HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rose Marie Thomas
Applicant
-and-
Domenico Marcone
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Thomas v. Marcone
APPEARANCES
Rose Marie Thomas, Applicant
Self-represented
Domenic Marcone, Respondent
Ben Hogan, Paralegal
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent engaged in discrimination and harassment in the workplace. The respondent denies the allegations.
2For the reasons set out in detail below, the evidence provided by the applicant in support of her allegations is unreliable. On a balance of probabilities, she has not met the onus of proving a violation of the Code. The Application is therefore dismissed.
PRELIMINARY PROCEDURAL ISSUES
3At the close of the hearing on August 21, 2017, I granted the applicant’s request for an opportunity to provide reply submissions in writing. The applicant and I discussed the timeframe for doing so and she agreed to provide reply submissions in writing to Mr. Hogan, the respondent’s representative, and to the Tribunal by September 5, 2017. On August 22, 2017 I issued a Case Assessment Direction (“CAD”) confirming my oral direction regarding the filing of reply submissions and the timeframe for doing so.
4On September 9, 2017, the Tribunal contacted the applicant as it had not received her reply submissions or any correspondence from her in that regard.
5The applicant responded on September 12, 2017 and requested a 60-day extension in which to file her written reply. I issued a CAD on September 15, 2017 expressing some reservations but ultimately allowing a 60-day extension to November 6, 2017 for the applicant to file a written reply. In the CAD, I stated clearly that no further extensions would be granted.
6The applicant did not file her reply submissions on November 6, 2017 as required. Instead, she contacted the Tribunal on November 12th to request a further extension on the basis that the respondent had allegedly not returned a zip drive to her. The applicant requested an extension of time for providing her written reply until two weeks after the return of the zip drive.
7I had previously issued a CAD directing the applicant to comply with the Tribunal’s Practice Direction on Recording Hearings (“Practice Direction”) and provide a complete copy of the hearing recordings she had made to the respondent’s representative. The applicant indicated that she had already provided the recordings to the respondent, but the respondent denied receiving them. During our oral discussion at the close of the hearing on August 21, 2017, I invited the applicant to either send the recordings to Mr. Hogan or provide evidence showing that the recordings had already been sent to the respondent. The applicant elected to send the recordings to Mr. Hogan and she apparently used a zip drive to do so. The applicant now seeks the return of the zip drive, which she has valued at less than $20. She also requests additional time to prepare a reply and states that this is necessary because she is being “financially abused.”
8The applicant’s request that the zip drive be returned to her is denied. The Practice Direction requires that the party recording the hearing provide a copy of the recording to the other parties, for example on a USB device or CD. In electing to record the proceeding, the applicant must bear the reasonable costs associated with complying with the Practice Direction, including the nominal cost of providing a USB device to the respondent.
9The applicant’s request for a further extension of time in which to provide a written reply is also denied. The applicant has known, since August 21, 2017, that she could file a written reply. The fact that a USB device (containing information the applicant already possessed) was not returned to her has no material bearing on her ability to file a written reply.
10Finally, the applicant states that Mr. Hogan allegedly made inappropriate jokes or comments, which she says are a further basis for extending the time for her to file a written reply. These alleged remarks were not made in the Tribunal’s presence and I make no finding as to whether or not they occurred.
11The applicant had approximately three months in which to prepare a written reply. She was advised that no extension would be granted beyond November 6th, yet she waited until November 12, 2017 to request a further extension. Even if I assume (without finding) that the alleged comments were made, I am not satisfied this would justify extending the time for reply and further delaying this matter.
OVERVIEW OF THE PROCEEDINGS
12This matter has been before the Tribunal for approximately eight years and numerous substantive and procedural issues have been addressed in the multitude of Interim Decisions, Case Assessment Directions and Reconsideration Decisions rendered in this matter. The Tribunal has held approximately 20 days of hearing. During the first 15 days, the applicant provided extensive evidence about her allegations.
13At the conclusion of the applicant’s evidence, I invited submissions as to whether Application should be dismissed (in whole or in part) because there was no reasonable prospect it would succeed.
14In an Interim Decision, 2015 HRTO 872, the allegations against the applicant’s union, her former employer, and a number of personal respondents were dismissed because they had no reasonable prospect of success. The Application then proceeded against the remaining respondent, Mr. Marcone.
15The Tribunal held a further day of hearing, during which Mr. Marcone testified before the Tribunal and was cross-examined. I then issued a number of Case Assessment Directions, giving the parties an opportunity to propose witnesses and explain what relevant information these persons would provide concerning the remaining issues before the Tribunal.
16The respondent did not propose any witnesses and did not seek to call any evidence. The applicant proposed five witnesses. For the reasons set out in Case Assessment Directions, I held that two of those witnesses appeared to have material evidence to the outstanding issues before the Tribunal, but the other proposed witnesses did not.
17The Tribunal then heard evidence from the applicant’s two witnesses, Doug Leadingham and Jacob Smits.
18At the conclusion of this evidence, the Tribunal scheduled a telephone conference call to hear closing submissions from the parties. For the reasons set out in more detail in a further Case Assessment Direction, the call was adjourned because the respondent’s representative did not have a document (a version of the pleadings), which the applicant intended to reference in her closing submissions. Following the conference call, the applicant filed a Request for Reconsideration of the Tribunal’s previous decisions in this matter. The Request for Reconsideration was denied in 2017 HRTO 323.
19The Tribunal then scheduled an in person hearing on August 21, 2017 and heard closing submissions from the applicant and the respondent. I granted the applicant’s request to present her reply submissions in writing. As set out above, although she had a reasonable opportunity and received an extension of time in which to do so, the applicant failed to file any reply submissions.
THE FACTS
20The applicant and the respondent worked together at the Shaw Festival in approximately 2007 and 2008, as general labourers and stagehands (among other things). The applicant alleges that the respondent sexually harassed her by:
a. Making comments that he knew or ought to have known were unwelcome, including asking her out, making comments about her appearance, and asking questions about her sexual activity and preferences;
b. Hitting her on the bum with a piece of wood;
c. Pinching her cheek and running his hands up her sides.;
d. Following her to the parking lot;
e. Attempting to control the way in which the applicant did her work and initiating unnecessary physical contact by, for example, placing his hands on or near the applicant’s while showing her how to sweep and paint; and
f. Sitting unnecessarily close to the applicant when she worked at an ironing board.
21The applicant also alleges that the respondent harassed her on the basis of disability. The applicant, who has asthma, states that the respondent repeatedly smoked near her, in areas where smoking was not permitted. This both exacerbated her asthma and interfered with her work.
22The respondent denies all of the allegations. Regarding the smoking allegations, the respondent says that he and many of his coworkers did smoke on a stairwell and, on at least one occasion, in a parking lot while equipment was being unloaded. However, he says that he stopped smoking when asked to do so by a supervisor.
23Regarding the allegations of sexual harassment, the respondent categorically denies the facts presented by the applicant. He denies making the alleged comments, hitting her bum, pinching her cheek or running his hands up her sides.
24The respondent denies following the applicant to the parking lot. There was only one lot for employee parking and the respondent feels the applicant is reading too much into the fact that they happened to both being going to the lot at about the same time.
25The respondent states that, while he did attempt to show the applicant how to sweep and how to apply hot paint, there was no physical contact between them. Each had his or her own broom and roller. There is a dispute between the parties as to whether it was appropriate for the respondent to instruct the applicant in her work and whether he had any more experience or knowledge of sweeping or painting than she did. The respondent acknowledged that he was not the applicant’s supervisor and had no authority to direct her work. He states, however, that he felt the applicant was not doing those tasks correctly. The applicant vigorously denies this.
26A computer, which was available for employees to use, was located in the workplace, near the wardrobe room. An ironing board was often set up about a meter away from the computer station. The applicant, who often worked in the wardrobe department, states that the respondent used the computer as a way to be physically close to her. She says that, when she was ironing and the respondent turned the chair at the computer station, he was at eye level and about a meter away from her bum. The respondent agrees that he sometimes used the computer, but denies that he deliberately did so to be close to the applicant. He also denies that he turned the chair to face her bum.
27The applicant explained that she reported the alleged harassment to her union. The applicant’s understanding is that the union business agent spoke to the respondent and told him to stay away from her. The applicant states that, based on the respondent’s conversations with the union, he knew or ought to have known that his behaviour towards her was unwelcome.
28The respondent states that a union representative spoke to him about smoking in the workplace. However, he denies that any union representative spoke to him about the applicant’s allegations of sexual harassment. Later, in 2010, when in a different workplace, he says he was asked by “an investigator” and by his then union about the applicant’s allegations. The respondent maintains, however, that no one told him to stay away from the applicant.
29The Tribunal heard evidence from Doug Leadingham and Jacob Smits, both of whom are former business agents of IATSE, Local 461, the union that represented both the applicant and the respondent at the material times. Mr. Smits was the business agent in 2007 and 2008. Mr. Leadingham held this position from approximately June 2008 to January 2009. In essence, the business agent’s role is to be primary contact for the employer, to administer grievances, and to work with the call steward to dispatch work assignments to union members.
30Mr. Smits testified that he did not witness any of the respondent’s alleged behaviour towards the applicant, although the applicant advised him that the respondent had “touched her backside”. Mr. Smits suggested the applicant take the incident up with the employer because, as the business agent of the union, he felt he did not have the authority to deal with the allegation. Mr. Smits does not recall offering or being asked by the applicant to raise the issue with the respondent directly. While he has no specific recollection of this, Mr. Smits explained that it is possible he spoke directly to the respondent about the applicant’s concerns about sexual harassment. Mr. Smits acknowledges that he may have subsequently discussed the issue with Mr. Leadingham. He says that, if Mr. Leadingham reported that Mr. Smits had asked the respondent to cease certain behaviours, Mr. Smits has no reason to dispute this.
31Mr. Leadingham also testified that he did not witness any of the respondent’s alleged behaviour towards the applicant. After he became business agent in the summer of 2008, Mr. Leadingham states the applicant advised him that the respondent had sexually harassed her in the past. In the fall of 2008, she approached Mr. Leadingham to say that harassment had reoccurred. Mr. Leadingham testified that he recommended she file a complaint with the employer and offered to do so on her behalf. Mr. Leadingham says he also offered to speak to the respondent and to ask him to “stay away from” the applicant. He says he did not speak to the respondent or the employer, however, because the applicant specifically asked him not to.
32Mr. Leadingham understood from Mr. Smits that the applicant had spoken to him about her allegations of harassment. He discussed the incident with Mr. Smits and, in an email to the applicant dated October 9, 2008, Mr. Leadingham wrote:
I have spoken to former [business agent] Jake Smits. He has confirmed that you reported being inappropriately touched by Domenic Marcone (“slapped on the ass”) a year or two ago. Brother Smits recalls speaking to Brother Marcone, but not the exact details of the conversation. The gist of the conversation was however to “stay away from her” (Rosemarie Thomas).
33Mr. Leadingham says he was also aware of the applicant’s concerns about smoking in the workplace. Although he raised this issue with the employer, he did not specifically speak to the respondent about smoking. According to Mr. Leadingham, the respondent was one of many people who had sometimes smoked in areas where smoking was not permitted.
34In addition to contacting the business agents, the applicant explained that she took a number of steps to document and report her allegations including in personal notes, in her agenda and in email correspondence with the union and others. The issue was raised with the employer on or about March 24, 2007 (through the technical director) and, again, in mid-September 2008, when the applicant sought to be excused from certain shifts. However, as discussed in more detail in Interim Decision 2015 HRTO 872 at para 63, in each case, the applicant declined to provide particulars, elected not to pursue a complaint, or specifically asked that the matter not be pursued. In 2010, the applicant reported the alleged harassment to police. She contacted police again in 2011, to ask that certain aspects of the police report be corrected.
ANALYSIS
35The outstanding allegations in this matter relate to sections 5, 9, 10 of the Code, which provide:
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.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1)
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
36The applicant has the onus of proving on a balance of probabilities that the Code was violated. A balance of probabilities means that it is more likely than not 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 para 46.
Credibility and Reliability of the Evidence
37The materials facts in this matter were highly contested and witnesses provided very different versions of key events. As a result, much turns on the assessment of the credibility and reliability of the evidence, particularly that of the applicant and the respondent.
38In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 356-357:
…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 demeanour 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 is 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…
39In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and observations as to the manner in which the witnesses gave their evidence.
40Finally, I am mindful of the Ontario Court of Appeal’s comments on reliability in R. v. Morrissey 1995 CanLII 3498 (ON CA), at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
Factors that are not Relevant to Assessing the Applicant’s Evidence
41Before applying the principles set out above and in response to the respondent’s submissions, I wish to address some of the factors that I have not considered in assessing credibility.
42First, the respondent submitted that the applicant’s behaviour was inconsistent with what one would reasonably expect of someone who has experienced harassment. The respondent identified the following behaviours, which he submits are at odds with her allegations of harassment:
a. On one occasion after the alleged harassment, the applicant initiated a conversation with the respondent and seemed offended when he did not engage with her.
b. Although the applicant had experience raising complaints with the employer, she did not report the alleged harassment to her employer in a timely way.
43Importantly, there is no set way to respond to harassment, and victims’ reactions are often informed by the trauma they may have experienced. It is well established that the trauma of harassment can, for example, create feelings of embarrassment or a desire to avoid conflict, which may in turn lead individuals to seek to re-establish a normal relationship or to delay in making a formal complaint. The above-mentioned behaviours do not assist me in assessing the applicant’s allegations. To put it differently, the fact that the applicant may have behaved in the ways described above does not show that it is any more or less likely that she experienced harassment.
44Second, the respondent points out that, other than the applicant and the respondent, there were no other direct witnesses to the alleged incidents. This is not unusual in matters involving harassment as such incidents often occur in isolated circumstances. The fact that there are no direct witnesses to the alleged harassment is not surprising, nor is it a factor that assists me in assessing the whether the alleged harassment took place.
The Credibility and Reliability of the Applicant’s Evidence: Relevant Factors
45As I explain in more detail, below, there are a number of relevant considerations that (when taken together and considered on a balance of probabilities) lead me to conclude the applicant’s evidence is not reliable. These factors include:
a. Inconsistencies between the applicant’s evidence before the Tribunal and the information she provided to police;
b. The breadth and scope of the allegations made in this matter, which do not seem reasonably probable in all of the circumstances;
c. Many of the inferences the applicant sought to draw, which were not supported by the evidence; and
d. The applicant’s behaviour at the hearing and some of the positions she took throughout the proceedings.
Inconsistency in the Information Provided to the Tribunal and to Police
46The allegations against the respondent concern incidents that allegedly occurred in 2007 and 2008. Given that almost ten years have passed since that time, some minor variations or inconsistencies in witnesses’ evidence would not be surprising. As the applicant pointed out in closing submissions, although testifying about incidents that occurred some time ago, her evidence before the Tribunal was largely consistent. She provided extensive, detailed, and largely consistent evidence regarding numerous and wide-ranging allegations, often recalling specific dates, circumstances, and other details.
47Given that she consistently recalled in detail what occurred approximately ten years ago, it is significant that her testimony before the Tribunal was not entirely consistent with how she described incidents to the police. While the time that had elapsed since the alleged incidents might have explained some minor variations in her description of events, it is significant that she testified before the Tribunal and contacted police almost contemporaneously. Indeed, the applicant provided information to the police within about a year of filing her Application and about the time she began testifying before the Tribunal.
48In reporting the incidents to police, the applicant stated that the respondent had “repeatedly” followed her to her car in the parking lot and that he had “chased” her. Before the Tribunal, however, the applicant testified to a single incident of being followed to her car. In her closing submissions, the applicant confirmed she alleges the respondent followed her to her car on one occasion. In her testimony, she made no reference to being chased.
49While these variations may seem relatively minor, it is significant that they occur in contexts (police report and human rights application) where the applicant could reasonably expect potential consequences for the respondent. In these contexts, the difference between a single incident of being followed and being repeatedly followed or chased is arguably material, the latter being a more serious allegation.
50The applicant submits that the police report represents the police officer’s understanding of her allegations, and that it does not fully or accurately reflect the allegations she reported. Importantly, however, the police report was created in 2010, after the applicant initially contacted police. In 2011, the applicant specifically contacted the police officer to correct the information that appeared in the report. In seeking to correct the 2010 report, the applicant specified that she was “followed not once, but numerous times” and that she felt she was being “chased.” The officer added to the report to reflect the applicant’s 2011 comments. It is significant that she did not contact police a further time to correct this information.
The Breadth of the Applicant’s Allegations and Unsupported Inferences
51In the Application and in her testimony before the Tribunal, the applicant has made very broad and widespread allegations, identifying dozens of individuals, coworkers, supervisors, managers, union representatives and officials whom she believes have harassed her or otherwise behaved improperly. As I explain in more detail below, many of these allegations seem outlandish and inferences the applicant sought to draw were not supported by the documentary evidence. While I do not doubt that the applicant sincerely feels she was wronged by a large number of individuals, the circumstances bring into question the accuracy of what has been recounted.
52I appreciate that workplace harassment can be widespread and may be perpetrated by a number of people. Moreover, the fact that some of an applicant’s allegations are unfounded will not necessarily detract from that person’s credibility or provide a basis to conclude that the remaining allegations are not reasonably probable.
53However, not only do many of the applicant’s allegations seem improbable, they are so broad as to encompass a wide range of issues involving many of the people the applicant would have come into contact with at the time, seemingly from every level of workplace and union. For example, the applicant has complained of misconduct by:
a. Many of her coworkers
b. Several supervisors
c. Several heads of department
d. The technical director
e. The production manager
f. The general membership of the union
g. The leadership of the local union
h. A number of union business agents and at least one call steward
54The applicant also made a Request for Order During Proceedings, asking to amend the Application to add further respondents. These Requests were denied for reasons set out in 2011 HRTO 1737.
55Many of the allegations contained in the Application are based on speculation, are unsupported by the documentary evidence, or are inconsistent with what would seem reasonable in the circumstances. While the applicant advanced many such arguments or allegations, I will refer to three by way of example. Although these examples do not relate to the outstanding allegations against Mr. Marcone, I mention them because they assist in assessing the credibility and reliability of the applicant’s evidence.
56First, during the hearing, the applicant maintained that the Tribunal, the union, and the firm representing the union had access to a secret police file about her. She said the union had contributed information to this file, which the Tribunal then accessed. When asked why she believed this, the applicant explained that her belief was based (among other things) on the fact that ARCH legal services had advised her that the Human Rights Legal Support Centre (who had declined to represent the applicant) checks this secret police file before deciding to represent parties.
57Second, at the outset of this matter, the applicant alleged that Peter Gracie, a call steward, removed her from the list of persons who would be assigned work because (a) he was angry that she had raised complaints; and (b) Archie MacKenzie (a supervisor and union member with whom the applicant had been in conflict) was angry with her for the same reasons and tried to influence Mr. Gracie. However, there was no basis to support these contentions.
58The applicant’s own evidence showed that (to the extent Mr. Gracie in fact removed her from the call list) this could reasonably be explained in ways unconnected to the Code. There appears to have been considerable personal animosity between the applicant and Mr. Gracie: they had had a personal relationship and the applicant had specifically asked Mr. Gracie not to contact her. Moreover, at the material times, the applicant was working at another venue. While there was a dispute about the applicant’s membership status, a junior member’s work at another venue can be a basis for removal from the call list under the Union constitution.
59Similarly, the documentary evidence did not support the applicant’s contention that Mr. MacKenzie was hostile to her and reprised against her because she raised complaints. On June 12, 2008 the applicant wrote to human resources to complain about Mr. MacKenzie and others. Yet on September 15, 2008, Mr. MacKenzie brought a motion at a union meeting, supporting the applicant’s claim that she was entitled to a position (i.e. that she had a prior claim). When asked how she could maintain that Mr. MacKenzie was hostile to her when he had supported her claim, the applicant explained that it was because he had “secret plan” to ensure the applicant would not work as a stagehand.
The Applicant’s Conduct During the Proceedings
60At times throughout the proceedings, the applicant advanced arguments or took positions that were untenable, specious or based on what seemed to be a conscious misunderstanding of events. The fact that a party’s submissions or position at the hearing are not sustained does not necessarily detract from that party’s credibility or suggest that their allegations ought not to be believed. In this case, however, the applicant’s behaviour and the positions she adopted were so outlandish, and without foundation as to cast into doubt her ability to present information in a reliable manner.
61Again, while there are many examples of this, I will refer to two recent examples, both of which arose in the context of the applicant’s request for reconsideration.
62As noted, the Tribunal scheduled a telephone conference hearing in February 2017 to hear closing submissions from the parties. At the outset of the call, the applicant indicated that she would be referring extensively to the version of the Application, filed on April 24, 2009, and, more specifically, to the 26-page attachment (which the applicant referred to as the “What Happened” document). Ultimately, the call was adjourned because the respondent’s representative did not have a copy of the document.
63The Tribunal had copies of the documents in question. However, because the record is very extensive and contained two versions of the Application, there was initially some confusion about which document the applicant was referring to. Moreover, in the Tribunal’s copy of the document, the “What Happened” document was interspersed with a number of other documents attached to the Application. During the conference call, however, we identified the documents the applicant referred to and I confirmed that I had a copy of both the April 24, 2009 Application and the “What Happened” document.
64Following the call, the applicant submitted a Request for Reconsideration, seeking reconsideration of all of the Tribunal’s previous decisions in this matter. According to the applicant, reconsideration was necessary because, among other things, she alleged documents in the Tribunal file were “switched” and because the Tribunal had removed pages and/or allegations from the Application. The applicant stated that she discovered this during the February conference call
65This position was not only entirely speculative and without foundation, but also a misrepresentation of events. The fact that there was delay in identifying and locating a document within an extensive record does not reasonably suggest that a document was removed from the Tribunal’s file, that it was tampered with or replaced by another document, or that it was not considered.
66As a further basis for the request for reconsideration, the applicant submitted that the decisions in this matter should be reconsidered because my English language abilities impaired my understanding of the applicant’s evidence and submissions and meant that I was unwilling to review the numerous documents that were submitted in this case.
67It is entirely appropriate for a party to raise fairness issues and other objections. The fact that an objection is deemed unfounded would not normally lead to any adverse conclusions about the party’s credibility or the reliability of her evidence. In this case, however, the applicant’s contention that my language skills impaired my work on this case is specious. I regularly hear cases and write decisions in English, and I speak, write, and read English with ease. That the applicant would take such a position when faced with an obviously fluent English speaker brings the reliability of her perception of events into question.
Other Considerations
68In her closing submissions, the applicant referred to many documents (such as personal notes and emails) in which she recorded some of the alleged incidents of harassment. The fact that she recorded the alleged incidents is not, of course, proof that the incidents actually occurred. The applicant submits, however, that the fact of documenting them lends credence to her allegations. As a general rule, previous statements or iterations of matters testified to at hearing are considered a form of “prior consistent statement” and are inadmissible for the truth of their contents. Generally prior consistent statements cannot be relied on for the purpose of bolstering testimony at hearing. While there are exceptions to the rule against admission of prior consistent statements (such as for the purpose of rebutting an allegation of recent fabrication) none of these exceptions are relevant in the present case. Additionally, many of the applicant’s notes reflect sweeping allegations, based on speculation and inferences that are not reasonably probable. (For example, her notes and emails about her status within the union are not supported by the documentary evidence, see 2015 HRTO 872 at para 39 to 46).
69In these circumstances, and in light of the other considerations regarding credibility, the fact that the applicant documented some of her allegations does not assist me in assessing the truth of their contents.
Assessing the Respondent’s Credibility: Relevant Factors
70The respondent has consistently denied all of the allegations of wrongdoing and his evidence was internally consistent in this regard. Notwithstanding this, I am not satisfied that the respondent’s evidence is entirely credible. It is significant that on at least one point, the respondent’s evidence was not supported by the documentary evidence or the testimony of a third party, Mr. Leadingham.
71The respondent was adamant that no one had told him to stay away from the applicant. According to Mr. Leadingham, however, Mr. Smits reported doing just that. As noted, Mr. Leadingham summarized his discussion with Mr. Smits in an email to the applicant. Although Mr. Smits had no specific recollection of this conversation, he did not dispute the accuracy of what Mr. Leadingham reported.
72Mr. Leadingham provided his evidence in frank and straightforward manner and his own evidence was both internally consistent and consistent with the documentary evidence. Moreover, although Mr. Leadingham was originally named as a personal respondent in the Application, his evidence on this point supported the applicant. Based on Mr. Leadingham’s evidence, I accept that (contrary to the respondent’s assertions) the union asked the respondent to stay away from the applicant.
CONCLUSION
73For the reasons set out above, I am not satisfied that the applicant has presented information in a credible or reliable manner. In reaching this conclusion, I have considered factors relevant to both the credibility and reliability of the applicant’s evidence. These factors include inconsistencies between how the applicant described the incidents involving Mr. Marcone to police and how she presented them to the Tribunal, the scope and breadth of her allegations, the fact that some of her claims seem unlikely and were maintained even in the face of documentary evidence suggesting a more probable explanation, and the fact that many of her allegations rest on inferences that are not reasonably probable. I have also considered the applicant’s conduct during the hearing and the fact that she has frequently misconstrued and misrepresented what occurred during the hearing process.
74As mentioned, the applicant has the onus of establishing on a balance of probability that the incidents complained of occurred and that they constitute a violation of the Code. In my view, the applicant has not met this onus. On a balance of probabilities and based on my assessment of the credibility and reliability of the applicant’s evidence, I am not satisfied that the incidents she complained of occurred.
75While I have found that the applicant’s evidence is unreliable, I also have doubts about the credibility of the respondent’s evidence. This decision is not meant as an exoneration of the respondent. Rather, my conclusions are based on the fact that the applicant has the onus and that she has failed to present clear, convincing, and cogent evidence to satisfy the balance of probabilities test.
76For these reasons, the Application is dismissed.
Dated at Toronto, this 4th day of December, 2017.
“Signed by”
Michelle Flaherty
Member