Vicki Akinretoye v. Admiral Inn and Verica Sam, 2015 HRTO 885

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vicki Akinretoye

Applicant

-and-

Admiral Inn and Verica Sam

Respondents

DECISION

Adjudicator: David Muir

Date: July 3, 2015

Citation: 2015 HRTO 885

Indexed as: Akinretoye v. Admiral Inn

APPEARANCES

Vicki Akinretoya, Applicant

Self-represented

Admiral Inn and Verica Sam, Respondents

Stephen A. McArthur, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and colour.

Background

2At the heart of this Application is the applicant’s claim that she was verbally abused by the personal respondent because of her race and colour. The applicant was employed in the laundry room of the respondent hotel. The personal respondent was the hotel’s housekeeping supervisor with responsibility for the laundry room. Erik Cox worked in the laundry room and is also the hotel’s maintenance person. He participated in the training of the applicant and the parties are agreed that he would have observed the events complained of by the applicant.

3In her Application, the applicant makes a number of allegations of verbal abuse by the personal respondent. The applicant alleges that she was yelled at and called stupid and slow. It was alleged that Ms. Sam asked her if she was mentally challenged. Essentially, the allegations are that, over the course of the three days she worked, the applicant was verbally abused when she was perceived to be unable to do the job. The applicant also alleges that another co-worker who was white was not treated in this way when she made a mistake.

4The respondents deny the allegations. The organizational respondent hired the applicant on the understanding that she had experience in hotel laundry. The organizational respondent needed a replacement for their weekend laundry worker who was leaving on short notice. The respondents assert that the applicant was trained by Mr. Cox who worked the laundry during the week. The respondents assert that it appeared to them that the applicant might not have had as much experience as she claimed but they had not made any decisions about whether the applicant would be successful.

5The applicant alleges that she complained about this behaviour and was told that the personal respondent would be spoken to. The applicant also alleges that she was scheduled to work on June 30 and July 1. The applicant alleges that she had no contact with the respondent hotel between June 25 and July 2 when she spoke with the general manager again. He told her, on July 2, that the person she was replacing was not actually leaving and they no longer needed her services.

6The organizational respondent asserts that the applicant did not show up for work on June 23 or 24. It acknowledges that its general manager spoke with the applicant on June 25 and that the applicant did complain about verbal abuse by Ms. Sam. It denies that the applicant was told that she was scheduled to work on June 30 and July 1 because it had already replaced the applicant because she had not reported for work and they had been unable to reach her.

Evidence and Analysis

7The hearing in this case was held on June 15, 2015 in Toronto. I heard from the applicant, as well as, Erik Cox and the personal respondent, Verica Sam, for the respondents.

8For the reasons that follow the Application is dismissed because I do not accept the applicant’s evidence as a credible narrative of what occurred in this workplace on June 12, 13 and 14, 2012.

9In considering the credibility issues I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 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 demeanour of the particular witness carries 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 a 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.

10As she began her evidence the applicant appeared to be reading from a prepared statement. When asked by me she clarified that they were notes she had made in preparation for the hearing. When asked not to refer to the written narrative the applicant insisted that she needed to refer to it for dates. I allowed her to do so but observed that the dates when many of these events occurred was neither controversial nor particularly material to the central issue in this dispute. The issue was not the particular dates when events occurred but ultimately whether or not the verbal abuse of the applicant by Ms. Sam occurred or not.

11Without her notes the applicant’s evidence of the critical incidents had the feel of a rote recitation of the baldly framed allegations in the Application rather than a description of real events. She provided no more detail than is in the Application which is bare bones and lacks the kind of detail which would support a finding that these incidents actually occurred. The applicant was unable to place the allegations of abuse at any particular time and place other than on June, 12, 13 and 14 in the laundry room.

12I observed that her evidence was as much about how she felt, what she told others of her treatment and their reactions to it as it was about the actual events. On more than one occasion I had to redirect her back to the relevant issues in the case.

13There is no direct evidence of discrimination in this case. That is not unusual. In this case the issue was, as I indicated to the parties, whether an inference could be drawn from the nature of the behaviour alleged by the applicant and any examples of alleged differential treatment relied on by the applicant. The inability of the applicant to put any flesh on the bare bones of her allegations significantly limited its usefulness in this regard.

14As regards the allegation of differential treatment of the applicant in contrast with non-racialized employees, the narrative of the Application suggests that this was a routine occurrence over the three days in question. As the applicant was asked to provide details of these allegations it became clear that this was not the case and there was only one incident which the applicant could recall and her description of this incident was quite unclear.

15The applicant contradicted herself on more than one occasion. The most egregious example occurred when the applicant was faced with an inexplicable gap in her evidence. In her examination-in-chief she testified that she spoke with the general manager on June 25 and he told her that she would be working on June 30 and July 1. The applicant did not work those days but offered no explanation for her not reporting to work. In her examination-in-chief, consistent with the narrative of her Application, and various replies to positions taken by the respondents, the applicant was adamant that there was no contact with the organizational respondent between June 25 and July 2. This obvious problem in her evidence was queried by myself and the respondents. When queried the applicant changed her evidence and suggested that she had received information from the hotel indicating that she need not work those days after all. This suggestion was extraordinarily vague and in any event the suggestion is in stark contrast with her assertions at various stages that any suggestion that the respondent hotel contacted her between June 25 and July 2 was a “lie and libellous”. The applicant could not explain this contradiction.

16As previously indicated, there is no direct evidence that discriminatory factors were in play in this case. However, in her Application the applicant alleges that she confronted Ms. Sam and asked her if she was treating her badly because she was black. In the Application and subsequent pleadings the applicant said that Ms. Sam’s only response was to say “angrily”, “what is wrong with you!” and “you were supposed to go upstairs and get dirty linens and I have to keep the machines moving at all times”. At the hearing the applicant testified that Ms. Sam’s response to this direct challenge was “I don’t care” or something like that. The applicant had no explanation for the marked difference in these versions of a critical piece of her narrative of these events.

17In a more general sense, the applicant’s version of events does not accord with what would normally be expected in the circumstances. For example, the respondents tendered a workplace schedule for employees. The applicant vociferously denied that the schedule was posted in the workplace. As suggested by the respondents, the schedule must have been posted somewhere for the evident reason that this kind of operation with a number of full and part-time employees whose schedules fluctuate to some degree would have had to have some method of communicating this information to staff, I also accept the evidence of both Ms. Cox and Ms. Sam that the schedule was posted on the laundry room door.

18The applicant’s evidence was also intended to create the impression that the personal respondent was in the laundry room constantly during her three days of work and the verbal abuse was ongoing and constant. This version of events seems unlikely in all of the circumstances. Ms. Sam is the supervisor of housekeeping and has duties throughout the hotel. The hotel has 77 rooms and five meeting rooms which Ms. Sam is responsible for. Mr. Cox worked the laundry room during the week and has done so for a number of years. The applicant did not dispute this. While Ms. Sam is also responsible for the laundry room it seems unlikely that she would spend her entire day in the laundry room training a new hire given her other responsibilities in the hotel and the fact that the perfectly competent Mr. Cox was available and working in the laundry room on June 12, 13 and 14.

19The applicant also submitted what she claimed were contemporaneous notes of the events in question. The document provided does not include contemporaneous notes and the applicant’s submission of them as such significantly detracts from her credibility in my view. The “notes” include a typed header in the form of a style of cause for this case and the Tribunal file number followed by the typed notation Contemporaneous notes for June, 12, 13 and 14, 2012. This Application was filed on May 5, 2013. The document includes the following four statements in the applicant’s hand:

Verica (Sam) treated me as if I was nothing because of my skin colour;

Verica behaviour and attitude were rude;

Verica’s remarks offensive and rude;

Vercia tried to intimidate and demean me

The applicant did not explain the evident problems with this document.

20For all of these reasons I do not accept the applicant’s version of the critical events in the laundry room.

21Given that it is these allegations that form the substance of the Application the subsequent events are immaterial to the result although critical credibility problems for the applicant arise from a consideration of some of these events as discussed above.

22In the result there is no evidence to support the applicant’s allegations that she was subject to verbal abuse by the personal respondent caused in whole or in part because of the applicant’s race and colour.

23If I were required to consider the respondents’ case, I would, for the most part, accept their evidence. Both respondent witnesses gave their evidence in a straightforward manner. I questioned them on key points and their evidence was challenged by the applicant. Their evidence on points of contention was consistent with what would normally expect. For example, that Mr. Cox was primarily responsible for training the applicant and was with her throughout most of the three days makes sense in all of the circumstances. Similarly, the evidence of Ms. Sam that she was not in the laundry throughout the day as alleged by the applicant makes sense given Mr. Cox’s presence there and more importantly her other responsibilities in the hotel.

24I accept Mr. Cox’s evidence that he observed none of the verbal abuse alleged by the applicant. He did testify that Ms. Sam, on more than one occasion, told the applicant that she would have to work faster if she was going to keep up when working alone on weekends. He also testified that he perceived the applicant to be less experienced than he had been led to understand and that she was having more difficulty than he expected. He testified as well, but cannot remember the context, that he did say to Ms. Sam in the applicant’s presence that she (the applicant) was new to the job. He did agree with me when I questioned him that Ms. Sam coached the applicant in ways that suggested that her work was not quite good enough.

25Ms. Sam’s evidence was similarly straightforward and forthright. I accept her evidence that she would not have been in the laundry room all day given her other responsibilities to ensure that rooms were cleaned and the meeting rooms appropriately set up for the beginning of the day. Although she testified that she does not remember how much time she would have been in the laundry room on the days in question she would not have been there much more than her normal routine, up to an hour over the course of the day, because Mr. Cox was responsible for training the applicant and she trusted him to do an adequate job of it.

26I accept the respondents’ evidence that none of the verbal abuse described by the applicant occurred in this workplace. I accept the evidence of Mr. Cox that there was some coaching of the applicant, which, although he would not endorse this word, was, I find, likely critical of the applicants pace of work. The applicant may have felt that this work was beneath her, she suggested as much a couple of times, and she felt the criticism of her to be unfair. However, at the end of the day there is no credible evidence to support the applicant’s version of events.

27The applicant testified about her interactions with the organizational respondents subsequent to the June 14 but this narrative was similarly unclear. On the applicant’s theory she left the workplace on June 14 not knowing when she was coming back to work. This does not make much sense. As indicated she adamantly denies knowing there was a schedule posted in the workplace. A schedule for the period was produced. It shows that the applicant worked June 12, 13 and 14 and was booked off on June 15 which the applicant had previously told the respondents she could not work because of a doctor’s appointment. It also indicates that the applicant was scheduled to work on June 23, and 24 consistent with the respondents’ evidence that the incumbent’s, last weekend of work was June 16th and 17th. The respondents’ version of these events seems more likely. Moreover, as discussed above, the applicant asserts that instead of her being scheduled to work it was intended that she would track down the general manager to find out when she should come in. Although possible, this seems unlikely. As previously indicated, she did make contact with the general manager on June 25. As previously discussed this evidence also was significantly problematic.

28The respondent did not lead evidence from the general manager who was the individual the applicant dealt with both before and after her three days of work. This decision was taken in part because I indicated that I did not have any questions for him. Consequently, there are some gaps in the narrative of the respondent’s case with respect to events subsequent to June 12, 13 and 14. However, given the essential absence of a credible version of events from the applicant and the general credibility of the respondents’ evidence these gaps are of no significance. To the extent that I might be persuaded that the applicant made a vague complaint of verbal abuse I accept the evidence of Ms. Sam that the general manager spoke to her about these events and her evidence that the event did not, in fact, occur.

29In the circumstances of a complaint of racial harassment and discrimination, which I have found was without any basis; no further inquiry by the organizational respondent was required. In this regard, the applicant’s evidence of what she told the general manager was even less clear than her narrative of what is said to have occurred in the workplace. As regards that applicant’s general complaint that she was let go for reasons that are not clearly articulated by her anywhere or at the hearing I also accept the evidence of Mr. Cox and Ms. Sam that the applicant was scheduled for work on June 23 and 24 and did not attend for work as asserted by the organizational respondent and that consequently the applicant was replaced by another individual. I find that the applicant did not report for work on June 23 and 24 for reasons unknown and was replaced because it appeared that she had abandoned her employment. Accordingly when she spoke with the respondent on June 25 her job was gone for reasons which raise no Code concerns.

30For all of these reasons the Application is dismissed.