The Human Rights Tribunal of Ontario has dismissed an application alleging sex discrimination, sexual harassment, and reprisal filed by a former maintenance technician against a hotel located in downtown Toronto.
Adjudicator Lavinia Inbar concluded that the applicant, V.R.B., failed to establish a prima facie case under the Human Rights Code.
The Tribunal found that while the applicant was the only female worker in the hotel’s maintenance department, there was insufficient evidence to prove that her termination was connected to her sex or to any complaints she made about workplace harassment. “I find that the applicant did not establish, on a balance of probabilities, a prima facie case of discrimination or reprisal within the meaning of the Code,” wrote Inbar.
Background of the case
V.R.B. was hired on March 13, 2019, as a maintenance technician at One King West Hotel and was subject to a 60-day probationary period under the collective agreement between the hotel and the union. Her employment was terminated on May 3, 2019, during this probationary period. The union did not participate in the Tribunal’s process.
The applicant alleged that her male colleagues refused to assist her and work with her because she was female. She also claimed to have faced sexual harassment, citing incidents such as:
- An “elevator man” allegedly saying to a colleague, “Lucky you get to work with a woman.”
- Victoria’s Secret bags being left in plain view on two occasions.
- A colleague saying to another, “Call your wife and tell her you work with a woman now.”
- Male colleagues changing clothes in her presence, including one instance where a colleague was “in his underwear” when she entered a common tool area.
Employer’s response
The employer argued that all of the applicant’s complaints were promptly addressed and that her termination was unrelated to her complaints or her sex. The Director of Human Resources testified that the applicant required excessive assistance in her role and that her performance issues led to her colleagues’ reluctance to work with her. The employer also stated that the applicant displayed insubordinate behaviour, particularly during a staff meeting on May 1, 2019.
The Director of HR noted that when the applicant reported the issue of colleagues changing clothes in common areas, the employer took immediate action by posting signs and addressing the team directly. “You have the full support of [management] on this one. If this behaviour continues please tell [your supervisor] immediately,” the Director of HR wrote to the applicant.
Tribunal’s analysis and findings
The Tribunal applied the three-part test for prima facie discrimination:
- The applicant has a protected characteristic under the Code.
- The applicant suffered disadvantage or adverse impact.
- The protected characteristic was a factor in the disadvantage or adverse impact.
While acknowledging that the applicant’s sex is a protected characteristic, the Tribunal found no objective evidence of disadvantage or adverse impact linked to her sex. “Although the termination was an adverse impact, the applicant’s protected characteristic was not a factor in the adverse impact,” Inbar stated.
Regarding the claim of a poisoned work environment, the Tribunal emphasized that subjective feelings are insufficient without objective evidence. Citing General Motors of Canada Limited v. Johnson, Inbar wrote: “An applicant’s subjective feelings or even genuinely held beliefs are insufficient to prove allegations of a poisoned environment. Objective evidence is required.”
The Tribunal found that the employer acted appropriately in response to the applicant’s complaints. When informed about colleagues changing in common areas, management promptly posted notices and reiterated the policy to staff. The applicant even acknowledged the swift action in an email: “I thank you for addressing this matter quickly.”
Reprisal allegations
The applicant alleged that she faced reprisal when instructed not to come to work and subsequently being terminated after making her complaints. The Tribunal found no evidence supporting this claim. Instead, the evidence showed that the applicant was terminated due to insubordination and inappropriate behaviour.
The Director of HR testified that the applicant’s refusal to attend a meeting with a union representative and her insistence on working despite being asked to stay home contributed to the decision to terminate her employment. “The decision to terminate had nothing to do with sex or gender or the applicant’s complaint, but had everything to do with insubordination,” Inbar noted.
For more information, see Bankuti v. One King West Hotel Residence, 2024 HRTO 1454 (CanLII).
