Fleming v. Byron Jackson Div., Borg-Warner (Canada) Ltd., 1982 CanLII 4874

Fleming v. Byron Jackson Div., Borg-Warner (Canada) Ltd.

1982-01-01

Ontario Board of Inquiry

ONTARIO

CHRR Doc. 82-032

Ray Fleming and Rupert Baptiste Complainants

v.

Byron Jackson Division, Borg-Warner (Canada) Limited Respondent

Date: January, 1982

Place: Toronto, Ontario

Before: Ontario Board of Inquiry, Frederick H. Zemans

Appearances by: Michael Bader, Counsel for Ray Fleming, Rupert Baptiste, and the Ontario Human Rights Commission Moira M. Trask, Counsel for Byron Jackson Division, Borg-Warner (Canada) Limited

BOARDS OF ARBITRATION — prior arbitration decision and its effect on human rights complaint — RES JUDICATA AND ESTOPPEL — prior arbitration proceeding — RACE, COLOUR AND PLACE OF ORIGIN — employment terminated

Summary: The Board of Inquiry dismisses the complaints of Ray Fleming and Rupert Baptiste alleging discrimination in employment and termination from employment on the grounds of race. The Board finds that the factual evidence presented does not support a finding of discrimination.

On a preliminary motion of the Respondent, the Board rules that a prior hearing by an arbitration board does not render the complaints res judicata and remove the jurisdiction of the Board of Inquiry.

The Board canvasses recent Canadian decisions on this point and adopts the rulings of Ian Hunter and John D. McCamus in Abihsira v. Arvin Automotive and Walter Hyman v. Southam Murray Printing. The Board finds that both the parties to the complaint under the Code and the provisions under which the complaint is filed are different from those in the grievance previously dealt with.

1On June 4, 1980 I was appointed to serve as a Board of Inquiry under the Ontario Human Rights Code by the Minister of Labour, the Honourable Robert Elgie, to hear and decide complaints made by Mr. Rupert Baptiste against Byron Jackson Division, Borg-Warner (Canada) Limited, 23 Bertrand Avenue, Scarborough, Ontario. The complaints allege that the respondent has engaged in discrimination in employment contrary to s. 4(1)(g) of the Code. As will be seen, Mr. Baptiste has lodged two complaints against the respondent Byron Jackson. The second complaint, dated November 27, 1978, mentions the complaint of August 10, 1978, but is primarily concerned with events that took place on November 15 and 22, 1978, which led to the termination of his employment on November 24, 1978. This second complaint appears to be the complaint which constitutes the principal subject matter of the appointment of June 4, 1980 and alleges that the respondent has engaged in discrimination in employment contrary to s. 4(1)(b) and (g), and s. 5(a), (b), (c), (d) and (e).

2On June 4, 1980, I was also appointed to serve as a Board of Inquiry under the Code by the Minister of Labour to hear and decide the complaints brought by Mr. Ray Fleming, of Willowdale, against Byron Jackson Division, Borg-Warner (Canada) Limited. Mr. Fleming has lodged two complaints against the respondent company, pursuant to the Human Rights Code, the first dated August 10, 1978 alleging discrimination in employment contrary to s. 4(1)(g) of the Code as well as a second complaint dated November 27, 1978 alleging discrimination in employment pursuant to s. 4(1)(b) and (g) and s. 5(a), (b), (c), (d) and (e).

3In essence, the four complaints against the respondent employer relate to a series of incidents, culminating in the dismissal of both Mr. Fleming and Mr. Baptiste, in which they both allege that various servants and employees, acting on behalf of the employer, Byron Jackson, acted in a discriminatory manner contrary to the Ontario Human Rights Code. Having reviewed the contents of the four complaints and having come to the conclusion that the evidence relating to the complaints against the employer made by Mr. Baptiste would be substantially similar to those made by Mr. Fleming, I determined that it would be appropriate to convene a hearing which would entertain submissions and evidence with respect to the complaints of both Mr. Baptiste and Mr. Fleming. Accordingly, notices of hearing to be held on September 29, 1980 were forwarded to the parties to both matters and a hearing was convened on that date.

4At the commencement of that hearing, Ms. Trask, counsel representing the respondent employer, indicated that she wished to raise a number of preliminary objections. She submitted that Baptiste and Fleming had grieved their dismissals by the respondent and their grievances were heard by a three person arbitration board pursuant to the provisions of the collective agreement (Exhibit 6) and the Ontario Labour Relations Act, R.S.O. 1970, c. 232 as amended. The award of the arbitration board was handed down on January 23, 1980.

5Ms. Trask, counsel for the respondent, presented three major arguments relating to the effect that the above award should have on these proceedings:

1. That all of the issues to be dealt with in this inquiry were previously dealt with at the grievance arbitration (with the exception of two issues not pressed at this hearing) and therefore the matter is res judicata and the present hearing should not proceed.

2. In the alternative, there is issue estoppel at least as between Fleming and Baptiste and the company, and that the Ontario Human Rights Commission should only be allowed to proceed to the extent that there is a different cause of action involving the Commission.

3. In the alternative, that the arbitration award should be admitted in evidence.

First Issue

6The major issue is whether or not the basic requirements for res judicata have been met. The respondent company herein asserts that the true parties in both proceedings are the complainants and the company and that the Commission should therefore be bound by the award made by the arbitration board. Spencer-Bower on the Doctrine of Res Judicata, 2nd ed. (1969) (p. 19) sets out six criteria necessary for a finding of res judicata. Criteria five and six are identity of subject matter and identity of parties respectively. The law of res judicata was reviewed by the Supreme Court of Canada in Town of Grandview v. Doering, 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621. The Supreme Court agreed that identity of subject matter and parties were necessary for res judicata to apply.

7Section14(b)(1)(a) of the Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended, makes the Ontario Human Rights Commission a party to a proceeding before a Board of Inquiry. The Commission was not a party to the arbitration hearing.

8In Yee v. Gim, [1978] W.W.R. 733 at 747 (B.C.S.C.) the court pierced the corporate veil to find sufficient identity of parties. The court went on to cite Lord Reid in Carl Zeiss Stiftung v. Raymer and Keeler Ltd., [1967] 1 A.C. 853 at 915, as stating "there must be a sufficient degree of identification between the two to make it just to hold that a decision to which one was a party should be binding in proceedings to which the other is a party."

9The issue of res judicata has been considered by three Ontario Human Rights Commission Board of Inquiry.

10In Abihsira v. Arvin Automotive and Markham (1980), Professor lan Hunter rejected the argument that a previous arbitration award against the complainant made the matter of employment discrimination res judicata. At p. 10 of the decision Hunter stated:

... [T]he parties are not the same; the Ontario Human Rights Commission was not a party to the arbitration proceeding; by s. 14(b)(1)(a) of the Code the Commission is not only denominated as a party to the Board of Inquiry proceedings, but also the party "which shall have carriage of the complaint".

However, Professor Robert W. Kerr, Chairman of an Ontario Human Rights Commission Board of Inquiry, in Avtar Singh v. Domglas Ltd. (1981), held that the presence of the Commission did not effect the issue of res judicata. He stated at p. 4:

If the party filing the complaint has no basis for the complaint because of an arbitration award, then I do not see how the presence of the Commission as a party can add anything to the matter. The Commission has, of course, the option of initiating a complaint under s. 13(3) of the Code, and it should do so if it does not wish to be bound by the rights between particular complainants and respondents.

This latter view was rejected by Professor John D. McCamus, Chairman of an Ontario Human Rights Board of Inquiry, in Walter Hyman v. Southam Murray Printing and The International Brotherhood of Teamsters, Local 419 (1981). At pp. 24–25, Professor McCamus wrote that in grievance arbitration proceedings the actual parties are the employer and the union and therefore the union has carriage and control of the complaint. The union could settle or withdraw the grievance without the consent of the individual grievor. Thus, not only is the process very different from Human Rights Code proceedings but so are the parties.

11I prefer the view of Professors Hunter and McCamus. The addition of the Human Rights Commission as a party is not a mere formality which has no effect on the Inquiry. The duties and obligations of the Commission to these complainants in particular and the residents of Ontario in general is very much a fundamental aspect of the administration of the Code.

12Counsel for the respondent company urged that the subject matter in the two proceedings is the same. It was argued that Article 12 of the collective agreement between the respondent and The International Association of Machinists and Aerospace Workers on behalf of its Toronto Local Lodge No. 235 (Exhibit 6) is a non-discrimination clause which was considered when the arbitration board dealt with the issue of "just cause for dismissal". Counsel for the respondent relied on McLeod v. Egan et al. (1974), 1974 CanLII 12 (SCC), 46 D.L.R. (3d) 150, for the view that in making their decision the Board of Arbitration would have had to consider the Ontario Human Rights Code.

13There is support for the view, however, that even if the Human Rights Code was considered by the Board of Arbitration that the subject matter of the two proceedings are not the same. Article 12 of the Agreement reads:

There shall be no discrimination or coercion by either party against any employee because of membership or non-membership in the union, race, creed, colour, national origin, or age.

Article 12 is clearly differently worded and is more restrictive than s. 4 of the Human Rights Code. As well, neither the employer-union contract nor the Board of Arbitration contemplate the provisions of s. 5 of the Human Rights Code.

14The arbitration proceedings were launched pursuant to the collective agreement and flow from the provisions of the Ontario Labour Relations Act, R.S.O. 1970, c. 232. The purpose of the Labour Relations Act is set out in its preamble:

... to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.

These proceedings are launched pursuant to the Ontario Human Rights Code. The Code's preamble states clearly the purpose of human rights legislation in Ontario.

Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And whereas it is public policy in Ontario that every person is free and equal in dignity and rights without regard to race, creed, colour, sex, marital status, nationality, ancestry or place of origin;

And whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature;

And whereas it is desirable to enact a measure to codify and extend such enactments and to simplify their administration;

It is my opinion that the Ontario Human Rights Code was introduced because it was recognized by the Ontario Legislature that existing Ontario legislation was inadequate in its protection of employees. This position has also been taken by Mr. John I. Laskin in an article entitled "Proceedings Under the Ontario Human Rights Code", published in the 1980 Advocates' Quarterly. Mr. Laskin writes at p. 290 that one possible reason for the enactment of the Ontario Human Rights Code was a belief by the legislature that "the grievance-arbitration machinery was not adequate to protect employees from discrimination".

15This latter consideration leads to the policy issues involved in this matter. In the Abihsira case, Professor Hunter considered the case of Alexander v. Gardner Denver (1974), 415 S.Ct. 36, a decision of the United States Supreme Court. In the Alexander case the issue was whether an employee's statutory rights under Title VII of the Civil Rights Act were foreclosed by a submission of his claim to an arbitration board under a non-discrimination clause. Justice Powell, in writing the unanimous decision of the court, held that the provisions of Title VII were an additional right to American citizens which was not forfeited or foreclosed by the use of private remedies. He stated at p. 54 that, "the employee is not seeking review of the arbitrator's decision. Rather he is asserting a statutory right independent of the arbitration process". The Alexander decision asserts that the clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination. The United States Supreme Court found that Title VII's purpose and procedures stated that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the non-discrimination clause of a collective bargaining agreement (Id. at 48–49). These issues were considered and adopted by Professor Hunter in the Abihsira decision. On the possibility of conflicting holdings in an arbitration award and a subsequent Board of Inquiry, Professor Hunter wrote that:

It may be ... that precisely the same facts and the same issues will emerge ...; if that happens, the unfortunate possibility exists of different findings and inconsistent decisions ... But that would not affect the jurisdiction of an arbitration board, properly constituted, to decide the grievance, nor the jurisdiction of a board of inquiry, properly appointed, to decide the complaint of discrimination. Even if the facts relating to the grievance and the complaint were in all respects identical, in my opinion both tribunals would have jurisdiction since they exist for different purposes and they derive their authority under different statutes and can order different remedies (supra at p. 5).

Professor Kerr, in Singh v. Domglas Ltd. (supra), was urged to follow the reasoning of the United States Supreme Court in Alexander v. Gardner-Denver Company. He declined to follow the reasoning in the leading American decision and at p. 5 wrote:

In the United States, where very limited weight is given to arbitral decisions in human rights cases, labour arbitration is a wholly voluntary matter. In Ontario, however, parties to a collective agreement are compelled by law to establish an arbitration procedure. (In most other provinces, the parties are virtually compelled to an arbitration procedure since they must adopt it in the absence of a satisfactory alternative.) This clearly places our arbitration boards in a position deserving greater respect than such boards in the United States.

Professor Kerr went on to find that Boards of Inquiry, pursuant to the Ontario Human Rights Code, should accept a prior arbitral award unless the arbitration proceedings were unfair or inconsistent with the Human Rights Code. Professor Kerr's findings on res judicata were in any event obiter dicta as he found that in the arbitration award in Singh v. Domglas Ltd. there had been no consideration of the question of discrimination.

16With respect, I cannot accept Professor Kerr's reasoning on these issues. I do not accept that the relative status of arbitration boards in Canada as compared to the United States is sufficient basis for overlooking the reasoning of the United States Supreme Court in Alexander v. Gardner-Denver Company. I am also concerned that following Professor Kerr's reasoning on res judicata would discourage citizens from initiating grievance arbitrations pursuant to collective agreements prior to resorting to the procedures of the Human Rights Code.

17I think it is important to note some of the significant distinctions between the decision-making process under the Ontario Human Rights Code and in a labour arbitration in Ontario. These issues are discussed at length in the decision of Professor John D. McCamus in Hyman v. Southam Murray Printing. Some of the unique features of the Human Rights Code are:

1. A complaint is taken to a public body, the Ontario Human Rights Commission, whose exclusive mandate is to investigate such complaints and to seek their resolution. Prosecution of the complaint is by the Commission which has no on-going relationship with the respondent, which is in contrast with the labour arbitration setting where the union handles the individual employee's grievances within the context of their on-going administration of the collective agreement.

2. There are much broader powers of appeal conferred upon parties to a hearing, pursuant to the Ontario Human Rights Code, than in the labour arbitration situation. Section 14(d)(4) gives to the Supreme Court of Ontario broad powers of review on questions of both fact and law and allows the court to substitute its opinion for that of a board of inquiry.

3. The investigation of a complaint by the Ontario Human Rights Commission is of a significantly different quality than would be undertaken in a labour grievance. Section 14 requires the investigation of all complaints filed with the Commission and gives to it broad powers of inspection of documents and premises. The Commission is expected to both investigate and to endeavour to settle complaints and only after this process is completed can the Commission recommend to the Minister of Labour that a board of inquiry be appointed.

18Upon review of the provisions of the Ontario Human Rights Code, I am convinced that the Ontario legislature has created a unique and highly comprehensive process for dealing with human rights cases. I do not accept the submission that the respondent has been prejudiced by being subjected to two hearings or that res judicata is an applicable doctrine. I rather perceive the legislation as protecting both employers and employees from frivolous complaints and potentially vexatious employees. The Commission has an obligation to investigate and to attempt to settle as well as to assess the legitimacy of the complaint. The Commission may choose not to proceed with a human rights complaint in cases where it feels that an arbitration hearing has adequately dealt with the discrimination issue. Similarly, s. 14(a)(1) specifically grants to the Minister of Labour discretion to appoint a board of inquiry. In my opinion this is another significant distinction from the labour arbitration situation and a further protection against vexatious proceedings.

6746A Professor McCamus, in Hyman v. Southam Murray Printing, states:

In addition to this policy of favouring recognition of rights of access to the remedial scheme of the Code for aggrieved individuals, the provisions of the Code also manifest the presence of a public interest in the investigation and resolution of discriminatory conduct which stands apart from the immediate interests of the individual complaint.

Under Section 14(1) of the Code, where a complaint has been filed with the Commission, the Commission must make an inquiry into the complaint and attempt to achieve a settlement. Where it appears that the complaint cannot be settled, the Commission may recommend to the Minister that a Board of Inquiry be appointed. The complainant has no direct access, then, to the Board of Inquiry mechanism. The evident purpose of the statute is that a screening function of some kind be performed by the Commission at this stage of the investigation of the complaint. The frustrations of an individual who perceived himself to be the victim of racial discrimination would be seriously intensified if, after his complaint has been investigated and subjected to this screening process by the Commission, a Board of Inquiry were to conclude that it was precluded from investigating the matter as a result of a prior and unsuccessful grievance arbitration. Although the individual's complaint was unsuccessful in the grievance process, a public body charged with the investigation and enforcement of human rights in the province has come to the conclusion that further litigation of the dispute is worthy of public support through the mechanisms established in the Code.

In summary, the comprehensiveness and the accessibility of the enforcement mechanisms established by the Code, together with the specific role assigned to the Commission by the Code strongly suggests a legislative intention which is inconsistent with the idea that boards of inquiry would be precluded from conducting an investigation, once appointed, by the result of a previous grievance arbitration. These factors, together with the absence of any explicit direction on this point in the Code itself, lead me to the conclusion that any rights which may be conferred on an individual through a collective bargaining regime to seek resolution of complaints of discrimination in the workplace must be considered to be additional to those rights conferred by the Code and should not be considered to restrict the accessibility of the remedial scheme of the Code to individuals covered by such schemes.

Finally, the status of boards of arbitration in Ontario is determined by legislative policy considerations that have little, if anything, to do with the relative status of labour arbitrations and human rights tribunals.

19I find support for the view that the rights and remedies arising out of the Human Rights Code are unique and cannot be withheld from an individual because of prior resort to the grievance – arbitration process [sic] in the Supreme Court of Canada decision of The Board of Governors of the Seneca College of Applied Arts and Technology v. Pushpa Bhadauria (June 22, 1981, unreported 1981 CanLII 29 (SCC), 2 C.H.H.R. D/468]).

20The issue in that case was whether a new intentional tort of discrimination could exist, drawing its standards from the public policy expressed in the Human Rights Code. Chief Justice Laskin, for a unanimous court stated:

In my opinion, the attempt of the respondent to hold the judgment in her favour on the ground that a right of action springs directly from a breach of the Ontario Human Rights Code cannot succeed. The reason lies in the comprehensiveness of the Code in its administrative and adjudicative features, the latter including a wide right of appeal to the courts of both fact and law (Id. at 2).

After going through the provisions of the Code itself, Justice Laskin stated at pp. 13–14:

The Ontario Court of Appeal did not think that this scheme of enforcement excluded a common law remedy, saying in the words of Wilson J. A. (which I repeat):

... Nor does the Code, in my view contain any expression of legislative intention to exclude the common law remedy. Rather the reverse since s. 14(a) appears to make the appointment of a Board of Inquiry to look into a complaint under the Code as a matter of ministerial discretion.

I would have thought that this fortifies rather than weakens the legislature's purposes, being one to encompass, under the Code alone, the enforcement of its substantive prescription.

21Thus, the argument that the issues referred by the Minister of Labour to this tribunal are res judicata fails on both grounds. The parties are not the same in this hearing as those before the arbitration tribunal. The Commission's involvement in the complaint is much more than a formality or of mere symbolic value. The subject matter of the proceedings is not the same in both hearings and public policy dictates that the present Inquiry should proceed. Clearly the purpose of this Board and its duties as set out in s. 14(c) of the Code are not those of an arbitration board. Further, the remedies available are very different as are the rights of appeal and the scope of judicial intervention. Citizens who have initiated proceedings pursuant to the Ontario Human Rights Code are entitled to a full hearing of their complaint if a Board of Inquiry is ordered by the Minister of Labour.

Second Preliminary Issue

22The argument made here is that certain issues raised and decided upon in the arbitration proceedings as between the complainants and the respondent company can still bind other parties. Support for this argument is found in the Supreme Court of Ontario's decision in Nigro v. Agnew Surpass Shoe Stores Ltd. (1977), 1977 CanLII 3406 (ON HCJ), 18 O.R. (2d) 215. The case dealt with the liability for damages which resulted from a shopping plaza fire. An earlier decision has assigned liability for the fire to one of the defendants. The court held that the plaintiff, who had not been a party to the first action, could only sue the defendant who had been found liable in the first action, and that the defendants could not relitigate the question of liability between themselves. Mr. Justice Weatherston stated that:

The several defendants and the third party have had their day in court, and as among themselves the issue as to liability for the fire has been determined. It ought not to be open to any of them to have that same issue retried in actions by plaintiffs who suffered damages in the same fire. The plaintiffs, by bringing this motion, have identified themselves with the plaintiff in the first action, and it is not open to them now to blame any of the defendants other than Agnew-Surpass.

23It was argued that issues decided between Fleming and Baptiste and the respondent could be binding on the Commission at this hearing. However, there appear to be two problems with this approach. First, there is American authority, to the effect, that such an extension of the traditional res judicata doctrine only extends in one direction. This view would hold, for example, that had the court in the earlier decision in the Nigro case not made a finding of liability that the plaintiff would be forced to relitigate the matter against all the defendants. (See discussion, Watson, Borins and Williams, Canadian Civil Procedure, 5-18–5-27.) It should be noted that the Nigro decision is a departure from the more traditional view of res judicata and there does not appear as yet to be further Ontario authority in this direction. If the American position, discussed above, were accepted, the company's argument might well depend upon whether or not the arbitration made a finding of discrimination.

24If the respondent's argument on this point was accepted, the question would arise as to which issues presently before this board were decided upon or considered by the arbitration board. The factors discussed in Issue One are relevant here. It should be noted that this question is made extremely difficult given the absence of a transcript of proceedings before the arbitration board. The grievance award itself is not sufficient to determine the question.

25In my opinion, the second preliminary issue is an extension of the first preliminary issue. I do not accept that the Ontario Human Rights Code in any way restricts the discretion of a board of inquiry to fully investigate a human rights complaint. I do not believe that res judicata or specifically issue estoppel as developed in the concept of Nigro v. Agnew Surpass are applicable to the prosecution of human rights complaints. The fact that the concept of issue estoppel as articulated in the Nigro case has not been followed by appellate courts in Ontario or elsewhere in Canada underlines the embryonic state of the concept of issue estoppel in this country.

26Therefore, I do not accept that issue estoppel can properly be applied to the issues in these proceedings.

Third Preliminary Issue

27This issue raises two major questions: Is the arbitration award admissible and if so, what weight, if any, should be given to it?

1. Is the award admissible? Section 15(1)(b) of the Statutory Powers Procedure Act, 1971, c. 47, allows the board to admit as evidence, "any document or thing relevant to the subject matter of the proceedings and may act on such evidence". Section 15(1) seems to contemplate the admission of hearsay evidence. (See Lynch v. City of Ottawa (1975), 7 L.C.R. 7 at 9, where the Land Compensation Board of Ontario admitted hearsay evidence from an appraiser's report.) Thus, the fact that the arbitration award is hearsay is not necessarily fatal.

28The issue as to whether or not the award is relevant is to some extent governed by the factors discussed in Issues One and Two. In a broad sense, because of consideration at arbitration of Article 12, the award would appear to be relevant, although as discussed above, it would be hard to decide on what particular issues.

29There is American authority for admitting such evidence in proceedings similar to the ones at present. In Alexander v. Gardner-Denver (supra), the United States Supreme Court stated that the arbitraral decision may be admitted in evidence.

2. What weight should the award be given? If the award is admitted there is no Ontario authority dealing with what, if any, weight it should be given. The Alexander decision set out some factors to be considered in deciding weight such as: the similarity of the agreement or contract provision with Title VII; the degree of fairness in the arbitral forum; the adequacy of the record; and any special competence of the arbitrators. However, the court concluded by saying that it should be remembered that, "Congress, in enacting Title VII, thought it necessary to provide a judicial forum for the resolution of discriminatory claims. It is the duty of the courts to assure the full availability of that forum."

30As discussed above, there is no transcript of the arbitration board hearing and therefore no way to judge its procedural fairness, what issues were dealt with, and to what extent. Ms. Trask's offer of providing her notes does not remedy the problems created by the absence of a transcript.

31There is a strong case for admitting the award as evidence. However, it should be given very little weight for the reasons discussed above. This Board has the duty and opportunity of hearing the witnesses and making its own decision. The award cannot really aid in fulfilling this duty, and indeed, may prejudice its fulfillment.

32I have considered the arbitration award and found it to be of little evidentiary value. The issues in this case rest to a very large extent on the relative credibility of the witnesses. The award was based on that board's assessment of the credibility of several witnesses, and there being no transcript of the hearing, I have no way of evaluating the evidence or the decision. Furthermore, although the issue of discrimination was discussed by the board there is no clear enunciation by the board as to what extent they considered the substantive provisions of the Human Rights Code and the standards of proof and onus of proof applied to the anti-discrimination clause of the Collective Bargaining Agreement.

33I therefore find that although the award is admissible, little weight should be given to its findings in this Inquiry.

The Evidence

34The complaints of Mr. Baptiste and Mr. Fleming alleged that they had been discriminated against in their employment on the basis of race, colour, ancestry and place of origin, in violation of s. 4(1)(b) and (g) of the Ontario Human Rights Code and had been terminated from their employment for filing a complaint with the Commission in violation of s. 5(a), (b), (c), (d) and (e) of the Ontario Human Rights Code.

Section 4(1)(b) and (g) of the Code states:

4(1) No person shall.

(b) dismiss or refuse to employ or to continue to employ any person;

(g) discriminate against any employee with regard to any term or condition of employment;

because of race, creed, colour, age, sex, marital status, ancestry or place of origin of such person or employee.

Section 5(a) to (e) states:

5. No person shall,

(a) refuse to employ or continue to employ any person;

(b) threaten to dismiss or threaten to penalize in any other way any person in regard to his employment or any term or condition thereof;

(c) discriminate against any person in regard to his employment or any term or condition thereof; or

(d) intimidate or coerce or impose any pecuniary or other penalty upon any person,

on the ground that such person,

(e) has made or may make a complaint under this Act.

35Thus, there are two issues which must be addressed by this Board of Inquiry.

1. Were Mr. Baptiste and/or Mr. Fleming discriminated against in their employment by Byron Jackson on the basis of race, colour, nationality or place of origin?

2. Did Byron Jackson, through its officers or employees, dismiss, discriminate or intimidate Mr. Baptiste and/or Mr. Fleming as a result of their complaint to the Commission?

36It should be noted that the oral evidence relating to this inquiry was very lengthy and the hearing transcripts filled eight volumes. Within those eight volumes there was practically no significant piece of evidence tendered by either party which was not disputed or contradicted by witnesses for the opposing party. With much of the evidence it is difficult to determine where the truth lies. Due to the sheer volume of this contradictory evidence, I do not intend to discuss or assess at any length evidence which is of border-line relevance or probative value. Rather, I shall only detail and deal with those facts that were substantiated or placed in issue at this Inquiry.

37Mr. Ray Fleming is a black person who was born in Trinidad. He became a welder in Trinidad after a five year apprenticeship. After a year of working as a welder he came to Canada in September, 1970 and became a landed immigrant in May, 1971. After several temporary jobs Mr. Fleming was hired by Massey-Ferguson as a "MIG" welder where he was employed for nearly two years; leaving to take a higher paying position as a welder at Atomic Energy of Canada. Eight months later, due to lay-offs at Atomic Energy of Canada, Mr. Fleming obtained another welding position with Lummus, at a heavy water plant on Lake Huron. Again, due to lay-offs, Mr. Fleming left Lummus in November, 1977, at which time he applied for employment as a welder with the respondent, Byron Jackson. Mr. Fleming was initially interviewed by Mr. John Narraway who gave him a welding test. After a subsequent meeting with Mr. McLachlan, the respondent's Personnel Manager, Mr. Fleming was employed in February, 1978 by the respondent on a probationary basis. The probationary period was 95 days.

38Mr. Baptiste is a black person who was born in Grenada. Mr. Baptiste attended trade school during his school holidays in Grenada to learn the welding trade. He came to Canada in 1972 and became a landed immigrant in 1973. In Canada, Mr. Baptiste was first employed by Nu Mode Dress Company. At the same time he took night courses at Danforth Technical School to upgrade his welding skills. After six months training Mr. Baptiste obtained a spot welding job at the Erno Manufacturing Co., Scarborough, where he worked for just over a year. He left this position to work at A.C.S. Ltd. as a spot welder. While working at A.C.S. Ltd. Mr. Baptiste was actively looking for other employment. As a result of his having arrived late one day, he was dismissed by A.C.S. Ltd., only a month after he had commenced employment. Counsel for the respondent raised the issue of Mr. Baptiste's honesty in relation to his termination of employment by A.C.S. Ltd. since Mr. Baptiste indicated to the respondent, when applying for employment, that he had been laid off by A.C.S. Ltd., (Exhibit 16) whereas his oral testimony was that he was fired (Evidence at V.II, p. 104). I attach little if any significance to this inconsistency between the written application and oral testimony.

39After leaving A.C.S. Ltd. Mr. Baptiste was employed for two years at Malcan Industries as a welder. He then worked at O'Connor Tank Ltd. This employment lasted less than a year as the shift work was affecting his health. Mr. Baptiste then applied to the respondent, Byron Jackson, for employment and after two interviews was hired as a welder in February, 1978.

40At this time, the welding division of Byron Jackson employed seven welders, of whom six, including the complainants, were non-white. It must be said at this point that all the supervisory and management personnel relevant to this inquiry were white. Mr. McLachlan, who was the Personnel Manager at Byron Jackson at the time the complainants were employed there, testified that 25 to 30 percent of the employees in the plant were non-white, and that 20 percent of the foremen in the company were non-white. Although both Mr. Fleming and Mr. Baptiste alleged that the respondent practiced a discriminatory promotional policy by favouring the promotion of whites as opposed to equally qualified non-whites, the Commission led no evidence on this point. As a result of this lack of evidence I cannot make a finding on this point and shall regard it as a non-issue in this inquiry.

41Both Mr. Fleming and Mr. Baptiste started their employment with Byron Jackson in February, 1978. At first, they worked on the day shift where their foreman was John Narraway.

42Mr. Fleming testified that Mr. Narraway was immature and was overly critical of his work. Mr. Baptiste also found John Narraway to be critical of his work but accepted this as "normal procedure, because I'm a beginner" (Evidence V.II, p. 117). Mr. Fleming alleged that Mr. Narraway told racially offensive jokes. As a result of this, Mr. Fleming and Mr. Baptiste complained to the Plant Superintendent, Mr. Mahaffey (Evidence V.I, pp. 107–109). Shortly afterward Mr. Narraway was re-assigned to another department. It is not clear whether this re-assignment occurred as a result of Fleming and Baptiste's complaint or for other reasons.

43At this stage of their employment, there appears to be no evidence of racial discrimination on the part of the respondent towards the complainants. In fact, if Mr. Narraway was re-assigned as a result of Mr. Fleming's complaints (which the respondent denies) as Fleming testified, then this seems indicative of a positive attitude on the part of management towards the complaints of its employees.

44When the complainants were switched to the night shift their new foreman was Peter Givens. While on the night shift they worked with another welder named Kim Sung Bae, an oriental person.

45The evidence of both complainants was that initially they had a good rapport with Mr. Givens. Indeed, Mr. Fleming testified that when he was having problems with John Narraway, Peter Givens was very receptive to his complaints:

Fleming:

As a matter of fact, Peter Givens was in there one time and he didn't find it funny what John was saying about this black guy that he used to know, and when he came out of the office he told me that he really wished John would quit doing things like that.

Eventually, Peter suggested that we take the matter up to Mr. Mahaffey, who was the Plant Superintendent.... take it up ourselves (Evidence V.I, pp. 107–109).

46Unfortunately, the relationship between the two complainants and Peter Givens later deteriorated. However, both complainants testified that this occurred because they refused to participate in a union decertification drive that Givens had asked them to join. Neither complainant attributed the initial problem with Givens to racial discrimination (Fleming, Evidence V.II, pp. 10–11; Baptiste, Evidence V.II, p. 124).

47At this point, I will deal with the first significant disciplinary incident involving the complainants – the alleged refusal of the complainants to clean up their work areas on July 17, 1978. The evidence of Fleming and Baptiste on this issue was not entirely consistent, and furthermore, both complainants' evidence was entirely inconsistent with that of Givens.

48Fleming testified that a written order was left to "clean up the whole shop" and that he and Baptiste went to the shop steward who told them to just clean up their own work areas, which they did. He also stated that they were later called into Peter Givens' office who read them some of the company's rules and regulations.

49Baptiste's evidence was that a written order was left in Harry Bletcher's handwriting to "clean up the whole shop". After cleaning his work area he went to the shop steward who approved his work. Baptiste and the shop steward then went to see Peter Givens who told them that all they had to do was clean their work areas. Baptiste could not recall being called into Givens' office and being warned about insubordination or being read the company's regulations (Evidence, V.III, pp. 36–43).

50Peter Givens testified that he gave the complainants a verbal order to clean up their work areas to which they responded by saying that the shop steward had told them it was not their job. He took both of them to see the steward's work area (which had been cleaned by the steward). Givens then went looking for the steward and asked him whether he had told the complainants not to clean their work areas. The steward replied that he had never said that. The following day he called them into his office and pointed out the company regulations (Evidence V.II, pp. 63–67). Mr. Givens also produced a memo (Exhibit 21) outlining what was discussed at this meeting. The memo indicates that Plant Safety Guide Rules and Regulations numbers 2, 4, 5 and 6 were explained and "they were told by me that all above and other rules and regulations must be observed and followed. Also, they were told that if the above was not followed there will be disciplinary actions taken by the company".

51Several things disturb me about each version of this incident. The fact that Baptiste does not recall ever being called into Givens' office on July 18, 1978 throws the rest of his evidence into serious doubt. Givens' evidence that the two complainants claimed it was not their job to clean up does not tie in with the fact that these men had been working at Byron Jackson for over five months without any complaints about having to clean up their areas. Finally, why did Givens, in Exhibit 21, not expressly state the alleged reason the two men were called to his office – to be verbally warned about their insubordination on July 18, 1978. Baptiste's evidence that he explained to Givens that they had been given an order, to clean the whole shop does not agree with the fact that the meeting was called at all, since his explanation would excuse him from a charge of insubordination.

52The question still remains whether this incident, recounted in any version, is evidence of racial discrimination. I find on the evidence before me that it is not. There is no evidence of any racial comment made by Givens and in fact Fleming stated that Givens did not like hearing racist remarks (supra) made by others. The evidence does indicate some problems between the complainants and Givens regarding their inter-personal relationships. However, such evidence on its own cannot form the basis of a finding of discrimination under the Ontario Human Rights Code.

53The next incident relating to the two complaints occurred on July 20, 1978, and involved Baptiste fainting in the plant and subsequent racial remarks allegedly made by Keith Clarke, who at the time was Production Control Manager for the respondent, Byron Jackson. The incident occurred during the evening shift which started at 4:00 p.m. and ended at 2:00 a.m. It was a very warm summer evening and there is no doubt that the temperature inside the plant was extremely hot, although the estimates of the witnesses range from 98^o to 144^o. Fleming testified that he saw Baptiste in a semiconscious state. He then ran over to Givens and Clarke and told them Baptiste was sick. He stated in his evidence that:

I said, "Well, it looks like he's [Baptiste], you know, delirious or something, he passed out or something." And he [Givens] tried to talk to Rupert and he said, then the other guy said that, this is Mr. Clarke, he said "Oh, come on it can't be the heat bothering you, you guys are from the West Indies, you should be used to the heat." (Evidence, V.I, p. 118).

Baptiste was then taken outside and eventually taken to the hospital. In examination-in-chief Fleming stated that he did not complain to management about the remark by Clarke (Evidence V.I, p. 124), although in cross-examination he states that he may have complained to Mr. Mahaffey. The remark was mentioned in the complaints filed with the Commission. Fleming also stated in cross-examination that he stayed at the plant to finish his shift (Evidence, V.II, p. 133). I will deal with this point later.

54Baptiste's evidence does not differ from Fleming's except that he did not know who the person with Givens was and did not hear any racial remark (Evidence, V.II, pp. 142–143). This is quite understandable considering the fact that he was in a dazed or disoriented condition and may have blacked out only moments earlier. His only complaint about the way the situation was handled by the company was that they were, in his opinion, uncooperative in his attempt to get Workmen's Compensation benefits for his treatment and loss of hours. Under cross-examination, he was asked:

Q. Did any of this incident have anything to do with race?

A. No.

Q. It had nothing to do with race?

A. No, it had nothing to do with race at the time. (Evidence, V.III, p. 48).

55Needless to say, Mr. Clarke, in his evidence, denied ever making any racial comments about Mr. Baptiste at all (Evidence, V.III, p. 10).

56Peter Givens did not expressly deny that the remark was made, although he did deny hearing it (Evidence, V.III, p. 117). Givens also gave evidence that both Mr. Kim Sung Bae and Mr. Fleming went home early that night – at about 10:00 p.m. They were both told to bring doctor's notes if they were to be paid for an upcoming holiday since July 20, 1978 was a "qualifying day" for the holiday (Evidence, V.II, pp. 75–76). This evidence is substantiated by Exhibit 23 – a memo written by Givens relating to the fainting incident and the time cards for Kim Sung Bae and Fleming (Exhibits 24 and 25), and conflicts with Fleming's evidence that he completed his shift.

57Mr. Fleming was the only witness to the alleged racist remark made by Clarke. I do not accept counsel for the respondents submission that this infers that he was lying. One has to remember that a man had just collapsed from the heat in the plant and everyone present would have been concerned about that. Givens was worried about Baptiste's health and would not have been listening to everything that was said. Fleming appears to be quite sensitive about such remarks and it is possible that it remained in his memory. It is the kind of remark that Clarke may have made quite flippantly and thus he would be unlikely to remember it. However, Fleming's memory of that day's events is brought into serious question by the fact that he does not recall leaving early that night nor does he recall ever reporting the allegedly racist remark to senior management personnel.

58In any event, one could hardly call this evidence of the respondent's racist policies when it was never reported. If Fleming had reported the remark to management and it had been substantiated, the company would clearly have been obliged to reprimand Clarke and make it clear to its employees that such comments could not, and would not, be tolerated.

59The plant was shut down for vacation from July 21, 1978 to about August 8, 1978. The next incident I will deal with – the weld rod requisition incident – occurred the day after the shutdown ended, August 10, 1978. On that day, both Fleming and Baptiste refused an order given by Givens to fill out their weld rod requisition forms and as a result were suspended for three days for insubordination. I do not intend to wade through all of the evidence relating to this incident. It was clear from the evidence of Fleming, Baptiste, Givens and Mahaffey that there was a considerable amount of confusion on the new procedures for filling out weld rod requisitions. After both complainants refused to fill in their forms, Givens called the shop steward and Mahaffey to his office and the five men had a discussion. The complainants claimed to be simply complying with a posted memo which stated that the foreman was responsible for completing the forms. Furthermore, Fleming stated that Givens had filled in Kim Sung Bee's form and therefore was treating Fleming differently. However, Givens stated that he was simply completing Kim Sung Bae's form because some of the numbers did not go through to the carbon copy. The evidence shows that, initially, when Baptiste refused to fill in his form, Givens capitulated and did it for him (Evidence, V.II, p. 71). Despite the confusion it is clear that the procedures were explained to the complainants, that they were told to fill in the form and that they still refused to comply. The complainants were suspended for the remainder of the shift and this was then increased to three days by the respondent company.

60There are no facts in this entire incident that could be described as evidence of discrimination. Nor is there anything from which I can infer discrimination. The attitude of both the complainants towards their work, in terms of this incident, leaves much to be desired. What seems to have started off simply as a confusing situation was blown out of proportion by Fleming and Baptiste.

61On August 14, 1978 the complainants each filed the first of their two complaints with the Ontario Human Rights Commission. Reviewing the incidents that occurred up to that point, I have found insufficient evidence for a finding of discrimination against the respondent. I might add that in regard to the requisition form incident, Baptiste testified that he did not feel he was suspended because of his race but because of harassment. He felt management was overly critical of his work (Evidence, V.III, pp. 78–79).

62Late in August, 1978 the complainants began working under a different foreman, Harry Bletcher. Mr. Bletcher no longer works for Byron Jackson but worked there from February, 1967 to December, 1978. Bletcher stated that initially his relationship with the complainants was good, but deteriorated because of their negative attitude. Baptiste testified that they got along well until Bletcher became overly critical of Baptiste's work (Evidence, V.III, p. 10). Fleming stated that his relationship with Bletcher was never good (Evidence, V.II, p. 34). Between August and November there were no major incidents involving the two complainants. Aside from a few minor complaints, which I find irrelevant to this inquiry, there seem to have been no problems.

63During this period several meetings were held between the relevant parties and Mike Simons, the investigative officer for the Commission.

64On November 15, a conciliation meeting was held to attempt an amicable resolution of the human rights complaint. The evidence of all the witnesses is that the parties did in fact end the meeting on a friendly note and the complainants were satisfied that the company would change its attitude.

65One of the issues discussed during the meeting was the perception of the non-white workers that overtime was being allocated unfairly and that Don McKinnon, the lone white welder, was receiving more than his fair share. On November 22, 1978 Fleming and Baptiste filed a grievance with respect to overtime allocation. This grievance does not appear to have ever been resolved. The collective agreement between the union and respondent (Exhibit 6) deals with this issue:

Article 25: Overtime work shall be equally divided over a six (6) months period between all capable and qualified employees in a department and job classification to the extent that it is reasonable and practicable, and consistent with good business practice. (Emphasis added)

Baptiste had filed a previous grievance regarding overtime on June 27, 1978 (Exhibit 29). I do not intend to go through all the evidence regarding overtime because it is clear from the evidence that overtime was distributed fairly evenly among employees on the same (afternoon) shift as Baptiste and Fleming.

66The second complaint regarding overtime dealt with the fact that Mr. McKinnon, the only white welder, received much more overtime than the other welders. Indeed, on November 16, 1978, five welders – all of whom were non-white – signed a petition charging Bletcher with racism. The major reason that the three non-complainant welders signed it was because of their perception that McKinnon received too much overtime. The petition (Exhibit 9) stated:

We the undersigned welders can no longer do the company's work efficiently under the constant harassment and racist supervision of Harry Bletcher and would like to have this matter rectified as soon as possible.

Ray Fleming

Rupert Baptiste

Richard Coventry

Rudy Parpit

B. Mangel

67Mr. McKay, then Plant Superintendent, in his evidence, went through the company's overtime records in great detail (Exhibit 43). This evidence (Evidence, V.III, pp. 54–69) shows that between July and October, 1978 there was a reasonably equitable distribution of overtime offered to each welder (McKinnon had 109 hours, Coventry had 108 hours, Parpit and Mangal had 104 hours, Kim Sung Bae had 76 hours, Fleming and Baptiste had 60 hours). However, in November it appears that McKinnon was offered over 20 hours of overtime more than anyone else. The respondent's explanation for this is that McKinnon was the "lead hand" and therefore had to stay late after practically every shift (Evidence, V.III, p. 108–110). I am not entirely satisfied with this explanation – especially considering the length of experience and high qualifications of Richard Coventry. It does raise a question in my mind as to the fairness of overtime allocation as well as the fairness of the respondent's promotion policy. It was mentioned in the evidence of Harry Bletcher that in 1978 McKinnon was 64 years old (Evidence, V.5, p. 39). I would assume that this may be one reason he may have been lead hand (along with his experience) but that was not offered as a reason by the respondent. I am concerned about the respondent's allocation of overtime and find that the respondent should have better managed this work allocation to benefit all the petitioners. I do not find that the overtime allocation, or lack thereof, assists the complainants in this application.

68I shall now discuss the two incidents that occurred on November 22, 1978 which ultimately led to the complainants' termination of employment. The incidents must be examined in the context of the events directly preceding them. There had been an investigation conducted by the Ontario Human Rights Commission, a conciliation meeting on November 15, 1978, an alleged breach of confidence by Bletcher and a subsequent petition complaining of racism by Bletcher. Despite Bletcher's evidence that the petition did not affect his relationship with Baptiste (Evidence, V.5, p. 116), I think it is highly inconceivable that the parties would have been getting along.

69On the morning of November 22, 1978, Bletcher assigned Baptiste a job in the high bay area of the plant. At 9:30 a.m., nearly two hours later, Bletcher went up to the high bay area where he found that the assigned job had not been completed. He asked Baptiste why it was not done and received, according to his evidence, a satisfactory explanation. However, after telling Baptiste to complete the job, "Rupert lost his cool, and started cursing and you know, why don't you leave me alone, I can do it better than you can, this type of remark" (Evidence, V.5, p. 52). Baptiste then got the shop steward and they went to see Mr. McKay. Bletcher stated that Baptiste was very angry and that he himself was upset by the incident (Evidence V.5, pp. 53–54). Baptiste's evidence was that Bletcher accused him of doing nothing all morning at which point Baptiste complained to the shop steward that "Harry is harassing me" (Evidence, V.III, p. 98). Baptiste said he was calm during and subsequent to this incident. Not very much turns on this incident although it does give an indication of the mood Baptiste and Bletcher must have been in that day. I do not accept Baptiste's evidence that he was calm throughout this episode – he was clearly upset enough to complain to the shop steward and the Plant Superintendent, and had interpreted Bletcher's questioning as harassment.

70As was the case throughout the hearing, the evidence on the final incident on the afternoon of November 22, 1978 totally conflicted. However, this time there were several witnesses who testified other than Bletcher, Baptiste and Fleming. Baptiste's evidence was as follows: he was looking for Bletcher because he needed some work, "... and I saw him and I says 'Hi, I need another job, if you have another job'" (Evidence, V.III, p. 22). Bletcher said he did have another job and told Baptiste to follow him. Baptiste then said he jumped over some jobs and reached their destination before Bletcher. Bletcher told him what to do and Baptiste said there was not enough time left to heat the work up to 250 ° and to do the work.

He came up to me, he said, you fucking bastard, you get back to work and you finish that job. And I said, what do you mean by that? At the same time I didn't see Ray, at the same time Ray jumped, came up and he says, "I am a witness of this racist remark".

And I didn't say anything. I left. He pushed Ray back to the welding machine, and he left and went away ... (Evidence, V.III, pp. 23–24).

Baptiste said that he was holding a wire brush and a welding hammer (also referred to as a chipping hammer) in his hand during the incident.

71In cross-examination, Baptiste stated that he and Bletcher were standing close together and they had to yell to hear each other over the shop noise. He said he had the brush in his overall pocket and could not remember how he was holding the welding hammer. (In examination-in-chief he stated that he was holding it down.) Baptiste stated as well in cross-examination that he was calm but Bletcher was waving his finger in his face and he said "you black bastard go back to work" (Evidence, V.III, p. 114). At p. 118, V.III, Baptiste stated that Fleming was standing right next to him – he then said, at p. 120 that he did not know where Fleming was standing.

72Fleming testified that he was looking for Bletcher to sign a requisition form and came upon Baptiste and Bletcher arguing. He states that Bletcher was shaking his finger and said "you black bastard, just get back to work" (Evidence, V.I, p. 142, September 29, 1980). Fleming said that he was a witness to the racist remark and Bletcher told him, "You get back to your job, this has nothing to do with you" (Evidence, V.I, p. 143). Fleming testified that he attempted to explain that he needed a requisition form signed and Bletcher walked up and shoved him into a machine. Fleming then got up in a boxer's stance to defend himself. Fleming says he was injured by the shove but did not feel the pain for several days, at which time he went to see a doctor (Exhibit 10). He does not recall Baptiste holding a welding hammer or putting it on a table. Fleming claimed in cross-examination that he was very calm during the incident until he was shoved by Bletcher (Evidence, V.II, p. 56, September 30, 1980). He states that he was about fifteen feet away from Bletcher and Baptiste. It is noteworthy that Fleming did not raise the fact that he was injured prior to this hearing and did not raise the "black bastard" allegation until the second meeting called by the union and respondent to discuss the November 22, 1978 incident (Evidence, V.II, pp. 74–75, September 30, 1980).

73Bletcher testified that at 3:00 p.m. on November 22, 1978 he found Fleming and Baptiste talking to each other. He states that he asked Baptiste if he needed work to do and then asked Baptiste to come with him. As they were walking he asked Baptiste if the job in the high bay was done and Baptiste replied, "Why don't you take a look yourself? Get off my back" (Evidence, V.5, p. 56, September 29, 1980). About half way Baptiste stopped following Bletcher towards his office, who went on and checked what work had to be done and then returned to the job site where he was joined by Baptiste. When instructed what to do Baptiste said "Why don't you get off my back? Why don't you fuck off and leave me alone?" (Evidence, V.5, p. 58, September 30, 1980). Baptiste then raised his chipping hammer to chest height. Bletcher testified that he tried to calm him and get him to put down the hammer. At this point, Fleming appeared and was standing three feet away. Fleming said, "You try to take the hammer off him. He should hit you with the fucking thing" (Evidence, V.5, p. 60). Baptiste eventually put the hammer down and as Bletcher walked past Fleming, Fleming went into a boxer's stance and said, "Come on, I'll knock your fucking block off". Fleming then caught Bletcher in the chest with his wrist or fist (Evidence, V.5, p. 61). Bletcher further testified on cross-examination that the plant was not noisy and that conversation conducted in a normal tone of voice could be heard fifteen to twenty feet away (Evidence, V.5, p. 132).

74Rudy Parpat, also a welder, testified that he was about forty feet away from Baptiste, Fleming and Bletcher and he saw Fleming failing and Bletcher in front of him with his hands outstretched. Fleming had his back towards Parpat so he could not see where his hands were. It was too noisy to hear anything. He did not see Baptiste raise his hand (Evidence, V.III, pp. 198–202, September 27, 1980).

75B. Mangel was also a witness to the incident. He testified that he was about twelve to twenty feet away and could not hear anything because of the noise. He could not really say how far away Fleming was because he only saw him falling, at which time he was about twelve feet from Baptiste (Evidence, V.III, pp. 232–235). He saw Bletcher waving his finger at Baptiste and did not see Baptiste move his arms.

76Richard Coventry had worked for the respondent for ten years. He testified that he saw Bletcher and Baptiste walking in his direction. They stopped, talked and began to argue. Coventry could not hear anything because of the noise. He was six to eight feet away on a pedestal three to three and a half feet high. He had a side view of the two men. Bletcher was pointing at Baptiste with his finger "almost in his face", while Baptiste was holding a hammer with both hands down in front of him. A couple of minutes later Fleming walked up with a requisition book, Bletcher walked over and spoke to him and then pushed him into a welding machine. Fleming then got up and took up a boxing stance and Bletcher walked away (Evidence, V.III, pp. 145–149). Coventry estimated that Fleming was standing about twelve feet from Baptiste and Bletcher (Evidence, V.III, p. 169).

77Baptiste and Fleming were suspended because of this incident and were fired on November 23, 1978, after the union and respondent had heard all the witnesses.

78After reviewing all the evidence relating to this incident, it appears to be quite clear that Bletcher did push Fleming, or at least made a motion to push Fleming which caused Fleming to jump back and fall down. At the same time, although Mr. Bletcher struck me as being quite capable of getting angry quickly, it is difficult to believe that he would resort to violence unless provoked in some way, especially since both Baptiste and Fleming are over six feet tall and Baptiste is a body builder and has a strong physique. It is impossible to reconcile the evidence of Bletcher that the shop was not noisy, and the evidence of Fleming that he was fifteen feet from Bletcher and heard the "black bastard" remark with Coventry's evidence that he heard nothing and Baptiste's evidence that one had to yell to be heard. I was impressed with Mr. Coventry's evidence and his demeanour as a witness. He was close enough to see all that happened. I accept his testimony that the shop was noisy and that Fleming was approximately twelve feet from Bletcher and Baptists. This is consistent with his evidence that Bletcher first walked up to Fleming and that the two exchanged words before Bletcher pushed Fleming. Coventry's evidence that Bletcher and Baptiste were arguing also makes more sense than Baptiste's testimony that he was quite calm during the incident.

79Since no independent witnesses heard what Bletcher, Fleming and Baptiste were saying and all three differ in recounting what was said, it is difficult to determine the truth. However, if Fleming was twelve feet away it is unlikely that he really heard the "black bastard" remark, especially since he claims he did not hear the rest of their argument. If, contrary to what he said, he was close to Baptiste and Bletcher, as Bletcher claims, then I would have to discount all Fleming's evidence on this incident since his credibility would be severely damaged.

80The final question relating to this incident is whether the remark was ever made at all. I seriously doubt it. Neither Fleming nor Baptiste brought up the remark at their first opportunity, although it was important to their outstanding human rights complaint against the company and would have been planted in their memories. Furthermore, in examination-in-chief, Baptiste said the remark was "you fucking bastard". If Fleming had really said, after hearing the remark, that he was a witness to the racist remark it is hard to believe that he would not have reported to management at his first opportunity that he was indeed a witness to a racist remark.

81Finally, it is hard to believe that Bletcher, a man with twelve years experience as a welder and foreman and a man who was at the time in question the subject of an outstanding human rights complaint, would be so foolish as to add fuel to an already explosive situation by shouting an offensive remark at a powerfully built and angry man standing about two feet away from him.

82Bearing in mind that Bletcher's version of the incident was totally contradicted by five witnesses, three of whom (Mangel, Parpat and Coventry) had nothing to gain and much to lose by contradicting Bletcher, I am not at all satisfied with the way this incident was handled by the respondent company. However, this Board's mandate is to decide whether there has been discriminatory treatment not whether the complainants have been treated unfairly in a general sense. Furthermore, a Board of Arbitration has already made a decision on the issue of the fairness of the respondent's actions as an employer against Fleming and Baptiste.

83As I stated at the outset, under the authority of the Ontario Human Rights Code, I must consider two issues in deciding this complaint:

1. Were Mr. Baptiste and/or Mr. Fleming discriminated against in their employment by Byron Jackson on the basis of race, colour, nationality or place of origin?

2. Did Byron Jackson, through its officers or employees, dismiss, discriminate or intimidate Mr. Baptiste and/or Mr. Fleming as a result of their complaint to the Commission?.

I find that both questions must be answered in the negative. All the complaints are therefore dismissed.