Stanger v. Canada Post Corporation

Stanger v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2017-03-29
Neutral citation
2017 CHRT 8
File number(s)
T1828/5812
Decision-maker(s)
Thomas, David L.
Decision type
Decision
Decision status
Final
Grounds
Disability
Marital Status
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
8
Date:
March 29, 2017
File No.:
T1828/5812
Between:
Jessica Stanger
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Post Corporation
Respondent
Decision
Member:
David L. Thomas
Table of Contents
I. Complaint 1
II. Overview 1
III. Decision 2
IV. Allegations of Discrimination 2
A. Legal Framework 2
V. General Background Facts 6
VI. Preliminary Issues 7
A. Grounds of Discrimination based on Marital Status or Family Status? 7
B. Start Date for Allegations of Discrimination based on Marital Status 8
C. Credibility of the Complainant 15
VII. Section 7 Allegations of Discrimination related to Marital Status 18
A. Denial of Career Leadership Development Program Participation 18
i) Background and Facts 18
ii) Prima facie Case of Discrimination Established 21
iii) Justification for Discrimination 22
iv) Allegation of Discrimination Substantiated 25
v) Remedy 25
B. Removal from Version 2 Duties 26
VIII. Section 7 Allegations of Discrimination related to Disability 27
A. Randy Bourke and Norma Chin Incidents 28
B. Joanne Cook Incident 29
C. Removal from O’Cull Duties 32
IX. Section 14 Allegations of Harassment related to Marital Status 33
A. Guy Labine Grievance – Harassment Relating to Work Break Schedule 33
B. Incidents concerning Ms. Susan Savoy 37
C. Patrick Gibbons – Forklift Incident 40
D. Pam Cromwell – Conversation and the Rotten Fruit Incident 42
E. Union Shop Steward Zaria Andrews and Supervisor Russell Odnokon 45
F. Incidents with Postal Clerk Tom McMenemy 47
G. Incident with Postal Clerk Howard Siegrist 48
H. Incident with Postal Clerk Darlene Schultz Regarding Jacket 50
X. Section 14 Allegations of Harassment related to Disability 50
A. Incident concerning Ms. Ruth Allen 50
B. Incident concerning Ms. Corinne Jacobson 51
C. Incident concerning Ms. Darlene Schultz 51
XI. Cumulative Effect of Harassment Incidents 52
XII. Notification of Discrimination / Harassment to the Employer 53
XIII. Complainant’s Assertion of Respondent’s Positive Duty to Act 60
XIV. Conclusion 64
I. Complaint
[1] This is a decision regarding a Complaint dated June 5, 2009 by Jessica Mary Stanger, as Complainant, against Canada Post Corporation (“CPC” or “Canada Post”), as Respondent, alleging it discriminated against her on the basis of her disability and marital status.
[2] On June 11, 2012, pursuant to s. 44(3)(a) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the “CHRA”), the Canadian Human Rights Commission (the “Commission”) requested the Chairperson of the Canadian Human Rights Tribunal (the “Tribunal”) to institute an inquiry into the Complaint.
[3] Ms. Stanger appeared and gave evidence at the hearing. She was ably assisted by her husband, Mr. Patrick Stanger who, although not a lawyer, did a commendable job of navigating through the Tribunal’s hearing process. The Respondent was represented by a lawyer, Mr. Zygmunt Machelak. The Commission did not appear at the hearing.
[4] The hearing took place in Victoria, British Columbia (“BC”) mainly over three separate one-week sessions, starting in October 2013 and ending in January 2014. Thereafter, it was necessary to receive the testimony of one witness by affidavit, as he was not well enough to testify in person. This process took several months to complete. Final arguments were heard orally in July of 2015.
II. Overview
[5] Ms. Stanger is a long-time employee of Canada Post. Her complaint alleges workplace discrimination on two grounds: Firstly, Ms. Stanger alleges that some fellow employees discriminated against her because of her partial, physical disability. Secondly, Ms. Stanger alleges that some co-workers and CPC discriminated against her because of her relationship with, and eventual marriage to, a Canada Post superintendent.
III. Decision
[6] For the reasons set out below, I have determined that one allegation in the Complaint is substantiated. The remaining allegations are not substantiated and are therefore dismissed.
IV. Allegations of Discrimination
[7] At the hearing, Ms. Stanger gave evidence about 18 separate events which she alleges constitute prohibited discrimination under the CHRA. Her allegations are based on two grounds of discrimination under s. 3(1) of the CHRA: marital status; and disability.
[8] Ms. Stanger alleged 5 acts of discrimination under s. 7: that she was denied employment advancement and that she was treated differentially when certain tasks were wrongly removed from her work rotations because of her marital status. She also alleged 3 acts of discrimination based on her disability.
[9] Under s.14 of the CHRA, Ms. Stanger alleged harassment related to her employment: 7 events relate to alleged harassment because of her marital status and 3 events relate to alleged harassment because of her disability.
A. Legal Framework
Section 7 of the CHRA
[10] Section 7 of the CHRA states:
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.
[11] In human rights cases, a complainant has the burden of proof to establish a prima facie case. 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.” (Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536 (“O’Malley”) at p. 558).
[12] To demonstrate prima facie discrimination in the context of the CHRA, complainants are required to show: (1) that they have a characteristic or characteristics protected from discrimination under the CHRA; (2) that they experienced an adverse impact with respect to a situation covered by sections 5 to 14.1 of the CHRA; and, (3) that the protected characteristic or characteristics were a factor in the adverse impact (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 33; Siddoo v. I.L.W.U., Local 502, 2015 CHRT 21, para. 28). The three elements of discrimination must be proven on a balance of probabilities (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) (“Bombardier”), 2015 SCC 39 at paras. 55-69).
[13] The Tribunal has recognized the difficulty in proving allegations of discrimination by way of direct evidence. As was noted in Basi v. Canadian National Railway Company 1988 CanLII 108 (CHRT) (“Basi”): “Discrimination is not a practise which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practised.” Rather, one must consider all of the circumstances to determine if there exists what was described in the Basi case as “…the subtle scent of discrimination.”
[14] It is not necessary that discriminatory considerations be the sole reason for the actions in issue for a complaint to succeed. It is sufficient that the discrimination be a factor in the employer’s actions or decisions (Holden v. Canadian National Railway Co. (1990), 14 C.H.R.R. D/12 (F.C.A.)). Nevertheless, the complainant has the burden of showing that there is a connection between a prohibited ground of discrimination and the adverse treatment. (See Bombardier, supra, at para. 52.)
[15] Once a complainant establishes a prima facie case of discrimination, he is entitled to relief in the absence of justification by the employer (Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, at p. 208; Lincoln v. Bay Ferries Ltd., 2004 FCA 204, at para. 18).
Section 14 of the CHRA
[16] Section 14 of the CHRA states:
It is a discriminatory practice,
(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential accommodation, or
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
[17] Marital status and disability are prohibited grounds of discrimination under s. 3(1) of the CHRA.
[18] Ms. Stanger alleged several events occurred in the workplace which she claimed constituted harassment.
[19] The Tribunal has attempted to define harassment as any words or conduct that are unwelcome or ought reasonably to be known to be unwelcome, related to a prohibited ground of discrimination, that would detrimentally affect the work environment or lead to adverse job-related consequences for the victim. Harassment usually denotes repetitious or persistent acts, although a single serious event can be sufficient to create a hostile work environment (see Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252; and, Kimberley Franke and Canadian Human Rights Commission v. Canadian Armed Forces, [1999] 3 FC 653 (“Franke”)). In the context of harassment based on disability, the Tribunal has held that, the key is to examine whether the conduct has violated the dignity of the employee from an objective perspective such that it has created a hostile or poisoned work environment (see Croteau v. Canadian National Railway Company, 2014 CHRT 16 (“Croteau”), at para. 43).
[20] In the context of alleged harassment that is not sexual in nature, the Tribunal has considered whether or not comments about one’s disability are relevant to or consistent with the legitimate operations and business goals of the employer. If they are, such comments may not constitute harassment. On the other hand, derogatory comments or unnecessary questioning about a disability are irrelevant and extraneous to the safety, operations and business goals of the employer. Such conduct, where it is humiliating or demeaning, can constitute harassment. (See Day v. Canada Post Corporation, 2007 CHRT 43 (“Day”), at para. 184.)
[21] The Tribunal further considered the meaning of harassment in Siddoo v. International Longshoremen’s and Warehousemen’s Union, Local 502 2015 CHRT 21 at paras. 45-46 (judicial review pending, T-1742-15):
Every act by which a person causes some form of anxiety to another could be labelled as harassment. What offends one person may not offend the next person at all. Furthermore, none amongst us are perfect, and we are all capable of being, on occasion, somewhat thoughtless, insensitive and perhaps even outright stupid. Does this mean that there can never be any safe interactions between people? The question is not so much whether one is offended or feeling humiliated, but by what objective measure can we define harassment, so that people everywhere know exactly how to conduct themselves to avoid it.
I do not think that every act of foolishness or insensitivity in the workplace was intended to be captured under section 14 of the CHRA. Harassment is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. To do otherwise would be to trivialize it. It should not be cheapened or devalued in its meaning by using it to loosely label petty acts or foolish words where the harm, by any objective standard, is fleeting.
[22] The Tribunal also noted the importance of not trivializing the protection granted in section 14 of the CHRA in Rampersadsingh v. Wignall, 2002 CanLII 23563 (CHRT), para. 55:
[55] The same issue was dealt with by the Court of Appeal of Quebec in the case of Habachi v. Commission des droits de la personne du Québec . The Court recognized that a single act, provided it is serious enough and has an ongoing effect, may constitute harassment. As an example, Madame Justice Deschamps suggested that a single incident of sexual assault at the workplace would create the deep, long-lasting and unfavourable effect required to constitute sexual harassment. But Mr. Justice Baudouin also pointed out in the same case that if one were to conclude that acts lacking the requisite severity nevertheless constitute harassment, the effect would be to trivialize a provision of the Act that was intended to deal with a very specific form of discrimination…
V. General Background Facts
[23] There are various background facts which should be noted, none of which are in contention by the parties. Ms. Stanger was first hired by Canada Post in Calgary in 1989. She was transferred to Victoria in 1991 in the position of postal clerk. She suffered a non-work related injury to her neck in 1999 which resulted in two bulging spinal discs. In 2000, Canada Post deemed Ms. Stanger to be a “permanently, partially disabled” employee, referred to commonly at Canada Post as a “PPD”.
[24] From June of 2000, until she left the Victoria Mail Processing Plant (“VicMPP”) in 2008, Ms. Stanger’s PPD status entailed the following limitations on her ability to work:
· Lifting floor to waist: Maximum 10 lbs.
· Carrying items with both hands: Maximum 15 lbs.
· Standing: Maximum 2 hours.
[25] Canada Post accommodated Ms. Stanger’s return to work from 2002 to 2004 through a graduated return to work program. In 2004, Ms. Stanger was assigned to the Number 3 shift in the Communication A section at VicMPP. At VicMPP, each shift section consisted of approximately 16 employees. There were 13 specific work activities to be performed by each section, and the shift workers were rotated, usually every two hours, to a different activity. As a result of her PPD limitations, Ms. Stanger was unable to perform the majority of these activities, and she therefore had to be accommodated by being permitted to perform a limited number of them on a more frequent basis.
[26] Ms. Stanger had been previously married to one of her co-workers, Mr. Patrick Gibbons, who appeared as a witness for the Respondent at the hearing. She separated from Mr. Gibbons in early 2003, and they were formally divorced in 2004.
[27] In 2004, Ms. Stanger began a romantic relationship with the Shift 3 Superintendent at VicMPP, Mr. Patrick Stanger. By the end of 2004, the Complainant and Mr. Stanger were living together, and in February of 2008 they were legally married.
[28] Ms. Stanger stopped working at VicMPP on or about June 22, 2008. She took a sick leave and did not return to work until December of 2008. Ms. Stanger did not return to work at VicMPP. When she returned to work in December of 2008, it was in a retail position for the Respondent elsewhere in the region and she remained working there at the time this complaint was heard.
VI. Preliminary Issues
A. Grounds of Discrimination based on Marital Status or Family Status?
[29] When this complaint was originally filed with the Canadian Human Rights Commission in 2009, the Complainant listed the prohibited grounds of discrimination as: “Disability, Marital Status & Family Status.” A revised Summary of Complaint form dated November 30, 2011, listed the prohibited grounds of discrimination as: “Disability & Marital Status.”
[30] In written submissions and in oral argument, the Complainant’s representative used the terms “marital status” and “family status” interchangeably. It appeared to me that he made no distinction between the two grounds, and that he considered them to be the same. In Waddle v. C.P.R. et al. 2016 CHRT 8, the Tribunal found that where an Amended Summary of Complaint form was referred to the Tribunal along with the Complaint, the Summary of Complaint could serve as an instrument amending the Complaint (see para. 30).
[31] Accordingly, as the revised Summary of Complaint form makes no mention of “Family Status”, I have considered the Complainant’s submissions about family status in reference to marital status only.
B. Start Date for Allegations of Discrimination based on Marital Status
[32] In its closing argument, the Respondent contends that Ms. Stanger cannot make a claim of discrimination on the grounds of marital status until such status has been acquired by her. In a strict application of the ground “marital status”, the Respondent argues that Ms. Stanger did not acquire it until her legal marriage to Mr. Stanger on February 14, 2008. In the alternative, if common-law marriage status can be acquired after one year of co-habitation, then Ms. Stanger could not have acquired such status until November 1, 2005. This is the date on which Ms. Stanger confirmed to her employer in writing that she effectively commenced living in a “spousal” (i.e. common-law) relationship with Superintendent Stanger. Submitted as an exhibit, this document was entitled Dependant Information and appeared to be a form issued by Great West Life Assurance Company and the Respondent. It was signed by the Complainant on February 8, 2006. As such, the Respondent argues, any incidents that pre-date the acquisition of marital status cannot give rise to valid complaints under the CHRA.
[33] The Complainant made no submissions on the argument that she had not acquired marital status until February 14, 2008.
[34] There is some confusion on the record about when Ms. Stanger’s relationship with the Superintendent began, and when they started to cohabit. In her direct evidence, Ms. Stanger said they started dating in late summer or September of 2004. Under cross examination, Ms. Stanger said that she started living with Superintendent Stanger in late October of 2004.
[35] However, in Ms. Stanger’s complaint filed with the Commission, she stated that she began dating Superintendent Stanger in the fall of 2005. In her revised Statement of Particulars (“SOP”), Ms. Stanger stated that she began dating Mr. Stanger in “the fall of 2004”. The SOP also makes reference to Superintendent Stanger’s change of status form submitted to the Respondent, indicating the Complainant “…and Mr. Stanger have been in a spousal relationship since January 11, 2004.”
[36] The Complainant filed the Superintendent’s change of status form as an exhibit. It was also titled “Dependent Information” and was the same form issued by both Great West Life Assurance Company and the Respondent. It indicated that Ms. Stanger was his spouse with an effective date of: “2004 01 11.” A related provincial health care form filed with the exhibit indicated that Superintendent Stanger’s former spouse, Elizabeth, was deleted as his dependent effective November 1, 2004.
[37] At the hearing, I attempted to sort through all of this conflicting information to clarify the dates for the record. I asked the Complainant straightforward questions. Ms. Stanger gave confusing and sometimes contradictory answers. In the end, based on the answers the Complainant provided in cross-examination, I conclude that she and Superintendent Stanger started to cohabit at some time in October of 2004.
[38] The CHRA does not define “marital status”. There has been much jurisprudence in recent years which attempts to clarify the scope of this prohibited ground. However, relatively few cases directly address the question as to what extent an unmarried couple facing discrimination based on their conjugal relationship can claim “marital status” discrimination. Respondent counsel cited the Tribunal’s decision in Schaap v. Canadian Armed Forces, (“Schaap”) 1988 CanLII 4504 (CHRT), wherein it was held that the term “marital status” under the CHRA was restricted to relationships involving a legal form of marriage and could not be stretched to include the common law relationship. At issue in Schaap was whether the Canadian Armed Forces (“CAF”) discriminated on the basis of marital status when it denied “married quarters” to members who were involved in a common law relationship with their cohabiting partner.
[39] However, it is important to note that that the Federal Court of Appeal overturned the Tribunal’s decision in a judgment cited as: Schaap v. Canada (Canadian Armed Forces) (1988) [1989] 3 F.C. 172, 12 C.H.R.R. D/451 (C.A.) (“Schaap-FCA”).
[40] The Court of Appeal’s judgment in Schaap-FCA is comprised of three sets of reasons, with the majority reasons issued by Hugessen and Pratte JJ.A. Hugessen J.A. commenced by noting that a common law relationship cannot “fall within” the definition of marital status, as a status and a relationship are two different things. Marital status, in his view, meant no more than status in the sense of “married or not married” (C.H.R.R. para. 6). He then went on to examine the more general intention of Parliament when it included “marital status”—as well as the other prohibited grounds of discrimination—in the CHRA:
…I do not think the purpose of the human rights legislation is to favour the institution of marriage (or, for that matter, that of celibacy). On the contrary, I think the legislation, by including marital status as a prohibited ground of discrimination along with such factors as race, ethnic origin, colour, disability, and the like, is clearly saying that these are all things which are irrelevant to any of the types of decisions envisaged in ss. 5 to 10 inclusive. Those decisions are to be made on the basis of individual worth or qualities and not of group stereotypes. [para. 10]
[41] Hugessen J.A. acknowledged the CAF’s legitimate interest in only providing married quarters to employees who were involved in relationships “…which had a high degree of permanency and stability” (para. 11). By allowing an employee to cohabitate with a person perceived to be in a special relationship with that employee, an employer ultimately fosters better morale (para.13). The flaw in the CAF’s policy, however, was that it based its recognition of the value of the favoured special relationship on the status of those in it, by asking if they were married to each other:
In taking this approach, the policy is based on and perpetuates a stereotype, namely, that a relationship between a man and a woman has a lesser social value if it does not have the status of marriage. [para. 14]
[42] He observed that assessments of the stability and permanency of relationships must be based on factors which actually indicated their existence, and that marriage or its absence was not determinative in this regard (para. 15).
[43] Finally, Hugessen J.A. noted that in order to correctly appreciate the status of one person, it is frequently necessary to look at the situation of someone else:
To appreciate the marital status of the applicants, one must look at the situation of the people with whom they are living in a relationship of husband and wife. The applicants are not married to those people and it is that status alone which is the cause of their exclusion from obtaining the benefit of married quarters. [para. 17]
[44] Justice Pratte commences his reasons with the statement that “marital status” under the CHRA means “…the status of a person in relation to marriage, namely, whether that person is single, married, divorced or widowed” (para. 2). He then asserts that the complainants in the Schaap-FCA case, (applicants on judicial review) were indeed victims of discrimination based on their marital status, “…in spite of the fact that the reason for that discrimination was not simply that the applicants were not married but, rather, that each one of them was not married to the woman with whom he was living…” (para. 3).
[45] Like Justice Hugessen, Pratte J.A. acknowledges that the plain meaning approach to marital status would not seem to expressly include unmarried partners. However, both Justices ultimately recognize the viability of a “relative status” claim, whereby a person subjected to adverse treatment based on her cohabitation in a conjugal relationship outside marriage, could seek the protection of the CHRA. Justice Hugessen clearly arrives at this conclusion based on a purposive and contextual interpretation of the prohibited ground in question.
[46] Together, the majority judgments in Schaap-FCA do not establish in the clearest of terms that any unmarried couple who faces discrimination under the CHRA is eligible for protection under the prohibited ground of “marital status”. In Schaap-FCA, the focus was on the exclusion of unmarried couples from a benefit made available to legally married couples. However, the majority judgments at the very least establish that marital status discrimination can be a relative construct, in the sense that an individual’s marital status can be determined by looking at his or her current conjugal living situation and relationship with one’s partner. Moreover, unlike the Tribunal decision which it set aside, Schaap-FCA does not foreclose the possibility of a marital status claim under the CHRA from an individual who experiences adverse treatment based on her involvement in a conjugal relationship outside of marriage.
[47] The foregoing interpretation of Schaap-FCA is buttressed by subsequent jurisprudence from courts and tribunals:
In Jensen v. B.C. Report Magazine Ltd. (1993), 19 C.H.R.R. D/495 (B.C.H.R.C.), the tribunal had to construe the undefined term “marital status” in the British Columbia Human Rights Act. It noted the Supreme Court’s statements in O’Malley, supra, regarding the special nature of human rights legislation, and the Court’s rejection of the approach that “…no broader meaning can be given to the Code than the narrowest interpretation of the words employed.” (para. 32) The tribunal then noted that in the context of other prohibited grounds of discrimination, namely “race”, “colour” and “disability”, the protection against discrimination is not limited to actual characteristics, but extends to perceived characteristics. Applying the principle to the matter at hand, it concluded that “…[t]he complainant, although unmarried at the time in question, had the same protection under the Act as if she were married because the respondent perceived her as married.” (para. 37)
[48] In Gipaya v. Anton's Pasta Ltd. (“Gipaya”) (1996), 27 C.H.R.R. D/326 (B.C.C.H.R.), the British Columbia tribunal again had to determine whether the complainant in the case was protected by the “marital status” provision of the BC Human Rights Act. In holding that she was so protected, the tribunal noted that the state of being engaged to be married clearly related to or was connected with the status of marriage and could be considered “marital” (para. 109). It also noted that in Supreme Court jurisprudence (O’Malley, supra; Action travail des femmes v. C.N. [1987] 1 S.C.R. 1114), “…human rights tribunals have been cautioned not to seek ways and means to minimize the proper impact of human rights legislation.” Rather, a large, liberal and purposive approach to interpreting the provision in question would permit “…a finding that "marital status" includes both the status of being engaged to be married and the status of living in a relationship analogous to marriage.” (Paras. 112-113).
[49] In 502798 N.B. Inc. v. N.B. Human Rights Commission, 2008 NBQB 390 (“502798 N.B. Inc.”) the Court had to determine whether the ground “marital status”—undefined in New Brunswick’s Human Rights Act—applied to the relationship existing between the complainant and a colleague, who were cohabiting. The Court cited a statement in The Law of Human Rights in Canada (by the Honourable Justice Russel W. Zinn) to the effect that where there is no statutory definition to rely on, the jurisprudence has established that “marital status” will be interpreted to include common law relationships (para. 39). The Court then noted the evidence given in the case from the two cohabiting individuals, that by the time of the complainant’s termination, “…they were living as a married couple.” This evidence was found to be “completely determinative” (para. 41). The Court concluded that the complainant was involved in a common law relationship that would qualify for protection on the basis of marital status (paras. 44-45).
[50] Finally, in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (“Johnstone”), a case concerned with the scope of the ground “family status” under the CHRA, the Federal Court of Appeal provided important guidance on how to interpret the scope of a prohibited ground. It recalled that human rights legislation must be given a broad interpretation to ensure that the stated objects and purposes of such legislation are fulfilled; a narrow restrictive interpretation that would defeat the purpose of eliminating discrimination should be avoided. The Court also noted that the key provisions of human rights legislation must be interpreted in a flexible manner and with an adaptive approach. Finally it cited the rule that human rights legislation has a unique quasi-constitutional nature and ought to be interpreted in a liberal and purposive manner in order to advance the broad policy considerations underlying it (paras. 61-63).
[51] In Johnstone, the issue was whether the ground “family status” could include family circumstances such as childcare obligations. In holding that it did include such circumstances, the Court considered the French version of ss. 2 and 3 of the CHRA, and noted that “family status” (“situation de famille”) was much broader than “marital status” (“état matrimonial”). However, this finding does not impact the current analysis given that the complainant in this case, Ms. Stanger, is not asserting that the marital status discrimination she experienced pertained to circumstances or obligations that were incidental to her relationship. Rather, it is the identity of her spouse that in her view is the source of the marital status discrimination.
[52] Re-examining the Respondent’s position in light of the foregoing jurisprudence, one is compelled to conclude that the CHRA’s protection against marital status discrimination cannot be confined to the period commencing on the date of a legally solemnized marriage. Such a narrow and restrictive interpretation would frustrate the purposes of the CHRA, and create the absurd result whereby the termination of employees on the basis of their recent marriage would be reviewable under the CHRA, while the termination of employees on the basis of their imminent marriage would not be. The Respondent’s position ignores the fact that marriage does not spontaneously come into existence without any antecedents; hence the extension of marital status protection to the engaged couples in Jensen and Gipaya.
[53] Moreover, were the Tribunal to deny the Complainant the benefit of the CHRA protection available to married couples on the sole basis that her relationship with her unmarried partner did not qualify as a legal marriage, would it not be perpetuating the same kind of stereotypical value judgments about the worthiness, permanence and stability of unmarried relationships that were so clearly denounced by Hugessen J.A. in Schaap-FCA? I conclude it would and therefore do not find the protection against marital status discrimination to be so limited.
[54] The Respondent’s alternative position—that protection against marital status discrimination only commences after one year of co-habitation—is also inconsistent with the jurisprudence. To the extent this argument relies upon definitions of spousal relationships found in statutes outside the field of human rights, it must be noted that legislation passed for different purposes cannot contribute to a purposive interpretation of the CHRA: see Jensen, para. 38; and Gipaya, para. 108. Moreover, none of the authorities reviewed above have made marital status protection strictly contingent upon the sheer number of months of a couple’s prior conjugal cohabitation. For that matter, the periods of cohabitation range greatly, from 4 months in Jensen to over two years for the co-complainant in Schaap.
[55] Rather, the scope of the protection granted by the ground of marital status has been ascertained by a more qualitative assessment of the relationship in question at the relevant time. Hugessen J.A. in Schaap-FCA tacitly acknowledged that the relationship giving rise to marital status discrimination was essentially “a relationship of husband and wife” (para. 17). In Gipaya, the complainant, who cohabited with her colleague, had purchased a house with him, and had announced their engagement, was protected “…by virtue of her status of being engaged or being in a common-law spousal relationship.” (Para. 115). In 502798 N.B. Inc., the human rights board of inquiry had found that the testimony of the complainant and his colleague that “…they were living as a married couple, without specifying particulars of their cohabitation…” was sufficient, and the Court endorsed the finding that they had marital status at the relevant time (paras. 6, 41-42). In Jensen, the tribunal found that the complainant was protected under the statute because the respondent perceived her as married (para. 37). The emphasis placed on perception in the Jensen case has been subsequently underscored by the Supreme Court of Canada in Québec (C.D.P.D.J.) v. Montréal 2000 SCC 27, where the Court held that the ground “handicap” in Québec’s Charter of Human Rights and Freedoms can include both an ailment, as well as the perception of such an ailment (para. 72).
[56] Unfortunately in this case, the parties did not make fully developed arguments about when marital status protection might commence, such as how soon after cohabitation in a conjugal relationship has started. The matter is further complicated by the conflicting dates in the evidentiary record. As such, this is not the best case in which to make a definitive determination of this question. However, for the purpose of the analysis below, I will give a broad interpretation and find that Ms. Stanger is entitled to the protection granted by the ground of marital status for events occurring after November 1, 2004.
C. Credibility of the Complainant
[57] For the most part, Ms. Stanger appeared to be sincere in giving her evidence. However, there were times when her answers were unclear, evasive and simply not credible. There are several specific examples:
A) As mentioned above, Ms. Stanger provided the Tribunal with several conflicting dates regarding the commencement of her relationship with Superintendent Stanger. Even when I asked her directly to clarify the dates, it took her a very long time to give me a clear answer and she was unable to explain the reasons for the alternative dates provided;
B) At one point, Ms. Stanger testified that she had filed two human rights complaints and that she had originally contacted the Commission in 2004 to file a complaint. After repeating this several times when being questioned about the date, she suddenly changed her testimony and stated that she had first contacted the Commission in 2008. She also stated that she filed two complaints with the Commission that were later amalgamated although I did not see any evidence of that;
C) During her cross examination by the Respondent, Ms. Stanger was asked to confirm when she had booked her holidays in Hawaii, which took place from February 9 to 26, 2008, during which trip she legally married Superintendent Stanger. The upcoming CLDP course (discussed in detail below) ran from February 25-28, 2008, conflicting with the dates of Ms. Stanger’s wedding plans. The questions about when she booked the holiday related to whether she already knew at the time of applying for the CLDP that she was unavailable to attend the course due to her wedding plans. I found Ms. Stanger to be rather evasive when questioned about when she booked the trip to Hawaii. She stated repeatedly that she did not know when she booked the trip to Hawaii, and she would also not concede that she must have requested the time off work at least one or two months in advance. To this and several like questions, she replied, “I don’t know.” I found her answers not to be credible because she applied for the CLDP merely 17 days prior to her departure to Hawaii for her wedding. She also testified that her honeymoon cruise, departing several weeks later, had been booked several weeks prior to her wedding date;
D) As will be discussed in detail below, Ms. Stanger testified that her former spouse, Patrick Gibbons, had deliberately followed her at work while he was driving a forklift. Ms. Stanger described him as “chasing” her in the forklift and being “very aggressive” towards her. Mr. Gibbons testified and completely denied the allegation. Ms. Stanger also testified that she had reported the incident to a Supervisor, Brad Harrison. Mr. Harrison was called as a witness by the Respondent and denied any memory of the incident. He also testified that the allegation would have been considered very serious, if true, and that he certainly would have followed up on it. There were no written reports or any other evidence presented at the hearing indicating that this event occurred as described by Ms. Stanger; and,
E) As will be discussed in detail below, one of Ms. Stanger’s allegations involved an exchange she had with a co-worker named Pam Cromwell. Ms. Cromwell was later reprimanded by Superintendent Stanger, and thereafter Ms. Stanger alleges she was subjected to an act of reprisal by Ms. Cromwell. Ultimately, Superintendent Stanger wrote an email to Manager Sherry Aiken in which he suggested Ms. Cromwell was connected to the alleged reprisal. Notwithstanding that Ms. Stanger was then living with him, she denied ever having spoken to Superintendent Stanger about the reprisal and suggesting that Ms. Cromwell was responsible for this alleged act. This was explored during Ms. Stanger’s cross-examination and I did not find her denial to be credible.
[58] Many of the events discussed at the hearing happened several years prior. It is possible for memories to fade and for mistakes to be made. However, the above-noted instances caused me to have concerns about the Complainant’s credibility such that I was unable to accept her evidence about certain key controversial incidents without cogent corroborative evidence. (See Cassidy v. Canada Post et al. 2012 CHRT 29 para. 27).
[59] I make the foregoing observations having due regard to the principles of credibility assessment, as expressed in Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C.C.A.):
The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of 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." [See also: Cassidy v. Canada Post et al. 2012 CHRT 29, paras.25-26]
VII. Section 7 Allegations of Discrimination related to Marital Status
A. Denial of Career Leadership Development Program Participation
i) Background and Facts
[60] At the time Ms. Stanger worked at VicMPP, there was a recruitment program offered by Canada Post called the Career Leadership Development Program (“CLDP”). Canada Post employees, mainly members of the Canadian Union of Postal Workers (“CUPW”), were often assessed through this program for consideration for promotion to supervisory positions. The CLDP was developed in an attempt to bring some objectivity into the assessment of employees wishing to move up to these supervisory positions. The program was run periodically in anticipation of staffing needs, and it was usually run once or twice per year in the Pacific region. Employees interes