Clennon v. Toronto East General Hospital: Non-hearsay they say ?

In Clennon v. Toronto East General Hospital HRTO 1242 the Ontario Human Rights Tribunal ruled that the respondent employer violated Mrs. Clennon's right to be free from discrimination based on her age. Ordinarily, one would welcome such a finding. However, such was not the case here. The reason for this follows from the limited and bizare nature of the Code violation which the Tribunal found. The Tribunal ruled that Toronto East General Hospital violated Mrs. Clennon's righs under the Code not by virtue of her termination "without cause" and to replace her with a "younger and cheaper worker" as she alleged in her compliant but because they failed to allow her an opportunity to improve her performance pursuant to their polices before terminating her employment of some 24 years.

Shockingly, the Tribunal came to its conclusion that Mrs. Clennon's performance was wanting not from hearing from witnesses with actual knowledge of the various performance issues raised by the hospital in defence but instead as relayed by the then Director, Ms. Natalie Cournoyea. The Tribunal came to this conclusion in the face of the following findings of fact:

1. Despite her denials Natalie Cournoyea stated to Mrs. Clennon,

(i) "Why don't your retire;

(ii) "Why don't you consider retiring ? your husband is retired
and it would be good to be retired with him".

2. Toronto East General Hospital fired Mrs. Clennon "without cause"
after 24 years of service as an obstetrial nurse and for roughly
three of those years as Manager of the Birth Centre by denying
her common law severence unless she signed a release in their favour
acknowledging that they did not violate her rights under the
Ontario Human Rights Code;

3. The worker who replaced Mrs. Clennon, one Claudette Manhue, was
some 16 years younger than Mrs. Clennon and Mrs. Clennon had won
the competiton for the same position some three years prior
against the same worker;

4. The Tribunal expressly found that:

"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address
performance deficiencies could jeopardizde her
continued employment at the hospital."

Non-hearsay ?

In response to the Mrs. Clennon's application for reconsideration of this decision she alleged, amongst other errors, that the non-discriminatory motive - namely - the alleged poor performance to justify her dismissal relied on inadmissable hearsay. This is what the Tribunal ruled in response on the reconsideration application:(see 2010 HRTO 1693)

"I also do not agree with the characterization of
the 360-degree assessment and the performance-related
information from e -mails, letters and notes as "hearsay
evidence." Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert the
truth of the statement made. In the instant case, the respondent
was not proferring the 360-degree assessment and other
performance-related information in order to establish the truth
of the statement made therin. Rather, this information was put
in support of the Director's evidence that she relied on these
performance-related issues as the explanation for her termination
decision, and that the applicant's age was not a factor. The
relevant issue for me was why did the Director make the decision
to terminate the applicant's employment and was her age a factor
in that decision, and the Director provided direct evidence on
that issue."

The classic danger of hearsay
illustrated by Tribunal decision:

Notwithstanding the pronouncement quoted above regarding the purpose for which Toronto East General Hospital adduced the alleged poor-performance evidence, the Tribunal's ruling on remedy (2010 HRTO 506) clearly reveals that the Tribunal relied on this evidence for its truth. This is what the Tribunal wrote on this point:

"In making my determination, I am instructed by the adage that
in order to solve a problem, a person first must recognize that
there is a problem. I did not see this from the applicant. As
a result, in my view, it is more likely than not that, even had
a performance management plan been implemented, the applicant is
unlikely to have been willing to accept and acknowledge her
performance deficiencies as a first step to correcting them.
Accordingly, I find that even if a performance managment plan had
been implemented, the applicant's employment as Manager still would
have been terminated by the respondent. In terms of the timing of
the termination, I find that a period of over one year for
implementation of a performance management plan is not unreasonable,
with the result that I find that the applicant's employment as
Manager would have been terminated on July 5, 2005 in any event."

Human Rights Tribuanl
Code of Conduct:

Article 43 of the Code of Conduct applicable to members of the Tribunal stipulates that -

"A member shall make each decision on the true merits and justice
of the case, based on law and on the evidence led before him or her."

Article 44 stipulates that -

"A member shall apply the law to the evidence in good faith and to the
best of her/her ability"...

Commentary and analysis:

Public policy in Ontario long has recognized the paramount importance which the right to be free from discrimination and harassment based on age and other enumerated grounds plays in our society. The legislative decision to enact laws and a system of adjudication to resolve these important claims is consistent with the quasi-constitutional nature of these rights. As laudable as these steps are, they are rendered meaningless when the body adjudicating those important legal rights has inadequate safe-guards to ensure that decisions are rendered in accorance with law. The Tribunal would be wise to have reconsideration applications which raise important questions of law touching on the fairness of a case referred to either the Chair or a full-board for review. In addition, the Tribunal and or law-makers in Ontario ought to review the very lementable condition which sees litigants like Mrs. Clennon spend significant sums of money to assert what is a quasi-constitutional right - often against state actors like Toronto East General Hospital and others - who spend public funds with impunity to defeat these rights and indeed the poor litigants and are unable to recover the cost of their legal representation in these proceedings. How can this be right ?

Note: This piece is written for the sole purpose of drawing attention to a matter of public importance in the community and to encourage public discourse.
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