R.L. v. Canadian National Railway Company

R.L. v. Canadian National Railway Company
Collection
Canadian Human Rights Tribunal
Date
2021-09-03
Neutral citation
2021 CHRT 33
File number(s)
T2265/2018
Decision-maker(s)
Harrington, Colleen
Decision type
Decision
Decision status
Final
Grounds
Disability
Family Status
Marital Status
Sex
Sexual Orientation
Summary:
This complaint is about discrimination and harassment in employment based on sex and disability.
The Complainant, at age 44, applied for the Canadian National Railway Company’s (“CN”) conductor training program and she was accepted. After 5 months of training, she suffered an injury during a night shift. Then she was removed from the program. CN said that, more than once, the Complainant had not followed its safety protocols. Also, she was not receptive to feedback meant to help her improve. The Complainant said that she had suffered harassment and discrimination by multiple male coworkers. She argued that she had been removed because she refused to stay quiet about the harassment, and because she was injured on the job.
The Tribunal had to decide if: (1) discrimination was a factor in the removal decision; (2) CN had treated the Complainant in a less favorable way because of her sex or disability; (3) CN’s hiring practice could prevent the Complainant from being offered a job because of her sex; (4) the Complainant was harassed in matters related to her employment because of her sex or disability; and (5) the Complainant was sexually harassed in relation to employment. If the Tribunal found that employees of CN had discriminated against or harassed the Complainant, then it had to decide if CN, as the employer, was responsible for their actions.
The Tribunal agreed that the Complainant was harassed based on sex by two CN employees who trained her in Vancouver. The Complainant reported these events to CN, but it did not properly investigate them. For that reason, the Tribunal found that CN, as the employer of those individuals, was responsible. CN was ordered to pay to the Complainant $10,000 for “pain and suffering”. It also had to pay $5,000 for having acted recklessly by not following its own harassment policy.
The Tribunal also agreed that the Complainant was sexually harassed by one of her instructors in Winnipeg. Because the Complainant did not report the harassment to the employer, CN was not responsible for that behavior.
The Tribunal did not find that sex or disability were factors in the removal decision. She was removed because of a lack of focus which led to risky behaviours, her difficulties with listening and the willingness to learn, and her not being receptive to instructions.
The Tribunal found that the Complainant was not treated less favorably in her employment because she was a woman.
Finally, CN’s supposed policy to hire more women did not prevent the Complainant from being offered a job, since she was in fact hired by them. The Tribunal found that there was no discrimination in CN's hiring practice.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT
33
Date:
September 3, 2021
File No.:
T2265/2018
Between:
R.L.
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian National Railway Company
Respondent
Decision
Member:
Colleen Harrington
Table of Contents
I. Overview 1
II. Preliminary Issues 1
A. Confidentiality Motion 1
B. Discriminatory Practices under the CHRA 4
III. Issues 5
IV. Decision 6
V. Legal Framework 6
VI. Analysis 8
(i) Prohibited Grounds of Discrimination 8
(ii) Section 10 – Discriminatory Hiring Practice 9
(iii) Uncontested Facts 9
(iv) Section 14(2) - Sexual Harassment 11
(v) Section 14(1)(c) – Harassment on the Basis of Sex 19
(vi) Section 7(b) – Adverse Differentiation in Employment 26
(vii) Section 7(a) – Discriminatory Termination of Employment 28
(viii) Section 65 – Employer Liability for Employee Conduct 33
VII. Remedy 44
(i) Lost wages 44
(ii) Compensation for pain and suffering 44
(iii) Compensation for willful or reckless discrimination 47
(iv) Additional Order under Section 53(2)(a) of the CHRA 48
VIII. Orders 50
I. Overview
[1] In May of 2014, R.L. [the “Complainant”] attended an information and screening session held by Canadian National Railway [“CN” or the “Respondent”] for the position of Train Operator (Freight Conductor) in Surrey, British Columbia. She had been working in sales and was looking for a job with a stable income and benefits that would take her to retirement. She was 44 years old. She applied and was accepted into CN’s conductor training program.
[2] On November 14, 2014, after 5 months of classroom, in-the-field, and on-the-job training in both Winnipeg and Vancouver, the Complainant was disqualified from the conductor training program. This occurred immediately after a night shift during which she injured herself.
[3] CN says it disqualified her from the program because she was not progressing through the training in a satisfactory manner and had breached its safety protocols on more than one occasion. The Complainant disputes CN’s position. She says she was the victim of harassment and discrimination by several male coworkers, both in Winnipeg and British Columbia. She believes her disqualification from the training program was the result of her refusal to stay quiet about the harassment. In November of 2015 she filed a complaint with the Canadian Human Rights Commission [the “Commission”] alleging discrimination and harassment in employment on the basis of disability, age, family status, sex, marital status and sexual orientation, contrary to sections 7, 10 and 14 of the Canadian Human Rights Act [the “Act” or “CHRA”].
II. Preliminary Issues
A. Confidentiality Motion
[4] At the outset of the hearing, the Complainant asked that her name be anonymized in the proceedings as she was concerned that being publicly associated with the complaint could affect her ability to obtain future employment. She argues in her closing submissions that employees who have been subjected to harassment are uniquely vulnerable and requests that her name be redacted from the decision and all materials filed prior to the hearing, as well as from all evidence entered at the hearing. She asks that her name be replaced by “employee” so that she may find stable employment.
[5] The Respondent opposes the Complainant’s request, saying she has not provided an adequate reason as to why the Tribunal should depart from the open court principle. In particular it says she has not provided any evidence of a real and substantial risk of undue hardship that should lead the Tribunal to make a confidentiality order pursuant to section 52(1)(c) of the Act. The Respondent says the Complainant has not provided any evidence that she is searching for employment, nor how not anonymizing her name will cause her difficulty finding employment in the future. CN also points out that she objected to its earlier Motion to anonymize the names of its witnesses, and she has not extended her request to CN’s witnesses.
[6] During the Tribunal’s Case Management proceedings, CN filed a Motion requesting that all of its witnesses’ names be anonymized in these proceedings, noting that it would also consent to the Complainant’s name being anonymized. The Respondent had argued that it would be embarrassing for its witnesses to be associated with the Complainant’s allegations of sexual harassment, even though not all of the witnesses were accused of engaging in such behaviour. The Complainant opposed the Respondent’s request and I denied the Motion because I considered it to be speculative and overbroad. However, I indicated that I would be willing to consider the issue again based on the evidence received at the hearing.
[7] The Respondent is correct that the Tribunal must comply with the open court principle, which means that its inquiries shall be conducted in public. The Act allows the Tribunal to consider exceptions to this requirement on a case-by-case basis. Section 52(1)(c) of the Act states that the Tribunal may take any measures and make any order necessary to ensure the confidentiality of the inquiry if it is satisfied that, by holding the inquiry in public, “there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved”. The need to prevent disclosure must outweigh the societal interest in a public hearing. Exceptional conditions of sensitivity or privacy necessitating anonymity should generally be present before such an order is granted by the Tribunal (Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974 (CanLII) at para 6).
[8] The hearing itself, conducted by Zoom, was held in public. None of the evidence was heard in camera, nor is there a ban on the publication of any evidence. I understand the Complainant’s concern to be that a prospective employer could search her name and find this decision, which she believes could affect her ability to become employed again.
[9] Unlike earlier in the process, when the Respondent made its confidentiality Motion, the Tribunal has now received and considered evidence submitted by the parties. This includes evidence that the Complainant has not worked since her last shift with CN. Part of the reason she has been unable to work is related to her mental health, as set out in a psychological report she filed with the Tribunal. I note that the psychological report contains information of a very sensitive and personal nature.
[10] In T.P. v. Canadian Armed Forces, 2019 CHRT 10 (CanLII) [T.P.] at paragraphs 24–29 the Tribunal agreed that the complainant’s concern about the impacts of a public hearing on his feelings of self-worth and possible future job prospects was valid, given that there is still a societal stigma surrounding mental illness, real or perceived.
[11] In the present case, the Complainant’s mental health concerns were apparent during the hearing. She experienced a great deal of anxiety, even having to go to the hospital at one point due to a panic attack. The psychologist’s report outlines her struggles with anxiety and depression and links them mainly to the injury she suffered to her back and to the loss of her job with CN. There is no evidence that the Complainant suffered from such debilitating mental health problems prior to her injury. While her prospects of returning to work at the time of the psychological report were very low, one would hope that she will recover sufficiently to be able to apply for employment again.
[12] In the case of N.A. v. 1416992 Ontario Ltd. and L.C., 2018 CHRT 33 (CanLII) it was noted that a Tribunal, as master of its own proceedings, can determine the issue of whether to publish identifying information (at para 27, citing Guzman v. T, 1997 CanLII 24824 (BC HRT) at paras 9, 10).
[13] Pursuant to section 52(1)(c) of the CHRA, I am satisfied that the public disclosure of the Complainant’s mental health struggles could result in undue hardship relating to her ability to obtain future employment if her identity is not anonymized in this Decision. As such, I agree to refer to the Complainant as “R.L.”
[14] With respect to the Respondent’s witnesses, I have now heard all of the evidence and have not found that the majority of them engaged in discriminatory practices with respect to the Complainant. As set out in the decision below, I find that the actions of two of the witnesses constituted contraventions of the Act for which CN is liable. The complaint was filed against CN and not against these individuals. CN has never asked that its name be anonymized. As in T.P., I am of the view that anonymizing the names of the witnesses in this case will not impact the public’s ability to understand the nature of the complaint, the relationship between the parties, or the evidence and issues considered by the Tribunal.
[15] I am of the view that an order anonymizing the names of all witnesses, including the Complainant, properly balances their privacy interests with the public interest in human rights hearings. All CN employees referred to in this Decision, whether they were witnesses at the hearing or not, will be referred to by their initials.
[16] The anonymization order applies only to this Decision. In addition, the Tribunal on its Motion has determined that the psychological report (Exhibit C13) should be sealed and not released if there is a request for access to the official record.
B. Discriminatory Practices under the CHRA
[17] In the Complainant’s closing submissions, she argues that CN contravened sections 5, 7, 8, 9, 10, 11, 12, 14 and 14.1 of the CHRA. She also refers to section 13, relating to hate speech, which was repealed in 2013.
[18] In its closing submissions, the Respondent says that sections 7, 10 and 14, “in pertinent part, describe the only discriminatory practices in relation to employment that have been put in issue by the Complainant’s allegations.” It submits that there are no alleged facts that bring any of the other sections she has raised into issue in these proceedings. I agree.
[19] All of the Complainant’s allegations relate to her employment with CN, not to her accessing goods, services, facilities or accommodations from CN as a member of the public. As such, I will not consider whether the Complainant experienced discrimination contrary to section 5 of the CHRA.
[20] Further, the Tribunal’s jurisdiction to inquire into this complaint comes from the Commission’s referral pursuant to sections 44(3)(a) and 49 of the CHRA. Nothing in the Commission’s referral would indicate that the Tribunal should inquire into allegations relating to sections 8, 9, 11, 12 or 14.1. Further, nothing in the evidence presented to the Tribunal during the hearing would bring sections 8, 9, 11, 12 or 14.1 into issue in these proceedings. As such, I have not considered them in making my decision about this complaint.
III. Issues
[21] The issues for the Tribunal to decide are:
Has the Complainant established that she was discriminated against contrary to sections 7, 10 or 14 of the Act? Specifically, I must decide whether:
One or more prohibited grounds of discrimination were a factor in the Respondent’s decision to disqualify the Complainant from the conductor trainee program, thus ending her employment with CN, contrary to section7(a) of the Act;
In the course of employment, the Respondent differentiated adversely in relation to the Complainant on the basis of a prohibited ground of discrimination, contrary to section7(b) of the Act;
CN had a policy, practice or agreement relating to recruitment or hiring that could deprive the Complainant of an employment opportunity based on her sex, contrary to section 10 of the Act;
The Complainant was harassed on a prohibited ground of discrimination contrary to section14(1)(c) of the Act; and
The Complainant was sexually harassed in relation to employment, contrary to section14(2) of the Act.
If I decide that the Complainant experienced discrimination or harassment on a prohibited ground, I must determine whether the Respondent is liable for the discrimination pursuant to section 65 of the Act.
If the complaint has been established and the Respondent is unable to rebut the presumption of liability pursuant to section 65(2) of the Act, what remedies should be awarded that flow from the discrimination?
IV. Decision
[22] I agree that the Complainant experienced harassment on the basis of her sex through the comments of two CN employees who trained her in Vancouver, contrary to section 14(1)(c) of the CHRA. As CN failed to properly investigate these complaints in accordance with its Harassment Free Environment Policy, it did not rebut the presumption that it is liable for this discriminatory harassment under section 65(2) of the Act, and the Complainant is entitled to a remedy.
[23] I also agree that the Complainant experienced sexual harassment by one of her instructors in Winnipeg, contrary to section 14(2) of the Act. However, I do not find that CN is liable for this discriminatory harassment, as the Complainant did not report the harassment to the employer as required.
[24] I do not find that the Complainant’s disqualification from the conductor training program was related to her sex or disability or any other prohibited ground of discrimination. As such, the complaint under section 7(a) of the CHRA is dismissed.
[25] I also find that the Respondent did not contravene sections 7(b) or 10 of the Act in relation to the Complainant, and therefore dismiss these complaints.
V. Legal Framework
[26] In order to establish what is referred to in the case law as a prima facie case of discrimination, the Complainant must establish on a balance of probabilities:
that she had one or more of the identified characteristics protected against discrimination under the Act at the relevant time (in this case disability, sex, age, family status, marital status, or sexual orientation);
that the Respondent’s actions adversely impacted her in relation to employment contrary to section 7 (adverse treatment or termination), section 10 (hiring), or section 14 (harassment); and
that one or more of the protected characteristics was a factor in the Respondent’s treatment of her. (See Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 (CanLII) [Bombardier] at para 63 and Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) at para 33)
[27] A prima facie case of discrimination is “…one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer” (Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, 1985 CanLII 18 (SCC) at para 28).
[28] A protected characteristic need only be a contributing factor, not the sole factor, in the adverse treatment or decision (Holden v. Canadian National Railway, 1990 CanLII 12529 (FCA) at para 8). A causal connection is not required, nor is proof of intention to discriminate (Bombardier, supra at paras 56, 40, 44). In fact, the Tribunal has previously concluded that, as discrimination is not generally practised either overtly or intentionally, it must consider all of the circumstances of the complaint to determine whether there is a “subtle scent of discrimination” (Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT)).
[29] In determining whether discrimination occurred, the Tribunal must consider the evidence of both parties. As in this case, a respondent may present evidence in an effort to refute an allegation of prima facie discrimination. Where a respondent takes this approach, its explanation for the impugned conduct must be reasonable, it cannot be a “pretext” - or an excuse - to conceal discrimination (Moffat v. Davey Cartage Co.(1973) Ltd., 2015 CHRT 5 (CanLII) at para 38).
[30] Conversely, if a complainant is able to meet their burden of proof, the respondent may put forward a defence justifying the discrimination under section 15 of the Act or, as in this case, argue that its liability is limited pursuant to section 65(2) of the Act.
VI. Analysis
(i) Prohibited Grounds of Discrimination
[31] The Complainant alleges that, while she was employed by CN, she was treated in an adverse differential manner in relation to her age, sex, family status, marital status, sexual orientation and disability, all of which are prohibited grounds of discrimination under section 3(1) of the CHRA.
[32] By alleging discrimination on the basis of her sex, she asserts that she experienced adverse differential treatment or harassment because she is a woman.
[33] Regarding the allegation of discrimination on the basis of disability, I find that the Complainant suffers from a disability stemming from an injury that she sustained during her last shift with CN prior to being disqualified from the conductor training program. She testified that, during the overnight shift of November 13 to 14, 2014, she injured her back using a bull switch and also slipped and injured her knee. She says this has resulted in permanent pinched nerves and no feeling in her left big toe. She testified that she has undergone different treatments, that she has been told that surgery is not an option, and that she has reached maximum recovery. As a result of this disability, she has been in receipt of workers’ compensation benefits for many years. The Complainant’s evidence about her physical disability was not refuted by the Respondent. Further, while I accept that the Complainant currently suffers from a mental disability, there is no evidence that this was present at the time of the alleged discrimination.
[34] With respect to her age, marital status and family status, the Complainant testified that she was 44 years old and a single mother of a teenager when she to applied to the conductor trainee program and throughout her employment with CN. The Complainant did not testify about her sexual orientation during the hearing. She provided no evidence or argument with respect to discrimination on any of these 4 grounds. Therefore, the complaints that CN contravened the CHRA on the basis of the Complainant’s age, family status, marital status and sexual orientation are not substantiated and are dismissed.
[35] As such, I will only consider whether the Complainant experienced discrimination or harassment on the basis of sex and disability.
(ii) Section 10 – Discriminatory Hiring Practice
[36] The Complainant alleges that, in May of 2014, an interviewer with CN told her that she had a better chance of being hired than a man, because CN had a mandate to hire women. She alleges that this contravenes section 10 of the Act, which says that it is a discriminatory practice for an employer to have a policy or practice, or to enter into an agreement, affecting recruitment or hiring (or any other matter relating to employment or prospective employment), that deprives an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[37] While I appreciate that such a comment being made in front of a group of men who were also applying to work for CN would be unwelcome, I do not agree that it contravenes section 10 of the Act. Even if there is a policy, practice or agreement in place at CN with respect to recruiting or hiring more women – which, presumably, the Complainant would actually be in favour of given her repeated evidence about the lack of women working for CN – such a policy would not deprive her of an employment opportunity, because she is a woman. Indeed, most federally regulated industries are legislatively required to have plans in place in order to correct conditions of disadvantage in employment for certain designated groups, including women.
[38] The Complainant failed to establish how a comment by a CN employee about the company having a mandate to hire more women adversely impacted her in relation to her application for employment with CN, given that she was hired by them. She has not proven on a balance of probabilities that she was discriminated against under section 10 of the Act and so I dismiss this complaint.
(iii) Uncontested Facts
[39] The following uncontested evidence provides some context for the remainder of the Decision.
[40] According to the job description submitted as evidence at the hearing, conductors supervise train operations as well as move, switch and inspect railcars. Switching activities include “coupling and uncoupling of railcars, getting on and off moving equipment, climbing ladders on railcars, operating switches and other track components, as well as operating remotely controlled locomotives” by way of a device called a “belt pack”. The working conditions of a freight conductor are described as: “irregular hours, including nights, weekends, holidays, and overtime” and working “outdoors in varying weather such as snow, rain, extreme temperatures and environmental conditions.” Shifts are up to 12 hours in duration.
[41] The Complainant started her training to be a conductor at the CN Campus in Winnipeg in mid-June of 2014 where she completed around 6 weeks of classroom and field training.
[42] After this, on or about August 4, 2014, the Complainant returned to the Vancouver area to complete on-the-job training which, according to the job description, consists of a minimum of 45 to 60 trips as an extra person on a crew to enhance one’s knowledge and skills. This portion of the training program consisted of some classroom learning and then working shifts with on-the-job trainers, who were experienced CN conductors. This allowed the trainees to put their newly acquired skills into practice.
[43] L.V. was the on-the-job Training Coordinator for Greater Vancouver at the relevant time. He was responsible for scheduling the trainees to work with various trainers. Each trainer was required to provide comments and to rate the trainees they worked with on various skills performed during the shift. These ratings and comments were entered into each trainee’s Student Conductor Performance Report [“Performance Report”]. The Complainant’s Performance Report, which was admitted as evidence at the hearing, indicates that she was trained by approximately 20 different trainers between August 18, 2014 and November 13, 2014. Some trainers she worked with only once and some she trained with for multiple shifts.
[44] On October 27, 2014, Assistant Superintendent M.P., who testified as a witness at the hearing, called a meeting with the Complainant to discuss concerns he had with some of the comments made by trainers on her Performance Report. L.V. also attended the meeting. The Complainant recorded this meeting on her telephone and the audio recording was admitted as evidence at the hearing.
[45] On October 31, 2014, which was around the mid-point of her on-the-job training, the Complainant and the other conductor trainees participated in an evaluation session with L.V. and a CN conductor named D.L. who was assisting him. The Complainant also recorded this meeting on her telephone and the recording was submitted as evidence at the hearing. CN called L.V. to testify at the hearing, although it did not call D.L. as a witness.
[46] The Complainant was still doing this on-the-job training on November 14, 2014, the date of her disqualification from the program. As such, she was still considered by CN to be a probationary employee.
(iv) Section 14(2) - Sexual Harassment
Positions of the Parties
[47] The Complainant alleges that she was sexually harassed in the course of her employment with CN, contrary to section 14(2) of the Act. She testified that one of her trainers in Winnipeg, R.M., made a number of sexually explicit comments to her. For example, she testified that one afternoon during training they were outside having a break and she was eating a banana and he said to her in front of the whole group: “You’ve probably heard this before but you have white stuff around your mouth”. She understood him to be implying that she had performed fellatio. She said that was not how she wanted to feel in a safety critical workplace made up mostly of men. She testified that R.M. also said to her, “my wife would like you, we should have a threesome, you should come on our boat”. She said that when another CN employee asked R.M. who she was, he answered, “that’s [R.L.], she’s a whore.” The Complainant noted that R.M. was in a supervisory role and should have known that such comments were unwelcome and inappropriate.
[48] The Complainant testified that she asked R.M. to stop making such comments to her and suggested that she would start keeping notes about them, but he said to her “who will they believe – me or you?” The Complainant says she did not report R.M.’s behaviour to CN while in Winnipeg because, in addition to his comment that she would not be believed, she had also been told during her training that “snitches end up in ditches”. She said she knew the training in Winnipeg was only for a short period of time and she just wanted to get on with her new career with CN in Vancouver.
[49] In his testimony, R.M. denied making the comment about wanting to have a threesome with the Complainant and his wife or inviting her on his boat. He said his boat was not operational at the time, although he spent his time off fixing it and would probably have mentioned that to the group.
[50] R.M. denied calling the Complainant a whore and said he did not recall her asking him if she needed to start taking notes, although he remembered that she carried a notebook.
[51] R.M. agreed at the hearing that he had pointed out in front of a group of trainees that the Complainant had something around her mouth and realized it could have been embarrassing for her, so he apologized. He believed she accepted his apology. He said he did not intend the comment to be sexual. Also, R.M. said the Complainant made a similar joke to him the next day when he was eating peppermint lifesavers and he had some white foam in the corners of his mouth, so he thought “it was all fun and games.”
[52] CN says R.M. admitted he made a mistake in making this comment and promptly apologized, and argues that it does not rise to the level of harassment under the CHRA, as it was not serious or persistent. CN also argues that R.M. was a credible witness, as he was firm in his recollection and did not resile from his position on cross-examination. It says this is in contrast to the Complainant’s exaggerations and refusal to concede, in some circumstances, patently false points, and so R.M.’s evidence should be preferred.
[53] The Complainant also testified that one of her belt pack trainers in Vancouver, N.E., told a story about an employee who had touched a female employee’s breast while using her radio, and kept his job while the woman was fired. She said N.E. demonstrated the story on her by touching her breast while reaching for her radio. The Complainant testified that this incident happened during the week of October 26-30, 2014. When the Respondent’s counsel suggested she actually did her training with N.E. the week prior (October 20-24), she denied this, saying she had done her classroom training on belt pack the week of October 20, and trained with N.E. in the field the week of October 26.
[54] The Complainant claimed she told L.V. about this incident with N.E. There is no mention of N.E. in any of the recordings she submitted as evidence at the hearing. When asked why she did not report the incident to M.P., she said “it didn’t come up.”
[55] N.E. testified that it was common to tell stories during belt pack training. He said the story about the person who touched a female employee’s breast was one that was told in the workplace as a warning. N.E. testified in his direct examination that he did not know who told the story to the Complainant’s training group or why it came up. He also testified that he had his own radio at all times and would not have used the Complainant’s because he knew it would be inappropriate. In cross examination, N.E. agreed that he had, in fact, told the story to the Complainant’s group.
[56] CN says that, while the Complainant’s and N.E.’s evidence are directly contradictory, N.E. did not resile from his position on cross-examination and was credible, and so his evidence should be accepted. It says that the Complainant’s belt pack training with N.E. occurred before both of the recorded meetings the Complainant had with her supervisors. However, she did not mention N.E. or this alleged incident in any of her recorded conversations where she discussed allegations of harassment by other trainers.
Complainant’s Credibility as a Witness
[57] CN argues that the Complainant was not a credible witness, submitting that, “where her evidence directly conflicts with the evidence of CN’s witnesses, CN’s evidence should be preferred.”
[58] No witnesses to any of the harassment alleged under section 14 were called by either party. The Tribunal must weigh the oral testimony of all witnesses and assess the reliability and credibility of each witness and make findings of fact based on these assessments. In doing so, I have considered Faryna v. Chorny, 1951 CanLII 252 (BC CA) [Faryna], in which Mr. Justice O'Halloran stated at p. 357:
The credibility of interested witnesses, 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.
[59] CN argues that the Tribunal should consider the Complainant’s demeanour while testifying, in comparison with that of its witnesses. It argues that she “frequently got angry or upset, was evasive and attempted to avoid answering questions, and refused to make admissions even when it was apparent that her testimony was inaccurate.” As an example, it says she refused to admit she owned a home because she has a mortgage and so the bank actually owns the home. It also says she refused to concede in cross-examination that she had reasons for wanting to leave her previous job, despite testifying to this in her direct evidence.
[60] I find that the Complainant was a generally credible witness. With respect to her demeanour during the hearing, while she may have become upset at times, it was also clear that she was experiencing a great deal of anxiety. This anxiety was with her throughout the hearing, requiring her to take many breaks, yet she saw the hearing through to the end, giving her own evidence and cross-examining all of the Respondent’s witnesses. She was self-represented against experienced and capable counsel for the Respondent who, I note, was very kind and accommodating when it came to the Complainant’s health issues.
[61] I find that the Complainant’s evidence about why she left her previous job in which she earned a commission from sales was consistent from her direct evidence to her cross- examination. She testified that there were financial stresses associated with earning a living from sales, as not every pay cheque was the same. She testified that she was not 100% satisfied with this, although if she had not gotten the job with CN, which had consistent pay and better benefits, she would have stayed in the sales job because she was a single mother with a mortgage and expenses. She did not refuse to concede in cross-examination that she had reasons for wanting to leave her previous job as the Respondent argues. She explained why she applied for the job with CN quite clearly.
[62] CN argues that the Complainant was also prone to exaggeration because she had told a psychologist that she became homeless after losing her workers’ compensation benefits, from November 2017 until sometime after July 2018. CN says the Complainant testified that she currently owns real property and that she had been “sitting on” the proceeds of the sale of her home in White Rock from November 2017 until she purchased a new home in May 2018. It argues that telling the psychologist that she was “homeless” was an exaggeration because, when “someone advises that they are homeless, transitioning to the purchase of a new home is not typically what people understand that term to mean.”
[63] The Complainant’s evidence was that she was cut off of her workers’ compensation benefits in November 2017 and, as she feared going into foreclosure by failing to make her mortgage payments, she chose to sell her condo in White Rock. After the sale of the condo in November 2017 she did not have enough money to buy another place outright and could not get another mortgage because she had no income. Then, because she had nowhere else to live, she spent the next several months living in various places, including a trailer, an Air B&B, her car, and a room in someone’s house. She also underwent treatment for her back on Vancouver Island during this time.
[64] She eventually had her workers’ compensation payments reinstated and, in May 2018 she was able to obtain another mortgage and she purchased a home on Vancouver Island, where real estate was more affordable than in the Lower Mainland. She testified that she could not move in until August 2018.
[65] I agree that the Complainant was not very cooperative in answering the Respondent’s questions on this topic. However, I do not find that her testimony about this affected her overall credibility as a witness. She testified that she had worked hard as a single mother to be able to buy the condo for her and her daughter and was obviously very upset to have lost it due to her financial situation in 2017. She became distraught when testifying about having to sell it and had to take a break.
[66] CN also notes that the Complainant told the psychologist that, prior to injuring herself, she loved her job and was good at it. It points out that she omitted the important fact that, prior to the shift during which she was injured, she had decided to leave that job. I agree that this is disingenuous on her part, as it is clear from the evidence that she did not love being a conductor trainee and that she was actively seeking to leave that job and find another one within CN even before she was injured or disqualified from the training program. I accept, however, that the Complainant saw CN as a company that she wanted to work for until her retirement because she believed she would have a good salary and benefits with them.
Sexual Harassment – The Legal Test
[67] The Supreme Court of Canada, in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at 1284, described sexual harassment as follows:
Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. […] Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.
[68] The Federal Court expanded on the reasoning in Janzen in Canada (Human Rights Commission) v. Canada (Armed Forces), 1999 CanLII 18902 (FC), [1999] 3 FC 653 [Franke]. The Court held that, for a sexual harassment allegation to be substantiated, the following must be established:
(1) The acts that form the basis of the complaint must be unwelcome, or ought to have been known by a reasonable person to be unwelcome;
(2) The conduct must be sexual in nature;
(3) Ordinarily, sexual harassment requires a degree of persistence or repetition, but in certain circumstances even a single incident may be severe enough to be detrimental to the work environment (paras 32-40).
Findings of Fact and Decision Regarding Sexual Harassment
[69] I find that R.M. did make the comments as alleged by the Complainant. I have no reason to believe that the Complainant fabricated these allegations. She has been consistent about them since she filed her human rights complaint with the Commission in 2015. She was not shaken on cross-examination by CN’s counsel. She was clearly distressed when testifying about t