HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kelly Delavalle
Applicant
-and-
Waterfront Inn (Sault) Ltd., Paula Brown, David Hornstein and Carla Monchka
Respondents
DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Delavalle v. Waterfront Inn (Sault) Ltd.
APPEARANCES
Kelly Delavalle, Applicant ) Beth Walden, Counsel
Waterfront Inn (Sault) Ltd, )
Paula Brown, David Hornstein ) Augusto Palombi, Counsel
and Carla Monchka, Respondents )
Introduction
1In her Application, the applicant alleged that the respondents discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that the respondents failed to hire her for the position of front desk clerk in or around February 2011 due to a condition relating to her vocal cords which affects her voice.
2The respondents take the position that the applicant does not have a disability within the meaning of the Code. They also claim that they never perceived her to have a disability. They submit that the reason she was not hired for the front desk position was because they considered the successful candidate to be more suitable for the position.
3For the reasons that follow, I find that the applicant has not met her onus of establishing discrimination on a balance of probabilities. Accordingly, the Application is dismissed.
Factual Background
4Much of the evidence was not in dispute. Where it is necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so below.
Applicant’s Vocal Cord Condition
5The applicant was born with polyps on her vocal cords. She has had surgeries / biopsies to remove some of the polyps. Her doctor told her that the polyps prevent her vocal cords from working the way normal vocal cords would. Her voice has cleared up somewhat due to the surgical removal of the polyps. She testified that the respondents, with whom she has been employed in a position other than the one which is the subject of this Application, knew about her vocal cord surgeries because she had to book time off work for them. The applicant is able to speak more clearly now than she has in 40 years. However, she described her voice as “hoarse” or “raspy”.
6The applicant does not consider herself to have a disability. She believes that other people may have problems with her voice but she is able to function as normally as anyone else. The applicant testified that she has no problems communicating with others. However, she often gets teased about her voice. She said that she could not repeat some of the comments made to her when she was younger. According to the applicant, currently, people often remark that she must have a bad cold or laryngitis.
7In addition to her vocal cord polyps, the applicant also testified that in the last year she has had to take time off work due to problems with her feet. She testified that she has been diagnosed with chronic osteomyelitis which is an infection of the bone marrow in her feet. The medical evidence admitted with respect to this foot condition relates to the period after April 2012.
Applicant’s Employment with the Corporate Respondent
8The corporate respondent operates a hotel in Sault Ste. Marie. The applicant became employed with the corporate respondent as a house keeper in August 2008.
9Between 2008 and 2011 several other housekeeping employees were cross-trained to work the front desk. It was not disputed that most of these employees went on to work at the front desk, either full-time or part-time.
10There is also no dispute that, sometime in mid-2010, Ms. Monchka, the hotel’s General Manager, asked the applicant whether she would be willing to be trained to work the front desk. The applicant declined the offer at the time because she felt that she was getting enough hours in her housekeeping position. She also felt there was “too much drama” at the front desk. At the time, Ms. Monchka approached the applicant, it was to be trained as “back up” for the front desk. However, both Ms. Monchka and Paula Brown, the Operations Manager overseeing the hotel, testified that, if the applicant had agreed to be trained, there was a possibility that it would have led to a full-time or part-time position for her, as was the case for most other housekeeping employees who had been trained to work the front desk.
11In or around late September 2010, the corporate respondent changed its policy with respect to cross-training. At the request of the housekeeping staff, the corporate respondent discontinued its policy/ practice of cross-training housekeeping staff to work the front desk.
Applicant’s Attempts to Work the Front Desk
12In or around September 2010, Pamela Johnson, the hotel’s front desk manager, asked the applicant if she would be willing to be trained to work the front desk. The applicant agreed because it was a slow time at the hotel during this time and it would allow her to pick up some extra hours. Both Ms. Johnson and Kelly Eaton, one of the front desk clerks, suggested to Ms. Monchka that the applicant should be cross-trained to work the front desk. The applicant testified that management told her they did not want to train her and did not provide any valid reason for their decision. Ms. Monchka testified that the reason that management declined to cross-train the applicant was because, by that time, they had discontinued the practice of cross-training housekeepers to work the front desk. I accept that this was the reason for refusing to cross-train the applicant. It was not disputed that by September 2010, the corporate respondent had eliminated its practice of cross-training housekeeping employees to work the front desk.
13On February 11, 2011, the applicant approached Ms. Monchka to ask whether she could be trained to work the front desk. The applicant had heard that one of the front desk employees would soon provide notice that he was resigning. The applicant was receiving very few hours in housekeeping and wanted to pick up extra shifts at the front desk. Ms. Monchka told the applicant that she could not be trained to work the front desk due to the policy against cross-training. The applicant offered to quit her housekeeping position in order to work the front desk. At this point, Mr. Hornstein instructed Ms. Monchka to make sure the applicant did not resign. He told Ms. Monchka that if the applicant was interested in a front desk position she should complete an application and that she could be interviewed with other applicants.
14In February 2011, the corporate respondent advertised to hire someone to fill a front desk position. The applicant applied for the position. She was interviewed by Ms. Monchka and Ms. Brown. The respondents received several applications for the position and interviewed six candidates. A few days after the interview, Ms. Monchka telephoned the applicant and told her she had an “awesome” interview but that they had decided to offer the position to another candidate who they considered more suitable. Both Ms. Brown and Ms. Monchka testified that they had ranked the applicant as second on the list of six candidates. Both of them testified that they felt that the successful candidate stood “head and shoulders” above all other candidates. They considered the successful applicant to have the kind of energetic and vibrant attitude that was needed for the position. Both testified that they were impressed by the successful candidate’s ability to sell herself in the interview. Both testified that they see sales and communications skills as an important attribute for front desk employees. They also both considered it a plus that the successful applicant was bilingual.
15The applicant testified that the respondents advertised for two more front desk staff in March 2011 after she had filed her Application with the Tribunal. This evidence was supported by a letter the applicant filed with the Tribunal in which she stated that the respondents had conducted another hiring competition in late March 2011. However, there was no evidence before me that the applicant applied for these two additional positions.
Alleged Comments Made by Ms. Monchka
16Sometime in March 2011, after the applicant was not offered the front desk position, Kelly Eaton, one of the applicant’s friends and a former front desk clerk, told the applicant that she believed that the reason that the respondents did not want to hire her was because of her voice. Ms. Eaton testified that some months before the end of her employment with the corporate respondent in June 2010, she and Pamela Johnson, the hotel’s front desk manager, had proposed to Ms. Monchka that the applicant be trained to fill in at the front desk. Ms. Eaton testified that Ms. Monchka said she would have to talk to Ms. Brown about it. According to Ms. Eaton, Ms. Monchka came back and told Ms. Eaton that “they” said the applicant would not be “good for the front desk” due to her voice. Ms. Eaton testified that Ms. Monchka told her that “they” were worried that the applicant’s voice might not be clear on the telephone. Ms. Eaton testified that Ms. Monchka did not specify who “they” were but that, from the context, she assumed it was management. Ms. Eaton testified that she did not tell the applicant about these comments until the applicant was denied the position in March 2011 because she did not want to upset the applicant. Ms. Monchka denied making these comments. Ms. Monchka also noted that she offered to cross-train the applicant to work the front desk after these comments were allegedly made.
17Meanwhile, Pamela Johnson testified that she had raised with Ms. Monchka the idea of the applicant working the front desk. According to Ms. Johnson, Ms. Monchka replied by saying that she was unsure whether the applicant could work the front desk due to her foot problems. Ms. Monchka also denied making this comment.
18It is well accepted that in assessing the credibility of witnesses, an adjudicator must have regard not only to a person’s demeanour while testifying but also the testimony’s “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”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). Ms. Monchka’s demeanour while testifying does cause me some concern about her credibility. Ms. Monchka flatly denied making any comment about the applicant’s voice. At first she said she did not recall making any comment about the applicant’s foot condition but, when pressed in cross examination, denied making the comment. By contrast, both Ms. Eaton and Ms. Johnson appeared forthright in their testimony. Although Ms. Eaton admitted to being friends with the applicant, she provided her testimony in a straightforward manner. Meanwhile, Ms. Johnson is still employed by the corporate respondent and this may be a factor weighing in favour of her credibility she could reasonably be seen to be risking adverse consequences by testifying against her employer.
19On the other hand, a factor that weighs against the comment about the applicant’s voice being made is the fact that Ms. Eaton did not tell the applicant about it at the time. Instead she only came forward with the information after the applicant was not hired for the front desk position in February 2011. Another factor that supports Ms. Monchka’s credibility is that, sometime after making the alleged comment about the applicant’s voice, she offered to train the applicant to work the front desk. This fact was not disputed. It was unclear from the evidence whether the alleged comment to Ms. Johnson about the applicant’s foot condition was allegedly made before or after the offer to train the applicant. Nevertheless, the fact that Ms. Monchka offered to train the applicant to work the front desk around this time is a factor supporting her testimony that she did not make the alleged comments.
20In my view, it is not necessary for me to decide whether Ms. Monchka did in fact make the alleged comments. As discussed below, the fact that Ms. Monchka offered to cross-train the applicant to work the front desk supports the respondents’ position that they considered her capable of working the front desk despite any actual or perceived disabilities. In other words, whether or not Ms. Monchka did make the alleged comments, her subsequent actions indicate that the respondents did not believe that the applicant’s disabilities, whether vocal or foot-related, disqualified her from working the front desk.
Parties’ Submissions
21The applicant’s counsel submitted that the applicant had advanced enough evidence to prove on a balance of probabilities that her disability, or a perceived disability, was at least a factor in why the respondents did not hire her for the front desk position in February 2011. The applicant’s counsel acknowledged that Ms. Monchka had offered to cross-train the applicant to work the front desk sometime after relaying concerns about the applicant’s voice. However, she submitted that the evidence was clear that, at the time Ms. Monchka made the offer, it would have been only to fill in at the front desk as back-up. The applicant’s counsel made a distinction between working as “back-up” and becoming employed full-time. She submitted that Ms. Monchka’s comments about the applicant’s voice and her foot condition lead to an inference that these two perceived disabilities were factors that tainted the hiring for the front desk position in February 2011. Further, she argued that the applicant’s evidence that two more employees were hired to work the front desk in March 2011 provided further evidence that discrimination was a factor for the respondents’ refusal to hire the applicant in February 2011. She also submitted that it provided evidence of ongoing discrimination. Finally, the applicant submitted that I should draw an adverse inference from the fact that the respondents’ counsel had claimed privilege over the application materials for candidates other than the applicant who were interviewed for the front desk position in February 2011.
22The respondents brought two motions to dismiss the Application for failure to make out a prima facie case of discrimination, one at the outset of the hearing and one at the close of the applicant’s evidence. I denied both due to the broad definition of disability in the Code and the Tribunal’s caution, repeated in many cases, that information from a respondent may be the only way an applicant can prove his or her case. On this last point, the Tribunal has accepted that the reasons for a decision are often only known to a respondent. Human rights law recognizes that a respondent’s non-discriminatory explanation may in fact be a pretext for discrimination. Therefore, it is important to ensure that the Tribunal process provides a fair and appropriate opportunity for applicants to obtain evidence through the respondent’s witnesses that would permit them to establish discrimination. See, for example, Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at paras. 11-12.
23In his closing submissions, the respondents’ counsel submitted that the applicant was asking the Tribunal to make a decision in an evidentiary vacuum. He noted that the applicant’s alleged foot problems were not raised as a disability in her Application. He also noted that the only medical evidence of any foot condition admitted at the hearing relates to the period after the hiring competition. Therefore, he argued that no finding of discrimination could be made based on the applicant’s alleged foot disability. He submitted that her vocal condition did not constitute a disability within the meaning of the Code since she had submitted no medical evidence relating to this condition.
24According to the respondents, the fact that Ms. Monchka offered to cross-train the applicant for the front desk position demonstrates that the respondents were not concerned with either her voice or her foot conditions. The respondents submitted that, although cross-training was designed to fill in for emergency situations, the evidence showed that most housekeeping employees who were cross-trained eventually moved into full-time or part-time positions at the front desk. Finally, the respondents submitted that the uncontradicted evidence from the respondents’ witnesses was that the successful candidate stood head and shoulders over all other candidates, including the applicant. With respect to his claim of privilege over the job application materials, the respondents’ counsel admitted that these documents were not privileged per se but suggested that they could not be produced because they were “confidential”.
Analysis
25For the purposes of this decision, I am prepared to accept that the applicant’s vocal cord condition meets the broad definition of disability in the Code, especially due to the inclusion of perceived disabilities within this definition. See s. 10(3) of the Code and Quebec v. Montréal; Quebec v. Boisbriand, 2000 SCC 27 at para. 48. I find that any allegation of discrimination based on the applicant’s foot condition or perceived foot condition falls outside the scope of this Application. The applicant did not make any allegations in relation to her foot condition in her Application, nor did she seek to amend the Application to add any allegations of discrimination relating to her foot condition.
26In human rights cases, the evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. If the applicant makes out a prima facie case of discrimination, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. However, the overall burden remains with the applicant to prove that it is more probable than not that that discrimination was a factor in the respondents’ actions. The case law is clear that discrimination need only be one of the factors involved for there to be a violation of the Code.
27For the purposes of this case, I am prepared to accept that the applicant has made out a prima facie case of discrimination. However, having carefully considered all of the evidence, I am satisfied that the respondent has provided a credible explanation to show that its actions were not discriminatory.
28As noted above, I have concerns about Ms. Monchka’s credibility with respect to whether she made comments that suggest a concern about the applicant’s vocal and foot conditions. However, it was not disputed that sometime after making the alleged comment about the applicant’s vocal condition and around the time she allegedly made the comment about the foot condition, Ms. Monchka offered to train the applicant to work the front desk. This factor provides strong support for the position that the respondents did not believe that the applicant’s disabilities, whether vocal or foot-related, disqualified her from working the front desk.
29The applicant’s case hinges on the distinction between being trained as back-up and being hired for a full-time position. Even if this distinction may be relevant in some cases, a key factor in this case is that it was not disputed that most of the housekeeping employees that had been cross-trained to work the front desk had gone on to fill front desk positions. In my view this is a fact of considerable relevance. In order to find that discrimination was a factor in the February 2011 hiring competition, I would have to conclude that, even though the respondents offered to train the applicant to work the front desk, they had no intention of allowing her to transition to a front desk position for discriminatory reasons. In my view, there was no evidence before me that would support such a finding on a balance of probabilities.
30I am concerned about the respondents’ counsel’s claim of privilege over the job application materials for candidates other than the applicant. These sorts of confidential documents are regularly disclosed in Tribunal proceedings as they meet the disclosure standard of “arguable relevance”. Typically, any privacy concerns would be addressed by redacting any personal information. Having said this, both Ms. Monchka and Ms. Brown testified that, in their view, the successful applicant stood head and shoulders above all other candidates, including the applicant. I have expressed doubts about Ms. Monchka’s testimony regarding the comments she allegedly made about the applicant in the past. Unlike her blanket denial that she made these comments, her testimony in relation to the successful candidate was more detailed and appeared more forthright. In addition, her testimony was consistent with that of Ms. Brown whose credibility I have no reason to doubt. Both testified that they were impressed with the successful applicant’s vibrant demeanour and abilities as a salesperson. Both testified that they thought the successful candidate would best suit the front desk position. Both also testified that the fact that she spoke French was an asset. None of this testimony was shaken in cross-examination or through the testimony of other witnesses.
31As a final point, I am unable to ascribe any significance to the evidence introduced about the March 2011 hiring competition. This hiring competition was a separate competition from the February competition which was at issue in the Application. I also have no evidence before me that the applicant submitted an application in the March competition. Finally, I have insufficient evidence from the March 2011 competition from which I can draw any inference that discrimination was a factor in the February competition.
32Considering the evidence as a whole, and despite the concerns I have expressed above, I find that the applicant has failed to meet the onus of establishing that her vocal disability and/or any perception of disability were factors that contributed to the respondents’ decision not to hire her for the front desk position in February 2011. As noted above, the main reasons for this determination are the undisputed fact that the respondents had in the past offered to cross-train the applicant to work the front desk coupled with the undisputed fact that most housekeeping employees who were cross-trained did eventually move into a front desk position.
Dated at Toronto, this 9th day of May, 2013.
“Signed by”
Jo-Anne Pickel
Vice-chair```