Dawson v. Canada Post Corporation

Dawson v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2008-10-03
Neutral citation
2008 CHRT 41
Decision-maker(s)
Deschamps, Pierre
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
MICHELLE DAWSON
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR DECISION
2008 CHRT 41 2008/10/03
MEMBER: Pierre Deschamps
I. INTRODUCTION
II. PRELIMINARY CONSIDERATIONS
A. Past events
(i) The Cantin Report
(ii) The 2001 settlement
B. Ms. Dawson's career at Canada Post
C. Ms. Dawson's medical condition
III. LEGAL CONSIDERATIONS
A. The relevant legal principles
(i) Discrimination
(ii) Retaliation
(iii) Harassment
B. The relevant allegations
(i) Autistic individuals and the CHRA
a) The testimony of Ms. Dawson
1. Ms. Dawson's testimony on autism
2. Ms. Dawson's testimony on autistic people
3. Ms. Dawson's testimony about herself
b) The testimony of Dr. M
1. Dr. M.'s testimony about autism
2. Dr. M.'s testimony about autistic people
3. Dr. M.'s testimony about Ms. Dawson
(ii) Allegations related to specific individuals
(iii) Allegations related to specific incidents
a) Ms. Dawson's medical file
b) The Ottawa meeting
c) The work related injury
(iv) The tape-recording of conversations
IV. REMEDIES
V. ORDER
I. INTRODUCTION [1] Ms. Dawson is an autistic person. On August 9, 2002, she filed a human rights complaint with the Canadian Human Rights Commission against the Respondent. This complaint was the second complaint filed by Ms. Dawson against the Respondent. The record shows that, with respect to her first complaint, a settlement between the Respondent and the Complainant was reached on August 16, 2001. The record also shows that the implementation of the settlement gave rise to a lot of aggravation on the part of Ms. Dawson who felt that the settlement was not being respected by the Respondent, that in fact it was being violated.
[2] In her complaint, dated August 9, 2002, Ms. Dawson alleges that the Respondent discriminated against her on the basis of disability, in breach of section 7 of the Canadian Human Rights Act in that it failed to accommodate her disability (autism). Ms. Dawson further alleges that the Respondent subjected her to harassment on the basis of disability, contrary to section 14 of the Canadian Human Rights Act. Finally, Ms. Dawson alleges that the Respondent retaliated against her for having filed a previous human rights complaint, contrary to section 14.1 of the Canadian Human Rights Act.
[3] Section 7(b) of the Canadian Human Rights Act states that it is a discriminatory practice, directly or indirectly in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Section 14(c) of the Act states that it is a discriminatory practice in matters related to employment to harass an individual on a prohibited ground of discrimination. As for section 14.1 of the Act, it states that it is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim. As for the prohibited grounds of discrimination, they are described in section 3 of the Act and are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
[4] At the hearing, Ms. Dawson represented herself without the help of legal counsel. The Commission was represented by legal counsel, and so was the Respondent.
[5] At the outset, it must be noted that the Complainant, in her final submissions as well as throughout the hearing, was very critical about how the Tribunal dealt with her requests for accommodation during the hearing. The Complainant was of the view that the Tribunal was more inclined to accommodate non-autistic people's needs than her own needs.
[6] For example, Ms. Dawson stated repeatedly at the beginning of the hearing that the hearing was not accessible to autistic people like her. She furthermore stated that she was not provided with the information she needed, nor was she provided with the answers she needed. She further asserted that the kind of schedule imposed on her, i.e. long lunch hours, long hours, did not meet her needs, that what she needed was a very fast concentrated day with short breaks, no lunch. In that respect, Ms. Dawson acknowledged that she had fairly big logistical problems. Ms. Dawson also stated that the Commission was largely adversarial in this case, that in fact, she did not have the co-operation of the Commission.
[7] The Tribunal will refrain from judicially justifying the decisions that were made with respect to the conduct of the hearing and will let the record speak for itself. This said, in her final submissions, the Complainant asks that the identity of her treating physicians be kept confidential so as to protect her own privacy. The Tribunal sees no prejudice to any of the other parties in not mentioning the name of Ms. Dawson's treating physicians or the name of the psychologist who diagnosed her condition.
II. PRELIMINARY CONSIDERATIONS [8] Before analysing the substantive issues that this complaint raises, there are a number of preliminary matters that need to be addressed. These are A. pasts events, B. Ms. Dawson's career at Canada Post and C. Ms. Dawson's medical condition.
A. Past events [9] The Tribunal is of the view that it is important in order to understand the issues relevant to the present complaint to consider events that preceded the filing of this complaint. The Tribunal is mindful of the fact that these events were covered by the first complaint filed by Ms. Dawson, which was the object of a settlement between the parties. These events, although not part of this complaint, were referred to and commented upon in the course of the hearing. They provide the background to the present complaint. However, they cannot in any way be determinative with respect to the findings made in relation to the events covered by the present complaint, events that occurred between September 2001 and June 2002. The Tribunal will consider firstly, the Cantin Report and secondly, the 2001 settlement.
[10] Both Ms. Dawson and Ms. Daoust, a witness called by the Respondent, testified about these events. Ms. Daoust was, between November 1998 and November 2002, Health and Safety Manager at Canada Post and was in charge of managing work related accidents as well as the prevention of accidents.
(i) The Cantin Report [11] At the hearing, Ms. Daoust explained to the Tribunal when and how she got involved with Ms. Dawson's case. In that respect, she testified that, in July 1999, she got a call from one of Ms. Dawson's supervisors, Mr. Schetagne, who informed her that some Pierrefonds postal workers (not management) had gone to management and had expressed concerns about seeing an employee coming to work with self-inflicted wounds and feared that one day they could be injured by that person. According to Ms. Daoust, these employees were wondering if this person represented a threat to their safety. Mr. Schetagne asked Ms. Daoust to send someone to the Pierrefonds postal station to speak to the employees and address their concerns. Ms. Dawson testified that this came as a surprise and a shock to her to know that colleagues would have thought that she could become violent and pose a threat to their safety.
[12] Ms. Daoust testified that she then sent Ms. Johanne Cantin, who was director of the Employees' Assistance Program (EAP), to meet with the employees at the Pierrefonds postal station. Ms. Daoust stated that when she asked Ms. Cantin to go to the postal station, it was to reassure employees and not to conduct an investigation on Ms. Dawson. According to Ms. Daoust, Ms. Cantin met with the employees, wrote a report and handed her report to her in July 1999.
[13] There is no need here to refer to the exact content of the report if not to say that it contained Ms. Cantin's observations and recommendations, that it was sent to a number of Canada Post people and that Ms. Dawson only became aware of the report at the end of 2000. Ms. Dawson's indicated in her testimony that the fact that so many people at Canada Post got a copy of the report negatively affected their views about her.
[14] Ms. Daoust further testified that when she sent Ms. Cantin to the Pierrefonds postal station to investigate, she did not know who Ms. Dawson was and that Ms. Cantin had a professional relationship with Ms. Dawson. The evidence shows that Canada Post contracts with an outside organization to provide an EAP and that it is that organization which decides who is going to be the person who will respond to any request made by Canada Post. Ms. Daoust testified that Canada Post found out about Ms. Dawson's disability after the Cantin inquiry.
[15] The evidence shows that the Cantin report was sent to Medisys, a firm which handles medical matter for the Respondent and also found its way into Ms. Dawson's administrative file at the Pierrefonds postal station. Given the content of Ms. Cantin's report, Ms. Daoust testified that she felt that the matter needed a follow-up. The decision was thus made to send a nurse, Madeleine Dufour, from Medisys to Ms. Dawson's workplace in order to provide reassurance to the postal station employees. Ms. Dawson testified that she was never made aware of this measure. Ms. Daoust testified that the Union was made aware as well as her chef d'unité.
[16] The additional steps taken by Canada Post revealed that Ms. Dawson did not represent any threat to her colleagues, that she had never injured herself in front of co-workers. Ms. Daoust testified that all those who received a copy of the Cantin report were told to disregard the report.
[17] In her testimony, Ms. Dawson stated time and time again that she saw the initiative to send Ms. Cantin to the Pierrefonds postal station as an investigation on her after serious allegations had been made by colleagues in relation to her violent behavior.
[18] Ms. Daoust testified that, when Ms. Dawson learned about the existence of the Cantin report, in November 2000, she was very angry that such an inquiry had been conducted without her knowledge, that she did not understand why such an inquiry had taken place as well as why the information contained in the report had circulated within Canada Post.
[19] In the course of her cross-examination, Ms. Daoust testified that right after December 2000, Ms. Dawson would have called her between three to five times, maybe four. She was however not able to provide dates. According to Ms. Daoust, the calls were about the Cantin Report. Ms. Daoust testified that, in the first phone call, Ms. Dawson complained about the content of the report. Ms. Daoust stated that Ms. Dawson never mentioned to her that Ms. Cantin was her psychologist. Ms. Daoust recalled that Ms. Dawson asked her at the time to remove the letter from her file and to tell her co-workers that the content of the report was false. Ms. Daoust further testified that in one of the telephone conversations in relation to the Cantin report, a discussion took place about what Ms. Daoust would do if she was told that a person had a gun in the postal unit.
[20] The record shows that, after Ms. Dawson discovered the existence of the Cantin report, Ms. Daoust drafted two apology letters.
[21] The first letter, dated January 18, 2001, is in reference to the report produced by Ms. Cantin, Canada Post EAP Coordinator in July 1999. The record shows that this draft letter did not meet Ms. Dawson's expectations. In the letter, Ms. Daoust acknowledges that the report had found its way in Ms. Dawson's personal file, where it should never have been placed, that it was not of a disciplinary nature but a sum-up of Ms. Cantin's observations and a summary of facts that were reported to her by some of the employees of the Pierrefonds postal station. Ms. Daoust further writes in the draft letter that the report was written for management to better understand the situation and help inform colleagues adequately whenever necessary and assured Ms. Dawson that it would be destroyed immediately. Finally, Ms. Daoust states that, at the time of the report, Ms. Cantin made a more complete verbal report and informed Canada Post management that no one in her working area should ever feel concerned regarding their security at work.
[22] The second draft letter, which is dated June 4, 2001 and was also rejected by Ms. Dawson, refers to a meeting held on February 7, 2001 with Ms. Dawson. The letter states that there were never any complaints regarding her work that were made and that her work was exemplary, that she had not engaged in a certain type of conduct, that she was not dangerous for other people and would not physically attack anyone.
(ii) The 2001 settlement [23] The record shows that the first complaint filed by the Complainant against the Respondent was settled on August 16, 2001. The first complaint had to do with the Cantin Report. Under the terms of the settlement, the Respondent agreed to pay a certain amount of money to a charity and to apologize to Ms. Dawson.
[24] In the course of her testimony, Ms. Dawson alluded many times to the problems she encountered with respect to the settlement of the first complaint and the way it was handled by Ms. Huguette Demers, Canada Post Director of Human Resources for the province of Québec. The delay in paying the settlement money became very annoying to Ms. Dawson. What appears to have been especially annoying to Ms. Dawson was the fact that Ms. Demers told her that the settlement payment had been made when in fact it had not.
[25] The evidence shows that Ms. Dawson was able to explain the settlement to her co-workers at a five-minute floor meeting on September 6, 2001. Ms. Dawson noted that the meeting came after the airing in February 2001 on Radio-Canada of a documentary featuring her. According to her testimony, 100 people attended this meeting. At the meeting, Ms. Dawson stated that she was autistic, informed those present of her human rights complaint which had just been settled and talked a bit about the human rights training done by Canada Post. More specifically, Ms. Dawson pointed out that discrimination against autistic people is not caused by autistic people, that the problem is not autism and that there is not one set of rights for people judged to be crazy and one for everybody else.
[26] For her part, Ms. Daoust testified that, in 2001, after the settlement of the first complaint, meetings were held with Ms. Dawson. Ms. Daoust was present at two of these meeting which were held at the Pierrefonds postal station.
[27] The record shows that a meeting was held on September 21, 2001. Richard Paradis, Danielle Daoust, Jacques Théroux, Christian Potvin and Michel Couture were present at the meeting. Ms. Daoust stated that, at one point in the course of the meeting, Ms. Dawson told Richard Paradis to shut up and that he did not have the right to talk. Ms. Daoust, however, admitted that she did not recall the exact words that were used. Ms. Daoust further stated that she did not recall what was the purpose of the meeting and who had called the meeting.
[28] Ms. Daoust nonetheless stated that at the meeting, the content of the apology letters, referred to above, was discussed. Ms. Daoust testified that it was Ms Dawson who had requested that a statement to the effect that she was not violent be put in the letter. Ms. Dawson stated, in her testimony, that she needed this to be written down in order to ensure her safety. It appears that Ms. Daoust, according to Ms. Dawson, did not want to acknowledge that the second letter was badly worded, especially the part where it is stated that in concluding, the management and your colleagues now know that although you suffer from an autism disorder, your condition represents no threat to the safety of others. Ms. Dawson further testified that, in the course of the meeting, she was told that if she had concerns about anything, she should speak to Richard Paradis.
[29] It is worth noting here that Ms. Boucher, Manager of Human Rights at Canada Post, one of the Respondent's two witnesses, stated in her testimony that it was in the context of the application of the settlement of the first complaint that a person was assigned to answer Ms. Dawson's inquiries and that the decision was made to minimize the number of persons who had to deal with Ms. Dawson. According to the testimony of Ms. Boucher, that person was at first Richard Paradis and later Huguette Demers. This was done in order to better understand Ms. Dawson and resolve her concerns, it appears.
[30] Ms. Daoust testified that, after the settlement of the first complaint, she received calls from Ms. Dawson who was still preoccupied by the settlement. According to Ms. Daoust, all the phone conversations lasted between 30 to 45 minutes. She explained that the reason why Ms. Dawson was phoning her was because she had made phone calls to her bosses and that they had not returned her calls. Ms. Daoust stated that during the phone calls, Ms. Dawson sometimes raised her voice, especially when she did not get the answer she wanted but that she never was insulting.
[31] The record shows that it took an additional few months to completely resolve the settlement issue. In fact, it was not resolved until December 2001.
[32] It is worth nothing here that in the course of her testimony, Ms. Daoust stated that, after July 1999, she had many phone call conversations initiated by Ms. Dawson. She admitted that she never took notes of these phone conversations. According to Ms. Daoust, these telephone conversations, which took place at the end of the day, lasted for very long periods of time, between half an hour and one hour. Ms. Daoust however acknowledged that some of them were shorter but most of them were probably around 30 minutes or more.
[33] According to Ms. Daoust, Ms. Dawson talked endlessly and, at times, became very upset. Ms. Daoust testified that she was not the only one receiving phone calls from Ms. Dawson. Individuals such as Carman Lapointe-Young, Raymond Poirier, Huguette Demers, Richard Paradis and Louise Lefebvre all experienced this kind of situation that was not always easy to deal with. According to Ms. Daoust, the individuals Ms. Dawson called were forced to ultimately hang up on Ms. Dawson in order to cut short the conversation.
[34] In relation to the phone calls, Ms. Daoust stated that she could not recall when Ms. Dawson started speaking to Ms. Traversy, Corporate Manager, Industrial Relations, and how many time she spoke with her. She, however, was able to recall that Ms. Traversy had called her and had told her that Ms. Dawson had called and that her enquiries should be dealt with locally and not at a national level. The record shows that Ms. Traversy became involved in Ms. Dawson's file in the course of the settlement of the first complaint which took place in the August 2001.
[35] Ms. Dawson, according to Ms. Daoust, called her because she was concerned about losing her job because she had come to work injured, about being seen as a bad employee. According to Ms. Daoust, these telephone conversations would have taken place at the time when the restructuring of the Pierrefonds postal station took place which was, according to Ms. Dawson, in April 1999 and according to Ms. Daoust, in July 1999, notably in relation to her sorting case. Ms. Daoust was however unable to recollect precisely if these telephone conversations had taken place at the time of the restructuring or in December 2000 when Ms. Dawson got a copy of the Cantin Report.
[36] In her testimony, Ms. Dawson strongly disputed the fact that she had started phoning Ms. Daoust in 1999. For her, this was pure fabrication. Ms. Dawson stated that she had been working at Canada Post since 1988 and found it incredible that she would have started calling Ms. Daoust after July 1999 for whatever reason.
[37] Ms. Dawson testified that she only became aware of the existence of Ms. Daoust when she became aware of the Cantin report in November 2000. The record shows that Ms. Daoust wrote to Ms. Dawson on January 18, 2001 in reference to the Cantin report. Ms. Dawson further testified that she met Ms. Daoust for the first time on September 21, 2001 in the context of the settlement of her first complaint.
[38] Asked by Ms. Dawson if it was possible that she might have started telephoning her after August 7, 2001, after the signing of the minutes of settlement, Ms. Daoust answered that everything was possible, that she did not have the dates. Asked by the Chair if it was to be understood that between 1999 and September 2001, she had many telephone calls from Ms. Dawson where the latter talked about problems she had at work, Ms. Daoust gave the following answer: Well, I'm under the impression that we did talk not too long after the investigation. Obviously, after the report was found (late 2000), there were increasing calls, increasing issues, but at such dates, like I said, Mrs. Dawson is very good at dates because she writes everything, she knows when, and this and that, I didn't take any notes.
[39] The evidence shows that Ms. Daoust was not able to recall precisely when she started talking on the telephone with Ms. Dawson. Furthermore, given the time line of events, the testimony of Ms. Dawson as well as the testimony of Dr. M., infra, that autistic individuals are extraordinarily precise of the things they complain about, the Tribunal finds that in all probability Ms. Dawson started telephoning Ms. Daoust after she discovered the Cantin report, i.e. in November 2000.
[40] The above events, i.e. the Cantin Report as well as the 2001 settlement, provide the background to Ms. Dawson's second complaint and provide valuable information for the understanding of the events that form part of Ms. Dawson's second complaint.
B. Ms. Dawson's career at Canada Post [41] Ms. Dawson started her employment at Canada Post in December 1988 as a full-time letter carrier. Ms. Dawson stated in her testimony that she worked at Canada Post for 15 years, until she went on sick leave. Now, she says, she feels that she has sort of lost her work at Canada Post and that she is not inclined to go back. Ms. Dawson testified that she liked her job a lot and that it was very important to her.
[42] Ms. Dawson stated in her testimony that she was a very good employee. She testified that she had a perfect work record at Canada Post: she did not take sick days, she did not do overtime on her route, she did not declare work accidents and she did not complain when her rights were violated, she never had disciplinary measures taken against her, even in a minor way, that she was doing everything that Canada Post considered that an employee should do. Nothing in the evidence shows otherwise. None of the witnesses called by Canada Post questioned her perfect work record at Canada Post, on the contrary.
[43] For example, in the second draft letter written by Ms. Daoust, in relation to the first complaint and which was rejected by Ms. Dawson, it is clearly acknowledged by Canada Post that her work as a letter carrier was at the time exemplary and that no complaints had been received from customers. In the letter of apology that was posted on August 7, 2001 on the Pierrefonds' Postal Station Bulletin Board, Ms. Traversy, Corporate Manager, Industrial Relations at Canada Post, clearly acknowledges Canada Post's confidence in Ms. Dawson's capabilities and her commitment to high standards in her work. In the letter of apology, Canada Post also acknowledges that Ms. Dawson had never done anything wrong to merit any complaint either from management, colleagues or clients.
[44] Ms. Dawson testified that a lot of people on her work floor did really nice things for her and that she would help them out. However, she stated in her testimony that she had problems with her supervisors, mainly Mr. Schetagne and Mr. Potvin. She referred to specific incidents in her testimony, one of them being the day where Mr. Potvin came up to her and said that she would not be getting the things she had asked for by way of accommodation and that he had thrown her rack out. Ms. Dawson also mentioned an incident with Mr. Schetagne where the latter grabbed her and pushed her or shoved her into his office.
[45] Ms. Daoust testified that Canada Post tried to accommodate Ms. Dawson in many ways, that Canada Post, according to Ms. Daoust, bent or ignored the rules in order to accommodate Ms. Dawson. This was strongly contested by Ms. Dawson.
[46] For example, in relation to the restructuring of the Pierrefonds postal station which, according to Ms. Dawson occurred in the spring of 1999, Ms. Daoust testified that Canada Post tried to change as little as possible Ms. Dawson's delivery route, given that Ms. Dawson was autistic, that any change to Ms. Dawson's delivery route entailed a lot for Ms. Dawson, that in the course of the restructuring of delivery routes at the Pierrefonds postal station, Ms. Dawson's route was not part of the bidding process so as to allow her to keep the bulk of her route and keep the changes at a minimum level.
[47] According to Ms. Daoust, Ms. Dawson, by way of accommodation, was allowed to start her work before her colleagues, that she was allowed to pick up her mail before her other colleagues. Ms. Daoust also stated that Canada Post made some changes to the lighting system so as to accommodate Ms. Dawson's need or request to have less luminosity.
[48] Ms. Daoust testified that she was told that Canada Post also allowed Ms. Dawson to keep the design of her sorting rack the way it was, even though it did not meet the national standards, that she was allowed to sort differently from everybody else. For Ms. Daoust, this was another accommodation provided by Canada Post.
[49] Ms. Daoust further stated that she was told that the reason why Ms. Dawson's rack was changed was because she could not work well with existing norms. On the other hand, Ms. Daoust testified that letter carriers could make minor adjustments to the design of their rack. However, they were bound to respect the national standards. If a letter carrier was not pleased with the national standards, she testified, he/she could appeal but otherwise, except for minor changes, he/she would have to adapt himself/herself to the rack design according to national norms. Grievances were settled through the collective agreement.
[50] In her cross-examination of Ms. Daoust, Ms. Dawson put to Ms. Daoust the proposition that the reason why she was allowed to change her rack was because it was full of errors. Ms. Daoust's response was that it was the national norms that Ms. Dawson did not like and stated that she assumed that the reason why Ms. Dawson was allowed to have a special rack was because of her condition, otherwise she would not have been allowed to set up a rack the way she wanted. She would have had to follow the national norms.
[51] Ms. Dawson strongly disputed the fact that the rack she was given was a good rack that met the national standards. Ms. Dawson stated in her testimony that Canada Post dismissed the concerns she had with the design of her rack offhand, did not consider them as legitimate concerns and considered the changes that were allowed done to accommodate her because of her condition. Ms. Dawson expressed the opinion that the changes that were brought to her rack might have had nothing to do with her condition but because the design of the rack was faulty or problematic.
[52] Ms. Dawson further asserted in her testimony that accommodation became an issue when her diagnosis became known to Canada Post in 1999 and that before that time, from 1988, when she started working at Canada Post, to 1999, it had never been an issue. Ms. Dawson testified that she asked to be accommodated twice on the basis of her disability. These requests, she stated, had to do with flexibility in scheduling and taping conversations in a hostile environment. As for the other measures mentioned herein, they were, according to Ms. Dawson, not related to her condition. Other letter carriers, according to her, had asked for similar accommodations.
C. Ms. Dawson's medical condition [53] Ms. Dawson testified that she was diagnosed, as being autistic, for the first time in the early 90's, both by M. T., who had a Ph.D. in psychology and was a researcher at Université du Québec in Montréal, and by Dr. K.
[54] In a letter, dated April 9, 1999, addressed to Mr. Christian Potvin, Dr. T. states the following: `Autism is characterised by qualitative deficits in social interactions, qualitative difficulties in communication, an intense need for structure as well as certain behaviors that may be perceived as peculiar'. And he adds: `Due to this disorder, Ms. Dawson needs a highly structured and consistent environment to function well and will thus experience difficulties adjusting to changes in her work routines. Ms. Dawson is an intelligent woman who seems to have been able to cope and adapt to her environment to meet the special needs that her disability creates'. At the end of his letter, Dr. T. makes himself available to clarify any questions Canada Post may have regarding Autistic Disorder and that with Ms. Dawson's permission, he would also be happy to make himself available to discuss specifics about her case.
[55] In a note written on April 7, 1999, addressed to whom it may concern, Dr. K. states that Michelle Dawson has been a patient of hers for many years, that Ms. Dawson is autistic and that to be able to continue to perform her duties to satisfaction, she requires flexibility in scheduling and work job areas.
[56] The evidence shows that Mr. T.'s letter as well as Dr. K.'s note were received by the Health Services of Medisys, the outside firm that took care of medical matters involving Canada Post employees, on April 14, 1999. It must be noted here that Ms. Dawson testified that she believed that Canada Post became aware of her condition in April 1999.
[57] The Tribunal finds that Canada Post was clearly made aware of Ms. Dawson's condition in April of 1999. For her part, Ms. Daoust testified that she became aware of Ms. Dawson's condition in July 1999 after receiving the Cantin report.
[58] Ms. Dawson testified that after she disclosed her diagnosis to Canada Post, everything went wrong. Before that time, even though Ms. Dawson came to work with self-inflicted injuries, this did not seem to create any qualms or concerns with respect to Canada Post. Things started to change, she stated in her testimony, after some Pierrefonds employees felt threatened by Ms. Dawson and sent a letter to that effect to Ms. Daoust in July 1999.
[59] The record shows however, that on September 6, 2001, Ms. Dawson was able to address close to 100 of her co-workers in the context of the settlement of her first human rights complaint as seen above. In her testimony, Ms. Dawson stated that after that day, she did not have problems with her co-workers. Even those few who still regarded her with some suspicion did not mock her. New people coming into the Post Office got accurate information about her and her colleagues made sure that the newcomers knew how to behave with respect to her. Colleagues of Ms. Dawson, it appears, went out of their way to apprise the new employees of Ms. Dawson's condition and that sometimes she might need to be treated differently than other employees. According to Ms. Dawson, the floor meeting had a dramatic effect on her colleagues. This 5 minute meeting was for Ms. Dawson a turning point in the way her co-workers saw her. The key to this turn around was, according to Ms. Dawson, the fact that her co-workers got accurate information about her and some notion of the consequences of their actions.
III. LEGAL CONSIDERATIONS [60] The Complaint filed by Ms. Dawson raises a number of legal issues as well as a specific human rights issue.
[61] In her testimony, Ms. Dawson stated that, through this complaint, she was attempting to get a decision that establishes that autistic people are human beings covered by the Canadian Human Rights Act and to find out whether the Canadian Human Rights Act considers autistic people to be human and therefore protects them.
[62] As for the Commission, in its closing arguments, it submits that the issues that must be addressed by this Tribunal in relation to this complaint are:
Whether the respondent failed to provide the complainant with a harassment free workplace by virtue of failing to respond in an appropriate fashion to her concerns and needs or by treating her in an intolerant and paternalistic manner and by not exercising all due diligence to ensure that the workplace was harassment free; Whether the respondent treated the complainant in an adverse differential manner by reason of her disability by failing to respond in an appropriate fashion to her concerns and needs or by treating her in an intolerant and paternalistic manner and by not exercising all due diligence to ensure that the workplace was harassment free; Whether the respondent treated the complainant in an adverse differential manner by reason of her disability by failing, in the face of a medically supported request, to accommodate the complainant's need to record interactions with management; Whether the employer retaliated against the complainant for having filed one or both of her two complaints with the Canadian Human Rights Commission.
[63] The Tribunal will deal in turn with each of these issues, i.e. whether autistic people are human beings and are protected by the Canadian Human Rights Act, whether Ms. Dawson was discriminated against in the course of her employment, whether Canada Post retaliated against her for having filed a human rights complaint, as well as to whether or not she was harassed in her workplace.
A. The relevant legal principles [64] A the outset, it important to set out the legal principles applicable to the adjudication of issues related to discrimination, retaliation and harassment made by the Complainant against the Respondent.
(i) Discrimination [65] In human rights cases, as well as in civil cases, the complainant or the plaintiff bears the burden of proof and must prove the allegations he or she makes on a balance of probabilities. HE WHO ALLEGES MUST PROVE. (Ontario (Human Rights Commission) v. Simpsons Sears Ltd. (O'Malley), [1985] 2 S.C.R. 536.
[66] This said, in proceedings before Human Rights Tribunals, the complainant must establish a prima facie case of discrimination in order to have the burden of proof shift to the respondent who then has to provide a reasonable explanation which is not a mere pretext that will convince the Tribunal that, for example, the reason for treating a person the way it did was not motivated in any way by a prohibited ground of discrimination. As stated by Mr. Justice McIntyre in O'Malley, a prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favor in the absence of an answer from the respondent or, in other words, one where the evidence, if believed, and not satisfactorily explained by the respondent, will suffice for the complainant to succeed.
[67] In Morris v. Canada (Canadian Armed Forces), [2005], F.C.J. No. 731, the O'Malley test was found to be the legal test of a prima facie case of discrimination under the Canadian Human Rights Act. According to Morris, it is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse differentiation on a prohibited ground, if believed and not satisfactorily explained by the respondent (Morris, par. 27).
[68] The Tribunal shares the view expressed in Singh v. Canada (Statistics Canada), [1998] C.H.R.D., No. 7, at par. 197 that to support a finding that a prima facie case of discrimination has been established the complainant must do more than put forward sweeping assertions. Furthermore, as stated in Bobb, mere allegations that a conduct was discriminatory cannot be substituted for proof of facts (Bobb v. Alberta (Human Rights and Citizenship Commission), [2004] A.J. No. 117, par. 76. The Tribunal further shares the view that a tribunal should be reluctant to find discrimination on the basis of a prohibited ground where there is a reasonable alternative to the theory that the complainant incurred discrimination.
[69] A belief, however strong, that someone is being discriminated against is not sufficient in law to give rise to an inference of discrimination or to establish a prima facie case of discrimination (Singh v. (Statistics Canada), [1998] C.H.R.D. No 7, par. 206). As stated in Filgueira v. Garfield Container Transport Inc., [2005] CHRT 32, par. 40, there must be some evidence, i.e. material facts, that if believed, will make the existence of discrimination more likely than its non-existence given all the circumstances of the case.
[70] Over the years, Human Rights Tribunals have recognized that direct evidence that discrimination was the motivating factor behind a decision or a behavior is rarely available to complainants, given that discrimination is not a practice which is usually displayed overtly. As stated in Basi v. Canadian National Railway Company, [1988] C.H.R.D. No 2, rarely can discrimination be proven by direct evidence.
[71] Complainants alleging discrimination must thus more often than not rely on circumstantial evidence, notably the conduct of individuals or organizations whose conduct is at issue (Brooks v. Canada (Department of Fisheries and Oceans), 2006 F.C.J. No. 1569, par. 27). The criterion is whether the circumstantial evidence, if believed, tends to prove the allegation of discrimination.
[72] In Brooks, this Tribunal stated, with respect to circumstantial evidence, that it is not enough if circumstantial evidence is consistent with an inference of discrimination. This merely establishes the possibility of discrimination, which is not enough to prove the case. The evidence must be inconsistent with other possibilities. (Brooks, par. 114).
[73] This said, as stated in Wall v. Kitigan Zibi Education Council, (1997) C.H.R.D. 6, the standard of proof in discrimination cases remains the ordinary civil standard of the balance of probabilities and that in cases of circumstantial evidence, the test is the following: an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses (B.Vizkelety, Proving Discrimination in Canada, Carswell, 1987, p. 142).
[74] Hence, in its determination as to whether or not an alleged conduct is discriminatory, the Tribunal must analyze and scrutinize carefully the conduct itself as well as the context in which it occurred, keeping in mind, as stated in Marinaki v. Canada (Human Resources Development), [2000] C.H.R.D No 2, that for a complaint to succeed, it is not necessary that discriminatory consideration be the sole reason for the actions in issue but that it is sufficient that the discrimination be a basis for a person's action (Marinaki, par. 191) and that the intent to discriminate is irrelevant to the determination of discrimination (Nova Scotia (Human Rights Commission) v. Play it Again Sports Ltd, [2004] N.S.J. No 403, par. 37).
(ii) Retaliation [75] The Canadian Human Rights Act, as it stands, considers retaliation or threats of retaliation only in relation to a complaint having been filed and a co