Temple v. Horizon International Distributors

Temple v. Horizon International Distributors
Collection
Canadian Human Rights Tribunal
Date
2017-10-03
Neutral citation
2017 CHRT 30
File number(s)
T2139/1316
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
Disability
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
30
Date:
October 3, 2017
File No.:
T2139/1316
Between:
Sandra Temple
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Horizon International Distributors
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Background 1
II. Relevant provisions of the Act 2
III. Factual context 5
A. Horizon International Distributors and the trucking sector 5
B. Sandra Temple 7
C. The October 14, 2014 accident and subsequent events 7
IV. Legal framework applicable to this case 9
V. Preliminary remarks 11
A. Witness David Yach 11
B. Objection under advisement 12
VI. Analysis and positions of the parties 13
A. Prohibited grounds 13
B. Adverse differential treatment and refusal to continue to employ 14
(i) Tolls 14
(ii) Working harder than male operators 16
(iii) Forced to deliver and drive 16
(iv) Less time allocated 20
(v) Additional loads 20
(vi) Difference in privileges (debts and truck lease) 21
(vii) MPI claim 25
(viii) WorkSafeBC claim 26
(ix) Time to make repairs denied 29
(x) Adverse differential treatment and mistreatment by dispatchers 30
(xi) Time for medical appointments denied 31
C. Connection between the ground and the adverse differential treatment 32
VII. Complaint not substantiated 35
VIII. Decision 36
I. Background
[1] On February 4, 2015, the Canadian Human Rights Commission (the “Commission”) received a complaint from Sandra Temple (the “Complainant”) against Horizon International Distributors (the “Company”, the “Respondent” or “Horizon”) alleging that she was discriminated against on the basis of her sex and her disability. Relying on these two grounds, she alleges that she suffered adverse differential treatment in the course of employment and that the Company refused to continue to employ her, contrary to section 7 of the Canadian Human Rights Act (the “CHRA” or the “Act”).
[2] On February 26, 2016, the Commission referred the complaint to the Canadian Human Rights Tribunal (the “Tribunal”) to institute an inquiry under section 44(3)(a) of the CHRA.
[3] On December 22, 2016, the Vice-Chairperson of the Tribunal, Susheel Gupta, ruled on a motion regarding the location of the hearing. It was decided that the hearing would take place in two different places, namely, Calgary (from May 23 to 25, 2017), for the witnesses called by the Complainant, and Winnipeg (from June 6 to 9, 2017) for the witnesses called by the Respondent. The Complainant was present during the first three days of the hearing in Calgary and accompanied by her son, Jonathan Temple. Also present were counsel for the Respondent, Terra Welsh, and a representative of the Company, Luc Dubé. Two other Company representatives, Gilbert Dubé and his spouse, participated in the hearing via videoconference from Winnipeg. During the subsequent four days of hearings in Winnipeg, all the Respondent representatives attended, assisted by their counsel. Ms. Temple participated in the hearing via videoconference, from Calgary, again accompanied by her son.
[4] Considering the constant use of videoconferencing during this seven-day hearing, including for some of the testimony, the Tribunal was very proactive in guiding the parties throughout the hearing, specifically in managing documents and testimony. The Tribunal also ensured that the parties were able to follow and understand the hearing even if they were not physically present. The Tribunal asked the parties, repeatedly, to inform it of any technological difficulties. The parties did not hesitate to do so when there were any, and measures were taken to rectify the situation.
[5] In Calgary, Ms. Temple testified first. She then called three witnesses: Paul Murray, a truck driver and friend; Yves Carriere, a Company truck driver and former colleague; and Jonathan Temple, her son. In Winnipeg, the Respondent called six witnesses: Gilbert Dubé, President of the Company; Luc Dubé, General Manager of the Company; Sheldon Savage, Equipment Manager; Terry Matthews and Verne Wyatt, dispatchers; and David Yach, a former truck driver for the Company.
[6] Having heard the various testimonies, and apart from some exceptions that I will deal with later in this decision, I find nothing to suggest that the witnesses were not forthright or credible in their testimony. Moreover, the Tribunal recognizes Ms. Temple’s perseverance and her respect for the quasi-judicial process. The Tribunal also recognizes Ms. Welsh’s great work. The parties worked well together and a sense of collegiality pervaded the hearing.
[7] Having said that, I must render a decision that is based on the evidence before me. For the following reasons, I find that Ms. Temple’s complaint is not substantiated. Ms. Temple has not met the burden of establishing a prima facie case of discrimination or, more specifically, that the characteristics protected by the CHRA were a factor in the adverse impact.
II. Relevant provisions of the Act
[8] The following provisions from the Act are relevant in this case: 2 and 3(1), 7(a) and (b), 15(1)(a), 15(2), 53(1), 53(2), 53(3) and 53(4).
[9] These provisions provide as follows:
2 The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
15 (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
. . .
15 (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
53 (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.
53(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
53 (3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
53 (4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate.
III. Factual context
[10] For the sake of brevity and a clear understanding of the case, the Tribunal will summarize the general aspects of the case on the basis of the documents submitted by the parties and the various testimonies given at the hearing. The Tribunal deems it necessary to establish these facts in order to capture the essence of the case and the trucking industry.
A. Horizon International Distributors and the trucking sector
[11] Horizon is a Manitoban trucking company that was founded in 1988 by Gilbert Dubé and whose headquarters are located in Winnipeg, Manitoba. The Company’s activities stretch across all of Canada and focus specifically on the transportation of perishable and refrigerated foods. At the time of the hearing, the Company’s operations were administered by just over ten employees. The Company has a fleet of about 32 trucks and a warehouse in the Montréal area (Quebec). Horizon employs two types of truck operators to deliver its freight: (1) truck operators who drive the trucks that belong to the Company and who are employees (“operator-employees”); and (2) truck operators who own their own heavy goods vehicle and who are employed on a contractual basis (“owner-operators”). Importantly, on the date of the complaint, Ms. Temple was the only female owner-operator at Horizon.
[12] Owner-operators are paid for their mileage: the more kilometres they drive, the more they are paid. In addition, they earn a fixed minimum amount for each delivery they make. The trucks owned by the Company are managed and maintained by the Company, while owner-operators are responsible for their own heavy goods vehicles and related expenses. Horizon is the type of trucking company that does not provide a specific schedule for collecting freight. It also does not guarantee particular areas or routes to truck operators. However, truck drivers indicate their availability and preferred areas or routes to the Company, which dispatches deliveries to the operators available. Horizon attempts to accommodate truckers according to their preferences where possible. It should be noted that the truck operators’ loads do not necessarily all go to the same client. Operators’ trailers may therefore contain several loads that have to be delivered to different clients.
[13] Horizon allows owner-operators to have their expenses, including repairs, gas, insurance and permits, billed to its account. Sometimes, it also advances money to owner-operators in the middle of the month to help them pay for their everyday expenses. Finally, the Company issues a statement at the end of the month listing the earnings and expenses of owner-operators. Their earnings can be summarized in the following manner: the amount allocated for their mileage and their deliveries, less gas, advances, repairs and maintenance, insurance, permits and other expenses.
[14] Without going into every detail of how the Company operates, when goods have to be delivered to a client, a dispatcher organizes the logistics of the delivery. Without limiting his or her tasks, we understand that the dispatcher assigns loads to truck operators, organizes delivery times with clients, works closely with truck operators, anticipates alternatives in the event of a problem and contacts clients, among other things. The dispatcher is the link between the Company, clients and truck operators. At Horizon, dispatchers divide duties across two sections: Eastern and Western Canada. Each section has a dispatcher.
[15] Truck operators have to deliver the goods as planned. They must obviously follow delivery schedules. Some clients are less flexible about delivery times, and sometimes deliveries have to be changed or rescheduled. This is not rare. Truck operators also have to respect strict transportation regulations and are subject to particular requirements when it comes to their working hours. Once again, without going into every detail of the regulations on heavy goods transportation, the Tribunal notes that truck operators have to work one of two cycles: a 7-day cycle or a 14-day cycle. For each cycle, specific restrictions apply. For example, during the 7-day cycle, a truck operator may not drive more than 70 hours. After the 70-hour period, a 36-hour break is mandatory. The Tribunal also understands that, over a 24-hour period, truck operators may not drive more than 13 hours a day. They are entitled to a two-hour break and an hour long maintenance break, especially to inspect the truck and refuel but not to drive. Lastly, they have to rest for eight consecutive hours. The Tribunal understands that truck operators may switch from one cycle to another while, once again, respecting certain rules. The Tribunal certainly does not claim to reproduce all the regulatory requirements applying to heavy goods transportation.
[16] Truck operators are also obliged to keep what is commonly known as a log book. This log book allows truck operators to maintain a record of their activities for each 24-hour period. The 24-hour period is divided into 15-minute intervals. Operators must keep a record of their movements and driving time, the length of their mealtimes and breaks and any time not working. When Ms. Temple worked for Horizon, her log book was kept by hand and not electronically.
B. Sandra Temple
[17] Sandra Temple has been a truck operator for about twenty years. She was living in the town of Salmon Arm, British Columbia, but now resides in the Calgary area, Alberta. Her son, Jonathan Temple, and her mother, whom she takes care of, also live in Calgary. Ms. Temple started working for the Company in winter 2011. She was replacing a sick driver, Peter Cox, and was driving his truck. What should have been a short-term replacement was extended until summer 2012. After this time, the Company and Ms. Temple reached an agreement for Ms. Temple to become an owner-operator for the Company. She therefore joined the team officially with her own truck in August 2012. Horizon terminated her employment contract on December 18, 2014. Ms. Temple preferred making deliveries in western Canada. She therefore made deliveries between Manitoba (point of departure and destination) and British Columbia.
C. The October 14, 2014 accident and subsequent events
[18] On October 14, 2014, another truck collided with Ms. Temple’s truck while she was filling up in Kelowna, British Columbia. Ms. Temple injured her hand, more specifically, her thumb. However, there was no need to contact the first responders or the police, and the accident was caught by the gas stations’ cameras. The truck and its trailer were substantially damaged, but the load was not affected. Ms. Temple made her deliveries as planned.
[19] Without going into detail, and since the events will be explained later on, this type of incident involving a truck driver gives rise to two types of possible claims that can be made in parallel: (1) a claim to WorkSafeBC (“WCB”) for loss of wages; and (2) a claim to Manitoba Public Insurance (MPI) for damage to the vehicle. In Ms. Temple’s case, both claims were made because the truck was damaged and because she had to stop working for some time. The Tribunal understands that Ms. Temple’s claim to WBC was completed only in December 2014. This issue will be addressed later. As a result, Ms. Temple did not receive payments from WBC until March 2015, retroactive to the date of the accident and to when she stopped working. A claim to the MPI was also made, and the deductible was not reimbursed until July 2016.
[20] The Complainant did not work between October 14, 2014, the date of her accident, and early December 2014. The truck was damaged and had to be repaired. There were some communications between Ms. Temple and the Company regarding the MPI claim. In early December 2014, they started discussing her possible return to work. The truck was ready to go back on the road, and Ms. Temple, who was still in British Columbia, returned to Winnipeg to pick up her load. She made her deliveries as planned. Even though the Complainant had not worked for almost two months, Horizon found her some loads right before the holidays, a quiet period of the trucking year. Ms. Temple drove to British Columbia and had to be back in Winnipeg on Sunday, December 14, 2014. On the same day, she informed the Company that she had an appointment for a CT scan at Chilliwack Hospital, British Columbia, on December 18, 2014. On December 17, 2014, Horizon told the Complainant that she had a load to pick up in Richmond, British Columbia, on December 18, 2014. Ms. Temple reminded Horizon that she had a CT scan that day, between noon and 6 p.m., and that she also had to have her truck inspected because of a warning light indicating an engine problem. On December 18, 2014, Ms. Temple could not pick up the load as requested by the Respondent because she had to go to her hospital appointment and because there were more problems with her truck than she had thought: the truck could not go back on the road before being repaired. Horizon attempted to find an alternative, but at that time of the year, finding a truck is difficult. The Company was unable to fulfill its commitment to its client. On the same day, Horizon terminated Ms. Temple’s employment contract.
IV. Legal framework applicable to this case
[21] The purpose of the Act is set out in section 2 and allows everyone the opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by any discriminatory practices or prohibited grounds of discrimination under the Act.
[22] In human rights complaints, the Complainant has the burden of establishing a prima facie case of discrimination. As noted in Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), at paragraph 28, 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 favour in the absence of an answer from the respondent-employer”.
[23] In the particular case of the Complainant, Ms. Temple has to establish, in accordance with section 7 of the Act,
(1) That there were one or more prohibited grounds of discrimination under the Act (in this case, sex and disability);
(2) That, in the course of employment, the respondent differentiated adversely in relation to her or refused to continue to employ her; and
(3) That there was a connection between the prohibited grounds of discrimination and the adverse differential treatment in the course of employment or the refusal to continue to employ her.
[24] As was recently confirmed in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (“Bombardier”), a prima facie case must be established on a balance of probabilities. Consequently, the Complainant has to establish, on a balance of probabilities, the three elements of a discriminatory practice. It is not necessary to establish that the prohibited ground is the sole cause of the discriminatory practice: the prohibited ground can be one of many factors (see Bombardier, supra, at paragraphs 44 to 52). Conversely, if the prohibited ground has not influenced the Respondent’s conduct, the complaint must be dismissed
[25] Moreover, it is important to remember that discrimination is usually not direct, overt or intentional. As was held in Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT) (“Basi”), direct evidence is not required and neither is it necessary to prove an intention to discriminate (see also Bombardier, supra, at paragraphs 40 and 41). The Tribunal therefore has to analyze the circumstances to determine whether the subtle scent of discrimination permeates the matter. In the case of circumstantial evidence, an inference of discrimination may be drawn where the evidence offered in support of the allegations renders such an inference more probable than the other possible inferences or hypotheses (see Basi, supra; see also Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (CHRT)).
[26] If the Complainant meets her burden of proof, the Respondent has the burden of presenting its own evidence to refute the Complainant’s allegations of discrimination. Where there is a prima facie case of discrimination, the Respondent may demonstrate that the alleged discrimination did not occur as alleged by the Complainant or that the conduct was not discriminatory within the meaning of the Act (see Maillet v. Canada (Attorney General), 2005 CHRT 48, at paragraph 4). The Respondent may, moreover, establish a defence under the Act, specifically section 15 of the Act. Finally, the Complainant has the burden of establishing that the Respondent’s explanations are pretextual and that the true motivation behind the Respondent’s actions was in fact discriminatory (see, for example, Basi, supra, and Israeli v. Canada (Canadian Human Rights Commission), 1983 CanLII 6 (CHRT)).
[27] In this matter, Horizon did not rely on the exceptions set out in section 15 of the Act to explain the alleged discriminatory practices. However, it did present its own evidence to refute the Complainant’s allegations that discrimination took place. Having said that, and since the Respondent did not rely on a defence available under the Act, the Tribunal will focus solely on the analysis of the testimonial and documentary evidence submitted by the parties to determine whether this is a prima facie case of discrimination.
V. Preliminary remarks
A. Witness David Yach
[28] The Tribunal is in an unusual position with regard to Mr. Yach’s testimony. According to the Respondent, Mr. Yach was paid by Ms. Temple to make false statements to the Commission. Horizon therefore called Mr. Yach as a witness so that he could explain the situation to the Tribunal. Ms. Temple categorically denies these claims.
[29] I would like to start by noting that Mr. Yach’s testimony raises many questions. Under oath, Mr. Yach admitted that he had lied and made false statements to the investigators of the Commission. When the Tribunal assessed his testimony, Mr. Yach succinctly answered general questions, even under examination-in-chief. However, when Ms. Welsh addressed the issue of the false statements, the witness quickly became hesitant in his replies and started stammering. Gilbert Dubé also testified that Mr. Yach had worked for the Company in the past. Mr. Yach had billed fancy accessories for his truck to the Company’s account. The Tribunal understands that he had not been authorized to do this. Moreover, Mr. Yach’s truck was in deficit. Horizon and Mr. Yach therefore reached an agreement: the Company was to recover the truck to cover its expenses. However, Mr. Yach removed the fancy accessories before returning the truck to the Company, contrary to the agreement. Horizon therefore terminated his employment contract, and they ended their relationship on bad terms.
[30] These events occurred several years ago. The Tribunal nonetheless questions Mr. Yach’s credibility. Moreover, no evidence corroborating Mr. Yach’s testimony was adduced at the hearing. It is Mr. Yach’s word against that of Ms. Temple, who formally denies the allegations. I also find that, even though the Respondent is attempting to challenge Ms. Temple’s credibility, Ms. Temple supported many elements of her testimony with documents, email exchanges and texted conversations. The Tribunal has no reason to question Ms. Temple’s credibility at this stage. I would also like to note that other than the question of credibility, Mr. Yach’s testimony was neither useful nor necessary for making a decision.
[31] After considering these factors, the Tribunal therefore decided to disregard Mr. Yach’s testimony.
B. Objection under advisement
[32] On the last day of the hearing, Ms. Temple asked for the Tribunal’s permission to file a document from someone named Avi, who works at Rigmaster Truck & Trailer Repairs Inc. This document was not included in the documents sent to the Respondent or the Tribunal. According to Ms. Temple, it represents another example of her being forced to go on the road even though her truck was being repaired. She stated that the document should have been part of the documents she submitted to the Tribunal. Ms. Temple is not comfortable using technology, particularly, computers. She therefore needed support throughout the quasi-judicial process, including in the filing of her documentary evidence and the creation of binders. Also, the Complainant was not represented and did not benefit from the support of counsel.
[33] Ms. Welsh strongly objected to the filing of this document. First, she told the Tribunal that the procedure for filing documents as evidence was explained to the Complainant on several occasions. According to Ms. Welsh, the instructions were clear throughout the process. She added that the document had not been authenticated, and was undated and anonymous. Lastly, she submitted that the admission of such a document at this stage was very prejudicial to the Respondent and it would not be fair to admit its contents without the Respondent having an opportunity to make a full and complete defence.
[34] As Ms. Temple’s request was made on the last day of the hearing, right before arguments, the evidence was closed and all witnesses had testified, I asked the parties whether they would agree to my reviewing the document before ruling on the objection. The parties agreed to this request. The Tribunal noted the parties’ submissions and reserved its decision.
[35] The rules and admissibility of evidence before the Tribunal are less formal than those before a court of law. The Tribunal may therefore receive and accept any information by any means that it sees fit under section 50(3)(c) of the Act. The procedure for filing documents with the Tribunal is set out in Rule 6 of the Canadian Human Rights Tribunal Rules of Procedure (the “Rules”). Under Rule 9, the Panel may, at the request of a party, allow the filing of certain documents that were not filed in accordance with the procedure set out in Rule 6. However, this leave must be given in respect of the purpose described in paragraph 1(1) of the Rules, more particularly the right to full and ample opportunity to be heard.
[36] Under section 50(3)(c) of the CHRA, the Tribunal has broad discretion in administering evidence. Hear-say can be admitted and documents do not necessarily have to be authenticated. However, the Tribunal is also guided by the principles of natural justice and fairness. I am mindful of the Complainant’s arguments. However, I believe that admitting such a document would be highly prejudicial to the Respondent and given the very late filing, the Respondent was unable to take any means to mitigate this prejudice.
[37] Consequently, I reject the Complainant’s request to file this document. Regardless of this decision, I would like to note that even if the document had been filed with the Tribunal, its contents would not have had a major impact on my decision.
VI. Analysis and positions of the parties
A. Prohibited grounds
[38] As mentioned previously, the prohibited grounds of discrimination relied upon by Ms. Temple are sex and disability. Neither ground was challenged by the parties.
[39] “Disability” is defined at section 25 of the Act as “any previous or existing mental or physical disability. . .”. The Tribunal interpreted and expanded this definition in Audet v. Canadian National Railway, 2005 CHRT 25, at paragraph 39, which essentially reiterates the interpretation of disability provided in Desormeaux v. Corporation of the City of Ottawa, 2005 FCA 311 (CanLII), at paragraph 15, which defines disability as “a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment”.
[40] It is clear to the Tribunal that Ms. Temple’s injury is consistent with this interpretation of disability.
B. Adverse differential treatment and refusal to continue to employ
[41] Ms. Temple described several events to the Tribunal that, in her eyes, are displays of discriminatory practices by the Respondent. In her statement of particulars, Ms. Temple had already attempted to be concise by putting these events into different categories. On behalf of the Respondent, Ms. Welsh did the same. I will therefore review the different categories and elements to determine whether this is a prima facie case of discrimination. Where appropriate, I will look at the connection between the prohibited ground and the adverse impact in the subsequent section.
(i) Tolls
[42] First, Ms. Temple alleges that she suffered adverse differentiation in regard to the toll charges on the Port Mann Bridge, British Columbia. She submits that the male truck operators are not charged toll fees, but that Horizon deducted these amounts from her earnings. She compared her case to that of two truck operators, Yves Carriere and Pat Nicholas. The Respondent submits that Mr. Carriere does not use this bridge and therefore does not incur these expenses and that Mr. Nicholas is an employee-operator of the Company and that his costs and expenses are therefore assumed by the Company. The Respondent further argues that the Complainant was reimbursed these amounts. Lastly, the Respondent argues that it made an administrative error in managing the toll charges, an error that was later corrected.
[43] The evidence reveals that the Port Mann Bridge, which is in the Vancouver area, British Columbia, has tolls. An electronic system called TReO records the details of vehicles using the bridge and drivers then have to pay the toll charges. In Ms. Temple’s case, the charges were billed to the Company. Between December 22, 2012, and October 9, 2013, the Complainant incurred $523.90 in toll charges. The Company billed her for part of the sum, $300.00, on October 31, 2013. It also billed her $69.80 and $36.30 for new toll charges on her statement dated November 30, 2013. She was billed a total of $406.00 in charges.
[44] Ms. Temple talked to Mr. Carriere and Mr. Nicholas to find out whether they, too, were being debited their toll charges, to which they replied no. She therefore asked Luc Dubé to clarify why she was being billed these amounts. Luc Dubé had to discuss the matter with Horizon’s president, Gilbert Dubé, who was out of the province at the time. A few weeks went by, and the Company finally reimbursed the Complainant $406.00 on February 28, 2014. Luc Dubé told the Tribunal that British Columbia’s TReO toll charges were a relatively new situation for Horizon. Gilbert Dubé had no recollection of receiving such invoices from the province previously. He also explained that the charges incurred by owner-operators, including tolls, are usually made at their own expense. The Tribunal notes that this is indeed what the employment contract indicates. Gilbert Dubé nonetheless decided to pay the charges and to assume them in the future. The evidence establishes that this was a business decision on the part of the Company.
[45] Furthermore, Mr. Carriere, who drives the same routes as the Complainant, between Manitoba and British Columbia, testified that he only rarely takes the Port Mann Bridge. Instead he uses a different route, without tolls or charges. As for Mr. Nicholas, it was established that he is an employee-operator for Horizon. He therefore does not incur such charges. Gilbert Dubé also informed the Tribunal that if one of his employee-operators incurred toll charges, the Company would pay for them as planned.
[46] Ms. Temple stated that Horizon was set on no other truck operator taking the Port Mann Bridge and incurring this type of charge. She referred to the Company’s history of TReO charges, which clearly shows that one other driver took the bridge between January and March 2013. This was during the same period she accumulated $523.90 in toll charges. It was demonstrated that an administrative error was made in managing the toll charges. Gilbert Dubé admitted that he had taken it for granted that the toll charges had all been incurred by the Complainant and had not really looked at the licence plate numbers associated with the charges. Ms. Temple was therefore debited $69.80 even though it had not been incurred by her. This sum plus the other amounts debited were reimbursed, and she was not subsequently charged for tolls. The fact that the $406.00 reimbursement was made four months later and that the other operator was not billed these charges, as a result of an error, is not adverse differential treatment in itself.
[47] Regarding the British Columbia toll charges, I therefore find that, on a balance of probabilities, the evidence does not show that the Company differentiated adversely in relation to the Complainant.
(ii) Working harder than male operators
[48] Ms. Temple alleges that she had to work harder than her male colleagues to earn the same income. Horizon respectfully submitted to the Tribunal that no evidence was submitted for this. After reviewing the evidence, I must indeed find that the Complainant has not met her burden. In the factual background, I explained how the earnings of owner-operators are calculated. A number of factors affect this calculation, including the number of pick-ups and deliveries made, mileage, maintenance and repair costs, gas, insurance and permits. I also note that the Company cannot guarantee routes or pick-ups and deliveries. Other aspects must also be taken into consideration, including efficiency and even business opportunities. Without overwhelming evidence clearly showing that it is more probable than not that Ms. Temple had to work harder to earn the same income as the male operators, I cannot draw this conclusion.
[49] I therefore do not believe that, in the course of employment, the Company differentiated adversely in relation to the Complainant as far as this aspect is concerned.
(iii) Forced to deliver and drive
[50] Ms. Temple alleges that, in contrast to the male truck operators, the Company forced her to deliver goods when she was unavailable to do so. Once again, the Respondent attempted to refute these allegations. Some witnesses explained the expression “forced to deliver” to the Tribunal in their own words. Generally speaking, they all agreed that “forced to deliver” the goods referred to the Company forcing a truck operator to go on the road when he or she was unable to go on the road or when the Company put the operator in a position where the operator felt that he or she had no other choice but to go on the road. Being unable to drive can mean a number of things, for example when an operator is on a mandatory break or leave, or when he or she is too tired to drive. Ms. Temple attempted to establish several situations to the Tribunal where she had been forced to deliver goods by Horizon. For the sake of brevity, I will not review all of these situations. She explained, moreover, that she had been afraid of losing her job if she refused to go on the road even when she was unable to do so.
[51] It is clear to me that the Complainant generally agreed to drive when the Company asked her to do so, even when she was unable to do so. Ms. Temple made several statements about this subject and often repeated the same expression, saying that she had not wanted to “rock the boat” and drove when she was asked to do so. Luc Dubé confirmed this in his testimony, describing the Complainant as being compliant. The Complainant’s colleague, Mr. Carriere, whose testimony is absolutely credible, also explained to the Tribunal that he had trouble understanding why she agreed to every load Horizon gave to her. He explained that he had refused loads from the Company and that the president, Gilbert Dubé, had also contacted him because he had refused a load. When he was asked whether Horizon had ever threatened him with dismissal when he refused a load or refused to drive, Mr. Carriere clearly replied no. Lastly, Mr. Carriere testified that he had refused several loads that Ms. Temple had accepted.
[52] Having said that, two situations involving the Complainant feeling forced to make a delivery or to go on the road attracted the Tribunal’s attention. The first occurred on July 21 and 22, 2014. Ms. Temple, who was in British Columbia, informed her supervisor, Luc Dubé, on Sunday, July 21, 2014, that her truck had a mechanical problem. She told him in advance that she would take her 36 hours of mandatory leave on Tuesday, July 23, 2014, and would reset her working hours. On Monday, July 22, 2014, Luc Dubé informed her that she had to go on the road and pick up three loads, including some scheduled for July 24, 2014. The Complainant told Luc Dubé that this would not allow her to do her 36-hour reset. She accepted the load anyway, but it forced her to switch from the 70-hour cycle to the 120-hour one. Counsel for the Respondent alleges that Ms. Temple’s hours were complying with statutory requirements and that she could switch cycles. I do not find the evidence to be as clear as Ms. Welsh sees it. It is apparent that the Complainant informed her supervisor by text message that her hours were violating statutory requirements and that she could attempt to organize herself so as to be able to pick up the load as requested. Nothing in the evidence allows me to question what the Complainant has said about the situation. Having said that, the load was maintained, by both Ms. Temple and the Company.
[53] The Respondent noted several times that the duty to comply with the law with regard to driving hours was the responsibility of the truck operators. The Tribunal understands the idea that an operator sh