Giusti v. Dr. Monika Spolia Dental Corporation, 2014 HRTO 151

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristina Giusti

Applicant

-and-

Dr. Monika Spolia Dental Corporation

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: January 31, 2014

Citation: 2014 HRTO 151

Indexed as: Giusti v. Dr. Monika Spolia Dental Corporation

APPEARANCES

Kristina Giusti, Applicant

Self-represented

Dr. Monika Spolia Dental Professional Corporation, Respondent

Self-represented

Introduction

1This is an Application filed under section 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 disability.

2During the hearing, I heard evidence from the applicant and her husband, Marco Giusti. I also heard the evidence of Monika Spolia, her husband, Arun Spolia, who is the office manager of the respondent business, and another employee of the respondent business, Melissa Perrin.

3For the reasons that follow, the Application is dismissed.

the law

4The relevant sections of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10(1) In Part I and in this Part,

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

Facts

The Applicant’s Evidence

5The applicant was employed by the respondent business from February 2011 through to January, 2012. She worked as a receptionist and dental assistant. She was also the treatment financial co-ordinator. Her contact with respect to the billing issues was Arun Spolia. Initially, she loved her job and enjoyed working with her boss, her co-workers and the patients. The only difficulty she experienced was related to the volume of work, which was high.

6The billing system being used by the office was being changed over in October, 2011. The billing company suggested shutting down for 2 days in order to manage the change effectively. When she went to Monika Spolia to pass on the suggestion, her employer’s response was that if the applicant could not handle the task, the office would get someone else who could. This response offended the applicant.

7The applicant also testified that on one occasion she had been asked to assist one of the dentists with some equipment because a student assistant was running into difficulty with the tasks. As the applicant had to juggle a number of tasks in order to help the dentist, she was running back and forth from the front of the office and was told by Monika Spolia that she should be medicated. This was extremely upsetting for her and she left the office at 3 p.m. instead of her usual time.

8When the applicant spoke to Arun Spolia about the comment made to her by his wife, she testified that Arun Spolia said since his wife worked with the applicant all the time, maybe she had some insight and saw something that others had not. He also said that the applicant was sometimes “a bit all over the place like (his wife’s) brother”.

9The applicant testified that on Monday, January 23, 2012, she left work to attend a medical appointment. Her husband was driving her to get some eye surgery done. During that drive he spoke to her and told her that both Monika and Arun Spolia had spoken to him about her and suggested that perhaps she had some medical problems that needed treatment. He said that during a meeting with them to discuss flooring, they had sat down with him and gone over a list of problems involving her. She says she was “blown away” and very upset with the Spolias and her husband. She called Arun Spolia that day and told him she was very upset with him and his wife for suggesting that she had a medical condition that needed to be treated and for having had such a discussion with her husband rather than directly with her.

10The next day she went in to work and no one would look her in the eye. She spoke to Dr. Spolia who told her she could leave immediately and get two week’s pay or work out a two week period and leave. She left the office feeling very upset and went home. Later that evening, the Spolias came to her house with their children who went downstairs. They apologized and said they “shouldn’t have gotten into it” and offered to have her come back to her job.

11Because she felt insulted by the things that had been said and done, she asked for the weekend to think about it. By Friday she had made up her mind and called the respondent’s office to tell the Spolias that she could not return after their treatment of her.

12She testified that all of these events were so upsetting to her that she went to see her doctor. He reassured her that she was fine. She presented into evidence a note from her family physician dated March 1, 2012, confirming that she had no medical issues and was fit to work. She says that these events took a toll on her confidence and it took her several months to find another job. She says that she did not start working again until October, 2012 and feels now that she cannot be too friendly with her employer and that some lines should not be crossed.

Evidence of Marco Giusti

13The applicant’s husband, Marco Giusti, testified that he had attended a meeting at the home of the Spolia family a little while before his wife’s employment ended. He was under the impression that the meeting was to discuss installation of flooring in the respondent business premises. However, when he arrived, he was told that the meeting was to discuss his wife and the problems she was having at work. Specifically, they told him that she had to be medicated because she was not doing her job properly. They said Monika Spolia’s brother has the same problem.

14Marco Giusti also testified that the Spolias told him that another dentist in the practice, Dr. Toor, had reported that the applicant had acted unprofessionally in front of a patient and that her co-worker, Melissa, feels that the applicant is scatter brained. The Spolias said that the applicant was causing conflict in the office and, as a result, posing a problem for the practice.

15When he told his wife about this conversation on January 23, 2012, his wife was very upset with him as well as with the Spolias. He says he forced her to go to work on January 24, 2012, to try and work things out. However, within hours he received a phone call from his wife saying Monika Spolia had fired her.

16He asked his wife what had happened and was told that she had a confrontation with Monika Spolia who told her to leave immediately and be paid two week’s salary or work for two weeks and leave her employment at that time. He recalled that they called various government departments to find out what to do next that afternoon.

17At about 8 p.m. that evening, the Spolias came unannounced to their home. At that time, Monika Spolia apologized to him and to the family and said to the applicant that they wanted to see her back at work the next day and they could work this matter out.

18He confirmed that his wife said that she would not go into work the next day and that she would make a decision by that Friday. As his wife decided not to return to work, on Wednesday of the following week, he went to the respondent’s office to pick up her ROE and pay cheque. In the intervening period, Arun Spolia indicated that she was not entitled to the two weeks of pay originally proposed by his wife.

19On February 3, 2012, the applicant received a letter from the respondent offering to pay her one week of salary if she signed a release. Marco Giusti confirmed that the applicant had not signed the release document and that she had, consequently, received no money beyond her final paycheque from the respondent company.

Evidence of Monika Spolia

20Monika Spolia testified that she had a good relationship with the applicant while she worked for the respondent company. She denies making any comments concerning the applicant needing to be medicated. She says that as a health professional, knows the scope of her training and the limitations of that training. She would not venture opinions, she says, on matters beyond her scope.

21She says she was never part of the renovation planning. She left that aspect to Arun Spolia and met Marco Giusti only once very briefly concerning the flooring matter. They met socially for office functions on other occasions.

22She testified about an incident involving Dr. Toor, an associate, who comes into the practice once a week on Wednesdays. On one occasion, she saw some commotion regarding the use of some equipment while the applicant was assisting Dr. Toor. All she said was to take it easy. She did not tell anyone that they needed to be medicated. Monika Spolia testified that she told the applicant, who she described as a perfectionist, that if she could not manage the workload, they would find her help. She says that her brother is not a person with a disability and denies making any comments comparing the applicant with her brother.

23She says two weeks before the applicant quit her job, Monika and Arun Spolia had gone on vacation and left the applicant in charge of the business. She says she would not have done so if she had no confidence in the applicant. She also testified that if she had an issue with the applicant, she would and did address it with her and would not speak to Marco Giusti instead. She denies meeting with Marco Giusti on the Friday, January 20, 2012, as that is her day off and she generally spent Fridays with her children.

24On January 24, 2012, the applicant seemed upset. Her eyes and whole face were red and she seemed to be under a great deal of stress. Monika Spolia said she asked the applicant if she could work and the applicant kept saying “I don’t know. I don’t know”. The applicant left at some point of her own accord without letting anyone in the office know that she was not returning that day.

25Monika Spolia testified that she was aware that the applicant was moving from Brantford to Hamilton and was under some stress because they were selling their house and moving to a different city. She thought the impending house sale and move, coupled with the eye surgery the day before, were the reasons the applicant had left abruptly.

26When the applicant did not come back, she asked Melissa Perrin what was going on. The applicant’s abrupt departure had left them short staffed and so Arun Spolia called the applicant at home a couple of times. As they had not managed to speak to her, they went to her home to see if she was alright and were told she would come in to the office the next day. While at their home, they saw that the applicant and her husband were in the midst of packing the contents of their home.

27She says she does not take care of the paperwork or hiring. Her husband does those tasks and it took him about 6 months to find the right person to replace the applicant at the office. Her husband also took the lead in sorting out the details surrounding the applicant’s departure from their staff.

28She says that she thinks that the applicant quit her job because she was moving and she filed this Application because she wanted to be paid a few extra weeks of salary.

Evidence of Arun Spolia

29Arun Spolia testified that he and the applicant worked together on the migration of data when they changed the billing system. He denied ever suggesting to the applicant that either he or his wife thought she should be taking medication. The work took about three days to complete and there was a lot of pressure to get it done properly and on time.

30On Friday, January 20, 2012, he left their kids with his wife and went to meet with Marco Giusti for an hour to discuss replacing the flooring in the front of the office. They had no discussions about the applicant, any perceived disability or her work performance.

31On the date of the applicant’s eye surgery, January 23, 2012, he called her to check on her and when the call went to voice mail, he left a message. Within an hour, got a return call. He said he told the applicant to come to the office the following day to do accounts receivable work and by the time he got in, she was gone.

32As she had left without explanation, he called and left messages for her to get back to him. Then in the evening, when Monika was free, they went to the applicant’s home. Arun Spolia said that the applicant did raise the topic of what had happened during the meeting on the 20th. Arun Spolia said that he made it clear that Monika was not even there and he did not understand what she was upset about. Instead he says they asked why she had left the office without explanation.

33When he told her to come in the next day at 10 a.m., she did not agree or disagree. However, she did not come to work but called instead and said she was not returning. She asked for two week’s pay and he said he would speak to Monika and get back to her. He checked with the Ministry of Labour and was told that under the circumstances, because she had quit without notice, there was no entitlement to additional wages.

34However, he said he consulted with a lawyer and was willing to pay some money to end the relationship on a positive note if she signed a release. He sent her a letter with the release on February 2, 2012. She still has not signed the release and they have not paid the one week that they offered to pay in the letter.

35He testified that the respondent business is still willing to pay her one week’s salary.

Evidence of Melissa Perrin

36Melissa Perrin gave evidence of what she observed on the applicant’s final day of work. She says the applicant’s face was red. She did not hear any conversations that took place that day. She also did not know why the applicant left the office before her shift ended that day.

decision

Credibility Issues

37Where my resolution of the factual differences relates to a credibility assessment, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354, which is often quoted by this Tribunal. The Court held:

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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

Analysis

38The onus is on the applicant to establish, on a balance of probabilities, that the respondent infringed her rights under the Code. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test: F.H. v. McDougall, 2008 SCC 53.

39The applicant’s case is founded on her assertion that Monika Spolia had made a comment to her during her working hours that she needed to be medicated, her husband’s evidence that the Spolias had spoken to him about the applicant’s poor performance at work and intimated to him that a disability may be involved and, finally, that Monika Spolia gave her an ultimatum on January 24, 2012, when the applicant’s employment was terminated.

40The version put forward by the respondent witnesses is that the applicant and her family were getting ready to sell their home and move to another city in the following months. The respondent company believes that the applicant wanted to leave her employment because of the move.

41The respondent acknowledges that there was an extremely busy time during the switch from one billing system to another. As that work was being done by the applicant and Arun Spolia, the respondent acknowledges that the applicant was doing more that her usual duties for that period of time.

42However, the respondent denies that any comments were made that would suggest that the Spolias believed the applicant was a person with a disability. Monika Spolia indicated that as a medically trained person she would not venture unsolicited opinions about a person’s health particularly in a field outside her arena of expertise or knowledge. She also denies that her brother is a person with a disability; evidence which has not been controverted. Given the above as well as the reasons set out below, I find that Monika Spolia’s denial that she made such a statement is more in keeping with the balance of the evidence before me and, as such, I accept her version of events in respect of the issue of whether a comment was made to the applicant.

43The Spolias deny that they met with Marco Giusti to discuss his wife’s job performance. They assert that Arun Spolia met with Marco Giusti for the sole purpose of discussing installation of flooring in the respondent company’s office. Monika Spolia’s evidence concerning this point is that she would have discussed any shortcomings in the applicant’s job performance with her directly.

44The applicant’s version of events requires that I accept on the one hand that Monika Spolia had no difficulty telling the applicant directly that she should be medicated as a result of a perceived disability but that she apparently felt uncomfortable discussing her performance concerns with the applicant and, instead, spoke to the applicant’s husband about them. These two allegations are somewhat difficult to reconcile.

45The respondent argues, and I accept, that if there was a perception that the applicant’s performance was so lacking or problematic, the practice would not have been left in her charge administratively while the Spolias went on vacation a few months previously. Therefore, I find that the conversation about his wife’s alleged shortcomings did not take place, as described by Marco Giusti, as I find his evidence is not as credible or reliable, given the balance of the evidence before me.

46Finally, the applicant says that she was told to leave immediately and collect two week’s pay or work out a two week notice period immediately before she left the office on January 24, 2012. She does not explain the almost immediate change of heart that would have caused the Spolias to call her several times that afternoon and arrive at her home the same evening to ask her to return to work the next day. There is also no indication that the applicant made any attempts to have the Record of Employment changed in any way to reflect that she had been let go rather than resigned her employment.

47The respondent’s version that the applicant left without explanation and that their worry for her caused them to go see her at home to see if she intended to return to work is more consistent with the balance of the facts.

48The applicant has the burden of proving, on a balance of probabilities, that she experienced disadvantage in employment for reasons related to a disability or perceived disability. In other words, in this case, she must establish that the respondent made comments to her and to her husband and terminated her employment because of a perception that she had a disability.

49In my view, for the reasons set out above, she has not met that burden.

50It is not apparent from the evidence before me, nor can an inference be drawn from it, that the applicant experienced disadvantage in the manner in which she was treated in the workplace or in the reason for her departure from the workplace. I also find that there is no credible evidence before me that disability or perceived disability played any role in the respondent company’s actions or decisions.

51Accordingly, the Application is dismissed.