Borja v. Bazos, 2016 HRTO 1275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Riza Lina Borja

Applicant

-and-

Sam Bazos

Respondent

DECISION

Adjudicator: Josée Bouchard

Date: September 29, 2016

Citation: 2016 HRTO 1275

Indexed as: Borja v. Bazos

APPEARANCES

Riza Lina Borja, Applicant

Self-represented

Dr. Sam Bazos, Respondent

James R. Olchowy, Counsel

INTRODUCTION

1The respondent, Sam Bazos, has been practising dentistry in the province of Ontario since 1990 and is a licensed member in good standing of the Royal College of Dental Surgeons of Ontario. Dr. Bazos is also the Director, President and Secretary of Bazos Dentistry Professional Corporation (“BDPC”), a dental office in Toronto. The respondent is the only dentist in the office. BDPC also has three employees: Kula Bazos, the office manager and the respondent’s spouse; Tatyana Aleshkina, the dental assistant; and Anna Karagianis, the current receptionist.

2The applicant Riza Lina Borja began her full-time employment as the BDPC receptionist on August 4, 2015, and while still on probation, was terminated on October 6, 2015.

3The applicant’s termination led to numerous exchanges of texts and emails between the applicant and Ms. Bazos regarding the issuance and accuracy of the applicant’s Record of Employment (“ROE”). The termination and dispute over the ROE resulted in this Application, filed on November 2, 2015 alleging discrimination with respect to employment because of sex, sexual solicitation or advances and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4The applicant alleges in this Application that not only was she replaced by a much younger and less experienced receptionist, but the respondent touched and grabbed his penis every time he spoke with her and while giving her instructions on how much to charge his patients.

5I find that the applicant failed to establish the allegations. There is no evidence to conclude that the respondent discriminated against the applicant based on her age. Moreover, the evidence concerning the alleged sexual harassment is not credible and I dismiss those allegations as well.

EVIDENCE

6The applicant testified but did not call other witnesses.

7With the consent of the parties, Dr. Bazos, Kula Bazos, Tatyana Aleshkina, and Anna Karagianis filed detailed sworn affidavits as evidence in chief. In addition, they testified for the respondent.

Credibility

8This is a case where credibility is key. In making the finding, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed. It held:

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.

9Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors that have been considered by the Tribunal in assessing reliability and credibility, including;

a. the internal consistency or inconsistency of evidence; b. the witness’s ability and/or capacity to apprehend and recollect; c. the witness’s opportunity and/or inclination to tailor evidence; d. the witness’s opportunity and/or inclination to embellish evidence; e. the existence of corroborative and/or confirmatory evidence; f. the motives of the witnesses and/or their relationship with the parties; g. the failure to call or produce material evidence.

See Shah v. George Brown College, 2009 HRTO 920 at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage, 2009 HRTO 717 at paras. 35-36.

Applicant

10The applicant’s testimony was inconsistent, she had difficulty recollecting or understanding important alleged facts and she was inclined to tailor and embellish her evidence. As such, I give little weight to her testimony. The following are some of the observations that have led me to this conclusion:

a. The applicant testified that, after her termination on October 6, 2015, it took her three months to find a new full-time position in a dental office and at the time of the hearing, she maintained that position. The applicant then contradicted herself by admitting that since her employment with the respondent she has not found a full-time position but instead lost three positions and remained without work at the time of the hearing. b. Although the applicant testified that the respondent ruined her life by terminating her employment and making it very difficult to find a position, she later contradicted herself by saying that she did not mind having been terminated because she can easily find another position. c. After termination, the applicant began a long exchange of texts and emails with Ms. Bazos about her ROE. She appeared, however, to have a selective memory of those communications. When asked under oath about each text and email, she confirmed the exchange and clearly remembered some of the emails and texts but not all. Most importantly, she often denied having seen a text or email but clearly remembered the reply. d. Perhaps the most flagrant lapse in memory relates to emails that the respondent sent in the context of this Application as follows:

• The respondent sent an email on May 27, 2016 to the applicant copying the Tribunal. The email and attached letter were particularly important as they included the respondent’s request for further production of documents following the receipt of the applicant’s disclosure package. The applicant testified that she did not receive the respondent’s email. She was, however, able to recall her reply to the email, which read: “What are you talking about I didn’t sent it to yoh (sic), its your fault [for] not receiving it because you are [on] paternity leave. Stop lying by the name of God!”.
• The applicant had a similar reaction to the respondent’s follow-up email sent on June 24, 2016 to the applicant. The applicant first testified that she did not receive the email but then subsequently remembered receiving the email but not the attachment. She accused the respondent of having sent the email to her, copying the Tribunal, but including the attachment to the Tribunal email only. When asked how this could happen as there was only one June 24, 2016 email, the applicant replied that the attachment must have been at the bottom of a series of emails and she did not scroll down to find it. When the respondent indicated that the June 24, 2016 email was a stand-alone email, the applicant had no further explanation as to why she did not receive the attachment. e. The applicant often misinterpreted important relevant facts. Ms. Bazos emailed the applicant on October 20, 2015 to explain why she had been terminated. The email reads as follows: “Unfortunately your experience as a dental receptionist is not as extensive as we require for a full-time position. So the definite reason is unfortunately you do not have the experience we require to fulfill this position.” The applicant interpreted this to mean that the respondent did not need an experienced employee in that position. f. In her Application, the applicant alleged that the respondent touched and grabbed his penis every time he gave her instructions. When cross-examined about the accuracy of the information in the Application, the applicant testified that in fact, the behaviour did not always occur. She was vague in her recollection about when the behaviour commenced but was certain that when it did, it occurred each time the respondent interacted with her. This is an implausible depiction of events. g. The applicant indicated in the Application that she told the respondent to stop the alleged sexual harassment while in her testimony she was uncertain that she had done so. In light of the seriousness of the alleged behaviour and the impact that the applicant says it had on her, it is highly unlikely that she would not recall whether she asked the respondent to stop the alleged behaviour. h. The applicant embellished her evidence and was unwilling to concede anything. She testified that she is the perfect employee and repeatedly said she did not make mistakes. The applicant’s evidence on her performance at work was contradicted by the evidence of two reliable witnesses. i. The applicant also exaggerated when giving her evidence. For example, she testified, without substantiation, that she sent at least 150 résumés for job applications every day, even when she was working full-time. She told the Tribunal she had to beg for a month for her ROE when the ROE was in fact issued within two days of her termination. She considered that the Tribunal and the respondent had harassed her about confirming her mailing address when in fact the Tribunal sent three emails before it received the address confirmation from her.

11The applicant failed to produce any corroborative, confirmatory or material evidence, despite numerous requests by the respondent and two Case Assessment Directions (“CADs”) dated July 13, 2016 and July 22, 2016 directing her to comply with the disclosure/production requirements under the Tribunal’s Rules of Procedure. The applicant confirmed that she received and read the CADs, but she failed to comply with them. She was insistent that she never received the respondent’s request for production sent to her via mail and email. I find that, notwithstanding her denial, the applicant received the respondent’s letters and request for production emailed and delivered to her in May and June 2016 and not returned. She replied to the communications but ignored the request for production.

12As a result of the failure to comply with the CADs and request for production, the applicant provided very few particulars of the allegations ahead of the hearing. The applicant stated in cross-examination that she had in her possession numerous pieces of documentary evidence but that she either was not asked for them or thought they were not relevant.

13I find the applicant’s responses to the respondent’s communications disrespectful and indicative of an unwillingness to comply with the Rules of Procedure. The applicant’s failure to produce arguably relevant documents in her possession and the respondent’s extensive evidential record have strongly influenced my findings and conclusions.

Respondent’s Witnesses

14In addition to their detailed sworn affidavits, the witnesses’ testimonies for the respondent were clear, precise, not contradicted, plausible and consistent. I find them to be credible witnesses.

Background

The Hiring and the Termination

15In June 2015, in her role as office manager, Ms. Bazos approached a recruitment agency to identify candidates for the position of receptionist at BDPC. Ms. Bazos made it clear that the position was probationary for the first three months. In mid-July 2015, the recruitment agency referred the applicant to Ms. Bazos and on July 21, 2015, the respondent and Ms. Bazos interviewed her. It is not contested that during the interview of the applicant, the respondent and Ms. Bazos informed the applicant that the first three months were probationary. They told her that upon the successful completion of the probationary period, the respondent and Ms. Bazos would determine whether the applicant was a good fit and whether she would be offered a full-time, indefinite term position as a receptionist.

16The respondent testified that he made it quite clear during the interview of the applicant that the receptionist in his office has two main responsibilities: to manage the accounting of his practice and to schedule patients’ appointments. The applicant purported to be a seasoned and experienced employee who could fulfil the position.

17The respondent testified that, shortly after the applicant began her employment as a receptionist with BDPC on August 4, 2015, he quickly noticed that she was not detail oriented and tended to make administrative assumptions in carrying out her duties and responsibilities. In his view, the applicant did not take directions well and he was particularly concerned about the month-end accounting process. He noticed errors in the reconciliation of accounts. There were some partial entries that made it seem that patients’ bills remained fully unpaid when in fact the patients had made a partial payment. He also noticed that insurance claims had not been entered correctly and there were credit card transaction issues. He claimed that the applicant was more focused on expediency than accuracy.

18Ms. Karagianis confirmed the errors in her evidence. Ms. Karagianis, the current BDPC receptionist, had worked for BDPC in that capacity between September 2004 and September 2014. She resigned in 2014 to attend to personal matters but returned on October 7, 2015 when the respondent asked her to. When she returned, Ms. Karagianis found numerous accounting discrepancies, data entry mistakes and scheduling errors. Patients were also voicing complaints about the applicant.

19The respondent testified that the applicant sometimes became confrontational with him when told about her mistakes. This is confirmed by Ms. Aleshkina’s evidence. Ms. Aleshkina has been working as the respondent’s dental assistant for about ten years and worked very closely with both the respondent and applicant. She recalled that on a couple of occasions, the applicant acted inappropriately with the respondent. Her evidence shows that on one occasion, at the end of September or beginning of October 2014, the applicant “blew up at Dr. Bazos when he calmly explained that an error had been made”. Ms. Aleshkina’s evidence is that the applicant exclaimed, impatiently and with an irritated tone of voice “let me figure it out!” and would not let the respondent finish his sentence. Ms. Aleshkina did not like how the applicant treated the respondent on that particular occasion and she told the applicant that she was wrong and should apologize. The respondent and Ms. Aleshkina’s evidence is that this occurred more than once.

20The applicant testified that she never made a mistake at work. She recalled that Ms. Aleshkina told her to follow the respondent’s instructions. In her view, the respondent and Ms. Aleshkina mistakenly believed that when the applicant raised her voice or was loud, it meant she was angry. When told that Ms. Karagianis had found errors in her work, the applicant replied that Ms. Karagianis is a liar.

21The respondent testified that approximately two months into the applicant’s probationary period, he decided that she was not a good fit as a dental receptionist at BDPC. On October 6, 2015, when Ms. Aleshkina and all the patients had gone, the respondent and Ms. Bazos met with the applicant. The respondent said to the applicant: “Today is your last day you are working for me. I have to let you go. There have been too many bumps in the road and I cannot see this working out. You are simply not a good fit for my office.” According to the respondent, the applicant responded by describing how good she is. The respondent replied that the decision was final and he left the applicant with Ms. Bazos.

22Ms. Bazos provided evidence that she gave the applicant two cheques that day, her last pay cheque and a cheque for outstanding vacation pay. The applicant testified that she never received her vacation pay. However, during his cross examination, the respondent reminded the applicant that Ms. Bazos had given her two cheques, including the vacation cheque. He showed her the evidence of the vacation cheque that included the applicant’s signature at the back. The applicant appeared less certain of her position and indicated that she would verify her files.

The Dispute about the ROE

23The following evidence does not relate directly to the Code allegations of age discrimination and sexual harassment or solicitation, but provides context around the dispute about the ROE, which led to the filing of this Application.

24Between October 6, 2015 and October 10, 2015, the applicant sent fourteen texts at all hours of the day and night to Ms. Bazos about the timely receipt of her ROE. She first asked for her ROE to be mailed and subsequently requested that it be emailed. She imposed ultimatums: in the first text, she asked that her ROE be in her mailbox within 5 business days or she would file a legal complaint with the Employment Insurance office. In a subsequent text she states “5 days maximum. That is my final decision”. She threatened to file legal complaints: “I want my ROE within this week […] otherwise I will take legal complaints to the Employment Insurance office” and “the Ministry of Labour will deal with you”. And she called Ms. Bazos names: “and I don’t want to talk to you anymore because you are a liar”.

25Ms. Bazos respectfully replied to these texts, keeping the applicant apprised of the progress in issuing the ROE. Ms. Bazos explained that the employer has five days to issue the ROE. The day after the termination, Ms. Bazos informed the applicant that she was setting up her system to file online. She indicated that, to ensure expediency, whatever form she received first from the government, mail or online, she would fill out and send to the applicant. As soon as she completed and sent the ROE by mail on October 8, 2015, two days after the termination, Ms. Bazos informed the applicant. She emailed the ROE to the applicant on October 10, 2015 and texted the applicant to let her know.

26After this series of texts, the situation escalated with the applicant’s protest of the code designation for the reason for issuing her ROE. On October 15, 2015, the applicant emailed a note to the respondent and Ms. Bazos to request “a new and correct ROE”. The applicant was adamant that the “M” code for dismissal meant misconduct and the proper codes for her situation were either A (shortage of work) or K (exceptional circumstances). Between October 15, 2015 and October 21, 2015, the applicant sent five emails to the respondent and/or Ms. Bazos urging them to modify the ROE. The emails again included ultimatums, “I will give you 5 days to give me a new one”; threats of legal action, “I will [begin a] legal action with the Ministry of Labour” and “I will fight for this until I die”; and calling the respondent and Ms. Bazos names, “I can see how liars” you all are.

27The applicant was convinced that M was the wrong code and that it meant termination for misconduct. Even when counsel for the respondent explained to her that M was in fact the proper code, she insisted that M meant misconduct and was wrong.

28The applicant testified that she asked for advice about the proper code identification to the Ministry of Labour, the Employment Insurance office and the “Ministry of Human Rights Commission” (note: in testimony, the applicant also referred to the Human Rights Commission and the Human Rights Legal Support Centre and explained that she did not know the difference or which office she had approached. I refer to the “human rights office” to mean the office that allegedly provided advice to the applicant). She indicated that each of those offices advised her that M did not apply to her situation but K and A did. I find it highly unlikely that any of these offices provided such advice as it would be advice beyond the scope of their mandate and/or inaccurate advice.

29Ms. Bazos testified that she found the series of communications extremely challenging. She felt bullied and threatened by the applicant. She felt as though the applicant was seeking to force her to do things that were clearly improper or illegal.

Age Discrimination

30It is only in her October 20, 2015 email to the respondent and Ms. Bazos that the applicant alleged for the first time age discrimination and human rights violations: “Your main reason [for] letting me go as you both told me that I JUST DO NOT FIT [IN]TO YOUR OFFICE (capitalized in email). I tried many time (sic) to ask you both what that means but you said the same thing over and over again that I am not a good match and fit to your office. I conclude that you let me go because of my age even thou (sic) you both know that I am capable to do the work. Your office even replaced me with young and less experienced. I want to take action against you and Dr. Bazos […]”

31The applicant is 51 years old.

32The applicant testified that Ms. Bazos informed her that she was terminated because BDPC did not need an experienced receptionist. She explained that, after doing some research, she concluded that this meant that BDPC was looking for a younger and less experienced receptionist and this constitutes age discrimination.

33The applicant admitted that she had never met the new receptionist. However, she testified that she is an expert in voices. She can tell the age of someone on the phone by their voice, their language, and the way they talk and compose sentences. In her view, she has acquired this expertise as a result of her long experience of talking to people over the phone. When the applicant called the office, she was certain that the person who answered, the replacement receptionist, was very young, between 25 and 30 years old.

34The applicant confirmed that the respondent never commented on her age while she was employed at BDPC but she recalled that he asked about her birthday.

35The respondent takes the position that age was never a factor in hiring or terminating employees. Ms. Karagianis, the replacement receptionist, testified that she is 48 years old. The respondent re-hired her because of her extensive experience as a dental receptionist including ten successful years with the respondent. She is also certified to perform radiographs of patients in the dental setting, which the applicant is not.

36The respondent denies having asked the applicant when she was born. Instead, the respondent testified that during the interview, it is the applicant who offered information about her age. She was asked to tell the respondent and Ms. Bazos about herself and she replied: I am 50 years old and have no husband and no children so I can work anytime anywhere.

Alleged Sexual Harassment

37In her Application, under the rubric “Other important information the Tribunal should know”, the applicant noted that the respondent showed unethical behaviour at work by touching his penis every time he talked to her. She also wrote that “he is grabbing his penis while giving instructions [about] how much he will charge the patient”. She wrote that she found this behaviour disgusting, it made her uncomfortable “every minute at my work place”, it made her scared and disgusted and it gave her nightmares.

38Later in the Application, the applicant added that between August 4, 2015 and October 6, 2015, the respondent was “always touching and grabbing his penis” while he talked to her. She wrote that it happened each time he had a question about the patients’ billing. She wrote the following as an example “normally we have 8 patients a day therefore he will grab his penis 8 times a day in front of me.” She noted in the Application that when she asked him to stop doing that, he just walked away and did it again with the next patient. She wrote that she was not sure if he just ignored her or if he just did not hear her.

39The respondent cross-examined the applicant about the accuracy of the information in the Application. The applicant testified that the conduct did not happen all the time. For example, it did not occur the first week of employment. She was not entirely sure when the behaviour began, at the end of the first month or during the second month, but she was certain that once the behaviour began, it happened every time the respondent interacted with her. In her view, the respondent did this because “I am single and he thinks I like to have sex.”

40Although the applicant indicated in her Application that she told the respondent to stop the behaviour, in testimony, she was uncertain that she had done so.

41The applicant testified that she contacted “the human rights office” to discuss the issue of the ROE and they advised her that she could file an application with this Tribunal. It is only when she began filling out the Application that she remembered, as an afterthought, about the respondent’s alleged inappropriate sexual behaviour. Yet, the applicant testified that the respondent’s behaviour disturbed and disgusted her. If the behaviour had in fact occurred, it is highly unlikely that the applicant would simply forget to mention it until she began filling out her Application. In addition, the explanation that she contacted the human rights office again to confirm that this was the type of behaviour that would contravene the Code is implausible.

42The applicant was asked to describe her typical day with the respondent. She gave a detailed account, but failed to mention any sexual behaviour on the part of the respondent. When asked about this omission, she testified that she was not asked about it. Again, if the applicant had been so disgusted by the behaviour, it is highly improbable that she would fail to mention it in testimony, particularly before the Tribunal that is mandated to make a decision about whether the behaviour occurred.

43One would have expected that the applicant would have shown negative emotion in the workplace had the alleged conduct occurred. However, the applicant testified that until her termination, while working with the respondent, she had a very “bubbly” personality. According to the applicant, her personality changed after her termination, which explained her difficulty in finding a new position. The applicant also testified that she wanted to work for the respondent for at least a year, not the attitude expected of someone who was “disgusted” by the respondent’s behaviour. The record of evidence shows that throughout her employment with the respondent, the applicant appeared very happy. Ms. Aleshkina described the applicant as seeming very happy both inside and outside the office. Ms. Bazos noted that whenever she stopped by the office, the applicant was friendly and polite, and looked happy to be there. She seemed energetic and she never raised concerns about anything. The respondent remembered the applicant saying to him that she wanted to work for him “forever”.

44The applicant also testified that she told all of her friends in the United States, Montreal and Toronto and employees of the Ministry of Labour, the Employment Insurance office and the “human rights office” about the behaviour. Yet, she did not produce any witnesses or evidence to support this.

45The witnesses, including the applicant, described the area where the receptionist sits as open to patients and staff. The respondent described the office as busy with patients and their friends and relatives, often children, in the waiting room and going back and forth from the operatory room to the waiting room. The receptionist’s desk separates the hallway to the operatory rooms and the waiting room. It would be foolhardy for the respondent to engage in the type of behaviour the applicant said he engaged in given the likelihood he would be observed. The respondent denied the allegations and his witnesses denied seeing anything untoward.

DECISION

Age Discrimination

46The applicant has the onus of proving, on a balance of probabilities, that her age was a factor in the respondent’s decision to terminate her employment. The applicant presented no evidence to support her allegation, only her false theory that her replacement was much younger than she is. The evidence on the other hand is conclusive that the applicant’s replacement is very close in age to the applicant. This allegation is dismissed.

Sexual Harassment

47The applicant also has the onus of proving, on a balance of probabilities that the respondent either sexually harassed her or discriminated against her based on sex. I find, based on the implausible depiction of the respondent’s alleged misconduct, the poor credibility or reliability of the applicant’s evidence and the complete lack of evidence in support of the allegations that the respondent did not engage in the type of sexual behaviour the applicant said he engaged in. The respondent did not sexually harass, or discriminate against the applicant based on her sex.

ORDER

48The Application is dismissed.

Dated at Toronto, this 29^th^ day of September, 2016.

“Signed By”

Josée Bouchard

Vice-chair