HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bill Koitsis
Applicant
-and-
Ajax Automobile (2008) Inc. o/a Ajax Nissan
Respondent
A N D B E T W E E N:
Bill Koitsis
Applicant
-and-
Midway Nissan (Whitby/Oshawa) Ltd.
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Koitsis v. Ajax Automobile (2008) Inc.
APPEARANCES
Bill Koitsis, Applicant
Self-represented
Ajax Automobile (2008) Inc. o/a Ajax Nissan, Respondent
Israel Balter, Counsel
Midway Nissan (Whitby/Oshawa) Ltd., Respondent
Hermie Abraham, Counsel
1The applicant filed two Applications under the Human Rights Code, R.S.O., 1990, c. H.19, as amended (“the Code”).
the applications
2File 2014-19285-S was filed on November 5, 2014, under section 45.9 of the Code and is an Application for Contravention of Settlement (“the Ajax Application”) against the respondent Ajax Automobile (2008) Inc. o/a Ajax Nissan (“Ajax”). The applicant is a former employee of Ajax and filed an application against Ajax pursuant to section 34 of the Code (“the first application”). The parties reached a settlement of the first application by entering into minutes of settlement dated July 8, 2014 (“the minutes”). The applicant alleges that Ajax breached the confidentiality clause of the minutes by making negative comments about him and tarnishing his reputation, such that he has not been able to obtain other employment, specifically at Midway Nissan (Whitby/Oshawa) Ltd. (“Midway”). Ajax filed a Response denying that it breached the minutes. It submits that the applicant told others that he filed an application against Ajax and is having difficulty obtaining other employment because of his reputation.
3File 2014-19286-I was filed on November 5, 2014, under section 34 of the Code against Midway. It alleges discrimination in employment on the basis of gender identity, gender expression, age, association with another person, and reprisal (“the Midway Application”). The applicant alleges that on or about November 3, 2014, he approached Midway’s sales manager, Charles Chun, about working with Midway, and that Mr. Chun told him that Midway would not hire him because he filed a human rights application against Ajax. Midway filed a Response. It denies the allegations against it and states that it was not aware of the applicant’s application against Ajax until it received the Midway Application. It states that it has not hired the applicant, over the years, because of his difficult and aggressive reputation, which was reinforced when he visited the dealership on November 3, 2014 and spoke with Mr. Chun.
4An Interim Decision, 2015 HRTO 799, was issued determining that the two files would be heard together (“the first Interim Decision”).
the hearing
5A joint hearing was held on November 12 and 13, 2015, and February 9, 2016. The November 13, 2015 hearing date ended at 2:00 p.m., as religious accommodation for one of the respondent counsel, over the objection of the applicant who felt that ending early was unfair and prolonged the hearing.
6After the November 2015 hearing dates, the applicant sent an email to the Tribunal identifying two other witnesses whom he wanted to call in reply to the respondents’ evidence. In an Interim Decision, 2015 HRTO 1721, I denied the applicant’s request to have these two witnesses testify as I found the applicant would be splitting his case.
7The Tribunal heard evidence from, and in this order, the applicant and his spouse, Miralyse Koitsis. Both respondents called Charles Chun and Robert Weindorfer as witnesses. Mr. Chun is the general sales manager at Midway and Mr. Weindorfer is its president. Ajax also called Anthony Machado, its general manager; Jane Gregg, business manager at another Nissan dealership; and Kyle Katchaluba, a former employee at Ajax, as witnesses. Ms. Gregg and Mr. Katchaluba were subpoenaed to attend.
8Given my ruling in the first Interim Decision, that there was an overlap of facts, that the applicant and Mr. Chun would be required to testify in both applications, both respondents would be calling some of the same witnesses, the potential for inconsistent findings based upon the evidence, and the efficient use of Tribunal resources, the parties proceeded on the basis that evidence and exhibits relating to one application would be used in the other application. The applicant had a fulsome opportunity to cross-examine the witnesses with respect to both applications.
9Various documents were entered as exhibits, including the minutes between the applicant and Ajax. There was an exclusion of witnesses, who were not present in the hearing room until the time he or she testified, with the exception of Mr. Machado, who was an instructing client, and was present during several of the hearing dates. While Mr. Weindorfer was also an instructing client, he was not present in the hearing room until he testified.
10At the end of Mr. Katchaluba’s examination-in-chief, the applicant had an outburst and said he had “no idea” who this person was. I advised him that Ajax had identified him as a witness, had filed a witness statement about his anticipated evidence and that the applicant had not previously objected to him. The applicant then cross-examined Mr. Katchaluba.
11For the reasons set out below, both Applications are dismissed.
the evidence
12The applicant is a male in his 50s. He worked for Ajax as a sales consultant for two periods of time. In June 2013, he was terminated, but returned to work shortly thereafter. He was terminated a second time in March 2014.
13Ajax is a Nissan car dealership located in Ajax, Ontario. Mr. Machado has been employed with Ajax since 2008, initially as its operations manager, and, from 2013, as its general manager.
14Midway is a Nissan car dealership located in Whitby, Ontario, and is a separate dealership from Ajax with a different owner. Midway is a family-owned business and Mr. Weindorfer has worked there his entire career, starting in the mid-1970s. He has progressed through various positions and is currently Midway’s president. Ajax is Midway’s nearest competitor. Mr. Chun worked at a different Nissan dealership until approximately June 2014, when he started working for Midway as its general manager. He was replacing another general manager, A.V.P., who was retiring.
15The applicant testified that he was a “gold member” with Ajax for eight years and was a top seller who made a very good income. Problems developed in his employment when Mr. Machado became general manager. Ms. Koitsis, in her examination-in-chief, testified that the applicant had a good relationship and positive employment with Ajax until Mr. Machado became the general manager. It was then that the applicant was terminated, twice.
16After his March 2014 termination, the applicant filed the first application. The parties entered into minutes of settlement on July 8, 2014. Mr. Machado signed the minutes on behalf of the respondent. The minutes contain a confidentiality clause.
17After working for Ajax, the applicant worked for other car dealerships, including Morningside Nissan, Stouffville Hyundai, East-Court Ford Lincoln, and Hogan Chevrolet. He testified that he earned less at these dealerships than he did at Ajax and testified about the amounts. In cross-examination by Ajax, the applicant admitted that he had been terminated by Morningside Nissan and agreed that was not the fault of Ajax. In cross-examination he testified that he had been terminated by Stouffville Hyundai, but not East-Court Ford Lincoln, whereas Ms. Koitsis in her cross-examination testified that he had been terminated by three. The applicant testified about the losses that he incurred subsequent to the March 2014 termination.
The Code Grounds
18After his examination-in-chief, but before cross-examination, the Tribunal reviewed each Code ground the applicant identified on his Application against Midway and asked him to identify what evidence he was relying for each ground. For gender identity, he testified that as soon as a dealership hears his name, they do not want to employ him given what they have heard about him. For gender expression, he testified that he was willing to take a “lie detector test” and expression was “as I expressed it”. For age, he testified that someone who was 25 years old was hired after “they” saw him. For association with another person, he testified that it all started with Mr. Machado, who spread details about the settlement that the applicant had with Ajax. He testified that he did “not really have” any evidence about reprisal.
The Applicant’s Reputation
19The applicant alleged that Ajax breached the confidentiality clause of the minutes by making negative comments about him and tarnishing his reputation such that he has not been able to obtain other employment, specifically at Midway. As set out in paragraph 2 above, Ajax denies the allegations against it and asserts that the applicant had difficulties obtaining other employment because of his reputation.
20Connected to the issue of breaching the confidentiality term of the minutes, the applicant also alleges that Midway would not hire him because he filed a human rights application against Ajax. Midway denies these allegations, as set out in paragraph 3 above, and asserts that it did not hire the applicant because of his difficult and aggressive reputation, which was reinforced when he visited the dealership on November 3, 2014, and met with Mr. Chun.
21Accordingly, evidence about the applicant’s reputation became relevant to the parties’ positions and the issue of whether there was a breach of the minutes, and the Tribunal heard evidence from all the witnesses on this point.
22The applicant testified that he strongly believes that Ajax, specifically Mr. Machado, breached the confidentiality clause of the minutes and tarnished his reputation in the auto industry, making it difficult for him to find comparable employment at comparable wages. He testified that within months of the minutes, “everyone knew everything” and “everyone out there with Nissan”. In cross-examination by Ajax, he agreed that a decline in the industry seeking experienced salespersons, with preferences for younger people, has also prevented him from obtaining comparable employment. He agreed that, other than his belief, he had no direct evidence that Mr. Machado breached the minutes by speaking with Midway.
23The applicant denied, in cross-examination with both Midway and Ajax, that he was a difficult and aggressive employee who was hard to manage. He asserted, “that’s a total lie”. He testified that he and Mr. Machado got along “great”. He testified that he would not have survived for so long in the industry if he had a bad reputation. He was told the names of some employees who made oral and written complaints about him to Mr. Machado. He testified that the details were “total lies”, “God is watching” and “this is totally unfair”. He accused Ajax of making up rumours after he stopped working there, and claimed that the evidence was “irrelevant”. He testified that he did not know that there were complaints about him before he stopped working at Ajax.
24Ms. Koitsis testified, during her cross-examination with Ajax, that she did not have any direct evidence that Mr. Machado revealed the terms of the minutes, but that the applicant’s reputation went from “100% to zero”. Further, during her cross-examination, Ms. Koitsis testified that she had no evidence to prove that the applicant’s terminations from the other dealerships after his termination with Ajax were due to Mr. Machado, but she thought that it was coming from Ajax.
25Mr. Machado testified that the terms of the minutes have been complied with. After the settlement, he informed Ajax’s president about the terms, and instructed payroll to process the term. He did not provide an explanation to payroll about the terms. He denied telling anyone about the terms of the minutes and denied breaching them. His evidence was not challenged in cross-examination.
26Mr. Machado described, in his examination-in-chief, how he did not get along with the applicant. From his perspective, he testified, the applicant was aggressive, rude, lacked respect and was a bully with customers and staff. He provided the names of employees who had made oral and written complaints to him about the applicant and described some of the complaints.
27Both Mr. Chun and Mr. Weindorfer testified that Midway would not hire the applicant because of his reputation of being an aggressive and difficult employee, and not because Ajax breached the minutes.
28Mr. Chun testified that he worked as a general sales manager for a previous Nissan dealership before working at Midway. At that time, the applicant was working at Ajax. Mr. Chun testified that customers would come into his dealership and complain about the applicant. This was positive for Mr. Chun’s dealership, because if the sales consultant at his dealership did a good job, it was an easy sale. During cross-examination, he testified that this happened with five to ten customers, although he could not remember their names or the vehicles they purchased.
29Mr. Weindorfer testified during examination-in-chief that on six to eight occasions, over the years, the applicant had sought employment at Midway. He had never been invited for an interview and had never been considered for a position. When the applicant worked for a Volkswagen dealership located across from Midway, approximately ten years ago, he came into Midway’s showroom a number of times and Midway employees thought he was looking for a job, although he never directly approached Mr. Weindorfer. The applicant insisted that this was not true and that even if it was, he did not remember doing this.
30Mr. Weindorfer testified that the applicant has never been considered for a position with Midway, although he admitted that he did not know how many cars the applicant sold per year or how successful he was at Ajax. He testified, “Based upon experience, you get a feel for who you can work with”, and the applicant was not someone with whom Mr. Weindorfer felt he could work. He testified that two Midway employees, A.V.P. and J.G., both of whom had worked at Ajax with the applicant, told him that they did not want to work again with the applicant. Mr. Weindorfer testified that some customers from Ajax would come to Midway and complain about the applicant. Sometimes Midway would sell a vehicle to that customer.
31Ms. Gregg testified about the applicant’s reputation. The applicant tried to obtain employment at the Nissan dealership where Ms. Gregg is the business manager.
32The applicant and Ms. Gregg worked together at Ajax, where Ms. Gregg was the business manager. Once a car is sold, the paperwork is turned over to the business manager, and the applicant and Ms. Gregg had very frequent interactions with each other. In about July 2014, Ms. Gregg became the business manager for Clarington Nissan.
33In the fall of 2014, the applicant contacted Clarington Nissan about obtaining employment with it. Ms. Gregg responded to the applicant’s inquiry. Text messages between the applicant and Ms. Gregg were entered as exhibits.
34The applicant testified that Ms. Gregg told him, “we want someone younger”. He also testified that Ms. Gregg did not want him because she heard gossip from Mr. Machado. He testified, during cross-examination with Ajax, that it was irrelevant that the texts did not mention Ajax and denied the suggestion that Ms. Gregg was not prepared to hire him because of his attitude and behaviour that she witnessed at Ajax. During his cross-examination he stated, “she knew everything about [the minutes of settlement] and that such information could only come from Mr. Machado”.
35Ms. Gregg testified that from her daily contacts with the applicant at Ajax, the applicant is aggressive and rude and, in her opinion, not a pleasure to work with. She observed this personally towards herself and towards other staff. She testified that after the applicant contacted Clarington Nissan, she tried her best to ignore him and then told him that they were looking for a more junior person. She testified that she was careful about how she expressed her message to him, as, because of her previous work experience with him, she did not want him to come to Clarington Nissan.
36Ms. Gregg also testified that Clarington Nissan’s owner approached her and told her that the applicant had emailed him about obtaining a position. Ms. Gregg told the owner that she would not recommend him because he was rude, aggressive, and would not be a good fit. She did not know if the owner responded to the applicant’s email.
37Ms. Gregg testified that she did not know about the applicant’s human rights application against Ajax or its outcome. The applicant not being hired at Clarington Nissan had nothing to do with his human rights application.
38During his cross-examination, the applicant was told that Mr. Katachluba would testify that he met the applicant at Morningside Nissan during a car swap, and that the applicant screamed at Mr. Katachluba and told him that Ajax’s owner (whom he named) was “a good guy”, Mr. Machado was an “asshole”, and that he had a lawsuit against Ajax. The applicant denied this anticipated evidence, testified that he had no idea who Kyle Katachluba was, stated he “absolutely [did] not” meet him at Morningside Nissan, and had no idea what Ajax was talking about. He denied broadcasting information about the first application he had with Ajax, asked why he would say this to someone whom he did not know, and said, “maybe you teach them stories and we need a lie detector test to prove that wrong.”
39Mr. Katchaluba testified that he was a lot attendant at Ajax and met the applicant, who was working at Morningside Nissan, during a dealer trade in April 2015. He could not remember the specific date. Mr. Katchaluba testified that the applicant told him that Mr. Machado was “an asshole” and that Ajax’s owner (whom he named) was “a good guy” and “it would all come out in the lawsuit”. Mr. Katchaluba testified that he was not aware of any lawsuit before the applicant made this comment, but later reported it to Mr. Machado. Mr. Machado did not say anything to Mr. Katchaluba about any lawsuit. Mr. Katchaluba testified that he was not aware of an application being filed by the applicant or a settlement of an application. At this point in Mr. Katchaluba’s evidence, the applicant had an outburst, as described in paragraph 9 above.
Efforts to Obtain a Job at Midway
40The applicant attributes Midway’s refusal to hire him, specifically Mr. Chun’s refusal, because Ajax, particularly Mr. Machado, made negative comments about him in the industry, especially amongst Nissan dealerships, and ruined his reputation. When asked during cross-examination by Midway if he had any evidence that Mr. Chun spoke with Mr. Machado, the applicant replied, “I just made this up and spent the whole day to waste time and money? No, I have to get my family money and this has to stop”.
41The applicant admitted, in cross-examination with Ajax, that he had no direct evidence, other than his belief, that Mr. Machado breached the minutes of settlement by speaking with Midway.
42The applicant sent three letters to Midway looking for a job, although he could not remember when they were sent. One was for Mr. Weindorfer, one was for Mr. Chun, and one was for another person. At a dealer trade show, he also spoke with A.V.P., the general sales manager before Mr. Chun, about a job with Midway. He did not receive a response to his letters and did not receive an interview.
43In approximately July 2014, the applicant called Midway and spoke with Mr. Chun about a position. Mr. Chun told him that there were no positions available and to keep in touch. Mr. Chun did not disagree with that evidence.
44Mr. Chun told A.V.P. about the applicant’s telephone call. Mr. Chun testified that A.V.P., who had previously worked with the applicant at Ajax, told Mr. Chun that the applicant would not be a good fit at Midway as he would not fit into the culture of the team.
November 3, 2014 Meeting
45While the applicant testified initially that he did not recall the date he attended Midway, ultimately he and Midway agree that on November 3, 2014, a meeting occurred between the applicant and Mr. Chun when the applicant arrived, unannounced, at Midway. They agree that Ms. Koitsis was not present. However, they disagree about what happened at the meeting, its length, and what was said.
46The applicant testified that Mr. Chun invited him into his office. He denied, during his cross-examination with Ajax, that he barged into Mr. Chun’s office, stood over him, and demanded to know why he was not being hired. “That’s a total lie”, he exclaimed, and testified about how he and Mr. Chun shook hands and went into Mr. Chun’s office.
47Once the applicant introduced himself, he testified, Mr. Chun’s behaviour changed. Mr. Chun told him, “I don’t want you because what you did to Ajax Nissan”. The applicant said, “pardon me? What did I do to Ajax Nissan?” Mr. Chun responded by saying that he sued Ajax and took them to human rights. Again, the applicant said, “pardon me?” and Mr. Chun told him that he had to leave the dealership. Mr. Chun only had to say, the applicant testified during his examination-in-chief, that Midway was not hiring.
48In cross-examination with Ajax, the applicant was certain that Mr. Chun told him specifically about human rights. The applicant testified that Mr. Chun told him, “We don’t want you because of what you did to Ajax for human rights”. It was the use of those words, the applicant testified, that triggered the filing of the Ajax Application and the Midway Application.
49During his cross-examination with Midway, the applicant admitted that his Ajax Application did not allege that Mr. Chun said anything about human rights, but rather said that he sued Ajax. He testified that maybe he forgot to include those words and that he took direction “as human rights told me to do from the gentleman on the line”. Copies of both Applications were filed as exhibits.
50During his cross-examination with Ajax, the applicant was told that Mr. Chun would testify that the applicant was aggressive, rude and made all kinds of demands when he arrived at Midway and met with Mr. Chun. The applicant testified, “that’s a lie” and suggested that the two of them take a lie detector test. The applicant testified that the exchange in the office took a couple of minutes.
51Mr. Chun’s recollection of the conversation is very different.
52Mr. Chun testified that the applicant arrived unannounced in his office and immediately started asking why Midway did not hire him. At this point, Mr. Chun did not know who was in his office. He testified that he probably asked the applicant who he was. The applicant identified himself.
53Mr. Chun testified that the applicant’s behaviour was not consistent with someone trying to obtain employment. They had spoken months previously and now the applicant was trying to engage him in conversation about why he was not hired at Midway. The applicant was saying things like, “who told you”, “what did they tell you”, “they are not supposed to say something” and “that’s why you didn’t hire me”.
54Mr. Chun testified that he found the situation to be a “little odd” and perceived the applicant to be a “little unstable”. The applicant was irate, speaking in a loud voice with loud breathing, and was aggressive. At the beginning of the conversation, the applicant was sitting, but then he got up and physically blocked Mr. Chun’s ability to walk around his office. As the applicant spoke, something “clicked” for Mr. Chun and he then thought that the applicant had some arrangement with Ajax and was not supposed to say anything about it. He felt that the applicant was trying to script or manipulate what was happening.
55During his examination-in-chief, Mr. Chun denied telling the applicant that Midway did not want him because he sued or brought a human rights application against Ajax. He testified that prior to the Midway Application, he was not aware that the applicant had filed the first application. Mr. Chun has not worked at Ajax and has no loyalty to it.
56The applicant asked Mr. Chun, towards the end of his cross-examination, if he told the applicant, “what he told me you did to Ajax Nissan and that’s why I cannot hire you”, with the “he” meaning Mr. Chun’s boss, Mr. Weindorfer. Mr. Chun and Mr. Weindorfer both denied this.
57Mr. Chun testified that he said to the applicant words to the effect “wow, your reputation precedes you” and “are you really asking me for a job” when you talk to me in this manner. After about eight minutes, Mr. Chun stood up and asked the applicant to leave. The applicant left.
58Mr. Chun was shaken up and took a walk. He spoke with Mr. Weindorfer after the applicant left the dealership, described the interaction, and said that he felt that the applicant was trying to do something. He testified that he was not aware of the first application until the Midway Application was filed.
59Mr. Weindorfer testified that Mr. Chun was flustered, recounted what had just occurred with the applicant, and told him that the applicant had referenced some kind of legal action. He could not recall if Mr. Chun said “human rights”. Mr. Weindorfer had no idea what legal or human rights action the applicant was referring to. He did not know, prior to receiving the Midway Application, that the applicant had filed a human rights application against Ajax, the details of that application, or of any settlement with Ajax.
60Both Mr. Chun and Mr. Weindorfer testified that there was no sales position available at Midway in November, 2014. Mr. Weindorfer testified that Midway was not seeking to hire an employee in November. November to January is a slow period and Midway does not have a lot of staff turnover. Typically, Midway hires a new person for June, and starts that process in March to May. That evidence was not challenged by the applicant.
The law
61The relevant sections of the Code are sections 5(1), 8, 10(1), and 12 (as against Midway) and section 45.9(3) (as against Ajax). These sections state:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
10(1) In Part I and in this Part
“age” means an age that is 18 years or more.
12 A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
45.9(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),
(a) within six months after the contravention to which the application relates; or
(b) if there was a series of contravention, within six months after the last contravention in the series.
the minutes of settlement
62The relevant section from the minutes is paragraph 3. It states:
The Parties covenant and agree to refrain from disclosing this Application or the facts or the terms [of] this settlement to any third person. Except the Applicant may disclose the terms of the settlement to his spouse, legal and financial advisors or as required by law and the Respondent may disclose the terms of the settlement to give effect to the terms or as required by law.
burden of proof
63The initial evidentiary burden is on the applicant to establish on a balance of probabilities that a prima facie case of discrimination exists. See Shaw v. Phipps, 2012 ONCA 155 at paras. 11 to 12, and Peel Law Association v. Pieters, 2013 ONCA 396 at para. 56. A prima facie case is described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.
64Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence to demonstrate, on a balance of probabilities, that the applicant’s allegations do not amount to discrimination. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking a discriminatory ground. See Pieters, above, at paras. 73 to 74.
65An applicant must prove his or her allegations against a respondent on a balance of probabilities and to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. See F.H. v. McDougall, 2008 SCC 53 at para. 46. The Court held that courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah v. George Brown College, 2009 HRTO 920 at para. 23.
66Furthermore, the Tribunal and the courts have recognized that discrimination can be proven by direct evidence or circumstantial evidence. The applicant may rely upon circumstantial evidence. That is, evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to support such an inference. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. See, Mangal v. Molson Toronto Brewery, 2011 HRTO 575 at para. 8. There is recognition that in some types of cases a respondent is uniquely positioned to know why it refused an applicant employment or asked a person for identification, such that a respondent’s evidence is often essential for determining what happened and what the reasons for a decision or action were. See, Shaw, above at para. 72.
Credibility of witnesses
67The Tribunal is often required to decide issues of credibility between the parties and their witnesses. In this case, I have had to make such findings of credibility given the divergent evidence I have heard in these applications as it relates to the issue of whether there was a breach of the minutes.
68In making those findings, 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.
69Underlying 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: the internal consistency or inconsistency of evidence; the witness’ ability and/or capacity to apprehend and recollect; the witness’ opportunity and/or inclination to tailor evidence; the witness’ opportunity and/or confirmatory evidence; the existence of corroborative and/or confirmatory evidence; the motives of the witnesses and/or their relationship with the parties; and the failure to call or produce material evidence. See, Shah, above, at paras. 12-14, and Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.
70A conclusion about the credibility of witnesses develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, as discussed in Shah, above, a finding of lack of credibility with respect to one aspect of a witness’ testimony does not automatically render the entirety of the witness’ evidence as non-credible.
71I find that the evidence which is central to both Applications is what Mr. Chun said to the applicant when the applicant attended Midway on November 3, 2014. The applicant states that Mr. Chun made reference to him commencing a human rights application against Ajax. Mr. Chun states that the applicant made reference to his litigation with Ajax, and the applicant was trying to script or manipulate the situation against Midway. If the applicant’s evidence is accepted over Mr. Chun’s, then this evidence would strongly support the applicant’s position that Ajax breached the minutes by disclosing their terms to Midway, and both Applications could be upheld. If Mr. Chun’s evidence is accepted over the applicant’s, then the applicant’s Applications would be dismissed. In this situation of a “he said versus he said”, and applicant’s legal burden to prove his case on a balance of probabilities, the applicant must be found to be credible on this point and Mr. Chun found to be not credible.
72However, after carefully reviewing the evidence and the exhibits, I do not find the applicant to be a credible witness with respect to what Mr. Chun said to him on November 3, 2014. I do find Mr. Chun, and the other witnesses, to be credible. I find that Ms. Koitsis was a credible witness, but her evidence was not particularly helpful as she had no first-hand information about either respondent, but instead heard about what happened from the applicant.
73While I recognize that hearings are difficult and stressful, and that the applicant was self-represented, his evidence and positions taken during the hearing undermine his credibility.
74During the hearing, the applicant was prone to outbursts, his behaviour was disrespectful to the respondents and their counsel, although less so to the Tribunal, and he was impatient during any part of the hearing apart from when he was able to speak.
75The applicant interrupted both counsel and witnesses. He interrupted the respondents’ counsel at various times, including Midway’s opening and closing statements and Ajax’s submissions about whether or not Ms. Koitsis should testify.
76The applicant interrupted the witnesses’ evidence. He interrupted Mr. Chun’s examination-in-chief at a critical point when Mr. Chun was testifying about the applicant arriving at Midway on November 3, 2014. He interrupted Mr. Chun’s cross-examination when Mr. Chun was attempting to answer his questions about their discussion. He interrupted Mr. Weindorfer by asking a new question in cross-examination while Mr. Weindorfer was trying to finish his answer to the previous question. He interrupted Mr. Machado during his cross-examination while Mr. Machado was trying to answer the previous question. He interrupted, or cut off, Ms. Gregg while she was trying to answer a question during his cross-examination of her.
77When I review these interruptions as a whole, I find that they occurred at times when the applicant did not like what counsel were saying or the answers that witnesses were giving. The interruptions during the witnesses’ evidence are a factor I have considered in coming to the conclusion that the applicant was not credible.
78The applicant made exaggerated statements during his own evidence and the evidence of some of the witnesses and was overly dramatic. During his cross-examination with Ajax, when informed that Mr. Machado would testify about complaints he had received from employees about the applicant, the applicant stated that the details were “total lies”, and commented, “God is watching”. He submitted, several times during the hearing, that the parties take a lie detector test. Despite the Tribunal telling him that a lie detector test would not be taken, he continued to suggest this. At one point in Mr. Chun’s cross-examination, he stated that he himself would “hold a Bible in his hands” and “swear to God” in opposition to what Mr. Chun had testified about.
79The applicant’s evidence was, at times, inconsistent and sarcastic. He testified during examination-in-chief that his problems at Ajax started when Mr. Machado arrived, but in cross-examination said that he and Mr. Machado got along “great”. In cross-examination with Midway, after being asked if he had any direct evidence about Mr. Machado speaking with Mr. Chun, he replied, in part, “I just made this up and spent the whole day to waste time and money?”
80Most importantly, his allegations and evidence about what Mr. Chun said to him and/or what Midway did to him were inconsistent and changed during the Tribunal’s proceedings.
81Both the Ajax Application and the Midway Application were filed on the same date. However, there are inconsistencies between them about what the applicant alleges was told to him by Midway, and the date on which it occurred.
82In the Ajax Application, the applicant alleged, “… I verified why I was not being called to work by Midway Nissan and many more companys. I went to see Charlie Chan who is the General Manager and he said quote – what you did to Ajax Nissan is why we do not want you here at our dealer. I said what did I do to Ajax Nissan? He said you sued them….” [errors in the original]. There was no mention of a human rights application. The date on which the breach occurred was identified as October 3, 2014.
83In his Midway Application, which identified November 3, 2014 as the date of the breach, the applicant alleged, at question 8:
I then decided to drop in and introduce myself to Charles Chun and he asked me to come into his office and when I introduced myself to him he asked me to leave his office, so I asked why and he said “you put Ajax Nissan through a law suit with the Human Rights and that is why we don’t want you here”.
84In his response for additional information for the Midway Application, in response to Question 9, “Charlie Chun said I not hiring you after you go Human Rights to punish Ajax Nissan” [errors in the original]. And later, he wrote, “I was told by Charlie Chun that I am not wanted here at Midway Nissan because what I did to them with Human Rights. Them being Ajax Nissan”, and still later, “they did not want to hire me because what I did to Ajax Nissan through Human Rights” and later, “They said they will not hire me because what I did to Ajax Nissan through Human Rights Tribunal”.
85In his witness statement, which was sent before the hearing commenced, and which was marked as an exhibit during the hearing, the applicant identified the date he attended Midway as being in January 2015. He alleges in his statement that Mr. Chun told him, “I dont [sic] want you to work here after what you did to Ajax Nissan and suing them and going to Human Rights”.
86During his examination-in-chief, the applicant testified that Mr. Chun told him, “I don’t want you because what you did to Ajax Nissan” and testified that Mr. Chun told him that he sued Ajax and took them to human rights. In his cross-examination with Ajax, he was sure that Mr. Chun told him specifically about human rights. He testified Mr. Chun told him “We don’t want you because of what you did to Ajax for human rights”. In cross-examination with Midway, he admitted that his Ajax Application made no reference to human rights, but rather that he sued Ajax, and testified that he may have forgotten to include those words, and that he took direction “as human rights told me to do from the gentleman on the line”.
87The specific wording that Mr. Chun was alleged to have said changed between the Applications, the applicant’s evidence in examination-in-chief, and cross-examination. The applicant did not provide an explanation about why there were variations in what he alleged Mr. Chun said to him, and these differences, and the lack of explanation about them, undermines the applicant’s credibility.
88As indicated in paragraphs 82, 83, and 85 above, while the applicant presented different dates about when the meeting with Midway occurred, ultimately there was an agreement between the parties that it occurred on November 3, 2014. The different dates the applicant presented, October 3, 2014, November 3, 2014, and January 2015, I find demonstrate that the applicant’s recollection of the date was not reliable, rather than not credible.
89During Mr. Chun’s cross-examination, the applicant never directly questioned Mr. Chun on whether he used the words “human rights” or “sued” or “took legal action” against Ajax when they met in November 2014. Instead, the cross-examination questions were open-ended, with the applicant asking questions like “what did I say?”. The applicant interrupted Mr. Chun a number of times when he was trying to answer the applicant’s questions.
90However, at the end of Mr. Chun’s cross-examination, the applicant made a new suggestion about what Mr. Chun was alleged to have said. Leading up to his question, the applicant noted that he did not put this in the “report”, and had only found his notes (but not produced them). He asked Mr. Chun if he said, “what he told me you did to Ajax Nissan and that’s why I can’t hire you here”, with the reference to “he”, meaning Mr. Chun’s boss, Mr. Weindorfer. Mr. Chun denied this. This is the first time that the applicant alleged that such a comment was made, and the first time that comments were attributed to Mr. Weindorfer.
91The applicant focused quite a bit of his final submissions on Mr. Weindorfer and his evidence of the applicant’s reputation. While there was mention of his interaction with Mr. Chun, and the claim that Mr. Chun lied during his evidence, the main thrust of the applicant’s final submissions was about Mr. Weindorfer’s conduct. Mr. Weindorfer’s conduct was not raised during pleadings, or during the applicant’s own evidence. As set out above, it was not raised as an issue until the end of Mr. Chun’s cross-examination.
92A change in a party’s position, particularly during a hearing, can be a factor in determining that the party is not credible as a witness. See, Morgan v. Herman Miller Canada Inc., 2013 HRTO 650 at para. 102; A.B. v. Havcare Investments Inc., 2014 HRTO 1087 at para. 65; and Briggs v. Durham Regional Police Services, 2015 HRTO 1712 at para. 168. While in those cases the respondents were found to have changed their position, I find that this principle is also applicable to applicants.
93Based upon the above, I find that the applicant was not credible as a witness.
94I find that Mr. Chun, Mr. Weindorfer, Mr. Machado, Ms. Gregg and Mr. Katchaluba were credible witnesses, who, from my observations, were attempting to answer the questions asked of them to the best of their abilities. They provided answers in measured and balanced tones and were internally consistent in their answers.
95The applicant’s behaviour during the hearing supports the evidence of Mr. Chun, Mr. Weindorfer, Mr. Machado and Ms. Gregg that the applicant was a difficult person to work with, and that customers would come into Midway and Mr. Chun’s former dealership after experiencing difficulties with the applicant at Ajax.
96Despite the applicant’s interruptions during the evidence of Mr. Chun and Mr. Weindorfer, as noted above in para. 76, potentially designed to impede the witnesses from giving evidence adverse to the applicant’s interests, Mr. Chun and Mr. Weindorfer nonetheless provided credible evidence that was straightforward, internally consistent and consistent with the pleadings. While I recognize that they were becoming frustrated when cross-examined by the applicant because he would not let them answer a question before asking another one, their frustration does not undermine their credibility as witnesses.
97As noted above, Mr. Weindorfer, despite being an instructing client, was not present in the hearing room until it was time for him to testify. Ms. Gregg and Mr. Katchaluba have no identified interest in these proceedings, and both were subpoenaed to attend.
The Ajax Application
98The Tribunal recognizes that many applications filed with it are resolved by settlement. The Tribunal encourages settlement, offering mediation and mediation-adjudication to parties with disputes before it. Section 45.9 of the Code facilitates settlement, by providing a mechanism to remedy a breach of settlement. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 33, and 4137566 Canada v. Clements, 2011 HRTO 106 (“4137566”) at para. 12.
99Confidentiality provisions are very common in settlement agreements. The Tribunal has recognized that they can be a critical term of the settlement, often, but not always, for the respondent, who may have a particular concern about the confidentiality of the monetary terms. A party who believes that a confidentiality clause has been breached can file a breach of settlement Application with the Tribunal, pursuant to section 45.9 of the Code, and seek a remedy if the Tribunal determines that there has been a breach. Former applicants and former respondents have, respectively, filed breach of settlement applications with the Tribunal. See, for example, 4137566 Canada, above, where a former respondent filed a breach of settlement application alleging violation of a confidentiality clause, and Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, where a former applicant filed a breach of settlement application alleging a breach of settlement when the former respondent failed to pay him the settlement monies.
100As with other applications filed with the Tribunal, the party that asserts that there has been a breach has the onus of proving the breach in order for any remedy to be awarded. The Tribunal has denied a breach of settlement application where an applicant alleged that the confidentiality clause was breached, when the applicant could not prove the breach. See, for example, 4137566 Canada, above. The Tribunal has also upheld a breach of settlement application where the former applicant was found to have breached the confidentiality clause. See, for example, Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939, where the Tribunal also ordered the payment to the former applicant be reduced because of the breach.
101The applicant, I have found, is not credible about what Mr. Chun said to him on November 3, 2014. The applicant has also not been able to prove, on a balance of probabilities, that Ajax breached the minutes.
102In the Ajax Application, the applicant raised concerns that Ajax did not maintain the privacy and confidentiality of the minutes and had spread “bad word of mouth to prevent [me] from working in the future”. The applicant sought remedies for Ajax’s alleged breach of the minutes.
103My finding that the applicant is not credible with his assertion that Mr. Chun told him on November 3, 2014 that he knew about the human rights application the applicant filed against Midway is critical to the applicant’s assertion that Ajax breached the confidentiality term of the minutes. I cannot find that Mr. Chun, or Midway, was aware that the applicant commenced a human rights application against Ajax.
104During his cross-examination with Ajax, the applicant admitted that he had no direct evidence that Mr. Machado told others about the minutes. Although he testified that within months of the minutes, “everyone knew everything” and “everyone out there with Nissan”, he did not produce any evidence to establish that Mr. Machado or Ajax breached the minutes. He did not identify who the “everyone” was in his statements, and did not call any witnesses, apart from Ms. Koitsis, to testify about Ajax’s alleged breach.
105Ms. Koitsis gave speculative evidence during her testimony. During cross-examination, she admitted that she did not have any direct evidence about Ajax or Mr. Machado breaching the minutes. She testified that she did not have any evidence about the applicant’s loss of jobs after Ajax having anything to do with Mr. Machado. She speculated that she was “pretty sure that it’s coming from Ajax” but did not know if it was from Mr. Machado.
106After the November hearing dates, and after three of the respondents’ witnesses had testified, the applicant identified some witnesses whom he wanted to testify in reply to the respondents’ evidence. One potential witness, H.Q., would testify that he heard that the applicant had sued one of the respondents. In an Interim Decision, 2015 HRTO 1721, I declined the applicant’s request to have these two witnesses testify. At para. 10, I stated:
Having reviewed the information contained in the applicant’s November 23, 2015 email, setting out the anticipated evidence of C.F. and H.Q., I find that it is not responsive to the respondents’ evidence about the applicant’s reputation. Evidence in response to the respondents’ evidence pertaining to the applicant’s reputation could be permissible rebuttal evidence. Instead, I find that the anticipated evidence would address the applicant’s allegations raised in his Applications. Permitting this evidence, at this stage, would permit the applicant to split his case, which I am not prepared to do. See. R. v. Graziano, 2015 ONCA 491 at para. 37.
107The applicant has not presented any direct, or indirect, evidence about Ajax breaching the minutes. I do not accept his allegations and evidence that Mr. Chun made reference to his human rights application. At most, the applicant and Ms. Koitsis have speculated that Ajax, and specifically Mr. Machado, have breached the minutes. Speculation or belief is not sufficient in establishing a breach of the Code, as an applicant needs to prove a breach on a balance of probabilities. It is the applicant’s burden to prove that there was as breach of settlement and I find that he has not met this burden. Accordingly, the Ajax Application is dismissed.
The Midway Application
108As I do not find the applicant to be a credible witness, I cannot accept his allegations that Mr. Chun told him that Midway would not hire him because he commenced legal action, sued, or filed a human rights application against Ajax.
109Instead, I find that the applicant attended Midway on November 3, 2014, unannounced, and met with Mr. Chun. I accept that Mr. Chun did not know who was in his office and asked the applicant to introduce himself. I accept that the applicant introduced himself and then persisted to ask Mr. Chun why he had not been hired by Midway. I accept Mr. Chun’s evidence that he did not tell the applicant that he was not being hired because he commenced legal action, sued, or filed a human rights application against Ajax. Instead, I accept Mr. Chun’s characterization that the applicant was trying to script or manipulate what was happening when he used phrases such as “who told you”, “what did they tell you” and “they are not supposed to say something” and “that’s why you didn’t hire me”.
110Furthermore, I accept the evidence of Mr. Chun and Mr. Weindorfer that Midway was not seeking an employee in November 2014 and it was not interested in hiring the applicant because of his reputation, which they based upon customers complaining about the applicant at two different dealerships, the opinions of A.V.P. and J.G., who had worked with the applicant previously at Ajax, and Mr. Weindorfer’s observations of the applicant over the years.
111While the applicant is certainly upset that he was not hired by Midway, he has not been able to establish that it was because of a Code ground or a reprisal. Accordingly, the Midway Application is dismissed.
112For the reasons set out above, both Applications are dismissed.
Dated at Toronto, this 19th day of December, 2016.
“Signed by”
Alison Renton
Vice-chair