Ofori v. Cara Operations Ltd.
1981-03-26
Ontario Board of Inquiry
CHRR Doc. 81-024
Mrs. Margaret Ofori Complainant
v.
Cara Operations Ltd. Respondent
Hearing Dates: August 12 and 13, 1980
Date of Decision: March 26, 1981
Place: Toronto, Ontario
Before: Professor Frederick H. Zemans, Ontario Board of Inquiry
Appearances by: Ms. Janet Minor, Counsel for the Ontario Human Rights Commission D. Churchill-Smith, Q.C. and M.J. Adario, Counsel for Cara Operations Ltd.
RACE, COLOUR AND PLACE OF ORIGIN — employment terminated
Summary: The Complainant, Ms. Margaret Ofori, alleged discrimination in employment because of her nationality, ancestry, place of origin, race and colour. Her dismissal after two years as a cashier for Cara Operations Ltd. followed an incident in which her cash float was short and this evidence of possible theft was the reason for dismissal given by the Respondent. Ms. Ofori's allegation of racist comments by her superior at work was not corroborated by other employees and the complaint of discrimination was dismissed.
DECISION
1. Appointment
1On April 15, 1980, I was appointed by the Honourable Robert Elgie, Minister of Labour, as a Board of Inquiry under the Ontario Human Rights Code to hear and decide the complaint of Ms. Margaret Ofori of Toronto, Ontario, alleging discrimination in employment by Cara Operations Limited, CN Tower, 55 York Street, Toronto, Ontario.
On August 12th and 13th, 1980, a hearing was held in the City of Toronto, at the County Court House, 361 University Avenue. Ms. Janet Minor appeared as counsel for the Ontario Human Rights Commission and Messrs. D. Churchill-Smith, Q.C. and M.J. Adario appeared as counsel for Cara Operations Limited.
2. The Complaint
2On July 23, 1979, Ms. Margaret Ofori attended at the offices of the Ontario Human Rights Commission at 400 University Avenue in Toronto, and there filed a complaint alleging discrimination in employment because of her nationality, ancestry and place of origin against Cara Operations Limited, its servants and agents, at the CN Tower, 55 York Street, Toronto. This complaint alleges a violation of s. 4(1)(b) of the Ontario Human Rights Code and was introduced and filed as an exhibit at the Board of Inquiry.
3The Ontario Human Rights Code, s. 4(1)(b) provides:
4(1) No person shall,
(b) dismiss or refuse to employ or to continue to employ any person; because of race, creed, colour, age, sex, marital status, nationality, ancestry, or place of origin of such person or employee.
4An amended complaint against the same Respondent was signed by the Complainant on March 24, 1980 alleging discrimination in employment on the additional grounds of race and colour. The amended complaint was introduced and filed as an exhibit at the Board of Inquiry. Counsel agreed that paragraph one of the particulars of discrimination in the complaint of March 24, 1980 should be amended to read March 1977 rather than 1976, and that paragraph two should be amended from Tuesday, July 9th to Tuesday, July 10th and Wednesday, July 10th to Wednesday, July 11th, 1979.
5It is necessary at the outset to make several observations:
(1) Although the complaint dealt with the termination of employment of Ms. Ofori, it was necessary for the Board of Inquiry to consider the relationship of the Complainant to Cara Operations and its employees during the two year period that she worked full-time and part-time for Cara Operations at the CN Tower. Although it was open to me under the Statutory Powers Procedure Act, S.O. 1971, c. 47, to have ruled inadmissible all evidence other than that directly relating to the issue set forth in the complaint, that is in relation to termination of employment, I chose not to do so to enable the Board to have a complete picture of the situation that existed at the CN Tower from the time that Ms. Ofori commenced work until her employment was terminated. It is my opinion that such a full hearing was necessary for the Board to ascertain whether the ultimate termination did contravene the Ontario Human Rights Code and that such a full hearing was in keeping with the general practice of Boards of Inquiry established in similar circumstances.
(2) Another reason for allowing a full hearing of all the evidence with respect both to the relationship of the Complainant and Cara Operations and to the employment practices of Cara Operations is the difficulty of the determination that this Board has to make. The responsibility of an inquiry board investigating discrimination has been discussed by Professor Stephen Borins as he then was in Linda Kennedy v. Mohawk College where he stated:
Discrimination on the ground of race or colour is frequently practised in a very subtle manner. Overt discrimination on these grounds is not present in every discriminatory situation or occurrence. In a case where direct evidence of discrimination is absent, it becomes necessary for the board to infer discrimination from the conduct of the individual or individuals whose conduct is in issue. This is not always an easy task to carry out.
The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises. In my view, such conduct to be found discriminatory must be consistent with the allegation of discrimination and inconsistent with any other rational explanation. This, of course, places an onus on the person or persons whose conduct is complained of as discriminatory to explain the nature and purpose of such conduct. It should also be added that the Board must view the conduct complained of in an objective manner and not from the subjective viewpoint of the person alleging discrimination whose interpretation of impugned conduct may well be distorted because of innate personality characteristics, such as a high degree of sensitivity or defensiveness.
3. The Facts
6The Complainant is a 28-year-old, married woman with one child. She was born in Ghana, West Africa. She moved to West Germany in 1972, where she lived for 4 ½ years, until moving to Canada in 1976. Ms. Ofori presently lives in Toronto.
7There were discrepancies between Ms. Ofori's testimony at