Tashany Davidson v. The Corporation of the City of Brampton, 2014 HRTO 689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tashany Davidson Applicant

-and-

The Corporation of the City of Brampton Respondent

DECISION

Adjudicator: Judith A. Hinchman Date: May 14, 2014 Citation: 2014 HRTO 689 Indexed as: Davidson v. Brampton (City)

APPEARANCES

Tashany Davidson, Applicant Ayoob Khan, Representative

The Corporation of the City of Brampton, Respondent Asha F. Rampersad, 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 because of disability and age. While the applicant also checked off “record of offences” and “association with a person identified by a ground listed above”, she submitted at the hearing that these were included in error and in fact there is nothing in her Application to suggest that these would be alleged grounds of discrimination. As well although the applicant also included contracts as an area of discrimination she submits that the area is only employment and again there is nothing in the Application to suggest that she alleges discrimination with respect to contract. I am satisfied that the Application deals with allegations of disability and age in the employment context.

2The hearing of the Application was on April 8 and 9, 2014. I heard from three witnesses and admitted a number of exhibits into evidence.

preliminary issue respondent’s motion to strike

3The respondent requested that the Tribunal strike paragraphs 15, 17, 18, and 19 of the applicant’s Schedule “B” in her Reply to a Response. The respondent argues that these submissions raise new grounds of discrimination that were not raised in the Application and provide new allegations that could have been provided in the Application.

4After hearing submissions from the parties, I ordered that paragraphs 15 and 17 alleging racially discriminatory comments be struck from the applicant’s pleadings. The applicant did not allege racial discrimination in her Application and did not suggest in any of the narrative in the Application that racial discrimination was a ground in her Application. Applicant’s representative argued that as the applicant was unrepresented when she filed her Application, she did not include all the details of her complaint. However, given that there is nothing in the Application narrative to support that she faced racial discrimination I am not persuaded by that explanation. Racial allegations are serious and I would have expected to see something in the Application to reflect those concerns. I find that the allegations of racial discrimination in the Reply are an attempt to expand the subject matter of the Application and do not form a proper part of the Application before me.

5With respect to paragraphs 18 and 19, which respect allegations of age discrimination, I find that although the Application did not provide the detail that is included in the Reply, the applicant did assert age as a ground in her Application and the Application narrative included allegations that she was called “kido” and that she was treated differently as a younger person than others. I find that paragraphs 18 and 19 are sufficiently related to the allegations in the Application so as not to be fresh allegations and do not strike these paragraphs.

BACkGROUND

6On May 9, 2011 along with eleven others, the applicant began as a Temporary Bus Operator with the respondent City of Brampton’s Transit Division, Works and Transportation Department. Her employment contract stated that this position would terminate on September 4, 2011 unless extended by mutual agreement in writing. On August 11, 2011, the applicant and the other eleven Temporary Bus Operators who began on May 9th were offered an extension of the temporary employment until September 2, 2012.

7On February 1, 2012 the applicant applied for a full-time Bus Operator position that was posted by the city.

8On February 21, 2012 the applicant’s temporary employment was terminated.

9The applicant alleges that her age and disability were factors in certain comments made to her as well as the employer’s treatment of performance issues that ultimately led to her termination. She also alleges that these grounds were factors in her not being offered the full-time Bus Operator position.

Applicable code provisions

10The applicant’s evidence must establish a credible foundation upon which the Tribunal can find not only that she was treated differently but also that she was treated differently on the basis of a prohibited ground.

11Section 5 of the Code states:

(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.

12Harassment is defined in Code section 10 as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

applicant’s evidence

13In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances. In Faryna, the Court of Appeal considered a witness’s opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he or she has seen and heard, and also observed that:

…a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

14Accordingly, I have not considered the witness’ evidence in isolation, but rather, in the context of the totality of the evidence. See Chan v. MTY Tiki Ming Enterprises Inc., 2013 HRTO 915.

15I have also considered the Ontario Court of Appeal’s comments on reliability in R. v. Morrissey 1995 CanLII 3498 (ON CA), (1995), 97 CCC (3d) 193 (C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity that is his or her willingness to speak the truth, as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Disability

16In her Application the applicant alleges that her employment was terminated because she was ill, although she still made efforts to attend her shifts. She identified the periods of illness as when (1) she was rear-ended on her way to work, (2) she had the flu and was sent home and went to the hospital because she already had a medical issue with her lung, and (3) she went to work with a burned eye from contact solution and then developed an eye infection.

17At the hearing, the applicant testified more specifically that these three incidents, which are supported by medical certificates of absence, relate to:

1. October 13-16, 2011, when the applicant was off work for the flu,
2. October 25-29, 2011 when the applicant was off work following a rear-end collision, and
3. January 23, 2012, when the applicant developed an eye infection.

18The applicant also testified that while she had the flu she began to experience breathing difficulties and given a past experience with a blood clot in her lung, was advised to stay home until October 17th, which she did. In all three cases the applicant agreed that the respondent gave her time off and that she was better when she came back to work, although she worked through a “banging” headache on her first day back after the car accident. She also testified that she required no accommodation for any issues regarding the past blood clot. The medical notes do not indicate that the applicant had any restrictions upon returning to work, although the applicant testified that her eyes were uncomfortable after the eye infection and she chose to use her glasses from time to time.

19The applicant also alleges that after returning from the absence due to flu, one of her supervisors Antoinette Vieira asked her how she was feeling and in the conversation also asked if the applicant was pregnant. The applicant said no and has not alleged that any further conversation happened on that point or that any other remarks were made about a possible pregnancy. The sole query about pregnancy made four months prior to the applicant’s termination in my view does not raise a Code-related concern of discrimination based on sex that she was dismissed or disciplined because the respondent thought she was pregnant. Furthermore the applicant did not allege this anywhere in her Application and did not testify at the hearing that she thought the respondent cited her for performance issues or terminated her employment because management thought she was pregnant.

20For the following reasons I find that the applicant did not have a disability or perceived disability during her employment with the respondent.

21Section 10 of the Code defines disability as:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…,

22Citing the Board of Inquiry case Ouimette v. Lily Cups Ltd. (1990) 1990 CanLII 12497 (ON HRT), 12 CHRR D/19, the Tribunal has stated that not all illnesses are found to constitute disability under the Code. See e.g.; Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960, Anderson v. Envirotech Office Systems, 2009 HRTO 1199. In particular temporary, commonplace, or transitory illnesses such as the flu, cold, or other everyday illnesses have been excluded. The Tribunal has stated that a condition “that is commonly experienced by many” and has no impact on a person’s ability to participate fully in our society, is not sufficient. See Anderson, supra, and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27. Thus “short term common ailments that can and are routinely experienced by just about everyone … as such do not constitute disability under the Code.” Burgess, above at para 31.

23I also find persuasive the British Columbia Council of Human Rights which stated, “[n]ot every absence from work for a medical reason constitutes a physical disability,” rather “the condition must entail a certain measure of severity, permanence and persistence.” Nahal v. Globe Foundry Ltd, [1993] BCHR No. 28, [1993] 1993 CanLII 16468 (BC HRT), 21 CHRR D/136, at para. 55 citing also Ouimette, above.

24In my view the applicant’s four-day absence for flu represented a transitory and commonplace illness that did not constitute a disability. With respect to the blood clot, the applicant has not demonstrated that this was a permanent or persistent condition and has testified that she was able to return to work with no restrictions or concerns about that incident. With respect to the incident when the applicant was rear-ended and off work for a few days, although she returned to work with a headache, she has not testified or demonstrated that the headache persisted beyond that day and the medical note regarding this absence did not indicate any restrictions to her employment. In fact during the applicant’s direct testimony she did not discuss this incident at all. Under cross-examination she testified that the office phoned her to ask if she was okay. She responded that she was not 100% but would be able to manage. The caller also said “get well.” The applicant did not testify or present any information that she was injured in the accident. I do not find that the absence constitutes a disability. Finally, with respect to the contact solution irritation in her eye and the eye infection, the applicant testified that the resulting eye infection cleared up and she was cleared to return to work without restrictions, although she chose to wear her glasses from time to time.

25The applicant has failed to establish that she had any type of disability during her employment with the respondent and as thus, any allegations relating to this ground are dismissed.

Perceived Disability

26The next question is whether the respondent perceived that the applicant’s ability to work was limited by the above temporary conditions and whether this constitutes a perceived disability under the Code.

27The applicant’s evidence is that in each of the above situations, she presented medical notes indicating she was able to return to work and that she did in fact return to her scheduled shifts. It is not reasonable and I do not infer that the respondent might have concluded that the applicant’s short absences or the reasons she was absent were due to a disability. On a balance of probabilities I find that the respondent did not perceive that the applicant had any disability because she was off for a few days each on account of the three incidents discussed.

Age

28The applicant testified that although she agreed and took responsibility for incidents leading to several Employee Conduct Reports (“ECRs”) that led ultimately to her termination, she felt that she was treated differently in that older individuals were not written up as she was and that older individuals who had had performance issues were not terminated. On cross examination the applicant testified that she had not seen any other employee’s performance records and was basing her conclusion on what she had heard from other employees. The applicant provided no particulars about this and in any case I find that this hearsay evidence is speculative and not reliable.

29The applicant testified that on several occasions she was referred to as “kido” and that she believed that she appears younger than she is and so was treated differently as a younger person, in particular that her colleagues viewed her as a kid and thus labeled her as a troublemaker. The applicant did not testify to any particular times that she heard the term troublemaker applied to her.

30The applicant testified that on many instances the respondent Executive Director Sue Connor called her “kido”, that a co-worker Tony called her “kido”, and that soon after the termination when she met her union representative, Larry Jodouin, he told her that he was going to meet with Ms. Connor to discuss the termination and said “not to worry kido.”

31She also alleges that in June 2012, several months after her termination, she met with Sue Connor to discuss whether the respondent would reemploy the applicant. During that meeting the applicant alleges that Ms. Connor told the applicant “you must go gain experience and reapply you are still young.” The applicant argues that this made it clear that age was a factor in the termination decision.

32On cross examination, the applicant testified that she only met Ms. Connor once and for the meeting referred to above, which lasted for one hour. I found the applicant initially evasive in responding to questions about the many instances when Ms. Connor called her “kido.” The applicant also admitted that she only met Ms. Connor once and also that the meeting lasted an hour. This is not consistent with Ms. Connor calling the applicant “kido” on many occasions, nor is it logical that during a one-hour meeting Ms. Connor did so either. I do not find that the applicant is reliable on this point.

33The applicant also alleges that age was a factor in her not being offered full-time employment after she applied in February 2012. She asserts that she was the youngest of the group of twelve individuals who began temporary employment at the same time and that the other eleven individuals were offered full-time employment.

Motion to dismiss for failure to establish prima facie case

34Following the applicant’s evidence, the respondent made a motion that the applicant’s case be dismissed for failure to establish a prima facie case. I heard submissions by the parties and ruled that with respect to disability or perceived disability, the applicant had not met her onus and that it would not be necessary for the respondent to provide evidence in answer. With respect to age, I ruled that the respondent would be required to answer. My reasons follow.

35It is well established in human rights law that the onus is on an applicant to establish a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at para. 28, a prima facie case was described as one, which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. See also Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 where the Tribunal explained that the principle of prima facie case incorporates the concept of no reasonable prospect of success under Rule 19A.

36The three elements of the prima facie test the applicant must meet are:

1. That she is a member of a group protected by the Code;
2. The she was subjected to adverse treatment; and
3. That the alleged grounds were a factor in the alleged adverse treatment.

Shaw v. Phipps, 2012 ONCA 155, citing Dang v. PTPC Corrugated Co., 2077 BCHRT 27, [2007] BCHRTD No, 27, at para. 82.

Disability or Perceived Disability

37As I have found that the applicant did not demonstrate that she either had a disability or was perceived by the respondent to have a disability during her employment, the applicant has not shown that she was a member of those groups protected by the Code. The applicant’s evidence is not complete and sufficient to justify an answer from the respondent that she was discriminated against based on disability or perceived disability. As a result the allegations related to disability or perceived disability are dismissed without the need for the respondent to answer in the hearing.

Age as a Factor In Termination, Full Time Job Application, and Age Related Comments Constituting Harassment

38Following the applicant’s evidence, I found that it was not appropriate to dismiss the age related allegations for lack of prima facie case and that it would be appropriate to hear a response from the respondent.

respondent’s evidence on allegation of age discrimination

Termination and Employee Conduct Reports of Performance Issues

39Manager of Operations for the respondent Kevin O’Halloran testified that he, another Senior Manager of Operations Peter Adler, and the respondent’s Executive Director Sue Connor made the decision to terminate the applicant’s temporary employment following their appraisal of performance concerns that were brought to his attention. Mr. O’Halloran testified that he and Mr. Adler oversee the day-to-day operation of approximately 700 employees. Of those 680 are transit operators, some temporary and some full time. Mr. O’Halloran testified that he becomes aware of performance issues because whenever an ECR is issued he receives an email. The ECRs are reviewed and if not the first instance, then a Senior Operation Supervisor is asked to meet with the employee. He meets weekly with three Senior Operation Supervisors from the Transit Division who provide him with updates on the handling of the ECRs and feedback from the employee meetings. In his testimony one of these Senior Operation Supervisors Sean Walsh corroborated that this is the standard practice. This evidence was not disputed and seems reasonable to me. I accept that this was the process for receiving and reviewing ECRs.

Employee Conduct Reports and Follow Up

40After several late report incidents, management became concerned that the applicant was not using good judgment at times when she was running late on her way to work and did not call in early enough for them to easily find a replacement driver. Mr. O’Halloran testified that during training the applicant would have learned that a certain amount of lead time was required if a driver was running late in getting to work and that finding replacement drivers would be difficult. Evidence of the training curriculum was admitted and not controverted and in fact the applicant testified that she was very pleased at the respondent’s training and felt it was excellent. I am persuaded that the applicant was aware of the respondent’s policy for notifying possible late arrivals. I also accept as reasonable that because of the applicant’s late notifications, her assigned routes were in jeopardy of either being late or being cancelled.

41Several other incidents also left management with the impression that the applicant did not exercise proper judgement in executing her duties. These included taking the wrong type of bus one day resulting in the cancellation of that route, driving to work with reduced visibility after the incident when contact solution burned her eyes with the intention to drive her route, and causing damage to two buses through a preventable collision in the bus terminal. Although the applicant asserted that there were reasons for all of these incidents, she did not dispute that they occurred and accepted responsibility for them.

42I am not persuaded that the write of up of these incidents were pretexts to harass the applicant for her age. First of all the respondent has submitted persuasive evidence through testimony and copies of the ECR documents that the applicant in fact had a number of performance issues. While the applicant argues that she was trying her best, she accepts responsibility for the incidents. Therefore it is undisputed that the incidents occurred. Second, I have not found that the applicant has established that any of her direct supervisors who wrote up the ECRs viewed her as young and therefore a troublemaker motivating them to write false or exaggerated reports. I am not prepared to accept the applicant’s speculation that the ECRs were motivated by her age. The Tribunal has stated that is not appropriate to make findings based on mere assumptions or bald assertions. See Sosoo v. Winners Merchants, 2010 HRTO 1367, at para. 79; George v. Peel Condominium Corporation No. 490 et al, 2013 HRTO 2114, at para. 14. On a balance of probabilities I find that the ECRs were not motivated by the applicant’s age but that they represented accurate reports of performance issues. I do not find that with respect to documenting performance issues the applicant was treated differently than others due to her age.

43With respect to the manner in which management handled the ECRs, following each incident Mr. Walsh assigned a supervisor to meet with the applicant and coach her with respect to avoiding a similar incident in the future. Mr. O’Halloran testified that the respondent through training and ongoing coaching of employees regarding conduct incidents invests in the employees to help them succeed. I am satisfied that this process followed to address the applicant’s ECRs was the normal practice applied to all temporary bus operators during their first year. I find that the applicant was not treated any differently than any other temporary bus operator following her ECRs.

Termination Decision

44Both Mr. Walsh and Mr. O’Halloran testified that they did not know the applicant’s age. Mr. O’Halloran explained that while the Human Resources department would have that information, he rarely had reason to access that information and did not do so for the applicant. The policy of keeping that sort of information with the Human Resources department is logical and the respondent witnesses’ testimony is consistent with that. Mr. O’Halloran testified that he did not meet the applicant until the termination meeting. And Mr. Walsh testified that he did not interact regularly with the applicant. No evidence was presented to contradict these submissions. I found both witnesses credible on the point of whether or not they knew the applicant’s age. Furthermore, I do not accept that Mr. O’Halloran who first met the applicant at the termination meeting could have earlier formed an opinion that she was of a young age.

45Neither party called Ms. Connor as a witness to either support or rebut the allegation that she told the applicant she was young and needed more experience. The applicant submits that Ms. Connor said “you must go gain experience and reapply you are still young.” Even if I accept that this statement was made, I do not agree that it supports an inference that age was a factor in the applicant’s termination. In my view this also is merely an assumption by the applicant. The statement was made several months after the applicant’s job ended and it is logical that Ms. Connor was simply trying to be helpful and suggesting that the applicant gain some additional experience.

46Mr. O’Halloran testified that in determining if a temporary employee is the right fit for the respondent, the most important factors are performance, punctuality and keeping to schedules as the public relies on the advertised bus schedules, safety, obeying traffic laws, and customer service. These factors make sense given the nature of the service the respondent provides. I have found that the applicant’s ECRs were an accurate record of performance issues. On a balance of probabilities I find that age was not a factor in the decision to terminate the applicant’s employment but rather the reasons were a series of performance issues that were considered important by the respondent in any evaluation of whether or not to continue the employment of a temporary bus operator.

Application for Full Time Position

47With respect to hiring full time bus operators, Mr. O’Halloran testified that he is involved in hiring but not aware of the ages of those who apply. Mr. O’Halloran testified that Temporary Bus Operators may apply for posted full-time positions. The key hiring factors are performance evaluations, seniority, safety, and reliability. Mr. O’Halloran testified that the applicant’s employment was terminated during the hiring period for the February 2012 posted full-time positions. Because she was terminated due to her performance record that included issues regarding reliability and safety Mr. O’Halloran testified she was thus not considered appropriate for a full-time position. I have found Mr. O’Halloran did not know the applicant’s age when considering her application and in fact he testified that he did not know the ages of the other candidates either. I find that the applicant’s age was not a factor in the decision not to offer her a full-time position.

Age Related Comments

48With respect to the applicant’s allegations that she was called “kido” on several occasions, neither party called any of the three individuals who the applicant stated made those statements. The applicant expressed a clear recollection of Tony and Mr. Jodouin each calling her “kido” once and I accept that evidence. I do not find however that either of those instances amounts to harassment under the Code.

49While the Tribunal has accepted a single comment as a Code breach, it also has considered context and incorporated the analysis of a British Columbia Human Rights Tribunal decision Pardo v. School District No. 43, 2003 BCHRT 71, in which that Tribunal stated that “all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the [British Columbia Human Rights] Code.” See B.C. v. London Police Services Board, 2011 HRTO 1644. The context of Mr. Jodouin’s comment, accepting the applicant’s evidence, is when he was trying to reassure her following her termination that he would look into it, he was doing so as her union representative and not a co-worker. This does not constitute harassment in employment under the Code.

50With respect to the alleged comment by Tony, the applicant did not provide any context for the comment and has not testified that at the time she was disturbed by it. I am similarly not persuaded that this single utterance amounts to harassment under the Code.

51I have already found that the applicant’s evidence that Ms. Connor called her “kido” on several occasions is unreliable given that they only met once for a short meeting that occurred several months after the applicant’s employment was terminated. However, under the circumstances it is credible that Ms. Connor said that she was young and should gain experience. Ms. Connor’s advice to the applicant to try to gain more experience before reapplying with the respondent also does not in my view support a finding of harassment under the Code. First in my view this is not a vexatious or egregious comment. And furthermore, it postdates the applicant’s employment termination by several months and thus is not a comment made during the applicant’s employment.

52For all of the above reasons, this Application is dismissed.