Constantine Bassis v. Commissionaires Great Lakes, 2017 HRTO 1667

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Constantine Bassis Applicant

-and-

Commissionaires Great Lakes Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: December 15, 2017 Citation: 2017 HRTO 1667 Indexed as: Bassis v. Commissionaires Great Lakes

APPEARANCES

Constantine Bassis, Applicant Charles Mwewa, Counsel

Commissionaires Great Lakes, Respondent Landon Young, Counsel

1The applicant alleged that the respondent discriminated against him because of disability and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant’s allegations can be divided into three categories. First, he made a number of allegations of harassment against some of his co-workers, including that he was called a “rat” for making a complaint about allegedly illegal conduct by his co-workers (“general harassment allegations”). Second, the applicant also alleged that he was sexually harassed by a co-worker and that the respondent did not properly respond to his complaint about the incident (“sexual harassment allegations”). Finally, he also alleged that the respondent failed to provide reasonable accommodations for an alleged disability on his last day of active employment on or around May 7, 2015 (“disability accommodation allegations”).

2The respondent denied the applicant’s allegations.

3At the hearing, I heard testimony from the applicant as well as Kruno Balaban, Operations Manager for the respondent.

4For the reasons that follow, I find that the applicant has not made out discrimination in this case.

preliminary evidentiary issues

Applicant’s Journal

5At the hearing, the applicant requested permission to read from a journal he kept at the time of the events set out in his Application. The applicant said that his memory was affected by the medication he was taking. The applicant stated that a representative of the respondent’s human resources department had told him to keep the journal. He said that he made the notes in the journal based on the notes he took in the memo book he kept in his role as a Customer Service Representative. According to the applicant, he made the notes on the evening of the various incidents when he returned home from work. I granted the applicant’s request to use the notes to refresh his memory since he took the notes shortly following the various incidents set out in the Application.

6I asked the applicant whether he had any independent recollection of the events listed in his Application. He replied that he mostly did not and that this was why he needed to read from his journal. During cross-examination, the respondent’s counsel asked the applicant again whether he had any independent recollection of the events that occurred during the time frame that was relevant to this Application or whether his memory was a complete blank. The applicant replied that his memory was 75% blank but that he recalled certain events relating to alleged thefts by his co-workers and to his sexual harassment allegations. The applicant ended up reading extensively from his journal during direct-examination and at times during cross-examination. As discussed below, I have factored the applicant’s assertions about his lack of memory and his heavy reliance on his journal while testifying into my assessment of the credibility and reliability of his testimony in relation to events that he did not note in his journal.

Audio Recordings

7The applicant filed two audio-recordings as part of his pre-hearing disclosure. At the hearing, the applicant sought to rely upon a third recording that he had not filed with the Tribunal. The respondent objected to the admission of this third recording because the applicant had not disclosed it with his pre-hearing disclosure. The applicant’s representative indicated that he was content to proceed without the third recording.

8Later in the hearing, after the applicant had testified in relation to his general harassment allegations, the applicant requested once again that the Tribunal admit the third recording into evidence. In order to determine whether the recording had any relevance to the issues in this case, I asked the applicant’s representative to describe the contents of the recording to me. He indicated that the applicant made the recording during a meeting and that, on the recording, some of the applicant’s co-workers allegedly admitted to making certain comments relating to his general harassment allegations.

9I denied the applicant’s request to admit the third audio-recording into evidence. From the beginning of the hearing, I advised the applicant that it appeared to me that his general harassment allegations may not be connected to a Code ground. Based on the applicant’s description of the recording, the recording did not contain anything that could prove a connection between the applicant’s general harassment allegations and any Code ground. Therefore, I denied his request to admit the audio-recording into evidence.

factual background

10The applicant became employed by the respondent in or around May 2014. The applicant worked as a Customer Service Representative, providing vehicle and pedestrian traffic control at Pearson Airport. The time period covered by this Application extends from the end of February 2015 to in and around May 7, 2015, the applicant’s last day of active employment with the respondent.

General Harassment Allegations

11The applicant testified that some of his co-workers were involved in a theft ring at Pearson airport. He also testified that one of his co-workers, Mr. P, tried to get him to accept a bribe in return for cancelling a ticket he had issued. In addition, the applicant testified that another co-worker yelled at him and said “don’t fuckin’ walk away when I am talking to you” when he told the applicant to cancel a ticket he had issued. There appears to have been a disagreement, or misunderstanding, between the parties as to the circumstances in which the applicant was permitted to issue tickets.

12The applicant complained to the respondent about his co-workers’ conduct and claimed that the respondent did not adequately deal with his complaint concerning the conduct described in the previous paragraph. Mr. Balaban testified that the respondent conducted an investigation into the applicant’s complaint but that it was unable to substantiate his allegations about the theft ring.

13The applicant testified that some of his co-workers began to harass and threaten him due to his complaint to the respondent about their alleged illegal activity. According to the applicant, Mr. P. called him a “rat” and a couple of co-workers began to threaten him to the point where he feared for his life. He also testified that Mr. P made a comment to him about a gun in a book. In his testimony, the applicant did not claim that this harassment or these threats were based on his sex or disability or any Code ground. Instead, he testified that he was a moral employee and that his co-workers wanted to get back at him for complaining to management about their allegedly illegal conduct.

14Mr. Balaban testified that the respondent held a mediation meeting with the applicant and Mr. P to address the applicant’s complaints against Mr. P. At the end of the meeting, the applicant and Mr. P signed a letter indicating that they promised to work toward a positive and professional relationship. The respondent’s human resources representative indicated in the letter that both the applicant and Mr. P understood that the respondent would not tolerate harassing and unprofessional behaviour in the future.

Sexual Harassment Allegations

15In his Application, the applicant alleged that a different co-worker, Mr. G, made two sexually harassing comments to him on May 3, 2015. In his Application, he stated that, at 4:55 p.m., Mr. G, said “why don’t you suck my dick” to him in front of a woman and her young child. In addition, he alleged that on the same date, at 7:00 p.m., Mr. G. called his name three times saying “Bassis, Bassis, Bassis” in front of a co-worker and a supervisor and then asked “would you suck a man’s sack?”

16In his testimony at the hearing, the applicant testified that Mr. G made three sexually-related comments to him on May 3, 2015. He testified that Mr. G made the two comments at 4:55 p.m. and 7:00 p.m. alleged in his Application and then another one before he was about to leave work at the end of his shift. The applicant read from his journal to testify that, at 4:55 p.m., Mr. G said “why don’t you suck my dick” in front of a woman and her 5-year-old daughter. He also read from his journal to testify that, at 7:00 p.m., when he was walking by the traffic booth, Mr. G called his name three times “Bassis, Bassis, Bassis” in front of two co-workers and a supervisor and then said “Bassis would you suck a man’s sack?”.

17The respondent tendered into evidence an audio-recording of the 7:00 p.m. comment disclosed by the applicant. On the audio-recording, Mr. G asked the applicant “Bassis, would you lick a man’s nut sack for a million dollars?” The applicant can be heard telling Mr. G that he should not make that kind of comment because he is a family man and that he will “go downtown” (to human resources) if he makes such a comment again.

18The applicant testified that, after the 7:00 p.m. comment, he complained about Mr. G’s comments to the supervisor who had been present and she said she would speak to Mr. G. According to the applicant, Mr. G apologized twice shortly after he made the comments, they shook hands and Mr. G told him it would not happen again. The applicant told Mr. G he would write him up if he made such comments again.

19The applicant testified that he did not think that Mr. G’s apology was sincere since he “would continue on and say, ‘Bassis are you gay?’” The only further comment from Mr. G that the applicant testified to was an alleged third comment made on the same shift. According to the applicant, at the end of his shift, Mr. G. said “are you gay or something”. This was after Mr. G had apologized to him after the 7:00 p.m. comment.

20The applicant testified that the comments were degrading and offensive. He said that he was a family man and had kids and that Mr. G should not have talked to him like that. He went further to say that he started “questioning his manhood” and whether he was gay. When asked in cross-examination whether he took the comments to be a sexual advance, the applicant testified that he did not know what Mr. G was thinking but that he himself was not gay and that the whole thing was not a joke. During re-examination on the second hearing day, the applicant testified that he did feel like Mr. G was coming onto him. He said that he was reluctant to say so on the first hearing day because his wife was in the room.

21In cross-examination, the applicant admitted that he had not documented the 4:55 p.m. comment in his memo book but that he had recorded the 7:00 p.m. comment. In his memo book, the applicant wrote a note that he was back from break at 4:55 p.m. However, he did not make a notation about any comments made around that time. When asked why he wrote down a notation about the 7:00 p.m. comment but not the 4:55 p.m. comment, the applicant said that he was just following the directions he had received from human resources to keep notes of any harassing comments. When the respondent’s counsel pressed him on why he did not write a note about the 4:55 p.m. comment in his memo book if that was what human resources told him to do, the applicant replied that he wrote about it in his journal when he got home.

22In cross-examination, the applicant also admitted that he did not record the alleged third comment either in his memo book or in his journal, and that he had not raised it in his Application. The applicant testified that he did not note the third comment in his journal because he got tired of writing things down and he was frustrated by the comments. In his memo book, the applicant wrote a notation that he booked off at 10:45 p.m. However, he did not make a notation about any comment made to him before booking off.

23The applicant also did not raise the alleged third comment in a complaint he e-mailed to his manager on May 7, 2015. In that e-mail, he complained about being harassed by some of his co-workers including the two sexually-related comments by Mr. G that he said were made at 4:55 p.m. and 7:00 p.m., respectively. He did not mention a third comment in the e-mail. In cross-examination, the applicant initially claimed that the May 7, 2015 email filed by the respondent was a forgery. He appeared to indicate that the respondent had altered the email in some way. At the end of the first hearing day, I advised the applicant that I would permit him to enter into evidence a different version of the email if he had one. During his re-examination at the start of the second hearing day, the applicant confirmed that the email was in fact an accurate copy of the one he sent to the respondent. The applicant claimed that the medication he had taken before testifying the day before was wearing off by the end of the day and that this explained his claim that the email was a forgery.

24Mr. Balaban testified that, after he received the applicant’s May 7, 2015 e-mail, he asked the employees who had been present for the sexually-related comments to file incident reports. Mr. G submitted an incident report in which he admitted to asking the applicant “would you lick someone’s nuts for a million dollars” around 7:00 p.m. but said that he meant it as a joke. He did not mention a prior comment in the report. He also stated that he apologized to the applicant, that they shook hands, and continued with their shift with no problems.

25One of the applicant’s co-workers who was present at the time of the 7:00 p.m. comment wrote that he heard Mr. G make the comment. In addition, the applicant’s supervisor submitted a report in which she indicated she had heard the comment. In the report, the supervisor said that the applicant told her that Mr. G had made another comment to him earlier in front of a woman and her daughter. The supervisor wrote in the report that she told Mr. G the comment was inappropriate, that he should apologize to the applicant, that he did so and shook hands with the applicant, and everyone went their separate ways.

26Mr. Balaban testified that the only complaint he received from the applicant about the incident was the May 7, 2015 email sent by the applicant after he was sent home that day. Mr. Balaban testified that he made a note to himself to follow up with the applicant about the issue when he returned to work on May 8, 2015. As it turned out, the applicant went on a medical leave and did not returned to active employment after that time.

Disability Accommodation Allegations

27The applicant testified that he had to leave his post on May 7, 2015, due to a nose bleed. According to the applicant’s memo book, he booked on duty that day around 3:00 p.m. Around an hour and a half later, the applicant advised his supervisor that he had a nose bleed and had to go to the washroom to deal with it. In his May 7, 2015 email to the respondent, the applicant attributed his nose bleed to his taking Celebrex, which is anti-inflammatory medication. While the applicant was in the washroom, his supervisor called him on his radio to ask where he was. The applicant left the washroom and testified that his nose was still bleeding and he felt a little dizzy. The applicant’s supervisor ended up sending him home and told him he would be paid for the day.

28The applicant testified that the respondent did not provide anyone to escort him home, it did not administer first aid and no one contacted him at home to see if he was OK. The applicant testified that he had taken some days off work the previous week for medical reasons and that he felt like the respondent did not care if he died. The applicant ended up going to his family doctor and obtaining a note to take some time off work. The applicant testified that his doctor prescribed anti-depressants for stress, difficulty sleeping, anxiety and panic attacks.

29Mr. Balaban confirmed that the respondent paid the applicant for the rest of his shift on May 7, 2015. In an incident report that was submitted into evidence, the applicant’s supervisor wrote that the applicant was sent home due to the nosebleed and also because he had become aggressive and yelled at various co-workers and also his union steward who was called in at the applicant’s request. The applicant denied yelling at anyone that day.

analysis and findings

30The applicant has the onus of establishing discrimination or harassment by the respondent on a balance of probabilities. For the reasons set out below, I find that the applicant has failed to make out that onus in this case.

General Harassment Allegations

31The applicant submitted that he had established harassment as that term is defined in s. 10 of the Code. The applicant also sought to link his allegations of general harassment to his sexual harassment allegations. He submitted that the Tribunal has a discretion under the Code to treat his general harassment allegations as part of a pattern of harassment along with his sexual harassment allegations and find a violation of the Code in regards to all of his harassment allegations.

32I do not agree. This Tribunal has consistently held that the Code does not prohibit all forms of harassment but only harassment that is linked to the grounds listed in the Code. The applicant is correct that section s. 10 of the Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” However, s. 10 is a definition section. It must be read in conjunction with the Code’s protections against discrimination and harassment which are contained in Part I of the Code. In this case, the applicant, alleged discrimination and harassment in employment. Section 5(2) of the Code of the Code is the applicable provision that provides the right to freedom from harassment in the workplace on the basis of the grounds that are listed in that section.

33The applicant himself did not claim that his general harassment allegations were in any way linked to his sex, disability or any other Code ground. Instead, he testified that his co-workers carried out the general harassment described above because of the complaint he made about their allegedly illegal behaviour. In essence, the applicant claimed that his co-workers harassed him for being a whistle blower. Even if I were to find that this was the case, this by itself would does not constitute a violation of the Code. Also, even if it is true that the general harassment the applicant claims to have experienced from his co-workers caused, or exacerbated, certain mental health issues, that also is not a violation of the Code. The Code prohibits harassment and differential treatment because of a disability or perceived disability. In extreme cases, harassment or discrimination may cause a disability, but that is different from discrimination or harassment for reasons relating to a disability. See for example, Yochim v. Complex Services Inc., 2012 HRTO 1396 at para. 34.

34Finally, I do not agree that the instances of general harassment can be found to constitute a violation of the Code solely because the applicant has also raised different allegations of Code-based harassment. I can appreciate that the applicant experienced the different forms of harassment he claims to have experienced as one connected pattern of harassment. However, for the purposes of the legal analysis under the Code, the applicant’s allegations of harassment consist of allegations of Code-based harassment and allegations of general harassment that are not covered by the Code. There may be cases where non-Code related conduct may be so closely tied with conduct that is linked to a Code-ground that non-Code related conduct is relevant to determining the Code-related allegations. However, I do not believe that is the case here. In my view, the applicant’s allegations that Mr. P and some of his co-workers harassed him for having complained about their alleged illegal conduct were clearly distinguishable from his allegations of sexual harassment by Mr. G and his disability accommodation allegations which related to the supervisor working on May 7, 2015.

35For these reasons, the applicant has not made out a violation of the Code in regards to his general harassment allegations.

Sexual Harassment Allegations

36The applicant submitted that the three comments he alleges were made to him by Mr. G amount to sexual harassment under the Code and that the respondent failed to appropriately deal with his complaints about these comments.

37Although the applicant claimed that Mr. G made three sexually-related comments to him on May 3, 2015, I find that at most, only two comments were made – the comment at 4:55 p.m. and the one at 7:00 p.m. I do not find the applicant’s testimony about the third alleged comment credible or reliable. As noted above, the applicant did not raise the alleged third comment in his Application and he made no notation about the comment either in his memo book or his journal. The applicant provided no satisfactory explanation for why he would not have made a notation about the alleged third comment in his journal since, as he himself testified, he was using the journal to keep track of issues that arose with his co-workers. The applicant himself stated at the hearing that 75% of his memory of events was blank and that it was for this reason that he needed to rely upon his journal to testify in the hearing. In addition, the applicant did not raise the third alleged comment in the letter of complaint he submitted to the respondent three days after the comments in question. Taking all of the above into account, I do not find the applicant’s testimony about the third comment credible or reliable.

38In the circumstances of this case, I do not need to determine whether the two other comments would amount to sexual harassment under the Code. The applicant did not name Mr. G as a personal respondent in this case. Under s. 46.3(1) of the Code, an employer is deemed liable for any acts of employees undertaken in the course of their employment. However, under that provision, an employer is not deemed liable for any harassment by employees under s. 5(2) of the Code or any sexual harassment under s. 7 of the Code. Therefore, in the circumstances of this case, the respondent would only be liable for Mr. G’s comments if it either did not respond appropriately to the applicant’s complaints about the comments or if the comments created a poisoned work environment.

Respondent’s response to complaints

39It is well established that the standard for assessing a respondent’s response to an allegation of discrimination or harassment is reasonableness, not perfection or correctness. See e.g. Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. In my view, the respondent responded reasonably to the applicant’s complaints about Mr. G’s comments on May 3, 2015. The applicant testified that his supervisor told Mr. G that the comments were not appropriate and that he should apologize to the applicant. Mr. G apologized and said he would not make such comments again. He and the applicant then shook hands. In my view, the supervisor’s response to the applicant’s complaint was reasonable and she had every reason to believe the matter was settled.

40The applicant appears to allege that the respondent’s response to his complaint was not adequate because Mr. G allegedly persisted in making sexual comments to him. The only further comment that the applicant alleged was the third comment he claimed Mr. G made shortly before the end of his shift. For the reasons set out above, I do not find his testimony about that third comment credible or reliable. In any event, the applicant never complained to the respondent about any continued sexually-related comments by Mr. G. As noted above, in his May 7, 2015 letter of complaint to the respondent, the applicant only raised the two comments he claimed were made at 4:55 p.m. and 7:00 p.m., respectively. In my view, it was reasonable for the respondent to consider that these comments had already been appropriately dealt with by the shift supervisor. Therefore, in all of the circumstances, I consider the respondent’s response to the applicant’s complaints regarding the sexual harassment allegations to be reasonable.

Whether the comments created a poisoned work environment

41The Divisional Court has held that the test for finding a poisoned work environment in violation of the Code is the same as the test applied at common law on the issue of whether a poisoned work environment amounts to constructive dismissal: see Crêpe It Up! v. Hamilton, 2014 ONSC 6721 at paras. 18-19.

42In Crepe It Up!, the Divisional Court adopted the test articulated by the Ontario Court of Appeal in General Motors of Canada Ltd. v. Johnson, 2013 ONCA 502 at paras. 66-67:

... There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created. ...

Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.

43In my view, the applicant’s testimony about his reaction to the comments was exaggerated. I do not find it credible that the applicant interpreted the comments as a sexual advance as he claimed during his re-examination. As noted above, the applicant made no such claim during his direct examination or his cross-examination. I do not find credible his claim that the reason he did not do so is because his wife was in the room at the time. In my view, the applicant was attempting to embellish his evidence from the day before. In his direct examination and cross-examination, the applicant testified that he found the comments degrading and offensive because of the implicit suggestion that he was gay. He testified that he found the comments offensive because he is a family man and has kids. He claimed the comments caused him to question his “manhood” and whether he was gay. I do not find it credible that the applicant questioned his sexuality as a result of these two comments by his co-worker.

44In any event, the poisoned work environment test set out above makes clear that the perspective to be used is that of an objective reasonable bystander. The evidence in this case was that Mr. G, a co-worker, asked the applicant “would you lick a guy’s nuts for a million dollars.” The applicant also testified that Mr. G told him “suck my dick.” Even if I were to accept that Mr. G did make this comment in addition to the first one set out above, I do not find that these comments amounted to what an objective reasonable bystander would conclude amounted to “particularly egregious” incidents of sexual harassment or “serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated.”

45While the comments may have been inappropriate, an objective reasonable bystander would not consider them particularly egregious or serious wrongful behaviour sufficient to create a hostile or intolerable work environment when they are considered in their full context. I do not find it credible that Mr. G was making any kind of sexual advance toward the applicant. Also, in determining whether the respondent employer is responsible for a poisoned work environment, it is relevant that, when the applicant complained to his supervisor, she told Mr. G to apologize for the comments and he did so almost immediately or at least with very little time passing. Mr. G also shook the applicant’s hand, told him he would not make any such comments again, and there was no credible or reliable evidence that Mr. G persisted in making harassing or sexually-related comments to the applicant after his apologies. In these circumstances, I do not consider the comments to create a poisoned work environment for which the respondent is liable.

46The applicant sought to rely upon the following cases in which adjudicators made findings of sexual harassment and/or poisoned work environment: Janzen v. Platy Enterprises Ltd. 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 (“Janzen”); Holmes v. LBE Holdings formerly known as UCB Canada Inc., [1996] B.C.C.H.R.D. No. 17 (“Holmes”); Hamilton (City) v Amalgamated Transit Union, Local 107, 2013 CanLII 62266 (“Hamilton”); Anderson v. Law Help Ltd., 2016 HRTO 1683. In my view, the facts in these cases bear no resemblance to the facts of this case. The conduct in all of these cases was significantly more serious than the conduct in this case as they involved unwanted touching and sexual advances (Janzen); unwanted touching, kissing, and the placing of a complainant’s hand on a supervisor’s sexual body part (Holmes); unwanted touching and the sending of pornography by a supervisor (Hamilton); and sexual advances and solicitation by a boss (Anderson). None of these cases compare to the situation in this case.

47For all these reasons, the applicant’s sexual harassment allegations are dismissed.

Disability Accommodation Allegations

48The applicant claimed that the respondent failed to provide reasonable accommodations for a disability on May 7, 2015, the day he was sent home from work following his nosebleed. The first question to consider is whether, the applicant has provided evidence to establish that he had a disability on that day. The applicant claimed that the nosebleed and related dizziness amounted to a “disabling condition.”

49While the definition of a disability in the Code is very broad, the Tribunal has repeatedly held that it does not include commonplace, temporary ailments such as the flu or a cold. See for example Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960. Likewise, in my view, a nosebleed and a small amount of dizziness do not amount to disabilities under the Code. While they may be symptoms of a disability, they themselves do not amount to a disability. While the applicant later went off on a medical leave of absence, the applicant’s evidence did not establish that the disabling condition that required accommodation on May 7, 2015 was anything more than a nosebleed and some dizziness. These ailments do not amount to a disability under the Code.

50Even if they did amount to a disability, in my view, the respondent provided reasonable accommodations for the applicant’s condition by permitting him to go home with pay. While the applicant claimed that the respondent should have administered first aid or provided an escort to get him home, there was no evidence that he needed, or asked for, such accommodations. In the circumstances, the respondent reasonably accommodated the applicant’s condition on May 7, 2015 by permitting him to go home early with pay.

51For these reasons, I find that the applicant has not made out discrimination based on disability in this case.

order

52For the reasons set out above, the Application is dismissed.