HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Campbell
Applicant
-and-
Intercon Security Limited
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Campbell v. Intercon Security Limited
APPEARANCES
Donald Campbell, Applicant
Self-represented
Intercon Security Limited, Respondent
David Whitten, Daniel Chodos, Counsel
INTRODUCTION
1This Application alleges discrimination with respect to employment because of age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent provides security services and the applicant is employed as a security guard. The applicant was working in that capacity on February 23, 2012. On that day, he was advised that he was being temporarily replaced at his post. The temporary replacement lasted for six hours. The applicant then returned to his post and continued working there until he went off work in 2014. The applicant alleges that his age was a factor in the temporary replacement that occurred on February 23, 2012. At the time the applicant was 66 years of age. There is no dispute that the applicant was displaced for the six hours by a person in his 20’s.
3The applicant worked at a large bank tower in downtown Toronto. He was deployed at the security desk on the ground floor of the tower. He was the only security officer on the ground floor, except for security in the bank itself.
4In February 2012, the bank tower was for sale. Given the value of the property, this was a major commercial real estate project. The sale was managed by a Building Management company. A number of prospective buyers came through the building. Usually each buyer was represented by a group of about ten people and they were led on a tour of the building by Jane Van Dyk, who was employed by the Building Management company. Prior to February 23, 2012, about fifteen tours of prospective buyers had occurred. The applicant was at his post on the ground floor of the tower at the time of most of these tours.
5The applicant's immediate supervisor was William Elliot. The respondent’s manager, to whom Mr. Elliot reported, was Katia Markossian.
6On February 23, 2012, Ms. Van Dyk told Ms. Markossian that she wanted the applicant replaced for the time of a tour that was coming through on that day. According to the respondent, the reason for this was that Ms. Van Dyk wanted a security supervisor at the desk in case the tour wanted to ask questions of the person at the main floor security desk. The supervisor was Mr. Elliot, and Ms. Markossian told Mr. Elliot that he should replace the applicant for the day, and Mr. Elliot did so.
7The Application was heard on July 4, 2014. I heard evidence from the applicant, Mr. Elliot, Ms. Markossian and Ms. Van Dyk. Mr. Elliot is no longer employed by the respondent although he is still working in the security field. He appeared as a witness for the applicant. Ms. Van Dyk is employed by the building management company and is not employed by the respondent. Ms. Markossian is still employed by the respondent.
8At the hearing, it was agreed that it was not necessary for the applicant to make final submissions since his view of the evidence was abundantly clear. The respondent asked to make final submissions in writing and this request was granted. After the hearing, the applicant advised that he felt that he might be disadvantaged by not making final submissions in writing as well. His request to make final submissions in writing was granted. The applicant then filed a series of extensive written submissions. The last of these is dated September 24, 2014.
EVIDENCE
9The respondent’s witnesses were very clear that the applicant is a highly competent and proficient security guard. Prior to August 2011, the respondent used a rotating shift system with four crews so that the personnel at the stations changed from day to day. In August 2011, the Building Management company decided that it wanted more consistency so a fixed shift system was started. The applicant was on the day shift, from 7:00 am to 3:00 pm and he was assigned to the main floor security desk. The main floor security desk is a key security position. In many ways the guard at that post is the “face” of the building, the person members of the public may first encounter and also the person primarily responsible for security issues relating to the main public floor coming and going of a very busy office tower. The applicant may interact with up to one hundred people in a given day at the main floor desk. The respondent’s witnesses confirmed that the applicant was selected for that position because of the confidence that was placed in him.
10The applicant testified that he was very upset when he was temporarily removed from his post on February 23, 2012. He testified that he was not told the reason for the removal and, even though he was replaced only for a few hours, he was worried about his job. In his testimony, he indicated that the replacement felt like a challenge to his integrity and dedication and professionalism.
11The applicant testified that on February 23, 2012, Mr. Elliot initially told him that he was replaced and that Mr. Elliot would explain later. Later that day or the next day, Mr. Elliot told him that “someone had a problem with my presence at the desk”. The applicant testified that he heard nothing more of relevance to this Application from Mr. Elliot until after he had filed the Application, which was on February 22, 2013.
12The applicant testified that he remained uncertain about the reasons for the displacement for about two weeks. He then had a conversation with Ms. Markossian in which he asked her why he had been replaced. She told him that Ms. Van Dyk had requested that the supervisor be at the main floor desk when the tour group came by on February 23 because Ms. Van Dyk felt that the supervisor would be better able to answer questions from the group if questions were asked. The applicant testified that at the time, he accepted this information.
13Mr. Elliot testified that on February 23, 2012, Ms. Markossian told him that Ms. Van Dyk did not want the applicant on the desk that day because he was short and old. Mr. Elliot provided a few different variations on this, including that Ms. Van Dyk did not want that “small old man” at the desk, and that she did not want “that little old man” at the desk. Mr. Elliot testified that he objected to the removal of the applicant but went along with it on that day. He testified that Ms. Markossian told him to tell the applicant that Ms. Van Dyk wanted someone with “more presence” at the desk.
14Mr. Elliot testified that on February 24, 2012, Ms. Markossian again told him to replace the applicant at the main floor desk. He initially told the applicant that he would again be replaced but then spoke to Ms. Markossian and reiterated his opinion that it was not appropriate to replace the applicant, and that if she persisted, he would take the matter up with the Human Resources department. Ms. Markossian then said that it was not necessary to replace the applicant. Mr. Elliot informed the applicant of this and the applicant reported to the main floor desk as usual.
15Ms. Markossian testified that the request to replace the applicant was made only on February 23 and related only to the tour group that was going through on that day. She testified that there was no discussion about replacing the applicant on the next day. Ms. Van Dyk also testified that the request to replace the applicant was only made in regard to the tour on February 23.
16After the applicant filed the Application, the respondent conducted an investigation into the allegations in the Application. Mr. Elliot was approached as part of that investigation. At that time, he was still employed by the respondent. He provided a written statement as part of that investigation. It included the following:
Ms. Markossian made reference to the fact that Mrs. Van Dyke felt Security Guard Campbell was old and short and did not provide enough presence at the desk.
17Mr. Elliot testified that he was contacted by the respondent at least twice after submitting this statement to clarify if it was true. He testified that he said that it was and he confirmed the same information about the reasons he was given for replacing the applicant in his testimony.
18Mr. Elliot testified that he told the applicant the same day of the reasons that he had been given for why the applicant was being replaced. The applicant however, testified that Mr. Elliot did not say anything about the applicant’s age on February 23, 2012.
19In her testimony, Ms. Van Dyk confirmed that she had asked Ms. Markossian to replace the applicant at the desk on February 23, 2012. She testified that she asked that Mr. Elliot be assigned to the desk and that the reason for this was that she wanted the security supervisor to be at the desk in case anyone on the tour had any questions which could be better answered by the supervisor. She confirmed that she had not asked that the applicant be replaced for any of the other tours that had come through and did not for any of the later tours. She testified that she has since tried to find a record of which tour group came through on February 23, 2012, to help her recollect what it was about this group that required the change. She has not been able to find any record. She testified that it was possible that the group was returning for a second visit and that this may be why she made the request.
20Ms. Van Dyk testified that she has known the applicant for some years because they have both worked in the same place and they have had several personal conversations. She testified that she was somewhat surprised that the applicant had not come to her at the time if he had any concerns about why he was replaced on February 23, 2012.
21The applicant testified that he has always held Ms. Van Dyk in high regard and he confirmed that they have had a very good relationship. He explained that he did not contact her at the time because he thought that the request had come from someone else in the Building Management company and did not know it had come from Ms. Van Dyk. Also, as noted earlier, he was told by Ms. Markossian that the reason for the change was only that there was a request that the supervisor be at the desk.
22Ms. Van Dyk was asked if on February 23, she might have said that she wanted someone with “more presence” at the desk. She answered that with the passage of time it is difficult to recall her exact words, but that she might well have said that she wanted someone with more presence.
23Ms. Markossian testified that on February 23, Ms. Van Dyk asked that Mr. Elliot replace the applicant at the desk and that she had conveyed this request to Mr. Elliot. She confirmed that Mr. Elliot had objected but went along with it. She denied that the applicant’s age came up in any way. She thought that it was possible that Ms. Van Dyk had asked for someone with “more presence” but she could not recall for sure.
24She confirmed that she had a conversation with the applicant a few weeks later at which time she explained that the replacement request had been based on wanting to have the supervisor at the desk. She recalled that the applicant seemed to accept this explanation and she did not hear anything more about the incident until the applicant filed the Application.
25After he was relieved from his position on February 23, 2012, the applicant joined the security patrol in the concourse area. At about 1:30 he got a call from Mr. Elliot, telling him to come back to his regular post at the main floor security desk because Mr. Elliot had to respond to a medical emergency. The applicant did so and was actually at the desk when the tour group came by. As it happened, the tour group did not have any questions for him.
26The applicant testified that he noticed that the tour group was relatively young and that they all looked to be in their 20s and 30s. He noted that this was a younger demographic than the other tour groups he observed. The applicant noted that a statement from a co-worker who also observed the group on February 23 confirms that the group was a group of people in their 20s and 30s.
27As noted earlier, after the conversation the applicant had with Ms. Markossian a few weeks after the February 23, 2012 incident, the applicant accepted the explanation he was given for why he was replaced that day. He testified that he did not really think about the incident for several months.
28In about October 2012, he had a conversation with someone in a senior position with the bank. This person told him a story about a security guard who had been employed at the bank in 2008 and who was 64 years old, and who was reassigned from his position. The person told the applicant that the reason for this was that the bank wanted a “fresh face” at the station.
29After this conversation, the applicant recalled that the term “fresh face” had come up in discussions about what had happened on February 23, 2012. This contributed to his eventual decision to file this Application on February 22, 2013.
30The other factor that contributed to filing the Application was an ongoing problem the applicant was having with a co-worker. This is the subject of a new Application that was filed only a few weeks before the hearing in regard to the present Application. The second Application was delivered to the respondent but it had not yet filed a Response. The second Application was not before me. The applicant explained that the events and allegations in regard to the second Application are not directly related to the allegations about what happened on February 23, 2012. In particular, the co-worker had nothing to do with the events on that day. The applicant did, however, indicate that the ongoing situation with the co-worker was a major reason why he filed the instant Application.
THE APPLICANT'S CONCERNS ABOUT THE PROCESS AT THE TRIBUNAL
31For the most part, the applicant's extensive post-hearing submissions reiterate the history and allegations set out in detail in his communications prior to the hearing and at the hearing. One concern that the applicant raised at various times was the respondent’s disclosure of documents. This arose initially when the applicant asked for disclosure before the respondent was required by the Tribunal’s process to disclose documents.
32The applicant agrees that he eventually received relevant documents when the respondent filed the documents it wished to rely on during the hearing.
33The applicant was particularly concerned about a statement from Mr. Elliot. The applicant had some difficulty obtaining a statement from Mr. Elliot and his perception was that the respondent was trying to “supress evidence” by intimidating Mr. Elliot. The applicant found that Mr. Elliot seemed reluctant to get involved.
34In his testimony, Mr. Elliot said that the respondent did question him about his statements at the time of the April 2013 investigation following the respondent’s receipt of the Application. He said that he was asked on two occasions if he was sure that the term “little old man” had been used on February 23, 2012. He testified that he said he was sure. Mr. Elliot did not suggest that he was subject to intimidation.
35Although Mr. Elliot may have told the applicant that he was unwilling to get involved, he did appear as a witness at the hearing.
36The other concern the applicant has regarding what he considers to be evidence suppression is in regards to his request that the respondent provide him with copies of his notebooks. The applicant believes that his notebooks from the time would disclose important evidence although the nature of this evidence is not clear.
37The respondent undertook to look for the notebooks but advised that they could not be located. The respondent advised that the notebooks may have been misplaced following the purchase of the building.
38On the basis of the information before me, I cannot conclude that the respondent suppressed evidence.
ANALYSIS
39The issue in this case is whether the decision to replace the applicant for some hours on February 23, 2012 was influenced by discrimination because of age. To succeed in the Application the applicant does not need to show that age was the only factor in the decision to replace him. He can succeed if he can show that his age was a factor in the decision. The question of whether the applicant experienced discrimination because of age must be answered on a balance of probabilities. This means that the applicant must show that it is more probable than not that the decision to replace him on February 23, 2012 was influenced by discrimination on the basis of age.
40In this case, I am required to consider conflicting evidence about the events and what exactly was said by the people involved. This involves an assessment of the credibility and reliability of the evidence.
41In this regard I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…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.
42I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, as follows (at paragraphs 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 CA), 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:
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 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
43It appears that at the time the applicant filed the Application, he had very little basis for the allegation that he was replaced on February 23, 2012 because of his age. He only discovered that Mr. Elliot recalled that he had been told to replace the “little old man” after he had filed the Application.
44According to the applicant’s testimony, he did not know at that time why he had been replaced. The only information that he had at the time to support the idea that he was replaced due to age was his observation that the members of the tour group were unusually young.
45Assuming that the applicant’s observation about the demographic of the group is accurate, it is far from clear why the applicant would think that this would cause anyone to want him replaced – why would the tour group care about the age of the security guard at the front desk and why would the fact that they were younger cause them to feel that the security guard should also be younger?
46According to the applicant’s testimony, he was initially upset for about two weeks about having been removed. However, after he talked to Ms. Markossian about it, he was no longer concerned and did not even think about it until about October 2012, about eight months later. At that time, he had a conversation with someone who told him about a theory that the bank liked to have a “fresh face” at some of its security desks. This was apparently based on something that had happened about four years earlier to someone the applicant did not even know. Meanwhile the applicant had been the primary “face” of the building security for several years most of each business day and on a permanent basis, and continued in that role, with no suggestion that anyone felt that a fresh face was necessary. In fact, the evidence shows that all concerned felt that the applicant was doing an excellent job as the primary person at the ground floor security desk.
47It appears that the applicant was very distressed about the situation with the co-worker. He said that while the situation with the co-worker had no direct bearing on the events on February 23, 2012, the ongoing distress that this situation caused him was an important factor in causing him to file this Application.
48After the applicant filed the Application, he had a conversation with Mr. Elliot who told him that Ms. Van Dyk had asked that the applicant be replaced on February 23, 2012 because of the applicant’s age and size.
49It is significant that the first time that Mr. Elliot was asked about what was actually said on February 23, 2012 was sometime in April 2013, more than a year later, when he was asked during the internal investigation that was undertaken after the Application was filed.
50I find that Mr. Elliot’s recollection of what exactly happened was not entirely reliable. In particular, he testified that he told the applicant that there was a problem with the applicant’s height and age on February 23 or 24. If he had, given the chronology of events outlined above, I find it more likely than not that the applicant would have remembered this. This is not to suggest in any way that Mr. Elliot was not telling the truth in his testimony. I do not doubt for a moment that his testimony accurately reflects what he recalls occurred. It does, however, show that his memory is not completely reliable.
51From my review of the evidence it is more probable than not that Ms. Van Dyk said she wanted someone with “more presence” at the security desk. In her testimony, she agreed that this is a term that she might have used when talking to Ms. Markossian although she could not be certain. It is a term that Ms. Markossian thought might have been used as well. Mr. Elliot testified that Ms. Markossian instructed him to tell the applicant that the Building Management wanted someone with more presence. The applicant testified that Mr. Elliot told him on February 23 that “someone had a problem with my presence” at the desk.
52I note that if Mr. Elliot was told on February 23, 2012 that Ms. Van Dyk wanted someone with “more presence” he might well have considered what it was about him that connoted more presence as compared with the applicant. He might well have surmised that the problem was the applicant’s height and age. If the information that Mr. Elliot retained from the February 23, 2012 incident was that there was a problem with the applicant’s height and age, it is entirely plausible that he would recall that this was specifically stated rather than something he mentally inferred at the time.
53Ms. Van Dyk testified that she wanted Mr. Elliot at the desk because as supervisor, he had more knowledge of security matters although she did agree that the applicant was also fully capable of answering questions with the exception of questions about some aspects of security on the executive floors. While I accept that Ms. Van Dyk may have asked that Mr. Elliot be on the desk for this reason, I find that she also wanted Mr. Elliot at the desk because he had “more presence” than the applicant.
54The question then becomes: what did Ms. Van Dyk mean when she said she wanted someone with “more presence”? As Ms. Van Dyk noted when this came up in her evidence, the term can have a wide variety of meanings.
55One possibility is that “more presence” meant someone younger. This is the interpretation that Mr. Elliot seems to have placed on the term. As noted earlier, when confronted with the information that he had the necessary presence that was lacking in the applicant, it seems to me that he would mentally consider what was different between him and the applicant and easily infer that the problem was the applicant’s height and age.
56While “more presence” could mean someone younger, it could also mean someone with a physical presence, for example, size and bearing. It could even be a reference to someone with more seniority and ability to speak to the breadth of security issues that the applicant’s supervisor was able to. In order to succeed in this case, it is the applicant who bears the onus of establishing, on a balance of probabilities, that of the multiple possible meanings this comment may have had it was in fact being used as a proxy for age. Discrimination based only on the degree of “presence” a person possesses is not a matter that is covered by the Code.
57Based only on their visual presentations, it appears to me that, speaking stereotypically about security guards, Mr. Elliot is a security guard with more physical “presence” than the applicant. Mr. Elliot is a large, physically fit looking man. Based only on a visual impression, he would inspire confidence in regards to his ability to capably respond to any security situation including a physical response if that were necessary. The applicant is relatively short, and physically slight. While I am sure he is physically fit and very capable of responding to all situations, and again based only on visual impressions, he might not inspire the same confidence as Mr. Elliot might in terms of an ability to respond. In sum, it could well be said that, based on visual, stereotypical values about security guards, Mr. Elliot has more “presence” than does the applicant.
58In comparing the physical differences between Mr. Elliot and the applicant, their different ages are an obvious point of comparison. Any visual comparison will include the observation that Mr. Elliot is a younger man and the applicant is an older man. However, their respective heights and physical sizes are equally apparent. Even assuming that the reference to “presence” was a reference to visual differences between the applicant and Mr. Elliot, there is nothing before me that would provide a basis to infer that “presence” was a reference to age rather than height and size. I note in passing that there is no obvious basis to infer someone of a younger age would have more “presence” than someone of an older age; that seems to me a highly contextual and subjective assessment in which the opposite may often be the case.
59In this case, I find that the applicant has failed to establish on a balance of probabilities that the reference to Mr. Elliot as having “more presence” than him was a proxy for their difference in age. In addition, I accept that Ms. Van Dyk wanted the supervisor at the desk in the event that the tour group had questions concerning the few areas of building security that the applicant would be unable to answer.
60I understand that the applicant came to believe that the fact that he was replaced for some hours on February 23, 2012 was unfair and unwarranted. As noted by the respondent, it is very obvious that the applicant is a dedicated and highly competent security officer who was significantly affected by his replacement on duty for these hours. It is apparent that it was hurtful to him. However, I find that the applicant has not proven, on a balance of probabilities, that the replacement was discriminatory because of his age.
DECISION
61I find that the applicant has not shown that it is more probable than not that the respondent discriminated against the applicant because of age when he was displaced from his regular security post for part of a shift on February 23, 2012. The Application is dismissed.
Dated at Toronto, this 3rd day of November, 2014.
“Signed by”
Brian Cook
Vice-chair