(Direct) Evidence - Like American Express - Never Leave Home Without It!
MB v. 557317 B.C. LTD. carrying on business under the name and style of T-Lane Transportation And Logistics (Can. Adj., 12 April 2018, Ib S. Petersen)
The Employer, a trucking company, claimed that the Complainant quit her employment after an alleged intimidating altercation with a fellow employee. The manager who alleged heard the “quitting” words relayed them to the witness, the Employer’s controller, and did not testify. The Employer failed to provide direct evidence and relied on hearsay. Under s. 242(2)(c) and s. 16(c) of the Code, an Adjudicator has a broad statutory authority to “to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not.” The Ontario Court of Appeal in Girvinv. Consumers’ GasCo., [1973] O.J. No. 2323, [1973] O.J. No. 814, 1 O.R. (2d) 421, 40 D.L.R. (3d) 509 (CA) and R. v. Barber, [1968] 2 O.R. 245, 68 D.L.R. (2d) 682 (CA), such evidence may lack cogency. The Complainant testified that she did not quit. In any event, on the facts, the employee did not “quit” but was fired.
The Employer also failed to provide direct evidence from the employee who claimed that the Complainant had engaged in intimidation. The Employer relied on the employee’s written account. The account was hearsay evidence. In Her testimony, the Complainant denied the allegations of intimidation. Ms. MB’s testimony, under affirmation and subject to cross-examination, was credible. In any event: “While she may have caused her chair to fall over, because of the manner in which she got up from it, and kicked a filing box, which in turn may have hit a filing cabinet. She slammed the door. However, she was in a highly charged emotional state. This was a brief and single incident. Her conduct was not premeditated. Ms. MB’s emotional state was the result of the Employer’s abusive, belittling, humiliating and disrespectfulconduct. There was a significant element of provocation on the part of the Employer. To the extent that her conduct was inappropriate, and in my view more than anything this was an emotional flare-up, it does not rise to the level of intimidation and threatening behaviour. On all of the evidence, I do not accept that Ms. engaged in threatening or intimidating conduct towards Ms. BE, or conduct that could reasonably be seen as such.”