Nimako v. Canadian National Hotels (No. 2), 1987 CanLII 8551

Nimako v. Canadian National Hotels (No. 2)

1987-02-02

Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE

Sam Nimako Complainant

v.

Canadian National Hotels Respondent

Date of Complaint: October 21, 1981

Date of Decision: February 2, 1987

Place: Ottawa, Ontario

Before: H. A. Hubbard

Appearances by: Michael Bader, Counsel for the Ontario Human Rights Commission Lawrence Band and Toni Hardy, Counsel for Canadian National Hotels

RACE, COLOUR AND PLACE OF ORIGIN — employment terminated on the basis of race — racial slurs and harassment by supervisor

Summary: The Board of Inquiry dismisses the complaint of Sam Nimako alleging that he was subjected to racial harassment and was discriminated against because of his race when his employment with Canadian National Hotels was terminated.

Sam Nimako was employed as a refrigeration technician at the Chateau Laurier from 1977 to 1981. In his complaint, he alleged that his supervisors called him ”˜a nigger' to his face and behind his back and that his employment was terminated because of his race.

The Board of Inquiry rejects the evidence of the complainant and his witness, preferring the evidence of the witnesses for the respondent where there is a discrepancy. The Board of Inquiry finds that Nimako was justifiably disciplined for improper conduct, lateness, and job performance failures on a number of occasions. The Board also finds that only one incident occurred in which a supervisor referred to Nimako by using a racial slur, and that this did not amount to harassment nor did it cause Nimako's termination.

The complaint is dismissed.

Introduction

1On the 28th of January, 1985, I was appointed a Board of Inquiry under the Ontario Human Rights Code, 1981, to hear and decide the complaint made by Mr. Sam Nimako alleging discrimination in employment by the Canadian National Hotels, which complaint was signed by Mr. Nimako on the 21st of October, 1981. The hearing into this matter, which began in the City of Ottawa on the 26th of February, 1985, required thirteen days, resulted in nearly three thousand pages of evidence and argument and involved eighty exhibits. A number of adjournments were necessary owing to the difficulty in obtaining the attendance of witnesses, some of whom had moved elsewhere in Canada. Further delay was occasioned by having to receive written argument and issue an interim decision as to the procedure to be followed in respect of a non-suit motion before a board of inquiry under the Human Rights Code of Ontario. Delay was again occasioned when counsel for the respondent was changed. The dates of the hearings in Ottawa in 1985 were February 26, 27 and 28 (the transcript of which is referred to herein as Volume I), March 15 (Volume II), and October 9, 10, 11 and 12 (Volume III). The dates in 1986 in Ottawa were July 8, 9, 10 and 11 (Volume IV). Having been adjourned from the 24th of October, 1986, because of the absence of the complainant, argument was heard in the City of Toronto on November the 10th, 1986 (Volume V), but only with respect to the merits of the complaint. In view of the conclusion that I have reached, it is unnecessary to resume this hearing in order to hear argument relating to the matter of remedy.

2The complainant, who was born in Ghana and is black, alleges that he was discriminated against by the respondent, the Canadian National Hotels, in contravention of paragraphs (b) and (g) of section 4(1) of the Ontario Human Rights Code, R.S.O. 1980, c.340 (hereafter referred to as the Code), which paragraphs read as follows:

4.(1) No person shall,

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

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

because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee. [Emphasis added.]

3Mr. Nimako came to Canada in 1973, and he began his employment with the respondent on July 4, 1977, when he was engaged to work as an air-conditioning and refrigeration technician at the Chateau Laurier Hotel in Ottawa. Upon commencing his employment there he became a member of the Canadian Brotherhood of Railway, Transport and General Workers (hereafter referred to as "the Union"). Initially, his immediate supervisor was Mr. Kenneth Norton, who was the "building supervisor" in charge of the maintenance and (or) engineering department of the hotel, as it was variously described. Mr. Norton, in turn, reported to Mr. Denis Béland, who was the "Manager of Engineering and Maintenance" at the Chateau Laurier Hotel and was at that time responsible as well for maintenance in several of the respondent's other hotels located across Canada. Mr. Norton was assisted in his supervisory duties by Mr. Gerry Pope. In the spring of 1979, Mr. Béland assumed a greater degree of direct supervision over the affairs of this department. Mr. Norton left the hotel in August of that year. Mr. Pope remained in the maintenance department where he was joined subsequently by another assistant supervisor named Ronald Jones. Mr. Jones was junior to Mr. Pope in the department. All four of these supervisors were involved to varying degrees in directing Mr. Nimako during the course of his employment, which came to an end with his dismissal on August 24, 1981 (exhibit 34).

4Although, as will be seen presently, Mr. Norton had on more than one occasion disciplined him, Mr. Nimako's complaint does not extend to Mr. Norton's conduct. However, it is the contention of the Ontario Human Rights Commission (hereafter referred to as "the Commission") that the three other supervisors — Messrs Béland, Pope and Jones — created a racially oppressive work environment that amounted to a condition of his employment and constituted discrimination against Mr. Nimako, contrary to section 4(1)(g) of the Code. It is also contended that the inescapable inference to be drawn from such conduct is that the (or "a") reason for his dismissal was the complainant's race, colour, ancestry or place of origin, contrary to section 4(1)(b) of the Code. Finally, it is the Commission's contention that the respondent Canadian National Hotels is responsible for these actions of its supervisors, none of whom was named as a party to this complaint.

5The assertions of fact made by the Commission in support of its contentions would, if accepted, give rise to some difficult issues of law to which reference will be made in due course. However, in view of my assessment of the evidence, it is unnecessary to deal with those issues at length.

Exposition of Facts

THE SETTING

6It is useful to begin by setting out the following particulars of discrimination contained in the complaint signed by Mr. Nimako in the fall of 1981 (exhibit 2):

Since 1979, my supervisor has been Mr. Denis Béland, Manager, Engineering Maintenance.

From the beginning, Mr. Béland did not care for me.

In May of 1979, Mr. Béland called me "nigger" during an argument relating to work.

On three occasions, he told other employees that "I am going to get rid of the nigger".

Mr. Ron Jones, Assistant Building Supervisor, began work at the hotel in 1980.

On many occasions, Mr. Béland and Mr. Jones have reprimanded me unfairly.

On three occasions, Mr. Béland suspended me.

On two occasions, Mr.Jones also suspended me.

On August 20, 1981, Mr. Béland told me "Sam, from now on I don't like you, and I will find ways and means of getting rid of you. Mind your goddamn business. You and your goddamn union. You can go tell your goddamn union if I want to get rid of you, no one can stop me".

On August 21, 1981, I was dismissed upon being accused unjustly of insubordination by Mr. Béland.

I am a Canadian citizen of Ghanain origin and have reason to believe that I have been discriminated against in my employment because of my race and colour and place of origin.

7In addition to the evidence given by Mr. Nimako in support and amplification of the assertions made in the written complaint, the Commission called two witnesses: Mr. James Beatty and Mr. Glen Spallin. In the course of argument, counsel for the Commission referred as well to the evidence of some of the witnesses called by the respondent.

8The Commission's case, and that of the complainant, consists of the assertion that one racial slur was made directly to Mr. Nimako (and this by Mr. Béland), and that numerous racial slurs were directed against him "behind his back" by Messrs Béland and Jones which were brought to Mr. Nimako's attention by others. Both Mr. Beatty and Mr. Spallin testified to having overheard the use of racially derogatory words by these supervisors in reference to Mr. Nimako, and they added Mr. Pope to the list. (Presumably, Mr. Nimako was not aware of Mr. Pope's alleged involvement until these references were made in the course of the hearing; otherwise, surely, he would have named Mr. Pope in his complaint.) Not only was the condition of Mr. Nimako's working environment poisoned by these racial slurs, it was argued, but it must be concluded that a proximate cause of his dismissal was the racial prejudice of the respondent's managerial staff.

9Mr. Béland and Mr. Jones roundly deny the allegations that they used the offensive language in question, and Mr. Pope admitted to having done so on one occasion only, and then under extreme provocation. All three vigorously deny both that they are racially prejudiced and that they discriminated against Mr. Nimako on the basis of his race or colour. Thus, there is clearly an overriding issue of credibility to be dealt with in determining the facts of this matter, necessitating the setting out of the painstaking appraisal that has been made of the evidence.

10The assertions made in the complaint that he had been "unfairly" and "unjustly" dealt with by management regarding disciplinary matters were elaborated upon at great length by Mr. Nimako. The purpose of this testimony was obviously to bolster the contention that the dismissal was racially motivated. Why else would management unfairly treat the competent and responsible employee that Mr. Nimako made himself out to be? There was considerable evidence not only pointing to the propriety of all the disciplinary measures taken against Mr. Nimako, but calling into question as well his competence, judgment and reliability. Although, for reasons that will become apparent, this aspect of its case was not emphasized by the Commission during the able argument made by counsel on its behalf, the issue of credibility that arises in this context is not without relevance in assessing credibility with respect to the allegations of racial name-calling. Consequently, I believe it will prove helpful to deal with this aspect of the evidence first, as a backdrop against which the allegations and denials of racial name-calling may be viewed and assessed.

THE ALLEGATIONS OF WRONGFUL DISCIPLINE

11Mr. Nimako was employed at the Chateau Laurier for a little over four years. During this time he was involved in fourteen incidents of record resulting in disciplinary action of one sort or another. The first three of these disciplines were initiated by Mr. Norton, whom Mr. Nimako described as a "gentleman" and against whom he made no adverse allegations during his examination-in-chief.

12On November 21, 1977, the then Personnel Manager, Mr. Poirier, wrote a warning letter to Mr. Nimako regarding his having left the premises without Mr. Norton's permission, and reminding him that it was the supervisor's responsibility to assess the nature of problems and assign priorities in dealing with them. In cross-examination, Mr. Nimako said he thought that Mr. Norton had been unfair, but that he did not want to pursue it because he was new in the job and did not want to "jeopardize my files because I needed a job very badly". He said he told Lucette Sargeant about the incident. (In November 1979, Ms. Sargeant was elected local chairperson by the full membership of the union employed at the hotel, and she retained the position until sometime after Mr. Nimako's departure. In view of the dates, Mr. Nimako later acknowledged that he could not have spoken to her at the time about the incident, but he was sure he must have talked to someone in the union because that is normal procedure.) Mr. Nimako gave it as his opinion that, by placing the warning letter in his file, Mr. Poirier was discriminating against him because he is black.

13On December 5, 1977, Mr. Norton issued a reprimand regarding Mr. Nimako's lateness on four days in the previous week, despite his having had earlier verbal warnings. This discipline was neither grieved, nor otherwise challenged.

14On March 22, 1978, Mr. Norton initiated proceedings to have Mr. Nimako suspended for three days for being late on two occasions. The discipline went completely unchallenged.

15The first of the disciplines in which Mr. Béland was involved occurred on May 22, 1979. He issued a conduct report reprimanding Mr. Nimako for "not doing work properly not according to the trade and work cards assigned to him, March 13/79." Although Mr. Nimako said that he thought the work order in question might have concerned an electrical circuit, which "was not something related to his field," it was not established that that was the work in question, or even whether the work referred to was supposed to have been carried out on the day it was assigned, or was something that might be accomplished over a period of days. The work cards (plural) were not put in evidence, and when Mr. Béland testified a year and a half later he was not asked about this aspect of the incident. However, one facet of Mr. Béland's character about which there was universal agreement was that he was a decisive man who got things done and was not in the least hesitant to let anyone know of his displeasure if they failed to carry out the instructions given them. It is difficult to accept either that it took Mr. Béland two months to discover that work orders expected to be completed the same day had not been carried out at all, or that he waited two months before taking action. In any event, this discipline was not challenged even though earlier that month, according to Mr. Nimako, Mr. Béland had called him a "nigger," to the use of which language Mr. Nimako says he voiced objection on the spot. Mr. Nimako made no attempt at that time to connect this supposedly belated and unfair reprimand with the unjustly discriminatory attitude on the part of its author that he now asserts such intolerable language connotes.

16Curiously, although Mr. Nimako did not tie this name-calling to the 1979 March-May disciplinary incident, he does suggest that it was related to a discipline imposed nearly seven months later by Mr. Plamondon, who had replaced Mr. Poirier as Personnel Manager. Mr. Nimako says that Mr. Béland harboured resentment over his having objected to the use of the term "nigger" and that that was the reason Mr. Plamondon issued a conduct record on January 31, 1980, suspending him for three days for insubordination. On this occasion he had refused to carry out a direct order given to him by his supervisor, Mr. Béland, whom he then twice told to do the work himself. Mr. Nimako did not deny the incident, but offered in explanation that he had been ordered to change the glass in a refrigerator door which, once again, is something he claims was not within his field as a refrigeration and air-conditioning technician. Mr. Nimako was subsequently reimbursed for the three days, and he appeared to take this as a complete vindication of his actions. However, it was established conclusively that the reimbursement was made only because of a procedural error on the part of management, which error was pursued on Mr. Nimako's behalf by the union. Indeed, the conduct record was kept on Mr. Nimako's file with the acquiescence of the union. (See the evidence of Mr. Laurent St.Pierre, who was a senior official of the union's Ottawa office during the years of Mr. Nimako's employment at the Chateau Laurier: Volume III, pp. 152–155. See also exhibit 23.)

17Mr. Pope was the author of the next reprimand against Mr. Nimako, issued on May 20, 1980. That reprimand stated that Mr. Nimako had been away from his work station without authorization, had not followed proper procedure regarding "punching in and out," and had taken an extra half hour for lunch. A half hour was deducted from his shift. Although he says he complained that this was not fair because he was just making up for breaks he had missed in the morning, he did not otherwise challenge this discipline.

18On June 13, 1980, Mr. Plamondon imposed a three day suspension upon Mr. Nimako for having been late twenty-four times during a thirty-six workday period. Mr. Nimako complained that this was unfair because his admitted lateness was as a result of his having to attend to a child while his wife was in the hospital. (It may be noted in passing that there was no evidence as to the period of time during which Mr. Nimako's wife was allegedly in the hospital, or whether it was longer than, shorter than, or coincided with the thirty-six day period in question.) Mr. Nimako says that he discussed his problem with Mr. Pope, but it would appear that any discussions he had took place after the fact. Mr. Nimako said as well that he and the local chairperson of the union, Lucette Sargeant, met with Mr. Plamondon to discuss the problem, but to no avail. The time cards were examined and found correct, and in the opinon Ms. Sargeant says she gave to Mr. Nimako at the time "he was actually in the wrong being [late] 24 times out of 36 . . . he was saying management should be more understanding; but after 24 times, I think management was very patient with him, but they did not have to find a baby-sitter for him." (Volume III, p. 684.)

19On September 30, 1980, Mr. Plamondon forwarded a written warning to Mr. Nimako regarding an incident in which he was reported to have kicked and hit a vending machine in the cafeteria and had told a witness to "shut up" when she admonished him for doing so. This disciplinary action was neither grieved nor otherwise challenged. It might be noted in passing that another employee who was white had also struck the machine during this incident and he, too, was similarly disciplined.

20On November 14, 1980, Mr. Jones issued a written reprimand regarding Mr. Nimako's attitude and discourtesy towards him. It is stated that "This employee has great difficulty in controlling his emotions. Seems bent on wasting my time with trivia." Mr. Nimako says that he had simply asked for the location of a switch so that he could carry out a work order, that the reprimand was unfair and that he saw Lucette Sargeant about it. However, the issuance of the reprimand was not grieved. Mr. Jones was unable to recall what the specific incident was that led to this reprimand.

21On May 22, 1981, two conduct records were given to Mr. Nimako, both arising out of an incident involving a Mr. Myles, a casual worker who had been assigned to assist Mr. Nimako in respect of a task he was to undertake that day. Mr. Nimako was reprimanded for countermanding prior instructions given to Mr. Myles to take a piece of equipment to a place where it was urgently needed. Mr. Nimako testified that he had been assigned his assistant by Mr. Béland, that Mr. Myles had not told him of the conflicting instructions of Mr. Jones and that he knew nothing about this until he was summoned into Mr. Jones' office and presented with the conduct record. There was a hearing the next day with respect to this conduct record, and Mr. Myles is reported to have confirmed the assertion that Mr. Nimako had countermanded Mr. Jones' order. Ms. Sargeant testified that she had investigated the incident and had concluded that Mr. Nimako had in fact countermanded the order. Mr. Jones testified that he discovered that the equipment in question had not reached its destination when he found it in a corner of the elevator lobby. "And when I went to Robert Miles (sic.) and asked him what had happened, then he explained to me that he had met Mr. Nimako in the elevator and Mr. Nimako had said ”˜Forget about that, it's not important. Come with me, I need your help'." Mr. Jones was then asked whether Mr. Myles had told Mr. Nimako that he was acting under his (Mr. Jones') instructions, to which Mr. Jones replied "That is my understanding, yes." (Ibid., p. 503.) When asked whether Mr. Nimako had given him any explanation, Mr. Jones said that "[Mr. Nimako's] position was that he really did not think it that important; that his decision was more or less of greater importance than mine."

22The second conduct record issued on May 22 resulted from Mr. Nimako's refusal to leave the building as ordered to do when suspended for the rest of that afternoon. He refused to leave because he wanted to speak to Mr. Béland about the matter. (Curiously, despite his view that Mr. Béland "did not like [him] from the start," had previously discriminated against him and had unfairly disciplined him, when asked whether he had felt that Mr. Béland was going to be fair with him regarding this matter he said "Yes." Volume I, p. 466.) As it turned out, Mr. Béland, who was not available until the following Monday, did not come to Mr. Nimako's assistance. Mr. Nimako said that Messrs Jones, Plamondon and Béland had treated him unfairly because he is black and that they were discriminating against him.

23On August 11, 1981, Mr. Favre, the Executive Assistant Manager of the hotel, wrote to Mr. Nimako concerning an incident that occurred on August 5 involving his having left the hotel without a pass, carrying tools and equipment that were not displayed to the security guard for inspection, as required by the rules of the hotel. On this occasion an unnamed security guard went out of the building after Mr. Nimako and asked him to return, which Mr. Nimako did. The security officer in charge, Mr. Alistair McLean, reported the incident. The pass rule was accepted by the union and was known to the employees. In fact, Mr. Nimako had been stopped at the door and warned about this only four days earlier, and he was required at that time to go and get a pass. Mr. Favre wrote that "in view of the gravity of the offence and the numerous warnings you have already received . . . you will be suspended for one week effective August 6, 1981". This was grieved by the union on the basis of a procedural error on management's part. While maintaining its position on the merits, management then reduced the suspension to two days. The union countered this with the assertion that the procedural error required the removal of the entire suspension, and they threatened arbitration over it. Management then removed the remaining two days of suspension, but did not withdraw its record of the misconduct. The union knew this to be the case, and did not object. (See exhibit 47 and the evidence of Mr. St.Pierre in Volume III, pp. 159–161.) According to Mr. Nimako, Mr. Favre, Mr. McLean and the unnamed security guard were all discriminating against him because he was black.

24The culminating incident occurred on August 20, 1981, when Mr. Béland recommended Mr. Nimako's dismissal on the ground of insubordination and the countermanding of instructions. Although this was grieved, it was not taken to arbitration. The union's position, as stated to Mr. Nimako in a letter written to him by a Mr. Levia, Acting Chairman of the National Appeals Committee, "you did indeed countermand Mr. Béland's orders and this, together with your previous record, is what led to your eventual dismissal." (See exhibit 43.)

25In addition to the foregoing work-related episodes, there was an incident that occurred in the hotel outside of his working hours on the 1st or 2nd of July, 1981, which resulted in a report being placed in Mr. Nimako's file. The report was prepared and signed by a Mr. Donders, who was on duty at the time as a security officer, and it was reviewed and signed by the then chief of security, Mr. Wilfrid Tucker. Mr. Nimako had gone to the Chateau Laurier with his wife in relation to that year's Canada Day festivities. Mr. Donders' report with respect to this incident, which occurred either very late in the evening of the 1st of July, or quite early in the morning of the 2nd, was read into the record as follows:

While walking down the French corridor towards the Governor General's lobby, I observed a black male . . . proceed from the French corridor into the Governor General's lobby. This person was acting in a suspicious manner, therefore I ran to where I last saw him. When I got there I heard what sounded like water splashing on the floor. Thinking that possibly a water pipe broke I hurried into the Governor General's lobby to observe Mr. Nimako urinating on the floor of the partition. He then moved over about 15 feet and stood near the entrance of the ballroom washrooms and cloakroom, still urinating. I approached him quietly, and when I was about 15 feet away from him I shouted, "Hey, what do you think you are doing?" He immediately stopped urinating and quickly put his penis back in his pants (he was wearing shorts under multi-coloured toga and sandals). I then told Mr. Nimako, who in my opinion was drunk, to accompany me upstairs to the security office. At this point he quickly raised his hands in a reflex action; I raised my hands in a blocking action, twisted one of Mr. Nimako's arms behind his back, and pinned him against the wall adjoining to the Adam Room. I warned Mr. Nimako not to make any more sudden moves and to proceed upstairs to the security office. Approximately half way to the security office he said that he lost one of his sandals. I informed him to continue to the office and that he could get it later. Mr. Nimako was identified at the security office in the presence of Mr. Tucker, because he refused to identify himself at the scene. While writing down some information, Mr. Nimako and Mr. Tucker departed to look for his sandal in the Governor General's lobby. They returned a short time later, at which time Mr. Tucker stated that Mr. Nimako admitted to him that he had urinated on the floor in the lobby. He also showed Mr. Tucker where he did it. Mr. Nimako was asked to leave the hotel at about 1:25 hours and escorted to the door. He was informed not to return to the hotel again during the night. Mr. Cardinale (sic.) informed me that he witnessed Mr. Nimako's incident in the Governor General's lobby, when he heard Mr. Nimako urinating on the floor. He knew it was Mr. Nimako because he looked out and recognized him. He only knows him, Mr. Nimako, as Sam . . . (Volume I, pp. 621–624.)

The report goes on to allege that Mr. Nimako re-entered the hotel and was later observed at about 2:30 a.m. urinating against a four foot wall in the parking lot.

26Mr. Nimako denied categorically having urinated in the lobby as alleged in the report, and he denied being drunk at the time. When asked how many drinks he had had, he said "roughly about two drinks." When questioned further he insisted that he had had only two drinks, "because my limit is two bottles" of beer. He said that the report was all a lie, that Mr. Tucker (who, apparently, had never met him before) was lying and had discriminated against him.

27Counsel for the respondent informed the hearing that efforts to locate Mr. Donders in order to have him testify were unsuccessful. Although Mr. Donders did not give evidence, Mr. Cardinali and Mr. Tucker did. Mr. Cardinali's evidence with respect to what happened when he walked into the area where the incident is said to have taken place is the following:

I heard like a splashing of water, a sound of liquid, whatever. As soon as I heard that, I heard someone yelling. I looked over and I saw someone — I recognized him, I saw Sam — I recognized him because I saw him outside earlier drinking. I saw him against some glass doors, like, and another man standing about 15 feet behind him, yelling at him to stop or whatever. And then, I don't know — he took him away. I don't know, I can't really remember anything other than that. (Volume III, p. 453.)

28Under cross-examination Mr. Cardinali (who was no longer employed at the hotel, but who had been a "banquet house man" there at the time in question) said he could not really remember whether he had seen Mr. Nimako drinking. He confirmed that he had not seen Mr. Nimako urinating, but he maintained that he had heard a splashing sound. On re-examination he was asked whether there were "any pipes broken, or any — were there a lot of pipes in the area". His answer was "Not there, not in that area, no." (Ibid., p. 458.)

29At the time of his testimony on July 8, 1986, Mr. Tucker had been a full-time member of the Canadian Armed Forces for nineteen-and-a-half years and was employed by the Forces as a physical instructor in Nova Scotia. During the summer of 1981 he had been employed on a part-time basis by the Chateau Laurier Hotel as its security supervisor. Mr. Tucker described what the security arrangements at the hotel had been, particularly when there were major events such as Canada Day celebrations going on. His evidence regarding the incident was that he was nearby when Mr. Donders brought Mr. Nimako to the security office. Mr. Donders then recounted the incident to him. Mr. Nimako denied having urinated on the carpet in the lobby. The two security officers then played "good guy-bad guy" with Mr. Nimako:

Mr. Donders played the role of perhaps intimidating and not too friendly towards the gentleman. He had denied urinating there. I in turn was being quite friendly and quite agreeable with Mr. Nimako . . . After a period of time, I do not recall how long, it could not have been more than 5 or 10 minutes, I left with Mr. Nimako to go to the Governor General's foyer for him to find his sandal. When we got close to the area, I asked Mr. Nimako why he urinated in the area. I do not recall his exact words; it was to the effect that, well, he had to go, he had to do it, so he did it. He retrieved his sandal, which was at least in the immediate area of where he urinated . . . He indicated that he urinated there. The sandal was right alongside, no distance. (Volume IV, pp. 9–10.)

30As to whether Mr. Nimako had been drinking, Mr. Tucker expressed the opinion that "he had consumed alcohol because you could smell a definite odour of alcohol on his breath. Whether or not he was intoxicated, I really cannot say. He did not stagger like a drunken man would. I made the assumption that he was drunk because when I went back with him, I just did not think anybody sober would do that. I thought naturally that he had had too much to drink and that is why he did it. However, I cannot testify that he was drunk." (Ibid., pp. 15–16.)

31The respondent challenged Mr. Nimako's assertion that his limit was two drinks and that he had never in his life exceeded that limit. Detective David Joseph Gagnon, of the Ottawa Police Force, testified that he had investigated a traffic accident on the 5th of April, 1980, in which Mr. Nimako was involved. He said that Mr. Nimako later pleaded guilty to a charge of having the care and control of a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded the permissible limit, contrary to section 236 of the Criminal Code. The reading was ".15." Detective Gagnon said that he had also noted on his synopsis that Mr. Nimako had had a prior conviction on April 28, 1979, for another offence under the same provision of the Criminal Code. He went on to testify that Mr. Nimako had been convicted under this same provision following a charge laid against him in relation to an occurrence on or about March 31, 1985. (The relevance of this conviction, registered slightly over a month after Mr. Nimako's sworn evidence that he had never before had more than two drinks, will be addressed presently.) The blood alcohol reading on that occasion was ".18." (Volume IV, p. 194 ff.)

32Expert evidence regarding the quantities of beer and liquor that would have to be consumed by persons of various weights in order to raise their blood alcohol levels to various readings was provided by Mr. William Radych, who was then in charge of the Alcohol Section at the Central Forensic Laboratory of the Royal Canadian Mounted Police, located in Ottawa. There was evidence in certain of the exhibits that Mr. Nimako was about six feet tall and weighed about 175 pounds, and Mr. Radych was questioned more particularly in relation to a male of about that height and weight. The assumption that this corresponded sufficiently with Mr. Nimako's size was not challenged. Mr. Radych said that such a man would have to consume ten pints of beer (of average alcoholic content) or fifteen ounces of forty-proof liquor over a period of two to two-and-a-half hours to reach a reading of ".15," and that it would require twelve beers to reach a reading of ".18." The subject would remain at that "plateau" for about two hours before the reading would begin a gradual descent. (Ibid., pp. 611–623.)

33Representatives of two local television stations had been present when Mr. Tucker gave his evidence, and their interviews of Mr. Nimako were broadcast on their national news programmes on July 8. Transcripts of those interviews were filed, as were copies of the tapes. In the interview shown by the CBC Mr. Nimako indicated that he was sure he had been fired because he is black "for the simple reason that my boss called me a nigger son of a bitch and he was going to get rid of me." He then posed this ostensibly rhetorical question: "How would I, a civilized person like me, not Untamed World (sic.), to urinate on the carpet?" (exhibit 79.) In the interview with the CTV station he said the following regarding this incident: "The allegation was wrong. It was unfounded allegation . . . A grown-up person, 46 years of age, well educated, having children, a responsible person: I wouldn't urinate on the floor." (exhibit 78.)

34Although it was asserted that the evidence of the March 31, 1985, Criminal Code offence was not relevant as to whether Mr. Nimako had told the truth when he swore a month earlier that he had never had more than two drinks in his life, it was the respondent's position that this subsequent conviction was further evidence of a serious want of responsibility inconsistent both with Mr. Nimako's nationally televised assertions and the general thrust of his evidence regarding his character and judgment.

THE QUESTION OF THE COMPLAINANT'S COMPETENCE

35In the course of their testimony, Messrs Béland, Jones and Pope each denied that there was any unfairness or racial discrimination in the various disciplines meted out to Mr. Nimako with which they were connected. Moreover, their evidence impugned Mr. Nimako's general competence and reliability, as did the evidence of several other witnesses called by the respondent.

36One of Mr. Béland's concerns was the establishment and implementation of preventive maintenance programmes in his department. He had taken some courses on this subject, and he testified that he had prepared and reviewed the preventive maintenance systems of the Central Railway Station in the city of Montreal as well as in another hotel before designing the preventive maintenance programme for the Chateau Laurier prior to Mr. Nimako's arrival there. The expectation was that the preventive maintenance programme in relation to refrigeration at the Chateau Laurier would take no more than sixteen hours per week, on average. This figure was based on research done by others in both Canada and the United States. Mr. Béland's evidence is to the effect that Mr. Nimako got very little done in the way of preventive maintenance and that Mr. Nimako gave as the reason that the repairs required because of equipment breakdown left no time for it. Mr. Béland said that the maintenance orders simply piled up and the programme was eventually abandoned in respect of refrigeration.

37In addition to his dissatisfaction over Mr. Nimako's failure to meet the objectives of the preventive maintenance programme as it pertained to refrigeration, Mr. Béland had received complaints from the junior supervisors regarding Mr. Nimako's work performance, and he had had job-related difficulties of his own with this employee when directly supervising him. Mr. Nimako's lateness as an aspect of unsatisfactory job performance was also stressed in Mr. Béland's evidence. Documents were filed that showed that, despite the disciplines for lateness that have already been dealt with, Mr. Nimako was late on sixty-three days between January 9, 1980, and his last day of work at the Chateau Laurier on August 21, 1981.

38According to Mr. Jones, Sam Nimako was opinionated, arrogant and emotional. He lost his temper frequently, and he did not have a good relationship with his peers. He was quick to tell his supervisors that he knew more than they did, but what made it intolerable to him was the manner and circumstances in which this occurred. Although Mr. Nimako appeared to have theoretical knowledge, Mr. Jones thought he was not sufficiently skilled when it came to applying that knowledge:

I am quite willing [said Mr. Jones] to stand by and have someone tell me that they know more than I do about a trade, and I am man enough to accept that criticism. But attitude comes into it you know. You have to carry a certain authority in a job position. Other employees sometimes, on more than one occasion, are within earshot so you have to carry yourself in a certain way . . . in my position I had to make a decision as to whether a specific job had to be done in favour of another job. This was part of my job, and part of the line of command. And on occasions, Mr. Nimako took it upon himself to do what he considered to be correct and it was not always in line with what management required . . . As an experienced tradesman I know when a job is well done and when it has not been well done, whether I am familiar with the mechanics of the trade or not. And Mr. Nimako was not a good tradesman as far as the mechanics was concerned. (Volume III, pp. 523–528.)

39Mr. Jones' assessment of the complainant's attitude is echoed in the following statement made by Mr. St.Pierre, the union representative whose evidence has already been referred to:

[T]he biggest problem there was that Sam would tell him plain blank that you know bugger all about my trade. And that was basically — basically very, very openly and it didn't matter. And it was — I suppose it would hurt his pride [the supervisor's] and also his authority. (Ibid., p. 205.)

40Mr. Pope found Mr. Nimako's attitude and work habits exasperating and frustrating to the point that he refused to supervise Mr. Nimako directly unless no other supervisor was available. Mr. Pope said that Mr. Nimako would not accept his decisions regarding priorities and would simply follow his own wishes in that regard.

41In addition to the views expressed by these three supervisors, a series of other witnesses were called to give evidence relating to Mr. Nimako's job performance. The first of these that I will deal with is Mr. Peter Demarah, since his evidence relates to Mr. Nimako's work while employed at the Chateau Laurier, and it confirms that of Mr. Béland and Mr. Jones in material particulars.

42After Mr. Nimako's dismissal, except for a short interval when another in-house technician was employed, refrigeration repairs were carried out by "Pro-Cool," a partnership business which was operated by Mr. Peter Demarah. Based on their yearly bills and hourly rates, he testified that Pro-Cool averaged about ten hours a week in 1983 and 1984 repairing the refrigeration equipment at the Chateau Laurier, and he said that "if you do maintenance you might not have these repairs." (Volume IV, p. 247.) Mr. Demarah, who said he does preventive maintenance in other hotels and buildings in Ottawa, had some familiarity with the equipment that was in the Chateau Laurier in 1980 and 1981, having been called upon from time to time during those years to do repairs. He estimated that a refrigeration preventive maintenance programme at the Chateau Laurier would have required about eight hours work per week. This evidence certainly indicates that Mr. Béland's expectations were not unreasonable, and it suggests that Mr. Nimako was a rather slow worker, indeed.

43Mr. Demarah gave other evidence as well that reflects upon Mr. Nimako's competence and judgment as a refrigeration technician. However, it is necessary to preface that evidence with certain of the testimony given by Mr. Allan Tobio, a bartender who was working in the outside dining area called La Terrasse in the summer of 1981. Mr. Tobio's evidence dealt mainly with the culminating incident of August 20 that lead to Mr. Nimako's dismissal. Mr. Tobio had called the engineering department when he discovered that one of the large coolers on the terrace was out of order. Mr. Nimako arrived and told him that the cooler would have to be emptied and removed from the terrace in order to be repaired. This was a time-consuming prospect at which Mr. Tobio balked, not only because he was loathe to do the work, but because of the considerable disruption it would cause to customer services. The cooler had broken down two or three times before and Mr. Nimako had repaired it without removing it. Mr. Tobio called his food services supervisor and Mr. Béland, who was then contacted, came to the terrace and said "there is no way it [the cooler] has to be taken off the terrace." Pro-Cool was called and the cooler was fixed where it stood. As to Mr. Nimako's previous repairs to the cooler, Mr. Tobio said: "I asked him what was going on because the fan is always kicking out. He said, because of where the unit is situated and the site of the terrace. The wind comes up off the river and up the locks and it just blows out the fan. The fan motor was shut down. There is a space of four or five inches from the wall. If a draft comes up there, it shuts off the motor fan." Mr. Tobio worked on the terrace until it closed at the end or middle of September (he could not recall the exact date, which would have depended on the weather), and he said that there were no further problems with that cooler. (Volume IV, p. 130.)

44After confirming that he had fixed the cooler on the terrace on August 20, 1981, Mr. Demarah was asked whether the cooler had been against the wall when he repaired it. He did not remember. He was then asked whether, "if it was, would the space between the fridge and the wall — if a draft was created between that space between the wall and the machinery, would that have any effect on forcing the fan and breaking the unit? Does that make sense to you?" His answer was "No." (Volume III, p. 368.)

45Mr. Nimako was questioned during cross-examination with respect to his post-Chateau Laurier employment history in order to determine the extent of any financial loss he might attribute to the actions of the respondent. His evidence was that he drew unemployment insurance for a year after leaving the hotel, and that up until February 27, 1985, he had worked in only two places. One was the "Hailey Lodge," whose equipment he repaired on a contract basis for a period of time, earning about $3000, he believed. He could not remember the year in which he did this work. His other job, equally short-lived, was casual work with "Pete's Fruit Garden," through which he thought he had earned not much more than $500. After these disclosures were made by Mr. Nimako, the following exchange took place between him and counsel for the respondent (Volume I, p. 614):

Q. Did you work for anybody else?

A. No.

Q. That was it. You never worked for anybody else?

A. No.

Q. Did you earn money from any other sources?

A. No.

Q. No money? So your wife was the sole breadwinner, with the exception of these —

A. That is right.

In light of this exchange, the mere fact that evidence was given by representatives of two undisclosed companies that employed Mr. Nimako during the period in question is at least as significant as what it was that they testified to.

46Mr. James Booth is the Service Manager for C. A. Paradis, Ltd., a company that sells, installs and maintains commercial restaurant equipment, including refrigeration equipment. He hired Mr. Nimako on June 14, 1982, and let him go the following June 25 because "he just did not fit the bill . . . it was not working out. I did not feel as though Sam was the guy I needed or who could do the job the way I wanted it done." Mr. Booth went on to say of Mr. Nimako that: "He never seemed to be getting the job done. I guess the thing that comes to mind and I guess made my decision is one time, Sam came and asked me to explain how to wire a low pressure control. A low pressure control is just a switch, two wires . . . It is part of the refrigeration." When asked whether this was a complicated matter he replied "No." As to Mr. Nimako's qualifications, Mr. Booth said that he was very impressed with his papers, but "you reach a point where you wonder where he got the papers," and that he had reached that point. "The fundamentals were not showing as a mechanic. You hire a mechanic, whether it be an auto mechanic, a refrigeration mechanic or a dentist, and I am sure to another mechanic or dentist a lack of skill in something will show up to the other person. It did to me . . . It is like the difference between theory and practice, I guess. Maybe somebody can do an examination and answer all the right questions properly, but when it comes to do it with his hands, it is not there." He concluded by confirming his opinion that Mr. Nimako's practical skills did not match his theoretical knowledge. Mr. Booth said that the shop foreman, who also kept a watch on employee performance, had expressed concern about Mr. Nimako "in the way that he was working, I guess continually asking questions, not that that is wrong, but asking questions about what he should already know."

47At Mr. Nimako's request, Mr. Booth provided him with a letter of reference (exhibit 73), addressed to whom it may concern, which reads as follows:

This letter of recommendation is to advise that Mr. Samuel Nimako was an employee of our company for only a period of two weeks.

I found him to be a conscientious worker and always on time.

The reason for his short employment with our company was that we found another person with a background more suited to our needs.

If you have any questions concerning this person please feel free to contact me.

48When asked why he wrote this letter, Mr. Booth replied "Maybe at that time I should not have. But generally I am a guy that likes to help people. I do not want to — I guess — well, Sam asked me I guess for a letter, so I tried to put something together that would help him along in his life, I guess." Mr. Booth's evidence was to the effect that, while what he had written in the letter was true as far as it went, he had not in fact been satisfied with Mr. Nimako's performance and would have disclosed this to anyone who might have taken up his invitation to contact him. Mr. Booth had not testified that Mr. Nimako was unconscientious or tardy, but that he lacked practical skills and never seemed to get the job done. The reason why Mr. Nimako was let go was that he "did not fit the bill" and "was not the guy I needed." I would appear that Mr. Booth, in trying "to put something together that would help Mr. Nimako," thought that the statement that he had found someone with a background more suited to their needs put the situation in its most positive light. In my view, Mr. Booth was a credible and completely disinterested witness whose evidence is not impugned by the lack of complete candour in the reference he supplied to Mr. Nimako. Although it may not have been an overwhelmingly scrupulous thing to have done, it is clear that Mr. Booth had been put on the spot by Mr. Nimako for whom he went as far as he could, and without malice to anyone. (The evidence of Mr. Booth that has been quoted will be found in Volume IV, at pp. 263, ff.)

49It is conceivable that when giving evidence on the 27th of February, 1985, Mr. Nimako had simply forgotten about his ten day stint with C. A. Paradis in 1982. However, that he would recall two other instances of brief, casual employment, but not the four-and-a-half months that he worked at the Rideau Centre in 1983 in circumstances involving another accusation by him of racial prejudice is simply incredible. It is to me beyond question that, in relation to his employment history after leaving the Chateau Laurier, as was the case elsewhere in his sworn testimony, Mr. Nimako made statements that he knew to be false.

50Mr. Richard Moore, the Operations Manager of the Rideau Centre shopping complex, is a stationary engineer, and he has some familiarity with refrigeration equipment. He hired Mr. Nimako on February 11, 1983, and fired him the following June 21. The reason given in the dismissal form was "not knowledgeable enough; poor work habits." Mr. Moore wrote to Mr. Nimako on June 21, 1983, as follows (exhibit 72):

Further to our conversation of June 20th, 1983, we find it necessary to terminate your employment with Viking Rideau Corporation effective June 21, 1983.

Although you have been trying your best to handle this position, I do not feel you are suited for the type of work required at Rideau Centre. On different occasions I have given you work to do and you were unable to complete same to my satisfaction. Additionally you have made unfounded accusations as to the way I am operating this complex, therefore for the above reasons I feel I have no alternative but to give you notice of your termination.

51Despite the passage of time, Mr. Moore was able to recall some of the incidents that led him to the conclusion set out in this letter. On one occasion Mr. Nimako was sent to fix a thermostat. Although he reported that he had done so, a few minutes later the tenant called to say that it still was not working. Mr. Moore sent someone else who did fix it and who reported that it had not been a serious problem. On another occasion a tenant complained about a noise in the ceiling:

I asked Sam to check it out. He told me it was a small fan and the belts were making noises. I said, fine, there is nothing we can do. Quite some time later the tenant must have phoned again and I had the guy on the day shift check it. He came back and reported that there was an access door missing from the main duct in the ceiling and there was air blowing out on to the tenant's ceiling, making noise. I said "there is no small fan there?" He said, "No, there is no mechanical equipment in that ceiling." (Volume IV, pp. 389–390.)

52Mr. Moore found Mr. Nimako difficult to supervise. "He seemed to take everything personal, any instructions, any advice. I always had the impression he did not want anybody's advice because he has all the diplomas and he has all the knowledge." (Ibid., p. 390.) Mr. Moore said that he was "not the type to fire somebody for a couple of mistakes. I think I felt at the time, just in conjunction with his attitude towards supervison, myself in particular, along with the work record — ." At this point he was interrupted with the question whether he felt Mr. Nimako could take instructions from a supervisor, to which he responded "No." (Ibid., p. 393.) Although under cross-examination Mr. Moore said he could not recall Mr. Nimako refusing to carry out any instruction, the thrust of his evidence was that there was an attitudinal problem with Mr. Nimako in relation to the taking of instructions.

53It was Mr. Moore's opinion, as it was Mr. Booth's as well, that Mr. Nimako's performance did not reflect his paper qualifications. "You can have all the certificates in the world. He [Mr. Nimako] passed his exams, but applying theory, the hands on knowledge, I do not feel he could handle it." (Ibid., p. 395.)

54On another occasion Mr. Moore concluded that Mr. Nimako had lied to him, and he said that during a confrontation over this Mr. Nimako accused him of not liking black people:

We were in the "chiller room" where our central refrigeration is. That is where the engineering department is headquartered. There was just him and myself there. The machine shut down. I asked Sam why it shut down. He said he did not know. I said we will check it out to see what is wrong. We found the valve closed. It would be a large valve on a condensation water line. I asked Sam, "Why have you closed the valve?" Sam said he did not. I was not anywhere near the machine and the valve is not of the type that closes by itself. I felt at the time that he was lying to me. I brought this to him. We had a meeting in my office and we went over it. Sam got a little irate. He did not like to be criticized. At that time, he made the accusation that I did not like black people, which was totally unfounded, and I told him so. (Ibid., p. 386.)

55The evidence regarding this incident goes on to indicate that no one else could have entered the room without a key. There would not appear to have been any reason for any other employee with a key to enter and turn the valve off while they were in the room. No motive for Mr. Moore to have done so was suggested or seems plausible. That leaves Mr. Nimako; and after thus narrowing it down in cross-examination, counsel for the Commission observed that "The difficulty I have is why he [Mr. Nimako] would turn off the valve on this machine." To this, Mr. Moore rejoined with what in all the circumstances appears to be a rather plausible explanation: "My personal feeling is he wanted to demonstrate to me his ability to troubleshoot the equipment and find the solution real quick." Mr. Moore then answered, "Yes" to the question whether he thought Mr. Nimako "had set this whole thing up." (Ibid., p. 399–400.)

56Finally it should be noted in respect of this episode that Mr. Nimako's replacement at the Rideau Centre was also black. He was still employed there when Mr. Moore gave his evidence.

57Between the time Mr. Nimako testified on February 27, 1985, and the resumption of the hearing on July 8, 1986, he worked for a company called "Computer Devices." Mr. Bryan Beazer, since employed by the Carleton Board of Education, testified that he had been the Manager of Plant Engineering Maintenance (electrical, mechanical and new construction) at Computer Devices when he hired Mr. Nimako in March of 1985. He was very impressed by Mr. Nimako's qualifications and found him personable. Nevertheless, three months later he fired Mr. Nimako "based on performance and ability." A major problem was the inability to get a report from Mr. Nimako within a reasonable time regarding a preventive maintenance assignment. A satisfactory report had still not been handed in by Mr. Nimako when he left, and the assignment was given to his replacement and finished within a month. Another problem was punctuality. Mr. Nimako was late on five occasions in the three months he worked for Computer Devices. Mr. Beazer also said that he had had a credibility problem with Mr. Nimako who went on trips of dubious necessity to fetch supplies and then put in claims for travel over distances that were quite excessive had the most practical route to the supplier been taken. Mr. Beazer and his director felt that they could not prove that Mr. Nimako had not taken the route he later claimed to have taken, but the incident obviously aroused their suspicions. When asked in cross examination why Mr. Nimako was not fired if they suspected him of falsifying his travel claim, Mr. Beazer said that he believed at the time that an employee, whether on probation (as was Mr. Nimako) or not, could only be dismissed for cause, and that suspicion without clear proof was not a cause. (Volume IV, p. 349.) Mr. Beazer was asked whether other employees had experienced difficulties with Mr. Nimako. He replied that he had had:

. . . a complaint from the union president that he questioned the capabilities of Sam because he was getting complaints from some of the employees that worked in our department, saying that there was a question of whether or not Sam's qualifications were any good. When it came down to doing the work, there was some question as to whether or not he had the amount of experience that I had bragged that he did have, because I touted him as being quite an asset to the company . . . [b]efore he came on board . . . [based on his] qualifications and his résumé and my first impression of him. (Ibid., p. 314.)

58When asked whether he though Mr. Nimako was "a competent technician," Mr. Beazer responded as follows:

I believe that Mr. Nimako has the capability of working on almost any refrigeration system and probably repairing them. The question comes about planning and timing, how long it takes him to do the particular job. I think he has the technical qualifications. I never found him to be lacking in the technical answers. What I found was that in resolving the problems and getting the work done in what I believed to be a certain period of time, he did not match my expectations. I expected work to be done in a certain amount of time and he did not meet that expectation. That is part of performance. I based his performance on his ability to get work done. That includes the planning. That includes the diagnosis of the problem and the planning and repair, if needed, and planning and the outlay of all preventive maintenance work. That is what I expect from refrigeration mechanics that I hired and were working at Computing Devices. (Ibid., p. 320.)

59The evidence that has been reviewed thus far establishes clearly that the respondent had objective cause unrelated to race for each of its disciplinary actions, including Mr. Nimako's dismissal. Indeed, it was the opinion of the complainant's own natural ally, his own union, that his dismissal was legitimate. The letter from Mr. Levia to that effect has been referred to already, and the evidence of Mr. Laurent St.Pierre is quite informative in that regard.

60Mr. St.Pierre worked at the Chateau Laurier Hotel for over thirty-two years, for nineteen of which he was local chairman. He left his employment at the hotel in order to work on a full-time basis for the union. He had known Mr. Béland for at least fifteen years, and he found him to be "fair and firm." The first time Mr. Nimako intimated anything to him regarding racial discrimination was at a meeting held on December 5, 1980. That meeting was a gathering of management and union representatives, with Mr. Nimako present, in "a sincere effort by everybody to get to the root of whatever problems existed . . . The meeting was called to establish peace in the department." (Volume III, p. 192–3.)

61Following this meeting, at which Mr. Nimako claimed that he was being discriminated against (an allegation that was denied), Mr. St.Pierre said he required specifics in order to pursue any allegations of discrimination. All that Mr. Nimako then alleged by way of a specific instance was that on one occasion some considerable time previously one of the supervisors (whose name Mr. St.Pierre could not recall) had called him a racial name. Mr. Nimako could name no witnesses. Mr. St.Pierre never found any evidence of discrimination in the manner in which Mr. Nimako was treated, nor any evidence of racial name-calling. There had been one instance when one of the workmen told Mr. St.Pierre that he had heard from someone else that Mr. Nimako had been called a racial name. Mr. St.Pierre said that he most assuredly would have taken action had he found any basis at all for doing so. He went on to say that in the more than thirty-two years that he had worked at the Chateau Laurier there was never any trace of racial discrimination. (Ibid., p. 270.) Having regard to Mr. Nimako's work record in comparison to the relatively better records of caucasians with whose dismissals he had been involved, it was Mr. St.Pierre's opinion that "If there was any discrimination in this case, it was in [Mr. Nimako's] favour . . . He could've gotten booted earlier, but this is the way I — because I personally don't think that there was any discrimination there." After further discussion, this point was summed up and put to Mr. St.Pierre in this way: "You're saying that had he not been coloured, his record was such, in your view, that he might possibly have been dismissed sooner than was the case?" His answer was, "That's what I said in essence." (Ibid., p. 302.)

62While in the circumstances the absence of any legitimate cause of Mr. Nimako's dismissal would suggest that the wrongful cause was racial discrimination, my conclusion that there was ample legitimate cause for his dismissal does not rule out the possibility that there was a wrongful reason for it as well, such as racial discrimination. Since, as will be seen, improperly motivated decisions are not redeemed by the companionship of legitimate cause, it is necessary to deal with the allegations of racial name-calling in order to determine whether it is to be inferred from the evidence that any such verbal abuse amounted to discrimination constituting a proximate cause of dismissal. This aspect of the evidence must also be reviewed in order to determine whether the work environment in which Mr. Nimako found himself constituted racial discrimination in a condition of his employment.

THE ALLEGATIONS OF RACIAL SLURS

63In support of the general allegation of discrimination made in its concluding paragraph, Mr. Nimako's complaint alleges that (a) Mr. Béland called him a "nigger," and that (b) on three occasions, he (Béland) told other employees that he was going to get rid of that "nigger."

(a) The Direct Racial Insult

64Mr. Nimako testified that in May of 1979 he got into an altercation with Mr. Béland, who insisted that he install a certain compressor despite Mr. Nimako's opinion that it was the wrong piece of equipment. The examination-in-chief with respect to this incident was as follows (Volume I, pp. 99–101):

A. . . . I said, "Mr. Béland, this is not the correct one." He said he does not care. What he said was, "You nigger, you think you always know everything, and I will find ways and means of getting rid of you." And I asked him politely, I said, "Mr. Béland, this has nothing to do with name-calling. The equipment that you have ordered for isn't the right type to do the job, and if use the compressor that you have ordered for right now, automatically is going to burn out and we are going to lose the manufacturer's warranty on it. As a matter of fact, I informed Mr. Norton about it, and Mr. Norton said, "Sam, don't worry, we are going to pack this compressor and send it back to the manufactures.". . . So Mr. Norton asked me to go to my shop and recalculate the compressor, the correct type . . . I recalculated, sent the report to him, and he went to Mr. Dugal . . . [who] signed for the order.

Q. You mentioned Mr. Dugal. Who was he?

A. Mr. Dugal was then the Manager for Chateau Laurier.

Q. Did you mention to either Mr. Norton or Mr. Dugal about the exchange with Mr. Béland in which he used — when he used the term "nigger"?

A. On several occasions, yes. I was in his office with the local chairman, Lucette, and I made a mention of it.

Q. By "him," who do you mean?

A. To Mr. Dugal. And Mr. Dugal says he does not want his practices to be practised in his administration.

65Counsel for the Commission later asked Mr. Nimako whether there were "other occasions in which Mr. Béland, to your face, used the term "nigger" or made any other disparaging remark directed to your race?" The answer was, "No. He did not use the name "nigger." He just used it only on that occasion, when he was mad." (Ibid., p. 150.)

66Mr. Nimako did not suggest that there were any witnesses to this incident. However, he did state categorically that he told Mr. Dugal and Ms. Sargeant about it. Whether he claimed to have told Mr. Norton too is not clear. In answer to a question on this very point, he said he informed Mr. Norton about "it"; but the rest of his answer to that question obscures whether it is to the entire incident, including the name-calling, that he is referring, or simply to the assertion that the compressor had to be exchanged. When asked whether he had mentioned the name-calling to either Mr. Norton or Mr. Dugal, he answered, "On several occasions, yes." While this would seem to indicate that he had told Mr. Norton, the rest of that answer again makes it unclear. In any event, one would think that, if Mr. Nimako had recounted this incident in its entirety to any member of management it would have been to his supervisor, Mr. Norton, in whom he obviously had confidence, rather than to Mr. Dugal, the somewhat distant manager of the hotel.

67Although Mr. Dugal was not called upon to testify, Mr. Norton did give evidence. He said he liked Mr. Béland, whom he knew well, and whom he found to be hard, but fair. He said that both Mr. Nimako and Mr. Béland talked loudly, were emotional and had had boisterous arguments in which Mr. Nimako "gave as good as he got." Even including all the heated exchanges he had overheard between Mr. Béland and Mr. Nimako, Mr. Norton had never once heard Mr. Béland (or Mr. Pope, or anyone else, for that matter) call Mr. Nimako, or refer to him as, a "nigger," or a "black bastard," or in any other way disparage him racially. (See Volume III, p. 104–105.) With respect to the May 1979 allegation, Mr. Norton was asked the following questions by counsel for the Commission, and gave the following answers (Ibid., p. 109):

Q. Did you know a Mr. Dugal when you worked at the Chateau Laurier?

A. I did.

Q. What was Mr. Dugal's position?

A. General Manager.

Q. Did Mr. Dugal ever approach you with respect to a complaint made by Mr. Nimako, that Mr. Béland had used the term "nigger" in an argument with him?

A. No.

Q. You don't recall Mr. Dugal ever speaking to you about Mr. — the allegation made by Mr. Nimako that Mr. Béland had used the term "nigger?"

A. No, he didn't.

Q. No — he didn't talk to you?

A. No, he didn't talk to me.

Subsequently, the following exchange took place on re-examination (Ibid., p. 117):

Q. . . . were [Messrs Béland and Nimako] both emotional individuals?

A. Yes, they were.

Q. Their personalities clashed?

A. Yes.

Q. Did you experience, during your work period time, that clash of personalities?

A. I did.

Q. Did that clash of personalities involve anything racial vis-à-vis Mr. Béland?

A. Not at all.

Q. It was always work related?

A. Work related.

Q. Did Mr. Nimako ever complain to you about the incident of May, '79, in respect to the racial aspect alleged, in other words, that he was being discriminated against because of his colour? Did he ever, ever complain to you about that?

A. No.

Q. Are you sure of that?

A. Yes.

68A complaint of this magnitude regarding another supervisor having called an employee a "nigger" is unlikely to be forgotten, particularly in the context of an episode the rest of which is substantially recalled, and Mr. Norton said that it is not the sort of thing he would forget. The conclusion to which one is driven is that Mr. Nimako did not tell Mr. Norton that he was racially slurred by Mr. Béland. While Mr. Dugal (who, according to Mr. Nimako, said he would not put up with such practices) did not give evidence, it would seem strange that, had Mr. Nimako told him of the name calling, the manager of the hotel would not have talked to Mr. Nimako's immediate supervisor about it.

69The other person to whom Mr. Nimako says he reported this incident was Lucette Sargeant. However, as will be seen, it was Ms. Sargeant's evidence that the only reference that Mr. Nimako ever made to her about the use of racial slurs was in relation to those allegedly made behind his back, and it was in the spring of 1980 that he first mentioned this to her.

70It is difficult to believe that, had the incident described by Mr. Nimako actually happened, he would not have brought it to the attention of persons in authority, both in the hotel management and in the union. In apparent appreciation of that credibility problem, he says that this is what he did. Yet the evidence clearly points in the opposite direction. His assertion that he told Ms. Sargeant of that specific incident is denied by her. Mr. Dugal was not called upon to testify in support of the allegation that he had been informed about the incident by Mr. Nimako; and, had he been told, surely Mr. Dugal would have discussed the matter with Mr. Norton. But Mr. Norton denies ever having heard about it, either from Mr. Nimako or from Mr. Dugal. Mr. Béland vehemently denies having called Mr. Nimako a racial name on that, or on any other occasion, whether in his presence or not.

71At best, the Commission has failed to establish on a balance of probabilities that Mr. Béland called Mr. Nimako a "nigger" to his face. However, his assertion is not simply to be stamped "unproven"; it is in my judgment, untrue. That is a conclusion that I have no hesitation in reaching, since I found Mr. Nimako to be an evasive and untruthful witness. He did not tell the truth regarding the "urinating" incident. He did not tell the truth about his drinking habits. He did not tell the truth about his employment history. And there are other inconsistencies in his testimony yet to be revealed.

(b) Racial Slurs Reported By Others

72Turning to Mr. Nimako's allegation that he had been told on three occasions by others that Mr. Béland was going to get rid of him, the "others" in question were identified by him as James Beatty (referred to phonetically in various places in the evidence as "Beechings" or "Beattie"), Glen Spallin (referred to at times as "Spotland" or "Sporlan"), and someone called "Antonio." Mr. Nimako said these people had spoken to him about this in 1979–1980 — "between those years." (Ibid., p. 148.) During cross-examination Mr. Nimako indicated that the years might have been 1980–81. (Ibid., p. 521.) There was a great deal of confusion as to who said what, when and on how many occasions. For instance, after naming a third person allegedly involved (one "Antonio," who was never called as a witness), the following exchange took place between Mr. Nimako and counsel for the Commission:

Q. Are these three separate incidences (sic.) that you were being told?

A. That is right.

Q. And can you help me, help us in giving us some time frame as to when they occurred?

A. For that I do not remember specifically but in one occasion —

Q. When were you told? When can you recollect being told?

A. Yes. I was told, I think, either 1980 or so — approximately 1979–1980, between those years. But what happend was — oh, do you want me to tell what happened?

Q. Okay, tell us what happened.

A. Okay. He said management made him aware that they were going to get rid of that nigger. That is one instance. The second instance also he heard them saying it in the office that they were going to get rid of the nigger. And the third one he came to the shop. He asked me, "Sam, what have you got against Mr. Béland or what has Mr. Béland got against you? He does not like you, he calls you different names such as nigger." And I said, "Well, that is his own trouble because I do not go about calling people different names. But I hope it was related to a job that he asked me to and I did it my way." That was the answer that I gave to him that brought the whole disagreement between myself and Mr. Béland. (Ibid., p. 149. Emphasis added.)

73While one would assume that the "he" referred to as the informant in the last answer in that exchange was the same person throughout, and that that person likely was "Antonio," the last of the informants referred to, the rest of Mr. Nimako's testimony, particularly that adduced through cross-examination, makes it abundantly clear that Mr. Nimako's evidence is that each of the three informants spoke to him one time only in connection with remarks made by others concerning him.

74With respect to the disclosure attributed to Mr. Beatty, Mr. Nimako said he could not "really recall what happened, but he informed me several times to be aware of myself and be very, very careful of myself because I have got so many people watching me . . . Those were his exact words." This response was followed by considerable confusion again as to how many times Mr. Beatty had raised this matter with Mr. Nimako. Finally, this exchange occurred between him and counsel for the respondent (Ibid., pp. 524–525):

Q. So we are talking about one occasion now and it is Beatty?

A. That is right.

Q. Speaking to you several times.

A. That is right.

Q. Okay. Did Mr. Beatty say other things, or is that it?

A. That was it.

Q. Now the next guy is Glen Sporlan. (Sic.)

A. Right.

75Before turning to Mr. Nimako's account of the episode with Mr. Spallin, it should be noted that the phrase "people are watching" came up with some frequency in Mr. Beatty's testimony as well. At one point in his evidence Mr. Beatty described his solicitude for his co-workers, generally, in these terms (Ibid., pp. 659–660):

[I]f I happened to overhear the bosses scheming to get someone, I would go and inform them, "You are being watched." This was more or less the system we had . . . when one of the employees happened to overhear, or a tradesman, whoever happened to hear, like the bosses start scheming up a little trick, they would more or less be able to pinpoint where they are going and they know who is working in that area, so they notify them.

76In explaining what he meant by "scheming up a little trick", Mr. Beatty indicated that Messrs Pope and Jones spied on the men, Mr. Pope in a manner rather less clumsy than that of Mr. Jones (Ibid., p. 661):

Mr. Pope had a habit of peeking around corners to watch an employee, and if the employee did not look like he was doing the job right, or something like that, he would end up with a reprimand . . . Mr. Jones could never sneak around corners. He was always too obvious.

Thus, it is not unlikely that when one of the employees told another to be careful, "you are being watched," it was meant to be taken literally. It seems, as well, that it was a system — a not uncommon practice — of which Mr. Nimako was not the sole beneficiary. This would suggest that it may be something of an exaggeration to draw the inference from this warning that the person thus alerted is going to be got rid of.

77Mr. Glen Spallin, about whom more is to be said, was for a time during Mr. Nimako's stay at the Chateau Laurier, the shop steward in the department. Mr. Nimako said the revelation made by Mr. Spallin occurred when he called him into the storeroom where he worked. The following exchange with counsel for the respondent then took place (Ibid., p. 526):

Mr. Nimako: He (Spallin) says, "Sam, be very, very careful of yourself," because he attended . . . a meeting with management, and management made him aware that they were going to get rid of the nigger.

Q. I see. and did he say who was there? Were those his exact words?

A. Exact words.

Q. Exact words. Did he tell you which management were there?

A. No. He did not name any names.

Q. . . . Did he speak to you again, or was this the only time?

A. That was the only time he told me.

78It is worth pointing out immediately that, apart from Messrs Beatty and Spallin, every other witness who worked at the hotel during Mr. Nimako's time there was asked whether he or she had ever heard any member of management call Mr. Nimako a "nigger" or use any other derogatory expression in relation to him. The reply was, without exception, "No." These witnesses included the only possible members of management to whom Mr. Spallin could have been referring. It is even more important to note that, in testifying that Mr. Spallin did not "name any names," Mr. Nimako contradicted his earlier statement and allegation that on three separate occasions, this being one of them, he had been told that Mr. Béland had called him a nigger.

79We now come to the final revelation, allegedly made by an electrician named "Antonio," whose last name Mr. Nimako could not recall (Ibid., p. 527):

Q. . . . What did he say to you?

A. Well, he comes to my shop . . . and says, "Sam, you have got to be very, very careful, because Denis Béland does not like you. He calls you different names."

Q. Those were his exact words?

A. Those were his exact words, but I cannot give you a specific period.

Q. Okay. Fine. Did he say that to you once, twice?

A. He said it to me once.

Q. Once. So are those the three occasions that you referred to there?

A. That is right.

80The allegation that Mr. Nimako had been told on three occasions that Mr. Béland had in the presence of others called him a "nigger" and threatened to get rid of him is of crucial importance to his and the Commission's case. If true, it points towards both the possibility of discrimination in the termination of his employment and the existence of a racially discriminatory working environment. Yet, Mr. Nimako's evidence in respect of this most crucial aspect of the matter is exceedingly lacking in a number of respects. In his complaint he says that on three occasions Mr. Béland (a) while speaking to others referred to him as a "nigger," and (b) declared the intention of getting rid of him. However, during the laborious process of reviewing those incidents with Mr. Nimako it transpires that it is only Mr. Spallin who said that "management made him (Spallin) aware that they were going to get rid of the nigger." Not only does Mr. Nimako through silence fail to tie this reported allegation of Mr. Spallin's to Mr. Béland, but he expressly states that Mr. Spallin "named no names." As to Mr. Beatty, all that Mr. Nimako claims that that informant told him was that he should be very, very careful because he had so many people watching him. In answer to a direct question put to him, he confirmed that that was all that Mr. Beatty had told him. It would seem that, as far as Mr. Nimako is concerned, Mr. Beatty did not even expressly include Mr. Béland amongst the watchers, let alone attribute to Mr. Béland (or to anyone else) either the use of racial slurs, or the intention of getting rid of him. While Mr. Nimako did attribute to the third informant, "Antonio," the statement that Mr. Béland did not like him and had called him "different names," it is not alleged that Antonio said that Mr. Béland declared the intention to get rid of him. Mr. Nimako said that Antonio had made the statement once only, and that those were his exact words. All that this appears to come down to is that someone named "Antonio" supposedly overheard Mr. Béland call Mr. Nimako some unspecified names, leading the informant to assume that Mr. Béland did not like Mr. Nimako who, therefore, should be very careful.

81I turn now to the other witnesses called by the Commission, Mr. James Beatty and Mr. Glen Spallin.

82Mr. Beatty testified that he had overheard Mr. Béland and Mr. Pope use racial slurs, such as "nigger" and "black bastard," when referring to Mr. Nimako; but he said he had never heard Mr. Jones use such expressions. (Volume I, p. 658.) However, before turning to his testimony in that regard, there are other aspects to his evidence that must be considered.

83It was quite clear from his evidence that, as counsel for the respondent put it, Mr. Beatty was a very disgruntled employee while working at the Chateau Laurier, and it was obvious that he still harboured considerable resentment towards the three supervisors whose conduct his testimony was meant to impugn.

84Mr. Beatty worked as a "shift man" in the engineering and maintenance department of the hotel from March of 1977 until sometime in 1980 when he was supplanted by a man of Asian origin (Mr. Au) who (unlike the witness) had his fourth class engineer's papers. Mr. Beatty considered Mr. Au inferior to himself and claimed to have had to "train" this newcomer in some unspecified way. He was asked whether he thought it had been fair to replace him with this person. He did not think that it was fair. "The guy did not know anything . . . he took my position. I was dropped as a shift man and made a maintenance man to work days only." It was Mr. Béland who had been unfair, he indicated. (Ibid., pp. 730–731.) Mr. Beatty was laid off in October of 1982. He was drawing unemployment insurance benefits when, shortly later, he was called back by the Chateau Laurier to perform lower-paying work. He quit after two weeks, because "I figured I was making about the same amount of money in ”˜pogey' as what I was doing working." (Ibid., p. 640.) He said that when he re-applied for unemployment insurance benefits he was "penalized six weeks," and he attributed this to the Chateau Laurier's having called him back. He indicated that the hotel had been "pretty unfair" to him in that particular instance. (Ibid., p. 687.) Except for some casual work, Mr. Beatty was then unemployed for about sixteen months. (Ibid., p. 685.)

85Mr. Beatty, who blamed Mr. Béland for his demotion when Mr. Au was brought in, obviously disliked his two other supervisors as well. He found Mr. Jones "unimpressive" and "unreasonable," and he said that Mr. Jones "tried to pass himself off as knowing everything, but I think he had a lot to learn about management, and running men." (Ibid., p. 700–704.) Mr. Pope was described as having been unfair to everyone. "He was the type of guy you could not — did not trust . . . the type of guy that would put his hand out, shake hands with you, and stab you in the back with the other." When asked, "Did he try to do that with you?", Mr. Beatty replied, "Quite a few times I felt he had." (Ibid., pp. 684–689.)

86Mr. Beatty said that these three supervisors had a system whereby, rather than fire you, they "made you lose confidence in yourself." He said that they had demoralized him and made him lose confidence in himself, and that that was the cause of his subsequent difficulties in getting employment. (Ibid., p. 688–689.)

87The evidence elicited from Mr. Beatty by counsel for the Commission with respect to the use of racial slurs by Mr. Béland was that he had overheard the latter "use phrases against" Mr. Nimako. When asked what those phrases were, he replied, "Black bastard. Mostly those." He was pressed to identify more of these "phrases," but was unable to do so. As to the number of occasions on which Mr. Béland had used such "phrases," he said "Well, there is about seven real occasions when this has really come into effect." He said that he had heard these phrases used in the presence of others. "Sometimes it happened in the store so the storekeeper would be there . . . at the time Glen [Spallin, presumably] was there — and Maitland Ravel." Mr. Beatty thought that someone named "Lucky" might have been present as well on one or another of these occasions, but he was not sure whether "Lucky" was still working at the hotel when Mr. Nimako was there. The secretary in the supervisors' office would also have heard Mr. Béland use this language, as would one of the other "bosses," which was to say, either Mr. Jones or Mr. Pope. Mr. Beatty said that he reported these instances to Mr. Nimako. (Ibid., pp. 654 ff.)

88During cross-examination, Mr. Beatty reduced his estimate of the number of times he had overhead Mr. Béland use these "phrases" to five. Moreover, he indicated that one or two of these occasions consisted simply of Mr. Béland's muttering to himself "under his breath." All of the unmuttered utterances to which Mr. Béland's alleged racial outbursts were then reduced occurred in the supervisors' office. Work orders were posted on the wall just outside this office and it was from that vantage point that Mr. Beatty, when fetching his own work orders, overheard the conversations in which these "phrases" were used. On one of these three occasions, he said, Mr. Pope was present. Mr. Beatty did not say whether anyone else was present on that occasion. On another of these occasions it was Mr. Jones; again it was not said that any one else had been there as well. Mr. Beatty did not identify who was present on the remaining one or two of these occasions. (Ibid., pp. 714–715.)

89It would appear from the preceding that Mr. Beatty is caught up in a contradiction. During his examination-in-chief he said that he had heard Mr. Béland use racially disparaging terms in the storeroom in the presence of others. Under cross-examination his evidence was that it was only on three occasions that he heard Mr. Béland use that language when addressing others, and it was always when in his office. Later, while still under cross-examination, he was asked again about his earlier references to the storeroom:

Q. When some of these disparaging comments were made, you said the storekeeper was there. Who was it? Was it Glen or Ravel or Lucky?

A. As I said, I was not sure about Lucky, but it was either Glen or Maitland Ravel. If he said it in the store, it was because they needed a part for the unit, refrigeration unit, and Mr. Béland would go into the store and be mad and say "we should have that part here." And we walk into the store. [Emphasis added.]

90Perhaps, however, Mr. Beatty's statements can be reconciled by assuming that one of the storekeepers was present on one or both of the occasions when Mr. Béland was muttering "under his breath" — in which case, of course, whether the storekeeper would also have heard is rather problematical. In any case, although it may be presumed that Mr. Beatty disclosed the names of these other persons during the investigation into the complaint, the only one amongst them called as a witness by the Commission was Mr. Spallin.

91In response to questioning by counsel for the Commission, Mr. Beatty indicated that Mr. Pope used racial slurs in respect of Mr. Nimako to a far greater extent than did Mr. Béland. However, as was the case with his evidence regarding Mr. Béland, only one racially offensive "phrase"”˜ was identified as having been used by Mr. Pope, to whit: "that fucking black bastard." When first asked, he said that that phrase would have been used by Mr. Pope "more than ten times." A few moments later, when asked essentially the same question, his answer was "more than fifty times," and usually Mr. Jones would be there. Mr. Beatty could not say that he had ever heard Jones use such language. He reported these incidents to Mr. Nimako. (Ibid., pp. 656–659.)

92In the course of cross-examination, Mr. Beatty said that the person to whom Mr. Pope was speaking when he used these racial slurs was either Mr. Jones or the secretary. He "walked in a few times when he [Mr. Pope] was talking to Mr. Jones." He was asked, "Did you ever walk in when Mr. Pope was speaking to the secretary?" The answer was, "Yes." "And were those the words used?" Again, the answer was "Yes." Mr. Beatty was sure of that. However, he no longer seemed confident as to the number of times these "phrases" had been used (Ibid., pp. 720–721):

Q. So is that correct, fifty times or more?

A. It is more often than twenty. It happened more often than twenty. I would use fifty as a round figure.

Q. But you are not sure?

A. No.

Q. Now, you are saying it may be twenty.

A. No, I am saying it was close, close to around fifty.

Q. But more like twenty?

A. A lot of times it can happen over five — four years.

93In the final analysis, Mr. Beatty's evidence regarding Mr. Béland is that on three occasions he used racial slurs in reference to Mr. Nimako while speaking to others, an accusation which, of course, Mr. Béland denies. The only other witnesses Mr. Beatty refers to in relation to these occasions are Mr. Jones, Mr. Pope and the secretary in the supervisors' office.

94During their evidence both Mr. Jones and Mr. Pope denied ever having heard Mr. Béland use racial expressions.

95Ms. Rosemary Leblanc, who worked at the hotel from 1978 to 1981, when she left to work for the Atomic Energy Board of Canada, was called as a witness, not by the Commission, as one might have anticipated, but by the respondent. Ms. Leblanc began her work at the hotel as a cashier, but she was transferred to the engineering department as a secretary. We were not told just when that transfer took place. She described Mr. Béland as a good "boss". He was polite to her. He spoke in a very loud voice. He had a temper, as did Mr. Nimako, she recalled. Mr. Béland swore at times. She liked Mr. Béland, and she found him to be fair. She spent about 80 percent of her time in the office. She never heard Mr. Béland use racial slurs, nor did she ever hear Mr. Jones or Mr. Pope use such terms. She never heard the supervisors plotting to get rid of Mr. Nimako. (See Volume IV, pp. 160 ff.)

96Mr. Beatty said that he had reported all of these incidents to Mr. Nimako. Yet Mr. Nimako, who would have much more reason to remember, could recall only one conversation with Mr. Beatty that was related to his complaint. In describing that incident, he said that Mr. Beatty's words were "be very, very careful because I have so many people watching me," and he said that "that was it" — that was all Mr. Beatty said on that occasion! (It may be noted as well that those are the words that Mr. Beatty said were used in their warning system. He accused the supervisors of being snoopers, and it would seem that those words of warning were meant to be taken literally, not that they imported any additional meaning of an attempt to get rid of anyone.) Not only does Mr. Nimako's evidence fail to confirm Mr. Beatty's assertion that he told him on several occasions about Mr. Béland's use of racial slurs, but it does not confirm either that it was Mr. Béland who was referred to, or that a racial slur was used.

97Counsel for the respondent felt it significant that Mr. Beatty never reported any of these numerous incidents either to the union or to management. Although I am unable to understand the failure of Mr. Nimako, as the aggrieved party, to have done so, I can understand the reluctance of another employee to confront management with its improper treatment of someone else, and Mr. Beatty's failure to complain to the union may be simply another instance of the pervasive reluctance of people in general to get involved in the problems of others. While I do not find this failure to weaken Mr. Beatty's evidence, that evidence contains inconsistencies, is incompatible with the evidence of others, and it has to be assessed in the light of his clear antipathy towards his former employers.

98By way of contrast, I found Mr. Béland's evidence to be clear and straightforward. I was impressed by the consistently positive appraisal made of him by union officials as well as former employees, none of whom had any conceivable reason to be less than forthright. The picture emerged of a gruff, demanding, hard-working man who, while given to outbursts and swearing in an environment in which such language was current, treated the employees under him fairly. His presence as a witness confirmed that impression. In the light of all this, I do not accept Mr. Beatty's evidence that Mr. Béland used racially derogatory names in reference to Mr. Nimako.

99Mr. Beatty's evidence with respect to Mr. Pope is that he overheard him use a racial slur somewhere between ten and fifty times when talking to Mr. Jones or the secretary, and that he reported these occasions to Mr. Nimako but to no one else. Mr. Jones denied every having heard Mr. Pope use such language, as did Ms. Leblanc. Assuming that she was the secretary at the time, which assumption was not challenged, her denial is a direct contradiction of Mr. Beatty's assertion that he walked into the engineering office on one occasion and heard Mr. Pope, in conversation with her, refer to Mr. Nimako as a "fucking black bastard." For his part, Mr. Nimako made no reference to Mr. Pope in his written complaint, nor did he say during the course of his testimony that anyone had ever brought to his attention such conduct on Mr. Pope's part. Surely, if Mr. Beatty had told Mr. Nimako that Mr. Pope had referred to him as a "fucking black bastard" — particularly with the frequency that Mr. Beatty alleges — the complainant would have recalled this and stressed it in his own evidence. This circumstance makes Mr. Beatty's evidence all the more suspect in relation to Mr. Pope. However, some support for what Mr. Beatty testified to may be found in the evidence of Mr. Pope himself, to which we must now turn.

100In response to the questioning of counsel for the respondent, Mr. Pope admitted to having referred to Mr. Nimako on one occasion while in the engineering office in some such fashion as "a fucking black bastard." He could not recall who was in the office at the time, whether Mr. Béland, Mr. Jones, the secretary, or a tradesman. He was extremely angry when he used this language. The expression "just came out." It was not meant in any racist sense, and he was very sorry immediatly afterwards, but (and surely understandably so) he did not seek out Mr. Nimako to tell him what he had said in order to apologise for it. (Volume IV, pp. 440–444.)

101It has already been seen that Mr. Pope became so exasperated with Mr. Nimako's attitude that he reached the point where he refused to supervise him unless no other supervisor were on duty. Under cross-examination Mr. Pope said that he believed that his use of the language in question occurred " . . . just prior to me saying I'm not going to be looking after him anymore." (Ibid., p. 485.) It was then suggested to him that in such circumstances what one is more likely to remember that specific words used is simply "that feeling of anger that surges up in you . . . the feeling of being flushed in the face and being angry and perhaps clenching your fist." To the question, "[A]re those the kind of things that happen?", Mr. Pope replied, "Yes." The following exchange then occurred between him and the Commission's counsel:

Q. So those are the things that you remember. But isn't it often that you don't remember exactly what you said? Sometimes people remind you that you may have said something, and you don't recall saying it at the time, but when they remind you, I bet you said, "Oh, well, if I said it, . . ." "I may have said it." Has that ever happened —

A. True.

Q. Yes. Is it possible that you may have in these instances, then since you've used it or you've said words like "fucking black bastard," that you may have been so angry in these situations that you used — you referred to Sam Nimako's race? Isn't that possible too?

A. That's possible, yes.

Q. Yes. And it's quite possible that you just don't remember saying words like — when you're angry, like "black bastard" and "nigger." Isn't that possible too?

A. That's possible that I don't remember, yes.

Q. So is it not possible [Mr. Beatty] may have heard one of your angry outbursts and you just don't recall the angry outburst?

A. It's possible.

(Ibid., pp. 469–470, 493.)

102In the course of re-examination on this point, Mr. Pope provided the following answer to the following question (Ibid., p. 498):

Q. Now, we heard of the racial slur you had recollection of that you made . . . Had people come to you and told you about these other occasions or alleged occasions, what would you have done? And if complaints were made and you felt they were justified, what would you have done?

A. I probabably would have said, "When?", because I don't recall saying them.

103Mr. Pope was neither hesitant nor evasive in his replies. He acknowledged that he shares a rather common frailty of not recalling everything said in the heat of anger, thus opening up the theoretical possiblity that he might have used such expressions as "fucking black bastard" on other occasions as well as on the one admitted to. However, if it is anger that thus destroys recollection, how is it that he could recall having used such language (and having felt sorry immediately afterwards) following the angriest moment he had ever experienced in his dealings with Mr. Nimako? In my opinion, it cannot be inferred from Mr. Pope's admission that he said the offensive words on one occasion that Mr. Beatty is correct in his assertion that the words were used by him on other occasions, much less with the great frequency that Mr. Beatty would have us believe. However, the final assessment I make of Mr. Beatty's evidence cannot be meaningfully set down until the evidence of the Commission's last witness has been dealt with.

104Mr. Spallin attended the hearing on February 27, 1985, in response to a summons that had been served on him by the Commission. During the course of a recess in the hearing Mr. Spallin, who had received his "conduct money," inquired as to whether he would be needed that day. He asked to be excused if possible in order to return home to attend his sick wife. He could come back to the hearing within an hour if needed. He would certainly be available the next day. As it appeared unlikely that he would be reached, he was released. He did not attend the next morning as he had promised, and the hearing was delayed an hour pending the arrival of the Commission's other witness, Mr. Beatty. At the completion of Mr. Beatty's testimony, Mr. Spallin had still not arrived. Calls were made. He had not gone home the night before, and his wife did not know where he was. Evidently, he had taken his "conduct money" and gone elsewhere. Although there had been sufficient time to have heard Mr. Beatty's evidence as well as that of the respondent's first witness who had come all the way from Newfoundland (but could not be heard out of turn without possible prejudice to an anticipated motion of non-suit), the hearing had to be adjourned to the following March 15th. (See Volume I, pp. 637–638, and 783 ff.)

105Mr. Spallin worked at the Chateau Laurier for a period of about two years, beginning about December of 1979. He was the shop steward in the engineering and maintenance department for a year. Although not asked directly for this information, it would appear from his evidence, and that of others, that this would have been in his last year of employment at the hotel.

106Mr. Spallin quit his job at the Chateau Laurier because of a combination of things. He was under a lot of pressure. He was involved in the negotiation of the new collective agreement. "There were a lot of things happening to me, a lot of harassment — small things. The final thing, of course, was when I was accused of taping something [a conversation, he later said], which I did not do — which I did not do. Small things, like — just general small things." (Volume II, p. 5.) He felt that "management wanted to get rid of [him] . . . because [he] was trying to put some new thinking into the union process." In the contract negotiations he attended he felt humiliated by both management and the union. (Ibid., p. 33.) He was beset by the complaints of others, including Mr. Nimako's. (Ibid., p. 30.) He was suspended for two days once for being drunk on the job, which he readily confessed to having been the case. (Ibid., p. 53.) He felt that he was not adequately remunerated, but he did not blame management for that, as he knew what the pay was when he took the job; but this was an obvious source of dissatisfaction for him. (Ibid., p. 54.) Although he said he got along with Mr. Béland and Mr. Pope, Mr. Spallin did not like Mr. Jones, who referred to him as a "colonial." (Ibid., p. 6.) He said Mr. Jones used to follow him about, peeking around corners at him. According to Mr. Spallin, Mr. Jones did this "Because I think his job was to harass me . . . to get rid of me." (Ibid., p. 42–43.) Apparently, "Everybody had a feeling of distrust of management." (Ibid., p. 37.) The situation was that "Management were taking small steps to make my job more and more impossible, so that I would throw my hands up and just walk out, which is what they wanted me to do and I did." (Ibid., p. 36.)

107Mr. Spallin's evidence with respect to the use of racial slurs by management personnel is inconsistent, and it contradicts that of Mr. Nimako in an important material particular. That evidence begins with Mr. Spallin's assertion that he had been present with Mr. Nimako when "remarks were directed about Mr. Nimako's race". (Ibid., p. 8.) Although he was not asked how often this occurred, the next several questions and answers indicate that it supposedly happened more than once. This, of course, contradicts Mr. Nimako's statement that there was only one occasion when such language was addressed directly to him, and that there was no one else present at the time. Mr. Nimako's evidence is also difficult to reconcile with Mr. Spallin's testimony that he had witnessed two or three extraordinarily vociferous arguments between Mr. Béland and Mr. Nimako in which they shouted and swore profusely. Each of these was described as having been a "whale of a fight." (Ibid., p. 40.) Yet on none of these occasions did Mr. Béland call Mr. Nimako any racially derogatory names. Nevertheless, on apparently calmer occasions (which Mr. Nimako could not recollect) Mr. Béland would call him a "nigger" to his face in Mr. Spallin's presence and, as is about to be seen, would summon him in this insulting fashion over a public loudspeaker for all to hear, thus leaving himself open to very serious charges, indeed. (It needs to be said that that is hardly consonant with the impression that Mr. Béland made in the witness stand.) I simply do not believe that Mr. Spallin would remember these occasions, but that Mr. Nimako would forget them. Clearly, one of them was not truthful and, having regard to Mr. Nimako's evident interest in making such a disclosure, it is my conclusion that Mr. Spallin, in the zeal of a friendship soon to be evident, went further in his accusations than he realized Mr. Nimako had gone.

108Mr. Spallin went on to relate that there was an "intercom box" located in the storeroom where he worked and that "someone would come on and say, ”˜Is the black nigger there? If he is send him in' . . . that would be heard by anybody who happened to be in the storeroom at the time." (Ibid., p. 9.) Later in his testimony Mr. Spallin indicated that he did not know whether in fact anybody else had overheard these words, much less who such persons might have been. Asked "whose voice would be on the other end," he replied, "Usually, Béland or Jones." (Ibid., p. 9.) He could not say how many times this occurred, even as to whether it was less than five times, or more than ten. (It is curious that Mr. Beatty heard Mr. Pope use racial slurs with considerable frequency, but never heard Mr. Jones use them, whereas Mr. Spallin (initially, anyway) said that he had heard Mr. Jones use such language, but at no point in his evidence implicated Mr. Pope.) During the course of cross-examination Mr. Spallin restricted his accusation to Mr. Béland. (Ibid., p. 49.) The only racial slurs he could remember were "nigger" and "black nigger." There were no other instances he could recall of the use of racial slurs in respect of Mr. Nimako.

109Early in his examination of this witness, counsel for the Commission produced a document which purported to be a statement signed by Mr. Spallin on November 11, 1981. (A rather ironic date, surely!) The statement had been witnessed by one Harold Moody. Part of it was read and, after some further references to it, I asked whether it was going to be submitted as an exhibit. Counsel for the Commission said that it was not. The then counsel for the respondent said nothing. The document was thereafter used as a kind of aide-memoire by Mr. Spallin.

110In reviewing the evidence of this, and of other witnesses, I found a number of oddities associated with this document of November 11, 1981, signed some two-and-a-half months after Mr. Nimako's dismissal and at about the same time as Mr. Spallin's departure from the hotel because of harassment — a harassment that he said had been every bit as severe for him (a white man, incidentally) as it had been for Mr. Nimako. The statement was signed in Mr. Nimako's livingroom in the presence of Mr. Moody, and it was signed simply "because Sam continually said that he needed this in order to pursue his case. He needed it in writing." (Ibid., p. 12.) Mr. Spallin had gone to Mr. Nimako's on a social visit. "Sam and I are friends. He comes to my home and I go to his home. There was no special reason to be there." Mr. Moody just happened to be there. Although it was Remembrance Day, and it was a social occasion, they had nothing to drink. (Ibid., p. 50–51.) He said that he signed it because he "would like to get at the truth." (Ibid., p. 51.)

111Apparently, the statement is in Mr. Spallin's own words, and the paragraph that was read happens to be in language similar to that which is found in the written complaint. The statement was in the Commission's file, and it may have been of crucial importance to the decision to pursue the complaint. That paragraph, as it appears in the transcript, reads: "On many occasions, I was made aware of management's desire to ”˜get rid of the nigger'." These words seem calculated to suggest an intention to get rid of someone because he is black, and not simply to get rid of someone who happens to be black. If it is the latter that was meant then, although the identification of the person in question through the use of the word "nigger" would be reprehensible, it would not imply discriminatory treatment. The juxtaposition of words in this statement seems intended to suggest discrimination, not vilification.

112As it turns out, on the basis of his own evidence the only justification Mr. Spallin had for his inflammatory and damaging statement was his personal assessment of "management's attitude." He did not tell us that he had been at a meeting at which the intention to "get rid of the nigger" was declared, as Mr. Nimako's evidence would lead us to believe. He did not even say that he had overheard such an intention expressed by management. When he wrote that most serious accusation he was "referring to various — at different times, in different places, management's attitude." (Ibid., p. 14. Emphasis added.) And it is to be noted that even his assessment of management's "attitude" is inconsistent with the implication of his irresponsible statement — an implication that, as I have already indicated, may well have inspired the Commission's pursuit of this complaint, with tremendous cost to the public and to the respondent. Mr. Spallin actually indicated that there was no discrimination against Mr. Nimako by anyone of which he was aware! He did not perceive any discrimination. Mr. Nimako did not report to him that any had occurred. As shop steward, Mr. Spallin assured us, he would have pursued any complaint of discrimination to the fullest extent possible. (Ibid., p. 32–33.)

113Although he knew of no discrimination, he knew of the use of racial slurs. However, it seems that it did not occur to Mr. Spallin, whether as a friend, or as the victim's shop steward, to report these publicly proclaimed slurs, either to management or to more senior union representatives. In fact, the evidence does not establish that he told Mr. Nimako about these slurs before his dismissal. The only indication in his evidence as to when he "told" Mr. Nimako about them is at the time of his Remebrance Day "declaration."

114The commendable sense of responsibility that occasioned Mr. Spallin to say that he would have taken action of some sort on Mr. Nimako's behalf had he been aware of any discrimination apparently deserted him at the moment when it might have been most propitiously employed. According to the evidence of Ms. Lucette Sargeant, Mr. Spallin was present at a meeting she had with members of management on April 7, 1980, when she confronted Mr. Béland with Mr. Nimako's accusation that he had called him a "nigger" behind his back. According to her, Mr. Béland denied that he had ever done so, and said that "he had been working with seventeen other black men and he never had any problems the way he had with Sam." She was asked, "How did Mr. Spallin react to that?" Her answer was, "He just sat there and he did not say anything." (Ibid., p. 630.)

115The evidence that the November 11th statement was signed by Mr. Spallin in Mr. Moody's presence was not the only reference to Mr. Moody made in the course of the three thousand pages of evidence that I have reviewed with considerable care. Mr. Nimako had used Mr. Moody's name as a reference on the résumé about which he was questioned in relation to his attempts to get employment after he left the hotel. Mr. Nimako said simply that Mr. Moody was a friend of his. (Volume I, p. 541.) Mr. Moody's name also came up in relation to his assisting Mr. Nimako in an attempt to obtain a written statement from another "witness" in rather strange circumstances that were related by Ms. Sargeant in the course of her evidence.

116As noted earlier, Ms. Sargeant had testified that it was not until the spring of 1980 that Mr. Nimako had mentioned racial slurs, and that the allegation was that they were made behind his back. She went on to say that he told her that he had witnesses, but that he would not disclose the names of those witnesses to her even though this was necessary to enable her, as the local chairperson, to pursue what she considered to be a serious matter. It was not until October of 1981, after his dismissal, that he finally told her that his witnesses were Mr. Beatty and Lilian Aubin. It is to be stressed that Mr. Nimako said nothing to Ms. Sargeant about Mr. Spallin's having been a witness, although this was not long before the Remembrance Day meeting in Mr. Nimako's home. If Mr. Spallin were one of the three witnesses who had told him about the racial name-calling, as Mr. Nimako alleged in his evidence, why did he not reveal this to Ms. Sargeant? In any case, Ms. Sargeant followed up on Mr. Nimako's belated information, and it is worth setting out her evidence as to her conversation with Ms. Aubin:

Q. . . . can you give me your best recollection of what Lilian Aubin told you?

A. Yes. Lilian Aubin told me that Mr. Nimako went to her home and with a man called Harold Moody, and that she was afraid of him. He was talking loud and he had been drinking and he wanted her to sign a document stating that she had overheard Mr. Béland call him a nigger in the elevator.

Q. Do you know if she signed the document?

A. She told me she could not recall because she was too nervous; she was too scared.

117Later in the course of her testimony it was discovered that Ms. Sargeant had retained notebooks (exhibits 60 and 61) in which she had kept a record in summary form of her recollections of events and conversations in which she had been involved as local chairperson. She then read from her notes at counsel's request as follows (Volume III, pp. 721–723):

When I spoke with Lilian, she told me that she did not hear anything. Sam and Mr. Béland were talking loud, but she did not pay any intention to what they said. She told me that Sam went to her home and that he wanted her to sign some papers to prove that she had heard Mr. Béland call Sam a name. But she told me that her English is very poor and she did not understand what he really wanted of her to sign. Sam by this time had consumed quite a few beers and she wanted him to leave and that her husband was getting very annoyed with Sam. She also told me that she did not want anything to do with Sam's problems. She was very nervous about the whole thing and did not want to get involved with anything in the case. Sam and his friend at Lilian's place, Harold Moody.

118When questioned further, Ms. Sargeant said that she did not record anything in her notebook about Ms. Aubin being frightened, and that she would have made a note to that effect had she been told of it at the time. However, she explained that she had talked with Ms. Aubin the week before giving this evidence, and it was then that Ms. Aubin had said "I am afraid of him. I do not want to get involved in it." (Ibid., p. 722.)

119The long and careful review that I have made of the evidence relating to racial name-calling, together with my assessment of the demeanor of the various witnesses, has led me to the conclusion that the testimony of Mr. Nimako, Mr. Beatty and Mr. Spallin must be rejected when in conflict with that of the witnesses called by the respondent.

120Neither Mr. Nimako nor Mr. Spallin were credible witnesses. The complainant's evidence is filled with obvious falsehoods. Mr. Spallin's evidence is both intrinsically inconsistent and at odds with that of Mr. Nimako. This, together with his apparent bitterness towards the respondent's supervisory staff arising out of his own difficulties while an employee at its hotel, renders his evidence quite unreliable.

121Mr. Beatty's testimony, which was likewise affected by a residue of antipathy towards his former employer, also involves significant inconsistencies and appears to contradict that of Mr. Nimako in important respects.

122The fact remains, however, that Mr. Pope admitted to having used on one occasion the expression "fucking black bastard," or something like it, and this might have been overheard by Mr. Beatty. Although Mr. Pope does not remember having used such expressions on other occasions, there is the admission of a theoretical possibility that he might have done so in other moments of anger, neither realizing it at the time, nor recalling it subsequently. However, three circumstances seem to weigh rather heavily against the drawing of that inference.

123Firstly, it is at least equally possible that Mr. Pope never attained a level of rage in respect of Mr. Nimako sufficient to obliterate either the realization of what he was saying, or the recollection of having said it, since his mind and memory were not so affected at the height of his anger and frustration with Mr. Nimako.

124Secondly, and perhaps more importantly, Mr. Beatty said that he had reported all these incidents to Mr. Nimako. Yet Mr. Nimako said that he was only told about one incident by Mr. Beatty. (Moreover, while it is not clear from Mr. Nimako's evidence, the inference were asked to draw was that it was Mr. Béland to whom Mr. Beatty was referring, not Mr. Pope, whose use of such language was unknown to Mr. Nimako.) One of them (at least) is mistaken. Are we to conclude that Mr. Nimako was told by Mr. Beatty anywhere between ten and fifty times that Mr. Pope referred to him as a "fucking black bastard", and that Mr. Nimako just does not recall? In this regard it is to be remembered that it was in the spring of 1980 that Mr. Nimako began (openly, at least) to blame his troubles on racial discrimination. He never pursued that assertion by way of grievance. He would not, or could not, name witnesses or otherwise substantiate his claims, despite having been urged to do so by union representatives who ultimately looked on his claims as mere excuses. Not only did he accuse everyone connected with his various disciplines of being racially prejudiced, but it was the evidence of the local chairperson, Ms. Sargeant, that he told her sister that she (Lucette Sargeant) had discriminated against him. (Volume IV, p. 104–5.) That Mr. Nimako would forget having been told of these insulting references time and time again by Mr. Beatty is not to be believed, and it must be concluded that, if he told him at all about Mr. Pope, Mr. Beatty did not tell Mr. Nimako on more than one occasion that Mr. Pope used such language in reference to him. If we cannot believe that Mr. Beatty told Mr. Nimako of these other incidents as he says he did, why should we believe him that these alleged incidents occurred at all?

125Thirdly, Mr. Beatty testified that all of these incidents occurred in the supervisors' office in the course of private discussions he listened into between Mr. Pope and either Mr. Jones or the secretary, each of whom denies ever having heard Mr. Pope use such language. Assuming that there were from ten to fifty occasions when Mr. Pope spoke in this way, how is it that the persons to whom he must have addressed these words have no recollection of them? Obviously, although he is not a party to this complaint, it may be in the interest of Mr. Jones to deny having used such expressions and, to a lesser extent, having heard Mr. Pope use them. But his self-interest looms no larger than the antipathy of the Commision's witnesses. One would expect that the secretary, who was there 80 percent of her time, would have been present on one of these numerous occasions at least. Indeed, Mr. Beatty said he saw her there on one such occasion. I could not imagine a more disinterested witness.

126Having regard to all of these factors, while I am prepared to believe that Mr. Beatty overheard Mr. Pope on the one occasion admitted to, I cannot see how it can be concluded on a balance of probabilities that the Commission has established that Mr. Pope used racial slurs in reference to Mr. Nimako on other occasions as well.

127There is one final facet to the evidence that must be examined. As it was the Commission's contention that the respondent had contravened section 4(1)(g) of the Code by permitting the existence of a "racially poisoned" atmosphere amounting to a condition of Mr. Nimako's employment, thereby discriminating against him, the alleged use of racial slurs in respect of other employees is of some relevance.

128The evidence of nearly all of the witnesses served to establish that the engineering department of the Chateau Laurier Hotel was staffed from top to bottom with loud, boisterous men who were given to profanity in moments of high spirits as well as when angered. While there is no indication as to the number of occasions on which such expressions as "wop" and "Polack" were used, the evidence certainly does not establish that it was quantitatively significant. The following extracts from the evidence of Mr. Beatty (In Volume I) help to provide an indication of the general atmosphere in the department and the extent to which it might be considered to have been "racially poisoned." Of course, for reasons already given, Mr. Beatty's descriptions should be taken with the proverbial grain of salt:

Q. Would you be aware of any occasions in which, say, Mr. Pope would refer to others — to other ethnic people, you know, disparagingly?

A. He would be calling Eddie [a plumber] a "fucking Polack," as the expression goes.

Q. What about — would he make any reference to those of Italian extraction?

A. No.

Q. And what about those who were French Canadian?

A. No. Mr. Pope was . . . French Canadian. And the French people were better than the English.

Q. What, in Mr. Pope's estimation?

A. Yes.

Q. Did he ever convey this to you?

A. No. But he wanted all his staff to be French.

(From pp. 663–664.)

A lot of the arguments in the shops — okay, they had a [loud]speaker in each shop, and the office could listen to what was going on in the shops. So quite a few times, demonstrations [took place] in there just for the bosses' satisfaction. We could tell when it was on or off. Sir Edward [as Eddie the plumber was called by many of his colleagues] and Sam would go into a big argument or Jim Lamoureux and Ed would have a big argument close to the speaker. Just for the satisfaction of the office. If they knew the guys were fighting in the shop, they would leave the shop alone.

(From pp. 713–714.)

Q. You said on one occasion that you were aware of that Mr. Pope called Eddie "a fucking Polack." Did that happen more than once?

A. Yes, it did. Sometimes it was said in fun as a joke and sometimes it was not.

(From p. 731.)

Q. . . . have you seen Mr. Nimako — or Sam — I will make it easier — did you see him get mad quite often?

A. Sometimes, when him and Eddie argued in the shop.

Q. Sam and . . . Sir Edward would engage in heated exchanges?

A. Heated exchanges.

Q. What would they say to each other?

A. More or less be — like Sam and — I should say Eddie would call him a "goddam nigger" and Sam would turn around and call him a Polack, and they would argue for maybe for five or ten minutes, and shake hands and walk away laughing.

(From pp. 736–737.)

129During the course of cross-examination Mr. Pope admitted to having used the expressions "wop" and "Polack" on occasion, but not directly to the persons referred to. On re-examination he replied "no" to the following question: ". . . I'm interested in knowing if you did use the terms "Wop" or "Polack" in any circumstances, was that in any way motivated because you didn't like Italians or Polish people?"

Application of Law

(A) WITH RESPECT TO SECTION 4(1)(B)

130If, from the extent to which racial epithets were directed at a complainant by those involved in the decision to dismiss him, it is to be inferred that their decision was racially motivated, there can be no doubt that that decision would contravene section 4(1)(b) of the Code. While the use of racial epithets by the decision-makers is not in itself a contravention of the provision, it is some (but not conclusive) evidence from which an inference might be drawn that the complainant was dismissed because of his race or colour.

131It has been held repeatedly that where discrimination upon a prohibited ground was one of a number of reasons for the taking of an action that became the subject of a complaint under the Code, then that is sufficient to constitute an infringement of the provisions of the Code, provided it was a proximate cause of that action. (See, for instance, Iancu v. Simcoe County Board of Education (1983), 1983 CanLII 4720 (ON HRT), 4 C.H.R.R. D/1203.)

132It is abundantly clear in this case, however, that neither Mr. Nimako's race nor his colour had anything whatever to do with his dismissal. Indeed, that there had been a violation of section 4(1)(b) of the Code was not pursued as vigorously by counsel for the Commission as was his assertion that section 4(1)(g) had nevertheless been transgressed.

133It was not within the scope of my mandate to determine whether, having regard to the applicable collective agreement, there was just cause for the complainant's dismissal, nor was the respondent required to go that far in rebutting the case made out by the Commission. Nevertheless, the respondent's evidence went well beyond the requirement of explaining the dismissal "on grounds rationally consistent with reasons other than discrimination on the grounds of race or colour." (Kennedy v. Board of Governors of Mohawk College, (Ontario, October 31, 1973, at p. 29, S. Borins); see, as well, Base-Fort Patrol Ltd. v. Alberta Human Rights Commission (1983), 43 D.L.R. (3d) 334, 1982 CanLII 4907 (AB QB), 4 C.H.R.R. D/1200.

134When all was said and done, there was no credible evidence from which racial discrimination against Mr. Nimako could be inferred, except the use of the expression "fucking black bastard" by one supervisor. On the one occasion in which it was clearly established that these words were used, they were uttered in a moment of anger and frustration. They were not said to the complainant, but about him. They were spoken during a private conversation in a private office. The words were provoked not by Mr. Nimako's colour, but by his conduct. They expressed anger towards a man who happened to be black, referring to his colour in order, perhaps, to underscore the speaker's outrage. The implication was not that he was a "bastard" because he was black, but that he was a "bastard" who happened to be black. It would run counter to common sense, surely, to suggest that anyone who utters such an expression in such circumstances is therefore racially prejudiced, that he does not like blacks and would treat them unfairly in comparison with others if given the chance.

135Not only is there no evidence that Mr. Pope discriminated against Mr. Nimako because of his race or colour, but there is no evidence that he played any part in the decision to dismiss. Mr. Pope was not the head of the department, and long before Mr. Nimako's dismissal he had ceased to supervise him on a regular basis. The incident that led to dismissal did not involve Mr. Pope; it involved Mr. Béland, the department head. It was Mr. Béland, together with the personnel manager and other more senior members of management, who made the decision to dismiss Mr. Nimako. Since the evidence does not establish any racial prejudice or discrimination, or even the use of racial slurs, by those who took the decision, the conclusion that must be reached is that racial discrimination was not a ground of Mr. Nimako's dismissal, and the complaint that there was a contravention of paragraph (b) of section 4(1) is without foundation.

(B) WITH RESPECT TO SECTION 4(1)(G)

136Reprehensible though they most emphatically are, isolated uses of racial slurs, even by those in a supervisory position, are not contraventions of the Code. However, the uncurtailed use of such language may engender a work environment that is racially oppressive. With the possible exception of the recent decision of the Court of Appeal of Manitoba in Janzen and Govereau v. Platy Enterprise Ltd. (1986), 1986 CanLII 4055 (MB CA), 8 C.H.R.R. D/3831, (handed down on November 19, 1986, some few days after argument was heard in this hearing), the jurisprudence in this regard makes it plain that the work atmosphere is a "condition of employment," and that if that atmosphere is oppressive or "poisoned" for a minority group such circumstance might amount to discrimination on a prohibited basis. If management personnel know, or ought to know, of that condition and fail to arrest it, they are thereby discriminating against the employee even if they are not actively engaged in the production of that atmosphere. Where such discrimination is based upon a prohibited ground, then it is caught by the Code. (Simms v. Ford of Canada (June 4, 1980, Ontario, H. Kreever); Fuller v. Candur Plastics Limited (1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 (R. W. Kerr); Dhillon v. F. W. Woolworth Company Ltd. (1982), 3 C.H.R.R. D/734 (P. A. Cumming); Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police and Dickson (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (P. A. Cumming).)

137In the Janzen case, supra, the Court of Appeal of Manitoba held that harassment is not discrimination, and the absence of a statutory prohibition against sexual harassment in the work place does not entitle boards or courts to redress such reprehensible conduct through treating it as though it were discrimination. The Court was critical of the reasoning of Mr. O. B. Shime in Bell and Korczak v. Ladas and The Flaming Steer Steak House, (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155, and of the numerous decisions under human rights legislation in which the following statement made by Mr. Shime in the context of sexual harassment has been applied to the use of racial name-calling:

The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment. There is no reason why the law, which reaches into the workplace so as to protect the work environment from physical or chemical pollution or extremes of temperature, ought not to protect employees as well from negative, psychological and mental effects where adverse and gender directed conduct emanating from a management hierarchy may reasonably be construed to be a condition of employment.

138After quoting the above passage (at para. 30297 of the Court's decision), Mr. Justice Huband goes on to say (at para. 30299):

It is true that, as Mr. Shime suggests, there is no reason why statutory law controlling the work environment cannot prohibit the abuse of economic power in the form of sexual harassment. But the words of the statute must make it clear that such a reach was intended.

The learned Justice then proceeds to reach the conclusion that the legislation in Manitoba does not show clearly such an intention, and his reasons appear to cast a shadow over the whole line of racial name-calling cases referred to earlier. (While it may be that Ontario's 1981 Code lies outside that shadow, the so-called "old Code" applicable in the present case would appear to lie within its penumbra at least.) In the course of his judgment he suggests what at first blush seems to be an extremely limited scope within which it may be found that sexual harassment amounts to discrimination. In effect, he appears to be saying that sexual harassment can amount to discrimination only where it is pursued as a means to effect a discriminatory purpose [at para. 30279]:

I suppose it is conceivable to conjure up a hypothetical situation where the two would merge into one. Suppose that an employer wants to hire men only, but in ostensible compliance with the Act he hires women as well as men. Having done so, he then decides to make working conditions so miserable for the women that they will resign. His tactic is to use sexual harassment to achieve his discriminatory purpose. Such a scenario may be conceivable, but it did not happen that way in the present case, and short of that sort of format, the two concepts do not coincide.

139Analogously, then, it may be argued that an employer could not be said to have racially discriminated against an employee by generating a racially hostile work environment, unless the employer wanted thereby to drive the employee away. Depending upon just what is required to establish the element of intention that seems to form the basis of Mr. Justice Huband's statement, I have little difficulty in accepting that conclusion. Indeed, it seems to flow necessarily from the meanings of the terms "harassment" and "discrimination". The difficulty comes, however, in deciding what circumstances bespeak a discriminatory purpose. It is at this point that the decision in Janzen becomes somewhat unclear to me.

140In my respectful submission, if it is discriminatory to encourage sexual harassment as a means of getting rid of female employees, it must be equally discriminatory knowingly to permit a degree of sexual harassment that would drive them away. An employer who wants to have any employees at all will not permit conditions that will drive them all away. If that employer permits conditions that will drive away a certain class of employees (for instance, women or blacks), it can only because they are a class of employees that he does not want or does not care about. It seems to me that an employer who will protect his employees generally from intolerable conditions of employment certain to drive a substantial number of them away, but who refuses to protect from such conditions those of his employees who are members of a certain class, thereby discriminates against them on the basis of the class to which they belong. He is affording protection to employees generally that he is withholding from others who are (and it can be because they are) members of a particular class. If the class in question is gender based or racial, then the differential treatment becomes discrimination on a prohibited ground. Surely, it is caught by the Code.

141It may well be that the decision of the Manitoba Court of Appeal in Janzen is not fundamentally inconsistent with the view that an employer is in contravention of the Code if he knowingly permits to exist in the workplace a racially oppressive condition likely to drive away employees of a particular race. Assuming that the basis of that decision is the necessity of an intention to discriminate, then as long as the concept of constructive intention remains applicable it would seem that the requisite intent can be brought home to the employer in the circumstances involved in the racial name-calling cases under consideration. It would seem as well that, if all that is required in order to transgress the legislation is that there be differential treatment in fact in respect of a condition of employment, which treatment is either actually or constructively intended by the employer, the condition in question need not be so extreme as to be likely to drive away those subjected to it. Surely, the employer's liability does not flow from the degree of enormity of the intended discrimination, but simply from the fact of such intended discriminatory treatment.

142In any event, the view that I have taken with respect to the facts of the matter before me does not require that I deal with the Janzen case in depth, either to apply it or to distinguish it, because the atmosphere, or environment, or Mr. Nimako's workplace was not in fact racially oppressive or poisoned.

143By all accounts, the engineering department of the Chateau Laurier Hotel while Mr. Nimako was employed there was a boisterous place, staffed with persons of different racial and ethnic backgrounds. As counsel for the respondent said, the department involved "tradesmen, mostly guys, rough and tough people — some educated, some not — . . . there was a wide spectrum of people, different ethnic backgrounds, different colours. There was white, yellow, black, Italian, Polish. It was a whole spectrum." And as counsel for the respondent went on to say, "we never heard any evidence from the Commission, from Mr. Nimako, of any complaints against the Chateau Laurier, or Messrs. Jones, Béland and Pope, in respect of racial slurs made, from anyone else."

144At one point in the course of his argument (Volume V, p. 63) counsel for the Commission said that "it will be my submission to you that the Commission's case stands or falls upon your finding that the three supervisors created such a psychologically oppressive work environment, with the use of racial epithets, either to the complainant directly, or behind his back, that the inescapable conclusion is that the dismissal was racially motivated . . . and the use of racial epithets became a condition of his employment."

145Assuming such a racially oppressive atmosphere generated by the very supervisors who disciplined him from time to time, is it not surprising that there was not a single decision or action taken by anyone in authority at the hotel (whether against Mr. Nimako or anyone else) that was racially motivated? Not even Mr. Nimako's two witnesses suggested otherwise. Mr. Nimako was unwilling to accept responsibility for his own faults, and his branding as racist everyone who had anything to do with his various disciplines was simply an ex post facto excuse totally at odds with reality.

146Although it is arguable that the use of racial slurs without more [sic] may result in a racially oppressive condition of employment, the only credible evidence of the use of racial slurs relates to but one supervisor who ceased to be a principal supervisor of the complainant long before Mr. Nimako's dismissal. Even if Mr. Pope used such slurs more than once, the evidence is that such use was in the privacy of his office, a circumstance that hardly lends itself to the creation of a racially oppressive atmosphere in Mr. Nimako's workplace.

147Even assuming that Mr. Spallin heard the word "nigger" on a few occasions over the loudspeaker in the storeroom where he worked, he cannot remember who, if anyone, was present, and not one other witness has come forward. Even Mr. Beatty did not say that he had heard any racial slurs spoken over the intercom system. As already indicated, the Commission's evidence does not establish that Mr. Spallin actually told Mr. Nimako anything of these alleged incidents until over two months after his dismissal. Is it to be credited that an atmosphere can be racially "poisoned" without its only potential victim being aware of the fact? Can the Commission really be heard to say that a condition of Mr. Nimako's employment was that he work in a racially oppressive environment when there is no evidence that he was aware at the time of such an environment?

148While there was evidence of the occasional use of expressions such as "wop" and "Polack," no evidence was led to show that this was of any significance. Although there is some indication that Mr. Pope might have said "wop" and "Polack" on occasion, these terms were used in jest as often as not, and predominantly by and amongst the workmen themselves, including the complainant.

149On the basis of the evidence, it must be concluded that the Commission has failed to establish that there was a racially oppressive atmosphere affecting the environment of the complainant's workplace such as to constitute a discriminatory condition of his employment. That being so, it is unnecessary to enter into a consideration of the question whether the respondent would have been liable under section 4(1)(g) of the Code for permitting its managerial employees to have allowed such a condition to exist. The issue of corporate liability for breaches of human rights legislation was dealt with by the Federal Court of Appeal in Brennan v. Canada and Robichaud (1985), 57 N.R. 116, 1985 CanLII 5265 (FCA), 6 C.H.R.R. D/2695 sub nom. Treasury Board v. Robichaud (an appeal to the Supreme Court of Canada is pending), and again in the Janzen case. That a discussion of these and several other opinions on this complex question is to be avoided as gratuitous is hardly a disappointment, even if for no other reason than the length that this decision has already attained.

Conclusion

150For all of the above reasons, I have come to the conclusion that the complaint that the respondent in this matter contravened section 4(1)(a) and (g) of the Ontario Human Rights Code, R.S.O. 1980, c. 340, must be dismissed, but without costs to the respondent. I add that qualification because, even though counsel for the respondent made no submission as to costs, the Commission's case, in the final analysis, was so untenable as to give me pause in that regard.

151The circumstances of this complaint as understood and alleged by the Commission were certainly not trivial, frivolous or vexatious and, although the complainant may have acted in bad faith in securing its support, the Commission did not act in bad faith in giving it. Moreover, the respondent withdrew its proposed motion of non-suit rather than elect not to call evidence, thus revealing its own uncertainty as to the strength of the Commission's prima facie case.

152While the benefit of hindsight makes it seem not unlikely that the investigation into the complaint was inadequate, and that a thorough investigation might have made this hearing unnecessary, there was no evidence led to that effect, and it may be that only some pre-hearing adversarial process would have revealed that the complainant was untruthful and his witnesses unreliable. However, it seems to me possible that a point may be reached in the course of a hearing at which it is apparent to the Commission that the complaint is indeed trivial, frivolous, vexatious or pursued by the complainant in bad faith. If that were so (and I do not mean to suggest that it was so in this case), then I should think that it would be possible for the Commission to exercise its discretion under section 33(1)(b) of the 1981 Code in such circumstances. Surely, the discretion "not to deal with the complaint" includes the discretion to withdraw it at any stage, subject to the complainant's right under section 36 to have that decision reconsidered, and subject to the approval of the Board appointed to hear and decide the matter. If, for instance, the complainant's bad faith became apparent to the Commission only after the hearing had commenced, surely the Commission is not required to proceed inexorably to pursue what it perceives to be a specious claim.

153I am aware of complaints being amended at the outset of a hearing in order to withdraw some of the specific allegations, and it is not unusual for the parties to settle a matter during the course of a hearing, the terms of the settlement being then incorporated into the decision. However, I am unaware of the Commission ever having exercised its discretion under section 33 after the commencement of a hearing. Although it seems to me that it would be quite improper for the Board hearing a matter to intervene in order to suggest that a point had been reached at which it was evident that the complaint was without foundation, whether the Commission ought to undertake to withdraw a complaint if that is its own perception is something that perhaps bears thinking about, particularly in light of the considerable costs that might be unnecessarily incurred in continuing beyond that point.

154Except within the limited circumstances set out in section 40(6), the respondent must bear his or her own costs incurred in mounting a successful defence against charges of a most damaging nature. There may, indeed, be good reasons why that is so; but if it is in the public interest to award costs to be paid out of the public purse to a respondent where, upon dismissing a complaint, the Board finds that the complaint was trivial, frivolous, vexatious or made in bad faith, or caused undue hardship, then surely it behooves the Commission to withdraw a complaint which subsequent events cause to appear to it to be trivial, frivolous or vexatious, or to have been made in bad faith. Indeed, were the Commission to withdraw the complaint at the earliest opportunity after its baseless character were perceived, it would be difficult to apply section 40(6) against it. The minimum financial benefit of adopting such an approach would be a reduction in the costs that the public must bear in any event, as well as the costs that the respondent may have to bear. Perhaps of more importance would be the clearer perception of respondents (and of employers generally) that their rights and interests were also of concern to those charged with the administration of our human rights system.

155Although my comments with respect both to the awarding, and to the avoidance, of costs are gratuitous, the circumstances of this hearing seemed to me to warrant them.