Gauthier v. Dr. Brian Smith Dentistry Professional Corporation, 2015 HRTO 34

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine Gauthier Applicant

-and-

Dr. Brian Smith Dentistry Professional Corporation and Brian Smith Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: January 9, 2015 Citation: 2015 HRTO 34 Indexed as: Gauthier v. Dr. Brian Smith Dentistry Professional Corporation

APPEARANCES

Katherine Gauthier, Applicant Dan Miron, Representative

Dr. Brian Smith Dentistry Professional Corporation and Brian Smith, Respondents Jeffrey Ayotte, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleges that the respondent sexually harassed her and that her employment was terminated for discriminatory reasons.

2The Application was heard in Toronto on October 22 and 23, 2014.

3The personal respondent Dr. Brian Smith (“Dr. Smith”) is a dentist and operates his dental practice under Dr. Brian Smith Dentistry Professional Corporation.

4The applicant was hired by Dr. Smith on July 3, 2012 as a bookkeeper and manager. Dr. Smith terminated the applicant’s employment on November 16, 2012.

5At the hearing the applicant provided evidence of six different incidents which she claimed amounted to sexual harassment by Dr. Smith:

• On September 6, 2012 during discussions in a shared office, the applicant alleges that Dr. Smith put his hand on her knee.

• On November 1, 2012 while attending a seminar in Oshawa the applicant alleges that Dr. Smith put his hand on her thigh for about 15 seconds.

• Dr. Smith allegedly told the applicant that she was “well preserved”.

• At a social function out of the office Dr. Smith allegedly stated that the applicant was “very refined”.

• Dr. Smith allegedly removed a hair from the applicant’s clothing which was located on her shoulder.

• On November 16, 2012 Dr. Smith fired the applicant because, according to the applicant, she would not succumb to his sexual advances.

6In his evidence Dr. Smith denied that any of these events actually occurred as alleged by the applicant.

7In assessing the evidence in this case, I must make findings about the credibility and reliability of the applicant and the respondent. This involves an assessment of their testimony and also how that testimony fits in with the other available evidence. As the British Columbia Court of Appeal said in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA):

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of 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 in 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 the truth, but he may be quite honestly mistaken.

8The Tribunal has also noted that the following are factors in assessing credibility: the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations of the manner in which they give their testimony: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

9I found the applicant to be extremely hostile. During cross-examination, she was often evasive and non-responsive. She had to be cautioned that she was evading simple questions. She attempted to mislead the Tribunal. For example, as part of her damage claim, the applicant was seeking to recover $16,000.00 for loss of spousal support. She indicated that she was entitled to $1,200.00 per month in spousal support. However, in cross-examination she was forced to admit that she never received any spousal support from her husband and had in fact released her right to spousal support. In my view, the credibility of the applicant, in general, was affected by her approach to giving evidence before the Tribunal and her willingness to attempt to mislead the Tribunal on this important aspect of her damage claim.

10By contrast, Dr. Smith was forthright, answered questions directly and in a straight forward manner. His evidence was consistent with respect to the matters before the Tribunal from his written Response to the Application through to his testimony at the hearing.

ANALYSIS AND CONCLUSIONS

On the September 6, 2012 incident

11The parties agree that on this day they met in the shared office of the clinic and were discussing a potential dental plan for the applicant. They were both seated at the work station. There was no one else present in the office during this meeting. According to the applicant, during their conversation, Dr. Smith reached over and placed the palm of his hand on her lower thigh just above the knee. Dr. Smith denies having done so.

12The onus is on the applicant to prove her allegation on a balance of probabilities. Obviously, there is no direct or independent evidence to support the applicant’s allegation that Dr. Smith touched her lower thigh. In my view, there is insufficient credible evidence to establish that Dr. Smith touched the applicant’s lower thigh. I have no reason to doubt Dr. Smith’s evidence that he did not touch the applicant. I have found him to be a credible witness. On the other hand, I have expressed concerns regarding the applicant’s credibility. In the absence of any independent evidence supporting the applicant’s claim, I do not accept the applicant’s evidence that Dr. Smith touched her lower thigh.

On the November 1, 2012 incident

13The parties agree that on this day, they attended a seminar in Oshawa for dental professionals. They sat beside each other at a table. According to the applicant, “all of a sudden” Dr. Smith put his hand on her thigh and he “parked it there”. Dr. Smith denies having put his hand on the applicant’s thigh.

14Again, there is no direct or independent evidence that would support the allegation that Dr. Smith touched the applicant on this occasion. At the conclusion of the seminar the applicant was picked up by a friend. Allegedly, while getting into the car, the applicant pointed out her “boss”, Dr. Smith, to her friend. There was no evidence that the applicant told her friend that her boss had just touched her inappropriately.

15K.O., a dental hygienist who has worked with Dr. Smith for over nine years testified that around noon on November 16, 2012 she received a call from the applicant. They were planning on going to the movies that night as one of the specialists had rented the movie theatre in town as a Christmas gift to referring dentists and their teams. The applicant told her that she was afraid that Dr. Smith was going to fire her that day and that she might not be going to the movie. According to K.O., the applicant phoned her later that day, very upset, and told her that Dr. Smith terminated her because she wasn’t doing the job that he hired her for and that the rest of the team did not respect her as the office manager. K.O. indicated that they spoke for well over an hour and “at no time during this conversation did she even hint that Dr. Smith had done or said anything inappropriate” or that she was terminated because she would not give in to Dr. Smith’s advances.

16K.O. testified that she received another telephone call from the applicant two weeks later. According to K.O., the applicant requested that she drop off a few things that she left at the office. I quote in part from K.O.’s will-say statement which I found to be fully consistent with her testimony.

She asked me how work was going and I told her fine and that this was the night of the Christmas Party but I wouldn’t be going as I was going away.

She then said “Dr. Smith touched me you know”.

I said “what do you mean?”

She said that they were at a conference and during the lecture he placed his hand on her knee which she believed was inappropriate.

I told her that surely she must be mistaken.

She said no she wasn’t and she asked me if he had ever done anything like that to me.

I told her absolutely not.

She said she was going to file a complaint against him.

I told her that I have worked with Dr. Smith for years and never once has he done anything inappropriate to me or anyone else while I was around.

She said she thought that because she didn’t accept the advance he made that that was why he fired her.

17The applicant’s friend testified on behalf of the applicant. Among other things she testified that the applicant told her that Dr. Smith “put his hand on her”. The friend gave no evidence when this incident took place, where it took place, or where Dr. Smith placed his hand and no context which could lead to an inference of sexual harassment.

18That the applicant told her friend and K.O. that Dr. Smith touched her has no evidentiary value in establishing whether Dr. Smith did in fact put his hand on the applicant’s thigh. The applicant’s allegation is not made more probable or trustworthy by any number of repetitions of it by the applicant to friends or colleagues (see: Crêpe It Up! v. Hamilton, 2014 ONSC 6721 at paras. 27 – 28).

19In my view, there is insufficient credible evidence to support the applicant’s allegation that Dr. Smith put his hand on her thigh at the seminar.

On being well preserved

20The applicant alleges that Dr. Smith told her that she was well preserved and that this constituted sexual harassment. Because the applicant’s Application was incomplete by Tribunal standards, the applicant was required to file a second application to bring the Application to a state of completion. In the process the applicant filed two narratives. One narrative explains that during the meeting on September 6, 2012 Dr. Smith told the applicant that she was well preserved and then put his hand on her lower thigh. The other narrative indicates that during the meeting Dr. Smith placed his hand on the applicant’s thigh, but there is no mention of Dr. Smith saying to the applicant that she was well preserved. At the hearing the applicant testified that she could not remember when the comment was made, but that it would have been within two months of being hired on July 3, 2012. The applicant did not provide the context in which this remark was allegedly made, indicating that it was made “just out of the blue”.

21When challenged in cross-examination to explain the inconsistent nature of her evidence regarding the alleged comment, the applicant was evasive, suddenly forgetful and confused. She denied having testified that the comment was made “just out of the blue”, but then under further questioning conceded that she had testified to that effect.

22I do not accept that applicant’s evidence that Dr. Smith said “you are well preserved” as alleged. The only evidence proffered by the applicant to support her allegation was inconsistent, vague and lacking in detail. I find that this allegation is not supported by the evidence.

23On this point I prefer the evidence of Dr. Smith. He indicated that during their September 6, 2014 meeting where they were discussing a dental plan for the applicant, he was explaining to the applicant why there was a black spot on her front teeth and stated “your teeth are well preserved”. I do not find this comment to be sexual in nature or otherwise inappropriate, given it was stated about her teeth during a dental plan discussion.

On being very refined

24The applicant testified that while she was at a colleague’s retirement party Dr. Smith indicated to her that she was “very refined”. She indicated that there was no context to this remark and that it came out of the blue. This allegation does not appear in the applicant’s Application and was made for the first time when the applicant was on the witness stand. Dr. Smith denies making this comment.

25Other than her bald statement that Dr. Smith said she was “very refined’, the applicant proffered no evidence to support her allegation. Accordingly, I find that this allegation is not supported by the evidence. In any event, I find that there is nothing inherently or overtly sexual about this comment such that I would be able to infer the comment was discriminatory.

On removal of hair

26The only evidence that the applicant gave with respect to this allegation was that during a conversation regarding transportation to the November 1, 2012 seminar, Dr. Smith removed a hair from her clothing. By gesture on the witness stand, the applicant indicated that the hair was located in the area of her left collar bone. The applicant testified that this conduct was not professional and against the “code of conduct”. Dr. Smith denies that he ever removed a hair from the applicant’s clothing.

27Beyond her assertion that this took place, the applicant provided no evidence to support her testimony that Dr. Smith removed a hair from her clothing. Of the two narratives filed by the applicant, and referred to earlier, only one mentioned the hair removal incident and to the extent that it is mentioned, it is recorded as “Dr. Smith put his hands on my chest to remove the hair…” The applicant’s testimony does not reflect this version of the alleged incident. In my view, there is insufficient credible or trustworthy evidence to support the applicant’s allegation that Dr. Smith removed a hair from her clothing.

On being dismissed from employment

28The applicant asserts that the reason for her dismissal was that she would not accede to Dr. Smith’s sexual advances. As the evidence fails to establish that Dr. Smith made any sexual advances, the claim that the applicant was terminated for not submitting to those advances must fail.

29For these reasons, the Application is dismissed.