Liaqat v. Chaudary, 2014 HRTO 1715

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hina Liaqat

Applicant

-and-

Farooq Chaudary

Respondent

DECISION

Adjudicator: Brian Cook

Date: November 27, 2014

Citation: 2014 HRTO 1715

Indexed as: Liaqat v. Chaudary

APPEARANCES

Hina Liaqat, Applicant

Mir Kamal, Representative

Farooq Chaudary, Respondent

Denise Boyce, Representative

Introduction

1This Application alleges discrimination and harassment with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that the respondent, her manager, sexually harassed her and that her employment was terminated for discriminatory reasons or in reprisal.

2The Application was heard on February 21, August 20, and August 21, 2014. Final submissions were received on September 18, 2014.

3The respondent operates two franchise restaurants, each with a different partner. The applicant first worked for the respondent as a cashier in 2008. She left after about one year. In 2010, the respondent’s partner hired the applicant again, and in 2012 she was promoted to the position of manager.

4The applicant alleges that the respondent touched her inappropriately on a number of occasions, and that on two occasions, he tried to kiss her. The touching allegedly mostly happened in the general work area when he passed by. However, sometimes the respondent would find a way to be alone in the office with the applicant and on these occasions, he was more aggressive in his advances. The applicant alleges that the respondent told her he would leave his wife and marry the applicant. She testified that the respondent told her that his wife was in favour of this plan. She said that the respondent offered to buy a franchise for her. She testified that she rebuffed all of these advances, which were unwelcome. She testified that the respondent sometimes followed her home after work and that he would sit in his car outside her home. She testified that she asked her landlady to come to the hearing as a witness to this but her landlady would not come because she was scared. She stated that a man came to the house where she was living and made a threat to the landlady about the applicant. After this the landlady told the applicant she had to leave.

5The applicant testified that the respondent telephoned her family members and made threats to them about the applicant. He turned one of her brothers against her and he now will not speak to her. She testified that she did not ask her family members to come to the hearing to support her case because she did not want them to get involved. In addition, her mother is not well and she was worried that her brother might “cause trouble” if he were to be involved as a witness.

6The applicant testified that she was very affected by the harassment. She testified that she is a faithful Muslim and the treatment she received was especially hurtful as a result.

7She said that she could no longer trust people, her appetite was affected, she could not sleep, and her hair fell out. She did not have a regular family doctor but attended a walk-in clinic. Medication was prescribed but she did not take it. She was referred to a psychiatrist but did not go. She testified at the hearing that she is no longer as affected as she was at the time but that her life is still negatively impacted by the experiences.

8After hearing this evidence on the first day of hearing, I noted that there were no medical records regarding the applicant’s evidence about the impact of the alleged harassment. The applicant undertook to provide medical records. However, apart from a referral form to see a psychiatrist, no records were provided. The applicant explained that she was required to pay $170 to obtain the records and she could not afford this.

9The applicant called two witnesses in support of her allegations. One of these was a friend of the applicant. The friend had worked at a restaurant operated by the respondent in 2007, before she met the applicant. She testified that she did not like the atmosphere in the restaurant but nothing specific happened except in relation to pay for overtime. The friend’s sister worked at the restaurant from 2008 to 2010. The witness testified that her sister would come home in tears after working. She said that she understood from her sister that the respondent inappropriately touched the female staff although not her sister.

10The second witness called by the applicant was a customer at the restaurant in February 2012. He testified that he visited the restaurant on four occasions in that month when he was employed nearby. He testified that on one occasion, when he was at the restaurant, he saw the respondent touch the applicant on her buttocks. On another occasion, he was at the restaurant with his girlfriend. The respondent brought their food to the table and when he served the customer’s girlfriend, the respondent touched her hand and then started to rub it “like a pervert”. The customer testified that his girlfriend started screaming at the respondent who said he was only joking.

11The customer said that he was not a personal friend of the applicant. The applicant said that she had obtained the customer’s phone number from the customer in February 2012 because she was starting to accumulate evidence in support of her anticipated Application.

12Prior to the hearing, the applicant had submitted witness statements, including a statement from the customer who testified. The statements were in the form of sworn affidavits. The customer’s affidavit indicated that the customer witnessed the respondent touching the applicant in “an unwanted manner” and that the applicant told him “about unfavourable sexual approaches” by the respondent. The affidavit makes no mention of the alleged incident involving the customer’s girlfriend. The customer was asked about this discrepancy. He said that he had not mentioned the incident involving his girlfriend at the time he swore the affidavit in order to protect her.

13The respondent denies all of the applicant's allegations. He alleges that the applicant concocted her allegations to extort money after her employment ended.

14The respondent called four witnesses to support his view of the matter. The evidence from these witnesses was mostly intended to show that the applicant is a bad person and that the respondent is a good person.

15Two of the respondent’s witnesses are a mother and daughter. The mother has been a very close friend of the applicant’s mother for about ten years. She has been close to the applicant and has watched her grow up from a young person to a young woman. Her daughter is currently employed by the respondent. The daughter started this work about five years ago on the recommendation of the applicant. The daughter testified that the applicant told her that the respondent was a very good person and a good employer and that this is why she started working in the restaurant at age 15. The mother testified that she has come to know the respondent quite well through her daughter. She usually drops her daughter off at work and picks her up after work. She denied the applicant's suggestion that she had a personal relationship with the respondent and that the respondent had helped pay for her house.

16The daughter testified that she did not get along with the applicant at work. From the beginning, the applicant was her supervisor and treated her badly. The applicant did not do a good job of training her and was often rude. She testified that the applicant was also rude to customers but seemed to get along well with the respondent and the other managers. She never saw any inappropriate behaviour in the restaurant.

17The mother testified that the applicant’s parents are conservative Muslim people and that the applicant's mother is not happy with the applicant’s life style. The witness said that she agrees with the applicant's mother on this point and she emphasized that she believes that the applicant has an inappropriate life style.

18The mother and the daughter both suggested that the applicant likely made up the allegations about the respondent. However, the primary factual basis for this appeared to be an encounter that they had with the applicant at a bank. This encounter took place sometime around the time of the first hearing. They both testified that the applicant appeared very happy and that she told them that she had a plan to get rich quickly and withdrew a large amount of money from her account which she waved around. They testified that she also said that she had a plan to cause “trouble” for the respondent.

19The applicant agreed that she met the mother and daughter at a bank but denied that she said anything about getting rich or causing the respondent trouble. She denied that she had withdrawn a lot of cash. She testified that at the time she had little money.

20The third witness called by the respondent is the Manager of one of the locations that the respondent co-owns. This is not the location where the applicant alleges the harassment occurred. He testified that the respondent is a very good employer. He also had some evidence about the applicant’s employment, noted below.

21The fourth witness called by the respondent has worked for the respondent for three years, including a period when the applicant was her manager. She testified the applicant was not a good manager. She was rude, yelled and was abusive. She testified that the applicant spent a lot of time on the computer doing personal things even when the restaurant was busy. This witness also had some evidence about the applicant’s employment.

22As discussed at the hearing, the evidence about the character of the applicant and the respondent is largely irrelevant to the issues in the Application. If it is true that the applicant has a life style that her mother does not approve of, it does not follow from this that she was not sexually harassed as she alleges. Similarly if it is true that the respondent is a very good employer who treats all his employees “like family”, it does not follow that he did not sexually harass the applicant.

The applicant’s employment

23There were a few important incidents in the latter period of the applicant’s employment.

24In March 2012, the applicant told the respondent that she needed one week off work. According to the respondent, the applicant told him she needed the time off because she was having surgery. The applicant testified that she did not say she needed surgery although she agrees that she said something about having to be off for a medical condition. The respondent said that she could have the time off. The respondent testified that he told his staff to pray for the applicant because of the surgery. The applicant took the time off. The respondent then discovered that she had not had surgery and instead had taken a vacation. He was upset that the applicant had lied to him. The applicant concedes that she lied about the reason for the absence.

25According to the respondent, there were continuing performance issues with the applicant. She was frequently absent and there were complaints about her from the other staff. The respondent testified that the applicant would close the kitchen early and tell customers that certain food was not available. He claims that this resulted in lost income. It was not clear whether the respondent was actually aware of this problem at the time or if he only realized this after she left. However, the witnesses for the respondent who worked at the restaurant said that the applicant often closed the kitchen early and lied to customers telling them that certain food was not available when it was.

26In June 2012, the applicant requested time off. She told the respondent that she needed time off because her father, who lived in New York City, was ill and she needed to visit him. According to the respondent, the applicant was off work from June 16 to June 25. On about June 17, he was speaking to someone who was a friend of the applicant’s parents who told him that the applicant’s father was not sick. According to the respondent, he confronted the applicant about this when she returned but she did not respond.

27The applicant testified that her father was sick. She said that she and her boyfriend drove to New York City and stayed one night and they then went to Las Vegas for a vacation. She conceded that she had lied about the full reason for the time off, but explained that she needed a vacation. The applicant does not think that she was off work for the period June 16 to June 25 although she was not certain about what dates she was off.

28When the applicant returned, she contacted another of the franchise restaurants to enquire about a job. The manager of that restaurant called the respondent and the respondent asked the applicant if she was looking for another job.

29On June 27, 2012, the respondent received a notice from Hydro that the electricity had to be turned off for six to eight hours the following day.

30The respondent testified that he left instructions for the food to be put into the freezer at the end of the evening shift on June 27. The shift ended at about 11:00 pm. The respondent testified that one of the employees telephoned him at about 10:30 pm and suggested that he come to the restaurant. When he arrived, he discovered that there were a large number of chicken pieces sitting out and that the applicant had not cleaned up. The respondent testified that he was very upset about this.

31The applicant testified that the respondent showed up at the restaurant in his night clothes and that he was “going crazy”. The applicant testified that the respondent told her that the next day he was going to supervise her more closely. She testified that the next day she did not feel comfortable coming to work.

32On June 28, a Ministry of Health Inspector appeared at the restaurant. There is no dispute that the Inspector arrived because the applicant had called the Ministry to report that the restaurant was selling food that had not been properly refrigerated. The respondent and the woman who had recently been promoted to be a manager (one of the respondent’s witnesses) testified that they believe that the applicant left the chicken out on purpose, planning that it would be contaminated by the time the Ministry of Health Inspector arrived the next day. The respondent testified that he had disposed of the chicken the applicant left out and that there were no issues with the Inspector.

33The applicant next came to the restaurant on July 1. She came with her aunt and uncle. She testified that she asked them to come with her because she was worried about the respondent.

34When she arrived, the respondent accused her of stealing $500 from the safe. The respondent testified that he kept a float of $1,000 in the safe and that $500 was missing when he counted it. He testified that he called the police. The police told him to check the security cameras. When he did, he found out that they were not working so he did not have evidence. He called the police back and told them he would not pursue the matter with them.

35He did however accuse the applicant when she came with her aunt and uncle. The applicant denied stealing the money. The applicant then went to the police with her aunt and uncle. After hearing about this on the first day of hearing, I directed the applicant to obtain records of her dealings with the police and she provided these records.

36The records indicate that on July 1, 2012, the applicant appeared at the station to report that she had been sexually harassed by the respondent. She also accused him of paying staff cash and hiring people who were not allowed to work in Canada.

37The police record includes detailed notes of a video statement provided by the applicant. The statement includes some of the allegations in the Application. According to the notes, the applicant alleged that the respondent had tried to kiss her on one occasion. This differs from the allegation in the Application and her testimony which indicated that there were at least two occasions when he tried to kiss her. Most of the discussion in the interview concerned allegations of sexual harassment by the respondent of other employees. There are almost no details of sexual harassment or assault involving her apart from the one alleged attempt to kiss her. There is no mention of the allegations in the Application about the respondent offering to marry her or give her a franchise. Much of the discussion related to the respondent’s allegation that she had stolen the money. The conclusion of the investigating officer was:

This is a non criminal incident where the complainant was upset that she had learned that her boss may go to the police to report that she had stolen $500 from him.

She wanted the police to assist her reputation as being a good worker. She also had complaints against her boss eg he sold bad/spoiled food. He spoke inappropriately to female employees. And he hired a male who is not supposed to work in Canada.

Nothing criminal reported.

38The investigating officer took no further action.

ANALYSIS AND CONCLUSIONS

39In assessing the evidence in this case, I must make findings about the credibility and reliability of the applicant and the respondent and the witnesses each called at the hearing. This involves an assessment of their testimony and also how that testimony fits with the other available evidence. As the British Columbia Court of Appeal said in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA):

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

40Other 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.

41There are aspects of the applicant's evidence that raise questions about the reliability of the applicant’s evidence. In the Application, she alleged that the respondent made “sexual advances”, however the applicant did not provide consistent evidence with respect to the frequency and extent of the sexual advances. In the Application the applicant alleged that the respondent “constantly” touched her and on one occasion he tried to kiss her. In her testimony, she said he tried to kiss her on two occasions. According to the records from the police, the applicant told them that the respondent had tried to kiss her on one occasion. In the Application and her testimony, the applicant said that the respondent touched her on a repeated basis. However, in her extensive report to the police, she mentioned very little about touching her and instead referred to alleged touching of others.

42The applicant testified that she complained to her treating doctors about the alleged harassment and that she was referred to a psychiatrist for treatment of problems arising from that harassment.

43The applicant testified that two years later she is still suffering from the effects of the harassment and assault. She said she could no longer trust people, her appetite was affected, she could not sleep, and her hair fell out.

44In the Application, filed about one month after the termination of her employment, the applicant indicated that she could not sleep for one night. She indicated that on July 29 she went to a doctor who prescribed medication but she had no money and could not buy the medicine.

45There appeared to be some discrepancy between the information in the Application about the effects of the alleged harassment and the information provided in the applicant’s testimony.

46The applicant was directed to provide relevant medical records to clarify the complaints she made at the time, the nature and extent of any ongoing symptoms, and also to clarify the reasons for a referral to a psychiatrist. The applicant did not provide the records as directed.

47Had the applicant provided medical records as she was directed, she might have been able to support her allegations and her contention that she is still suffering from the effects she described. Medical records might also have provided some supporting information about the causes of her alleged medical problems. However, the applicant did not provide any medical records except for a referral form.

48The applicant said that the reason she did not provide the records she was directed to provide was that there was a cost to obtain them of about $170. I appreciate that this could be a problem for someone with no income. However, by the time I directed the applicant to provide the records she was represented by a licensed paralegal. The appropriate response in such circumstances is to advise the Tribunal and the respondent of the reason for failing to comply with an order. It is not appropriate to simply ignore the order.

49The applicant’s failure to provide the medical records she was directed to provide means that there is no evidence to support the applicant’s testimony that she suffered significant emotional injury that is continuing as a result of the alleged harassment and assault.

50Section 43(9) of the Code provides:

The Tribunal may draw an adverse inference from the failure of a party to comply, in whole or in part, with an order of the Tribunal for the party to do anything under a rule made under clause (3) (f).

51Section 43(3)(f) concerns the Tribunal’s power to order production of a document.

52In this case, the applicant did not produce relevant medical information she was directed to produce. I find that it is appropriate to infer that the medical information may not have supported the applicant’s allegations.

53The witness called by the applicant who was a customer testified that the respondent rubbed the hand of the witness’s girlfriend “like a pervert” and that the girlfriend started screaming. This incident, which would seem rather remarkable, was not mentioned in the affidavit signed by the witness, despite the fact that the only purpose of the affidavit was to support the applicant’s allegations of sexual harassment by the respondent.

54The other witness called by the applicant worked in the restaurant but was apparently not herself aware of any inappropriate behaviour by the respondent. She said that her sister told her that there was inappropriate touching. This sort of evidence is called hearsay evidence and is of limited value, especially when, as here, it is evidence that is also quite vague.

55In a proceeding under the Code, the applicant bears the burden of establishing, on a balance of probabilities that the allegations are true. In my view, the applicant has not established that it is more probable than not that she was subject to the sexual harassment and assault she has alleged.

56Turning to the circumstances of the termination of the applicant’s employment, and the applicant’s allegation that the termination of her employment was discriminatory or a reprisal, it appears to me that the respondent has provided a non-discriminatory explanation for the termination of the applicant's employment.

57The applicant does not dispute that on two occasions she lied to her employer about why she was taking time off work. The first time, she either told him that she was going off to have surgery or indicated she had some health problem requiring time off but in fact she went on vacation.

58The second time she said that she needed to visit her father who was very sick. She says that she did briefly visit her father but spent most of the time on vacation in Las Vegas.

59It appears that immediately before the termination, the applicant left a large quantity of food unrefrigerated. The respondent was alerted to this and was justifiably angry. Then, knowing that the hydro would be off the next day, the applicant called the Ministry of Health to advise that the respondent was selling tainted meat. This is an allegation that the applicant made in her Application and also reported to the police. The applicant has not provided any evidence to support this allegation and has not explained why she chose that particular time to call the Ministry to relate her allegation. Since the Ministry inspector seems to have found no irregularity there is a significant question about why the applicant called the Ministry. Her action in this regard would add to the respondent’s determination that the applicant’s employment should be terminated.

60I am satisfied that the respondent has established a complete non-discriminatory explanation for the termination of the applicant’s employment.

61For the same reasons, I find that the applicant has not established that it is more probable than not that her employment was terminated in reprisal and contrary to section 8 of the Code.

62It is difficult to know what to make of the alleged theft of $500. According to the respondent, he called the police to report the loss but then did not pursue it when he discovered that the video equipment was not working. The respondent did not provide any record from the police to support his allegation that the applicant stole the money. The applicant denies stealing the money.

63It is not necessary for me to make any finding about this aspect of the dispute between the parties because it appears to me that taking this out of the equation, the respondent has provided evidence to show that the termination of employment was unrelated to any of the allegations in the Application.

DECISION

64The Application is dismissed. The applicant has not established on a balance of probabilities that she experienced discrimination or reprisal in regard to her employment with the respondent.