shelter. The applicant has not been able to point to evidence to establish an intention on the part of the respondent to retaliate for the applicant’s claim or attempt to enforce a Code protected right, and to the contrary, I find that the respondent’s actions were intended to benefit the applicant. I find that there is no reasonable prospect that the applicant would be able to establish that this was a “plot” the respondent “set in motion” by way of reprisal. This allegation therefore is also dismissed.
80For all of the above reasons, this Application is dismissed in its entirety.
Dated at Toronto, this 3rd day of January, 2013.
“Signed by”
Maureen Doyle
Vice-chair