FAQ's Cases - Stewart McKelvey

Section 10 of the Code defines harassment. It states:10(1) “harassment” means engaging in a course of vexatious commentor conduct that is known or ought reasonably to be known to beunwelcome[50] The applicant has the onus of proving, on a balance of probabilities that aviolation of the Code has occurred. A balance of probabilities means that it is morelikely than not a violation has occurred.Clear, convincing and cogent evidence isrequired in order to satisfy the balance of probabilities test. See F.H. v. McDougall,2008 SCC 53, at para.46.2012 HRTO 1455 (CanLII)[51] It is also appropriate to note here that in determining credibility, I follow theTribunal’s usual practice of relying on the test set out in Faryna v. Chorny, [1952] 2D.L.R. 354 (B.C.C.A.):The credibility of interested witnesses, particularly in cases of conflict of evidencecannot be gauged solely by the test of whether the personal demeanour of theparticular witness carried conviction of the truth. The test must reasonablysubject his story to an examination of its consistency with the probabilities thatsurround the currently existing conditions. In short, the real test of the truth of thestory of the witness in such a case must be its harmony with the preponderanceof the probabilities which a practical and informed person would readily recognizeis reasonable in that place and in those conditions…The principal issues to be decided in this case are:1) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in April and May 2007?2) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in June 2007?3) Did Mr. Castellano subject the applicant to harassment during their meetingon May 22?15