Tamra Baker v. Twiggs Coffee Roasters, 2014 HRTO 1803

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tamra Baker

Applicant

-and-

Twiggs Coffee Roasters

Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: December 19, 2014

Citation: 2014 HRTO 1803

Indexed as: Baker v. Twiggs Coffee Roasters

WRITTEN SUBMISSIONS

Tamra Baker, Applicant

Jamie Lynn McGinnis, Counsel

Twiggs Coffee Roasters, Respondent

Joseph Kennedy, Counsel

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2014 HRTO 460 dated April 2, 2014, which dismissed this Application.

2On May 1, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. The Tribunal invited a Response from the respondent, which was filed on May 30, 2014.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides as follows:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, amended June 2008).

5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9As a result, I need to determine whether the material filed by the applicant in support of the Request for Reconsideration satisfies the criteria set out in Rule 26.5. The applicant relies upon the criteria identified in Rule 26.5(c) and (d).

10The applicant first submits that the Decision is in conflict with the Tribunal’s established caselaw on what constitutes a “directing mind” of an organization respondent in the context of the potential imposition of liability on an organization respondent for harassment by one of its employees. This arises as a result of an issue raised by the adjudicator as to whether the respondent could be held liable for the conduct of one of its employees. While the issue of whether this employee was part of the respondent’s “directing mind” was not addressed in the Decision, I note that the submissions made by the applicant on reconsideration were not made before the adjudicator and the adjudicator was not referred to the caselaw relied upon by the applicant.

11There is no doubt that there is long-established caselaw at this Tribunal supporting that liability for harassment by an employee can be imposed on an organization respondent where the harassing employee forms part of the “directing mind” of the organization respondent, on the basis of the “organic theory of corporate liability”: see Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583; Strauss v. Canadian Property Investment Corporation (No. 2), (1995) 1995 CanLII 18191 (ON HRT), 24 C.H.R.R. D/43 at para. 55; and Ghosh v. Domglas (No. 2), (1992) 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 at para. 54.

12The real issue is whether the principles set out in this caselaw are appropriately applied in the context of the facts as found by the Tribunal in its Decision in the instant case, such that the Decision is in conflict with established jurisprudence or factors exist that outweigh the public interest in the finality of Tribunal decisions. The applicant relies upon this Tribunal’s decision in Shroff v. Tipco, 2009 HRTO 1405 for the proposition that even an employee with limited supervisory responsibility has been determined to be part of the directing mind of a corporation. In the Shroff case, the employee who had engaged in the harassment was a team leader, directed work flow and was able to take disciplinary issues to his employer, though he did not have authority to hire, fire or actually impose discipline.

13The applicant also relies upon the Ghosh decision for the proposition that corporate liability was imposed on the employer where the harassing employee was in a position to make decisions on behalf of the company. In that case, the Tribunal found (at para. 56) that the harassing employee: was able to control the complainant’s work assignments to some considerable extent; summoned the complainant to his office to give him instructions and inform him on various matters, such as the denial of a salary increase; would instruct the complainant to replace absent floor supervisors even after he had been transferred to another area; and was consulted on a decision to deny the complainant a promotion. While the Tribunal recognized that the harassing employee did not have the authority to discipline or discharge the complainant, the Tribunal found that the harassing employee’s functions “involved the making of decisions on behalf of Domglas seriously affecting the complainant”.

14There is no dispute that Cara did not have the power to hire, fire or impose discipline. Nor is there anything on the face of the Decision or in the applicant’s submissions on reconsideration to indicate that Cara held a “team leader” position or was responsible for assigning work, or that she could recommend discipline to the employer or was regularly consulted on hirings, firings or promotions.

15The applicant points to five factors in support of her position that Cara was part of the respondent’s “directing mind”. First, she points to the admission made by the respondent in its Response that following the birth of the co-owner’s (Laura’s) baby in April 2012, Cara was asked to start ordering product and take a lead role in ensuring efficient customer service. This admission does not go so far as to indicate that Cara was placed in a supervisory role in relation to the other employees, nor does it indicate that Cara was made responsible for assigning work to the other employees. Rather, the evidence before the Tribunal indicates that the employees at the restaurant worked collectively as a team and that no-one was in charge at the Fraser Street location except Laura.

16The applicant next relies upon evidence that Cara represented to the applicant that she was capable of hiring her. Cara’s representations to the applicant are discussed at length in the Decision, and her evidence and the representations she made to the applicant about her authority were found to be unreliable and lacking in credibility.

17The applicant next asserts that Cara accommodated the applicant’s request to have Saturdays off, and that Laura accepted this from Cara with no follow-up about it with the applicant. With respect, that is not the evidence as set out in the Decision. While Cara represented to the applicant that it would not be a problem if she could not work Saturdays, Cara had no authority to agree to this. The Decision states (at para. 69) that at some point, Laura found out from Cara that the applicant was not available to work Saturdays, but that this was a problem for Laura as Saturday is the restaurant’s busy day when she needs people the most. The Decision indicates that this was a factor considered by Laura in deciding which of the new hires to retain to work for the restaurant.

18The applicant next relies on the fact that Cara advised the applicant to attend the orientation for the new hires. While this is true, the evidence as set out in the Decision indicates that, after the interviews for potential new hires were completed, Cara came up to Laura and said that she knew somebody coming to town looking for work, and Laura agreed that this person (the applicant) could come in for orientation and “we will see how it goes”. Contrary to indicating that Cara had the authority to include the applicant in the orientation, the evidence actually indicates that Cara needed to seek permission from Laura for this to occur.

19Finally, the applicant relies upon the fact that Laura asked Cara to call the applicant to cancel her shift on the day she was terminated. The evidence as set out in the Decision indicates that Cara was simply asked to convey the message to the applicant that her shift that day was cancelled. The decision to cancel the shift (and the decision to terminate the applicant’s employment) was made by Laura. In my view, the fact that Cara was asked to convey a message to the applicant does not indicate that she exercised the kind of supervisory authority required to be considered part of the “directing mind” of the respondent.

20In my view, having considered the applicant’s submissions on reconsideration and the relevant principles set out in the Tribunal’s caselaw, I find that there is insufficient evidence to support that Cara was part of the respondent’s “directing mind”. As a result, there is no proper basis to support that the respondent should be held to be liable for any harassment Cara may have engaged in based on the “organic theory of corporate liability” or to find that the Decision is in conflict with established jurisprudence.

21The applicant further notes that her position as set out in the Application is that Cara was a manager at the restaurant, which was denied by the respondent, and asserts that the adjudicator did not address this conflict in the Decision. To the contrary, at para. 12 of the Decision, the adjudicator makes express reference to the applicant’s evidence that she understood that Cara had the authority to hire her; and at para. 18 of the Decision, the adjudicator makes reference to the respondent’s position (as supported by Cara’s evidence) that Cara was not a manager and did not have authority to hire the applicant, and to Cara’s evidence that she misled the applicant into believing otherwise because she wanted to appear more powerful than she was. The issue of the characterization of Cara as a manager also is addressed by the adjudicator in the context of the telephone call between the applicant and Laura on July 13, 2012 (see paras. 91 and 139-140). While the adjudicator does not accept Cara’s evidence as reliable or credible, she does largely accept the truthfulness of Laura’s evidence and rejected the applicant’s position that Laura was generally untruthful or lying.

22The applicant also raises the argument that it is possible for corporate liability to be established for unauthorized acts of an employee, based on the “significant connection” test. In this regard, the applicant relies upon the decision in K.T. v. Vranich, 2011 ONSC 683 (while this decision is characterized in the reconsideration request as a decision of this Tribunal, in fact it is a decision of the Ontario Superior Court). The Vranich decision addresses the issue of vicarious liability of an employer in the context of a sexual assault committed by an employee who is identified as the “de facto manager” of a night club and the “ostensible face of [the] corporation”: see paras. 1, 75. Vicarious liability for the employee’s tortious conduct is imposed on the basis of the “synonymity” between the employee and the corporate defendant. In addition, the decision goes on to consider whether vicarious liability is appropriately imposed if the employee’s acts were regarded as unauthorized by the corporation, and it is found that it would be based on the “significant connection” test.

23I start by noting that the Vranich decision deals with the imposition of vicarious liability for the tortious acts of an employee at common law, and not under the Code. The argument that sexual harassment engaged in by an employee cannot be a basis for corporate liability under human rights legislation was rejected by the Supreme Court of Canada in Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 SCR 84. However, the Robichaud decision was dealing with federal human rights legislation, and did not address the specific exclusion of harassment as a basis for deemed liability that appears at s. 46.3(1) of the Ontario Code. While corporate liability for harassment under the Code has been imposed on the basis of the “organic theory of corporate liability” where the harasser is part of the “directing mind” of the corporation or on the basis that management knew or ought reasonably to have known of the harassment and failed to take appropriate steps to address it, the applicant has not pointed to any Tribunal authority imposing corporate liability for harassment under the Code on the basis of the “significant connection” test.

24That said, it is my view that, even if the factors identified as part of the “significant connection” test are considered, this would not support the imposition of liability on the respondent for Cara’s actions. The first factor is the opportunity that the enterprise afforded Cara to abuse her power. Based upon a review of the Decision, it does not appear to me that there is any real support for a finding that the respondent gave Cara the opportunity to abuse her power. Rather, Cara appears to have taken it upon herself to hold herself out as being more powerful than she was in some misguided effort to impress the applicant. The applicant points to the fact that the respondent authorized Cara to call the applicant to advise that her shift on July 13, 2012 was cancelled, which was the context in which Cara told the applicant (wrongly) that her employment had been terminated because of her pregnancy. In my view, it is not reasonable to conclude that, by merely asking Cara to pass along a message, the respondent thereby can be regarded as affording Cara the opportunity to abuse her power (which she did not in fact have) by telling the applicant she had been terminated. Similarly, while the evidence indicates that Laura told Cara that she was going to terminate the applicant’s employment, again this does not support any reasonable conclusion that this created an opportunity for Cara to abuse power that she did not in fact possess.

25The next factor to be considered in the “substantial connection” test is the extent to which the wrongful act may have furthered the employer’s aims (I note that this factor is misstated in Vranich as referring to the “employee’s aims” which appears to be a typographical error based on the factor as identified in the cited passage from Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120 at para. 59). It is difficult to comprehend what Cara’s aims were in misrepresenting her authority to the applicant, but it appears to me that her aims were more personal in nature – in terms of wanting to make herself appear more important and powerful than she was to the applicant. Not only did Cara’s unauthorized misrepresentations not serve to further the employer’s aims, they created a difficult situation of potential legal liability.

26The next factor is the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise. Once again, in my view, the wrongful acts of Cara were related to her own personal aims and not to anything inherent in the respondent’s enterprise.

27The next factor is the extent of the power conferred on the employee in relation to the victim. The applicant submits that Cara was “the lead employee” and had more power over the applicant than other employees. As discussed above, this is simply not supported by the evidence as set out in the Decision. It is submitted that the Tribunal found that Cara hired the applicant. To the contrary, the Tribunal found that Cara had no authority to do so. Rather, the most that can be said is that, following completion of the interviews for new hires, Cara asked if someone she knew could attend orientation and Laura agreed to this. It is submitted that the Tribunal found that Cara accommodated the applicant’s request for Saturdays off. To the contrary, Cara had no authority to do so, despite her representations to the applicant. Rather, when Cara informed Laura about the applicant’s need for Saturdays off, this was a concern for Laura and contributed to the decision to terminate the applicant’s employment. It is submitted that Cara was authorized to cancel the applicant’s shifts. To the contrary, Cara was only asked by Laura to convey the message that Laura had decided to cancel the applicant’s shift.

28The final factor is the vulnerability of potential victims to the wrongful exercise of the employee’s power. While it may be said that the applicant was vulnerable to the unauthorized misrepresentations made by Cara, I cannot find that this stemmed from any real power conferred by the respondent on Cara.

29Accordingly, even if the “substantial connection” test is applicable to the issue of whether corporate liability for harassment should be imposed on an employer for unauthorized acts of an employee, I find that the evidence as set out in the Decision does not support that the applicant meets this test.

30With regard to all of the foregoing, I note that none of the authorities cited by the applicant in her reconsideration request were placed before the adjudicator for the purpose of rendering her Decision, nor were the arguments advanced by the applicant on reconsideration made to the adjudicator during the course of the hearing or at any time prior to the Decision being rendered. As stated in the Tribunal’s Practice Direction on Reconsideration, reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. I would add that reconsideration also is not an opportunity to raise new theories of potential liability that were never raised or argued before the adjudicator. While I appreciate that the issue of whether Cara engaged in harassment was identified and raised by the adjudicator, the parties did have the opportunity to make submissions on this point, and could have requested an opportunity to file supplementary written submissions following the last day of hearing if more time was required to properly address this issue.

31The applicant contends that the Tribunal failed to consider a portion of a text message to the applicant sent by Cara on July 13, 2012, which states: “ . . . and its not about your how you work its just how she know when she was pregnant she couldnt do the things she was normally can do”. It is asserted that this text message is relevant to the contention that Laura’s views about pregnancy went from positive prior to her pregnancy to negative post-pregnancy. In fact, this text is quoted at para. 85 of the Decision and discussed again at para. 145. The bottom line of the Decision is that the adjudicator determined that the representations made by Cara in her various texts, as well as her evidence generally, are not credible or reliable. With regard to Laura’s actual views about pregnancy and employees who are pregnant, this is expressly discussed at para. 133 where the adjudicator expressly states that she is not prepared to find that it is more likely than not that Laura has a negative attitude towards hiring or employing pregnant women, due to the respondent’s undisputed history of hiring and retaining pregnant workers and due to Laura’s own experience in working throughout her pregnancy. In this passage, the adjudicator also expressly finds that “Cara sometimes says and does things she does not mean”. In my view, there is no basis to support the applicant’s contention that the adjudicator failed to consider Cara’s July 13, 2012 text message to the applicant.

32Finally, the applicant submits that the adjudicator was not prepared to find that Cara left work early on July 8, 2012 due to discrepancies between the applicant’s testimony and her witness statement. It is stated that the applicant corrected this error in her witness statement by e-mail dated October 29, 2013, prior to the commencement of the hearing. The applicant also disputes the inference that Cara did not leave early on July 8, 2012 that the adjudicator drew from the schedule for that day. In my view, nothing turns on this. It appears clear that an error was made in the applicant’s witness statement, which was corrected prior to the hearing. For whatever reason, the applicant affirmed the truth of her witness statement as originally filed without making any reference to this correction. Be that as it may, the only real relevance of this point arises from the applicant’s evidence that it was during the ride home on July 8, 2012 that she again asked Cara if she had told Laura about the applicant’s pregnancy (see para. 71). The adjudicator states that it is unclear to her that this conversation took place on July 8, 2012, due in part to the discrepancy with the witness statement; but the adjudicator nonetheless accepts that this conversation occurred at some point and as described by the applicant, because there is no dispute between the parties that the applicant repeatedly asked Cara to tell Laura about the pregnancy. Specifically whether and when the applicant did this is not the issue. The determining issue in the case rests on the adjudicator’s factual finding, explained and supported at length in the Decision, that Cara never did tell Laura about the applicant’s pregnancy until after the decision was made by Laura to terminate the applicant’s employment. The applicant also re-visits the schedules from July 8, 2012 to contend that they support that Cara in fact left early that day. Once again, nothing turns on this. Neither of these points provides a proper or sufficient basis for reconsideration.

33For the foregoing reasons, I am not satisfied that the Tribunal’s Decision is in conflict with established jurisprudence or Tribunal procedure or that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

34For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.