Bell v. St. John Ambulance, 2015 HRTO 1009

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Bell

Applicant

-and-

St. John Ambulance, St. John Ambulance – Ontario Council, and

St. John Ambulance – National Office

Respondents

DECISION

Adjudicator: Alison Renton

Date: July 29, 2015

Citation: 2015 HRTO 1009

Indexed as: Bell v. St. John Ambulance

APPEARANCES

Nancy Bell, Applicant

Self-represented

St. John Ambulance, St. John Ambulance – Ontario Council, and St. John Ambulance – National Office, Respondents

Jessica DiFederico, Counsel

1This Application alleges discrimination with respect to employment because of sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is gay and self identifies as a lesbian.

Summary of the Allegations

2The applicant was employed as a sales and marketing co-ordinator by the respondent St. John Ambulance at its London branch (“the London branch”). She commenced employment on November 3, 2013, and was terminated approximately three weeks later on November 29, 2013. While employed, she reported to Victoria Smith, who was the branch manager.

3On or about November 26, the applicant lost her cellular telephone at the office. She alleges that Ms. Smith stole her telephone, looked through its text messages and emails, learned about the applicant’s sexual orientation, and then, the next time the applicant was in the office, terminated her because of her sexual orientation. The respondents deny these allegations and maintain that the applicant was terminated for poor performance. A number of reasons for the termination were set out in the Response. The applicant denies any performance issues.

The Hearing

4A hearing was held in London on March 3, April 2, and April 27, 2015. I heard evidence from, and in this order, the applicant, Victoria Smith, and Cindy Gooding. Each of the witnesses affirmed their evidence. At the time of her testimony, Ms. Smith was no longer employed by the respondents, but was still a volunteer. Ms. Gooding holds an administrative role at the London branch.

5An exclusion of witnesses order was issued during the applicant’s examination-in-chief. The parties agreed that the hearing would be bifurcated; meaning that evidence about remedies would be given in the event that the Application was upheld.

6During her final submissions, the applicant relied upon Lombardi v. Walton Enterprises, 2012 HRTO 1675 (“Lombardi”). I advised her that Lombardi decision had been judicially reviewed and part of it had been set aside by the Divisional Court, including the finding that the dismissal was discriminatory. See Walton Enterprises v. Lombardi, 2013 ONSC 4218 (“the Divisional Court decision”). I gave the parties the opportunity to file post-hearing submissions about the Divisional Court decision. The applicant filed her submissions on April 30, 2015. She reiterated part of the final submissions that had been given on the last day of hearing, and submitted that she no longer wanted to rely upon Lombardi. The respondents responded on May 1, 2015, advising that they had no further submissions.

7For the reasons set out below, the Application is dismissed. As a result of this dismissal, a number of documents that were requested, and produced, pertaining to post-termination issues are not relevant.

mid-hearing issues

The Potential Witness A.M.

8The respondents filed a witness statement for A.M., the London branch’s now former sales and training manager, and indicated prior to the hearing that he may be called as a witness. As he was not called as a witness, his identity is not relevant and he will be referred to by his initials, A.M. During the respondents’ opening submissions, they advised they were not calling A.M. as a witness. On the second day of the hearing, Ms. DiFederico represented that A.M. was no longer employed by the respondents and that she had been unable to get in touch with him.

9Before the second hearing day, the applicant sent an email to the Tribunal indicating that she had found out the whereabouts of a potential witness. She did not identify the witness. She wrote that she wanted this witness to testify on her behalf because she believed he would “…prove a clear and concise account of the respondents’ inaccuracies and falsehoods”. At the beginning of the April 2, 2015 hearing date, the applicant identified this witness as A.M.

10The applicant told the Tribunal on April 2, 2015 that she had not tried to contact A.M. between the hearing dates and did not know what he was going to say in his testimony. She wanted to cross-examine him on the witness statement that he apparently had prepared for the respondents, as well as whether he received an email from her about her missing cell phone, and his efforts to find the phone. She repeated her request for A.M. to testify after Ms. Smith’s testimony had concluded, submitting that A.M.’s evidence would undermine Ms. Smith’s evidence, and be supportive of the applicant’s own evidence that her performance was good. She confirmed that she knew from LinkedIn where he worked, and she knew where he lived.

11The respondents opposed A.M. being permitted to testify at this point in the hearing, given that the applicant had not contacted him and did not know what his evidence would be. They submitted that his evidence was irrelevant to the central issue in the case, that being the reason for the applicant’s termination as he was not the decision maker. The respondents submitted that an adjournment would be necessary and that the applicant would be required to file a witness statement for A.M. before he testified.

12I issued an oral ruling directing the respondents to give the applicant the contact information they had on file for A.M., and gave the applicant some time to contact A.M. before the hearing proceeded further. The applicant was unsuccessful in attempting to contact A.M. at his home number, reporting that it was not in service. She did a 411 search and left a voicemail message for an individual with the same name, but did not speak to that person.

13I issued the following oral ruling:

I am not prepared to let the applicant call [A.M.] as a witness. His evidence does not address the central allegation in the case which is whether Ms. Smith reviewed the applicant’s cell phone and learned about her sexual orientation from her texts, specifically the one entered as exhibit 11, and terminated her based upon this information. The applicant has learned since the last day of hearing the working address of [A.M.] and has made no attempt to contact with him to ascertain whether or not his evidence will be supportive of her position or not despite knowing where he now works and having an understanding of where he resided while he worked for the respondents. Furthermore, the applicant testified that she did not send the documents at Tab 9, exhibit 11 to [A.M.], which she has confirmed again in her submissions to me, and despite [A.M.] statement that he received an email that was copied to Ms. Smith from the applicant.

I am prepared to let [A.M.]’s statement be entered as exhibit 15.

Ms. Gooding as a witness

14As set out above, Ms. Gooding is an employee of the London branch. On the second day of the hearing, the applicant raised, for the first time, that she wanted Ms. Gooding to testify at the hearing.

15On April 2, 2015, I issued an oral ruling permitting the applicant to call Ms. Gooding as a witness. She testified on April 27, 2015.

Applicant’s Allegation that the Exclusion of Witness Order was Breached by the Respondents

16Just before final submissions commenced, the applicant suggested that the respondents breached the exclusion of witnesses order when Ms. Smith testified about where the applicant went to pick up her snow tires. Ms. DiFederico represented to the Tribunal that no information was shared with Ms. Smith.

17I issued the following oral ruling on this issue:

I am ruling that that there is no basis for me to come to the conclusion that Ms. Smith was told about the applicant’s evidence given the general speculation that the applicant has made about this assertion. The applicant does not dispute Ms. DiFederico’s representation that she did not disclose this information to Ms. Smith and the applicant speculates that maybe Mr. Cole [the respondents’ representative who attended the hearing with Ms. DiFederico], who is not here [today], told Ms. Smith or maybe Ms. Smith heard it through the door. This is not sufficient to establish that there has been a breach of the order excluding witnesses from the hearing and accordingly I will not be considering that assertion any further.

the evidence

18The applicant commenced employment on November 5, 2013, as the London branch’s sales and marketing coordinator for Southwestern Ontario. She executed an employment agreement which, included a 6 month probationary period and her hours of work were 8:30 am to 4:30 pm. She reported to Victoria Smith, branch manager.

19At the time of working for the London branch, the applicant resided in Sarnia from where she commuted everyday day. The commute, she testified, took approximately one hour each way, and she drove her personal vehicle. She would leave early in the morning and arrive at work in advance of her scheduled start time. She no longer resides in Sarnia.

20The London branch is located in a lower income area. The staff’s offices, the reception area, and the washrooms are located on the first floor. Staff hung up their coats in the same area of the office and there is a chair underneath where the coats are hung. The applicant’s coat was usually hung up beside Ms. Gooding’s coat. The office is not locked during business hours. Members of the public frequent the London branch, as do students who attend training sessions which are held upstairs. Students come downstairs to use the washroom. The applicant testified that some members of the public who use drugs come into the offices.

21I have chosen to set out the evidence chronologically, by issue, rather than how it was tendered during the hearing, as it provides context to the allegations about the missing cellular telephone and the reasons for the applicant’s termination, which are central in this Application.

Reception Duties and Contacting Potential Customers

22The London branch’s receptionist was terminated shortly after the applicant commenced employment. The applicant testified that Ms. Smith told her that this was going to happen and observed whether or not the applicant could keep that information confidential. Ms. Smith denied that she told the applicant that the receptionist was going to be terminated and that this information was confidential. Ms. Gooding testified that she knew that the receptionist was going to be terminated.

23After the applicant commenced employment, she was told that she would be required to do reception duties on Mondays and Fridays. Ms. Smith testified, during her examination-in-chief, that during the applicant’s interview, and after she commenced employment, that the applicant would be expected to be on the reception desk two days per week to familiarize herself with the respondents’ products, learn about the customers and what they want from the London branch.

24Ms. Smith also testified that she communicated to the applicant her expectations that she would be out of the office 4 to 5 days per month, with the remaining time being in the office booking appointments. She instructed the applicant to make initial calls to customers and set up in-person appointments because Ms. Smith did not like the idea of the applicant showing up at the door without an appointment (“cold calls”). She also wanted the applicant to schedule a number of appointments in a day, rather than just one with the rest being in-person cold calls.

25The applicant disagreed, in cross-examination, that she had been told by Ms. Smith to make scheduled appointments, rather than in-person cold calls on businesses. She testified about how cold calls were preferable, in her view, because of meeting face to face than conducting calls by telephone first. The applicant testified in cross-examination that she conducted her pre-planning with A.M. She disagreed that Ms. Smith told her to be out of the office 3 to 5 times per month, and the rest of the time in the office. She disagreed, in cross, that she does not follow instructions and does not listen.

Snow Tires

26On Monday, November 25, 2013, the applicant left work at approximately 2:00 p.m.. The respondent takes the position that this is a performance issue as the applicant left work early without authorization. The applicant disagrees.

27The applicant testified that she had to leave work at this time to drive to the south end of London where a friend was storing her snow tires, and then drive to a tire garage elsewhere in London to have them put onto her vehicle. She had an appointment for 3:00 p.m. at the garage. The applicant testified that she needed the snow tires for safety reasons as she was driving to Strathroy and Sarnia later in the week for work and snow was expected. Most employers, she testified, would be concerned about an employee’s safety, rather than be critical about it. She denied, in cross-examination, that she needed the snow tires for personal reasons, although she admitted that she kept them on her vehicle throughout the winter season and testified, in cross-examination, that she did not get the snow tires put on the previous weekend because snow had not yet been forecasted.

28The applicant testified, in examination-in-chief, that while she was entitled to two 15 minute breaks and a one hour lunch period, she never took her breaks and on this day she did not take her breaks or her lunch. She testified that she attended Ms. Smith’s office to tell her that she was leaving work and why. She agreed in cross-examination that she did not work her full shift.

29Ms. Smith testified that by November 25, the applicant had only been employed for several weeks and did not ask for the time off. Instead, Ms. Smith testified, the applicant came into Ms. Smith’s office with her coat on and her keys in her hand and said that she was leaving now to get snow tires put on her car and had to “drive to her buddy’s place” to get them. She did not return to work that day. In cross-examination, Ms. Smith agreed that she did not forbid the applicant from leaving work because she was observing the applicant’s reactions because she was still on probation.

Low Pressure Tire Light

30On Tuesday, November 26, 2013, the applicant testified that she got into her vehicle at 6:40 a.m. to drive to work when she noticed that a low tire light appeared on her vehicle dashboard. Because of her long commute on a busy highway, she called Ms. Smith, using her work Blackberry, stating that she had low tire pressure and may be a few minutes late. She testified that luckily the garage at which she stopped was able to assist her, despite the early timing, and she arrived at work at 8:17 a.m., 10 minutes before she was scheduled to start work. If she had not called Ms. Smith, Ms. Smith would not have known the difference as she was not late. The applicant produced, at the hearing, a note from the garage stating that it serviced her vehicle. This note was admitted as an exhibit, over the objections of the respondents on the basis that the author of the note was not being called as a witness. The Tribunal stated that it would hear submissions during final submissions about the weight, if any, to be placed on the note.

31Ms. Smith testified that the applicant arrived late for work that day, as she arrived mid-morning. In cross-examination, Ms. Smith testified that she did not recall receiving a call or a voicemail directly from the applicant, but instead learned this information from Ms. Gooding.

32Ms. Gooding testified that she did not recall receiving a call from the applicant about low tire pressure.

November 26, 2013 Sales and Marketing Meeting

33Ms. Smith, the applicant and A.M. had a sales and marketing meeting at 2:00 p.m. on November 26, 2013. On this date, the applicant alleges Ms. Smith’s whole demeanour towards her changed.

34Ms. Smith was late, the applicant testified during her examination-in-chief, and was not prepared for the meeting. Ms. Smith left the meeting to get information, and when she was present, she spent a lot of time calculating numbers on her phone. According to the applicant, A.M. told Ms. Smith that she was hard on the applicant during this meeting. The meeting wrapped up around 4 pm, the applicant testified.

35The applicant submitted three letters at the hearing supporting her view that she participated in the meeting. The three letters were entered as exhibits.

36In her examination-in-chief, Ms. Smith testified that the applicant did not contribute much during the meeting, and did not recall her contacting the tourism department. Ms. Smith testified that she expected the applicant to present some marketing or sales ideas, but she did not. She did not recall being late, but conceded that she may have been. She agreed that she may have left the meeting to get the next year’s fiscal information and said that she did not attend the meeting with the budget in hand. If she left the meeting to get that financial information, it was to answer A.M.’s questions. In cross-examination, she agreed that the applicant suggested getting a quote about a facelift to a Kinsmen’s door, but the respondents decided not to pursue it because the quote was more than they wanted to spend.

The Applicant’s Missing Cellular Telephone

37The applicant charged her personal cellular telephone on her drive to work on Tuesday, November 26. When she arrived at work, she testified in examination-in-chief, her cellular phone was at 100% power. In cross-examination, she testified that she had charged her telephone before going to bed the night before, and on the drive to work, and that she always kept it at 100% in case of emergency of a particular family member. At the office, she hung up her coat and put her cellular telephone in her coat pocket as she did every day she was in the office. She never checked her cellular telephone during business hours. Her cellular telephone sounds a bike ring when a new message arrives. Her co-workers, she testified, were all aware that she kept her cellular telephone in her coat pocket.

38At the end of the day, at approx. 4:30 p.m., and when she was in her car, she realized that her cellular telephone was not in her coat pocket. She went back to the office door, which was locked, and she noticed A.M. walking down the stairs. He opened the door for her. They spent 15 to 20 minutes searching for the missing cellular telephone, she testified during her examination-in-chief. They looked in the reception area, on the floor and in her office, but were unsuccessful in locating the telephone.

39Ms. Gooding testified that she too looked for the cellular telephone, but could not find it.

40The applicant testified during her examination-in-chief that she thought, “I just don’t get this” and she wondered where her cellular telephone could be. She did not think that a co-worker would take it. She testified that the London branch is located in a low income area, people come in off the street, including people who are using drugs, and students attend training sessions held upstairs. Those students do come downstairs to use the washroom.

41After she arrived home, the applicant contacted her cellular telephone provider, Telus, and requested that her phone be de-activated. During examination-in-chief, she testified that she did this because her telephone was not locked and she was concerned that someone would use her phone to make long distance calls, for which she would be charged.

42After contacting Telus, the applicant contacted Ms. Smith on her work Blackberry to let her know about the missing cellular telephone. The parties disagree about the method by which the applicant contacted Ms. Smith and the format of the message. The applicant alleges that the message that was entered as an exhibit during the hearing, which the respondents had produced, was altered from the message that she sent, as was the font. Later in the hearing, and during Ms. Smith’s cross-examination, the applicant alleged that the message had been photo shopped. The applicant did not produce a copy of the text that she claims she sent.

43The message that was introduced as an exhibit, is from 6:47 p.m. and said:

Subject: My personal cell phone

I have always left in my coat pocket at work is missing and presumed stolen. I am not impressed. If by chance, you come across it, please let me know.

Many thanks.

Nancy

44In cross-examination, the applicant agreed that the message that was marked as exhibit appeared to be an email, not a text, and that part of her personal email address appeared on it. It also appeared to have, she conceded in cross-examination, the email address of A.M. as another individual to whom she sent the message. She questioned why she would send this message to A.M. because he helped her search for her cellular telephone earlier in the day.

45During her evidence, the applicant testified that the content of the message had been altered from the message that she sent. She testified that she remembered her message “verbatim”, and it said, “Hi Vickie, my phone is missing, presumed stolen and not impressed”. She denied that it contained any reference to her coat pocket.

46She denied that she was accusing one of her co-workers of stealing her cellular telephone, and denied, in cross-examination, that the words used in the message were accusatory. The words, “I’m not impressed”, she testified in cross-examination, could mean something like she was not impressed with service at a restaurant, or a child’s behaviour. Initially she thought that she misplaced her cellular telephone, not that it had been stolen.

47Ms. Gooding testified, during her cross-examination, that the public and students have access to the area where the coats are located because it is in the reception area where they come into sign up for courses. They could touch the coats, but this would be out of the ordinary.

48Ms. Smith testified that she was not in the office when she received the applicant’s message, so she texted the applicant back suggesting that they set up a time the next day for the applicant to call so that Ms. Smith could hear if it was ringing somewhere in the office. She did not know, she admitted in cross-examination, why the applicant’s personal email address was included on the screen shot showing the text. She denied photo shopping or altering the message that the applicant sent. She testified that the applicant’s Blackberry sent emails and texts. She testified that she interpreted the applicant’s message as accusing one of the staff members of stealing the telephone.

49Ms. Smith’s message, which was also introduced as an exhibit, said:

Re: My personal cell phone

Hello Nancy,

If you give me a call tomorrow, we can set up a time for you to call your phone and I can see if I hear it somewhere in the office. It may have fallen out somewhere.

Vickie

50The applicant testified, in examination-in-chief that Ms. Smith’s suggestion was “brilliant” as Ms. Smith knew that the applicant was working the next day in Strathroy.

51Ms. Smith testified about her journal entries for the period of time that the applicant worked with the London branch, and which were entered as an exhibit. She agreed, in cross-examination that the notes for November 26 were not in chronological order. She did not write them at work on November 26 because she was busy, but wrote them later at night when she was home. She wrote what was a high priority and what she might need to refer to later, such that they may not have been in chronological order. In response to a question from the Tribunal, Ms. Smith testified that she may have started the November 26 journal entry at work and completed it at home. She was not sure that it was made all at the same time or on the same date.

52The applicant’s cellular telephone was found the next morning. Ms. Smith testified that A.M. found the telephone and gave it to her. Ms. Gooding testified, during cross-examination, that she was sitting in her office and A.M. was in his office when he noticed something under the chair, which is under where the coats are hung up. Ms. Gooding testified that A.M. got up and looked and it was the applicant’s cellular telephone. He picked it up and gave it to Ms. Smith. In re-examination, Ms. Gooding conceded that the cellular telephone could have been put under the chair at a later point.

53Ms. Smith testified that after A.M. gave her the telephone, she immediately put it into a drawer in her office because she thought the applicant had already accused staff of stealing her phone. This feeling was confirmed, Ms. Smith testified in cross, when she learned from A.M. that the phone was supposed to be in the applicant’s jacket pocket, which is hung up in an area that the general public does not have access to. She then texted the applicant to tell her that the telephone had been found.

54In cross-examination, the applicant testified that she did not believe that A.M. had given Ms. Smith the cellular telephone. In cross, the applicant testified that she was incredibly relieved and thankful for Ms. Smith’s suggestion that the phone would be locked up in her office. She did not believe, at this point, that Ms. Smith had stolen her phone.

55Ms. Smith’s text to the applicant is dated November 27, 2013 at 10:16 a.m., and said:

We have found your phone. I will lock it up in my office so it does not escape.

56Ms. Smith denied, in examination-in-chief, that she looked through the applicant’s telephone or that she stole the applicant’s phone.

The Decision to Terminate the Applicant

57Ms. Smith testified that on November 27, she sent an email from her tablet to human resources requesting termination papers for the applicant for Friday, November 29. The email indicates that it was sent at 3:45 a.m.. Ms. Smith testified that she did not know why the email had that time on it, as she had sent it while she was eating breakfast, between 7:00 a.m. and 7:30 a.m. Her tablet was doing “strange things” at this time. She testified that she sent it from home because she did not want someone to come into her office and see the email.

58The applicant disagreed, during her cross-examination, that Ms. Smith made the decision to terminate her before the cellular telephone was found.

59Ms. Smith testified that she selected Friday, November 29 as the termination date because the applicant was working outside of the office on Wednesday and Thursday and she did not want to call the applicant back to the office for this express purpose. She confirmed the Friday date with the human resources individual when they spoke on the telephone and Ms. Smith provided this explanation. The human resources individual was not called as a witness.

60Ms. Smith testified that she terminated the applicant’s employment for the following reasons: not working full shifts; not following instructions about scheduling meetings, rather than cold calls; having deficient computer skills; not taking the time to learn what she was selling; not following Ms. Smith’s directions on how to evolve sales; lack of trust; and accusing staff of stealing her cellular telephone. She presented excerpts from her journals which, she testified, provided dates and examples of her concerns with the applicant’s performance. The journals redacted information that pertained to other employees or other situations that were not related to the applicant.

61She testified that she does not make termination decisions lightly, and she considers all the effects of the termination on the person and the London branch and whether the branch’s needs are being met.

62The applicant testified about examples where she went “above and beyond” in her employment with the London branch. This included delivering a first aid certificate at 7:30 a.m. to a location; delivering study books on a Friday night in Kitchener; obtaining a reduced hotel fee for a student, and contacting a magazine editor to promote the respondents’ services. Ms. Smith, in her cross-examination, denied that these examples were indicative of the applicant going above and beyond her position as they were not related to her sales and marketing position.

63During her examination-in-chief, Ms. Smith denied terminating the applicant because of her sexual orientation, which she did not know until she received the Application. It would be against the respondents’ harassment and discrimination policy to terminate an individual based upon his or her sexual orientation, she testified in examination-in-chief. The policy was marked as an exhibit.

The Applicant Working on November 27 and 28, 2013

64On November 27, in the morning, the applicant testified that she called the office, spoke with Ms. Gooding, and reminded her that she was cold calling businesses in Strathroy. According to the applicant, Ms. Gooding told the applicant not to go to Strathroy because the weather was supposed to be very bad and a number of students had cancelled because of the weather. The applicant told Ms. Gooding that she would instead work from home because she had her laptop and her Blackberry. The applicant also told Ms. Gooding that her cellular telephone was missing, and Ms. Gooding requested the applicant’s landline number which she would call if the missing phone was located.

65Ms. Gooding, in her examination-in-chief, agreed that the applicant called her at 8:00 a.m. to advise that she was planning to work in Strathroy that day. Ms. Gooding recalled telling the applicant that some of the students had called to cancel that morning because of the weather. She did not recall the applicant telling her that her cellular telephone was missing, and testified that she believed that was a different telephone conversation. She did ask for the applicant’s landline phone number and she would call the applicant if she found the phone. She did not call the applicant because she did not find the phone.

66In cross-examination, Ms. Smith testified that A.M., who drives through the Strathroy area, told her that it was snowing only a little in Strathroy. In response to a question from the Tribunal, Ms. Smith testified that on this date, part of her journal entry was made at least after mid-afternoon given the reference that it was snowing in mid-afternoon.

67On Wednesday, November 27, the applicant testified that she made 33 calls to businesses. She entered these calls, along with data about their businesses, into a sales report which she went to A.M. and Ms. Smith at approximately 5:25 p.m. The sales report was not produced to the Tribunal. She also updated the database and sent Ms. Smith a quote which she had obtained.

68On Thursday, November 28, she worked from home and visited businesses in the Sarnia area promoting the services of the respondents. She completed another sales report. This was not produced to the Tribunal. She testified that in one of her text messages to Ms. Smith, she advises that the sales report is sitting in her outbox and will not send. The applicant testified that she believed that there was a computer glitch which prevented her from sending the sales report.

69Ms. Smith testified, in cross-examination, that she did not receive the applicant’s sales reports and that the applicant’s computer had not been, to her knowledge, disconnected as of November 28.

70On April 2, and close to the end of the hearing day, the applicant requested, for the first time, a subpoena to summons someone from the respondents’ IT department to obtain the sales report which was “stuck” in her outbox. This request was not, however, pursued further.

71At the hearing, the applicant presented letters from companies located in Strathroy whom she contacted in November 2013. One of the letters was a quote. The applicant booked an in-person appointment with one of the businesses for December 2, which she cancelled after she was terminated. The applicant sought to introduce these as exhibits to demonstrate her performance and her participation in the November 27 sales and marketing meeting. Over the objection of the respondents, who claimed that there were not relevant to the marketing meeting, the Tribunal allowed the documents to be entered as exhibits, given the applicant’s evidence that from her perspective she participated in the November 27 sales and marketing meeting. In cross-examination, the applicant agreed that in the letter from one of the businesses, Tourism Sarnia-Lambton, it did not indicate that she attended that business in person.

Friday, November 29

72On Friday, November 29, the applicant returned to the office. She testified that she arrived at approximately 8:15 a.m. She was sitting in the reception area, eating her yoghurt with a plastic spoon she had obtained from the kitchen, and about to listen to the voicemail messages left on the reception area’s telephone when Ms. Smith handed the applicant her cellular phone.

73Ms. Smith testified that she handed the applicant her cellular telephone near the back door. In cross-examination, she denied that the applicant was seated in the reception area.

74The applicant testified that the cellular telephone was on and had 2% battery power. It was at 100% battery power when she lost it on Tuesday, November 26. The applicant testified that she spoke with someone at Telus, who told her that there must have been some activity on her phone for the battery to decrease from 100% to 2% from Tuesday to Friday. In cross-examination, she agreed that she did not give her cellular telephone for Telus to investigate the drain in battery power, did not have her cellular telephone with her when she spoke with Telus, and her cellular telephone went from Tuesday to Friday without being charged, “unless someone charged it after it was stolen”, she stated. No representative from Telus was called to testify at the hearing.

75The drain in battery power is indicative, to the applicant, that Ms. Smith reviewed the contents of her cellular telephone.

76Ms. Smith testified that she did not recall whether the cellular telephone was on or off when A.M. gave it to her. She immediately put it into her drawer. She did not review its contents.

77The applicant testified that she asked Ms. Smith where the cellular telephone was found. Ms. Smith, the applicant testified, looked away, pointed to a black chair and said, “under that chair, it must have fallen out of your pocket”. The applicant testified, during her cross-examination, that it was suspicious that Ms. Smith could not look her in the eye, although she testified that it was possible that Ms. Smith did not look her in the eye because she knew the applicant was going to be terminated.

78Ms. Smith testified that she recalled the applicant asking where it had been found, but did not recall telling the applicant whether or not it was found under a chair. She presumed that the phone she handed the applicant was her personal phone as the applicant took it and kept it.

79The applicant does not accept Ms. Smith’s explanation about how the cellular telephone was found and testified that it was “incomprehensible”. She testified that she wore her coat to work every day, and because of its deep pockets, one would have to turn the coat upside down for the cellular telephone to fall out of the pockets. She brought her coat to the hearing to demonstrate how deep the pockets were. The coat was not marked as an exhibit.

80After Ms. Smith handed the applicant back her phone, she asked the applicant to step into an office where she handed her a termination letter. The applicant testified that it was handed in her own office and Ms. Smith testified that it was handed in her office. Ms. Gooding testified that the applicant and Ms. Smith were in a closed office, but the office was not identified.

81The applicant testified that no reason was set out in the termination letter. She testified that Ms. Smith smirked and told her that she did not have to give a reason for the termination because the applicant was still in her probationary period. The applicant did not allege, at this point, that the termination was discriminatory. Ms. Gooding testified that she was surprised that the applicant was terminated. In examination-in-chief she testified that Ms. Smith has terminated 6 employees while they worked together.

82The applicant testified that she thought over the situation a little while later when she went to a friend’s place and “all the pieces fell into place”. She believed that there was more to the story. She realized that Ms. Smith had stolen her phone at some point on Tuesday, November 26, read through her texts and emails because there was no lock on the cellular telephone, learned that the applicant was a lesbian, and terminated her for her sexual orientation. That was why Ms. Smith could not look the applicant in the eye when she handed back her cellular telephone.

83After the applicant’s examination-in-chief concluded, but before her cross-examination commenced, the Tribunal asked the applicant, “If Ms. Smith read your emails and texts, as you allege, how would she have been able to determine your sexual orientation from reading them?”. The applicant responded that she was a lesbian and had a relationship 4 months prior to working for the London branch, from February to May, and that texts between her former partner and herself were still on her cellular telephone. She also had emails sent by an organization about events, dances and sporting events across North America that are of interest to lesbians which were on her phone.

84At this point, the applicant had not produced any texts or emails from her cellular telephone. When the Tribunal asked why they had not been previously produced, the applicant said that she did not think that they were necessary, but would be happy to do so if required. A short break was given, so that the applicant could review her telephone and determine if she wanted to produce any texts or emails which would reveal her sexual orientation.

85After reviewing the material on her telephone, the applicant advised the Tribunal that there were no emails upon which she intended to rely, but she produced a couple of text messages between her and her former partner, from October 29, 2013. The text messages were entered as an exhibit. The texts were, the applicant stated, a sample of what she had on her cellular telephone, and asserted that Ms. Smith had “all the time in the world” to read the texts between her and her friends, who are lesbians. When asked by the Tribunal about how the texts would indicate sexual orientation, the applicant testified that there are references to women’s names in the texts, and references to the applicant being hurt and upset, as well as a reference that the applicant did not want a “woman like you”.

86In cross-examination, the applicant agreed that her former partner’s name could be for a male or female and agreed that the conversation could have been between her and a male. However, she testified, because Ms. Smith had the cellular telephone for three days, she would have realized the applicant was a lesbian when she read the text line “I don’t want a woman like you”.

87After Ms. Smith’s evidence in examination-in-chief and cross-examination had concluded, the Tribunal asked her if she had previously seen the texts that had been entered as an exhibit. Ms. Smith testified that she had not seen them prior to her testimony.

Complaint to the Ontario Council

88In her Application, the applicant raised a complaint about her termination to the respondent Ontario Council. During her cross-examination, she conceded that she did not allege that her termination was discriminatory.

law and analysis

89Section 5(1) of the Code prohibits discrimination in employment on the basis of, amongst other grounds, sexual orientation. It states:

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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

90The Tribunal has upheld applications alleging discrimination based upon sexual orientation in different social areas, including services, employment, and housing. See, for example, Arnold v. Dunedin House Bed & Breakfast, 2010 HRTO 323, application for judicial review dismissed 2012 ONSC 6119 (Div. Ct.); Selinger v. McFarland, 2008 HRTO 49, and Ramadhin v. Chavali, 2014 HRTO 866.

91The initial evidentiary burden is on the applicant to establish on a balance of probabilities that a prima facie case of discrimination exists. See Shaw v. Phipps, 2012 ONCA 155 at paras. 11 to 12, and Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”) at para. 56. A prima facie case is 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.

92Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.

93The Tribunal has consistently held that an applicant must prove his or her allegations against a respondent on a balance of probabilities and that to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. See F.H. v. McDougall, 2008 SCC 53 at para. 46. The Court held that courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah v. George Brown College, 2009 HRTO 920 at para. 23.

94Furthermore, the Tribunal and the courts have recognized that discrimination can be proven by direct evidence or circumstantial evidence. There is recognition that in some types of cases, a respondent is uniquely positioned to know why they refused an applicant employment or asked a person for identification, such that a respondent’s evidence is often essential for determining what happened and what the reasons for a decision or action were. See Shaw, above at para. 72.

95In proving discrimination, an applicant must prove:

a. That she is a member of a group protected by the Code;

b. That she has been subjected to adverse treatment in the workplace or in respect of her employment; and

c. That this adverse treatment occurred as a result of the applicant’s membership in that protected group

See Pieters, above, at para. 56.

96I accept that the applicant genuinely believes that it is physically impossible for her cellular telephone to fall out of her coat pockets, and genuinely believes that Ms. Smith stole her cellular telephone, and learned about her sexual orientation, when she read through the telephone’s texts and emails. I accept that the applicant genuinely believes that she was terminated solely because of her sexual orientation and disputes that she had any performance issues. While the applicant may genuinely believe all of this, I find that she has not been able to prove her allegations on a balance of probabilities.

97Apart from the text messages on her cellular telephone, there is no other evidence tendered by the applicant which would indicate that Ms. Smith was aware of her sexual orientation upon which her termination was based. Leaving aside Ms. Smith’s evidence denying that she read through the contents of the applicant’s cellular telephone, I cannot conclude that the applicant can establish a prima facie case that the text messages themselves reveal the applicant’s sexual orientation.

98It is difficult to come to the conclusion that the applicant is a lesbian from reading the text messages between her and her former partner. The former partner’s name, as identified on the applicant’s cellular telephone, is a name that can be used by both genders, a point the applicant herself conceded during cross-examination. For the purposes of this Decision, it is not necessary to identify this former partner by name, the initial C. will be sufficient.

99Whether Ms. Smith had approximately 16 hours between the applicant discovering that she lost her phone on November 26 at approximately 4:30 p.m. and it being found by approximately 10:00 a.m. on November 27, or 60 hours, as the applicant alleged during her final submissions, from the time it was discovered lost to her termination, it would require very close reading of these texts which were entered as an exhibits to come to the conclusion that the applicant is a lesbian. The applicant testified that the texts that were entered as exhibits were part of hundreds of texts and emails that she had on her telephone. While that may be so, it is the applicant’s onus to prove her allegations, as was explained to her during the hearing and the applicant submitted four pages of texts, consisting of 8 texts from an approximate month before she was terminated, from the hundreds that may have existed on her cellular phone in November 2013.

100Reading these texts closely, they contain the following lines (the complete texts are not reproduced), with the author noted in parentheses:

• “…hanging with you and I’m not fucking you!” (C.);

• “‘By the way, we’re not dating, we’re just fucking’. Says [S.J.]” (applicant);

• “I hang out with lots of girls btw! Sandra, Sheila, Kim, Michelle….The list goes on!” (C.);

• “Just because I hang with someone doesn’t mean I am fucking them!” (C.);

• “I’m hurt and angry. I don’t get why you continue to come into my life. You have [name] as a fuck buddy!” (applicant); and,

• “I dont [sic] need or want a woman like you near me. You’re a disgraceful mess. Stay away from my fragile heart.” (applicant)

101It is really the last two excerpts which, broadly read, could reveal the fact that C. was a female, and thus reveal the applicant’s sexual orientation. The comment, “I don’t get why you continue to come into my life” along with, in the same text message, “I dont [sic] need or want a woman like you near me”, and “Stay away from my fragile heart” combined with the references about differing “fuck buddies”, could lead one to the conclusion that the applicant was gay.

102However, I find that this interpretation is far from being obvious. The applicant conceded that she had hundreds of emails and texts on her telephone, that these text messages were approximately one month before she was terminated. This along with the gender neutral name of her former partner makes it difficult to conclude that the text messages by themselves revealed the applicant’s sexual orientation.

103On this basis alone, the Application would be dismissed.

104However, I have also concluded that the applicant has not proven her theory of her case on a balance of probabilities: that Ms. Smith stole her cellular telephone; read through her hundreds of texts and emails; determined the applicant’s sexual orientation based upon the texts that were entered as an exhibit; decided to terminate the applicant because of her sexual orientation and not because of performance; and then altered the applicant’s initial text message advising about her missing cellular telephone. In coming to conclusions about this aspect of the case, I need to find that Ms. Smith is not a credible witness. Instead, I find that Ms. Smith is a credible witness in relation to the allegations against her.

105In coming to this conclusion, I am guided by the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), which is often cited by the Tribunal. At para. 357, the Court stated:

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 carries 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 a 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.

106Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors that have been considered by the Tribunal in assessing reliability and credibility, including:

• The internal consistency or inconsistency of evidence;

• The witness’s ability and/or capacity to apprehend and recollect;

• The witness’s opportunity and/or inclination to tailor evidence;

• The witness’s opportunity and/or inclination to embellish evidence;

• The existence of corroborative and/or confirmatory evidence;

• The motives of the witnesses and/or their relationship with the parties;

• The failure to call or produce material evidence.

See also Shah v. George Brown College, 2009 HRTO 920 at paras. 12 – 14 and Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.

107There is no motive advanced by the applicant as to why Ms. Smith stole her cellular telephone. There is a complete lack of evidence on this point.

108There is no evidence that Ms. Smith stole the applicant’s cellular telephone. The applicant speculates during her evidence that Ms. Smith stole her telephone, but she has presented no direct evidence on this point. There are no eye witnesses to this assertion. In fact, the applicant herself raised the possibility that someone else could have stolen it, by testifying that the London branch’s offices are not secure as students and individuals from the street have the ability to access the staff’s coats, when they are downstairs close to the reception area, even if they are not supposed to touch those items. Ms. Gooding’s evidence supported the possibility that students and the public could access the coats.

109I find it highly improbable, that Ms. Smith stole the telephone and I accept her evidence that she did not. Stealing the telephone would be inconsistent with Ms. Smith’s immediate reaction, upon learning about the missing telephone, to message the applicant to suggest that the applicant call the next morning so that Ms. Smith could try to hear it ring. Why would Ms. Smith suggest that if in fact she had stolen the telephone? There was no motive presented about why Ms. Smith would make this suggestion if she had stolen the telephone. In fact, the applicant testified that she thought that Ms. Smith’s idea was “brilliant”.

110It is not disputed that A.M. gave the telephone to Ms. Smith, although there is a dispute about where it was found. Ms. Smith testified that A.M. told her it was found under a chair, which was consistent with Ms. Gooding’s evidence. To the extent that it can be relied upon because he did not testify, A.M.’s written statement, which was marked as an exhibit, also indicates that the cellular telephone was found under the chair under where the applicant’s coat was usually hung up. The applicant has no other independent evidence about where the cellular telephone was found and accordingly I accept based upon the evidence of Ms. Smith and Ms. Gooding that it was found under the chair.

111There is no evidence, either then an assertion, that Ms. Smith planted the telephone under the chair. This assertion arose for the first time during Ms. Gooding’s evidence. The applicant did not ask Ms. Smith about this during her cross-examination.

112There is no evidence, apart from the applicant’s assertion, that her text message to Ms. Smith about the missing phone was altered or photo shopped. Ms. Smith denied doing either. While the applicant testified that she remembered “verbatim” the text that she sent to Ms. Smith, she did not produce a copy of that and the cellular telephone that she uses is the same one she used in November 2013. There was no explanation provided about why the applicant’s copy was not submitted to the Tribunal. The applicant had an obligation under the Tribunal’s Rules of Procedure, as set out in the Notice of Hearing and a Case Assessment Direction directing the applicant to comply with these obligations, to produce any arguably relevant documentation and this message is certainly relevant. The differences between the “verbatim” message and the one that produced are extremely insignificant. In fact, the message that was entered as an exhibit is more likely to be what the applicant sent Ms. Smith, containing a reference to her “coat jacket” is more likely given the applicant’s evidence that the cellular telephone was in her coat pocket. There was no evidence about why the message would be altered, or what the motive would be to alter it. I accept that the message, however it was sent, from the applicant to Ms. Smith is in the format produced by the respondents.

113Despite the applicant’s evidence that her message to Ms. Smith was not accusatory, I disagree and find that it is. The tone of her message was brief and curt and while she may not have intended it to sound accusatory, it was. I heard evidence that there were only four other individuals who worked in the office, besides the applicant, and the wording “presumed stolen, not impressed”, in either the message as sent or the “verbatim” message, leaves the reader with the reasonable impression, as Ms. Smith formed, that the applicant was accusing one of her coworkers of stealing her telephone.

114Upon review of the messages that were produced by the respondents, it is confusing as to whether they were sent as texts or emails. It appears, upon close review, to be sent as an email as the applicant’s personal email appears. While this is inconsistent from the applicant’s evidence that she sent a text through her work Blackberry, I find that really nothing turns on the delivery of the messages on November 26, 2013, between the applicant and Ms. Smith.

115Further, in addition to Ms. Smith’s first message suggesting that the applicant call in the next morning so they can hear her cellular telephone ringing, it is inconsistent for Ms. Smith to tell the applicant that her telephone was found and put it in Ms. Smith’s office if Ms. Smith had in fact stolen it. There was no evidence, or explanation, advanced by the applicant about why Ms. Smith would send this second message, if she had stolen the telephone and looked through its contents. Ms. Smith’s evidence is more probable – that having been given the found telephone she put it in her office because she believed the applicant to have accused her coworkers of stealing it.

116Apart from the applicant’s own evidence about what Telus told her, there was no evidence about why the applicant’s cellular telephone drained power from 100% on Tuesday, November 26 to 2% on Friday, November 29. The evidence about what Telus told the applicant is hearsay as someone from Telus was not called to testify. Evidence from a Telus representative or other telephone technical expert would be required for the Tribunal to understand whether the battery drain was because someone had actually used the telephone, or whether the passage of time, with the telephone on, would have caused the drainage. In the absence of such evidence, the Tribunal cannot conclude that the telephone was used during this period of time.

117While the timing of the decision to terminate is challenged, the applicant does not challenge that it was Ms. Smith’s decision to terminate. It is agreed that the applicant reported to Ms. Smith.

118As for the timing of the decision to terminate, I find, as Ms. Smith testified, that it was made while she was eating breakfast on November 27. I come to this conclusion in light of the fact that the decision to terminate was made after the applicant sent her email to Ms. Smith, which Ms. Smith interpreted as being accusatory, and the fact that the termination was structured for Friday, November 29 as the applicant was going to be working outside of the office on the Wednesday and Thursday. This is also consistent with Ms. Smith’s journal entries. Further, there is nothing of significance on Thursday that would trigger the applicant’s termination.

119The respondents have presented reasonable explanations as to why the applicant was terminated. The applicant admitted to several of the alleged reasons, including leaving work early on November 25, albeit with a reason, and cold calling customers, because, in her view, it was more effective to make contacts in person than by telephone. While the applicant may disagree with the reasons provided, it is her onus to establish that her termination was discriminatory or that there was a discriminatory factor to it.

120At the end of the day, I am not satisfied that the applicant has met her onus of establishing a prima facie case of discrimination on a balance of probabilities that a violation of the Code occurred. Accordingly, the Application is dismissed.