Wing v. Niagara Falls Hydro Holding Corporation, 2015 HRTO 1093

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Wing Applicant

-and-

Niagara Falls Hydro Holding Corporation Respondent

DECISION

Adjudicator: Naomi Overend Date: August 17, 2015 Citation: 2015 HRTO 1093 Indexed as: Wing v. Niagara Falls Hydro Holding Corporation

WRITTEN SUBMISSIONS

Janice Wing, Applicant Self-represented

Niagara Falls Hydro Holding Corporation, Respondent Mark DiGirolamo, Counsel

Introduction

1Janice Wing, the applicant, brought an Application alleging discrimination in employment on the basis of family status, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Application concerns problems she encountered when she sat on the Board of Directors of the Niagara Falls Hydro Holding Corporation (“HOLDCO”), the named respondent in this Application

2Subsequent to filing the Application, a series of media articles were published that disclosed the applicant’s absence from Board meetings in 2012. The applicant alleges that the only persons who would be aware of this information were Board directors or officers of HOLDCO, since attendance at meetings was not public information. She sought to amend her Application to include reprisal. This amendment was granted.

3Following a hearing in July 2014, the Tribunal released a Decision, 2014 HRTO 1472, in which I found that the applicant had not established discrimination in employment on the basis of family status. However, I was unable at that time to determine the reprisal allegation and requested further submissions from the parties on issues relating to that allegation.

4This Decision addresses the reprisal allegations. For reasons discussed below, I find that the applicant has not discharged her onus of establishing reprisal on the balance of probabilities.

factual background

5As discussed in greater detail in the earlier Decision, the applicant sat on the Board of Directors (the “Board”) of HOLDCO by virtue of being a Municipal Councillor with the Corporation of the City of Niagara Falls (“Niagara Falls”). The Board was composed of her and the remaining members of Council.

6The applicant testified at the earlier hearing that her attendance at HOLDCO meetings was almost perfect until 2012 when a series of events conspired to prevent her from attending any of the three Board meetings held that year.

7At the last meeting, held on November 20, 2012, the Board secretary passed on the applicant’s regrets, but did not provide any reason for her absence to the HOLDCO Board. The other Board directors made note of the applicant’s 2012 absences at this meeting and passed a resolution addressing future absences by Board directors.

8The applicant was apparently unaware of this discussion until she received the Board package on December 17, 2012 enclosing the Minutes from the November meeting, a proposed schedule of six meetings for 2013 (as opposed to the three the previous year), and a letter from the Chairman, which stated:

Please be advised that at our last board meeting on November 20, 2012 discussion took place regarding Director’s remuneration related to attendance. A motion that now states and carried:

“It is duly resolved that the Chair of the Board send a letter of notice to the directors by December 31, 2012 that specifically states that if a director misses 2 consecutive scheduled Board meetings in a calendar year, then he or she will be removed from the Board. Further Niagara Falls Hydro Holding Corporation will have 6 scheduled Board meetings in 2013.”

If you have any questions or concerns, please do not hesitate to contact me directly. [Emphasis in original]

9The applicant was concerned about the proposed start time for the 2013 meetings, which she felt discriminated against her on the basis of family status (in particular, her obligations to her youngest child). She wrote a series of emails asking to change the time, and when she did not receive an answer to her satisfaction, she filed this Application.

10The applicant testified that she felt isolated on the Board after this issue arose. She largely did not particularize the incidents that led to her feeling of isolation. Her evidence focussed on one particular councillor/Board director, Wayne Thomson, although she acknowledged that they had had a fallout over a political issue involving Marineland.

11In the fall of 2013, and subsequent to filing her Application with the Tribunal, Bullet News, an online news service in Niagara, published a series of articles (the versions provided to the Tribunal are undated) in which the fact that attendance records for HOLDCO board meetings are not made public was highlighted.

12In addition, the articles quoted a “source” as saying that one councillor continues to collect the pay for meetings for which they were not in attendance. The individual members of council were all then approached by the reporter, and all but the applicant spoke for the record, thereby leading people to the infer that it was her who missed meetings. The applicant was able to print off on-line reaction to these articles. Two of the four comments specifically name her as the councillor who inappropriately collected “taxpayers dollars” for meetings she did not attend.

13The series of Bullet News articles was followed by an article in the Niagara Falls Review on December 2, 2013, which discussed the applicant’s Application to this Tribunal as well as her attendance record.

Decision and analysis

14The applicant submits that her right to be free from reprisal was violated when, following the filing of her Application, she was isolated in her dealings with her fellow Council members/board directors and there were deliberate leaks that embarrassed her in the media. She submits that this took place because she had filed her Application or otherwise asserted her rights under the Code.

15The issue of reprisal arose as an afterthought to the main allegation in the Application and the evidence and argument on it was sparse at the hearing. I was able to draw the inference from the evidence that it was someone within the respondent organization who leaked this information to the press, although there was no evidence that identified a specific individual.

16However, with respect to whether this conduct constituted reprisal, there remained a number of questions, which I set out in the first Decision:

There are, however, three issues on which I cannot make findings and require further submissions from the parties. The first issue is whether this conduct (i.e., leaking information of an embarrassing nature to the press) constitutes reprisal for filing an Application. Assuming that it is reprisal under the Code, the second issue is whether the respondent corporation is liable for the acts of either its officers or directors. The parties may wish to make submissions on s. 46.3 of the Code, as well as the general law concerning corporate liability. Finally, assuming that I find that the respondent is liable for the reprisal, what is the appropriate remedy, given that the applicant did not request monetary compensation in her Application.

17I asked the parties to address these issues by way of further submissions, which they both did by way of written submissions. In addition, the applicant filed a Request for an Order During Proceedings asking to amend her Application to include further allegations and specify the remedy sought. This Request was strenuously opposed by the respondent.

Attempts to Augment the Factual Record

18The applicant’s submissions, as well as her Request detail further allegations of conduct that she states took place as a result of her filing her Application. Many of these allegations pre-dated the hearing, but the applicant did not ask to amend her Application to include them, nor did she testify about them. It is not appropriate at this stage in the proceedings to re-open the hearing to consider new allegations about the political fallout to the applicant after filing this Application. Not only have I heard no evidence from the applicant, but the respondent was not given the chance to cross-examine her or call evidence of its own.

Challenges to Findings of Fact

19In its submissions, the respondent challenges the two findings of fact that I made with respect to the reprisal allegation. The first challenge is to the finding of fact that the series of 2013 articles in Bullet News disclosed the applicant’s attendance record.

20The respondent is correct that the articles never specifically name the “councillor” who “regularly misses Holdco meetings but still collects pay just the same as other councillors who attend most of the meetings.” However, the other eight members of council are all identified as having spoken with the reporter and saying that they were not opposed to attendance information becoming public. Many also said that their attendance was not a problem. The reporter concludes his final article with the statement: “Janice Wing is the only member of Niagara Falls council that has not been reached for comment in this story.” The obvious inference from this cumulative information is that it was the applicant who was the councillor who missed the meetings, for which she was remunerated, and it is not surprising that two readers openly drew that inference. I am prepared to accept the applicant’s interpretation of these articles that the “source” (whoever he or she is) knew it was the applicant who missed the meetings and released the information with the intent to embarrass her.

21The respondent also challenges my finding of fact in the earlier Decision that it must have been someone within the respondent organization who leaked this information to the press. This inference was based on my acceptance of the applicant’s testimony that the only persons with knowledge of the attendance records for HOLDCO Board meetings were the directors and officers of the respondent.

22The respondent nows argues that “one can not simply ignore that a number of people have access to the information and no controls are in place to keep it private.” It suggests that “City of Niagara Falls” was aware of the attendance records, given that two senior employees for the City were present at HOLDCO Board meetings where the applicant’s accommodation requests and Application were discussed.

23I did not hear evidence that there are a number of people with access to this information or a lack of controls maintaining the privacy of this information. This argument was not put to me at hearing, nor were these two individuals called as witnesses. For the same reasons I have not allowed the applicant to augment her allegations of reprisal, at this stage I am not prepared to entertain this new theory that there were persons outside the respondent who may have released this information.

Did the Conduct Constitute Reprisal?

24Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

25As noted above, the applicant did not provide specific examples of how she was isolated by the other members of the Board (there is no suggestion that staff of the respondent did anything to contribute to her feeling of isolation) other than to say that people who were once her friends were no longer her friends and she felt socially excluded.

26The only Board member to testify was Wayne Thomson, whom the applicant had initially named as a personal respondent (and subsequently withdrew as against him). He testified that he had had a good relationship with the applicant until Septemeber 2012, although he could not pinpoint when the relationship started to change. In cross examination, the applicant suggested to him that the hostility between them developed over a resolution she had put before Council on the importing and keeping of cetaceans. This resolution, with its potential impact on Marineland, was one over which they apparently vehemently disagreed.

27The fact that their relationship had soured was evident in the events following the November 2012 meeting, when the applicant did not speak directly to Mr. Thomson about her problem with the start time, even though she suspected that, as Chair of the Board, he had some say over this issue. As Mr. Thomson pointed out in his testimony, they were seat mates at Council, and she could have raised the issue with him.

28It also seems probable that the applicant also had difficulties with other members of Council that pre-dated the filing of her Application in February 2013. The resolution passed at the November 2012 meeting appeared, on its face, to censure her non-attendance at HOLDCO meetings. Mr. Thomson testified that it was not initatiated by him, but by other Board members and was an expression of their collective frustration.

29The applicant argued that the resolution “poisoned” her relationship with her fellow Council/Board members, both at Council and HOLDCO meetings. While I do not accept that the relationship was poisoned on the basis of any prohibited ground in the Code, I do accept that the resolution had hostile undertones that not surprisingly made the applicant feel differently about her Board/Council members after learning of it.

30In order to establish that she was a victim of reprisal, the applicant must show the retalitary actions was taken with an intent to punish or retaliate, after having asserted her rights under the Code: Noble v. York University, 2010 HRTO 878 at para. 31. In Noble, the Tribunal discussed at para. 32 that intent can be proven by drawing an inference from circumstantial evidence:

The complainant disputed this principle. He argued that a complainant cannot know what is in the mind of a respondent. This may be true, and in many cases, there may be no direct evidence of a respondent’s intention to reprise. Reprisal, like discrimination, is rarely practiced openly. However, this does not negate the well-established principle in reprisal cases, nor does it prevent a complainant from proving intent. Intention may be proved by inference, drawn from the whole of the evidence. Longstanding human rights jurisprudence provides that where a complainant has established sufficient facts, which if true, would support a finding that the Code has been violated, the evidentiary onus then shifts to the respondent, to provide a reasonable explanation for the impugned conduct. It then falls to the complainant to provide evidence of why the explanation is not credible, or is a simply a pretext. The Tribunal will examine all of the evidence and determine, on a balance of probabilities, whether a violation of the Code, in this case a reprisal, has been proved. [Emphasis added.]

31The difficulty for the Tribunal in this case is there is very little circumstantial evidence on which to draw any meaningful conclusions about intent to reprise after the applicant commenced her Application. As discussed above, I am prepared to draw the inference that the leak to the press of what is normally not public information, was done for the purpose of embarrassing the applicant. However, what is not clear is why this individual (or individuals) would want to embarrass the applicant. Without knowing the identity of the person or persons who leaked it, one is left speculating about their possible motivation. Perhaps they were angry about the Application; it also possible that the person(s) was angry at her for an issue unrelated to her Application.

32If the applicant could point to a smooth relationship with everyone on the Board, which abruptly changed following the filing of her Application, perhaps that inference could be drawn. However, on the applicant’s own evidence, her fractious relationship with these people pre-dated her Application or any attempts by her to enforce or claim her rights.

33An applicant bears the onus of proving a violation of the Code on a balance of probabilities. For the reasons set out above, the applicant has failed to meet her onus that she was reprised against for claiming or enforcing her rights under the Code.

order

34For the reasons set out above, the Application is dismissed.