Johnson v. Ontario (Government Services), 2013 HRTO 1767

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dale Johnson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services

Respondent

DECISION

Adjudicator: Mark Hart

Date: October 18, 2013

Citation: 2013 HRTO 1767

Indexed as: Johnson v. Ontario (Government Services)

APPEARANCES

Dale Johnson, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Respondent

Jennifer Richards, Counsel

1This is an Application dated July 27, 2011 and filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age.

2The Application in this matter was referred to a summary hearing, and by Decision dated January 4, 2013 (2013 HRTO 19) the only allegation that was referred for a hearing was the comment alleged to have been made by D.C. (the applicant’s then manager) to the applicant that he was only comfortable mentoring younger people. Further, by Decision dated June 6, 2013 (2013 HRTO 1013), the applicant’s request to amend her Application was denied for a number of reasons, including that many of the allegations the applicant now sought to raise already had been dismissed as a result of the summary hearing.

3As a result, the only issue to be addressed in this Decision relates to the comment alleged to have been made by D.C. An in-person hearing into this issue was held on August 16, 2013. I heard from the applicant, D.C. and J.L. (who was the Director at the time).

Review of evidence

Applicant’s evidence

4The applicant commenced employment as a Strategic Business Advisor with the Human Resources Strategic Business Unit (“SBU”) in the Ministry of Environment effective August 24, 2009, on a twelve month probationary period. She initially reported to D.C. as her manager. The applicant’s employment ultimately was terminated on July 27, 2010. At the time relevant for this Decision, the applicant was 58 years old.

5D.C. was on vacation when the applicant started her employment, returning to the office in early September 2009. The applicant states that shortly after D.C. returned from vacation, she met with him in his office. After a brief discussion, the applicant states that she asked about mentoring. She states that she wanted to know specifically what was expected from her within her role, especially as it related to her assigned clients. She states that what she said to D.C. was that, as a new employee, she would really appreciate mentoring and any information on her client groups that he could provide. She states that in response, D.C. said, with a half smile, “I’m only comfortable mentoring younger people / employees” [the applicant was not certain which of these words D.C. specifically used]. The applicant states that she did not say anything in response to D.C. at time of the meeting, as she says she was afraid and felt very hurt and alarmed and excluded.

6She states that immediately after the meeting, she went to her office and recorded what D.C. had said in a Word document. Her evidence is that she continued recording other things that happened in the workplace in this same document until it became “messy”, at which time she transferred the information into an Excel spreadsheet. Neither the original Word document nor the Excel spreadsheet was disclosed or filed by the applicant for the purpose of the hearing, and neither document was available on the day of the hearing. As will be discussed in greater detail below, there were other documents introduced into evidence at the hearing which the applicant states were based upon the contents of the Excel spreadsheet.

7The applicant testified that what prompted her to ask D.C. for mentoring was that she saw him mentoring another new employee (N.H.) who was very young [the applicant estimated that she was in her early 20’s]. The applicant states that N.H. had started a couple of weeks after her, and was getting things that the applicant wanted from her manager and was not getting. The applicant states that she saw N.H. getting introductions to clients and lots of background information, and much more than the applicant got, including being invited to parties with staff after hours that the applicant was not invited to. The applicant states that this was very hurtful and detrimental to her.

8The applicant states that she raised D.C.’s comment with her director, J.L., during an unscheduled meeting in her office sometime in the latter part of November 2009. She states that J.L. came to her office to speak with her and closed the door. She states that J.L. said something like, how are you finding the office, how are you finding things here, how are you doing? She states that she was very concerned and did not want to say anything, but J.L. was very charming and convincing. The applicant states that she told J.L. that she had serious concerns, and told him verbatim what D.C. had said to her in September 2009, and that she was not getting mentoring like N.H. was getting. The applicant was clear in her evidence that she mentioned N.H.’s name specifically during this discussion with J.L., and that she also mentioned that she was not invited to events that N.H. was. The applicant states that after she had raised these and other issues, J.L. said thank you so much and was happy. She states that J.L. said he was going to take action on this information. The applicant states that she expressed concern about reprisal, and J.L. assured her that there would be no reprisal and that he would not repeat what she had said to him.

9The applicant states that shortly afterwards, D.C. was transferred out of his manager position to a new position. She states that there was an office gathering to announce D.C.’s departure, but J.L. did not say why D.C. was leaving. However, the applicant states that in January 2010, on D.C.’s birthday, she went to his new office to wish him a happy birthday. She states that at this time, D.C. told her that he had been put in the new position and did not know why, that he was not supervising any employees and was just in charge of a project, that he was bewildered as to why this had happened, and that this move came out of nowhere.

D.C.’s evidence

10D.C. states that he recalls meeting with the applicant shortly after returning from vacation in early September 2009. His recollection is that he asked for this meeting because he was concerned that the applicant had not yet met with her assigned clients, and particularly with her primary client, who was the Assistant Deputy Minister of the Operations Division. D.C. states that he conveyed this concern to the applicant prior to the meeting, and she came to the meeting with a list of background information that she felt she required in order to meet with this client. D.C. states that he explained to the applicant that he simply wanted a brief introductory meeting to be set up.

11D.C. does not recall any discussion with the applicant about mentoring at this meeting. He further states that he never made the comment as alleged by the applicant, and that never would he imagine that he would make such a comment.

12D.C. states that the applicant’s age did not play any role in mentoring opportunities available to her. He states that he had eight employees reporting to him at that time, four of whom were in their 25-30’s and four of whom were in their early 40’s to mid-50’s. He states that age played no role in mentoring or any sort of opportunities.

13With regard to N.H., D.C. states that she started in her position in or about mid-September 2009. He states that there was no official mentoring for N.H., but N.H. very much would come to him to seek guidance. He states that N.H. did set up a bi-weekly meeting to update him and discuss issues, and his recollection is that he also had regular meetings with his other staff. He states that the applicant regularly came to him to discuss issues and seek clarification, and so he does not agree that he spent more time with N.H. If anything, he suggests that the situation was exactly the opposite of that. With regard to N.H. being invited to after-work events, D.C. states that as a manager, he does not organize after-work events, and he has no recollection of what the applicant is referring to. He states that there was one event (a bowling night) in early December 2009 that he attended with former staff, but this was organized by another staff member and not by him. He states that N.H. was a member of that former staff.

14With regard to his transfer to a new position, D.C. states that he was transferred to be the manager of strategic projects. He states that there is a “talent management” process as part of government, where managers have the opportunity to discuss their careers, ambitions, and what they would like to do. He states that he met with his director, J.L., each year to discuss this. He states that in 2009, he had discussed with J.L. that he was interested in managing a project and also that he was falling behind in the IT world. He states that at the end of November 2009, J.L. approached him about taking over management of a priority project in the Ministry, and told him that senior management had asked if D.C. would take that on. D.C. states that he had mixed emotions about the transfer because he enjoyed the job he had, but this was a new opportunity and in line with the career development that he had requested.

15D.C. states that he does not recall the applicant coming to his office on his birthday in January 2010, and in fact testified that he does not believe that this meeting ever happened. He testified that he did not say the things attributed to him by the applicant, because there would be no rationale for him to say that since his new position was part of his career development plan. He states that on his birthday, people had filled his office with balloons and confetti, and he specifically recalls staying after work to clean up. In cross-examination, the applicant had been asked whether she noticed anything unusual about D.C.’s office when she went to speak with him on his birthday, and her initial evidence was that his office was “sparse”. After it was put to her that D.C.’s office in fact had been filled with balloons on that day, the applicant stated that she recalled seeing balloons.

Evidence of J.L.

16J.L. states that he does not recall the specific meeting alleged by the applicant to have taken place in November 2009. He also states that he has no recollection of the applicant telling him about the comments D.C. allegedly made to her.

17He states that he does have a recollection of meeting with all staff regarding how they were adjusting to their new function and to be briefed on their meetings with client groups. He also states that a lot of work staff was doing was team work, so he would ask about that. But he states that he has no specific recollection of the November 2009 meeting referenced by the applicant in her evidence.

18He states that he has no recollection of the applicant ever raising a concern about D.C. saying that he only wanted to mentor younger employees. He states that he has worked with D.C. over a number of years, and throughout his career, the employees that D.C. would have hired or inherited covered a wide range of demographics, with some being J.L.’s age, some D.C.’s age, some older and some younger.

19He states that in his role as SBU Director, if such a concern had been brought forward by the applicant, the process in the Ontario Public Service is very clear. Such an issue would fall under the Workplace Discrimination and Harassment Policy (“WDHP”) and all WDHP issues are required to be forwarded to a central office for an assessment of the matter and to provide recommendations as to whether the matter needs to be investigated. He states that this is an established process that he has followed on numerous occasions with other staff in various branches, and is part of the work he does.

20In fact, as a result of concerns raised by staff in the SBU which are not the subject of this proceeding, J.L. held a meeting in early October 2009 to remind staff about the WDHP and to require them to familiarize themselves with this policy. In early 2010, when issues within the SBU remained, J.L. arranged for an external facilitator to be brought in under the auspices of the WDHP.

21With regard to D.C.’s transfer to a new position, J.L. states that in the OPS, there is a very delineated process called “talent management” which is there to identify potential talents that could be developed in order to meet operational needs. He states that this system is very structured, with a talent management discussion brought forward every year during late August or early September, where SBU directors get together with senior executives – Deputy Ministers and Assistant Deputy Ministers - to discuss every management employee and talk about their developmental needs, aspirations and skill sets, and then look at the needs of the organization and how it can best utilize these skills.

22He states that D.C. was discussed during the talent management meeting in August 2009 along with all other managers. He states that D.C. had indicated that he had an interest in leading a project especially in IT. At that time, there was a need in the Ministry for an automated process to respond to FOI requests. The Ministry was in the process of developing a submission to ask the government to provide funding in order to put forward a project team to lead in developing and implementing this automated process. During the talent management discussion, it was felt that D.C. would be right person to do that, and his name was put forward and approved. From the time that discussion happened in late August 2009 until the time of D.C.’s transfer, there was a delay related to obtaining government approval of funding. J.L. states that once the Ministry got a signal from the Treasury Board that its funding request would be received positively, that was when he decided to approach D.C.

23J.L. states that D.C.’s name was put forward either by the Deputy Minister or the Assistant Deputy Minister, and was not put forward by him personally.

Analysis and Decision

24The applicant bears the onus of establishing a prima facie case of discrimination: Ontario (Human Rights Commission v. Simpsons-Sears Ltd. (O’Malley”) 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough) 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.

25The issue in this case comes down entirely to a question of credibility. I have the applicant saying that D.C. made the alleged comment and that she reported it to J.L., and I have both D.C. and J.L. denying that this ever happened.

26In making my assessment of credibility, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and particularly the following comments 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 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.

27I also have been assisted by the observations on credibility assessment made recently in R. v. Taylor, 2010 ONCJ 396, as follows (at paras. 58 to 60):

“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.

All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 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 a witness's veracity, one speaks of the witness's credibility. 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.

Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.

28Applying these considerations, I have several concerns about the credibility and reliability of the applicant’s evidence, some relatively minor and some more significant. In general terms, while I accept that the applicant may believe that the comment was made by D.C. as alleged, I am concerned that her memory may have become encrusted by her interpretation and perception of subsequent events, such that she has attributed to D.C. a comment that he never in fact made. I say this for a number of reasons.

29First, I note the applicant’s evidence that she met with D.C. in early September 2009 shortly after he had returned from vacation, and that what prompted her to raise the issue of mentoring at this meeting was her perception that another new employee, N.H., was getting something that she was not. The problem with this evidence is that N.H. did not start working in the SBU until mid-September, which is after the applicant says that she met with D.C. and raised mentoring as an issue, and when she says D.C. made the impugned comment. When this was put to the applicant in cross-examination, she was adamant in her evidence that N.H. had already started working at the SBU by the time the applicant had her meeting with D.C. Even if that were the case, which is inconsistent with the applicant’s evidence as to when the meeting occurred, it seems to me unlikely that, at such an early stage in N.H.’s employment at the SBU, the applicant would have been able to discern a differential pattern in D.C.’s mentoring of N.H. as opposed to herself.

30Second, when testifying about her meeting with J.L. in November 2009, the applicant was very clear in her evidence before me that she specifically mentioned N.H.’s name during this discussion in the context of D.C.’s comment about only being comfortable mentoring younger people, and she further was very clear in her evidence that she raised the issue of not being invited to events like N.H. There are a number of problems with this evidence. In evidence before me is a document that the applicant prepared for the purpose of a meeting in January 2011 (after her termination) in order to raise issues about her experience at the SBU. This document contains a table that sets out specific timeframes and the applicant’s notes about events that occurred. The table includes a detailed notation regarding the November 2009 discussion with J.L. The applicant testified that the information about the November 2009 discussion came from the Excel spreadsheet that she had prepared at the time (which was not disclosed and which is not in evidence before me), and she specifically testified that everything about the November 2009 discussion that was contained in her Excel spreadsheet had been transferred to the January 2011 document.

31However, while the January 2011 document includes a note that the applicant raised D.C.’s alleged comment with J.L. during the November 2009 discussion, this document does not contain any reference to the applicant having mentioned N.H.’s name in the context of her being a younger employee who was getting more mentoring from D.C. than the applicant. Further, the January 2011 document also does not contain any reference to N.H. having been invited to events that the applicant was not invited to. Indeed, the only evidence I heard about any specific event that N.H. was invited to and not the applicant was the bowling night that occurred in early December 2009, which is after the November 2009 discussion.

32Further, the January 2011 document also does not include any reference to other specific items about the November 2009 meeting that were included in the applicant’s testimony before me, such as J.L. being happy about the applicant having shared her concerns with him, or that J.L. said that no reprisal would be taken against her for sharing this information, or that J.L. said that he would not disclose the information she had shared, or that J.L. said that he would be taking action. These are not insignificant points, yet they do not appear in the applicant’s notes of this discussion as set out in the document prepared for the January 2011 meeting.

33Third, the applicant says that immediately after the September 2009 meeting with D.C., she went back to her office and typed up notes of what D.C. had said in a Word document, that later were transferred to the Excel spreadsheet. Yet when the applicant prepared the table for the purpose of the January 2011 meeting, which she says was based on the information recorded in the Excel spreadsheet, this document contains no reference to the September 2009 meeting or to what D.C. is alleged to have said at that time, apart from the later reference to D.C.’s comment in the context of the applicant’s notes of her discussion with J.L. After the January 2011 meeting, the applicant prepared a further document to record what was discussed at that time, and the opening paragraph of this document does contain reference to the alleged comment by D.C. The applicant testified before me that the information contained in this later document about the September 2009 meeting and D.C.’s comment came from her Excel spreadsheet, but she could not explain why this information had not been set out in the earlier document.

34Here is my problem with this evidence. If in fact the applicant immediately went back to her office following the September 2009 meeting with D.C. and recorded the comment he is alleged to have made, then there should be no lack of clarity as to what D.C. is alleged to have said. Indeed, in the opening paragraph of the document prepared after the January 2011 meeting, there is a version of the comment in quotes that the applicant says came directly from the Excel spreadsheet and the notes that she made at the time: “I only feel comfortable coaching / mentoring younger staff”. However, two paragraphs later in this same document, the applicant records D.C.’s comment (once again in quotes) as being: “I am not comfortable mentoring older people”. And in the document prepared prior to the January 2011 meeting, the applicant records herself as telling J.L. in November 2009 that D.C. said (again in quotes): “I am more comfortable mentoring / coaching younger people”. And in the Application filed with this Tribunal, the applicant records D.C. as saying (again in quotes): “I am only comfortable mentoring younger workers / staff”. And her testimony before me is that D.C. said: “I’m only comfortable mentoring younger people / employees”.

35While some of these versions of what D.C. is alleged to have said may appear to have only minor differences, it raises the question as to why there is any variation at all. If the applicant in fact recorded what D.C. said immediately after the September 2009 meeting and has a record of what he said in an Excel spreadsheet, there should be no variation or dispute at all as to what she alleges D.C. said. Further, at least one of the versions attributed to D.C., while perhaps conveying the same meaning, is radically different in its expression. Most versions of the alleged comment refer to D.C. saying he is more comfortable (or sometimes only comfortable) mentoring (or sometimes coaching) younger people / workers / staff / employees. Yet one of the versions of his comment contained in quotes in the document prepared after the January 2011 meeting completely reverses what D.C. is alleged to have said, which is that he is not comfortable mentoring older people. That to my mind is a significant difference, for which I cannot account if the applicant in fact recorded what D.C. said immediately after the meeting.

36Fourth, I am concerned about the absence of specific dates in any of the materials before me. If in fact the applicant made notes about what D.C. said immediately after the September 2009 meeting, then one would expect the date of that meeting to have been recorded and for there to be no confusion as to when this meeting occurred. But there is no specific date for this meeting anywhere in the materials before me. Similarly, with regard to the November 2009 discussion with J.L. By this time, the applicant’s evidence is that she was making contemporaneous notes of events as they occurred. But once again, there is no specific date for this discussion in any of the materials.

37Fifth, I am concerned that the applicant has not disclosed or filed the Excel spreadsheet. These are notes of events that the applicant alleges she made at the time the events occurred. It is hard to imagine any document that is more relevant to the allegation at issue in this proceeding. Under the Rules, the applicant was under an obligation to disclose all arguably relevant documents in her possession. Yet she did not disclose this Excel spreadsheet and did not have it available at the hearing. Her explanation is that the notes she made in this document were in point form, and she felt she needed to expand upon them in documents submitted to the Tribunal. Frankly, in my view, that is part of the problem here. Without seeing the Excel spreadsheet and knowing what is contained in that document, the respondent and the Tribunal cannot know what, if anything, the applicant says she actually recorded at the time, as opposed to what she may have added or expanded upon at some later time.

38Sixth, the applicant testified that she spoke with D.C. following his transfer, and he told her that he was bewildered as to why this had happened and that it came out of nowhere. Given that the transfer occurred shortly after the November 2009 discussion between the applicant and J.L., the applicant believes that the transfer of D.C. was the “action” that J.L. said he was going to take as a result of their discussion. And yet, not only are these comments denied by D.C., but I have heard detailed evidence regarding the process by which this opportunity was offered to D.C., which was engaged long before the alleged November 2009 discussion with J.L.

39Seventh, the applicant testified that she went to D.C.’s office on his birthday, and yet she was not able to recall that his office was filled with balloons until after being prompted by respondent counsel. In her final submissions, the applicant dismissed this as a minor and irrelevant point. I agree that, in the context of all of the other concerns about the applicant’s evidence that I have detailed, this is a relatively minor point. But it nonetheless concerns me that, if the applicant did go to speak with D.C. on his birthday as she says, then how could she not recall that his office was filled with balloons and how could she initially describe his office as “sparse”?

40Finally, if I were to accept the applicant’s evidence, I would need to accept two significant things. First, I would need to accept that an experienced human resources manager made an explicitly age-ist comment that he was only comfortable mentoring younger people (or not comfortable mentoring older people). I appreciate that these kinds of explicitly age-ist comments sometimes get made, and that it is more common for explicitly age-ist comments to be made in this day and age than, for example, explicitly racist comments. However, in the overall context of my concerns about the credibility and reliability of the applicant’s evidence, I think it important as one factor to consider the relative unlikelihood of an experienced human resources manager making this kind of explicitly age-ist comment.

41Second, I would need to accept that when this explicitly age-ist comment was reported to the director in a discussion where the applicant says she expressly reported that she believed she was experiencing “age discrimination and bullying”, the director took no steps to advise the applicant of her rights under the WDHP policy and took no action himself under that policy. And I would need to accept this, even though the undisputed evidence before me is that a little over a month earlier, this same director had required staff to familiarize themselves with the WDHP policy as a result of concerns raised within the SBU; and shortly after the alleged November 2009 discussion, this same director took steps to engage an external facilitator under the WDHP. In other words, at the time of the alleged November 2009 discussion, J.L. would have been very alive to the WDHP policy and its requirements. And yet I am being asked by the applicant to accept that J.L. did nothing (apart allegedly from transferring D.C.) when expressly confronted with an allegation of age discrimination and a specific and explicitly age-ist comment by one of his managers. In my view, such a conclusion is not consistent with logic and experience.

42As a result, having carefully considered all of the evidence before me, I conclude that the applicant’s evidence is not sufficiently reliable or credible to support her allegation that D.C. made the comment as alleged.

43For all of these reasons, the Application is dismissed.