Mohammed Irfan Ahmed v. Jirah Networks Inc., 2013 HRTO 1786

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammed Irfan Ahmed

Applicant

-and-

Jirah Networks Inc. and David John

Respondents

DECISION

Adjudicator: Mark Hart

Date: October 23, 2013

Citation: 2013 HRTO 1786

Indexed as: Ahmed v. Jirah Networks Inc.

APPEARANCES

Mohammed Irfan Ahmed, Applicant

Self-represented

Jirah Networks Inc. and David John, Respondents

Self-represented

Introduction

1This is an Application dated August 12, 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.

2In summary, the applicant alleges that he was subjected to age-related comments by the personal respondent and ultimately lost his employment because of his age.

3The hearing in this matter was held on July 10, 2013. I heard evidence from the applicant and the personal respondent. In accordance with my powers under the Tribunal’s Rules of Procedure, I conducted the initial questioning of both parties, and then afforded them an opportunity to cross-examine each other. After the evidence was completed, I heard the parties’ final submissions. As discussed in greater detail below, before the hearing concluded, I invited the parties to call witness evidence to assist in resolving the credibility issues before me. For the reasons discussed below, this witness evidence was not forthcoming. The final opportunity to provide this evidence expired on September 6, 2013.

REQUEST TO ADD DAVID JOHN AS PERSONAL RESPONDENT

4On July 9, 2013, the applicant filed a Request for Order seeking to add David John as a personal respondent to this proceeding. At the hearing, I advised the parties that I would not deal with this request separately at the outset of the hearing. Rather, I proposed to hear all of the evidence relevant to the issues in dispute, after which I indicated that I would hear any final submissions from the parties, including any submissions on whether David John should be added as a personal respondent.

5David John is the principal of the corporate respondent. It is his conduct that is directly at issue in this proceeding. He has been acting on behalf of the corporate respondent throughout this matter, and has had notice of all matters dealt with throughout the course of this proceeding. He appeared personally at the hearing, and was given full opportunity to respond to all allegations.

6In addition, during the course of the hearing, Mr. John advised that, while the corporate respondent has not yet been dissolved, it is no longer in operation and has no assets.

7In these circumstances, it is my view that it is appropriate to add Mr. John as a personal respondent, and that no prejudice is caused to him by doing so. The title of proceeding has been amended accordingly.

REVIEW OF EVIDENCE

The parties

8The applicant was 18 years old at the relevant time. He states that he graduated from high school in June 2010. Prior to the events at issue in this proceeding, the applicant’s paid work experience consisted of having worked for a local MP for a period of time as a youth advocate and part-time as an inside sales representative for a water treatment company.

9The corporate respondent is a company registered in August 2010. Its main business is to assist businesses primarily with website design and on-line marketing tools, such as search optimization. The personal respondent is the principal of the company. The corporate respondent is no longer in operation and currently has no assets, though it has not been dissolved or closed yet. The personal respondent states that the IT market has been hit hard and, due to the fact that the web design business has become more accessible, the company was not able to make any profit or sales.

Applicant’s evidence

10The applicant states that he became aware of job openings for sales representatives at the corporate respondent through the internet, and he applied on-line sometime in the latter part of July 2011.

11The applicant was contacted by the personal respondent on July 29, 2011, to schedule an interview for the following day, which was a Saturday. On July 30, 2011, the applicant met the personal respondent in the company’s parking lot and went into his office. The applicant describes the interview as a pleasant encounter with a lot of joking, and he believes that he was able to establish a connection with the personal respondent. The applicant states that at the time, the personal respondent looked like he enjoyed the applicant’s company and what the applicant had to say.

12The applicant states that when they got to the office, the personal respondent looked at him and said with a smile, “How old are you?” The applicant states that he did not respond, as he is aware that this is something that is not supposed to be asked. The applicant states that he just laughed the question off, and the personal respondent did not ask again.

13The applicant states that the personal respondent said that the applicant’s resume was not as strong as what he was looking for, but that he saw some potential. The applicant states that the personal respondent said that although the applicant looked and sounded young and was pretty inexperienced, he was willing to give the applicant a chance. He states that he is crystal clear in his recollection that the personal respondent offered him the job with a two to three week trial, and he is “almost positive” that the personal respondent said that the job was his.

14The applicant states that he was told by the personal respondent that the training would start on the upcoming Thursday or Friday. On Wednesday, August 3, 2011, having heard nothing further from the personal respondent, the applicant states that he sent an e-mail inquiring as to when the training would start. The applicant states that he received a call from the personal respondent telling him that the training had been moved to Monday, August 8, 2011.

15The applicant states that on Sunday, August 7, 2011, he called the personal respondent on his cellphone looking for confirmation about the training. The applicant states that the personal respondent said that he would definitely call him back on the Monday morning. The applicant states that he also inquired as to whether all of the positions had been filled, as he understood there were 10 openings. The applicant states that the personal respondent said that not all positions had been filled, but that he still had many résumés to go through. The applicant later sent an e-mail to the personal respondent about his brother-in-law, who had the same inside sales experience with the water treatment company as the applicant.

16The applicant states that he did not receive a call on the Monday morning. He states that he got a call from the personal respondent late that afternoon to tell him to come for training the following day. The applicant states that the personal respondent told him that training would start on the Tuesday morning, and did not tell him that training had already started on the Monday. The applicant states that this was a very short conversation.

17The applicant states that he arrived on Tuesday, August 9, 2011, and was called into the personal respondent’s office. The applicant states that the personal respondent said, “Mo, I don’t want you to let your age be known” and told him that the other trainees would not respect the applicant if they knew his age. The applicant states that the personal respondent said that if the applicant was asked about his age, he should tell the other trainees that he was 23. The applicant states that he is clear in his recollection that the personal respondent said these things to him.

18The applicant states that he proceeded with the training, and nothing else of relevance occurred that day.

19The applicant states that on Wednesday, August 10, 2011, he inquired about his employment contract. He states that the previous day, he had spoken to the other trainees and found out that they had signed contracts. He recalls that the personal respondent was doing a pass around the work stations, and so he inquired about his contract. He states that the personal respondent just carried on walking by and did not say anything in response.

20That day, the trainees were working on the script that they would use for calling potential customers. The applicant states that he was the second trainee to hand in his script. In evidence before me, the applicant provided a copy of the script that he says he handed in. This is disputed by the personal respondent. In any event, the applicant states that the personal respondent took his script and put it up against the wall and started making changes to it. The applicant states that the personal respondent ridiculed him in front of the entire office, saying that the applicant’s script was grammatically incorrect and unprofessional, that no educated client would stand for this, and that they might even label the applicant as “stupid”. The applicant states that this happened right next to his work station.

21The applicant states that shortly after this, there was a meeting with all the trainees. The applicant states that the personal respondent made it clear that he wanted the scripts to be very professional, as this represented the company’s first interaction with potential clients and first impression is everything. The applicant states that he remembers the personal respondent saying word for word in that meeting that he did not want someone to say, “Irfan is just another kid and lose respect and hang up”.

22The applicant states that he filled out his employment tax forms at 4 p.m. that day, which included filling out his date of birth. He states that he handed in these forms to the company secretary.

23He states that he was called in to the personal respondent’s office at around 5 p.m., and was questioned about what he could produce and what he could offer to the company. He states that he was asked about his grammar and writing skills. The applicant states that he told the personal respondent that perhaps his script was rushed, as he was the second one to hand it in and had wanted to beat everyone else, and perhaps that was why it was as bad as the personal respondent thought. While he says that he did not agree with the personal respondent’s assessment of his script, he acknowledges that he did say to the personal respondent that it was not a case where did not recognize his mistakes. He states that the personal respondent told him that if he made another mistake like that, the applicant would be let go. The personal respondent also said that the applicant would be under his direct supervision from this point.

24On the evening of August 10, 2011, the applicant created what he refers to as a “work log”, to set out his recollection of events. This work log is consistent with the evidence given by the applicant at the hearing. The documents before me show that the applicant e-mailed this work log to himself at 7:30 p.m. on August 10, 2011.

25On Thursday, August 11, 2011, the applicant was called into a meeting with the personal respondent at 2:45 p.m. The applicant made an audio recording of this meeting on his iPhone, but his battery died as the initial meeting ended. The applicant acknowledges that the personal respondent did not say anything about his age in that discussion. The audio recording reveals that the personal respondent expressed concerns about the applicant’s grammar and writing style. The personal respondent wanted the applicant to write an essay by hand without the aid of his computer, as the personal respondent said he had done previously with other trainees.

26The applicant states that he was assigned to write an essay about media. The applicant did not retain a copy of this essay, as he states that he handed it in to the personal respondent. The applicant states that he wrote about the internet and made his essay as perfect as he could. He states that his essay was well structured and very neat. He states that he wrote about how internet media was going to be the future, how it started from nothing in the 1980’s and now was used every day by almost half the planet. He states that he made the point that as the world develops, access to the internet grows and people are more inclined to use the internet for whatever their everyday requirements might be. He states that he wrote exactly three pages, which was the assigned page limit, and that his writing was double-spaced.

27He states that when he was done, he brought his completed essay to the personal respondent. He remembers that the personal respondent read his essay and was very quiet, and then the personal respondent started writing on the essay and saying, “This is wrong, this is wrong”. He states that the personal respondent liked the fact that the applicant had written about the internet, but he had wanted the applicant to focus not just on the internet but also on other media, like newspapers, radio, and television. The applicant states that he and the personal respondent started going back and forth about the essay, and the applicant thinks that the personal respondent was taken aback that the applicant was responding to his critique. The applicant cannot remember exactly what the personal respondent said, but states that the personal respondent’s mentality was, “you don’t talk back to me”.

28The applicant states that he specifically asked the personal respondent whether he was losing his job because of his age or because of his communication skills. He states that he tried to present this as a joke. He states that the personal respondent said that the applicant was a very young man and just a high school graduate. He states that the personal respondent then paused and said, “What would you have me do?” The applicant states that it was obvious to him that it was a poisoned environment, so he leaned back in his chair and asked if he could clear out his desk. The applicant acknowledges that the personal respondent never told him that he was fired in so many words, but just nodded and followed the applicant to his desk while he cleared it out.

Personal respondent’s evidence

29The personal respondent states that at the relevant time, the company was in the process of setting up a new sales area. As of July 2011, he states that he already had five or six sales representatives working for the company, but was left with only three sales representatives when he was moving to the new sales area. As a result, he wanted to recruit an additional eleven sales representatives.

30The personal respondent has little recollection of the job interview with the applicant, as he was doing many interviews at the time. He denies offering a job to the applicant at that time. He states that unless a candidate is exceptional, he will not provide a commitment at the initial interview. Rather, he states that his practice is to tell candidates that he will contact them if he decides to offer them a position.

31The personal respondent denies asking the applicant about his age, or making the statement that although the applicant looked and sounded young and was pretty inexperienced, he was willing to give him a chance. He states that he has never crossed the line when interviewing candidates, by asking about their age, nationality or religion. He states that all he cares about is whether they can do the job.

32He states that he has hired people of all ages to work for him. He recalled one salesperson who worked for him in 2001 who was very young and was not even a high school graduate. Among the batches of trainees who were hired around the time the applicant was hired, the personal respondent states that there was one young woman who appeared to be about 19 or 20 years old. He states there were other young people in these batches of trainees, by which he means anyone younger than 40.

33The personal respondent states that he made the decision about who was coming in for training about one week or so prior to the start of training. He estimates that he interviewed about 30 to 35 people for the batch of trainees that ultimately included the applicant.

34The personal respondent states that following the initial interview, the applicant called him many times. He states that when he sends an invitation for an interview, his cellphone number and e-mail is shown. He states that, instead of calling the office number, the applicant started calling his cellphone directly, which is not the usual thing for a candidate to do. The personal respondent states that the applicant was persistent in saying that he needed the job and wanted to be given a chance. This is denied by the applicant.

35The personal respondent states that at the initial interview, he told the applicant that there would be training as part of the process. He states that the applicant asked when the training would start, and the personal respondent told him. He states that the applicant then started calling him to find out whether he had been selected and when the training would start. The personal respondent states that if the applicant asked when training was happening, he would tell him.

36The personal respondent denies that he told the applicant that he was being offered a job or that he would be part of the training that was starting on Monday, August 8, 2011. He states that when anyone is offered a job, confirmation goes to that person in writing with details regarding the job and when training would start. The personal respondent states that either he would send an e-mail personally or would call them to provide all of the details. He states that job contracts were prepared for the trainees who started the training on August 8, because they have to agree on the job terms and conditions. He states that he cannot remember if all of the trainees who started on August 8 had job contracts. He states that if he has time, he will prepare the contracts; if not, then he may prepare them maybe a week later. But he states that he always tells trainees in advance details about the job, including salary and commission.

37The personal respondent states that he has a distinct recollection that the applicant called him on his cellphone on Saturday, August 6, 2011, and not on Sunday as alleged. The personal respondent states that at the time of the call, he was in Mississauga with his wife and spent 30 minutes on the phone with the applicant, and his wife was very annoyed. The personal respondent states that the applicant said that he could bring more people on board, and that he has a network due to the local MP that he had worked for. The personal respondent states that he told the applicant that he might be able to give him a chance and bring him on board, and would see what he could do. The personal respondent states that the applicant was desperate to be in on the Monday training, but he was not prepared to offer the applicant a position at that time.

38The personal respondent denies telling the applicant that he would definitely call him on the Monday morning, as the personal respondent would be engaged in providing the training at that time. Rather, the personal respondent says that he told the applicant that if something came up, he would give him a call.

39The personal respondent states that he had selected about 12 people for the training, but two did not show up. The personal respondent states that the applicant was calling the receptionist that day (August 8), saying that he wanted to speak with the personal respondent. The personal respondent states that after he had finished the training, he called the applicant. Because two people had not shown up for the training and because of the applicant’s persistence in calling, the personal respondent says that he decided to give the applicant a chance and invited him to come for training the following morning. The personal respondent denies telling the applicant that the training was starting on the Tuesday. He states that this would make no sense, since the applicant would be sitting with people who had started training the previous day. He states that the training lasted for three to five days, so it was not a situation where the training only took place on one specific day.

40The personal respondent denies meeting with the applicant at 8:45 a.m. on Tuesday, August 9. He states that the training started at 9 a.m., and just before the training he needs to prepare himself for the presentation and does not have time to talk to people. He states that on this day, the applicant was taken straight into the training room by the receptionist. The personal respondent states that he is certain that he did not even have a short conversation with the applicant prior to the training, and he denies making any statement about the applicant telling other trainees that he was 23 years old if asked. The personal respondent states that he did not even speak with the applicant individually that day.

41With regard to the job contracts, the personal respondent states that these are prepared by the receptionist, though he confirms the specific numbers that go on the contracts. He states that the applicant was not given a contract because he had arrived one day late for the training, and so the contract had not been prepared ahead of time.

42The personal respondent disputes that the version of the script entered into evidence by the applicant is what the applicant prepared on August 10. He states that the company’s script is two pages long, because there are so many things to cover, such as the nature of the company, its products and price. The script that the applicant says he prepared on August 10 is less than half a page in length, and contains little detail about the company’s products and no information about price.

43The personal respondent states that preparing the script was part of the training. He states that trainees were given the task of preparing a script to show what they had learned from the training room and whether they grasped how they were going to approach a potential customer.

44The personal respondent states that he remembers very well what he criticized about the applicant’s script. He states that he was passing by where the trainees were working, and he saw the applicant’s script. He states that when he read the script, the opening line was “this has come to my attention”. He states that this bothered him, and he asked what this was all about. He states that this is legal terminology, and that this kind of language is not used in sales. The personal respondent states that he told the applicant to stop and that he needed to look and see what the applicant was doing, because his language was very legal. The personal respondent states that he told the applicant that he cannot use this kind of language. He states that the applicant had already influenced two other trainees and they had opened their script in the same way, so he had to talk to three or four people at once about this use of language. He states that he told them that this was not the right way of doing the script. He also states that he pointed out grammar mistakes and told them that they were going to be communicating with people through e-mail as well as on the phone, and so they needed to make sure that they used proper grammar and approached people properly.

45The personal respondent denies making any reference to the applicant’s age in the course of this discussion. He does acknowledge telling the applicant that his script was grammatically incorrect and unprofessional. The personal respondent denies saying that “no educated client would stand for this”. He states that the term he would use is that, if they were reaching out and using this type of language, how will the customers trust us; he states that the customers want someone to help them, and, as sales persons, if they were not presenting themselves in a professional way, how much were customers going to trust them. The personal respondent also denies saying that the customer might even label the applicant as “stupid”. He states that he does not use this kind of language, and does not tolerate his employees using this type of language.

46The personal respondent also denies saying later at a meeting with the trainees that, if they were unprofessional, the customer would say “oh Irfan’s just another kid” and lose respect and hang up. He states that he would not single out someone like that.

47The personal respondent states that he did not see the tax forms filled out by the applicant at any time before the applicant left his employment. He states that these forms are for payroll, and have nothing to do with him.

48The personal respondent does not recall calling the applicant into his office at the end of the day on August 10. He acknowledges that he possibly could have called the applicant into his office and just does not remember, but he does not think that he would call the applicant into his office specifically to talk about the script. He states that he would do that at the time the trainees were working on their scripts.

49The personal respondent states that when he saw the applicant’s script, he was concerned about the applicant’s writing and grammar. He states that it is not an issue of improving a trainee’s skills overnight; he ran a small company and could not afford people to be untrained. The personal respondent is 100% certain that he did not say that if the applicant made another mistake like that, and he will have to let the applicant go. The personal respondent states that he did say that the applicant would be under his direct supervision. He states that he told the applicant that he would be monitoring the applicant’s work, because now he was worried about the applicant. The personal respondent states that he could have said this on the same day he criticized the applicant’s script.

50With regard to the events of August 11, the personal respondent states that the reason he asked the applicant to write the essay was because the applicant had been given one complete day to write his script, but nothing further had been presented by the applicant and the personal respondent had not seen any progress. He states that, as a manager, he wants everyone to perform, so he called the applicant into his office. He states that he said that he had an issue with the applicant’s professional language as used in business. So he told the applicant that, because he did not just want to judge the applicant and let him go, he asked him to write something to prove that he has writing skills without the assistance of a computer, and the applicant agreed.

51The personal respondent states that he asked the applicant to write the essay in the training room, which was next to the personal respondent’s office. The personal respondent states that the applicant sat there for about two hours. He states that after two hours, the applicant came out empty-handed, came into the personal respondent’s office, and said he wanted to leave. The personal respondent states that he asked the applicant about the essay, and the applicant said he did not want to do it. The personal respondent states that he asked the applicant, “if you were in my position and someone behaved this way to you, what would you do?” The personal respondent states that he was very polite and gentle with the applicant. The personal respondent states that the applicant said he just wanted to leave, to which the personal respondent replied, “If this is what you want”.

52The personal respondent states that he had asked his secretary to monitor the applicant when he was supposed to be writing the essay in the training room, and that she could confirm that he did not write the essay. However, this person was not called to testify as a witness before me, and so I will not place any weight on the personal respondent’s evidence about what this person saw or could confirm.

53The personal respondent takes issue with the applicant’s statement that his essay was double-spaced. He states that they never had lined paper in the office and the applicant was given blank paper to write on. In reply, the applicant stated that if he was writing on blank paper, then he would have written to leave plenty of space between lines; although he believes that he was writing on a notepad of some kind.

The audio recording

54As indicated above, the applicant made an audio recording of his meeting with the personal respondent on August 11 prior to going into the training room to write the essay. On this recording, the personal respondent states that he is concerned about the applicant’s language skills and asks him to write an essay on media without the assistance of a computer. The personal respondent described this as being the applicant’s “final opportunity”.

55The personal respondent states that he would be checking the applicant’s grammar and sentence structure. He states that the issue is not with the way the applicant speaks, but with how he writes. He does not make any reference to the applicant’s age or him being young, although at one point he does note that the applicant is only a high school graduate. The personal respondent states that he has asked others to write essays for him to check their language skills, and makes specific reference to a university graduate whom he had asked to do this.

56On this recording, the applicant acknowledges that the initial script he wrote was “rushed”, and that he was competing with another trainee who was sitting beside him. The applicant further acknowledged that the other trainee’s script was very good, and stated that it was one of the best in the office. The personal respondent replied that he liked a script prepared by another female trainee, but that he would give both of them a “thumbs up”.

57The audio recording ends as the applicant is being moved into the training room to write the essay.

58With regard to the writing paper provided to the applicant to write the essay, I note that on two occasions on the audio recording, the personal respondent refers to giving the applicant a “pad”.

Opportunity for witness evidence

59At the commencement of the hearing, the respondents renewed their request for the hearing to be adjourned to allow them to call witness evidence. I had denied this request in advance of the hearing in an Interim Decision dated July 8, 2013 (2013 HRTO 1187), and so denied the request again when it was renewed at the start of the hearing.

60However, after hearing the stark issues of credibility before me, I raised with the parties the possibility of hearing witness evidence by teleconference at some later point. In particular, it appeared to me that the personal respondent’s secretary may be able to testify as to whether or not the applicant in fact wrote the essay. Further, at least one of the comments about the applicant being “young” is alleged to have been made at a meeting in front of the other trainees, and it appeared to me that one or more of them may be able to provide evidence as to whether any such comment in fact had been made.

61Accordingly, after raising this matter at the hearing, I issued a Case Assessment Direction (“CAD”) dated July 11, 2013 to confirm the directions that I had given. The first step in the process was for the respondents to provide the full names and contact information for the secretary and the other trainees. The personal respondent subsequently wrote to the Tribunal to advise that he had been unable to find this information, as the company documents containing this information had been disposed of. He requested and was granted additional time to try to locate this information by CAD dated July 24, 2013.

62When I did not hear anything further from the respondents, I issued a further CAD dated August 23, 2013, affording the respondents one final opportunity to provide the information about these potential witnesses. I noted that if I did not receive any further response by September 6, 2013, I would proceed to make my decision on the basis of the evidence and submissions of the parties at the hearing on July 10, 2013, and I would consider whether to draw an adverse inference against the respondents for the failure to call witnesses or provide contact information for potential witnesses that they claim would have supported their position.

63No further information was received from the respondents by September 6, 2013 or to date.

ANALYSIS AND DECISION

64The 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.

65Obviously, this case raises stark issues of credibility. The applicant says he was offered the job at the initial interview; the personal respondent says he was not. The applicant says that the personal respondent made a series of comments about his age; this is denied by the personal respondent. The applicant says he wrote the essay on his last day; the personal respondent says he did not. And I have no third party witness evidence to help me navigate through these disputes.

66Accordingly, I need to make my assessment of credibility based upon my assessment of the evidence given before me and applying logic, common sense and experience.

67In 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.

68I 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.

69With regard to the initial interview, it does not make sense to me that the personal respondent would have offered the job to the applicant on the spot. The applicant did not have a lot of prior work experience, although he had done some part-time work in sales. While he struck me as a likeable, energetic and enthusiastic individual, he is not the kind of outstanding candidate that one would expect the personal respondent to hire on first meeting. I note that at a later point, during their telephone conversation on the weekend of August 6 to 7, the applicant’s own evidence is that the personal respondent was still going through résumés.

70The applicant’s position that he was offered the job at the initial interview also is not consistent with how events played out. If he had been offered the job, then I do not understand why there would have been any issue about him attending the training when it started on August 8. In my view, the way events occurred is more consistent with the personal respondent’s evidence that two people did not show up for the first day of training, and so the personal respondent decided to give the applicant a chance. In my view, I do not need to resolve the issue of whether the applicant attempted to contact the personal respondent on two occasions in the interim, as the applicant says, or on many occasions, as the personal respondent says. The bottom line is that I find that the personal respondent ultimately decided to give the applicant a chance and called him in to attend the second day of training. This, in my view, provides a reasonable explanation for why the other trainees received contracts, while the applicant did not.

71On the other hand, I accept the applicant’s evidence that the personal respondent made the age-related comments as alleged. Of greatest significance to me is the fact that the applicant created his “work log” at or around the time that the comments were made. Indeed, with regard to the comments alleged to have been made on August 10, the applicant created this document on the very same day. I am aware that the personal respondent points to the fact that the applicant contacted the Ministry of Labour and this Tribunal very shortly after his employment ended, in support of his submission that this was “pre-meditated” and a “set up”. However, I see this as an expeditious effort by the applicant to pursue wrongs that he believes he experienced, before the lapse of time allowed his memory to become encrusted with ruminations over past events.

72I also am of the view that the comments alleged to have been made are more consistent than not with the balance of probabilities. At the relevant time, the applicant was a high school graduate with little work experience. He also is quite youthful looking. In this context, it would not surprise me that, at first meeting, the personal respondent would ask the applicant how old he was, or make reference to the applicant looking and sounding young and being pretty inexperienced.

73The next alleged age-related comment occurred on the morning of August 9, when the applicant came in for his first day of training. I do not accept the personal respondent’s evidence that he would have had no time to meet, even briefly, with the applicant prior to the commencement of training that day. Rather, it makes more sense to me that, as the applicant was starting the training one day late, the personal respondent might want to meet with him briefly before the training started. I find that the personal respondent did meet with the applicant on that morning as alleged, and made the comments about the other trainees not respecting the applicant if they knew his real age and for the applicant to tell them that he was 23 years old if asked. These are very specific and striking comments, that were recorded by the applicant when he created his work log the very next day.

74I further find that on August 10, the personal respondent made the comment in reference to the applicant, that he wanted the sales representatives’ calls to be received professionally and did not want the potential customer to say, “Oh Irfan’s just another kid”. This was noted by the applicant on the very day the alleged comment was made.

75Finally, on August 11, in the meeting in the personal respondent’s office after the applicant had been given time to write the essay, I find that the personal respondent made reference to the applicant being “a very young man and just a high school graduate” as alleged in the Application. I note that on the audio recording, the personal respondent clearly makes reference to the fact of the applicant being “just a high school graduate”. The comment as noted in the Application is alleged to have been made by the personal respondent in response to the applicant’s question about whether the issue was his age or his communication skills. In my view, in the overall context of the evidence, it is more likely than not that the personal respondent made the comment as alleged.

76The more vexing question is whether the applicant lost his employment because of his age. In my view, this does not make sense. If the applicant’s age was the predominant issue for the personal respondent, then it does not make sense to me that he would have given the applicant a chance at all and brought him in for training. The audio recording supports the personal respondent’s evidence that his issue was with the applicant’s language skills.

77I am not confident that I have in evidence before me the actual script prepared by the applicant on August 10. A number of draft scripts were filed by the applicant, and while he testified that he believed that one script in particular was his first draft, he was not certain in his evidence. The personal respondent had a very clear and specific recollection as to the opening language used by the applicant in his initial script, to which the personal respondent took exception as being too legalistic. I do not see that language used in any of the draft scripts submitted by the applicant. As a result, given the applicant’s lack of certainty and the personal respondent’s clear recollection, I find that I do not have the applicant’s initial script in evidence.

78I note also that in the audio recording, the applicant acknowledged that his initial script was rushed because he was competing with another trainee, and he further acknowledged that this other trainee’s script was better. While the applicant may disagree with the personal respondent’s criticisms of his initial script, his own evidence at the very least provides support for the conclusion that his initial script was not as good as at least some of the other trainees.

79I do not believe that it is strictly necessary for me to resolve the dispute between the parties as to whether or not the applicant actually wrote the essay. Even if I were to accept the applicant’s evidence, the fact remains that he was assigned to write an essay about media and he wrote an essay solely about the internet. In this context, I find that the personal respondent’s criticism (according to the applicant’s evidence) that the applicant did not write about other media is fair. Without actually being able to see the essay, I cannot comment about whether there were spelling, grammar or sentence structure errors. But I do note that the personal respondent’s evidence was that he took issue with the applicant’s language style as not being appropriate for a sales environment, and that the issue of language skills was the only issue raised by the personal respondent on the audio recording. As a result, having weighed and considered all of the evidence, I find on a balance of probabilities that the respondents’ concern about the applicant’s language style and skills was not a pretext for discrimination and was the predominant reason why the applicant’s employment ended.

80At the same time, given the age-related comments made by the personal respondent, I find that the applicant’s age was nonetheless at least a factor in the ending of his employment. I do not share the applicant’s belief that the personal respondent came to know his true age by looking at the tax forms completed by him on August 10. I accept the personal respondent’s evidence that this was a payroll matter with which he would not be concerned. However, based upon the comments I have found were made, the personal respondent clearly viewed the applicant as someone who was “very young”, and I find that this perception was at least a factor in the ending of the employment relationship.

81With regard to the personal respondent’s position that the applicant left his employment and was not terminated, I note that both parties are in agreement that the applicant asked to leave. However, on the audio recording, it is clear that the personal respondent told the applicant that writing the essay was his “final opportunity” to demonstrate that he had the skills required for the job. In this context, I find that it was the personal respondent’s intention to end the employment relationship if the applicant did not complete the essay to his satisfaction, which on either party’s evidence, the applicant did not.

82Accordingly, I find that the respondents discriminated against the applicant in respect of employment because of age in violation of s. 5(1) of the Code, both by making the age-related comments as alleged and because the applicant’s age was a least a factor in the ending of his employment.

REMEDY

83Given my findings of fact, the applicant is not entitled to compensation for lost earnings as I have found that the predominant reason for the ending of the employment relationship was due to the personal respondent’s view of the applicant’s language style and skills.

84The applicant is, however, entitled to some amount of monetary compensation for injury to dignity, feelings and self-respect arising out of the violation of his rights. In assessing this head of compensation, the Tribunal primarily considers two main factors: first, the objective seriousness of the conduct at issue; and second, the impact on the applicant.

85With regard to the objective seriousness of the conduct at issue, I have found that over the course of a couple of weeks, both at the interview and after the applicant was hired, the personal respondent made several references to the applicant’s young age. While I certainly appreciate the applicant’s sensitivity to such comments and while I have found them to be in violation of the Code, I do not find that in the surrounding social context, comments about a person being young have the same sting, for example, as racial epithets, sexualized comments, or even age-related comments directed at older workers. As a result, in my view, this factor militates toward the lower end of the scale.

86With regard to the impact on the applicant, he relied upon his evidence from the impact statement given at the time he filed his Application. In this statement, he makes reference to feeling greatly depressed, having headaches, feeling heavy anxiety, having lost his appetite, and having anti-social tendencies. I do not have any medical evidence before me to support this. Further, from his statement, it appears that these impacts stem largely from the impact on his self-confidence of losing his employment, which I have found to have been for predominantly non-discriminatory reasons, as opposed to solely being attributable to the comments which form the basis of my finding of a violation of the Code. Accordingly, I do not place a lot of weight on the impact statement given by the applicant as part of his Application.

87Having considered the relevant factors, in my view an appropriate award of compensation would be in the amount of $2,000.

88With regard to non-monetary remedies, the applicant seeks in his Application a formal apology from the respondents. In my view, a forced apology is not an appropriate remedy to award. The applicant also seeks for the personal respondent to be disciplined. Given the remedial purposes of the Code and the fact that the company is no longer in operation, I also do not think this is an appropriate remedy. The findings made in this decision and the monetary remedy awarded will need to suffice.

89Finally, the applicant seeks for the corporate respondent to develop an anti-discrimination policy. If the company were still in operation, this certainly would be an appropriate remedy. However, that is not the case. However, I do note that the personal respondent remains in business and is involved in other ventures. In this regard, I think it appropriate to order him to take the on-line course offered by the Ontario Human Rights Commission on its website called “Human Rights 101” and to confirm to the Tribunal and the applicant that this has been done.

ORDER

90For all of the foregoing reasons, I hereby make the following order:

a. The respondents, jointly and severally, shall pay to the applicant the sum of $2,000.00 as compensation for injury to dignity, feelings and self-respect;

b. Post-judgment interest at the rate of 3.0% per annum shall accrue on any amount unpaid more than 30 days after the date of this Decision; and

c. Within 30 days of the date of this Decision, the personal respondent shall take the on-line course offered by the Ontario Human Rights Commission on its website called “Human Rights 101” and confirm to the Tribunal and the applicant that this has been done.