Gaba v. Lincoln County Humane Society
1991-05-27
Ontario Board of Inquiry
Manuel-Antonio Gaba
Complainant
v.
Lincoln County Humane Society
and
Frank Hampson
Respondents
May 27, 1991
Before:
Ontario Board of Inquiry, Morley R. Gorsky
Comm. Decision No.:
413
Appearances by:
Manuel-Antonio Gaba, on his own behalf
Mark Hart, Counsel for the Commission
Barry Adams, Counsel for the Respondents
RACE, COLOUR AND PLACE OF ORIGIN — racial slurs and harassment by supervisor — promotion denied — PHYSICAL DISABILITY — height for humane society manager — REMEDIES — recommendation to educate employee with respect to requirements of Code — EVIDENCE — circumstantial
Summary: The Board of Inquiry dismisses a complaint against the Lincoln County Humane Society filed by Manuel-Antonio Gaba who alleged that he was discriminated against because of his race when he was denied a management position with the Society.
Mr. Gaba has a degree in Veterinary Medicine from the Phillipines. He came to Canada in 1974 and began working for the respondent Society in 1976. He was hired as a driver and cleaner, then became Senior Animal Warden. In late October 1985 a new position of Assistant Manager was created and Mr. Gaba was not considered for it.
The Board of Inquiry accepts the evidence of a number of witnesses that the Manager of the Society, Frank Hampson regularly used racial epithets and often made racial slurs directed at Mr. Gaba. It finds, however, that although Frank Hampson was prejudiced against Mr. Gaba because of his race and his small stature, the decision not to hire Mr. Gaba was based on other factors. Mr. Gaba lacked experience as a law enforcement officer outside the animal shelter, and Mr. Hampson chose a better qualified candidate for the work that needed to be done.
The complaint is dismissed with a recommendation that pursuant to provisions in the collective agreement, education be provided to employees regarding the inappropriateness of using racial epithets and racial slurs in the workplace.
Cases Cited
Ahluwalia v. Toronto (Metro) Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (Ont. Bd.Inq.): 41
Kennedy v. Mohawk College (1973), (Ont. Bd.Inq., Borins) [unreported]: 37
Ruest v. Int. Brotherhood of Electrical Workers., Local 120 (1968), (Ont. Bd.Inq., Arthurs) [unreported]: 41
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53
s. 4(1): 4
s. 8: 4
s. 10: 4
Authorities Cited
Vizkelety, Béatrice, Proving Discrimination in Canada (Toronto: Carswell, 1987): 38, 41
1The complaint which led to the establishment of this Board of Inquiry alleges that the respondents engaged in discriminatory acts in failing to promote the complainant, Mr. Manuel-Antonio Gaba, to a management position.
2Mr. Gaba, who was born in the Philippines in 1945, is of Filipino ancestry, and graduated as a Doctor of Veterinary Medicine from Araneta University Foundation, at Malabon, Rizal, Philippines, in 1971. He came to Canada in 1974, and was employed as and [sic] animal technician in Niagara Falls by Dr. Gardner, a veterinarian, who operated Bridgeview Pet Care. After leaving the latter position, Mr. Gaba was hired by the respondent, Lincoln County Humane Society (the "society") in June 1976 as a driver, animal warden and kennel cleaner. Three months later, he was promoted to senior animal warden, a position he held until he became an agent in 1989. He left his job with the society later in the same year.
3In October 1985, the society appointed to the management position of inspector/assistant manager, an employee, Jeff Derksen, who was, prior to his appointment, an animal control officer, and it is alleged by the complainant that he was well qualified for the position and that the failure of the society to appoint him to that position was motivated by a discriminatory attitude manifested by its manager, the respondent Frank Hampson.
4The complainant and the Commission allege that this conduct is in contravention of ss. 4(1), 8 and 10 of the Human Rights Code, 1981 [S.O. 1981, c. 53]. These provisions stipulate[d] as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, record of offences, marital status, family status or handicap.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
A right of a person under Part I is infringed where a requirement, qualification or consideration is imposed that is not discrimination on a prohibited ground but that would result in the exclusion, qualification or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or consideration is a reasonable and bona fide one in the circumstances; or
(b) it is declared in this Act that to discriminate because of such ground is not an infringement of a right.
5Although the complaint was framed with reference to s. 10(1) of the Code, that section, although enacted in 1986 (S.O. 1986, c. 64, s. 18(8)), was not proclaimed until April 18, 1988, after the filing of the amended complaint. The predecessor to s. 10(1) was s. 10, and it was that section that was treated as being applicable to Mr. Gaba's complaint, although I do not believe that the changes effected by s. 10(1) would have altered the result.
6The book of exhibits,1 marked Exhibit 1, contains, at Tab 2, the complaint dated February 25, 1987, which amended the complaint dated January 22, 1986. The allegation of discrimination on the basis of age contained thereon was not proceeded with, leaving two matters at issue.
7The first allegation is that Mr. Gaba was not selected for the position of inspector/assistant manager because of his race, ancestry, place of origin or ethnic origin.
8The second allegation in the complaint is that Mr. Gaba was not selected for the position because of his small physical stature. It is essential, in providing evidence to substantiate this instance of alleged constructive discrimination, to show that a large physical stature was a requirement for the position, and that such a requirement resulted in the exclusion of a group identified by a prohibited ground, contrary to s. 10 of the Code.
9We heard testimony from:
Manuel-Antonio Gaba — the complainant
Alan Zutell — agent — employed at the Humane Society
Ms. Janak Shah — part-time employee
Michael Roach — agent who left before Mr. Derksen was appointed
Joe Bouchard — national representative, CUPE
Thomas Langley-Smith — animal control officer — no longer employed by the society
Frank Hampson — a respondent and manager of the society
Jackie Gaba — wife of the complainant
10At the outset, we were urged to examine the "suspicious" circumstances surrounding the withdrawal of the job posting for the bargaining unit position, after Mr. Roach left the employ of the society, and the subsequent appointment of Mr. Derksen to a position outside the bargaining unit which involved many of the duties and responsibilities as were required in the posted position.
11In the fall of 1985, Mr. Roach's job became vacant, and the position was posted on October 15, 1985, which was a Tuesday. On Friday, October 18, 1985, Mr. Gaba signed the posting as an applicant. On October 25, 1985, the posting was withdrawn, and on the same day, Mr. Hampson informed Mr. Gaba, Mr. Zutell and Mr. Smith that Mr. Derksen had been appointed as inspector/assistant manager. The posting concerned a bargaining unit position known as agent/animal control officer.
12Exhibit 36 indicates that the shelter committee of the board of directors of the society, at a meeting held on December 14, 1984, considered the appointment of a newly created position of inspector/assistant manager. There would have been no need to post the bargaining unit vacancy had the society decided to create and fill the new management position. Mr. Hampson indicated his uncertainty as to the board of directors approving the managerial position and authorizing its being filled, so he posted the agent/animal control officer position to ensure that the depleted staff would gain an employee, one way or the other.
13There was a board of directors meeting on October 23, 1985, when Mr. Derksen's appointment to the newly created management position was approved. Mr. Hampson testified that he made the recommendation to appoint Mr. Derksen either on the day of or the day before the meeting (Transcript: Vol. 4, p. 419).
14It was agreed by Mr. Hampson in cross-examination (Vol. 4, p. 421), that Mr. Gaba would have been the successful candidate for the posted position because he was capable of performing the duties and responsibilities of the posted position and because he had the greatest seniority of any of the candidates, which entitlement flowed from the applicable provision of the collective agreement (art. 9.03).
15I was urged to regard the appointment of Mr. Derksen by the board, and the withdrawal of the posted notice, as a suspicion-inducing circumstance by which Mr. Hampson revealed his intention to do an "end run" around the collective agreement in order to avoid appointing Mr. Gaba to the job, and that his motivation for doing so was based on grounds prohibited by the Code.
16Counsel for the Commission urged upon me several other points as evidence of an elaborate pretext to hide the illegal discrimination. First, it was suggested that Mr. Hampson could simply have made a public announcement concerning Mr. Derksen's appointment, instead of conducting private interviews with Messrs. Gaba, Zutell, and Smith.
17Second, it was alleged that the respondent could have waited a week to find out whether the society's board of directors would approve the appointment of Mr. Derksen, and thus avoid the posting of a bargaining unit vacancy.
18Third, in addition to the knowledge that the complainant possessed, he had enrolled in management courses at Niagara College, a fact which was unknown to Mr. Hampson (Vol. 4, p. 430). Mr. Hampson made no effort to obtain additional information from Mr. Gaba as to his qualifications for the management position that he must have known was of interest to Mr. Gaba.
19Mr. Hampson, it was suggested, made certain convenient and unwarranted assumptions with respect to Mr. Gaba: that he didn't expect Mr. Gaba to apply because he enjoyed working in the shelter, rather than on the road (Vol. 4, p. 366), the position being considered to be an outside position.
20In assessing the evidentiary ingredients which were submitted to show "pretext," it is not sufficient to assemble irregularly-shaped facts in the hope that they will somehow enable the Board to complete a jigsaw puzzle. The prima facie case is weakened when the desired inference may not be the most probable based on the circumstantial evidence adduced.
21The managerial position of inspector/assistant manager was before the board of directors at least ten months prior to the events in question. Although Mr. Roach had been considered for the position, there was never any doubt that an important purpose of the position was to afford some relief to the manager, Mr. Hampson, and not to create a reward for Mr. Roach. When Mr. Roach left the society, the need to relieve the manager remained. On October 15, 1985, Mr. Hampson, who could not know the board's decision on October 23, sought to ensure that the size of the staff would be maintained, one way or the other. Had the board of directors refused to appoint Mr. Derksen on October 23, there would have been no delay in making an appointment to the posted position. There is nothing devious in such a managerial move; on the contrary, had Mr. Hampson waited until October 23 for the board's decision, he might have been subjected to criticism for delaying the posting of the bargaining unit job.
22Where one of the important functions of a position is to be an assistant to the manager, there will be a potential for trouble if the successful candidate does not get along well with his boss. In Vol. 1, p. 81 of the transcript, Mr. Gaba states that he "told Frank in front of Jeff Derksen that . . . he doesn't like me and I don't like him." This comment was further amplified by Mr. Gaba in cross-examination in Vol. 1 pp. 131–132, as meaning Mr. Hampson and Mr. Gaba didn't like each other. A mutual dislike, where one of the parties has displayed an unfortunate tendency to engage in making and tolerating racial slurs does not necessarily mean that the dislike would not have existed in the absence of such evidence. In this case, I find that the mutual dislike would have existed whatever Mr. Hampson's views were with respect to Mr. Gaba's race, national origin and stature.
23I wish to emphasize that the relationship between Mr. Gaba and Mr. Hampson, while it did not interfere with Mr. Gaba's being able to satisfactorily carry out his duties and responsibilities, was not the kind that would bode well when they would encounter the normal stresses and strains that arise between a manager and his assistant.
24What is being masked in the absence of a public announcement that Mr. Derksen has been appointed? In a small undertaking, with little or no experience in appointing employees to managerial positions, there is nothing untoward in explaining the situation personally, rather than impersonally. Even if Mr. Hampson "knew he was headed for trouble," as counsel for the Commission maintained, a public announcement would surely not have resolved the difficulty.
25In Vol. 4, at p. 366, Mr. Hampson asserts his impression that Mr. Gaba enjoyed working in the shelter, and was therefore not expecting an application for work outside the shelter. Mr. Hampson agreed, in testimony, that the collective bargaining job would have been awarded Mr. Gaba. A position of agent/animal control officer, which had been held by Mr. Roach, had never been performed by Mr. Gaba. It is instructive to learn that only three animal control officers were being considered for the position of inspector/assistant manager: Messrs. Zutell and Derksen, and Ms. Redman. Mr. Gaba had been "on the road" infrequently and the experience involved in such a position could be gained by being an agent/animal control officer. Experience involving law enforcement would not be obtained at the shelter, but on the road.
26Mr. Hampson's reasons for choosing Mr. Derksen reflect the emphasis placed on law enforcement and working on the road. In his view, Mr. Derksen was the top officer on the road, he had more ability and skills than the other officers, he displayed qualities of dependability and dedication to the job, and he was a good investigator (Vol. 4, pp. 355–358).
27I now come to the allegation that race was a factor in Mr. Hampson's decision. In Vol. 2, p. 198 (evidence of Mr. A. Zutell):
Q. Did Mr. Hampson use any terms to refer to Mr. Gaba?
A. In the past he had used the words he was a Filipino in a derogatory area, yes.
Chairman: I beg your pardon. I am sorry, I didn't hear what you said.
Witness: Well, he said, you know, a Filipino can't handle this or can't do that or whatever.
Q. In what context would Mr. Hampson make these comments?
A. He'd be angry at him for whatever he had done wrong, whatever the situation happened to be. I don't have everything, you know, in my head, but that is basically what we would hear, yes.
28The evidence of Mr. Roach (Vol. 2, p. 242) on the same subject:
A. Yes. The only statement I can recall that I have heard, and probably I have heard it from Mr. Hampson and possibly others, is the term "little Nip," referring to a fact of Japanese, Chinese or Filipino background, that type of thing.
29The testimony of Mr. Langley-Smith) Vol. 3, pp. 306–309 and 313–314):
Q. Do you recall what the context was that Mr. Hampson made about Lito Gaba?
A. It was in reference to him as a "little nip." Again it was a comment that I made and he . . . [retorted] back to me in sarcasm.
And, at pp. 308–9:
Q. So the question you actually asked Mr. Hampson, if I understand your evidence, was "Where is the little nip?" and he responded to you in the same manner is that correct? Do I understand your evidence?
A. In sarcasm to me, yes. It was not meant to belittle Mr. Gaba, it was meant as sarcasm to me because he probably didn't approve of my action at the time.
And, at pp. 310–11:
Q. Do you recall any specific terms that were used by Mr. Hampson?
A. Referring to — I believe Mr. Medrick, who was an employee at the Humane Society for a few years — as a Polack, and again I repeat, Mr. Medrick also referred to himself as a Polack the odd time, and this was between the two of them, and it wasn't meant as a racial slur, it was just . . .
And at pp. 313–4:
Q. Did you ever hear Mr. Hampson use the term nigger?
A. I don't recall hearing him say that, no.
Q. Do you ever recall Mr. Hampson using the term wop?
A. I have heard him say that word, but again I don't recall the exact circumstances, but to the best of my recollection it wasn't meant as a racial slur.
30In Vol. 2, pp. 229–30, Ms. Janak Shah was being examined:
A. In your presence did Mr. Hampson . . . make any comments about other individuals or groups on the basis of their race?
A. Always.
Q. What were the nature of the comments made by Mr. Hampson — do you recall?
A. He had comments about every racial group. It was niggers and wops and I specifically remember when a black gentleman was asked to leave the shelter, they physically had to remove him, and the rest of the day was basically nigger jokes.
31The complainant, Mr. Gaba, had this to say (Vol. 1, pp. 83–84):
Q. Did Frank Hampson ever make any racial comments in your presence about other groups?
A. Yes, I remember one incident, when he — it was very clear in my mind. We were talking about a coloured guy and it had something to do with the opposite sex and his comment to me was, if it happens to his daughter, he'll cut his balls off.
Q. Did Hampson ever use any racial terms in your presence?
A. Yes. He makes fun about ethnic people, like Italians.
Q. What term does he use?
A. He uses "wops." And I think he referred one time to a Polish guy, or something like that — they can't express themselves very well.
32Finally, in the summer of 1985, after a baseball game for employees and their families, a number of them went to a restaurant for refreshments. Mrs. Gaba, wife of the complainant, testified (Vol. 4, p. 476):
Q. Who was there, do you recall?
A. Myself and Lito, Tom Smith and his wife, Lynn Redman and I'm not sure but I believe Donna Sands and her husband were there, and I'm not sure about the rest of the people. But, at that time a group of Jamaican people came into the restaurant and there were two white women with them and at the time there were comments made and Frank Hampson said that if his daughter ever brought home a black man he'd kill him.
Q. Were there any other remarks of a racial nature made by Mr. Hampson on that occasion?
And, the answer (p. 477) —
A. He used the terms "wop" and "nigger" and "Polack."
33Ms. Janah [sic] Shah, at p. 229 of Vol. 2, indicated that Mr. Hampson referred to Mr. Gaba as "the little guy" and "I can recall he saw him through the window in the truck and was commenting that he couldn't see him over the steering wheel." She went on to say "it was basically the way he referred to him when he wasn't around."
34The subject of size was further illuminated by Mr. Gaba (Vol. 1, p. 83) when he indicated he was 5 feet 2 inches tall, and weighed 105 pounds.
35The Commission submitted two reports concerning the stature and body weight of Philippine males (Exhibits 34 and 35). The author, Deborah E. Gustavsen, of the Department of Physical Anthropology at the University of Toronto, produced a study which indicated that the mean height and weight of Philippine males as compared with selected populations in other countries, was the lowest.
36In support of his argument based on constructive discrimination, Commission counsel referred to the frequent use of the word "little" by Mr. Hampson, and the statistical surveys showing stature of Philippine males in the anthropological studies.
37Cases of discrimination are difficult to prove, and where circumstantial evidence must be relied upon, it is [sic] has been held, because of the serious implications of a finding that the Code has been violated, that it is essential that the plausible inference points clearly to the existence of a prohibited ground: see Kennedy v. Mohawk College Board of Governors, Borins (1973) [unreported]. In the latter case, the Board stated:
In a case where direct evidence of discrimination is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is in issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analysed and scrutinized in the context of the situation in which it arises. In my view, such conduct to be found discriminatory must be consistent with the allegation of discrimination and inconsistent with any other rational explanation. This, of course, places an onus on the person or persons whose conduct is complained of as discriminatory to explain the nature and purpose of such conduct. It should also be added that the Board must view the conduct complained of in an objective manner and not from the subjective perspective of the person alleging discrimination . . .
38It was suggested in Vizkelety, Proving Discrimination in Canada ([Toronto: Carswell] 1987), at p. 142, that the above standard was too rigid:
There is, indeed, virtual unanimity that the usual standard of proof in discrimination cases is the civil standard of preponderance. The appropriate test in matters involving circumstantial evidence, which would be consistent with this standard may therefore be formulated in this manner: an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses.
39Was the size of the complainant a factor which led to the appointment of Mr. Derksen? One of the three persons who were considered for the job was Ms. Redman, who is not sufficiently taller or heavier than Mr. Gaba so as to support the suggestion made by counsel for the Commission. Mr. Zutell, one of the other persons being considered for the job, was of average size. Had management restricted its consideration of likely candidates to 200 lb. six-footers, the inference to be drawn from the use of the word "little" would have been the more probable explanation; but others were considered not, I find, because of their size, but because of their "on the road" experience.
40Counsel for the Commission used the issue of size in an attempt to strengthen the quality of circumstantial evidence; but there is insufficient connective logic pointing to Mr. Gaba's stature as an ingredient in management's decision.
41The question of racial epithets as a manifestation of racial discrimination has been explained by expert witnesses in cases involving the Code (see Ahluwalia [ v. Toronto (Metro) Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757], Tab 5, Commission's "Authorities Brief"). Adducing evidence of racial slurs or a general prejudice against a particular racial or national group is, however, not sufficient to establish that a promotion was withheld because of racial prejudice. Cf. Ruest v. Int. Brotherhood of Elect. Wkrs., Local 120, (1968) (Arthurs) [unreported]. Also see, Proving Discrimination in Canada, op cit., at p. 66:
As a matter of legal proof, it is essential to distinguish between discrimination and prejudice . . . An employer may have fixed ideas concerning the role of women in society, believing that their place is in the home. As a law-abiding citizen he may, however, keep his business practices free from his personal prejudices . . .
And at pp. 67–8:
Proof of prejudice is deemed insufficient evidence of discrimination where the causal relationship between the two is absent or inadequately shown. It is in this respect that boards have held, on more than one occasion, that proof of prejudice or racial slurs does not constitute conclusive evidence of discrimination unless that behaviour can be shown to have influenced the decision in question.
This is not to say that proof of prejudice should necessarily be discarded in instances such as these. On the contrary, where the respondent is unable to provide a credible or plausible explanation for his behaviour towards the complainant, his state of mind or the discriminatory reasons for the behaviour can in some circumstances be inferred from overt statements of prejudice.
42In the case before me, the onus was on the Commission to present evidence so that the more probable inference was that the decision not to choose Mr. Gaba for the management position was influenced by prohibited motives. Mr. Hampson denied making racially derogatory comments, except the one concerning his daughter and a black man, related by Mrs. Gaba. Nevertheless, having heard all of the evidence, I am satisfied that Mr. Hampson tolerated a work atmosphere where employees were permitted to make statements indicative of their prejudiced states of mind, and he regularly used terms that were consistent with his holding a number of prejudices based on a person's race, stature and national origin. Such statements and attitudes could not fail to offend and bother Mr. Gaba.
43We heard from several witnesses that Mr. Hampson used epithets such as: "niggers," "wops," and "Polacks"; the expression "little Nip" was said to have been used sarcastically to mimic Mr. Langley-Smith, who had used it first. I do not believe that this was Mr. Hampson's intention. If it had been, it would represent the only time that he evinced a concern for the use of derogatory references to race in a work or work-related environment. The use of such expressions, even if all members of a peer group include them in a common vocabulary, is deplorable, and must not be tolerated.
44The onus of making a prima facie case extends beyond the post hoc notion that racial prejudice caused the decision to give the management position to someone who wasn't a Filipino.
45The Commission, quite properly, emphasized the racial comments which had been heard by several witnesses. While I prefer the evidence of the witnesses, and discount Mr. Hampson's denial, I cannot, on the facts before me, impose a causal link between such thoughtless, insensitive, inappropriate and hurtful expressions and the choice of an inspector/assistant manager.
46The pieces of the jigsaw puzzle must be arranged in such a manner that the picture is complete. The evidence, when circumstantial, in cases such as this one, in order to succeed must go further than producing several equally consistent results; the second test, above referred to, which is more favourable to the position of the Commission, still requires that the inference of discrimination be "more probable than the other inferences or hypotheses."
47In the case before me, as much as I deplore the conduct of Mr. Hampson and the employees whose conduct he tolerated, there were several factors which made a perilous flight of an inductive leap from slurs touching on race, ancestry, place of origin, ethnic origin and stature (and permitting an atmosphere in the workplace which tolerated similar behaviour by employees) to a decision based in whole or in part on prohibited grounds. There was the fact that the position had been discussed, but not approved, some ten months prior to the bargaining unit posting. We heard no valid criticism as to why the manager should forego the posting if he wanted to ensure a full complement of staff, in case the society's board of directors did not approve the inspector/assistant manager's position. There was, in addition, evidence to indicate the importance of getting along with one's manager, and the anticipated difficulties, unrelated to Mr. Hampson's prejudices, in his relationship with Mr. Gaba if he were chosen for the position. Moreover, it seemed significant that only three people were considered for the job, and they had one work characteristic in common, which Mr. Gaba lacked in large measure: "on the road" experience.
48It is not difficult to see how Mr. Gaba could have honestly come to the conclusion that he was being denied the promotion for reasons prohibited by the Code. He had for many years worked in an atmosphere where the manager not only tolerated expressions that evidenced negative attitudes toward persons because of their race, ancestry, place of origin, colour, ethnic origin, citizenship and stature, but participated in such conduct. It is not surprising, therefore, for Mr. Gaba to have believed that some part of Mr. Hampson's decision was based on Mr. Gaba's being a Filipino. In different circumstances, Mr. Gaba might have been less suspicious of the timing of the withdrawal of the posted position to which he expected to be appointed and the introduction of the management position to which Mr. Derksen was appointed.
49From a subjective perspective, Mr. Gaba viewed his being a Doctor of Veterinary Medicine as giving him qualifications for the management position far greater than those possessed by Mr. Derksen. I agree with Mr. Gaba that his skills as a veterinarian would enable him to be much better able to assess the reason for the physical state of an animal who may have been neglected or abused. However, I do not regard Mr. Hampson's emphasis on other factors in making his decision as supporting a finding of discrimination on prohibited grounds.
50I can also see how Mr. Gaba's suspicions would be affected by the fact that he had, on a number of occasions over the years, been called on to be in charge of the shelter in the manager's absence, and that he had competently carried out his responsibilities in those circumstances. I do not feel that Mr. Hampson overlooked this fact, but he concluded that Mr. Gaba's relative lack of outside experience removed him for consideration for the management position.
51My responsibility is not to determine who was the best candidate for the position, but whether Mr. Hampson had violated ss. 4(1), 8 or 10 of the Code. For the reasons above set out, and notwithstanding my findings with respect to Mr. Hampson's statements and his toleration of the conduct above described, I find that the complaint must be dismissed. In arriving at my conclusion, I was mindful of the statement of counsel for the Commission (Vol. 1, at pp. 9–10) that: "[it] is sufficient to find a violation of the Code if it can be established that either the complainant's race or physical stature, or either one, was one of the reasons he was not selected for that position."
52The board of directors of the society and CUPE should consider the advisability of forming respective committees to meet with a view to educating all employees, including Mr. Hampson, with respect to the requirements of the Code and of the inappropriateness of racial "jokes" and slurs. Too frequently, those who engage in such conduct claim that their expression[s] were made in a spirit of innocent fun and that no offence was intended. I believe, on the facts of this case, that Mr. Gaba's and Ms. Shah's impressions of the atmosphere in which the statements were made is more accurate.
53Had there been a contravention of the Code, an order would have [been] issued to rectify the situation, under the guidance of the Commission. Instead, action is recommended pursuant to art. 4.01 of the collective agreement (Tab 15, Exhibit 1), with appropriate advice from and reports to the Commission, from time to time.