HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pooneh Piri
Applicant
-and-
Nestle Waters Canada
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Piri v. Nestle Waters Canada
APPEARANCES
Pooneh Piri, Applicant
Self-represented
Nestle Waters Canada, Respondent
Andrea York and Laura Blumenfeld, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. Specifically, the applicant alleges that the respondent terminated her employment because she was pregnant.
Background
2In her Application, the applicant asserts that she began her employment with the respondent in March 2012 in the position of Quality Assurance Supervisor. The applicant asserts that she was a model employee and did not have any performance issues. The applicant reported to the Quality Assurance Manager, Laura Winfield-Born, who allegedly advised the applicant that she was happy with the applicant’s performance during a mid-year review
3The applicant states that she first learned that she was pregnant through a home pregnancy test on August 26, 2012. The applicant states that she and her husband visited their family doctor on August 27, 2012, after work, to confirm that she was pregnant. The applicant’s doctor directed her to have blood tests on August 28, August 31 and September 4, 2012. The applicant states that she was late for work on each of these dates and asked a colleague, Leslie MacKenzie, to cover for her daily meetings that commenced at 8 a.m. The applicant states that she explained to Ms. MacKenzie on August 31, 2012, that she had gone for blood tests. The applicant stated she experienced nausea, particularly in the morning, and that she would stand up and walk during meetings to alleviate her symptoms.
4The applicant states that on September 4, 2012 she provided an update to Ms. Winfield-Born, who had been on vacation while she went for blood tests. The applicant states that she advised Ms. Winfield-Born that she had been late for work on a few occasions because she had gone for blood tests because she was pregnant. The applicant states that Ms. Winfield-Born congratulated her. The applicant states that on September 6, 2012 she and Ms. Winfield-Born were working together and she advised Ms. Winfield-Born that she had a counselor’s appointment regarding her pregnancy at 7:00 p.m. and Ms. Winfield-Born gave her permission to leave. The applicant also states that she asked Ms. Winfield-Born for permission to attend an ultrasound imaging test on September 11, 2012, which Ms. Winfield-Born granted.
5The applicant states that Ms. Winfield-Born summoned her to a meeting on September 13, 2012. Present at the meeting were the applicant, Ms. Winfield-Born and Eman Refaeh, the Human Resources Manager. Ms. Winfield-Born proceeded to read a letter advising the applicant of the termination of her employment. The applicant states that she asked for an explanation and Ms. Refaeh said the respondent was happy with her, but felt she was not the right fit for the organization. The applicant advised Ms. Refaeh that she was pregnant, although Ms. Winfield-Born was well aware of that fact. The applicant states that Ms. Refaeh said that she did not know this, and that it would not change the decision to dismiss her.
6In its Response, the respondent asserts that it had no knowledge of the applicant’s pregnancy before the termination of her employment and that the applicant’s assertions to the contrary are complete fabrications. The respondent states that the applicant disclosed her pregnancy for the first time during the termination meeting and advised that she had not informed anyone at the respondent previously because she was experiencing bleeding.
7The respondent asserts that it dismissed the applicant because of unsatisfactory performance. The respondent stated that the applicant showed poor communication skills, an inability to complete high priority tasks in a timely manner and an inability to accept delegated responsibilities.
The hearing
8The hearing of this matter took place on June 19 and 20, 2014. The applicant testified and also presented five witnesses. The respondent presented five witnesses and the parties tendered 30 exhibits into evidence between them.
Legal Test
9The 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.
10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
10The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent terminated the applicant’s employment because she was pregnant. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. The applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. Direct evidence of discrimination is also unnecessary, as discrimination will more often be proven by circumstantial evidence and inference. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
11In order to establish that her pregnancy was a factor in the decision to dismiss her, the applicant must establish that the respondent’s personnel who made this decision were aware that she was pregnant at the time. For the reasons that follow, I find that the applicant did not establish that the respondent was aware of her pregnancy when the decision was taken to terminate her employment. My conclusion in this regard is based on my findings regarding the credibility and reliability of the applicant and the respondent’s personnel involved in the decision to dismiss the applicant. In assessing credibility and reliability, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) 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 demeanor 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.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
12I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with 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.
The evidence
13In light of the respondent’s position with respect to the applicant’s termination from employment, the parties presented a significant amount of evidence regarding the applicant’s job performance. Given my finding that the applicant did not inform the respondent that she was pregnant before the respondent informed her of her dismissal, it is not necessary to record the evidence of witnesses presented solely to testify regarding the applicant’s performance. These witnesses were Amie Martindale, Fabian Johnson, Wayne Vandevrei and Stephen Philips, presented by the applicant, and Rafael Moniz, presented by the respondent. I have summarized below the other witnesses’ evidence regarding the applicant’s performance.
14The applicant’s evidence was that she began working for the respondent in March 2012 as a Quality Assurance Resource, i.e., a supervisor, at the respondent’s facility in Guelph, Ontario, which produces both pure and flavoured bottled water. In that role, she was in charge of the Quality Assurance lab. The Quality Assurance department is responsible for ensuring products are safe and meet the respondent’s standards. According to the applicant, she was a model employee and received positive feedback from her superior, Laura Winfield-Born, who was the Quality Assurance Manager in 2012, and from Eman Refaeh, the Area Human Resources Manager.
15The applicant stated that she first suspected she was pregnant on August 26, 2012, based on a home pregnancy test. She and her husband met with their family doctor the next day, August 27, 2012, to confirm the result. The doctor directed the applicant to take blood tests. She had the tests on August 28, August 31 and September 4, 2012, and as a result, she was late to work on these days. In her role, the applicant attended a meeting at 8 a.m. each morning known as the Daily Operational Review, referred to as “the DOR”. The applicant stated that she asked one of her subordinates, Leslie MacKenzie, to cover for her. The applicant recalled that she was able to make it to the meeting on August 31, 2012, but Ms. MacKenzie covered for her on the other two dates. The applicant stated that she thanked Ms. MacKenzie for her help and explained that she had had blood tests on the dates she did not attend the DOR.
16Ms. Winfield-Born had been on vacation and returned to work on or about September 4, 2012. The applicant updated Ms. Winfield-Born on product lines that were starting, issues that she encountered and how she dealt with them. The applicant testified that she also informed Ms. Winfield-Born on September 4, 2012 that she was pregnant and had been late for meetings because of blood tests. The applicant stated that she advised Ms. Winfield-Born that Ms. MacKenzie covered for her.
17The applicant’s evidence was that she met with Ms. Winfield-Born in the afternoon of September 7, 2012 to check documentation in advance of a “Nestech” audit. The applicant stated that she had an appointment with a family counselor who was coming to her house at 7:00 p.m. to speak about her pregnancy and preparations for the baby. The applicant stated that she advised Ms. Winfield-Born about this meeting and Ms. Winfield-Born gave her permission to leave in order to attend.
18The applicant testified that on September 13, 2012, Ms. Winfield-Born called her into Ms. Winfield-Born’s office and Ms. Refaeh was there when she arrived. Ms. Winfield-Born asked her to sit and Ms. Winfield-Born proceeded to read a letter advising the applicant of the termination of her employment. The applicant stated that she was shocked and did not understand why she was being dismissed. The applicant asked for an explanation and Ms. Refaeh explained that there was nothing for her to improve upon and that the dismissal was without cause. When the applicant insisted on a more fulsome explanation, Ms. Refaeh responded to the effect that the applicant was not a “good fit”.
19The applicant’s evidence was that at this point she informed Ms. Refaeh that she was pregnant and looked at Ms. Winfield-Born, who already knew this. Ms. Refaeh stated that she did not know about her pregnancy and the fact that she was pregnant would not change anything as it was unrelated to the decision to dismiss her. The applicant’s evidence was that she told Ms. Refaeh that the decision was unfair and she would seek legal assistance. Ms. Refaeh advised the applicant that she had the right to do this. The meeting concluded and the applicant was escorted to her office to collect her personal belongings and then escorted out of the building.
20In cross-examination, the applicant confirmed that she first believed she was pregnant on August 26, 2012, when she took a home pregnancy test. The applicant stated that her doctor confirmed that she was pregnant about one or two days after September 4, 2012, after she completed the blood tests. The applicant stated that she and her husband were not sure of the home test and wanted confirmation from their doctor.
21The applicant confirmed in cross-examination that she informed Ms. Winfield-Born of her pregnancy on September 4, 2012, before she was positive that she was pregnant. The applicant explained that she advised Ms. Winfield-Born that she was going through blood tests because she believed she was pregnant, following the home test result. The applicant stated that she did not recall when she informed her parents of her pregnancy or whether it was before or after she advised Ms. Winfield-Born. The applicant stated that she advised her friends that she was pregnant about three months into her pregnancy.
22Also in cross-examination, the applicant testified that she was about five weeks pregnant on September 4, 2012. The applicant confirmed that she was experiencing bleeding, but that her doctor advised that this was common. The applicant explained that she had to inform Ms. Winfield-Born about her pregnancy because she’d been late to meetings on the days she had had blood tests.
23The applicant agreed that she arrived to work at about 7:50 a.m. on the days she had blood tests and that the DOR meetings began at 8:00 a.m. She stated, however, that she usually arrived much earlier to prepare for the meetings and therefore asked Ms. MacKenzie to cover for her. The applicant stated that she advised Ms. Winfield-Born that she was late because the other attendees would advise Ms. Winfield-Born that she was absent and she wanted Ms. Winfield-Born to know what she was doing. The applicant stated that she believed that her pregnancy was showing in September 2012 and also that she was nauseous and did not drink coffee.
24Counsel for the respondent asked the applicant to confirm her testimony that she advised Ms. Winfield-Born of her pregnancy on two occasions. The applicant replied that it had actually been three times: she advised Ms. Winfield-Born about a pregnancy-related ultrasound test on September 4, 2012, asked to leave to attend her pregnancy counseling appointment on September 7, 2012, and also referred to her pregnancy on September 11, 2012. When asked whether the September 4, 2012 appointment had related to blood tests or an ultrasound appointment, the applicant revised her testimony and confirmed that she spoke to Ms. Winfield-Born on September 4, 2012 about blood tests and on September 11, 2012 about an ultrasound appointment. The applicant confirmed that she advised only Ms. Winfield-Born about her ultrasound appointment on September 11, 2012. She stated that she advised Ms. MacKenzie that she was having blood tests, not why, as it was not necessary to tell her about her pregnancy. When confronted with Ms. Winfield-Born’s expected testimony that the applicant never advised her that she was pregnant, the applicant confirmed that she had in fact clearly advised Ms. Winfield-Born that she was pregnant.
25The applicant was also cross-examined about a meeting she had with a former colleague, Melynda MacMillan, after the termination of her employment. The applicant denied that she informed Ms. MacMillan that the first time she informed the respondent that she was pregnant was during the meeting in which the respondent dismissed her. Rather, she asserted that she stated that she informed Ms. Winfield-Born she was pregnant before the termination meeting. The applicant stated that she met Ms. MacMillan for coffee in Cambridge and she believed the location was a Wendy’s restaurant. She did not recall whether the meeting took place in September 2012, but confirmed it occurred after she was dismissed. The applicant stated that she contacted Ms. MacMillan to arrange the meeting. The applicant stated that they talked about many things and she informed Ms. MacMillan that she was pregnant. The applicant stated that they discussed her dismissal and Ms. MacMillan stated that she was shocked, as was the Quality Assurance team. The applicant did not recall whether she stated that she believed pregnant employees could not be fired or whether Ms. MacMillan advised her that an employee could be fired while pregnant, but not because she is pregnant.
26Counsel for the respondent asked the applicant several questions about her work history, in particular the jobs listed on her LinkedIn page. Counsel noted that the applicant’s LinkedIn page states that she remains an employee of the respondent and states that she is on maternity leave. The applicant confirmed that she placed this information on her LinkedIn page and agreed that she is not on a maternity leave with the respondent. The applicant agreed that this information was not accurate, but stated that she wanted to wait for the outcome of this Application before changing this information, as the Tribunal could reinstate her.
27The applicant called Wojciech Cwik to testify. In 2012, Mr. Cwik was the Detailed Production Scheduler for planning at the respondent’s facility in Guelph. The applicant invited Mr. Cwik to comment on her performance, but he was unable to recall anything about the applicant’s performance other than he recalled that she had had trouble “getting up to speed” regarding trace exercises.
28Mr. Cwik remembered meeting the applicant at an ultrasound clinic. Mr. Cwik was at the clinic with his wife who was pregnant. He saw the applicant at the clinic and informed her that his wife was pregnant. Mr. Cwik recalled that the applicant advised him that her husband was away and that she was at home alone. He did not recall if he asked the applicant why she was there. Mr. Cwik characterized this event has as “chance encounter”.
29In cross-examination, Mr. Cwik stated that he believed the day he encountered the applicant at the ultrasound clinic was in the late summer or early fall of 2012, as he recalled it had been a nice day and warm. Mr. Cwik stated that the clinic provided a variety of ultrasound tests and was not only for pregnant women. Mr. Cwik stated that he did not suspect the applicant was pregnant and did not speak to anyone about this chance encounter or about the applicant being pregnant.
30Laura Winfield-Born is currently the respondent’s Regional Corporate Quality Assurance Manager, a role she has held since March 2013. In 2012, Ms. Winfield-Born was the Quality Assurance Manager for the respondent’s facility in Guelph, to whom the applicant reported. Ms. Winfield-Born confirmed that the respondent hired the applicant in March 2012 and terminated her employment on September 13, 2012. Ms. Winfield-Born’s evidence was that the applicant did not tell her that she was pregnant or advise her about pregnancy-related tests prior to the meeting in which the applicant was terminated and she stated that this was not something about which she could be mistaken. Ms. Winfield-Born explained that she has been pregnant four times and, unfortunately, experienced a miscarriage or stillbirth each time. Ms. Winfield-Born stated that, as a result, she is very sensitive to people around her who are pregnant and would remember if the applicant had informed her that the applicant was pregnant or had said anything relating to a pregnancy.
31Ms. Winfield-Born’s evidence was that she had been on vacation the week prior to September 4, 2012, which day was the Tuesday after Labour Day in 2012. She stated that she did not have any formal meetings with the applicant, as she saw her every day. Ms. Winfield-Born stated that she did not recall the applicant saying that she had been late. In that regard, Ms. Winfield-Born stated that she did not track the applicant’s hours of work. As a manager, the applicant managed her own work hours and had discretion regarding her schedule. Ms. Winfield-Born noted that managers do not “punch in”. Ms. Winfield-Born stated that she has no knowledge of the applicant’s attendance in the week before September 4, 2012.
32Ms. Winfield-Born recalled that the applicant had to leave early on September 7, 2012. According to Ms. Winfield-Born, the applicant stated that she had an appointment, but did not say what it was for. Ms. Winfield-Born stated that the applicant definitely did not say that the appointment was pregnancy-related, again noting that she was sensitive to pregnancy issues and would have remembered. Similarly, when asked about September 11, 2012, Ms. Winfield-Born recalled that on one occasion the applicant left early and Ms. Winfield-Born recalled that she said she was meeting a contractor. Ms. Winfield-Born’s evidence was that the applicant never said anything “pregnancy or baby related”.
33Ms. Winfield-Born testified at length about the deficiencies she observed in the applicant’s performance, including difficulties with policies and procedures, conflicts with subordinates and coworkers, inability/unwillingness to take accountability for actions, failure to meet objectives and the tendency to seek direction rather than proposing her own solutions. Ms. Winfield-Born’s testimony makes clear that she was not satisfied with the applicant’s performance in early September 2012. Her evidence was, however, that she did not make the decision to dismiss the applicant. Rather, Ms. Winfield-Born explained that she was at a hair salon in the evening of September 12, 2012, when she took a call from Greg Chorpitta, the Factory Manager of the Guelph facility. Ms. Winfield-Born’s evidence was that she had shared her frustrations with the applicant’s performance with Mr. Chorpitta. Mr. Chorpitta asked Ms. Winfield-Born if she agreed that they should dismiss the applicant. Ms. Winfield-Born replied that she could support that decision and it was left to her to execute the dismissal. Accordingly, Ms. Winfield-Born met with Ms. Refaeh the next morning and they decided the dismissal would be without cause. Ms. Refaeh prepared the necessary documents.
34Ms. Winfield-Born’s evidence was that in the morning of September 13, 2012 she called the applicant to her office and that Ms. Refaeh was present. She explained that the respondent’s process for termination meetings is for the manager to read the termination letter. Ms. Winfield-Born testified that she read the letter to the applicant, who responded that she was pregnant. Ms. Winfield-Born stated that she was shocked by the revelation. Ms. Refaeh took over at that point and stated that the respondent had no prior knowledge of the applicant’s pregnancy and that her pregnancy was not the reason for her dismissal. Ms. Winfield-Born’s evidence was that the applicant stated that she had not told anyone about her pregnancy because she had some bleeding. The applicant asked “What was she was supposed to do?” in light of her pregnancy and also inquired if she could continue working. Ms. Refaeh informed the applicant that the decision was final. Ms. Winfield-Born walked the applicant to her office to collect her personal items and then walked her out of the building.
35Ms. Winfield-Born identified an e-mail message dated October 12, 2012 that she sent to Ms. Refaeh as a result of a demand letter sent by the applicant. In the message, Ms. Winfield-Born confirmed that she became aware that the applicant was pregnant during the termination meeting. Ms. Winfield-Born stated in the message that she read the termination letter and that the applicant then said she was pregnant and asked what she was supposed to do. She also confirmed in the message that the applicant stated that she had not told them that she was pregnant because she was having some bleeding.
36In cross-examination, Ms. Winfield-Born stated that she worries about pregnant women because of her unsuccessful pregnancies and hopes they do not have the same issues she did. Ms. Winfield-Born stated that she sometimes finds it difficult to be around pregnant women because it brings back feelings of loss. She denied having difficulty working with pregnant women, but would avoid things like baby showers.
37Ms. Winfield-Born agreed that she began to have more discussions regarding the applicant’s performance in August and September 2012 because she began to document these issues in approximately that time frame. Ms. Winfield-Born denied that she began looking for fault in the applicant because she was pregnant and denied that the applicant disclosed her pregnancy. Ms. Winfield-Born’s evidence was that she had no reason to believe the applicant was pregnant.
38Melynda MacMillan works for the respondent as a Food Safety Coordinator and reported to Ms. Winfield-Born in 2012. Ms. MacMillan stated that she met the applicant for coffee after the termination of the applicant’s employment. Ms. MacMillan’s evidence was that she met the applicant at Williams’s Coffee Pub on September 23, 2012, which she recalled was a Saturday. Ms. MacMillan stated that they chatted and the applicant told her that she was expecting. The applicant asked Ms. MacMillan if she knew why the applicant had been fired, but Ms. MacMillan did not. According to Ms. MacMillan, the applicant stated that she did not think an employee could be fired while pregnant. Ms. MacMillan stated that she advised the applicant that an employee could not be fired because she is pregnant, but could be fired while pregnant. Ms. MacMillan’s evidence was that the applicant stated that she informed the respondent that she was pregnant in a meeting. In the context of their conversation, Ms. MacMillan concluded that it was the termination meeting.
39Greg Chorpitta is the Factory Manager of the respondent’s facility in Guelph. In that position, he has overall responsibility for the quality, safety and production of the beverages produced in that facility. In 2012, Ms. Winfield-Born reported to him and the applicant to Ms. Winfield-Born. Mr. Chorpitta’s evidence was that he interacted with the applicant on a regular basis – approximately two or three times per week, at meetings and in dealing with quality issues. Mr. Chorpitta stated that he had the opportunity to observe the applicant at DOR meetings, product meetings, compliance meetings and during a Nestle audit. In his view, the applicant displayed unwanted behaviours. For example Mr. Chorpitta stated that the applicant would become frustrated at DOR meetings, throw her arms up and say “Tell me what to do”. Mr. Chorpitta found that the applicant was not accountable as a leader, did not command respect and did not promote teamwork. Mr. Chorpitta described a particular DOR meeting on or about September 12, 2012. Mr. Chorpitta stated that there were many issues regarding products held back from shipment pending release by the Quality Assurance department. Mr. Chorpitta observed that the applicant was not taking accountability for the situation and was blaming others.
40Mr. Chorpitta’s evidence was that he had discussions with Ms. Winfield-Born about the applicant prior to September 12, 2012. Ms. Winfield-Born updated Mr. Chorpitta about the applicant’s progress and asked for guidance. Mr. Chorpitta stated that, in particular, Ms. Winfield-Born had concerns about the applicant’s ability to take responsibility for her own actions and the work of the Quality Assurance department. Mr. Chorpitta’s stated that an issue arose between the applicant and the Warehouse Resource, or supervisor, regarding held products and a discrepancy between the computerized records maintained by Quality Assurance and the situation in the warehouse. Mr. Chorpitta’s evidence was that this issue prompted him to call Ms. Winfield-Born and he asked her if it was time to make a change, i.e. dismiss the applicant. Ms. Winfield-Born replied that she agreed with the suggestion and she carried on with the administrative actions required to execute it. Mr. Chorpitta stated that, based on his own observations and the information provided by Ms. Winfield-Born, he concluded that keeping the applicant in her role presented too much risk to the respondent.
41Mr. Chorpitta stated that he was not aware that the applicant was pregnant when he came to this decision and did not suspect that she was. In cross-examination, Mr. Chorpitta stated that he did not recall that the applicant had ever been absent from or late to any DOR meetings. He stated that he only attended that meeting two or three times per week and would not notice this.
42As noted above, Eman Refaeh is the respondent’s Area Human Resources Manager. Ms. Refaeh provides human resources support for the respondent’s facility in Guelph as well as facilities in Québec and British Columbia. Ms. Refaeh’s evidence was that she interacted with the applicant often, and provided more support to her that was normally required. In summary, Ms. Refaeh’s evidence about the applicant’s performance issues was that she had some difficulty following policies and procedures; had a strained relationship with her supervisor, Ms. Winfield-Born; and that the environment in the Quality Assurance lab deteriorated after the applicant became the supervisor there. Ms. Refaeh stated that Ms. Winfield-Born had expressed a number of performance concerns about the applicant. In the morning of September 13, 2012, Ms. Winfield-Born advised Ms. Refaeh that the decision had been taken to terminate the applicant’s employment and asked Ms. Refaeh to prepare the necessary documents, including the termination letter.
43Ms. Refaeh’s evidence was that the dismissal meeting took place on September 13, 2012, in Ms. Winfield-Born’s office and that she, the applicant and Ms. Winfield-Born were present. Ms. Refaeh stated that Ms. Winfield-Born read the termination letter, as is the respondent’s practice. The applicant responded by stating “What am I going to do now? I am pregnant.” Ms. Refaeh’s evidence was that she responded that she did not know that the applicant was pregnant and that her pregnancy had nothing to do with the decision to dismiss her. According to Ms. Refaeh, the applicant then stated that she had not told anyone about her pregnancy because she had experienced some bleeding. The applicant also asked if there was anything she could do to change the decision and Ms. Refaeh said the decision was final. The applicant then asked if she could return to work and Ms. Refaeh advised that she could not, as she had been dismissed. The applicant again mentioned her pregnancy and Ms. Refaeh again stated that her pregnancy was unknown when the decision to dismiss was taken. The applicant asked for an explanation for the decision and Ms. Refaeh explained that the dismissal was without cause and that the respondent was paying her a week’s pay in lieu of notice. The applicant again asked “What do I do now? I am pregnant.” and Ms. Refaeh reiterated that they did not know this when they decided to dismiss her. Ms. Refaeh stated that the applicant repeated that she had not told anyone because she had had some bleeding and spotting. Ms. Refaeh stated that the applicant did not say that she had told anyone about her pregnancy.
44Ms. Refaeh stated that immediately after the meeting she took notes regarding what had transpired. These notes are dated September 13, 2012, and recorded that the applicant asked “What am I going to do now? I’m pregnant.” and that the applicant stated that she did not tell the respondent about her pregnancy because she was spotting.
Findings
45The applicant’s evidence was that Ms. Winfield-Born was the only member of the respondent’s personnel whom she informed of her pregnancy before the termination of her employment on September 13, 2012. Ms. Winfield-Born denies that she knew that the applicant was pregnant until the applicant announced her pregnancy during the dismissal meeting on September 13, 2012. Having considered all of the evidence in this matter, I find Ms. Winfield-Born’s evidence to be more credible on this crucial point. To begin with, the applicant’s evidence was not consistent about what she told Ms. Winfield-Born and when. In the Application, the applicant states that she advised Ms. Winfield Born of her pregnancy on three occasions as follows: 1) on September 4, 2012, when she advised Ms. Winfield-Born that she had been late for DOR meetings because she had gone for blood tests because she was pregnant; 2) on September 6, 2012, when she asked permission to leave work to attend a counseling meeting regarding her pregnancy; and 3) on September 11, 2012, when she asked for permission to attend a pregnancy related ultrasound appointment.
46In her evidence in-chief, however, the applicant referred to only two occasions when she advised Ms. Winfield-Born that she was pregnant: 1) on September 4, 2012, she informed Ms. Winfield-Born that she was pregnant and had been late for meetings because of blood tests and 2) on September 7, 2012, when she requested permission to leave work to attend a counseling session regarding her pregnancy. When asked in cross-examination to confirm that she had advised Ms. Winfield-Born of her pregnancy twice, the applicant stated that in fact she had done so on three occasions: 1) on September 4, 2012, regarding pregnancy-related ultrasound testing; 2) on September 7, 2012, regarding a pregnancy-related counseling session and 3) on September 11, 2012, the applicant stated that she made reference of some kind to her pregnancy. She revised her testimony when she was asked if September 4, 2012 had in fact been about blood tests causing her to be late. Counsel also asked the applicant about divulging her pregnancy before her doctor confirmed that she was pregnant. The applicant then stated that she told Ms. Winfield-Born that she believed that she was pregnant. Consequently, within her Application and her testimony the applicant provided four different accounts of how and when she informed Ms. Winfield-Born that she was pregnant. While the applicant’s evidence was consistent in that she maintained that she had informed Ms. Winfield-Born of her pregnancy prior to September 13, 2012, the inconsistencies in her evidence regarding what she told Ms. Winfield-Born and when reflect negatively on the reliability of her evidence.
47I also do not find that the applicant’s explanation for informing Ms. Winfield-Born about her pregnancy on September 4, 2012 to be credible. First, her doctor had not yet confirmed that she was pregnant at that point and I find it unlikely that the applicant would have referred to her pregnancy before receiving such confirmation. Second, there was no reason to advise Ms. Winfield-Born about her pregnancy. Ms. Winfield-Born did not ask her about her attendance at the DOR meetings or in general and testified without contradiction that she did not keep close tabs on the applicant’s attendance and hours of work. Accordingly, there does not appear to have been any reason for the applicant to volunteer this information. To the extent the applicant felt the need to inform Ms. Winfield-Born about her attendance the week before, it is not clear why the applicant felt she “had to” tell Ms. Winfield-Born specifically that she was pregnant. She did not tell Ms. MacKenzie the reason for her blood tests because Ms. MacKenzie did not need to know this, and did also not tell Mr. Cwik why she was at the ultrasound clinic. The applicant did not explain why Ms. Winfield-Born needed to know that she was pregnant, rather than simply advising that she needed to have some tests done. Informing Ms. Winfield-Born of her pregnancy at this point was also not consistent with the fact that she waited to tell friends about her pregnancy until after three months. In these circumstances, I find it more likely than not that the applicant did not volunteer that she was pregnant, without any reason to do so, in the early weeks of her pregnancy.
48I also find it more likely than not that the applicant told Ms. MacMillan that she thought that a pregnant employee could not be fired. The applicant stated that she did not recall making this statement and I found her evidence on this point evasive. Specifically, I find it unlikely that the applicant would not remember if she made such a distinctive statement about the rights of pregnant employees during a conversation about the termination of her employment. Similarly, I accept that Ms. MacMillan would remember such an idiosyncratic comment. Ms. MacMillan’s account of her meeting with the applicant was more also detailed than the applicant’s, although September 23, 2012 fell on a Sunday, not Saturday. Accordingly, I accept Ms. MacMillan’s evidence that the applicant made this statement and that Ms. MacMillan corrected her.
49The applicant stated that she advised Ms. MacMillan that she had told Ms. Winfield-Born that she was pregnant before she was dismissed. Ms. MacMillan’s evidence was that the applicant said that she told the respondent she was pregnant in a meeting, which she took to be the termination meeting. I find that the applicant told Ms. MacMillan that she had informed the respondent that she was pregnant. However, given the applicant’s general lack of recall of this conversation and Ms. MacMillan’s evidence that appears to contradict the applicant on this point and which contained no reference to Ms. Winfield-Born, I am unable to determine when the applicant claimed to have informed the respondent of her pregnancy during this conversation. In any event, I have found that the applicant did not inform the respondent of her pregnancy before her dismissal, whatever she may have said to Ms. MacMillan.
50I am also concerned about the applicant’s evidence regarding her LinkedIn account. The applicant posted information indicating that she was still employed by the respondent and was on maternity leave. This information is obviously false and the applicant admitted as much. The fact that one of the potential outcomes of this Application was reinstating her to employment does not make this information any less untrue and I do not accept the applicant’s explanation regarding her stated employment status. I appreciate that the fact that a witness’ lack of credibility on one issue does not preclude him or her from giving credible evidence on another. Credibility is central to the disposition of this Application, however, and I have taken into consideration the fact that the applicant has fabricated information to cast herself in a falsely flattering light.
51Ms. Winfield-Born’s evidence was consistent and not shaken in cross-examination. Ms. Winfield-Born’s evidence regarding her own painful experiences with pregnancy was not challenged and provides a credible basis for accepting her testimony that she is sensitive to pregnancy-related issues. I find it unlikely that Ms. Winfield-Born would have forgotten if the applicant had informed Ms. Winfield-Born that she was pregnant or needed to attend pregnancy-related appointments.
52The evidence of Ms. Winfield-Born and Ms. Refaeh regarding the termination meeting was consistent and also consistent with the circumstances. Given that both Ms. Winfield-Born and Ms. Refaeh testified in detail about the applicant’s performance deficiencies, I find it quite unlikely that either of them stated that there had been no problem with the applicant’s performance during the termination meeting. Rather, I find it more likely than not that Ms. Refaeh confirmed the respondent’s position that the termination of the applicant’s employment was not for cause and that she would be paid a week’s pay in lieu of notice, as both Ms. Winfield-Born and Ms. Refaeh testified. Both Ms. Winfield-Born and Ms. Refaeh also testified that the announcement of the applicant’s dismissal prompted her to ask, rhetorically, what should she do, since she was pregnant. In my view, this is consistent with the fact that the termination of the applicant’s employment gave her a reason to announce her pregnancy both because it would be natural to be particularly concerned about loss of employment while pregnant and because the applicant was under the misapprehension that an employee cannot be dismissed if she is pregnant. Had the applicant informed Ms. Winfield-Born of her pregnancy previously, I would have expected the applicant to say so when Ms. Refaeh stated that the respondent did not know she was pregnant. Ms. Winfield-Born and Ms. Refaeh testified that the applicant explained that she had not divulged her pregnancy because she was experiencing bleeding or spotting, which is consistent with the evidence that the applicant was indeed experiencing some bleeding. Ms. Refaeh provided the most detailed evidence about the termination. The evidence of Ms. Winfield-Born and Ms. Refaeh regarding the termination meeting was consistent, but not identical, allaying any concern about coordination of evidence or collusion. In the circumstances, I prefer the evidence of Ms. Winfield-Born and Ms. Refaeh regarding the termination meeting to the applicant’s. I find that it is more probable than not that the applicant announced her pregnancy for the first time at the termination meeting.
53The applicant’s evidence, which I have rejected, was that Ms. Winfield-Born was aware that the applicant was pregnant before the applicant was dismissed. In any event, the evidence establishes that Ms. Winfield-Born did not make the decision to dismiss the applicant. Rather, the evidence was that Mr. Chorpitta concluded that continuing to employ the applicant posed too much risk to the respondent and therefore suggested to the Ms. Winfield-Born that it was time to dismiss the applicant. Ms. Winfield-Born, of course, agreed. There was no evidence that Mr. Chorpitta knew or suspected that the applicant was pregnant.
54In light of the foregoing, I find that the evidence does not establish that the respondent was aware that the applicant was pregnant when it took the decision to terminate her employment. Accordingly, I further find that the applicant has not established, on a balance of probabilities, that her pregnancy was a factor in the decision to dismiss her.
55The Application is dismissed.
Dated at Toronto, this 15th day of October, 2014.
“Signed by”
Douglas Sanderson
Vice-chair