Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 4), 1996 CanLII 20059

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 4)

1996-07-25

Ontario Board of Inquiry

Mike Naraine Complainant

and

Ontario Human Rights Commission Commission

v./c.

Ford Motor Company of Canada Ltd., Gord Batstone, George Gojtan, Andy Barr, W.H. Dobson, Bob Daragon and Mike Tighe Respondents

Dates of Complaints: May 24 and October 24, 1985

Date of Decision: July 25, 1996

Before: Ontario Board of Inquiry, Constance Backhouse

Decision No.: 96-023

Appearances by: Mark Hart, Naomi Overend and Kikee Malik, Counsel for the Commission Karen Andrews, Cheryl Gaster Fiona Campbell and Michael McFadden, Counsel and Agent for the Complainant Russell Juriansz, Anne Irwin, Steven Jovanovic and Lisa Kozma, Counsel for the Respondents

RACE, COLOUR AND PLACE OF ORIGIN — discriminatory treatment of employee — employee disciplined — employment terminated — poisoned environment — racial slurs and harassment by co-worker and by supervisor — survey of the law — SYSTEMIC DISCRIMINATION — pattern of conduct discriminatory on the basis of race

EMPLOYMENT — obligation to provide workplace free from discrimination — LIABILITY — employer/corporate liability for employee — mitigation of effects of discrimination — COMMUNICATIONS — graffiti

INTERPRETATION OF STATUTES — repeal and re-enactment — PROCEDURE — delay as abuse of process

Summary: The Board of Inquiry finds that Ford Motor Company discriminated against Mike Naraine by permitting a racially poisoned environment to develop and persist at the Ford Windsor plant and by disciplining and eventually discharging Mr. Naraine without taking into account the racially hostile environment in which he worked.

Mike Naraine, whose full name is Tolashwar Naraine, was born in 1943 in Guyana. He describes his racial and ethnic identity as "East Indian". Mr. Naraine immigrated to Canada in June 1967, and began employment with the Ford Motor Company in 1976. He was discharged from employment in August 1985.

Mr. Naraine's complaints were originally filed in 1985. It has taken eleven years to get them to a hearing before a board of inquiry. The Board finds that this kind of delay renders human rights legislation an entirely ineffective tool for addressing the race discrimination that Canadian residents often encounter. Because of this serious delay, the Board of Inquiry determines that some elements of Mr. Naraine's complaints must be dismissed: namely, those dealing with training and job assignment. There is insufficient reliable evidence available after eleven years to deal with these issues. However, the Board of Inquiry considers that there is ample evidence still available to allow it to hear Mr. Naraine's complaints regarding racial harassment and discharge.

The Board of Inquiry finds that during the years of Mr. Naraine's employment the Ford Motor plant in Windsor was an extremely racially hostile environment. The evidence indicates that Ford employees frequently referred to their African-Canadian co-workers as "nigger", "little nigger", "lazy nigger", "Black bastard" and "boy". Graffiti on the walls of the washroom cubicles contained phrases such as "Paki go home", "Nigger go home", "Flush twice, it's a long way to Pakistan". Mr. Naraine was regularly referred to as "the Paki", "Wacky Paki", or "lazy Paki" by co-workers. In the summer of 1985 "Paki go home" was scrawled across Mr. Naraine's locker with black felt pen.

Numerous Ford employees characterized the racial jokes, slurs and graffiti that were rife at the plant as not meant to give offence, "never used in a hurtful way", "just in fun", "between friends", "comical", and even "terms of endearment".

The Board of Inquiry finds that Mr. Naraine was subjected to slurs and name-calling directed at him personally, to graffiti on his locker, and to a racially hostile atmosphere that was ubiquitous in the plant; Mr. Naraine's efforts to protest were unsuccessful. Further, the Board finds that supervisory personnel participated in the jokes, slurs and name-calling, that they allowed it to occur in their presence without response, and that they took no effective steps to address the racially poisoned environment. The Board of Inquiry finds the employer liable for the harassment.

The Board of Inquiry also finds that between 1982 and 1985 Mr. Naraine was increasingly frustrated and beleaguered and he compiled a disciplinary record of two refusals of work orders, two incidents of verbal insubordination, and one verbal and physical altercation with a co-worker. The Board of Inquiry finds that all of these outbursts were provoked by the discriminatory environment that was taking its toll on Mr. Naraine's ability to function at work.

However, management at Ford disciplined Mr. Naraine as if there were no racially hostile context and the events were stripped of any racial significance. Some of the incidents did not merit discipline at all. The two incidents that did warrant discipline cannot justify Mr. Naraine's discharge. Where racial conflict contributes to an altercation that results in discharge, the discharge is unlawful.

The Board of Inquiry concludes that Ford Motor Company permitted Mr. Naraine to be racially harassed and discharged him unlawfully. The Board of Inquiry retains jurisdiction to consider the matter of remedy once the parties have had an opportunity to consider their positions.

[Ed. Note: See also related cases (No. 1) (1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457 (Ont. Bd.Inq.); (No. 2) (1995), 1995 CanLII 18167 (ON HRT), 24 C.H.R.R. D/466 (Ont. Bd.Inq.); (No. 3) (1995), C.H.R.R. NP/96-49 (Ont. Bd.Inq.) and (sub nom. Ford Motor Co. of Canada v. Ontario (Human Rights Comm.)) (1995), 24 C.H.R.R. D/4 (Ont. Ct. (Gen.Div.)).]

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.): 51, 55, 58, 99

Basi v. Canadian National Railway Co. (No. 1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (Can.Trib.): 23

Canada (Attorney General) v. Uzoaba (1994), 1994 CanLII 1636 (CHRT), 26 C.H.R.R. D/361 (Can.Trib.): 88

Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.): 5, 50, 54

Espinoza v. Coldmatic Refrigeration of Canada Inc. (March 31, 1995), Dec. No. 95-013 (Ont. Bd.Inq.): 22, 99

Ford Motor Co. of Canada. v. Ontario (Human Rights Comm.) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464 (Ont. Ct. (Gen.Div.)): 13

Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 22

Fuller v. Candur Plastics Ltd. (1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 (Ont. Bd.Inq.): 48

Gannon v. Canadian Pacific Ltd. (1993), 1993 CanLII 355 (CHRT), 22 C.H.R.R. D/97 (Can.Trib.): 99

Hinds v. Canada (Employment and Immigration Comm.) (1988), 1988 CanLII 109 (CHRT), 10 C.H.R.R. D/5683 (Can.Trib.): 54, 88

Kennedy v. Mohawk College (1973), (Ont. Bd.Inq., Borins) [unreported]: 23

Lee v. T.J. Applebee's Food Conglomeration (1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.): 51

Mohammad v. Mariposa Stores Ltd. (1990), 1990 CanLII 12519 (BC HRT), 14 C.H.R.R. D/215 (B.C.C.H.R.): 54, 99

Naraine v. Ford Motor Co. of Canada (No. 1)(1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457 (Ont. Bd.Inq.): 13

Naraine v. Ford Motor Co. of Canada (No. 2)(1995), 1995 CanLII 18167 (ON HRT), 24 C.H.R.R. D/466 (Ont. Bd.Inq.): 61

R. v. Lavallee (1990), 1990 CanLII 95 (SCC), 55 C.C.C. (3d) 97 (S.C.C.): 22

R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (Ont. C.A.): 22, 28

Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468: 12

Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 22

Simms v. Ford Motor Co. of Canada (June 4, 1970), (Ont. Bd.Inq., Krever) [unreported]: 48

Singh v. Domglas Ltd. (1980), 1980 CanLII 3929 (ON HRT), 2 C.H.R.R. D/285 (Ont. Bd.Inq.): 48

Skeete v. Jolyn Jewellery Ltd. (1980), 1980 CanLII 3908 (ON HRT), 1 C.H.R.R. D/167 (Ont. Bd.Inq.): 48

Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929: 63

Legislation Cited

Ontario

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

s. 4(1): 1, 4, 53, 56

s. 4(2): 1, 5, 50, 53, 56

s. 7: 1

s. 8: 1

s. 10: 1

s. 31(1): 6

s. 34(1): 7

s. 44: 56

Interpretation Act, R.S.O. 1990, c. I.11, s. 14(2): 6

Labour Relations Act, R.S.O. 1980, c. 228: 63

Ontario Human Rights Code, R.S.O. 1980, c. 340

s. 4(1): 4

s. 15: 6

Authorities Cited

Canada, The Dynamics of Racism in Toronto (Secretary of State, Ottawa, 1978): 26

Essed, P., Everyday Racism: Reports from Women of Two Cultures (Claremont, Calif.: Hunter House, 1990): 25

Hamilton, Jonnette Watson, "Relationships Between Law and Racism in Canada: Two Perspectives" (Fall 1995) 10:2 Canadian Journal of Law and Society 223: 12

Henry, Frances, Carol Tator, Winston Mattis & Tim Rees, The Colour of Democracy: Racism in Canadian Society (Toronto: Harcourt Brace, 1994): 24

Henry, Frances, The Caribbean Diaspora in Toronto: Learning to Live with Racism (Toronto: University of Toronto Press, 1994): 12

Ontario, Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Ontario Ministry of Citizenship, 1992) (Chair: Cornish): 12

Pearlman, Lynne, "Theorizing Lesbian Oppression and the Politics of Outness in the Case of Waterman v. National Life Assurance: A Beginning in Lesbian Human Rights/Equality Jurisprudence" (1994) 7:2 C.J.W.L. 461: 92

Sopinka, John and Sidney N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974): 22

1This complaint involves a claim by Mike Naraine that his right to equal treatment with respect to employment has been infringed because of his race, colour, place of origin and ethnic origin, contrary to ss. 4(1), 4(2), 7, 8 and 10 of the Human Rights Code.

2Mike Naraine, whose full name is "Tolashwar Naraine", was born in 1943 in Guyana (then British Guyana). He describes his racial and ethnic identity as "East Indian". Mr. Naraine immigrated to Canada in June 1967, and commenced employment with the Ford Motor Company in Windsor on April 23, 1976, as a maintenance electrician. He was discharged from employment on August 19, 1985.

LEGISLATIVE AMENDMENTS DURING THE RELEVANT PERIOD

3This hearing considered two complaints, one dated May 24, 1985, and the other dated October 24, 1985, covering allegations of race discrimination and racial harassment which stretched from 1976 to 1985. The provisions of the Ontario Human Rights Code, R.S.O. 1980, c. 340, were in force until June 15, 1982, when An Act to revise and extend Protection of Human Rights in Ontario, S.O. 1981, c. 53 was enacted in its stead. The complaints filed in this case cite the 1981 Code, not the previous legislation. Counsel for the respondents took no issue with this Board's authority to consider the events which occurred after June 15, 1982, but argued that for all of the events which predate June 15, 1982, the proper procedure would have been to file a complaint under the old legislation. He argued that this Board of Inquiry had no jurisdiction to try the portions of the case which originated prior to the enactment of the statute under which the Board was appointed. Jurisdiction could only be obtained by some other Board, appointed under the earlier legislation.

4Counsel for the Commission disputed this point. She conceded that the new Code is not retroactive, and that the substantive provisions of the old Code would govern the events prior to June 1982. However, she pointed out that the old statute prohibits discrimination in employment in virtually identical terms as the new statute does. Section 4(1) of the old Code provides:

4(1) No person shall ... discriminate against any employee with regard to any term or condition of employment, because of race, creed, colour ... nationality, ancestry or place of origin of such person or employee.

Section 4(1) of the new Code provides:

4(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 ...

5Although there is no racial harassment provision specifically articulated in the old Code in such terms as would eventually become s. 4(2) of the new Code, the additional provision is not a significant departure from preceding law. Boards of inquiry had interpreted s. 4(1) to include a poisoned working environment within the phrase "term or condition of employment". (See, for example, Dhillon v. F.W. Woolworth Company Ltd. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.).) The substantive protection against racial discrimination offered to employees is virtually the same under both statutory regimes.

6On the technical question of whether the complaints should have been filed under the old Code, counsel for the Commission argued that there had been no jurisdictional error here. The Interpretation Act, R.S.O. 1990, c. I.11, s. 14(2) deals with the effect of repeal, and provides that:

14(2) all proceedings taken under the Act, regulation or thing so repealed or revoked, shall be taken up and continued under and in conformity with the provisions so substituted, so far as consistently may be.

The procedure for filing complaints is substantially the same under the two statutes. Section 15 under the old Code provides that "any person who has reasonable grounds for believing that any person has contravened a provision of this Act may file with the Commission a complaint in the form prescribed by the Commission". Section 31(1) under the new Code states: "Where a person believes that a right of his under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission." Rights were not extinguished with the enactment of the new statute, and given that the procedure for filing complaints is comparable under both statutes, the decision to cite the new Code in Mr. Naraine's complaints is not fatal. Based on the substantive similarity between the provisions in the two acts and the guiding interpretive principle set out in the Interpretation Act, it is my conclusion that filing these complaints under the new Code does not give rise to any jurisdictional error.

THE PROBLEMS BESETTING THIS CASE

7No one who has been associated with this case would describe it as an ordinary, "run of the mill" dispute. Mr. Naraine's allegations encompass incidents of racial harassment stretching from the commencement of his employment with Ford in 1976 to his discharge in 1985. Although it is somewhat unusual to find allegations spread across a nine-year period, this in itself is not the most extraordinary feature of the case, particularly given the systemic, environmental and on-going nature of the allegations. Fearing the prospect of backlash, Mr. Naraine was understandably reluctant to file a human rights complaint against his employer. He did not initiate the proceeding until the company began to administer disciplinary suspensions against him and he sensed that his termination was around the corner. When he did bring the complaint to the Commission, he tried to draft it comprehensively, and the allegations are spread across the full term of his employment. Counsel for the respondents complained that this meant a significant breach of the "six month" limitation period found in s. 34(1) of the Code. However, complaints which deal with poisoned working environments will typically contain allegations of continuing conduct spanning long periods of time. This inevitably makes the six-month rule, which is discretionary in any event, almost impossible to apply.

8It is what transpired after the complaint was lodged, however, that moved the case from the "somewhat unusual" to the realm of the "truly remarkable". It took the Commission almost eight years, from the fall of 1985 to the winter of 1993, to move the complaint from the investigation stage to a board of inquiry. Much of this eight-year delay was apparently attributable to the Commission's difficulties in processing its cases internally. During this period, the respondents temporarily closed one of the automobile manufacturing plants in question, one of the potential witnesses for the respondents died, several others retired, and relevant documents such as shift assignment ledgers and employee training files were destroyed. The individuals named as respondents testified that the extensive delay had also caused them considerable psychological anxiety. The impact of the delay was even more dramatic upon the complainant. One witness testified that Mr. Naraine's immersion in the complaint process over such a stretch of time had taken a terrible toll. Mr. Naraine was consigned to "living in the past", claimed one co-worker, who reported seeing him carrying around a stack of hundreds of pages of documents relating to the case, pulling sheets out at random, confused and disoriented. He "seemed to have aged about twenty years", observed the witness.

9There were hopes that when the board of inquiry was finally appointed to hear the case in February 1993, the matter would move forward more expeditiously. Yet none of the individuals originally assigned to the file were able to see this case through to the end. The first adjudicator appointed to hear the case died an untimely death. The first counsel representing the respondents was injured in an automobile accident, which delayed the start of the hearing until February 1994. The first counsel for the Commission was seconded to the now defunct Employment Equity Commission. The turnover in the counsel for the complainant is even more marked; three separate lawyers appeared on the file. The changes in counsel have produced some delay, but even that does not fully account for the sluggish progress towards the completion of this case.

10Preliminary matters were argued in February and March 1994, with some of the Board's interim rulings challenged before the Divisional Court. The Court itself was remarkably prompt in comparison with the human rights process. Within days of hearing the argument the judges ruled that the respondents' application was premature. The busy schedules of the lawyers involved meant that additional preliminary matters were not scheduled for argument until January 1995, with the hearing on the merits finally commencing on January 26, 1995, almost two years after the initial appointment of the Board of Inquiry.

11The calling of evidence took another year and several months. Mr. Naraine was on the witness stand for eight full days between January and May. Seven additional Commission witnesses testified through June. Twenty-one respondents' witnesses testified from August 1995 through February 1996. We were never able to sit more than three days at a stretch because of the conflicting schedules of counsel for all three parties and the adjudicator. The end was in sight when the complainant elected to call only one additional witness in reply in February 1996, but the OPSEU strike intervened. The staff at the Federal Court of Canada, on whose premises we were scheduled to continue the hearing, asked us to leave when it appeared that our presence may have contributed to an OPSEU picket out front. When we attempted to move the hearing to a "neutral site" at a hotel, the OPSEU pickets followed. The final witness, a long-time union member, refused to testify in the hearing when the strike remained unresolved. Consequently, his evidence was not taken until the beginning of April. Legal argument stretched into June 1996. I have adjudicated many human rights matters over the past decade and can say without hesitation that this is the most protracted proceeding over which I have ever presided. The adjudication phase of this complaint added more than three years to the almost eight years that can be laid at the foot of the Commission.

12No one's interests are served by this sort of record, which is all too reminiscent of Charles Dickens' Bleak House. The systemic practices which lie at the root of these delays urgently require alteration. It is sobering to reflect upon research compiled by anthropologists such as Frances Henry (an expert witness in this case) which concludes that racialized groups have found provincial human rights legislation almost totally irrelevant in reducing day-to-day discriminatory practices: see Frances Henry The Caribbean Diaspora in Toronto: Learning to Live with Racism (Toronto: University of Toronto Press, 1994) and comments on Henry's findings by Jonnette Watson Hamilton, "Relationships Between Law and Racism in Canada: Two Perspectives" (Fall 1995) 10:2 Canadian Journal of Law and Society 223. Studies such as the Cornish Task Force Report: Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Ontario Ministry of Citizenship, 1992), which diagnose some of the ills of human rights procedures and recommend significant changes, lie gathering dust. It bears repeating that due to the Supreme Court of Canada's ruling in Bhadauria [Seneca College of Applied Arts and Technology v. Bhadauria(1981), 1981 CanLII 29 (SCC), 2 C.H.R.R. D/468], human rights disputes in Ontario presently have nowhere else to go but through this torturous route. Those who find themselves to be involved with violations of the Human Rights Code cannot resort to the civil courts directly. That an administrative process which is theoretically supposed to offer speed, flexibility and efficiency offers so little to its litigants is cause for urgent and significant response.

THE SUBSTANTIVE RESULTS OF THE DELAY

13The losses go far beyond the psychological anxieties associated with long-term stress on the parties. The respondents have steadfastly asserted that the delay attributable to the Commission is such that it is impossible to adjudicate the matter fairly. The Divisional Court set out the appropriate test in its judicial review of this case, Ford Motor Company of Canada Ltd. v. Ontario Human Rights Commission (File 537/94, January 13, 1995 [reported 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464]): "The question is simply whether or not on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing" [reported 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457 at D/461, para. 24]. After hearing all of the evidence, it is my view that the delay has had an impact of the requisite magnitude with respect to some, but not all, of the matters in dispute.

14One of the central allegations in Mr. Naraine's complaint involves access to training. Mr. Naraine testified that he believed he received fewer opportunities for on-the-job training than his white counterparts. His position was corroborated in part by one of the union representatives, Rafael Lopez, who advised that he felt Mr. Naraine had received only "very basic training", appreciably less than many other employees. The training coordinator at Ford responded that Mr. Naraine received "slightly higher than the average" amount of training for electricians on a federally-funded program in the early 1980s. There was also some written documentation suggesting that Ford management had offered Mr. Naraine additional training in 1983. Several of the other employees who testified stated that training was not assigned evenly throughout the workforce, but none specifically correlated this to racial discrimination. Some suggested that white employees were as deprived by the unevenness of job training as employees of colour.

15After reviewing all of the evidence adduced, I have concluded that it is impossible to make a fair assessment of Mr. Naraine's claims regarding job training because comprehensive and accurate records of the Ford training programs do not exist. Ford officials asserted, and no one else disputed, that they never kept full documentation on training in the plant between 1976 and 1985. Some training was mandatory, some voluntary; some courses were instructor-driven, and others self-taught. Training could be generic, or specific to a particular area of the plant. Some of the records kept are now illegible; others are apparently inaccurate. None identifies employees by race. None stipulates which employees may have been assigned to training because they were ill or rehabilitating from injuries. None of the surviving records covers all of the training offered. At the time the complaint was first made, it might have been possible to compile sufficient viva voce evidence to prove or disprove the allegations concerning training. The Commission, despite its drawn-out investigation, was completely dilatory in searching out the relevant data. Due to the passage of time, it has become impossible to correct this oversight. One of the clerks who kept the records on training is now deceased. Only fragmentary documentation remains, and it would be unfair to attempt to make any findings of fact in these circumstances.

16Another central allegation in the complaint involves job assignment. Mr. Naraine testified that he was assigned less challenging and dirtier jobs because of his racial and ethnic background. Specifically, he claimed that he spent a disproportionate amount of his time in the "Cylinder Blocks" and "Central Shop" areas of the plant, where electrical work was boring, repetitive and hampered by the presence of large quantities of cast iron dust. Mr. Naraine stated that management studiously ignored his repeated efforts to obtain assignment to more interesting "trouble-shooting" work on the engine line and in other departments.

17The evidence indicated, however, that the electricians were not entirely in agreement as to which jobs were the most desirable postings. Although several witnesses agreed with Mr. Naraine, others testified that some electricians actually preferred "Cylinder Blocks" or "Central Shop," and that some areas of the plant to which Mr. Naraine was not assigned were equally dirty or dirtier due to oil and grease. Even some of the Commission's witnesses conceded that complaints about work assignment were widespread throughout the plant, and that there was no indication that Mr. Naraine was singled out detrimentally. Due to the passage of time, the parties were unable to introduce records which would systematically illustrate the deployment of workers across the varied job assignments in the plant. The fragmentary records of shift schedules which do remain are insufficient to draw any conclusions concerning job assignment. This is another component of the complaint upon which it would be unfair to make any findings against the respondents at this late date.

18The respondents have demonstrated evidence of sufficient prejudice to warrant dismissing two of the specific claims made by the complainant and the Commission: allegations of discrimination concerning job training and job assignment. Consequently, these portions of Mr. Naraine's complaint are dismissed.

THE REMAINING ALLEGATIONS

19The remaining allegations can be divided into two categories: (1) racial taunts and racial graffiti; and (2) Mr. Naraine's disciplinary treatment and discharge. The passage of time has been less destructive here. A series of witnesses testified about these issues with sufficient clarity and detail that I have determined that it would not be prejudicial or unfair to the parties to make certain factual findings on these matters. Several witnesses testified that their memories had faded to the point that they were unable to answer particular questions, and answered others on the basis of written documentation made at an earlier time. But on a number of critical matters, there was sufficient recall amongst witnesses for the Commission and the respondents to permit a fair evaluation and the making of specified findings of fact. In fact, as counsel for the Commission noted, something about the environment at Ford seems to have acted as a "pickling agent" or "preservative" upon the memories of the individuals who work there. Most of the witnesses exhibited remarkable clarity of memory as they testified about minute details of their lives in the plant.

20If a generalization could be made, each side seemed to produce the strongest evidence out of the mouths of the opposite party's witnesses. The evidence adduced was often starkly contradictory, with many witnesses giving multiple versions of the same event (although this is not unusual in contentious legal proceedings, whether held immediately after the dispute arises or much later). Given the inconsistency in testimony, it has been necessary to make many assessments of credibility. Counsel for all parties were diligent in pointing out the inconsistencies in the testimony, often asserting that inconsistency was fatal to credibility. While adjudicators must pay careful attention to discrepancies within a witness's testimony, I do not think that this is necessarily determinative in every case. Other factors, such as demeanour, may occasionally be more compelling than absolutely consistent description and recall. Some witnesses may vary the words and phrases they choose to describe their experiences and yet be fundamentally accurate about the crucial aspects of the events in question. Other witnesses may tell exactly the same story in exactly the same terminology over and over again, and yet be constructing complete fabrications.

21I regret that there is little written that would provide adjudicators with some guidance in the difficult task of weighing competing testimony. Despite the voluminous literature on how to interpret law, there is virtually no discussion in the jurisprudential literature of the process by which judges and lawyers interpret facts. The selection of descriptions of events in the social world, the separation of truth-telling from exaggeration or fabrication, and the construction of the interrelationship of discrete events is fraught with difficulty. Witnesses often perceive events differently, articulate them in varying ways, and construct diverse meanings from the same statements and behaviours. Adjudicators need to evaluate the evidentiary inconsistencies recognizing the difficulties inherent in the process and attempting to asses and interpret the whole of the testimony against the wider cultural context.

22In so doing, I have also relied in part upon the expert witnesses who testified about the nature of racism and its patterns and manifestations in the workplace. Although counsel for the respondents argued that the expert evidence was inadmissible and irrelevant, I have ruled otherwise. Tribunals and courts have been increasingly ready to accept expert evidence on "social facts" to assist in the clarification of issues in some adjudication processes: Lavalee v. The Queen (1990), 55 C.C.C. (3d) (S.C.C.); R. v. Parks(1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (Ont. C.A.); Fu v. Ontario (Government Protection Service)(1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.); Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), unreported, Ont. Bd.Inq. Dec. No. 95-013; Sopinka and Lederman, The Law of Evidence in Civil Cases (Butterworths) at 308–10. The decision in Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.) was particularly relevant on this point, noting at D/60 [para. 179] that "[t]he history of human rights litigation has made plain that the general background even of the fair minded may carry with it the preconceptions occasioned by popular belief".

23Many of the earlier Canadian human rights cases examining racial harassment in the employment setting appear to have started from the premise that racism is an extraordinary and unusual event. Judged against this backdrop, complaints of racial discrimination were viewed as anomalous, with human rights adjudicators regularly dismissing such allegations for failure to meet the requisite burden of proof. Indeed, counsel for the Commission suggested that the level of proof adjudicators have demanded in racial complaints has typically been "unrealistically high", significantly greater than in other discrimination cases. (See, for one example, Kennedy v. Mohawk College (1973, unreported decision, Ont. Bd.Inq.), as critiqued in Basi v. Canadian National Railway Co. (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 at D/5038 (Can.Trib.).)

24Dr. Frances Henry, Professor Emeritus of the Department of Anthropology at York University, an expert witness for the Commission, expanded upon the proof problems in one of her publications (Frances Henry, Carol Tator, Winston Mattis & Tim Rees, The Colour of Democracy: Racism in Canadian Society (Toronto: Harcourt Brace, 1994) at 291):

Since most [members of society] are considered tolerant, there is a need to prove that intolerance or racism was, in fact, intended ... Often this results in a situation in which the innocence of the offender, already reinforced by the ideology of fairness, must be protected. Thus, an individual's reputation must not be tarnished by allegations of racism, nor must his or her fairness and objectivity be questioned ... The result of the presumption of innocence is a search for alternative explanations for the act of racism. Any other "reasonable" explanation negates a claim of racism, not simply for that case, but for all cases like it, regardless of the parties involved. The elusive nature of racism means that an alternative explanation can almost always be found.

25Dr. Henry stated that racism is an ever changing and elusive phenomenon that encompasses beliefs, attitudes, values and behaviour. Due to the elusive nature of racism, she explained, "it is sometimes only the victim who is aware of the fact that racism has taken place". Quoting Philomena Essed, Dr. Henry noted (Henry et al, The Colour of Democracy, at p. 47 quoting from P. Essed, Everyday Racism: Reports from Women of Two Cultures (Claremont, Calif.: Hunter House, 1990)):

A variety of studies have shown that those who are discriminated against appear to have more insight into discrimination mechanisms than those who discriminate ... Blacks have a certain amount of expertise about racism through extensive experience with Whites. The latter, conversely, are often hardly aware of the racism in their own attitudes and behaviour.

26Some of the earliest research on the prevalence of racist attitudes and behaviours in Canadian society began in the mid 1970s, a period of increased immigration from racialized communities. Initiated after the rash of subway assaults on people of South Asian origin, one Toronto-based study found that "roughly half of the population expressed some degree of racism": see The Dynamics of Racism in Toronto (Secretary of State, Ottawa, 1978). Sixteen percent of the randomly selected respondents were characterized as "extremely racist". According to Dr. Henry: "People expressed very, very negative views and negative attitudes towards the Indo-Pakistani people and their supposed way of life."

27The derogatory term "Paki" became "ubiquitous" by the mid 1970s, appearing "on posts, on bus stops, on subways, on store fronts, on windows, on walls". By the late 1970s, the Pitman Task Force found that there were numerous instances of racial violence in parks and recreation areas, in public housing complexes, in school playgrounds, on the streets, and in shopping plazas in Metropolitan Toronto. The Pitman report described the vicious and continuous harassment of South Asian business people, the verbal and physical harassment of children, and repeated attacks on the homes of racial-minority members and the houses of worship belonging to the South Asian community. Data released by polling companies subsequently confirmed remarkably consistent findings from the 1970s to the mid 1990s; anywhere from 12 to 20 percent of the respondents demonstrate attitudinal prejudice. In conclusion, Dr. Henry stated: "Racism is absolutely endemic. It is built into the very cultural fabric of Ontario's society."

28This conclusion is similar to the one recently reached in R. v. Parks, supra, where Mr. Justice Doherty noted:

Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. These elements combine to infect our society as a whole with the evil of racism.

29Patrick Clancy, the Vice-President of the Labour Council of Metropolitan Toronto, and a long-time C.A.W. union official, gave expert evidence regarding patterns of race discrimination within the Ontario automobile industry between 1976 and 1989. Clancy noted that the skilled trades workforce in the auto plants was comprised predominantly of individuals of English, German and Scottish background. The Ford witnesses who testified on this point advised that there was "just a handful" of visible minority workers at Ford during Mr. Naraine's employment, numbers so small that you could "count them on your fingers". In Mr. Clancy's opinion, immigrants of colour who attempted to penetrate the skilled trades ran "into resistance". Individuals unable to count on cooperation from their peers in the plant would find themselves "a square peg in a round hole". While Mr. Clancy spoke of the extensive efforts of the trade union to redress equity problems in the 1980s, he conceded that "brown-skinned people" who worked in auto plants were "constantly under the threat of being harassed every day they go to work".

30Counsel for the respondents took issue with the methodology of some of the race studies cited and the applicability of the results to the respondents' automobile plant in Windsor. However, Dr. Henry's defence of her research methodology was forceful and convincing. I accept Dr. Henry's conclusion that the results of the studies are valid indicators of the probable levels of racism in Windsor. Respondents' counsel also raised concerns about the relevance of Mr. Clancy's expert testimony, since Mr. Clancy had never worked at Ford's Windsor operation. However, this did not detract from the depth of Mr. Clancy's experience with other automobile plants at Ford, General Motors and Chrysler, and his ability to describe the working environment across the industry generally.

31Respondents' counsel made the point that although racism studies may indicate problems imbedded across society at large, they cannot predict with accuracy whether a specific individual manifests racist beliefs or behaviours. This is absolutely correct, and adjudicators must be very careful to examine the particular allegations and evidence tendered in the specific case before them. The expert evidence is not to be used to create irrefutable presumptions about the events which occur in a particular case. Its value is as a framework against which to assess the testimony, a cultural context within which to make difficult determinations about the proper interpretation of contradictory testimony, credibility and the meaning of contested events.

RACIST GRAFFITI AND RACIAL SLURS

32Mr. Naraine testified that during his time at Ford, he experienced continuous racial harassment in the form of racial graffiti, slurs, comments and "jokes". Giving this testimony was extremely difficult for Mr. Naraine, who was forced to stop frequently, his voice breaking with emotion. He was reduced to tears as he described how angry and ashamed he had been. It is also fair to say that Mr. Naraine was not a witness who found it easy to communicate his thoughts verbally. Counsel for the respondents seized upon this, arguing that Mr. Naraine was not a credible witness in part because of the incoherence of his replies and wavering responses to various questions.

33After listening to all of the witnesses, it is my view that Mr. Naraine was not the only Ford employee who had some difficulty giving evidence in a litigation format. Many of the employees and supervisors who took the stand had serious difficulties trying to comprehend the questions and making themselves clear in response. Unfamiliarity with adjudicatory procedures, lack of experience in complex verbal interchanges, and difficulties of expression are not traits of credibility and should not be interpreted as such. As legally trained individuals, all of us at the hearing repeatedly found ourselves woefully at sea trying to comprehend and describe the sophisticated electrical equipment that was second nature to people in the plant. Transposing one set of skills and talents to a totally distinct environment causes communication gaps in both directions. None of this is indicative or dispositive of truth-telling.

34Mr. Naraine testified that the racially harassing environment at Ford made him feel "belittled", "humbled", "ashamed" and "sad". He described graffiti splayed [sic] on the inside of the cubicle walls in the washrooms, which contained phrases such as "Paki go home", "Nigger go home", "Flush twice, it's a long way to Pakistan". Other witnesses confirmed that graffiti appeared on the mirrors by the urinals or inside the washroom stalls with additional slogans such as "X's wife fucks niggers", "Go home Wop", "So and so is Top Wop", "Newfie go home". Some described racial or ethnic graffiti aimed at "Polacks" and "Squareheads". An African-Canadian co-worker testified that he had been the subject of a cartoon drawing of "a Blackman with over-sized sexual organs". One witness made the general observation that the washroom stalls were "covered with racist, sexist and ethnic graffiti". There was some evidence that Ford management attempted to clean off or paint over the graffiti from time to time, but these efforts were woefully inadequate. The graffiti appeared as soon as it was erased and the company appears to have considered the problem incapable of resolution.

35The evidence indicates that Ford employees sometimes referred to their African-Canadian co-workers as "nigger", "little nigger", "lazy nigger", "Black bastard" and "boy". Other employees were variously referred to as "Paki", "Frog", "Polack", "Wop", "Spic", "wet-back", "square-head", "towel-head" and "pull-start" (the latter three terms ostensibly in reference to individuals who wore turbans). When workers were given a job assignment they didn't like, a common retort was "What am I, your fucking nigger?" Work considered demeaning was often labelled "nigger work"; repairs improperly completed were described as "nigger rigging". A number of witnesses testified that such language was so much a part of the working environment that employees said these things in the presence of supervisors. One supervisor testified that "you never took note" of such terms, "people joked about it and you went about your business". The racial language would "just basically go over my head", he noted, "unless there was some indication that there was some malicious intent and somebody, you know, didn't like it or was being hurt by it". Occasionally some supervisors verbally admonished those involved, but overwhelmingly this sort of terminology was tolerated without adverse comment.

36Witnesses related multiple examples of racist and ethnic jokes which appear to have been numbingly popular with employees and supervisors alike. Several of the respondents' witnesses had some difficulty keeping a straight face when testifying about the graffiti and jokes, apparently because they were struck by the intended humour. Yet the jokes commonly had a cutting edge to the punch line, intimating that non-white individuals were lazy or stupid or inhuman, that they were taking over positions legitimately belonging to whites, or that they should be barred from immigration. Under cross-examination, one white electrician actually defended the joke-telling, insisting that the jokes were told "mostly in jest", that there was "nothing racial intended". This witness lamented the recent decline in such jokes, which he used to hear every day and now might not hear for weeks on end, ultimately attributing this to the "pissy mood" that had afflicted the world lately. Many characterized the racialized discourse which was so prevalent at the plant as simple "shop talk". As one witness testified, it was "part of being in a factory".

37Numerous witnesses testified that Mr. Naraine was commonly described as "the Paki", "Wacky Paki", or "lazy Paki" by co-workers. While some of his co-workers knew that Mr. Naraine was from Guyana, many thought that the label "Paki" (which some testified was "just short form for Pakistani") covered all individuals whose ancestors originally came from South Asia. In fact, the term is far less of a geographical designation than a derogatory label suggesting that the targeted individual is undesirable or undeserving. The evidence indicates that some workers called Mr. Naraine these names in front of supervisors, and that foremen occasionally referred to Mr. Naraine similarly. Although the "Paki" terminology appears to have been ubiquitous throughout the plant. one Ford supervisor admitted that when workers would talk about "the Paki" or "the Wacky Paki", he knew they were talking specifically about Mike Naraine. Most people used these names behind Mr. Naraine's back, but at least one white electrician, Frank Marsh, did so to his face, frequently addressing him with the greeting, "Hi, Paki", or "How's the Paki doing?"

38Mr. Naraine explained that he tried to avoid Frank Marsh, but Marsh always had some sort of joke or the same "Hi, Paki" greeting. Asked whether he confronted Marsh over the racial taunting, Mr. Naraine replied: "At the beginning, yes". Mr. Naraine testified that the discussion escalated into a loud and angry exchange, sometime in 1978 or 1979. The altercation was observed by another electrician who testified he overheard Frank Marsh telling Mr. Naraine: "I'll call you a Paki, I'll call you a nigger, I'll call you anything I want and you won't do anything about it." The dispute "could have led to physical confrontation", according to Mr. Naraine. Instead, Mr. Naraine testified, he backed off.

39Mr. Naraine stated that he made efforts to resolve the situation by asking a fellow electrician to intervene. The efforts came to naught. Mr. Naraine also stated that he complained about Mr. Marsh's use of the term "Paki" to Gord Batstone, the general foreman. Although Mr. Batstone could not remember this complaint specifically, he did admit that he knew that Frank Marsh commonly referred to Mr. Naraine as "Paki" and "Wacky Paki". "I did not respond to it. At that time I thought it was just kind of shop talk and there had been no complaints to me about it. I thought they were friends", Batstone explained. This was the sort of reasoning which was proffered by numerous Ford witnesses, who insisted that they thought the jokes, slurs and graffiti did not upset anyone, that such talk was not meant to give offence, was "never used in a hurtful way", was "just in fun", "between friends", "comical", that the words were even "terms of endearment".

40Indeed, much was made of the fact that Mr. Naraine and Mr. Marsh had apparently struck up a friendship of sorts at work. Counsel for Ford was at pains to point out that the two individuals traded shifts with each other, and that they shared transportation back and forth from the plant for several months, although all conceded that the two men did not actually socialize outside of work. Mr. Marsh explained his references to Mr. Naraine as "Paki" and "Wacky Paki" as "friendly nicknames", and testified he was not aware that the terms offended Mr. Naraine. Mr. Naraine's initial efforts to explain his discomfort seem to have gone completely unheard.

41Mr. Naraine testified that the name-calling continued to rankle him, and he testified about another potentially explosive incident which occurred in the late 1970s, when he was talking to Gord Dufour, a trades foreman. Frank Marsh was driving a tow truck nearby. Mr. Naraine described the incident as follows:

Frank Marsh saw myself and Gord Dufour talking. Frank Marsh backed the truck up to hit me. He thought it was funny.

Q. How could you tell that he thought it was funny?

A. Because he said to get out of the way. I told him, "I'm not going to get out of the way." So he continued backing up. I had to move out of the way ... He said: "The Paki got to get out of the way."

Mr. Naraine testified he was so angry that the incident almost escalated into a physical confrontation, but again, he backed off.

Q. Did you say anything to Mr. Marsh about the fact that it almost got to a physical confrontation?

A. I just told him not to do it anymore. I don't like this, what's happening. But for him, it was a joke. He must do what he wants to do, say what he wants to say, regardless.

Q. Do you recall Mr. Marsh saying ... what would happen if there had been a fight?

A. Yes ... first he'll kick the shit out of me. Both of us will be fired. And then he will be rehired.

Q. And what about you?

A. I'll be out there, waiting.

Although Mr. Marsh denied that the incident occurred as described, in my opinion Mr. Naraine's testimony is the more credible. According to Mr. Naraine, no disciplinary measures were taken against Frank Marsh over this incident. Instead, it was construed as if it were Naraine's fault, that he wanted to fight Frank Marsh. Based on a conversation he had with Gord Dufour about the altercation, Mr. Naraine became fearful that he might be formally reprimanded for his role in the exchange. However, nothing further ensued at that time.

42Not all of the witnesses were inclined to view the word "Paki" as harmless banter. Several Ford employees testified that they believed such comments had an edge to them, that they were derogatory and hurtful. Dr. Henry's expert evidence firmly supported their interpretations. She noted that from the 1970s to the mid 1980s:

... the term "Paki" was applied to anybody who came or whose ancestors came from Southern Asia ... It was applied to people of African origin, but of Indian heritage. It was applied to people of Caribbean origin. The actual country of origin made no difference. In my opinion that term, when it was very, very much in use, was understood by the large majority of the users as a pejorative term.

43The majority of the respondents' witnesses seemed determined to resist recognizing the insult of racist terminology. Frequently they attempted to draw parallels to terminology or jokes targeting white ethnic groups. For instance, Frank Marsh, an immigrant from the United Kingdom, made much of the fact that he loved to be identified as a "Limey". He drove a car with a personalized licence plate "Limey", and the used car dealership he operated on a part-time basis was called "Limey Auto Sales". Robert McCaig, a supervisor at Ford, testified that calling people "Paki" was the same as "Scottish people being called ”˜Scotties'". "Being Scottish I was probably as much a butt of jokes as anyone else", McCaig offered. Andy Barr, another white supervisor at Ford, insisting he was "not a racist", retorted "I couldn't care less if you're green, black, orange or red; it doesn't make any difference to me." Asked how he responded to racial jokes, Barr replied: "the same way I'd react to a joke about a Scotsman or a guy who's Polish or Irish, the same way. No difference, all the same." In the final analysis, he explained: "It depends on how funny they are."

44The attempt to draw analogies between Scottish and English name-calling and jokes (not to mention the far-fetched equation with "green" or "orange" people) is problematic, since it implies that people of all ethnicities and colours are equally situated. The labels "Limey" and "Scottie" are not used in any such fictional balanced environment, but in a society where Anglo-Saxon heritage has typically been a hallmark of economic, social and political dominance. The harm which arises from name-calling and racial jokes occurs because the group class which is targeted is one which is seriously disadvantaged compared to the dominant group. The jokes and epithets combine insidiously with patterns of economic and social discrimination to isolate and subordinate the individuals identified. To equate "Paki" with "Limey" is to obliterate the hierarchical distinctions which feed upon ethnic and racial distinctions. The Ford witnesses who insisted upon the false parallelism did little to convince me that racial harassment did not exist in the plant. In fact, their evidence is indicative of striking insensitivity to the racial and ethnic intolerance which pervaded the working environment.

45In the summer of 1985, graffiti was scrawled across Mr. Naraine's locker. The phrase "Paki go home" was inscribed with black felt pen in letters about two inches high covering abut a quarter of the locker door. There was also graffiti written on the locker of Naresh Manku, an East Indian machine repair person. Scrawled across Manku's locker was the question: "What's the difference between a Paki and dogshit?" Mr. Naraine testified that he was distraught over the defacement of the lockers, that he was "scared that it would escalate ... to physical confrontation in the plant". The evidence is unclear whether Mr. Naraine reported the matter to a supervisor, but the locker graffiti was common knowledge among the other employees. A white electrician testified that the defacement was "a well-known fact", that "it was the talk of the electrical gang". Commenting on the workplace reactions to the incident, the same witness stated that the electricians "laughed" while "Mike was upset, very upset". Another white electrician, cross-examined as to whether he thought the defacement of Mr. Naraine's locker was offensive, replied: "Depends on who's looking on it, not to me. If he was Paki, possibly. He's not Paki." This off-hand retort was particularly startling in view of the overwhelming testimony that Mr. Naraine was continually referred to as "the Paki". The evidence was unclear how long the graffiti remained on the lockers. Mr. Naraine eventually took a rag and some cleaner and scrubbed it off his locker. Management apparently cleaned off Naresh Manku's locker sometime later.

46The respondents attempted to ameliorate the implications of the racial graffiti and slurs by countering with testimony that implicated Mr. Naraine in some of the same insidious practices. One of Ford's few black supervisors testified that Mr. Naraine once used the epithet "nigger" during a verbal altercation with him. In another instance, Mr. Naraine was called "Wacky Paki" while standing beside another South Asian employee who worked in the plant. Pointing to the other South Asian man beside him, Mr. Naraine allegedly said jokingly, "I'm not a Wacky Paki, he's a Wacky Paki." When the other South Asian man took offence at the comment, the two apparently talked it over and resolved the issue between them. Mr. Naraine did not testify regarding these allegations, since he did not take the stand as a witness in reply. Consequently I have accepted in whole the testimony of the witnesses who cited Mr. Naraine's occasional participation in the prevailing racialized plant culture.

47These incidents are no less deplorable than the racial name-calling and graffiti directed at Mr. Naraine himself. Mr. Naraine may have been trying to deflect racist attacks from himself by participating in the prevailing culture on occasion, but this does not diminish the harmful impact of his adoption of racist norms. Mr. Naraine's participation in name-calling does not, however, serve as a bar to his claim under the Code. Within a racist society, it is not surprising that individuals who are discriminated against racially may themselves discriminate against others on the basis of race. While this may give rise to the potential for additional complaints under the Code, it should not insulate corporations and individuals who discriminate in the first instance.

48The evidence as a whole indicates that the landscape at Ford was saturated with racist graffiti and slurs. Some of the first human rights cases to examine racial slurs intimated that such activity may not constitute unlawful conduct per se. Simms v. Ford Motor Company of Canada Limited (June 4, 1970, unreported, Ont. Bd.Inq.) indicated that a single racially-derogatory epithet was not, by itself, prohibited under the Code. Skeete v. Jolyn Jewellery Ltd. (1980), 1980 CanLII 3908 (ON HRT), 1 C.H.R.R. D/167 (Ont. Bd.Inq.) stated that "one racial remark in [the] much broader and more pervasive context of stressful [personal] relations [unrelated to race] does not appear material". Singh v. Domglas Ltd.(1980), 1980 CanLII 3929 (ON HRT), 2 C.H.R.R. D/285 (Ont. Bd.Inq.) characterized verbal racial abuse from co-workers as "shop talk within the plant," and noted that an employer could not be held responsible for this unless it had become "a condition of the employment situation" and something "more than personal interplay between the employees". Fuller v. Candur Plastics Ltd.(1981), 1981 CanLII 4318 (ON HRT), 2 C.H.R.R. D/419 (Ont. Bd.Inq.) concluded that "an isolated offensive outburst by another employee" did not put an employer in violation "even where the other employee is in a supervisory position". While all of these decisions also expressed serious concern over verbal racial abuse, it is fair to say that the early boards were very cautious about extending remedial authority under the Code to verbal harassment.

49Our case can be distinguished from these earlier decisions, since the racial slurs and graffiti at Ford were so widespread and continuous as to become a "term or condition of employment", something that even these earlier boards recognized could constitute unlawful conduct. However, counsel for the Commission requested that this Board do more than distinguish the current case. She argued that I should expressly decline to follow these early decisions on the basis that the adjudicators did not appreciate fully the impact that words can have in fomenting and solidifying racial discrimination in the workplace. I agree with this. It is intellectually dishonest to continue distinguishing this earlier line of authority based on factual differences. In fact, name-calling and graffiti should be recognized for their inherent, detrimental impact on racial equality in the labour force.

50This was explicitly acknowledged in Dhillon v. F.W. Woolworth Co., supra, at D/760 [para. 6691]:

Verbal racial harassment, through name-calling, in itself, is in my view prohibited conduct under the Code. The atmosphere of the workplace is a "term or condition of employment" just as much as more visible terms of conditions, such as hours of work or rate of pay. The words "term or condition of employment" are broad enough to include the emotional and psychological circumstances in the workplace. There is a duty on the employer to take reasonable steps to eradicate this form of discrimination, and if the employer does not, he is liable under the Code.

The right to be free from discrimination in employment is thus held to encompass the right to be free from racial harassment. This approach was further solidified with the enactment of An Act to Revise and Extend Protection of Human Rights in Ontario, S.O. 1981, c. 53, which added s. 4(2) to the Code on June 15, 1982:

4(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 ...

51Later cases took an increasingly serious approach to verbal harassment. In Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 at D/1772–D/1773 (Ont. Bd.Inq.), the Board stated that racial name-calling is "an invidious and insidious practice", that "name-calling is necessarily injurious unless there exists a tacit agreement between the parties", and that it is doubtful that "racial name-calling in the workplace can ever be mere ”˜personal interplay' or ”˜shop talk'". Lee v. T.J. Applebee's Food Conglomeration(1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.) held at D/4783 that the environment created by racial slurs could constitute a violation of the Code even where the remarks were not specifically directed to the complainant.

52Counsel for the respondents argued that the Commission had failed to prove that all of the racial slurs were actually overheard by Mr. Naraine or that he specifically observed all the graffiti. But this is not determinative. The evidence indicates that Mr. Naraine was witness to a sufficient number of these slurs to poison his working environment. Other employees and supervisors also heard the slurs and witnessed the graffiti, and they could not help but be detrimentally affected by the racially foul atmosphere, in ways that directly impacted upon their perceptions and interactions with Mr. Naraine.

53The singling out of certain groups of employees based on their racial or ethnic background constitutes a violation of s. 4(1) of the Code. The complainant has established that he was subjected to an atmosphere of racial harassment and derogation, repeatedly perpetrated by a large number of individuals. The sheer number of incidents and the many individuals who participated lent the racial slurs and graffiti such an intensity that this came to constitute "a condition of employment". The poisoned working environment that Mr. Naraine experienced between 1976 and 1982 constituted a violation of s. 4(1) of the Code, which provides that: "No person shall ... discriminate against any employee with regard to any term or condition of employment, because of race, creed, colour ... nationality, ancestry or place of origin of such person or employee". After June 15, 1982, when the amended Code came into effect, this poisoned environment constituted a violation of the slightly revised provision in s. 4(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 ..." The racially-derogatory language and graffiti that occurred after the enactment in 1982 of s. 4(2) prohibiting racial harassment in the workplace, also constitute a violation of the harassment provision.

54The question of employer liability for these breaches was fully canvassed during the hearing. Dhillon, supra, held at D/763 [para. 6724] that "[t]here is a duty on an employer to take reasonable steps to eradicate this form of discrimination, and if the employer does not, he is liable under the Code". Boards in other jurisdictions have been even more specific about this responsibility. In Hinds v. Canada Employment and Immigration Commission (1988), 1988 CanLII 109 (CHRT), 10 C.H.R.R. D/5683 at D/5693 [para. 41611], a Canadian Human Rights Tribunal stated that although the federal statute does not impose an obligation on an employer to maintain "a pristine working environment", there is a duty "to take prompt and effectual action when it knows or should know of co-employees' conduct in the workplace amounting to racial harassment". In Mohammad v. Mariposa Stores Ltd.(1990), 1990 CanLII 12519 (BC HRT), 14 C.H.R.R. D/215 at D/218 [para. 30], a British Columbia Council of Human Rights stressed the employer's responsibility to maintain "a healthy working environment", adding: "While an employer may not be able to control the remarks of a customer, or for that matter a co-worker or supervisor in the workplace, an employer does have control over how it responds to disciplinary conduct in that workplace, regardless of how the conduct occurred."

55The evidence before me establishes that supervisory personnel were among the individuals engaged in name-calling and racially-derogatory comments at Ford. Mr. Naraine's co-workers also used racialized language openly in front of supervisors without disciplinary consequences. The supervisors were aware of the racial graffiti in the washrooms, and the defacement of Mr. Naraine's locker was something which was a matter of common knowledge in the plant. This more than satisfies the test laid out in Ahluwalia, supra, at D/1757, that management knows or should have known of the existence of the poisoned environment. Counsel for the respondents argued that Mr. Naraine had failed to complain to either management or the union about the racial slurs or graffiti, and that this ought to be fatal to his claim. My view of the evidence is that Mr. Naraine did make some effort to complain to management and to the offending individuals about the slurs (if not the graffiti), but that these complaints came to naught. When Mr. Naraine complained, he was labelled a "whiner", someone with a "chip on his shoulder", who was using race discrimination as a "crutch" to try to achieve preferential treatment on the job. Mr. Naraine was not persistent in his complaints because, as he testified, he came to believe that the racial abuse was "part of the environment" and that he had to "adjust" himself to it. As for the union, there was no reason to believe that complaining about fellow union members would have elicited any better response than from management. Patrick Clancy's testimony regarding the reluctance of many union officials to recognize the pervasiveness of racism bolsters this conclusion. The fact that one of the C.A.W. officials testified on behalf of Ford against Mr. Naraine at this hearing also indicates that complaining to the union would not have been fruitful. Furthermore, there is nothing in the Code which stipulates that the aggrieved employee must always complain within the workplace prior to seeking protection under the Code. There may be circumstances in which it is unsafe or unwise to register a complaint with the employer directly. In such a case, an individual's rights under the Code ought not to be impaired by failure to lodge an internal complaint.

56There is sufficient evidence in this case of direct supervisory involvement in, and knowledge of, the poisoned work environment to assess liability against the corporate respondent for violation of s. 4(1) (now s. 5(1)). The Code's deemed liability provision in s. 44 (now s. 45) transforms the act of an employee or agent into the act of the corporation itself. Within the corporate liability provision, however, there is an exception for acts of racial harassment under s. 4(2) (now s. 5(2)). An employer's liability for the racial harassment of employees is somewhat more complex. The test is set out in [Fu], supra, at D/2800–D/2801 [para. 22922]:

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) ... 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.

The Ahluwalia test for employer responsibility requires evidence that management failed to take adequate measures to correct the situation.

57Managerial witnesses testified that Ford never condoned racialized language or graffiti and that the company took steps to remove graffiti from the washrooms as best it could. Recognizing the difficulties inherent in controlling large, industrial workplaces, I was not convinced that the company made sufficient and continuing efforts to signal its disapproval of the racially-derogatory language or graffiti. Given the widespread pervasiveness of derogatory racial terminology, the company should have taken meaningful steps to investigate all sources of the problem. Ford should not have sat back and waited for individual, isolated complaints. The company should have undertaken systemic efforts to develop and advocate company policies against racist language, to root out the offenders and to implement serious and effective measures of deterrence. Its virtual indifference to the racial slurs and graffiti renders the corporate respondent liable for the violations of s. 4(2).

58An alternate basis for attributing responsibility to the corporate respondent for the acts of its managers is the "organic theory of corporate responsibility", also laid out in Ahluwalia, supra. There the Board noted that where an employee who is in contravention of the Code is part of the "directing mind" of the corporation, the act of the employee becomes the act of the corporate entity itself. To qualify as a "directing mind", an individual must merely be exercising some function of management. Where management knows or should have known of the racial harassment and does not take steps to eliminate or minimize it, as in this case, the respondent corporation also becomes liable under the "organic theory of corporate responsibility".

DISCIPLINE AND DISCHARGE

59The remaining allegations stipulate that a series of suspensions, culminating in Mr. Naraine's discharge from Ford, was tainted by racial discrimination contrary to the provisions of the Code. The respondents denied these allegations, and claimed that there were a number of reasons to terminate Mr. Naraine's employment, none of which was influenced by racial considerations.

60Arguments were also addressed regarding the effect of the prior arbitration award in this matter. In April 1986, Arbitrator E.E. Palmer Q.C. considered several grievances under the collective agreement between Ford and the C.A.W., which related to Mr. Naraine's discipline and discharge from Ford. After a one-day hearing, Professor Palmer dismissed two of the three grievances and upheld Mr. Naraine's discharge from employment. Counsel for the respondents argued that the arbitrator's ruling and findings of fact ought to bind this Board of Inquiry.

61In an earlier interim ruling (Naraine v. Ford Motor Company of Canada Ltd. (February 13, 1995, unreported [now reported 1995 CanLII 18167 (ON HRT), 24 C.H.R.R. D/466])) I rejected this argument, holding that the legal questions before each tribunal were not identical and that the parties were different in each proceeding. I did, however, indicate that this Board would give due consideration to the findings of the previous arbitration award when assessing the evidence on the whole. After hearing all of the evidence, I have ultimately decided not to rely upon all of the arbitrator's factual findings.

62Although there is some overlap in the witnesses, this Board of Inquiry heard from dozens more individuals than appeared before the arbitrator. Several of the witnesses gave evidence before this Tribunal which appears to be quite inconsistent with what the arbitrator reported in his decision. The arbitrator did not have the benefit of the experts who appeared in this human rights proceeding. Mr. Naraine was not a party to the arbitration proceeding and had no independent representation at that hearing. Even the union, which was a party to the arbitration, was unrepresented by counsel.

63In Weber v. Ontario Hydro (June 29, 1995, unreported), the majority of the Supreme Court of Canada held that an earlier labour arbitration ruling was dispositive of the tort and Charter actions that the plaintiff sought to bring. This ruling indicates that the courts are quite rightly becoming increasingly concerned about duplicative proceedings in an era of diminishing adjudicatory resources. However, at the time of Mr. Naraine's arbitration, it was not settled as a matter of law that labour arbitrators appointed under the Labour Relations Act [R.S.O. 1980, c. 228] had the authority to make rulings under the Human Rights Code. The Labour Relations Act was not amended until 1992 to give arbitrators the express authority to apply the Code. Professor Palmer makes no reference to the Code or to human rights jurisprudence in his award. On the face of the arbitration decision, Professor Palmer explicitly declines to make findings of fact which may have related to the poisoned work environment, because of his view that this is not relevant to the labour law issues before him. Noting that some of the allegations concerned Mr. Naraine's co-workers, Professor Palmer concludes this was outside the scope of his inquiry because they were fellow union-members. In contrast, racial discrimination from co-workers is highly relevant to violations of the Code. For all of these reasons, I have decided not to rely upon all of the arbitrator's findings of fact, but to assess the evidence as a whole.

64A great deal of evidence was called concerning Mr. Naraine's capability as an electrician, his character and reputation, his relations with other workers, and various conversations and confrontations in the plant. The thrust of the respondents' position was that Mr. Naraine's proficiency and work habits as an electrician were substandard and that his "hair-trigger temper" provoked a series of verbal and physical altercations in the plant, which ultimately led to his discharge. A number of witnesses testified that Mr. Naraine's "trouble-shooting" skills were not very good, that he was slow to answer calls on the paging system, that he spent too much time on the telephone.

65The thrust of the Commission and complainant's position was that Mr. Naraine's actual work performance was adequate, and to the extent that there were problems, these related to his inability to obtain training, constantly being moved between job positions, and the reluctance of co-workers to provide the usual degree of support and cooperation. To the extent that Mr. Naraine was involved in confrontations with other employees, it was suggested that this was causally connected to racial harassment and social isolation on the job.

66Dealing first with the issue of Mr. Naraine's abilities as an electrician, the testimony was very contradictory on this point, but I was ultimately convinced that there was sufficient evidence to hold that Mr. Naraine's skill as an electrician was not, in itself, problematic. Numerous witnesses testified that he was "a decent electrician", "a good workmate", "competent", "average", "fairly capable", "acceptable", and "satisfactory". There were no formal or informal assessments of work performance in place at Ford during Mr. Naraine's employment, electricians displayed a "range of ability" from "weak to excellent", and the company did not stipulate at the time of discipline that job performance problems constituted the rationale. A company witness advised that Mr. Naraine was somewhat slow in responding to calls, "but it wasn't something we'd get all bent out of shape over or call IR [Industrial Relations]".

67On the matter of Mr. Naraine's temper, the respondents sought to introduce evidence regarding his termination in 1989 from employment at General Motors in Oshawa due to an alleged physical altercation with a supervisor. They also sought to introduce the court transcripts relating to a criminal conviction entered against Mr. Naraine seven years after his termination at Ford. Over the strong objections of counsel for the Commission and the complainant, I ruled this evidence initially admissible but reserved on the question of its ultimate relevance, until I had heard further details. After hearing testimony concerning the background to these events, I have concluded that neither is probative of the issues before me. Both occurred years after the matters giving rise to this inquiry. The firing at General Motors resulted in the filing of a human rights proceeding, which the company settled with Mr. Naraine for $15,000. The criminal conviction was not employment-related. Both events are too far removed in time and in substance from the events in this complaint. To consider whether they independently give credence to the respondents' contention that the central problem is Mr. Naraine's temper would require a detailed and nuanced "hearing within a hearing". This would unduly prolong and unnecessarily complicate this inquiry. Accordingly, I have concluded that the only relevant, probative testimony relates to Mr. Naraine's term of employment at Ford.

68Mr. Naraine's first six years at Ford were apparently free of work violations and disciplinary incidents, but starting in 1982 a series of five separate incidents ultimately led to his termination in August 1985. Testimony was offered about several additional events, but these were apparently less serious and never occasioned official discipline. The witnesses who testified concerning the five disciplinary incidents often gave starkly contradictory testimony. After reviewing the complete testimony and all of the exhibits, and making the required assessments of credibility to the best of my ability, it is my opinion that the following events were central to the ultimate termination of Mr. Naraine's employment.

A. Refusal to Work in Plant 1

69On February 22, 1982, Mr. Naraine was working in Plant 2, when his foreman instructed him to report to Plant 1. The assignment was a controversial one, because the union was concerned about management's attempt to amalgamate the two plants during a downturn in production. The union had told its skilled trades members "not to cooperate" with such requests, and Mr. Naraine was aware that at least one other Plant 2 employee had already objected to a work assignment in Plant 1. Although he was reluctant to go, Mr. Naraine followed orders and walked over to Plant 1. Once there, Mr. Naraine met with considerable resistance and abuse from Plant 1 workers. When he asked for directions to the maintenance office, he testified that he felt he was being treated like a "strike-breaker". Fearing for his personal safety, he reported to the supervisor in Plant 1, and explained that he could not stay to work there because he was afraid there might be a physical confrontation. The Plant 1 supervisor apparently told Mr. Naraine to return to Plant 2, where his Plant 2 foreman instructed him to leave the plant for the rest of the day.

70As he left for the day, Mr. Naraine was under the impression that he would be docked pay for the balance of the shift, but no one advised him that further disciplinary action would be taken. In cases of job refusal, the foreman had the discretion to write out a pass, which meant a loss in pay but entailed no disciplinary consequences. That did not happen here. Instead, Mr. Naraine was cited for "insubordination", and listed as suspended for the day. In this, Mr. Naraine appears to have been treated differently than a white employee who refused to work in Plant 1. Frank Marsh admitted he had refused to take a work assignment in Plant 1 "[un]til it stop[ped] raining", that he had been reassigned elsewhere and had not been disciplined. Another electrician corroborated this last point, noting that Frank Marsh had regaled the workers many times with the anecdote of his refusal to work in Plant 1.

71Mr. Naraine was not given formal notice of his suspension until February 8,1992. The notice was unusual in several respects. It indicated a full day's suspension on January 22, 1982, although Mr. Naraine had worked for half a day before being sent home and had been credited for the half-day on his pay slip. Furthermore, notices of suspension were typically handed out in advance of the suspension period, and the delay here was highly unusual. Mr. Naraine concluded that the notice must be some sort of "joke", since "it didn't make any sense". Mr. Naraine refused to sign the notice of suspension, but didn't bother to take a copy, and failed to lodge a grievance. In fact, he testified that he was unaware that he had actually been suspended for this work refusal until several years later, when the suspension turned up during the arbitration hearing over his dismissal.

B. Verbal Altercation with Andy Barr

72The second incident occurred on July 18, 1983, when Adrian Arvai, the manager in charge of scheduling, assigned Mr. Naraine to work overtime in a department supervised by Andy Barr. There was some history of antagonism between Mr. Naraine and Andy Barr, for the latter had apparently complained to Mr. Naraine earlier that his work was "no fucking good". Barr told Adrian Arvai he objected to the assignment of Mr. Naraine to his area, and Arvai communicated this directly to Mr. Naraine, advising him that if he was upset about it, he should speak directly to Mr. Barr. Witnesses indicated that it was somewhat unusual for a manager to make such a suggestion. Mr. Arvai apparently knew that Mr. Naraine was already touchy about his work assignments and about Mr. Barr. One witness testified that Mr. Arvai deliberately set out to provoke Mr. Naraine, to "wind him up", and that Arvai joked about this with other employees afterward. For his part, Mr. Naraine definitely rose to the bait. He confronted Andy Barr in Barr's office, where both men lost their temper in a heated verbal exchange. Mr. Barr shouted at Mr. Naraine that he should "just fuck off", and Mr. Naraine threatened to put his "black fist" up Mr. Barr's "white ass". Testifying as to why he used the reference to colour, Mr. Naraine explained:

I conveniently used the word "white" because I don't believe that person — Mr. Barr, is relating to me properly, and I hate to use the term racist, because it's one of the words I keep out of my vocabulary, but that was the connotation when I said I'll put my hand on his white ass.

Mr. Naraine was given a six-day suspension for "threatening a supervisor", a disciplinary penalty that concerned his union representative, Rafael Lopez, who testified that he thought the suspension was unwarranted and that the incident had "racial" overtones. Mr. Naraine filed a grievance, which was never taken to arbitration due to inadvertence or error on the part of the union. Mr. Naraine explained that he assumed the grievance was being processed, but that the "union was dragging its feet". He became concerned over the undue delay, complained to his M.P.P., Dave Cooke, and eventually sought written particulars from the union. Mr. Naraine continued to believe that the union was processing the grievance, and did not learn to the contrary until after his ultimate dismissal in 1985. At that point, he learned from the union vice-president that a decision not to process the claim had been taken some time during collective bargaining negotiations. The six day suspension was not contested at the arbitration hearing which reviewed Mr. Naraine's termination. According to a second union official who testified, this too was a mistake. Indeed, the official admitted that he had no idea why the union did not pursue the grievance. Mr. Naraine considered making a claim against the union for a violation of the "duty of fair representation", but decided to forego this in favour of the human rights proceeding against the company.

C. The Lift-a-Loft Incident

73The third incident occurred on October 14, 1984. Al Johnson, a white trades foreman, had instructed Mr. Naraine to change the fluorescent lights high above the machinery in the Cylinder Block area. This operation was normally carried out by two workers. A "lift-a-loft" machine was used to transport the eight foot long, fluorescent tubes to the required location. One worker drove the lift-a-loft, worked the controls on the ground to elevate the platform, and passed the fluorescent tubes to the second worker. The second worker stood in the rising carriage of the lift-a-loft to switch the light tubes.

74Mr. Naraine testified that he was uncomfortable driving the lift-a-loft, an awkward vehicle which tended to rock and spin in the narrow plant aisles. Mr. Naraine had virtually no automobile driving experience, and it was common knowledge in the plant that he was reluctant to operate the lift-a-loft. It also appears that Mr. Naraine may have been under the impression that he did not have a valid in-plant licence for driving the lift-a-loft. When given this particular assignment, Mr. Naraine explained that he was afraid he might damage the lift-a-loft if asked to drive it alone to the area stipulated. He asked Mr. Johnson if he could have assistance from another electrician. Mr. Johnson said he would get Chris Halford (a white electrician) to help.

75Unfortunately, Halford was out on another call, and more than an hour passed while Mr. Naraine waited for him. When Al Johnson returned, Naraine was still waiting and apparently reading a newspaper. The evidence indicated that it was not unusual for electricians to read newspapers on the job if they were not engaged in specific assignments. Johnson, however, was extremely angry that the lights had not yet been changed., He ordered Naraine to "take the lift-a-loft and go". Naraine replied: "Chris Halford [is] going to take the lift-a-loft. I'm not going to take it." Mr. Naraine testified that, in his opinion, Al Johnson was behaving irrationally at this point, shouting, "Do it, I told you, I told you."

76A subsequent company investigation revealed that Mr. Johnson had just returned from a nearby hotel, where he and Chris Halford had been drinking together throughout their meal break. Mr. Naraine said he smelled liquor on Johnson's breath, and was affronted by the tone Johnson had used toward him. Mr. Naraine was aware that Mr. Johnson had been out drinking with Chris Halford, and this added to his apprehension that white electricians such as Halford were the recipients of favouritism, while he was singled out for more than his share of the work. When Johnson finally ordered Naraine either to take the lift-a-loft or go home, Mr. Naraine chose to go home, a decision which netted him a twelve-day suspension for insubordination, and a formal warning that "any further infraction of company rules may result in your discharge".

77When he was called in for an industrial relations interview in connection with this suspension, Mr. Naraine explained that Al Johnson was drunk at the time of the interchange. He also explained that he felt he had been treated differentially, that white employees were treated better than he was. Mr. Naraine and his union lodged a formal appeal against the suspension, which was ultimately dismissed at arbitration.

D. The Security Guard Incident

78The fourth incident occurred on April 4, 1985. Mr. Naraine had been working the afternoon shift that week, which would ordinarily have terminated around midnight. However, he had made arrangements with another employee to switch to the day shift on Friday, so that he could travel to Toronto to see his family. Consequently, his shift ended at 4:12 p.m. Mr. Naraine testified that he left the plant around 4:15 or 4:30 p.m. As he passed through the exit at the security gate, the white security guard, Harry Dobson, called out: "Where are you going?" Mr. Naraine replied that he was going home and continued walking through the gate and beyond, outside of the Ford compound. According to Mr. Naraine, the following exchange ensued:

A. The next question he said, "Do you know what time it is?" I said, "I don't know what time it is" ... He said, "Don't be a smart ass". I never stopped, I continued walking all the time and I said, "F-off".

Q. At this point, when you tell him — did you say "F-off" or did you say "Fuck off", Mr. Naraine?

A. "Fuck off", that's what I told him.

Q. When you told him, "Fuck off", were you on company property or off company property?

A. I was off company property ...

Q. What happened after this?

A. I continued walking when he said — when I told him to fuck off, and his reply, "I'll get your ass, you yellow belly nigger". He came after me to grab me. By that time I was coming — there was a no parking sign coming towards Drouillard [Street] and the best of my recollection he almost grab me. So, I said, "Fuck off, you mother-fucker".

Q. At this point, what was your mood?

A. When he called me a yellow belly nigger, I was really upset. I had wanted really to lock horns with him, but I know I had a commitment for six o'clock to get the train, or 6:40, I think that was the time, so I just ran away and I went to the station.

79Mr. Dobson denied having called Mr. Naraine a "yellow belly nigger", but on this incident, I found Mr. Naraine's testimony more credible, as apparently did the arbitrator. Mr. Naraine testified that if he had been leaving before his shift ended, he would have stopped and presented a pass to Dobson. He was within his rights to leave after the shift and felt that Dobson was singling him out by stopping him without reason. Several other white employees testified that they often left a bit late after the end of a shift, and had never been stopped at the gate. Nor had they heard of anyone other than Mr. Naraine being challenged in such a manner.

80There was also some difficult history between Mr. Naraine and Mr. Dobson prior to this incident. Electricians who worked on the safety locks on electrical panels would occasionally have to call the security guard to assist. Mr. Dobson had apparently failed to answer Mr. Naraine's calls in the past, responding only when summoned by Mr. Naraine's white partner, and speaking only to the white electricians even though Mr. Naraine was in charge of the work involved. The evidence also indicated that Mr. Dobson seemed to take a particular and "very unusual" interest in Mr. Naraine, following him about the plant and often checking to see whether he was talking on the phone instead of working.

81Ford suspended Mr. Naraine for another twelve days after the Harry Dobson incident, for "improper conduct". The suspension notice spelled this out in the following terms: "refused to follow a proper instruction" and "directed abusive language at a member of security". He was also informed, again, that "any further infraction of company rules may result in your discharge". Mr. Naraine grieved the suspension. This discipline was ultimately overturned at arbitration and Mr. Naraine was reimbursed for the twelve days' lost wages.

E. Victor Mena Incident

82The final disciplinary incident involved an altercation between Mr. Naraine and Victor Mena on August 9, 1985. Mr. Naraine testified that it was not uncommon for Ford employees to request other employees to assist them during work hours in the plant with small repair jobs to personal property. The practice was so commonplace that the workers had even developed a specific phrase to describe such tasks. I believe the phrase used was "a government job". Mr. Naraine had a small part from his household vacuum cleaner which needed welding. He was on his last day of assignment in one plant, and anxious to get the part welded prior to his transfer to another plant.

83Mr. Naraine brought the part to Victor Mena, a welder who had immigrated from Ecuador in 1972, a man who appears to have been designated as "non-white" according to the workers in the plant. Mr. Naraine explained that he took the part to Mena because he had helped Mena out in the past. Mr. Naraine had gone to Mr. Mena's home, at Mena's request, to help him install a chandelier several weeks earlier. Mr. Naraine had refused financial payment for the electrical work, although he explained that Mena had insisted on repaying him with two bags of cement. Naraine testified that he had no use for the bags of cement, but accepted them out of politeness.

84On August 9, 1985, Mr. Mena was working inside the welding booth, seated on a steel high chair, reading the newspaper. When Mr. Naraine asked Mr. Mena to weld the vacuum cleaner part, Mr. Mena advised that he needed some aluminum rods to do so. Mr. Naraine then offered to go to the Foundry to get the requisite aluminum rods, which he did. Upon his return, Mr. Mena told Naraine that he did not have the right rods. Mr. Naraine testified that he was suspicious of Mr. Mena's response, since he was certain that he had the correct rods. Mr. Naraine began to think that Mena simply did not want to weld the part for him. His suspicions were heightened when Mr. Mena next told him that he would need to use the "tig-welder" to repair the part. Naraine knew that the tig-welder was broken. "He just didn't want to do it and these are excuses", stated Naraine. The two men had some discussion about whether Mr. Mena might search for a tig-welder elsewhere, but then Mena flatly came out and said he was "not going to do the job".

85Mr. Naraine testified that he became "angry" at this point, and that he moved closer to Victor Mena, intending to grab the vacuum part out of Mena's hand. He bent down over Mr. Mena, who was still seated in the welding chair, and brought his face close to Mena's face, "about four inches, six inches [at] the most". I told him what an ungrateful son of a bitch he is", claimed Naraine. "That I had just done this electrical work for him, give me the two bag of cement. I told him what a prick he was." Mr. Naraine testified that as he spoke, spray from his mouth spattered Mr. Mena, who wiped it off. Mr. Naraine testified that he grabbed the vacuum part out of Mena's hand and left the welding booth. Naraine admitted that there may have been some dust in the vacuum part, and that some part of the white dust might have got in Victor Mena's face. But he denied striking Mena, or hitting him with the metal part.

86Victor Mena's version was very different. He testified that when he refused to fix Mr. Naraine's vacuum part, Mr. Naraine began to "foam" at the mouth "like a wild animal", shouting something to the effect of: "What do you think you are, a big shot? You are a big shot because you're driving a Lincoln? You're a big shit." Mena stated that Mr. Naraine began to threaten violence to him and his family, using a string of obscenities. Mena said Mr. Naraine grabbed him with one hand, lifted him from the welding chair, and swung the metal part into Mr. Mena's head. He testified that Mr. Naraine spit in his face and threw him back to the bench, causing some bruising to his back. Mr. Mena said when Mr. Naraine turned to grab a chipping hammer from the bench, Mr. Mena managed to escape and run directly to the maintenance office, where he reported the incident. The in-plant nurse who examined Mr. Mena found a red mark on his back and some "puffiness" on the left side of his head.

87After hearing all of the witnesses and reviewing all of the documents recorded at the time of the altercation, it is my view that the truth lies somewhere in between these two versions. Mr. Naraine undoubtedly swore at Mr. Mena and made verbal threats against him. The saliva spray was probably inadvertent, not a deliberate attempt to spit at Mr. Mena. The bruises are consistent with Mr. Naraine's pushing or shoving Mr. Mena when he grabbed for the vacuum part, and the grazing of Mr. Mena's head due to contact with the part. I do not think that Mr. Naraine grabbed for the chipping hammer, since he had already put down the vacuum part and the worst of the tirade seems to have been over. But Mr. Mena, a man quite small in stature, must justifiably have been frightened by Mr. Naraine's attack.

88Ford management did not take a mixed view of the episode. The company accepted Mr. Mena's version entirely, and Mr. Naraine was not permitted back to work at Ford. He was notified of his termination on August 19, 1985. At Mr. Naraine's exit interview with the industrial relations personnel, he again raised the issue of racism in the workplace. In my view, the company failed to take Mr. Naraine's complaint seriously and it failed to investigate his allegations of racial hostility as was its responsibility (see Uzoaba v. Correctional Service of Canada (April 28, 1994, unreported decision, Can.Trib. [now reported 1994 CanLII 1636 (CHRT), 26 C.H.R.R. D/361]); Hinds, supra). The respondents took the position at the hearing that they were surprised to hear allegations of racism concerning the final altercation, because Mr. Mena was not white himself. This disregards the effect that the poisoned working environment was having on Mr. Naraine's temperament generally. It also neglects to recognize that racism can inspire anger and hostility that is not always directed towards whites. Sometimes the power dynamics are such that responses to racism are directed at individuals from diverse racial groups, rather than more powerful and dangerous white supervisors.

89Mr. Naraine grieved his dismissal through his union, and the case went to arbitration in February 1986. The arbitrator believed Victor Mena's account and refused Mr. Naraine's request for reinstatement. At the arbitration hearing, there seems to have been no evidence adduced nor any analysis undertaken of the underlying difficulties facing Mr. Naraine at Ford, which were making it virtually impossible for him to cope on the job. For a proper assessment of human rights complaints, however, all of Mr. Naraine's responses must be assessed in the context of the wider racialized working environment.

90Dr. Henry provided a useful framework for evaluating Mr. Naraine's temperament when she articulated some of the pressures involved:

A person who must endure a poisoned work environment is constantly in pain, is constantly humiliated ... is always under stress because he/she knows that an evaluation is being formed on irrelevant criteria. No matter how good you do the job, you're still going to be perceived in negative terms. So, the immediate effect on the victim is incredible stress, pain, suffering, humiliation, and at the same time the knowledge that a job has to be maintained, because one's own survival and the survival of one's family is dependent on earning a living.

91While some victims of racism "internalize the stress" through quiet acceptance and accommodation, according to Dr. Henry others can be expected to respond with "outbursts", "becoming angry, using strong language, becoming emotional". While Mr. Naraine exhibited quiet acceptance on numerous occasions when he was the butt of racist treatment, he became increasingly inclined to protest in the later period of his employment at Ford. One witness suggested that at the beginning, Mr. Naraine appeared to take the racial belittling "as a joke", but as the years wore on, he became more confrontational. This soon resulted in his being labelled as an individual with a temper. Various witnesses described him as an individual with "a chip on his shoulder", "an explosive temperament", "arrogant", "out of control", "unstable", "looking for a fight", "a hot-head", "flying off the handle", "short-fused", "irritable", "aggressive" and "irrational".

92Writing about the propensity to label those who complain of discriminatory treatment, Lynne Pearlman has noted (Lynne Pearlman, "Theorizing Lesbian Oppression and the Politics of Outness in the Case of Waterman v. National Life Assurance: A Beginning in Lesbian Human Rights/Equality Jurisprudence" (1994) 7:2 C.J.W.L. at 461, 485–86):

Discrimination is frequently masked as a "personality" problem ... Oppressors frequently are successful in obscuring the reality of oppression by characterizing complainants as "confrontational." This is the ultimate reversal of "who is doing what to whom." Resisting, fighting back, or showing anger is seen as inappropriate, intimidating and/or immature behaviour.

[This takes] the oppressed's angry response to a discriminatory incident rather than the incident itself, as the starting point of the interaction, thereby constructing the oppressed as culpable and legitimating harsh employer action as a justifiable "response" to the oppressed's "inappropriate" (re)action. Another method is to depoliticize and allegedly equalize the context so that both the dominant and the subordinate are seen as being equally responsible for their "bad tempers." Understanding the politics of inequality which underlie these interactions reveals a different story. It reveals how one party's hostility is about maintaining dominance by stripping the other of their will/dignity, and the other's "temper" is about trying to maintain dignity and assert equality. The expression of anger is a completely appropriate and healthy response to discrimination, which emanates from a sense of self-worth and a demand that others recognize one's humanity: "I am worth more than what your actions dictate, and I refused to be treated with such disregard." From the dominant perspective, however, revealing one's anger and asserting one's equality is seen as a hostile act because it undermines the dominator's sense of self as dominant. When viewed in context, the acts of "temper" by the dominant and the subordinate parties can be appreciated as being radically different. However, in terms of the development of the principle of insubordination in labour law, they are context-stripped and their analysis reduced to cliche: "two wrongs don't make a right."

93Once targeted as a recipient of racial discrimination, workers can become "ostracized", "outcasts" and "almost a pariah" in the workplace. Throughout the hearing, there were numerous indications that Mr. Naraine fit this description perfectly. One witness testified that "the slightest little thing involving Mike went around the plant pretty quickly". Others described Mr. Naraine as "a loner", "standoffish", "isolated", that he "didn't have any friends in the plant", that he "kept to himself completely", that "other workers couldn't relate to him", that "he never seemed to smile", that he was a "chronic complainer". One witness testified that when Mr. Naraine was fired, some co-workers were inspired to state: "it looks good on the fucking Paki". The same witness noted that Mr. Naraine was so despised that his name still inspires heated discussion. "Even now, it's amazing, ten years later, I can't believe this is going on and he's still passionately hated." Indeed, this witness added that he had been subjected to social repercussions at the plant for testifying on Mr. Naraine's behalf.

94According to the expert testimony, which was corroborated by many other witnesses from the plant, once saddled with a reputation as a trouble-maker, there are endless negative repercussions. Co-workers do not want to work with such individuals, supervisors scrutinize their behaviour more closely, they are singled out for things that would have been ignored in other employees. There was evidence that for some workers, strong language and confrontational behaviour is overlooked or condoned. One witness advised that there was a lot of "swearing and vulgarity on the plant floor at Ford", that "the F-word was probably second nature". Another testified that in the 1970s and ”˜80s, there were three or four good fights a year in the plant between workers, and that the foremen generally just wrote it off as personality conflicts. Frank Marsh stated that although Mr. Naraine would "holler and wave his arms around a lot", it was "no different than anybody else losing their temper". Another witness testified that there were workers at Ford "with a lot worse temper than what Mike's got". He added: "I think they couldn't take it off Mike because he was a minority with a temper."

95The truth of the matter is that because of his racial identity, Mr. Naraine was painfully visible in the plant. In a working environment rife with racial graffiti and slurs, he became the focus of attention by co-workers and management alike. All of the evidence indicates that Mr. Naraine came increasingly to chafe under the strictures of a racist working environment. Between 1982 and 1985, Mr. Naraine compiled a disciplinary record of two refusals of work orders, two incidents of verbal insubordination to superiors, and one verbal and physical altercation with a co-worker.

96To an outside observer, Mr. Naraine's outbursts do not always seem to be clearly and directly linked to specific racist acts or individuals. However, within this highly racist working environment, Mr. Naraine had no way of separating out what was racist from what was not. He became suspicious of the motivation of most of the workers in the plant, whatever their intent or perspectives might have been in fact. Furthermore, his suspicions appear to be reasonable, given the working conditions under which he was labouring. It is my view that all of the outbursts were provoked by the discriminatory environment that was taking its toll on Mr. Naraine's ability to function at work.

97Faced with these outbursts, management failed to examine the underlying basis for Mr. Naraine's behaviour, and disciplined him as if the events were stripped of any racial significance or meaning. Collectively, these workplace offences netted Mr. Naraine thirty-one days of suspension and a discharge. Some of these incidents ought not to have merited discipline at all, given the discriminatory working environment under which Mr. Naraine was labouring. The work refusals were minor, they were attended by extenuating circumstances, and neither seems to have caused the company any appreciable loss in production. The verbal altercation with the security guard was a direct response to racially-abusive language on the part of the guard.

98The only two occasions which did warrant discipline involve the threat or infliction of physical harm. The verbal threat Mr. Naraine made to Andy Barr, and the verbal threats and physical contact with Victor Mena, go beyond what can be tolerated in the workplace, whether provoked in retaliation to the general level of racial harassment in the plant or not. Such breaches of the peace, although somewhat less shocking given the severely racialized context of the plant, constitute disciplinable acts on the part of the complainant. If properly investigated by the company in the context of the poisoned working environment, this might have culminated in a suspension of several weeks' duration. These outbursts ought not to justify termination, the "capital punishment" of employment disciplinary sanctions.

99On the facts before me, I find that there is a causal connection between the poisoned working environment and the discipline and ultimate termination meted out to Mr. Naraine. As noted in Espinoza v. Coldmatic Refrigeration of Canada, supra, where racial and ethnic conflict contribute to the altercation which results in a discharge, the discharge is unlawful. The real reason for the termination is not the altercation, but the underlying factors of racial discrimination and harassment. By disciplining an employee in such circumstances, an employer is condoning the discriminatory conduct (see Mohammad v. Mariposa Stores Ltd., supra; Gannon v. Canadian Pacific Ltd.(1993), 1993 CanLII 355 (CHRT), 22 C.H.R.R. D/97 (Can.Trib.)). This is also sufficient to ground corporate liability, under the reasoning described earlier and set out in [Fu], supra, at D/2800–D/2801.

100The complaint originally named a number of individual Ford supervisors and employees as respondents, along with the Ford Motor Company. The Commission never clarified why these individuals had been specifically designated, as opposed to the many other supervisors and employees whose actions also became the subject of testimony during the lengthy hearing. In any event, given the systemic nature of the racial discrimination, I do not think that this is an appropriate case for any findings of personal liability.

101This Board of Inquiry will retain jurisdiction to consider the matter of remedy once the parties have had an opportunity to consider their positions on this issue.