Ghosh v. Domglas Inc. (No. 2), 1992 CanLII 14247

Ghosh v. Domglas Inc. (No. 2)

1992-06-05

Ontario Board of Inquiry

CHRR Doc. 93-016

Ashit Kumar Ghosh

Complainant

v.

Domglas Inc.

and

Charles Fox, David Harrison, William Forrest and Ken Van Vliet

Respondents

Date of Complaint: September 13, 1990

Date of Decision: June 5, 1992

Before: Ontario Board of Inquiry, H.A. Hubbard

Comm. Decision No.: 427A

Appearances by: Mark Hart, Counsel for the Commission Eldon J. Bennett, Counsel for the Respondents

PHYSICAL DISABILITY — harassment of person with back condition and limp — promotion and salary increase denied on basis of back condition and limp — REASONABLE ACCOMMODATION — duty to accommodate work duties short of undue hardship

LIABILITY — employer/corporate liability for manager, supervisor and employee — personal and vicarious liability — DAMAGES — determining quantum using monetary limit established in legislation and using restitutio in integrum principle — compensation for injury to dignity and self-respect and lost wage increase

Summary: The Board of Inquiry finds that Ashit Kumar Ghosh was harassed and discriminated against because of a disability while he was employed by Domglas Inc.

Mr. Ghosh began his employment with Domglas Inc. in 1967. He was promoted to the position of "cold end supervisor" and he supervised the cold end of the plant in Bramalea Ontario where the glass products, which were molded in the "hot end," were inspected, selected and prepared for shipment.

In 1982, Mr. Ghosh slipped on some metal stairs at work and dislocated a vertebra. His injury left him with a degree of physical disability and a marked limp. He was unable to work for some period of time in 1982 and again in 1984. He was awarded a Worker's Compensation Board permanent disability award amounting to 10 percent of his salary. In May 1985, Mr. Ghosh was placed on permanent sick leave and he was required to leave the plant.

Mr. Ghosh alleges that he was harassed in the workplace by his supervisor, Charles Fox, and by a co-worker, David Harrison. On his behalf the Commission alleges that Domglas and William Harris and Ken Van Vliet are all liable for this harassment because they were informed of it and failed to take action to stop it. In addition, Mr. Ghosh alleges that he was discriminated against by being refused a promotion in 1984, and a salary increase, both because of his disability.

The Board of Inquiry finds that Mr. Ghosh was harassed by Charles Fox and David Harrison. Mr. Fox made derisive imitations of Mr. Ghosh's pronounced limp, and made rude and sarcastic comments about that limp, about Mr. Ghosh's W.C.B. pension, and about the post-injury work assigned to him. He implied that Mr. Ghosh was faking the limp, and had successfully fooled the W.C.B. in order to obtain the pension. Mr. Harrison engaged in making similar comments and derisive jokes.

The Board of Inquiry also finds that Mr. Forrest, the Plant Manager, and Mr. Van Vliet, the Personnel Manager, were both informed of this conduct and neither took steps to correct it. Both men sought to minimize Mr. Ghosh's complaints and their combined assessment was that it was simply a case of bad manners to which the complainant was over-sensitive. Their failure to act permitted the wrongful conduct to persist and it infringed Mr. Ghosh's right to be free from harassment.

In addition, the Board finds that Mr. Ghosh was denied a 4 percent salary increase in 1985 which was given to the other employees. The express reason was that Mr. Ghosh was "not working full time due to back problem." Mr. Forrest, who made the decision, was aware that Mr. Ghosh's absence was due to his disability. The Board rules that this salary increase was denied on the basis of Mr. Ghosh's disability. While satisfactory attendance might in some circumstances be made an essential requirement of employment, it could never legitimately be an essential requirement to be met in order to obtain a salary increase. Such a requirement would repeatedly be applied to employees with disabilities and would result in the establishment of two pay scales, one for able-bodied employees and one for employees with disabilities. In this case, there was no bona fide attendance requirement which was applied to all employees, and the effect of its arbitrary imposition on Mr. Ghosh was discriminatory.

Finally, the Board finds that Mr. Ghosh was denied a promotion in 1984 without clearly determining that he could not do the job and without considering whether his disability could be accommodated. The Board rules that Mr. Ghosh was also discriminated against with respect to promotion.

The Board of Inquiry finds each of the respondents, Domglas Inc., Fox, Harrison, Forrest, and Van Vliet liable for the harassment and discrimination. Separate orders are made against each respondent, depending on the Board's assessment of his liability and the harm it caused to the complainant. In total the respondents are ordered to pay Mr. Ghosh $2,195.65 in compensation for lost wages and interest, and $11,500 in compensation for injury to feelings.

[Ed. Note: See also related decisions Ghosh v. Domglas Inc. (1986), 1986 CanLII 2590 (ON HCJ), 9 C.H.R.R. D/4833 (Ont. H.C.J.) and Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.).]

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.): 76

Attis v. New Brunswick School Dist. No. 15 (1991), 1991 CanLII 12184 (NB QB), 15 C.H.R.R. D/339 (N.B. Bd.Inq.): 45

Belliveau v. Steel Co. of Canada (1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250 (Ont. Bd.Inq.): 92

Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.): 31, 45, 54

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 110, 112, 120

Canada (Treasury Board) v. Robichaud (1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326 (S.C.C.): 55

Cox v. Super Great Submarine and Good Eats (1981), 1981 CanLII 4327 (ON HRT), 3 C.H.R.R. D/609 (Ont. Bd.Inq.): 54

Cuff v. Gypsy Restaurant (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.): 31, 116

Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.): 76

Engell v. Mount Sinai Hospital (1989), 1989 CanLII 9070 (ON HRT), 11 C.H.R.R. D/68 (Ont. Bd.Inq.): 85, 98

Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 51, 60

Fuller v. Candur Plastics Ltd. (1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 (Ont. Bd.Inq.): 76

Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.): 29

Lee v. T.J. Applebee's Food Conglomeration (1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.): 76

Nimako v. Canadian National Hotels (No. 2) (1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985 (Ont. Bd.Inq.): 76

Parks v. Christian Horizons (1991), 1992 CanLII 14242 (ON HRT), 16 C.H.R.R. D/40 (Ont. Bd.Inq.): 90

Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 31, 54, 61, 116, 120

Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (Ont. Bd.Inq.): 116

Underwood v. Smiths Falls (Town) Commissioners of Police (1985), 1985 CanLII 5257 (ON HRT), 7 C.H.R.R. D/3176 (Ont. Bd.Inq.): 112, 120

Legislation Cited

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53

s. 4(1): 2, 9, 74, 86

s. 4(2): 2, 31, 35, 59

s. 8: 2, 9, 74, 86

s. 9(1)(b): 1

s. 10: 88

s. 16: 84, 86, 105

s. 23(1)(a): 90

s. 40(1)(b): 107, 114

s. 44(1): 50, 55, 78

PART I — INTRODUCTION

1On April 5, 1982, while working in the respondent company's plant at Bramalea, Ontario, the complainant, Ashit Kumar Ghosh, slipped on some metal stairs and dislocated a vertebra. His injury has left him with a degree of physical disability and a marked limp, which condition is clearly a handicap within the meaning of s. 9(1)(b) of the Ontario Human Rights Code, 1981 (S.O. 1981, c. 53, as amended, hereafter referred to as the "Code").

2In his amended complaint of September 13, 1990, Mr. Ghosh alleges that his right to equal treatment in employment without discrimination because of his handicap was infringed by the respondents in contravention of ss. 4(1) and 8 of the Code, and that his right to freedom from harassment in the workplace because of handicap was also infringed by them in contravention of ss. 4(2) and 8 of the Code.

3The provisions of the Code relevant to liability read in part as follows:

4(1) Every person has a right to equal treatment with respect to employment without discrimination because of . . . handicap.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer . . . or by another employee because of . . . handicap.

8. No person shall infringe or do directly or indirectly, anything that infringes a right under this Part.

9(1) (f) "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

44(1) For the purpose of this Act, except subsection 2(2), subsection 4(2), section 6 and subsection 43(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association . . . or employers' organization.

4Mr. Ghosh commenced his employment with the respondent Domglas Inc. ("Domglas") in May 1967 as a "mold room worker" at its plant in Hamilton, Ontario. Some months later he applied for and obtained a position as a "quality control inspector" working in the "cold end" of the plant where the glass products moulded in the "hot end" were inspected, selected and prepared for shipment. About the middle of 1974, after the plant was moved to Bramalea, Mr. Ghosh said he was promoted to "quality control foreman," assuming in October 1975 the position of "select and pack general foreman." He said that following a reorganization in January 1977, the general foremen in the cold end were designated "cold end supervisors."

5At the time of his accident it was Mr. Ghosh's job to supervise during his shift one of the three "lines" along which the products from the hot end entered the cold end for processing. He and the other "line" supervisors (referred to by the respondent Charles Fox as "section foremen and foreladies") were under the supervision of a "shift superintendent" who reported to Mr. Fox who, in turn, reported to the "cold end manager," a Mr. Garton at the times in question. Mr. Garton reported to the plant manager, the respondent William Forrest. The respondent Ken Van Vliet was Personnel Manager at the relevant times, and the respondent David Harrison was a supervisor responsible for the maintenance of equipment used in the cold end of the plant.

6As a result of his injury Mr. Ghosh was unable to work for periods of time in April, June and August 1982. On September 25, 1983, he was granted a Worker's Compensation Board ("W.C.B.") permanent disability award amounting to 5 percent of his salary. This was increased to 10 percent on May 25, 1984. Both awards were made retroactive to the date of his accident. His back problems led to Mr. Ghosh's absence from work for a period of some four months beginning in June 1984. On May 27, 1985, Mr. Ghosh was placed by his employer on permanent sick leave entitling him to both short-term and long-term disability benefits, depending on his future ability to work. He was required to leave the plant.

7On June 26, 1985, Mr. Ghosh commenced an action for damages for wrongful dismissal, and his human rights complaint was lodged with the Ontario Human Rights Commission (the "Commission") the following August 26. The civil action was stayed and, following delays that occurred for a variety of reasons (see the interim decision herein of November 22, 1991 [Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16]), I was appointed on May 10, 1991, to hear and decide the complaint as amended on September 13, 1990.

8It is Mr. Ghosh's allegation that he was at various times harassed in the workplace by his supervisor, Charles Fox, and by David Harrison, a co-worker, because of the handicap caused by his accident on April 5, 1985. The Commission contends that Domglas, along with Messrs. Forrest and Van Vliet personally, are also liable for this infringement of s. 4(2) of the Code because of the alleged failure of these managers to put a stop to it when it was brought to their attention. The Commission contends as well that, under the "organic theory of corporate liability," the harassment of the complainant by his supervisor, Mr. Fox, is attributable to the employer, Domglas. It was also submitted that Domglas's failure to take measures to deal with the conduct of Messrs. Fox and Harrison constituted an infringement of Mr. Ghosh's right to equal treatment without discrimination because of handicap in that the employer permitted a "poisoned work place environment" to exist as a condition of employment affecting the complainant differently from other employees.

9In June 1984 Mr. Ghosh was passed over for a promotion to shift superintendent and, at the end of the year, he was denied the 1985 salary increase of 4 percent accorded to employees generally. It is alleged that he was unlawfully discriminated against in that he was denied both the promotion and the salary increase because of his handicap, in contravention of s. 4(1) and 8 of the Code.

10Before taking up the matter of remedies in Part IV, the issues of liability for harassment will be dealt with in Part II in this sequence: 1. that of Charles Fox and David Harrison; 2. that of the employer, Domglas; 3. that of William Forrest and Ken Van Vliet. Domglas's liability for discrimination, as well as that of William Forrest and Ken Van Vliet is dealt with in Part III.

PART II — LIABILITY FOR HARASSMENT

1. The Liability of Messrs. Fox and Harrison

11The complainant testified that Mr. Fox's alleged harassment of him consisted of derisive imitations of his pronounced limp, sarcastic comments about that limp and about Mr. Ghosh's W.C.B. pension and the post-injury work assigned to accommodate his disability. Mr. Fox denied all such allegations admitting only to one incident when he made a joking comment about Mr. Ghosh's limp. Thus, the issue of credibility is of paramount importance.

12I found Mr. Ghosh forthright, consistent and believable. As the victim of the conduct he would seem to have more reason to remember it than did Mr. Fox, and his recollection of events was relatively detailed. Moreover, much of it was supported by the contemporaneous notes that he began to keep after an incident on May 29, 1984, when Mr. Fox made certain comments about his W.C.B. pension. (These notes are contained in Exhibits 61, 62 and 63.) While counsel for the Commission emphasized that Mr. Ghosh's testimony was corroborated by that of Mr. Forrest, I do not find Mr. Forrest's evidence helpful in the present context. He recalled Mr. Ghosh complaining to him about Mr. Fox making fun of the way he walked, but his evidence is equally consistent with his having heard either about one incident (perhaps the one to which Mr. Fox admitted) or about several. (See Vol. 5 of the transcript of evidence, at pp. 14 and 36. Hereafter references to the evidence are to volume and page numbers only.)

13Having regard to the nature of Mr. Ghosh's allegations concerning him, Mr. Fox testified that there was a certain amount of "kidding" that went on in the plant in which the complainant participated. He said he had once weighed 235 pounds and that the complainant jokingly referred to him as "jelly belly," and that he joked back. Mr. Ghosh denied ever referring to Mr. Fox as "jelly belly," and said "I think I heard it [the expression] just now for the first time." Mr. Fox said "We used to have a guy called Bob Wray, called him ”˜Bwana Bob' all the time." Mr. Ghosh readily acknowledged that Mr. Wray was generally referred to in that manner and admitted using that expression in reference to him, but never in his presence. Finally, Mr. Fox said that "everybody" (and he did not exclude himself) kidded another employee, Rick Beady, about his limp. Mr. Ghosh confirmed that Mr. Beady had a limp, but he said that he had not made fun of it, nor was he aware of anyone else having done so. And, in respect of the matter of credibility, I find quite revealing the following exchanges between Mr. Fox and counsel regarding Mr. Beady's limp (Vol. 5, at pp. 68–69 and p. 74):

Mr. Fox: We used to have another chap who worked in scheduling, he also has a limp, there was the kidding, everybody kidded about the guy's —

Mr. Bennett: Would Mr. Ghosh kid him?

Mr. Fox: Yes.

Mr. Hart: And you're saying that you specifically recall that Mr. Ghosh made fun of Mr. Beady's limp, is that your evidence?

Mr. Fox: Mr. Ghosh and other people in the department, yes.

Mr. Hart: But I'm not concerned about other people, I'm concerned about Mr. Ghosh, and I'm asking you do you recall Mr. Ghosh making fun of Mr. Beady's limp specifically?

Mr. Fox: Yes.

Mr. Hart: Okay. And if Mr. Ghosh is denying that, once again he's lying. Is that right?

Mr. Fox: Must be.

14Since it is evident from these exchanges that Mr. Beady must have been "kidded" about his limp with some frequency, I cannot believe that Mr. Ghosh would be the butt of such "kidding" on one occasion only. It would certainly seem to his own admission that Mr. Fox was amongst those involved in "the kidding [of Mr. Beady] about the guy's" limp, and I simply do not believe him when he insists that only once did he ever "kid" Mr. Ghosh about his limp.

15It was not Mr. Fox's evidence that he could not recall the incidents described by Mr. Ghosh, nor did he submit that the complainant had misconstrued the events in question. Rather, it was his unequivocal testimony that, apart from the one instance already referred to, none of these alleged events had occurred at all. If Mr. Ghosh said they did, then he was lying. Obviously, one of them was not telling the truth. It is simply implausible that Mr. Ghosh invented all of the incidents to which he has testified, falsely attributing them to these respondents and then, to bolster his false allegations, made a fraudulent record of them. Nor is it plausible that he imagined it all, returning home from work to regularly record his delusions. For all these reasons I have no hesitation in preferring the testimony of the complainant to that of Mr. Fox.

16The complainant testified that Mr. Fox embarrassed him by imitating his walk on numerous occasions, and he referred to one specific occasion which was "in front of a lot of people, and that was more humiliating because it was a big office and there were so many ladies working in the main office." He stated that this conduct occurred again when teachers from the American Glass Research Institute were visiting the plant, and that it occurred as well "in the walkway where there are not too many people." He indicated that Mr. Fox had "belittled" him in front of the others, and that they had laughed at him (Vol. 2, pp. 44–45 and Vol. 4 pp. 113–14). Despite Mr. Fox's denial, I find as a fact that he did imitate the complainant's limp on a number of occasions.

17According to Mr. Ghosh, in addition to deriding his handicap by imitating his limp, Mr. Fox made sarcastic comments about it a number of times. "On one occasion I was sitting in the cafeteria with a few people and he came towards me and he said, ”˜I saw you limping with the wrong leg today'." (Vol. 2, p. 45). Mr. Fox admitted to only one such incident which he said occurred when he met Mr. Ghosh coming across the production floor and "jokingly" said, "You must be feeling better today, Ashit, you're limping on the other side." While Mr. Fox said that they both laughed at this, Mr. Ghosh testified that he did not regard such comments as humorous and denied having ever joined in any laughter in that regard.

18In his direct evidence Mr. Ghosh had the following exchange with counsel (Vol. 2, p. 45):

Mr. Ghosh: On one occasion I was sitting in the cafeteria with a few people and he came towards me and he said, "I saw you limping with the wrong leg today."

Q. And were there any other comments made by Mr. Fox to you or directed towards you because of your disability that you can recall — during the period up to June, 1984?

A. You mean other than walking or —

Q. Yes, other than what you have told the board.

A. He made some comments, but — at M.C.C.*, when I was there? [*The Maintenance Control Centre]

Q. I want to deal with that as a separate part . . . But up until June of 1984? [The reference is to a four months absence from work that commenced at that time.]

19After dealing with occurrences in the maintenance control centre, counsel for the Commission did not resume questioning Mr. Ghosh about Mr. Fox's comments regarding his limp. However, the complainant stated under cross-examination that such comments were made "on numerous occasions" (Vol. 4, p. 113).

20Having observed Mr. Ghosh's particular limp, it seems clear to me that no one would seek to imitate or make fun of it as a legitimate form of humour, and if doing so could have any motive other than a perverse enjoyment of another's discomfort it could only be resentment caused by the suspicion that the limp was faked, as the particular comment about walking on the wrong side intimates.

21Mr. Ghosh testified that on June 1, 1982, Mr. Fox called him into his office to discuss his work assignment. He said that Mr. Fox, who had learned about his W.C.B. pension, asked him in a "rude and sarcastic" manner when it was that he "would get 100 percent disability" and referred to the pension as "cash for life." Mr. Ghosh said that he felt humiliated by this indirect reference to his handicap (Vol. 2, p. 43). Counsel for the respondents pointed out that, the disability being in fact permanent, the reference to "cash for life" was accurate and the question as to when the pension might be increased could simply have been solicitous. Mr. Ghosh, however, was adamant. Mr. Fox had not been questioning him about the pension and commiserating with him over his disability, but had spoken with anger and sarcasm (Vol 4, pp. 98–99). The incident was sufficiently disturbing to Mr. Ghosh that he recorded it in the contemporaneous notes already referred to (see Vol. 4, p. 61).

22While there is no evidence that these particular comments were repeated by Mr. Fox, the complainant testified that when he was informed by Mr. Fox that he would not receive the 4 percent salary increase for 1985 the reason given was that "you draw a pension and you missed too many days this year." (A contemporaneous note of this incident appears in volume 4 of the evidence, at p. 69.) Mr. Forrest's evidence was that denial of a salary increase to Mr. Ghosh was simply an application of plant policy regarding absenteeism, and Mr. Fox's having attributed it in part to Mr. Ghosh being in receipt of a W.C.B. pension was false. Again, it would seem that the most probable motive for this false and gratuitous reference, and for the earlier comment regarding the pension, was resentment of the fact that Mr. Ghosh was in receipt of it.

23At the end of January 1985 Mr. Ghosh was assigned to work in the maintenance control centre. Mr. Forrest had happened to spot him limping very badly and stopped to discuss his condition. As a result, at his request a note from Dr. Prior, dated January 29, was given to Mr. Forrest. That note (Exhibit 59) stated that Mr. Ghosh's condition was gradually worsening and that "a more sedentary job with less standing and walking would slow the aggravated deterioration." Mr. Forrest then took the complainant to see the plant maintenance superintendent, Mr. Don Domanski, who assigned him to work for Mr. Eric English in the maintenance control centre where he was at first given desk work, such as making out work orders and "feeding information" to the computer. After about a week and a half, however, these tasks were assigned to another employee and Mr. English directed the complainant to do a variety of tasks some of which, as described by the complainant (Vol. 2 at pp. 65–66), seem to have been both pointless and, because of his disability, painful:

. . . [E]very morning I was required — I was told to walk with a person to the warehouse. I just walked with him and came back. And he just picked up a paper and I came back with him. So I don't know what I did by doing that. On numerous occasion [sic] I was told to go to the basement. The basement is quite a distance and also I had to walk about 30 stairs down. And I was told on numerous occasion [sic] to go and see if everything was okay in the basement, to check the walls, to check if everything is okay in the basement.

24During this period of time the complainant was frequently assigned work by Mr. Fox who, after speaking with Mr. English, would come and tell him "to go to the floor" to work. Mr. Ghosh stated (at Vol. 2, pp. 66–67) that:

On many occasions Mr. Fox came and told me to go to the floor to work as a supervisor. In the beginning I always complied. After a while, when I was feeling a lot of pain doing the walking part, on one occasion I protested to Mr. Fox [that] Mr. Forrest told me to work in the M.C.C. . . . So he went and told Mr. Eric English [who] came out and said "take your things and get out of here. Leave. Take your things and leave." . . . I went to see Mr. Forrest and Mr. Forrest saw me upset. And he said, "Okay, you come back tomorrow morning and I will talk to Eric." . . . The next morning I went to Mr. Forrest in the morning, to his office, and he told me to go back to Eric again.

25It was Mr. Ghosh's testimony that during the period he worked in the maintenance control centre Mr. Fox, "who knew that I was working there . . . would come periodically," to where he was sitting awaiting instructions from Mr. English, look at him and say "Oh, you are here again? You are here again?" When asked what he took Mr. Fox to have meant by this, Mr. Ghosh replied (Vol. 2, pp. 69–70):

I understood that Mr. Fox did not want me to work there, but I was doing it because Mr. Forrest let me do that. So he was not happy that I was working there, and he would come and say that.

26Since he went often to the maintenance control centre to second Mr. Ghosh whom he knew had been assigned to work there, Mr. Fox's mock surprise at finding him there could only have been a sarcastic way of expressing the opinion that he ought to have been somewhere else. That, in turn, suggests, as counsel for the Commission contends, that Mr. Fox felt that the complainant was receiving undeserved special treatment by having been placed in the centre where he was to be given assignments involving reduced walking, and where he apparently spend [sic] a considerable amount of time simply waiting for tasks to be assigned. This view of the matter certainly fits in with Mr. Fox's apparent resentment of the complainant's W.C.B. pension.

27As to Mr. Harrison's conduct, Mr. Ghosh testified (Vol. 2, p. 71) that on one occasion when he was sitting with a fellow worker during lunch hour:

Mr. Harrison came and looked at me and said, why don't you go to England? They have a school there that teach [sic] dogs how to walk, where you can learn to walk. So on that occasion and a few other occasions, Mr. Harrison — I was in front of the photocopy machine — there are more people — and he would come and say, "Who is your doctor? I have to have him as my doctor." . . . I understood that he was implying that — by reading that doctor's note — I managed to get a light job from Mr. Forrest.

28The contemporaneous notes that were read into the record from Exhibit 63 (Vol. 4, pp. 79 ff.) indicate this event as having occurred on February 21, 1985, and they contain the following entries regarding Mr. Harrison's conduct as well:

April 24/85 — . . . Shortly after lunch (1:00 p.m.) D. Harrison came to me and asked me if I was on vacation.

May 2/85 — At 8:05 a.m. Mr. Harrison met me in the (photocopying) room and told me "Ashit, who is your doctor?" (with a big laugh) and I want him to be my Dr. I told him very straight my Dr. was the same Dr. who is Dr. of the company.

May 6/85 — . . . At 3:00 p.m. Mr. Harrison was in M.C.C. Dept and conversated [sic] with Mr. Moro about work. Then Mr. English and Mr. Harrison were leaving for cafeteria. Just before they left Dave said "Ashit, your Dr. is Dr. Yongset" I told him that yes he was. He told me that he would try to talk to him about back pain complaint about his. ”˜I told him to try his luck' because I knew he was making fun of my pain and walking. He told me luck was not enough. He should learn more than that.

29Mr. Harrison chose not to attend the hearing, nor was he called as a witness. However, he filed an affidavit in relation to the respondents' notice of application to the Divisional Court which was considered in a preliminary motion to adjourn these proceedings; see my interim decision of November 22, 1991 [Ghosh (No. 1), supra], para. 9 of which reads as follows:

9. Ghosh alleges that I told him "he should go to England where they have a school to teach dogs how to walk" and that I suggested he should learn to walk properly. At the time of the interview in 1987 [by the Commission's investigator], I stated that Ghosh's complaint against me was completely unfounded. I could not recall making any such derogatory statements. I still have no recollection of the events alleged to have occurred by Ghosh.

30Mr. Harrison's statement, regarding which he was not cross-examined before me, does not indicate why "at the time of the interview in 1987, [he] stated that Ghosh's complaint against [him] was completely unfounded." On its face, his statement means that, at the time of the interview, he could not recall making the statement and that, when swearing his affidavit, he still could not remember the events. His affidavit does not deny making such statements. In any case, the sworn testimony of the complainant whom I have found to be a credible witness is to be preferred to the respondent's general denial of liability and admitted lack of recollection. While it would have been helpful had Mr. Moro been called upon to corroborate the complainant's evidence, the neglect to have done so is hardly fatal to the case against Mr. Harrison. Indeed, if any importance is to be attached to either of these deficiencies, I should think the failure of a named respondent to even appear at the hearing is relatively more significant.

31It is now well settled that four conditions must be met in order for conduct to amount to harassment under s. 4(2) of the Code. (See, for instance, Boehm v. National System of Baking Ltd.(1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110; Cuff v. Gypsy Restaurant(1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972; Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36.) These elements are set out and explained fully in the Boehm case, which involved harassment because of mental handicap.

(1) A Course of Vexatious Behaviour

32The first requirement is that the respondent be found to have engaged in a course of vexatious comment or conduct. The behaviour must have involved a degree of repetition and it must in fact have been annoying, distressing, troubling or agitating to "this complainant." Obviously the complainant found the conduct of both Mr. Fox and Mr. Harrison to be "unwelcome" in this sense, and in my view it was clearly vexatious. Since their vexatious behaviour was repetitious, counsel for the Commission submitted that this element of the alleged harassment has been established with respect to both of these respondents.

33Counsel for the respondents disagreed. He submitted that even if, despite Mr. Fox's denials, I were to find (as I do) that the various comments complained of were made by him: "They are simply observations or questions which, while Mr. Ghosh if they actually occurred may have found them somewhat intimidating, his reaction to them was quite unreasonable" (Vol. 6, p. 107). While this statement denies that such comments were made, it appears to acknowledge that a person to whom they are addressed might be "intimidated" by them. Surely, comments and conduct synonymous with alarming, dismaying, frightening, daunting or cowing a person are vexatious and unwelcome to him or her. As "the measure of what is ”˜vexatious' is subjective" and the "proper question is whether the ”˜comment or conduct was vexatious to this complainant'." (Boehm, supra, at D/4122 [para. 32567]), whether Mr. Ghosh's reaction was reasonable is not the issue with respect to this element of harassment.

34It was also submitted that, regardless of whether Mr. Fox's comments and conduct as described by Mr. Ghosh were found to be vexatious, virtually all of the complainant's testimony in that regard must be disregarded as not having been the subject of a specific charge set out in the complaint, and references to that evidence by counsel for the Commission were characterized as an attempt to expand the complaint.

35Paragraph 16 of the amended complaint states that: "On one occasion, Mr. Fox ridiculed my walk (the accident had left me with a limp) and attempted to imitate me." Although no objection was raised when Mr. Ghosh gave evidence of multiple instances of such conduct, it was submitted in argument that, having regard to that paragraph of the complaint, only one such incident could be taken into account. Moreover, despite the complainant's evidence of several occasions of such conduct, counsel for the respondents chose to select, as the one incident to which alone he felt he had to respond, an incident recorded by the complainant on March 5, 1984, in his contemporaneous notes. And since one such incident cannot constitute a course of conduct as required under s. 4(2) of the Code, even if it is of a kind the repetition of which would constitute harassment, there could be no finding of a breach of that provision.

36The complainant's note of March 5, 1984, stated that, after passing Mr. Fox while walking towards the front office in the company of another worker, the latter looked back, chuckled and, when questioned by Mr. Ghosh, replied simply "Charlie," and smiled again. The note goes on as follows:

The way Mr. Fox made fun of my walking and commented "cash for life", "saw you limping with the other leg", I figure out right away what it could have been, but I did not have proof.

37As Mr. Ghosh had readily admitted under cross-examination that he did not see any imitation of his walk on that occasion, but only suspected it to have happened, counsel concluded that "Mr. Ghosh's own allegations in respect of Mr. Fox is he saw nothing, and that's the only complaint before you in the complaint with respect to Mr. Fox" (Vol. 6, p. 105).

38I do not accept the argument that the failure of the human rights officer who prepared the written complaint to set out in that document more particulars of Mr. Fox's alleged harassment of the complainant precludes the averment of more than one instance of unwelcome comment or conduct by this respondent, much less that the respondents may select the incident to which to respond. The complaint is that, in contravention of s. 4(2) of the Code, Mr. Ghosh was harassed in the workplace because of his handicap, and paras. 15, 21 and 25 of the written complaint contain general averments of such harassment which, by definition, requires more than one incident. Paragraph 16 is obviously meant to be read with para. 17, which need not have been separately numbered. That paragraph states that: "When I complained to Mr. Forrest, the Plant Manager, about Mr. Fox's behaviour he said that he could no nothing about this incident as he was unable to teach people manners." (Emphasis added.) The clear purpose of paras. 16 and 17 is to indicate the plant manager's failure to do anything about a particular incident that was drawn to his attention.

39The respondents had ample particulars of the allegedly harassing conduct of Mr. Fox long before the hearing both through the normal processes of investigation and attempted settling of the complaint and examinations for discovery in relation to the civil action. In my view, they could not have been surprised or otherwise unfairly prejudiced by Mr. Ghosh's evidence that there were multiple episodes of the conduct of which he complains. Contrary to counsel's assertion, that evidence (which, it bears repeating, was not objected to when given) does not expand the complaint of harassment (that is, of a course of vexatious conduct), but serves to substantiate the complaint of which there had been ample notice.

40That same argument was made with respect to Mr. Harrison's position, counsel suggesting that the only allegation against Mr. Harrison that had to be answered was contained in para. 22 of the complaint and concerned the alleged comment that Mr. Ghosh should attend a school in England where they teach dogs how to walk. Having already rejected the argument that only evidence of episodes of alleged behaviour specifically referred to in the complaint may be adduced and, since Mr. Harrison's various comments made on a number of occasions were clearly of offensive character, I find that he, too, indulged in a course of vexatious comment or conduct.

41Finally, as to the argument made on behalf of Mr. Fox that, as there were only two incidents to consider which were separated by a period in excess of a year and a half it could hardly be maintained that there was a "course" of vexatious conduct, the short answer is that I have found that there were more than two incidents of unwelcome conduct directed at the complainant by Mr. Fox.

(2) By an Employer, Employer's Agent, or fellow employee

42There is no dispute as to this element of harassment being satisfied in the circumstances of this case.

(3) Known (Actually or Constructively) to be Unwelcome

43The Commission maintained that these respondents knew that their conduct towards Mr. Ghosh was "unwelcome." It certainly seems inconceivable that the "dog school" reference could have been meant as a joke intended for Mr. Ghosh's amusement and, as with the cruel insults involved in the Boehm case, supra, the very point of the remark must have been to offend. When examining the other incidents in their full context I indicated that they appear to me to have been motivated by some degree of resentment, and I have no doubt that they were known to these respondents to be unwelcome. Having accepted Mr. Ghosh's evidence regarding these events, including the rude, sarcastic and angry manner in which these remarks were delivered, I fail to see any purpose behind them other than to cause him some discomfort.

44In any event, if they did not know their conduct towards Mr. Ghosh was unwelcome, in my view these respondents ought to have known it. Mr. Ghosh's testimony was to the effect that their conduct, of which he complained to both Mr. Forrest and Mr. Van Vliet, was vexatious and unwelcome to him. To the extent that he might have manifested to them his displeasure, his antagonists would have had actual knowledge of that fact; to the extent that he did not, then whether they ought to have realized this to be so depends upon whether reasonable people similarly handicapped would find such conduct to be unwelcome and, if so, whether reasonable people in the respondents' position would know that to be the case.

45In support of this approach, which I find plainly correct, counsel for the Commission referred to passages from two cases: the Boehm case, supra, and Attis v. Board of School Trustees, District 15, an apparently unreported decision of Mr. Brian D. Bruce under the New Brunswick Human Rights Act [now reported 1991 CanLII 12184 (NB QB), 15 C.H.R.R. D/339]. The passage from Boehm (found at D/4122, para. 32570) is as follows:

. . . Mr. Woods intended to annoy him, to put him down and to hurt him. This is enough to constitute harassment. However, I add as an obiter that, in my view, where a disabled person is an employee there is an obligation upon the supervisor not to use even relatively innocuous conversation which might not offend non disabled persons, if such conversation can be reasonably perceived to be hurtful to the disabled employee. That is, the sensitivity of the employee must be reasonably accommodated.

46In the Attis case, supra, it was said (at p. 44 of the copy of the decision provided by the Commission [D/354, para. 84]) that:

There is an onus on a complainant to show a prima facie effect that would be a logical result of a discriminatory action. In some cases the effect is not easily proven especially where the complainant is claiming an effect that is not readily discernible such as a loss of self-worth or dignity as may be the case in relation to Section 5 [which deals with denial of services and discrimination on various prohibited grounds]. The determination as to whether there has been such an effect revolves around, firstly, an assessment of the credibility of the complainant's evidence. Secondly, where the complainant's evidence is credible, it is necessary to determine whether this effect is a reasonable reaction given the circumstances. It is not, of course, easy for an individual who is a member of a majority to understand the impact that certain actions may have on a member of a minority and care must be taken to ensure that the assessment is done from the position of the minority member.

47While that case is concerned with discrimination rather than harassment, there can be no doubt that the reasonableness of the complainant's reaction to either form of mistreatment must be assessed "from the position of the minority member." What this requires is not that the person making that assessment be a member of that minority, but that he or she make a conscious effort "to understand the impact that [the conduct] may have on a member of" such a minority. I have no doubt that any reasonable person afflicted with a similarly conspicuous limp resulting from an injury sufficiently painful to affect his ability to continue to perform his former duties would not welcome being the object of frequent derisive comments suggestive of a condition feigned to secure financial and workplace advantages. Nor do I doubt that reasonable persons not so disabled would know that to be so.

48It was submitted on behalf of Messrs. Fox and Harrison that Mr. Ghosh was overly sensitive and that his reaction to the remarks of which he complains (assuming they were made, which they denied) was quite unreasonable. This appears meant to suggest that the respondents could not be expected to have known that their conduct was bothering the complainant. The "reaction" that counsel went on to describe was the keeping of a diary because of an unfounded fear that his job was in jeopardy, a paranoia that "caused him to read into events that occurred and things that were said meanings that no objective observer would find there" (Vol. 6, p. 107). However, the relevant reaction is simply the complainant's having found the conduct vexatious and, ipso facto, unwelcome. The question (which I have already answered) then becomes, would reasonable people in the same situation as the complainant so find it. The reasonableness of the subsequent actions taken by Mr. Ghosh because he found it vexatious has no bearing on whether the respondents ought to have known their conduct to have been unwelcome when they indulged in it. Indeed, no overt reaction by the victim is necessary in order for it to be concluded that a reasonable person would know that the conduct was unwelcome. The conclusion that a respondent ought reasonably to have known the conduct to be unwelcome is not precluded by the fact that its victim suffered in silence. In any case, I cannot agree that the reactions to which counsel for the respondents refers were unreasonable. The first incident to which Mr. Ghosh testified occurred in June of 1982, and he did not begin his diary until nearly two years later when the accumulation of incidents was such that he "went to a lawyer in Toronto and I asked his advice, that I was being harassed at work. And he told me to keep records of everything that was happening day-to-day" (Vol. 3, p. 28). There can be nothing unreasonable in someone who believes he is being harassed consulting a lawyer, and following the advice thus given is not a form of paranoia.

(4) Because of Handicap

49As it is self-evident that their vexatious course of conduct was focussed upon Mr. Ghosh's disability it is my conclusion that both Mr. Fox and Mr. Harrison are liable for having infringed the complainant's right under s. 4(2) of the Code to be free from harassment because of handicap.

2. The Liability of Domglas

50While it was admitted that Domglas cannot be vicariously liable because of the protection afforded by s. 44(1) of the Code, it was argued that under the so-called "organic theory of corporate liability" it is responsible for the harassment of Mr. Ghosh by Mr. Fox, who had a supervisory relationship towards him, but not for his harassment by Mr. Harrison, who did not have such a relationship.

51The so-called organic theory of corporate liability was dealt with comprehensively by Professor Cumming in Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797. In setting out the various types of situations in which he suggested an employer would personally be in breach of the Code he made the following observations (at D/2801, para. 22922):

(4) Where the employer is a corporate entity, and an employee is in contravention of the Code, and that employee is part of the "directing mind" of the corporation, then the employer corporation is itself personally in contravention. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility . . . For example, in another case under the former legislation, Dhillon v. F.W. Woolworth Co. Ltd. (1982), 3 C.H.R.R. D/206 where the management in a warehouse "knew, or should as reasonable men acting as management have known, that there was regular, and significant verbal racial harassment" and "did not take reasonable steps to put an end, or at least minimize, the racial abuse" the Respondent corporation was held to be in breach of the Code.

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

52Counsel for the Commission correctly pointed out that in terms of "a tree of organizational responsibility, Mr. Fox is just two steps removed from Mr. Forrest who is at the top of the tree, and then Mr. Garton and then Mr. Fox," and he submitted that Mr. Fox "is sufficiently high up in the management scale to justify imposing liability directly on Domglas in respect of the harassment engaged in by him" (Vol. 6, p. 31). Before dealing with that submission, however, it must be pointed out that there is no basis for the suggestion by counsel for the respondents that Mr. Fox was on the "third or fourth" step down from the top. He also said that "while Mr. Fox and Mr. Harrison were both supervisory employees, so was Mr. Ghosh. He was one step below Mr. Fox, but he was not himself a mere employee" (Vol. 6, p. 114). That statement is factually incorrect and it involves an erroneous implication. Clearly, Mr. Ghosh was two steps below the superintendent of the packing department. Indeed, one of his complaints is that he was wrongfully passed over for promotion to the rank of shift superintendent which would still have left him under Mr. Fox's supervision. Having regard to its context, the implication of the statement that Mr. Ghosh was not a "mere employee" but was himself a "supervisory employee" is that there is corporate immunity for the harassment of supervisory personnel by another employee who is part of the directing mind of the corporation. That suggestion is without foundation. Corporate liability for harassment does not depend upon the rank of the victim, but upon the functions of the harasser.

53While the submissions of counsel in that regard focussed on the relative positions of the parties in the chain of command, it is not self-evident from Mr. Fox's position — his rank — that he was part of the company's "directing mind." No attempt was made to define the nature of those managerial functions by virtue of which an employee is part of the directing mind of the company, nor did either counsel analyze Mr. Fox's functions in order to prove, or to disprove, that they were of such character. The shared assumption seems to have been that the managerial character of an employee's functions is to be measured simply by his or her rank in the organization.

54In my opinion, whether one employee is part of the directing mind of a corporation when dealing with another does not depend solely on their relative ranks within the organization. While the suggestion that, "generally speaking, whenever an employee provides some function of management, he is then part of the directing mind" is sound and helpful, it leaves open the question as to what it is that qualifies as a management function for that purpose. The "obvious case" is that of the supervisory "employee" who owns the company and exercises all management functions (as in the Gadhoke [Cox v. Super Great Submarine and Good Eats(1981), 1981 CanLII 4327 (ON HRT), 3 C.H.R.R. D/609] and Shaw cases, supra). While Boehm, supra, was not such an "obvious case," the respondent production manager had authority to discipline and (or) discharge subordinates, and there is little difficulty in concluding that he was a part of the directing mind of the company. However, I see no reason why such authority (which Mr. Fox appears to have lacked) should be regarded as an essential hallmark of participation in the directing mind of a corporation. Having regard to the nature and purpose of human rights legislation, I should think it sufficient in principle that the harassing employee was in a position to make decisions on behalf of the company seriously affecting the victim.

55That this is the appropriate test for determining whether an employee is part of the directing mind of a company seems to me to follow from the reasoning of the Supreme Court of Canada in Robichaud v. Canada (Treasury Board)(1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326. While that decision does not afford a way around the express exclusion of vicarious liability incongruously set out in s. 44(1) of the Code, as I had occasion to point out in the Shaw case, supra, at D/66 [para. 231]:

. . . [it] stresses the importance of holding the employer liable for infringements of human rights legislation because the purpose of such enactments is to compensate the victim rather than to punish the wrongdoer, and employers are best able to effect the remedial measures called for. It was declared that, since human rights legislation is "concerned with the effects of discrimination rather than its causes (or motivations), it must be admitted that only an employer can remedy undesirable effects; only an employer can provide the most important remedy — a healthy work environment."

56Although counsel for the Commission did not in argument identify specific functions of Mr. Fox that, in accordance with the test I believe applicable, would mark him as a part of the directing mind of Domglas, the evidence certainly suggests that conclusion. Mr. Fox was able to control to some considerable extent Mr. Ghosh's work assignments. He summoned the complainant into his office to give him instructions and to inform him of various matters, such as the denial of a salary increase. Even after Mr. Ghosh had been transferred to the maintenance control centre Mr. Fox would go there to instruct him to replace absent supervisors "on the floor," and this despite the difficulty and pain caused by the walking that such work entailed. Although the decision to deny Mr. Ghosh the promotion to shift supervisor was not his to make, Mr. Fox testified that his advice was sought in that regard, and in that advisory role he recommended someone else. While the evidence does not suggest that Mr. Fox had the authority to discipline or discharge Mr. Ghosh, it shows that his functions involved the making of decisions on behalf of Domglas seriously affecting the complainant.

57Having found Mr. Fox to have been a part of the directing mind of Domglas, there remains the question as to whether (to paraphrase Boehm, supra) his contravention of the Code came in his performing his corporate function so that the corporation is itself personally in breach of the Code.

58Counsel for the respondents said that "the allegations that are made against Mr. Fox are not allegations of activities directly involved with Mr. Ghosh's work. No suggestion that Mr. Fox somehow discriminated against Mr. Ghosh in assignments or was otherwise unfair or unreasonable to Mr. Ghosh" was made (Vol. 6, p. 114). The issue is not whether Mr. Fox discriminated against Mr. Ghosh, but whether he harassed him. I have found that he did, and that he was indeed unfair and unreasonable to Mr. Ghosh in a number of respects while carrying out "corporate functions." For instance, when Mr. Fox called the complainant into his office in June 1982 to discuss his work assignment and asked in a "rude and sarcastic" manner when he "would get 100 percent disability," referring to the W.C.B. pension as "cash for life," he was acting in the course of his corporate function. When he called Mr. Ghosh to his office to inform him that he would not receive the 4 percent salary increase for 1985 and falsely attributed this in part to the fact that "you draw a pension" he was acting in the course of his corporate function.

59I have come to the conclusion for these reasons that Domglas is to be taken to have personally contravened s. 4(2) of the Code in that Mr. Fox was a part of the directing mind of Domglas when, in the course of his corporate functions, he infringed the right of the complainant to be free from harassment in the workplace.

3. The Liability of Messrs. Forrest and Van Vliet

60Neither Mr. Forrest nor Mr. Van Vliet engaged directly or actively in a course of vexatious conduct or comment that was or ought to have been known to him to be unwelcome to Mr. Ghosh. However, another of the circumstances in which, according to Fu, supra, an employer would be personally in breach of the Code is as follows (D/2800, para. 22922):

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

61It was on that basis that Roger Levac, the manager of Levac Supply Ltd., was held to be personally liable along with the company, for the harassment of the complainant in the Shaw case, supra. As I said in that case (at D/66, para. 226), after quoting the above passage from Fu, supra:

I see no obstacle to applying this same reasoning to Mr. Levac. While he was not in law the "employer," there is no reason in principle to regard this particular statement as applying narrowly to employers only. It is at bottom a statement as to what may amount to an indirect infringement of the Code. In my opinion, a person who, whether as employer or supervisor, has the authority and duty to prevent wrongful conduct in the workplace, which conduct happens to constitute an infringement of the Code, and without lawful excuse fails to do so, thereby indirectly infringes the right in question . . . by facilitating, permitting or acquiescing in (or "authorizing, condoning, adopting or ratifying") wrongful conduct which (whether he knew it or not) constituted such an infringement, he did something indirectly that infringed the right.

62Mr. Ghosh testified that he complained to Mr. Forrest on two occasions about the harassing conduct of Mr. Fox, and that on one occasion he complained to Mr. Van Vliet about the harassment by him and by Mr. Harrison. However, by their own admission, neither manager investigated his complaints or took any other action in respect of them.

63The first of his encounters with Mr. Forrest was on June 1, 1984, when the plant manager stopped to discuss his work and Mr. Ghosh told him of Mr. Fox's comments earlier that day concerning his disability pension. He said Mr. Forrest told him that "he was aware of that problem and there's nothing beyond that he could do" (Vol. 2, p. 62). The second encounter was on January 12, 1985, when Mr. Ghosh went to Mr. Forrest's office to discuss his general situation. During the course of that meeting he told the plant manager about Mr. Fox harassing him regarding his limp and his pension. This time Mr. Forrest said he could do nothing about it because he cannot "teach people manners"Vol. 2, p. 62, and Vol. 4, p. 71).

64While Mr. Forrest could not recall the first encounter, he did not deny it. He recalled the second meeting and he remembered having said of the conduct complained of something like: "Well, that's bad manners." When asked by his counsel whether Mr. Ghosh was asking him to do anything about it he replied, "I don't think he asked me. I think the implication was there" (Vol. 5, p. 17). Mr. Forrest was uncertain as to what, if anything, he did about this complaint. He "believed" he may have told Mr. Garton about it in the expectation that the cold end manager would take it up with Mr. Fox. He could not recall following any of this up with Mr. Garton. And Mr. Fox, who denied having harassed the complainant, gave no indication of Mr. Garton's having brought this complaint to his attention. Despite the company's published "Policy on Discrimination" requiring such complaints to be investigated once brought to management's attention, Mr. Forrest acknowledged that Mr. Ghosh's complaint was not investigated.

65Mr. Van Vliet testified that, although Mr. Ghosh complained to him twice in the spring of 1985 about comments made to him, on only one of these occasions was reference made to Mr. Fox and Mr. Harrison, but he "was not sure in which order he came." The comment complained about in one encounter was a racial slur made by a Mr. Sid Fuller which does not form part of Mr. Ghosh's human rights complaint. Mr. Ghosh's contemporaneous notes indicate that this meeting occurred on May 6, 1984, and that the other meeting was on April 9.

66The meeting regarding the racial slur was brought out during Mr. Van Vliet's examination-in-chief and, although the specific complaint was not in issue, counsel for the Commission maintained that Mr. Van Vliet's reaction to it was similar to his reaction to Mr. Ghosh's other complaints, namely, a lack of concern for the complainant and a desire "to stay out of it." "Once again, you see an abdication of management's responsibility to deal with it, to address the harassment" (Vol. 6, p. 41). The basis for this suggestion was Mr. Van Vliet's testimony that he asked the complainant "how far do you want to go with this . . . you know it's possible we could have a labour relations problem here in that if we do take action against Mr. Fuller we could have a grievance here and, you know, I don't want you to hang me out to dry on this," and that Mr. Ghosh replied, "I don't want a big deal made out of it . . . I don't want any labour relation problems" (Vol. 5, p. 47). However, while his initial concern seems to have been the avoidance of union problems, Mr. Van Vliet in fact spoke to Mr. Fuller's supervisor who ultimately placed a reprimand in Mr. Fuller's file and, in the circumstances, I fail to see an abdication of management's responsibility to deal with that complaint.

67As to their earlier meeting, Mr. Van Vliet said that Mr. Ghosh complained about the conduct of a Mr. Clay Pennylegion as well as that of Mr. Fox and Mr. Harrison. He recalled Mr. Ghosh having complained that the two respondents had been ridiculing his limp and that people were laughing at him, and he said that he told the complainant that he was being too sensitive. He "got the impression he certainly didn't want anything done about it and he wanted it low key" (Vol. 5, p. 51). However, according to Mr. Van Vliet himself, the very reason Mr. Ghosh went to see him was to complain and, under cross-examination, he admitted not having raised the question whether the complainant wanted any action to be taken, nor having indicated that anything further was required of Mr. Ghosh in order that his complaint be regarded as formal.

68In this context it should be noted that the company's posted policy regarding the Ontario Human Rights Code (Exhibit 64) was that complaints should be brought to the employee's supervisor, but that "employees who are not satisfied with the supervisor's action should bring the matter to the attention of the personnel manager, who will conduct a separate investigation." Mr. Ghosh could hardly complain to Mr. Fox about the latter's conduct, and bringing his complaint to Mr. Van Vliet was precisely what the formal policy called for. However, the respondent did not take these complaints seriously enough to investigate them. He did nothing.

69Both Mr. Forrest and Mr. Van Vliet sought to minimize Mr. Ghosh's complaints regarding Mr. Fox and Mr. Harrison, their combined assessment being that it was simply a case of bad manners to which the complainant was being overly sensitive. Neither respondent bothered to investigate these complaints as required both by the duties implicit in the offices they held and by the express policy of the company. Counsel for the Commission submitted that they failed utterly in their "duty to take reasonable steps to address the harassment and, on that basis, both Mr. Forrest and Mr. Van Vliet are personally liable and Domglas is liable as a corporate entity as well."

70It was admitted by counsel for the respondents that Mr. Ghosh had spoken to Mr. Forrest about Mr. Fox's conduct, but he stressed that this occurred in the context of meetings initiated by the manager during which other matters were the main topic of discussion. His submission (and it was the only one made regarding this aspect of the case) amounts to this: unless the offended employee initiated the meeting for that very purpose, then the manager cannot be said to have been seized of the complaint even though it was brought to his attention during the course of their meeting, and even though (having regard to Mr. Forrest's own evidence) the manager knows that there is at least an implicit request that something be done about it.

71That submission is untenable. Mr. Forrest was made aware of the situation in June 1984. He had the authority and the duty to prevent Mr. Fox's wrongful conduct, which happened to constitute an infringement of the Code, and he failed to do so, thereby indirectly infringing Mr. Ghosh's right to be free from that harassment. A proper and timely investigation would surely have uncovered and redressed Mr. Harrison's conduct as well. Because Mr. Forrest's inaction facilitated or permitted that wrongful conduct, he did something indirectly that infringed the right. I find that his was a case in which "to do nothing [was], in the circumstances, to ”˜do' something that ”˜infringes a right' within the meaning of section 8" of the Code.

72As to Mr. Van Vliet, counsel for the respondents stated that the meeting at which he [the complainant] complained about the harassment by the other respondents occurred only "two or three weeks" before Mr. Ghosh left Domglas, and that his "only comment about Mr. Harrison was the most innocuous of comments" (Vol. 6, p. 113). Mr. Van Vliet's evidence does not establish that Mr. Ghosh made only one comment about Mr. Harrison, innocuous or not. His testimony showed that he recalled the substance of Mr. Ghosh's complaints, namely, that he was being ridiculed and laughed at because of his limp, but that he was (understandably) uncertain as to the specific comments attributed to them by Mr. Ghosh. He said "I recall he made a comment about Dave Harrison, I think it was Dave Harrison said . . . I wish I had your doctor, Ashit" (Vol. 5, p. 50; emphasis added). Moreover, that meeting in fact took place more than eight weeks before Mr. Ghosh's departure. During that time, as already found, both Mr. Fox and Mr. Harrison harassed the complainant again. Had appropriate action been taken by the personnel manager regarding these complaints, that subsequent harassment might have been averted. Thus, in my opinion, Mr. Van Vliet's failure to act despite a relationship of such proximity as to require him to do so "facilitated or permitted" harassing conduct to occur. He chose not to act despite a duty to do so, and the making of that choice amounted to "doing" something that, in the circumstances, indirectly infringed a right within the meaning of section 8 of the Code.

73Since Mr. Forrest and Mr. Van Vliet were clearly a part of the directing mind of Domglas the corporate respondent is liable for their harassment of the complainant as well.

PART III — LIABILITY FOR DISCRIMINATION

74The respondents against whom the complainant's allegation of an infringement of his right to equal treatment as provided by s. 4(1) and s. 8 of the Code are not referred to by name in para. 24 of the amended complaint, and the submissions made by counsel for the Commission in that regard appear limited to the liability of the corporate respondent, Domglas. However, that would not preclude finding that other respondents infringed this particular right, and if that is so an order may (indeed, ought) to be made against them as well.

75The first of the Commission's submissions related to the conduct of Mr. Fox and Mr. Harrison, the second to the denial of promotion.

1. In Respect of the Conduct of Mr. Fox and Mr. Harrison

76It is now beyond question that the atmosphere in which an employee must work is a condition of his or her employment, and should that atmosphere be oppressive or "poisoned" for a minority group, that circumstance might amount to discrimination on a prohibited basis. Management personnel who know, or ought to know, of that condition but permit it to continue thereby discriminate against the affected employees even if they are not themselves actively engaged in the production of that atmosphere. Where such discrimination is based upon a prohibited ground it is caught by the Code. There is a long line of cases to that effect decided under the previous Ontario Code and this same reasoning has been found applicable in respect of the present Ontario legislation; see Lee v. T.J. Applebee's Food Conglomeration(1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781, and Nimako v. Canadian National Hotels(1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985. Amongst the earlier decisions are the following: Fuller v. Candur Plastics Ltd.(1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419; Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743; Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757.

77The importance of the "poisoned atmosphere" or "poisoned work environment" principle under the present Code is that there may be known instances of harassment by anonymous employees, or of known harassing conduct not caught by s. 4(2) because no one perpetrator indulged in a "course" of such conduct, or the member of the minority group discriminated against by having to work in that poisoned environment may not have been the person harassed. In any event, as the Commission pointed out, the conduct in the workplace of the respondents in this case was repetitious and public. One of them was his supervisor from whom Mr. Ghosh received his daily work assignments, who had the authority to evaluate his performance and who was called upon by the employer for advice regarding promotional opportunities. It seems obvious to me on the evidence already reviewed that the atmosphere in which Mr. Ghosh was compelled to work was indeed "poisoned" for him, and that this was because of his handicap. That he found it so is made plain by this cheerless observation found in the April 25, 1985, entry in his contemporaneous notes: "It was a relatively easy day for me because C. Fox and D. Harrison who always have some unpleasant remarks about my walking" were not around.

78The acts of the respondents, Mr. Fox and Mr. Harrison, created an unfair condition of employment for Mr. Ghosh because of his handicap, different from the conditions that applied with respect to the other employees, and that condition was permitted to exist because of the omissions of the other two respondents, Mr. Forrest and Mr. Van Vliet. As these acts and omissions are by s. 44(1) of the Code deemed to be the acts and omissions of Domglas, it is my conclusion that the corporate respondent has infringed the right accorded to the complainant by s. 4 and s. 8 of the Code and is therefore liable to Mr. Ghosh in respect of the harassing conduct of Mr. Harrison. And even if Mr. Fox were found not to be a part of the directing mind of the company, so that the employer is not guilty of harassment per se, Domglas is liable in respect of that conduct for unlawful discrimination. However, I view this not as a separate contravention of the Code for which additional damages might be awarded, but rather as an alternative basis of corporate liability for the conduct of Mr. Fox. Of course, the conduct of Mr. Forrest and Mr. Van Vliet also constitutes discrimination; but, again, I view this as an alternative basis of liability for their conduct.

2. In Respect of the Denial of Salary Increase

79As already noted, it was (ostensibly) because he had been absent from work for over four months in the previous year that Mr. Ghosh was denied the 1985 salary increase of 4 percent received by the other employees at Domglas, and the undisputed reason for his absence was his disability. Although the standard "Personnel & Salary Change Notice" form prepared in Mr. Ghosh's name had indicated a 4 percent salary increase (Exhibit 19), in reviewing that form for his signature Mr. Forrest rescinded the increase and entered this remark: "Cancel the Increase — not working full time due to back problem." While a check was made in a small box on the form marked "merit," this would appear to have been inadvertence.

80Mr. Ghosh was given an unsatisfactory appraisal rating for 1984 — the first of his career at Domglas; but lack of merit could not have been the reason he was denied the increase since it was received by all other employees in the cold end despite (with one exception) their having also received unsatisfactory ratings for 1984. Mr. Forrest could not recall whether the increase was really for merit and speculated that "it came along because of an inflation factor and/or something that our union got" (Vol. 5, p. 30). In any case, the notation on his form indicates that Mr. Ghosh's increase had been cancelled not for want of meritorious performance, but for missing too much work because of his disability. Indeed, Mr. Forrest's evidence was that it was his "policy" not to grant increases to employees who were absent for a significant amount of time.

81Despite Mr. Forrest's having invoked "policy" as the basis of his decision to deny Mr. Ghosh the 1985 salary increase, there was no evidence of that "policy" ever having been applied to anyone else. Examination of the only such case put forward shows that the employee in question was on long-term disability and in receipt of no salary at all. More importantly, the evidence revealed that there were others with significant periods of absences to whom the increase was given; in one case, nearly four months, in another, nearly seven. Mr. Forrest was driven to concede that, if the information was correct (and there is no reason to doubt that it was), they were treated inconsistently.

82Counsel for the respondents made the same concession, but it was his submission that it "demonstrates nothing more than that Mr. Forrest was not completely careful in the application of this policy. Things obviously slipped by him." He then pointed out that Mr. Ghosh received full salary while absent because of his disability, and he said that when he came back he continued to receive full pay while working part-time. It should be noted that, while the complainant was switched from the normal twelve-hour shift to an eight-hour shift which led the respondents' counsel to repeatedly suggest that he was working "part-time," Mr. Ghosh steadfastly maintained that when working eight-hour days he was working forty-hour weeks (see Vol. 4, pp. 93, 94 and 110). Apart from the unclear suggestion in the notation in the salary change form, there is nothing in the record to indicate that his total work time was reduced. Counsel went on to observe that Mr. Ghosh "never again did his regular job and was always paid his full salary, and the prognosis was not good . . . Now, the latter part of that, of course, comes after the salary decision. But, surely, what Mr. Ghosh was able to do in 1984 by way of contributing to that company, and what the prospects were are relevant to a decision on salary. In my submission, there was no discrimination against Mr. Ghosh in that regard" (see Vol. 6, pp. 120 — 21).

83I found curiously revealing the reason stated on the salary change notice for cancelling Mr. Ghosh's salary increase. Mr. Forrest did not write "did not work full-time in 1984 due to back problem." He used the present tense: "not working full-time." While in other circumstances one might be prone to regard this as mere inadvertence, the present context is one in which, despite having worse attendance records, employees who posed no future problems received the increase. Thus, it is not entirely clear whether Mr. Ghosh was denied the increase because of his 1984 attendance record or because, in his counsel's words, Mr. Forrest thought "the prognosis when this man came back to work was not good." In either case, the obvious inference to be drawn from the evidence is that Domglas in fact treated Mr. Ghosh differently than his fellow employees with respect to the salary increase. If that discriminatory treatment was, directly or indirectly, because of his handicap then, unless justified, it follows that his statutory right to equal treatment was infringed.

84While the fact of discrimination was disputed, it was not argued for the respondents either that, should discrimination nevertheless be found, it was not because of the handicap, or that, if it were, it was justified under s. 16 of the Code. No submissions were made by counsel for the respondents as to the law, those made by the Commission appearing to have been fully accepted by him.

85The Commission's submission that in denying him the salary increase the corporate respondent infringed Mr. Ghosh's statutory right to equal treatment appears well-founded. It was argued that where the discriminatory act is because of the effect of a handicap of which the respondent was fully aware, that effect cannot be disassociated from its cause. In Engell v. Mount Sinai Hospital(1989), 1989 CanLII 9070 (ON HRT), 11 C.H.R.R. D/68, where the complainant was denied vacation time because of absenteeism resulting from a handicap, it was said (at D/72, para. 32) that:

If the disability played any role whatsoever in the decision, the Commission argued that the entire decision was tainted . . . In this position, they are clearly correct. If the hospital made its decision to deny the holiday even partly because of Engell's disability . . . this violates ss. 4 and 8 of the Code.

86In this case, as the express reason for cancelling the increase was that Mr. Ghosh was "not working full-time due to back problem," Mr. Forrest was obviously fully aware of the cause of the missed time. In expressly linking the effect with its cause, it is clear that his decision was made at least in part because of the complainant's disability and constitutes a prima facie violation of ss. 4(1) and 8 of the Code by both Mr. Forrest and Domglas.

Although the respondents did not raise it as a defence in respect of this or any of the other issues of discrimination on the basis of handicap that are before me, the Commission dealt at length with s. 16 of the Code according to which a right of a person under the Code is not infringed "for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap." Unquestionably, the burden is on the respondent to show that the complainant was incapable of performing or of fulfilling an essential duty or requirement of his or her job. Even if there had been a policy that salary increases be denied employees whose attendance in the previous year was unsatisfactory (and I do not believe that to have been the case), it could hardly be characterized as an essential requirement of the job. There is no record of such a requirement. No definition of "satisfactory" attendance was provided. Employees were not advised of a minimum attendance profile or target constituting an essential duty or requirement to be performed or fulfilled. If there was such an attendance "policy" its capricious application destroys any notion that it was an essential requirement.

87The additional basis upon which it was submitted that s. 16 was inapplicable, as I understand it, is of wider significance. While satisfactory attendance might in some circumstances be legitimately made an essential requirement of employment (so that, for instance, the inability to fulfill it for whatever reason would justify termination of employment), it could never legitimately be an essential requirement to be met in order to obtain a salary increase. Such a salary requirement, although it might occasionally be applied to able-bodied employees, would be repeatedly applied to handicapped employees who, being able to fulfill the other essential requirements of their employment, would remain part of the work force. The effect would be the establishment of two pay scales, a higher one for the able-bodied and a lower one for the handicapped. Such a requirement would be implicitly discriminatory and I have no hesitation in saying that its application to a handicapped employee would contravene the provisions of the Code.

88Counsel for the Commission argued, alternatively, that the circumstances of this denied salary increase amount to constructive discrimination within the terms of s. 10 of the Code, the relevant parts of which are as follows:

10(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction 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 factor is reasonable and bona fide in the circumstances;

89Whereas a requirement that all employees with unsatisfactory attendance records be denied salary increases may appear to be non-discriminatory, as already noted, such cannot be the case. However, even assuming the requirement were not per se discriminatory on a prohibited ground, it clearly results in the exclusion from salary increases of a group of persons identified by a prohibited ground of discrimination (namely, handicap) and of whom Mr. Ghosh is a member. Thus, his right under Part I would be constructively infringed unless the requirement is reasonable and bona fide. I have already concluded that a requirement of that kind would be unreasonable and, as for the policy Mr. Forrest claims to have followed in dealing with Mr. Ghosh, a requirement that appears to have been unproclaimed until after its application to the complainant and that cannot be shown to have been applied to other known transgressors cannot reasonably be described as bona fide.

90Section 23(1)(a) of the Code contains an exception that is virtually the same as that found in s. 10(1)(a). Whereas the latter provides that a right has been infringed where a certain kind of requirement is imposed "except where the requirement is reasonable and bona fide," the former says that the imposition of the particular qualification is not an infringement of the right "if the requirement is reasonable and bona fide." In Parks and MacIntyre v. Christian Horizons (December 2, 1991; E.P. Mendes, Ont Bd.Inq.; as yet unpublished [now reported 1992 CanLII 14242 (ON HRT), 16 C.H.R.R. D/40]) the following was said (at pp. 36–37 [D/49, para. 54]) regarding s. 23(1)(a):

The Supreme Court of Canada in [Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 561], established a subjective and an objective element for the . . . Etobicoke test . . . The subjective element of the Etobicoke test requires that the qualification must be imposed honestly, in good faith and in the sincerely held belief that such a limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which would defeat the purpose of the Code. However, an Ontario Board of Inquiry has added that where a policy or a qualification is imposed without the employer addressing the rational basis for the policy, or where the policy is applied inconsistently, the policy or qualification will not satisfy the subjective branch of the Etobicoke test; see Large v. City of Stratford et al., Ontario Board of Inquiry, unreported decision of November 1, 1990.

91The Board in Parks and MacIntyre, supra, went on to apply that reasoning to the facts there in question. Similarly, as I have found that Domglas did not articulate any rational basis for its alleged policy which was applied at best inconsistently, I find that this branch of the Etobicoke test has not been satisfied and that Mr. Forrest and Domglas may be held liable alternatively for constructive discrimination pursuant to s. 10(1)(a) of the Code.

3. The Failure to Promote

92Certain aspects of the law relating to discrimination on the basis of handicap have already been reviewed and it is helpful to an understanding of the evidence and arguments relating to the promotion decision to begin with the following statements made in Belliveau v. Steel Company of Canada (1988), 1988 CanLII 8876 (ON HRT), 9 C.H.R.R. D/5250 (at D/5251 and D/5252 [paras. 39564, 39568–69, 39571]):

The onus is upon the respondents to establish that the complainant is incapable of doing his job. As stated, it is not enough for the respondents to have an honest belief in the complainant's inability — rather, they must show on an objective basis that a reasonable person in the position of the employer would conclude that he was incapable. Moreover, if an employer can accommodate the employee without undue hardship, then the employer must do so. Put otherwise, an employer cannot establish that an employee is incapable unless it shows that reasonable accommodation is either not possible at all, or at least that it is not possible without undue hardship to the employer. Although section 16(1a) of the present Code, which expressly imposes the reasonable accommodation requirement, was not in force at the times relevant to this complaint, the case law has held that the requirement of reasonable accommodation was inherent to the wording of section 16 (1)(b) as originally enacted.

39568 The structure of the Code places the onus upon the employer to establish that the handicapped person is incapable of performing the essential duties of the job, and at the same [time] establish that the employer cannot take affirmative steps to reasonably accommodate the individual's handicap.

39569 The Code seeks to secure equality of opportunity for the handicapped with respect to employment. Everyone is entitled to the same opportunity to make the most of his or her life, regardless of physical or mental handicap. Thus, an employer must make a decision respecting employment of a handicapped person based upon a fair and accurate assessment of his true ability, and not based upon a stereo-type or misconception about a disability.

39571 A respondent cannot rely upon mere impressionistic evidence that a person cannot perform the essential functions of a job. In some situations it will be very obvious that a person is not able to perform the essential requirements. However, where the handicap does not, in itself, suggest that there is a reasonable certainty of his being unable to do the task, the logical route for the employer is to put the person to either the test of the job itself, or to the test of a simulated equivalent.

93As to what the duty to accommodate entails, counsel for the Commission quoted the following passage that appears at p. 12 of the galleys of an article by M. David Lepofsky which is to be published in the Canadian Journal of Labour Law:

An assessment of an employer's efforts at accommodation must go beyond the employer's substantive reasons for not accommodating. It should also include an evaluation of the sufficiency of the process by which the employer reached its decision on accommodation. The duty to accommodate has both substantive and procedural components. The duty is to take steps, short of undue hardship, to accommodate the individual's needs. One requisite step is for the employer or other parties under a duty to accommodate to undertake a thorough and adequate process of inquiry and deliberations on the request for accommodation. If an employer simply rejects a request for accommodation out of hand, without giving the matter adequate thought and attention, including thorough exploration of the possibilities, it can hardly be said to have taken adequate steps to accommodate.

94The principal evidence regarding the promotion of Ms. Grace Coleman, rather than the complainant, to the position of cold end shift superintendent is found in Exhibit 3, the "Respondents Questionnaire" of February 7, 1986 (Exhibit 3). In that document it is stated on behalf of Domglas that:

5. During June 1984, an opening for a Cold End General Foreman (Shift Superintendent) became available. The selection of a person to fill this position was the responsibility of R.W. Garton, Finished Products Manager. Ms. Grace Coleman, Section Forelady on "D" shift, was promoted to the Shift Superintendent's position. The selection of Ms. Coleman was based on her qualifications for the job, and not upon any consideration of race, ethnic origin, place of origin or colour. Attached as appendix A hereto is Mr. Garton's explanation of his decision to promote Ms. Coleman, rather than any other candidate.

95In Appendix A to the questionnaire, Mr. Garton lists as his major considerations for this position: 1. Ability to work with people; 2. Overall knowledge; 3. Previous experience; 4. Maturity; 5. Attendance. He then states:

Item #5 was very important to me in filling this position and I had already decided that all things being fairly equal, that attendance would then be a very decisive factor in my decision.

96After indicating that Ms. Coleman was highly rated on all five of these requirements Mr. Garton proceeds to set out the reasons and conclusion as to why Mr. Ghosh was not selected:

a. Mr. Ghosh, while being a very hard and conscientious worker, did not seem to be progressing into the leadership mode I feel is required in the position of Cold End Shift Superintendent.

b. Mr. Ghosh's decisions of late (at that time) left something to be desired. In other words, he was asking questions and seeking advice that should have been within his own capabilities. This could have been a result of the personal problems he appeared to [sic] having due to his accident or medication he may have been taking. In my opinion he did not have the required confidence in the area of decision making.

c. Mr. Ghosh had in the past, as a supervisor, encountered problems with his subordinates from a human relations standpoint. I spoke to him about this on several occasions and he said he would try to improve on this aspect. He did, in fact, work very hard towards improvement and made significant progress. However, I still considered him to be somewhat of a liability in this area.

d. Mr. Ghosh's attendance record had been quite good prior to his accident. After his accident, he lost quite a bit of time — a total of five months in 1984.

. . . I believe I recall Mr. Ghosh approaching me for the position of Shift Superintendent at the time it was known to be available. He suggested that he could probably work the 12-hour shift on that job because he would probably be able to spend more time in the office, or so he thought.

The position of Cold End Superintendent requires a lot of walking, even more so at this time because of a change in job content. Mr. Ghosh, through his own admission, would not be able to perform in this position on a regular basis.

. . . The decision was calculated based on overall ability to perform the job on a regular basis and, yes, his handicap, which was his inability to attend work on a regular basis and later work a regular 12-hour shift played a role in his not receiving a promotion to a position, which in my opinion, he would not be able to handle very effectively, if at all.

97Mr. Ghosh testified (in Vol. 2, pp. 56–60) that he could not recall Mr. Garton's having discussed with him the concern stated in the first reason. He said that the second reason related to his performance when relieving others who at the time "had more responsibilities in the department than my own job." As to the third reason, he admitted having had such difficulties in his first year as a supervisor under a Mr. Wray, but he could not recall Mr. Garton speaking to him about such problems. He denied admitting he could not perform in the position on a regular basis and said that "because there was, in that particular job, there was more paper work involved and less walking — I said to Mr. Garton, I could handle the job." While Mr. Garton's statement confirms such a conversation, the reason Mr. Ghosh says he gave for thinking he could do the job seems to be an admission that extensive walking would be a problem. Assuming, contrary to Mr. Ghosh's expectation, that the position actually involved more, rather than less, walking, Mr. Garton's inference that Mr. Ghosh had in effect admitted that he would not be able to perform in that position (at least, not unless his handicap could be accommodated) does not seem unreasonable.

98Counsel for the Commission submitted that an examination of the performance appraisals of the two candidates shows that there is "nothing to choose between them," the proper inference being that "Mr. Ghosh's disability was the decisive factor in denying the promotion." While it is not entirely clear that it was the decisive factor, it was admittedly a major factor in Mr. Garton's decision, and that is sufficient, the Engell case, supra, being but one of the many to have affirmed that principle.

99The gist of the Commission's argument is that, unless and until the employer determines objectively that the complainant would be unable to fulfil the requirements of the position because of a handicap that could not be accommodated without undue hardship, it would be unlawfully discriminatory to base its decision on that handicap. The issue is not whether through discrimination Mr. Ghosh failed to get a promotion he would otherwise have obtained, but whether he was discriminated against in the process of selection. It would be no answer to show that, had there been no discrimination, he still would not have been promoted.

100In his opening statement counsel said that Mr. Ghosh was denied a promotion in part because of an assumption made about his physical abilities without any objective medical assessment having been made. He went on to say that "the Commission is not taking the position that in fact the complainant was at that time, or at any time thereafter, physically capable of performing the duties of the position . . . [and] we will not be seeking any special damages for lost wages flowing from the denial" (Vol. 2, pp. 12–13). In argument, counsel said that just because, "after the fact, the Commission's investigation was unable to reveal any way to achieve substantive accommodation of Mr. Ghosh [that] does not excuse Domglas from [not] having complied with the process" (Vol. 6, p. 81).

101Counsel went on to canvass the employer's deficiencies in respect of the procedure it ought to have followed before excluding Mr. Ghosh from the competition for the position of shift superintendent because (or partly because) of his handicap. No medical assessment of the complainant's condition or prognosis was sought. No consideration was given as to whether it was possible to modify the work site, or to provide assistive devices, or to alter the duties of the position, so as to enable Mr. Ghosh to do the job. Nor was Mr. Ghosh consulted regarding his views as to how he might be accommodated.

102Counsel for the respondents characterized the Commission's position regarding the absence of a medical assessment as simply asserting that "the company didn't really know that Mr. Ghosh was disabled. [However,] the evidence given by Mr. Ghosh on cross-examination was that in June of 1984, he was incapable of doing the job, his own job. The company knew that he was incapable of doing the job. He knew and his doctor knew. Everyone knew . . . and the superintendent's job involved more walking and not less walking" (Vol. 6, p. 118).

103While it is correct that in June 1984 Mr. Ghosh was experiencing difficulty walking and that the employer was aware of that fact, the evidence does not indicate that at the time of its decision the employer had sufficient knowledge of his condition as to render a medical assessment superfluous, or so as to conclude objectively that he was incapable of doing the job. Quite the contrary, it seems to me, since it was but a few months later that Mr. Forrest requested and obtained the note from Dr. Prior (Exhibit 59) regarding the complainant's condition precisely because the plant manager (to quote his counsel) "wanted to know and to understand the extent of Mr. Ghosh's disability." If the employer did not know the extent of the complainant's disability at the end of January 1985, I fail to see how it can be maintained that it knew it the previous June. In my opinion, although Domglas knew that Mr. Ghosh had a disability and based its decision not to promote him in part on that ground, it did not know the extent of his disability sufficiently to conclude that he would be unable to fulfill the requirements of the new position either within a reasonable time or as a result of reasonable accommodation.

104As to the latter issue, counsel for the respondents objected to the raising of allegations of procedural deficiencies related to a duty to accommodate Mr. Ghosh on the basis that no reference to such a duty had been made in the complaint. He pointed out that there is no evidence whatsoever before this Board regarding these matters, and he argued that it would be improper to reach a conclusion that the respondents had failed to take various actions simply for want of evidence to the contrary when the matters in question had not been put in issue. He submitted that "it's not incumbent upon me to bring evidence forward about matters that are not in dispute and about which my friend said there was no issue."

105That objection, in my view, is unfounded. The broad issue is whether, with respect to the promotion, Mr. Ghosh was unlawfully discriminated against because of handicap. Having shown clearly that the decision in question was made at least in part because of his disability, the Commission has established a prima facie case of liability in order to rebut, which the respondents, pursuant to s. 16 of the Code, would have to show both that the disability rendered the complainant incapable of doing the work and that the handicap could not be accommodated without undue hardship on the employer. Not only did the respondents make no attempt to do this, but the suggestion seems to be that they need not do so because the Commission neglected to put in issue the absence of vital elements of that defence! In my opinion, when faced with a complaint of discrimination because of handicap, and facing the possibility that a prima facie case might be made out, a respondent must be prepared to lead evidence in support of a s. 16 defence if it is intended to be relied on. Clearly, this includes adducing evidence that the handicap could not have been accommodated without undue hardship. As it turns out, however, although the Commission dealt thoroughly with s. 16 in anticipation that it would be raised, I could not find a single express reference to that provision made by counsel for the respondents who, instead, complained about being "completely taken by surprise by all of this business about the duty to accommodate and Mr. Lepofsky's article" (Vol. 6, p. 82).

106In the result, although it is known ex post facto that Mr. Ghosh was incapable of doing the shift superintendent's job, since it was not known when the decision was made, that incapacity would not appear to provide a defence to this complaint. Be that as it may, there was no evidence that, at the time of its decision, Domglas either knew that Mr. Ghosh's handicap could not have been accommodated without undue hardship, or that it made any attempt whatsoever to find out whether it could. Thus, although it was not raised directly as a defence, the employer has in any event failed to discharge the burden upon it to prove that its discriminatory decision was justified within the full scope of s. 16 of the Code.

PART IV — REMEDIES

107The Commission seeks compensation on behalf of Mr. Ghosh for his financial losses arising out of the denial of the salary increase in 1985 and for his mental anguish in relation to all these infringements of his rights. Counsel for the respondents made no submissions at all regarding the matter of remedies, should all or any of the respondents be found liable. These aspects of the matter are governed by s. 40(1)(b) of the Code which is as follows:

40(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part 1 has been infringed and that the infringement is a contravention of section 8 by a party to the proceeding, the board may, by order,

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and where the infringement has been engaged in willfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

108Having found that both Mr. Forrest and Domglas Inc. are liable for infringing Mr. Ghosh's right in respect of the salary increase in question, thus contravening s. 8 of the Code, it is my decision that they compensate the complainant, jointly and severally, for his financial losses arising out of that infringement. These amounts were calculated by the Commission as $1,152.97 for lost wages and $1,024.23 for predecision interest for the period up to the date of counsel's submission. I have calculated an additional amount of $18.45 as interest in respect of the time that has lapsed since that submission. Counsel for the Commission provided a full explanation for these calculations along with references to appropriate exhibits which I have examined and found satisfactory (see Vol. 6, pp. 89–91). As counsel for the respondents did not challenge them, I see no need to review these calculations.

109A sine qua non for the making of an order awarding damages for mental anguish is that the party against whom it is made acted willfully or recklessly. Since, as I have found, Mr. Fox and Mr. Harrison knew the unwelcome character of their conduct and deliberately persisted in it, I have no hesitation in concluding that they acted willfully.

110Both Mr. Forrest and Mr. Van Vliet knew of the harassment by Mr. Fox and, by failing to take steps to end it, each of them indirectly (and independently) participated in it. In my view their conduct "was such as to evince disregard of or indifference to consequences, that is the conduct [was] done with rashness or heedlessness" and would come within the scope of s. 40(1)(b) of the Code (see: Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, at para. 18546 [D/2198]). For precisely the same reasons, Mr. Forrest and Mr. Van Vliet must be taken to have acted recklessly (and, again, separately) with respect to the harassment by Mr. Harrison of which they are indirect participants. And, because they were a part of the directing mind of Domglas, their reckless or willful acts in the performance of their functions are its reckless and willful acts. Thus, Domglas must be found to have acted recklessly regarding the harassment by Mr. Fox, and at least willfully regarding the harassment by Messrs. Harrison, Forrest and Van Vliet, each one of those instances being a separate infringement of a s. 4(2) right of the complainant in contravention of s. 8 of the Code.

111Mr. Forrest's conduct regarding the denial of the salary increase was quite deliberate. The belated assertion that he denied a prospective salary increase for some legitimate policy reason relating to past attendance is difficult to believe, particularly as it was unpublished and went unapplied to all but Mr. Ghosh. I believe the true reason was the one he wrote on the notice: "not working full-time due to back problems." I believe that Mr. Ghosh was singled out because he alone amongst those with similar attendance records appeared unlikely to the plant manager to make a contribution in the coming year. I believe he thought then what his counsel suggests now, that "what the prospects were are relevant to a decision on salary" even if the increase is in respect of the previous year's performance. In any case, whether his reason related to past performance or to future expectations, Mr. Forrest knew that the attendance problem was because of the disability he expressly referred to on the face of the notice, and I find that his act of discrimination was both direct and willful. That willful act is the willful act of Domglas as well, for which it is personally and separately liable.

112Mr. Garton's decision to not promote Mr. Ghosh was also discriminatory and in contravention of the provisions of the code. He knew that Mr. Ghosh had a handicap, and his decision to exclude Mr. Ghosh and to promote someone else instead was admittedly made in part because of that handicap. "Yes," he wrote (Exhibit 3), "his handicap played a role in his not receiving a promotion." His discrimination was intentional, and whether or not he knew such discrimination to be unlawful is immaterial. Since the meaning of "willfully" in s. 40(1)(b) is "intentionally," "knowingly" or "deliberately," it follows that his discrimination was "engaged in willfully." (See Cameron, supra and Underwood v. Board of Commissioners of Police of Smiths Falls(1985), 1985 CanLII 5257 (ON HRT), 7 C.H.R.R. D/3176 at D/3183.) As he is not a party to these proceedings no order may be made against Mr. Garton. However, he was clearly a part of the directing mind of the corporate employer which, therefore, I find to have willfully discriminated against Mr. Ghosh in the matter of his promotion.

113Counsel for the Commission said that "in terms of quantum in this case, I am seeking the maximum of $10,000. I am fully cognizant that the maximum award has not been granted before, and I also recognize that, while the humiliation and belittlement and ridicule that Mr. Ghosh experienced was severe, there have been cases, especially sexual harassment cases, where the conduct has even been more serious." He then urged upon me an approach to the assessment of general damages in human rights cases that he felt implicit in the following view I expressed in the Underwood case (supra, at D/3184, para. 25468):

The setting of the maximum amount that may be awarded as general damages at $10,000 is undoubtedly a reflection of legislative concern over the extent of power to be conferred on boards of inquiry under the Code, and not meant as a bench mark against which these awards are to be measured. It is not suggested, surely, that a board of inquiry should scale down its award by comparing the circumstances before it with the most horrific circumstances of mental anguish imaginable for which alone the maximum award would be available. Obviously the worst conceivable cases of mental anguish could not be adequately redressed by an award of $10,000.00 in general damages, and if all other cases are to be scaled down according to the relative degree of anguish suffered, the quantum of general damages awarded in most cases would be trivial.

114It was suggested that the monetary limit in s. 40(1)(b) has no intrinsic bearing upon the measure of general damages, but is only a cap on the amount a board is authorized under the Code to award. The underlying principle is that of restitution, of compensation both for pecuniary losses and for mental anguish actually suffered. However, non-pecuniary losses are essentially unquantifiable in monetary terms and all that can be done is to attempt to provide some reasonable solace for pain and suffering, for affronts to dignity and self-esteem, for "mental anguish." Because justice requires the like treatment of like cases, and because the predictability of the quantum of damages assists in the settlement of claims, and for want of any better approach, legal systems are driven to establish conventional scales of compensation for such losses, and even to place absolute limits on the amounts recoverable. But even in such a context the "true extent" of non-pecuniary losses caused by unlawful conduct is not a function of the particular law that has been breached. The victim's mental anguish is not less simply because it was caused by a human rights violation rather than by a wrong that is actionable in a court. Indeed, the misconduct may be both a tort and a violation of a right under the Code, such as sexual assaults in the workplace. Is the victim's mental anguish less if she seeks redress for the infringement of her statutory right under the Code than if she seeks damages for battery in a court of law? The "scale" in accordance with which damages for non-pecuniary losses, however they arise, are to be measured must be a common one if the principle of compensation is to be respected and the objectives of the Code meaningfully pursued. In this regard, the following passage from the Cameron case, supra, para. 18526 [D/2196] is particularly apt:

. . . It is now a principle of human rights damage assessments that damage awards ought not to be minimal, but ought to provide true compensation other than in exceptional circumstances, for two reasons. First, it is necessary to do this to meet the objective of restitution, as set forth above. Second, it is necessary to give true compensation to a complainant to meet the broader policy objectives of the Code: It is important that damage awards not trivialize or diminish respect for the policy declared in the Human Rights Code. [Emphasis added.]

115If, in accordance with common standards, the amount assessed as true compensation for mental anguish caused by a contravention of the Code exceeds the $10,000 limit then, and only because of administrative strictures, it must be reduced to, but not below, that limit. In my opinion, to reduce it further to reflect some special and lesser scale thought to be required by the presence of a cap on a board's authority would be misguided; it would be inconsistent with principle and frustrative of public policy.

116It does not follow from any of this, however, or from the vastly greater amounts that courts of law can and do award as general damages for pain and suffering, and for mental anguish, that boards of inquiry in human rights cases should now almost routinely award general damages of $10,000. It remains necessary for them to assess general damages as objectively as possible having regard to the unique circumstances of the case at hand, and in such a way as to reflect not only the mental anguish that willful or reckless conduct may cause, but elements of pain and suffering and injury to the complainant's dignity and self-worth as well. In this respect several cases have had regard to the following factors: 1. The nature of the harassment, that is, was it simply verbal or was it physical as well; 2. The degree of aggressiveness and physical contact in the harassment; 3. The ongoing nature, that is, the time period of the harassment; 4. The frequency of the harassment; 5. The age of the victim; 6. The vulnerability of the victim; 7. The psychological impact of the harassment upon the victim; (See: Torres v. Royalty Kitchenware Ltd.(1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858; Cuff v. Gypsy Restaurant, supra; Shaw, supra.) And some regard has also been had to the awards of other boards of inquiry.

117It is clear from its entire context that his submission regarding quantum was intended by counsel as a total amount of compensation for all of the mental anguish the complainant had suffered in consequence of all of these infringements of his rights. Obviously, he was not suggesting that Mr. Ghosh receive $10,000 in general damages for each infringement of his rights, or from each of the respondents who infringed those rights. However, I understand my obligation under s. 40(1)(b) to be to assess damages, not globally, but in relation to each right infringed and each party who infringed it.

118While the Code limits the amount of an award of monetary compensation in respect of mental anguish, it does not restrict the number of such awards a board may order after a hearing where it finds distinct rights to have been infringed in separate incidents, or series of incidents, and whether by the same or by different respondents. In this case, Mr. Ghosh's right under s. 4(2) of the Code to be free from harassment was separately infringed in contravention of s. 8 by each of the respondents, and his right under s. 4(1) was infringed on three separate occasions involving two of the respondents. Each respondent, as a party found to have infringed a Part I right in contravention of s. 8 of the Code, may be directed to make restitution, including an award for mental anguish of up to $10,000, for each such infringement.

119Although I fully subscribe to the view that the $10,000 statutory limit is not an intrinsic element of the measure of damages, having regard to the factors I have mentioned I am of the opinion that none of these separate infringements of Mr. Ghosh's rights warrants an award of general damages that even approaches that limit. However, as it happens, the total of the separate amounts at which I would assess the general damages in respect of each of the several infringements exceeds $10,000.

120An element of arbitrariness is unavoidable in any attempt to compensate non-pecuniary losses by means of monetary awards, and one can only attempt to discharge this difficult duty with as much objectivity as possible. In arriving at the amounts set out below I have considered each infringement not only with the general principle of true compensation in mind, but in light of the factors I have listed and the awards of other boards that I have examined, in which latter respect the effect of inflation is to be taken into account (see the Cameron, Underwood and Shaw cases, supra.) The awards of general damages that I think appropriate, and my principal reasons therefore, follow.

A. Section 4(2) Infringements — Harassment

1. By Mr. Fox

121Although it cannot be said just when it was that Mr. Fox began to harass the complainant, the first incident mentioned by Mr. Ghosh occurred June 1, 1982. The exact number of harassing incidents is also unknown; but they were "numerous" and they occurred over the remaining time of Mr. Ghosh's employment at Domglas. That the harasser was his supervisor (to whom, according to company policy, human rights complaints should first be brought) made him particularly vulnerable. While there is nothing to suggest that Mr. Ghosh was harassed because of his race, in considering damages it is to be remembered that the wrongdoer takes his victim as he finds him. His membership in a visible minority may have had nothing to do with the harassment, but I have no doubt that that fact was a subjective element increasing his vulnerability and anguish. Having regard to these circumstances I am of the opinion that an award against Mr. Fox of $3,000 as general damages is appropriate.

2. By Domglas (in respect of Mr. Fox's conduct)

122Although because of Mr. Fox's conduct Domglas is personally and independently liable for having infringed Mr. Ghosh's right, the complainant suffered no apparent separate or distinct mental anguish as a result. For this reason, although Domglas is jointly and severally liable with Mr. Fox for the general damages assessed against him, no separate general damages will be awarded against the employer as a result of its personal liability for Mr. Fox's harassing conduct.

3. By Mr. Harrison

123Mr. Harrison's harassment of the complainant seems to have been less frequent and to have occurred over a shorter period of time than that of Mr. Fox. As his relationship to Mr. Ghosh was not supervisory the impact of his conduct in terms of worry and helplessness was nowhere as severe as that of Mr. Fox. Having regard to the rest of the factors I have listed, I would assess general damages against him in the amount of $1,500. Although Mr. Harrison's conduct does not constitute harassment by Domglas personally, as it contributed to the mental anguish for which the company is liable as a consequence of its discrimination in respect of the complainant's conditions of work, the company is jointly and severally liable with Mr. Harrison for general damages in that amount. (See further, below.)

4. By Mr. Forrest

124Mr. Forrest's harassment was through dereliction of duty. While he did not directly mistreat Mr. Ghosh he permitted that mistreatment by both Mr. Fox and Mr. Harrison. The complainant had every right to expect that the plant manager of the company he worked for would assist and protect him, and he sought his intervention on two occasions. This deception was a blow to Mr. Ghosh's dignity and self-respect distinct from the others. If the protection sought to be afforded by human rights legislation is to be effective, the failure of top management personnel to take action when the possibility of human rights violations comes to their attention must be regarded as most serious. In the circumstances I would assess general damages against Mr. Forrest in respect of his harassment of the complainant in the amount of $2,000.

5. By Domglas (in respect of Mr. Forrest's conduct)

125Although the harassment of Mr. Ghosh by the plant manager constitutes harassment by Domglas for which it is independently liable, once again I find that no additional mental anguish was suffered by the complainant as a consequence of that corporate harassment, and no additional general damages should be awarded because of it. Domglas, however, is jointly and severally liable with Mr. Forrest for the damages assessed in the amount of $2,000.

6. By Mr. Van Vliet

126What has been said regarding Mr. Forrest is largely applicable with respect to Mr. Van Vliet. However, it was only upon one occasion that Mr. Ghosh brought to Mr. Van Vliet his complaints regarding Mr. Fox and Mr. Harrison, and only one other incident of harassment by each of them appears to have occurred subsequently. Nevertheless, once again Mr. Ghosh was treated as though he were a nuisance bent on raising frivolous complaints. Once again his confidence in the system was dashed and his sense of alienation increased, and he suffered further injury to his dignity and self-respect as a result of the personnel manager's failure to investigate his charges. Thus, I would assess general damages against Mr. Van Vliet in the amount of $1,000.

7. By Domglas (in respect of Mr. Van Vliet's conduct)

127Again, since no additional mental anguish was caused to the complainant in consequence of the personnel manager's harassment additional general damages in respect of it will not be awarded against Domglas. The company is, of course, jointly and severally liable with Mr. Van Vliet in respect of the $1,000 of general damages already assessed.

B. Section 4(1) Infringements — Discrimination

1. In respect of the Conditions of Work

128I have found that Domglas has infringed the complainant's right to equal treatment without discrimination because of his handicap through permitting a "poisoned workplace environment" as a condition of his employment. It is upon that basis that I find it jointly and severally liable with Mr. Harrison for the mental anguish suffered by Mr. Ghosh as a result of that respondent's behaviour. However, as I view this specific infringement as an alternative basis for liability for its personal harassment of the complainant through the acts of the other three respondents, no separate damages are assessed in respect of their contribution to that atmosphere.

2. In respect of the Denied Promotion

129With the exception of that of December 1984, the annual appraisals of Mr. Ghosh's performance are enthusiastic (see Exhibits 24 to 32). Those for the years 1978 through 1983 state that the area in which he could contribute significantly is that of "shift superintendent." He believed he was qualified for the job, and he desperately wanted it because he thought it involved less walking. When the assumption was made without proper foundation that he was incapable of doing the job because of his handicap there was no consultation with him as to the medical prognosis or the possibility of accommodation of his condition. In the circumstances he felt affronted, rejected and belittled. This instance of discrimination is quite separate from the other infringements of Mr. Ghosh's rights, and the amount I find appropriate to award against Domglas as general damages in respect of it is $1,500.

3. In respect of the Salary Increase Denial

130The denial of the 1985 salary increase was a substantial blow to Mr. Ghosh's self-esteem, and simply to put him back where he ought to have been financially does not compensate him for the mental anguish thereby caused. Having suffered without redress the harassments of his supervisor, of a co-worker, and of the senior management of the company, and having been denied the promotion he felt he merited, he was then told, in effect, that not only was he overly sensitive to bad manners but he was unworthy of his hire. Having missed too much work because of his job-related injury, his future usefulness to the company was dubious and he was told by Mr. Fox, on behalf of the company, that he would not get a raise because of his poor attendance. When he immediately pointed out to Mr. Fox that others had as bad or worse attendance records, he was told that the real reason was his receipt of a W.C.B. pension. It would be a crushing blow to the self-esteem of anyone to see all of his co-workers get a salary raise denied to him alone. One would be overwhelmed with self-doubt and feel diminished in the eyes of co-workers, family and friends. In my view, the mental anguish flowing from this particular infringement of Mr. Ghosh's right was quite considerable, and it is not at all inappropriate to assess the damages for it at $2,500.

ORDER

131Having for all the above reasons found the respondents to be variously in breach of sections 4(1) and 8, and 4(2) and 8, of the Human Rights Code, 1981 (Statutes of Ontario 1981, c. 53, as amended), and having found them to be liable to compensate the complainant for his losses arising out of such infringements of his rights in the manner and to the extent described above, it is hereby ordered as follows:

1 That the respondents William Forrest and Domglas pay to the complainant Ashit Kumar Ghosh, jointly and severally, the sum of $2,195.65 as special damages for lost wages and interest thereon.

2 That the respondents Charles Fox and Domglas Inc. pay to the complainant Ashit Kumar Ghosh, jointly and severally, the sum of $3,000 as general damages for harassment.

3 That the respondents David Harrison and Domglas Inc. pay to the complainant Ashit Kumar Ghosh, jointly and severally, the sum of $1,500 as general damages for harassment and discrimination.

4 That the respondents William Forrest and Domglas Inc. pay to the complainant Ashit Kumar Ghosh, jointly and severally, the sum of $2,000 as general damages for harassment.

5 That the respondents Kenneth Van Vliet and Domglas Inc. pay to the complainant Ashit Kumar Ghosh, jointly and severally, the sum of $1,000 as general damages for harassment.

6 That the respondent Domglas Inc. pay to the complainant Ashit Kumar Ghosh the sum of $1,500 as general damages for discrimination.

7 That the respondents William Forrest and Domglas Inc. pay to the complainant Ashit Kumar Ghosh, jointly and severally, the sum of $2,500 as general damages for discrimination.