Luthra v. CAPREIT Limited Partnership, 2015 HRTO 1658

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leena Luthra

Applicant

-and-

CAPREIT Limited Partnership

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: December 8, 2015

Citation: 2015 HRTO 1658

Indexed as: Luthra v. CAPREIT Limited Partnership

APPEARANCES

Leena Luthra, Applicant

Self-represented

CAPREIT Limited Partnership, Respondent

Sasha Segal, Counsel

1The applicant filed an Application alleging that the respondent discriminated against her because of record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was employed by the respondent as a leasing specialist from April 1, 2014, until her employment was terminated on July 10, 2014. In her Application, the applicant alleged that her manager and co-workers harassed her and that the respondent dismissed her after she had to take a leave from work for medical reasons. In particular, the applicant alleged that the respondent infringed the Code by failing to provide her with seating in the office and appropriate training. She also alleged that her manager harassed her by screaming at her on several occasions and unfairly issuing letters of concern to her regarding two performance-related incidents. Finally, she alleged that the respondent terminated her employment due to the medical leave she took at the end of June 2014.

2The respondent denied that the applicant was subject to harassment. It also submitted that it terminated the applicant’s employment solely due to unsatisfactory performance and that it made the decision to terminate the applicant’s employment before she took time off work for medical reasons.

3At the hearing, the applicant sought to amend the ground of discrimination in her Application to disability rather than record of offences. I granted this request because the ground of disability was more reflective of the narrative of the Application than the ground of record of offences which did not apply to the applicant.

4At the hearing of the Application, I heard testimony from the applicant as well as Valerie Williams and Shalini Bhutani, who both provided testimony in support of the respondent’s case. Ms. Bhutani was the applicant’s manager while she was employed by the respondent. Ms. Williams is a Human Resources Advisor for the Brampton portfolio where the applicant worked.

5For the reasons set out below, the Application must be dismissed as the applicant has not made out a violation of the Code in this case.

applicable Law

6Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including disability. The ground of disability includes a perceived disability. Section 5(2) of the Code protects employees from harassment in employment because of the grounds listed in that section. While some legislation prohibits broader forms of personal or workplace harassment (see, for example, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Part III.0.1), the Code’s harassment protections are specifically linked to the grounds referenced in s. 5(2) of the Code. Therefore, in order to make out a claim of harassment under the Code, it is not only necessary to demonstrate harassment but the harassment must have been based, at least in part, on one of the grounds of discrimination listed in s. 5(2) of the Code. In this case, in order to make out her claims of harassment, the applicant must not only establish that she was subject to harassment during the course of her employment. She must also establish that any harassment she experienced was, at least in part, because of her disability.

7In assessing the credibility and reliability of the witnesses’ testimony in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.

Does the Applicant have a Disability?

8A key issue that must be addressed at the outset is whether the applicant had a disability within the meaning of the Code, or was perceived to have a disability, during the time period that is relevant to this Application. The applicant testified that she has epilepsy, and had this condition throughout the course of her employment with the respondent. The applicant testified that her manager Ms. Bhutani was aware that she had a disability for at least three reasons: (i) she mentioned in her hiring interview that she had “personal and health issues”; (ii) she told Ms. Bhutani on several occasions that she should treat her with respect and not scream at her because of her “health issues” and/or because it caused her anxiety and stress; (iii) the applicant had an attack/seizure on June 25, 2014, and provided updates to Ms. Bhutani regarding her medical condition.

9Ms. Bhutani agreed that the applicant had mentioned certain personal issues that need not be specified in this decision. However, Ms. Bhutani denied that the applicant had ever mentioned any health issues to her. She said she only became aware of the applicant’s medical condition after her attack/seizure on June 25, 2014.

10For the purposes of this decision, I am prepared to assume that the applicant did have epilepsy during the relevant time period and that epilepsy is a disability within the meaning of the Code. However, the evidence in this case does not establish that Ms. Bhutani was aware of the applicant’s epilepsy until the applicant experienced a seizure on June 25, 2014. Even if I accepted that the applicant made a general reference to “personal and health issues” or “anxiety and stress” on several occasions, this was not sufficient to make Ms. Bhutani aware of any disability within the meaning of the Code. In the circumstances of this case, such general references also were not sufficient to amount to a request for any kind of accommodation for the applicant’s disability. It is common for individuals to refer in a general way to health issues, stress and anxiety. Not all “health issues”, stress or anxiety amount to a disability under the Code. The applicant provided no medical evidence of any kind at the hearing. She did not provide any medical evidence, either at the hearing or to the respondent during her employment, that she had an anxiety-related condition that might amount to a disability under the Code. Therefore, I find that the earliest date on which the respondent could reasonably have been aware of the applicant’s disability was June 25, 2014.

Allegations of Discrimination and Harassment from April to May 2014

11In her Application, the applicant made several allegations of harassment relating to events that occurred between her first day of work in April 2014 and the date that her employment was terminated.

12In the sections below, I do not review the testimony of the respondent’s witnesses in response to the applicant’s allegations in detail. The reason for this is that, even accepting the facts as alleged by the applicant as true, her allegations relating to events preceding the termination of her employment do not amount to discrimination or harassment because of disability or any other ground protected under the Code.

Factual Background

Alleged lack of seating

13The applicant testified that there was no place for her to sit on her first day. According to the applicant, when she asked Ms. Bhutani where she should sit, Ms. Bhutani behaved strangely and said she was not the one who was responsible for providing the applicant with a seat. The applicant said she worked for 20 days without a chair. She felt that this set up was inappropriate and that Ms. Bhutani should have been more forthcoming in arranging a workspace for her. There was no mention in the Application that the applicant ever requested an accommodation for any disability nor is there any information in the Application suggesting that the applicant intended to allege that the failure to provide her with a chair had any adverse effect on her because of disability. It was only at the hearing that the applicant sought to make any connection between the office seating arrangements and her disability. She alleged that the lack of seating was particularly inappropriate due to her “health issues”.

14When asked in cross-examination whether she had ever asked for any disability-related accommodation in relation to the seating in the office, the applicant said that Ms. Bhutani was aware that she had certain “personal and health issues”. When asked specifically in cross-examination whether she ever told Ms. Bhutani that she required particular seating due to a disability, the applicant replied that she had not. She continued to maintain that she had raised certain unspecified “health issues” with Ms. Bhutani during her hiring interview. However, she testified that she had no reason “to raise health issues again and again”. She said she just asked for a seat and asked how she would be able to work without a desk or a computer.

15The respondent denied that there was insufficient seating or work space in the office. It also denied that the applicant ever sought any kind of disability-related accommodation in relation to the seating arrangement in the office.

Alleged harassment after transfer to different office

16After 20 days, the respondent transferred the applicant to another office. The applicant asked not to move to the other office. In her Application, the applicant stated that, although she did not want to move, she knew she had to obey her manager’s instructions whether she thought they were right or wrong. At the hearing, the applicant testified that she begged Ms. Bhutani not to move her because she was going through “health and other issues”. I note that there is no mention of this in the Application. When asked about this, the applicant stated that she has no legal training and did not know what should be put in the Application.

17The applicant testified that she overheard Ms. Bhutani telling a co-worker “don’t treat her good” in reference to the applicant. The applicant experienced conflict with her two co-workers at the new location. According to the applicant, her co-workers bullied her by, for example, laughing at her and picking on her. The applicant also testified that Ms. Bhutani would frequently scream at her. The applicant said that she told Ms. Bhutani not to speak to her in a disrespectful way. Although there is no mention of it in the Application, at the hearing, the applicant testified that she told Ms. Bhutani not to scream at her because she had anxiety and that it would cause her stress. The applicant repeated many times at the hearing that she had sent Ms. Bhutani e-mails telling her that she should treat the applicant in a more respectful way due to her “health issues”.

18Ms. Bhutani denied screaming at the applicant. She also denied that the applicant told her to treat her in a respectful way because she would experience anxiety or stress. Ms. Bhutani did agree that there was conflict between the applicant and her co-workers. Ms. Bhutani testified that she tried to mediate this conflict by having a meeting with the applicant and her co-workers. She testified that she allowed the applicant to provide her side of the story at the meeting but that the applicant kept interrupting her co-workers when it was time for them to provide their side of the story.

Incident involving cheques in box of chocolates

19The applicant testified that she was unfairly blamed for the loss of certain cheques that were kept in an empty chocolate box. One day when the applicant was showing apartments to prospective tenants, a cleaning person took the chocolate box that contained the cheques and, thinking it was empty, threw it away. The applicant realized what had happened when she returned. She searched for the box and ended up finding it in a recycling bin. She said that Ms. Bhutani screamed at her the next day and accused her of being irresponsible. The applicant felt unjustly accused for the incident, especially since she had found the missing cheques in the end.

20Ms. Bhutani testified that some of the cheques were lost and that this caused significant difficulties for the respondent. She denied screaming at the applicant but she said she did tell the applicant that she should have called her immediately when she discovered that the box was gone.

Incident of co-worker using computer

21The applicant testified that Ms. Bhutani had told her not to permit a certain co-worker who worked at a different site to enter the Brampton office. One evening in early May 2014, the co-worker arrived at the office when the applicant was alone and said she needed a form to terminate a tenancy. When the applicant was called away from the office, the co-worker used the computer the applicant had been logged onto to terminate her own tenancy. Ms. Bhutani told the applicant she should not have allowed the co-worker to use her sign-in information to access the computer. The applicant felt she was being unfairly accused over the incident since she had seen other employees allow co-workers to use their computers.

Analysis and Findings Re. Above Allegations

22The Code does not provide general protections against unfair treatment or harassment that is unconnected to a protected ground under the Code. Even if I accepted as true all of the applicant’s allegations set out above, they do not amount to discrimination or harassment under the Code. The applicant’s allegations regarding insufficient seating have no connection to any ground protected under the Code. These allegations are in essence allegations that it was unfair or inappropriate that the respondent allegedly lacked sufficient seating or workspace for her. There was no information in the Application that would connect the insufficient seating to any disability. I understand that the applicant is not legally trained, but one would expect an Application that alleges that certain incidents amount to discrimination because of disability would make some kind of reference to a disability if that is what is being alleged. Although the applicant, at the hearing, sought to connect the alleged insufficient seating to her “health issues”, she provided no evidence of a disability that required certain seating-related arrangements. She also conceded in cross-examination that she did not request any kind of disability-related accommodation in relation to the office seating arrangements or anything else.

23It was clear, from the applicant’s Application as well as her testimony and submissions at the hearing, that she was not alleging that Ms. Bhutani or anyone else harassed or discriminated against her because of her disability. Instead, the applicant’s allegations were in essence that Ms. Bhutani and her co-workers harassed her in such a way that she experienced anxiety and stress or in such a way that caused her additional anxiety and stress. Even if I were to accept as true all of the applicant’s allegations regarding Ms. Bhutani’s alleged screaming and the alleged bullying by her co-workers, they do not amount to discrimination or harassment under the Code because, even on their face, they are not allegations that this conduct was directed at the applicant because of her disability.

24As with all of the other incidents described above, even if I accepted all of the applicant’s allegations about the incidents with the cheques and the co-worker who used her computer as true, these incidents had no connection to any ground protected under the Code. In my view, the applicant claimed the ground of “record of offences” initially in her Application because she thought that unfair treatment in regards to discipline would be covered by that ground. As I explained at the hearing, the ground of “record of offences” has a specific meaning under the Code. It relates to a record of offences under federal or provincial law. The applicant has no such record of offences and therefore the ground does not apply to her.

25The applicant vigorously challenged the fairness and reasonableness of the performance concerns raised by the respondent. However, the issue before me is not whether the respondent’s concerns were fair or reasonable. The issue before me is whether they were discriminatory. Even if Ms. Bhutani’s response to the incidents involving the cheques and the use of the computer was unfair (and I make no finding on this point) her response does not amount to discrimination or harassment under the Code. Ms. Bhutani’s response to these incidents may have caused the applicant stress and anxiety, but there is no evidence that Ms. Bhutani responded the way she did, even in part, because of the applicant’s disability or because of any perceived disability.

26For all of the above reasons, the applicant has failed to make out a violation of the Code in regards to the discrimination and/or harassment allegations described above.

Termination of Applicant’s Employment

27The applicant alleged that the respondent discriminated against her because of disability when it terminated her employment when she returned from taking time off after she had an attack/seizure at work. The timing of the respondent’s decision to terminate the applicant is key to determining whether she was discriminated against because of disability or a perceived disability. As discussed below, I accept that the respondent made the decision to terminate the applicant’s employment on June 20, 2015, five days before the applicant had to take a medical leave due to her seizure. As detailed below, I am not persuaded that the applicant’s disability, or any perceived disability, were factors in the respondent’s decision to terminate her employment.

Factual background

Letter documenting performance concerns

28On May 13, 2014, the respondent issued a letter documenting its concerns with the applicant’s performance, attitude and behaviour. The letter related primarily to the two incidents set out above involving the cheques in the chocolate box and the use of the applicant’s computer by her co-worker. The applicant testified that Ms. Bhutani gave her the letter to sign and said that it was just a formality. The applicant signed the letter and said that she was shocked to discover later that evening that the letter documented concerns related to her performance.

29The applicant met with Ms. Bhutani on or around May 16, 2014. According to the applicant, Ms. Bhutani again told her that the letter was just a formality and to forget about it. Ms. Bhutani testified that the letter was not a formality and that she issued a second letter reiterating her concerns regarding the applicant’s performance on June 4, 2014. The applicant denied receiving this second letter.

Applicant’s attack/seizure in late June 2014

30On June 25, 2014, the applicant experienced an attack/seizure at work. The applicant testified that, when she called Ms. Bhutani, Ms. Bhutani screamed at her and told her she could only call her if there was an emergency. The applicant told Ms. Bhutani that it was an emergency and that she was having an attack. The applicant asked Ms. Bhutani if she could go home and Ms. Bhutani told her to “go”. The applicant called 911 and ended up being hospitalized.

31Shortly thereafter, the applicant provided a medical note to Ms. Bhutani to advise her of her hospitalization. The applicant testified that she met Ms. Bhutani a couple of days later when she was standing at the elevator of her building with her mother. She told Ms. Bhutani that she needed one or two days off. Ms. Bhutani said that would be fine and that she should rest. According to the applicant, Ms. Bhutani told her to let her know when she was able to come back. Ms. Bhutani did not mention anything about the termination of her employment.

32The applicant kept Ms. Bhutani informed about the status of her medical condition by e-mail. She e-mailed Ms. Bhutani on July 2, 2014 to tell her about her medical diagnosis and her doctor’s recommendation that she take 3 or 4 more days off. Ms. Bhutani replied by e-mail on the same day. In the e-mail, Ms. Bhutani told the applicant to get well soon and also told her “it would be great if you can provide us with doctor’s note for our records”. The applicant provided Ms. Bhutani with a doctor’s note to support her need to take time off work. The applicant returned to work on July 10, 2015. On that day, Ms. Bhutani asked to meet with her and provided her with a letter terminating her employment.

Timing of termination decision

33Ms. Bhutani and Ms. Williams, one of the respondent’s human resources advisors, both testified that Ms. Bhutani contacted Ms. Williams on June 20, 2014 to discuss the termination of the applicant’s employment. The applicant’s probationary period was ending on June 30, 2014. Both Ms. Williams and Ms. Bhutani testified that Ms. Bhutani felt that the applicant’s employment should be terminated prior to the end of her probationary period due to the concerns contained in the May 13, 2014 performance letter. Ms. Williams prepared a termination letter dated June 30, 2014 and sent it to Ms. Bhutani later that same day. Both Ms. Williams and Ms. Bhutani testified that the termination letter was dated June 30, 2014 because Ms. Bhutani was going to be out of town for a conference until that date. It was not disputed that Ms. Bhutani was in fact out of town for a conference in the days prior to June 30, 2014.

34A copy of the e-mail exchange between Ms. Williams and Ms. Bhutani was entered into evidence. The initial version of the e-mail thread included an e-mail dated June 20, 2014 from Ms. Williams to Ms. Bhutani which said “Here is Leena’s termination letter. Please advise if you require any changes. It is dated for Mon. July 30.” The thread also contained a response from Ms. Bhutani saying “It’s good, thanks.” At the bottom of the e-mail thread, there was a heading for a prior e-mail from Ms. Bhutani to Ms. Williams that was cut off. When I asked about this prior e-mail at the hearing, the respondent produced the full e-mail thread which included two prior e-mails between Ms. Bhutani and Ms. Williams.

35In the first prior e-mail, Ms. Williams asked Ms. Bhutani whether she wanted to include any extra payments as a gesture of good will to the applicant. In a responding e-mail, Ms. Bhutani replied in the negative. Attached to the first e-mail was a chart setting out the details of when the applicant was hired, the applicant’s date of hire, her age, her pay rate, etc. The chart also included an assessment of whether the respondent owed the applicant any termination pay or severance pay under the Employment Standards Act (“ESA”) or under the common law. The chart also included an assessment of the risk of any liability arising from the applicant’s termination. The assessment indicated that the applicant was not owed any termination pay or severance pay and that the risk of any future liability was low as she was being terminated within her probationary period.

36At the hearing, Ms. Williams testified that the respondent regularly prepares an assessment of the kind that was prepared in the applicant’s case when it is terminating someone’s employment. She also testified that, depending on the circumstances, the respondent might choose to provide extra payments over and above what is required by law, but that it had decided not to do so in the applicant’s case.

37Both Ms. Williams and Ms. Bhutani testified that they could not provide the termination letter to the applicant on June 30, 2014 as planned due to the applicant’s hospitalization on June 25, 2014. Both testified that they ended up changing the date on the termination letter to July 10, 2014 since that was the applicant’s first day back at work after taking time off due to the attack/seizure she experienced on June 25, 2014. Ms. Williams testified that, by terminating the applicant on the day she returned from her medical leave, the termination was considered to have occurred during the applicant’s probationary period. She said this is because, under the ESA, any days spent on a medical leave do not count toward calculating the length of a probationary period.

38In cross-examination, the applicant challenged Ms. Bhutani on the authenticity of the June 20, 2014 e-mails. She questioned Ms. Bhutani about the different font in which her signature appeared in various e-mails that were produced by the respondent. Ms. Bhutani testified that the e-mails she sends from her computer have a special cursive font in the signature portion but that this font does not appear in e-mails that she sends from her Blackberry.

39At the hearing, I asked Ms. Bhutani why she asked the applicant for a medical note on July 2, 2014 if she knew, at that point, that she was going to terminate the applicant’s employment as soon as she returned to work from her medical leave. Ms. Bhutani replied that she was simply following procedure and that the respondent has the practice of asking for medical notes in all cases where an employee is absent for medical reasons.

Analysis and Findings re. Termination

40It is clear that the applicant did not agree with the respondent’s assessment of her performance. It may be that the respondent’s assessment was incorrect. However, the issue before me is not whether the respondent’s assessment of the applicant’s performance was correct. The issue before me is whether the applicant’s disability was a factor in in the respondent’s termination decision.

41The evidence in this case does not support the applicant’s claim that her disability and/or her need to take time off work for medical reasons after June 25, 2014 were factors in the respondent’s decision to terminate her employment. Based on the evidence as a whole, I am persuaded that Ms. Bhutani and Ms. Williams made the decision to terminate the applicant’s employment on June 20, 2014. This was five days before she had the attack/seizure that required her to leave work on June 25, 2014, which, as I found above, was the earliest date on which it could reasonably be found that the respondent became aware of the applicant’s disability.

42The applicant urged me to find that the respondents fabricated the June 20, 2014 e-mails in which Ms. Williams and Ms. Bhutani agreed to terminate the applicant’s employment. In support of her claim that the e-mails were fabricated, the applicant pointed to the fact that Ms. Bhutani asked her for a medical note on July 2, 2014. She also pointed to the inconsistent fonts used in the signature portion of Ms. Bhutani’s e-mails.

43Having weighed all of the evidence, I find it credible that Ms. Bhutani and Ms. Williams made the decision to terminate the applicant’s employment on June 20, 2014. I am also persuaded that the reasons for termination related solely to the performance concerns raised in the letter of concern given to the applicant in May 2014. In order to find that Ms. Bhutani and Ms. Williams did not make the termination decision on June 20, 2014, I would have to find that (1) Ms. Williams and Ms. Bhutani fabricated the chain of e-mails entered into evidence at the hearing and (2) that both Ms. Williams and Ms. Bhutani lied about the issue under oath at the hearing. I have no basis on which to make either of the above findings. Ms. Williams and Ms. Bhutani each gave testimony that was consistent with the testimony of the other in relation to the circumstances surrounding their decision to terminate the applicant’s employment. This was the case even though Ms. Bhutani was excluded from the hearing room while Ms. Williams provided her testimony.

44Although I had concerns about the partial e-mail thread initially produced by the respondent, I find the full e-mail thread to be credible. If the respondent had fabricated the e-mails, I doubt that they would have included the portion in which Ms. Williams and Ms. Bhutani discussed providing an extra payment to the applicant but ultimately decided against it. In my view, such a discussion would only risk putting Ms. Bhutani in a negative light, as she ultimately decided not to provide any extra payments to the applicant over and above what was required by law. As a result, I doubt the respondent would have included this exchange if it had completely fabricated the June 20, 2014 e-mails between Ms. Williams and Ms. Bhutani.

45Contrary to the applicant’s allegations, the inconsistency in fonts used in the signature portion of Ms. Bhutani’s e-mails does not support a claim that the June 20, 2014 e-mails were fabricated. The font used in the signature portion of the June 20, 2014 e-mails is the same font used in the signature portion of all other e-mails except for an e-mail dated June 19, 2014. That e-mail did not relate to the decision to terminate the applicant’s employment. Therefore the use of a different font in the signature portion of that e-mail has no relevance to the authenticity of the June 20, 2014 e-mails which were the key e-mails that established the timing of the respondent’s decision to terminate the applicant’s employment.

46The only evidence at the hearing that might cause me to question the credibility of the respondent’s evidence that it made the termination decision on June 20, 2014 was the fact that Ms. Bhutani asked the applicant for a medical note to substantiate her absence after June 25, 2014. It is not clear to me why Ms. Bhutani would ask for such a medical note, given that she had already decided to terminate the applicant’s employment. However, against the backdrop of the rest of evidence described above, I cannot reasonably infer from this sole factor that the respondent fabricated evidence and that two of its witnesses lied in their testimony before this Tribunal.

47I can understand that the applicant was surprised to find that her employment was being terminated after she returned from medical leave on July 10, 2014. I can also understand why, on the information she had at the time, the applicant would conclude that her medical leave was a factor in the respondent’s decision to terminate her employment. However, based on the more extensive evidence produced at the hearing, I find that the applicant’s disability and/or her need to take time off work for medical reasons in late June/early July 2014 were not factors in the respondent’s decision to terminate her employment.

ORDER

48For all the above reasons, the Application is dismissed.