Chiswell v. Valdi Foods 1987 Inc.

1994-09-27

Ontario Board of Inquiry

Paula Chiswell Complainant

v.

Valdi Foods 1987 Inc. and John Curry Respondents

Date of Complaint: April 19, 1991

Date of Decision: September 27, 1994

Before: Ontario Board of Inquiry, Errol P. Mendes

Comm. Decision No.: 650

Appearances by: Clayton Talbert, Counsel for the Complainant Fiona Campbell, Counsel for the Commission Robert B. Budd, Counsel for the Respondents

RACE, COLOUR AND PLACE OF ORIGIN — racial slurs and harassment by supervisor — poisoned environment — discrimination based on stereotype — EMPLOYMENT — obligation to provide discrimination-free workplace — DISCRIMINATION — — intention to discriminate — insubordination as reasonable cause — INTERPRETATION OF STATUTES — definition of "harassment" — REMEDIES — education program with respect to requirements of human rights legislation

Summary: The Board of Inquiry finds that John Curry and Valdi Foods discriminated against Paula Chiswell by creating and permitting a racially poisoned environment to exist in the workplace while she was employed as a cashier in the Valdi Foods store in Amherstburg, Ontario.

Paula Chiswell, who is black, was hired in January 1991 to work as a part-time cashier in the Valdi Foods store, replacing another employee who was on maternity leave. Ms. Chiswell was fired in March 1991 for insubordination.

In the period while she was employed the Board of Inquiry finds that John Curry, the manager of the store, mimicked the accents of some of the store's customers, "jokingly" called Ms. Chiswell "a little old black lady on a broom," told Ms. Chiswell and another cashier who was also black that a customer "did not know which black cashier to go to," and asked which "nigger" had moved things on the shelves. Mr. Curry also engaged in and allowed other employees to engage in race-based jokes, comments, and actions. The Board of Inquiry concludes that Mr. Curry's behaviour was unconsciously discriminatory and created a poisoned environment.

In March 1991, Ms. Chiswell, who was still on probation, asked to switch a shift, and when asked why she said she "had to attend to business." Ms. Chiswell's employment was terminated the following day for insubordination.

The Board of Inquiry finds that, though unconscious discriminatory behaviour will constitute a violation of the Ontario Human Rights Code and a nondiscriminatory environment can be considered a term of employment for everyone in Ontario, racial harassment does not give the employee the right to be insubordinate to management.

The Board of Inquiry finds that Ms. Chiswell's termination did not occur because of race discrimination or because of her reaction to the harassment.

The Board of Inquiry dismisses the complaint alleging discrimination in the termination of employment, and upholds Ms. Chiswell's complaint that she was racially harassed while employed by Valdi Foods.

Because Mr. Curry was already demoted by Valdi Foods and moved to another store, the Board of Inquiry declines to award any further remedy against Mr. Curry.

However, the Board of Inquiry orders Valdi Foods to pay Ms. Chiswell $3,000 in damages for her pain and humiliation, and to undertake a training program for its managers in all its stores on what constitutes race discrimination and racial harassment. Valdi Foods is ordered to report to the Ontario Human Rights Commission what steps it has taken to comply with this order, and the Board of Inquiry retains jurisdiction so that it can make any further order that may be necessary to ensure that effective training takes place.

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.) : 36

Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.) : 49

Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326 : 53

Cuff v. Gypsy Restaurant (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.) : 49

Dhillon v. F.W. Woolworth Company Ltd. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.) : 35, 48

Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 54

Gannon v. Canadian Pacific Ltd. (1993), 1993 CanLII 355 (CHRT), 22 C.H.R.R. D/9793 C.L.L.C. para. 17,016 (Can.Trib.) : 39

Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.) : 38, 49

Lasani v. Ontario (Ministry of Community and Social Services) (No. 2), 1993 CanLII 16433 (ON HRT), 21 C.H.R.R. D/415 (Ont. Bd.Inq.): 32

Lee v. T.J. Applebee's Foods Conglomeration (1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.) : 37

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 29

Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 49, 54

Legislation Cited

Ontario

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

s. 4(1) : 20

s. 8: 20

Human Rights Code, R.S.O. 1990, c. H.19

s. 5 : 46

s. 10(1): 47

s. 41(1): 58

s. 45(1): 51, 53

1. THE FINDING OF FACTS

1John Curry was a manager in the Valdi Foods store in Amherstburg, Ontario in 1991. He is, in his own words, "a bit of a fool." He compulsively jokes at his own expense or at the expense of others. In this context, jokes, comments and other actions based on the racial or ethnic stereotyping or characteristics of the persons involved in the joke or comment are not off-limits for Mr. Curry. This Board has concluded that, for the most part, he is not intentionally malevolent or racist in his efforts to be a joker. However, when one sets this type of character in a management role in a racially diverse workplace, one can usually expect trouble and a possible violation of the Human Rights Code of Ontario.

2Mr. Curry hired Ms. Chiswell on January 15,1991, on probation for the position of part-time cashier in the store. There were eight other part-time positions in the store and only the manager was a full-time employee. Mr. Curry testified that the fact that Ms. Chiswell was black did not enter into the decision to hire her. There were two other black employees in the store at the time, namely Lana Grayer and Ed Grayer. In accordance with the collective agreement between Valdi Foods and the part-time bargaining agent, United Food and Commercial Workers Union, Local 175, the position which Ms. Chiswell filled was a part-time replacement for another cashier who was on maternity leave until September 1991. Mr. Curry informed the complainant that it was likely that she would be laid off in accordance with the collective agreement on the return of the other cashier from maternity leave.

3In the first week of her new job, the complainant heard a conversation between Mr. Curry and another employee, Darlene Latoves, who was also the store's shop steward, concerning a "mouse problem" that they had in the store. The respondent then turned to Ms. Chiswell and said that she had been hired at the right time. When Ms. Chiswell inquired what he meant, she alleged he replied "I hired you at the right time. A black witch to get on the broom to get that mouse."

4Mr. Curry does not deny the incident, but claims, again in his own words, that for some "God-awful reason" connected with an attempt at humour, he actually said, "What we really need around here is a little old black lady with a broom to catch the mouse." There was another employee present at this and most of the other incidents alleged in Ms. Chiswell’s complaint, namely Jason Mann who was a Commission witness. Mr. Mann confirmed that the word "witch" was not uttered by Mr. Curry. This Board finds either version of Mr. Curry’s statement equally problematic as regards his own and Valdi Foods' obligations under the Human Rights Code of Ontario, even if said without malice or racist intent.

5Ms. Chiswell stated that she was very angry and upset at the statement. The respondent claimed that the complainant laughed along with Darlene Latoves at the statement. Ms. Chiswell claims that she did not complain immediately to Mr. Curry or the shop stewar[d] who took part in the incident because she was afraid of her probationary position being terminated.

6This Board finds that, whether or not the claimant laughed along with the other two or complained immediately to the respondent or the shop steward, the potential for a Human Rights Code violation exists just on the utterance of such an admittedly awful statement to a black employee. It is precisely because of fear which an employee may have of losing a position if he or she reacts to a racist statement, that the reaction of the targeted employee should be deemed to be irrelevant.

7A second incident happened around the first week of February 1991. Jason Mann, an employee and, to reiterate, a Commission witness, testified that Ed Grayer, a black employee, told a racially self-denigrating joke in the presence of Ms. Chiswell, about what one calls "a black man with a new car." The supposedly humorous answer is "a thief." Mr. Curry was present during the joke. In her complaint to the Human Rights Commission, Ms. Chiswell alleges that it was Mr. Curry who told this joke. At the hearing, the respondent [sic] further testified that the joke made her feel upset, angry and humiliated. Again she did not complain about the incident because of fear of losing her job. This Board does not find the claimant credible on this allegation, given the testimony of the Commission's own witness, Jason Mann. This finding was the first indication the Board had that, in some measure, the complainant was attempting to build a false picture of the depth of racism of the respondent. This conclusion does not condone the lack of action on Mr. Curry’s part, even if it was a black employee who told the racially stereotyping joke. All employers must ensure that such racist stereotyping is not tolerated in the workplace.

8The third incident happened around the middle of February 1991. In her complaint to the Human Rights Commission, Ms. Chiswell alleged that she was working with another black cashier, Lana Grayer, when Mr. Curry told them that a customer had complained that he did not know which black cashier to go to and also that another customer had complained that some items on the shelves had been moved by saying, "What nigger did this?"

9Jason Mann, who was also present in the store during this incident, testified that the customer was debating which cashier to go to when he heard Mr. Curry say to him, "Can't you decide which black lady (or black one) to go to?" The respondent also testified that it was the same customer who had earlier made the offensive statement relating to the items being moved.

10Mr. Curry testified that he had repeated to Lana Grayer and Paula Chiswell a complaint that the customer did not know to which black cashier he should go and denies that he repeated the offensive statement containing the word "nigger." He states that he did not laugh at the statement when it was made by the customer, but neither did he rebuke the customer.

11This Board again finds the testimony of Jason Mann to be the most credible and believes that Mr. Curry did not repeat the extremely offensive statement made earlier by the same customer containing the word "nigger." The testimony of the respondent [sic] in this regard appeared to be an attempt to depict a degree of malevolence on the part of Mr. Curry, which this Board did not find to be supported on all the evidence.

12However, the fact that Mr. Curry joked about the colour of the two cashiers and, moreover, did not support the employees in the face of ignorant and unacceptable racist behaviour in the workplace by a customer constitutes a violation of the Human Rights Code of Ontario, as will be discussed below.

13Understandably, the two employees were very upset at this incident. Lana Grayer complained to the shop steward Darlene Latoves about the incident. Ms. Latoves talked with the complainant to confirm the facts and the next day discussed the incident with the respondent. A few days later, Mr. Curry apologized to both individuals. The matter was considered resolved by both employees and no grievance was submitted to the Union with respect to the incident.

14The fourth incident occurred about the middle of March 1991. Mr. Curry, who for some incomprehensible reason was concerned with the fact that he had difficulty choosing a shirt in the dark when he awoke one morning, decided to do a Stevie Wonder impression in the workplace in the presence of Ms. Chiswell. The respondent [sic] testified that she felt that this behaviour was akin to another racial joke because he was imitating a blind, black man. This kind of behaviour that could trigger racial sensitivities was not unusual for this respondent.

15Testimony was heard from several witnesses, including the respondent, that in his attempts at humour, Mr. Curry imitated the accent of some of his Italian customers and imitated the so-called "moonwalk" of Michael Jackson. A further act of insensitivity that took place even before the complainant was hired was brought to the Board's attention. Ms. Chiswell’s uncle, Mr. Harris, had come into the Valdi store wearing bright clothes. Mr. Curry greeted him with a statement that approximated to "Hello Sunshine." Mr. Harris, called as a witness by the Commission, testified that he took deep offence at what he thought was a racially derogatory remark and boycotted the store until the respondent later apologized. The respondent testified that he was surprised that the greeting was regarded as racially insulting and that he valued Mr. Harris as a customer whom he would not wish to hurt.

16Apart from the mimicking of accents, the incidents described in the above two paragraphs displayed ignorance, insensitivity and lack of judgment but do not constitute a violation of the Code. The mimicking of accents in the workplace can and has been regarded as an element in a racially poisoned work environment, as will be discussed below.

17What the respondent's behaviour described above clearly demonstrated was a lack of sensitivity, judgment, caution and training which a manager who works in a racially diverse environment should have. A properly trained manager would regard any comment, joke or action that could be linked to a racial stereotype as being extremely foolish and to be avoided at all costs.

18The complainant added one further ground for her discrimination complaint. She alleged that she had been discriminated against on the grounds of race and colour in the application of an employment rule. She claimed that Mr. Curry had approached her regarding a Valdi Foods rule that cashiers not keep change in their pockets. She claims that this rule was not enforced with white cashiers. On cross-examination, the respondent [sic] admitted she never actually carried change in her pockets and was only complaining that Mr. Curry did not enforce the rule against white cashiers, even though he advised her of the existence of the rule. This Board finds that the complainant again lacked credibility in her evidence on this ground of her complaint and that her testimony provided further evidence that she was attempting to paint a far more malevolent picture of the respondent than the facts would bear.

19The complainant testified that around March 21, 1991, she asked, at the start of her shift, to switch her shift to the following Monday for another Monday, because she wanted to pick up her stepdaughter. She testified that Mr. Curry "got mad" at the demand saying, among other things, that by the rules of the store, she had to give him more notice for switching shifts. She testified that on the next day, March 22, 1991, at the end of her shift, he called Ms. Chiswell, Darlene Latoves and Jason Mann into his office. He informed the complainant, in front of the other two employees, that he was terminating her because of her attitude. Ms. Chiswell then testified that she signed the termination card in shock and drove home to tell her husband of her termination.

20On March 26, Ms. Chiswell filed a complaint with the Human Rights Commission and signed the formal complaint detailing the incidents described above claiming that as a black person, her right to employment without discrimination had been infringed because of her race and colour in contravention of ss. 4(1) and 8 of the Human Rights Code, 1981, S.O. 1981, c. 53 as amended.

21Jason Mann, called as a witness by the Commission, gave a quite different version of the events of March 21 and 22, 1991, which he witnessed. He testified that on March 21, 1991, Ms. Chiswell came into Mr. Curry's office and told the respondent that she needed a day off. When Mr. Curry asked why, Ms. Chiswell responded "I have to take care of business." Mr. Mann testified that this was not the type of arrogant response that one would expect of someone who was still in her probationary period of employment. On cross-examination, Ms. Chiswell denied she behaved in the above fashion, although, in this regard, one of the Commission's own witnesses had brought the credibility of Ms. Chiswell into question.

22The credibility of the complainant was further undermined by the testimony of Mr. Mann concerning the events of March 22, 1991. Mr. Mann testified that when Mr. Curry told the complainant she was being terminated she responded by saying "I blew it." At no time during the fifteen minutes that she was in Mr. Curry's office did the complainant raise any question that she was being terminated because of her colour or her opposition to Mr. Curry's jokes or behaviour. Mr. Mann did, however, testify that Mr. Les Chiswell, the complainant's husband, came into the store and in essence asked for the reinstatement of his wife. He added that if his wife was not given back her job, they would be pursuing other avenues. No mention of Mr. Curry's jokes or behaviour was mentioned by Mr. Chiswell at this confrontational meeting between Mr. Chiswell and the individual respondent. Mr. Chiswell, called as a Commission witness, claimed that he did not challenge the respondent on his jokes or comments at that time or earlier, because he did not want to jeopardize his wife's job, which she liked apart from the foolish antics of Mr. Curry.

23Mr. Curry did not change his mind about giving Paula Chiswell her job back, even after the confrontational meeting with Mr. Chiswell and the complaint which is the subject matter of this case ensued.

24In the hearing before this Board, counsel for the respondents, Mr. Budd, also attempted to establish other incidents which could have justified the dismissal of Ms. Chiswell for insubordination. In particular, Mr. Budd led testimony from Mr. Curry and Mr. Mann concerning what was called the "Molly Maid" incident. This involved the requirement in the Valdi store that all employees take part in cleaning duties. Ms. Chiswell would have been expected to do cleaning jobs around the cash register and light cleaning duties around the front of the store where the cash registers were located, including cleaning up damaged products. In the middle of one of her shifts, Mr. Curry asked Ms. Chiswell to clean out the booth of an unused cash register which had become the depository for damaged goods. At the end of her shift, when Mr. Curry asked why the cleaning had not been done, the complainant replied "I ain't no Molly Maid." Mr. Curry felt that his authority was challenged on this occasion. Mr. Mann, a witness for the Commission testified that other staff members had heard Ms. Chiswell make this statement and were upset that she was not doing her share of cleaning duties. Mr. Curry also testified that the complainant refused to take her turn in other cleaning duties such as cleaning the washroom, and that this created morale problems with the other employees. Mr. Mann confirmed that there was a feeling among other staff that Ms. Chiswell was not doing her fair share of the cleaning duties. The Board finds that the evidence presented establishes that Ms. Chiswell did indeed refuse to perform her expected cleaning duties.

25However, the importance of such a neglect of employment duties is blunted by a written evaluation of Ms. Chiswell, which was done three weeks after she commenced her employment (Commission Exhibit No. 6). In summary, the evaluation deemed Ms. Chiswell's work satisfactory and there were no negative or bad evaluations of her job performance. Ms. Chiswell testified that she received another similar written evaluation around the middle of March 1991. Valdi Foods was unable to provide a copy of this second written evaluation to the Commission. Counsel for the respondents, Mr. Budd, attempted to brush off these contradictory written performance reviews as referring only to her cashier duties and her conduct towards customers. The Board does not accept such an explanation. Written performance appraisals can and do serve as notice to employees that they are or are not living up to the employer's expectations and failure to give accurate appraisals will estop an employer from denying their accuracy.

26Given the above findings of fact, this Board has concluded that the termination of Ms. Chiswell was not motivated by discrimination on the grounds of colour or race, but was because of perceived insubordination on the part of the complainant. From the perspective of the respondents, this insubordination occurred when Ms. Chiswell asked for a change in her work schedule on March 21, 1991, without giving the proper notice and giving as the sole reason for the request that she was "taking care of business."

27The Board was also presented with evidence by counsel for the respondents as to how Ms. Chiswell and her husband tried and succeeded in turning this case into a cause célèbre for the fight against racial discrimination in the workplace. During the summer of 1991, they both organized and took part in pickets and demonstrations in front of a Valdi Foods store in Windsor where Mr. Curry was sent at the demoted rank of Assistant Night Manager after the human rights complaint was filed by Ms. Chiswell. Evidence was also presented to the Board that the complainant tried to organize a province-wide boycott of Valdi Food stores. The objective of such activities was the firing of Mr. Curry by Valdi Foods. The Chiswells also gave extensive press interviews to the local media, again alleging that Mr. Curry and Valdi Foods had practised constant racial harassment in the workplace and had not afforded Ms. Chiswell appropriate redress. For the Chiswells, appropriate redress had to include reinstatement, back pay, general damages and a letter of apology from Valdi Foods or disciplinary measures against Mr. Curry and his enrolment in a race relations course. In fact, Mr. Curry had been demoted and had his pay reduced by $75 per month due to the complaint of Ms. Chiswell even before the Ontario Human Rights Commission decided to request a hearing into the complaint.

28Ms. Chiswell had also demanded initially $15,000 in general damages according to the case summary of the Human Rights Board Investigating Officer, Mr. J.C. McKinnon (Respondents' Exhibit No. 15). Ms. Chiswell under oath several times during the hearing stated she had no recollection of making request for such a large amount of compensation. The Board finds that the fact that the complainant did make this claim was confirmed by the records of the Human Rights Commission.

2. THE LAW AS APPLIED TO THE FACTS

29This Tribunal has determined that substantially all of the jokes and actions of Mr. Curry alleged in the complaint to the Human Rights Commission by Ms. Chiswell were not intended to be malevolent or racist. However, it is well established by the jurisprudence of human rights tribunals and courts that intent is not a required element for a prohibited ground of discrimination to be proved under the Ontario Human Rights Code. In Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 547 [7 C.H.R.R. D/3102 at D/3105, para. 24766], the Supreme Court of Canada stated:

The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination: if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

30These conclusions of the Supreme Court in the Simpsons-Sears decision, supra, can be applied to the facts in this case. Mr. Curry may not have intended to racially harass Ms. Chiswell with his jokes and comments such as "the little black lady on a broom" or the "which black cashier to go to" comments. In the view of this Board, these two incidents nonetheless establish the existence of a racially poisoned work environment at the Valdi Foods Store managed by Mr. Curry in Amherstburg, Ontario. The existence of such an environment is further evidenced by Mr. Curry's mimicking the accents of his racially diverse clientele and his condonation of employee jokes depicting racist stereotypes. The fact that the "black man with a new car" joke was told by a black employee does not make it more acceptable. It also reinforces the existence of a racially poisoned work environment.

31The incidents in February 1991, discussed above, constituted the most compelling evidence that it was the behaviour of Mr. Curry that both condoned and produced such an environment, specifically his comment that one customer did not know which black cashier to go to and his non-action in the face of a viciously racist statement by the same customer asking which nigger had moved certain items on the shelves. In such a situation, this Board finds that not only was Mr. Curry under a legal duty not to say in jest or otherwise any racially offensive comment to his employees or the customer, he was also under a duty to ensure that such customers did not racially victimize his employees.

32A racially poisoned work environment can often be caused by unconscious discriminatory behaviour. This has been recognized by another Board of Inquiry, see Lasani v. Ministry of Community and Social Services (No. 2), unreported decision [now reported 1993 CanLII 16433 (ON HRT), 21 C.H.R.R. D/415], Ontario Board of Inquiry, November 17, 1993, at p. 16 [D/421, para. 54], where the Board specifically pointed out that

... More often, unconscious discriminatory attitudes and conscious stereotypes will be denied by those so accused. Rather, the usual case of racial discrimination will be accompanied by protestations that nothing could be more untrue than the holder is a racist.

While this case involved a complaint that the failure to promote an employee was on the basis of race and while the complaint was dismissed on the basis of the facts established at the hearing, the concept of unconscious discriminatory behaviour can be regarded as accepted in human rights jurisprudence in Ontario.

33Such unconscious discriminatory attitudes and conscious stereotyping was the common practice of Mr. Curry as evidenced by his jokes, comments, mimicking of accents and failure to support employees in the face of racist comments by the customer detailed above. Unconscious discriminatory attitudes and conscious stereotyping can and do frequently lead to a racially poisoned work environment.

34In cases where such racial harassment has been found by boards of inquiry, the conduct is often based on racial stereotyping and name-calling done not only malevolently but also in jest or in a sense of false camaraderie. However, boards have been careful to ensure that such harassment does not necessarily give a right for a complainant to be insubordinate towards management or a reasonable cause for not performing employment duties adequately.

35In Dhillon v. F.W. Woolworth Company Limited (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.), the complainant was frequently called by other employees racist names such as "Paki." The Board found that racial harassment did take place, but the complainant's dismissal was due to angry outbursts and insubordination toward management. The complainant was awarded the sum of $1,000 as general damages for his pain and suffering and injured feelings due to the discriminatory harassment.

36In Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (Ont. Bd.Inq.), where the complainant was regularly referred to as a "Paki" by other police officers, the respondent claimed it was usually done in a joking or friendly manner. Again, the Board held that such racial name-calling, whether done in jest or not, did constitute a poisoned work environment. However, the complaint was dismissed because the complainant's behaviour towards his fellow officers and his superior officers was unacceptable and justified his dismissal. However, the Board ordered the respondents to take necessary measures to eliminate racist name-calling in the police force.

37In Lee v. T.J. Applebee's Foods Conglomeration (1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.), the Board found there was a racially poisoned work environment even where the racial slurs and practices were not directed specifically at the complainant and included the imitation of accents of Chinese employees by other employees, racially stereotyping humour by staff and a lack of understanding of the harmful effects of such actions by the manager.

38In Ghosh v. Domglas Inc. (No. 2)(1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 at D/223 (Ont. Bd.Inq.), the Board held that conduct which could be regarded as harassment in the workplace (in this case on the basis of physical disability) must be looked at from the perspective of reasonable people similarly handicapped. If such individuals were to find the conduct unwelcome, there would be a violation of the Human Rights Code if reasonable people in the respondent's position would know such conduct would be unwelcome.

39Finally, in Gannon v. Canadian Pacific Ltd. (1993), 93 C.L.L.C. para. 17,016 [1993 CanLII 355 (CHRT), 22 C.H.R.R. D/97] (Can.Trib.), the Tribunal came to the conclusion that outbursts by an employee that led to disciplinary measures against him and his eventual termination were a result of a working environment in which he was subjected to racial slurs. The Tribunal found that the real cause of the disciplinary measures which eventually led to the dismissal was not insubordination, but the racial harassment to which the complainant was continually subjected. Therefore, the Tribunal concluded that to the extent the discipline measures and the dismissal were wrongly assessed, the complainant was singled out and subject[ed] to unfair and differential treatment because of his race.

40Counsel for the Commission, Ms. Fiona Campbell, invited the Board to similarly find that any insubordination on the part of Ms. Chiswell towards Mr. Curry was also attributable to the constant racial harassment that she faced from the respondent.

41The Board carefully considered whether the evidence supported a finding that Ms. Chiswell's "taking care of business" quip to Mr. Curry which led to her dismissal was a reaction to the racially discriminatory work environment she found herself in. However, the conflicting testimony of Jason Mann and that of Ms. Chiswell as regards the "taking care of business" incident did not provide sufficient basis to arrive at such a conclusion.

42This Board finds that the insubordination surrounding the "taking care of business" incident was due completely to Ms. Chiswell's lack of judgment on this occasion. Whether this one act of insubordination would be sufficient to warrant a fair dismissal of an employee is an issue of employment law beyond the scope of authority of this Board. However, there cannot be a violation of the Human Rights Code of Ontario relating to the dismissal, if the termination of employment is a result of insubordination that is not connected, in any way, to a prohibited ground of discrimination or harassment under the Code.

43This is not to deny that the elements of a racially poisoned work environment did exist at the Amherstburg Valdi Foods Store. The mimicking of ethnic accents by Mr. Curry, the "little old lady on a broom" comment, the comment about which black cashier to go to and the racial stereotyping in jokes, comments or actions, whether indulged in by Mr. Curry or by other employees, are certainly elements of a racially poisoned work environment as confirmed by the human rights jurisprudence.

44Moreover, from the perspective of Ms. Chiswell and indeed from the perspective of any reasonable black employee in the same store, such actions were racially harassing and reasonable people in the respondents' position would have known that to be the case.

45On the basis of the above application of the law to the findings of fact, this Board finds the individual respondent, Mr. Curry, to be in violation of s. 5 of the Ontario Human Rights Code (formerly s. 4 of the 1981 Code) in that he created and condoned a racially poisoned work environment while he was a manager of the Valdi Foods Store in Amherstburg, Ontario.

46Section 5 of the Code states:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

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

47"Harassment" is defined in s. 10(1) as follows:

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

48Mr. Curry's comments, jokes and actions violate s. 5(1), even though racial harassment through comments, jokes or actions is in itself prohibited by the Code. It can now be regarded that a non-discriminatory environment is a fundamental implied term or condition of all employment contracts in Ontario. Racial harassment violate[s] this fundamental term and fails to provide equal treatment in the workplace to those who are the victims of such harassment. There is also a duty on the part of all employers to ensure, through, inter alia, appropriate training, education and, if necessary, disciplinary measures, that the workplace is free from racial harassment. Any employer who fails to do so, will be in violation of the Ontario Human Rights Code; see Dhillon v. F.W. Woolworth, supra, at D/763, para. 6724.

49There is little doubt that both under the definition of harassment set out in s. 10(1) of the Code and under human rights jurisprudence that the conduct which Mr. Curry engaged in, was a course of vexatious behaviour based on a prohibited ground of discrimination, namely race, colour and ethnicity, while he was an employee and official of Valdi Foods and that he ought to have known that such behaviour was unwelcome; see Boehm v. National System of Baking Ltd.(1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.); Cuff v. Gypsy Restaurant(1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.); Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.); Ghosh v. Domglas Inc. (No. 2), supra.

50As regards the liability of the corporate respondents, Valdi Foods, the relevant section of the Code is s. 45(1).

51Section 45(1) states:

45(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 44(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, unincorporated 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, unincorporated association or employers' organization.

52This Board has concluded that Mr. Curry, an employee and official of Valdi Foods, did not treat Ms. Chiswell equally and discriminated against her on the grounds of colour in the course of her employment at the Valdi Foods Store in Amherstburg in 1991. Therefore, Valdi Foods is also in breach of s. 5(1) of the Code.

53Section 45(1) excludes the prohibition against harassment in s. 5(2) from the scope of the vicarious liability provisions contained in the section. This exclusion contained in s. 45(1) seems somewhat devoid of logic as an employee cannot be afforded equal treatment in employment, as guaranteed by s. 5(2), if he or she is subject to any of the types of harassment prohibited by s. 5(2) as discussed above. This should still be the case, even if the employer could not be said to have expressly authorized the harassing conduct. Since the Supreme Court of Canada's ruling in Canada (Treasury Board) v. Robichaud (1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326 the "fault" of an employer as it is understood in tort law is not a principle that can exclude vicarious liability on the part of an employer for harassment by an employee under human rights legislation.

54However, even if s. 5(2) is exempted from the vicarious liability provisions of s. 45(1), liability still attaches to Valdi Foods for the harassment indulged in by Mr. Curry against Ms. Chiswell by virtue of the "organic theory" of corporate liability. Under this theory, the acts of a corporate official or employee who is a "directing mind" of a corporate entity may be attributed to the corporation itself; see Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.) and the cases referred to therein; see also Shaw v. Levac, supra, at D/67, para. 234.

55Accordingly, having regard to the human rights jurisprudence on the organic theory of liability, Mr. Curry was a "geographic directing mind" of Valdi Foods. As the manager of the Valdi Foods Store in Amherstburg, he was representing the corporation in this community. He was executing corporate policies in the store in all aspects involved in managing that store. Moreover, if any confirmation was needed that Mr. Curry's actions were done under the implied authority of Valdi Foods, Mr. John Fisher who was called as a witness by respondent's counsel provided it. Mr. Fisher, who was the Director of Operations for Valdi Foods in 1991 and had overall responsibility for all of Valdi Foods Store managers in Ontario, testified before this Board that managers had a fair amount of leeway in managing their staff and had the final "say" on day-to-day operations within each Valdi store. Mr. Fisher also testified on cross-examination that he would only have found Mr. Curry's jokes involving racial stereotyping or mimicking of ethnic accents offensive if there was an intent to injure or insult. As discussed above, human rights jurisprudence does not require such an intent to be proved before a violation of the Code is established. Valdi Foods, both in theory and practice, had clearly made Mr. Curry a directing mind of the corporation as regards the Valdi Foods store which was located in Amherstburg, Ontario.

3. REMEDY

56The complaint that Ms. Chiswell was terminated from her employment at Valdi Foods on the basis of race and colour is dismissed.

57The complaint that Ms. Chiswell suffered racial harassment during the course of her employment by the individual and corporate respondents in violation of s. 5(1) and s. 5(2) is upheld. The complainant is entitled to general damages for pain and suffering and injured feelings due to discrimination in the workplace arising from racially harassing conduct by Mr. Curry.

58Such remedial measures are governed by s. 41(1) of the Code which states:

41(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 9 by a party to the proceeding, the board may, by order,

(a) direct the party to do anything that in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(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 wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

59As discussed above, there is a fundamental implied term in all employment contracts in Ontario that the workplace is free from a discriminatory environment and racial harassment under s. 5 of the Code. Employers have a legal duty to ensure by both proactive and reactive measures that such a racially discriminatory and harassing environment does not exist. Valdi Foods failed in its legal duty under s. 5 of the Code to ensure that one of its managers, Mr. Curry, did not engage in racially discriminatory and harassing conduct. However, it did instigate disciplinary measures against Mr. Curry after the complaint was initiated by demoting him and reducing his salary. This Board concludes that the main cause of the conduct that led to the violation of s. 5 of the Code in this case is the failure by Valdi Foods to properly train its managers as to what constitutes racial discrimination and harassment. Therefore, no further remedial measures will be ordered against Mr. Curry, the individual respondent.

4. ORDER

601. The corporate respondent, Valdi Foods 1987 Inc., shall pay to the complainant, Ms. Paula Chiswell, the sum of $3,000 as general damages for pain and suffering and injured feelings arising out of a racially poisoned work environment at the Valdi Foods Store in Amherstburg, Ontario.

612. The corporate respondent, Valdi Foods 1987 Inc., [shall] institute as part of its training program for all its store managers, education on what constitutes racial discrimination and harassment under the Human Rights Code of Ontario. Further, Valdi Foods 1987 Inc. shall report to the Ontario Human Rights Commission what reasonable measures it has undertaken to meet the intent of this order.

623. In the event that, in the opinion of the Ontario Human Rights Commission, such training for Valdi Foods store managers is not taking place or does not reasonably comply with the intent of this order, the Commission may, upon giving reasonable notice to Valdi Foods 1987 Inc. request that this Board reconvene and hear further representations as the Commission and Valdi Foods 1987 consider necessary and the Board of Inquiry deems appropriate.

634. This Board of Inquiry shall remain seized of jurisdiction for six months from the date of this decision to reconvene the inquiry as contemplated in para. 3 of this order, and to make such further order as it sees fit to implement this decision and, in particular, para. 3 of this order.