Reiner v. Sarnia (City), 2013 HRTO 1520

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Debby Reiner Applicant

-and-

City of Sarnia and Ian Smith Respondents

-and-

CUPE, Local 2713 Intervenor

DECISION

Adjudicator: Judith Hinchman

Date: September 11, 2013

Citation: 2013 HRTO 1520

Indexed as: Reiner v. Sarnia (City)

APPEARANCES

Debby Reiner, Applicant

Self-represented

City of Sarnia and Ian Smith, Respondents

Steven Wilson, Counsel

CUPE Local 2713, Intervenor

Darcie McEathron, Counsel

Introduction

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 sexual orientation and association.

2A two-day hearing was held on April 25 and 26, 2013. In an earlier decision, 2012 HRTO 1402, CUPE Local 2713 (the “Union”) was granted intervener status. I heard from ten witnesses and admitted several documents into evidence.

3At the outset of the hearing, I heard submissions on whether to dismiss the Application for delay and a request to remove the personal respondent as a party to the proceeding. For the reasons set out below, I dismissed some of the allegations for delay and refused the second request.

BACKGROUND

4The applicant began working for the corporate respondent, the City of Sarnia, as a seasonal “outside worker” in its horticulture area on April 28, 1997. Outside workers are members of the Union. She would be laid off in November each year and recalled to work at the start of the following season. Laid off employees retain employment status for a full year.

5The applicant and Jane Bastien, a full-time employee and lead hand in the horticulture area are, and have been during the relevant period, in a same-sex partner relationship, which the applicant states is an “openly gay relationship”.

6During the 2010 season (and for the prior 14 seasons) the applicant reported to foreperson Chris MacKenzie. In October and November, 2010, two co-workers complained the applicant had harassed them. (“Co-workers’ Complaint”). The corporate respondent investigated the complaint. The applicant was given a verbal and written warning and told that she would be assigned to a different crew at a different location. The personal respondent, at the time Director of Community Services, met with the applicant to communicate the decision to transfer her and then confirmed the verbal warning and transfer in a letter dated March 31, 2011.

7Commencing April 1, 2011, the applicant began working at Canatara Park doing parks maintenance. She reported to Colleen MacKenzie-Coyle.

8In a letter dated April 19, 2011, the applicant wrote to Sarnia City Manager Lloyd Fennell to “file a formal complaint against the Director of Human Resources” regarding the handling of the Co-workers’ Complaint. She also alluded to concerns that she had raised with her former foreperson Chris MacKenzie in August 2010 regarding “watering practices and harassment”. Ms. MacKenzie told the applicant these concerns would be addressed, but to her knowledge they were not.

9The applicant wrote a second letter to Mr. Fennell on April 28, 2011, complaining that no one had responded to her and clarifying that her earlier letter was intended to be a complaint about Susan Weatherston, the City’s Accessibility Coordinator, whom the applicant thought was the acting Director of Human Resources and who had participated in the investigation of the Co-workers’ Complaint. The applicant indicated that she had engaged a lawyer.

10Mr. Fennell responded by letter dated May 4, 2011, stating that the current Manager of Human Resources, Chris Armstrong, would contact her. Mr. Armstrong wrote to the applicant on May 11, asking her to propose a date for a meeting to include the applicant, Mr. Armstrong, her Union representative, and Ms. Weatherston. The applicant replied that all correspondence should be sent to her lawyer.

11On May 31, 2011, the applicant received a verbal warning from Dave Meyers, Supervisor Parks, regarding health and safety issues.

12On June 13, 2011, the applicant’s lawyer wrote to Mr. Fennell alleging a number of incidents of misconduct towards the applicant had occurred and that she was “the subject of open and manifest discrimination relative to her relationship with Jane Bastien”.

13Counsel for the City responded by letters dated June 16 and 21, 2011. Counsel indicated that the City would contact the applicant again to hear her allegations about Ms. Weatherston and also asked for particulars regarding the alleged discrimination so that the City could begin an investigation.

14Mr. Armstrong wrote to the applicant again on June 22, 2011, requesting a meeting to discuss her concerns about Ms. Weatherston. A meeting occurred on June 30, 2011, and was attended by the applicant, Mr. Armstrong, another human resources staff member, and a Union representative.

15On July 21, 2011, Mr. Armstrong wrote to the applicant with a summary of the meeting. The applicant responded by email the next day disputing his summary and alleging he was attempting “to disguise what is clearly systematic discrimination.”

16On July 29, 2011, the Union filed a grievance challenging the March 31, 2011 discipline. The grievance was settled in February 2012.

PRELIMINARY MATTERS

Delay

17The applicant filed her Application with the Tribunal on April 11, 2012. The respondents submit that the Application is more than one year after the March 31, 2011 decision, communicated to the applicant on April 1, 2011, that as a result of the Co-workers’ Complaint investigation she would be reassigned to a different work location. The respondents argue that there are no allegations of discrimination after that point in time and so her Application is over a year beyond the last alleged date of discrimination.

18Section 34 of the Code provides:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

34(2) A person may apply under subsection (1) after the expiry of the time limit under that section if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

19In examining potential delay, the Tribunal must first determine whether the application was filed more than one year after the incident or the last incident in a series of incidents of alleged discrimination. To assess whether incidents form a “series of incidents”, the Tribunal considers the nature of the events and whether they may reasonably be viewed as a pattern of conduct or whether the allegations are comprised of incidents relating to discrete and separate issues without some connection or nexus. See AlSaigh v. University of Ottawa, 2012 HRTO 2 at para 8.

20The Tribunal has defined the word “series” as “a number of things or events of the same class coming one after the other in spatial or temporal succession.” Pakarian v. Chen, 2010 HRTO 457. The Tribunal has found that a gap of more than a year between incidents in a series would in most cases interrupt the series. See Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442. Further incidents involving different facts and engaging different grounds under the Code may not be considered to form a series of incidents for the purposes of section 34(1)(b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433.

21The Application alleges that in 2005 or 2006, the applicant had a conversation with Kathy Meade, then Manager of Human Resources, during which certain questions were put to her and Ms. Bastien. She alleges these questions were discriminatory. The applicant also alleges that sometime in the summer of 2006 or 2007, a co-worker made frequent homophobic comments and jokes about Ms. Bastien and the applicant. The Application also alleges incidents of discrimination occurred in the summer seasons of 2010 and 2011 and the winter and early spring of 2012. February 2, 2012, is identified by the applicant as the date of the last incident of discrimination.

22With respect to the earlier allegations, which span from 2005 to 2007, there is a three-year period in which the applicant has not made any allegations of discriminatory acts by co-workers or management. I am satisfied that the more than three-year gap between the alleged conversation with Ms. Meade and the alleged incidents involving the co-worker and the bulk of the allegations beginning in 2010 makes the older allegations too remote in time to be considered in temporal succession. I find that the earlier allegations cannot form part of a later series of events that may begin in 2010.

23Beginning in 2010, the applicant alleges discriminatory treatment by her co-workers and that her sexual orientation and relationship with Ms. Bastien was the reason the Co-workers’ Complaint was brought. The applicant further alleges that the respondents’ manner of investigating and the personal respondent’s decisions following the complaint were discriminatory. She also alleges that following that investigation, the respondents continued to discriminate against her by permitting co-workers to harass her and by failing to investigate her complaints of discrimination up to and following the settlement of her grievance in February 2012. All these allegations relate to the same alleged behaviours. The final incident in the series occurred just two months before the date of the Application and well within one year prior the Application. I find that the allegations of discrimination beginning in the summer of 2010 through the spring of 2012 are of the same class and alleged to come one after the other. I find these are a series of incidents and are therefore timely.

24I have found that that alleged incidents of discrimination, which occurred between 2005 and 2007 are not part of this series of incidents and thus are untimely. The Tribunal must still nonetheless consider whether to exercise its discretion to consider these allegations. In these circumstances, the Tribunal must be satisfied a) the delay was incurred in good faith and, if so, that b) no substantial prejudice will result to any person affected by the delay. Labao v. Toronto Police Service Board, 2012 HRTO 1529 at para. 12.

25The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. See Brissett v. Loblaw’s Real Canadian Superstore, 2013 HRTO 478; O’Flanagan v. Ontario (Education), 2012 HRTO 761; Corrigan v. Peterborough Victoria Northumerbland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. The Tribunal has set a high threshold for what constitutes a reasonable explanation for delay; for example, it has held that good faith is more than an absence of bad faith. O’Flannigan, above.

26The applicant has not provided any explanation either in her Application or at the hearing of this matter as to why she did not pursue her Code rights after the alleged incidents with Ms. Meade or the co-worker. Therefore, I find that the applicant has not met her onus to establish that she did not pursue those claims in good faith. Given my finding regarding the lack of good faith, it is not necessary for me to address the question of prejudice to the respondent. These allegations are dismissed for delay.

Removal of Personal Respondent

27Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party.” I adopt the principles and consider the key factors for removing personal respondents enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31:

1. Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is the central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

28While the corporate respondent is alleged to be liable for the actions of the co-workers and management, the applicant alleges the personal respondent made discriminatory comments and bullied her due to her sexual orientation during the investigation and when he later met with her to relate the City’s decision to transfer her. She also alleges that it was his decision to twice transfer her and that those decisions were based on her sexual orientation. In these instances his individual conduct is at issue and central to those allegations and if infringement is found it may be appropriate to award a remedy specifically against him. I therefore decline to remove the personal respondent as a party to the Application.

ANALYSIS

29The applicant makes the following allegations of discrimination:

1. Discrimination occurred “in comments, displays, jokes, harassment, or a poisoned work environment,” including “talk behind her back” that was “homophobic.” She names co-workers who turned chairs to face away from the applicant and Ms. Bastien every time they walked into the room, and alleges that conversation immediately stopped and co-workers hid her shoes.

2. Co-workers fabricated the Co-workers’ Complaint.

3. The respondents discriminated against her when conducting their investigation into the Co-workers’ Complaint. In particular, management did not investigate after the applicant informed Ms. Weatherston that the Co-workers’ Complaint was motivated because of her sexual orientation. Furthermore, during the investigation into the Co-workers’ Complaint, the respondents interviewed Ms. Bastien and the personal respondent thereafter misrepresented her statements to the detriment of the applicant.

4. Following the investigation into the Co-workers’ Complaint, during a meeting, the personal respondent informed her of his decision to move her to parks maintenance at Canatara Park. During this meeting he also “belittled and berated her [saying] you will learn your place at the city of Sarnia, do no more and no less than anyone else, if you don’t like it you can quit, you will not be in horticulture.” Furthermore, after she grieved the Co-workers’ Complaint and subsequent transfer, the charges were found to be false yet the personal respondent did not reinstate her to a position in horticulture. And the personal respondent once again transferred her to maintenance at an inside arena for the 2012 season. This was the culminating action to force her to quit.

5. Respondents failed to investigate the applicant’s other allegations of discrimination by co-workers and management.

6. Ms. Mackenzie-Coyle, her lead hand at Canatara Park, harassed her by shunning her the whole summer; did not speak to her, instead leaving written instructions; accused her of breaking a lawnmower; documented everything she did and submitted that documentation to a new foreperson, Mr. Meyers, who issued her a written warning that was one of two negative write-ups that summer. Ms. MacKenzie-Coyle also recommended that the applicant not be rehired the following season.

Applicable Law

30Section 5 of the Code provides:

(1) Every person has a right to equal treatment with respect to employment without discrimination because of … sexual orientation, ….

(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 … sexual orientation, ….

31Section 10(1) of the Code defines “harassment” to mean, “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

32The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing, and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.

33It is well established in human rights law that in order for an act to constitute a violation of the Code, discrimination need only be one of the reasons for the act. It is not necessary that discrimination be the sole or even the predominant reason for the act. See Dominion Management v. Velenosi, (1997) 1997 CanLII 14482 (ON CA), 148 D.L.R. (4^th) 575 (ON C.A.) at para. 1, and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.) at para. 11.

EVIDENCE

34Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’s opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he or she has seen and heard. In addition, the Court stated:

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 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.

35Accordingly, I have not considered the witness’ evidence in isolation, but rather, in the context of the totality of the evidence. See Chan v. MTY Tiki Ming Enterprises Inc., 2013 HRTO 915.

36I have also considered the Ontario Court of Appeal’s comments on reliability in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, 1995 CanLII 3498 (C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity that is his or her willingness to speak the truth, as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

1. Allegations of harassment by co-workers

Comments, jokes, homophobic talk behind the applicant’s back

37The applicant admitted that she did not hear any comments directly and was not told about any specific comments. She was unable to identify any particular times that these statements may have been uttered. The applicant also did not identify the person who told her about the comments and jokes.

38Lance Allin, a co-worker, testified that he never heard any comments or jokes regarding the applicant’s sexual orientation. He testified that the only story he had heard about the applicant and Ms. Bastien related to an argument they had had with each other several years earlier. None of the other witnesses recalled homophobic statements or jokes being made during the relevant period.

39Given the applicant’s inability to provide particulars of the alleged comments or to identify the source of this information, I find there is insufficient reliable evidence to support these allegations.

Harassing behaviour

40The applicant testified that every time she crossed the parking lot co-workers snickered and that chairs were turned around when she entered a room. In her written submissions she describes how no one would speak to her, her shoes were hidden or moved almost every day, and people gossiped and laughed when she walked past them. Ms. Bastien testified that during the 2010 season whenever she and the applicant came into the greenhouse, other workers would stop all conversation. Ms. Bastien testified that one co-worker, Sue Anne Todd, would turn her chair around to not face them. Ms. Todd is one of the two co-workers who filed the 2010 complaint against the applicant.

41Ms. Bastien testified that Mr. Allin’s attitude towards the applicant appeared cold and that he did not respond to the applicant when she said good morning or when she asked him for equipment. Mr. Allin denied being rude to the applicant. He testified that the applicant and Ms. Bastien would often not respond to him when he said good morning.

42All witnesses, including the applicant and Ms. Bastien, agreed that there was tension on the work site between the applicant and others during the relevant time concerning horticulture resources. Ms. MacKenzie’s testimony confirmed there were issues regarding sharing of supplies and materials. In this context, it is reasonable that both Mr. Allin and Ms. Bastien recall accurately that there was a cold atmosphere between Mr. Allin and the applicant. I find it reasonable to conclude that neither was particularly responsive to the other.

43The witnesses did not dispute that Ms. Todd turned her chair around or that others became quiet when the applicant and Ms. Bastien entered the greenhouse. I am satisfied these allegations are well founded.

44With respect to the applicant’s allegations about her shoes being moved and sometimes hidden, she was not specific about dates but did, in written submissions to the Tribunal following her Application, allege that Tina Morgan had hidden her boots. Ms. Morgan was not a witness. The applicant did not testify about this allegation and it was not included in her Application. I find that there is not clear and convincing evidence to support that these incidents occurred.

45The parties also testified about an incident in the greenhouse involving the applicant, Ms. Todd, and Ms. Bastien (the “greenhouse incident”). Ms. Todd testified that Ms. Bastien began the exchange by asking her if she had a problem with watering during work and that the applicant then spoke to her aggressively. Ms. Todd testified that the applicant was very hostile and told Ms. Todd how awful she was, how difficult it was to work with her, and that she had serious issues and needed help. The applicant and Ms. Bastien testified that it was Ms. Todd who was aggressive and that the applicant was not involved although she was in the greenhouse. Ms. Bastien testified that she had asked Ms. Todd if she had a problem and that Ms. Todd replied “yes, I do” and then told her that she treated everybody like shit and that the applicant was spying on her, with respect to the watering of plants. Although the various accounts differ, all witnesses agreed that there had been an argument about watering plants and whether the applicant was scrutinizing Ms. Todd’s work too closely. The applicant, Ms. Bastien, and Ms. Todd testified that the incident was upsetting to all of them and became an argument. I accept that. These witnesses also all corroborated that this argument was initiated by Ms. Bastien questioning Ms. Todd about her watering practices and that it also included argument about whether or not the applicant was scrutinizing Ms. Todd’s watering practices too closely. However, there is insufficient evidence that during this argument, the applicant’s sexual orientation was a factor in Ms. Todd’s response to Ms. Bastien. Rather, in the circumstances, it is more reasonable that she was upset at the idea that the applicant was watching her work practices too closely.

46Based on the evidentiary findings then, the question is whether the co-workers’ becoming quiet and turning chairs around when the applicant and Ms. Bastien entered the greenhouse is discrimination or harassment under the Code? For the following reasons, I find that those actions do not rise to the level of a Code violation. It was not disputed, and I have found, that tensions existed within the group and more so between co-workers and the applicant over the sharing of resources. In the context it is reasonable to conclude that the actions cited above, while hurtful, were based on the tensions and disputes relating to horticultural resources. I find that the applicant has not met her onus of proving, on a balance of probabilities, that it is more likely than not that her co-workers harassed her on the basis of her sexual orientation.

2. The Co-workers’ Complaint

47The applicant has alleged that the 2010 Co-workers’ Complaint was a pretext to harass the applicant on the basis of her sexual orientation and that other co-workers interviewed by Ms. Weatherston during the late 2010 and early 2011 investigation of the Co-workers’ Complaint fabricated their stories also to harass the applicant for her sexual orientation.

48Ms. Weatherston testified that at least four of the co-workers were visibly upset during the interviews that were conducted as part of the investigation undertaken by the City in response to the Co-workers’ Complaint. Mr. Allin testified that during the investigation, he complained about the applicant not sharing supplies. Mr. Allin testified that he told the interviewers that Ms. Bastien became hostile when the applicant was around. He testified that the applicant and Ms. Bastien fought and yelled at each other often, and that the applicant was very “controlling.” For example, he testified that once he gave Ms. Bastien a ride to Centennial Park and they continued to discuss work after getting out of the car at which point the applicant yelled at Ms. Bastien to “shut up, quit talking to him.” The applicant and Ms. Bastien dispute that. Mr. Allin described this incident clearly and appeared upset at the recollection. Finally, Mr. Allin testified that the applicant and Ms. Bastien often would not respond when he said good morning, and that he had issues with the applicant not sharing communal plants. He did not like the workplace conflict and had been thinking of asking for a transfer.

49Ms. Todd testified that during the investigation she had reported that it was difficult to work with the applicant and that when Ms. Bastien and the applicant were together at a work site it was often even more difficult. She testified about the greenhouse incident as noted earlier and that after the greenhouse incident she had asked to be transferred. She also testified that during the investigation she reported that there had been several fights between the applicant and other co-workers.

50Kathy Dubois, another co-worker, testified that she had decided to leave her post at the City because she found the applicant intimidating after a couple of confrontations.

51Mr. Keck, a co-worker and Union representative, testified that during the investigation he reported that he had witnessed the applicant from across the yard mishandling equipment.

52Ms. MacKenzie’s testimony corroborated that there had been ongoing issues regarding the sharing of supplies such as fertilizer and plant material, and that others had complained to her about the applicant’s use of these supplies. She also testified that the applicant had a flare for design, did not require much supervision, but however needed to work on her interpersonal skills. She testified that she attempted to discuss the latter issue with the applicant during her 2010 evaluation, but that the applicant disagreed and left the meeting without allowing discussion about interpersonal skills. The applicant testified that she did dispute the assessment and did leave the meeting. Despite her written comments suggesting a need to improve interpersonal skills, Ms. MacKenzie concluded the review with a recommendation of rehire.

53With respect to one of the other workers who complained about the applicant, Ms. Sroko-Rosso, Ms. Bastien testified that she was moody and that there was no apparent connection to Ms. Bastien and the applicant whenever Ms. Sroko-Rosso “flew off the handle.” Ms. Sroko-Rosso did not testify. Ms. Bastien’s evidence appears to suggest that Ms. Sroko-Rosso would not have been motivated by the applicant’s relationship with Ms. Bastien. I find that one of the Co-workers’ Complaints, that of Ms. Sroko-Rosso, was not fabricated based on the applicant’s sexual orientation or her relationship with Ms. Bastien.

54The weight of the evidence supports that there were tensions in the workplace and that issues arose about the sharing of horticultural resources. The co-workers who testified stated that these tensions and the incidents described above were what they reported during the investigation.

55Ms. Bastien’s evidence was that in her view one of the two co-workers did not seem to have an issue with her relationship with the applicant and I have found that Ms. Sroko-Rosso did not bring her complaint for discriminatory reasons. With respect to the remaining allegations, on a balance of probabilities, I find that the evidence is not persuasive that the Co-workers’ Complaint and the other co-worker’s statements were fabricated based on the applicant’s sexual orientation. Rather I find that the complaints were based on their own views of the workplace tensions and that disputes between them and the applicant had recently become more serious. I find that the applicant has not met her onus, on a balance of probabilities, to demonstrate that the Co-workers’ Complaint and the other co-worker’s statements made during the investigation of the Co-workers’ Complaint were fabricated for discriminatory reasons.

3. The Investigation of the Co-workers’ Complaint

56The applicant alleges that the respondents’ investigation into the Co-workers’ Complaint was tainted in that the respondents were not objective but instead treated the investigation differently due to her sexual orientation. This included misrepresenting Ms. Bastien’s interview, that management failed to investigate both her suggestion to Ms. Weatherston that the Co-workers’ Complaint was fabricated because of her sexual orientation and that the other co-workers who were interviewed during the investigation also fabricated their statements for the same reason.

Tainted investigation

57Ms. Weatherston testified that pursuant to workplace harassment and violence legislation under the Occupational Health and Safety Act (Bill 168), an investigation was initiated into complaints by Ms. Todd and Ms. Sroko-Rosso, that the applicant had been harassing them in the workplace. She testified that Ms. Meade asked her to assist in the investigation. Because the two co-workers who brought the complaint mentioned others they thought were affected, Ms. Meade asked Ms. MacKenzie for a list of co-workers who may have complained to her in the past about the applicant so that they could be interviewed too.

58Ms. Weatherston sent Ms. Meade an email dated October 22, 2010, following the interviews of Ms. Todd and Ms. Sroko-Rosso, with her thoughts and recommendations and a suggested course of action. The recommendations suggest speaking to others, the applicant, and Ms. Bastien to confirm whether conflicts existed, and listed possible conflict resolution ideas.

59Following the interviews of other co-workers, Ms. Weatherston prepared an updated summary of the interviews and suggested recommendations in a Note to File dated November 26, 2010. She summarized:

Specific behaviours described consistently by all those interviewed entail consistent lack of cooperation around sharing of resources, consistent aggressive body language and consistent aggressive verbal behaviour, consistent rudeness and a total lack of cooperation with coworkers. Deb appears to fail to take direction, but gives direction to others who she does not directly supervise.

60Ms. Weatherston suggested, however, that the applicant should be interviewed upon the start of the season to “find out what other contributing factors may be at play.” Ms. Weatherston also recommended that all staff should be given clear direction, supervision, and expectations on expected behaviour as well as further supervisory training for all lead hands and front-line supervisors.

61On April 19, 2011, following the interviews of the applicant and Ms. Bastien, Ms. Weatherston created a final summary and a list of actions taken. In addition to the actions taken with other staff and supervisory persons listed above, these included a verbal warning to the applicant to improve her interpersonal behaviour with staff and the public and that the applicant would “be assigned to a different work crew and supervisor to allow her to build better work relationships with a new crew.”

62Ms. Weatherston took notes of each co-worker interview. She testified that to the best of her ability the notes were an accurate record of the interviews. Ms. Weatherston was a credible witness and was able to recount with clarity the various co-worker interviews. Because the applicant submits that these notes are not accurate and an example of Ms. Weatherston mishandling and tainting the investigation, the applicant asked co-worker witnesses at the hearing if these notes were, in fact, accurate. Other than Ms. Bastien’s interview, co-workers testified that with minor corrections the notes were accurate representations of their interviews. Ms. Bastien’s interview is discussed later. I did not admit the notes of the interviews for the truth of their contents. However, I have considered the witnesses’ evidence regarding the issue that was raised by the applicant that management, and specifically Ms. Weatherston, by inaccurately recording interviews, tainted the investigation. With respect to those co-workers who testified (other than Ms. Bastien), I find that Ms. Weatherston’s evidence on this issue to be both reliable and credible. I make this finding based on her testimony and that of the co-workers, which corroborates that the notes that she produced at the interview did not misrepresent co-workers’ statements in their interviews during the investigation.

63The respondents submitted a section of the City’s workplace violence policy, which indicated that the Manager of Human Resources would investigate reported complaints of harassment and would develop or recommend and monitor the implementation of an action plan until there is a final resolution of the harassment. This appears to be the steps that were taken by Ms. Meade and Ms. Weatherston. Furthermore, Ms. Weatherston’s suggestion to interview the applicant for contributing factors strikes me as an open-minded and impartial approach to the investigation and her recommendation that all staff be given direction and supervisors receive additional training, strikes me as a balanced approach and does not suggest that the applicant was being singled out unfairly for follow up action. I am not persuaded the applicant was treated any differently than any other employee would have been following a co-worker complaint.

Ms. Bastien’s interview

64The personal respondent and Ms. Weatherston interviewed Ms. Bastien on March 18, 2011. The applicant alleges that following their interview of Ms. Bastien, the personal respondent falsely claimed that Ms. Bastien had stated that the applicant had interpersonal conflicts, and that when Ms. Bastien challenged that, the personal respondent took no steps to rectify the applicant’s file, to her detriment.

65In a letter dated March 31, 2011 from the personal respondent to the applicant, he stated “as a result of this investigation, we are concerned about your demonstrations of interpersonal conflicts and ongoing verbal confrontations,” and “[i]ndeed discussions with Ms. Bastien confirmed an ongoing pattern of verbal confrontation and interpersonal conflicts including regular disagreement between the two of you in front of other staff.”

66By Letter dated April 12, 2011, Ms. Bastien wrote to the personal respondent: “The statements written in Deb Reiner’s letter of reprimand, referring to me confirming an ongoing pattern of verbal confrontation and interpersonal conflict was not in any way what I said in our meeting.” Ms. Bastien testified that this is her view.

67During the investigation, the personal respondent only attended the interviews of the applicant and Ms. Bastien. However, the personal respondent testified that he and other management representatives reviewed the investigation before making their decision about what action to take. As such, the personal respondent considered the notes of the investigation interviews of the other co-workers, as well as the applicant’s 2010 performance review, before issuing his letter to the applicant. Thus, while the personal respondent’s characterization in that letter was that Ms. Bastien’s statements led to his conclusion there was an ongoing pattern of verbal conflict and conflict and regular disagreement between the applicant and Ms. Bastien, within the larger investigation context there is nonetheless support for his conclusions within the evidence that I do accept.

68For example, the interview notes and summaries prepared by Ms. Weatherston, that I have found to be reliable, support that the other co-workers who were interviewed (excluding Ms. Bastien) attributed tensions and conflicts to the applicant’s behaviours and reported to the respondents that the applicant and Ms. Bastien argued. While the personal respondent may have misattributed some of his conclusions to Ms. Bastien’s comments, in my view that would not have materially changed management’s conclusions that led to the applicant’s warning and transfer. Nor is there clear and convincing evidence to support that the personal respondent made a misattribution in his letter to the applicant because of the applicant’s sexual orientation or relationship with Ms. Bastien. I do not find any misattribution to be discriminatory under the Code.

Allegation to Ms. Weatherston that the co-workers fabricated their stories in the interviews

69The applicant alleges that she told Ms. Weatherston during a phone conversation that the Co-workers’ Complaint and the other interviews were fabrications because of her sexual orientation and relationship with Ms. Bastien. She alleges that she told Ms. Weatherston that this was happening because she was gay and that Ms. Weatherston said she did not think so. She alleges that the respondents failed to investigate this possibility.

70It is not disputed that the applicant and Ms. Weatherston had a phone conversation following the applicant’s interview in March 2011. Ms. Weatherston testified that she did recall the applicant called her the day after her interview, requested that Ms. Bastien be interviewed, and said that Ms. Bastien had information about “sexual stuff” that the City should know. Ms. Weatherston testified that the phone call was brief but that the applicant did not suggest the Complaint was brought because she was gay; however, she did testify that the applicant had asked that “sexual stuff” be raised with Ms. Bastien. She testified that as a result she asked Ms. Bastien in her interview, which also occurred in March 2011, if there was any other kind of harassment going on directed at either her or the applicant that the City should be aware of. She testified that Ms. Bastien said no. Neither party asked Ms. Bastien to confirm or deny this when she testified.

71Ms. Weatherston testified that nothing in the previous interviews had alerted her to the possibility that the co-workers were motivated by the applicant’s sexual orientation.

72While the applicant argues that Ms. Weatherston did not talk to Ms. Bastien about “sexual stuff,” the weight of the evidence suggests the contrary. Ms. Weatherston specifically recalls making a note of the phone conversation request so that she could follow up with Ms. Bastien. Her testimony that she had made a specific note of exactly the phrase the applicant used so as to remember it is reasonable and I find it reliable. I find that the applicant did say that Ms. Bastien had information about “sexual stuff” and that the respondents did follow up on the applicant’s phone-call suggestion to Ms. Weatherston by asking Ms. Bastien the question recorded in the note. As well I find that Ms. Bastien responded “no”.

73There is no evidence that after that interview Ms. Bastien or the applicant raised this issue again until three months later when her lawyer wrote to Mr. Fennell on June 13, 2011, that the applicant “has been the subject of open and manifest discrimination relative to her relationship with Jane Bastien….” The City’s counsel responded by letter within three days and again on June 21 seeking “complete particulars” about the allegation from applicant’s counsel. It is not disputed that neither counsel nor the applicant responded to this request. Nor was the issue raised in the June 30, 2011 meeting.

74Given Ms. Bastien’s response to Ms. Weatherston’s inquiry and the lack of any other communications by, or on behalf of, the applicant until her counsel’s letter three months later that this was an issue, I do not find that the respondents had a duty to pursue this further immediately following Ms. Bastien’s interview and in fact once in receipt of counsel’s letter the respondents rigorously attempted to follow up. The applicant did not cooperate in this attempt. I find that the respondents met their duty to investigate up to the point that they could without the applicant’s cooperation.

4. Transfer decisions

Decision for first transfer to Canatara Park

75The applicant alleges that she was an exemplary horticultural staff member for 14 years and to support this submitted into evidence City of Sarnia Separation Reports beginning in 1997. Ms. MacKenzie testified that these reports are employment reviews completed at the end of each summer for seasonal employees. The topics include: work attitude, initiative, quality of work, public/personal relations, health and attendance as well as whether the individual works best alone, with some supervision, or with constant supervision. At the end of the performance appraisal, there is a question for the supervisor to check off if they recommend rehire and if not to explain. As the applicant submits, her reports are generally very good. Beginning in 2002 her public personal relations appraisal went from very good to satisfactory for most of the years. In 2010, Ms. MacKenzie wrote concerns to include an argument with a member of the public and putting her feet on the lunchroom table. She also wrote “would like to see Debby improve her interpersonal skills with her fellow co-workers.”

76The personal respondent testified that from 2010-2011 he was the Director of Parks and Recreation with three supervisors reporting directly to him. The lead hands reported to the supervisors.

77The personal respondent testified that although he sat in on the interviews with the applicant and Ms. Bastien, the investigation was run by the HR department and was not his investigation. He sat in because Ms. Meade had retired. He testified that he only heard about the complaints a day or two prior to the applicant’s interview. He testified that during the applicant’s interview Ms. Weatherston read the co-workers’ complaints with the names omitted. He stated that the applicant did ask to be told the names of those who had complained but because of City policy she was told those names could not be released.

78He testified that following the interviews with the applicant and Ms. Bastien, he and others met to discuss options. Their decision was that it would be better to move the applicant to another area and felt the best opportunity was at Canatara. The supervisor was Mr. Meyers and the lead hand was Ms. MacKenzie-Coyle.

79By letter dated March 31, 2011, the personal respondent wrote to the applicant about the reasons for the transfer decision. He wrote that management was concerned about interpersonal conflicts and ongoing verbal confrontations. He also referred to the 2010 performance review when Ms. MacKenzie attempted to discuss interpersonal relations. He concluded:

…to ensure a productive work environment, you will be assigned to a different crew and location. In the upcoming season, I would like you to focus on ensuring a productive and positive working relationship with all those with whom you work and come into contact with. You should also work on accepting direction from supervisory staff and lead-hands. These are important attributes for staff.

It is my intention to assist you in whatever way I can. However, as an employer, we have an obligation to protect all employees. As outlined in City policies, behaviours of bullying, harassment or verbal abuse will lead to discipline up to and including dismissal. Harassment is defined as “a course of vexatious comment or conduct that is known or ought reasonability known to be unwelcome.” …

80In accordance with City policy, an investigation into alleged conflicts and then recommendations to address these conflicts occurred. The result of that investigation was that the applicant had caused interpersonal conflicts at Centennial Park. Furthermore, her 2010 performance reviews corroborated that the applicant had from time to time interpersonal conflicts while on the job. In my view the applicant was not treated differently than any other City employee in this situation and is it is reasonable to accept the personal respondent’s testimony that the transfer was a group management decision intended to address the results of the investigation and to give the applicant an opportunity for a fresh start. I find that the decision to transfer the applicant to Canatara Park was not solely the personal respondent’s and was not discriminatory.

Allegations that the personal respondent made discriminatory comments

81The applicant alleges that the personal respondent stated “you will learn your place at the city of Sarnia, do no more and no less than anyone else, if you don’t like it you can quit, you will not be in horticulture.” In addition she testified that he bullied her, by not letting her ask questions, and screamed at her during the meeting.

82The personal respondent testified that he met with the applicant on April 1, 2011, together with Ms. Weatherston and Mr. Keck to convey the transfer decision. He testified that it was a professional and short meeting lasting ten minutes. He provided the applicant with the letter of March 31, 2011 and she was asked to read it. He testified that this was the routine the City always followed. He testified that when the applicant asked to raise issues during the meeting, as was customary practice she was told that if she had issues she should speak to her union representative after the meeting. The personal respondent denied telling the applicant that she would learn her place. When the personal respondent was asked if he told the applicant that they had considered firing her, he testified that he told her the allegations were serious enough that options could possibly include termination. Mr. Keck testified that the personal respondent was professional during the meeting. Ms. Weatherston testified that the applicant was aggressive and argumentative in the meeting.

83I found the personal respondent clear in his testimony about the purpose and conduct of the meeting. Mr. Keck and Ms. Weatherston corroborated his account. I accept that the brief meeting was customary. His explanation as to why he felt that the situation was serious enough to warrant termination is reasonable given the results of the investigation. By all accounts it was not a comfortable meeting, which is understandable. It is reasonable to conclude that the conduct of the meeting was based on the results of the investigation rather than any discriminatory ground under the Code and that while it may have been a tense meeting, the applicant was not treated any differently than any other employee would have been treated following a similar investigation.

Second transfer decision to the arena

84Following the summer 2011 season, the personal respondent testified that the decision was made to again move the applicant from Canatara to the arena because she had had conflict with Ms. MacKenzie-Coyle. He testified that the rationale was to give her another chance for a productive environment. He testified that moving her back to Centennial Park was not considered as an option given the issues raised in the earlier investigation.

85In their evidence, both the applicant and Ms. MacKenzie-Coyle corroborated that conflict existed between them during the summer of 2011. It is reasonable in the context that the respondents wished to continue to find a location where the applicant could work without conflict. This also suggests a pattern of conduct that demonstrates that the respondents attempted to provide the applicant with every opportunity to continue working at the City. I find that the decision to transfer the applicant again to the arena was not discriminatory under the Code.

Terms of settlement of grievance

86The applicant alleges that the transfer to Canatara Park should have been rescinded in February 2012, because after she grieved the Co-workers’ Complaint and subsequent transfer, the charges were found to be false, yet she was not returned to horticulture. The Terms of Settlement dated February 2, 2012 provide that the Union and applicant withdrew her grievance in exchange for the employer removing the disciplinary notation of a verbal warning that was at issue from her file and clarifying the scope of the lead hands’ duties and responsibilities. Although the applicant may have concluded differently, the Terms of Settlement did not address the truth of the Co-workers’ Complaint, and given that the grievance was settled there were no findings. The Settlement provided no basis for the respondents to return the applicant to Centennial Park.

5. Respondents failure to investigate the applicant’s other complaints of discrimination

87The applicant alleges that in 2010 she complained to Ms. MacKenzie about harassment and was rebuffed and that when she raised this with management it was not investigated; that she complained in early 2012 to her foreperson Mr. Harwood about harassment and that was not investigated; and that she complained to Mr. Fennell about Ms. Weatherston and to Mr. Armstrong about systematic discrimination and these claims were not investigated.

Complaint to Ms. MacKenzie

88In her April 19, 2011 letter to Mr. Fennell, the applicant wrote that she had:

Approached [her] foreman Chris MacKenzie in August 2010, to voice concerns of [her] own over a specific issue, regarding watering practices, and harassment and was told by my foreman that I could not file a harassment complaint, and that she would speak to the parties involved, only to find that I was brought up on these charges months later. In my meeting with Ms. Weatherston and Mr. Ian Smith regarding this matter I informed them of all of this yet no one addressed it.

89Ms. Weatherston testified that during the March 14, 2011 meeting, the applicant did not raise discrimination based on any Code ground, including sexual orientation. The applicant did not testify that she did and this allegation was not included in her Application.

90In an email to Mr. Armstrong dated July 22, 2011, the applicant stated that during the greenhouse incident Ms. Todd ranted about her and it was for that reason she asked Ms. MacKenzie to file a harassment claim against Ms. Todd. Ms. Todd testified that the issue was about her impression that the applicant was scrutinizing her work too closely. In a written submission, the applicant corroborated that view stating that her claim of harassment in this situation was because Ms. Todd accused her of spying on her.

91Ms. MacKenzie testified that she listened to the applicant’s complaint, wrote notes to Ms. Todd about it, and thought that she had also spoken to Ms. Todd. She did not recall that the applicant made any other specific complaints about co-workers only that the applicant “complained about a lot of things”.

92Based on the evidence above and the two written communications by the applicant mentioned, I conclude that the reason the applicant wanted to file a harassment claim against Ms. Todd was because she felt Ms. Todd had accused her of spying on her with respect to Ms. Todd’s watering practices. This does not amount to a claim of harassment based on a Code ground and therefore whether or not it was appropriately investigated it does not rise to the level of failure to investigate a claim of harassment under the Code.

Complaints to Foreperson Rob Harwood

93The applicant alleges that she complained to Mr. Harwood in 2012 that co-workers were harassing her. The applicant provided no further particulars including dates of these complaints or what she reported. I find this allegation too vague to support that the respondents failed to investigate allegations of discrimination under the Code.

Complaint about Ms. Weatherston

94As noted earlier, by letter dated April 19, 2011, the applicant wrote to Mr. Fennell to complain about the way the respondents handled the Co-workers’ Complaint investigation. Mr. Fennell wrote back on April 27, 2011 to state that he had referred her concern to Chris Armstrong the new Manager of Human Resources. In a subsequent letter dated April 28, 2011, the applicant clarified that her complaint was against Ms. Weatherston, who she thought had been the “acting Director of Human Resources” at the time. Within a week, Mr. Fennell wrote back that Ms. Weatherston was not in that role and that the current Manager of Human Resources, Mr. Armstrong, would contact her to begin a process to look into her complaint.

95Shortly thereafter Mr. Armstrong wrote to the applicant to follow up asking for her availability for a meeting. The applicant did not respond. Thereafter letters were exchanged between counsel for the applicant and the City. On June 22, 2011, Mr. Armstrong wrote to the applicant again requesting a meeting. He wrote:

The City of Sarnia takes very seriously our obligation to ensure that our employees work in a productive environment that is free from harassment.

In your letters of April 19^th and April 28^th you have made a complaint against Ms. Weatherston’s behaviour in the workplace.

Our City policy directs that complaints must be investigated impartially and in a timely manner.

Please contact me immediately to set a time for us to meet to hear your concerns. This issue is fundamental to our employment relationship and must be investigated. As stated previously you are encouraged to bring union representation if you so choose.

I am available Monday June 27, 2011 or Tuesday June 28^th 2011 (PM Only) or Thursday June 30, 2011 (PM Only).

I look forward to hearing from you as soon as possible.

96On June 30, 2011 the applicant, her Union representative, Mr. Armstrong, and Daniela Iafrate, another Human Resources staff member, met to discuss the complaint.

97The applicant has not provided evidence that when she complained to the respondents that Ms. Weatherston mishandled the investigation, it was for discriminatory reasons. Nonetheless, on a balance of probabilities the evidence supports that the respondents investigated the applicant’s claim that Ms. Weatherston mishandled the investigation.

Complaint to Mr. Armstrong

98Following the June 30 meeting, by letter dated July 21, 2011, Mr. Armstrong wrote to the applicant to present some information to “assist” her in understanding why she was given a verbal warning after the investigation.

99By email dated July 22, the applicant wrote to Mr. Armstrong stating:

I will tell you again what was said in our meeting of June 30^th, and now it will be in writing so it can be remembered as stated. The meeting you speak of in the greenhouse that took place was not about me, I was present said nothing. It was a meeting initiated by Jane Bastien asking Sue Todd a question??? They to discuss things and Sue preceded (sic) to rant about me, which I responded by saying NOTHING. This is why I went to my supervisor regarding filing harassment against Sue Todd.

In a separate matter I was upset that Sue Todd did not do her job, but took my complaint not to Sue, but to my supervisor Chris Mackenzie. Clearly I am [email copy cut off] breath. All will be turned around, ignored, and disguised under the veil of harassment. Still you will not release the information of what harassment took place, what was said, and when, and by who so I can address it. This confidentiality is usually needed to protect people who are deceitful. I cannot even address [copy of email cut off] your letter as none of it is true, like I would ever say that people feel victimized by me.

Mr. Smith was aggressive, dismissive, and behaved in the true definition of the word bully, during our meeting of April 1. And yes Sean Keck was present during the meeting but as stated empathically by you I was not represented by this union member but thankfully he was a witness.

All that is written in your letter continues to be a manipulation of the facts in an attempt to disguise what is clearly systematic discrimination and will proven to … I move forward.

100Although the applicant states that there is clearly systemic discrimination, prior to the communications between Mr. Armstrong and the applicant, letters were exchanged between the applicant’s counsel and counsel for the City, in which it was clear that the City was requesting particulars about any Code-related discrimination so that the City could investigate. None were forthcoming. In my view the City was attempting to investigate whether or not there had been Code-related discrimination and the applicant and her lawyer were non-responsive. The applicant and her counsel did not cooperate to provide to the respondents particular allegations that the respondents could investigate.

6. Allegations about Ms. MacKenzie-Coyle and Mr. Meyers

101The applicant alleges that Ms. MacKenzie-Coyle harassed her during the summer of 2011 by not speaking to her and instead leaving only written instructions, including one particular rude note regarding a broken door, and by compiling a list of complaints about the applicant’s work habits.

102The applicant submitted a copy of a short handwritten note from Ms. MacKenzie-Coyle who wrote a note in response to the applicant’s note that a door was broken. Ms. MacKenzie-Coyle’s note reads: “Deb, Change room door should be ok now. If not we have always put our sholder (sic) into it.” The applicant testified that Ms. MacKenzie-Coyle’s note was demeaning suggesting that she could not do her job properly. The applicant testified that because she found the note offensive, she wrote back to Ms. MacKenzie-Coyle: “I put my quite extensive shoulder into it. Thanks for advice though I’ll keep it on file.”

103The applicant was asked and testified that her schedule and Ms. MacKenzie-Coyle’s were not the same; Ms. MacKenzie-Coyle arrived in the morning and the applicant arrived in the afternoon, with Ms. MacKenzie-Coyle leaving before the applicant. Therefore although their schedules overlapped, they also worked some different hours.

104In my view, Ms. MacKenzie-Coyle’s note does not demonstrate harassment of any sort and the different work schedule can explain why written communications were sometimes necessary. It was in fact the applicant who wrote the first note in this correspondence and given that the two individuals were not there at the same time it is reasonable that Ms. MacKenzie-Coyle would leave a note in response to the applicant’s note.

105The applicant also submitted a one-and-a-half-page, mostly-typed note signed by “Colleen” that Ms. MacKenzie-Coyle confirmed she prepared, titled: “April 26^th-May19th Deb”. The note is a list of 17 bullet points where Ms. MacKenzie-Coyle writes observations that are negative appraisals of the applicant. She concluded:

Not showing leadership qualities, does only what she it told and nothing more, needs to be told to start work. Attendance is weak, called in sick 3 times already, forgot her keys three times, hard on the lawn mowers, too much damage already every time she goes out and I have never seen her grease the mowers. She doesn’t get off the mower to pick up large branches but cuts around them. Leaves too much area for the weedie person, does not groom the lawn, just cuts it and complains about the schedule. Considering to remove her from grass cutting. After one month, I would not rehire.

106The applicant testified that she felt she was being watched for any mistakes in order to support termination. The applicant disagreed with the assessments, saying that she had not been properly trained on the lawnmower and that she had valid excuses for the attendance issues raised.

107Ms. MacKenzie-Coyle testified that it is her normal practice to observe new hires to her area and to record any issues so that she could make a determination of whether or not to recommend rehire. She testified that only issues were documented and if a new hire has no issues, no document is created. It is not disputed that the applicant complained about the assessment to Ms. MacKenzie-Coyle. Ms. MacKenzie-Coyle testified that she did tell the applicant that if she did not like the assessment she could quit.

108Ms. MacKenzie-Coyle was asked about each of the items on the list and explained why she felt they were all justified. While the applicant may disagree with these assessments, in my view this is not evidence of harassment based on a Code ground but rather Ms. MacKenzie-Coyle’s honest assessment that she observed problems and she followed the same procedure she used for all new workers to her area. Ms. MacKenzie-Coyle was able to clearly explain, with details, each of the issues she listed. Even if she was unfair in her assessment, she struck me as genuine in her belief of her assessment. I found her testimony reliable as to her belief of the applicant’s work deficiencies and am not persuaded the list was prepared because of discriminatory reasons.

109On May 31, 2011, Mr. Meyers, Supervisor Parks, wrote a letter to the applicant re: Verbal Warning – Health and Safety. He listed various incidents between April 27 and May 19, 2011 that he stated were health and safety violations of the City’s health and safety policy occurring at Canatara Park. Ms. Mackenzie-Coyle testified about several of the incidents and it is not disputed that at least a few of these occurred. While there may have been an explanation for some of the violations listed, there is no evidence that these were otherwise fabricated and I am not persuaded that this write-up constitutes differential treatment or harassment due to a Code ground.

CONCLUSION

110Although the evidence supports that tensions existed between the applicant and her co-workers and I have found that sometimes they turned their chairs on her and became quiet in her presence, on a balance of probabilities the applicant has not established that because of her sexual orientation or relationship with Ms. Bastien, she was discriminated against by the respondents. For all of the above reasons, the Application is dismissed.