Fu v. Ontario (Government Protection Service), 1985 CanLII 5209

Fu v. Ontario (Government Protection Service)

1985-03-11

Ontario Board of Inquiry

CHRR Doc. 85-044

Wei Fu Complainant

v.

Her Majesty in right of the Province of Ontario and Ministry of the Solicitor General and Ontario Government Protection Service and Jack Gordon Respondents

Date of Decision: March 11, 1985

Place: Toronto, Ontario

Before: Peter A Cumming

Appearances by: Robert Reuter, Counsel for the Ontario Human Rights Commission Charles Roach, Counsel for Wei Fu Roy E. Stephenson, Counsel for the Respondents

RACE, COLOUR AND PLACE OF ORIGIN — employee disciplined — racial slurs and harassment by supervisor — survey of the law — LIABILITY — employer/corporate liability for supervisor — vicarious liability — HUMAN RIGHTS – evolution of Canadian human rights law

Summary: The Board of Inquiry dismisses the complaint of Wei Fu that he was discriminated against because of his race and place of origin when he was disciplined by his employer.

Wei Fu is a security officer with the Ontario Government Protection Service. On May 5, 1983 Constable Wendy Wilson was sent to interview Wei Fu because a blood pressure kit was missing from Osgoode Hall where Wei Fu was stationed. The Board of Inquiry finds that Wei Fu did not steal the blood pressure kit but the Board accepts evidence that he became very upset at being questioned and "yelled and screamed".

The Board of Inquiry finds that the behaviour of Wei Fu's superior, Jack Gordon, was lacking in that he exacerbated Wei Fu's feelings of humiliation over being accused of theft rather than assuaging them. However, the Board of Inquiry finds that there was no racial motivation behind the disciplinary action that was taken, which resulted in Wei Fu's being transferred to another posting.

The Board of Inquiry finds that testimony regarding racial slurs and jokes does not indicate that the particular incident of Wei Fu's disciplining was due to race discrimination.

The complaint is dismissed.

1. Introduction.

1This hearing involves a Complaint (Exhibit #2) by Wei Fu, of Toronto, alleging discrimination because of his race in the course of his employment, contrary to the Ontario Human Rights Code, S.O. 1981, c. 53 (hereafter, the Code). Mr. Fu is a security officer with the Ontario Government Protection Service, and he complains that his supervisor, the Respondent Jack Gordon, and the senior management of his employer, discriminated against him. The hearing commenced August 20, 1984, took place over some 17 days in all, and included testimony from some 20 witnesses and the filing of 113 exhibits.

2Strong feelings have been raised on the part of those persons on both sides of the issues in this case. The Complainant, his fellow worker witnesses on his behalf, and his local union, all are certain that the Complainant has been very aggrieved and injured. On the other hand, the individual Respondent, Jack Gordon, and the senior management of the Ontario Government Protective Service, just as strongly believe that they are innocent.

3Both the protagonists, Wei Fu and Jack Gordon have suffered because of the incidents giving rise to these proceedings and the necessity of enduring the hearing itself. Leaving aside the question of whether or not there has been a breach of the Code for the moment, it must be said that ultimately both Mr. Fu and Mr. Gordon shared some responsibility for the unfortunate anguish that they have both faced due to this matter. As is so often the case in human affairs, there is no simple answer to the reasons for the breakdown in the relationship of these two men at their place of employment, the troubles they both found themselves in, and the progression of circumstances that have resulted.

4A great deal of evidence was heard, involving much pettiness on both sides as hard lines were drawn, and including a great deal of attempted rationalization of position and projection of wrongdoing by both protagonists. It is too bad that both were incapable of simply saying at the very inception of this mess that they were sorry for their respective misbehaviour and misunderstandings, apologized to each other, and let bygones be bygones. Instead, they found themselves increasingly enmeshed in a situation that rapidly got out of control.

5The evidence, which involved considerable detail and complexities, and which took some unexpected twists and turns, was very ably introduced by all three counsel, who all deserve considerable credit for their patient and cooperative approach.

6Given the issues in the case, it is necessary when referring to some of the witnesses, to identify them in part by reference to their race, colour or place of origin.

2. The Law

7I have reviewed generally the evolution of human rights law in Ontario and Canada leading up to the new Ontario Human Rights Code, 1981 in Cindy Cameron v. Nel-Gor Nursing Home and Marlene Nelson (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2172 to D/2174. It is purposeful here to review very briefly the development of human rights law in respect of discrimination on the specific prohibited ground of race.

8In Ontario, the law is that no tort of racial discrimination exists at common law. See Seneca College v. Bhadaurai, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468. In order for correction, or compensation, one must turn to the Ontario Human Rights Code, 1981 or the Canadian Human Rights Act, 1976–77, c. 33, as amended, depending on which level of government has the jurisdictional authority to deal with the problem.

9In 1944, The Racial Discrimination Act, S.O. 1944, c. 51 was passed in Ontario. It represented the first legislation in Canada to prohibit racial discrimination. It was a significant move but The Racial Discrimination Act was narrow in scope and applied only to advertisements, publications and notices, and prohibited discrimination only in respect of race or creed. Nevertheless, the legislation was a milestone in Canadian efforts to prohibit discrimination by legislation.

10In 1951, the Fair Employment Practices Act, S.O. 1951, c. 24 was enacted and in 1954, the Fair Accommodation Practices Act, S.O. 1954, c. 28 was passed, to prohibit discrimination in employment and the refusal of services or facilities offered to the public but denied to individuals because of race, creed or ancestry. In 1958, the Ontario Anti-Discrimination Commission was established, S.O. 1958, c.70, to enforce the better administration of fair practices and accommodation laws. The advent of human rights protection in respect of labour law was another important development since racial discrimination in the job market was not an uncommon practice. Despite this legislation, ethnic minorities continued to experience discrimination and the frequency of specific instances rose as immigration to Canada from countries other than Britain, increased.

11By 1961, the Ontario Human Rights Commission was established and the first law prohibiting discrimination in housing came into effect, S.O. 1960–61, c.28. A year later the Ontario Human Rights Code, S.O. 1961–62, c.93, was passed as a consolidation of previous Ontario human rights laws, and represented the first comprehensive legislative human rights scheme in Ontario.

12Many boards of inquiry over the years have dealt with the issues of discrimination in employment because of race. See, for example Peter Mitchell v. Nobilium Products Limited (1982), 1981 CanLII 4319 (ON HRT), 3 C.H.R.R. D/641 (Ont. – R.W. Kerr) which involved a dismissal, and B.L. Mears et al. v. Ontario Hydro et al. (1984), 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927 (Ont. – Fredrick H. Zemans) which involved lay-offs.

13In Simms v. Ford Canada (June 4, 1979; Ont. – H. Krever) it was first held that subsection 4 (1) of the then Ontario Human Rights Code also protected employees from racial harassment in the workplace by fellow employees. Subsequent board of inquiry decisions that have followed Simms and dealt with the issue of racial slurs included Singh v. Domglas Ltd. (1980), 1980 CanLII 3929 (ON HRT), 2 C.H.R.R. D/285 (Ont. – R. Kerr), Fuller v. Candur Plastics (1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 (Ont. – R. Kerr) and Dhillon v. F.W. Woolworth Co. Ltd., (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. – P.A. Cumming). I reviewed these cases and Canadian and American law generally with respect to racial name-calling and racial harassment in Harjit S. Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police and Inspector William Dickson (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 at D/1764 to D/1771 (Ont. – P.A. Cumming).

14In Dhillon v. F.W. Woolworth Co., Ltd., supra, the complainant alleged that he was the subject of constant racial name-calling and verbal abuse from the other employees in the warehouse where he worked. Dhillon, a Canadian of Indian origin, felt that the harassment from the other employees was due to his ethnic background. I found the harassment to be racially initiated, extensive, and perpetuated on an ongoing basis. As well, there were racist slogans scrawled on the walls of the washroom. The management did not join the verbal racial harassment of the Indian employees, but neither did they take any reasonable steps to stop, or minimize, the abuse.

15I applied paragraph 4(1)(g) of the then Ontario Human Rights Code, which prohibited discrimination against any employee with regard to any term or condition of employment, because of race, and I held that unwelcomed racist remarks made by an employer or employees is included in the meaning of ”˜term or condition of employment' in that provision. ”˜Term or condition of employment' was held to include the emotional and psychological circumstances in the workplaces: "An employee may be found to have been discriminated against even though that discrimination did not take a visible form in the employee's hours of work, duties, advancement, or pay cheque". For this broad interpretation, I relied upon precedents from Ontario racial harassment cases, cases from the U.S. Equal Employment Opportunity Commission, and some sexual harassment cases which were similar in principle, concluding that an employer has a duty to take reasonable steps to eradicate verbal racial harassment in the workplace, and a failure to take such steps constitutes a breach of the Code.

16In Ahluwalia v. Metropolitan Toronto Board of Commisioners of Police, supra, the complainant alleged discrimination in employment on the basis of race, colour, nationality, ancestry and place of origin. Mr. Ahluwalia was a constable of Indian origin employed by the Metropolitan Toronto Police Force. His complaints were that he was subject to constant racial name-calling from fellow police officers, that he was denied promotions, and third that he was unjustly fired. Although I found that the failure to be promoted and his eventual dismissal were not racially grounded, I ordered the respondent Board of Commissioners of Police to eliminate racial name-calling (at D/1786). Secondly, I ordered the police force to establish an ad hoc programme to sensitize police officers to the requirements of good race relations (at D/1786). A psychiatrist had testified as to the damaging psychological effects of derogatory racial name-calling (at D/1772 to D/1775). According to this expert, name-calling is essentially a method by one person to rank another person in an inferior position in a social hierarchy. It represents a form of control and sets up the subject of the labelling as a victim. It is a one-sided attempt by one person to unilaterally define the qualities of another person. Labelling is not merely a phenomenon which depends upon the particular relationship of two individuals in isolation, but represents values which are culturally sanctioned. It implies that the victim is incapable of altering his own status in the hierarchy because the definition of status is thrust upon him by others who control him according to culturally sanctioned values. This ranking of status may be done consciously or unconsciously but either way inflicts a great deal of harm on the victim.

17These two decisions were based on the Ontario Human Rights Code that was the predecessor legislation to the Human Rights Code, 1981. ”˜Racial harassment' was not explicitly covered by the provisions of that legislation, but the right to be free from discrimination in employment on the prohibited grounds was interpreted as including the right to be free from racial harassment.

18The Ontario Human Rights Code, 1981, expressly provides that an employee has a right to freedom from racial harassment in the workplace.

19Section 4 of the Human Rights Code, 1981, states:

4(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, record of offences, marital status, family status or handicap.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.

20Paragraph 9(f) defines harassment:

(f) "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

21Hence, if a supervisor of an employer were to engage "in a course of vexatious comment or conduct" in respect of an employee for the reason of the employee's race, ancestry, place of origin, colour or ethnic origin, and the conduct was unwelcome or ought reasonably to be known to be unwelcome, then there would be a breach of subsection 4(2). It is probable that "harassment" would also be covered by subsection 4(1) in the absence of subsection 4(2). See Edilma Olarte et al. v. Rafael DeFilippis and Commodore Business Machines Ltd., D/1705 at D/1711 to D/1716 (Ont. – P.A. Cumming).

22Clearly, racial jokes, insults, slurs or other "comment" such as false and embarassing accusations of misbehaviour could amount to "harassment" as defined, and "conduct" would include discriminatory treatment with respect to postings, transfers, hours of work, or other working conditions. Simply ”˜picking-on' an employee because of his race could constitute "harassment". Thus, if the accusations in Mr. Fu's Complaint (Exhibit #2) were to be proven on the balance of probabilities, there would be a breach of section 4 of the Code.

23Section 44 is not operative in respect of a breach of subsection 4(2) by a supervisor, to deem the offending action of the supervisor to be that of the employer (the OGPS in this instance). However, in such instance, it might be shown that the employer is liable under sections 4 and 8 simply on the organic theory of liability developed by Boards of Inquiry under the former Ontario Human Rights Code, c. 340, R.S.O. 1980, as amended. See Edilma Olarte et al. v. Rafael DeFilippis and Commodore Business Machines Ltd., supra, D/1705 at D/1737 to D/1746. Alternatively, it might possibly be argued that ”˜harassment' is implicitly covered by subsection 4(1) of the new Code, and if there is a breach of subsection 4(1) then section 44 is operative. However, given the specificity of subsection 4(2) it seems problematical that one could argue that harassment is implicitly covered by subsection 4(1)

24Subsection 40(4) must also be considered, and its meaning and effect is perhaps uncertain. Subsection 40(4) seems to have been enacted to explicitly deal with the knowledge by "a person" of harassment by someone who that "person" could prevent from continuing his harassing, but has failed to do so. Subsection 40(4) states:

(4) Where a board makes a finding under subsection (1) that a right is infringed on the ground of harassment under subsection 2(2) or subsection 4(2) or conduct under section 6, and the board finds that a person who is a party to the proceedings,

(a) knew or was in possession of knowledge from which he ought to have known of the infringement; and

(b) had the authority by reasonably available means to penalize or prevent the conduct and failed to use it,

the board shall remain seized of the matter and upon complaint of a continuation or repetition of the infringement of the right the Commission may investigate the complaint and, subject to subsection 35(2), request the board to re-convene and if the board finds that a person who is a party to the proceeding,

(c) knew or was in possession of knowledge from which he or she ought to have known of the repetition of infringement; and

(d) had the authority by reasonably available means to penalize or prevent the continuation or repetition of the conduct and failed to use it.

the board may make an order requiring the person to take whatever sanctions or steps are reasonably available to prevent any further continuation or repetition of the infringement of the right.

25Clearly, subsection 40(4) can be employed in respect of an individual, say a senior manager (if he is a party to the proceeding) in respect of harassment by a junior manager (for example, a supervisor) under his authority. It would also seem that "person" would extend beyond individuals to embrace corporations, trade unions, trade or occupational associations or employers' organizations, that is, artificial entities. See Interpretation Act, R.S.O. 1980, c. 219, s. 30.28. An order under subsection 40(4) is limited to a directing order, and could not include an award of compensation or render the employer liable to pay the award against the offending manager should he fail to satisfy the award against him. Indeed, subsection 40(4) refers to the making of the directing order at a point in time after the order in the first instance under subsection 40(1) against the offending individual or a manager. It might possibly be argued that subsection 40(4) was enacted because of the excepted provisions from subsection 44(1), and on the assumption an artificial entity employer could not be rendered liable on an organic theory of corporate responsibility for the breach of the harassment provisions of the Code by one of its managers. Subsection 40(4) refers to the making a directing order in respect of "a person who is a party to the proceeding" who knew or ought to have known of the infringement of the Code by the junior manager. Such a "person", having authority over the offending manager would presumably be liable (on the basis of the organic theory of corporate responsibility – set forth in hypothetical situation #4 below) in any event to an order under subsection 40(1) made after a finding that such "person" is in infringement of sections 4 and 8 because it knew of the harassment and could have prevented it from continuing. But if the "person" is liable to an order under subsection 40(4), that is, does it add anything significant?

26It seems arguable that the purpose of subsection 40(4) is simply to expand upon the ordinary remedies and better prevent a "repetition" of harassment by stating that a board of inquiry "shall remain seized of the matter" and be able to make a further, directing order if there is a repetition. The purpose of the new Code is to expand upon the then existing human rights and remedies at the time of its enactment, not detract from them. Subsection 40(4) should not be interpreted, in the absence of explicit language, as meaning that there cannot be an infringement of sections 4 and 8, and an order given under subsection 40(1) against an artificial entity employer on the basis of the organic theory of corporate responsiblity.

27From my review of the law, it seems an employer would be personally in breach of the Code in the following types of situations.

(1) Where the individual employer himself, by his own personal action, directly or indirectly, intentionally infringes a protected right, under section 4, then he has, of course, contravened sections 4 and 8 of the Code.

(2) Where the individual employer does not intend to discriminate, but there is a constructive discrimination, then the employer is in contravention of sections 10 and 8 of the Code. That is, the employer has personally breached the Code.

(3) Where the individual employer himself takes no direct action of discrimination, but authorizes, condones, adopts or ratifies an employee's discrimination, then the employer is himself personally liable for contravening the Code (whether on a basis of contravening section 8, or section 10 coupled with section 8) as it is the employer himself who has infringed or done, directly or indirectly, an act, "that infringes a right under this Part" (section 8). Section 8 jof the Code says "No person shall infringe or do ... anything that infringes a right ...". The employer is infringing or doing something by its mere passive inaction of allowing an infringement of a right in the workplace when the employer could rectify the situation. To do nothing can be, in the circumstances, to "do" something that "infringes a right" within the meaning of section 8.

(4) Where the employer is a corporate entity, and an employee is in contravention of the Code, and that employee is part of the ”˜directing mind' of the corporation, then the employer corporation is itself personally in contravention. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility. See Edilma Olarte et al. v. Rafael DeFilippis and Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 at D/1746. For example, in Cowell and Cox v. Gadhoke and Super Great Submarine et al. (1982), 1981 CanLII 4327 (ON HRT), 3 C.H.R.R. D/609 (Ont. – P.A. Cumming) under the former legislation, the Ontario Human Rights Code, R.S.O. 1980, c. 340 as amended, where the sole managerial employee was guilty of sexual harassment, then the employer corporation was itself personally committing the act of sexual harassment. While they were not necessary facts to the result, in that case the individual respondent was not only the sole manager, but also was the owner (shareholder), a corporate officer, and corporate director. Any one of these factors, coupled with the improper act coming in the course of carrying on the corporation's business, would have rendered the corporation in personal contravention of sections 4 and 8 of the Code.

For example, in another case under the former legislation, Dhillon v. F.W. Woolworth Co. Ltd. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. – P.A. Cumming) where the management in a warehouse "knew, or should as reasonable men acting as management have known, that there was regular, and significant verbal racial harassment" and "did not take reasonable steps to put an end, or at least minimize, the racial abuse" the Respondent corporation was held to be in breach of the Code.

(5) The difficulty in applying the organic theory of corporate responsibility (as referred to in #4) comes. in the factual determination as to whether the employee in question is part of the ”˜directing mind'. Gadhoke illustrates the obvious case – the individual respondent was the sole manager, the owner, corporate officer and corporate director. Other situations are not as easy. Generally speaking, whenever an employee provides some function of management, he is then part of the ”˜directing mind'. Once an employee is part of the directing mind, and the contravention of the Code comes in his performing his corporate function, the corporation is itself also personally in breach of the Code.

(6) Where an employee unlawfully (i.e. in contravention of the Code) causes the breach of a contract between his employer (the employee-agent's principal) and a complainant, then the employer is liable for a contravention of the Code under the common law in respect of agency, for the act of the employee-agent is the act of the employer principal so far as the third party complainant is concerned.

(7) If the employee is a mere servant (not part of the ”˜directing mind', and there is not a contract between the employer and a third party that the servant-agent is causing a breach of) then the employer is still liable for certain contraventions of the Code by the employee in the course of his employment, even though there is no personal contravention of the Code by the employer, under subsection 44(1).

28Under subsection 44(1) of the Code (in contrast to the former legislation) there is vicarious liability for the purpose of the Code, (except in ”˜harassment' situations – subsection 2(2), 4(2) and 6, and where the offence provision – subsection 43(1) – is involved) as the liability attaches to the employer even where the discriminatory act is done by a mere "employee" (i.e. not by someone who is part of the ”˜directing mind'). Moreover, subsection 44(1) also covers the ”˜directing mind' factual circumstances supra (situations #4 and #5), other than in the excepted "harassment" situations.

29As a result, there is generally vicarious liability under the Code for situation #7 above, other than in the noted exceptional situations.

30However, the above analysis of the difference in the range of situations between #1 and #7 above remains very important for purposes of considering complaints under the Code where the complaint relates to ”˜harassment', as with the Complaint before this Board, and thus is excepted from the ”˜vicarious liability' impact of subsection 44(1). The point is – the dividing line between situations of ”˜personal liability' (situations #1 to #6) and the situation of vicarious liability (#7) remains important. It is only in the #1 situation that an employer is not liable for the ”˜harassment' by an employee. If it is a situation of racial harassment by a mere employee (i.e. not someone who is part of the directing mind) of the corporate employer, then it is clear by virtue of the excepting provision in subsection 44(1) that vicarious liability does not attach to the employer. However, if the employee racially harassing is part of the directing mind of the employer, say a manager, then while subsection 44(1) does not apply (i.e. there is no vicarious liability through the deeming of the discriminatory act of the employee to be the act of the employer) there can still be personal liability on the part of the employer on the theory as advanced in situations #4 and #5.

31The approach of subsection 44(1) in expressly providing for vicarious liability is clearly consistent with, and facilitative of, the general public policy purposes of the Code. The provision is also supportive of other specific provisions of the Code. Subsection 40(1) provides for a board of inquiry to make an order "to achieve compliance with this Act" and "to make restitution, including monetary compensation, for loss ..".. That is, insofar as the particular complainant is concerned, the effect of the Code is to provide the equivalent of a tort by statute. It is clear that the general benefits to society through enforcing the Code are largely to be achieved by extending, in effect, a civil remedy to individual, aggrieved complaints. It would be anomalous for an individual to have a broader scope for success against parties for torts under the common law (which allows for vicarious liability where there is a mere master servant relationship in the course of his employment) and yet be limited (by there being no vicarious liability) in seeking restitution for the breach of the Code by a servant in the course of his employment. Discrimination on a prohibited ground is a statutory wrong that offends society and is thus a wrong against the public, but it is also in the nature of a tort against the individual – a tort being a civil wrong independent of contract. Is there any meaningful distinction between physical injury due to trespass or negligence, and injury to the person due to discrimination on a prohibited ground? Subsection 44(1) has the impact of saying that there is no meaningful distinction – vicarious liability should generally attach to the employer where his employee discriminates in the course of his employment. However, in the excepted "harassment" situations, a corporate employer will not be vicariously liable, but still may be held liable by the organic theory of corporate responsibility. Thus, if it was to be found that there was a contravention of the Code in the instant situation by the individual Respondent, Jack Gordon, then as he, being a supervisor, was a part of the directing mind of the OGPS, the OGPS would be personally liable as well, being in breach of sections 4 and 8, to an order under subsection 40(1) and, if necessary, a later directing order as well under subsection 40(4).

3. The Evidence

32The Complainant, Mr. Wei Fu, is 45 years old. He was born in what is now the People's Republic of China, moved to Taiwan as a young boy, and immigrated to Canada in 1967. He moved to Toronto in 1970, worked as a laundry helper at the Royal York Hotel for four years, and since May 13, 1974 has been employed as a "security officer" with the Ontario Government Protection Service (hereafter "OGPS").

33The OGPS, while a separate organization, comes under the control of the Ontario Provincial Police (OPP) which in turn is ultimately within the responsibility of the Ministry of the Solicitor General for the province of Ontario. Mr. Fu is well educated, with two university degrees, including an M.A. from Dalhousie University, and a partially completed Ph.D. from the University of Toronto. He has a family, including two children, ages 17 and 19. Mr. Fu had experience serving with the Military Police in Taiwan. He is trained in the martial arts. From observing him as a witness, it is clear that Mr. Fu is quite intelligent and well-read. He has a good understanding of English and is very precise in his use of language. He is under-employed. Mr. Fu is a strong individual, mentally, physically and in force of personality, and he can be said to have what is sometimes called, ”˜presence'. Having observed him as a witness, I would say he is also a morally rigid and self-righteous person. Mr. Fu becomes easily fixed in his views and opinions, and holds to them with stubborness. Moreover, Mr. Fu's demeanour on the witness stand tended to confirm that when he feels he has been treated wrongly he becomes excitable, loud and aggressive.

34At the times relevant to the Complaint (Exhibit #2), September, 1981 to May 26, 1983, OGPS security officers performed security officer functions at various provincial government buildings and sites, including the Legislative Building at Queen's Park, the Osgoode Hall Court House, 125 Lakeshore Boulevard (an OPP quartermaster store), 880 Bay Street, 90 Harbour Street (the OPP General Headquarters), and the Wellesley Street B1 government garage. More recently, the OGPS responsibilities have been extended to 8 York Street and the George Drew building. Queen's Park is the main location, and the one at which the OGPS management's offices are located, with the other posting locations being referred to as "outposts". A security officer wears a uniform, but is generally unarmed, having the status of a "Special Constable" of the OPP while on duty at the locale of service.

35At the beginning of May, 1983, (and generally for the previous nine years) Mr. Fu was posted by the OGPS to the Osgoode Hall Court House. At Osgoode Hall, the security officers work eight hour shifts, a shift consisting [of] two security officers from the same platoon, with a supervisor. The same platoon works the same shift at all the postings, so that the supervisor generally works out of Queen's Park, visiting the various postings throughout the shift.

36Mr. Fu's Complaint alleges that in "May 1983, Jack Gordon (the Supervisor for Mr. Fu's platoon, "D" platoon) started to single me out for differential and harassing treatment" (Exhibit #2). The Complaint, and Mr. Fu's testimony, focussed mainly upon two alleged incidents. Mr. Gordon as well later testified that from his standpoint, he felt he and Mr. Fu had no problems, and in fact had a fairly good personal relationship, until the first of these incidents.

37First, on May 5, 1983, Mr. Fu was questioned privately by the then OPP investigative constable at Queen's Park, Constable Wendy Wilson, about a missing and apparently stolen "blood pressure kit", taken over the period of April 29 to May 3, 1983, from the locked first aid room in the basement of Osgoode Hall. Mr. Fu denied taking the blood pressure kit, and responded to her comment that she understood (from someone, whom she refused to identify to him) he liked to measure the blood pressure of people, by telling her that he suffered from high blood pressure and had been given a blood pressure kit by his sister-in-law pharmacist, and that he had once brought this kit to work to measure the blood pressure of three co-workers at their request. Mr. Fu pointed out to Constable Wilson that over 100 people had access by key to every office at Osgoode Hall, including the first aid room, and that security could and should be improved.

38Mr. Fu was very upset by Constable Wilson's inquiry of him. His integrity and character are most important to him, and nothing would bother him more than to have his good character brought into question. He has been a very active member of Moral Rearmament and does his best to live by a strict moral code. He seems to be held in high regard, and with much respect. For example, Mr. Earl Jackson, a fellow security officer, nicely described Mr. Fu as an "honest, sincere person" in repect of whom there is "no nonsense", and as a person "who gets a job done".

39Mr. Fu made notes of his conversation with Constable Wilson in the notebook (Exhibit #8) he uses in his work as a security officer. From Mr. Fu's own testimony, it is clear that Constable Wilson's questioning of him was exemplary. However, a couple of hours after she left, he was visited by Mr. Gordon, who, Mr. Fu said, related that Mr. Fu had told Constable Wilson that he had used the blood pressure kit in the first aid room, and he was not to do so again. In the meanwhile, Mr. Fu had telephoned Mr. George Kiernander, the Senior Supervisor over Mr. Gordon, to protest his innocence and to assert the need for a "new key system" for Osgoode Hall. Moreover, on May 7, Mr. Fu sent a letter to Superintendent Craig, Mr. Kiernander's senior, voluntarily offering to take a lie detector test.

40In the previous nine years, Mr. Fu had gone to Queen's Park only two or three times, for approximate two month durations. He learned on May 17, 1983, from Mr. Gordon that he was to be again transferred back to Queen's Park as of May 24, 1983. It is clear that the transfer was either a form of punishment by management of the OGPS, or resulted from a perception by management that Mr. Fu needed closer supervision, but it was very much an issue as to the underlying factors that led to Mr. Fu being transferred. Mr. Fu claimed that the transfer was an act of discrimination, or at the least, arose indirectly as a result of the alleged racial discrimination toward him by his Supervisor, the Respondent, Jack Gordon. Mr. Fu thought Mr. Gordon had been the source of information for Constable Wilson that Mr. Fu had once used a blood pressure kit. The Respondents defended on the basis that there was no racial discrimination, arguing that the transfer was simply a result of very unsatisfactory behaviour on the part of Mr. Fu during his interview with Constable Wilson. Mr. Fu believed Mr. Gordon precipitated the investigation with respect to the theft of the blood pressure kit. Mr. Fu was upset because this would also be the perception of his co-workers. No other security officer had been questioned about the missing blood pressure kit. Moreover, at least one other security officer, Mr. Julian Baptiste, had a blood pressure kit. Mr. Fu was upset and ill, as a result, and consulted his physician, missing the next six days of work because he could not sleep or eat. He was very depressed, and suffered from rising blood pressure.

41Mr. Fu wrote to Staff Superintendent McBride May 18, 1983 (Exhibit #15) asking to give his version of the events, and also saw Mr. Kiernander. He commenced a grievance through his union local #589 of the Ontario Public Service Employees Union (OPSEU), and was successful at the second stage, when the special arbitrator appointed by the Deputy Minister of Labour found, on July 7, 1983, that the transfer was not justified and that Mr. Fu should be reinstated to Osgoode Hall, which was finally done, on July 18, 1983 (Exhibit #16).

42Jack Gordon, who is caucasian, now age 32, joined the OGPS in 1974, and became an acting supervisor in August, 1980. He then wrote a competitive exam successfully, becoming a supervisor in February, 1981, and a supervisor in respect of "D" Platoon in August, 1981. Apart from writing qualifying exams successfully, there was no formal training program before becoming a supervisor. However, in the past year Mr. Gordon has taken various courses assisting him in being trained in various aspects as a supervisor.

43From the testimony of both Mr. Fu and Mr. Gordon there were no apparent problems between them over the period from August, 1981, to the end of March, 1983, almost two years, and they would occasionally pass casual conversation about topics of mutual interest such as the Maritimes (they both having resided there in the past) and cooking.

44Mr. Gordon stated that on the morning of May 5, 1983, he was in Mr. Kiernander's office when Constable Wendy Wilson came in looking distraught and upset. Constable Wilson, Mr. Kiernander and Mr. Gordon all gave substantially the same testimony. They said that when she arrived in Mr. Kiernander's office she looked "distraught" and when Mr. Kiernander asked her what the problem was she replied she had gone to Osgoode Hall to investigate the stolen blood pressure kit and while interviewing Mr. Fu he had begun to yell and scream. All three testified that Constable Wilson made no suggestion that Mr. Fu had taken or used the particular, stolen kit. Mr. Kiernander then directed Mr. Gordon to go to Osgoode Hall and speak to Mr. Fu concerning his conduct toward Constable Wilson during the interview.

45Mr. Gordon testified that when he asked Mr. Fu to explain his behaviour during Constable Wilson's interview, Mr. Fu denied same. Mr. Gordon's entry in his notebook (Notebook #19, at p.98; Exhibit #73) accords with his testimony. In particular it states "I advised Fu it was reported he was yelling and screaming at P/C Wilson during her investigation". Mr. Fu's entry in his own notebook (Exhibit #8) in respect of this meeting makes no mention at all of this accusation of misconduct in respect of the alleged "yelling and screaming", but rather states that Mr. Gordon said "P.C. Wilson told Senior Supervisor Kiernander that I used the first aid room's blood pressure kit, therefore the Senior Supervisor sent (Mr. Gordon) to remind me not to do it in the future".

46Mr. Fu's entry in his notebook three hours earlier, at 9:55 a.m. about his interview with Constable Wilson relates that she asked him about taking blood pressure, and he replied that he had brought in his own kit on one occasion as a favour to two other patrolmen to measure their blood pressure.

47As mentioned, Mr. Gordon testified that he felt he had no real problems with Mr. Fu until the so-called blood pressure kit incident of May 5, 1983. He testified he was in Mr. Kiernander's office talking with Mr. Kiernander when Constable Wilson came into the office, looking "distraught", and when Mr. Kiernander had asked her what was wrong, she explained that during her investigation of the blood pressure kit at Osgoode Hall while interviewing Mr. Wei Fu he started yelling and screaming. Mr. Gordon testified that Mr. Kiernander and Constable Wilson later testified to the same effect. Mr. Gordon testified that when he confronted Mr. Fu a few hours later, Mr. Fu denied that he had yelled and screamed at Constable Wilson, and Mr. Gordon reported this response to Mr. Kiernander.

48Mr. Gordon had not been the person who had told Mr. Kiernander in the first instance that Mr. Fu had been using any blood pressure kit (as he, Mr. Kiernander and Constable Wilson all testified), so Mr. Gordon was not the source of the information which caused Constable Wilson to interview Mr. Fu. As well, Mr. Gordon played no part, and was not even consulted, in the decision later made by management to transfer Mr. Fu from Osgoode Hall to Queen's Park, (as he and Mr. Kiernander both testified, and which was partially corroborated by the testimony of Superintendent Craig about his conversations with Staff Superintendent McBride), although, as supervisor, Mr. Gordon was the person to communicate the fact of the transfer to Mr. Fu (see the entry in his Notebook – Exhibit #74 – for May 17, 1983).

49A second alleged incident in respect of Mr. Gordon related to the practice of "early relieving". Mr. Fu testified that apart from Queen's Park, the security officers at the outposts often entered into an agreement amongst themselves to change the shifts in practice from those formally set by management. For example, if the three eight hours shifts were set to commence at 8:00 a.m., 4:00 p.m. and 12:00 a.m., in practice the platoons might agree to commence at 7:15 a.m., 3:15 p.m. and 11:15 p.m., ending in each case 45 minutes earlier than otherwise scheduled. The reason for such a change seems mainly to have shift changes that better avoided rush hour traffic. While Mr. Fu said he himself was indifferent to such arrangements, as he lived close to the subway, there was considerable peer group pressure from co-workers to conform to such ad hoc worker modifications of the shifts in practice. Apparently, management was well aware of this long-standing practice and did not object. Mr. Julian Baptiste and Earl Jackson in their testimony confirmed Mr. Fu's testimony as to the history of "early relieving", as did other witnesses.

50However, Mr. Fu was to have a verbal altercation with Mr. Gordon on May 16, 1983, on the first day of the order contained in a memorandum dated April 15, 1983, from Staff Superintendent McBride (Exhibit #10), which Mr. Gordon claimed had changed this practice of "early relieving". However, this memorandum can be readily interpreted as simply changing the formal hours to commence shifts by moving them to one minute after the hour, to overcome a technical problem of the Collective Bargaining Agreement, and having nothing to do with doing away with the informal practice of "early relieving". Apart from Mr. Fu, other security officer witnesses also made this interpretation (that the order did not affect "early relieving") including John Harvey, Earl Jackson, Donald Sexton and Arther Dempster. Mr. Fu's testimony accorded with his Complaint which reads:

"b) On or about May 16, 1983, he accused me of disobeying an order of staff superintendent, McBride. The order dealt with a change in hours for the various shifts throughout the O.G.P.S. system. For years the shifts relieved each other a few minutes earlier than specified time change. On the first day (May 15, 1983) of the implementation of the new order, I and my partner were to be relieved at 8:00 a.m. The shift after us came at 7:05 a.m. and we were relieved at 7:15 a.m. This was a normal practice that had built up over the years. The supervisors were all aware of it and no one made any mention of it being a problem. On May 16, 1983, Mr. Gordon singled me out for disobeying the directive of the staff superintendent. No one else was accused of this breach even though we all did this. In addition, he stated that the shifts at the 2 other outside posts i.e. 90 Harbour Street and 125 Lakeshore West, did not relieve each other earlier than the specified time change. Later that day after I had been relieved, I went to 90 Harbour Street and saw that the security officers there, also relieved each other prior to the shift change. I then contacted Mr. Gordon to inform him of this. He simply accused me of challenging his authority". (Exhibit #2).

51Whatever the motivation of Mr. Gordon, and whether or not Mr. Fu was singled out, by Mr. Fu's own testimony, Mr. Gordon warned him at 3:45 a.m. on May 16 not to depart from the 8:00 a.m. – 4:00 p.m. formal shift change, yet Mr. Fu left at 7:15 a.m. (having been relieved by the next shift) and spent a few minutes going to 90 Harbour Street, determining at least from his perception that the security officers there were still practising "early relieving", contrary (Mr. Fu testified) to what Mr. Gordon had told Mr. Fu in warning him at 3:45 a.m. a few hours earlier. Mr. Fu then telephoned Mr. Gordon and told him he would comply with Mr. Gordon's demand (and Staff Superintendent McBride's direction, if that was what his memo – Exhibit #10 – ordered), but only if the requirement was made of all security officers equally. Mr. Fu testified that he felt his fellow workers would be very critical of him if he was the only one to depart from the "early relieving" practice, to the inconvenience of the others, and suggested to Mr. Gordon that a clarifying memo be issued which expressly changed the long-standing practice. Mr. Gordon was angry (as his Notebook – Exhibit #74 – entry for May 16 indicates, and his report – Exhibit #63 – to Mr. Kiernander indicates) at the insubordination on the part of Mr. Fu in directly challenging Mr. Gordon's authority and not obeying his instruction not to "early relieve" that day. Whatever the proper interpretation was for Exhibit #10, there is no question that Mr. Fu deliberately disobeyed the specific instruction of his supervisor, Jack Gordon. However, Senior Supervisor Kiernander did issue a further memorandum advising that "early relieving" was ended, which memorandum was issued later that same day (Exhibit #12, dated May 16, 1983).

52Mr. Gordon testified that he understood that "early relieving" was to end May 15, 1983, and that the order of Staff Superintendent McBride (Exhibit #10) was intended to be to this effect. Mr. Gordon said that he advised all members of his platoon to this effect. However, other security officers, such as Julian Baptiste, testified that Mr. Gordon had not spoken to them about ending "early relieving".

53Mr. Gordon's Notebook (#19, p.7 – Exhibit #74) confirmed his testimony to some considerable extent, as an entry, made at the time, at 7:20 a.m. for May 15 (the day before Mr. Gordon had the altercation with Mr. Fu over early relieving) indicates clearly that Mr. Gordon warned patrolman Lau to stay on duty until 8:00 a.m. and that "Future relieving early to cease".

54Mr. Gordon also testified that he reviewed the interpretation of Exhibit #10 with Mr. Kiernander when the memorandum was issued, and said Mr. Kiernander advised him that the order was to do away with "early relieving". Mr. Kiernander testifed that his interpretation of the order was the same as Mr. Gordon's, and confirmed Mr. Gordon's testimony in this regard. The formal "shift reports" (Exhibit #82 and #83) suggest (incorrectly) that there was no longer early relieving. Security Officer Catherine Anne Hubling confirmed that Mr. Gordon had advised her before May 15, that "early relieving" was to end that day, and her own Daily Journal (Exhibit #84) tends to support her testimony.

55Another supervisor, Swadesh Kumar Channon, confirmed Mr. Gordon's testimony to some extent, saying he understood Staff Superintendent McBride's order (Exhibit #10) to end "early relieving" and so advised the personnel of his platoon. However, it is also clear from Mr. Channon's own testimony that his platoon continued to "early relieve" after May 15, and that he was simply ineffective in getting them to stop.

56As well, when Mr. Gordon told Mr. Fu in the early morning of May 16 not to "early relieve", Mr. Fu, already convinced in his own mind that Mr. Gordon had falsely accused him of theft, thought that Mr. Gordon was out to "pick-on" him again. Clearly, Mr. Fu was not an easy listener as to what was really being said to him, but also, Mr. Gordon was not an effective communicator either. When the next day, May 17, Mr. Gordon informed Mr. Fu that he was being transferred, without any real explanation, Mr. Fu's fears were magnified further.

57In any event, the "early relieving" incident was not a factor in the transfer of Mr. Fu. Mr. Fu disobeyed a direct order in respect of "early relieving" by his supervisor, for which he was not disciplined, other than the occurance indirectly impacting upon his subsequent Performance Rating for the year.

58The "early relieving" practice was very ingrained and pervasive, as notwithstanding Exhibit #12 it was not ended by March, 1984 (see Exhibit #66) when another memorandum was issued (see Exhibit #14) but was ended by about June 26, 1984 when yet another management memorandum (Exhibit #20) was issued, demanding that security officers desist in "early relieving". By this point in time, as well, the formal shift hours had been moved ahead one hour, so that the objective sought through early relieving was achieved by a formal re-adjustment of the shift work periods.

59It was the evening of May 17, 1983, following their altercation over "early relieving", that Mr. Gordon advised Mr. Fu he was to be transferred (Exhibit #13) to Queen's Park. Thus, the two incidents of the perceived allegation of theft, and the problem in respect of "early relieving" culminated, in Mr. Fu's belief, in his being transferred to Queen's Park at Mr. Gordon's instigation. Mr. Fu complains that all of this treatment had resulted from an underlying reason on the part of Mr. Gordon of racial discrimination toward Mr. Fu. It is clear that when Mr. Fu confronted Mr. Gordon at this time, that Mr. Fu sincerely thought the transfer arising after the ”˜blood pressure kit' and ”˜early relieving' incidents, was racially motivated (Exhibits #15, 64, 65).

60Mr. Fu testified that when he did meet on June 2, 1983, with Staff Superintendent McBride, he was told that Constable Wilson's report had in fact stated that Mr. Fu had said he had borrowed the blood pressure kit from the first aid room, and that she reported he had become loud and abusive in her interrogation of him. Moreover, Staff Superintendent McBride told Mr. Fu, as Mr. Fu testified, that it was on Mr. McBride's initiative that Mr. Fu had been transferred to Queen's Park, because of Mr. Fu's shouting at Constable Wilson. Mr. Fu's being loud in reaction to Constable Wilson's questioning is lent some support by his great sense of outrage that he might be accused of being guilty of theft, as seen in his testimony during the hearing. Moreover, his own note in his Notebook (Exhibit #9) includes the entry: "Moral integrity is always my top principle, therefore I am mad about this questioning". Mr. Fu denied that he was loud or abusive toward Constable Wilson, or at any time otherwise while working at Osgoode Hall.

61Constable Wendy Wilson had been an OPP constable since 1974, and from November, 1982 to March, 1984 was stationed as a plain clothes officer at Queen's Park. In that capacity, it was not uncommon for her to investigate thefts in government buildings.

62Constable Wilson testified that Mr. Kiernander told her on May 5, 1983, that a blood pressure kit had been reported missing from Osgoode Hall, and also told her he had been informed that Mr. Fu had been seen to use blood pressure equipment. Mr. Fu was a stranger to Constable Wilson before and after this interview. She knew Jack Gordon only in their professional relationship at Queen's Park. She said that when she met with Mr. Fu and asked him if he had used the missing equipment he replied that he had not, and then went red in the face and began shouting and yelling while explaining that the kit he used had come from a relative. Constable Wilson emphasized in her testimony that she had never regarded Mr. Fu as a "suspect", but it is a fine dividing line as to when someone ceases to be just an interviewee and becomes a suspect, and there seems little point to Constable Wilson's having interviewed Mr. Fu unless he was a possible suspect. However, whether Mr. Fu was a "suspect" or not is entirely irrelevant. Constable Wilson was quite within her duties to interview him, and she did so in an exemplary manner. Upon investigating, Constable Wilson was convinced that Mr. Fu had not stolen the blood pressure kit. All the witnesses in the hearing spoke of Mr. Fu's moral character as being upstanding such that it is inconceivable he would steal anything.

63Constable Wilson went on vacation the next day, May 6, for a week. Her report, indicated and dated May 5, but not read before her departure, says that during her interview with Mr. Fu he "became very loud and started yelling in an aggressive manner" (Exhibit #62). Moreover, the report (as did Constable Wilson's testimony) states that two OPP officers in the lobby of Osgoode Hall became alarmed at the yelling. However, neither of these officers could give any evidence that was helpful on this point.

64Constable Judd Robinson testified that he went on duty at Osgoode Hall May 5, 1983 at 10:00 a.m., and when he opened the office door to enter, he noticed Constable Wilson having the interview with Mr. Fu, closed the door again, and left. He did not observe any untoward conduct (nor has he at any time observed any loudness on the part of Mr. Fu) but presumes he left the immediate area of the office after closing the door and may even have gone upstairs. Therefore, his evidence did not add anything one way or the other on the allegation of yelling and screaming.

65The other constable has a severe phobia about giving evidence in court, and has been receiving medical treatment in this regard for some three years. Affidavits were obtained by both sides from the Constable, but the overall effect is that his evidence is worthless. He certainly does not contradict the evidence of Constable Wilson.

66However, the fact that Constable Wilson would refer to confirmatory witnesses in her report at the time, which could have easily been checked out at the time, really tends to corroborate her testimony. Constable Wilson did not, of course, have any possible motive for misdescribing Mr. Fu's behaviour during the interview. She was an impartial, straightforward, credible witness and I accept her evidence.

67Her report, unfortunately, inadvertently implies in part that Mr. Fu had used the particular blood pressure kit that was stolen, although it also expresses the opinion that he was not responsible for the theft. The inaccuracy in the report may well have compounded Mr. Fu's hurt feelings in that it may have led Mr. Gordon to say to Mr. Fu that Constable Wilson had claimed Mr. Fu had used the particular blood pressure kit (although Mr. Gordon denied having said this to Mr. Fu) when he met with Mr. Fu to discuss the alleged yelling and screaming of Mr. Fu, on May 5. While her report would not have been typed at that point in time, Mr. Gordon may have seen her handwritten notes. Alternatively, Mr. Gordon may have simply gained the impression that Mr. Fu had used the particular blood pressure kit, from the words Constable Wilson used when she spoke to him and Mr. Kiernander. As well, her report may have left the false impression (as related by Mr. Fu) in Staff Superintendent McBride's mind that Mr. Fu had used the particular blood pressure kit. I find that Mr. Gordon did say to Mr. Fu that Constable Wilson had said Mr. Fu used the blood pressure kit (although Mr. Gordon denied it) but this was an impression Mr. Gordon, unfortunately but innocently, gained from her. I also find on the evidence that Mr. Fu did yell and scream at Constable Wilson (although he denied it) and that Mr. Gordon spoke to him about this when he came to see Mr. Fu (although Mr. Fu also denied this).

68However, the inaccuracy in Constable Wilson's report that Mr. Fu had used the particular blood pressure kit in the past was of no real relevance, other than that it heightened Mr. Fu's sense of harassment and persecution. Mr. Kiernander later testified that it was he and Staff Superintendent McBride who made the decision to transfer Mr. Fu to Queen's Park. He said that Mr. McBride reviewed Constable Wilson's report with him, was concerned that Mr. Fu would cause such noice that others walking by the interview office might hear it, and decided to reassign Mr. Fu to Queen's Park where there would be a supervisor present such that if closer supervision of Mr. Fu was needed, it would be available. Mr. Kiernander testified that the "early relieving" incident of May 16 was not known to them at the time of making the decision to transfer Mr. Fu. The source of Mr. Fu's problem was his yelling during the interview, for Staff Superintendent McBride, as Constable Wilson testified, asked Constable Wilson about her report in this regard.

69Mr. Kiernander testified as well that at the later meeting (requested by Mr. Fu) between Mr. Fu, Staff Superintendent McBride and Mr. Kiernander, that Mr. McBride told Mr. Fu his behaviour with Constable Wilson was most unbecoming and did not reflect well on the OGPS, with Osgoode Hall being a "sensitive" posting. Mr. Kiernander said Staff Superintendent McBride told Mr. Fu the transfer would be reviewed in six months' time if his behaviour was satisfactory. It should have been very clear to Mr. Fu by this point of time that he was the source of his problem. However, I think he honestly believes that he did not yell and scream at Constable Wilson. He has been so outraged that his moral integrity was called into question through the investigation, that he has been blind and deaf to his own responses.

70Both Constable Wilson and Mr. Kiernander confirmed Mr. Gordon's testimony that he had been instructed by Mr. Kiernander to attend upon Mr. Fu for an explanation as to his behaviour during the interview with Constable Wilson. As well, Mr. Kiernander testified that his concern was the manner in which Mr. Fu had treated Constable Wilson and the fact that Mr. Fu had been heard outside the interviewing room. Constable Wilson confirmed that Mr. Kiernander had expressed this concern in instructing Mr. Gordon to attend upon Mr. Fu.

71Senior Supervisor George Kiernander, a caucasian, was born and educated in pre-partition India, became a citizen of Pakistan in 1947, and rose to the position of Brigadier in the Pakistan Army, becoming Deputy Chief of the General Staff. He speaks Urdu and Hindi, as well as English. He came to Canada in 1974, joined the OGPS as a patrolman in 1976, and subsequently received promotions, becoming Senior Supervisor in September, 1981, with some 14 supervisors and 142 patrolmen and patrolwomen under his charge.

72Mr. Kiernander testified that it was the supervisor of "B" platoon, Mr. Hunt, who had told him at the time of the report about the missing blood pressure kit, that Mr. Fu had been seen using a blood pressure kit. Accordingly, in contacting Constable Wilson, Mr. Kiernander so advised her. Mr. Kiernander confirmed Constable Wilson's testimony to the effect that when she returned from her interview with Mr. Fu, she seemed "distraught", and when he learned from her that this was because Mr. Fu had yelled and screamed at her, he instructed Mr. Gordon who appeared to be in Kiernander's office at the time, to go down to Osgoode Hall and see Mr. Fu.

73It does seem surprising that Constable Wilson would be so visibly upset when she returned to Queen's Park given the time lapse from her interview with Mr. Fu and the fact that, as an experienced Constable, she would not be more resilient, but I have no doubt in accepting the testimony of Constable Wilson and Mr. Kiernander.

74Mr. Kiernander testified that he himself had been the object of Mr. Fu's yelling on an occasion in April, 1980, when over a minor disagreement about a procedural detail Mr. Fu got "so excited" it was as if he was having "a fit".

75Mr. Kiernander impressed me as a truthful witness, and a gentleman who was polite and fair in his dealings with Mr. Fu and the others who worked with the OGPS. He impressed me as a competent, straightforward, easy-to-deal-with administrator, who did not indulge in the suspicions and pettiness that were so present (as seen from the evidence) on the part of much of his staff. Mr. Kiernander was generally very complimentary about Mr. Fu as a patrolman, other than in respect of the yelling and screaming Mr. Kiernander had been subjected to on one occasion and that which he believed Constable Wilson had also been subjected to.

76Mr. Fu's problem really began with his outrage at being investigated in connection with the theft of the blood pressure kit. He assumed that Mr. Gordon was behind his being a possible suspect in the blood pressure kit incident. The problem that really began May 5 was then compounded by the "early relieving" altercation of May 16. With his transfer coming the next day, May 17, Mr. Fu was convinced that Mr. Gordon was out to harass him, and assumed further that it had a racial motivation.

77Mr. Fu was never told why he was being transferred, before meeting with Staff Superintendent McBride June 2 after the fact of the transfer, even though it was a form of discipine on the part of management.

78The way in which the transfer of Mr. Fu was handled was such as to engender considerable suspicion, disquietude and suffering on the part of Mr. Fu. He thought he was a suspect in a theft, and this only compounded his fears as to what management and his fellow employees would think about him in this regard. At the point of the transfer, May 17, Mr. Fu's Supervisor, Jack Gordon, was undoubtedly very angry with him over his insubordination the night before in respect of the "early relieving" incident. Still, Mr. Gordon had a responsibility to him as his supervisor, let alone as an act of simple courtesy, to explain to Mr. Fu why he was being transferred. Mr. Gordon was insensitive, inconsiderate and even spiteful in not doing so, but I do not think there was any racial motivation.

79Mr. Gordon's inability to communicate effectively with his subordinates was one factor that ultimately led to the problems for not only Mr. Fu, but for himself as well. To some extent, Mr. Gordon became a victim, because he became the target for the frustrations and complaints of some of the security officers working under him, and they made it difficult for him to be an effective supervisor. Ultimately, due to Mr. Fu's Complaint, Mr. Gordon came under a great deal of anxiety and pressure. Superintendent Craig testified that at one point Mr. Gordon broke down in his office, crying, pleading for a transfer as supervisor of "D" platoon, as he was on the verge of a nervous breakdown. Superintendent Craig did transfer Mr. Gordon to a new position.

80The simple fact is, on all the evidence, Jack Gordon had very little to do at all with the blood pressure incident. He simply went to speak to Mr. Fu on Mr. Kiernander's instructions. His only real shortcoming was that he could not communicate effectively with the men under his charge. If he had had any empathy with Mr. Fu and his predicament, and had inspired any confidence and trust on the part of his men, then it may well have been that he would have understood Mr. Fu's feelings about the cloud of suspicion as to the theft, and would have comforted and reassured him, all of which would have tended to ameliorate, rather than exacerbate the situation from Mr. Fu's standpoint. At the least, Mr. Gordon could have reduced the chance of Mr. Fu incorrectly thinking that there was a plot to get him, and that Mr. Gordon was the main author of that misconceived plot, if there had been any effective communication between the two. Any leader must instill trust and confidence in his subordinates. But the issue in this Inquiry was not whether management of the OGPS acted in the best manner; rather, the issue was as to whether there was ”˜racism' underlying their actions.

81Mr. Fu's concerns about Mr. Gordon turned mainly upon these two incidents. Mr. Jackson, a fellow security officer and friend of Mr. Fu, later testified that he heard from Humphrey Lau and Joe Daniels, that they felt they were being harassed by Mr. Gordon, but that Mr. Fu had not complained to Mr. Jackson about other than the blood pressure kit and early relieving incidents.

82However, there were some other incidents referred to in the evidence, which, it was argued, tended to confirm Mr. Fu's suspicions.

83Mr. Fu testified that his annual Performance Ratings (Exhibit #18), done by the Supervisor, had fallen in 1983 and 1984, because Mr. Gordon wanted to discriminate against him. Mr. Fu had received a rating of 15/20 from Mr. Braney in 1980, a rating of 15/20 in 1981 from Mr. Waller, and 17/20 in 1982 from Mr. Gordon, but only 10.5/20 in 1983 and 11.5/20 in 1984 from him. Mr. Fu testified that he thought this very unfair, pointing out he had not taken any of his six day entitlement to sick leave in 1982, and had been qualified to carry firearms in the spring of 1983 through testing, thus upgrading his qualifications. Mr. Fu thought the drop in his evaluation for 1983 was unfair. However, in the previous year Mr. Gordon had given the highest rating (17) Mr. Fu had received from anyone to that time. Mr. Gordon testified that he attended a four day workshop dealing with doing ”˜performance appraisals' in January, 1983, and realized he was being too lenient and not taking into consideration all the factors.

84Mr. Gordon's comments on the 1981–82 Performance Rating, in which he gave Mr. Fu a "17", included two "Always Excels" rankings, with very complimentary comments. Mr. Gordon testified that the Performance Rating for the period ending June 24, 1983 contained two only "Satisfactory" ratings, for "Dependability" and "Relationships", because of the shouting incident with Constable Wilson, and a "drunk usher" incident of June 21, 1983.

85On June 21, 1983, Mr. Fu had suggested to Mr. Gordon that he drive a drunk usher from Osgoode Hall, resulting in Mr. Gordon putting a memo on file that Mr. Fu could not "effectively handle a Common Drunk Situation" (Exhibit #23). Mr. Gordon testified that Mr. Fu had called him and "demanded" that he take the drunk home to Etobicoke in his cruiser car. Mr. Gordon suggested the man be sent home in a taxi, which was done.

86Mr. Gordon explained in his testimony the details underlying his performance rating of Mr. Fu. Mr. Gordon also cited the example of a top member of the platoon recently made senior patrol officer, who received only a 14.5 rating.

87Performance Ratings are put into a security officer's personnel file, and can impact upon the opportunity for promotion, are used for references when seeking other employment, and are used in assessing penalties at disciplinary hearings. Mr. Fu was upset at his 1983 evaluation and sought an appointment with Staff Superintendent Craig through Mr. Gordon. Apparently, this request was made by Mr. Gordon but the appointment never in fact came about because of the Complaint made May 26, 1983, and Staff Superintendent Craig's feelings that, given the Complaint, it would be inappropriate to meet outside of the formal process to resolve the Complaint. On all the evidence, it seems to me and I so find, Mr. Gordon gave fair Performance Rating evaluations in respect of Mr. Fu.

88Mr. Fu stated that he had also been criticized by Mr. Gordon in the oral review on July 30, 1983 of his Performance Rating for refusing to attend in the garage of the new Court House on an occasion to assist the guests of a Supreme Court Justice, but said this request was not made by his supervisor, but rather a co-worker, patrolman Rushton. This incident seems to have been relatively insignificant and does not add anything one way or the other.

89It was suggested that Mr. Fu had once been detailed for Budget Security detail at Queen's Park, apparently a job that is not liked by security officers, and after a few days had booked off sick. Mr. Fu testified that he was sick on the occasion, and did not book off to avoid the job. This incident was also of no real consequence.

90Mr. Fu testified also that on these occasions when he did work at Queen's Park he was given less desirable locations to work at, they being isolated and boring, notwithstanding his seniority, and that white security officers with less seniority were given the favoured locations in unfair preference to him, Mr. Fu, and to Mr. Humphrey Lau, who is also Chinese. However, the evidence on this contention was simply too inconclusive to be of any help. Mr. Fu also took offence to a reference Mr. Gordon had made on an occasion to Chinese living on boats in China or Taiwan, but this statement in itself, seems to have been, at most, simply one made in ignorance and is of no relevance to the issue.

91Mr. Fu had complained to Mr. Gordon in April, 1983, (Exhibit #24) that one security officer, a caucasian, was often absent from his post, and Mr. Fu had documented 14 occasions to substantiate his accusation, but, he testified, his only response from Mr. Gordon was "to mind his own business", and the security officer continued to be absent. However, Mr. Gordon later testified that he was not the particular officer's supervisor, so he had no authority to deal with him, but that he had advised senior management of the accusation, and the man's supervisor had been told about the matter. Mr. Kiernander confirmed in his testimony that he had spoken with the particular supervisor who had come back with an explanation. I accept Mr. Gordon's and Mr. Kiernander's evidence on this matter.

92Mr. Gordon filed a memo (Exhibit #22) with his supervisors November 28, 1983, alleging that Mr. Fu disobeyed his instruction one evening to keep his feet off a desk. Mr. Fu testified that there was, in fact, no such incident and that Mr. Gordon had lied.

93More generally, Mr. Fu testified that Mr. Gordon made disparaging remarks over the communications network to Mr. Fu about blacks on occasion, say "black people don't belong here, they make trouble" and "a majority of crimes are committed by blacks".

94Mr. Gordon never made a racial joke or slur to Mr. Fu directly, or it seems, directly to any other officer of a visible minority. However, Joseph Nigrovik, (who does not know Mr. Fu), a patrol officer with OGPS from 1975, on sick leave since May 9, 1983, testified that he once saw Mr. Gordon put a note, in Mr. Gordon's handwriting, on a notice board in the George Drew building which read to the effect "The Great Wall in China was to keep Chinese in but they came here to build Chinatown". Humphrey Lau said that he often heard Mr. Gordon use racial slurs such as "nigger" and "Paki" (Exhibit #103).

95The Complainant and Commission submit that there was a system of discriminatory treatment, whereby all of the members of visible minorities suffered under their supervisor, Jack Gordon, such as to raise an inference of racial harassment. They allege that the treatment of security officers who are members of minority groups, as compared to the other security officers who are not members of any visible minority groups, evidences this. In support of establishing Mr. Fu's Complaint, they argued that there was discriminatory treatment of other members of visible minorities, in particular, with respect to Humphrey Lau, Earl Jackson, Joe Daniels and Julian Baptiste.

96Joseph Daniels, a member of a visible minority, has been a patrol officer since 1975 and a supervisor since 1984. He testified he was falsely accused of abusing sick leave by Mr. Gordon some years ago, and on occasion heard Mr. Gordon use the terms "Nigger" and "Paki" before he had become a supervisor. He found Mr. Gordon to be too "gung ho" about his job, and took his job too seriously and was too aggressive, to the point of being nicknamed "supercop". Earl Jackson, also of a visible minoirty, described Mr. Gordon as being aggressive and not very tactful in dealing with people. Arthur Dempster, a caucasian, described him as authoritarian. John Hall, a caucasian, referred to Mr. Gordon as a "demanding, aggressive individual with all patrolmen". Constable Wendy Wilson of the OPP viewed Mr. Gordon as one of the better supervisors, who was strict and who was always conscious of his appearance.

97It was obvious from the testimony of most of the witnesses, as well as Mr. Gordon himself, that Mr. Gordon takes great pride in the OGPS and in doing his job. He is conscientious and dedicated. He considers himself to be more than just a "security guard". Mr. Gordon is proud of his niche as a member of a paramilitary force. Mr. Kiernander described Mr. Gordon as young, energetic, honest, extremely keen and enthusiastic about his job and responsibilities, and the image of the OGPS.

98Mr. Gordon is ”˜military' in appearance and attitude. While he has some of the positive qualities often seen in military personnel he also has some of the negative qualities too often seen as well. He is not tactful, is officious, very literal in his interpretation of written materials, and stubborn in the position he takes. He is defensive and argumentative when challenged, and aggressive and threatening when he can exercise his authority.

99Mr. Kiernander described Mr. Gordon as being abrupt, a stickler for procedures, but tactless. Mr. Kiernander described how he himself was once a patrolman working under Mr. Gordon's supervision at the time, and how after Mr. Kiernander found someone on the premises of the outpost building he was patrolling, that Mr. Gordon immediately rushed down from Queen's Park issuing orders to Mr. Kiernander like a "Lance Corporal", demanding that Mr. Kiernander "submit a report immediately".

100Yet these negative characteristics do not, in themselves, suggest any racist attitude. Mr. Kiernander testified that Mr. Gordon once "cradled in his arms" and comforted an elderly black American lady tourist who had tripped and hurt herself at the entrance of the Legislative Building, and that one of the gentlemen in the tourist group expressed appreciation for Jack Gordon's actions. Mrs. Betty Norman, who is black, testified that Mr. Gordon is a good friend of her husband, who is white, and that Mr. Gordon is close to their family and godfather to their six year old daughter, spending considerable time with her. Mr. Gordon would sometimes exchange or share lunches with Supervisor Channon, who is a member of a visible minority.

101Mr. Jackson, a security officer with the OGPS for the past eleven years, testified that in September, 1981, Jack Gordon became Mr. Jackson's supervisor. However, as Mr. Jackson was then working at 125 Lakeshore Blvd., Mr. Jackson only saw Mr. Gordon five or ten minutes a day.

102Mr. Jackson, a Baptist, likes to have the one floating "rest" day a month given to security officers, on Sundays so that he can observe his Sabbath. Until 1981, Mr. Jackson says he had always been accorded the privilege of having Sundays off, by his supervisors, including Staff Supervisor Kiernander. When Mr. Gordon became supervisor, this practice was again followed for some months, but then Mr. Gordon told him he could not have Sunday as a rest day for the month in question, as Mr. Gordon had staffing problems. This happened again a month or so later, and Mr. Jackson was told he would generally have to take his rest day on days of the week that met the convenience of the supervisor. Mr. Jackson spoke with the then senior supervisor, Jack Fraser, without redress. After that point in time, Mr. Jackson did receive some Sundays as his "rest" day, but in other months would not. Moreover, he was transferred out of Mr. Gordon's platoon, "D" platoon, in 1982, and testified he has usually been given Sundays as his "rest" day since. Mr. Gordon testified that he had to change Mr. Jackson's "rest" day because he had staffing problems at the time, and simply did not have enough people to carry out his platoon's responsibilities. Mr. Jackson himself allowed (Exhibit #52) that his "rest" day problem with Mr. Gordon was perhaps due to Mr. Gordon's staffing concerns. I accept Mr. Gordon's evidence with respect to this issue.

103Mr. Jackson surmised that his transfer (Exhibit #51) to "C" platoon was because Mr. Gordon was "picking on" him, as he had heard from Joe Daniel and Humphrey Lau that Mr. Gordon was picking on them. However, it seems clear from all the evidence that Mr. Jackson was transferred (Exhibit #51) at the same time as the other male security officer then working with him at 125 Lakeshore Blvd., and that this resulted because representations had been made by the union to management to have some women stationed at the outposts (see Exhibit #62). Indeed, Superintendent Craig of the OPP later testified that in a routine interview with Mr. Jackson, that on November 25, 1982, Mr. Jackson requested transfer to 125 Lakeshore Blvd. "because he liked it", having worked there before. There was really nothing to this allegation by Mr. Jackson that he was unfairly treated.

104As well, Mr. Jackson testified Mr. Gordon had not responded once in conversation to Mr. Jackson while they were walking together, which perplexed Mr. Jackson. Mr. Jackson also testified that he was given a performance rating (Exhibit #48) of 12 by Mr. Gordon in January 1982, being lower than he had previously received, without explanation. However, Mr. Jackson has received two subsequent evaluations by another supervisor of 10.5. The performance rating evaluation figure is a very subjective evaluation.

105On September 9, 1983, Mr. Jackson was interviewed by Mr. Craig as to what he knew that might be relevant in respect of Mr. Fu's complaint of racial discrimination on the part of Mr. Gordon. He made a statement at this time (Exhibit #52). While it raises the problem of "rest" days, it indicated clearly that Mr. Jackson himself was making no accusations against Mr. Gordon at the time. Mr. Jackson testified that when he met with Superintendent Craig on September 9, 1983, to discuss the Wei Fu complaint, that he said he did not know whether Mr. Gordon was a racist. His statement given to Superintendent Craig was entered as Exhibit #52. However, he testified that the very next day, September 10, 1983, a security officer told him of racial slurs she had overheard from Mr. Gordon. This person did not testify due to illness. Mr. Jackson said that until then, he thought Mr. Gordon's problem was simply that he was "an idiot", and that this statement to him by the security officer caused him to then consider Mr. Gordon to be a racist.

106Mr. Jackson himself does not swear or tell racial jokes, and had not heard much of this nature within the OGPS. However, he testified that Ms. Shannon Stevenson, who has since resigned as a security officer, told him (as he recorded in his September 10, 1983 notebook) she had heard Mr. Gordon say, with reference to blacks that "we all should own one", and that he was "going to teach that Chinese bitch a lesson" in referring to Mr. Fu.

107Ms. Beatrice Polfer, a patrolwoman under Mr. Gordon's supervision, complained generally about her postings, and alleged she was once unfairly disciplined because of him. Ms. Polfer's great-great grandmother was a Canadian Indian, but this part of her ancestry is not obvious from her appearance, and it seems no one knew this, except Mr. Fu, until the hearing. I find on the evidence that there was no racist motivation on the part of Mr. Gordon in dealing with Ms. Polfer.

108Apart from her testimony about racial remarks by Mr. Gordon, Ms. Polfer's testimony did not add anything one way or the other to the main issues.

109Ms. Polfer testified that prior to Mr. Fu's complaint she occasionally heard Mr. Gordon make racial slurs over the radio, and once heard him say in respect of blacks that "Everyone should own one".

110A patrolman, Donald Sexton, testified that he heard Jack Gordon make racial slurs in respect of blacks and orientals.

111Efigenio Dorotheo testified. He has been a security officer for ten years. He said that he felt he was being picked on on one occasion when he was posted at the Wellesley B1 Garage when he saw some officers observing him, without saying anything. Later evidence suggested that this observation was because Mr. Dorotheo was, or at least appeared to be, asleep on the job at the time. It was established on cross-examination that he had a very poor work record generally, as determined by different supervisors. Mr. Dorotheo was defensive and evasive in giving his testimony and it did not add anything in resolving the issues.

112Arthur Dempster, a caucasian, another security officer, and an activist in the local union, testified that he once heard the Respondent say to someone over the radio, "Don't let that black bastard into the building", and that he was asked by American tourists standing near him at the time who were startled by what they heard as to whether they had heard correctly. He testified also that in 1978 Mr. Gordon and he were doing an exterior patrol of the McDonald Block at night, saying that they came across a man of obvious North American Indian extraction lying on a park bench, and that Mr. Gordon told the man to get moving, giving him a kick. I accept Mr. Dempster's evidence.

113Another security officer, John Hall, who was a member of D platoon over the period January 7, 1981 to September 9, 1983, testified that he heard racial remarks or jokes (such as words along the line of "niggers are O.K. – everybody should own one") from Mr. Gordon from time to time, but testified this was not done in a malicious manner, and others in the OGPS would tell racial jokes, including at least one non-white, Julian Baptiste. I accept this evidence of Mr. Hall. Mr. Hall had some suspicions that Mr. Gordon was harsher as a supervisor when disciplining non-whites, but said that he disciplined all officers, including Mr. Hall.

114Mr. Shabbir Davoodbhoy, who immigrated to Canada from Sri Lanka, testified that he was made a supervisor in the OGPS in June, 1976, and after about one and one-half years was asked to resign, which he did. It was obvious from his demeanour that Mr. Davoodbhoy still feels very deeply hurt about his problems in this regard, but his evidence added nothing one way or the other in respect of the issues in this Inquiry. He said that he has been asked to write again the competitive exams to be a supervisor, but says he does not want to. Mr. Davoodbhoy is indeed a sad, humiliated, defeated figure. It is obvious he is a crushed person and that his experience has destroyed any drive for further promotions, and any beliefs as to fairness in his employment. However, without detracting from the sincerity of the feelings held by Mr. Davoodbhoy, there just was no evidence at all to suggest whether or not the problems of Mr. Davoodbhoy had anything to do with his racial origin. The simple fact of being a member of a visible minority group does not in itself mean that someone has been racially discriminated against when demoted. As well, it should be noted that he was promoted to supervisor in the first instance by the same management who later demoted him.

115It was alleged that patrolman Humphrey Lau had also unfairly received unduly poor performance ratings. Mr. Lau felt sufficiently aggrieved that he had a lawyer write a letter to the OGPS in November, 1981 (Exhibit #34). Mr. Gordon testified that Mr. Lau's dress appearance was often poor, he could not be located on occasion while on patrol, and had a record of absenteeism. However, Mr. Gordon testified that Mr. Lau's performance did improve, and that his ratings did rise as a result. Mr. Kiernander, who had also been supervisor to Mr. Lau at one point, confirmed that he too had had problems of absenteeism and improper dress with Mr. Lau. He said that he met with Mr. Lau, together with a superintendent (see Exhibit #39) after receiving a letter (Exhibit #34) from Mr. Lau's lawyer about the performance ratings, and that Mr. Lau did not make any allegations of racial harassment against anyone (see Exhibit #39). On the evidence, I find that Mr. Lau's problems had no racial basis.

116Mr. Matthew O'Brien, president of the local branch of the union for the past one and one-half years, testified that he felt there was "rampant" racial discrimination within the OGPS until Mr. Fu's complaint was made, through isolated postings being assigned, disadvantageous rest days being given, and management's dealing with requests for time off.

117However, there was no real evidence to support such a blanket, generalized accusation. I have already dealt with the problems of the security officers who testified; these problems did not have a basis in ”˜racism'. Moreover, ”˜racism' had not even been raised by the union or discussed with management at the Employment Relations Committee meetings; but sexual harassment had been discussed, as well as ways to effectuate equal employment opportunities for women.

118Mr. O'Brien said that individuals, Humphrey Lau and Julian Baptiste, approached the union with informal complaints, but the Wei Fu grievance in respect of his transfer was the only formal complaint made to management which contained a ground of racial discrimination, and even this one did not raise ”˜race' overtly as the problem, but rather ostensibly dealt with the issue of discipline – that is, should Mr. Fu have been disciplined at all, or at the least, was he unduly disciplined in being transferred to Queen's Park.

119Superintendent Wilbert Carter Craig testified. He has been with the OPP for 29 years and in September, 1982 was appointed Superintendent for the Security Branch (and as of January 1, 1985 became Director of the Security Branch). When he assumed his new appointment in September, 1982, he decided to conduct interviews with all the security officers of the OGPS on a one-to-one basis, to get to know them and to determine their views of their employment position and the job they were doing. He kept notes of these interviews, which were conducted over the period from November, 1982, to October, 1983. In this context he interviewed, among others, Julian Baptiste, Joe Daniels, Shabbir Davoodbhoy, Efigenio Dorotheo, Earl Jackson, Matthew O'Brien, and Beatrice Polfer, all before May, 1983. None of these people suggested any problems of race discrimination in the OGPS, nor were any other major complaints raised by them. However, Superintendent Craig testified that Humphrey Lau raised with him the possiblity of a racist motivation underlying his poor evaluations.

120Superintendent Craig said that in all of his several formal and informal meetings with union representatives preceeding May, 1983, that there was never any suggestion or indication of any problem of racial discrimination. Minutes were kept of the formal meetings and none contained any suggestions of racism. Moreover, after Matthew O'Brien had given his evidence, Superintendent Craig reviewed all of the formal grievances filed by the union for the period of 1981 to the time of his giving evidence, and could ascertain no allegations of racism in any (leaving aside Mr. Fu's grievance, but which in itself did not overtly raise racism as an issue). This review indicated that of the 68 grievances filed over the period, none were by security officers (with the exception of Mr. Fu) who were of a visible minority group. I found Superintendent Craig to be a very truthful and frank witness and I accept his evidence.

121When Superintendent Craig began his interviews of security officers in November, 1982, there was an issue raised of "lack of rotation" in postings, which Superintendent Craig is responding to, but there was no suggestion of racism as a factor in this perceived problem. He is also introducing changes in respect of the performance evaluation process and reporting forms. Superintendent Craig stated that he intends to have the supervisors attend more management training sessions.

122Put simply, "race" was not an operative component on the part of Mr. Gordon, or Mr. Kiernander, Mr. Craig and Mr. McBride, in the treatment of Mr. Fu.

123There was no pattern of differential conduct toward Mr. Fu and other security officers of visible minorities, established by the evidence.

124There is no question that Mr. Fu holds his views with sincerity. Yet they are not only speculative but to some extent preposterous and ludicrous. He believes Jack Gordon was not only the instigator resulting in Constable Wilson interviewing him, but that Gordon was able to get Constable Wilson to falsely accuse him of yelling and screaming during the interview. Mr. Fu has a proclivity for twisting innocuous conversations in his mind. For example, he had once heard Mr. Gordon explain after writing the supervisor's exams that he "knew what was going to be on the exam", and Mr. Fu took this to mean that someone had literally given Mr. Gordon the questions and answers prior to writing the exam, and thus there had been cheating. Perhaps this was Mr. Fu's way of rationalizing within his own mind why Mr. Gordon had done better than him on the exam in question.

125To some extent, an unfortunate group psychology was at work. Humphrey Lau, Joe Daniels, Julian Baptiste and Wei Fu speculated amongst themselves as to whether Jack Gordon was a racist, looking at a lot of relatively minor incidents of friction with their supervisor, and the speculation took on an air of reality. Joe Daniels' evidence was illustrative. He said that initially he did not think his problem (being accused of abusing sick leave in 1981) with Jack Gordon was racially motivated. Then, after speaking with other officers who were members of visible minorities, he began to think that there was a racial element. However, by the time of the hearing he said he had got to know Jack Gordon better and to better understand the position of supervisor (as he now is one) such that he does not think Jack Gordon was racially motivated in dealing with him in 1981.

4. Application of the Law to the Evidence

126It is clear, as I have found on the evidence, that there was no breach of sections 4 and 8 of the Code in respect of the blood pressure kit, early relieving, or transfer of position incidents in respect of the Complainant, Mr. Fu, by either the individual Respondent, Jack Gordon, or Constable Wendy Wilson of the OPP, or by the other members of management who were witnesses in this hearing, Senior Supervisor Kiernander or Superintendent Craig, or by Staff Superintendent McBride, (who was not a witness), in respect of their dealings with Mr. Fu in relation to the mentioned incidents. There was much more that could have been done in the way of effectively communicating with Mr. Fu, particularly regarding the reason for his transfer at the time he was told of it, but this was an error in judgment, or a matter of a failure in ordinary good manners and common courtesy, or a lack of common sense, but it was not a breach of the law. I would make the same finding about the various other incidents raised by other witnesses on behalf of the Complainant, at least insofar as the evidence presented in this hearing. Put simply, management and particularly Jack Gordon, could have done a better job in their dealings with their subordinates, particularly Mr. Fu. There is a great deal of bitterness and hostility on the part of many of the security officers toward Mr. Gordon in particular, and he has himself to blame for much of this, due to the way he has treated those under his charge. However, I find on the evidence that his shortcomings as a manager toward Mr. Fu and the witnesses on his behalf were not due to a racist motivation, and he was not in infringement of the Code in respect of the Complainant, Mr. Fu. Now that Superintendent Craig is effectively in charge of the OGPS, it would seem that these shortcomings of management are being rectified, and a better understanding of the respective viewpoints of management and workers is more likely to be achieved.

127Having said the above, I want to emphasize that the conduct of Mr. Fu was also inexcusable, and he was very much the author of his own misfortune. There is no question that he is of very high moral character. He unquestionably did not steal the missing blood pressure kit. But he must realize that honest, well-intentioned people like Constable Wilson must fulfil their responsibilities of investigation, and that necessarily means on occasion interviewing innocent people. It is part of the unavoidable wear and tear of life to bear the stress of such situations. Mr. Fu must conduct himself civilly in such a situation. He did not, and while it is regrettable that there was a progression of unfortunate consequences arising from his relatively insignificant transgression, the simple fact is that he (like Jack Gordon and everyone else) must be responsible for his conduct and action. Similarly, he had no right to challenge Mr. Gordon's authority in respect of the "early relieving" issue. Mr. Fu is not management, and if he has a grievance there are informal and formal ways to deal with the situation. It was not Mr. Fu's right to disobey Mr. Gordon and to set himself up as the higher authority over "early relieving". Unquestionably, his outrage at anyone even daring to question his moral integrity (in speaking to him about the stolen blood pressure kit) clouded his judgment in dealing with Mr. Gordon's request that he not relieve early.

128The one factor arising from the evidence that suggested a possible breach of the Code was the use of racial jokes and racial slurs by Mr. Gordon. I accept the evidence of the many witnesses who testified to this effect, and reject the denial by Mr. Gordon of their evidence.

129Society has reached the stage where racial humour is increasingly not acceptable. This is a positive development, for such masks a form of racism, whether it is at the conscious or unconscious level on the part of the speaker. It is particularly insidious where it is employed in a power relationship, as it still often is in military or police organizations, or in factories, to try to define relationships, status and position. I think too many people ignore the subtleties and hidden motivations underlying the use of racial humor. Racial jokes, at the least engender a lack of respect, and perpetuate or foster perceptions of stereotypes. Nor is it just caucasians who succumb to this unfortunate practice. The evidence in the hearing suggested that it was a security officer who is the member of a visible minority group who tells more racial jokes than anyone with the OGPS. Even Mr. Fu acknowledged that on one occasion he himself had used a racial epithet in dealing with another officer.

130At the least, a problem with racial jokes and name-calling is that it can lead to a suspicion and perception of racist motives when other problems arise in an employment situation. As well, it enables someone without scruples who has a grievance against a person that is truly unconnected to any racist motivation, to levy an accusation that such person is a racist. (However, in the instant case, I have no doubt of the sincerity of belief on the part of Mr. Fu in his accusations against Mr. Gordon.)

131In the instant situation the use of racial humor, and even slurs, by Mr. Gordon did not, in my view, constitute a breach of the Code. I make this finding because Mr. Gordon's racial jokes and slurs were not directed at Mr. Fu or made to him, and were very much a peripheral aspect of the case. The Complaint arose from the stolen blood pressure kit incident of May 5, 1983, the "early relieving" altercation of May 16, 1983, and the transfer of position in respect of Mr. Fu of May 17, 1983. I have found that these incidents did not have any underlying racial motivation. The unfortunate use of racial jokes and slurs by Mr. Gordon, while thoughtless, stupid and morally wrong, was tangential to the main issues, raised by Mr. Fu's Complaint (and which does not refer to racial jokes or slurs), and did not, on the evidence, constitute a breach of the Code.

132The present day city of Toronto has a large diversity of peoples, from the standpoint of race, ancestry, place of origin, colour, ethnic origin and cultural background, Undoubtedly, this is a main source of its cosmopolitanism and richness in quality of life, and status as one of the very great cities of the world today.

133The stresses sometimes seen in the workplace as a result of peoples of very different backgrounds working together can be ameliorated greatly if two basic approaches are taken. First, it is necessary that the employer (as well as government, churches, families, and the other fundamental insitutions of society) perform an educative function so that people know and understand each other, and hence, have respect for peoples' uniqueness and differences. This serves to prevent misunderstandings and problems. See generally the order made in Harjit S. Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police and Inspector William Dickson(1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 at D/1786. Second, it is imperative that employers have in place fair, expeditious procedures and mechanisms to resolve disputes that have a possible connotation of racism. Mediation should be employed quickly, and if this fails it is necessary to bring into place a dispute resolution mechanism. While such approaches do not, of course, mean that a complainant can not seek redress under the law, legal proceedings should be needed less often and only as a last resort.

134Where an employer's place of business is unionized, then the collective bargaining agreement and the formal organs for interaction between labour and management can be employed to serve the above objectives. For the approach that can be taken in a workplace, see generally, the order made in Dhillon v. F.W. Woolworth Co. Ltd.(1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 at D/763, D/764.

135Superintendent Craig said during his testimony that he intended to introduce seminars on "human rights" within the OGPS, and this is a very sound proposal.

136Susan Vallance, who has been active in union matters in Ontario for the past ten years and presently holds the office, amongst others, of Vice-President of the Ontario Federation of Labour, indicated in her testimony a real consciousness of the need for education in the workplace, to remove racial jokes, racial stereotypes and racial harassment, so that everyone is treated with dignity and respect. If there is a real willingness on the part of union and management officials to address such problems, then not only will there be a contribution to the general betterment of society, but also the employer's business will be more productive to the advantage of both management and workers.

137For the reasons given, the Complaint is dismissed.