Fahmy v. Greater Toronto Airports Authority

Fahmy v. Greater Toronto Airports Authority
Collection
Canadian Human Rights Tribunal
Date
2008-05-07
Neutral citation
2008 CHRT 12
File number(s)
T1115/9605
Decision-maker(s)
Garfield, Matthew D.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
MARIE-THERESE FAHMY
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
GREATER TORONTO AIRPORTS AUTHORITY
Respondent
REASONS FOR DECISION
2008 CHRT 12 2008/05/07
MEMBER: Matthew D. Garfield
I. INTRODUCTION
II. BACKGROUND
III. THE USE OF INITIALS
IV. THE COMPLAINT
V. MOTION FOR NON-SUIT
A. The Election Issue
B. Ruling on the Motion for Non-Suit
C. The Law With Respect to Non-Suit Motions
D. The Prima Facie Case in Non-Suit Motions
E. Particular Allegations and Facts in this Non-Suit Motion
VI. REASONS FOR DECISION ON THE MERITS
A. The Law
B. Findings of Credibility
(i) The Complainant
(ii) S.M.
C. The Allegations: Introduction
D. Allegation #1: S.M. Took Away Her Work and Gave It to B.M. and M.G.
E. Allegation #2: The September 3 or 4 Conversation Between S.M. and Ms. Fahmy
F. Allegation #3: Issue of Accents and Communication Level of Employees
G. Allegation #4: Security Clearance
H. Allegation #5: Security Gateway and Other Training
I. Allegation #6: S.M. Excluded Her From Meetings
J. Allegation #7: Access to the Campus Area Network
K. Allegation #8: CD Cabinet Key
L. Allegation #9: Sexual Comments About Ms. Fahmy at Two Meetings
M. Allegation #10: Her Work Performance Was Good: Her Employment Termination was Discriminatory
(i) Was She Competent and Qualified to Do the Job?
(ii) Inventory of Equipment
(iii) Missed Technical Deadlines
(iv) RFC Change Management Protocol
(v) Heat Tickets
(vi) Showing Aelita Migration Tool to M.G.
(vii) Lynn Child's Complaint
(viii) Vishwa Surajram's Complaint
(ix) Conclusion About Work Performance and Employment Termination
N. Allegation #11: Performance Appraisal and the Process was a Sham or Pretext
VII. CONCLUSION
I. INTRODUCTION [1] It was an extremely busy and stressful time. It was 2002 and the new Terminal 1 at Pearson International Airport in Toronto was rushing to completion. The employees in the Information Technology department of the Respondent Greater Toronto Airports Authority (GTAA) were on a tight time-line to get the computer system in operation for the new Terminal 1. This was the context in which the Complainant, Marie-Therese Fahmy, found herself when she joined the GTAA's IT Systems Operations as a network analyst in July 2002.
[2] At first, things seemed fine for Ms. Fahmy. However, as time went on, from her perspective and that of her employer, issues emerged. This began with the arrival of her new manager a few weeks after she started work at GTAA. The relationship deteriorated. From the employer's perspective, her work performance was simply not consistently satisfactory. However, because her work performance had improved since the first performance appraisal, her probationary period was extended. On May 1, 2003 - ten months after she began - GTAA terminated her employment. She filed a grievance alleging wrongful termination and a complaint with the Canadian Human Rights Commission (Commission) alleging discrimination contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (CHRA) based on the prohibited grounds of race, national or ethnic origin, colour and sex.
II. BACKGROUND [3] The Commission referred the complaint to the Canadian Human Rights Tribunal (Tribunal) on December 30, 2005. The parties estimated ten days for the hearing. The Commission did not attend or participate at the hearing. At the first day of the hearing, counsel for the Complainant requested that the hearing be bifurcated. The Respondent consented. The Complainant's counsel indicated that she had recently taken over the case from previous counsel and was not able to get medical reports in time for the remedial portion of the hearing. Counsel also indicated that there were some mental health issues of the Complainant that her client did not wish to reveal unless it became necessary. They were not relevant to the liability part of the hearing. Because I was doubtful that the entire hearing could be completed in the agreed ten days in any event, I reluctantly agreed to bifurcate the hearing.
[4] Unfortunately, my suspicions were confirmed. The hearing ended up taking 21 ½ days, including a motion for non-suit. While counsel for the parties underestimated the time needed, in fairness to them, there were other factors involved. Some of the witnesses took an inordinate amount of time on the stand. For example, the Complainant's testimony alone took almost eight days of hearing. Questions had to be repeated as answers were simply not responsive to the questions. There were many objections made throughout the hearing, mainly by counsel for the Respondent. I should add that many of her objections were sustained.
[5] Aside from the length of the hearing, I was concerned about the length of time over which it was spread - one year exactly. This was due to the busy schedule of counsel. It was very difficult finding blocks of time that both counsel had available. I mention this because it has been five years since Ms. Fahmy's employment ended at GTAA. The Commission took 2 ½ years to refer the case to the Tribunal; the hearing itself was spread over one year. It is obviously not in the interests of either party (or the non-participating Commission) to have the matter take so long to reach a conclusion. From the parties' and the witnesses' points of view, memories fade and giving testimony becomes more difficult. From the Tribunal's perspective, it made it more challenging to adjudicate. However, I am satisfied that the viva voce evidence, along with the documentary evidence, was cogent enough that I am able to make findings of fact and law and come to a disposition.
III. THE USE OF INITIALS [6] One will see throughout my Reasons for Decision that I make some strong findings regarding the credibility of the Complainant and certain witnesses, and their respective evidence. Because of this and the harsh accusations by the Complainant toward her manager in particular and against other witnesses, and by other witnesses against each other, I have decided to use initials for some of the witnesses, to protect their privacy and reputations. I have not used initials for the parties.
IV. THE COMPLAINT [7] Ms. Fahmy claims that her rights under subsections 7(a) and 7(b) of the CHRA were violated by the GTAA. Section 7 reads:
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,
based on a prohibited ground of discrimination.
Ms. Fahmy is claiming the grounds of race, national or ethnic origin, colour and sex. She is a woman of colour, and of Egyptian origin.
[8] The Complainant filed her Complaint on June 14, 2003. She had reformulated it several times. Indeed, the Commission initially refused to deal with her Complaint. I should add that this does not factor into my determination, as the hearing before the Tribunal is a de novo one. In my Reasons I address the particular allegations.
[9] The gist of her Complaint (based on the actual Complaint form filed, her Statement of Particulars filed with the Tribunal (akin to a pleading) and her viva voce testimony) is against her manager, S.M., who became her manager a few weeks after she began to work at GTAA. His predecessor had hired her. In her Complaint form, she also mentions that A.W., project manager, operations, who supervised her from January-April 2003, ...tried to destroy my self-esteem, notwithstanding her testimony that he was very nice to her. But her focus is on S.M. He is not a party; the GTAA is the only respondent. In her letter to GTAA President and CEO Louis Turpen dated May 4, 2003 following her termination, she said she did not blame the GTAA, only S.M. for discriminating against her. She wrote: ...he didn't like me for my background. She did not mention any discrimination based on her gender. As well, in a letter to the Commission which was stamped received December 11, 2003, Ms. Fahmy wrote, I strongly believe that my Human Rights complaint is about giving my job to white people. There is no mention of gender or sex discrimination. She only claims discrimination based on sex later. As well, in the hearing, Ms. Fahmy alleged that A.W. secretly assigned technical jobs to the white contractors - nothing about gender-based discrimination.
[10] Notwithstanding S.M. is not a party, of course GTAA may be deemed liable (analogous to vicarious liability under tort law) for any discriminatory conduct by him (or any other manager, employee, contractor/consultant as agent) in the course of his employment, pursuant to section 65 of the CHRA. This is so unless the respondent employer can show it did not consent to the discriminatory practice, took reasonable due diligence to prevent it and mitigated its effect.
[11] In her Complaint form, Ms. Fahmy claims that her job was given to a less qualified white contractor. She also says her white manager, S.M., favoured the white guys over the accented people of colour. She writes that he made sexist comments to her. As well, Ms. Fahmy states that S.M. gave her an unfair performance appraisal, full of wrong accusation [sic]. She says she complained to Maria Maack, the human resources manager, about S.M.'s treatment of her, but to no avail. She also writes, [S.M.] avoided me and refused to acknowledge my good performance. [Her underlining.]
V. MOTION FOR NON-SUIT A. The Election Issue [12] At the conclusion of the Complainant's case, counsel for the Respondent indicated she intended to bring a motion for non-suit. I received written submissions about the issue of whether GTAA would be put to an election not to call evidence if the motion was heard. I ruled that GTAA would not be required to make an election.
[13] Regarding the issue of the election, I have a few comments. First, the Tribunal has the jurisdiction to decide whether an election is required and to hear a motion for non-suit: Filgueira v. Garfield Container Transport Inc., 2006 FC 785. Hughes J. pointed out at para. 22 that the matter of requiring an election is one of procedure, not of law or natural justice: Tribunals should be allowed reasonable latitude when it comes to procedure... Second, there are thoughtful decisions at the Tribunal-level both requiring and not requiring an election to be made prior to hearing a motion for non-suit. In both decisions, the respective members agreed that the question should be decided in the circumstances of each case: Chopra v. Canada (Department of National Health and Welfare), [1999] C.H.R.D. No. 5 and Filgueira v. Garfield Container Transport Inc., 2005 CHRT 30. In the civil context, most jurisdictions in Canada do not require an election.1 While there are sound legal and policy reasons for both determinations, I am more persuaded by the arguments in favour of not requiring an election. In the CHRA context, there is no pre-trial oral discovery process available to the parties. There is no motion for summary judgment.2 Indeed, an award of costs is not available to a victorious respondent in the CHRA proceeding before the Tribunal. A respondent dealing with a frivolous or vexatious complaint has little recourse to a summary determination short of a full hearing at the Tribunal, once the Commission has referred the complaint to the Tribunal. Accordingly, I do not believe it is fair to require a respondent to make an election not to call evidence as a condition precedent to having his motion for non-suit heard. No evidence was presented to me to suggest that not requiring elections increases the number of non-suit motions made, thus prolonging the hearing process.
B. Ruling on the Motion for Non-Suit [14] On July 3, 2007, I heard argument on the motion for non-suit. Soon thereafter, I advised the parties of the following ruling:
The motion for non-suit is dismissed. I am satisfied that there is some evidence which, if believed, could trigger liability under the CHRA. This does not suggest that the evidence will be believed and liability established at the conclusion of the hearing, whether GTAA elects to call evidence or not. In either situation (i.e., if GTAA calls evidence or not), when the hearing closes, I will undertake the usual weighing and assessing of the evidence, including credibility, which I am not permitted to do on a motion for non-suit.
In the circumstances of this case, where the Respondent was permitted to bring the motion for non-suit without having to make the election not to call evidence, I think it would be inappropriate to issue detailed Reasons now. Accordingly, my Reasons for Decision will be issued upon the completion of the hearing.
... ...
[15] One will see from my ruling above that I essentially gave no reasons, with the promise to give full reasons at the conclusion of the hearing. This addresses the commentary in the various cases dealing with elections and non-suits concerning whether reasons should be given, and when and to what extent, where an election is not required. Obviously it is not an issue where the motion for non-suit is successful or where an election is required to be given. Adjudicator Slotnick in Potocnik v. Thunder Bay (City), [1996] O.H.R.B.I.D. No. 16, at para. 16 cites with approval the approach taken in Tomen v. O.T.F. (No. 3), (1989) 11 C.H.R.R. D/223 not to give reasons. At para. 10, Adjudicator Slotnick states:
...where an adjudicator does not require an election and ends up rejecting the motion to dismiss the complaint, the proper procedure is to give no reasons. Otherwise, the party that is about to present its evidence would have the advantage of the adjudicator's thoughts on the evidence of the other party.
In Filgueira, supra, Member Groarke refers to a respondent taking the temperature of the Tribunal. I agree that a respondent should not get an advantage from bringing an unsuccessful non-suit motion by getting to test the waters of a tribunal. The adjudicator should not give reasons, other than to say whether a prima facie test has been made out. That is the approach I have taken in this case.
C. The Law With Respect to Non-Suit Motions [16] Sometimes referred to as a motion for dismissal in the case law, the purpose of the motion for non-suit makes sense. In the adversarial process, a defendant is not forced to lead evidence. The burden of proof rests with the proponent of the case - the plaintiff. The defendant should not be relied upon to help prove a plaintiff's case. As well, if a plaintiff is not able to present sufficient (or any) evidence to prove in fact and in law that liability should ensue, the defendant should not be obligated to run his or her case, at great expense to the parties and the public court system.
[17] While a defendant's resources and the public purse should not be burdened to pay for frivolous or vexatious claims, the courts have set a high bar for non-suit motions to succeed. This is done through various means: the prima facie test requiring a presumption that a plaintiff's evidence be believed, in essence the benefit of the doubt going to the plaintiff; forcing an election to be made by a defendant (in those jurisdictions that require it); and the awarding of costs against an unsuccessful moving party. The courts have clearly determined that it should not be too easy for a defendant to knock out a lawsuit on a motion for non-suit. Perhaps there is a fear of delay to the process if unsuccessful non-suit motions became the norm. On the other hand, as Adjudicator Wildsmith stated in Gerin v. IMP Group Ltd., [1994] N.S.H.R.B.I.D. No. 4, at para. 21: ...I note that the motion for non-suit is a potential safeguard against abuse.
D. The Prima Facie Case in Non-Suit Motions [18] There have been differences espoused by the courts over the years regarding the proper test to be applied to non-suit motions. For example, does the plaintiff need to adduce sufficient evidence or simply any evidence on the elements of the case to defeat a motion for non-suit? Is there a difference in the criminal vs. civil context?
[19] On the civil side, and this includes for my purposes, the present case before me, the test for the moving party is: has there been some evidence led which, if believed, could trigger liability, in the absence of an answer from the defendant (or respondent in the CHRA context)? In other words, is there a case for the defendant to answer? If yes, the motion is dismissed; if the answer is negative, the motion is granted. An unsuccessful motion for non-suit does not mean that the plaintiff will win the day at the conclusion of the hearing proper. It simply means this high bar for a preliminary dismissal has not been reached.
[20] It is important to note the different analytical approaches used in the non-suit and on the merits determination. As Member Groarke noted in another decision in Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, at para. 12, in a motion for non-suit there is a different kind of analysis undertaken than that carried out on the merits at the end of a hearing. The courts have been quite clear that a trial judge or adjudicator should not do the regular weighing and assessing of evidence, including credibility, that is done in the normal course at the conclusion of a trial or hearing. To confuse the two processes is an error in law. The trier at the non-suit is measuring the case from a prima facie perspective - very superficially, at first glance or sight as the Latin term prima facie literally means. No in-depth perusing of the evidence or assessment of the credibility of the witnesses is done. As Adjudicator Wildsmith correctly pointed out in Gerin, supra at para. 7: ...the quality of the evidence should not be assessed at this point. Further, as Adjudicator Baum wrote in Tomen, supra at para. 29: I am bound to view the evidence through a narrow prism. I am not, as such, evaluating conflicting evidence. I would add that that includes conflicting evidence within a complainant's own case, unless of course, it is simply so unbelievable. At the non-suit stage, there is almost an evidential presumption of truth - evidence if believed. The plaintiff or complainant gets the benefit of the doubt. Indeed, the bar is cast so high that it is only if the complainant's case is totally unbelievable or far-fetched (i.e., one would have to suspend one's belief to accept it) that it should be disbelieved.3 The result is that it is difficult for a moving party to be successful on a motion for non-suit. Furthermore, if the court or tribunal requires an election, given the high threshold, very few defendant or respondent lawyers would take that risk.
[21] The role of the trial judge in a motion for non-suit was recently canvassed by the Ontario Court of Appeal in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007), 85 O.R.(3d) 561. The Court held that the trial judge applied the wrong test in granting the non-suit motion ...by going beyond his limited mandate... on the non-suit motion. Laskin J.A. wrote at paras. 35-36:
On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign the most favourable meaning to evidence capable of giving rise to competing inferences...
In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff's prima facie case. The trial judge should make that determination at the end of the trial, not on the non-suit motion. See John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths Canada, 1999) at 139.
I assume that the Court is not suggesting the assumption of truth of the evidence includes evidence that is unbelievable in the extreme, or simply preposterous.
[22] I also wish to point out that there is some confusion in the case law about whether the test requires that the evidence would or could trigger liability. Courts and tribunals have taken both approaches and some avoid the issue altogether. In Filgueira, supra, Hughes J. quotes with approval at para. 6 the following passage in Sopinka, Lederman and Bryant: The judge must conclude whether a reasonable trier of fact could find in the plaintiff's favour if it believed the evidence given in the trial up to that point. [My italics.] It appears clear that the Supreme Court of Canada has adopted the could approach, at least in the civil and criminal context, which I have followed here.4 I see no reason to deviate from it in proceedings before the Tribunal.
[23] Is there a different evidential burden to establish a prima facie case of discrimination at the non-suit stage than outside such a motion, in the normal course of a hearing after both parties have led their case? This was not in issue before me in the instant case. Consequently, I leave that issue for another day.
E. Particular Allegations and Facts in this Non-Suit Motion [24] I now turn to apply the law on non-suits to the allegations and facts in issue here. GTAA argues that there is no evidence which, if believed, is capable of supporting a finding of liability against it on either subsection 7(a) or 7(b) of the CHRA and in respect of any of the claimed prohibited grounds. The Complainant argues the opposite.
[25] Having carefully examined the evidence, both viva voce and documentary, by the Complainant and her witnesses, as I indicated in my ruling, I was satisfied evidence existed which, if believed, could trigger liability. For purposes of the non-suit, I do not have to go through each of the allegations. A prima facie case need only be established on a single count under section 7 for each claimed prohibited ground, in order for the motion to be dismissed. I appreciate that some of the allegations involve the prohibited ground of sex and others the grounds of race, national or ethnic origin, and colour. Some of the allegations also involve all of the claimed prohibited grounds, as it is often difficult to parse people's immutable characteristics in the finding of discriminatory practices.
[26] I have done this analysis on the motion for non-suit following these legal parameters: giving the benefit of the doubt to the Complainant, putting the absolute best interpretation on the evidence of her and her witnesses, and not taking into account questions of credibility.
[27] With regards to the question of liability under section 7 on the basis of sex, for purposes of the non-suit only, I find that the allegation of improper sexual statements against Ms. Fahmy on two occasions by S.M. or A.W. (but not M.G.) could trigger liability of GTAA. In particular, S.G.'s evidence is believable, for purposes of the non-suit, that either S.M. or A.W. made disparaging comments behind Ms. Fahmy's back in two meetings among the three of them. The comments were sexually degrading and involved the Complainant performing fellatio and were made by a manager of GTAA. Such comments, even though not brought to her attention until after her employment termination, could have constituted adverse differential treatment and factored into her employment termination on account of her gender. Included in this determination is the evidence of Ms. Fahmy that S.M. made sexist comments like, It's still a man's world and let the men win. I also factor in the fact that Ms. Fahmy was the only woman in the IT department under S.M.'s supervision.
[28] I also find for purposes of this non-suit only that there existed some evidence, which if believed, could result in liability contrary to section 7 on the basis of race, national or ethnic origin, and colour. In particular, the following incidents in totality show on a prima facie basis, adverse differential treatment of Ms. Fahmy culminating in the decision to terminate her employment on the basis of her race, national or ethnic origin, and colour:
she was hired to be the technical lead on the MS Windows 2000 infrastructure project, but it was taken away from her and given to a white contractor with fewer qualifications than she, M.G.; Pre-Production Centre work was taken away from her and given to another white contractor, B.M., who was also less qualified than she; Ms. Fahmy was excluded from meetings, including one on January 30th, while the white contractors were not (i.e., A.W., D.M., B.M., M.G.); S.M. made a disparaging comment that could be viewed as being directed at accented employees/contractors of colour: I want people who can communicate better; white employees got training, but not the Complainant or the other people of colour; white, male colleagues had access to the Campus Area Network, but not her or the other employees/contractors of colour; and with respect to all claimed prohibited grounds, there is evidence that D.M. was told by S.M. to make-up performance/deficiency issues to justify terminating Ms. Fahmy's employment. This was said prior to her probationary period being extended and thus taints the bona fides of the whole performance appraisal process and extension of the probationary period.
VI. REASONS FOR DECISION ON THE MERITS [29] Having dismissed the motion for non-suit, I asked counsel for the Respondent if she wished to call evidence. Understandably, Ms. Rusak answered yes and I proceeded to hear her witnesses and the brief Reply evidence of Ms. Fahmy. What follows are my Reasons for dismissing the Complaint on the merits.
A. The Law [30] The initial onus of establishing a prima facie case of discrimination under the CHRA rests with a complainant or the Commission5: Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Limited, [1985] 2 S.C.R. 536, at para. 28. Once that is established, the burden then shifts to the respondent to establish a justification or explanation for the discriminatory practice or action. The respondent's explanation should not figure in the determination of whether the complainant has made out a prima facie case of discrimination: Lincoln v. Bay Ferries Ltd., 2004 FCA 2004, at para. 22.
[31] Also relevant to the instant case is the legal principle that: It is not necessary that discriminatory considerations be the sole reason for the actions in issue in order that the complaint may succeed. It is sufficient that the discrimination be one of the factors for the employer's decision: Morris v. Canada (Armed Forces) (2001), 42 C.H.R.R. D/443 (C.H.R.T.), at para. 69.
[32] The case law recognizes the difficulty of proving allegations of discrimination by direct evidence. Discrimination is frequently practised in a very subtle and subterranean manner. Overt discrimination is rare: Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.), at para. 5038. Rather, it is the Tribunal's task to consider all of the circumstances to determine if there is, in what is described in the Basi case as, the subtle scent of discrimination.
[33] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, discrimination may be inferred where the evidence offered in support of the discrimination renders such an inference more probable than the other possible inferences or hypotheses: Premakumar v. Air Canada (No. 2) (2002), 42 C.H.R.R. D/63 (C.H.R.T.), at para. 81.
B. Findings of Credibility [34] As an adjudicator, I am mindful that the hearing room is an artificial environment where witnesses react in individual and different ways to the stresses of giving testimony, etc. Accordingly, their demeanour is used as only one indicium of credibility. More important is the content of their testimony and what they did, said and wrote (as documentary evidence is important too) in the past events that form the basis of the subject matter of the Complaint before me, and how their evidence fares in the context of the totality of the evidence presented. I also wish to add that finding a witness credible or not does not mean that everything the witness says or writes is accepted or rejected. I have tried to make sense of all the evidence and make findings of fact about what actually occurred.
[35] As in many cases, credibility played an important part here. In my Reasons, I comment on the credibility of various witnesses. Here specifically, I wish to comment mainly on the credibility of the two most important witnesses in the hearing: the Complainant; and S.M. Although S.M. was not named as a party in the referral by the Commission, the Complaint and the theory of the Complainant's case always focused on S.M. as the alleged discriminator of Ms. Fahmy.
[36] Ms. Rusak submits that the Complainant, D.M. and S.G. perjured themselves before the Tribunal; their testimony was so unbelievable. While I won't go so far as to find that they perjured themselves, by the end of the hearing their credibility was damaged.
(i) The Complainant [37] The Complainant's credibility was in question throughout the hearing, both in terms of what she said on the stand and what she wrote in emails and letters, and juxtaposed against other witnesses' evidence. She was not very credible and her evidence not reliable in many instances. She was on the stand for almost eight days. Ms. Fahmy was frequently evasive. She did not answer many questions the first time asked; some required repeated asking, particularly in cross-examination. Sometimes she would contradict herself within the span of minutes, and certainly from the examination-in-chief to the cross-examination. I do not believe language was the problem. While English is not her first language, and while she may not be totally fluent, her language facility in English is very good: both verbal and written. I judge this by her testimony and the numerous documents she wrote that were entered into evidence. I even asked her if she was having difficulty understanding the questions. She answered no. I sometimes noticed that she would try to anticipate the cross-examiner's question before it was asked. I interjected numerous times, letting her know I understand it is stressful, but to listen carefully to the question and answer the question directly.
[38] Aside from her evasive demeanour, the content of many of her answers was unbelievable. I do not think she answered many of the questions honestly. Indeed, there was one instance where Ms. Rusak was asking her a question and the Complainant said she wasn't concentrating because she was reading the performance appraisal exhibit. Counsel replied that that was not true, that the Complainant was looking right at her, staring her [counsel] down. Ms. Fahmy replied: Yeah. Okay...You don't know...I'm looking and I'm reading. I was watching Ms. Fahmy during the whole exchange. Ms. Rusak was correct.
[39] Later in my Reasons under the specific headings of allegations, I will deal with some of the Complainant's evidence and that of other witnesses regarding her which raised concerns about her credibility. For now, I will give some examples. First, it was quite apparent that Ms. Fahmy misrepresented her experience in her curriculum vitae that was presented to GTAA via the placement agency, Agelon, when she was hired. In particular, in the curriculum vitae she gave to the Commission post-GTAA employment, she writes under the heading Work Experience that she was a Senior Network Analyst at GTAA. This is clearly untrue. In her testimony she acknowledged that she was hired at the GTAA as a Network Analyst and not as a Senior Network Analyst. She knew that there was a clear difference between the two jobs, in terms of classification, salary, duties and responsibilities. She did the same thing with other former employers on this c.v. (i.e., adding Senior). The c.v. she gave GTAA, via the placement agency, in April 2002 is different than the one produced to the Commission by the Complainant and which includes her employment post-GTAA. In addition, the dates she worked at several employers were not the same on both resumés: in one case, the Ontario Financing Authority, there was a seven month discrepancy. She also left out a company for which she had worked for over one year on her c.v. given to GTAA. When cross-examined on the discrepancies, she replied that a priest had told her it was alright to do so, ...it's not a lie if you put the same amount of years of experience. It doesn't matter how many companies. Ms. Fahmy indicated that she also was told it's okay to shrink your curriculum vitae as long as you highlight the important things. She also testified that she spoke with some human resources person in an Ontario government ministry about how to do the resumé and how to make it short. She implied that the Ministry employee told her it was alright to alter work periods so as to avoid gaps in employment. She also stated, ...when I apply for a job that's not senior, I go remove all my senior or put them back. It's not about how accurate it is. It's about answering questions for the employer and being able to do the job. In cross-examination, she admitted that the c.v. she presented to get her job at GTAA was not completely true and accurate.
[40] Another area damaging her credibility and making her evidence unreliable involves the question of her being busy or not while working at GTAA, and whether she accepted the evaluation of her work in the performance appraisals. Suffice to say that her evidence was contradictory. At one point, she testified that she was not busy 50-60 percent of the time from January-May 2003, because work had been taken away from her. This is so notwithstanding she had put in consistently for overtime and the evidence of several witnesses was that it was a busy time and there was lots of work for everyone. As well, she had replied in an April 8, 2003 email to S.M.'s request of his employees' work schedules that she was quite busy: Daily activity: Support WNT/2000, and Exchange servers 90% of my time. In cross-examination, when it was put to her that her email reply was simply untrue, she replied that S.M. should know how busy they are: ...the manager should know what we are doing. She also testified that she was concerned if she had said she wasn't busy, that she might have been fired.
[41] Ms. Fahmy's evidence about the work appraisals also raised credibility concerns about her. She testified that she had not read the entire November 8, 2002 appraisal; she had read parts of it; she didn't understand part of it. Later, she stated, A big part, I read but didn't agree with. A small part, I never read. This is coupled with the written response she gave to that issue. Having reviewed the appraisal and her written response, I conclude she could not have written what she did without having read the entire appraisal. Furthermore, in her May 5, 2003 letter to the Commission, Ms. Fahmy wrote at p. 2: Then I went home and read the performance appraisal and I found too many wrong accusations. Clearly she read it, as she should have, given it was her responsibility as a probationary employee to read the appraisal to understand what areas she needed to improve.
[42] Regarding the content of the performance appraisal, she testified she didn't agree with it. There are clearly documents indicating her concern with some of it, including the suggestion that she missed many deadlines and the later giving of examples. Yet she also wrote that she agreed with it and would try to do better. She explains this by saying she was trying to win him over and that she didn't mean what she wrote. She wrote to S.M. that she likes him sooo [sic] very much, when in fact she testified she thought S.M. was a racist at that time, but was trying to win him. In essence, I find it difficult to determine whether she was telling the truth in the first instance, or telling the truth that she wasn't being truthful.
[43] Her evidence regarding her December 6, 2002 meeting with human resources manager Maria Maack is not believable in the main as well. She avers that she showed Ms. Maack emails demonstrating S.M. was harassing her and didn't like her because she is a woman. There is no email corroborating this. She says she wanted Ms. Maack to start an investigation into the matter. She says Ms. Maack refused to do anything. Ms. Fahmy also wrote, The sex discrimination was raised between Maria Maack and me only. I find her evidence utterly unbelievable. I do not accept her testimony that she alerted a seasoned human resources manager, who trains others regarding discrimination and harassment issues and investigates such matters, and that Ms. Maack refused to do anything. This would be contrary to the collective agreement and internal anti-discrimination/harassment policies of the GTAA. As Ms. Maack stated, if she failed to respond like that, she (Ms. Maack) would no longer have a job. I accept Ms. Maack's viva voce evidence and her email to S.M. and to file dated December 9, 2002 as reflective of what occurred at the meeting. I wish to add that I found Ms. Maack quite credible on the stand.
(ii) S.M. [44] S.M. was Ms. Fahmy's manager. He started several weeks after she began working at GTAA. He was a new manager and indeed, he testified that he had never done a performance review before. While I do not accept all of his testimony, for the most part, I find S.M. was quite credible as a witness and his evidence reliable. He answered the questions succinctly and his viva voce testimony was generally consistent with his emails and letters, and with the preponderance of the evidence in the case.
[45] One area that I did not accept his evidence on concerned Ms. Fahmy remaining the technical lead on W2000 even to the last day. Having reviewed the testimony of the other witnesses and the documentary evidence, while still a network analyst (the position for which she was hired), by the time her employment was terminated, she was no longer the technical lead on W2000. For example, I accept Ozgur Erkucuk's evidence that she was eventually taken off the project. This will be discussed further in my Reasons.
C. The Allegations: Introduction [46] I will deal now with the numerous allegations of the Complainant and issues that flow from them, under subsections 7(a) and 7(b) of the CHRA. Some involve all the claimed prohibited grounds, others involve sex only and some race, national or ethnic origin, and colour only. Unless stated otherwise, each allegation deals with all four claimed prohibited grounds. Ms. MacKinnon, counsel for the Complainant, argues that each allegation of adverse differential treatment may not on its own attach liability to GTAA, but collectively they do.
[47] In final argument, Ms. MacKinnon submits that I make a finding of harassment, although she was not advancing a section 14 harassment claim. GTAA's counsel objected. GTAA was not put on notice of this and I indicated I would not allow the Complainant to do indirectly what she could not do directly. This case was always presented as one of a section 7 violation only; the Respondent did not receive reasonable notice. For natural justice reasons, no allegations of harassment will be considered against the Respondent.
D. Allegation #1: S.M. Took Away Her Work and Gave It to B.M. and M.G. [48] This was a major part of Ms. Fahmy's Complaint. Ms. Fahmy sa