Evidence and credibility at the HRTO

April 24, 2019 Kevin Sambrano, Sambrano Legal Services Human Resources, Human Rights, 0

Age is one of the protected grounds under Ontario’s Human Rights Code. Like all jurisdictions credible evidence, whether documentary or witness testimony, is needed for either side to support their version of facts. The recent decision of Gammo v. Provis Rudd Endoscopy Clinic illustrates this crucial component in litigation at the Human Rights Tribunal of Ontario.

The matter

The applicant was a long time employee who argued that she had been discriminated against on the basis of her age. The applicant described a comment that was allegedly made to her by the respondent.

The applicant alleged that during a meeting, the respondent stated, “we want to hire younger nurses in the recovery room”. The applicant seemed to interpret this as the respondent saying that she was too old.[i]

The matter was adjudicated at the Human Rights Tribunal of Ontario. Under the “Code”, the applicant need only prove that a prohibited ground was a factor in any adverse actions or behaviour in regard to treatment.

The hearing

During the hearing, the applicant was unable to recall certain details of the exchange such as the date, while the respondent was able to not only provide the date of the alleged incident, but had also supplied contemporaneous notes that memorialized the conversation.

According to the respondent’s version of events, the respondent had said, “that’s not an easy job at all.” The applicant replied by saying, “do you mean I am too old to do that job?” The documented response, as provided by the minutes of the meeting which the respondent relied upon as evidence, was a denial of the applicant’s assumption.[ii]

A witness for the respondent corroborated the respondent’s testimony and the notes. The Tribunal after due consideration relied upon the test established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 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.”[iii]

The decision

After reviewing the matter, the Tribunal accepted that in spite of the applicant’s interpretation of what was said, the description of the pace and level of work in the recovery room to mean that she was too old, the evidence of the respondent and its witness was consistent with the respondent’s testimony and the notes made during the meeting. The allegation was dismissed.[iv]

The takeaway

Evidence, whether by testimony or documentary evidence is crucial to any proceeding, and corroborative evidence will often place the holder of that evidence in a more credible position.

Other related articles: Lack of Evidence Works Employer at HRTO

[i] Gammo v. Provis Rudd Endoscopy Clinic, 2019 HRTO 599 Para. 9

[ii] Ibid. Para. 10

[iii] Ibid. Para. 8

[iv] Ibid. Para. 15

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more