Lalonde v. Star Security Inc., 2015 HRTO 74

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianne Lalonde Applicant

-and-

Star Security Inc. and Jimi Bonotti Respondents

DECISION

Adjudicator: Brian Eyolfson Date: January 19, 2015 Citation: 2015 HRTO 74 Indexed as: Lalonde v. Star Security Inc.

APPEARANCES

Dianne Lalonde, Applicant Self-represented

Star Security Inc., Respondent Laurie Gould, Representative

Jimi Bonotti, Respondent Self-represented

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 5, 2013, and alleges discrimination in the areas of employment, housing and goods, services and facilities on the basis of sexual solicitation or advances, gender identity, gender expression and record of offences.

2The applicant was employed as a security guard with the organizational respondent, Star Security Inc. She was hired on August 6, 2013, and started working night shifts at an out of town event in Collingwood, where she and other employees were provided with sleeping accommodations, first at a motel, and then in chalets.

3In her Application, the applicant, who identifies as lesbian, alleges that she was subjected to discrimination when she was not provided with gender specific or gender appropriate accommodation or housing by her employer. More particularly, the applicant alleges that, after completing a shift, she was undressing in her room at a chalet and she turned around and found two men sleeping in her room. She told them to get out, and they said that they were told to “grab a bed anywhere”. The applicant alleges that she packed up, quit and went home. It appears from the parties’ materials and evidence that this occurred on the morning of Sunday, August 11, 2013.

4In their Response to the Application, the respondents deny the applicant’s allegations. The individual respondent, Mr. Bonotti, states that he was the Site Supervisor at the event in Collingwood, and that he instructed another supervisor to ensure that all females had a female roommate, or were assigned to their own room alone. The applicant received a room at a chalet which she first stayed in on August 9, 2013, and she never complained to Mr. Bonotti or the other supervisor.

5The respondents state that, during her night shift on August 10, 2013, the applicant had numerous problems taking directions from a night shift supervisor and a fellow staff member. The applicant did not stay in her assigned position, constantly challenged the night shift supervisor’s authority, and did not listen to the client who hired them for the event. The applicant was assigned to be at her post until 7:00 a.m., but walked off the site at approximately 6:00 a.m., without being relieved.

6Mr. Bonotti states that he received a phone call from their client at approximately 6:30 a.m., and the client informed him of his multiple frustrations with the applicant’s services. The client also informed Mr. Bonotti that the applicant walked off the site, and that he no longer wanted her working at the event. Mr. Bonotti went outside and the applicant was waiting for him by his vehicle. Mr. Bonotti told the applicant, among other things, that the client requested that she no longer work at the event. The applicant “stormed off”, and went into the chalet and gathered her belongings. She came out approximately 2 or 3 minutes later, still dressed in her uniform, and threw all her stuff into her vehicle and drove off.

7On March 12, 2014, Mr. Bonotti filed a Request for an Order During Proceedings to have himself removed as a respondent, submitting that there are no allegations made against him in the Application. In response, the applicant submitted, among other things, that Mr. Bonotti instructed males to “grab any empty bed”. In a Case Assessment Direction dated May 15, 2014, the Tribunal indicated that it is not clear from the applicant’s various narratives whether the allegations against Mr. Bonotti might constitute a violation of the applicant’s rights under the Code, and left that determination to the hearing adjudicator.

EVIDENCE

8The applicant and Mr. Bonotti gave evidence at the hearing. The Tribunal asked both the applicant and Mr. Bonotti several follow-up questions after they gave their evidence-in-chief.

The Applicant

9The applicant testified that when she worked at the event in Collingwood she first stayed in a motel. On the second evening, she was advised by a supervisor that chalets were going to be provided, and that there would be a female, a male, and a third residence. She was not told who would be in the third residence. She later testified that the supervisor told her that the third chalet was for supervisors.

10After her second shift, she went to the chalet. When she got there, she asked where her room was, and she was told “grab any room”. Nobody was there and it was a “free for all”. She later testified that a shift supervisor told her to go into the chalet and grab a room. She went in and it was a “free for all” with guys and girls everywhere. She found an empty room, attached a “female” sign to the door, and went to sleep. The applicant testified in cross-examination that she brought the sign with her, and that it was 8 by 11 inches with a female symbol and stated “female room”. While she was in bed, a male entered the room without knocking. She told him to “get the hell out”. He just closed the door, and did not apologize.

11In cross-examination, the applicant testified that there was no supervisor in charge of each chalet, and to assign rooms when she got there, although one supervisor in her chalet said that he had the main floor with the master bedroom.

12The applicant went to her next night shift. A guard named Joe kept “harassing” her, saying that she kept leaving her post. She asked him why he did not answer his radio, and he said that it was not working.

13The applicant left her post again. She was looking for Joe and could not find him. He was in his car sleeping. At the hearing, she referred to him rather sarcastically as a “great supervisor”. She testified that she told him that if he was working the night shift, he had to be ready for his shift, so he kept harassing her. She told him to stop harassing her and he said that she was a “dumb broad”, and that she did not know what she was doing. She told him not to tell her how to do her job, but he kept harassing her.

14When asked in cross-examination to clarify her allegations of harassment occurring during her shift, the applicant testified that Joe kept telling her to do her job, and stop leaving her post, and she said that she would stop leaving her post if he stayed awake. He was harassing her, and wanted it to be known that he was in charge. He kept “on” her and would not let her do her job. She testified that he should not have continued to be “on” her every hour on the hour, and “that is not a supervisor in any aspect”. She referred to not needing to tell a guard over and over what to do, and not needing to be “on” someone every single step of the way. She agreed that Joe was constantly harassing her to do a particular task.

15The applicant also testified that she had to leave her post three times because Joe did not have his radio turned on. She told him to turn his radio on. She also agreed that Joe was harassing her so much that she turned her radio off. She told him that if there was an emergency she would call him, and that she did not need to talk to him every two minutes.

16The applicant also testified that she was unaware that Joe was her immediate supervisor, and that she was not told that Joe was her supervisor. She testified that she was told “after the fact” that he was a supervisor.

17The applicant finished her night shift and went back to the chalet. She went into the room. The sign was on the door. She removed her top and turned around to lie down. Two men were in the room and one was on her bed sheets. She said “what the heck are you doing in here”, and one man said that they were told to grab any room. She said, “you can’t go into a female room”. They said, “if you don’t like it, too bad”. So, she just packed up and left. She testified that she was left with no choice but to walk away, and that nobody cared. When later asked who said to her, “if you don’t like it, too bad”, the applicant testified that one of the men in her room, who refused to give her his name, said it.

18In cross-examination, the applicant testified that “day shift” people were in her room, and they said that they would be out. They were going to be starting that day, and they just came that day and grabbed any room they wanted. When the applicant was asked at the hearing who told the men to grab any bed as she alleges, she testified that they refused to give her their names. She agreed that there was no problem until the last morning at the chalet on Sunday, August 11, 2013.

19The applicant also testified that she asked for the situation to be clarified immediately, and she was told, “if you don’t like it you can quit”. When later asked who said this to her, she testified that Joe said it when she approached him.

20The applicant also testified that she was called a “faggot” by a couple of the guards, and sexually harassed. When later asked who sexually harassed her, the applicant testified that it was the same guard in her room who refused to give her his name again.

Jimi Bonotti

21Mr. Bonotti testified that, initially, only two male guards worked the day shift on August 7, 2013, and the applicant replaced them, working the night shift. Hotel accommodation was provided for the night of August 7, 2013. Mr. Bonotti was the main supervisor and he was on site the entire weekend, during the day shifts.

22Mr. Bonotti stayed at the chalets, which they had access to commencing on August 8, 2013. There were 3 chalets and each had 20 bedrooms. Each chalet had a supervisor who was assigned to assigning rooms and addressing any concerns that would have come up with any staff member regarding any of the accommodations.

23The applicant then worked the night shift on August 8, 2013 with two other staff members. There were issues on the night shift with a post being unattended. The same issues occurred the previous night. Mr. Bonotti received multiple calls from their client. He also spoke to the supervisor who was having multiple problems with the applicant not wanting to take direction from him.

24Mr. Bonotti testified that the applicant was leaving her post unattended, even to go to Tim Horton’s. She took a golf cart around the property when she was supposed to stay at a gate. She was not logging in trucks coming in because she had known the people from coming the first night. They decided to move her off the front gate, and put her on another gate, watching a stage.

25The next day, August 9, 2013, the applicant went back to the chalet to sleep following her night shift and there were no issues. The following night shift, commencing on August, 9, 2013, the same concerns arose. The client called Mr. Bonotti because the guard who was supposed to be on the stage was repeatedly leaving the stage. Mr. Bonotti called the applicant and she told him that she was a logistics expert and that the client had no idea what they were doing. He told her that they were not hired for that, and that they were hired to watch the stage.

26Mr. Bonotti had multiple calls through the night from the client and from the supervisor who said that he had to speak with the applicant multiple times about leaving her post. She was not supposed to leave her post because there were millions of dollars of equipment on the stage.

27At the end of her shift, on the morning of August 10, 2013, the applicant went back to the chalet to sleep, and then came in for the night shift on August 10, 2013. Mr. Bonotti testified that it got to the point where the client was so upset that he asked for the applicant not to be back on her night shift commencing on August 11, 2013.

28Mr. Bonotti testified that the client called him during the morning of August 11, 2013, and asked that the applicant not be returned to the venue, and he had a conversation with the applicant right outside the chalet, in the driveway. He testified that it would have been after her shift, so it was probably about 8:00 a.m. He waited for her to get back so he knew that there were no other people there at that time, and that all the other people had reported to the day shift at that point.

29Mr. Bonotti also testified that everyone else in the applicant’s chalet would have been on the day shift. No one else in that chalet was on the night shift, as there was one night shift person in each chalet.

30Mr. Bonotti testified that, at the end of the applicant’s shift, he told her she would not be required on the night for August 11, 2013. She was upset with her interactions with the supervisor, and he told her that he would speak to the supervisor, but the client requested that she not be back at the site that night and that her services would not be required. Mr. Bonotti testified that the applicant did not really say another word to him, and stormed off and went to the chalet. Mr. Bonotti left shortly after. He testified it was about 15 minutes between the time she was going to the chalet, after he spoke to her, and when he saw her leaving in her car. He was on his way to the venue, and stopped to get a coffee, when she “zoomed” by him, about 5 minutes away from the chalet.

31Mr. Bonotti testified that the applicant gathered her belongings and left the site. At no time did she discuss with him any problems with any of the staff. She did not say that anybody had made any comments to her. She said that she had problems with Joe, and he did not know what she was doing, but there was no talk of any type of harassment and no discussion of anybody making any lewd or crude comments to her. He also testified that there were other openly gay employees there.

32In cross-examination, Mr. Bonotti disagreed with the applicant’s assertion that he never spoke to her. He testified that he spoke to the applicant multiple times at the gate at the event site, and that he talked to her outside the chalet. He also testified, and the applicant agreed, that she submitted a letter of resignation at some point.

33In cross-examination Mr. Bonotti testified that it was never his instruction to tell people to grab any room, and that he told the supervisors to ensure there were separate rooms for males and females in the chalets. He also testified that the applicant would not have received a room unless she spoke to a supervisor, to which the applicant disagreed. Mr. Bonotti testified that that there was a supervisor there to ensure that all rooms were assigned, and that the person in charge of the chalet had the keys, and he does not believe that a door could be opened unless the applicant spoke to the person in charge to open it.

34Mr. Bonotti also testified that the respondent company is owned by a woman, that everything was in place to make sure privacy was respected, and, with respect to female staff, that is very important to the company when they have work out of town.

ANALYSIS AND DECISION

Assessment of Credibility

35As the parties gave divergent evidence on a number of points relating to the allegations of discrimination, it is necessary for me to assess credibility in determining this matter. To the extent that this Decision turns on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354, at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

36I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and, observations as to the manner in which the witnesses gave their evidence.

37I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at p. 205 with respect to assessing the credibility and reliability of testimonial evidence:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Was the Applicant Subjected to Discrimination on the Basis of any of the Code Grounds As Alleged?

The Parties’ Positions

38At the hearing, the applicant submitted that she was subjected to sexual harassment, and that she was not provided with proper accommodations, or gender appropriate housing. She submitted that the sexual harassment was in relation to duties as assigned, and added that it was based on bullying.

39The applicant also submitted that a male had slept in her bed, that she could not find anybody to deal with it, and that she left in a really “pissed off” mood.

40The respondents submitted that they provided accommodations for the staff, and that the supervisors for each chalet were very clear on the rules. They provided female appropriate accommodations with female-only rooms, or rooms with females by themselves.

41The respondents also submitted that the applicant had been at the event since August 7, 2013, and that there was no issue until after the applicant was notified that her services were no longer needed. The respondents also submitted that staff had been assigned rooms, and queried why, all of a sudden, other staff would be in the applicant’s room when they were supposed to be at work.

42Although the applicant alleged discrimination based on the ground of record of offences in the Application, there do not appear to be any actual allegations of discrimination related to that ground in the Application, and the applicant did not argue that she was subjected to discrimination based on record of offences at the hearing.

Findings Primarily with Respect to the Allegations Concerning Sleeping Accommodations

43Having carefully considered the parties’ evidence and materials, I have significant concerns with the applicant’s allegations and evidence on a number of points, addressed below. With the exception of one inconsistency between Mr. Bonotti’s evidence and his written statement attached to the respondents’ Response to the Application, I generally prefer the evidence of Mr. Bonotti, for the reasons set out below.

44To begin with, in response to Mr. Bonotti’s request that he be removed as an individual respondent, the applicant alleged in written submissions dated March 17, 2014, that Mr. Bonotti instructed the males to grab any bed, even with a female sign on the door of her bedroom. She also suggested that she could produce “video and audio of the facts as they happened, males in [her] room”. In subsequent correspondence dated May 15, 2014, the applicant also asserted that Mr. Bonotti was in fact present, and his presence was noted in her surveillance equipment.

45The Tribunal subsequently directed the applicant to disclose all arguably relevant documents, including any arguably relevant electronic records that had not already been disclosed. It appears, however, that nothing further was disclosed by the applicant, and I find that it is more likely than not that the video, audio, and “surveillance” evidence that the applicant referred to does not exist. The applicant did not refer to the existence of any such evidence at the hearing.

46At the hearing, when the applicant was asked who told the men in her room to grab any bed, she testified that the men refused to give her their names.

47Mr. Bonotti is not mentioned in the Application, and there is no evidence before me that Mr. Bonotti told anyone, or instructed anyone else to tell others, to grab any bed. The applicant never explained the basis of her knowledge underlying her allegation that Mr. Bonotti instructed males to grab any bed, and Mr. Bonotti clearly denied this allegation in his evidence. I find that the allegation is not supported by any evidence, and is simply not true.

48At the hearing, the applicant did not address the respondents’ position and evidence that the client requested that she not return to work at the event, and that she was informed of this prior to entering the chalet on her last day in Collingwood. It is clear from the evidence of both the applicant and Mr. Bonotti that the applicant did not have a good working relationship with a supervisor named Joe on the night shift. She also acknowledged that she left her post on more than one occasion. In the circumstances, I prefer the evidence of Mr. Bonotti, which the applicant did not dispute, that she was informed that her services were no longer required before entering the chalet on her last day working at the event.

49I also find Mr. Bonotti’s evidence as to why the applicant did not work until the end of the event in Collingwood to be more reasonable in the circumstances. While the applicant did not dispute the respondents’ position that she was advised that her services were no longer needed, she appears to take the position that she quit her employment as a result of finding two men in her room.

50In her Application, the applicant alleges that, after finding two men in her room, she packed up, quit and went home. She alleges that she was crying, and that she was horrified. In a second narrative in her Application, the applicant alleges that she would have had to wait another hour to sleep. She immediately packed up and left. The applicant does not specifically mention anything about trying to have the alleged situation addressed by anyone in a supervisory role. I note that in a supplemental form to the Application the applicant refers to speaking to a supervisor named Grant, however, she does not indicate what she spoke to him about, or when she spoke to him, and she did not mention anything about this in her evidence at the hearing.

51At the hearing, the applicant testified that she just packed up and left, and that she was left with no choice but to walk away, and that nobody cared. She also testified, however, that she asked for the situation to be clarified immediately, and she was told, “if you don’t like it you can quit”. When later asked who said this to her, she testified that Joe said it when she approached him. This was the first time that the applicant stated that Joe was at her chalet on the morning of her last day. I note that Mr. Bonotti testified that Joe stayed at a different chalet than the applicant. In the circumstances, I find that the applicant did not approach Joe about men being in her room.

52In cross-examination, the applicant also testified that she asked others who could deal with this, and she went to two other people who she was told to go to. She did not indicate who these people were, or what was said. She also testified that she could not, and did not, find a supervisor. At another point at the hearing, the applicant stated that she “freaked out”, and went out on the deck to have a glass of wine, and waited for a supervisor to deal with it, but nobody came. This latter statement appeared to be completely made up, and inconsistent with the applicant’s allegations in her Application, and her initial evidence, that she just packed up and left. Having considered all of the evidence, I find that it is more likely than not that the applicant quickly packed up and left the chalet on the morning of August 11, 2013, and that she did not attempt to speak to anyone about two men being in her room as alleged. After all, as I have found, the applicant was notified by this point in time that her services were no longer needed at the event.

53The applicant testified that she later attended Star Security’s offices in Hamilton and asked to talk to the owner, who is a woman. She testified that the owner said, “get your damn uniform, get out and get lost”. She was left with the impression that the owner did not care.

54In cross-examination, the applicant testified that she went to the office on August 19, 2013, and she had her uniform with her. She testified that she assumed that no one would talk to her, and she agreed that she did not speak to a supervisor, or management, about anybody being in her room. She then testified that she brought it to the owner’s attention, and the attention of the person who emailed her schedule to her. When asked how she brought it to the owner’s attention, she testified that she brought it to her attention, in person. She also testified, however, that she did not speak to the owner in person, which is completely contradictory. She testified that, instead, she spoke to the scheduler in Hamilton, both on the phone and by email, but she does not have a copy of the email that she sent to her. It is not clear to me why she would raise these concerns with a scheduler.

55I also understand from the parties that, at some point, the applicant resigned her employment, and it appears from the applicant’s evidence that she may have attended the respondents’ offices in Hamilton to return her uniform. Based on the applicant’s own very contradictory evidence, however, I do not find that she spoke to the owner of Star Security, or any of their employees with a supervisory capacity, about men being in her room on the morning of August 11, 2014, prior to resigning from her employment. As such, I also do not accept that owner said to her, “get your damn uniform, get out and get lost”, as the applicant testified.

56Having carefully considered all of the evidence, I also have difficulty accepting the applicant’s evidence that she found two men in her room at the chalet on the morning of August 11, 2013, if she worked to the end of her shift as the applicant testified she did.

57In cross-examination, the applicant testified that it was around 8:15 a.m. when she walked into her room on the last morning on August 11, 2013, after doing her night shift, when she packed up and left. She testified that the men in her room told her that they were scheduled to work the day shift that day, and they were sleeping at 8:15 or 8:30 in the morning. She did not even know that they were in her room. She turned around and then she noticed them. She got dressed and left the room. The men said they were not leaving until they were ready to do their shift. She also testified that she was one of three people working the night shift, and that the night shift ended at 7:00 a.m., when the day shift began. She testified that the men in her room were either late for work, or worked staggered hours.

58Mr. Bonotti testified that he had a conversation with the applicant outside the chalet, after her shift, and that it was probably about 8:00 a.m. He waited for her to get back so he knew that there were no other people there at that time, and that all the other people had reported to the day shift at that point. He also testified that there was only one person working the night shift staying in each chalet.

59Mr. Bonotti also explained that the night shift is a lot more scaled back, as compared to the day shift, and the night shift waits for the day shift to arrive. Once all of the day shift is signed in, they are deployed, and the night shift is relieved and can go back to the chalets. He also testified that the supervisors in charge of the house review to make sure everybody is gone for the day shift, and nobody is left behind. Usually the shifts are 12 hour shifts (7:00 to 7:00 or 8:00 to 8:00). This event was on 7:00 to 7:00 shifts, but a few guards worked 8:00 to 8:00 as well. The applicant worked a 7:00 p.m. to 7:00 a.m. shift.

60At the hearing, the applicant did not disagree that all of the day shifts at the Collingwood event started no later than 8:00 a.m. There was also no dispute that the event site was about 20 to 25 minutes away from the chalet. In the circumstances, I find it difficult to accept that two men assigned to the day shift would still be sleeping, or even still be present, at the chalet after 8:00 a.m. as the applicant testified.

61In the circumstances, I also have difficulty with the applicant’s evidence that when she first attended the chalet after her second shift, it was a “free for all” with guys and girls everywhere, given that most of the people working at the event would have reported for the day shift by that point in time.

62I note, however, that Mr. Bonotti testified at the hearing, a little over a year after the events in question, that he spoke to the applicant outside the chalet, after her shift, and that it was probably about 8:00 a.m. On the other hand, in a statement attached to the respondents’ Response to the Application, filed January 10, 2014, Mr. Bonotti states that the applicant walked off the event site at approximately 6:00 a.m. without being relieved, as she was assigned to be at her post until 7:00 a.m. He also states that he received a phone call from their client at approximately 6:30 a.m., and that the client informed him, among other things, that the applicant had walked off the site. He went outside and the applicant was waiting for him by his vehicle. After he told her that the client requested that she no longer work at the event, the applicant went into the chalet, gathered her belongings, came out approximately 2 or 3 minutes later and drove off.

63In my view, if both the applicant and Mr. Bonotti were incorrect in their evidence about the time at which the applicant attended the chalet on the morning of August 11, 2013, and she actually entered the chalet shortly after 6:30 a.m., it is possible that staff assigned to the day shift were still there, particularly if they were to start work at 8:00 a.m. Although it is by no means clear from the evidence, it appears that it may be possible that other staff, and possibly male staff, slept in the same room that the applicant slept in, while the applicant was expected to be working at the event site. In any event, I find that if the applicant did find two men in her room on the morning of August 11, 2013, more likely than not it would have been because she left her post earlier than she was supposed to, and before she was relieved. In all of the circumstances, if this did occur, I do not find that it amounts to discrimination contrary to the Code on any of the grounds alleged. It appears from the Application and the applicant’s evidence and submissions at the hearing that, when the applicant first stayed at the motel, two men working the day shift stayed in the same room as the applicant while she was working the night shift. She testified that the arrangement worked well, and she agreed that there was no problem until Sunday, August 11, 2013, at the chalet.

Findings Primarily With Respect to the Allegations Concerning Harassment

64The applicant testified that a guard named Joe kept harassing her, saying, among other things, that she kept leaving her post. At one point, she testified that she told him to stop harassing her and he called her a “dumb broad”. When asked to clarify her allegations of harassment in cross-examination, the applicant focused entirely on Joe raising concerns with her about the performance of her job duties. She did not mention Joe making any derogatory comment.

65In a second narrative to her Application, the applicant alleges that Joe left her alone, would not answer his radio and questioned her authority regarding the post she was assigned to. She does not allege that Joe, or anyone else, called her a “dumb broad”. Elsewhere, in a supplemental form to the Application, the applicant alleges that a guard harassed her by referring to her with male pronouns, and said that he hated gay people. It is not entirely clear if she is alleging that Joe said these things, and the applicant did not give evidence at the hearing of any such comments being made. None of these allegations were included in the Application as initially filed, but were added when the applicant was later asked to provide answers to specific questions in the Application forms that had not been answered.

66In cross-examination, the applicant did not disagree that she spoke to Mr. Bonotti on numerous occasions about Joe. I note, however, that when cross-examining Mr. Bonotti, she put it to him that he never spoke to her and he strongly disagreed. In any event, the applicant agreed that she did not speak to Mr. Bonotti, or anyone in management or a position of authority, about Joe saying she was a “dumb broad”.

67Considering all of the evidence, including the various concerns I have about the applicant’s credibility referred to both above and below, and that when the applicant was asked to clarify her allegations of harassment on cross-examination she only gave evidence about Joe raising concerns with her about her job performance, I do not find on a balance of probabilities that Joe referred to the applicant as a “dumb broad”. I appreciate that Joe was not called as a witness, however, the “dumb broad” comment was raised by the applicant for the first time during her evidence at the one-day hearing, and the respondents had no notice that such a comment was alleged to have been made. There is no clear indication in the Application that Joe is alleged to have made any derogatory comments to the applicant. Rather, it appears that the “harassment” allegedly engaged in by Joe concerns the performance of their respective work duties.

68The applicant also added near the end of her evidence that she was called a “faggot” by a couple of the guards, and sexually harassed. When later asked who sexually harassed her, the applicant testified that it was the same guard in her room who refused to give her his name. She did not describe anything further.

69When asked in cross-examination about being called a “faggot” by a couple of guards, the applicant testified that she told another guard, but that she did not report it to a supervisor, or Mr. Bonotti. She just let it “slide”. She testified that she deals with it herself in a very effective way that she was not going to allude to. She did not indicate who the guards were.

70In all of the circumstances, I am skeptical that the applicant was called a “faggot” by a couple of guards as alleged, and I do not find that this happened. In any event, the applicant was clear that she did not report this to anyone in a supervisory role. As such, even if such a comment was made to the applicant, in my view, it would not be appropriate to find the named respondents liable for any violation of the Code in relation to such a comment made by a fellow co-worker and not reported to anyone in a supervisory capacity. See s. 46.3(1) of the Code.

71With respect to her assertion that she was sexually harassed, as I understand the applicant’s position, she alleges that she was subjected to sexual harassment because two men were in her room. I have addressed this allegation above, and do not find that the applicant was subject to any discrimination or harassment in relation to the chalet accommodations that were provided.

72The applicant also testified that any other female who had a room refused to share a room with her, because she is gay and married to another woman. When asked in cross-examination what others actually said about not wanting to share a room with her, the applicant testified that they all knew she is gay because she advised them she is gay and she worked with them before. She did not really answer the question, and her assertion that other females did not want to share a room with her seemed entirely speculative. She gave no evidence that she tried to share a room with anyone else.

73When pressed further in cross-examination about her rather bald allegation of being subjected to sexual harassment or advances, the applicant testified that comments were made, and a couple of guards said, “I will screw you”. She testified that she took it to mean that she would be assaulted and that they would have sex with her. She testified that, joking or not, it is still offensive. She added that it was said by a couple of guards at separate times on different days. She provided no further information as to who these guards were. The applicant also gave this evidence in a rather flippant manner, and gave the impression she was making it up in response to being pressed about her allegation that she was subjected to sexual harassment. In all of the circumstances, I am also very skeptical that this occurred, and do not find that it did.

74In any event, the applicant was clear that she also did not report this to a supervisor. Again, I find that even if such a comment was made, it would not be appropriate to find the named respondents liable for any violation of the Code in relation to such comments made by a fellow co-worker and not reported to anyone in a supervisory capacity.

ORDER

75In all of the circumstances, the Application is dismissed.