- May 12, 2021
- Human Rights Decisions
On December 4 2017, the Ontario Human Rights Tribunal dismissed an application alleging discrimination and harassment in the workplace due to unreliable evidence. In dismissing the application, the Tribunal criticized the Applicant’s behaviour characterizing the positions she took as untenable, specious or based on a “conscious misunderstanding of the facts”.
The matter was before the Tribunal for eight years, resulting in 20 hearing dates. The Applicant presented her evidence during the first 15 days of hearing, after which the Tribunal invited submissions as to whether the Application should be dismissed. The Tribunal dismissed a number of allegations against the union, former employer, and personal respondents in an interim decision, allowing the Application to proceed solely against Marcone. Marcone worked with the Applicant as a general labourer and stagehand during the 2007-2008 Shaw Festival. The Applicant alleged that Marcone sexually harassed her by comments, unwanted physical contact including pinching and harassed her on the basis of her disability by smoking close to her exacerbating her asthma.
The Tribunal determined that the Applicant’s behaviour and outlandish positions cast doubt into her ability to present information in a reliable manner. The Applicant had taken the positon that the union and firm representing it had access to a secret police file against her which the Tribunal dismissed. The Applicant also argued that the Tribunal had switched documents in her file, and removed pages. The Applicant also requested several extensions of time to file a reply based on the fact the Respondent allegedly did not return a zip drive, and on the basis that the Respondent’s counsel made inappropriate jokes. The Tribunal refused to grant the extension beyond three months.
In dismissing the application, the Tribunal noted that doubts existed regarding the credibility of the Respondent’s evidence as well, and the decision does not exonerate Marcone. The Applicant could not meet her onus of establishing violations of the Code on a balance of probabilities.