HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Melissa Lane
Applicant
-and-
Canadian Tire Corporation Limited
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Lane v. Canadian Tire Corporation Limited
APPEARANCES
Melissa Lane, Applicant
Ian Hurley, Counsel
Canadian Tire Corporation Limited, Respondent
Rob Bayne, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the termination of the applicant’s employment was discriminatory as it was based on her family status and her marital status.
2The respondent terminated the applicant’s employment after the respondent had undertaken an extensive investigation and had concluded that the applicant, along with other employees, had participated in an effort to defraud the respondent. The investigation centred on whether a number of employees, including the applicant, had abused and improperly benefited from the respondent’s practice of holding sales of damaged consumer goods for employees (with the revenues going to charity).
3The applicant alleges that the termination of her employment was not a result of her conduct, but because the respondent did not want to continue to employ her, having terminated the employment of four of her family members for participating in this alleged effort to defraud the respondent.
4At the hearing I heard evidence from the applicant and for the respondent, Ron Wretham, a private investigator who was retained by the respondent to assist with its investigation, and Olga Giovanniello, the respondent’s Vice President, Human Resources Solutions, who was responsible for overseeing the respondent’s investigation and the respondent’s subsequent disciplinary decisions, including the decision to terminate the applicant’s employment. I also had before me considerable documentary evidence, principally disclosed by the respondent. This included corporate policies, emails exchanged between the applicant and members of her family, and transcripts of interviews conducted by the respondent with the applicant and other employees as part of the respondent’s investigation into its damaged goods sales.
DECISION
5The Application is dismissed. I am satisfied that the respondent has provided credible, non-discriminatory explanations for its actions that are not based, in any measure, on the applicant’s family status or marital status.
BACKGROUND
6The respondent buys, warehouses and then distributes merchandise to independently-owned Canadian Tire stores. The applicant began to work for the respondent in April 2008 as an administrative assistant at its Billes Distribution Centre.
7As a new employee the applicant was required to acknowledge that she had read, understood and would act in accordance with the respondent’s Business Code of Conduct. The Code of Conduct is a comprehensive 13-page document that speaks to the respondent’s values and expectations for employee conduct. It includes a provision that employees are obligated to protect the respondent’s assets from loss, misuse and theft and that employees are expected to be honest, respectful and demonstrate a sense of integrity by making decisions in the best interest of the company.
8The applicant had four family members who also worked for the respondent. Her father-in law, Frank Lane, was the process manager at the respondent’s Airport Road Distribution Centre and the principal organizer of the respondent’s damaged goods sales. Her husband, David Lane, was a maintenance co-ordinator at the respondent’s Brampton Distribution Centre. Her brother-in-law, Eddie Lane, was a millwright at the Brampton Distribution Centre, and another brother-in-law, Derek Weaver (the husband of her husband’s sister), was a crew lead at the Brampton Distribution Centre. David Lane, Eddie Lane and Derek Weaver all had roles in assisting Frank Lane with the damaged goods sales.
9The applicant went on maternity leave in March 2011 and was still on maternity leave in March 2012 when she was called by the respondent to come in to be interviewed about how she may have benefitted from the damaged goods sales. This interview took place on March 16, 2012. On April 3, 2012, the respondent issued a letter to the applicant stating that the applicant’s employment was terminated effective March 16, 2012. The respondent was of the view that the applicant was guilty of wilful misconduct in relation to the damaged goods sale and it concluded that there had been serious violations of the respondent’s Code of Conduct.
Damaged Goods Sale
10I heard a great deal of evidence about how the damaged goods sales operated. While some aspects of how the sale took place were disputed many of the basic components of the sale, principally described by Ms. Giovanniello, were not.
11Some of the respondent’s goods (and/or its packaging) end up being damaged, usually while being transported. Half of these goods are so damaged that they are discarded. Goods that have been slightly or moderately damaged are generally sold to Canadian Tire stores at a discount. The rest of the damaged goods are set aside for sale to employees. The respondent has damaged goods assessors who determine whether damaged goods should be discarded, sold to stores or made available to employees. These assessors reported to Frank Lane.
12The damaged goods sales began in the early 2000’s with three objectives: to reduce the amount of damaged goods being discarded and sent to landfill sites; to provide products that can be sold to employees as a benefit of employment; and to raise money for a corporate charity named “Jump Start” which supports the participation of needy children and youth in organized sports.
13In 2012 the respondent was holding damaged goods sales every two weeks, with two larger “Blow Out” or pre-Christmas sales being held in November. The biweekly sales always took place on a Thursday – an important issue in this case – and were held at the respondent’s Melanie Road Distribution Centre. The Blow Out sales were held at the respondent’s Airport Road Distribution Centre.
14The respondent had a system to control access to the damaged goods sales. Every employee was assigned to a crew and crews were scheduled to attend sales on a rotating basis. In order to attend a specific sale an employee was required to present a ticket and identification to show that he or she, as a member of their crew, was eligible to attend that particular sale. Ms. Giovanniello testified that equal access was an important objective for the respondent because if there was a perception that if some persons had an unfair advantage over others, this would take away from the intent of the program which was to provide a benefit to all employees.
15Ms. Giovanniello testified that to further support this principle of equal access no person could shop in advance of a given sale or ask that items be put aside for purchase. This ban on “pre-shopping” was disputed by the applicant, who testified that an informal and accepted practice was in place whereby employees, including managers, could ask Frank Lane to set items aside for them prior to sales dates and that persons who assisted with the sales could also set aside items on the day of a sale that they could purchase as a benefit for having helped with that sale.
16Mr. Frank Lane was responsible for the organizing and the running of the sales. Mr. Lane was assisted by an ongoing group of employees that included his two sons, David Lane and Eddie Lane, and his son-in-law, Derek Weaver. Ms. Giovanniello testified that persons helping with the sales were supposed to do so as volunteers but that during the respondent’s investigation it was determined that persons were changing their shifts so that they were “volunteering” while on their shift and therefore were being paid.
17The applicant testified that she went to the damaged goods sales a total of three times, once in the first six months of her employment in 2008 and for two subsequent “Blow Out” sales. She testified that although there were no limits on what one could buy, she only recalled buying a number of small items at the two Blow Out Sales, including Christmas ornaments and a wine rack. She testified that she found the items for sale were often extensively damaged and were too expensive given their damaged state. She testified that she always paid for her purchases.
18The applicant testified that she was not involved in the selection of merchandise for sales or with the pricing of items for sales. She testified that she never removed items from a sale without paying for them nor did she ever shop or buy an item on a non-sales day. She testified that Frank Lane, her husband and her two brothers-in-law regularly conducted the sales along with a number of others. She testified that her husband David was able to set aside items on the day of a sale that he would purchase and bring home including items that the applicant asked for. She testified that Frank Lane could set aside items for persons prior to a sale. She testified that she asked Frank Lane to do this for her on a few occasions. She testified that no one was allowed to shop on non-sale days except for Frank Lane.
THE INVESTIGATION
19Ms. Giovanniello testified that a whistleblower contacted the respondent to suggest that there were abuses occurring with the damaged goods sales. She testified that the respondent subsequently accessed and reviewed employee emails which in turn led to a decision to carry a major investigation to how the damaged goods sales were being conducted. Ms. Giovanniello testified that the respondent then assembled a team of approximately 15 persons to co-ordinate the investigation, including staff from the respondent’s human resources, audit, security and legal departments. She testified that the respondent also decided to hire an outside investigator to conduct aspects of the investigation, including employee interviews.
20Ms. Giovanniello testified that as a result of its investigation the respondent concluded that Frank Lane, along with a chosen group working with him, were operating a scheme whereby they were diverting respondent merchandise into the damaged goods sales program that was not, in fact, damaged or was slightly damaged and could have been sold to Canadian Tire stores at a discount. This merchandise was then being put aside for the benefit of a select group of employees, including Frank Lane, David Lane, Eddie Lane, Derek Wright and a few others, or was being sold to other employees or non-employees at discount rates without it ever having being offered for sale at a damaged goods sale. The respondent concluded that in some cases certain items were being diverted into the damaged goods sales program in response for requests for these particular items. Ms. Giovanniello testified that as a result of its investigation, the respondent concluded that the applicant was knowingly aware that she was in receipt of diverted merchandise and that this merchandise was not paid for.
The Emails
21The respondent disclosed several hundred employee emails, most of them between Frank Lane and various members of his family and in some instances, others. Emails were exchanged between Frank Lane, his wife, his daughter (David Weaver’s wife), David Lane, Eddie Lane, David Weaver and the applicant. Many of these emails indicate that Frank Lane had gotten or could get merchandise and that he was offering these items to family members and others.
22At the hearing the parties focussed on the emails that related to the applicant and/or her husband obtaining merchandise that appears to have been intended for the damaged goods sales. On February 1, 2011, Frank Lane sent an email to the applicant stating:
So told Dave I have a 42’ flat screen for the little guy next door and got you guys a killer black glass corner cabinet for the TV …..
[….. in the original]
The applicant testified that this email was in relation to a request that her husband had made to Frank Lane asking for a TV that would be donated and sold with the benefits going to a family who had a terminally ill child. She testified that a manager for the respondent had told Frank Lane that a TV from the damaged goods sale could be designated for this use. She testified that her husband had asked Frank Lane for the black corner cabinet and he had successfully obtained it from a sale. She testified that her husband paid for this cabinet, which was damaged.
23On April 28, 2011, Frank Lane send an email to the applicant and his other daughters-in-law with the subject “Chocolate fountain” stating:
I put three aside, you kids need one each ? their [sp] rather cool…..
[…. in the original]
The applicant sent an email in response stating:
Mmmmm, I do need a chocolate fountain! Thanks!
The applicant testified that she did not ask for a chocolate fountain or that a fountain be put aside for her. She testified that her husband did bring a fountain home and he paid for it. She testified that it was damaged and she ended up throwing it out.
24On August 3, 2011, Frank Lane sent a series of emails to his wife, David Lane and the applicant about obtaining car seats for the applicant’s daughter. The applicant testified that she and her husband eventually obtained a total of three car seats and that her husband had paid for these. She noted that one of the car seats was damaged and the other two had no boxes.
25On November 3, 2011, Frank Lane sent an email to the applicant with the subject “Tires” stating
Take no chances kid, the tires are in my truck think you will be quite happy little buddy…
[… in the original]
The applicant testified that the tires were for her car. She testified that they were damaged and that her husband paid for them.
26There were also emails in which Frank Lane tells the applicant and/or David Lane that he has kerosene for them (that David Lane asked for) and refers to the availability of a garden shed. The applicant testified that she and her husband obtained both a large and a small garden shed. Frank Lane also sends emails to the applicant to say that he had gotten the applicant’s daughter a Halloween costume, Christmas stockings and a gingerbread man doll and had gotten the applicant wine gums. The applicant testified the items for her daughter would have been gifts from Frank Lane and that the wine gums would have been paid for by her husband.
27The applicant testified that she did not view any of Frank Lane’s actions as wrong. She testified that she did not think it wrong or unfair that she and her family received merchandise outside the confines of a sale because this was as an allowed benefit for persons who volunteered to assist with the damaged goods sales, including Frank Lane and her husband. She testified that her husband only came home with merchandise on a Thursday (the day of a sale) and that she knew he would have paid for this merchandise because he always took money with him in advance of a sale.
28The applicant agreed that the respondent’s Code of Conduct placed a positive duty on an employee to report another employee if aware that the other employee had been operating in a way contrary to the Code of Conduct. She testified that she would have done so but was unaware of any such transgression.
The Applicant’s Interview
29The applicant testified that she was called in for an interview while on her maternity leave. She was told that it was about the damaged goods sale. She testified that she was told that she did not need legal representation.
30The applicant testified that she was interviewed by Ron Wretham and that a representative from the respondent’s human resources department, Margarita, was also present at the interview. She testified that the interview took three hours and consisted mainly of questions about the emails she had received. She testified that Mr. Wretham repeatedly told her not to lie and to stop lying. She testified that she was truthful and that she was fully co-operative.
31Mr. Wretham testified that he was a former police officer with extensive experience in conducting police investigations including investigations of major criminal conspiracies involving drug and fraud-related criminality. He testified that he subsequently established his own private investigation firm and that his firm was hired by the respondent to assist with its investigation of the damaged good sales. He testified that he was told that the respondent had learned through a whistleblower that there might have been major breaches of the respondent’s Code of Conduct including theft and possession of stolen property. He testified that he was given copies of employee emails and that he and the respondent had concluded that an investigation was required and that his firm would conduct interviews with a number of employees. He testified that these interviews were “report based cognitive” interviews, which he described as being friendly in nature rather than interrogation-like, and that the underlying intent was to try to help those being interviewed to recall events. He testified that 63 interviews were conducted with 50-60 persons beginning March 13, 2012, and continuing into April 2012. He testified that Frank Lane was interviewed first on March 13, that the applicant was interviewed on March 16 and that he conducted both of these interviews.
32Mr. Wretham testified that he had an extensive background in conducting interviews and had been trained in “statement content analysis”, a technique for analysing how persons who are being questioned use language. He testified that the technique is used to detect deception and untruthfulness.
33During the hearing Mr. Wretham reviewed a transcript of the applicant’s interview and the answers the applicant provided to each of the questions she was asked and identified where and why he believed the applicant was not being truthful.
34Mr. Wretham noted that when he first asked the applicant about receiving merchandise at home (“Tell us about stuff Dave would bring home”) the applicant answered:
“Toilet paper, tissues, light fixtures, tables. Nothing ever came home not on a Thursday. It was paid for. I know it was paid for because he [her husband] would leave with money and come home with less. A woman always knows about the money”
35Mr. Wretham testified that he found it significant that the applicant had answered questions that he had not asked. He noted that she spoke about merchandise coming home on a Thursday and being paid for even though he had not asked her about when merchandise came home or how it was paid for. He testified that, in his view, the applicant was beginning to build a defence for her actions, to show that this merchandise had been appropriately obtained on a sales date and that it had been paid for.
36Mr. Wretham testified that during the course of the interview the applicant repeatedly referred to items coming home on a Thursday and that he found these “out of sequence” claims perplexing and not credible. He testified these references to items coming home on a Thursday were not credible not only because of their constant and gratuitous repetition but because a number of the emails between the applicant and members of her family that discussed the possibility of items coming home were, in fact, written on days other than a Thursday.
37Mr. Wretham also noted that when he asked the applicant “tell me about the tires” the applicant replied:
probably for my Jetta. I don’t know anything. They came home on a Thursday. I don’t remember an email about the tires. I don’t remember the email [read out by Ron] regarding tires. If I saw something about tires I would’ve left it up to Dave to read.
Mr. Wretham testified that he found it odd and not credible that the applicant would state that she didn’t know anything about the tires, that she did not remember the email about the tires but that she could nonetheless indicate that she recalled that the tires came home on a Thursday.
38Mr. Wretham testified that he found it significant that the applicant repeatedly referred to items that Frank Lane had “got” or David Lane was “bringing” home or had “brought” home rather than indicating that these were items that had been bought. He testified that he found it significant that there was no mention or discussion in the emails of money or the cost of an item and the applicant never asked in her email exchanges about the cost of an item that she might be getting or its condition or the degree to which it might be damaged. He testified that this was all the more surprising given that the applicant had stated during the course of her interview that she had stopped going to the damaged goods sales because they charged a lot at the sales and that stuff was damaged. He testified that he found the applicant’s claim, that items had been paid for because her husband left with money and came home with less, was weak. Mr. Wretham testified that, in his view, a reasonable inference could be drawn that these items, in fact, had not been paid for.
39Mr. Wretham testified he also found it significant that the applicant made a number of qualifying statements during the course of her interview. For example, he testified that when he asked the applicant about an email from Frank Lane to his wife regarding a cupcake maker, a hair dryer, and a camera for Dave that Frank Lane had identified as brand new, the applicant responded by saying, “if I am not on the email I don’t know much about it” and later “I’ve never gotten anything brand new, to my knowledge”. He testified that the he did not find the use of qualifiers “I don’t know much about it” and “to my knowledge” to be truthful statements. He testified that he found it significant that the applicant stated, “I don’t think we’ve done anything wrong”, stating that in his view, an honest person would have rather said that they knew that they had not done anything wrong.
40Mr. Wretham also referred to the applicant providing lots of information “out of sequence”, essentially not directly answering questions he had asked. He testified that he found the applicant to be evasive.
41Mr. Wretham testified that in terms of his general investigation he concluded that Frank Lane and others were stealing merchandise from the respondent by diverting items from sale to Canadian Tire retail stores or the damaged goods sales and in some instances selling it to employees and others at discounted rates. He testified that he concluded that the merchandise coming into the applicant’s home was merchandise that in fact, had been stolen from the respondent and that the applicant knew or ought to have known it was stolen. He testified that in his view the merchandise coming into the applicant’s home was not being paid for.
42Mr. Wretham testified that following the interview he met with Ms. Giovanniello and other respondent representatives and reported his findings. He testified that he reported that he felt the applicant was being deliberately deceptive with her interview answers, and that he believed she knew that items that were coming into to her home that had been taken from the respondent and were not paid for. He testified that he was of the view she was in breach of the respondent’s Code of Conduct and that her actions may well constitute theft and possession of property obtained by crime, which are Criminal Code violations. He testified that at a minimum the applicant was guilty of wilful blindness; that she knew what was happening and she chose not to report the suspicious behaviour of her husband, Frank Lane and others as required under the respondent’s Code of Conduct.
43Ms. Giovanniello testified that in the debriefing that took place following the applicant’s interview, both Mr. Wretham and Margarita expressed the view that the applicant had been evasive, had lied and had tried to protect her family. She testified that both Mr. Wretham and Margarita felt the applicant had violated the Code of Conduct in that she had benefitted from merchandise that had not been paid for and that she had failed to alert the respondent to the breaches of the Code of Conduct she was party to. She testified that Mr. Wretham was of the view that the applicant could be charged with theft.
44Ms. Giovanniello testified that based on the information before her, she also formed the opinion that the applicant had not been truthful in her interview. She testified that she believed the applicant had been evasive and that there was a disconnect between the applicant stating she could not recall items that she had obtained but she could remember that they arrived on Thursdays. She testified that she was of the further view that based on the dates of the emails, that these items were not always coming home on Thursdays as claimed. She testified that it she found it odd that the applicant had stated that she did not like going to the damaged goods sales because she found the merchandise too pricey, but that in her emails she did not ask about the price and condition of items that were being obtained, particularly the car seats and tires. Ms. Giovanniello testified that she believed this was evidence that these items were not being paid for.
45Ms. Giovanniello testified that she concluded, based on the applicant’s interview, and the emails and the assessments made by Mr. Wretham, that the applicant was benefitting from her access to merchandise through Frank Lane, that she was requesting and/or receiving items on non-sale days that were not paid for, and that this constituted theft. She testified that she was of the view that the applicant knew that there was a conspiracy to take merchandise orchestrated by Frank Lane and that she did not tell the respondent of this which, in itself, constituted a breach of the Code of Conduct. She testified she did not believe the applicant was being truthful or compliant during the investigation.
46Ms. Giovanniello testified that following the respondent’s investigation a total of nine employees had their employment terminated; Frank Lane, David Lane, Eddie Lane, David Weaver, the applicant, and four others. Ms. Giovanniello testified that the other terminated employees included Frank Lane’s assistant, who the respondent determined was aware of what was taking place and had received lots of merchandise, and the respondent’s manager of security, who had 30 years of service but was determined to have been derelict in his duty for not knowing what was happening in relation to the damaged goods sales. Additionally, an employee who benefited from the sales, lied during the investigation and had one year of service had his employment terminated. Another employee, a manager, was going to have his employment terminated but he resigned before this was done.
47Ms. Giovanniello testified eight other employees were suspended and a further 21 had warning letters placed on their files. Three of these persons were re-assigned. Two vice-presidents and three assistant vice-presidents received warning letters for their lack of appropriate oversight. Ms. Giovanniello testified that all 29 persons who were disciplined were obligated to take remedial training on the Code of Conduct. Sixteen hundred employees in the respondent’s Distribution Centres also received further training on the Code of Conduct.
48Ms. Giovanniello testified that five factors were applied in deciding who would have their employment terminated and who would be suspended or be issued a warning letter. Consideration was given to 1) the degree of benefit a person received from the activities that the respondent had concluded had been fraudulent in nature; 2) years of service; 3) prior discipline; 4) the nature of a person’s working relationship with Frank Lane; and 5) truthfulness and helpfulness in the investigation.
49Ms. Giovanniello testified that those persons who were suspended did not participate or benefit from the abuses of the damaged goods sales program to the degree the applicant did and that suspensions were predominantly for persons not coming forward to report what they may have seen. She testified that these persons also generally had considerable years of service. She also testified that during the investigation it became clear that a number of persons who reported to Frank Lane were aware of what was happening but were afraid for their jobs and were fearful of the repercussions of challenging Frank Lane. She testified that this reduced the penalties given to these persons.
50Ms. Giovanniello testified that the decision to terminate the applicant’s employment was because the respondent believed she had been stealing, that she had not met her obligation to report wrongdoing, that she had not been truthful during the investigation, that the respondent had no confidence that she would carry out her duties in future in a truthful and honest manner, and she had limited years of service.
51The applicant challenged this determination by questioning Ms. Giovanniello about why suspensions were issued to a number of other individuals whose actions, in the applicant’s view, were comparable to the applicant’s. The applicant did this by reviewing the interviews conducted with these other individuals and their admitted transgressions which included, in some instances, “ordering” merchandise from Frank Lane. The applicant contended that there was no evidence that these persons had necessarily paid for the merchandise they had received. Ms. Giovanniello maintained that the principal distinction between the cases of these other persons and the applicant’s was that she was satisfied that these other persons had likely paid for their merchandise and they had co-operated with the investigation and/or had significant years of service with the respondent.
SUBMISSIONS
52The applicant submits that the decision to terminate her employment was, in some measure, because of her family relationship with Frank Lane, her father-in-law and with her brothers-in-law, and that this constitutes discrimination on the basis of family status. The applicant submits that although family status has been defined in Ontario as referring to being in a parent and child relationship, the Tribunal and the courts have taken an expansive view as to how to consider a parent and child relationship, that consideration can be given not only to relationships between parents and their biological children but to a variety of caregiver relationships. The applicant referred to a number of decisions, including decisions of the British Columbia Human Rights Tribunal in which that Tribunal considered the relationship between an applicant and a brother and an applicant and a brother of a common law husband under the ground of family status. See Fianza v. Ladco Investments Inc., 1999 CarswellBC 3189, and Moni v. Ferguson, 2002 CarswellBC 3454.
53The applicant submits that even if the Tribunal was not to accept that her relationship with Frank Lane and/or her brothers-in-law was covered by family status, the ground of marital status would be sufficient to protect the applicant in this instance. The applicant submits that the respondent’s decision to terminate her employment is, in some measure, not only because of her relationship to Frank Lane and her extended family but also because of her relation with her husband, David Lane.
54The applicant submits that the respondent had formed a negative opinion of her and had reached conclusions about her conduct even before it had interviewed her. The applicant submits that the respondent was of the view that the applicant was guilty of wrongdoing based on inferences it drew from its prior interviews with Frank Lane, David Lane, Eddie Lane and Derek Weaver (all conducted on March 13, 2011). The applicant submits this antipathy is illustrated by how her interview was arranged and conducted. The applicant submits that she was forced on short notice and while on maternity leave to attend an interview and that during the interview Mr. Wretham repeatedly accused her of lying.
55The applicant submits that there was no factual basis for Mr. Wretham’s conclusion that the applicant was receiving stolen merchandise and knew that Frank Lane and others were involved in allegedly illicit behaviour. The applicant submits there were no grounds, including no physical evidence, for Mr. Wretham and the respondent to conclude that the applicant and her husband had not paid for the merchandise they obtained. The applicant submits the respondent could not reasonably conclude that merchandise had not been paid for based on the applicant having suggested that she had found items at the damaged goods sales she attended to be expensive and often in poor condition. The applicant submits that it was significant that Mr. Wretham never directly asked her if she had paid for the merchandise she received and that Mr. Wretham’s testimony, during cross-examination, that he did not need to ask this question given the full context of what was going on, was biased and self-serving.
56The applicant submits that Mr. Wretham’s biases and conclusions about the applicant were passed on to Ms. Giovanniello, who accepted them unquestioningly, and that despite the lack of evidence of misconduct the respondent drew a definitive and unwarranted conclusion about the applicant’s behaviour. The applicant submits that there had to be another reason for the respondent determining that the applicant was guilty of misconduct, given the lack of evidence that she and her husband did not pay for merchandise and this had to be the fact that she was related to the Lane family. The applicant submits that she was presumed to be more culpable because she was married to David Lane and was Frank Lane’s daughter-in-law.
57The applicant submits that Ms. Giovanniello could not sufficiently explain why the respondent decided to terminate the applicant’s employment while others who had also been guilty of misconduct did not have their employment terminated. The applicant submits, for example, that Ms. Giovanniello accepted that other employees had paid for merchandise obtained from Frank Lane without direct evidence of such purchases but assumed the applicant had not. The applicant submits that while Ms. Giovanniello may have relied on a number of criteria in making her decisions about discipline of other employees, including employees’ past performance and years of service, in the applicant’s case her familial relationship with Frank Lane and David Lane was a factor that was additionally considered when the decision to terminate her employment was made.
58The respondent submits that the applicant has not established that family class should be considered as a potential ground of discrimination. It submits that family class refers to being in a parent and child relationship, and that to establish that Frank Lane was like a parent to the applicant the applicant would need to lead evidence of Mr. Lane providing care and support, including emotional support, to the applicant as if he was her parent. The respondent submits that the applicant has failed to show Mr. Lane demonstrated this responsibility and commitment. The respondent submits that the Tribunal has determined that family status cannot be extended to refer to the relationship between an individual and his/her siblings or persons married to siblings. See Duncan v. Kelsey’s 7060 Ltd., 2012 HRTO 1366.
59The respondent submits that at the hearing evidence was led about Frank Lane’s activities and the applicant’s conduct. Little evidence was led about David Lane. The respondent submits, in effect, that the applicant has little evidentiary basis for arguing that it is her marital status — her relationship with David Lane — that gives rise to the respondent’s decision to terminate her employment.
60The respondent submits that the applicant had an opportunity to call David Lane to testify about the issue of whether merchandise that was obtained for the applicant’s household was paid for, as was claimed by the applicant. The respondent asks the Tribunal to draw an adverse inference from the applicant’s failure to call David Lane as a witness. I will note here that I choose not to make this adverse inference. No authority was provided for this proposition and as a general matter there are no witnesses which a party must call. Moreover, while it was not entirely clear why David Lane did not testify (the applicant testified that she did not know why; the applicant’s counsel referred to Mr. Lane being involved in other litigation with the respondent) I simply cannot conclude that his evidence would have likely contradicted the evidence of the applicant.
61The respondent submits it uncovered a major conspiracy to defraud the respondent involving Frank Lane and a core group of other employees, not all of whom were members of the applicant’s family. It submits it conducted an investigation that was objective, properly organized and fair. It submits that the evidence supports that its decisions were logical, rational and based on the results of its investigation with particular weight given to the opinions of a professional investigator with 30 years’ experience, Mr. Wretham. It submits that it relied both on Mr. Wretham and its own analysis of the emails and the applicant’s interview and there is no evidence to suggest that this determination was tainted by considerations of family status or marital status.
62The respondent submits that it determined from the employee emails it uncovered that Frank Lane was getting persons to divert merchandise into the damaged goods sale program, but this merchandise was being sold prior to any damaged goods sale. The respondent submits that the investigation followed the emails and that this is why the applicant was interviewed. The respondent submits that there was nothing inappropriate about how it arranged for the interview and the applicant expressed no issues with being called in for this interview.
63The respondent submits that it was reasonable for it to conclude that the applicant was being dishonest during her interview. It submits that in assessing the applicant’s credibility, Mr. Wretham reasonably determined that she was being evasive and defensive, that she did not answer the questions asked of her, that she provided superfluous and incorrect information, that she unduly qualified some of her answers, and that she lied.
64The respondent submits that it reasonably concluded that the applicant was involved in wrongdoing. It submits that a number of the emails involving the applicant which discussed the availability of merchandise were not sent on Thursday and that it was reasonable for the respondent to conclude that this was not merchandise being made available at the damaged goods sales. It submits that the applicant’s failure to enquire about the price or condition of items being discussed reasonably suggested that the applicant was obtaining these materials for free. It submits it was significant that the applicant could not say these materials were paid for, only that she believed David Lane took money to pay for items.
65The respondent submits that based on the totality of the information before it, including the interviews and the emails, it could conclude that the applicant knew of the efforts to defraud the respondent and was personally gaining benefits from this effort to defraud.
66The respondent submits that it comprehensively dealt with the fraudulent behaviour it encountered by disciplining 38 individuals, including the termination of nine employees. It submits that it relied on established factors for determining this discipline and that these factors, namely the level of misconduct, the employee’s years of service, the employee’s performance history, the employee’s truthfulness during the investigation and further mitigating factors such as whether the employee in question was under duress for having to report to Frank Lane, were reasonable. It submits that its decision to terminate the applicant’s employment can be distinguished from the decision to suspend other employees based on the criteria it used to decide discipline. It submits that it was reasonable to terminate the applicant’s employment given that the respondent concluded that the applicant’s misconduct involved theft, that the applicant was not honest during the investigation and that she had relatively few years of service. It submits that is the applicant’s own behaviour, not the actions of others, that led to this decision.
ANALYSIS
67Subsection 5(1) of the Code provides that:
5.(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, age, record of offences, marital status, family status or disability.
68To establish discrimination, an applicant must be able to show that they are a member of a Code-protected group, that they were subject to adverse treatment and that the Code-protected ground in question was a factor in that adverse treatment (see Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”) at paras. 56 and 126. The applicant bears the legal onus of establishing discrimination on a balance of probabilities (Pieters, at para. 83) and the task of the Tribunal is to decide whether the applicant has met this legal burden based on all the evidence before it (Pieters, at paras. 83 and 87).
69To determine whether the Code was violated in the present case I must also assess the credibility of witnesses and their evidence. In making my assessment of credibility, I have relied on the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), in particular the following comments:
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 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. (p. 356-357)
70The applicant has alleged discrimination based on family status and marital status. The applicant submits that her familial relationships with Frank Lane and her brothers-in-law contributed to the termination of her employment and that the ground of family status covers these relationships. However, I find that the applicant has not shown that she is a member of this Code-protected group.
71“Family status” is defined in section 10(1) of the Code as “being in a parent and child relationship”. Both parties referred to the Ontario Human Rights Commission Policy and Guidelines on Discrimination because of Family Status, 2007 for the Commission’s interpretation of family status. The Policy elaborates on the definition of “family status” as follows:
The Code defines “family status” as “being in a parent and child relationship.” This can also mean a parent and child “type” of relationship, embracing a range of circumstances without blood or adoptive ties but with similar relationships of care, responsibility and commitment. Examples include parents caring for children (also by adoption, fostering and step parenting), adults caring for aging parents or relatives with disabilities, and families headed by lesbian, gay, bisexual or transgendered persons
72I do not find that Frank Lane’s or the applicant’s brothers-in-law’s relationship with the applicant can be considered comparable to that of a parent and child. I heard no evidence to suggest that these relationships, albeit familial, included the type of care, responsibility or commitment that a parent exercises with a child. Accordingly, the applicant allegations of discrimination based on family status are dismissed.
73The applicant is clearly in a marital relationship with David Lane. The issue in this case is whether her marital status was a factor in the adverse treatment she received, namely the decision to terminate her employment.
74It is important to note that I do not need to determine whether the respondent was correct when it concluded that the applicant was in receipt of stolen merchandise and failed to pay for the merchandise coming into her home. Rather, I need to determine whether the respondent’s decision to terminate the applicant’s employment was based on these and other non-discriminatory reasons as claimed by the respondent, or whether it was based, in some measure, on the applicant’s marital status.
75The leading case interpreting the meaning of marital status as a Code ground is the Supreme Court of Canada’s decision in B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403. In that case, A. worked for a company which was owned by two of his wife’s brothers, B. and C. While in therapy, A.’s daughter recalled incidents of sexual abuse by B. A.’s wife and daughter then confronted B. with the sexual abuse allegation at his house on a Friday. When A. subsequently reported to work on Monday, B. terminated his employment.
76The Supreme Court found that A. was discriminated against on the basis of his marital and/or family status because the factual record was clear that A. was dismissed from his employment because of the actions of his wife and daughter. The Court went on to state that:
Thus the appellants’ automatic attribution of the wife and daughter’s behaviour to Mr. A reflects stereotypical assumptions about Mr. A that have nothing to do with his individual merit or capabilities. This is precisely the kind of conduct which the Code aims to prevent. (para. 60).
77I do not find that the case before me is analogous to B. v Ontario. While the respondent was clearly of the view that David Lane was involved in a conspiracy to defraud the respondent it did not, in my view, assume that the applicant was accordingly guilty of misconduct. Rather, I am satisfied that the respondent has established that its decision to terminate the applicant’s employment was based on its conclusions about the applicant’s own behavior; namely, that it believed that the applicant had knowingly benefitted from the receipt of stolen merchandise that she did not pay for.
78I find the evidence of Ron Wretham and Olga Giovanniello to be highly credible. I accept their testimony that they each believed that the applicant had lied during her interview, that there was evidence that the applicant did not receive merchandise only on a Thursday as claimed, and that they were of the view that there were grounds to conclude that the applicant was aware that this merchandise had not been paid for. They credibly explained why they concluded that the applicant was guilty of misconduct based on their assessments of the applicant’s interview and the emails in the respondent’s possession and based on their investigation findings that damaged merchandise was being diverted from sale to Canadian Tire stores and from the damaged goods sales program.
79I am mindful in making these findings that the respondent did believe that both the applicant and her husband were benefitting from merchandise that was entering into their household and that it believed that neither the applicant nor her husband was paying for this merchandise. In other words, the respondent saw the actions of the applicant and her husband in relation to merchandise coming into their home as closely connected. However, I do not find the respondent has simply assumed that the applicant was guilty of misconduct based on the alleged actions of her husband. As I have stated, I am satisfied it was the assessment of the applicant’s own behaviour that gave rise to the respondent’s determinations that she was knowingly defrauding the respondent.
80The applicant has contended that the respondent provided no grounds, including physical evidence, for concluding that the applicant and/or her husband had not paid for the merchandise they obtained, which undermines the respondent’s explanation for why it terminated the applicant’s employment. I do not agree. I find the respondent did provide a credible rationale for its conclusion that the merchandise coming into the applicant’s home was not being paid for. It determined, based on its assessment of the applicant at her interview that she was not being truthful, that she was deliberately misleading about when merchandise was coming onto her home, and that she did not refer to money or the purchase of items as might be reasonably expected. I do not know if the respondent’s conclusion is correct (as noted this is not a determination I need to make) but I am satisfied that the respondent established that this was the finding it made during the course of its investigation and one it relied on in deciding to terminate the applicant’s employment.
81By contrast, I do not find a number of the applicant’s key claims to be credible or persuasive. I do not accept the applicant’s contention that the respondent had already concluded that the applicant was guilty of misconduct before it interviewed her based on its interviews with members of her family and how it interacted with the applicant before and during the course of her interview. It may be such that the respondent suspected the applicant of misconduct based on its earlier interviews with members of the applicant’s family (and the emails it had) but I am satisfied, based on Mr. Wretham’s and Ms. Giovanniello’s evidence, that the respondent’s conclusions about the applicant’s conduct are grounded in Mr. Wretham’s and Ms. Giovanniello’s analysis of what she said during her interview and the emails in the respondent’s possession.
82The applicant also testified that she was unaware of any conspiracy to defraud the respondent and that she was in receipt of stolen merchandise. She testified that she understood that there was an informal and accepted practice whereby Frank Lane and other volunteers including her husband could put aside merchandise because of their volunteer efforts. She testified that she was unaware that she was failing to follow the Code of Conduct or any other requirements by obtaining merchandise outside the strict confines of the damaged goods sale.
83However, the respondent clearly had a completely different view of what was happening in relation to the damaged goods sales. I accept, based on the respondent’s evidence, including its documentary evidence, that the respondent strictly controlled access to the damaged goods sales in an effort to ensure employees had equal access to these sales and that the setting aside and acquiring of merchandise outside the actual sales was not condoned or approved. I am also satisfied that as a result of its investigation, the respondent came to the conclusion that Frank Lane and his select group were not simply putting aside the occasional item intended for the damaged goods sale (as suggested by the applicant) but were involved in a conspiratorial practice to divert merchandise from sale to Canadian Tire stores and then from sale in the damaged goods sales program. The respondent also determined, based on its interview with the applicant and the related emails, that merchandise was regularly being diverted to the applicant’s household and that the applicant was deliberately trying to disguise this fact by suggesting that this merchandise was coming home only on Thursdays, a claim that the respondent did not believe. Consequently, I am satisfied that the respondent had a reasonable basis for believing that the applicant was aware that she was receiving merchandise that had been fraudulently diverted from the respondent. Moreover, I do not find that in making this determination the respondent simply linked the applicant to the conspiracy to defraud the respondent because she was David Lane’s wife.
84I am also satisfied that the respondent relied on a number of specific criteria for determining what discipline it would issue following its investigation. I heard credible evidence from Ms. Giovanniello that the respondent considered the degree of benefit an employee received from the activities that the respondent had concluded had been fraudulent, the employee’s years of service, the employee’s prior discipline, the nature of an employee’s working relationship with Frank Lane, and the employee’s truthfulness and helpfulness during the investigation.
85The applicant submits that the respondent did not use or apply these criteria as suggested and that the decision to terminate the applicant’s employment was in fact, because the respondent did not want any member of the Lane family to continue to be employed with the respondent. The applicant submits that one significant indication of this was the fact that there were employees besides the applicant who obtained merchandise diverted from the damaged goods sale and who provided no evidence that they had paid for this merchandise, and yet these employees were suspended rather than fired.
86I am satisfied that the respondent did credibly explain why it terminated the applicant’s employment when it only suspended other employees who had also obtained diverted merchandise. Ms. Giovanniello testified that the respondent was of the view that these other employees had likely paid for the merchandise they received even though they were unable to provide physical proof of this to the respondent. She testified that there was no evidence to suggest they were lying. She testified that, in the case of the applicant, the respondent felt it did have further evidence to conclude that the merchandise she received had not been paid for. Ms. Giovanniello testified that the respondent also concluded that these other employees had not obtained the amount of merchandise the applicant had and, in contrast to the applicant, these employees had co-operated with the investigation and/or had lengthy years of service. Ms. Giovanniello testified that all of these factors contributed to the decision to issue these employees suspensions. Again, I am satisfied that the respondent provided a credible and non-discriminatory rationale for its disciplinary decisions, including its decision to terminate the applicant’s employment.
87In summary this is a case in which the respondent undertook a large scale and comprehensive investigation that determined there was a major conspiracy to defraud the respondent involving both members of the applicant’s family and others. Members of the applicant’s family and others had their employment terminated. The respondent concluded that the applicant had knowledge of this conspiracy and most importantly benefited from this conspiracy by receiving merchandise for which she did not pay. I am satisfied that the respondent has provided a credible explanation for its actions and I do not find that the respondent’s decision to terminate the applicant’s employment is based on family status or marital status. Accordingly, the Application is dismissed.
Dated at Toronto, this 19^th^ day of May, 2015.
“Signed by”
Eric Whist
Member