Wilson v. 1559778 Ontario Inc., 2014 HRTO 1767

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Wilson

Applicant

-and-

1559778 Ontario Inc.

Respondent

DECISION

Adjudicator: Eric Whist

Date: December 9, 2014

Citation: 2014 HRTO 1767

Indexed as: Wilson v. 1559778 Ontario Inc.

APPEARANCES

Laura Wilson, Applicant

Self-represented

1559778 Ontario Inc., Respondent

Shane Smith, Counsel

Introduction

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 on the basis of age and reprisal.

2The applicant worked for the respondent at its Tim Hortons restaurant in Minden. She alleges that a supervisor, Andrew Hurl, made harassing comments to her about her age. She alleges that after she later complained to Tim Hortons corporate head office she was subject to reprisal by Nancy Bishop, the respondent’s owner.

3In responding to the applicant’s allegations the respondent did not lead evidence on the issue of whether Mr. Hurl may have harassed the applicant or not. Rather, it submits that the respondent is not liable under the Code for any harassment that Mr. Hurl was alleged to have carried out. It denies that it reprised against the applicant or violated the Code in any other manner.

4The hearing took place over two days. I heard evidence from four witnesses; the applicant and her spouse, William Wilson, and for the respondents, Debbie Rouble, the manager of the Tim Hortons restaurant, and Ms. Bishop. I also had documentary evidence before me including documents related to the applicant’s hours of work, a disciplinary warning issued to Mr. Hurl and correspondence between the applicant and Ms. Bishop.

5The hearing was bifurcated. Accordingly, the purpose of the hearing was to decide whether the applicant’s rights under the Code were violated with the understanding that only if a Code violation was found to have occurred would the hearing resume to consider evidence and submissions on the effects of the discriminatory treatment and to potential remedies.

DECISION

6The Application is dismissed. I find that Mr. Hurl, a front line supervisor, is not part of the directing mind of the respondent and consequently under the Code the respondent is not liable for his alleged harassment. As a consequence I have made no finding as to whether this alleged harassment occurred or not.

7I find that the respondent’s actions after eventually learning of the alleged harassment are reasonable and do not violate its duties under the Code. I find that the respondent’s actions following the applicant’s complaint to Tim Hortons corporate head office do not constitute reprisal under the Code.

BACKGROUND

8The applicant began work at the respondent’s Tim Hortons franchise in Minden in May 2010. The applicant was 54 years of age at the time. She testified that she had previous experience at a Tim Hortons restaurant in Barrie where she had been a supervisor.

9The applicant was hired as a “Storefront Employee” and was almost immediately assigned to “Lot and Lobby” duties, which principally involve keeping the restaurant’s public areas clean. I had before me a copy of the applicant’s time sheets that indicate that she generally worked 2 or 3 days a week and for approximately 22 hours a week. Ms. Bishop testified that this reflected the fact the applicant had been hired on a part time basis.

10The applicant testified that Mr. Hurl was her supervisor. At the time of the events that gave rise to the Application that there were four supervisors, including Mr. Hurl and Carolyn Steele, Mr. Hurl’s mother-in-law. These supervisors reported to the manager, Ms. Rouble. The applicant testified that in addition to her issues with Mr. Hurl she had a tense relationship with Ms. Steele who she believed had a poor view of her skills and abilities and questioned whether the applicant could work at the front counter or do any job other than “Lot and Lobby”.

11Ms. Rouble testified that her duties as the restaurant’s manager included the hiring and supervising of staff, discipline and managing the payroll and inventory. She testified that the number of staff at the restaurant varied seasonally from a low of approximately 25 to approximately 45-50 in the summer months and that the restaurant relied on a mix of full time and part time employees.

12Ms. Bishop testified she was actively involved in the management of the restaurant. She testified that she would oversee activities carry out certain tasks (e.g. payroll and ordering supplies) and would pitch in where needed. She testified that she was regularly present in the restaurant.

OVERVIEW OF KEY EVENTS

The November 14, 2010 Incident

13The applicant testified that on November 14, 2010, she asked Mr. Hurl to help her with a heavy bucket of soap only to have Mr. Hurl tell her to do “it your own fucking self”. The applicant objected to Mr. Hurl’s swearing and unwillingness to assist. The incident came to the attention of Ms. Steele. It appears, from the written documentation of the incident, that it was Ms. Steele who reported the incident to Ms. Rouble.

14Ms. Rouble testified that Mr. Hurl claimed that he had been trying to get some paperwork down on his break and that he would have helped the applicant with the bucket of soap after his break but that she insisted he help her immediately which led to his swearing at her. Ms. Rouble testified that Mr. Hurl accepted that he had done something wrong in swearing at the applicant and he apologized. She testified that Mr. Hurl was subject to written discipline.

15I had before me the written disciplinary report that was issued to Mr. Hurl by Ms. Rouble that states that any further incidents of swearing at a staff member could result in dismissal. The disciplinary report includes a written statement by Mr. Hurl acknowledging that he swore at the applicant and that he had immediately apologized to the applicant for his actions. The report also includes an eyewitness statement made by another employee and Ms. Steele’s account of what she witnessed and did.

16Ms. Bishop testified that she was aware of the November 14 incident and believed this was because Ms. Rouble told her directly about what happened. She testified that she was not happy with Mr. Hurl’s actions and that it was her decision to have Mr. Hurl issued with a written warning.

17This incident is of considerable concern to the applicant. However, the applicant does not allege that this incident constitutes an act of discrimination based on age or any other ground under the Code.

Allegations of Harassment

18The applicant testified that Mr. Hurl regularly and routinely made offensive comments to her about her age. She testified that he told her, that she was too old, that she was “old as dirt”, that she should be in a rocking chair, that she should be leaving jobs for young people. She testified that he would ask her why she was still working and questioned whether she shouldn’t be retired. She testified that he would make these types of comments regularly and that these comments were overheard by others but nobody responded and no one told Mr. Hurl to stop.

19The applicant testified that Mr. Hurl would also gather staff (the “girls”) around and would throw something on the floor and would then tell the applicant to pick it up. She testified that Mr. Hurl and most of the staff watching would laugh. The applicant did not allege that this behaviour was age related harassment.

20The applicant gave conflicting evidence about whether she complained about Mr. Hurl’s alleged harassment. The applicant testified that on the several occasions she complained to Ms. Steele about Mr. Hurl’s conduct. She testified that Ms. Steele told her that the comments did not mean anything but that she would talk to Mr. Hurl. She testified that nothing came of Ms. Steele following up with Mr. Hurl noting that the relationship between Ms. Steele and Mr. Hurl was strained.

21She testified that she also raised the issue of Mr. Hurl’s conduct directly with Ms. Rouble. She testified that Ms. Rouble told her to speak to Ms. Steele.

22The applicant also testified that she did not complain to Ms. Rouble about Mr. Hurl because Ms. Rouble liked to remain in her office and not be bothered with staff disputes. She further testified that although she did not bring Mr. Hurl’s comments to Ms. Rouble’s attention she believed that another supervisor, Lynn Simmons observed Mr. Hurl’s harassment and reported this behaviour to Ms. Rouble. She testified that she believed Mr. Hurl had been written up as a result of Ms. Simmons’ reporting his treatment of the applicant to Ms. Rouble.

23The applicant also testified that she was not sure what Ms. Simmons had reported and also stated that she believed that what Ms. Simmons reported was Mr. Hurl’s offensive profanity on November 14, 2011.

24The applicant testified that she also told Ms. Bishop that Mr. Hurl had made comments about her age and that he had deliberately spilled things that he had made the applicant clean up. She testified that Ms. Bishop had assured her that she would talk to Mr. Hurl. She testified that she did not hear further from Ms. Bishop.

25The applicant also testified that she did not tell Ms. Bishop about Mr. Hurl’s behaviour because Ms. Bishop was not often at the restaurant.

26Ms. Rouble and Ms. Bishop both testified that neither the applicant nor anyone else told them of Mr. Hurl’s alleged harassment. Ms. Rouble testified that she was unaware of any conflict between Mr. Hurl and the applicant except the November 14 incident. She testified she did not refer the applicant’s complaint about Mr. Hurl to Ms. Steele as the applicant alleged. She testified that she may have referred the applicant to Mr. Hurl or Ms. Steele on occasion because of the nature of the issue the applicant was raising but this would not have extended to a complaint of harassment.

27Ms. Rouble testified that in her view there was no way Mr. Hurl would have thrown food on the floor and told the applicant to pick it up and no way other employees who were alleged by the applicant to have witnessed this would not have been offended or would have failed to report such offensive behaviour. She testified that Ms. Noble would not have tolerated such behaviour if the applicant had told Ms. Noble of this type of behaviour, as the applicant claimed. She also testified Mr. Hurl was a good supervisor, that he was liked by staff and customers and that he was not mean or vindictive.

28Ms. Noble testified that neither the applicant nor anyone else told her that Mr. Hurl was harassing the applicant in any fashion including making inappropriate age related comments.

The Applicant’s Absence from Work

29On January 31, 2011, the applicant went on sick leave. She provided the respondent with a medical note from her doctor stating that she would be off work for four months. The applicant testified that it was the stress of Mr. Hurl’s treatment of her that led to her having to leave work.

30On June 7, 2011, the applicant’s doctor provided the applicant with a letter indicating that she was able to return to work. The applicant testified that on her return to work she wanted to be assigned full time rather than part time hours. She testified that she was of the view that she should be given full time hours because she had previously worked, at least on occasion, full time hours. She further noted that the respondent was advertising in June 2011 for full time staff as it was in the process of staffing up for the summer months. The applicant testified that when she asked for fulltime hours she was told by either Ms. Rouble or Ms. Bishop that “we’ll see”. She testified that she believed the respondent was reluctant to give her full time hours.

31It is noted here that the documentary evidence before me indicates that the applicant returned to work on June 18 and 19, 2011 and worked a total of 18 hours. She was off sick the following week and then worked a further 18 hours on July 1 and 2, 2011. This was the last time the applicant worked for the respondent.

32The applicant testified that while she was waiting to return to work in June 2011 she contacted Tim Hortons’ corporate head office to complain that she was not being treated properly. The applicant testified that she could not remember what her specific complaint to the corporate head office was but she believed she would have complained about Mr. Hurl’s harassment. She testified that she was told by head office that she should bring her issues up with the respondent.

33Ms. Bishop testified that she was contacted by Tim Hortons’ corporate head office and told that the applicant had complained about hours of work and that she wanted to work full time. Ms. Bishop testified that the corporate head office made no reference to the applicant having made any allegations of harassment.

34Ms. Bishop testified that in response to the applicant having contacted head office she asked the applicant to meet with her and Ms. Rouble. This meeting was held on July 2, 2011.

July 2, 2011 Meeting

35The applicant testified that at this meeting Ms. Bishop was angry, that she slammed the door and aggressively questioned the applicant as to why she had contacted head office, telling the applicant she had no right to do so, that she should have come to her. The applicant testified that Ms. Bishop told her never to do that again. She testified that she felt Ms. Bishop was bullying her and that she found the incident distressing. She testified that Ms. Rouble just stood there and witnessed the encounter.

36The applicant testified that in the meeting there was a long talk about how Mr. Hurl was treating her including his comments about her age. She testified that Ms. Bishop told her that she would look into this.

37Ms. Rouble testified that at the July 2 meeting Ms. Noble asked the applicant why she had not approached her if she was unhappy with her hours. She testified that after the meeting Ms. Noble instructed Ms. Rouble to assign more hours to the applicant. She testified that there was no discussion of Mr. Hurl or his conduct at this meeting.

38Ms. Rouble testified that the meeting was about five minutes in length. She testified that the tone of the meeting was civil, that Ms. Noble did not yell nor were doors slammed. She testified that staff and customers would have readily heard any yelling or slamming of doors.

39Ms. Bishop testified that at the meeting the applicant told her that she needed more work hours because Ontario Disability Support Program clawed back a portion of her earnings. She testified she did not fully understand the applicant’s contention but that she told the applicant she would try to give her more hours and later instructed Ms. Rouble to try to find the applicant more hours. She testified that she also told the applicant she wished the applicant had come to her first about her request for more hours rather than having gone to the corporate head office explaining that she did not like to be surprised.

40Ms. Bishop testified that the meeting was calm, that she did not raise her voice, or slam doors or get angry. She testified that the meeting was only about the applicant’s request for more hours, that there was no conversation about Mr. Hurl or his conduct.

The Applicant’s July 22, 2011 Letter and Responses

41On July 22, 2011, the applicant hand delivered a letter to Ms. Bishop. The letter states:

My name is Laura Wilson and I have been in your employ since May of 2010. As you may recall there was a lot of problems with your supervisor telling me to fk off and to do it my fing self when I requested assistance with a task. This was also the same supervisor who made hurtful comments about my age and another supervisor brought this to management’s attention. I let that go and did not take any action, but after the verbal attack on me by your supervisor and a second supervisor who happens to be his mother-in-law. They did their best to verbally slight me and make my life so miserable that I would eventually quit. They abused their power and position in many different ways

After my doctor ordered me to take a medical leave for my health and well being I returned to work and asked for my summer full time hours back and was flatly refused. The day I brought my doctors that I was able to return to work there was a sign on the property advertising for full and part time help. The sign remained up for two months. I complained to Tim Horton’s head office and the day I returned to work you and Debbie your store manager called me into the office and told me never to go to head office again if you had a problem to come to you. I am following your directions and going directly to you. I am asking that my full time hours be reinstated.

Further to this I have been receiving phone calls that I perceive threatening in nature. I have applied for a new unlisted phone number. I would hope you speak to your staff imploring them to discontinue phoning and harassing me.

I am afraid to return to work for fear of future reprisal Please contact me at [the applicant’s telephone number].

I will return to work when you assure me it is safe and not a hostile work environment. Also indicate what hours I will be working.

Thank you, Laura Wilson

42The applicant testified that her reference in the letter to “I let that go and did not take any action” was in reference to Mr. Hurl’s comments about her age. She testified that telephone calls she referred to in this letter were anonymous and featured a caller playing a song with the refrain “Another One Bites the Dust’ and laughing. The applicant testified that she suspected that the caller was Mr. Hurl, as he was the only person she knew who would have the motivation to do this, and who would be childish enough to do this. She testified that when she later discussed these calls with Ms. Bishop, Ms. Bishop told her that she believed that staff would have better things to do and that she suggested that the applicant change her telephone number.

43Ms. Bishop testified that following receipt of the applicant’s July 22, 2011 letter she did follow up on whether an allegation of age harassment had been brought to management’s attention. She testified that there was no information to indicate that any supervisor, including Ms. Simmons, having had raised this issue with management and there was no record of Mr. Hurl having been written up for such behaviour. She did note that she has had Mr. Hurl written up for two other offences; for having left the premises to get a sandwich from another store and for having failed to clean his work area sufficiently.

44Ms. Bishop testified that she also followed up on the applicant’s complaint about receiving harassing phone calls. She testified that once she became aware that the applicant believed these telephone calls were related to her employment with the respondent she issued a notice to all staff telling them of the expectation that they were not to participate in any hostile actions towards any other fellow employees either in or outside the workplace. She testified that all staff were required to sign a document indicating that they had read and understood this notice. I had copies of both the notice and the document staff had signed before me.

45On July 26, 2011, Ms. Bishop wrote an email in response to the applicant’s July 22, 2011 letter. It reads:

Laura,

I received your letter and would like to address your concerns. I do recall the incident with Andrew Hurl in November 2010.

Andrew received both a written and verbal reprimand for his actions are documented in his file. These are the recommended steps to take for an action such as this.

After reviewing all of the hours worked by yourself during your employment it was calculated that your average hours worked per week was 22.68 hours. I have agreed to give you hours that coincide with this average and it is unfortunate that I could not give you the full time hours you were seeking.

I am certainly not aware of any staff members making threatening phone calls and would hope they would have better things to do with their time than to actively cause distress for yourself. I have since posted a notice to all staff reminding them to refrain from any behaviour that would cause another employee grief.

I believe it would be advantageous for us to have a meeting to discuss your concerns. The location of the meeting can be of your choice if you do not wish to meet on Tim Hortons property. At this time I would appreciate if you could write down your concerns and bring them to the meeting

I wait your reply to a suitable meeting and time and location

sincerely Nancy Bishop

franchisee.

August 31, 2011 Meeting

46The applicant and Ms. Bishop exchanged a series of emails in July and August about meeting and the applicant returning to work. They finally met on August 31, 2011, at the applicant’s home in Haliburton.

47The applicant testified that at this meeting she told Ms. Bishop that she wanted to return to work on a full time day shift but only when Mr. Hurl and Ms. Steele were not present. She testified that Ms. Bishop told her she could not do this because Mr. Hurl and Ms. Steele worked days. She testified that Ms. Bishop offered her work on the evening shift. She testified that she did not feel safe working evenings and that working evenings was not suitable for her. She testified that when there was no resolution of what shift she might work she told Ms. Bishop she did not want to work at the Minden restaurant. She testified that Ms. Bishop did not offer her work at a different Tim Hortons restaurant as Ms. Bishop had claimed in the respondent’s Response.

48The applicant testified that she believed Ms. Bishop was aware at this meeting of everything Mr. Hurl had been doing to her.

49Mr. Wilson, the applicant’s spouse, testified that he was at their home in Haliburton when Ms. Bishop and the applicant met on August 31, 2011. He testified that he was in a room adjacent to the meeting where he could overhear what took place in order to make sure the applicant was not yelled at as he understood she had been during the June 2, 2011 meeting with Ms. Bishop and Ms. Rouble. He testified that the applicant asked if she could work daytime hours when Mr. Hurl would not be there and that Ms. Bishop said no. He testified Ms. Bishop offered the applicant the opportunity to work nights. He testified that he heard the applicant ask Ms. Bishop if anything had been done about Mr. Hurl calling her older than dirt and Ms. Bishop told her that Mr. Hurl had been written up and not to worry about it. He testified that the meeting was amenable and there was no yelling. He testified he was not sure how the meeting ended other than the applicant indicating she could not work nights.

50Mr. Wilson testified that during the period the applicant was employed with the respondent the applicant did not generally discuss her employment but that the applicant did tell him about the incident in which Mr. Hurl had sworn at her and about Mr. Hurl making comments about her age. He testified Mr. Hurl’s actions made the applicant become more concerned about her looks and made her feel that she was not liked. He testified she became more depressed about going to work. He testified that the applicant told him that Mr. Hurl had been written up for his behaviour before. He testified that the applicant told him about trying to complain to Ms. Rouble about Mr. Hurl but being told to go to speak to Ms. Steele. He testified he was unaware of what specifically the applicant wanted to complain to Ms. Rouble about.

51Mr. Wilson testified the applicant also told him that she had been scared during the July 2, 2011 meeting with Ms. Bishop and Ms. Rouble. He testified that the applicant did tell him about why she had called Tim Hortons’ head office but he did not recall exactly why. Mr. Wilson testified that he was under medication and testified that he constantly had a poor memory.

52Ms. Bishop testified that at her meeting with the applicant on August 31, 2011, she tried to respond to the applicant’s concerns about the anonymous phone calls she had received. She testified that she asked the applicant if she had called the police or had attempted to identify the caller by pressing star 69. She testified that she asked the applicant why she thought the caller might be a Tim Hortons employee. She testified that the applicant said she just knew the caller was Mr. Hurl. She testified that this was the only concern about Mr. Hurl that the applicant raised during the meeting, that there was no discussion about Mr. Hurl having made comments about the applicant’s age.

53Ms. Bishop testified that she offered the applicant a position in the Minden store. She testified that the applicant indicated she did not want to work on the same shift as Mr. Hurl. She testified that she alternatively offered the applicant the opportunity to work on evening or the midnight shift but that the applicant declined. She testified that she offered the applicant a further alternative, a position in a Tim Hortons restaurant in Haliburton that was still in the process of being built, but the applicant declined. Ms. Bishop testified that when it became apparent that no arrangements could be made she offered the applicant a letter of reference and told her she would give her hours of work if she ever chose to come back to work in the future. She testified that the meeting ended on an upbeat note.

FINDINGS OF FACT

54To determine whether the Code was violated in the present case I must make findings of fact based on an assessment of the evidence and the credibility and reliability of the conflicting accounts of what took place in particular what the applicant may have said to the respondent about Mr. Hurl’s alleged harassment. In making my assessment of credibility, I have relied on the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), in particular the following comments:

…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 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. (p. 356-357)

55I have also relied on the observations on credibility and reliability made in R. v. Taylor, 2010 ONCJ 396, cited by the Tribunal in Soheil-Fakhaei v. Canadian Business College, 2012 HRTO 172, as follows:

“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.

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. (R. v. Morrissey, para. 205)

56I do not find the applicant to be a credible or reliable witness. Much of her testimony was vague and/or difficult to follow. The applicant provided little detail about her allegations and her account (and chronology) of events was highly confusing. On several occasions when she was questioned about key events she would fail to provide an answer stating that her mind had gone blank or would provide an answer explicitly stating that she could not recall the event but had a guess as to what might have happened. The applicant was unable to provide a clear and consistent account of events. And her evidence on the important issue of whether she told management of Mr. Hurl’s alleged harassment was highly contradictory.

57The applicant testified that her limited ability to communicate and recall events was as a result of her decline in health which she attributed, in some measure, to how she was treated by the respondent. She described giving testimony as stressful and difficult.

58I am mindful that it can be difficult for persons to testify at a hearing before the Tribunal and to recount past events for health and other reasons. I am aware that it was clearly difficult for the applicant to give evidence and have carefully considered what the applicant was able to communicate. However, ultimately it is the inconsistencies in the applicant’s testimony and the strength of the respondent’s evidence that have led to my key findings.

59I find that the applicant never told Ms. Rouble or Ms. Bishop that she was harassed by Mr. Hurl as she, at times, claimed and that the respondent was unaware of this allegation until the applicant’s letter of July 22, 2011. This finding is based on the following.

60The applicant gave contradictory testimony as to whether during the course of her employment she told either Ms. Bishop or Ms. Rouble that she had been subject to harassment by Mr. Hurl. She testified that she personally told Ms. Rouble and Ms. Bishop of this harassment on different occasions while she was working. These assertions were, in my view, vague, tentatively suggested and without any persuasive detail. The applicant also clearly contradicted these assertions when she testified that she had not raised the issue of Mr. Hurl’s harassment with either Ms. Rouble or Ms. Bishop.

61The applicant also gave clearly contradictory evidence about whether she raised her allegation of harassment at the July 2, 2011 meeting. She testified that she did, she also testified that she did not. The applicant was also not sure about whether she complained about Mr. Hurl’s alleged harassment to Tim Hortons’ head office. The applicant’s testimony was that she could not remember if she told head office but believed she would have. I am not persuaded that I have clear or cogent evidence to find that the applicant did raise her concern about Mr. Hurl’s behaviour either to Tim Hortons’ head office or at the July 2 meeting as claimed.

62In contrast to the applicant I find Ms. Bishop and Ms. Rouble to be credible witnesses. Their evidence was concrete, specific and consistent. I find their descriptions of the workplace, their management practices and the actions they took in relation to the applicant credible.

63Ms. Rouble and Ms. Bishop’s both testified that they were never told of Mr. Hurl’s harassment. I find this testimony credible. They did more than just deny the allegation. They both provided consistent and complementary testimony, for example, that the applicant’s complaint to Tim Hortons’ head office and the subject of the meeting on July 2, 2011 was about the applicant’s hours of work, not about a complaint about Mr. Hurl’s conduct.

64My determination that the applicant did not raise a complaint of harassment is also based on a finding that the respondent had a demonstrated willingness to respond to other complaints made by the applicant and to do so in a comprehensive manner. I note that following the November 14, 2010 incident in which Mr. Hurl swore at the applicant Mr. Hurl was interviewed and issued a written disciplinary warning. As part of this disciplinary process a written eye witness statement was taken and a report from Ms. Steele was filed. When the applicant later raised a concern that she was being harassed over the telephone Ms. Bishop issued a notice to staff about not participating in any hostile actions against other staff including outside of the workplace. She required staff to sign a commitment acknowledging this directive. I do not find it likely given these actions that the respondent would have simply ignored a further allegation by the applicant that she was being subject to harassing comments by a fellow employee (and an allegation that the applicant was forced to pick up items off the floor while others watched and laughed) if these allegations had, in fact, been brought to its attention.

65The applicant did testify that she believed that another supervisor, Ms. Simmons, may have told Ms. Rouble about the alleged harassment. It was not clear on what basis the applicant believed this to be the case as she testified she was not sure what Ms. Simmons said to management. She also stated, at least on one occasion, that Ms. Simmons’ complaint to management was about Mr. Hurl’s actions on November 14. She did testify that she believed Mr. Hurl had been written up for his harassing comments based on Ms. Simmons reporting. This was denied by Ms. Bishop who testified that there was no such record.

66I am not prepared to accept that Ms. Simmons reported Mr. Hurl’s alleged harassing comments to management based on the lack of clear or persuasive evidence to indicate she did. I also find that it is improbable that Mr. Hurl would have been written up, as the applicant contends, based on a report by Ms. Simmons without the applicant being either interviewed about Mr. Hurl’s alleged harassment and/or having been told that Mr. Hurl was being disciplined for his harassing behaviour particularly given the fact that the respondent undertook such a thorough disciplinary process when Mr. Hurl was disciplined for swearing at the applicant on November 14, 2010.

67And finally I find the applicant’s statements in her July 22, 2011 letter to Ms. Bishop only further confirms that she had not previously told Ms. Rouble or Ms. Bishop of Mr. Hurl’s alleged harassment. The applicant writes:

As you may recall there was a lot of problems with your supervisor telling me to fk off and to do it my fing self when I requested assistance with a task. This was also the same supervisor who made hurtful comments about my age and another supervisor brought this to management’s attention. I let that go and did not take any action…

68I find the applicant’s written comment about not taking any action about her supervisor’s hurtful comments about her age supports a determination that the applicant did not previously tell Ms. Rouble or Ms. Bishop about Mr. Hurl’s conduct as she did try to assert at the hearing.

69I would further note here that I find Ms. Bishop’s July 26, 2011 written response to the applicant’s July 22, 2011 letter significant. In her letter Ms. Bishop states that she would like to respond to the applicant’s concerns. She states that Mr. Hurl was disciplined for his swearing at the applicant. She states that she did look into the applicant’s hours of work noting that based on her calculation of the applicant’s previous hours of work she could not provide her with full time hours. She communicates that she has, in response to the applicant’s concerns about threatening anonymous telephone calls, told staff not to engage in any such behaviour. She tells the applicant that she would like to meet and asks the applicant to record in writing any further concerns she might have.

70I find this letter, along with Ms. Bishop’s actions regarding the November 14, 2010 incident and the anonymous telephone calls, to be evidence of a manager trying to act responsibly and to respond to the concerns of an employee. I find the letter to be supportive in tone and one indicating a willingness to respond to any concerns the applicant may be having. This letter contributes to my finding that Ms. Bishop was a credible witness when she described her interactions with the applicant. It also contributes to my findings about the contested accounts of what took place when the applicant and Ms. Bishop met on August 22, 2011.

71The August 22, 2011 meeting was initially arranged in order for the applicant to bring forward any concerns she might have (this was the suggestion Ms. Bishop made in her July 26, 2011 letter). It is evident from both the applicant and Ms. Bishop’s testimony that the principle focus of the meeting became the applicant’s return to work.

72The finding I must make is whether the applicant complained about Mr. Hurl’s harassment at this meeting. Ms. Bishop testified that the applicant did not. The applicant testified that that she believed Ms. Bishop was aware at this meeting of everything Mr. Hurl had been doing to her. I did not find this qualified and unparticularized assertion persuasive. I prefer Ms. Bishop’s testimony that the issue of concern to the applicant and which was discussed was not any comments made about her age but her anxiousness over the telephone calls and her belief it was Mr. Hurl who had made these calls, an issue Ms. Bishop testified that she tried to respond to. I am of the view, based on my assessment of Ms. Bishop’s prior actions, that Ms. Bishop would have responded to a complaint about harassing comments if it had been made. Ignoring such a complaint would have been, in my view, contrary to Ms. Bishop’s demonstrated behaviour to date.

73It is true that Mr. Wilson testified that he was a witness to the meeting and that he overheard the applicant from another room specifically tell Ms. Bishop that Mr. Hurl had called her as old as dirt and that Ms. Bishop had replied by saying that Mr. Hurl had already been written up and that the applicant should not worry. I do not find this testimony credible.

74In my view Mr. Wilson was attempting to support his spouse. I am troubled that the applicant provided no similar testimony about her exchange with Ms. Bishop either in terms of what she may have said to Ms. Bishop or what Ms. Bishop may have said to her. I further find that it would have been improbable that if the applicant had complained about Mr. Hurl calling her as old as dirt that Ms. Noble would have dismissed this concern by telling the applicant not to worry that Mr. Hurl had already been written up. In my view Ms. Bishop’s past conduct in terms of both her willingness to respond to the applicant and her various concerns and her willingness to issue discipline to Mr. Hurl (as she appears to have done on three occasions) satisfies me that she would not have not have dismissed a complaint about an offensive comment about age by saying Mr. Hurl had already been written up and that the applicant should not worry, the comment attributed to her by Mr. Wilson.

75For these reasons I prefer Ms. Bishop’s account of August 22, 2011 meeting and am satisfied that the applicant did not raise the issue of Mr. Hurl making age related comments at this meeting.

ANALYSIS

76There are essentially three further issues I need to decide:

1. Is the respondent potentially liable for Mr. Hurl’s alleged harassment?

2. Did the respondent meet its responsibilities under the Code once it learned that the applicant was of the view that Mr. Hurl had made inappropriate comments about her age?

3. Is the respondent’s treatment of the applicant following her complaint to Tim Horton’s corporate head office an act of reprisal under the Code?

1) Is the Respondent Potentially Liable for Mr. Hurl’s Alleged Harassment?

77Section 5 of the Code states:

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, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

78Section 10 of the Code defines harassment as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

79The applicant’s allegation that she was subject to harassing comments by Mr. Hurl is an allegation pursuant to section 5(2) of the Code.

80Section 46.3(1) of the Code states:

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

81To clarify, under section 46.3(1) of the Code, an employer is considered to be liable for any discriminatory act by a person in the course of that person’s employment except in instances when the alleged act is an act of harassment including acts of harassment under section 5(2). This would suggest that the named respondent, the corporate owner of the Tim Hortons restaurant where the applicant worked, is not liable under the Code for Mr. Hurl’s alleged harassment of the applicant.

82However, the Ontario Divisional Court has held that if the person responsible for the harassment is a “directing mind” of the employer, then the employer can also be held liable for the person’s actions. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 33. The issue then is whether Mr. Hurl is part of the directing mind of the respondent such that the respondent should also be held liable for his alleged harassment of the applicant.

83Ms. Rouble testified that supervisors were responsible for “running the floor” which included assigning tasks to staff on a given shift, ensuring that the required duties got done and food safety. She testified that supervisors were not involved in hiring or scheduling of staff but did give feedback to staff on their performance and dealt with minor conflicts or minor issues of discipline such as telling staff if they were taking too long on a break. She testified that any more substantial issues of discipline were required to be brought to her for action.

84Ms. Bishop testified that all hiring, scheduling (including approving vacations) was done by herself or Ms. Rouble. She testified that discipline including coaching as done by Ms. Rouble or herself. She testified that in her view, supervisors were, in effect, lead hands, rather than managers given that they were not involved in hiring or firing or in payroll related matters. She noted that supervisors were paid on an hourly basis like staff while she and Ms. Rouble were salaried.

85I also had documentary evidence before me about the respondent’s own harassment policy and Tim Horton’s corporate workplace harassment policy. The applicant was provided both policies when she was hired and was required to sign both policies acknowledging that she had understood them. The respondent’s policy directs any person who believes they have been harassed to report the matter to the store manager (or if reasonable to do so the person can raise the matter with the alleged harasser). The corporate policy directs the persons to speak to their store manager or the store owner.

86The concept of a directing mind has been relatively well established under the common law. It has generally been interpreted to refer to a director, manager or officer of a corporation who has the power to set and make policy, See Canadian Dredge & Dock Co. v. The Queen 1985 32 (SCC).

87In the case before me I am satisfied that Ms. Bishop as the owner and Ms. Rouble as the sole manager of the respondent’s restaurant in Minden are the directing minds of the respondent given the scope and nature of their responsibilities. I do not find that Mr. Hurl, as a frontline supervisor in a fast food restaurant with limited authority and responsibility can be categorized as a directing mind. I find the respondent’s harassment policies reinforce the delineation between the manager and owner and all other employees including supervisors and make clear that it is the manager and/or owner who have the authority and responsibility for addressing issues of harassment. This contributes to my finding that Mr. Hurl should not be considered a directing mind.

88Given Mr. Hurl is not part of the directing mind of the respondent and is not a party to this Application it is neither necessary nor appropriate to make a finding as to whether his alleged behaviour actually occurred, or if it did whether it constitutes harassment under the Code.

2) Did the respondent meet its responsibilities under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) once it learned that the applicant was of the view that Mr. Hurl had harassed her?

89The Tribunal has held that an employer has a duty to investigate complaints of discrimination or harassment; that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination free environment. See Laskowska v. Marineland of Canada Inc. 2005 HRTO 30. A failure to take reasonable steps to address allegations of discrimination may result in an employer being held liable for violating the Code.

90As already noted I am satisfied that the applicant did not during the period she was actively working for the respondent complain to either Ms. Rouble or Ms. Bishop that she had been harassed by Mr. Hurl on the basis of age. What she did eventually communicate in her letter of July 22, 2011 was that Mr. Hurl made hurtful comments about her age and that a supervisor brought this to management’s attention. She further stated that she had let this go and did not take any action. The issue I need to consider is whether the respondent’s response to this information was reasonable pursuant to its duty to investigate.

91Ms. Bishop testified that following receipt of this letter she enquired as to whether any supervisor had complained to management about Mr. Hurl’s alleged comments. She testified that she could find no evidence of such a complaint or any related discipline for Mr. Hurl. I am satisfied that Ms. Bishop made this enquiry, as claimed. This is based not only on the fact that I found Ms. Bishop to be a generally credible witness but because I am satisfied that she was a conscientious manager (witness her responses to the applicant’s July 22 letter) and given my earlier finding that I found it improbable that Ms. Simmons made a complaint that generated disciplinary action against Mr. Hurl as the applicant claimed.

92Ms. Bishop testified that she did write to the applicant on July 26, 2011 in order to respond to concerns the applicant had raised in her July 22 letter. She referred to Mr. Hurl being disciplined for the November 14, 2010 incident, to the rationale for why the applicant was being given part time hours, to the applicant’s concerns about the anonymous telephone calls and to having posted a notice to all staff reminding them to refrain from any behavior that would cause another employee grief. She then proposed a follow up meeting with the applicant in order for the applicant to bring forward any other concerns she may have. This meeting was held on August 22, 2012. I have made a finding that the applicant did not raise the issue of Mr. Hurl’s alleged age related comments at this meeting.

93I find the respondent’s response to the applicant’s July 22 letter reference to having made hurtful comments about the applicant’s age to be reasonable. The respondent determined that no previous complaint about age related comments had been made to management. She invites the applicant to meet to discuss her concerns. The applicant does not raise the issue of age related comments at this meeting. The focus of this meeting becomes how the applicant might return to work. It is true the applicant does express at this meeting an unwillingness to work with Mr. Hurl (and with another supervisor, Ms. Steele) but the expressed issue of concern to the applicant is that Mr. Hurl might have made threatening telephone calls to her. I do not see that the respondent had a duty to further explore the applicant’s brief reference to Mr. Hurl having made hurtful comments about the applicant’s age when the applicant indicated that she had let that go, when there was no evidence that the applicant or anyone else had complained about it at any time while the applicant was actively working for the respondent and when the applicant did not raise it as a concern on August 22.

94I am satisfied that the respondent’s actions after July 22, 2011 do not violate the Code.

3) Is the respondent’s treatment of the applicant following her complaint to Tim Horton’s corporate head office an act of reprisal under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html).

95The applicant alleges that the respondent reprised against her for having complained to Tim Horton’s’ head office. She specifically alleges that it is the rude and aggressive way in which Ms. Bishop treated her during their July 2, 2011 meeting that constitutes the act of reprisal.

96Section 8 of the Code provides that:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing

97As the Tribunal explains in Noble v. York University, 2010 HRTO 878 in order to establish reprisal within the meaning of the Code, it is necessary to find that the alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code.

98I do not find that the applicant was reprised against contrary to section 8 of the Code. As I indicated earlier I am not satisfied that the applicant has provided credible evidence that her complaint to Tim Horton’s’ head office included a complaint that she had been subject to Code related harassment by Mr. Hurl. I have also made a finding that the applicant did not make the respondent aware of any allegation of harassment during the course of this meeting. The meeting, in my view, was strictly about the applicant’s request for additional hours of work.

99It is possible that during this meeting Ms. Bishop expressed some degree of displeasure that the applicant had gone to head office to express her desire for more hours of work. However, the issue of how forceful or rude Ms. Bishop may have been at this meeting is immaterial as I have determined that the applicant was not attempting to enforce a right under the Code either in her dealings with head office or at the July 2, 2011 meeting.

100For these reasons the Application is dismissed in its entirety.