Ahmed v. T-Zone Health Inc., 2016 HRTO 1062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zaynab Ahmed a.k.a. Zaynab Ahmed Kaakatti

Applicant

-and-

T-Zone Health Inc.

Respondent

DECISION

Adjudicator: Ruth Carey

Date: August 10, 2016

Citation: 2016 HRTO 1062

Indexed as: Ahmed v. T-Zone Health Inc.

APPEARANCES

Zaynab Ahmed a.k.a. Zaynab Ahmed Kaakatti, Applicant

Richard Miller, Counsel

T-Zone Health Inc., Respondent

Kristin Bisbee, Representative

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”), alleging discrimination with respect to employment because of race, creed, disability, sex, family status, and age and reprisal. It is about the termination of the applicant’s employment and a series of remarks and incidents she says occurred during her employment.

2The primary task for the Tribunal with respect to this Application is to weigh the evidence of the parties and assess the respective credibility of the applicant and the respondent’s witnesses as the respondent categorically denies almost all of the applicant’s factual assertions.

3After the completion of the applicant’s evidence she withdrew the allegations of discrimination on the basis of disability and family status and narrowed her Application to the following assertions:

1. The respondent breached the Code on the basis of the applicant’s creed or race: when it denied her request to not work on November 7, 2011, which was Bukra Eid; and when an employee of the respondent made a remark to the applicant about Bukra Eid not being a recognised public holiday;

2. The respondent breached the Code on the basis of the applicant’s age when her manager told her a senior manager did not want to hire the applicant because she was only 22 years old;

3. The respondent breached the Code on the basis of sex and created a poisoned work environment by: failing to address the applicant’s pregnancy related needs for time away from work; making negative comments about the applicant’s pregnancy; and threatening demotion or termination of employment when the applicant could not work due to a miscarriage;

4. The respondent committed reprisal contrary to the Code when the applicant asserted her right to take time off as a result of her pregnancy and miscarriage by threatening demotion or termination of employment; and

5. The respondent breached the procedural component of the duty to accommodate under the Code by failing to respond to or investigate the applicant’s complaint;

6. The respondent breached the Code on the basis of sex, creed and race when it terminated her employment on June 27, 2012.

4The hearing of this Application took place in Toronto on February 10, February 11, November 12, and November 13, 2014, and on March 24 and 25, 2015. The parties requested and were granted the opportunity to make closing submissions in writing which were completed on July 30, 2015.

5The applicant testified on her own behalf.

6The respondent called as witnesses: Paul Swaby, Carol May, Heather McClure, Lindsay Gordon, Nathalie Murphy, Diane Atterbury, and Morris Aboody.

7Morris Aboody is an owner of the respondent. Diane Atterbury is the Vice President of Marketing. Carol May, Nathalie Murphy and Heather McClure are all former employees of the respondent who worked with the applicant. Paul Swaby is still employed by the respondent; he transitioned from a business development role to that of manager of the corporate studios at the time of the applicant’s termination. Lindsay Gordon is also still employed by the respondent. She reports to Diane Atterbury; at all material times she was the direct supervisor of Heather McClure. The applicant reported to Heather McClure throughout her employment.

8For the reasons stated below the Application is dismissed. The applicant’s evidence is insufficient to meet the burden of proof with respect to the underlying factual assertions on which the Application is based.

PROCEDURAL ISSUES

9During the course of the hearing a number of procedural issues were raised and dealt with as follows.

The Motion for Summary Dismissal

10At the very beginning of the hearing the respondent requested that the Application be summarily dismissed as raising no reasonable prospect for success. The essence of the respondent’s request is that the applicant’s assertions are untrue.

11This was actually raised prior to the hearing by way of a Request for Summary Hearing filed on November 1, 2013. That Request was denied by way of Interim Decision 2013 HRTO 1892 on the basis that the summary hearing process is used to explore those applications where the allegations may be legally insufficient to constitute a case to be answered. Summary hearings do not involve the hearing of evidence or an assessment of credibility.

12Similarly, at the very beginning of an oral hearing it is not open to the Tribunal to dismiss an Application on the basis that the applicant’s claims are untrue without hearing the applicant’s evidence. As a result, the respondent’s request was denied.

13The respondent did not renew its request at the conclusion of the applicant’s presentation of her case.

Amending the Application

14During the course of the hearing before the Tribunal the applicant sought to amend the Application twice. The first amendment is with respect to the grounds pled. That Request was orally granted at the hearing. The second concerns an additional allegation of discrimination made by the applicant against the respondent.

15By way of background this Application was filed with the Tribunal on September 28, 2012. On October 17, 2013, the Tribunal was notified that the applicant had retained counsel. As a result by way of Interim Decision 2013 HRTO 1892, the Tribunal extended the applicant’s deadline for productions to December 13, 2013. On December 13, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP”) that included a request to amend the Application with respect to the remedies sought. The Tribunal granted this Request in Interim Decision 2014 HRTO 43. This was the only request to amend the Application that the applicant made prior to the commencement of the hearing of evidence.

16Two days of hearing were held on February 10 and 11, 2014. At the beginning of the hearing I flagged for the attention of both parties the applicant’s witness statement as it includes a statement of fact that is not contained in the Application. Although it is not uncommon for witness statements to elaborate on the factual assertions in an Application, I raised this issue because the additional facts in the applicant’s witness statement potentially constitute a new stand-alone allegation of discrimination. I informed the parties that I would be asking for submissions as to whether or not the applicant should be permitted to make this new allegation at the hearing.

17By way of explanation, the Application contains 8 detailed pages of factual assertions. In those 8 pages an employee of the respondent who I will refer to here as CW is mentioned once. This mention of CW occurs under the heading “Failure to accommodate your disability”. The Application says:

… Lindsay and Heather started to accuse me of not doing my job, or not working enough hours, even thought (sic) the studio was open only 50 hours a week I was expected to work my 40 hours, I had to Call [CW] and talk to her about what was expected from me in the parole aspect in order to meet requirements, and she told me that there is no such thing as a full time person with the hours that we have and she is confused with Heather and Lindsay demands to up my hours.

18Elsewhere in the Application and under the heading “Denial of Religious accommodation (Regarding Eid) and Racial discrimination” the applicant details her assertions with respect to discrimination on the basis of creed. She alleges that Heather McClure refused her request not to be scheduled for Eid on November 7, 2011.

19Nowhere in the Application does the applicant allege that CW said anything to her about her creed at any time. However, the applicant’s witness statement says:

She also contacted payroll and spoke to CW and was told that Bakra Eid was not really a holiday recognized by workplaces and she had not been working with the company long enough to claim vacation hours for the Holiday.

20During the first two days of hearing the applicant testified but her evidence was not complete. On consent the evidence of the respondent’s first witness, Paul Swaby, was also heard. At the end of those two days the hearing had to be adjourned and it was not reconvened until November 12, 2014.

21On November 10, 2014, two days prior to the reconvening of the hearing before the Tribunal, the applicant filed a Request for an Order During Proceedings seeking to amend the Application to include the ground of creed. The RFOP did not include a request to amend the Application to include the allegation regarding CW’s statement to the applicant. Because the hearing was scheduled to resume within days, the RFOP was dealt with by way of oral submissions at the hearing.

22The applicant’s Request to amend the Application to include creed as a ground was granted on the basis that it would cause no prejudice to the respondent as the respondent was fully aware of the allegations with respect to that ground and prepared to address them. I say this because the Application explicitly makes allegations of discrimination on the basis of the applicant’s religion; the Response addresses those allegations, as do the respondent’s witness statements; and the Request was made prior to the respondent calling its witnesses with respect to those allegations.

23Although the hearing of the Application was adjourned for additional time once again, the applicant did not file another Request to amend the Application to include the additional allegation regarding CW and neither party sought to add CW to its witness list. As a result at the end of the hearing I specifically directed the parties to make submissions about whether or not the Tribunal should consider the allegations concerning the alleged statement made by CW.

24I would note at this point that the additional allegation in the witness statement turned out to be a harbinger of more to come. Throughout her testimony, and despite admonitions to focus on the assertions in the Application, the applicant repeatedly responded to questioning by adding new factual allegations material to additional Code breaches. She was not responsive to my repeated instructions not to stray from the questions asked or the issues as set out in her Application. Some of the evidence she offered containing new assertions of fact is discussed below as part of the background narrative and because of its impact on the assessment of her credibility. However, I have not attempted to address in this decision all of the new allegations of fact the applicant made during the course of the hearing.

25Pursuant to Rule 1.7(c) of the Tribunal’s Rules of Procedure, the Tribunal has the power to amend any filing “in order to provide for the fair, just and expeditious resolution of any matter before it”.

26The relevant circumstances here include the fact that I was the one who raised the question of amending the Application at the commencement of the first day of hearing on February 10, 2014. After hearing two days of evidence, the hearing had to be adjourned, which gave the applicant an opportunity to file an RFOP to amend the Application further if she wished to. In November of 2014, after another two days of hearing, the proceeding had to be adjourned again as the evidence was incomplete. Again, no RFOP was filed by the applicant. In the end result, more than a year passed between my raising the issue and the completion of the evidence of the hearing. The applicant’s submission on the amendment issue offers no explanation as to why the applicant did not take the opportunity presented to request amending the Application prior to the completion of the evidence.

27I do not believe an applicant should never be permitted to amend an Application after the hearing of the evidence is complete. I can imagine multiple situations, particularly involving unrepresented parties, where doing so would not only not be unfair but necessary for the Tribunal to fulfill its purpose. That is not the situation here. The applicant has been represented in this proceeding since the disclosure stage and was aware of the amendment issue more than a year prior to the end of the hearing of the evidence and chose to do nothing about it until final submissions.

28The applicant argues in her submission that it would not be unfair to the respondent to permit the amendment as the respondent had a full and fair opportunity to respond to the allegation. In support the applicant notes that the witness statement containing the additional allegation was delivered to the respondent in advance of the first day of hearing.

29The applicant then goes on to argue the Tribunal should draw an adverse inference from the fact that the respondent did not call CW as a witness. This invitation to draw an adverse inference illustrates the unfairness that lies at the heart of granting the applicant’s request in the circumstances here.

30One of the primary purposes of the Rules of Procedure is to ensure that hearings unfold in a fair manner. Both sides are entitled to know and respond to the allegations. Pursuant to Rule 17, both parties have the same obligation and the same timeline to deliver witness lists and witness statements. The Rule is based in part on the assumption that Rule 16.1 will be fully complied with; namely, that both parties will disclose all arguably relevant documents in advance regardless of whether or not they intend to rely on them. Compliance with Rule 16.1 is necessary to ensure a party has sufficient information to plan their theory of the case, identify witnesses and create witness statements.

31When an application is amended the respondent is normally entitled to amend its pleadings in response. That is not possible in this situation.

32In order to adequately overcome the prejudice to the respondent of the late amendment request, I would arguably have to give the respondent the opportunity to amend its Response and its witness list, and then reconvene the hearing to hear additional testimony if the respondent chose to call CW as a witness. That would not be an expeditious way of proceeding.

33One could argue that because I raised the issue of amendment at the hearing on February 10, 2014, the respondent then knew it might become an allegation before the Tribunal so it could have sought permission to amend its witness list. But that would have been premature as CW had no relevant evidence to offer until and unless the Tribunal amended the Application.

34In the end result, this is not a proper instance where amending the Application after the completion of the evidence would not be unfair to the respondent. The request to amend is denied.

35That being said, I have addressed below the applicant’s evidence with respect to the new allegation about CW as part of the background narrative and because it is relevant to the overall issue of credibility.

EVIDENCE AND FINDINGS OF FACT

36The applicant is a young married woman who self-identifies as Middle Eastern and Muslim. In June of 2011 she started working part-time as a fitness instructor for the respondent. At that time she was 22 years old.

37The respondent is a family-run business. It owns and operates a number of fitness studios. In addition to the studios it directly owns and operates, there are several franchised studios. The respondent’s business model involves using the fitness studios as an introduction to its specialised exercise equipment and related products which it sells. Sales of its exercise equipment are its primary source of revenue.

38Employees like the applicant are expected to sign up members, teach them how to use the equipment, and sell the respondent’s products.

39The studios are typically small with only one employee working at any given time. They are staffed by a manager and one to three part-time employees. The manager is expected to work the majority of hours; essentially, it is a full-time non-salaried position. Each studio is assigned a support manager who works at the respondent’s corporate head office.

40The applicant started with the respondent as a part-time fitness instructor and was soon promoted to the role of manager for the studio where she worked. Heather McClure was her studio support manager.

41All of the studio employees where the applicant worked were paid an hourly wage along with the mandatory statutory entitlement to vacation pay under the Employment Standards Act, 2000, S.O. 2000, c.41; none were salaried. In addition to an hourly wage, the respondent paid the employees a commission for machines sold. In the studio that is the subject of this Application, that commission was shared among the employees regardless of who made the sale. The respondent also offered occasional bonuses including non-cash bonuses such as an on-line “spending spree”.

Legal Principles with Respect to Credibility

42As stated above, the primary task for the Tribunal with respect to this Application is to weigh the evidence of the parties and assess the respective credibility of the applicant and the respondent’s witnesses as the respondent categorically denies almost all of the applicant’s factual assertions.

43More particularly the respondent asserts:

• The applicant did not make a request with respect to November 7, 2011, for Bukra Eid, but she did make one request for accommodation for a religious holiday and that request was granted;

• The applicant's age was never commented on by her manager or the senior manager and the respondent had employees younger than 22, including another manager;

• None of the negative comments the applicant says were made about her pregnancy were actually made; rather she was congratulated by both Morris Aboody’s daughter and Heather McClure and used her “shopping spree” bonus to purchase pregnancy-related items;

• When the applicant learned her pregnancy was non-viable and she could not report to work for a scheduled shift, the studio was closed without any repercussion or recrimination – the respondent’s only expressed concern was that the applicant did not inform her manager as to what happened until after the studio was closed;

• The applicant was never denied time off to deal with her pregnancy or miscarriage. Other employees of the respondent covered shifts the applicant indicated she could not work. The applicant was in charge of setting the schedule for the studio and authorised to hire additional employees so if she needed to take additional time off she was free to do so at will;

• The respondent did not receive the complaint the applicant alleges sending to the respondent so there was nothing to investigate;

• Prior to the termination of the applicant’s employment, the applicant knew, or ought to have known, that her studio was operating at a loss and its sales were below average; and

• The applicant’s employment was terminated for a number of reasons but primarily because of her unwillingness to attend meetings, complaints from co-workers, and poor performance.

44Because of this stark contrast between the assertions of the applicant and the evidence of the respondent’s witness I make some general observations about credibility.

45As stated by the British Columbia Court of Appeal in the oft-cited Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) at pages 356 to 357, credibility cannot be based solely on demeanor but requires an examination of the consistency of the evidence offered and its harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.

46The Tribunal will also consider the internal consistency of a witness’s testimony, any motive the witness might have to offer untruthful testimony, the witness’s relationship to one or more of the parties, and contradictions in the evidence. See Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

47In R. v. Morrissey, 1995 CanLII 3498 (ON C.A.) the Court of Appeal says:

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.

48The difficulty that arises here with respect to the applicant’s Application is that she bears the burden of proof with respect to establishing the factual basis for her claims. As she called no witnesses to corroborate any part of her version of events, she relies primarily on her own testimony. Some of the documentary evidence contradicts her testimony. More importantly, her testimony before the Tribunal was filled with inconsistencies, and when confronted with those inconsistencies and the content of the Application, she displayed a marked tendency to add new facts and allegations or contradict herself again. In short, the applicant is an unreliable and non-credible witness.

49I say this, more particularly, for the reasons that follow below with respect to the particular factual allegations on which the Application is based. At this point however, it is useful to explain the challenge presented by the applicant’s evidence through some examples.

50One of the allegations in the Application, withdrawn at the close of the applicant’s evidence, is the assertion that the respondent breached the Code on the basis of the applicant’s family status. In the Application, the applicant describes her family or marital status as: “At the time Married with three kids under the age of 5 now married”. In response to the question on the Application form asking the applicant to explain why she believes she was discriminated against based on her family status she writes she feels the respondent took advantage of her because it knew she needed the money from her earnings to support three young children. The Application asserts: “I had three kids who I was looking after that depended on my pay cheque”.

51In actual fact the applicant had no children at that time nor was she a de facto or legal guardian of any children. The applicant says she lives in the same building as her in-laws. Her sister-in-law was estranged from her children’s father and her mother-in-law was helping out looking after the three children. When her mother-in-law was ill the applicant would help out by babysitting. On cross-examination the applicant gave inconsistent and conflicting evidence as to the dates of birth and ages of the children, and at one point said the youngest was born on a date that is actually after the applicant’s employment with the respondent was terminated.

52The Application also alleged discrimination on the basis of disability. Those allegations were also withdrawn after the completion of the applicant’s evidence. The applicant was involved in a car accident in 2006 and says she has some mobility challenges, and a resultant anxiety disorder around cars resulting in hypertension.

53During cross-examination the applicant stated she does not have an anxiety disorder and then she claimed for the first time to have been diagnosed with post-traumatic stress disorder during the course of her employment with the respondent. In response to further questions on cross-examination, the applicant stated for the first time that she had been diagnosed with fibromyalgia two years prior to her employment with the respondent and had disclosed this to Heather McClure before being hired. But she stated elsewhere in her testimony she was still in the process of being diagnosed.

54Prior to the commencement of the hearing of the evidence, I indicated to the parties that the pleadings here clearly indicate that the primary issue being raised by the respondent was the applicant’s credibility. Despite this, inconsistency and the tendency to add new allegations of fact when confronted with inconsistencies occurred throughout the applicant’s entire testimony. In order to control the proceedings I intervened more than once during her testimony and asked her to focus on the allegations in the Application and avoid straying into new territory. These admonitions were largely unsuccessful.

55That being said, I am cognizant of the fact that it is open to the Tribunal to accept all, or some, or none of a person’s testimony. See R. v. R.E.M., 2008 SCC 51 at para. 65. As can be seen from the findings of fact below, I do in fact accept some of the applicant’s evidence; but, in general, where her testimony is contradicted by other evidence, internally inconsistent, or uncorroborated, I do not.

The Initial Hiring

56The applicant learned about the opportunity to work at the respondent’s studio through her spouse. At the time, Heather McClure was the manager for the studio. McClure’s husband and the applicant’s husband work together.

57The applicant and her husband thought working at the studio would be a good idea. In 2006 the applicant was hit by a car while walking and had some related injuries that got in the way of everyday tasks. She was looking for a way that she could gain some sort of normalness but working was challenging due to the injuries. The applicant’s husband learned from Heather McClure’s spouse that the respondent’s studios employed newer technology that helped with injuries and that Heather was looking for a replacement because one of the other employees was returning to school. Heather McClure was also being promoted to working at the respondent’s head office and going to school for her real estate license so she needed help.

58The applicant gave her résumé to her husband to pass along and a few days later she got a call to go for an interview on June 27, 2011.

59The applicant says that at the interview she was asked about her injuries and she tried a routine on the respondent’s machines and found she could do that. She says that she and Heather discussed the job duties and hours, how time off worked, the fact the applicant did not drive and could not easily attend meetings off site.

60The applicant was offered the job on the spot. She was very excited and enthusiastic. The studio was within walking distance from home and she had the flexibility to do the hours required. Heather McClure says she found the applicant to be personable and happy with a great personality.

61The applicant’s job as a part-time fitness instructor involved showing customers how to use the machines; light duties like dusting, sweeping, and mopping; and some clerical work.

62The applicant was also told about membership and the incentive program. Employees at the studio were expected to solicit members. Membership was designed to get customers in the door and using the machines. Purchasing a membership earned the individual a credit towards the purchase of a machine.

63The studio was open 50 hours a week. From Monday to Thursday it was open 10 a.m. to 7:30 p.m.; on Fridays it was open from 10 a.m. to 6 p.m.; and Saturday from 10 a.m. to 2 p.m. It was explained to the applicant that Heather was looking for someone who was available to work at any time during the studio’s regular hours, and that she would be scheduled to work as needed.

64The applicant says she asked about time off as she would have specialist appointments to attend and was involved in a lawsuit over the vehicle accident so she would need to attend appointments with her lawyer.

65The parties agree they discussed the fact that Heather created the schedule at least two weeks in advance and employees had to submit any unavailable dates in advance of the creation of the schedule. The applicant also says she was told vacation had to be requested at least a month in advance and could be denied if it interfered with the demands of the studio.

66Heather says that, as the manager, if someone could not make a shift at the last minute due to illness or emergency, she would be expected to cover that shift. This in fact occurred with respect to the applicant on November 10 and 11, 2011, when the applicant was too ill to work and Heather covered her scheduled shifts.

67Heather disputes much of what the applicant says was discussed during this hiring meeting. For example, she says the applicant did not indicate during the hiring meeting that she would need time off for specialist or legal appointments.

68Heather also says she did not tell the applicant that she would be scheduled around other people’s availability. The applicant maintains that during this meeting, she was told that Carol May was only available to work between 10 a.m. to 3 p.m. because she had child care commitments. Typically Carol worked 10 a.m. to 2 p.m. three days a week.

69The applicant says that she also told Heather that because of the vehicle accident she was anxious around cars, could not drive, and preferred not to have to take transit. Heather says this is not true but she did tell the applicant that occasionally employees went to head office for training. The applicant confirms she was told that sometimes meetings were held at head office but they were rare.

Training

70The applicant started with training shifts almost immediately. The norm in the studio was that only one employee would be working at a time, but Carol May and Nathalie Murphy both did two training shifts apiece with the applicant.

71Carol May says that she found the applicant nice enough and that she seemed to have a grasp of what was required. Nathalie Murphy says she got along with the applicant and carpooled with her a couple of times. But both Carol and Nathalie say the applicant talked about personal matters that were not appropriate for a workplace. They both say the applicant discussed her sex life and relayed stories of abuse. Nathalie says that during this early training period there were a few times the applicant became emotional. The first training session ended in tears. During this training period neither Carol nor Nathalie reported to Heather that the applicant was inappropriate or emotionally labile.

72Although the applicant had access to a book written about the respondent’s specialised exercise equipment, there were no other written procedures or policies.

November 7, 2011 and Bukra Eid

73During the early months of the applicant’s employment, Heather McClure was the manager of the studio but seldom on site. She was transitioning to a position at head office. Up until the end of November 2011, Heather continued to create the work shift schedules as she always had.

74On August 24, 2011, the applicant sent Heather an e-mail saying she was wondering when they would get the schedule for September as there were a couple of things she was planning. Heather replied the same day asking her what days off she wanted. The applicant wrote back saying that she wanted to work as many hours as possible but would like September 3, 2011 off for Eid. That was a Saturday and the applicant often worked Saturday but, as she had requested, she was not scheduled for that day.

75The applicant says that during oral conversations with Heather she told her that there were two Eid holidays and she would want the second one off as well. She says they had a conversation during which Heather asked her how she enjoyed her time on September 3, 2011, with family. The applicant says she replied that it was great, particularly as it was her first year being married; it was great to see all the kids and there was another Eid coming up and the applicant would let her know the date. According to the applicant, at the end of October, 2011, she informed Heather through e-mail that she was unsure if the second Eid would fall on November 7, 2011, or November 14, 2011. She says she asked for both days off but if that was not possible she and her husband would be attending church on Friday and she would find out from the preacher when it would be and the applicant would let her know by November 1, 2011, at the latest.

76At this point I would note that throughout the applicant’s testimony she exclusively used words like “church” and “preacher” when referring to her religion. She also spoke more than once of attending Friday “mass”. After her evidence was complete I asked her about her use of these words instead of the more familiar “mosque”, “Imam”, and “prayers”. She replied that she used them because they were the equivalents that people were accustomed to. This seems to me to be a plausible explanation, and as the respondent does not challenge the applicant’s assertion as to her creed I make no inferences and place no weight on the applicant’s use of these words.

77The applicant says she called Heather on her cell phone on November 1, 2011 and told her that the second Eid was falling on November 7, 2011 that year. According to the applicant, Heather told her that would not be a problem but when the schedule was distributed it showed her working that day.

78The applicant says that she called Heather for an explanation. According to the applicant, Heather told her Carol called at the last minute and said she could not work that day because she had something she needed to do with her children; the applicant knew she was hired specifically to work around everyone else’s schedule; and if the applicant wanted to be promoted into Heather’s position as manager of the studio, she needed to be prepared to make sacrifices.

79This reference to promotion was with respect to Heather McClure’s position as the studio manager. As Heather was working at head office as a studio support manager, her position as on-site manager was going to need to be filled. The respondent apparently likes promoting from within and the applicant was very interested in being promoted.

80The applicant says that during this conversation reference was also made to her age. She says that Heather told her Diane Atterbury would appreciate the applicant was making a sacrifice by working on Eid and this was important because Diane was on the fence about promoting the applicant into the manager’s position because she was young and new.

81The applicant also says that after this conversation she spoke to Carol about why Carol was not scheduled to work on Monday, November 7, 2011, as Monday was one of her regular days. She says that Carol told her she had a dance recital to go to for one of her kids.

82Heather McClure and Diane Atterbury say that none of what the applicant says in this regard is true. Diane and Heather both say that Diane had no involvement in scheduling at the studios so there would be no reason for Diane to be aware of the applicant requesting Eid off. Diane and Heather both say nothing was said about the applicant’s age; Morris Aboody says the respondent employs individuals from 20 to 79.

83Carol May says that in October she specifically asked for November 7, 2011 off because she had a medical appointment that day. Her personal calendar where she keeps contemporaneous notes was entered into evidence. It indicates she had a mammogram that day. Her calendar notes many dance recital-related activities, including on Sunday, November 6, 2011, but not on November 7, 2011. Carol May also says she never spoke to the applicant about why she was not at work that day.

84Heather McClure says the applicant never requested November 7, 2011 off. If she had, she would have definitely given it to her because she never scheduled anyone for a day they had asked to be off; if worse came to worse, Heather would have worked the shift to cover. She also says she had no idea there was a second Eid and it would have stuck in her head if the applicant had said there was because that would have been news to her.

85On October 17, 2011, Heather McClure wrote an e-mail to the studio asking the employees for their availability for hours for the month of November 2011. Carol May responded, but the applicant and another part-time employee I will refer to as L did not. So on October 19, 2011, she sent a follow up e-mail. The applicant responded by e-mail saying she had “full availability” for November 2011, and if anything came up she would let Heather know.

86None of the texts or e-mails provided by the parties say anything about the applicant ever requesting November 7, 2011 off for Eid. The applicant points to one text provided by the respondent sent on October 20, 2011, in which the applicant says she needs to speak to Heather about something in person. According to the applicant this text is about her wanting to ask for November 7, 2011 off. Heather says she cannot remember what the applicant wanted to speak to her about but it was not about Eid or November 7, 2011, as she would have remembered that.

87As indicated above, the primary difficulty with the Application is that the applicant bears the burden of proof with respect to proving the underlying factual basis for her allegations. With respect to November 7, 2011 and Bukra Eid, the evidence before the Tribunal is insufficient to establish that it is more likely than not that the applicant asked for the day off and was refused. I say this for a number of reasons.

88Neither Carol May nor Heather McClure have any reason to fabricate evidence. Carol May quit in April of 2012 and has no relationship with the respondent. Heather McClure was laid off on January 1, 2013. Both of them testified in a straightforward and spontaneous manner without internal inconsistencies. I found them both to be credible witnesses.

89Carol May’s contemporaneous notes made on her personal calendar corroborate her evidence. They indicate she could not work that day due to a medical appointment. Given that reality it seems unlikely that Heather McClure would have told the applicant Carol could not work due to a last-minute family commitment. It also seems unlikely that Carol would have told the applicant about a dance recital that did not exist instead of explaining she was at a medical appointment. As a result, I do not accept the applicant’s evidence that both Heather and Carol told her Carol did not work November 7, 2011 because of a last minute family commitment for a dance recital.

90Given all of the above I am not satisfied it is more likely than not that the applicant asked for November 7, 2011 off for Eid and was denied. Rather the preponderance of evidence supports the conclusion that the applicant never requested November 7, 2011 as a day off.

The Allegation Regarding CW

91Related to the allegation about the denial of Eid as a day off is the allegation concerning a conversation the applicant says she had with the respondent’s bookkeeper, CW.

92As indicated above this allegation was first raised in the applicant’s will say statement which says the applicant contacted payroll and was told “Bakra Eid was not really a holiday recognized by workplaces and she had not been working with the company long enough to claim vacation hours for the Holiday.”

93That being said the Application does say:

… when I Approached Heather Tuesday November 1s 2011 to ask why I was scheduled on the Monday November 7^th 2011 as I had that day booked off for two months in advance and was guaranteed that day off I was told by Heather that It isn’t and actual holiday that they would place recognized and that Diana would [not] give it to me off because they did [not] have anyone to work that day…

… I asked Heather to give me time off as part of Vacation timer and was told that I wasn’t working there long enough to have vacation time more the a couple of days…[Emphasis added.]

94Heather McClure says she never told the applicant either of these things.

95Given the similarities between these allegations attributed to Heather McClure in the Application and to CW in the witness statement it may well be that the applicant is confused. But this contradiction between the Application and the witness statement was not explicitly put to the applicant in direct or cross-examination so she was not given an opportunity to clarify and confirm whether she was alleging Heather said this or CW. As a result, I place no weight on the discrepancy in this regard between the Application and the witness statement.

96That being said, the applicant’s oral testimony contradicts her own witness statement.

97The applicant says that after she was not given November 7, 2011 off, she wanted to know for future reference what the guidelines were for religious holidays so she called CW, who was the head of payroll. She says she told CW she was denied time off for Eid and asked if there were any protocols or rules. The applicant says she was told Eid is not a holiday recognised on the calendar so if she was to request the time off it would either be granted or denied. The applicant further says she told CW it was unfair because she did not celebrate often or for Christmas or New Year’s; it was only twice a year and not too much to ask for.

98Although I permitted the applicant to lead this evidence because of the inclusion in the witness statement of the new allegation, the applicant’s testimony concerning her conversation with CW described above includes new allegations again. The witness statement says nothing about CW telling her if she was to request the time off it would either be granted or denied. Nor does it say anything about the applicant telling CW she thought it was unfair. The witness statement does not say that CW told her Bukra Eid was not on the calendar. Rather the witness statement says CW told the applicant Bukra Eid was not a holiday recognised by workplaces and she had not been working for the respondent long enough to claim vacation hours for it.

99This is one of the several instances in her testimony when the applicant elaborated on her version of events and added new allegations not contained in the Application or witness statement. In my experience it is normal for a witness to elaborate during oral testimony to add surrounding detail and particulars but it is not usually the case that whole new allegations about what happened or was said will surface for the first time during a party’s testimony. The statement that CW told the applicant that requests for religious holidays could be granted or denied by the respondent is a stand-alone allegation of the respondent announcing an intention to discriminate. It is not something one would expect the applicant to forget about when drafting her Application or preparing her witness statement.

100Further, the evidence with respect to September 3, 2011, is that the respondent accommodated the applicant’s request for a religious holiday off without any difficulty at all. Given this history and the finding above that it is more likely than not that the applicant did not request November 7, 2011 off for Bukra Eid, there is no logical reason for her to call anyone to inquire about policies and practices around religious holidays.

101Absent some other or corroborating evidence, I am not prepared to make a finding that it is more likely than not that the applicant called CW and spoke to her about religious holidays.

The Applicant’s Promotion and the Allegations with Respect to Age

102When Heather McClure was transferred to work at the head office the need arose for a new manager to be hired for the studio where the applicant was employed. The applicant expressed an interest and Heather McClure recommended her to Lindsay Gordon, who was Heather McClure’s direct supervisor.

103On November 17, 2011, the applicant’s spouse drove her to the respondent’s head office for an interview for the manager’s position. Heather and Lindsay conducted the interview.

104The interview went well. Heather McClure says the applicant really wanted the job. She says the applicant wanted the extra hours that went with it and was excited about what she could do to increase membership numbers. To Heather the applicant seemed to fit the part. Up until that point in time, the applicant had shown an eagerness to work as many hours as she could get and was enthusiastic. For Heather, those were the main criteria for the job.

105Lindsay Gordon says that at the interview it was explained to the applicant that the manager was expected to work full-time and her job would include scheduling employees, hiring people to staff the studio, making bank deposits and generally ensuring the studio was running properly.

106After the applicant narrowed her claims following the close of her case, the only allegation left with respect to the ground of age was with respect to the telephone conversation already discussed above. The applicant says Heather told her Diane did not want to hire her for the manager’s position because of her age.

107At this point I would note that the Application alleges the applicant was denied promotion because of her age and then only got it because the only other person qualified did not have the availability; then after being promoted, her age was held over her head. The detailed narrative attached to the Application does not explain these allegations.

108But the Application does allege that Heather McClure told the applicant Diane Atterbury did not want to hire her for the manager’s position because of her age. That being said, the applicant contradicted the allegations in the Application during her oral testimony with respect to the timing and context of when this remark was made.

109At the hearing before me the applicant stated this remark was made during the lead-up to the interview for the manager’s position in the context of the discussion concerning why the applicant was required to work November 7, 2011, for Eid. According to the Application, the remark was made after the interview on November 17, 2011.

110The applicant’s witness statement contains no reference to age at all except to state the applicant believed she was the youngest manager in the respondent’s employ at the time.

111Again, both Heather and Diane refute the applicant’s allegation. Heather says Diane never said anything about the applicant’s age and she never said otherwise to the applicant. Heather says she never mentioned the applicant’s age to Diane at all. Diane indicates that she remembers either Paul, Heather or Lindsay saying they thought they would promote a part-timer to the manager’s position and she thought that was a fine idea because the person would not need training as they were familiar with operations. Diane had also no interaction with any of the studio employees; she was not concerned with their day-to-day operations and prior to the applicant being hired as the manager, she does not recall meeting her. Diane also says there was a manager younger than 22 and she was a fantastic employee. Lindsay Gordon says that as the supervisor of the studio support managers, the decision to give the applicant the manager’s position was up to her and Heather and her age was not discussed or considered at all.

112During the course of her cross-examination, the applicant was asked what she meant in the Application with respect to the allegation that she was discriminated against because of her age. In response, the applicant again added new factual allegations. For example, she now says that when she spoke to Lindsay in February of 2012 about needing time off because of her recent miscarriage Lindsay told her she was still young, she had her whole life ahead of her, and it was a learning experience. Lindsay Gordon says she did not know how old the applicant was at any time during her employment and if she said anything about the miscarriage it was to offer sympathy and encouragement.

113So the applicant’s factual assertions about what was said to her concerning her age are inconsistent, uncorroborated, and denied by every other witness that testified before the Tribunal. As a result, the evidence is insufficient to establish that it is more likely than not that Heather McClure told the applicant that Diane Atterbury had concerns about her being promoted because of her age.

The Applicant’s Pregnancy

114The applicant says she learned from her doctor on January 24, 2012, that she was pregnant. She says she suspected she was pregnant before that but that is when it was confirmed.

115The applicant provided no documents concerning her pregnancy to the Tribunal as part of her evidence. I note this here because there is an e-mail string that was entered into evidence between the applicant and Morris Aboody’s daughter that contradicts the applicant’s testimony about when her pregnancy was confirmed. The e-mails concern an on-line shopping spree that the respondent appears to have offered as a bonus to employees.

116On January 18, 2012 the applicant wrote:

… Sorry about the late order its just I wanted to make the best decision I could and I had my list all perfected and then found out that I am prgnant (sic), so I had to rethink my list…

117So in the absence of other documentary evidence it would appear that the applicant knew she was pregnant sometime prior to January 18, 2012.

The Conversation with Heather McClure about the Applicant’s Pregnancy

118The applicant says that when she discovered she was pregnant she was excited and happy. She says it clicked in her head that she should inform her studio support manager, Heather McClure, because it would affect her job. It is a routine part of the instructor’s job to inform members and customers that they should not use the respondent’s exercise machines if they are pregnant, have a pacemaker, or are prone to blood clots.

119The applicant says she called Heather on her cell phone and told her of her pregnancy. According to the applicant, Heather said “oh you got yourself pregnant” and then right away she recovered herself and said congratulations. They discussed the applicant doing demonstrations for clients without turning the machines on. The applicant says Heather then said “I hope it doesn’t interfere with your job. Take it easy if you need to just make sure it’s not going to become an issue.”

120Heather McClure says that when the applicant called and told her she was pregnant Heather was excited and honestly happy for her. She had been pregnant while she worked in the studio and warned her about not using the respondent’s machines and to do demonstrations with the machines off. She did not say “oh you got yourself pregnant” or “I hope this doesn’t interfere with the job”; she says she would never say anything like that as her personal experience was that it was not a problem being pregnant and working in the studio. She did tell the applicant to take it easy and remembers the applicant being excited about using her bonus to buy baby stuff.

121The text messages between the applicant and Heather McClure during this period make no reference to this conversation or contain anything that might be construed as negative feelings about the applicant’s pregnancy.

122The only written correspondence between the parties with respect to the applicant announcing her pregnancy to the respondent is the e-mail string referred to above between the applicant and Morris Aboody’s daughter about the shopping spree. On January 19, 2012, Morris Aboody’s daughter wrote: “Congratulations Zaynab! Very exciting about your baby, is it your first?”

123I am mindful of the indication in Faryna v. Chorny that when assessing a witness’s credibility it is important to look at the preponderance of the probabilities and the harmony of all of the evidence. Keeping this principle in mind, it seems to me that looking at each of the applicant’s factual allegations concerning her pregnancy in isolation would potentially be a mistake. If I do that then the automatic result that follows with respect to this alleged conversation is that the evidence is insufficient to meet the applicant’s burden of proof. It is preferable in my view to assess the parties’ respective credibility regarding the events that occurred during the applicant’s pregnancy from the perspective of the entirety of the evidence.

The Scheduling of Medical Appointments

124The Application alleges that after this conversation with Heather, the applicant encountered difficulty booking and rescheduling pregnancy-related medical appointments to work with her schedule.

125The dates mentioned in the Application are: February 9, 17, and 26, 2012. The applicant’s witness statement contains no further dates but says:

As a result of her pregnancy she had to attend a number of medical appointments… She had a difficult time scheduling appointments and trying to make arrangements for coverage. Although she tried to schedule her staff/co-workers to ensure coverage, sometimes this was not possible. She asked management for help to ensure coverage. Assistance was not provided… She provided notice to management, including the provision of medical notes, but found it very difficult to keep appointments because of lack of coverage. On a number of occasions she was forced to cancel and reschedule appointments because management did not facilitate staff coverage for her.

126As stated above, the applicant produced no records for the Tribunal related to her pregnancy or corroborating evidence like a personal calendar, appointment cards, or a letter from her doctor with respect to missed or rescheduled appointments.

127During the course of the hearing the applicant testified about additional, undisclosed dates she says she had medical appointments on, and she relayed her difficulties in arranging coverage for those dates. She also expanded her allegations about what happened around the miscarriage including the addition of an allegation that on February 10, 2012, the day after she discovered the fetus was non-viable, Heather McClure forced her to go to the studio to work a scheduled shift.

128Although the new dates and allegations are not in the Application or in the applicant’s witness statement, I include some of the evidence about them here because they are part of the applicant’s overall narrative of what happened and offer support for the eventual conclusion that the applicant’s evidence with respect to what happened during her pregnancy is neither credible nor reliable.

129For example, the applicant says her doctor wanted her to come in to do blood work on January 26, 2012. She says she informed Heather of that appointment and was trying to get that day off which was hard as L was no longer working at the studio and there was just Carol and the applicant available.

130This is actually not true. At that point in time the other employees in the studio were Carol May and a student I will refer to here as M. M was hired by the applicant and started working in the studio at the beginning of December, 2011.

131With respect to the January 26, 2012 appointment, the applicant says that Heather told her if there was no one to cover she would not be able to make the appointment. She says she was told under no circumstances could she close the studio for an appointment. The applicant says that after this conversation Heather spoke to Carol and Carol agreed to stay an extra half-hour until 2:30 p.m. so the applicant could go to her appointment and then make it to the studio for her shift.

132January 26, 2012 was a Thursday and the work calendar provided for the studio for the month of January 2012 shows Carol May was scheduled to work every Thursday until 2:30 p.m. on each occasion. On the work calendar that was provided for the month of January 2012, the applicant says she wrote on it and her handwriting says for that day “suppose to start at 2”.

133The applicant says that on January 26, 2012, she was given an appointment for February 9, 2012 for her first ultrasound.

134The respondent provided the Tribunal with text messages between the parties from January 26, 2012 that indicate the applicant had a medical appointment on January 25, 2012 that was supposed to be her first ultrasound but the machines were down so January 26, 2012 was for her first ultrasound. Nothing in the text messages indicates that the applicant was seeking assistance arranging coverage for either of those dates.

135Carol May’s personal calendar with her contemporaneous notes indicates on January 25, 2012, she was scheduled to work 10 a.m. to 2:30 p.m. but in brackets after this she wrote “might be later due to Zaynab’s ultrasound”.

136The text messages between the applicant and Heather McClure also indicate that on February 8, 2012, the applicant was supposed to attend a meeting at head office. At first she denied being informed about the meeting but after being pressed with the contents of her e-mail exchanges about it with Lindsay Gordon she acknowledged she forgot about it. During this text message exchange the applicant says she was attending her first pre-natal exam on February 8 and was going for an ultrasound on February 9, 2012.

137The applicant says that at the ultrasound on February 9, 2012, no fetal heartbeat was detected. Eventually she was told to go home and rest.

138The applicant did not report for work for her scheduled shift at 2 p.m. that day nor did she call Heather McClure. She did, however, call Carol May as she was working the morning shift and expecting the applicant to relieve her at 2 p.m.

139The applicant says that she asked Carol to call Heather and tell her the applicant was unable to work. Carol says this is not true. The applicant called her but did not ask her to call Heather. It was not her place to call head office and give out personal information about the applicant. She says the applicant was crying and told her she had lost the baby. She says she thinks she spoke to Heather about it the next day but she is not sure. She was surprised when she did though because Heather clearly did not know what had happened and Carol had assumed the applicant would call Heather as Heather was her manager.

140The applicant also says she asked her husband to tell Heather’s husband what was happening. Heather says she did not find out about any of it until a client called head office on February 10, 2012, to inquire why the studio was closed the previous day. Heather says this is when she called both Carol and the applicant and found out what happened.

141The applicant agrees she did not speak to Heather until the morning of Friday, February 10, 2012, but she says she was the one who called Heather and not the other way around.

142According to the applicant, Heather told her that Carol had called the previous day to tell her what had happened and that Carol had closed the studio. As stated above, both Heather and Carol say it is not true that Carol called Heather on February 9, 2012.

143The applicant also says that Heather asked her if she could work her regular shift on February 10, 2012, because Heather could not cover; Heather suggested maybe she could close early. The applicant says she told Heather she would go into work but she did not want to. She was still in shock. She says she argued with her husband about it but went into work anyway and found a sign Carol had left saying that because of an emergency the studio was closed and would reopen the next day. Carol says she left a sign but it did not say there was an emergency.

144The applicant further says Heather called her around lunch time on February 10, 2012, to check up on her. Heather told her she was trying to find someone to cover but if the applicant wanted she could close and go home at 2 p.m. that day, which is what she did.

145None of what the applicant says about February 10, 2012 is true. She was initially scheduled to work that day for the entire day 10 a.m. to 6 p.m., but the payroll records provided by the applicant show that she did not work that day at all. Carol May was called in to cover and she worked an unscheduled shift from 10 a.m. to 1:30 p.m. after which M covered until 6 p.m., the studio’s normal closing time. The payroll records are corroborated by the oral testimony of Carol May and the contemporaneous notes on her calendar and by the testimony of Heather McClure.

146With respect to what happened on February 9 and 10, 2012, the applicant’s written submissions make reference more than once to a phrase used by Heather McClure in her testimony. At paragraphs 131 and 147 of her submissions the applicant writes:

She also acknowledged that after [the applicant] had her miscarriage, “it came back on me” from head office.

Heather McClure has also acknowledged that the miscarriage, “came back on me from head office.” The applicant submits that if the miscarriage “came back” on McClure, it is reasonable to infer, on a balance of probabilities, that the miscarriage was an issue for Lindsay Gordon, her boss, as well.

147This reflects a misstatement of the evidence. What “came back” on Heather McClure was the applicant’s failure to notify her on February 9, 2012 that she could not make her shift. The reason this occurred is that a client called head office about the studio being closed. It “came back” to Heather because she had no idea the studio was closed until the next day when it was too late to do anything about it. If Heather had known she might have been able to do something to prevent the closure.

The Teleconference Call

148The next date in the Application with respect to medical appointments concerns February 17, 2012. The applicant says she was scheduled to meet with a specialist that day to discuss a procedure related to her pregnancy.

149On February 16, 2012, the applicant received an e-mail from Heather McClure asking her to attend a teleconference meeting on February 17, 2012 at 10:30 a.m. The meeting was described as mandatory and very important. The applicant was required to participate regardless of whether or not she was scheduled to work that day.

150The applicant says she informed either Heather or Lindsay Gordon that she could not make the scheduled date and time due to the appointment with the specialist so the meeting was changed to accommodate the applicant and was conducted on the afternoon of February 16, 2012 instead.

151Neither Lindsay Gordon nor Heather McClure testified that they accommodated the applicant in this way but they were not asked about it during their testimony. Both of them affirmed their respective witness statements as part of their evidence and those statements say the meeting was held on February 17, 2012.

152The work calendars entered indicate the applicant was scheduled to work both February 16 and 17, 2012, but the payroll records indicate M covered the applicant’s shift on February 17, 2012.

153Given that the applicant’s evidence in this regard is a statement against interest and corroborated in part by the payroll records, and as neither Heather nor Lindsay were asked about this, I accept that the respondent accommodated the applicant’s request to change the date and time of the meeting to accommodate her appointment with the specialist.

154The Application says that this call included Heather McClure and Lindsay Gordon as well as staff from other locations. The witness statement says during this call the applicant was criticized harshly for not being available for her shift on February 9, 2012, and that her employment was threatened.

155The applicant says that when she first dialled into the call Heather and Lindsay were on the line and Lindsay said they were waiting for a couple of other people and were going to be discussing new software, studio performance, and covering shifts. She says they then waited and were joined by the manager from the Danforth location. She was the only other attendee.

156The applicant says a discussion then ensued about what to do when someone cannot come in for a scheduled shift. She says that Lindsay Gordon then asked her to explain why the studio had been closed the afternoon of February 9, 2012. The applicant says this was embarrassing and unnecessary. She had spoken to both Heather and Lindsay about the results of the ultrasound so they knew why the studio was closed that day. In response to Lindsay’s question the applicant says she told them that it was because she lost her baby to which the Danforth manager said “oh” and went silent.

157At that point the applicant says they then discussed the fact that the applicant had not called Heather that day. She says she was told that it was not Carol’s responsibility to call Heather and the applicant should not have asked her to. The applicant says she apologised and said she was not thinking clearly at the time. Lindsay then said this is a good example of what we mean – you cannot have the studio closed whenever you want. People are going to complain. People pay for memberships to have it open. The applicant should have talked to her support manager. According to the applicant, Lindsay then said that this seems to be a common problem and turned her attention to the Danforth manager because the Danforth studio had been closed for two days.

158The applicant also says that during this conversation she was told the respondent did not care what the reason was or about the applicant’s personal circumstances, the studio should not be closed for any reason.

159The applicant also says that Lindsay asked Heather if it was true that Heather had given the applicant permission to close early on February 10, 2012, and Heather confirmed she had but then stated “I didn’t tell her it was something she could do often”.

160According to the applicant, during this teleconference Lindsay and Heather also said that if the situation continued with shifts not being covered management would have to be re-evaluated because it was management’s responsibility to ensure the studio was open and running. The applicant says she took this to be a threat with respect to her employment.

161Lindsay Gordon’s recollection of events is poor. In testimony she frequently answered questions by saying she could not remember. She acknowledges there was a teleconference but does not recall anyone being on it except the applicant and Heather McClure. As far as she remembers it was about new software the respondent was installing. She also acknowledges she may have asked about the studio being closed on February 9, 2012. But she denies being harsh, or saying something to the effect management would have to be re-evaluated, or telling the applicant she did not care about her personal circumstances.

162Heather McClure also says the teleconference call was about new software for the corporate studios. The applicant was picking it up really well and Heather and Lindsay wanted to know if she was willing to help the Danforth studio learn the program as the manager there was having difficulty with the software.

163Heather also says that Lindsay was the only other person involved on the call. She says there were a number of teleconference calls where they would go through the software step-by-step, one-on-one.

164Like Lindsay, Heather acknowledges they may have discussed the studio being closed on February 9, 2012, during this conference call. She says she cannot recall but it is possible the applicant disclosed the miscarriage over the phone to Lindsay. She does not recall talking about it; rather she remembers talking about the meeting at head office on February 8, 2012 that the applicant was supposed to go to and forgot.

165That being said, Heather also denies the applicant’s specific allegations. No one told her they did not care about her personal circumstances with respect to why the studio was closed nor was her employment threatened. Heather says no one with the respondent would speak like that.

166Heather does say that at some point in time after February 9, 2012, she talked to the applicant about the fact that on February 9, 2012, the applicant failed to call Heather when she should have.

The Events Surrounding the Procedure on February 26, 2012

167The final medical appointment mentioned in the Application was on February 26, 2012. That was a Sunday and the studio was closed. The applicant was not scheduled or required to work that day.

168The applicant says that February 26, 2012 was when a medical intervention occurred that ended the pregnancy. That date was arranged when she saw the specialist on February 17, 2012.

169The applicant says that prior to the appointment on February 26, 2012, she spoke to Heather McClure about it and told her that following the procedure she would need a few days off. She says Heather told her she had been through the same procedure, it was not a big deal, and as the applicant was not scheduled to work Monday, February 27, 2012, she should be fine for her scheduled shift on Tuesday, February 28, 2012.

170The applicant also says that after the procedure she called Heather again because she was feeling unwell. She says that Heather told her the job is not that hard, she did not have to clean, do any lifting or use the machines. She says she asked if M could cover and Heather said no, M had school. According to the applicant, Heather said she would have to work the Tuesday shift, scheduling was the applicant’s responsibility and not Heather’s job, and there are things in life that are hard and the applicant needed to learn to deal with that.

171The applicant also says she worked the scheduled shift on Tuesday, February 28, 2012, in part because she was told Diane would not like it and would fire her if she did not work her shift. According to the applicant Heather told her Diane has “had it up to here with you and doesn’t understand why you cannot work some days and not others”.

172Heather McClure denies all of the applicant’s allegations surrounding the procedure on February 26, 2012. She says she has experienced miscarriage and expressed regret to the applicant about her loss but she never had the same procedure as the applicant did so she would not have said otherwise. Diane played no role in scheduling and says she had no knowledge at the time of the applicant seeking time off. Heather says she never told the applicant she could not have time off or that she would be fired if she did not work her shift.

173The payroll records provided by the applicant show that she did not work her scheduled shift on February 28, 2012; rather, M covered that shift. The applicant returned to work on February 29, 2012.

174As the payroll records contradict the applicant’s testimony concerning being forced to work on February 28, 2012, Heather McClure’s testimony about what happened during this period is more credible and reliable than that of the applicant.

Credibility and the Applicant’s Allegations concerning her Pregnancy

175From the perspective of the totality of the evidence concerning the applicant’s pregnancy, it seems to me that the logical starting point is those factual allegations clearly supported or negated by a preponderance of the evidence. They include the following:

• The applicant never had a pregnancy-related medical appointment she could not attend and had to reschedule. The assertion in the applicant’s witness statement that she was forced to cancel and reschedule appointments because management did not facilitate staff coverage for her is not supported by any of the evidence.

• During the course of her testimony the applicant made new assertions alleging for the first time that she was forced to work on February 10, 2012, the day after she found out her pregnancy was not viable; and on February 28, 2012, following a medical procedure on February 26, 2012. These assertions are directly contradicted by the preponderance of the documentary and testamentary evidence. They are untrue and appear to have been fabricated.

• The applicant’s testimony about the conference call of February 16, 2012, is detailed and particularised in comparison to that of Heather McClure and Lindsay Gordon but includes the fabrication concerning being forced work on February 10, 2012.

• There is no dispute that the applicant was told at some point in time after February 9, 2012, that instead of calling Carol May she should have notified her manager that she could not make her shift on February 9, 2012, due to her pregnancy-related emergency.

176These findings support the overall narrative offered by the respondent and not the applicant. So where the evidence of the two parties is essentially an equally detailed but different version of events, the only reasonable conclusion open to the Tribunal is that the applicant’s evidence is insufficient to meet her burden of proof and the respondent’s evidence is more credible and reliable than that of the applicant.

177With respect to the teleconference call where the applicant’s version of events is detailed and particularised in comparison to that of Lindsay Gordon and Heather McClure, I would observe that in many situations that would support a finding that the applicant’s evidence is more credible than that of the respondent. The difficulty is that the applicant’s evidence with respect to the contents of that call includes an event that is clearly a fabrication. If it is true that the teleconference call was primarily about software training as Lindsay and Heather maintain, then the vagueness of their memories concerning the call is understandable.

178Given all of the above, I am not satisfied that it is more likely than not that any of the respondent’s employees made negative remarks about the applicant becoming pregnant, or that the respondent failed to accommodate pregnancy-related medical appointments or events with time off or assistance with scheduling, or that the applicant was told her absence on February 9, 2012 would possibly result in demotion, termination, or the re-evaluation of management.

Subsequent Events and the Termination of the Applicant’s Employment

The Complaint Letter

179The applicant says that on March 16, 2012, she drafted a formal letter of complaint to Diane Atterbury that she sent via mail and e-mail. Diane Atterbury says she never got this letter and if she had she would have acted on it and responded. She also says that after the respondent received the Application she went back and double-checked and could find no e-mail from the applicant.

180The copy of the letter provided has no address and refers to Diane as “Dianna”. “Diane” is the proper spelling of her first name and part of her e-mail address with the respondent. The applicant says she sent the letter via e-mail to the respondent’s general e-mail box after she received no reply to the copy sent via conventional mail.

181The letter is primarily about scheduling and in particular, it complains about Carol May’s limited availability. It does not ask that the applicant be given time off. It does mention a recent medical appointment and complains that she was told by Heather McClure she either had to cover the shift or arrange someone else to work it, but there is no indication as to when this medical appointment actually was. The letter refers to her miscarriage but only in the context of it being a sad event.

182The applicant says she sent this letter by e-mail from her personal e-mail address. She produced a document that appears to be e-mail routing information that the applicant says is related to this letter. But it is not particularly helpful as all it indicates is the applicant sent herself an e-mail from her personal e-mail address to her personal e-mail address.

183The applicant also says she informed Heather McClure that she had sent this complaint letter to Diane and that Heather told her she had just given Diane a reason to fire her. Heather McClure was not asked about this during her testimony but her witness statement was affirmed as part of her evidence and it says she never told the applicant Diane wanted to or had a reason to fire her.

184So the difficulty with the applicant’s allegations based on her having sent this letter is that the applicant may in fact have sent it, but the evidence is insufficient to support the conclusion that Diane Atterbury is not being truthful when she says she did not receive it. Given that the letter indicates the applicant was misspelling Diane’s name it could not have reached her at her personal e-mail address and it would not be surprising if an e-mail to a general mailbox also did not reach her.

185In other words, the allegation that the respondent breached the procedural duty to accommodate by failing to investigate the complaints in this letter cannot succeed because the evidence is insufficient to establish it is more likely than not the respondent received the applicant’s complaint.

The Mediation of March 20, 2012

186The applicant says on March 1, 2012, she informed Heather McClure that she had to attend mediation related to legal proceedings the applicant was involved in. The applicant says that it was difficult to arrange coverage for that date because M quit as the job was too demanding and M felt bullied to work too many hours. According to the applicant this is why Heather agreed to cover for the applicant’s shift on March 20, 2012.

187In contrast to the applicant’s evidence, Heather McClure says she found out about this mediation session the day before and payroll records indicate M worked up until March 26, 2012. The work calendars show that the applicant scheduled herself to work the afternoon to evening shift on March 20, 2012.

188Text messages between the applicant and Heather McClure support Heather’s contention that the day before this mediation occurred the applicant told Heather about it. The applicant wanted to close the studio once Carol completed the early shift. Heather told her they could not close the studio so the applicant said she would try her best to make it to the studio for her shift but it was a legal proceeding and the applicant could not be forced to work. Heather told her that if she could not make it to the studio in time for her shift the next day, the applicant had to inform her by 2 p.m. so Heather could go in to cover. Heather also told her that she would have to submit proof of the mediation to head office. Both parties agree Heather worked the applicant’s shift that day. The respondent says the applicant never provided the requested documentation to show she had mediation that day. The applicant says she did but produced no copy of it for the hearing before the Tribunal.

Scheduling Challenges

189After that, the applicant hired another part-time employee for the studio who I will refer to as TM. TM started working for the respondent on March 28, 2012. Essentially TM was a replacement employee for M.

190The next thing that happened was that Carol May quit as a direct result of the applicant scheduling her for shifts she was unable to work due to her child care needs and commitments.

191In mid-March 2012, Carol May provided the applicant with the dates she was available to work in April 2012. Carol’s children are involved in dance and every year April is a month filled with competitions, particularly on Thursdays, Fridays and Saturdays. Prior to 2012 this had not been a problem. Because M had left, the decrease in hours that Carol was willing to work meant that the applicant would have to cover more shifts in April until TM was trained. The applicant complained to Carol about this essentially telling her she had to agree to work more shifts. When Carol said no, the applicant raised the issue with Heather. That led to an overall discussion of the respondent’s expectation that studio managers would work full-time hours.

192I would note at this point that the payroll records indicate that in the month of March 2012, the applicant worked on average 29 hours a week and slightly less than that in the month of April 2012.

193By way of reference, the payroll records show the applicant worked on average: 28 hours a week in December 2011; 30 hours a week in January 2012; and 20 hours a week in February 2012. They also indicate that prior to being promoted to the manager’s position, the applicant worked in November of 2011 an average of 27 hours a week.

194The applicant says that this discussion related to the expectation she work full-time hours meant she had to cut Carol May’s hours when she went to construct the schedule for May 2012, and that is why Carol quit. Carol says she quit when she saw the May schedule because the applicant had scheduled her to be in the studio after 2:30 p.m. on weekdays and the applicant knew Carol could not do that because she needed to be home for her children. The work calendars entered into evidence confirm the applicant had scheduled Carol for shifts past 2:30 p.m. Heather confirms that Carol called her and told her she was quitting because of the applicant’s behaviour. April 25, 2012 was Carol May’s last shift.

195The payroll records indicate in May 2012 the applicant’s average work week increased to about 36 hours a week.

The Owen Sound Meeting

196The next significant event in the applicant’s employment involved training dates in May 2012. All of the managers of the studios were expected to attend a particular meeting in Owen Sound. E-mail correspondence filed by the parties indicates the applicant did not believe the content of the meeting would assist her. Because of her resistance to attending, Lindsay Gordon eventually told her she did not have to go.

Paul Swaby’s Evidence

197By the end of May 2012, Paul Swaby was transitioning into the position of corporate studio manager. Prior to that he was doing business development, sales, and training. He went from studio to studio teaching people how to use the respondent’s machines. He did trade shows and home shows to attract more clients. Just before moving into his new position he visited the studio where the applicant worked to do a demonstration.

198Paul Swaby says that during the time he was at the studio the applicant took the opportunity to tell him about her miscarriage. She became emotional and complained that she had not been given time off to grieve. He promised to report her concerns to head office and he did; he spoke to Lindsay Gordon about it. Lindsay told him she was aware of the applicant’s miscarriage. Neither Paul nor Lindsay understood the applicant to be asking for time off at that point in time; rather they understood her to be referring to the events of February 2012.

199After Paul Swaby started managing the corporate studios from head office he instituted daily group conference calls with all of the studio managers. The calls were short but designed to improve sales through sharing of success stories and best practices and by fostering a team spirit. He also set up in-person meetings at head office so managers could meet each other face to face as well as weekly one-on-one telephone meetings. He recalls the applicant being reluctant to travel to head office for meetings which was problematic.

The Termination of the Applicant’s Employment

200Paul Swaby is the one who decided to terminate the applicant’s employment. He says the decision was reached in mid-June of 2012 in consultation with Diane Atterbury, who was his direct report. He says his overall focus was about sales but one of the primary things the respondent had done in an effort to improve sales nationally was to provide training with the person who was the speaker at the Owen Sound meeting; so he was concerned about the applicant’s failure to attend that meeting. She was the only manager who did not go. He was concerned about her reluctance to attend meetings at head office.

201He says he was looking at overall performance including the cost of running the studio, where they were losing money, training needs and effort at the beginning. He says, “When you are in the role of manager you want to do whatever it takes.” He wanted someone who was more eager to do those things and was potentially capable of turning the sales trend around. In other words, the primary reason for her termination was his perception that the applicant was not particularly interested in working hard and achieving sales results.

202This perception of the applicant as not being particularly enthusiastic is corroborated by the e-mails between Lindsay Gordon and the applicant concerning arranging transportation for the applicant to attend the Owen Sound meeting. At one point Lindsay Gordon writes to the applicant that she is disappointed with her response.

203Further, the parties all agree that the applicant was told upon being promoted to the manager’s position that it was a full-time position and she would be expected to work more hours. But she did not. There is also no dispute that her lack of work hours was pointed out to her by Lindsay Gordon and Heather McClure when she complained about Carol May’s limited availability. Her work hours did not increase to full-time until May 2012.

204The financial documents filed into evidence by the respondent show that the studio where the applicant was the manager was consistently operating at a loss and its monthly sales were lower than average. Diane Atterbury says that in November 2013 the location was closed permanently due to poor sales.

205The day before the applicant’s employment was terminated, TM sent an e-mail to Paul Swaby complaining about the applicant. Paul Swaby says the decision to terminate the applicant had already been made so he wrote back saying that TM might be surprised with just how fast he works.

206TM’s e-mail essentially is a plea for assistance as she wanted to change the shifts she was working from evening hours to morning hours and the applicant was not willing to do that. But it also contains allegations that: the applicant was padding her hours by falsely reporting when she was working; clients were complaining about the applicant constantly bringing up her miscarriage; the applicant was spending working hours with friends in the studio rather than clients; and the applicant was not promoting the respondent to potential clients.

207On the morning of June 27, 2012, Paul Swaby attended the studio and delivered the respondent’s letter of termination to the applicant by hand. The letter did not provide reasons for the termination but says the termination was for the reasons discussed in person when it was delivered. All Paul Swaby actually told the applicant was that it was a corporate decision. The applicant says the studio was filled with clients. Paul Swaby says that is not true; the only people there were family members of the applicant.

208The applicant correctly asserts in her submissions that the issue with respect to the termination of her employment is whether or not concerns related to the events around the applicant’s pregnancy, or her race or creed, were a factor in the decision to terminate her employment. If it was, then the termination was discriminatory.

209With respect to race or creed, and as stated above, the evidence is insufficient to establish the factual basis the applicant alleges. The same is true with respect to her allegations concerning age.

210With respect to the applicant’s pregnancy, given the totality of the evidence it would not be surprising if part of the decision to terminate the applicant’s employment was pregnancy-related.

211For example, there was some evidence to indicate clients complained to the respondent about the applicant constantly talking about her miscarriage and weeping in the workplace. This would have been problematic for the respondent as the studios were supposed to be upbeat and happy places in order to attract customers.

212But Nathalie Murphy testified the applicant was weeping in the workplace from the very first training shift she did and both Carol May and Nathalie personally observed the applicant talking inappropriately about intimate and personal matters during the first month of her employment as a part-time fitness instructor. So if the applicant’s tendency to be overly emotional and personal was a factor in the termination, the evidence would suggest that that was a longstanding issue and not necessarily related to the pregnancy.

213More importantly, none of the witnesses or the applicant assert that this kind of behaviour on the part of the applicant played a role in her termination. The applicant specifically asserts that any allusion to customer complaints is an after the fact pretext for the termination.

214I would also observe that the applicant’s complaint to Paul Swaby at the end of May 2012, about not having time to grieve her miscarriage, supports the contention that at some point in time she asked for time off and help arranging it and did not receive it. The problem is that there is no credible or reliable evidence to establish when, how or to whom she did ask. Even the applicant’s own complaint letter to Diane Atterbury does not say anything specific about asking for an extended leave or needing to take time off. In fact, with respect to taking time off, her letter of March 16, 2012 specifically says “until just recently it has been no problem”. The balance of the letter is a complaint about Carol May’s availability.

215What this means is that although it is possible the events around the applicant’s pregnancy may have been a factor in the termination decision, the evidence is insufficient to establish that it is more likely than not that it was. The applicant has failed to meet her evidentiary burden.

216As a result of all of the above, I am not satisfied that the respondent breached the Code as alleged by the applicant.

DECISION

217The Application is dismissed.