Kharb v. B & B Alarms, 2016 HRTO 772

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lakshmi Kharb

Applicant

-and-

B & B Alarms and Balu George

Respondents

DECISION

Adjudicator: Brian Cook

Date: June 7, 2016

Citation: 2016 HRTO 772

Indexed as: Kharb v. B & B Alarms

APPEARANCES

Lakshmi Kharb, Applicant

Self-represented

B & B Alarms and Balu George, Respondents

Self-represented

1This Application alleges harassment and discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The grounds identified in the Application are sex (including sexual harassment), sexual solicitation or advances, gender identity, and reprisal.

2The Application was heard on May 17, 2016. Both parties were self-represented. I heard evidence from the applicant and from the personal respondent and Mathew George, the personal respondent’s brother and co-owner of the corporate respondent.

Background

3The corporate respondent is a small company owned and operated by two brothers, one of whom is the personal respondent. The applicant was hired as an office administrator on May 9, 2013. Her employment was terminated six months later, on November 8, 2013. According to the respondents, the applicant’s employment was terminated because of performance issues and complaints about the applicant from customers. According to the applicant, the personal respondent sexually harassed her during the period of employment and then terminated her employment when she told him that she was going to complain about his behaviour to his brother.

4The applicant testified that before coming to Canada from India, she obtained two Masters degrees at a university, including a degree in accounting. She had further training in accounting in Canada. She has worked as a School Principal in India. She was referred to the respondents by their Chartered Accountant and she was hired on May 9, 2013.

5In her evidence, the applicant indicated that most of her interactions were with the personal respondent. Both owners were frequently out of the office on sales calls. She was initially paid $12 an hour and this was increased to $15 an hour after about four months. In October, 2013, both owners traveled to India for two weeks, leaving her in charge of the office. The respondents agreed that this is true but say that calls to their cell phones were routed to a friend who took care of the business calls during their time in India.

Allegations of sexual harassment

6The applicant testified that the personal respondent sexually harassed her on an ongoing basis. This included unwanted comments about her dress and her body. I asked her to provide details and she provided the following evidence about her allegations:

1. The personal respondent would make comments about her ear rings if he thought they were too small.
2. On one occasion she was wearing a tee shirt. He made her sit in front of him and then stared at her chest.
3. On one occasion she came to work with a red eye because she had burst some blood vessels. The personal respondent laughed and asked if she had been drinking. The applicant said that this was very insulting to her and that the personal respondent, who is also an immigrant from India, would have known that the comment was insulting.
4. On three or four occasions, the personal respondent told her he wanted to take her out. The applicant was not clear if he said that he wanted to take her out for a date or for a day. She told him she would not go out with him. He then retaliated against her, for example, demanding that she find a paper that the personal respondent already had.
5. During the time the respondents were in India, they called her on the phone. The personal respondent was drunk and told her: “your face is always in front of me, and when I come home I will ask you for a date.”
6. He told her she should leave her husband.
7. On one occasion, the personal respondent said in front of her “everybody is fucking”. He repeated this three of four times. This remark was not directed at her but she was offended and told him not to use vulgar language in front of her.
8. On one occasion he asked her where she bought her undergarments and offered to go shopping for undergarments with her.

7The personal respondent denied that he sexually harassed the applicant. In regard to the specific allegations, the personal respondent denied making comments about her ear rings or staring at her chest when she wore a tee shirt. The personal respondent and Mathew George recalled her coming to work with a red eye and agreed that they asked her if she had been drinking. The personal respondent denied that he ever said he wanted to take the applicant out for a date or for a day. The personal respondent recalled that he did ask her if she wanted to join him and his brother for lunch one day but she refused saying that she does not eat onions.

8The personal respondent and Mathew George agreed that they called the applicant at least once a day while they were in India. On one occasion, they told her that they would take her to lunch when they got back to recognize her work while they were gone.

9The personal respondent denied telling the applicant she should leave her husband. He did recall that she made some negative comments about her husband who was unemployed. The personal respondent denied asking the applicant about her undergarments or that he suggested that he go shopping with her.

Other allegations of unfair treatment

10In addition to the above noted allegations, the applicant alleges that she was subject to other unfair treatment during the period of her employment.

11The applicant alleged that on two occasions of several days each, she was deprived of drinking water. Normally, the personal respondent bought bottles of water but on two occasions, these ran out. She was told that she had to obtain drinking water from the tap but the only tap was in the washroom which was very small and the tap was right beside the toilet.

12The personal respondent agreed that he usually bought water but said that he was sometimes too busy. He submitted that the water from the tap was safe to drink.

13The applicant alleges that she was required to lock herself in the office when the owners were not present. One time it was very hot in the office and she was not allowed to open the door to get some air. The respondents agreed that they suggested that the applicant keep the office locked if they were not there but this was for her safety. They denied that they refused to let her open the door.

14The applicant testified that the personal respondent frequently yelled at her, asking her if she was mad or crazy. He often unfairly criticized her work, accusing her of doing or not doing things. The applicant denied that she made errors in her work. She said that she was given contradictory instructions. For example, she was told that all information about clients was confidential and information should not be sent out, even to the firm’s Chartered Accountant, without checking first but she was then also criticized for not providing information.

15The personal respondent and Mathew George testified that the applicant made numerous errors and that there were many complaints from customers about the applicant and that they lost some accounts as a result. They said that they gave verbal warnings to the applicant and finally terminated her employment because of the ongoing errors.

16The respondents provided no documents to substantiate that the applicant made errors in her work, that there were complaints from customers, or that they lost any accounts because of the applicant. I asked why there were no documents to support their case and they said that they were not aware that such documents would be necessary. In advance of the hearing the respondents did provide a letter from the Chartered Accountant. The letter is dated June 24, 2014, and is addressed to the personal respondent. It states that when the applicant started working, she did not have a working knowledge of Quick books and that she required training as well as training on other tasks, including setting up customer accounts, bank entries and reconciliations, and payroll issues.

17The applicant testified that she knew how to use Quick books because she had been trained on a similar accounting software package.

18In advance of the hearing, the applicant provided a signed statement from the person who had previously done her job. The statement indicated that during her employment, the personal respondent disrespected her, yelled at her for no reason and made “unpleasant personal comments”.

19The respondents’ hearing documents included a letter from this same person that she sent them when she left their employment. The letter was her letter of resignation. It concluded:

My time here in this company has been very worthwhile. I have enjoyed working with you and appreciate the opportunities I have been given here. If I can be of any help during this transition, please let me know.

The termination of the applicant’s employment

20The applicant testified that on November 8, 2013, the personal respondent became very angry and falsely criticized her for failing to process a credit card payment. He was yelling at her. She told him to stop yelling and told him that she was going to report his behaviour to Mathew George. She testified that she told the personal respondent that she was going to tell Mathew about the personal respondent’s harassment of her, including the sexual harassment.

21The applicant testified that she sent an email to Mathew and asked him when he would be returning to the office because she wanted to talk to him about something important.

22The applicant testified that she did not receive a reply to this email. Instead, the personal respondent returned to the office and told her that she was fired.

23The applicant does not have a copy of the email that she says she sent to Mathew George. She noted that she sent this email on the work computer and that she did not have access to it after she was fired.

24The respondents deny that the applicant sent this email to Mathew on November 8, 2013. She did send an email at about 5:30 pm on November 8, after her employment was terminated. It reads as follows:

Hi Mathew,

As per my conversation with Mr. Balu [the personal respondent] this afternoon, please send me a letter for laying me off along with the reason as well in response to this email. Mr. Balu mentally harassed me and abused me today. He got annoyed when I took out my lunch at 2.40 pm and for this reason, Mr. Balu fired me.

25This email does not mention the email that the applicant says she sent to Mathew George earlier that day. Nor does it say anything about the sexual harassment that the applicant alleges she was subject to from the personal respondent. The example of harassment she provided related to a dispute about her lunch break.

Legal context

26Section 5 of the Code provides as follows:

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.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

27“Harassment” is defined in section 10:

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

28Section 8 of the Code prohibits reprisal:

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.

29As discussed at the hearing, in this case, the applicant must show not only that she was treated badly during her employment but that the bad behaviour was related to the Code grounds she has identified in the Application. The Tribunal does not have a general power to deal with allegations of unfair treatment. The Tribunal can only apply the Code and the Code deals only with particular types of unfair treatment that relate to a person’s Code-protected rights, in this case, the right to be free from sexual harassment or reprisal for raising Code-protected rights.

30This case requires me to assess the credibility of the parties. The approach that the Tribunal generally follows in such matters is the one stated in the following terms in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried 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 the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

31The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at paragraph 46.

32The question I must decide in this case therefore is whether the applicant has provided clear, convincing and cogent evidence to show that it is more probable than not that the alleged sexual harassment and reprisal occurred.

33The requirement that an applicant provide clear convincing and cogent evidence can be a practical problem in a case where the only evidence available to the applicant is her own testimony about what happened. If the respondent denies the allegation and there is no other witness or document to corroborate the alleged comments or actions, it can be difficult for an applicant to succeed. In that situation, the adjudicator must consider the evidence of each witness and determine if the evidence of each is credible and reliable. If the applicant’s evidence is found to be credible and reliable and the respondent’s evidence is not credible and reliable, the applicant will likely succeed. However, if the evidence of both witnesses is equally credible and reliable, or equally not credible and reliable, the applicant may have failed to meet her onus of proof.

34A consequence of this is that sometimes applicants may be unable to discharge their onus of establishing that they have experienced an infringement of their Code rights even in circumstances when their rights may have been infringed.

35The assessment of the credibility and reliability of the evidence of each witness is considered not just in isolation, but together with how the testimony fits with the other available evidence, including circumstantial evidence. The applicant can succeed if the adjudicator is satisfied that her evidence is in 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, as stated in Faryna, above.

36When, as in this case, there are multiple allegations, a finding that the evidence of about one of the allegations is not credible does not mean that the evidence about the other allegations is also not credible. However, it can create some doubt about the credibility of the evidence of the witness as a whole, particularly when there is little other evidence one way or another about the allegations in question.

37As discussed in more detail below, in this case neither party presented clear, convincing and cogent evidence, and there is very little evidence to corroborate their own evidence regarding the allegations.

Conclusions

38The applicant’s allegations are that she was subject to sexual harassment during the six months of her employment and that her employment was terminated when she threatened to complain about the personal respondent’s behaviour to Mathew George.

39The applicant alleges that the personal respondent told her he wanted to take her out on a date. She said this happened “three or four” times. I asked her to be more specific about how many times this happened and what exactly was said. She reiterated that the personal respondent said something about going out three or four times. The only incident for which she could provide any detail was the telephone call that was made while the respondents were in India. According to the applicant, the personal respondent told her that her face was always in front of him and that when he got back he wanted to take her out on a date. The respondents testified that during a call to the applicant from India, they told her that they would take her out to lunch because she was working hard in their absence. The respondents also suggested that on another occasion, they invited the applicant to lunch but she declined saying she did not like onions.

40The applicant’s inability to recall the specifics of the other occasions when the personal respondent allegedly told her he wanted to take her out, including whether he said that he wanted to take her out on a date or for a day, and even how many times this happened, leads me to question the reliability of the applicant’s evidence.

41I accept that there was a discussion about taking the applicant out to lunch during the call from India, but I accept that this suggestion was made in recognition of the fact that the applicant had been working by herself in the office. Both the personal respondent and Mathew George testified about this conversation. They both testified that there was an offer to take the applicant to lunch in appreciation of her work while they were away. They both denied that there was anything said that could be construed as sexual harassment.

42In regard to this allegation, the applicant’s testimony was specific about what was allegedly said. She said that the personal respondent said that her face was always in front of him. She said that he seemed to be drunk. This testimony obviously differs from the evidence of the respondents. I accept that Mathew and the personal respondent were involved in the conversation. The applicant's evidence was that the call involved only the personal respondent. It could be, of course, that there were two conversations during which an offer of lunch came up but the applicant mentioned only one conversation. On balance, I find that the applicant has not established that it is more probable than not that the personal respondent sexually harassed her on a phone call from India.

43Since the allegation that the call from India included sexual harassment is not substantiated, I also find that the allegation that the personal respondent retaliated or reprised against her by terminating her employment for not accepting his advances is also unsubstantiated.

44The evidence indicates that there was quite a bit of conflict between the applicant and the personal respondent during the period of the applicant’s employment. It is this conflict that the applicant alleges, at least in part, arose in retaliation or reprisal. The personal respondent agrees that he often criticized the applicant around performance issues. Based on my observation of the personal respondent during the hearing, it seems very likely that this criticism may well have included a raised voice and personal comments that the applicant found hurtful or uncalled for. This is particularly so because the applicant does not agree that there was any valid basis for the criticisms against her.

45Whether or not there was a valid basis for criticisms of the applicant’s work performance is not clear because the respondents produced no evidence to substantiate their allegations of performance issues.

46The applicant alleges that the question about whether she had been drinking when she came to work with a red eye was sexual harassment because the respondents should have known that a woman of her background would find the question to be very insulting. The respondents agree that the applicant was asked if she had been drinking. I accept that the applicant took offence at this question. However, I am not satisfied that it constitutes a “course of conduct that was known or ought to have been known to be unwelcome.” The comment appears to have been one question and not a repeated course of conduct. In addition, it is not clear that the comment relates to the applicant’s sex.

47As noted above, in this case, the applicant bears the onus to prove her allegations. She must be able to provide reliable and credible evidence to establish that it is more probable than not that the things she alleges actually occurred. This can be a difficult task as it usually involves establishing that there is corroborating or circumstantial evidence to support the allegations. Such evidence depends very much on the circumstances and context surrounding the evidence. For example, the applicant alleges that the personal respondent told her that she should leave her husband, implying that she should instead be with him. The personal respondent recalled discussions about the applicant’s husband, but testified that they concerned the applicant's dissatisfaction with her husband’s job search. If the personal respondent made some comment during such a conversation about the applicant leaving her husband, the context is quite different than the one proposed by the applicant.

48I find that the applicant has established that it is more probable than not that any comment the personal respondent made about her husband was made in a context that would mean that the comment was known or ought to have been known was unwelcome. A similar issue arises with regard to the allegation that the respondent commented on the size of the applicant’s ear rings. Such a comment could be made in a harassing way but it could also be a completely innocuous comment. The applicant has not established that any comment about her ear rings was known or out to have been known to be unwelcome.

49The context for the allegation of the use of vulgar language is not clear and in any event, it seems that the language was not directed at the applicant.

50If supported by evidence, the allegation that the personal respondent invited the applicant to go with him to shop for undergarments seems more unambiguously a comment that would have been known to be unwelcome. However, this allegation is denied by the respondents and there is no evidence to substantiate the applicant’s allegation and no other evidence from the applicant to show why her evidence should be preferred to the evidence of the respondents.

51As noted earlier, the applicant’s hearing documents include a statement from a past employee of the respondents. According to the statement, the past employee endured unpleasant personal comments from the personal respondent. The statement of the past employee is significantly at odds with her letter of resignation. I appreciate that by the time of the hearing the past employee may not have wanted to be involved. I accept that there may be an explanation for the discrepancy. However, based on the evidence before me, there is no explanation and in the absence of an explanation, the only evidence that the applicant has pointed to substantiate or corroborate her allegations is unreliable.

52This is not to say that the applicant has concocted the allegations of sexual harassment. The things she alleges may have occurred and things may have been said in a sexual context that meant that they were unwelcome. However, as noted earlier, in a human rights case, the applicant must establish more than that it is possible that the things alleged occurred. She must have clear convincing and cogent evidence to show it is more probable than not that the things alleged occurred.

53In this case, apart from contradictory evidence from the witnesses, there is very little evidence to prove anything. The applicant has not provided evidence to support her allegations or to establish that her evidence should be preferred by showing that the evidence of the respondents is not credible or not reliable. At the same time, the respondents have produced very little evidence to support their contention that there were issues with the way the applicant performed her job.

54In considering the available evidence, I am not satisfied that the applicant has established sufficient proof of her allegations. At the same time, I am also not satisfied that the respondents have disproved the allegations. In this regard, it is troubling that the respondents produced no evidence to support their contention that there were constant problems with the applicant's work performance. However, in a human rights adjudication, the ultimate question is not whether the respondents have disproved the allegations, it is whether the applicant has provided clear, convincing and cogent evidence to prove that it is more probable than not that the things the applicant alleged occurred. In this case, I must conclude that the applicant has not done this with regard to her allegations of sexual harassment.

The termination of the applicant’s employment

55In regard to the end of the applicant's employment with the respondents on November 8, 2015, the applicant’s allegation is that she told the personal respondent that she was going to tell Mathew about the personal respondent’s behaviour and that she was fired in reprisal for this.

56The applicant alleges that this conversation happened during the afternoon of November 8 and that she sent an email to Mathew right after her conversation and before her employment was terminated and that she said something in that email about needing to talk to Mathew about the personal respondent’s behaviour. The respondents testified they did not receive this email but the applicant did send an email at 5:27 pm, after she was terminated. As noted earlier, that email, which is part of the evidence, stated that the personal respondent “harassed and abused” the applicant.

57In regard to whether there was one email or two, I accept that if the applicant sent the first email, it was sent from her work computer and this would explain why she does not have a copy. However, I note that the email she sent at 5:27 made no mention of the earlier email. The 5:27 email said it was “per my conversation with Mr. Balu this afternoon.” It is not clear why the 5:27 email to Mathew would not have referenced an earlier email to Mathew if one had been sent.

58Regardless of whether there was one email or two, there is a question of what it was that the applicant wanted to complain to Mathew about concerning the behaviour of the personal respondent. The email sent at 5:27 stated “Mr. Balu mentally harassed and abused me today. He got annoyed when I took out my lunch at 2:40 and for this reason Mr. Balu fired me.” It is therefore not clear that the behaviour the applicant wanted to talk to Mathew about was the alleged sexual harassment. It rather seems to have related to the applicant’s more general allegations of unfair treatment and allegations of harassment about things unrelated to her Code-protected rights.

59In his testimony, the personal respondent indicated that the dispute with the applicant on November 8 had to do with a credit card transaction that the applicant had not processed and that led to a complaint from a client. The applicant testified that there was such a dispute although she did not agree that she was in the wrong.

60There is therefore, evidence that the matter that precipitated the termination of the applicant’s employment on November 8, 2015 was an alleged performance issue. It is not necessary for me to decide whether the applicant was or was not at fault because there is no suggestion that the dispute had anything to do with the applicant’s Code-protected rights.

61I find that the available evidence does not support the applicant’s contention that she was fired after she told Mathew George that she wanted to tell him that the personal respondent had infringed her Code-protected rights or after she told the personal respondent that she was going to tell Mathew this. I find that the applicant’s employment was terminated because the respondents felt that there were issues with the applicant's performance of her job and not in reprisal for attempts to raise her Code-protected rights. In the absence of evidence that the termination was discriminatory or done in reprisal, the question of whether the respondents were correct that there were issues with the applicant’s job performance that warranted termination of her employment is not an issue that is before me.

Decision

62The Application is dismissed.