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Human Rights (Ont) - Reprisal. Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court considered the s.8 'reprisal' provisions of the HRC:Did the HRTO err in its dismissal of the allegation of reprisal?
[74] The Tribunal did not err in its rejection of Ms. Yan’s complaint of reprisal. Its conclusion was reasonable. Section 8 of the Code says:Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so. [75] For a reprisal to be made out under s. 8 of the Code, an action taken against, or threat made to, the applicant must be related to the applicant having claimed or attempted to enforce a right under the Code. Then, there must be an intention on the part of the respondent to retaliate for the claim or attempt to enforce that right.
[76] In her factum before this court, at para. 111, Ms. Yan submitted that the reprisal by 30 Forensic was not limited to the termination of her employment. Rather, the harassment she encountered, the poisoned work environment, management’s internal bad-mouthing of Ms. Yan, and the company’s characterization of her internal complaint as a work issue, were all retaliatory and the result of her internal complaint. She added that management bad-mouthed her after she spoke to the President on December 17, 2018. Ms. Yan alleged that the Tribunal erred in its conclusion on this point because it failed to consider the cumulative sum of these experiences as retaliatory and in response to her complaints.
[77] The Tribunal considered the issue of reprisal, only in terms of 30 Forensic’s termination of Ms. Yan’s employment. The decision is silent on Ms. Yan’s submission before this court that all her negative experiences during her employment were retaliatory and resulted from her internal human rights complaint.
[78] Turning first to the way the Tribunal addressed the issue of reprisal, it reviewed the following evidence. Ms. Yan pursued an internal human rights complaint on July 17, 2018, immediately following the issuing of the PIP. The complaint was dismissed in late August of 2018. Ms. Yan was terminated six months later. On the evidence before the Tribunal, which the Tribunal accepted, Mr. Sparling, one of 30 Forensic’s principals, decided to terminate Ms. Yan’s employment after she refused to assist on an urgent file. The Tribunal accepted his evidence. Although it observed that the specific conflict was consistent with Ms. Yan’s previous resistance to assist with files, it found nothing in the evidence to suggest that Mr. Sparling’s decision to terminate Ms. Yan’s employment was retaliatory. It went further to note that it did not have to determine if whether Mr. Sparling had unreasonable expectations when he asked Ms. Yan to assist him. For the purposes of deciding whether the termination was retaliatory, it was sufficient that the termination was linked to Mr. Sparling’s perception of Ms. Yan being uncooperative.
[79] With respect to Ms. Yan’s submission before this court, it may have raised a pause for concern, were it not for the evidence that Ms. Yan encountered difficulties six weeks into her employment, and well before she launched her internal complaint. To suggest that everything she encountered post-July 17, 2018 was retaliatory does not accord with her own evidence. On the uncontradicted evidence before the Tribunal, Ms. Yan’s first complaint to the company was in early June 2018. By the middle of June there were continued difficulties and by June 29, 2018, one of the one of the principals wanted to terminate Ms. Yan’s employment in response to some interpersonal conflict and the difficulties with the RFP. The Human Resources Manager and Mr. Sparling acknowledged the difficulties were not necessarily Mr. Yan’s fault and preferred instead to issue the PIP. By all evidentiary accounts, there was confusion and toxicity in the workplace, that had nothing to do with Ms. Yan’s internal complaint.
[80] The Tribunal acknowledged the bad mouthing of Ms. Yan by management but it also found a genuine attempt by management to understand and address Ms. Yan’s concerns. As noted above, it specifically found that “management paid attention to Ms. Yan’s concerns and sympathized with her.” Then in her performance review, Mr. Sparling readily acknowledged Ms. Yan’s strengths. Also on the evidence before the Tribunal, Mr. Sparling learned that Ms. Yan went away pleased with her review and it was only after it was confirmed that she would not be getting a raise that Ms. Yan confronted the President of 30 Forensic and raised her difficulties with PTSD. It is reasonable to infer that had she perceived the difficulties she now raises as retaliatory, she would have raised them with Mr. Sparling, in her encounters with him in October 2018 and with the President in December 2018.
[81] Against that evidentiary backdrop, there is nothing unreasonable in the way the Tribunal considered and ultimately disposed of this issue.
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