Cassidy v. Canada Post Corporation & Raj Thambirajah

Cassidy v. Canada Post Corporation & Raj Thambirajah
Collection
Canadian Human Rights Tribunal
Date
2012-11-23
Neutral citation
2012 CHRT 29
File number(s)
T1415/4109, T1416/4209
Decision-maker(s)
Garfield, Matthew D.
Decision type
Decision
Decision Content
Between:
Doris Cassidy
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Post Corporation
- and -
Raj Thambirajah
Respondents
Decision
Member: Matthew D. Garfield
Date: November 23, 2012
Citation: 2012 CHRT 29
Table of Contents
Page
I............. Introduction. 1
II........... Decision. 1
III......... Delay and Length Of Proceeding. 1
A........... Motion to Re-open the Complainant’s Case and Subsequent Events. 4
IV......... Credibility. 10
V........... Findings of Fact 12
A........... November 9, 2005: Touching/Comment Incident 12
B........... Canada Post’s Investigation Report 20
C........... Findings About What Happened on November 9, 2005. 21
D........... November 10, 2005 – April 9, 2006: Interaction Between the Complainant and Respondent 22
E........... The Conflict Intensifies in April 2006. 24
F............ April 25, 2006 Written Complaint to Canada Post 26
G........... Did Canada Post Know About the November 9 Incident
........... Before April 25, 2006?. 26
H........... Mr. Tidman’s Actions Upon Receiving the April 25 Complaint
........... and the “Comedy of Errors”. 27
I............. Stressors in Ms. Cassidy’s Life. 28
J............. The Alleged Meeting Between Ms. Cassidy and Her
........... Supervisors (and A.B.) 29
K........... When Did Canada Post First Learn of the November 9 Incident?. 33
L........... What Happened After April 25, 2006: The “Comedy of Errors”
........... and Miscommunication. 34
M.......... Other Actions Taken by Canada Post After April 25, 2006. 37
N........... Incidents After the Complainant and Personal Respondent
........... No Longer Worked Together 41
O........... Three Allegations of Retaliation During the Hearing. 48
VI......... The Law.. 53
A........... Sexual Harassment 54
B........... Corporate (Vicarious) Liability: Section 65 of the CHRA.. 55
C........... Retaliation: Section 14.1 of the CHRA.. 57
VII....... Liability. 59
A........... Liability vis-à-vis the Complaint Against Mr. Thambirajah. 59
B........... Liability vis-à-vis the Complaint Against Canada Post 64
C........... Union Involvement in this Matter 69
VIII..... REMEDY.. 69
A........... Remedy vis-à-vis the Complaint Against Mr. Thambirajah. 69
B........... Remedy vis-à-vis the Complaint Against Canada Post 71
C........... Interest on Compensation Awards Payable by the Respondents. 74
D........... Retention of Jurisdiction. 75
IX......... ORDER.. 75
I. Introduction [1] These are my Reasons for Decision in the Complaints of Doris Cassidy against Raj Thambirajah (“Personal Respondent”), a co-worker and Union shop steward, and Canada Post Corporation (“Canada Post”), her employer. The allegation against Mr. Thambirajah is that he sexually harassed the Complainant, contrary to subsection 14(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 as amended (“CHRA”). The Complaint against him was also amended to include three incidents of retaliation during the course of the hearing, contrary to section 14.1 of the CHRA. The Complaint against Canada Post is that it differentiated adversely against Ms. Cassidy and failed to provide a harassment-free workplace based on the ground of sex, contrary to subsections 7(b) and 14(2) of the CHRA, respectively. The Complaints were combined into a single hearing. The Canadian Human Rights Commission (“Commission”) did not participate in the hearing.
II. Decision [2] The Complaints are substantiated in part.
III. Delay and Length Of Proceeding [3] The genesis of the Complaints goes back to on or about November 9, 2005 (the Complainant does not remember the exact date) when Mr. Thambirajah is alleged to have sexually harassed the Complainant by way of inappropriate touching and comments in the workplace. The Complainant filed her Complaints on March 27, 2007. The Commission referred them to the Canadian Human Rights Tribunal (“Tribunal) on May 26, 2009. The Complaints were case-managed and then assigned to me for a hearing. The first day of hearing was February 1, 2010; the last day was October 11, 2011. The proceeding closed when the Complainant counsel’s request to re-open the hearing was denied on January 19, 2012.
[4] This was too long for a proceeding to take place – seven years after the cause of action arose. I won’t comment on the lapsed time from when the Complainant filed a Complaint to the Commission’s referral to the Tribunal. But I can and will comment on the carriage of the matter before the Tribunal.
[5] In the many years that I have been adjudicating human rights cases, in the federal and Ontario jurisdictions, this case is unique and was more difficult than others, for many reasons. First, there were time consuming disclosure and production matters that arose during the hearing. These involved the six journals/diaries of the Complainant. To preserve her privacy and confidentiality, I agreed to vet or review them for arguable relevance. There were hundreds of pages to meticulously go through. When I ordered certain parts produced to the Respondents, and other journals be returned to the Complainant, there was a mix-up. The Complainant or her representative gave the non-produced documents to Mr. Machelak, Canada Post’s counsel (but not to Mr. Platt, the Personal Respondent’s representative). The Complainant was upset that Mr. Machelak had confidential parts of the journals that were ordered redacted and accused him of taking them from her belongings in the hearing room. Understandably, counsel took umbrage at this accusation. And yet again, there were problems with the proper copies being made by the Complainant. The copies given to each of the Respondents, the Registry Officer, and the copy on the witness stand, did not match.
[6] I should add for the record that, as the Complainant was rightly agitated about intimate, private matters in her journals being disclosed to the Respondents, particularly the Personal Respondent, I also made an Order sealing certain documents and ordering the Respondents to return certain productions of the Complainant upon the end of the proceeding and any judicial review/appeal thereto. Ms. Cassidy’s concern was palpable and I hope that I achieved the right balance in the review of the journals and the issuance of the Order.
[7] There was also a fair bit of shuffling of witnesses, even before their testimony was completed, in order to accommodate scheduling issues, and I thank the parties for their co-operation. That prevented the loss of hearing days. There was also the passage of time with the not uncommon difficulty in finding common available dates for the parties, their counsel/representatives and the Tribunal.
[8] The hearing itself took longer in part - 22 hearing days, not including the many Case Management Conference Calls that I held with the parties to deal with various issues/events that arose during the course of the proceeding - because the Complainant’s testimony took longer than anticipated. As will be discussed later, the Complainant was sometimes evasive, other times not evasive but still having problems answering the questions, particularly in cross-examination. There was also a mediation in the middle of the first week of the hearing between the Complainant and Canada Post, conducted by the Chair of the Tribunal. The matter settled, but within a day, the Complainant indicated that she wished to “tear up” the agreement and proceed with the hearing against the two Respondents.
[9] Other exceptional events that lengthened the hearing were motions. There was a motion to amend the Complaint against Mr. Thambirajah to add an allegation of retaliation in regard to three incidents that occurred during the first week of the hearing. There was also a motion to allow similar fact evidence.
[10] Of greater significance was the motion to re-open the Complainant’s case after it closed on May 28, 2010 and to add an allegation of retaliation against Canada Post. This wasn’t resolved ultimately until March 14, 2011 – some 10 months later. And during this time, there was a change in Ms. Cassidy’s representation from Julie Marshall (agent) to William Kelly (counsel) to the Complainant being self-represented briefly, after counsel went off the record. (He then re-appeared as counsel on April 25, 2011 and for the remainder of the hearing.)
A. Motion to Re-open the Complainant’s Case and Subsequent Events [11] The genesis of the motion to re-open the Complainant’s case was the alleged meeting between Ms. Cassidy and her supervisors on the day of the November 9, 2005 incident of sexual harassment by Mr. Thambirajah. This will be discussed further in these Reasons. Ms. Cassidy indicated for the first time on May 31, 2010 that there was a witness who took her to and sat in on the meeting. She did not remember this because, she claimed, she has been suffering from Post Traumatic Stress Disorder (“PTSD”) since that day in November of 2005, right through to May 28, 2010. I set dates for motion materials to be filed and argument to be made, including an expert report by a psychiatrist. She had not been seen by a psychiatrist or diagnosed with PTSD by a physician. I discussed with the parties the legal test to re-open a party’s case, as stated in Johnson v. Canadian Broadcasting Corporation, 1994 CanLII 284 (CHRT)(“Vermette”), aff’ed 1996 CanLII 3858 (FC). The hearing was adjourned to the motion date.
[12] Several events then transpired. Ms. Marshall advised on a Conference Call that the Complainant had “checked herself into” the psychiatric unit of Lakeridge hospital after the May 31, 2010 hearing date. She was now under the care of a psychiatrist, Dr. Malamed. The Complainant missed her first deadline for filing motion materials. The Tribunal Registry Officer was unable to reach Ms. Marshall or the Complainant. After several weeks had passed, Ms. Marshall finally contacted the Tribunal. I then gave the Complainant additional time to file. When those materials arrived on October 8, 2010, they failed to adhere to one of the requirements as discussed on May 31, 2010: that in order to meet the legal test, the moving party would have to show that she suffered from PTSD for the entire period from the cause of action to the end of her case at the hearing. Also, she would have to demonstrate that she exercised due diligence in preparing her case (i.e., she could not have been aware of this witness because of the PTSD diagnosis). The hospital psychiatrist’s letter (not adhering to the requirements of an expert’s report under the Tribunal’s Rules of Procedure) did not include a PTSD diagnosis from November 9, 2005 to May 2010.
[13] Exit Ms. Marshall; enter counsel Kelly. I should add that this was a difficult case and Ms. Marshall, not being trained as a lawyer, represented her friend Ms. Cassidy on a volunteer basis. She did a competent job in that context. Mr. Kelly was then retained and so advised the Tribunal on November 10, 2010. I held a Conference Call with the parties on November 29, 2010. To the opposition of the Respondents, I allowed, yet again, the Complainant to re-file her motion materials, by January 25, 2011. I had hoped that, with Complainant counsel’s arrival to the proceeding, the motion materials would be filed properly and the motion heard as soon as possible. My hopes were unrealized.
[14] I should add that, before Mr. Kelly was retained, in order to move the process faster, and with the parties’ approval, I had directed on May 31, 2010 that we would first hear from the proposed witness to the alleged November 9, 2005 meeting, A.B., before requiring the moving party to file an expert psychiatrist’s report and the other parties potentially filing a rebuttal expert report. There was a dispute as to whether the witness was even at the Canada Post depot in question on November 9, 2005 – the day of the incident and alleged meeting with the Complainant and her supervisors. I heard A.B.’s evidence on that point and Canada Post’s witnesses on July 20, 2010. Parties had agreed that I could use the evidence on the motion for purposes of the “on-the-merits” main hearing too, if necessary, in order to avoid having A.B. called back as a witness in the “main” hearing.
[15] The January 25, 2011 filing deadline for the Complainant’s motion materials passed, with no word from Complainant counsel. Weeks passed. Complainant counsel did not answer correspondence and voice-mail messages from the Tribunal indicating the deadline had passed. Messrs. Machelak and Platt did not hear from him either. On February 2, 2011, I directed the Tribunal Registry to send out a letter indicating that I had interpreted counsel’s failure to file as abandoning the motion to re-open the case (as well as the other motion to add an allegation of retaliation against Canada Post). The hearing was scheduled to resume on March 14, 2011.
[16] One week before the resumption of the hearing, the Tribunal received a letter from Complainant counsel asking that the hearing be adjourned and permission to continue with the motion and re-file materials. The other parties opposed the request. I denied the request. On March 9, 2011, Complainant counsel wrote in again requesting that the Tribunal reconsider its refusal of his adjournment request. I directed that he “may speak to this matter [in-person] when the hearing resumes on March, 14, 2011…” Complainant counsel subsequently attended at a medical clinic and sent in a doctor’s note indicating that he would not be able to attend the hearing. I then directed that he send someone in-person to the hearing to speak to the adjournment request, or if he could not attend, we could arrange for a Conference Call with him, the parties and me in person in the hearing room. He chose the latter. So on March 14, 2011, the hearing resumed in Toronto, with Complainant counsel (and his client) participating via teleconference.
[17] What transpired on this date was truly bizarre. Complainant counsel explained that he had been ill with “stomach flu” for a month and that is why he missed the deadlines and didn’t contact the Tribunal or the other parties. He also indicated that, despite the 3 ½ months that had transpired from the date of the Conference Call when his client was given additional time yet again to re-file motion materials to the date of this hearing date of March 14, 2011, he still did not have an expert’s report from Dr. Malamed. The reason?: counsel had written a letter to the psychiatrist, but just learned that it was never actually sent to Dr. Malamed. He also indicated that if I did not grant the adjournment and the right to continue with the motion, he would have to go off the record, and put his insurer on notice of a possible negligence claim. The other parties agreed to a short adjournment (as Ms. Cassidy was in Oshawa with her counsel, and not in the hearing room) for the Complainant to retain new counsel, but vehemently opposed the Complainant being allowed to continue with the motion. The other parties submitted that I had given enough chances to the Complainant to file her materials, that 9 ½ months had transpired since the motion to re-open her case was first raised on May 31, 2010, and that Complainant counsel had returned to work and certainly, should have had his assistant contact the Tribunal and the other parties, if counsel was unable to do so himself. I agreed. I granted a one-month adjournment for Ms. Cassidy to get new counsel and to advise by then if she had done so. A hearing date would then be set. The motion would not proceed. I gave oral reasons.
[18] The month passed, and no word from Ms. Cassidy or her new counsel, contrary to my Order. I then directed the Registry Officer to send a letter to the parties (Ms. Cassidy now being self-represented) arranging for a Case Management Conference Call to set new hearing dates. The Tribunal subsequently received a response from the parties, including Mr. Kelly, who indicated that he was now back on the record. I held the Conference Call and set new hearing dates for October 2011 to finish the hearing.
[19] October came and the hearing proceeded relatively smoothly. We completed the evidence part. The parties asked that they be able to provide written final submissions, followed by brief oral argument via teleconference. I agreed. Filing deadlines and the Conference Call date for final submissions were set. I should add that Complainant counsel’s conduct was fine during the hearing. My issue has been with his conduct before and after the October 2011 hearing.
[20] The November 1, 2011 filing deadline for final submissions passed with no submissions received by the Complainant, or any communication for that matter. Once again, I directed the Registry Officer to contact Complainant counsel to find out what had happened; no response. I directed the other parties to file their written submissions on time, which they did. On November 28, 2012, the Tribunal finally heard from Complainant counsel, in the form of a letter asking for an extension (well after the November 1 deadline) to file written submissions and to adjourn the December 6, 2011 oral argument Conference Call, as he was to be in the Ontario Superior Court in Oshawa that day, notwithstanding the Tribunal date had been set first. The other parties vehemently opposed, indicating that this was the same type of behaviour from Complainant counsel as he had demonstrated in the past. They had suffered prejudice and wanted a conclusion to this hearing. I granted Complainant counsel’s request to adjourn the Conference Call for oral argument with the condition that he contact Messrs. Machelak and Platt to find a replacement date for December and advise the Tribunal by December 9, 2011. I denied his request to file written submissions, but indicated that he would be allowed to make oral submissions. Not having heard from Complainant counsel as previously directed, the Tribunal wrote the parties on December 16, 2011 that if it does not hear back from Complainant counsel by December 19, “it will deem the hearing concluded and begin writing its Reasons for Decision.” I also instructed the Registry Officer to telephone Complainant counsel and if he was not available, to leave a voice-mail message indicating the contents of the letter. She spoke with his receptionist who confirmed the email address to which the Tribunal sent this and previous correspondence. She said that Complainant counsel would be in the office on December 19, 2011 and thus would be able to reply to the Tribunal’s letter. On December 21, 2011, the Tribunal received a faxed letter dated the previous day from Complainant counsel indicating inter alia that he was “in discoveries all day today” but would respond tomorrow. He claimed that he never received the December 5, 2011 letter from the Tribunal. He subsequently wrote on December 23, 2011 that he would undertake to speak with the other representatives in January 2012 with a view to arriving at a January date for the final argument conference call. I then had the Tribunal send out a letter seeking the other parties’ position. The other parties opposed the request. As Mr. Machelak had aptly stated, “Mr. Kelly chose to ignore that letter [of the Tribunal] as he has ignored other time lines set by the Tribunal.” On January 19, 2012, a letter was sent to the parties indicating that I had denied the Complainant’s request to re-open the hearing. The hearing remained closed.
[21] I wish to state that I am very mindful of the difficulty and seriousness of concluding a hearing without receiving submissions from all parties. Indeed, in the over 14 years that I have adjudicated human rights cases at the federal and Ontario tribunals, and as an arbitrator/mediator in private practice, this is the first time such an occurrence has taken place. However the key here, I believe, is not so much receiving final submissions from all parties, but having given a reasonable opportunity to all parties to make final submissions. And I believe that I have been more than fair to the Complainant to present her best case, and to the Respondents to mount their best defence. But at some point, enough is enough, after which, prejudice befalls a respondent and the Tribunal process itself. It almost becomes an abuse of the Tribunal’s process and its ability to control its own process. The case law is replete with examples of courts dismissing cases (which is not the case here) for failing to follow their rules of procedure.
[22] Furthermore, the case before me is one of sexual harassment. In our rights-based society, there is an inherent stigma attached to those accused of sexual harassment. Often the public does not even differentiate between allegations of sexual harassment and criminal sexual assault. In Blencoe v. British Columbia (Human Rights Commission), 1998 CanLII 13300, rev’ed 2000 SCC 44, the B.C. Court of Appeal wrote at para. 57: “Despite the often heard characterization of human rights adjudication as a mediative and conciliatory process aimed at remedying discrimination and making the victim whole as opposed to punishing the perpetrator, the fact remains that unproven charges of sexual harassment and sexual discrimination are, in our society, charges accompanied by high stigma. Such charges have the power to destroy lives.” Not only is this of significance to Mr. Thambirajah, but there are employees (and former employees) at Canada Post whose reputations are left twisting in the wind regarding allegations involving their action (or inaction) in the handling of Ms. Cassidy’s Complaint against the Corporation.
[23] I also should add that the continuation of the motion to re-open the Complainant’s case because of PTSD is really a moot point, given my finding later in these Reasons that A.B. was not at Willowdale Station “D” (“Willowdale D”) after the touching/comment incident occurred at noon on November 9, 2005; therefore, she could not have attended the alleged meeting between her, Ms. Cassidy, and Messrs. Tidman and Sultan. Thus, the moving party would not have satisfied the third branch of the legal test in Vermette, supra. The three branches are:
(1) It must be shown the evidence could not have been obtained with reasonable [due] diligence for use at the trial;
(2) The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
(3) The evidence must be such as presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
[24] Notwithstanding I did not receive final submissions from the Complainant, the viva voce and documentary evidence at the hearing, along with the Statements of Particulars and the actual Complaint forms, were sufficient for me to make findings of fact and law and determine issues of liability and remedy. One final note: mea culpa – I have taken ten months from the closing of the proceeding on January 19, 2012 to complete and issue my Reasons for Decision. I thank the parties for their patience.
IV. Credibility [25] I refer to the often quoted case of Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.) on the issue of credibility:
…
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 test must reasonably subject his [witness’] 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 a witness in such a case must be its 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.
[26] I have attempted to follow the above approach. 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) regarding 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 necessarily that everything the witness says or writes is accepted or rejected. A witness may be testifying honestly, but still be mistaken in fact. I have tried to make sense of all the evidence and make findings of fact about what actually occurred.
[27] I will make findings of credibility when dealing with various allegations in these Reasons. However, I wish to state that I had serious concerns about the credibility/reliability of the evidence of the two key witnesses in this case: Ms. Cassidy and Mr. Thambirajah. Ms. Cassidy was evasive at times, and required questions to be repeated often. Witness Cam Tidman said she is not the “best communicator”. I have taken this into account. I also find that there were key areas where she had conflicting evidence and omissions in her evidence. What she said at the hearing did not match what she had told Canada Post or the Commission, verbally and in her documents. Examples will be given in these Reasons. In some matters, I have no choice but to conclude that she fabricated, embellished or exaggerated things. My concern is such that I am hesitant to accept her evidence on key, controversial issues without cogent, corroborative evidence.
[28] With regards to Mr. Thambirajah, I also have concerns about his credibility/reliability. On some issues, he contradicted himself even within his own testimony. One example relates to the retaliation allegation in the parking lot during the hearing. Another is what actually happened on November 9, 2005. While English is not his first language, I am satisfied that he is sufficiently proficient in the English language to have participated in the hearing, including the giving of evidence. It is true that he is heavily accented and counsel, witnesses and I had difficulties understanding him. However, being heavily accented should not be confused with a lack of comprehension or proficiency in a language. Mr. Thambirajah has been in Canada for over 30 years, worked at Canada Post for 22 years and has been a shop steward with the Canadian Union of Postal Workers (“CUPW”) at Canada Post since 1998. In that capacity, he is interpreting complex legal documents like the Collective Agreement and a multitude of corporate and union policies and rules. He communicates in English and writes his journals and work documents in English too.
[29] Another witness whose testimony caused me concern was John Pyziak. While some of his evidence was credible and reliable, in other areas that was not the case. For example, he provided four varying accounts of what took place on November 9, 2005, as found in: his statement to Canada Post’s human rights investigator Kelly Edmunds; his statement to the Commission’s investigator; his statements in a recorded meeting with Mr. Thambirajah; and his testimony at the hearing.
[30] In contrast to the above, I find that Canada Post’s witnesses were credible and their evidence fairly reliable or accurate. In particular, Ms. Edmunds and retired Superintendent Cam Tidman testified at great lengths and were key actors in the events herein. They were credible witnesses.
V. Findings of Fact [31] Ms. Cassidy was a Relief Letter Carrier with Canada Post in 2005, stationed at Willowdale D. She remains with Canada Post to this day. She would fill in for regular letter carriers on their routes as the need arose. She did not “own” her route; she could be moved around on different routes and in different depots. Mr. Thambirajah was a Letter Carrier with Canada Post in 2005 at the same location as Ms. Cassidy. He was also the Union shop steward there.
A. November 9, 2005: Touching/Comment Incident [32] This is the genesis of Ms. Cassidy’s Complaints. On or about November 9, 2005, she was at the Station talking with co-worker John Pyziak. Ms. Cassidy does not remember the exact date and did not record it anywhere. However she testified that she was “sure it was in early November” of 2005. From documentary evidence too, including calendars, I find that it most likely took place on November 9, 2005. The Complainant said, “It was around noon…in the afternoon after the [mail] walk…Raj [Thambirajah] stayed around the Station after his work often.” The timing is relevant as will be discussed later with the evidence of witness A.B. who testified that it was early in the morning before the carriers went out on their route. I find that it was indeed around noon when the incident occurred.
[33] Ms. Cassidy indicated that the first description of the November 9, 2005 incident (including the actual date) was in one of her journals/diaries. I reviewed the six of them that were produced. They were hundreds of pages in total. I saw no description of the event or date. She testified that it was in the journal that she gave to Detective Cecile. She stated that he did not return the journal. Detective Cecile testified that he reviewed the journals for relevancy regarding her request that Mr. Thambirajah be charged with sexual assault for that day’s event. The detective testified that he did not remember any reference to an exact date or description of the events in the journal. Had he seen such a reference, he would have been obliged to refer to it in his report and provided it to the Crown to give to the defence and would have indicated the specific date in the police report. He said he checked with the “property/evidence” room; the journal was not there either. I accept his evidence.
[34] The first written account of the November 9, 2005 incident entered into evidence may be found in her April 25, 2006 written complaint to Canada Post. In it, she wrote that Mr. Thambirajah approached her and Mr. Pyziak:
During this time my co-worker asked him why he was staring at my chest. Then, when my co-worker looked down and noticed a button was undone on my shirt my co-worker informed me of this. As I turned to fasten my shirt up Raj said- “I wasn’t staring at her chest, she has no tits to stare at.” While he was saying this, he pulled down my shirt as to look down into my shirt. I was so mad, embarrassed and in shock of what just took place.
[35] In her Complaint to the Commission she wrote: “In November of 2005, while I was working at Willowdale D a co-worker (Raj Thambirajah), pulled my shirt open in front of another co-worker.”
[36] As described by Ms. Cassidy at the hearing, she was talking with Mr. Pyziak, with whom she was on friendly terms. She was joking around with him. At one point, Mr. Thambirajah came in and according to the Complainant:
Raj was staring at me. Johnny asked him what he was staring at…He [Mr. Thambirajah] said she has no breasts to stare at. He [John Pyziak] said my buttons are undone. As I turned, he [Raj] took his fingers and pulled my shirt down…and looked into my shirt…One button popped open. I was embarrassed and humiliated…My breasts were exposed. I told him never to touch me again, called him an ass. He pulled my shirt open, at that point, I just wanted to run. I was humiliated. Raj said, “She’s got no boobs to look at.” I said it doesn’t matter, he shouldn’t have touched me.
[37] In cross-examination she was asked if she had said something to the effect of “I have small boobs, I was always bugged in high school about that.” She said she could not remember. But she reiterated that Mr. Thambirajah pulled her shirt open with his fingers and looked down her shirt. Regarding her breasts having been exposed, she said she was wearing a “half-cup bra”. On the stand, she also physically demonstrated what had happened using a Canada Post shirt as a prop. She clearly showed the button being ripped open as Mr. Thambirajah “ripped” open her shirt.
[38] In the police report of October 14, 2006 for the sexual assault charge (R1-33), it states:
[After Mr. Thambirajah joined the conversation with the Complainant and Mr. Pyziak] During this time [redacted by police] notice that [redacted] was staring at Cassidy’s chest, [redacted] then looked at Cassidy and saw that a button on her shirt was undone, Cassidy quickly turned around to button up her shirt and that’s when [redacted] said, “I wasn’t staring at her chest, she has no tits to stare at”. While Thambirajah was saying this [redacted] reached in front of Cassidy grabbed the top of her shirt with [redacted] hand and pulled it downward and in doing so a third button came undone. Cassidy was so embarrassed and shocked she turned to walk away and called [redacted] an ass hole and also stated “This is just another reason why nobody likes you in this station.”
Mr. Thambirajah’s Evidence on this Point
[39] Mr. Thambirajah’s evidence on what, if anything, happened on that day changed by the end of the hearing. When questioned by Kelly Edmunds in her investigation in June 2006, he denied anything had happened. His Statement of Particulars filed at the hearing indicates: “The Respondent acknowledges inappropriate touching took place in November 2005 but denies any sexual assault on the Complainant’s body and recalls the incident only as joking between co-workers.” In explaining his client’s theory at the hearing, Mr. Platt remarked: “The workplace conflict in April 2006 triggered the Complaint [about the November 9, 2005 incident]. The November 9, 2005 incident occurred, but not in the way described by Ms. Cassidy. It was consensual; flirtation.” In his final submissions, Mr. Platt wrote at para. 6 of his Summary: “Neither the Complainant nor any of the witnesses, including Mr. Pyziak, reported a sexual assault to Canada Post in November of 2005 because there wasn’t one unless the brushing of Ms. Cassidy’s blouse by the Respondent is considered to be a sexual assault.”
[40] In chief, Mr. Thambirajah testified that, “In November 2005 nothing happened.” When asked if it was possible he made the comment on November 9 about her breasts, he answered, “No, I never do [sic] that. Maybe the swipe with the hand.” Later, in chief, he was asked that, assuming the account of November 9, 2005 was accurate and he did in fact inappropriately touch and commented on the size of Ms. Cassidy’s breasts, if he regretted it. He replied in the affirmative. “Would you apologize? asked Mr. Platt. Mr. Thambirajah replied, “I apologize if anyone thinks it was my intention to touch you for sexual purpose, a thousand times.”
[41] In his testimony under questioning by Mr. Machelak, Mr. Thambirajah averred:
Touching may have occurred, but not in a sexual way. For some reason, Johnny, who was a good friend made a sweet deal with management…to get me out of the station…[“swipe”] happened before or after November 8 or 9. My hand did not make any contact with her shirt, maybe a swipe toward Johnny.
When counsel asked why he said in-chief that something may have happened and he apologized, the Personal Respondent answered, “…may be possible I swiped Johnny Pyziak, may be possible I touched her hand. Johnny was holding her in an embrace. Possible I touched her on the arm.”
[42] In cross-examination, Mr. Thambirajah agreed that the touching/comment, allegedly occurring on November 9, 2005, is inappropriate conduct if it occurred. However, he maintained that, “It didn’t happen.” What exactly he meant by “it” is not clear: i.e., if the touching and comment never happened; or the touching for a sexual purpose didn’t happen; or the comment (about her breast size, etc.) did not take place. When Mr. Kelly suggested he is not really apologizing because he is saying he didn’t do anything wrong, Mr. Thambirajah agreed. “Why apologize then?” asked counsel. The Personal Respondent replied, “It’s possible it may have happened before April 10 [2006]. We were joking around, laughing…each other swearing.” Pushed by counsel that it’s possible the touching and comment on November 9 occurred, Mr. Thambirajah reacted, “No. I was asked to apologize [by Mr. Platt]. Better to apologize if I had done it. Never sorry because I never accept what I didn’t do. No one lives in a perfect world…Again, if it happened. I will apologize. English is not my first language. If I touched her body, but not her breast, I would apologize.” Later, he remarked: “I would be sorry if I intentionally touched her.” He also stated that he was the “victim” in this matter and the “whole story will come out.”
[43] Mr. Thambirajah then said it’s possible, as Mr. Pyziak had claimed, that Mr. Thambirajah had “swiped” her chest with his hand: “He may be correct by his recollection.” He then states that he could “guarantee” and is “100 percent sure” that it didn’t occur on November 8 or 9, 2005 as it was not recorded in his journal [or hers for that matter]. His journal had an interaction between him, Ms. Cassidy and the late Ann Jones, a co-worker, on November 8, but no noted interaction with Ms. Cassidy on November 9.
John Pyziak’s Evidence on this Point
[44] Mr. Pyziak was the only third party who saw what happened that day. Mr. Thambirajah said that he was “best friends” with Mr. Pyziak and that the latter had been his campaign manager in the shop steward election. Mr. Pyziak said that he was friends with the Respondent until the latter “changed” after he became shop steward. He still remained on friendly terms with Mr. Thambirajah thereafter. Mr. Pyziak was also friendly with the Complainant.
[45] Mr. Pyziak testified that on the day in question:
Raj wanted to go for cigarettes with me…He didn’t mean to, but he put his hand on her shirt…I was just shocked. I don’t know where Raj’s mind was then. Doris reacted, “My family was flat-chested, in a funny way, but she was red-faced, shocked, she was embarrassed. She didn’t slap him or anything…She was nervous about it. She nervously laughed.
Mr. Pyziak stated that after the incident, he went to the back dock with Mr. Thambirajah and the Respondent said, “Ah, it’s nothing. He just shoved it off.”
[46] Mr. Pyziak testified under cross-examination that he told Canada Post in an interview: “I was shocked what he did. He reached out and jokingly said she had nothing there…He sort of just did a swipe. His hand made contact with her shirt.” At another moment in cross-examination, he averred: “He took a swipe at her, said she’s got nothing there, his hand went down on her chest. He did not grab her. He touched her top.” When put to him that he didn’t know if it might have been accidental, and Ms. Cassidy didn’t slap the Respondent, indeed she made a joke, why did you consider it “totally inappropriate,” he answered, “What Raj did – glancing touch and “nothing there” comment, was inappropriate. I was shocked what he did.” He also admits that he did not stay with her after the incident: “I would have gone to her if she was upset.”
[47] In Ms. Edmunds’ notes of the interview with Mr. Pyziak dated July 12, 2006, she records him as saying:
He [Mr. Thambirajah] was staring at Doris (in the chest area). She realized her button was undone so when she did it up Raj reached over towards her and with his index finger he touched her blouse, pulled it forward and looked down her top. Doris didn’t know what to do or say so I believe as a nervous reaction she started saying, Oh I have small boobs. I was always bugged about it in high schoo