Dagg v. NRZ Investments Inc., 2016 HRTO 646

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chey Dagg Applicant

-and-

NRZ Investments Inc. Respondent

DECISION

Adjudicator: Dawn J. Kershaw Date: May 12, 2016 Citation: 2016 HRTO 646 Indexed as: Dagg v. NRZ Investments Inc.

APPEARANCES

Chey Dagg, Applicant Lorraine Por, Counsel

NRZ Investments Inc., Respondent Phillip Millar, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of family status and sex, specifically pregnancy, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent was the owner of more than one Petro Canada store. In May, 2013, the applicant commenced work as a gas service attendant at one of the Petro Canada stores owned by the respondent. She went off work for a pregnancy in December, 2013, and returned to work in October, 2014 at the request of the respondent. The applicant alleges she was terminated in December, 2014 a few days after she told the respondent she was pregnant for the second time.

3The respondent denies the allegation, and asserts the applicant was terminated because of performance issues, including a dispute involving whether or not the applicant would pay for the gas of a customer who drove off without paying while the applicant was working.

preliminary issue

4In advance of the hearing set for February 18 and 19, 2016, the Tribunal delivered to the respondent a Case Assessment Direction, dated January 8, 2016, in which it alerted the respondent to the fact that it had failed to file its documents to be relied on at the hearing and its witness statements by January 4, 2016 as required in the August 25, 2015 Notice of Hearing. The Tribunal advised the respondent it must do so by no later than January 15, 2016 or the Tribunal may not permit the respondent to call any witnesses or present any documentary evidence at the hearing.

5The respondent did not provide either witness statements or documentary evidence in advance of the hearing.

6At the outset of the hearing, the applicant’s counsel argued that the Tribunal’s case law states that a respondent must provide witness statements and documents in advance of the hearing. In this case, the respondent did not respond to the Case Assessment Direction and did not advise who it intended to call as witnesses, which is prejudicial to the applicant. The applicant’s counsel stated that the Tribunal can exclude a witness even if the issue is only that a witness statement is not detailed enough, let alone when one is not provided at all, and can exclude evidence not disclosed in a timely manner.

7The respondent’s counsel admitted to deficiencies in filing the appropriate material in advance of the hearing because of staffing difficulties, and denied there would be any prejudice to the applicant if I exercised my discretion to permit the two owners of the respondent to testify. He submitted that the other options were at least to allow him to cross-examine the applicant’s witnesses, or to allow an adjournment so that the respondent could fulfill the disclosure obligations.

8The applicant’s counsel objected to an adjournment because the applicant’s husband had to take a day off work to come to the hearing to support the applicant, and it would be a hardship to force him to take another day off in the future.

9I delivered an oral ruling and advised the parties I would provide additional reasons in the decision. I declined to adjourn the hearing as it would have been prejudicial to the applicant. The Tribunal had delivered to the respondent not only the Case Assessment Direction that advised what was required of it in advance of the hearing, but also the original Notice of Hearing, in which the disclosure obligations, including dates for compliance, are contained.

10With respect to whether or not to allow the respondent’s witnesses to testify, the relevant portions of Rule 17 provide as follows:

17.1 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.

17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 […], except with the permission of the Tribunal.

11In accordance with Rule 17.1, 17.2 and 17.4, I declined to permit the respondent’s witnesses to testify in the absence of witness statements. In this case, there were not only no witness statements, but there was not even the bare minimum of any confirmation from the respondent with respect to what witnesses would testify or that they would testify in accordance with the Response filed, as was the case in Huang v. High Life Heating, Air Conditioning & Security Inc., 2013 HRTO 1802. In my view, this failure is prejudicial to the applicant because the applicant could not know what evidence the witnesses would give so that she could properly prepare for the hearing.

12Similarly, in accordance with Rule 16, I declined to permit the respondent to rely on any documentary evidence. Rule 16 provides in part:

16.2 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

13The respondent did not comply with the disclosure rules despite the requirements being set out in the Notice of Hearing and the Case Assessment Direction. In my view, it would have been prejudicial to the applicant to allow the respondent to introduce documents at the hearing when the applicant had no knowledge in advance of the hearing of the documents on which the respondent intended to rely. As such, the respondent was not permitted to call witnesses or present any documentary evidence. I permitted the respondent’s counsel to cross-examine the applicant.

14The Tribunal Rules are designed to ensure that full disclosure is provided well in advance of the hearing so as to allow the parties to know the case to meet and to properly prepare for a hearing, and that allows the hearing to be conducted in a manner consistent with the statutory direction contained in section 40 of the Code, which is the fair, just and expeditious resolution of the merits of the application. The failure to comply with these rules in the face of ample notice and warnings, and the possibility of last minute adjournment requests to allow for further disclosure, are antithetical to the stated goal of the statutory direction. An adjournment would have prejudiced the applicant who not only had waited for the hearing date, but whose husband had to take a day off work to come to the hearing to support her. It would have constituted a financial hardship for the applicant and her husband to force him to take another day off in the future.

the law

15Section 5(1) of the Code states in part that every person has a right to equal treatment with respect to employment without discrimination because of sex and family status.

evidence

16The applicant testified she originally began working for the respondent at both of its St. Thomas locations in October, 2013 as a gas service attendant. Her duties included working on the cash, cleaning the store, doing stock and completing paperwork. The paperwork included recording for each shift her sales, how many cash drops were made into the safe, how many scratch and lottery tickets were sold, and whether the cash balanced. If the cash was short, an employee had to make up the difference.

17The applicant was one month pregnant when she originally was hired, but did not advise her employer. Her first child was born on December 26, 2013. The applicant returned to work in October, 2014 at the request of one of the respondent’s owners. Her new manager was Sushil Singh, whom she knew because he had been a fellow employee.

18The applicant’s first Record of Employment (“ROE”) from December, 2013 states she quit her employment. Her evidence was that she did not know what the codes meant. She did not know if she had a maternity leave through the respondent. She admitted that when she returned to work in October, 2014 she signed all new policies, but stated she just thought that is the way it was as she did not know what it was like to return from a maternity leave. The applicant admitted on cross-examination that when she returned she was told she was on a probationary period.

19The applicant denied that either Mr. Singh or the owners of the respondent, namely Shamira Charania and Nazmin Charania, spoke to her negatively about her work performance after she returned from her leave. She did admit that on reviewing a list of her cash balances in October, 2014 that it was either short or over in 14 of 21 shifts. In addition, she agreed that in October and November, 2014 there were two occasions when as much as $20 went missing, and she either paid it or found it in the store.

20The applicant also testified Mr. Singh contacted her outside working hours to discuss mistakes in her paperwork. She told him he should not call her at home because that was her family time, but that he responded that he wished to address the issues immediately. She conceded on cross-examination that there was one occasion when she did not complete her paperwork at all.

21She denied Mr. Singh ever spoke to her about arriving late, but stated that although she was expected to be at work at 6:45 for a 7:00 a.m. shift, she arrived at 7:00 a.m. because she was only paid from that time on. On cross-examination, the applicant stated that any time she was late it was because when she arrived, she had to wait for the other employee to log off before she could log on, which made it look as if she was late, even though she was there on time. She admitted she recalled two occasions when she was going to be late and she called the other employee and said she would pay that employee to cover for her lateness.

22With respect to any other performance issues, the applicant denied consuming any product without paying for it. Although she admitted she did not always pay for it before consuming it as it stated she should in the policy, she denied there was ever an issue that she paid for it either that day or the next day.

23The applicant testified there were no performance issues with respect to visitors being in the store while she was working. She testified that one customer used to come in and talk but she felt it would be rude to tell her not to do so.

24With respect to the use of her cell phone while at work, she testified she used it only to check in with her son’s babysitter, and conceded that Mr. Singh told her she should not be on her phone when customers were there. She admitted on cross-examination that on January 9, 2015 she made several Facebook postings during her shift. She justified this by saying she did not get any breaks and that taking two minutes to write someone back was okay as long as no one was in the store.

25In approximately December, 2014, the applicant discovered she was pregnant with her second child, which was not planned and initially was upsetting because she and her fiancé did not know if they could afford it. In addition, they had a lot going on, including their family life and relationship. The applicant testified she told Mr. Singh about her pregnancy on December 31, 2014.

26She testified that as a result of finding out she was pregnant that she was very distracted at work and accidentally threw one of the cash drops into the garbage instead of into the safe. Mr. Singh called to advise her that a cash drop was missing and she would have to pay for it. She asked him if he could look at the camera to see what had occurred because she could not afford to pay for it. He did so and discovered what had happened. She subsequently went through the garbage, found the cash drop and advised Mr. Singh. She testified that once the money was found, Mr. Singh did not speak to her further about this incident.

27On approximately January 7, 2015, the applicant testified that as she was dealing with another customer a woman unknowingly drove off without paying for her gas because of a credit card issue. The applicant testified she ran outside to see if she could get the customer to stop, even though she was not supposed to do that, because she had been told time and again that if there was a “drive off”, she would have to pay for the gas. She was not able to stop the customer and called the police. She told the police she would have to pay for it. When the police officer came, he told the applicant that the respondent could not make her pay for it. After the police officer spoke to her and then to Mr. Singh, the applicant testified she asked Mr. Singh if she was going to have to pay for the gas and he just laughed and walked away.

28Sometime later the applicant texted with Mr. Singh about paying for the drive off. She pointed out that it was a full day’s pay, that she budgets her money and needed that money for her child. Mr. Singh responded that he knew as he had paid for drive offs before, and she could pay it out of her next pay cheque. In response, she said she would ask her fiancé to pay it. When Mr. Singh responded that she could pay for it out of her next pay cheque, the applicant responded that she would pay it that day.

29Within the next few hours, the applicant changed her mind about paying because she talked to her fiancé who said they could not afford to do so. The applicant spoke to Ms. Charania on the telephone about the drive off, and Ms. Charania told her it was protocol that she would have to pay for the drive off because she had activated the pump despite the credit card issue, which the applicant does not deny. The applicant testified she was crying and told Ms. Charania she would have to either fire her or she was forcing the applicant to quit because she could not afford to pay. The applicant then told Ms. Charania she had to go, hung up and continued to serve customers.

30On Friday, January 9, 2015 while still at work, the applicant made several Facebook postings with respect to the drive off. She first posted that she was not going to pay for it and that the employer could fire her. She reiterated at 2:46 p.m. that she told the employer it could fire her. Four hours later she posted that she no longer worked there, and stated she was going to go to the Labour Board. The applicant denied quitting that day but admitted she was upset.

31The applicant admitted on cross-examination that there is no mention of her pregnancy in the Facebook postings, which she said was because she had not told anyone at that point because she did not know if she was keeping it or not.

32The applicant testified she called Mr. Singh before she went home. He asked the applicant what she was going to do, and he advised her that he understood she had told Ms. Charania that she quit. After her shift, the applicant called Ms. Charania again and asked why she had told Mr. Singh she had quit. She testified that Ms. Charania raised her voice and the applicant asked her to calm down. The applicant then told Ms. Charania she was going to call the Labour Board and hung up.

33The applicant testified she called the Labour Board and also Petro Canada because she did not realize it was a franchise. Someone at Petro Canada told her to go to her next scheduled shift and also to lodge a complaint on Petro Canada’s website, which she did. The applicant admitted that when she called the Labour Board, she did not complain that pregnancy was the cause of her termination, but stated she told the Labour Board to call her as there was more to it. She denied she went to the Labour Board because that is where one goes when one feels one has been wrongfully terminated.

34After calling the Labour Board and Petro Canada, the applicant left a message for Ms. Charania and told her she would attend her next shift as scheduled.

35On Friday, January 9, 2015 the applicant texted Mr. Singh to ask at what location in London she was working on Sunday. She reiterated in her text that she had not quit. On cross-examination the applicant was asked why she was concerned about her next shift if she had not quit, and she advised it was because Mr. Singh told her that Ms. Charania had said she quit.

36In a Saturday, January 10, 2015 text to Mr. Singh she stated she was confused and upset as a result of the telephone call with Ms. Charania on Friday, and could not figure out if Ms. Charania was telling her she was fired or that she had quit. She stated that she had made it clear to both him and Ms. Charania that she would not quit or be forced to quit because she refused to pay for the drive off. She advised Mr. Singh she had a small child and was pregnant with her second. She stated she needed her job, had no intention of leaving except for maternity leave as they discussed last week and if she did not hear from him about the London location she would show up for her 7:00 a.m. shift in St. Thomas on Monday. Finally, she stated in her text that she hoped she would not be terminated over $69.41 when she got there.

37Mr. Singh texted the applicant back and told her to talk to Ms. Charania because she had quit her job and nobody forced her to do so. He pointed out that her conversations were between her and Ms. Charania, and he was not involved. He told her she could not talk to him “like this” because it is not his company.

38The applicant responded:

So you are telling me that I have quit even though I am telling you I didn’t? So in effect you are following instructions. And I have been fired?

39In response to Mr. Singh’s response that said simply “no”, the applicant then texted Mr. Singh again and said:

Well [Mr. Singh] if I didn’t tell you I quit and I stayed working after my phone conversation with [Ms. Charania] then why do you think I quit?

40Mr. Singh then responded:

Like I said you have spoken to my boss and have quit. Plz don’t send me messages if you are talking to my boss and have quit.

41The applicant then texted Ms. Charania on Saturday, January 10, 2015 and stated:

[…] I have not received a return call from you in regards to our conversation on Friday. I am very confused and upset and [Mr. Singh] has told me to speak to you as he cannot respond to me. I found it difficult to finish my shift while so upset on Friday. I could not figure out if you were telling me that I was fired or telling me I had to quit. I have made it clear to both you and [Mr. Singh] that I will not quit or be forced to quit because I refused to pay the 69.41 out of my pocket for a drive off that the police can recover from the customer. I have a small child and pregnant with my second as you already know and that is a whole days [sic] pay for me unnecessarily. I have worked for Petro Canada for 2 years and intend to continue. I need and enjoy my job and have no intention of leaving except for maternity leave as I discussed with [Mr. Singh] and he informed you. I will be at work for 7 a.m. as per schedule on Monday morning. I hope that I will not be terminated when I get there over refusing to pay the 69.41. Which I cannot afford.

42The applicant on cross-examination agreed she had not told Ms. Charania about her pregnancy, but stated she told Mr. Singh and Mr. Singh told her that he tells Ms. Charania everything. She admitted she had no evidence that Ms. Charania knew she was pregnant. She further admitted that Mr. Singh responded by saying that it was “awesome” she was pregnant. She further agreed that at the time she was terminated she had not determined if she was going to go through with the pregnancy.

43When asked about the fact that she now alleged she was terminated because she was four weeks pregnant, she responded that it was “so coincidental” that she was fired then. On cross-examination the applicant admitted she worked for the respondent the first time while pregnant, and for most of that time was visibly pregnant; that the respondent did not fire her then; and that in fact the respondent wished to keep her longer.

44On January 11, 2015 Ms. Charania responded to the applicant’s text as follows:

Hi chey [sic] received your text message. I wish to advise you that we no longer feel That [sic] we can continue your employment with us. This decision was taken as per our conversation on Friday [sic] when we spoke at 4:57 pm. Where you were very frustrated due to a drive off. During our conversation when I was obtaining information from you as to what happened and where [sic] the procedures followed to recover the drive off you abruptly told me that you quit and hung up. At that moment I had to take immediate measures to cover your shift. You call [sic] me again later and discussed the matter further. Lately during your shift we have noted that your personal issues are effecting [sic] your performance and you have also shared the issues with us and the staff. We feel that these personal issues are affecting your performance at work. We do not wish to continue this employment and hereby terminate your employment in lier [sic] of two week notice pay [sic]. You do not have to come to work tomorrow. With respect to the drive off we have never asked you to pay us and will not deduct from your pay. You will receive you [sic] cheque plus two weeks pay with your roe [sic] on the 17th. Thanks [Ms. Charania].

45The applicant denied hanging up on Ms. Charania, although said she did hang up on her because she had customers.

46With respect to Ms. Charania’s reference to the applicant’s personal issues, the applicant testified her only personal issue was her pregnancy, and that her grandfather died at the beginning of December, 2014.

47On cross-examination the applicant was asked what might constitute personal issues. She agreed she was terminated after posting on Facebook that she was not going to pay for the drive off and that it was “bullshit”, but stated this was a performance issue, not a personal issue. In response to being asked if being late was a personal issue, she denied being late but said she talked to a co-worker about covering for her for a couple of hours while she went to attend to some things.

48The applicant agreed that using her cell phone during work was personal in the sense that she did not get breaks or a lunch and that was her personal time. She agreed that a personal issue might be hanging up on her employer when they called her about paperwork, but pointed out this was because they called her at home during her family time.

49With respect to her cash being short and whether that could be a personal issue, she stated she paid them and it was not an issue before. When asked if she agreed that putting $100 into the garbage was an issue, she said she retrieved it, although she did not concede this was because Mr. Singh called her about it. She did agree that she “put up a bit of a stink about it”, was argumentative and asked him to look at the video. She averred that the money went into the garbage because she was pregnant and distraught, but could not explain how she also had missed $20 on two prior occasions. She also agreed that even after the incident with the money going into the garbage that she had trouble balancing her cash, but said she was not the only one.

50The applicant agreed her Record of Employment said she quit, which she had not disputed. She also agreed on cross-examination that her termination arose following the drive off. She admitted that when she was terminated, she was only four weeks pregnant and her pregnancy was not visible.

51The applicant also agreed that in the past she had paid for drive offs on approximately eight occasions, two of which were during this period of employment, and this was because it was her mistake as she had not followed procedure.

52She agreed it was her understanding that it otherwise was not proper procedure to make an employee pay for a drive off. While she agreed that the right place to dispute that was at the Labour Board, she denied this was about that despite her Facebook post stating she was going to the Labour Board.

decision and analysis

53The applicant bears the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, the applicant must prove that it is more probable than not that her sex, specifically her pregnancy, was a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. I find that the applicant has not done so.

54The applicant’s termination coincided with the dispute that arose as a result of the drive off and whether the applicant had to pay for it. The applicant agreed her termination arose after the drive off incident, but said it came about after she told Ms. Charania several times that she did not quit.

55The applicant denied quitting her job on the day of the dispute, namely January 9, 2015. However, she agreed that her Facebook postings, which she made the same day while still at work included one at 2:46 p.m. saying she told her employer it could fire her, and another four hours later saying she no longer worked there and was going to the Labour Board.

56It is clear from the evidence that the applicant disputed how her employment came to an end - whether it came to an end because she quit as the respondent alleged, or because she was fired. The applicant’s evidence that she was fired was consistent with her Facebook postings and also with the text messages she sent to both Ms. Charania and Mr. Singh after her Facebook postings in which she denied she quit. As such I accept the applicant’s evidence that her employment was terminated as of Friday, January 9, 2015. I must now determine if it was in any part due to her pregnancy.

57The applicant testified she told Mr. Singh on December 31, 2014 that she was pregnant, and he reacted positively to her news and told her it was “awesome”. She further testified she did not tell Ms. Charania, who terminated her, that she was pregnant, and there was no evidence that Ms. Charania knew. The first mention of the applicant’s pregnancy was in her January 10, 2015 text to Ms. Charania. Although the applicant’s text states: “I have a small child and pregnant with my second as you already know…” the applicant’s evidence did not support Ms. Charania already possessing this knowledge at this time. The applicant’s evidence established that this was an assumption the applicant made because she told Mr. Singh on December 31, 2014, and there was no evidence to support that Ms. Charania knew of the applicant’s pregnancy.

58The applicant also testified that no one at the respondent spoke to her prior to her termination and told her they did not want someone pregnant working for them. While this is not determinative because discrimination is often much subtler, in this case the applicant also testified that she worked for the respondent until less than a month before her first child was born, meaning she was visibly pregnant.

59This alone also is not determinative, but this combined with evidence about the events surrounding the drive off incident in my view establishes that the applicant’s employment came to an end because of the drive off and dispute that ensued.

60The applicant testified that she called Ms. Charania after the police officer left in order to report on the drive off. Ms. Charania told her at that point it was protocol that the applicant pay for it because she had pushed the activation button. This resulted in the applicant becoming very upset and telling Ms. Charania she would either have to fire her or she was forcing the applicant to quit because she could not afford to pay. She then terminated the call by hanging up on Ms. Charania. The applicant also testified that immediately on arriving home the applicant got in touch with Mr. Singh who said that Ms. Charania told him the applicant had quit. The applicant contacted Ms. Charania again after talking to Mr. Singh. The applicant testified that Ms. Charania raised her voice to the applicant. The applicant ended the call by telling Ms. Charania she was going to the Labour Board.

61The evidence points to the applicant’s termination being a direct result of the dispute over the drive off and other performance issues, set out below. Specifically with respect to the drive off, the applicant admitted she told her employer that she would have to fire her or she was forcing her to quit because she could not pay for the drive off. It also is clear that this was not the first time that the applicant had been asked to pay for a drive off and in fact she had paid for two others during this period of employment. This time after first agreeing to pay, she then refused to pay, and a dispute ensued. While the applicant’s termination may not have been fair, I find it was not discriminatory.

62The applicant relied heavily on Ms. Charania’s January 10, 2015 text in which she commented on the applicant’s “personal issues”. I had little evidence of what those personal issues were. The applicant stated her only personal issue was her newly discovered pregnancy, and also that her grandfather died at the beginning of December. However, earlier in her testimony, the applicant stated that she and her fiancé had a lot going on, including their family life and relationship.

63It also is clear from the evidence that the applicant made many mistakes at work, including not balancing her cash, not always completing her paperwork, not arriving at 6:45 a.m. as instructed, throwing a cash drop in the garbage and losing money in the store, among other things.

64Ms. Charania’s text states that she made her decision to terminate the applicant’s employment in accordance with their conversation on Friday, in which the applicant was very frustrated due to a drive off. Ms. Charania goes on to state that she asked the applicant in that telephone call if procedures were followed, and that the applicant then abruptly quit and hung up. While I accept that the applicant was terminated as opposed to having quit, the fact remains that the termination resulted from the drive off incident.

65Ms. Charania’s text refers to the applicant’s personal issues affecting her performance at work, but again I find that the applicant has not satisfied me that these personal issues included her pregnancy in light of the applicant’s performance issues and in light of the termination flowing directly from the drive off incident. In addition, there was no evidence to suggest that Mr. Singh told Ms. Charania about the applicant’s pregnancy. Although the applicant said she threw money in the garbage because she was distracted because of her pregnancy, she was not able to explain the other performance issues, and as a result I do not accept this evidence.

order

66The Application is dismissed.