Gladstone Leslie Scott v. Foster Wheeler Limited, 1985 CanLII 5246

Foster Wheeler Ltd. v. Ontario (Human Rights Comm.) (No. 1)

1985-05-17

Ontario Board of Inquiry

CHRR Doc. 85-060

Gladstone Leslie Scott

Complainant

v.

Foster Wheeler Limited

Respondent

Date of Decision:

May 17, 1985

Place:

St. Catharines, Ontario

Before:

Ian A. Hunter

Appearances by:

Michael Bader, Counsel for Gladstone Leslie Scott and the Ontario Human Rights Commission

Richard J. Nixon, Counsel for Foster Wheeler Limited

RACE, COLOUR AND PLACE OF ORIGIN — employment referral denied — JURISDICTION — federal/provincial jurisdiction over company making decisions outside provincial boundaries — BOARDS OF INQUIRY / TRIBUNALS — authority to order separate hearing on remedy — REMEDIES — separate hearing on remedy

Summary: The Board of Inquiry finds that Foster Wheeler discriminated against Gladstone Leslie Scott because of his race and colour when it refused to refer him for work in a project in Jamaica.

Scott is a black Canadian whose place of origin is Jamaica. Scott was one of six welders referred by the Boilermakers' Union for the work. Scott passed a welding test, received a current welding ticket, and was specifically authorized to weld for Foster Wheeler Limited on the type of project in question.

However, the company decided to send only four of the men on the list referred by the Union to Jamaica. The four men who were chosen were white. The two who were not sent, Scott and another man, were black.

Previously, a black worker had been sent to Jamaica to work on the project. The company had fired him because of his behaviour and had assumed payment of his extravagant entertainment bills. The Board of Inquiry concludes that this previous incident led the company to discriminate against Scott because of his race, and place of origin, contrary to the Ontario Human Rights Code.

The complaint is upheld. The Board retains jurisdiction to deal with the issue of remedy.

DECISION

1On August 4, 1983 I was appointed by the Honourable Russell Ramsey, then Minister of Labour, to hear and decide the complaint of Mr. Gladstone Leslie Scott alleging discrimination in employment by Foster Wheeler Limited of St. Catherines, Ontario.

2The evidence was detailed consuming fifteen hearing days. Despite the length of the hearings, the facts are quite straightforward, although the proper inferences to be drawn from those facts are not always easy.

3Gladstone Leslie Scott, the complainant, is a 42-year-old black Canadian citizen who was born in St. Andrew, Jamaica. He came to Canada in 1963. Mr. Scott is a boilermaker by trade. He learned his trade in Jamaica and has practised it for 18 years in Canada. He became a member of the International Brotherhood of Boilermakers Union in 1965.

4In January and February 1982 the complainant was working on a blast furnace at Dofasco in Hamilton, Ontario. On that project, his employer was Jaddco-Anderson. In the course of his employment, Mr. Scott learned that Foster Wheeler Limited were hiring welders for a project to repair a boiler in Jamaica. Mr. Scott called Mr. Bill Riches, the Director of the Apprenticeship program for the Boilermakers Union. Mr. Scott told Mr. Riches of his interest in the Jamaican project. Mr. Riches explained that Foster Wheeler had already sent some men to Jamaica, but also that they were experiencing problems and additional men might have to be sent there, Mr. Riches allegedly reassured the complainant that he knew of Mr. Scott's qualifications as a welder and that he would be "first on the list" to go to Jamaica if additional men were required. Mr. Scott mentioned to Mr. Riches that his welding partner, Yasser Masri, would also be interested in the Jamaican project. Mr. Scott testified that Mr. Riches replied that Yasser Masri "... will be second on the list to go because he wanted to send very good men down."

5Sometime after this initial conversation, Mr. Scott testified that he received a telephone call from Mr. Riches. Mr. Riches indicated that the Company was experiencing trouble in Jamaica and was now prepared to send additional tested welders there. Mr. Riches told Mr. Scott that he and his partner (Mr. Masri) should go to the Union office and complete the appropriate welding tests for the Jamaican job.

6The complainant testified that the following day he and Mr. Masri went to the Union office and successfully completed the welding tests. These tests require approval by designated government officials who inspect the quality of the test welds and, if these are satisfactory, issue the person tested with a current "ticket." The complainant's "ticket" bears an expiry date of March 10, 1983 and, from all the evidence, I find as a fact that the date on which the complainant successfully completed this test was on or about March 10, 1982. The "ticket" (Exhibit 7) states that Mr. Scott "has passed the welding test required under section 36 of the Boiler and Pressure Vessels Act and is hereby authorized to weld for Foster Wheeler Limited."

7The complainant testified that, after completing the test, he and Mr. Masri met with Mr. Bill Riches in his office. The complainant asked how long the Jamaican project would last. Mr. Riches indicated three to six months. The complainant inquired as to what the rate of pay was on the job. Mr. Riches indicated approximately $16 per hour, although he was not sure of the exact rate. Mr. Riches then indicated that the job was ten hours a day, six days a week, with a possibility of overtime up to twelve hours per day. Mr. Riches, advised Mr. Scott to obtain three passport-size pictures, and to get a Canadian bank account ready so that his salary could be deposited to his credit in Canada. He indicated that the complainant should be prepared to leave for Jamaica as soon as the Company called.

8At this point in the conversation, the complainant testified that Mr. Riches showed him a list of boilermakers to go to Jamaica if the Company required additional men: the complainant observed that his name was first on the list, and Yassir Masri's name was second. After listening to all of the complainant's evidence, there is no doubt that this list was critically important to his perception of discrimination; Mr. Riches had told him orally that he would be the first to go, and now he saw this confirmed on a written list on which his name appeared first. When other boilermaker' welders, including Yassir Masri, were subsequently sent by the Company to Jamaica and he was not, the complainant's suspicions of discrimination were naturally aroused.

9Unfortunately this list could not be produced as an exhibit at the hearing. Nevertheless, I accept that Mr. Riches did have such a list and that Mr. Scott saw it in exactly the circumstances he related in his evidence. I found Mr. Scott and Mr. Riches to be credible witnesses. In his examination-in-chief, Mr. Riches stated: "Well, as I say, I had several little lists that I had. You know, whenever anybody contacted me ... if I was in my office, I would put it on my notepad, or if I was someplace else, I would, you know ... then I would collect them together and just put them on this format here." (Transcript, Volume VIII, p. 84) In cross-examination he acknowledged that this list which Mr. Scott referred to was probably "gone now" but Mr. Riches went on:

Q. It's all gone? Do you happen to remember where Les Scott's or Yasser Masri's names appeared? Was it towards the middle? Towards the bottom? Towards the top?

A. Oh, no, they were ... Mr. Scott and Mr. Masri, they were all up close to the top, pretty well the top because I didn't get started making ... taking names until after the second group had gone, because all those ones that were in the second group were all names that were given, you know.

It was just shortly after that group had gone that I started, and Mr. Scott came in pretty well after that group had left. (Transcript, Volume IX, p. 51)

Accordingly, I find that Mr. Scott had received Mr. Riches verbal assurance that he would be "first to go" if additional men were needed on the Jamaican project, and in addition he had seen that verbal assurance confirmed by a written list on which his name appeared first.

10At some later date, Mr. Scott saw the list (Exhibit 8; in Mr. Riches handwriting) which he testified was posted in the Union Hall. This list contains the names of 23 welders and begins in the following sequence:

Jim Anderson

Les Scott

Yasser Masri

Vince Valero

Paul Smith

Durval Ribiero

Armand Coehlo

Joe Desousa

11It will be noted that the complainant's name appears second on this list but, again, one ahead of the name of Yasser Masri.

12The complainant next saw a memorandum in Mr. Bill Riches' handwriting (Exhibit 9) dated March 18, 1982 which reads as follows:

Alfie,

Please be informed that Foster Wheeler have selected the following members of Local 128, from the list of applicants, to be assigned to the above project. The expected departure date is Sunday, March 21, 1982.

TIG Welders:

J. Anderson

Y. Masri

V. Valero

D. Ribiero.

13If one compares the second list (Exhibit 9) with Exhibit 8, it is clear that four of the first six names on the list of applicants (Exhibit 8) were actually selected to go to Jamaica. The two who were excluded were Les Scott (the complainant) and Paul Smith. Both Mr. Scott and Mr. Smith are black. Both of their names appear before one or more white applicants who were chosen to go to Jamaica. The four welders who were chosen to go were white.

14The complainant spoke to Bill Riches. He testified that Mr. Riches told him that the Company was experiencing trouble with Stennett White, a black welder who had been sent to Jamaica and who had recently been fired. Therefore, the Company did not want to send any more blacks down on the job. Mr. Riches allegedly said that he disagreed with this decision.

15Obviously this is an important issue and it was put directly to Mr. Riches in cross-examination.

Q. Just before the break I asked you if anyone from Foster Wheeler ever told you that they didn't want to hire any more blacks because of the problems with Stennett White and your answer was ”˜No', and I am now going to read an excerpt from Mr. Scott's testimony, at pp. 57 and 58:

Q. So you have been telling us about this conversation in which he told you that the Company had fired Stennett White, and that there were problems down on the job. Anything else in that conversation?

A. Yes. He said that he was ... that the Company didn't want to send any more blacks on the job because of the problem with Stennett White.

A. Oh, that's not quite correct. I had a discussion with Mr. Scott, and several other black members, that Mr. Stennett White had been fired, and I didn't say that the Company would not hire any more blacks.

I made the assumption that it looks bad for anyone else to get employed, any black Jamaicans to be employed, because of the problems, but this was an assumption on my part.

16From my overall impressions of Mr. Scott's credibility and from Mr. Riches' answer (as quoted above) I do not hesitate to conclude that Mr. Riches communicated to Mr. Scott the information that, after the Stennett White incident, Foster Wheeler did not wish to send any more blacks on the Jamaican project. Whether this was, as he now testifies, just his own assumption, or whether it was communicated to him, directly or indirectly, through his conversation with the Project Superintendent, Mr. Dan Fleming, or with the Labour Relations Manager, Mr. John Schell (see Transcript, Volume VIII, pp. 90–94) is, in a sense, unimportant. Mr. Riches had clearly derived from some individual for whose conduct the Company was responsible an "assumption" that, after the Stennett White incident, Foster Wheeler did not want more blacks on the Jamaica project and he had unequivocally communicated that assumption to the complainant, Mr. Scott.

17Shortly after the third crew departed for Jamaica, the complainant again went to see Mr. Riches at his office. He asked Mr. Riches for his "ticket" from the welding test. Mr. Riches gave it to him. He again asked Mr. Riches about going to Jamaica. Mr. Riches replied: "I am sorry, Les, but your name was taken off the list." The complainant asked why? Mr. Riches replied: "I can't answer that question. There is the Foster Wheeler representative who is responsible." The complainant was then introduced to Mr. Walter Wronski, who was Project Administrator for the Jamaican project. Mr. Scott testified that Mr. Wronski's explanation was as follows:

Well, it is just like being in a football game.' He says, ”˜one minute you are number one and the next minute you are off the field.' He says, ”˜it is just one of those facts of life.'

So I said to him that he should not play ... sort of make that sort of comparison with a game because ”˜this is my job, my livelihood, and I have prepared for the job in Jamaica. Here is my ticket that I passed the test for and why am I not going?' He just sort of kept, you know, joking.

I asked him if he would not ... if it is because of the matter with Stennett White, if he would not mind going down to the Ontario Human Rights Commission with me to discuss this with the Jamaican Commission, that is because of the problem ... if they are not sending me because of the colour problem ...

Q. Yes?

A. ... so that we could solve it. He says he has no time for that, that the Company just selected the men, and that is it. (Transcript, Volume III, pp. 61–62)

18Once again, I find the complainant's version to be borne out, in its essentials, by the testimony of both Bill Riches and Walter Wronski:

Mr. Riches testified:

A. Well, Mr. Scott had inquired about the project in Jamaica. He was inquiring why he had not been selected for the project seeing that Mr. Masri had been selected.

Q. Were these inquires directed towards you?

A. It was directed to myself. Then I introduced Mr. Scott to Mr. Wronski as the Project Engineer for the project with Foster Wheeler.

Q. For what purpose did you introduce Mr. Scott to Mr. Wronski?

A. Well, as Mr. Wronski was the Project Engineer of this particular project in question that Mr. Scott was asking about ... you know, he was asking why he was not selected, and that in fact Mr. Masri who he had recommended had been selected to go to Jamaica.

I said, well, here is Mr. Wronski. Direct your questions to him because he is the man who is making the selections, or he is the representative from Foster Wheeler.

Q. Did Mr. Scott and Mr. Wronski engage in a conversation?

A. Yes.

Q. What did you hear?

A. Well, I can't quote them word for word, but Mr. Scott was anxious to know why he was not selected and what format they used for selecting.

Mr. Wronski more or less informed him ... he subtly used an analogy that he was the coach and he will play the players he wants to play. (Transcript, Volume III, pp. 100–101)

19Mr. Wronski testified:

Q. What did Scott say when he burst into the office? You have told us some things. Is there anything else that he said?

A. Well, he kept demanding that I give him an explanation why he was not selected. He mentioned that I was taking away from his livelihood, and he was just going on and on.

Q. What did you say?

A. Well, I indicated that, one, all the hiring was done by Danny in Jamaica. Secondly, I am sure that that was not the only project in Ontario.

Q. Did you tell him that you had any involvement in the hiring?

A. I told him that the hiring was done by Danny from the site.

Q. What happened next?

A. Well, he still insisted that I give him an explanation. I mentioned something ... I tried to explain that ... you know, it was like a sports hockey, I believe it was. You know, you have ... everybody is a qualified hockey player, but it is the coach ... Danny who makes the final selection who is going to play. (Transcript, Volume X, pp. 47–48)

20The complainant testified that Mr. Riches said that he did not agree with the Company's decision not to send him to Jamaica and that Mr. Riches pointed out to him that he had had Walter Wronski sign Exhibit 9 in his capacity as Company representative. This point is also borne out by Mr. Riches testimony:

Q. Did you have any further discussions with Mr. Wronski with respect to your involvement, or your continuing involvement?

A. Yes, when I asked Mr. Wronski to sign this particular sheet there, that it would be better for myself and the Local not to be involved in any more.

Q. Any particular reason why you no longer wanted to be involved?

A. Well, there was a lot of talk about the job. As I say, there was a lot of unemployment at the time, and a lot of people who were members of Local 128 had shown a lot of interest in going to the Jamaican project. I had concern that the members themselves would think that I was doing the actual selecting and hiring on behalf of Foster Wheeler. I was concerned of the ramifications of those thoughts. I didn't really want nothing more to do with it. (Transcript, Volume VIII, pp. 104–105)

21Mr. Riches confirmed that asking Mr. Wronski to sign Exhibit 9 was an unprecedented step. The only logical inference is that Mr. Riches wanted to disassociate himself from the Company's refusal to send Mr. Scott and Mr. Smith to Jamaica. I conclude that he did that because he did not want the Union to be associated, directly or indirectly, with what Mr. Riches perceived to be a discriminatory, perhaps even an illegal, decision.

22Considerable evidence was led at the Board of Inquiry concerning the dismissal of Stennett White. Stennett White is a black member of the Union who arrived in Jamaica on or about March 7, 1982. He was fired by the Company four days later on Thursday, March 11, 1982. I have not been appointed to determine whether or not Stennett White's firing was motivated by considerations of race or colour. Nor is it my mandate to determine whether or not the Company had just cause to discharge Stennett White. If that were my mandate, I should unhesitatingly find that the Company did have just cause to fire Stennett White. What is important to an appropriate determination of Mr. Scott's complaint is whether or not the problems which the Company experienced with Stennett White, a black welder, influenced their decision about sending other black welder applicants to the Jamaica project. From the evidence, I find as a fact that there certainly was a perception, communicated to the complainant and to other Union members, that because of the problems the company had experienced with Stennett White, it did not want any more blacks sent to the Jamaica project. This perception was, as Vince Hall put it, "common knowledge" at the Union Hall in Hamilton and in Toronto.

23From the foregoing synopsis of the complainant's evidence, I find: (a) that the complainant, Les Scott, was a boilermaker-welder and a member of the Local; (b) that Les Scott expressed interest in the Jamaican project, was encouraged by Mr. Bill Riches to take the required welding test, and that he successfully completed that test; (c) that Mr. Riches told Mr. Scott, and subsequently confirmed his oral assurance by showing him a written list, that he would be first to go to Jamaica if the Company required additional workers on the project; (d) that when a list of local members who applied for the Jamaican project was posted in the Union hall (Exhibit 8), Mr. Scott's name appeared second (behind Jim Anderson): (e) that when the list of welders who were to be sent to Jamaica was posted on March 18, 1982 (Exhibit 9) Scott's name was not on the list; (f) that of the first six names on the applicant list (Exhibit 8) two were removed from those to go to Jamaica; the two men whose names were removed were both black; (g) that Mr. Scott made inquiries of Bill Riches about this omission and was informed that the company did not want any more blacks on the Jamaican project; (h) that the Company representative who signed Exhibit 9, Walter Wronski, did not provide the complainant with any satisfactory explanation as to why men whose names were lower than his on the list had been sent to Jamaica; and (i) that the Company had experienced considerable difficulties with Stennett White, the only black welder on the Jamaican project, which led to his firing within four days of his arrival.

24At this point, I am satisfied that the Commission has established a prima facie case of discrimination. The gravamen of Mr. Scott's complaint is that Foster Wheeler did not recruit or refer him for employment on the Jamaican project and that their decision was influenced, at least in part, by considerations of race and colour. Having established a prima facie case, an evidentiary onus then shifts to the respondent to provide some explanation for their conduct which is at least equally consistent with no discrimination. What is that explanation?

25The respondent's explanation is simple and it is twofold: (1) Neither the Union nor Mr. Riches had authority to select men to go to the Jamaican project; selection was a sole prerogative of the Project Superintendent, Mr. Dan Fleming. (2) Dan Fleming made his decision based on his personal impressions of the calibre of the welders who had expressed interest in the project. Mr. Fleming considered the welders he picked to be better workers than Mr. Scott and, in making that determination, Mr. Fleming was not influenced by the complainant's race or colour.

26The first point in the respondent's explanation I accept. Because the job was outside Ontario, neither the Union nor Mr. Riches had jurisdiction over hiring. Hiring was the prerogative of Foster Wheeler generally and Dan Fleming specifically. This is clear from Mr. Riches' evidence and it is confirmed by Mr. Fleming's evidence (Riches; Transcript, Volume IX, pp. 45–47; 52–53; Fleming, Transcript, Volume XII, pp. 15). Therefore, the fact that Mr. Riches put Mr. Scott's name first on a list or told Mr. Scott that he would be "first to go" did not bind the Company to that assurance. Rather, it was a gratuitous assurance given by a man who was only indirectly involved in the selection process. That Mr. Riches was indirectly involved cannot be disputed. It was Dan Fleming, on behalf of Foster Wheeler who involved Mr. Riches in the process. (See Transcript, Volume VIII, pp. 68–73). Dan Fleming approached Mr. Riches in the latter part of February and told him that he (i.e., Fleming) had selected some welders from the Local to go to Jamaica and that these men would need testing. Mr. Fleming also told Mr. Riches that he might need more men and, in that case, he left Mr. Riches with the names of 12 or 13 welders. If Mr. Riches received word from the Project Engineer, Walter Wronski, he was to call the welders whose names were on that list, have them tested, and get them ready to be sent to Jamaica. In March, 1982 Mr. Riches was called by Mr. Wronski and told that more men were needed; he arranged a meeting at the Union hall with these men. Thereafter, Mr. Riches received another call from Mr. Wronski indicating that more welders should be tested in the event that the Company might need more. It was at this point (approximately the second week of March, 1982) that Mr. Scott was tested and that his name was put second on the list which is Exhibit 8. Mr. Wronski called again and asked Mr. Riches how many had been tested. Mr. Riches told him he had tested seven men and he gave a list containing the following names in the following order: Anderson, Scott, Masri, Valero, Smith and Ribiero. The following day Mr. Wronski called back and indicated the four men – Anderson, Masri, Valero, Ribiero – had been selected. Mr. Wronski testified that the choice of these four was made by Dan Fleming. That Mr. Riches did not agree with Mr. Fleming's choice is proved (a) by the fact that Mr. Riches insisted that Mr. Wronski sign the memorandum revealing the selection (Exhibit 9); and (b) from his viva voce evidence that had the decision been his own, he would have selected Mr. Scott to go to Jamaica. (Transcript, Volume VIII, pp. 106–7).

27Thus, the question becomes whether Mr. Fleming's decision to select other white welders in preference to Mr. Scott was influenced by considerations of race and colour. It it was, then Mr. Fleming's conduct was a violation of section 4 of the Ontario Human Rights Code even though he may also have had legitimate, non-discriminatory reasons for preferring other applicants to Mr. Scott. This is clear from the decision in Regina v. Bushnell Communications (1973) 1973 CanLII 475 (ON HCJ), 1 O.R. (2d) 442; affirmed 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288 (O.C.A.), a decision which has been followed by innumerable Boards of Inquiry in this province for the past decade.

28Foster Wheeler is, of course, liable for the conduct of its Project Superintendent Mr. Fleming. This was conceded by the respondent from the outset of the hearings. The issue I must resolve then is this: Was Dan Fleming's decision to hire other welders (specifically Anderson, Masri, Valero, and Ribiero), in preference to Mr. Scott, influenced by Mr. Scott's race or colour, "... either as a main reason or one incidental to it, or as one of many reasons regardless of priority" to adopt the language of Hughes J. in Bushnell Communications?

29I have concluded that it was. I have reached this conclusion for several reasons.

30I find Mr. Fleming's own explanation of his decision implausible and unconvincing. Mr. Fleming testified that Mr. Scott's race and colour played no part in his decision not to hire him which was based on two considerations: (a) First, Mr. Fleming testified that he had worked with Mr. Scott on at least two occasions in the past (at the Hearn Plant in Lakeview and at Stelco in Hamilton) and that he did not consider Scott to be a good worker; specifically "I never thought he was a man who volunteered to do any heavy work or to get dirty." (Transcript, Volume XII, p. 25). In support of this conclusion Mr. Fleming related an incident at Stelco when a crew was removing the skin casing, a dirty job, and Mr. Scott did not "pitch in."

31In cross-examination, Mr. Fleming acknowledged that the occasion when he worked with Mr. Scott at the Hearn Plant in Lakeview had been ten or twelve years ago and that he had "no problems" with Mr. Scott on that occasion. The second occasion, at Stelco, was approximately seven to nine years ago and Mr. Fleming acknowledged that he did not know whether Mr. Scott had been assigned by the foreman (Mr. Bill Cameron) to assist in removing the skin casing or not. Indeed, Mr. Fleming acknowledged that the complainant could have been specifically assigned to another task. (Transcript, Volume XII, p. 115) Mr. Fleming simply noticed that Mr. Scott's overalls appeared to be too clean to have been "pitching in" at the dirty work. Mr. Fleming testified that he may have worked with Mr. Scott on several other occasions as well, but the only specific adverse comment he had to make about his work was this single Stelco skin casing incident. I attach little, if any, significance to this alleged incident because there is no evidence that Mr. Scott was even assigned to the particular task which he is alleged to have shirked. I prefer instead the evidence of Messrs. Dennis Murphy, Ruel Uylett, Vince Hall, and Bill Riches, each of whom had considerably more experience working directly with Mr. Scott, and each of whom considered him a competent, hard worker.

32The second part of Mr. Fleming's explanation for not hiring Mr. Scott was that he was not as good a welder as the four men – Anderson, Masri, Valero, and Ribiero – whom he did select for that third crew. "The four guys I hired, I thought they were better than Mr. Scott." (Transcript, Volume XII, p. 134)

33I reject this explanation as well. Mr. Fleming acknowledged that Scott was a "good welder" and "dependable"; he did not, however, consider him a "good worker." The evidence before me, from other witnesses who had worked much more extensively with Mr. Scott than Mr. Fleming had, was that Mr. Scott was indeed a very good worker.

34Mr. Dennis Murphy testified:

Q. Did you have occasion to make any observations about the kind and quality of his work?

A. Oh, his work had to be X-rayed, so it had to be pretty good.

Q. During this occasion, did you have an opportunity to observe him working with other men?

A. Yes.

Q. What observations did you make?

A. He got along fine ... no problems.

Q. Do you know whether, on this occasion, he had to be closely supervised or not?

A. No.

Q. On this occasion, did you receive any complaints regarding his quality of work?

A. No.

Q. During this year, did you have an opportunity to observe the kind and quality of his work?

A. Yes. His work was number one, as far as I am concerned. (Transcript, Volume V, pp. 5, 6, 7–8)

35Mr. Ruel Uylett testified that he had worked with Mr. Scott in excess of a dozen times.

Q. Over these many times that you worked with Mr. Scott, do you get along with him?

A. I do.

Q. Did you have an opportunity to see him working with other workers, besides yourself, during these times?

A. Yes.

Q. Did he appear to be a person who got along with people?

A. He gets along with most everybody, I should say.

Q. And I take it, over these occasions in which you worked together, both you and he would be under the supervision of a foreman, or somebody else?

A. Yes, sir.

Q. Did he have trouble carrying out orders from his superiors?

A. No, sir.

Q. Did he appear to get along with his superiors?

A. Yes, he gets along with his superiors.

Q. From your opportunity to observe him, did he appear to be competent in the work he was doing?

A. He is a competent man. (Transcript, Volume V, pp. 46–7)

36Mr. Vince Hall testified that he had known Mr. Scott for approximately 12 years and had worked with him "many times."

Q. During these occasions, did you have an opportunity to observe his work habits?

A. Yes.

Q. What observations did you make, with respect to the quality and kind of work he did?

A. Well I would say that his work has always been of the highest level.

Q. Did you have occasion to observe him working with others?

A. I would say it was comparable with pretty well most of the boiler makers, which is usually reasonably good.

Q. Did you have occasion to see him discharge functions, under directions of a supervisor?

A. Yes.

Q. What can you tell us about how he got along with the supervisors?

A. Usually very well.

Q. Did you have occasion to observe Mr. Scott as a welder?

A. Yes, I have seen him.

Q. Could you advise us, or give us an opinion as to the quality and kind of his work?

A. Well, he developed a sort of expertise as a T.I.G. welder. He's renowned, in Local 128, as a T.I.G. welder. (Transcript, Volume V, pp. 94–95; 96–97)

37Mr. Bill Riches testified as follows:

A. Mr. Scott has worked under myself on many occasions.

Q. During these occasions, did you have an opportunity to make certain observations about the kind and quality of his work?

A. Oh yes.

Q. Can you tell us what your opinion of his working ability is?

A. He was a very good worker. He was ... he always done his assignments dutifully and done them well. I never had any occasion to reprimand him in any way, or any of the foremen who he was working directly under had any problems with him. His work was always of a satisfactory nature. (Transcript, Volume VIII, p. 106)

38I prefer the evidence of Messrs. Murphy, Uylett, Hall and Riches to that of Mr. Fleming. I find as a fact that Mr. Scott was a skilled welder, a competent and hard worker. I do not believe Mr. Fleming when he testified that he rejected Mr. Scott because of his opinion as to Scott's willingness to "pitch in" and do "dirty work." Nor do I believe that he rejected Mr. Scott because of any subjective opinion he held about Scott's capacity for hard work.

39I am buttressed in this conclusion by the fact that, even though Mr. Fleming testified that he had the sole and final choice over who was selected to go to Jamaica, his choices were not sacrosanct. A number of boilermaker welders went to Jamaica who were not selected by Mr. Fleming: Messrs. Groves, Gallant, Choquette, and White to name four (see transcript, Volume VIII, pp. 77, 80, and 81). How can it be contended that Mr. Fleming selected only the most competent and hard-working for the Jamaican project, and that this was Mr. Scott's downfall, when Mr. Fleming did not in fact select several of the boilermaker-welders who actually went to Jamaica?

40After carefully weighing all of the evidence, I have concluded that the explanation for Mr. Scott's failure to be selected for the Jamaican project was based not on his welding or working ability but rather upon Mr. Fleming's discrimination arising from Scott's race and colour. I am driven to this conclusion by my inability to accept, as mere coincidence, that six names were submitted to Mr. Fleming for the third crew; Mr. Scott's name was second and Mr. Smith's name was fifth. Mr. Fleming accepted the names of those who ranked first, third, fourth and sixth. All were white. He rejected the names that were second (Scott) and fifth (Smith). Both were black. True, the list was Mr. Riches' creation not Mr. Fleming's, but the ranking was communicated to Mr. Fleming who nevertheless made the selections which he did. The inference to which I am irresistibly drawn is that the reason that Les Scott was not selected was because of his race and colour.

41This conclusion is fortified when one recalls the circumstances surrounding Stennett White's dismissal. Stennett White is black. He was not Mr. Fleming's choice but nevertheless he found himself in Jamaica. Clearly he caused the Company problems which resulted in the Company having to fire him and to assume payment of his extravagant hotel and bar bills. Although Mr. Fleming denied that Stennett White's dismissal played any part in his decision not to hire Mr. Scott, I do not believe that. The Stennett White incident had clearly caused the Company considerable trouble, embarrassment and cost – sufficient that it had been discussed by Mr. John Schell with Mr. Bill Riches. It would be illogical to imagine that this trouble was not present in Mr. Fleming's mind when he was considering which of the six welders on the list to bring down to Jamaica on the third crew. A considerable part of Stennett White's problems originated in the fact that he was from Jamaica and was lavishly entertaining his relatives and friends at the New Kingston Hotel where the crew was staying. Mr. Fleming may have wanted to protect the Company against a repetition of this type of conduct. Alternatively, he may simply have taken a stereotypical view of black welders based on his unfortunate experience with Stennett White. Whatever the explanantion, the fact is that when he came to select his third crew he selected four white welders and excluded two black welders. Nor was it the case that the Company only needed four and that two of the third crew had to be excluded; in fact, the Company continued to hire welders for the Jamaican project after Mr. Scott had been excluded.

42In rejecting Mr. Scott for the Jamaican project I am satisfied, on a balance of probabilities test, that Mr. Fleming's decision was influenced by Mr. Scott's race and colour. Dan Fleming was the project superintendent for Foster Wheeler and was clearly acting in the course and scope of his employment. I find that Foster Wheeler contravened section 4(1)(a) of the Ontario Human Rights Code by refusing to refer or recruit for employment Leslie Scott on the basis of his race and/or colour and/or place of origin. Accordingly, the complaint of Leslie Scott against Foster Wheeler Limited is upheld.

43I shall deal briefly with two, essentially jurisdictional, objections advanced by the respondent.

44It was contended that I lacked jurisdiction because, if a discriminatory decision was made, it was made by Mr. Fleming in Jamaica and therefore outside provincial boundaries. This submission is without merit.

45Mr. Scott applied for employment in the Province of Ontario with an employer subject to the laws of Ontario. The discriminatory decision not to refer or recruit him for the Jamaican project may have been made by Mr. Fleming in Jamaica (alternatively it may have been made at the Company headquarters in St. Catherines; certainly there was evidence of conversations between Fleming and Company officials following the Stennett White firing) but the decision was communicated to the complainant by a Company official, Mr. Wronski, in Ontario. One must not lose sight of what is at issue. Wherever the actual decision may have been made, it was made by officers of an Ontario employer about an Ontario applicant. It had the effect of denying an Ontario resident a contract of employment subject to Canadian law, federal and provincial (see Exhibit 11) employment for which remuneration was to be paid in Canadian funds by automatic deposit in an Ontario bank. Stripped of irrelevancies, the logic of the respondent's position is that an Ontario company may discriminate on the basis of race and colour as long as the situs of the actual work is beyond provincial boundaries. This is untenable.

46It was also submitted that the complaint form (Exhibit 2) should have specified a violation of section 4(1)(b) (i.e. refusal to employ) rather than section 4(1)(a) (refusal to refer or recruit). Leaving aside the fact that this respondent was not in any way prejudiced by the subsection specified (having been fully aware through a lengthy investigation and conciliation process, to say nothing of thirteen days of hearings of the conduct complained against), I hold that the respondent did refuse to "refer" and "recruit" Mr. Scott for the Jamaican project because of his race, colour and place or origin. Consequently this objection is also dismissed.

47Once a Board of Inquiry concludes that there has been a violation of the Ontario Human Rights Code, section 19(b) confers discretion on the Board to ..." order any party who has contravened this Act to do any act or thing that, in the opionion of the Board, constitutes full compliance with such provision and to rectify any injury caused to any person or to make compensation therefor." Early in the hearing, at the respondent's request, I agreed to defer evidence concerning remedy pending a decision on the merits. I agreed to this based on Mr. Nixon's assurance that it would shorten the time required and expedite the hearing if the issue of remedy was deferred pending a decision on the substantive issue (i.e., whether or not Foster Wheeler did discriminate against Mr. Scott contrary to the Ontario Human Rights Code). Having now given my decision on the merits, I remain seized of the matter to deal with the issue of remedy. I shall ask Mr. Bader, as Commission counsel, to canvass the parties and myself as to an early hearing date to hear evidence and/or submissions on the issue of remedy.