Mason v. St. Theresa Point First Nation

Mason v. St. Theresa Point First Nation
Collection
Canadian Human Rights Tribunal
Date
2024-06-18
Neutral citation
2024 CHRT 85
File number(s)
HR-DP-2927-23
Decision-maker(s)
Harrington, Colleen
Decision type
Decision
Grounds
Sex
Summary:
The Complainant, Ms. Mason, is a member of St. Theresa Point First Nation (STPFN), the Respondent. STPFN didn’t take part in the hearing.
Ms. Mason worked for STPFN’s Health Authority for many years without any problems.
STPFN hired a new supervisor for Ms. Mason’s group. Ms. Mason knew this new supervisor from the past. She alleged that, 20 years ago, he had sexually assaulted her.
Ms. Mason claimed that, while working for STPFN, her supervisor targeted her and damaged her working relationship with her employer. She claimed that STPFN reprimanded her for reasons that had never been raised before her new supervisor arrived. Eventually, STPFN fired Ms. Mason.
The Tribunal found that the actions of Ms. Mason’s supervisor showed a desire to control her. The discipline that led to the loss of her job came primarily from her supervisor. The Tribunal indicated that even if the sexual assault wasn’t STPFN’s fault, Ms. Mason’s sex was a factor in the reprimands she received and STPFN firing her.
The Tribunal awarded Ms. Mason compensation for pain and suffering. It noted that the discriminatory termination had a serious impact on Ms. Mason’s mental health, family life, and financial situation.
The Tribunal found that STPFN acted recklessly when it didn’t question the supervisor’s targeted complaints against Ms. Mason. It awarded Ms. Mason special compensation and ordered STPFN to pay Ms. Mason for lost wages.
Finally, the Tribunal ordered measures (public interest remedies) to prevent discrimination from happening again.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT 85
Date:
June 18, 2024
File No. :
HR-DP-2927-23
Between:
Shirley Mason
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
St. Theresa Point First Nation
Respondent
Decision
Member:
Colleen Harrington
Contents
I. Overview 1
II. Decision 2
III. STPFN’s Lack of Participation 2
IV. Ms. Mason was a credible witness 3
V. Issues 4
VI. Analysis 4
Issue 1: STPFN contravened section 7 of the CHRA 4
(i) Legal Framework 4
(ii) Facts 5
(iii) Prima facie discrimination 12
i. Ms. Mason has a characteristic protected under the CHRA 12
ii. Ms. Mason experienced an adverse impact with respect to her employment 12
iii. Ms. Mason’s sex was a factor in the adverse impact she experienced 13
(iv) Conclusion 19
Issue 2: Ms. Mason is entitled to the Following Remedies 20
(i) Damages for Pain and Suffering 21
(ii) Special Compensation for Wilful or Reckless Discrimination 23
(iii) Lost Wages 25
(iv) Interest 28
(v) Public Interest Remedies 29
VII. Retaining Jurisdiction 31
VIII. Order 31
I. Overview
[1] The Complainant, Shirley Mason, is a member of the Respondent St. Theresa Point First Nation (STPFN), which is a fly-in community of around 4000 people, approximately 600 kilometers northeast of Winnipeg, Manitoba. It is also accessible by boat in the summer and by a seasonal winter road.
[2] Ms. Mason says that, in 1996, a traditional healer in the community, Elie Monias, who I will refer to in this decision as “EM”, took advantage of his position to lure her to his office where he touched her without her permission in a sexual manner. He told her no one would believe her if she tried to tell anyone about what he had done to her. After this incident she felt uncomfortable around EM, and scared of him, and she tried to avoid him.
[3] In 2016, twenty years after EM sexually assaulted her, Ms. Mason was working for the STPFN Health Authority when EM was hired as her supervisor. She had worked for the Health Authority since 2011 and, prior to EM becoming her supervisor, she had not received any reprimands or negative feedback about her work performance. Ms. Mason learned that, after EM started working at the Health Authority, he began complaining about her. She alleges that EM unfairly criticized her work to her employer, said false and negative things about her to senior managers and to at least one STPFN Band Councillor, and generally tried to force her out of the workplace. Ms. Mason received a letter of reprimand in April of 2017, and was dismissed from her employment in January of 2019. Ms. Mason says there was no legitimate basis for the termination of her employment.
[4] Ms. Mason believes that she was targeted by EM because she had previously rejected his inappropriate touching, and because she was the only woman working in her program at the Health Authority, and because she was a member of MADD. Ms. Mason says that MADD stands for Mothers Against Drugs and Dealers. MADD is made up of mothers and grandmothers fighting against illegal drugs and drug dealers in STPFN.
[5] Ms. Mason’s complaint is not against EM, who passed away prior to the hearing, but rather is against her employer STPFN. She alleges that both the reprimand and her dismissal constituted sex-based discrimination by STPFN, contrary to section 7 of the Canadian Human Rights Act, R.S.C., 1985, c.H-6 [CHRA].
[6] STPFN did not respond to the complaint at any stage of the proceedings and did not participate in the hearing.
II. Decision
[7] The complaint is substantiated. Ms. Mason’s sex was at least a factor in STPFN’s decision to reprimand her and to terminate her employment, which constitutes discrimination contrary to section 7 of the CHRA. Ms. Mason is entitled to personal remedies to make her whole, and to public interest remedies to prevent a reoccurrence of the discrimination.
III. STPFN’s Lack of Participation
[8] The only witness who testified at the hearing of this complaint was Ms. Mason. Counsel for the Canadian Human Rights Commission (Commission) participated in the hearing by asking Ms. Mason questions to ascertain her evidence and by making closing submissions.
[9] In order to comply with the principles of natural justice and procedural fairness, the Tribunal was required to give STPFN a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations (sections 48.9(1) and 50(1) of the CHRA). Although officially notified, STPFN chose not to participate in the inquiry. In fact, STPFN did not participate in the proceedings at any stage, despite numerous attempts at contact by the Commission and the Tribunal.
[10] On January 31, 2023, the Commission referred Ms. Mason’s complaint against STPFN to the Tribunal for an inquiry. The Tribunal reached out to STPFN to notify it about this human rights complaint several times. This included a letter from the Tribunal’s Chairperson to Chief Elvin Flett dated July 17, 2023, sent by email and certified mail. The letter stated that if STPFN did not respond to the Tribunal it could lose the opportunity to file a Statement of Particulars, and that case management and a hearing could proceed in its absence. Delivery of this letter to the Respondent was confirmed by Canada Post.
[11] The Tribunal has sent emails, left telephone messages, including with a receptionist for STPFN, and sent letters by certified mail, and has never received a response from STPFN. The Commission also notified the Tribunal of its repeated efforts to reach the Respondent during its screening process. STPFN did not reply to the Commission either.
[12] On September 26, 2023 the Tribunal’s Registrar provided a Notice of Hearing to all parties. The Notice was sent by email and by certified mail to STPFN, and Canada Post confirmed that the letter was picked up from the post office in STPFN on October 17, 2023. The Notice of Hearing included the date and time of the hearing, as well as information about how to join the hearing by Zoom videoconference. The Notice states: “If you do not attend the hearing, the Tribunal may proceed in your absence, and you will not be entitled to any further notice in these proceedings.”
[13] Despite these efforts, STPFN did not attend the Tribunal’s Zoom videoconference hearing on October 30, 2023. With the agreement of the Commission and Complainant, the Tribunal decided to proceed with the hearing in the Respondent’s absence as permitted by Rule 9 of the Canadian Human Rights Tribunal Rules of Procedure, 2021, SOR/2021-137 [Rules of Procedure]. The Tribunal was satisfied that STPFN had been provided with an ample opportunity to participate and was clearly notified of the hearing date, time and method.
IV. Ms. Mason was a credible witness
[14] The Tribunal “can accept some, all, or none of a witness’ evidence depending, in part, on their credibility” (Dicks v Randall, 2023 CHRT 8 at para 6).
[15] The British Columbia Court of Appeal described the approach that should be taken to assess credibility in Faryna v Chorny, 1951 CanLII 252 (BC CA):
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again a witness may testify to what he sincerely believes to be true, but he may honestly be mistaken (pg. 356-357).
[16] Considering the factors set out in Faryna v Chorny, I found Ms. Mason to be a credible witness. Her evidence was reasonable, believable, and internally consistent. As STPFN did not participate, Ms. Mason’s evidence was not challenged. None of the evidence presented before the Tribunal, including letters from STPFN to Ms. Mason, contradicted her narrative. As a result, I accepted Ms. Mason’s evidence in its entirety.
V. Issues
[17] I must decide the following issues:
1)Did STPFN discriminate against Ms. Mason contrary to section 7 of the CHRA by reprimanding her and terminating her employment based, at least in part, on her sex?
2)If Ms. Mason has established that she was discriminated against, what personal and/or public interest remedies should be ordered against STPFN?
VI. Analysis
Issue 1: STPFN contravened section 7 of the CHRA
(i) Legal Framework
[18] Section 7(a) of the CHRA says that it is a discriminatory practice, directly or indirectly, to refuse to continue to employ an individual on a prohibited ground of discrimination. Section 7(b) provides that it is a discriminatory practice in the course of employment to differentiate adversely in relation to an employee based on a prohibited ground of discrimination.
[19] Ms. Mason alleges that her sex was a factor in how STPFN treated her during her employment and in its decision to terminate her employment. Ms. Mason must prove that the way she was treated by STPFN was, on its face, discriminatory, which is more formally referred to as establishing a prima facie case of discrimination (Johnson v Membertou First Nation, 2024 CHRT 16 at para 18). A prima facie case of discrimination 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 favour in the absence of an answer from the respondent” (Ontario Human Rights Commission and O’Malley v Simpsons-Sears Ltd., [1985] 2 SCR 536 at para 28).
[20] To establish a prima facie case, Ms. Mason must prove that it is more likely than not (i.e., on a balance of probabilities) that:
1) she has a characteristic protected under the CHRA (i.e., a prohibited ground of discrimination);
2) she experienced an adverse impact with respect to her employment; and
3) the prohibited ground of discrimination was a factor in the adverse impact
(see Stewart v Elk Valley Coal Corp., 2017 SCC 30 at para 69).
(ii) Facts
[21] The following facts are relevant to determining whether Ms. Mason experienced prima facie discrimination.
[22] STPFN is governed by a Chief and Councillors who are elected by the First Nation’s membership. Ms. Mason has lived in STPFN most of her life. She has 5 children and 14 grandchildren. She provides for her family, including those who live with her in STPFN and some family members who live in Winnipeg to attend school.
[23] After her youngest child was born in 1996, when she was 30 years old, she experienced severe depression with anxiety and panic attacks for which she sought treatment. She attended the health centre in the community and she also received treatment from traditional healers. She attended sweat ceremonies almost daily at the two sweat lodges in STPFN at that time. One of them was operated by EM, who was well-respected in the community. She described herself as very vulnerable at the time and said she would have done anything he told her.
[24] Ms. Mason testified that EM took advantage of her vulnerability and one evening he told her she needed to meet with him for healing. He took her to his office where they were alone and he touched her without her permission in an inappropriate and sexual manner, unbuttoning her shirt and trying to undo her bra. Ms. Mason said she felt uncomfortable and confused and moved away from him. EM told her no one would believe her if she told anyone about what he did. She left and she later asked the other sweat lodge holder if what EM did to her was appropriate. He said what had happened to her was wrong. However, he did not do anything about it. When she told her uncle what happened, he told her not to tell anyone. Ms. Mason told her sister, who believed her, and said EM had tried to do something inappropriate with her as well in a hotel room in Winnipeg. Ms. Mason did not tell the police what EM did to her.
[25] Ms. Mason said whenever she saw EM in the community after this incident, she felt scared and uncomfortable around him. She said she could not avoid him entirely because it was a small community. He continued to be well-respected. A page from STPFN’s website entered as an exhibit at the hearing shows EM was a member of the Council of Elders. Ms. Mason said the Council of Elders works for the people and their role is to protect the community, and to advocate for them to the Chief and Council.
[26] Ms. Mason started working for the STPFN Health Authority in or around September of 2011 as a receptionist for the Traditional Healing Program. Her job title and role changed over time as she worked there. Sometimes she would coordinate programs and she eventually became a traditional support worker.
[27] Ms. Mason reported to the Coordinator of her program. All of the supervisors at the Health Authority were men when she worked there, as were all of the other people who worked in the Traditional Healing Program with her.
[28] Ms. Mason testified that she did not receive any performance reviews while she worked for the Health Authority. From 2011 to 2016, she did not receive any complaints about her workplace conduct or performance. She eventually applied for the job of Traditional Healing Coordinator and, despite being ranked second out of five applicants, the job was given to EM, who was ranked fourth. She felt this was unfair and she was disappointed. She also felt frustrated and anxious about having EM as her supervisor and she was fearful of what he would do to her. She testified that she had heard that EM had been asking STPFN’s then-Executive Director Robert Flett to hire him for the Coordinator position even before the job was posted. She said that Robert Flett and EM were very close.
[29] In the spring of 2016, EM became Ms. Mason’s supervisor. She had lost respect for him because of what he had done to her twenty years before. She said she was scared of him and she thinks he knew this. Ms. Mason said that EM was ok with the other staff, but there were no other women working in their program. She tried to avoid EM as much as she could but it was difficult because she was working for him.
[30] Ms. Mason said she told two women who worked for STPFN what EM had done to her in 1996 and that she was afraid of what might happen working with him. One of these women was the human resources worker Charlene Mason. The other was Angela Mason, who she described as the Director of Operations, and who she said worked for her brother. Ms. Mason’s brother, Elvin, was the Health Director at the time. Neither of these women did anything after Ms. Mason told them what EM had done to her.
[31] After working with EM for a while, other people, including her brother Elvin, told her EM had been complaining about her, trying to get her fired. One of the Band Councillors once said to her that he was surprised to see Ms. Mason at her desk because EM had told him she was never there.
[32] Although some of Ms. Mason’s evidence was hearsay, much of it was supported by documentary evidence presented at the hearing. In April of 2017, Ms. Mason received a letter of reprimand signed by the then-Executive Director of STPFN, Robert Flett (the “Reprimand Letter”). The Reprimand Letter says that it had been brought to Mr. Flett’s attention that Ms. Mason had been absent from her post on a daily basis and had not been available to perform her duties as the Secretary to the IRS (Indian Residential School) program. Mr. Flett says in the letter that he was going to instruct Ms. Mason’s Coordinator (EM) to provide an update in two weeks to see if her performance had improved, and he reminds her to follow the “line of communication”, meaning she must speak to her Coordinator first about any concerns.
[33] Ms. Mason testified that it was not true that she was absent from her post, although she admits that she was often late for work, which she said was normal for everyone in the office. She said she had been going to work every day despite her anxiety and feeling uncomfortable working with EM. She needed her job in order to take care of her family. She said she was not surprised to receive the letter, however, because she had already been told that EM was complaining about her.
[34] Ms. Mason testified that, about a year after she was dismissed, she was in Winnipeg and saw Mr. Flett and asked him why he had written the Reprimand Letter. He told her he was sorry and that it was EM who had complained about her and wanted her out of the Health Authority.
[35] In July of 2018, Ms. Mason signed a Code of Ethics which was part of STPFN’s Human Resource Policy. She also signed an Oath of Confidentiality agreeing not to disclose records or communications she received in the course of her employment.
[36] Between April of 2017 when she received the Reprimand Letter, and January of 2019, when her employment was terminated, Ms. Mason says EM did not advise her of any issues he had with her performance and she received no updates or further reprimand letters. No one ever talked to her about breaching the Code of Ethics or the Oath of Confidentiality or about making inappropriate comments on social media.
[37] On January 15, 2019, Ms. Mason was given a “Notice of Disciplinary Dismissal from Job Position” signed by Stewart McDougall, who had become the Executive Director of STPFN (the “Dismissal Letter”). The Dismissal Letter states that Ms. Mason was being immediately terminated from her job as the IRS Traditional Support Worker. The reason given for her dismissal was that she had breached the Human Resource Policies, specifically the Employee Conduct and Standards of Performance, the Code of Ethics, and the Communications/Social Media Policy.
[38] The Dismissal Letter says that “there were previous concerns in the past that were brought to you by your immediate supervisor regarding your overall work performance”, including tardiness, insubordination, poor work attitude and “failure to seek approvals from your immediate supervisor for work action”.
[39] The Dismissal Letter also refers to two social media posts Ms. Mason made in November and December of 2018. With regard to the November post, Mr. McDougall says Ms. Mason posted about community issues and made unprofessional comments about her employer, the Chief and Council of STPFN. He says that, with regard to the December post, Ms. Mason had commented on social media about drugs and needles and made “unprofessional comments as a health care worker for our community members.” Mr. McDougall says, “this is not the first time you have been approached for this specific matter.”
[40] The Dismissal Letter reminds Ms. Mason that she signed the Code of Ethics Policy, Oath of Confidentiality and Social Media Policy from the STPFN Human Resource Policy Manual in July of 2018. Mr. McDougall says that employees and community members are obligated by custom and tradition to have the utmost respect at all times for their community leadership, the Chief and Council of STPFN. Mr. McDougall says that anything that can hinder a health care worker’s relationship with their client is not acceptable by the employer as they want community members to feel comfortable and welcomed to seek their services.
[41] Mr. McDougall summarizes by saying Ms. Mason was being terminated for breaching the Code of Ethics Policy, breaching the Social Media Policy, and for her overall work performance. Along with the referred-to policies and social media posts, he attached to the letter a copy of a “list of concerns brought forward and identified by your immediate supervisor.” The list of concerns that was entered as an exhibit at the hearing consists of ten points, including that she was hardly in the office, did not file progress reports or financial reports, that she did not consult with her supervisor or the staff, that she was only interested in travel, did not listen to her supervisor, that she was “backstabbing” and talked behind peoples’ backs, was insubordinate, and had possibly moved into the Healing Centre without consulting with her supervisor, among others.
[42] Ms. Mason testified that she was surprised when she saw the list of concerns document and denies that they are true. She said that this was the first time she had seen this list. She denies that EM or anyone else ever spoke to her about these issues or any other job performance issues, aside from the reprimand letter she received in 2017, which did not come directly from EM.
[43] Ms. Mason said that EM knew that she was working out of the Healing Centre, which was an old hotel that had been given to the Traditional Healing Program to house some of the many homeless people in the community. She had cleaned and fixed up the building and says she was told to start running programs out of there, which she did. She started a volunteer breakfast program, which had a good turnout. She testified that EM knew what she was doing.
[44] The Dismissal Letter advises Ms. Mason to improve her “work skills and general attitude in a workplace” and says that, if there are personal issues that are contributing to the past work performance concerns, she should address them. The letter says that Ms. Mason may not work for STPFN for the next six months, that she is encouraged to use this disciplinary measure as a constructive tool, and concludes by saying, “we look forward to having you back with our team of efficient workers for our community”. The letter states that she may have the opportunity to appeal the dismissal decision and that she may send an appeal letter to Mr. McDougall but that she would not necessarily be granted an appeal hearing, as this “depends on an individual case”.
[45] Ms. Mason testified that, while her brother Elvin told her to appeal and he would support her, she told him she would not be successful anyway and so she did not bother. Ms. Mason did, however, meet with Mr. McDougall at some point after receiving the Dismissal Letter and he told her that “all of this is coming from your supervisor [EM].” He said that EM had been coming to see him to try to have Ms. Mason fired since Mr. McDougall’s first day as the Executive Director.
[46] Ms. Mason says that they have a teaching in STPFN that they are not supposed to disrespect Elders and she thinks this is why her reprimand and termination were allowed to happen, as no one would stand up to EM on her behalf.
[47] With regard to her social media posts, although the Dismissal Letter says that this was not the first time Ms. Mason had been approached about this issue, she says no one had ever spoken to her about this before she received the Dismissal Letter. The two posts mentioned in the Dismissal Letter were entered as exhibits. Ms. Mason pointed out that the person who had printed them off to attach to the Dismissal Letter was Angela, the Director of Operations who worked for her brother, and who knew about what EM had done to her.
[48] In the November 2018 social media post, Ms. Mason says she supports a “bi-election (sic) because the leaders are not doing anything to protect the community, they just allow so many drugs and meth to happen … we need strong leaders who will fight for our community’s well being. [T]hose who are not affected by meth addictions have no idea what its like, we do what we can at home with our children and grandchildren” [as written]. In the December 2018 social media post, Ms. Mason is responding to a post by someone who had identified suspected drug dealers in the community by saying: “it’s okay, they can supply drugs and needles, its allowed in stp. [S]o any outsiders who want to come sell drugs and needles too, youre most welcome!!” [as written]
[49] Ms. Mason testified that these two posts were made in her capacity as a member of MADD. STPFN is a dry community and, despite the MADD group making reports to the Band Office and the police station about who the suspected drug dealers in the community were, the MADD group felt nothing was being done to stop them. Ms. Mason said that there was no support for MADD from the Chief and Council or the local police and so they eventually “gave up”. She testified that neither of these posts was related to her work for STPFN.
[50] Ms. Mason said that she is entitled to have her political opinions and can support a referendum for a by-election. With regard to the December 2018 post, she said she was being sarcastic. She was frustrated because the names of these suspected drug dealers had been provided to the police and to the Chief and Council, but nothing had been done about them. She said she made these posts on behalf of the community, to raise awareness about the drug crisis affecting STPFN.
[51] Ms. Mason said that her messages were posted on a public Facebook wall where everyone could see them. No one from her workplace, including her Coordinator EM or the Health Director, spoke to her about her posts.
[52] Ms. Mason does not think she breached the Employee Code of Ethics or Social Media Policy or the Oath of Confidentiality, as stated in the Dismissal Letter. No one approached her with any concerns relating to these policies prior to her termination. She said she never talked about her work in any social media posts, or shared information that she learned about through her job.
(iii) Prima facie discrimination
[53] STPFN has provided no response to the complaint and did not participate in the hearing. As such, the Tribunal’s task is to consider all the evidence and arguments presented by Ms. Mason and the Commission to determine if Ms. Mason has proven the three elements of a discriminatory practice on a balance of probabilities (see Quebec (Commission des droits de la Personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 [Bombardier] at paras 56 and 64; see also Peel Law Association v Pieters, 2013 ONCA 396 at paras 80-89).
i. Ms. Mason has a characteristic protected under the CHRA
[54] Ms. Mason has met the first element of the prima facie test. She alleges that she was treated unfavourably and terminated from her employment at least in part because she is a woman. Sex is a prohibited ground of discrimination under section 3 of the CHRA.
ii. Ms. Mason experienced an adverse impact with respect to her employment
[55] Ms. Mason has also met the second element of the prima facie test. Not only did STPFN reprimand Ms. Mason for what she says were unsubstantiated reasons that had never been raised before EM started working as her supervisor, but it also terminated her employment for what she says were similarly unsubstantiated reasons.
iii. Ms. Mason’s sex was a factor in the adverse impact she experienced
[56] To prove the third element of the prima facie discrimination test, Ms. Mason must show that there is a connection between the first two elements. The protected characteristic need not be the only factor that led to the adverse treatment and a causal connection is not required (First Nations Child and Family Caring Society of Canada v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 at para 25).
[57] The Tribunal has acknowledged many times that proving discrimination by way of direct evidence is often difficult. As overt discrimination is rare, the Tribunal “should consider all the circumstantial evidence to determine whether what is described as ‘the subtle scent of discrimination’ can be drawn from the evidence” (Ledoux v Gambler First Nation, 2018 CHRT 26 at para 59 referring to Basi v Canadian National Railway, 1988 CanLII 108 (CHRT)). A complainant is also not required to prove that discrimination was done intentionally (Bombardier at paras 40-41). The Tribunal is not concerned with intention but rather with the effect of the discrimination.
[58] Indeed, the evidence in this case does not lead to the conclusion that STPFN intended to discriminate against Ms. Mason or that its actions to reprimand and terminate her were consciously done because she is a woman. This is not a case where the discriminatory nature of the conduct is “glaringly obvious” (see Young v Via Rail Canada Inc., 2023 CHRT 25 [Young v Via Rail] at para 156). However, when I consider all of the circumstances surrounding the adverse treatment Ms. Mason experienced, I accept that it is more likely than not that her sex was a factor in both the reprimand and her dismissal.
[59] While neither of the Executive Directors’ letters are overt in linking her reprimand or termination to her sex, both letters rely mainly on the issues EM raised about Ms. Mason.
[60] The Reprimand Letter says that Mr. Flett had been told that Ms. Mason was absent from her post on a daily basis and that she had not been available to perform her duties as the Secretary to the IRS program. Ms. Mason says this is untrue, but that she was not surprised to receive the letter because she had already been told by her brother and by the Band Councillor that EM was complaining about her. Mr. Flett confirmed this when she confronted him later about the Reprimand Letter. He apologized to her and said it was EM who had complained and that he wanted her gone.
[61] The Dismissal Letter summarizes the reasons for her termination as her overall work performance, her breach of the Code of Ethics Policy, and her breach of the Social Media Policy.
[62] With regard to the work performance complaints, the evidence shows that EM was targeting Ms. Mason, apparently since he first became her supervisor. Ms. Mason’s evidence was that she had not received any negative performance reviews or reprimands prior to working with EM.
[63] In the Dismissal Letter, Mr. McDougall says that concerns regarding Ms. Mason’s work performance were raised by her “immediate supervisor”, who was EM. Ms. Mason said that when she inquired about her dismissal, Mr. McDougall explained that it was coming from EM, who had been complaining about her and pushing for her to get fired since Mr. McDougall’s first day as Executive Director.
[64] The documentary evidence also indicates that the complaints against Ms. Mason stemmed from something other than genuine performance issues. The list of ten concerns included as part of her Dismissal Letter that apparently came from EM are quite vague when one considers the seriousness of the consequence to Ms. Mason of losing her job. Some are apparently unconfirmed. For example, concern number seven says: “Moved in at the healing center? Did she consult with supervisor?” Four separate concerns on the list relate to Ms. Mason not consulting with or listening to her supervisor. The inclusion of uncertain or unverified information on a list of concerns given as a reason for terminating her employment, along with the repetition of the same or substantially similar concerns, underlines the targeted nature of EM’s complaints.
[65] Moreover, the emphasis on this alleged “insubordination” implies an inability to control Ms. Mason. EM had previously demonstrated a desire to control Ms. Mason when he sexually assaulted her several years earlier, and then told her that she would not be believed if she told anybody. While sex was evidently a factor in the sexual assault that took place, that incident is not attributable to STPFN. However, it provides important context to the current complaint, especially since the complaints and concerns about Ms. Mason that led to her reprimand and termination largely came from EM (see Connors v Canadian Armed Forces, 2019 CHRT 6 at paras 44-48).
[66] In André v Matimekush-Lac John Nation Innu, 2021 CHRT 8 [André], the Tribunal found that the circumstantial evidence before it allowed it to infer, on a balance of probabilities, that sex was a factor in the adverse impact in that case. The evidence considered included the following factors that share similarities with Ms. Mason’s case: the respondent used his authority and his powers to control the complainant (para 98); the complainant had never had any problems during the seven-year period before the respondent arrived at her workplace (para 99); the complainant was afraid of the respondent and she feared the moment he would arrive to work (para 101); other women in the community experienced similar attitudes and inappropriate, misplaced behaviour from the respondent (para 102); and the respondent “had and wanted to have control over” the complainant and the other women in the community (at para 103).
[67] Although Ms. Mason’s evidence was that EM had tried something similarly inappropriate with her sister at some point, the Tribunal does not need to determine whether EM exhibited discriminatory behaviors against women generally. In Young v Via Rail, the complainant testified that she believed the respondent was targeting her and was exhibiting “a pattern of behaviour […] intended to assert control and dominance over her in the workplace” (para 102). The Tribunal noted that the question before it was not whether the respondent “has disdain for all women, or whether he is unable to work with women at all.” Rather, the question was whether sex was one of the factors that played into the discriminatory behaviour (para 192). The same is true in this case. Ms. Mason’s sex does not need to be the primary factor or an intentional cause of STPFN’s actions, it need only be a factor.
[68] I accept that EM, through his actions, discriminated against Ms. Mason because she is a woman and notably because she is a woman he had previously sexually assaulted. Ms. Mason testified to dreading the day EM would start working at the Health Authority and to feeling anxious and scared while working with him. She had no work-related concerns or reprimands in the five years she worked at the Health Authority before EM was her supervisor. The evidence shows that EM complained excessively about Ms. Mason, and he began doing so as soon as he arrived, apparently with the goal of having her terminated. None of his complaints about her appear to be related to improving Ms. Mason’s work performance since he did not do any assessments or evaluations of her performance during the nearly three years that he was her supervisor. Rather, the evidence leads to the conclusion that EM sought to exercise control over Ms. Mason and over the work environment by placing unwarranted pressure on STPFN’s Executive Directors to reprimand her and terminate her.
[69] EM used his authority as a supervisor and his influence within the community to have Ms. Mason terminated just as, apparently, he had used his influence to be hired for the job in the first place, given that he placed fourth in the job competition, while Ms. Mason placed second. Moreover, Ms. Mason was the only female working in the Traditional Healing Program and EM targeted her while treating the male staff well. After she was fired, the Health Authority hired a man to fill Ms. Mason’s position.
[70] STPFN may claim to have been merely following recommendations made by Ms. Mason’s supervisor. However, the Health Authority was aware that EM was specifically targeting Ms. Mason. Ms. Mason’s brother Elvin told her that EM was complaining about her and trying to get her fired. STPFN’s Executive Directors Mr. Flett and Mr. McDougall confirmed this. Ms. Mason had also informed not only Angela, who worked for the Health Director, but also Charlene from human resources about EM’s previous sexually inappropriate conduct towards her. Despite this, the Health Authority abruptly ended Ms. Mason’s employment in January 2019, without first cautioning her or seeking to better understand the situation or to determine her position with regard to the complaints about her performance. Angela even printed off Ms. Mason’s social media posts that supported her termination. As an employer, STPFN cannot excuse discriminatory employment practices of co-workers or supervisors, and it certainly cannot base termination decisions on these practices (Imberto v Vic and Tony Coiffure, 1981 CanLII 4320 (ON HRT) at para 23).
[71] Ms. Mason testified that the only other negative feedback she had received prior to being terminated was the Reprimand Letter. The Dismissal Letter cannot reasonably be interpreted as a follow-up to the Reprimand Letter since more than 1.5 years had passed in between them and the Reprimand Letter was about her being absent from her post almost daily and not being available to perform her duties as the secretary to the IRS program. The Reprimand Letter references instructing her Coordinator (EM) to provide an update in two weeks to see if her performance had improved. Ms. Mason said no one ever followed up with her again about the issues in the Reprimand Letter. There is no reference in the termination letter to her being absent from her post or not performing her job duties, although the unsigned and undated list of concerns does say “Hardly at office”. Ms. Mason testified that her job duties had taken her to the Healing Centre to run programs for which she had approval from her superiors, who were well aware of what she was doing there.
[72] As such, based on the evidence before the Tribunal, Ms. Mason’s work performance does not appear to be a valid reason for terminating her employment, although determining this is not the Tribunal’s role. The Tribunal need only conclude that her sex was a factor in the termination.
[73] With regard to the allegation that she breached the Code of Ethics Policy, I note that the Code of Ethics entered as evidence is very general and addresses everything from employee performance to conflicts of interest. The Dismissal Letter does not specify exactly how Ms. Mason breached the Code of Ethics. If