HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Irene Pereira
Applicant
-and-
Humber River Regional Hospital
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Pereira v. Humber River Regional Hospital
APPEARANCES
Irene Pereira, Applicant
Robert Tarantino, Counsel
Humber River Regional Hospital, Respondent
Kathryn Bird, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, place of origin and ethnic origin.
Background and Procedural History
Application
2The applicant is a Registered Nurse (“RN”) who works part-time in the respondent hospital’s Children’s Health Program at its Finch site. The applicant identifies herself as a white woman of Portuguese origin and was born in Portugal. In her Application, the applicant alleges that she was subjected to racial and ethnic harassment and discrimination by members of African-Canadian and Filipino “cliques” in the workplace. The applicant states that she raised her concerns about racial harassment by both cliques, but the hospital refused to take action to address her concerns.
3Following a summary hearing held on April 23, 2012, the Tribunal dismissed all but one of the applicant's allegations. See, 2012 HRTO 1680. The remaining allegation was that the applicant's shifts had been cancelled on April 9, 10 and 17, 2011. At the summary hearing, the applicant alleged that the cancellation of her shifts was racially or ethnically motivated. In her Application, the applicant originally attributed the cancellation of the shifts to her union, as an act of reprisal. In light of the significant re-characterization of this allegation, the Tribunal directed the applicant to make submissions regarding whether the applicant should be permitted to amend this allegation in this manner, which she did.
4In Decision 2013 HRTO 847, dated May 29, 2013, the Tribunal permitted the applicant to proceed with the allegations regarding the shift cancellations as against the respondent. The Tribunal also granted the applicant's request to amend the Application, filed on April 20, 2012, to include allegations that some of her co-workers made negative ethnic or race-based comments about her. The applicant alleges that a co-worker referred to her as a "pork chop", a derogatory name for a person of Portuguese origin and that, in another incident, a co-worker said "We'll fix her white ass" in reference to the applicant.
5The respondent's position is that the applicant's shifts were cancelled in April 2011 for operational reasons and denies that the alleged ethnic/racial comments about the applicant were in fact made. In any event, respondent states that it took reasonable steps to investigate these allegations.
The Hearing
6The hearing of the Application took place on September 4 and 5, 2014 and April 14 and 15, 2015. The applicant testified and presented one other witness, Ann Popat, who at all times material to this Application was a Registered Practical Nurse (“RPN”) in the obstetrics department in the respondent's Women and Children's Program. The respondent presented several Registered Nurses who also worked in respondent's Women and Children's Program: Elena Zevlever, Susan Gallo, Elaine Randall, Colineth Robertson and Ailyn Tablante. The respondent also presented Beverly Philp, the Program Director of the Women and Children's Program.
Evidence
Shift Cancellations
7There is no dispute that the applicant's shifts were cancelled on Saturday, April 9, Sunday, April 10 and Sunday, April 17, 2011. The applicant’s name was not circled on the schedule with respect to April 10, 2011 (which is how cancellation should be recorded), but, again, there is no dispute that the applicant’s shift was cancelled and she did not work on that date. The applicant's evidence was that she worked on weekend shifts starting at 11:30 p.m. and ending at 7:30 a.m. with turnover reports afterwards. The schedule for these dates indicates, and there is no dispute, that the applicant was scheduled to work in the Postpartum Unit. The applicant is represented by the Ontario Nurse's Association ("ONA"). The applicant conceded that ultimately (after shift trading for example) she was the only part-time nurse scheduled to work on those dates and times who is represented by ONA, and the other ONA represented nurses scheduled to work with her were full-time employees.
8There is also no dispute that under the ONA collective agreement, full-time nurses have more seniority than part-time nurses. The ONA collective agreement also sets out different requirements for full-time and part-time nurses regarding changes to their schedules, such as shift cancellations. Full-time nurses must receive at least 48 hours’ notice of shift cancellations, failing which they are entitled to premium pay on their next shift. Part-time nurses must receive at least 24 hours’ notice of shift cancellations, failing which they are entitled to premium pay on their next shift. Pursuant to the local appendices to the ONA collective agreement, the respondent has a management right to reassign employees who are scheduled to work, subject to several principles or requirements. One of these principles is that the respondent will assign employees on the basis of reverse seniority, i.e., those with least seniority will be the first selected for reassignment. Casual nurses are reassigned first, then part-time nurses and finally full-time nurses. There is no issue that reassignment includes shift cancellations and there was no dispute that no casual nurses were scheduled to work on the applicant's shifts in the Postpartum Unit on April 9, 10 or 17, 2011.
9As a consequence of these requirements, consideration must be given to whether cancellations are required more than 24 hours before a shift begins. In the Postpartum Team, this responsibility falls to the "In Charge Nurse”, also referred to as the "Resource Nurse" or "Team Lead". The In Charge Nurse is responsible for assigning patients during their shift, is responsible for the crash cart and ensuring the narcotic count is accurate, in addition to shift cancellations. The In Charge Nurse is not necessarily the most senior or experienced nurse on shift. The position rotates periodically and is posted for nurses to apply for it. The evidence was that the In Charge position is something of a development opportunity for less experienced nurses.
10The procedure for determining whether nursing shifts should be cancelled or additional resources required was not in dispute. An In Charge Nurse must look ahead to upcoming shifts to determine whether any changes are needed to the nursing complement on those shifts. This assessment is generally made in the morning the day before a shift. To make this assessment the In Charge Nurse considers the "census", i.e., the number of patients in the Postpartum Unit, how many patients are expected to be released and how many patients are expected to arrive from the Labour and Delivery Unit. The In Charge Nurse also considers the acuity of patients, as patients require who more care, e.g., after a caesarean section, a patient obviously requires more care. The In Charge Nurse is also expected to call the respondent's Keele and Church sites to determine if they need additional nurses. If the In Charge Nurse determines that the census is such that a nurse's shift should be cancelled, she must discuss the situation and make a recommendation to the manager. The In Charge Nurse does not have authority to cancel shifts on her own. On nights or weekends – which the manager does not work – the In Charge Nurse discusses cancellations with the Night Program Service Coordinator.
11Ms. Zevlever, who was the In Charge Nurse who initiated the cancellation of the applicant's shifts on April 9 and10, 2011, testified that at least four mothers and babies per nurse were required before an additional nurse is required. Ms. Philp’s evidence was that the ideal patient/nurse ratio is four mother/baby "dyads” to each nurse. Ms. Gallo, who was the In Charge Nurse who initiated the cancellation of the applicant's shift on April 17, 2011, testified that if the patient/nurse ratio was within four to one, then shifts would be cancelled. The applicant's evidence was that an additional nurse would only be called in if the patient/nurse ratio reached eight to one. The applicant also testified that shifts were not always cancelled in cases of low censuses. In the applicant's view, whether a census is low depends on whom the In Charge Nurse "likes or doesn't like".
12Once the manager approves the decision to cancel a shift, the In Charge Nurse would call the affected nurse to advise that her shift was cancelled due to low patient numbers. Ms. Zevlever's evidence was that, as births as can be unpredictable, she would ask the affected nurse if she wanted to be called back to work if the patient numbers increased. Ms. Gallo's evidence was that she would advise the affected nurse that she would call her back if the numbers increased. Ms. Zevlever stated that the direction from the manager at the time, Urica Parris, was that it was better to cancel a shift and recall the cancelled nurse than to have too many nurses working.
13The "census" or patient numbers are recorded on a form entitled "Post Partum Team Assignment". As is suggested by the title, the form indicates the work assignments for each nurse for her shift. At the bottom of the form, there are sections to record information with the number of patients at the commencement of a shift, admissions, discharges and transfers, the "Final Census", etc. The In Charge Nurse is responsible for completing the form and it would appear that all the information is not always included and that In Charge Nurses may have different practices in completing the form. The forms the In Charge Nurse completed with respect April 9 and 10, 2011 show the number of patients assigned to each nurse at the start of the shifts by noting the room and bed numbers of each patient as well as the total number of patients, along with their room numbers, by the end of the shift. The In Charge Nurse for April 17, 2011 recorded only the total number of patients assigned and their room numbers. Ms. Zevlever, the In Charge Nurse for April 9 and 10, noted that the sections of the bottom of the page were not completed. She acknowledged that they should have been completed, but did not know why they were not. The assignment form for April 17, 2011 showed only the actual assignments, but the sections on the bottom of the sheet regarding the number of patients at the start of the shift on April 17, 2011, number admissions and number of discharges were completed.
14The assignment sheets for April 9, 2011 indicated five nurses worked during the shift from which the applicant was cancelled. At the commencement of the shift, three nurses had three patients and the other two had two patients. The form shows that, ultimately, three of the nurses were assigned four patients and the other two had three patients. On April 10, 2011, the assignment form indicates that five nurses worked the shift in question and each started with two patients. Ultimately, one nurse had four patients, three nurses had three patients and one nurse had two patients. On April 17, 2011, three nurses worked on the shift in question. One nurse was assigned four patients, one nurse was assigned three patients and one nurse was assigned two patients. The data included at the bottom of the sheet indicate that there were seven patients in the Postpartum Unit at the start of the shift, three were admitted and one was discharged.
15Ms. Philp’s evidence was that the schedule is posted six weeks in advance and that the “base staff” or staffing model in 2011 was five nurses made up of full-time and part-time nurses and someRPNs. Ms. Philp stated that nurses’ shifts are cancelled when patient numbers are low because a full complement is not needed and it makes no sense financially to maintain a full complement in those circumstances. Ms. Philp’s evidence was that cancellations occurred more frequently in 2011 than today. She stated that in 2011 the staffing model was based on the expectation of 4,500 births per year, but births declined in 2011. In 2012 or 2013 the base staff was reduced to four nurses, which has resulted in fewer cancellations.
16The applicant testified that the nursing staff suffers from division along racial and ethnic lines to which management has turned a blind eye. The applicant testified, in particular, that a group of black or African-Canadian nurses and a group of Filipina nurses "dominate" the Postpartum Unit. The African-Canadian group includes Elaine Randall and Colineth Robertson. The Filipina group includes Ailyn Tablante. The applicant’s evidence was that shift cancellations were sometimes made because the In Charge Nurse did not like a nurse, rather than for operational requirements. The applicant stated that the members of the ethnic/racial groups are hostile to her and will prefer or favour other members of the groups, which she believes explains why her shifts were cancelled on April 9, 10 and 17, 2011. The applicant acknowledged that neither Mrs. Zevlever nor Ms. Gallo is black or Filipina. She stated, however, that they are easily influenced by the other staff.
17The applicant also testified that she was informed by either Barbara Pommels or Ann Popat that Elaine Randall and Lizzie Delosreyes, a Filipina nurse, cancelled the applicant's shifts. The applicant also testified that she complained to Urica Parris, the unit manager at the time, about the shift cancellations. According to the applicant, Ms. Parris was on vacation at the time of the cancellations, but confirmed that the In Charge Nurses did not obtain managerial approval. In the applicant's view, the census was high enough on April 9, 10 and 17, 2011 that her shifts should not have been cancelled.
18In cross-examination, the applicant agreed that, assuming cancellation of a nursing shift was warranted, she was the least senior nurse scheduled to work on April 9, 10 and 17, 2011 and therefore the appropriate person to cancel. She also acknowledged she was given the requisite 24 hour notice of the cancellations of her shifts.
19The applicant confirmed that Ms. Parris was away when the shifts in question were cancelled and was not available to take calls from In Charge Nurses. She also agreed that Ms. Parris did not, in any event, work on Saturday and Sunday and would not have been asked for permission on April 16, 2011 regarding applicant’s shift on Sunday, April 17, 2011. The applicant admitted that she made no attempt to locate Ms. Parris (who no longer works for the respondent) to have her testify. The applicant stated that, while she has concerns about the accuracy of the respondent's records, she has no personal knowledge that the documents do not accurately reflect the state of affairs regarding the shifts in question. The applicant agreed that the schedule and the “Cancelled staff” sheet indicated that between March 30, 2011 and April 17, 2011 a large number of nurses had their shifts cancelled.
20Ann Popat worked as a RPN for the respondent between August 1987 and July 27, 2011 in the Women and Children's Program and was part of the Postpartum Unit. Ms. Popat worked shifts from 7 a.m. to 7 p.m., which would overlap with evening shifts, and also worked some nights. As a result, her shifts sometimes overlapped with the applicant's. Ms. Popat’s evidence was that in 2011 nurses in the unit formed "gangs" or groups based on race and ethnicity. She stated the respondent was aware of the situation because complaints had been made to management. Ms. Popat testified that if the other nurses did not like you, they would not give proper assignments and would pick on anyone who complained to management.
21Ms. Popat testified that she worked on April 8, 2011 on the day shift and overheard the other nurses discussing cancelling shifts. Ms. Popat stated that Ms. Zevlever wanted to cancel the shift of Alisha Williams, but ultimately decided to cancel the applicant's shift. Ms. Popat described Ms. Williams as black. The seniority list tendered by the applicant indicates that Ms. Williams is a part-time employee in the ONA bargaining unit and has less seniority than the applicant. The schedule for April 9, 2011 indicates that Ms. Williams was scheduled to work on the day shift and the applicant on the night shift. Ms. Popat also worked on April 9, 2011. Her evidence was that the nurses planned to cancel the applicant’s shift on April 10, 2011 because of the census, but the census was too high. Ms. Popat stated that, in fact, the census was high on both April 9 and 10, 2011. In Ms. Popat's view, the other nurses wanted to cancel the applicant's shift because they did not like her. Ms. Popat stated that Ms. Zevlever specifically did not like the applicant and that the nurses spoke to Ms. Zevlever to influence her decision. Ms. Popat's evidence was that Elaine Randall, who is black, advised Ms. Zevlever to cancel the applicant's shift. Ms. Popat opined that Ms. Randall gave this advice because the applicant complained about one of the staff in her "clique".
22In cross-examination, Ms. Popat stated that she had been represented by the Service Employees International Union when she worked for the respondent as a RPN. She acknowledged that she was familiar with the ONA collective agreement. She agreed a part-time nurse should be selected for shift cancellations before full-time nurses, but stated that the full-time nurses should first be given the opportunity to take a day off. Ms. Popat agreed that the applicant was the only part-time nurse scheduled for the night shifts on April 9 and 10, 2011 and, accordingly, would be the person chosen if a shift had to be cancelled. Ms. Popat agreed that Ms. Randall is a much more senior nurse than Ms. Zevlever. She could not say whether it was possible that Ms. Randall had been advising Ms. Zevlever about who should be cancelled based on her experience. Ms. Popat did agree that the advice to cancel the applicant's shift was the correct one because, as the only part-time nurse, the applicant was the most junior. She explained that she did not have the census, but stated that, if the census was low, a full-time nurse should be asked if they wanted day off.
23Ms. Popat stated that she was present when the applicant was notified of the cancellation of her shift on Saturday, April 10, 2011. She stated that they tried to cancel the applicant’s shift on Sunday, but the census was too high. She stated that the census had been high on Saturday as well. Ms. Popat stated that, to her knowledge, the applicant worked on Sunday, noting that her name had not been circled on the schedule.
24Ms. Zevlever is a RN and worked in the respondent's Women and Children's Program between December 2005 and October 2011, when she was laid off. Ms. Zevlever then exercised her seniority rights to move into the Breast-Feeding Clinic. Ms. Zevlever worked with the applicant and stated that she felt her relationship with the applicant was no different than with other colleagues, which she described as good. Ms. Zevlever was an In Charge Nurse in April 2011 and was working Friday to Sunday, starting at 7:30 a.m. Ms. Zevlever did not specifically remember cancelling the applicant's shifts on April 9 in 10, 2011, but noted that the schedule and “Canceled staff” list indicated that she did. Ms. Zevlever reviewed the schedule and the Post Partum Team Assignment sheets for April 9 and 10, 2011 and noted that there were five nurses scheduled to work those shifts in addition to the applicant. In her view, the number of patients did not warrant having the applicant come into work and therefore she cancelled her shifts. Ms. Zevlever denied that she cancelled the applicant's shift because she does not like her. She also denied the other nurses advised her to cancel the shifts of nurses whom they do not like. Ms. Zevlever's evidence was that she sometimes asked for the advice of more senior nurses and/or the manager when faced with a dilemma regarding the operation of the team, not limited to staffing. She identified Susan Gallo and Elaine Randall as senior nurses from whom she would seek advice. Ms. Zevlever noted that all cancellations are discussed with the manager. Ms. Zevlever denied that Ms. Randall ever told her to cancel a nurse because she did not like her. Ms. Zevlever stated that she had no animosity for anyone because of their ethnicity and that she had respect for everyone on the floor.
25In cross-examination, Ms. Zevlever agreed that the In Charge Nurse was to call the Church site to see if they needed another nurse before cancelling a shift and that this was a regular practice. She acknowledged that no record was kept of these calls.
26Ms. Zevlever stated that decisions to cancel Saturday shifts are usually made by 11 a.m. on Friday by which time there is enough information to make a decision. She stated that a manager is usually available on Fridays, but did not recall specifically whether she spoke to Ms. Parris on Friday, April 8, 2011. She also did not specifically recall who the Program Service Manager was on that weekend or whether she spoke to that person for approval. Ms. Zevlever's evidence that no record was kept of approvals, but stated she used to send e-mail messages to the manager to relay expectations regarding the weekend and confirming cancellations. Counsel for the respondent advised that Ms. Parris' e-mail records have been deleted that Ms. Zevlever's had not been kept for the period in question.
27When asked why the practice was to cancel shifts rather than spread the available work around, Ms. Zevlever stated that the manager directed her to follow this practice as a cost savings measure. Ms. Zevlever noted that the respondent eventually had to layoff nurses because there were not enough patients.
28With respect to the cancellation of the applicant's shift on April 10, 2011, Ms. Zevlever confirmed that she made the decision to cancel by 7:40 a.m., as is reflected in the Canceled staff form. She explained that she usually arrived by 7:15 a.m. and would have the report from the previous shift and labour and delivery expectations available to her. Ms. Zevlever's evidence was that Fridays are busier; therefore, cancellation decisions are made later in the morning. Ms. Zevlever did not specifically recall speaking to a manager about this cancellation, but stated that she would have had to discuss it before notifying the applicant. She also did not recall speaking to Ms. Randall about cancelling the applicant's shifts on April 9 and 10, 2011.
29Ms. Zevlever did not agree that there are groups within the nursing staff that associate with each other based on race or ethnicity. She allowed that such associations may occur on breaks, which was not related to work. Ms. Zevlever stated that she became aware that some RNs may dislike the applicant after she filed this Application. When asked to specify who may not like the applicant, she stated that she "just knew who was invited to the hearing" and presumed they may not like her. She denied any nurses influenced her to cancel the applicant's shifts and noted that she cancelled other nurses' shifts as well.
30In redirect, Ms. Zevlever stated that she first learned of the applicant's complaints about shift cancellations when she participated in the respondent's investigation of this issue.
31Prior to her retirement in January 2015, Susan Gallo worked for the respondent as a RN for 28 years, of which 27 were spent in the Women and Children's Program. Ms. Gallo stated that for the last 10 years of her employment she was an In Charge Nurse with the exception of a 14-15 month period. Ms. Gallo stated that she knew the applicant, but that she worked mostly days and the applicant mostly nights and weekends. She described her relationship with the applicant as professional and asserted that she did not dislike her. Ms. Gallo was aware that the applicant had issues with some co-workers and that for some reason she seemed to believe Ms. Gallo took their side.
32Ms. Gallo's evidence was that seniority was the criterion for deciding which nurse was to have her shift cancelled. Ms. Gallo stated that only a manager could tell her to cancel a shift and that she did not cancel shifts because she did not like a particular nurse.
33Ms. Gallo was the In Charge Nurse on the day shift of Saturday, April 16, 2011 and initiated the cancellation of the applicant's shift on Sunday, April 17, 2011. Ms. Gallo stated she was relying on documents more than her memory. Her evidence was that the Post Partum Assignment form indicated that the census was very low for April 17, 2011. Accordingly, she decided to cancel the applicant's shift, as she was the only part-time nurse scheduled to work and therefore the least senior. Ms. Gallo's evidence was the census was only reason for cancelling the applicant's shift.
34In cross-examination, Ms. Gallo stated that she got along with everyone in the Postpartum Unit, but did not have a personal relationship outside of work with any of the other nurses. Ms. Gallo testified that she had no personal relationship with Elaine Randall, Colineth Robertson or Ailyn Tablante. Ms. Gallo also noted that she did not work with Ms. Randall often as they worked on opposite shifts. Ms. Gallo stated that she had a professional working relationship with the applicant. She acknowledged that she did not enjoy participating in the hearing and stated that there was no validity to the applicant's allegations against her. Ms. Gallo's evidence was that she did not consult any of the other nurses when she decided that the applicant's shift should be cancelled and was not influenced by others when she made that decision.
35According to Ms. Gallo, the Cancelled staff list was created because of an increase in cancellations and was used to keep track of cancelled shifts. She stated that the list indicated that cancellations were tracked for about two weeks until April 9, 2011. Ms. Gallo stated that cancellations were not tracked before that time or since. Ms. Gallo was not sure if she forgot to record the cancellation of the applicant's shift on April 17, 2011 or if the practice of recording cancellations had ceased.
36Ms. Randall is a RN and has worked for the respondent for about 30 years. She began in the Gynaecology Department, but has worked in the Women and Children's Program for many years. Ms. Randall stated that she had been an In Charge Nurse on and off for about 20 years.
37Ms. Randall stated that she is familiar with the applicant, as they work on the same unit. They do not work together often, however, as the applicant works nights and weekend shifts and Ms. Randall works mostly day shifts. Ms. Randall's evidence was that they interacted at shift changes and on the occasion when Ms. Randall works on the weekend. Prior to learning of the applicant's complaint against her, Ms. Randall thought the relationship was "okay".
38Ms. Randall's evidence was that, as an experienced In Charge Nurse, she was familiar with the shift cancellation process. She stated that less experienced In Charge Nurses would ask her for advice about the process, including census numbers. Ms. Randall stated that the less experienced In Charge Nurses, including Ms. Zevlever, did not ask her whom to cancel, as that is based on the collective agreement. Ms. Zevlever did sometimes ask her opinion about census numbers and whether cancellation was appropriate, but noted that ultimately it falls to the manager to decide. Ms. Randall denied ever telling Ms. Zevlever to cancel the applicant. Ms. Randall's evidence was that Ms. Gallo, herself an experienced In Charge Nurse, never asked her for advice since they worked opposite shifts and did not work together.
39In cross-examination, Ms. Randall stated that she was not happy about the applicant's allegations against her, but has no reason to dislike her. Ms. Randall's evidence was that she believed that the nurses with less seniority respected her and that they would ask for her opinion. Ms. Randall stated that Ms. Zevlever did ask for her advice once in a while including regarding shift cancellations. She did not recall whether Ms. Zevlever asked about the cancellation of the applicant's shifts on April 9 and 10, 2011, but agreed it was possible. When asked if she influenced Ms. Zevlever's decision, Ms. Randall stated that Ms. Zevlever would sometimes ask her what she thought and she would give Ms. Zevlever her opinion. Ultimately, the decision was the manager’s. Ms. Randall denied that Ms. Gallo ever asked for her opinion, since they work different shifts. In redirect, Ms. Randall stated that she only gives her opinion to an In Charge Nurse if asked. Otherwise, she is not involved.
"Pork Chop" Comment
40The applicant stated that she came into the nursing station to start her shift one day and Ailyn Tablante said “Here comes the pork chop” in a derogatory manner. The applicant stated that she believed the incident occurred on December 24, 2011, based on the schedule and because it occurred around the same time as she learned that one of her co-workers was ill. She also recalled that she had been unwell at the time of the incident and had been experiencing extreme pain. The applicant did not, however, tender the schedule for December 24, 2011 to corroborate her recollection. The applicant stated that another nurse, Ms. Pasion, and possibly another, Ms. Unay, witnessed the incident. The applicant stated that the comment made her “feel like crap”. The applicant’s evidence was that she “just looked at” Ms. Tablante in reaction to the comment.
41The applicant stated that the term "pork chop" is a slang term for a Portuguese person. According to the applicant, using this term is okay if it is meant as a joke, or said between friends or between Portuguese people. In this case, the applicant stated that Ms. Tablante used the term in an offensive and humiliating manner, which the applicant did not appreciate.
42In cross-examination, the applicant stated that Ms. Tablante made the comment sometime between December 24, 2011 and January 2012, most likely on December 24, 2011 based on the schedule. The applicant confirmed that she did not say anything to Ms. Tablante because she did not want a confrontation, but stated that her displeasure would have been evident by her facial expression. The applicant's evidence was that she did not report the incident to management or to human resources, but did advise her lawyer who was assisting her with this Application.
43The applicant agreed that some Portuguese people may call each other “pork chop", but that she does not. She reiterated that the term is not offensive if used in a friendly manner, but in other contexts the term is inappropriate, as in this case. The applicant stated that someone had asked her in a friendly manner about the term and she replied that "I guess I am a pork chop". She had not found this exchange offensive. She did not recall if this incident was at work.
44Ms. Tablante has worked for the respondent as a RN since 1994 in the Postpartum Unit of the Women and Children's Program. Ms. Tablante’s evidence was that she knows the applicant and works with her occasionally, when she is scheduled to work nights or weekends.
45Ms. Tablante described the nursing station as a room with two doors, a circular table in the centre and two workstations along the walls. The secretary's desk has a window opening onto the hallway. A variety of hospital staff may be in the nursing station, including: nurses, doctors, social workers, pharmacy staff, housekeeping and the secretary. Ms. Tablante's evidence was that the circular table at the centre of the room divides the room and prevents one from seeing across the room. Accordingly, it is only possible to see who is coming and going on the side of the room one is on.
46Ms. Tablante testified that she thought she had a good relationship with is the applicant until the applicant complained that she had called the applicant a "pork chop". The first she heard about this allegation was in 2012. Ms. Tablante emphatically denied that she ever called the applicant, or anyone else, a "pork chop". She agreed that she sometimes stands in the nursing station and announce the arrival of someone by saying "Here comes [whomever]" when waiting for someone who may be late. She denied saying "Here comes the pork chop". Ms. Tablante stated that in 2012 she did not know that the term "pork chop" was derogatory. She became aware of its derogatory connotation as a result of the applicant's complaint. Ms. Tablante's evidence was that the applicant has advised the other nurses that "pork chop" was a term for Portuguese people, but did not say it was derogatory. Ms. Tablante also stated that the applicant never told anyone not to call her "pork chop" and never complained that she was called “pork chop”.
47In cross-examination, Ms. Tablante confirmed that her shifts sometimes end when the applicant's are to begin, so that she could be waiting for the applicant to arrive. She agreed that she may say "Here comes [whomever]" when they arrive at work, including the applicant. Ms. Tablante agreed that she knew the term "pork chop" referred to Portuguese people, but not that it was a derogatory term. She was aware that the applicant is Portuguese and had heard her call herself "pork chop". She denied, however that it was possible that she called the applicant "pork chop" because she does not speak to people in this manner and it was not the applicant's name.
48In redirect, Ms. Tablante stated that she will often joke with other nurses, but does not laugh about other nurses at their expense.
"White Ass" Comment
49The applicant's evidence was that she was finishing a night shift and answered a call bell a few minutes before 7:30 a.m. (the end of the shift) to assist a patient. After completing this task, the applicant proceeded to the nursing station. When she arrived only Elaine Randall and Colineth Robertson remained in the station, but were on the other side of the room behind the partition in the centre of the room and could not see her. The applicant stated that she proceeded to check the narcotics cart and overheard the other two women in conversation. According to the applicant, Ms. Robertson said, "Irene has a big mouth," and Ms. Randall laughed and responded, "We’ll fix her white ass. I'll give her harder assignments." The applicant stated that she is the only person named Irene in the unit. The applicant stated that she walked around the partition to confirm who had been speaking and, when she did, Ms. Randall and Ms. Robertson laughed and carried on with their conversation.
50The applicant stated that she was shocked, but did not say anything, asking rhetorically "What could be said?" The applicant stated that she reported the incident to her lawyer, but not to the respondent or ONA, as she did not believe they would do anything to help her. The applicant stated that the incident occurred in January or February 2012. She explained that it occurred after the "pork chop" comment, but before a friend of hers passed away in March 2012.
51Ms. Randall testified that the nursing station is on the third floor of hospital, near the elevators. There are several workstations in the centre of the room, including four computers. When seated at a computer, one cannot see the other side of the room. Ms. Randall stated that the nursing station is quite busy in the morning with a variety of staff coming and going. Nurses do their charts and station and give reports to the oncoming nurses at shift change over. The medicine cart and phones are also located there.
52Ms. Randall's evidence was that she would sometimes give reports to Ms. Robertson if they were caring for the same patient. She stated that she would only speak to Ms. Robertson about the applicant if there was a professional reason to do so. Ms. Randall acknowledged that she and Ms. Robertson are friends and socialize outside of work, including attending functions such as weddings.
53Ms. Randall denied that Ms. Robertson ever told her that the applicant "has a big mouth" and stated that she would remember such a statement. Ms. Randall also denied telling Ms. Robertson that they wanted "fix her white ass" in reference to the applicant. She stated that she does not use this kind of language.
54In cross-examination, Ms. Randall agreed that she was not pleased with the applicant's allegations against her, but noted that she must act professionally in the workplace regardless. Ms. Randall acknowledged that Ms. Robertson is a friend. Ms. Randall agreed that she would be in the nursing station with Ms. Robertson at the end of her shift discussing work if Ms. Robertson is the In Charge Nurse taking over. She agreed that they might also discuss other issues related to their friendship, but it would be a short conversation. Ms. Randall agreed that the applicant could have been in the opposite side of the nursing station without her knowing. She explained that the room is square with a workstation in the middle. Also in the middle of the room are racks with charts that reach the ceiling.
55Ms. Randall agreed it was possible that the applicant overheard a conversation between her and Ms. Robertson in early 2012. She denied, however, the statements attributed to her and Ms. Robertson that the applicant "has a big mouth" and that they would "fix her white ass" by giving her harder assignments. Ms. Randall reiterated that she does not speak in this manner and does not speak about colleagues in this way.
56Ms. Robertson is a RN and has worked in the respondent's Women and Children's Program, in the Postpartum Unit, since 1987. Her evidence was that she was familiar with the applicant, but only works with her once or twice a month, when she is scheduled to work on the weekend. Ms. Robertson stated that prior to 2012 she been involved in a dispute with the applicant. The incident arose when the Nursery called to have a nurse sent to them for help. Ms. Robertson explained it is usually the most junior nurse who is sent to help and it was either her or the applicant. An argument ensued between Ms. Robertson and the applicant. Ms. Robertson stated that she apologized to the applicant "if she hurt her feelings", but the applicant complained that Ms. Robertson had influenced the In Charge Nurse to send the applicant to the Nursery. The manager directed Ms. Robertson to apologize, but Ms. Robertson advised that she had already done so. Ms. Robertson also recalled that the applicant had accused her of telling a co-worker that the applicant "stinks". Ms. Robertson believed that this was the same incident as the Nursery issue, but did not recall when it occurred. Ms. Robertson described her relationship with the applicant in the spring of 2012 as "okay" and stated that nurses must be able to talk about patients and work together. Ms. Robertson testified that Ms. Randall is a close friend that they go to work functions, weddings and mutual friends' birthday parties together.
57Ms. Robertson described the nursing station as a big office containing computers and charts that are located in the center of the room. She stated that there are two doors and window for the secretary. The nursing station is busy at the start of shifts when nurses will give reports to the oncoming shift. Ms. Robertson stated that she would speak to Ms. Randall in the nursing station to give reports and briefly chat with her. They would exit the nursing station for personal conversations as it is not a private location.
58Ms. Robertson denied that she ever told Ms. Randall that the applicant has a big mouth and the Ms. Randall said that they would "fix her white ass". Ms. Robertson stated that the applicant never looked at her in shock while in the nursing station and never asked Ms. Robertson to stop talking about her and making comments about her.
59In cross-examination, Ms. Robertson agreed that she does not have a good relationship with the applicant. She also agreed that she did not care for the applicant, but added that she does not hate her either. Ms. Robertson agreed that she was loyal to Ms. Randall and that Ms. Randall would stick up for her and she for Ms. Randall. In re-examination, Ms. Robertson stated that she would not lie for Ms. Randall or anyone else.
The Respondent's Investigation
60Ms. Philp's evidence was that the respondent became aware of the applicant's complaint regarding shift cancellations and the two racial/ethnic comments in early 2012. She was not certain of how the applicant brought them to the respondent's attention. In any event, the hospital decided to engage an external investigator. This decision was taken by Ms. Philp and the Director of Human Resources. In a letter dated May 1, 2012, counsel for the respondent advised counsel for the applicant that the respondent had retained an external investigator and that the investigator would shortly meet with the applicant and other parties and witnesses.
61The investigation report indicates that the investigator interviewed the nurses against whom allegations were made: Ms. Gallo, Mr. Tablante, Ms. Randall and Ms. Zevlever. The investigator also spoke to potential witnesses, which for some reason she did not identify by name. One of these witnesses was clearly Ms. Robertson regarding the alleged "big mouth/white ass" comments. The context of the report indicates that the other witness was Lorelie Unay, whom the applicant alleged to have overheard the "pork chop" comment. Ms. Philp stated that the applicant also had an opportunity to participate. The investigation report indicates that the applicant met with the investigator along with a union representative on May 24, 2012. The applicant also provided the investigator with a written statement setting out her allegations regarding the alleged "pork chop" and "big mouth/white ass" comments.
62Ms. Philp’s evidence was that the issue of shift cancellations came up during the investigation of the alleged racist/ethnic comments. The respondent therefore asked that the investigator to investigate this allegation as well. Ms. Philp stated that the investigator had access to all relevant policies and documents. The investigation report indicates that the applicant chose not to meet with the investigator after May 24, 2012. The investigator based the investigation on submissions from the applicant's counsel to the Tribunal setting out her allegations regarding shift cancellations. Ms. Philp was not aware of whether the investigation report was shared with the applicant.
63The investigation report indicates that the investigator found that the evidence did not support the applicant’s claims and found that her complaints had not been substantiated.
64In cross-examination, Ms. Philp stated that the applicant had made a number of complaints previously that had been addressed internally. The respondent therefore decided to employ an external investigator. Ms. Philp agreed that under the respondent's Anti-Harassment/Anti-Discrimination Policy there are both formal and informal routes to resolving employees' complaints. Ms. Philp did not know if any informal methods were employed to investigate the applicant's complaints, but the decision was taken to involve a neutral third party.
65The applicant testified that the respondent has policies, including the Anti-Harassment/Anti-Discrimination Policy that look good on paper, are not followed in practice. She described the investigation as a "joke". The applicant was unsatisfied with the outcome because there was no discipline for the perpetrators of the harassment and discrimination against her. The applicant stated that "what she (the investigator) wrote down was wrong", but did not specify what she meant by this.
66In cross-examination, the applicant agreed that she had not reported the incidents in question in this Application to the respondent. She stated that she had reported other incidents in the past, but received no help. She stated that, to the contrary, she suffered retaliation. The applicant stated that she stopped going to management and her union because she did not trust them. Human Resources was similarly of no use to her. Accordingly, the applicant chose to take legal action by commencing this Application.
Analysis and Decision
67The relevant Code provisions are as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
- (1) In Part I and in this Part,
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
68The applicant bears the legal onus of establishing discrimination on a balance of probabilities, i.e., that it is more probable than not that discrimination occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 at paragraph 83 (“Pieters”). In Pieters, the Court of Appeal stated that an applicant has the onus of establishing the following three elements to make out discrimination under the Code:
a. That he or she is a member of a group protected by the Code;
b. That he or she was subjected to adverse treatment; and
c. That the Code ground was a factor in the alleged adverse treatment.
69In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…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.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
70I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396 at paragraphs 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 CanLII 3498 (ON CA), 1995 CanLII 3498 (ON C.A.), (1995), 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 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
Shift Cancellations
71I find that the applicant did not establish, on a balance of probabilities, that her race or ethnicity were factors in the decisions to cancel her shifts on April 9, 10 and 17, 2011.
72There was no dispute that nurses in the Postpartum Unit sometimes had their shifts cancelled when patient numbers were low. The Cancelled staff form indicates that shift cancellations were common in April 2011 and that the applicant was not singled out in this regard. The only available evidence regarding the “census” or patient numbers on the dates in question were the Post Partum Team Assignment forms. The forms were not complete in some respects, but this has no bearing on the number of patients recorded and the applicant presented no compelling reason for not accepting the patient count as accurate. Based on the assignment forms, no nurse was assigned more than four patients on the shifts in question and several had fewer on the shifts in question. The evidence of Ms. Philp, Ms. Gallo and Ms. Zevlever was that such a patient/nurse ratio was within expected norms and that an additional nurse, i.e., the applicant, was not needed. Other than the bare assertion that she believed there was enough work, the applicant provided no reason to doubt this evidence. Her own evidence was an extra nurse would not be called in until the patient/nurse ratio reaches eight to one. In these circumstances, I find that the number of full-time nurses working on these shifts was quite adequate to manage the patients in the Postpartum Unit and the applicant was not needed. There was no dispute that part-time nurses have less seniority than full-time nurses and for that reason are selected for shift cancellation when a shift is to be cancelled. Similarly there is no dispute that the applicant was the only part-time nurse scheduled to work on the night shift on April 9, 10 and 17, 2011 and therefore the least senior. Accordingly, I find that there were valid operational reasons for cancelling the applicant’s shifts on each of the dates in question.
73The applicant’s evidence that her race and ethnicity were factors in the cancelling of her shifts was also not compelling and did not discharge her legal onus of establishing discrimination. To begin with, neither Ms. Zevlever nor Ms. Gallo, the In Charge Nurses who initiated the cancellation of the applicant’s shifts, are black or Filipina and were not members of the racial/ethnic cliques that the applicant alleges dominate the workplace and pick on her. The applicant’s testimony that they were easily influenced by members of the cliques is no more than a bare assertion. Ms. Zevlever, who was a less experienced nurse, acknowledged that she sometime sought the advice of more experienced nurses, such as Ms. Randall, when she was an In Charge Nurse in the Postpartum Unit. In my view, this is a reasonable practice that is not problematic per se. Neither Ms. Zevlever nor Ms. Randall specifically recalled if they discussed patient numbers or whether to cancel a shift on April 9 and 10, 2011, but acknowledged that it was possible.
74The only evidence on this point came from Ms. Popat, who stated that she observed Ms. Randall advising Ms. Zevlever to cancel the applicant’s shift on April 9, 2011. Ms. Popat stated that it was her opinion that Ms. Randall gave that advice because she did not like the applicant. In light of the evidence, which I have accepted, that cancelling the applicant’s shift on April 9, 2011 was appropriate from an operational perspective, the fact that Ms. Randall advised the applicant to cancel the applicant’s shift is not in itself a proper basis for concluding that the applicant’s race was a factor in Ms. Randall’s advice. Ms. Popat’s “opinion” was her only reason for concluding that Mr. Randall’s advice was founded on a dislike of the applicant, which in my view is not an adequate basis for finding a Code violation. In my view, Ms. Popat’s evidence that Ms. Zevlever recommended the cancellation of the applicants’ shift on April 9, 2011 instead of Ms. Williams, a black nurse with less seniority, is also of no moment. The evidence was that Ms. Williams was scheduled to work on the day shift, starting at 7:30 a.m., on April 9, 2011. Since Ms. Zevlever worked on the day shift on April 8, 2011, also starting at 7:30 a.m., it was too late to give Ms. Williams the 24 hours’ notice required to avoid the penalty under the ONA collective agreement. Accordingly, Ms. Zevlever’s decision to recommend the cancellation of a nurse on the night shift is entirely consistent with the respondent’s practices and the collective agreement requirements.
75I also have concerns about the reliability of Ms. Popat’s evidence. For example, her evidence was that the census was high on both April 9 and 10, 2011, which is at odds with the patient numbers recorded on the Post Partum Team Assignment form. It was also her evidence that the applicant worked on April 10, 2011, when she clearly did not. Consequently, I attach little weight to Ms. Popat’s evidence.
76There was no evidence indicating that Ms. Zevlever consulted with anyone regarding her recommendation to cancel the applicant’s shift on April 10, 2011. In any event, it was Ms. Zevlever decision to recommend the cancellation of the applicant’s shifts on April 9 and 10, 2011. Whatever Ms. Randall’s motivations may have been, the evidence did not establish that the applicant’s race or ethnicity was a factor in Ms. Zevlever’s decision. The evidence was that Ms. Gallo, a very experienced nurse, did not consult with other nurses when considering whether to recommend a shift cancellation. In my view, the evidence also did not support the allegation that race or ethnicity was a factor in Ms. Gallo’s recommendation to cancel the applicant’s shifts.
77The applicant testified that the former manager of the Postpartum Unit, Urica Parris, told her that the cancellation of the applicant’s shifts on April 9, 10 and 17, 2011 were not approved by management. I attach no weight to this hearsay evidence. The applicant’s evidence was that Ms. Parris was away when her shifts were cancelled. Since Ms. Parris did not testify and was not cross examined, how she could have known whether managerial approval was given remains unknown and I could not assess her credibility. The applicant also asserted that other nurses did not have their shifts cancelled when the patient census was low, but did not produce any evidence (e.g. schedules and/or assignment sheets) to support this claim and did not ask the respondent to produce any such documents for use in the hearing of this matter. In contrast, the Cancelled staff form indicated that many nurses, including black and Filipina nurses, had their shifts cancelled in April 2011.
78For the foregoing reasons, I find that, on a balance of probabilities, the applicant’s race and ethnicity was not a factor in the decision to cancel her shifts on April 9, 10 and 17, 2011.
Racial and Ethnic Comments
79In order to establish harassment under the Code, the applicant must demonstrate that the behaviour in question was (i) a course of vexatious conduct or comment, (ii) committed by her employer, her employer’s agent, or another employee, (iii) unwelcome or ought reasonably to be known to be unwelcome and (iv) based on a protected ground under the Code. See Dunn v. Edgewater Manor Restaurant 2011 HRTO 1795 and Gubrenko v. T.O.J. Empire Auto, 2014 HRTO 1232.
80The applicant’s evidence was that on one occasion Ms. Tablante called her a “pork chop”, which is was a colloquialism referring to the fact that the applicant is a Portuguese person. The applicant states that in the context of this incident Ms. Tablante used the term in a derogatory manner. The applicant states that on another occasion Ms. Randall made a negative reference to the applicant’s race when she said of the applicant “We’ll fix her white ass”. The evidence does not establish any connection between these two incidents and, in fact, the applicant did not suggest that such a connection existed. The impugned comments were made by different people, at different times and engaged different Code grounds. Consequently, assuming the comments were made, I find that each comment amounts to a single discrete incident and that there was no course of vexatious conduct or comment.
81The Tribunal has accepted that a single comment can amount to a breach of the Code. See, for example, B.C. v. London Police Services Board, 2011 HRTO 1644. In Berisa v. Toronto (City), 2011 HRTO 912, and B.C., above, the Tribunal reviewed jurisprudence considering whether a single incident can amount to harassment or discrimination. The outcomes varied depending on the circumstances of each case. However, the Tribunal noted that some single incidents of harsh slurs have been found to not amount to harassment or discrimination in employment. For example, in Berisa the Tribunal found that a single incident where the applicant was called a “fucking immigrant” was not serious enough to amount to a Code violation. Similarly, in Banwait v. Forsyth, 2008 BCHRT 81, the British Columbia Human Rights Tribunal (BC HRT) found that a single incident in which a co-worker called the complainant a “fucking Hindu” did not breach the Code. In B.C., above, this Tribunal adopted the decision of BC HRT in Pardo v. School District No. 43, 2003 BCHRT 71 in which the BC Tribunal stated as follows at paragraph 12:
(…) all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.
82The applicant’s evidence regarding the alleged “pork chop” comment was fairly detailed and she was able to indicate when the alleged incident occurred based on contemporaneous events in her life. The impugned comment “Here comes the pork chop” was consistent with Ms. Tablante’s admitted pattern of behaviour in greeting co-workers arriving at work by saying “Here comes [whomever]”. Ms. Tablante admitted that she knew that “pork chop” is a slang term for Portuguese people, and that the applicant is Portuguese. The applicant’s account of the “white ass” comment is also plausible. The testimony of Ms. Randall and Ms. Robertson left me with little doubt that neither of them is fond of the applicant. The evidence regarding the layout of the nursing station establishes that it is possible to be on one side of the room without realizing that someone else is on the other side. Accordingly, Ms. Randall and Ms. Robertson could have been discussing the applicant in the nursing station without her knowing. The alleged comment about fixing the applicant’s “white ass” was clearly about her race. However, without condoning such comments, these alleged comments were in my view no more serious that the comments made in Berisa and Banwait, above. Consequently, it is unnecessary for me to make a definitive finding, however, because even assuming Ms. Tablante and Ms. Randall made the comment attributed to them, I find that neither of these single comments was sufficiently egregious or virulent to amount to a violation of the Code.
83In these circumstances, I find that the applicant has not established that she was subject to harassment and discrimination contrary to the Code and her Application must be dismissed. Consequently, it is unnecessary for me to address the issue of the respondent’s investigation in detail. It is sufficient to state that, in my view, the applicant presented no evidence to support her contention that the respondent’s decision to retain a third party investigator was unreasonable, particularly in the context of ongoing litigation before this Tribunal, or that the investigation itself was somehow improperly conducted. The applicant’s main criticism of the investigation was that it was not concluded in her favour, which is not, on its own, a proper basis for finding fault in it.
84The Application is dismissed.
Dated at Toronto, this 7th day of October, 2015.
“Signed by”
Douglas Sanderson
Vice-chair