Ledford v. Friendly Times Child Care Centre, 2014 HRTO 70

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pansey Ledford

Applicant

-and-

Friendly Times Child Care Centre and Nicole Julien

Respondents

DECISION

Adjudicator: Mark Hart

Date: January 16, 2014

Citation: 2014 HRTO 70

Indexed as: Ledford v. Friendly Times Child Care Centre

APPEARANCES

Pansey Ledford, Applicant

Leslie DeSouza, Representative

Friendly Times Child Care Centre and Nicole Julien, Respondents

Daniel Lublin, Counsel

1This is an Application dated May 30, 2012, and filed on June 22, 2012, 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 age and disability.

2The applicant alleges that her hours of work were changed because of age and disability, and that she was subjected to discriminatory comments by the personal respondent and a poisoned work environment on the basis of her age. The respondents do not dispute that the applicant’s hours of work were changed, but state that this was due to operational changes and the applicant’s failure to register as an Early Childhood Educator (“ECE”). The personal respondent denies making comments about the applicant’s age.

3At the hearing, the applicant also alleged that the termination of her employment was due to her age and disability. The respondents take the position that this was not alleged in the Application, but in any event was due to the same operational changes.

4The hearing in this matter took place in Toronto on September 30 and October 1, 2013. As the applicant was represented at the hearing by her pastor, who does not have legal training, I took the lead in questioning the applicant and afforded her, through her pastor, the opportunity to provide any further relevant evidence once my questioning was completed. The applicant was the only witness called to provide evidence on her behalf. The personal respondent was the only witness called by the respondents.

The parties

5The organizational respondent Friendly Times Child Care Centre (“Friendly Times”) is a not-for-profit organization providing childcare and childhood education services in Toronto. It offers childcare programs for pre-school and school-age children.

6The applicant worked for Friendly Times as an Early Childhood Assistant (“ECA”) since December 1997. Her employment at Friendly Times was terminated by letter dated April 12, 2012 with four months working notice extending to July 1, 2012. Due to medical reasons, the applicant did not return to work following her suspension for cellphone use on April 17, 2012. The applicant was 56 years old at the time she was given notice of the termination of her employment.

7The personal respondent commenced her employment at Friendly Times in April 2010 as acting Director, initially to cover a maternity leave. The personal respondent became the permanent Director in January 2011. The personal respondent was 28 years old at the time of the hearing.

Allegation re change in scheduling

8The events at issue in this proceeding took place at a time of transition for Friendly Times. Its program was located in a public school in north Toronto, and provided full-day care for pre-school children between two and 3.8 years of age and half-day care for children in junior and senior kindergarten. The program also provided before and after school care to school-age children up to 12 years of age.

9During the period at issue, the provincial government announced the phased implementation of full-day kindergarten. This had two consequences for Friendly Times. First, this resulted in a significant drop in enrolment in its program and resulting loss of funding, as junior and senior kindergarten children no longer required half-day care. The personal respondent testified that prior to this change, it had 46 children in its program, while after the change, it lost 15 children or about one-third of its enrolment and funding.

10The second consequence resulted from the fact that an ECE is required to supervise each room of children. While an ECA can assist an ECE, an ECA like the applicant is not permitted to be alone with the children. This had an impact on the applicant, who was working full-time as an ECA. As full-day enrolment and funding declined, there was no longer a need or resources for a full-time ECA during the day in addition to the ECE. As a result, the applicant lost her full-time hours and began being scheduled for a split shift to cover the before and after school periods.

11The evidence before me indicates that staff at Friendly Times, including the applicant, were given ample notice of these impending changes. The personal respondent held a staff meeting early in her tenure on May 19, 2010, at which she notified staff that ECAs would not have full-time positions in 2013 as that is the year that full-time kindergarten was to be implemented at the school where Friendly Times was located. The personal respondent also advised all staff, including the applicant, that all staff were required to be registered with the College of ECEs by 2012 in order to maintain full-time hours. The applicant testified that she does not recall whether she attended this meeting. It is clear to me from the notes of this meeting made by the personal respondent that the applicant in fact was in attendance at this meeting. Not only is the applicant identified as having been in attendance, but the meeting notes also include specific reference to a comment made at the meeting by the applicant.

12Also in evidence before me is a letter dated March 1, 2011 addressed to the applicant from the Friendly Times Board of Directors, which states that it will require all full-time staff to be registered as an ECE as of January 1, 2012, and that the applicant was required to be registered with the College of Early Childhood Educators to be eligible to maintain full-time hours. The applicant states that she never received this letter, while the personal respondent testified that she observed a Board member give this letter to the applicant.

13Further, at a staff meeting on December 23, 2011, the personal respondent reminded all staff about full-day kindergarten coming in 2013 and that Friendly Times required all full-time staff to have their ECE diploma and to be registered with the College of ECEs. While the meeting notes in evidence before me indicate that the applicant was present at this meeting, the applicant testified that she was not in attendance on the basis that she was informed by another work colleague after the meeting about one of the topics discussed.

14In my view, it makes no difference whether or not the applicant received the March 1, 2011 letter or was in attendance at the December 23, 2011 staff meeting. The issue before me is whether the changes to the applicant’s hours of work were, in whole or in part, because of her age or disability, or whether the respondents have a legitimate, non-discriminatory explanation for the change in the applicant’s work hours. The contents of the March 1, 2011 letter and the December 23, 2011 staff meeting notes are consistent with what the applicant was told at the May 19, 2010 staff meeting and provide an entirely credible explanation for the respondents’ actions in the surrounding operational context.

15In my view, the evidence before me is overwhelming that the reason for the change in the applicant’s hours of work was attributable to the impending implementation of full-day kindergarten and the stated need for staff to be registered as ECEs in order to maintain full-time hours. Quite simply, the applicant did not complete an accredited ECE program and did not register as an ECE with the College by early 2012, and as a result she no longer maintained full-time hours.

16This explanation also is consistent with what actually happened in relation to the applicant’s hours of work. Her original full-time hours were for a daily seven-hour shift, initially from 7 a.m. to 3 p.m., which later changed in the summer of 2011 to 9 a.m. to 5 p.m., and then in September 2011 to 10 a.m. to 6 p.m. However, during the month of February 2012, the applicant’s hours were reduced and then in March 2012, the applicant was required to work a split shift, from 7 to 9 a.m. and from 3 to 6 p.m. All of this is consistent with the documentation before me which indicates that the applicant’s full-time hours were not maintained by the respondents starting in early 2012, because she did not complete an accredited ECE program and did not register as an ECE with the College.

17As a result, I find that the applicant’s allegation that the changes in her hours of work were due to discrimination because of age and/or disability is not supported by the evidence.

Termination of the applicant’s employment

18As previously indicated, the applicant’s employment was terminated by letter dated April 12, 2012, with four months working notice extending to July 1, 2012. The letter of termination states that Friendly Times was in the process of restructuring its services and could not continue to guarantee the applicant’s position as she did not currently have the required accreditation as an Early Childhood Educator. This is consistent with the evidence before me as to the need for staff at Friendly Times to be registered as ECEs given the impending implementation of full-day kindergarten and the consequent loss of enrolment and funding.

19As noted above, the respondent takes the position that no issue was raised in the Application that the termination of the applicant’s employment was discriminatory. In my view, I do not need to address this issue, as I am satisfied on the basis of all the evidence I heard that the respondents have a legitimate, non-discriminatory explanation for the termination of the applicant’s employment.

20With regard to the applicant’s allegation that the changes to her work hours and the termination of her employment were related to her age, this allegation primarily is based on alleged age-related comments made by the personal respondent, as addressed below. For all of the reasons set out below, I do not accept the applicant’s evidence that these comments were made by the personal respondent. Accordingly, there is no evidentiary basis to support the applicant’s allegation of age discrimination.

21With regard to the applicant’s allegation of discrimination because of disability, I note that the first medical evidence indicating any medical condition that might be regarded as a disability is a doctor’s note dated April 25, 2012, which post-dates both the changes to the applicant’s hours of work and the notice of termination of her employment. There is no evidence before me to indicate that the applicant either had a disability or was perceived to have a disability at any prior time. Accordingly, there is no basis in the evidence to support the applicant’s allegation of discrimination because of disability.

22In terms of the timing of the termination of the applicant’s employment, I heard evidence from the personal respondent that the termination was precipitated by an incident where the applicant spoke harshly to one of the children in the program, as observed by a Board member. The evidence before me indicates that this had been an issue with the applicant in the past, and had been raised with her in previous performance evaluations both by the personal respondent and by the previous director. There is nothing in the evidence before me to indicate that the applicant’s age or any disability played any role in relation to this aspect of the reasons for the termination of her employment.

23I also wish briefly to address the applicant’s suspension for use of her cellphone, which occurred after she had been given notice of termination. It was reported to the personal respondent that the applicant had used her cellphone while at work caring for the children. The applicant’s evidence is that she used her cellphone only briefly to deal with an emergency that had occurred at her home. The applicant was suspended for 14 days for this incident. While this may seem harsh, the evidence before me indicates that this suspension was in accordance with a policy adopted by the respondent’s Board to address previous incidents of cellphone use by staff (ironically, the applicant actually reported one such previous incident to the personal respondent). The evidence before me indicates that the length of suspension given to the applicant is consistent with a prior suspension which previously had been given to a temporary staff member for the same offence. In my view, this incident does not provide any support for the applicant’s allegations of discrimination because of age and/or disability.

24As a result, I find that the termination of the applicant’s employment was not related to her age and/or any disability.

Allegations re age-related comments

25The applicant made a series of allegations about age-related comments alleged to have been made to her by the personal respondent. She alleges that shortly after the personal respondent became acting Director, she asked the applicant how old she was.

26She states that in June 2011, the personal respondent said that the daycare needed “young blood” and needed to be re-constructed for “younger folks”. She also states that the personal respondent said that the applicant was “old enough to be her Mom” and that she was uncomfortable working with the applicant because the applicant was old and she felt like she was working with her Mom.

27The applicant states that in the summer of 2011, she came in to work with a new purse, and the personal respondent commented that the purse made the applicant look “young and trendy” and that the purse was for a “younger person”. The applicant states that sometime later, the personal respondent engaged her in a conversation about going to church and asked whether the applicant wore a hat to church. When the applicant said she did, she states that the personal respondent said that she remembered her grandmother and other older people wearing fancy hats to church and asked whether the applicant wore a fancy hat. These allegations were not set out in the Application, but formed part of the applicant’s witness statement filed prior to the hearing.

28The applicant states that in September 2011, a dress code was put in place. In this context, the applicant states that she asked the personal respondent how she wanted the applicant to dress, to which the personal respondent replied that the applicant dressed appropriately for her age. This allegation also was not set out in the Application, but formed part of the applicant’s witness statement filed prior to the hearing.

29The applicant states that sometime in the latter part of 2011, she had sewed some Christmas stockings for the children. In relation to this, she states that the personal respondent asked who had made them. When the applicant said she had made them, the applicant states that the personal respondent commented that she can understand that, because older people like to sit and sew. The applicant states that she asked the personal respondent why she was always referring to the applicant’s age, to which the personal respondent replied that this was because the applicant was “that age”.

30The applicant states that in January 2012, the personal respondent asked staff to bring in their diplomas and credentials to be posted on the bulletin board. The applicant states that she brought in her licence and diploma in hairstyling and diplomas in child psychology, psychology, social work and for health care aid. She states that the personal respondent said that “these qualifications are for younger, trendy ladies” and that the applicant was “too old to have this kind of educational background”. After first confirming that the personal respondent did not say or do anything else on this occasion, I referred the applicant to the allegation as set out in her Application. After being referred to her Application, the applicant then stated that the personal respondent rolled her eyes and shook her head in bewilderment, and actually said “you look so simple to have all these qualifications”.

31Sometime in early March 2012, the applicant provided a letter to the personal respondent in which she raised issues about the changes to her hours of work. The applicant testified that, about one week later, the personal respondent said that the applicant looked “so simple” and the personal respondent did not know that the applicant knew how to use a laptop. Once again, after being referred to the allegation as set out in her Application, the applicant then testified that what the personal respondent actually said was, “at your age, I thought you didn’t know how to use a laptop”.

32The applicant testified that sometime later, in late March or early April 2012, the personal respondent approached her and said that the applicant was old enough to be the personal respondent’s mother and that the applicant had children older than the personal respondent. Once again, after being referred to this allegation as set out in the Application, the applicant testified that what the personal respondent actually said was that sometimes it was odd to have the applicant around, because she was older than the personal respondent’s mother, and that it was time for the applicant to move on because of her age.

33The personal respondent denies making any of these alleged comments. She states that in her position, she is aware that it is inappropriate to make these kinds of comments to staff, and she does not do so. She states that if she made any reference to the applicant’s manner of dress or purse, any such comments were complimentary and did not relate to the applicant’s age.

34This case calls upon me to assess the credibility and reliability of the testimony I heard. In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and particularly the following comments at pp. 356-357:

…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.

35I also have been assisted by the observations on credibility assessment made recently in R. v. Taylor, 2010 ONCJ 396, as follows (at paras. 58 to 60):

“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.

All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at 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.

Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.

36Applying these considerations, I have significant problems accepting the applicant’s evidence.

37I first note that, as indicated above, there were several occasions when the evidence given at the hearing about comments alleged to have been made by the personal respondent differed from what was set out in the Application, but then, when prompted by me, the applicant would change her evidence to conform to what is in the Application.

38Notably, with regard to the comment about the applicant’s diplomas alleged to have been made by the personal respondent in January 2012, the applicant initially testified that the personal respondent said “these qualifications are for younger, trendy ladies” and that the applicant was “too old to have this kind of educational background”. This is not what the personal respondent is alleged to have said in the Application. Rather, the Application alleges that the personal respondent said, “you look so simple to have all these qualifications”, and goes on to allege that the personal respondent “inferred” that the applicant was too old to have educational qualifications that trendy women such as the personal respondent possess. In addition, after hearing the applicant’s initial testimony about this alleged incident, I asked her specifically whether the personal respondent had said or done anything else on this occasion, to which the applicant said no. When I then pointed her to the Application, in which it is stated that the personal respondent “rolled her eyes” and “shook her head in bewilderment”, the applicant only then testified that the personal respondent had done this.

39Similarly, with regard to the applicant’s testimony about the comments alleged to have been made in March and/or April 2012, the applicant initially gave evidence that did not conform to what is stated in the Application and only confirmed what is alleged in the Application after specifically being referred to the relevant paragraphs. This is particularly significant, because the testimony as initially given by the applicant did not indicate that the personal respondent made any express reference to the applicant’s age. For example, with regard to the alleged March 2012 comment, the applicant initially testified that the personal respondent said that the applicant looked “so simple” and that she did not know that the applicant knew how to use a laptop. In contrast, the Application alleges that the personal respondent said, “at your age, I thought you didn’t know how to use a laptop”. It is striking to me that the applicant would not initially be able to recall a specific age-related reference, but then would be able to recall this after being referred to her Application.

40In the same way, the applicant’s initial evidence about the comment alleged to have been made in late March or early April 2012 is that the personal respondent said that the applicant was old enough to be her mother and had children older than the personal respondent. What is alleged in the Application is that the personal respondent also said, “it’s time for you to move on”, immediately after making these alleged comments. This is alleged to have occurred very shortly before the applicant received notice of the termination of her employment. It seems to me that, if the allegation as set out in the Application is true, the applicant would have been able to recall that the personal respondent said “it’s time for you to move on” after making age-related comments, and so shortly before the applicant received notice of termination. Yet the applicant did not provide this evidence until after I specifically referred her to the allegation as set out in her Application.

41I am further concerned about the applicant’s evidence regarding comments alleged to have been made by the personal respondent in June 2011. In her evidence before me, the applicant testified that the personal respondent said that the daycare needed “young blood” and “younger folks”. If true, that is significant evidence in support of an allegation of age discrimination. However, these alleged comments do not appear anywhere in the Application or in the witness statement filed by the applicant prior to the hearing, and arose for the first time in her testimony before me. Rather, in the Application, the applicant only states that the personal respondent “made clear… that she preferred a younger workforce” without identifying any specific alleged comments to support this proposition.

42I also am troubled by the applicant’s evidence about not being informed about the need for her to register as an ECE in order to maintain full-time employment. In her evidence in chief and on cross-examination, the applicant was adamant that this had never been told to her. In the course of the personal respondent’s evidence, the applicant’s representative requested production of the notes of staff meetings where the personal respondent advised staff of this requirement. By the time the hearing continued the following day, the personal respondent had obtained and disclosed copies of the meeting notes for the May 19, 2010 and December 23, 2011 staff meetings where this requirement had been raised. Yet when the applicant testified in reply and was questioned by me about these meetings, the applicant would not acknowledge that she had been present even at the May 19, 2010 meeting, where she is specifically recorded as having raised an issue. I simply do not accept this evidence, and find that the applicant was in fact in attendance at the May 19, 2010 meeting and was informed by the personal respondent about the need to be registered with the College by 2012 to maintain full-time hours. In my view, the applicant’s failure to acknowledge this in the face of clear evidence that she was in attendance at this meeting significantly undermines her credibility.

43I also note that the applicant alleges that, as early as June 2011, she was being singled out by the personal respondent, that the personal respondent did not want the applicant on her team because of the applicant’s age, and that the personal respondent was being abrupt and dismissive of the applicant. This evidence does not correspond to the very positive performance evaluations given by the personal respondent to the applicant during this time. For example, in the April 2011 performance evaluation, the personal respondent consistently rated the applicant as meeting or exceeding program requirements and wrote that the applicant “has shown great flexibility and continues to adapt to the changes made” and “has shown great initiative carrying through tasks in the classroom”. In the December 2011 performance evaluation, the applicant received even higher ratings and the personal respondent wrote that the applicant “is a wonderful asset to our pre-school room”, “has been very instrumental with dealing with our children”, and “constantly thinks of her team and continues to be a great team player”.

44When asked about this on cross-examination, the applicant’s evidence was that this was what the personal respondent was putting in writing, but did not reflect how the personal respondent otherwise was treating the applicant. This makes no sense to me. If, as alleged by the applicant, the personal respondent was discriminating against the applicant because of her age, did not want the applicant on her team, was being abrupt and dismissive with the applicant, and ultimately reduced the applicant’s hours of work and terminated her employment for a discriminatory reason, then one would expect such negative feelings to be reflected in what the personal respondent put in writing. But the evidence before me indicates exactly the opposite, and conforms to the personal respondent’s evidence that she held the applicant in high regard and viewed her as a valued member of the program.

45I also am concerned about the failure of the applicant to raise any allegation about age-related comments or age discrimination, even when she obtained the assistance of her pastor in preparing and submitting a letter expressing her concern about the changes to her hours of work. This letter (which is dated February 5, 2012 but which all parties agree must have been prepared sometime in early March 2012, given its contents) does include some language to the effect that the applicant is “uncomfortable” with the way the personal respondent has been treating her, and states that she is “only” addressing the matters that directly involve and affect her hours of work. The applicant’s evidence is that the reference to being “uncomfortable” about how she was being treated was intended to relate to the age-related comments, but that she did not specifically raise the alleged comments at this time because she wanted to focus on resolving the issue relating to her hours of work. She further testified that, if the hours of work issue had been resolved to her satisfaction, she would not have proceeded further to raise the allegations about age-related comments.

46However, the evidence before me indicates that the personal respondent met with the applicant on March 20, 2012, specifically to discuss her hours of work and the applicant’s assignment to a split shift. From the minutes of this meeting, which are signed by the applicant, it is clear not only that the hours of work issue was not resolved, but that the personal respondent was intent on maintaining the applicant’s split shift, albeit with the addition of an extra hour in the morning. Yet, even though the hours of work issue clearly remained unresolved at the conclusion of this meeting, the applicant still did not raise any of her allegations about age discrimination or age-related comments. Indeed, these allegations were not raised even after the applicant received notice of termination of her employment on April 12, 2012, or when she received a 14-day suspension on April 17, 2012, or at any time prior to the filing of her Application on June 22, 2012.

47In contrast, I found the personal respondent to be an entirely credible witness. I was particularly impressed by the fact that, when challenged to provide notes of the staff meetings where she said she raised the need for staff to be registered with the College by 2012 to maintain full-time hours, the personal respondent overnight was able to provide documentation from two staff meetings in support of her evidence. Given the form and contents of these notes, there is no question in my mind that these are true copies of contemporaneous notes made by the personal respondent at the time of the staff meetings. I was further impressed when the personal respondent was challenged about her evidence that another staff member previously had been given a 14-day suspension for cellphone use, and once again she was able to provide the supporting documentation by the following day.

48Given my concerns about the credibility and reliability of the applicant’s evidence and my positive assessment of the personal respondent’s credibility, I accept and prefer the personal respondent’s evidence wherever it conflicts with that of the applicant.

49Accordingly, I prefer the personal respondent’s evidence that she did not make the age-related comments as alleged by the applicant, and find as a result that there is no basis to support the applicant’s allegations of age discrimination or a poisoned work environment.

ORDER

50For all of the foregoing reasons, the Application is dismissed.