Erin Shilcock v. Dryco Building Supplies, 2014 HRTO 975

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erin Shilcock

Applicant

-and-

Dryco Building Supplies

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: July 4, 2014

Citation: 2014 HRTO 975

Indexed as: Shilcock v. Dryco Building Supplies

APPEARANCES

Erin Shilcock, Applicant

Self-represented

Dryco Building Supplies, Respondent

Roy Filion, Counsel

INTRODUCTION

1The purpose of this Decision is to decide whether the respondent discriminated against the applicant by terminating her employment because she was or may have become pregnant.

BACKGROUND

2The respondent is a building supplies company, which provides supplies to contractors and sub-contractors. The respondent’s head office is in British Columbia, and it has branch offices in several provinces, including three in Ontario.

3The applicant began working for the respondent as a Sales Support and Accounting Administrator in its Burlington, Ontario office on September 14, 2011. In July 2012, the applicant found out that she was pregnant, but then had a miscarriage. She spoke with a manager, Jeff Landry, and her direct supervisor, Lee Milstead, about her situation in late July 2012. On August 3, 2012, the respondent terminated her employment.

4On August 27, 2012, the applicant’s legal counsel sent a demand letter to the respondent. The letter alleged that shortly after starting her employment, Mr. Milstead and Mr. Landry warned her not to become pregnant because the respondent’s President would “freak”, and that after the applicant informed them in late July 2012 that she became pregnant but had a miscarriage, Mr. Milstead terminated her employment.

5On January 16, 2013, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to employment because of her sex. Specifically, she alleged that shortly after she started her job, a comment was made to her not to get pregnant because head office would “freak”, and that less than a year later, the respondent terminated her employment shortly after she confirmed to Mr. Landry that she was pregnant, and had a full discussion with Mr. Milstead about her pregnancy and miscarriage.

6On February 27, 2013, the respondent filed a Response, which denied the allegation of discrimination. The respondent stated that it terminated the applicant’s employment for performance reasons, and that the decision to terminate her employment was made before she informed two managers about her pregnancy and miscarriage. The respondent further stated that it has emails, which prove that its decision was made prior to the applicant disclosing her pregnancy and miscarriage.

7The hearing took place on December 20, 2013. I heard the testimony of two witnesses: (1) the applicant and (2) Mr. Milstead, who was the respondent’s General Manager of Operations in the Burlington office and the applicant’s direct supervisor. I also admitted into evidence a number of documents, including emails exchanged amongst the respondent’s management about the applicant in June and mid-July 2012.

EVIDENCE

8On August 18, 2011, the respondent sent the applicant an offer of employment letter, and attached her job description. The job description had two sections. The first section set out the position’s sales support duties and the second section set out the position’s accounting duties. The job description indicated that the applicant would report directly to the General Manager of Operations (Mr. Milstead) and indirectly to the Senior Controller (Glenn Gordon). Mr. Gordon, who was a certified accountant, worked out of the respondent’s head office in British Columbia. The applicant accepted the offer.

9The applicant testified that shortly after she started the position, she was having a smoking break with Mr. Milstead and Mr. Landry, and one of them told her not to become pregnant because the respondent’s owners from British Columbia were coming. She stated that she was unable to recall who specifically made the comment. In cross-examination, when her counsel’s demand letter which attributed the comment to both Mr. Milstead and Mr. Landry, was put before her, she admitted that she had reviewed the letter before her counsel sent it to the respondent, but maintained that only one of them made the comment.

10In his testimony, Mr. Milstead denied that he ever made such a comment to the applicant, and stated that he never heard Mr. Landry make such a comment when the three of them were together either.

11In March 2012, the respondent sent the applicant for four days of training on accounting to the respondent’s head office in British Columbia. Mr. Milstead testified she was sent for training because there were concerns about her job performance, specifically, her inability to keep up with workload of her job, and her inability to take on additional accounting duties which were contemplated when she was hired.

12The applicant testified that she had too much work on her plate, and had to come in on weekends to finish her work, but denied that she had performance issues. She also stated that the respondent was trying to teach her to be an accountant, but she did not go to school to be an accountant, and it was not her job.

13Mr. Milstead testified that in June and mid-July 2012, he had email and telephone discussions with Mr. Gordon and the respondent’s Accounting Manager, Rhonda Sandve, about terminating the applicant’s employment. I admitted three emails into evidence, which Mr. Milstead identified as either authored or received by him.

14The first email, which is dated June 11, 2012, and has the subject heading, “Erin”, was from Mr. Gordon to Mr. Milstead. The email states that they were thinking about making a “switch”, the applicant would not be trained on a new accounting system, and interviews would be conducted with accountants during the week of June 25th to have someone in place for early August. The second email, which is dated July 20, 2012, and has the subject heading, “Erin/Accounting”, was from Mr. Milstead to Mr. Gordon. The email proposes having a conference call with Ms. Sandve. The third email, which is also dated July 20, 2012, and has the subject heading, “Erin/Accounting”, was from Mr. Gordon to Mr. Milstead and was copied to Ms. Sandve and the respondent’s President and Vice President. The email states that Mr. Gordon and Ms. Sandve had a discussion about the applicant and agreed that a change was necessary, that work should be absorbed into the head office, that the company should start fresh with a new accountant, and that there should be a call to discuss the details, including timing.

15The applicant did not object to the admissions of these emails, and admitted that they were about her, but testified that these managers were merely referring to making a “switch”, not terminating her employment.

16Mr. Milstead testified that after the third email, he participated in a conference call with Mr. Gordon and Ms. Sandve later on the same day (July 20, 2012), and they made a decision to terminate the applicant’s employment on August 3, 2012.

17The applicant testified that in July 2012, she found out that she was pregnant. She stated that on July 27, 2012, Mr. Landry “confronted” her and asked her whether she was pregnant. She stated that she assumed that he had heard that she was pregnant because her husband worked for a competitor, and word had gotten around. In cross-examination, when asked why she did not mention in her Application that Mr. Landry “confronted” her, she stated that she did state that she confirmed her pregnancy to him. She stated that she was referring to the fact that he told her he had heard that she was pregnant.

18The applicant testified that on July 30, 2012, she told Mr. Milstead that she had become pregnant, but needed to seek medical attention about a probable miscarriage. She stated that Mr. Milstead allowed her two take two days off work, and when she returned to the office on August 3, 2012, he terminated her employment.

19Mr. Milstead testified that on July 27, 2012, Mr. Landry told him that the applicant was crying in the office because she believed that she had a miscarriage. He stated that on July 30, 2012, the applicant then told him directly that she had a miscarriage, and he approved her request for two days off. He stated that he first became aware of the applicant’s pregnancy and miscarriage on these dates. He further stated that the pregnancy and miscarriage were not factors in the termination of the applicant’s employment on August 3, 2012 because the decision to terminate had already been made on July 20, 2012.

ANALYSIS

Legal Principles

20The Application relates to sections 5, 9 and 10 of the Code, which provide:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex.

(…)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10.(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

21The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.

22In assessing credibility and reliability, 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 D.L.R. 354:

(…) 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 demeanor 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.

23I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (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.

Did the respondent discriminate against the applicant by terminating her employment because she was or may have become pregnant?

24For the following reasons, I find that the respondent did not discriminate against the applicant because it did not terminate her employment because she was or may have become pregnant.

25I do not accept the applicant’s testimony that shortly after she began her employment either Mr. Milstead or Mr. Landry warned her not to become pregnant. The applicant was unable to explain the contradiction between her legal counsel’s demand letter, which she admitted she had reviewed before it was sent to the respondent, which attributed the warning about becoming pregnant to both Mr. Milstead and Mr. Landry, and her testimony, which attributed the comment to only one of them. Her testimony was also vague in that she was unable to recall who specifically made the comment. Mr. Milstead denied that such a comment was ever made to the applicant by him or Mr. Landry in his presence, and his testimony was not shaken in cross-examination. In these circumstances, I prefer the testimony of Mr. Milstead over that of the applicant on this factual dispute.

26I accept the applicant’s uncontradicted testimony that on July 27, 2012 Mr. Landry asked her if she was pregnant, but I do not accept her testimony, which was raised for the first time at the hearing, that he “confronted” her. In her Application, she did not allege that he “confronted”; rather, she stated that she confirmed to him that she was pregnant. When asked in cross-examination why she did not mention that he “confronted” her, she answered that her statement in her Application was referring to the fact that he told her he had heard that she was pregnant. In my view, this was an evasive answer. In these circumstances, I believe that the applicant was embellishing her account of what happened. In any case, the applicant did not allege or present any evidence that Mr. Landry had told Mr. Milstead or other managers about his suspicions before July 27, 2012.

27I also accept Mr. Milstead’s testimony, which was not shaken on cross-examination and supported by emails, that he and other members of the respondent’s management had concerns about the applicant’s work performance, and particularly her ability to fulfill the accounting duties of her job. I agree with the applicant that coming in to work on weekends is not necessarily indicative of job performance issues. However, given that accounting duties made up at least half of her job description, I found her testimony, which essentially tried to downplay the accounting functions of her job, to lack credibility.

28Finally, and most importantly, I accept Mr. Milstead’s testimony, which was not shaken on cross-examination and supported by emails, that the respondent’s management decided to terminate the applicant’s employment prior to knowing about her pregnancy and miscarriage. I agree with the applicant that the emails refer to making a “switch”, and do not explicitly state that her employment would be terminated. However, given the considerable number of accounting duties in her job description and the other references in the emails to absorbing work into head office, starting fresh with a new accountant, and having a conference call to discuss the details, including timing, I find that the emails were referring to terminating her employment rather than, as she suggested, cutting her job duties in half and retaining her as an employee.

29Given the proximity between informing Mr. Landry and Mr. Milstead of her pregnancy and miscarriage and the termination of her employment, I understand why the applicant believes that the respondent terminated her employment because of pregnancy, but a mere belief, no matter how deeply held, is insufficient to establish that discrimination occurred.

ORDER

30The Application is dismissed.