BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;

AND IN THE MATTER OF the complaint by Alicia Payne, dated May 8, 1995 and amended on November 16, 1996, alleging discrimination in employment on the basis of race, colour, ancestry and ethnic origin.

B E T W E E N :

Ontario Human Rights Commission

• and -

Alicia Payne

Complainant

• and -

Otsuka Pharmaceutical Company Limited, Minoru Okada,

Canadian Ophthalmological Society, Intertask Group of Companies Inc.

and Leeanne Akehurst

Respondents

DECISION

Adjudicator : Matthew D. Garfield

Date : October 15, 2002

Board File No.: BI-0201-98

Decision No. : 02-019

Board of Inquiry (Human Rights Code)

505 University Avenue

5th Floor, Toronto ON M5G 2P3

Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946

TTY: (416) 314-2379 / 1-800-424-1168

A P P E A R A N C E S

Ontario Human Rights Commission ) Prabhu Rajan, Counsel

Alicia Payne, Complainant ) On her own behalf

All of the Ontario Respondents ) François Baril, Counsel

[No one appeared for Otsuka Pharmaceutical

Company Limited and Minoru Okada]

INTRODUCTION

Alicia Payne claims that she was denied a job for the simple and odious reason that she is Black. She says that Respondents Otsuka Pharmaceutical Company Limited (“Otsuka”) and Minoru Okada, Otsuka’s Manager, EC Business Development, denied her employment on June 25, 1994 at the 27^th International Congress of Ophthalmologists (“ICO”) without even considering her qualifications. Ms Payne also alleges that the host and organizers of the ICO, namely, the Canadian Ophthalmological Society (“COS”), Intertask Group of Companies Inc. (“Intertask”) and Leeanne Akehurst (collectively referred to as the “Ontario Respondents”), condoned and furthered the discriminatory action of Otsuka and Mr. Okada.

Ms Payne filed her Complaint with the Ontario Human Rights Commission (“Commission”) alleging discrimination in employment on the prohibited grounds of race, colour, ancestry and ethnic origin on May 8, 1995 against Intertask, Paul Akehurst, Leanne Akehurst, ICO and COS. Otsuka and Okada were not named in Ms Payne’s Original Complaint. On November 19, 1996, the Complainant filed an Amended Complaint adding Otsuka, Okada and the Metro Toronto Convention Centre (“MTCC”) as respondents.

The Commission investigated the matter and decided to “refer the subject-matter of the complaint” to the Board of Inquiry (“Board”) in 1998 but only as against two of the eight respondents: Otsuka and Mr. Okada. Pursuant to subsection 36(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), the Commission declined to refer as against the six other respondents named in Ms Payne’s Original and Amended Complaints - COS, ICO, Intertask, Paul Akehurst, Leanne Akehurst and MTCC (“Remainder Respondents”). The Commission subsequently denied Ms Payne’s request for reconsideration pursuant to section 37.

Ms Payne moved to add the six Remainder Respondents, Hubert Drouin (Chief Executive Officer/Executive Director of COS/ICO) and Manpower Services Canada Limited (“Manpower”). Mr. Drouin and Manpower were neither named nor referred to in either the Original or Amended Complaints.

The Board heard the motion in 1999 and ruled that it lacked the jurisdiction under the Code to add the Remainder Respondents as parties. The Board did not deal with the motion as it related to Mr. Drouin and Manpower as the Complainant had failed to provide them with notice of her motion.

Ms Payne filed an application for judicial review of the Board’s decision. The Divisional Court reversed the Board’s decision (reported at [2000] O.J. No. 1896). The Court held that the Board did have the jurisdiction to consider adding the Remainder Respondents pursuant to subsections 39(2) and (3) and remitted the matter back to the Board to consider the question in that light. The Court also stated that it was unnecessary to deal with the constitutional issues raised by Ms Payne (which were not raised in her motion before the Board) and that the Board was within its power not to have heard the motion as against Mr. Drouin and Manpower as they had not been given notice.

Notwithstanding her application for judicial review had been granted, Ms Payne sought leave to appeal the Divisional Court’s decision to the Court of Appeal. The Court of Appeal denied leave in October 2000. She then sought leave to appeal to the Supreme Court of Canada and that Court dismissed her request with costs in March 2001.

Ms Payne then brought her motion before the Board to add the Remainder Respondents, Mr. Drouin and Manpower. The Board granted her motion in part in its decision dated October 24, 2001, reported at [2001] O.H.R.B.I.D. No. 23. Subsequently, Ms Payne brought a motion for production which was withdrawn during the course of argument of the motion on February 20, 2002. The matter proceeded to a hearing on the merits, which ended on May 25, 2002.

It is unfortunate to note the time line: a decision is rendered over eight years after the incident occurred. While the matter occurred in June 1994, Ms Payne did not file her Original Complaint until over ten months later and the Commission did not refer the case to the Board until November 1998 – over four years later. Indeed, the Commission did not even take statements of witnesses until May 1998. Further, due to the court proceedings and the motions before the Board brought by the Complainant, another four years passed until the matter was completed. The time period was noticeable during the testimony of some of the witnesses, who were having difficulty trying to remember what happened eight years earlier. While the Board was able to conduct a hearing and make a determination, some of the evidence was not as reliable as it could have been if given sometime closer to the actual events in question.

The case was also unique in another respect. In McKenzie Forest Products Inc. v. Ontario (Human Rights Commission)(“Tilberg”)(2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150, the Court of Appeal held that the complainant, Mr. Tilberg, being a separate party before the Board, could proceed to a hearing before the Board, even if the Commission and the respondent settled between them, and the Commission withdrew from participating (not withdrawal as a party which it cannot do) in the hearing. The settlement did not oust the jurisdiction of the Board. Fortunately, the Commission infrequently decides to Tilberg a complainant. Tilberg is back before the Board and has commenced the hearing on the merits without the Commission’s presence or participation. Similarly, in Forde v. Artisan Screen Print Ltd., [2001] O.H.R.B.I.D. No. 17, the Commission, upon being granted permission from the Board, withdrew from participating in the hearing on the merits, leaving an unrepresented complainant to proceed on his own. The complaint subsequently was dismissed by the Board (reported at [2002] O.H.R.B.I.D. No. 8.).

In Payne, the Commission did a half-Tilberg: it only executed its “carriage of the complaint” vis-à-vis the parties it had originally referred against - namely, Otsuka and Mr. Okada. It did not participate against the Ontario Respondents – even though the Board had ordered them to be added as parties under section 39. Ms Payne did not bring a motion to compel the Commission to take “carriage of the complaint” against all the Respondents before the Board. Commission counsel did make submissions as a sort of amicus tribunae, at the Board’s request, concerning the legal issues of the duty not to condone or further discrimination. But the Commission did not take any position with regards to its applicability to the Ontario Respondents in the instant case.

ISSUES

The Board deals with the following main issues:

(1) Was Ms Payne discriminated against in employment on the basis of her colour by Otsuka and Mr. Okada, in violation of subsection 5(1) of the Code?

(2) Is there a human rights duty not to condone or further a discriminatory practice? What was Ms Payne’s legal relationship to the Ontario Respondents? Did they have a duty to Ms Payne? If so, what requirements does that duty impose? Did they meet the duty? Did any of them condone or further the discriminatory act of Mr. Okada?

(3) What is the appropriate remedy?

DECISION

All of the Respondents violated Ms Payne’s right to be free from discrimination with respect to employment because of her race, colour, ancestry and ethnic origin, in violation of subsection 5(1), which is contrary to section 9 of the Code.

LIST OF WITNESSES

The Board heard evidence from the following witnesses:

(1) Alicia Payne – the Complainant;

(2) Stephen Jones – owner of The People Bank (“People Bank”), one of the two employment agencies involved and Ms Payne’s “employer”;

(3) Sandra Sears – employee of People Bank;

(4) Shibani Cherla – Vice-President (Finance and Administration) of Respondent Intertask;

(5) Leeanne Akehurst – Human Resources Coordinator for ICO and Intertask;

(6) Paul Akehurst – owner of Intertask and Director of Operations for ICO and father of Leeanne Akehurst;

(7) Hubert Drouin – Executive Director of COS/ICO; and

(8) Terry Downey – Human Rights [investigations] Officer of the Commission.

INFERENCE REGARDING NON-PARTICIPATON BY OTSUKA AND OKADA

The Commission and Ms Payne asked me to draw an adverse inference from Otsuka’s and Okada’s non-participation in the hearing on the merits. The Board declines to draw such an inference, although it is open to it to do so. Otsuka and Okada retained counsel. Counsel represented them from the beginning of the matter before the Board to the present. Indeed, at the last Pre-Hearing Conference call before the hearing on the merits, Mr. Zanin, counsel for Otsuka and Okada, indicated that his clients instructed him not to attend at the hearing. The Board offered to hear Mr. Okada’s evidence by telephone from Japan but the offer was not accepted. Otsuka and Okada never filed pleadings, although directed to do so. Mr. Zanin had even requested an extension for filing pleadings. The Board does not have a provision for default orders. The Board notes that Otsuka and Mr. Okada have attorned to the jurisdiction of the Board. Their counsel never argued otherwise.

Counsel for the Ontario Respondents urged me not to draw an adverse inference from Otsuka’s and Okada’s non-participation at the hearing on the merits. He indicated that their decision could be for many legitimate reasons: cost; lack of doing business in Canada. Their lack of filing pleadings and attending or calling evidence does not per se mean an admission of liability. While it may not be a prudent decision for a respondent, as a court or tribunal may draw such an adverse inference, the Board will not do so here. There are a myriad of reasons why they may have decided not to file pleadings and call evidence. The Board has enough evidence on which to make findings without having to draw an adverse inference against Otsuka and Mr. Okada for their non-participation at the hearing on the merits.

FINDINGS OF FACT

This is also an interesting case as what wasn’t said is almost as important as what was said. Indeed, Mr. Okada never explicitly said he was not hiring Ms Payne because she is Black. However, one needs to look beyond what was expressly stated. Given the subtle nature of many discrimination cases (including this one), even more careful analysis must be done of all the evidence - individual pieces and the aggregate - to determine if a complainant’s rights have been violated. In this section, the Board makes its findings of fact.

27^th International Congress of Ophthalmology (ICO)

COS, a non-profit association for Canadian ophthalmologists, was given the privilege of hosting the 27^th ICO, a meeting of over 8,000 doctors, scientists, service providers and product manufacturers. The conference was to take place during the week of June 25, 1994 at the MTCC. The theme was For All the World To See. It was about blindness in the Third World. COS was not able to organize such a large conference on its own. It contracted with Intertask to run it. Mr. Paul Akehurst is President and owner of Intertask, which is a holding company of other related companies, including Intertask Limited, and Conference Aide Convention Services Limited (“Conference Aide”). Counsel for Intertask stipulated that his clients would assume liability for any contravention of the Code by any of its subsidiary companies. Accordingly, the corporate structure of the related companies is not of importance in this case. Intertask in essence became the ICO Secretariat. Mr. Akehurst became the Director of Operations and his daughter, Respondent Leeanne Akehurst, its Human Resources Coordinator. Intertask subcontracted with two employment agencies: People Bank and Manpower. These agencies assisted in staffing the scientific congress part of the ICO. They were not responsible for staffing of the trade exhibition part, and did not do so, save and except for two instances: one being the Otsuka booth.

Leeanne Akehurst reported to someone in Intertask who reported to Mr. Akehurst, although she dealt directly with her father in the Payne matter. Mr. Akehurst reported to Hubert Drouin, Executive Director of COS, who reported to its Board of Directors. Mr. Akehurst also had access to the Board of Directors, if required. People Bank and Manpower dealt with Ms Akehurst.

Request from Otsuka for a Booth Receptionist

On March 22, 1994, the ICO Secretariat received a written request from one of the thousands of exhibitors, Otsuka in Japan (exhibit 1-11). Its senior representative attending the ICO, Mr. Okada, wanted the ICO to help him find a receptionist for the Otsuka booth. Mr. Okada wrote:

During the term of the exhibition, we wish to appoint a receptionist in our booth, implemented in English and French.

We wish her to sit at a reception desk to provide information on our stand and other services to those who visit our stand. The appointment is expected as follows:

Term: Basiccaly [sic] the Exhibition Period

June 26 through June 29 0800 hrs – 1700 hrs

June 30 0800 hrs – 1500 hrs

Principal work: Booth Receptionist

The receptionist shall adequately make an image or impression of our booth. Receptionist desk will be provided. You are requested to answer the questions about Otsuka and our products, with referring to the description of our company profile and product information. Prior to your start with the work, oral instruction will be also given. You are also requested to do the following service:

No use of special terms nor of computer softwares shall be required.

It would be appreciated if you could advise us of availability and rate of a personnel as such through the ICO Secretariat.

The request was given to Leeanne Akehurst. Although it wasn’t something the ICO Secretariat normally did, Ms Akehurst testified that she decided to assist, out of courtesy. She responded on Conference Aide letterhead on March 23, 1994 as the ICO Convention/Human Resources coordinator (exhibit 1-12):

Mr. Ross forwarded to me your request for a bilingual (English and French) booth receptionist.

As the official convention services supplier to the XXVIIth International Congress of Ophthalmology, we would be very happy to provide this service to you for the hours outlined in your fax dated March 22, 1994.

The cost for this service will be $15.85US per hour. Based upon your fax, the total cost for this service is $681.55US. This amount is due and payable in full one month prior to the exhibition. Cheques should be made payable to Conference/Aide Convention Services in the form of a bank draft in US dollars drawn on a US bank.

We require a signed copy of this letter as confirmation of these services. Failure to provide full payment one month prior to the exhibition will result in automatic cancellation of these services.

Mr. Okada responded the next day and sent the requested cheque for payment for services payable to Conference Aide the following week. Ms Akehurst testified that the letter and cheque from Mr. Okada were given to the accounting department. The cheque was deposited in Conference Aide’s bank account. She said, “Conference Aide would use it to pay for the person placed at the booth and for any expenses we would have incurred.” Conference Aide/Intertask did not make a profit on this transaction. In his letter stamped March 30, 1994 (exhibit 1-13), Mr. Okada wrote:

Since the receptionist will provide the first impression of our booth, image of the personnel naturally holds importance. We would like to meet with the person prior to the term and leave our decision on her till then. We would appreciate a young and attractive person who is positive and cheerful in character.

[Emphasis added.]

On April 15, 1994, Mr. Okada sent a fax to Ms Akehurst indicating that he would be in Toronto the following week. He wrote, “Since I wish to see the person(s) who may be our booth receptionist and decide on to whom I should ask to join us working in the booth. It would be appreciated if you could arrange to see the person(s) either in the afternoon of 23^rd or in the morning of 24^th April…”

Ms Akehurst took the written request from Mr. Okada and forwarded it to Sandra Sears of People Bank. Sandra Sears went through the computer bank of People Bank to find qualified candidates for the position. She selected Michelle Gay. Ms Akehurst advised Mr. Okada of this. Mr. Okada sent a further fax to Ms Akehurst on April 20, 1994 stating, “Thank you very much for your fax of April 18. I will be pleased to see Ms. Michelle Gay on Saturday, April 23 at 15h00 at the Toronto Hilton.” Sandra Sears testified that she introduced Ms Gay to Mr. Okada and he agreed to hire her as Otsuka’s booth receptionist.

Saturday, June 25, 1994: Day of the Incident

Initial Meeting of Payne, Sears and Okada

Alicia Payne, an employee of People Bank, reported for work at the MTCC. She was to be the receptionist for Otsuka’s booth. Michelle Gay had pulled out, having found a permanent job. Ms Sears found a replacement – Ms Payne. Both Ms Gay and Ms Payne were fluent in English and French, “young and attractive” women, professional, experienced in this type of job, and had good track records at People Bank. There was one, noticeable difference: Ms Gay is White and Ms Payne is Black. There is conflicting evidence on whether Mr. Okada knew about the change in advance and when Ms Akehurst knew of the change. This will be discussed later.

Sandra Sears introduced Ms Payne as the employee who would be working for him to Mr. Okada in front of the Otsuka booth. She was dressed professionally. Ms Payne said ‘hello’ in Japanese. She extended her handshake and he held it. Ms Payne testified:

He essentially froze. He went into shock by the expression on his face. He didn’t say anything. He looked at her. Sandra was convincing him that I was a good candidate (e.g., “she worked for us before; she will be great”). At some point, she gave up and asked me to excuse them. I was shocked myself. I was angry, hurt.

Both Ms Payne and Ms Sears testified that Mr. Okada asked about Ms Gay. Ms Sears told him Ms Gay was unavailable as she accepted other work. In her Amended Complaint filed with the Commission (exhibit 2-1), Ms Payne wrote, “…[Sears] reminded Mr. Okada that he had been informed earlier that she [Gay] might be unavailable and that a suitable replacement would be provided.” In cross-examination, Ms Payne was asked if Ms Sears prefaced her introduction by saying Ms Gay was no longer available. Ms Payne replied, “No, not that I recall.” She did testify that Mr. Okada asked Ms Sears about the person he had hired [Gay]. Ms Sears averred:

[While] I’m not “100 per cent sure…I am pretty sure I made reference to Michelle being unavailable. I don’t remember when I said the bit about Michelle. Okada was quite surprised. He was taken a back, flustered. His English was not that great. There wasn’t an easily understood exchange. He said, “Where’s Michelle?” Then I would have said, “She’s not available.” He was flustered because he was looking for Michelle and it was a different person than he was expecting…It’s a long time ago, my recollection of the events is not good. It’s difficult for me to remember the exact words. He did not speak in complete sentences. I remember him saying “no”. It became clear the situation was not acceptable to him.

Ms Sears stated that she did not know the exact reasons why he rejected Ms Payne but added, “It was strictly based on seeing her.” Ms Payne averred that Mr. Okada didn’t smile at her, or acknowledge her at all. He didn’t say a single word to her. Ms Payne stated that she knew “right away” it was because she is Black.

Conversation Between Sears and Okada

Sandra Sears spoke briefly with Mr. Okada after she asked Ms Payne to excuse them. Ms Payne could not hear the conversation. Ms Payne testified that when Ms Sears returned:

Sandra was visibly upset. She was responding to me differently. The mood changed. I asked if she found out why I was rejected. She said Mr. Okada indicated something about “maintaining the high standards of the company” and “what would the Japanese doctors think”. She said she would find something else for me [at the ICO].

While the “maintaining the high standards” and “Japanese doctors” statements were not corroborated by Ms Sears’ testimony, she did state, in a July 20, 1995 letter to Ms Payne (exhibit 2-21):

After Mr. Okada had been introduced to you, I asked that we might be excused. I asked him directly why he did not want you to work the booth and he said “Japanese doctors” and “company image”, and gestured at the Otsuka booth. He was extremely flustered and taken aback, and said “I am very surprised, very surprised.”

Ms Sears did admit that her memory was much better at the time she wrote the 1995 letter than at the hearing in 2002.

In her witness statement taken by Ms Downey, the Commission’s investigating officer, dated May 15, 1998 (exhibit 5), Ms Sears stated at p. 5, “…they [Sears and Okada] then spoke alone. She can’t recall exactly what he said. She remembers that he did not speak good English on this occasion or the prior meeting.” In cross-examination, counsel to the Ontario Respondents asked if she recalls Mr. Okada saying, “We don’t hire people like that” or something to that effect. Ms Sears answered in the negative. Then counsel stated, “In this case, if Okada had said, “We don’t hire people like that”, would you think it was racially motivated?” She replied, “Yes, that would have triggered an alarm bell.” And no “alarm bell” went off in Ms Sears’ mind until she spoke to her boss, Stephen Jones.

Stephen Jones, President of People Bank, and Ms Sears’ supervisor in 1994 testified that Ms Sears telephoned him after the incident. He claimed that Ms Sears said Mr. Okada told her in the private meeting, “We don’t hire people like that.” Sandra Sears said it was obvious it was because Ms Payne is Black. “I didn’t ask Sandra to investigate it further.” Mr. Jones averred that he was “very confident” Ms Sears told him that Mr. Okada said those words, or something very close to it. He admitted that that evidence of his was nowhere to be found in his statement to the Commission dated May 13, 1998 (exhibit 4). Ms Sears testified that, “I have no idea what I told Mr. Jones.” When asked if she recalled Mr. Okada making the “we don’t hire people like that” comment, Ms Sears answered “no”. She also believed she had the conversation with him in person back at People Bank’s office.

As indicated earlier, Mr. Okada did not give evidence before the Board.

The Board finds, on a balance of probabilities, that Mr. Okada, in addition to expressing his surprise and concern that Ms Gay was not there as he had thought, did say something to the effect of “maintaining the high standards of the company” and “what would the Japanese doctors think?” The Board recognizes that Mr. Okada’s statements regarding “high standards” and “Japanese doctors” are hearsay. However, they may be admitted under the admissions exception, as being necessary and reliable per R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 and admissible pursuant to subsection 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. Again, the Board is at a disadvantage in the sense that we will never know what Mr. Okada really meant when he spoke those words. However, taken together and as part of the entire evidence, including Mr. Okada’s subsequent behaviour and statements, the Board finds that Mr. Okada was referring to Ms Payne’s colour and was not willing to hire Ms Payne because she is Black.

The Board does not accept the uncorroborated, hearsay evidence of Mr. Jones that Mr. Okada said, “We don’t hire people like that.” Notably, this alleged statement was nowhere to be found in Mr. Jones’ statement to the Commission in 1998. Indeed, his testimony was that he could not remember the words verbatim. He also testified that he was not sure Ms Sears said Mr. Okada’s remark included “people like you or her”. Further, Ms Sears does not remember Mr. Okada making that statement. Ms Akehurst also does not recall Ms Sears saying Mr. Okada made the alleged statement.

Conversation Among Sears, Payne and L. Akehurst

Following Ms Sears’ conversation with Mr. Okada and her brief exchange with Ms Payne, Ms Sears and Ms Payne left the Otsuka booth. Ms Sears testified:

As we hit the escalator, Alicia said, “He doesn’t want me because I am Black”. I don’t know if I said anything myself. I was pretty flustered. I had a customer [Mr. Okada] who rubbed off on me; he was clearly unhappy; and a very good candidate who was also unhappy. I thought, “Oh, maybe she’s right.” I don’t know. I just kind of stopped.

The two then went down the escalator where they met Ms Akehurst. Ms Akehurst asked them how the interview went. Ms Payne testified that she told her, “He didn’t want me. She asked why. I said, ‘because I’m Black’.” Ms Akehurst then apologized. Sandra Sears corroborated Ms Payne’s testimony. Ms Sears testified that she [Sears] was “flustered”. “I thought, oh, maybe she’s right. I don’t know. I just kind of stopped.” Ms Sears acknowledged in her testimony, “Before Ms Payne’s comment, it never occurred to me it was because she’s Black.” In her statement to the Commission in March 1998, Ms Sears said the reason didn’t occur to her. She just knew he didn’t want her. She just didn’t know why.

Ms Akehurst gave evidence about her encounter with Ms Payne and Ms Sears. She basically corroborated the initial part of the conversation up to Ms Payne saying Mr. Okada didn’t want her because she is Black. Regarding Ms Sears’ comments, Ms Akehurst stated, “I don’t recall her [Sears] agreeing or disagreeing with the comment. Ms Payne was very upset and wanted to go home. I could understand why she would be upset…The conversation took maybe five minutes.” Ms Akehurst said she offered to compensate Ms Payne for her day’s wages.

In cross-examination, counsel put it to her that Ms Sears never suggested Mr. Okada’s rejection of Ms Payne was because she is Black. Ms Payne agreed and added, “I already said it. Sandra didn’t deny or endorse it.”

The Board finds that Ms Sears neither endorsed nor denied the view that Ms Payne was denied the job because she is Black during this conversation. She first expressed that view after speaking to Mr. Jones, as will be discussed later.

Conversation Between L. Akehurst and Sears After Payne Left

Following the above conversation, Ms Payne went home, quite upset. Ms Sears and Ms Akehurst continued their conversation. Ms Akehurst testified, “We were both flustered and unsure how to proceed. I asked Sandra if she felt an act of discrimination had taken place and Sandra did not confirm or deny it. She was unsure.” Counsel asked Ms Akehurst if Ms Sears told her that Mr. Okada had said, “We don’t people like that”. Ms Akehurst replied “no”. “If she had said that, what would you have done?” asked counsel. Ms Akehurst responded, “I would have been concerned and asked, “Why, if those words were used, had Sandra been unsure of whether an act of discrimination had occurred?” Ms Akehurst testified that at the end of the 10-15 minute conversation, she did not form a conclusion about what had happened. “I decided to go and speak to Mr. Okada myself.”

Conversation Between L. Akehurst and Okada

Following the above conversation, Ms Sears spoke with Mr. Jones, and Ms Akehurst went to speak with Mr. Okada. Ms Akehurst decided to speak with Mr. Okada to try to straighten out the problem. She thought there might have been a misunderstanding. As her father testified later, these types of “misunderstandings” were common at such international events. Ms Akehurst stated, “By speaking with him, I could get to the bottom of it.”

She approached Mr. Okada and said:

I understand there was an issue. He nodded up and down and said, “No, not right girl, not Michelle.” I explained that Michelle found other work…He said, “Other girls please” and I agreed to provide him with other candidates. The conversation lasted less than five minutes. His English was broken. He could speak well enough to articulate his thought. I think his comprehension was better than his ability to speak. I believed he understood me.

Ms Akehurst admits that she did not ask Mr. Okada directly, “Did you reject Alicia Payne because she is Black.” Ms Akehurst testified, “When he said, ‘No, not right girl…”, it cancelled it out. It said to me it was because he wanted Ms Gay. There had been a misunderstanding.”

Ms Akehurst testified that Mr. Okada never said he wouldn’t consider Ms Payne for the job. “I didn’t discount it as a possibility that he would hire Ms Payne. He never said he wouldn’t hire her.” In response to questioning from Ms Payne, Ms Akehurst stated:

I don’t believe he ever said you couldn’t work there. He just said you weren’t Michelle. You didn’t work there because People Bank didn’t fill the position there; Manpower did. If Sandra didn’t refuse to provide [additional] names, he might have hired you.

Her father, Paul Akehurst, reiterated this view when he testified that Mr. Okada never explicitly ruled out Ms Payne for the job. Mr. Akehurst testified, “My understanding from Leeanne is that Alicia took herself out of the competition and that she could have been considered [by Mr. Okada] along with the other pool.” Both Akehursts averred that they thought, “other girls please” meant that Mr. Okada would consider Ms Payne along with the other applicants for the job. Ms Akehurst was asked why, if it was a “misunderstanding”, did she not suggest to Mr. Okada that he hire, or at least interview, Ms Payne for the job. The witness replied, “No, I would have asked Sandra to ask Ms Payne because she was Sandra’s employee, not mine. Also, I didn’t ask because other events occurred.”

The Board finds that Mr. Okada had no intention of considering Ms Payne for the job. While the Board finds that “no, not right girl” meant “no, not Michelle Gay whom I thought was working for Otsuka”, the Board also finds that “other girls please” meant applicants other than Alicia Payne. Why? Because she is Black and Mr. Okada did not want to hire a Black person to represent Otsuka at its booth at this international conference. The Board does not find it credible that Mr. Okada’s actions and statements showed that he would have considered hiring Ms Payne. He didn’t address her; he didn’t ask about her qualifications; he ignored Ms Sears’ very positive introduction of Ms Payne and her credentials. “Other girls please” did not include Alicia Payne.

Conversation Between Jones and Sears

Sandra Sears spoke with Mr. Jones shortly after leaving Ms Payne and Ms Akehurst. As written earlier, Mr. Jones testified about certain comments Ms Sears said Mr. Okada told her concerning his rejection of Ms Payne. Mr. Jones said he did not ask Ms Sears to investigate further. He felt it was clear that Mr. Okada had rejected Ms Payne because she is Black. He admitted in testimony, “I relied exclusively on Sandra’s description of what happened and her interpretation.” The witness was asked, “Would you have arrived at a different conclusion if Sandra said she wasn’t sure what had happened and that she only thought it was discrimination after Ms Payne told her it because she is Black.” The witness responded, “Yes, I would have had to revaluate it.” Couldn’t “we don’t hire people like that” mean something other than race? Mr. Jones agreed with that. When questioned on whether that comment was made to him by Ms Sears, he said, “It may not be verbatim but I’m very confident she said those words or something very similar to that.” He admits this inflammatory comment is not found in his May 1998 statement to the Commission. However, he pointed out that Ms Sears did tell him that she thought Mr. Okada rejected Ms Payne because she is Black and this is found in his witness statement to the Commission. The statement is not a comprehensive description of everything that he remembers. He says his exchange was over the telephone with Ms Sears shortly after the occurrence on June 25, 1994.

Ms Sears testified “I have no idea” what she said to Mr. Jones. When counsel for the Ontario Respondents asked her if she came to a conclusion at that point about the motive of Mr. Okada for rejecting Ms Payne, the witness answered, “I don’t remember. I couldn’t be certain why she was rejected.”

Sandra Sears testified that she believes she met with Mr. Jones in People Bank’s offices, not over the telephone. Later, she says she is not sure. Mr. Jones is sure: they talked over the telephone. The Board finds that they did have a conversation over the telephone after she left Ms Payne and Ms Akehurst. The Board also finds Ms Sears recounted the events to Mr. Jones and that she felt discrimination had occurred. The Board finds Ms Sears did not convey this response in her conversation with Ms Payne and Ms Akehurst shortly before speaking to Mr. Jones. The Board finds that her conversation with Mr. Jones, and his affirmation that discrimination had occurred, along with the short passage of time that allowed Ms Sears to think about what had transpired, cemented her view that discrimination had occurred. This was conveyed to Ms Akehurst when they spoke later that day.

Second Conversation Between L. Akehurst and Sears

Ms Akehurst spoke with Mr. Okada. Ms Sears spoke with Mr. Jones. Ms Akehurst then spoke to Ms Sears, describing her discussion with Mr. Okada. Ms Akehurst testified:

I explained to Sandra the conversation and that there had been a misunderstanding and would she please provide additional candidates to Mr. Okada to interview. Sandra refused. I was stunned. She said it was because she wasn’t sure if an act of discrimination had occurred. She wanted to remove herself from the situation. She was very cold. I was surprised. This was a refusal to provide a service…Sandra was ambivalent [about whether a discriminatory act had occurred] the first time [before she spoke with Mr. Jones]. She was sure the second time, ten minutes later…Perhaps she spoke to someone else and received instructions.

Ms Sears did not give evidence about her second conversation with Ms Akehurst.

The Board accepts Ms Akehurst’s evidence about the above conversation with Ms Sears. It is consistent with the Board’s previous findings about Ms Sears’ view of what had occurred at the various stages: prior to speaking to Mr. Jones and after speaking with him. Clearly something or someone crystallized Ms Sears’ opinion from not being sure discrimination had occurred to being quite sure and refusing to provide additional candidates for Mr. Okada. The Board believes Ms Sears’ transition to being quite sure discrimination had occurred was the result of her own contemplation of what had occurred, after Ms Payne had told Ms Sears that Ms Payne felt Mr. Okada rejected her because she is Black, and upon Mr. Jones’ confirmation and expressed concern.

Conversation Between L. Akehurst and Thorpe

Ms Akehurst testified:

After talking to Sandra [and her refusal to provide additional candidates for Okada], I went to speak to Sharon Thorpe of Manpower [the other employment agency retained by Intertask/ICO]. I relayed the events to her and explained their concern, my conversation with Okada, and the second one with Sandra. I asked her what she thought. I said I thought there had been a big misunderstanding and she agreed. She might have asked questions. She was the first neutral person I spoke with. Her impression was there was a misunderstanding. She said she would provide a list to Okada. We identified two or three people. I did not interview them. On the way up to Mr. Okada, I spoke to them in French. I presented them to Mr. Okada.

Unfortunately, Sharon Thorpe did not testify. During an earlier motion, the Ontario Respondents made efforts to locate her, but to no avail. The Board accepts the above evidence of Ms Akehurst.

Conversation Between Leeanne and Paul Akehurst

Ms Akehurst testified:

My Dad was my supervisor. I ran into him a couple of hours later. I told him what had happened and my decisions [pay her for the day and find her a job at the ICO]. He said I made the right decisions and course of action. It lasted 5-10 minutes. He was concerned Ms Payne felt this way.

Mr. Akehurst corroborated his daughter’s testimony. After listening to his daughter, he agreed that it could have been a “horrible misunderstanding”. He felt that Mr. Okada was reacting out of disappointment that the person he had selected and expected to see, Ms Gay, was not there (i.e., “no, not right girl” comment), but instead, he was presented with someone new, that he had not selected. “Other girls please” referred to his wish to have a choice of booth receptionists on which to choose. Mr. Akehurst also testified that he was “very concerned” that Ms Payne was hurt and felt she had been discriminated against. He stated, “It was important to show Alicia that we don’t condone this. If I felt discrimination had occurred, I would have gone immediately to Mr. Drouin, round up the directors [of COS], discussed the matter, and if necessary, ask Mr. Okada to get on the next plane home.” Mr. Akehurst agreed with his daughter’s course of action: offered to pay Ms Payne’s wages for the day; find her a prominent position at the ICO, “even if we had to create one”; speak to Mr. Okada about what occurred; and seek expertise of Ms Thorpe for a neutral second opinion. The Board accepts their evidence.

Conversation Between P. Akehurst and Drouin

Later that night, at around 6 or 7 p.m., Mr. Akehurst and Mr. Drouin met. It was an unscheduled meeting. He informed Mr. Drouin what had happened, that they had looked into the matter “as best we could”, weighed the conflicting information, and concluded it was an “ambiguous situation”. He also told Mr. Drouin that they had offered to pay Ms Payne’s wages for the day and find her a suitable job at the ICO. Mr. Akehurst testified that Mr. Drouin agreed with their course of conduct. Mr. Drouin corroborated Mr. Akehurst’s testimony. He said, “They had conducted an investigation into what happened and they took appropriate action to remedy the situation regarding both Ms Payne and Mr. Okada.” He says that if he thought the action was not appropriate, he would have overruled Mr. Akehurst’s recommendations. The Board accepts their evidence.

Mr. Akehurst testified:

We took very seriously the allegations of racism; and yet on the balance of information available to us at the time, we were not certain that an act of racial discrimination had taken place. And in some ways, we thought the situation could have been far worse if we had mishandled the matter. On a balance of probabilities, there had been a horrible misunderstanding…By mishandling it, we could unfairly accuse someone of racial discrimination. That would have been every bit as wrong.

When asked if it was “possible” that Mr. Okada had rejected Ms Payne because she is Black, Mr. Akehurst replied, “Absolutely, yes.”

The Day After: Sunday, June 26, 1994

The next day Ms Payne returned to the MTCC. She was still shocked and upset by what had happened. And she wanted to pursue the matter. As she testified, “It was important to me not to let it go because it happens too often: discrimination. Instead of addressing it, people forget it. That is one of the things that enable it to keep happening.” She had refused the day’s wages offered by Ms Akehurst. In fact, she returned the cheque. But she accepted a high profile position in the ICO main information booth, at the same wage as the Otsuka job. She testified that she took the job in part, because she wanted to be on site to continue her quest to have the discriminatory treatment properly addressed. Ms Payne worked for the entire convention period without further incident.

Ms Payne asked People Bank to set up a meeting to resolve the matter. Stephen Jones and Sandra Sears both testified that Mr. Jones did not think it was appropriate for Ms Payne to be at the meeting between Intertask/ICO and People Bank. He felt this way because Ms Payne was “our employee, not Intertask’s”. Intertask was People Bank’s client so they thought it was proper for Mr. Jones and Ms Sears to meet with Mr. and Ms Akehurst. While not agreeing with them, Ms Payne decided to withdraw her request for a meeting with Intertask/ICO.

Meeting Among Jones, Sears and Okada

Mr. Jones decided that People Bank should speak directly to Mr. Okada about what they and Ms Payne felt had been a discriminatory act on the part of Mr. Okada. After all, testified Mr. Jones, Ms Payne was their “client” and they had a legal and moral duty to speak to Mr. Okada. Mr. Jones averred:

We took a three-fold brochure of the Ontario Human Rights Commission describing human rights laws and a prepared letter. Sandra and I went to his booth. We introduced ourselves. I gave him a thirty second description of the general requirements of human rights law, presented the brochure and letter to him. I cannot repeat the conversation word for word. I said, “You rejected our employee because of her appearance.” I said, “In Ontario and in Canada it is against the law to discriminate based on race, etc.” He said, “I’m sorry I didn’t know.” I believe he understood what I was saying. He nodded his head and responded, “I’m sorry, I didn’t know.”

He noticed the person that was working at the Otsuka booth: she was “White, under 30 [years of age], blonde hair.”

June 30^th Meeting: P. and L. Akehurst, Jones and Sears

On June 30, 1994 – the last day of the ICO - the above four people met to discuss business and the incident with Payne and Okada, at around 5 p.m. It was an unscheduled meeting. Mr. Akehurst was on his way to the closing ceremonies. Messrs. Akehurst and Jones did the talking. Mr. Jones testified that People Bank was satisfied with the alternative employment found for Ms Payne and the offer to pay her wages for the day of the incident. The Akehursts offered to reimburse People Bank for the day’s wages. Mr. Jones testified:

We reiterated Alicia’s request for an apology from the Akehursts. I don’t recall mentioning an apology from Okada. The Akehursts’ position was a legally defensible one: “we didn’t do anything wrong. We had no control over it. We don’t owe her apology.” They weren’t being insensitive, but they were not going to accept responsibility for Okada’s actions.

Following the meeting, they let Ms Payne know about what happened at the above meeting. “We told her nothing we would do would preclude her from going to the Ontario Human Rights Commission. I said we would make the Commission aware of what happened if she wanted us to. She did not.”

Ms Sears, Paul Akehurst and Leeanne Akehurst corroborated the above evidence of what transpired at the meeting. Mr. Akehurst testified that he was surprised because he had “assumed” the matter had been satisfactorily resolved. “I checked the morning after being told and was advised Ms Payne accepted a job so I put it out of my mind,” said Mr. Akehurst.

Post-ICO

Ms Payne was not satisfied with the ICO/COS/Intertask response. She wrote Mr. Akehurst a letter (exhibit 3-10). Mr. Akehurst testified that, “As I was leaving my office around the time of The People Bank meeting, somebody handed me a white envelope with my name on it. This was not unusual. I tossed it in a cardboard box when I got to my office. I didn’t look at it.” He did not read it until he went through papers in Ottawa following the conference and after taking “a long holiday”. He responded in writing to Ms Payne. He was concerned that Ms Payne’s feelings were still hurt and that she had thought he and his organization had done something wrong. Ms Payne was not satisfied with the response. She contacted the Commission and filed a Complaint. She later amended it to include other respondents.

ANALYSIS

Did Otsuka and Okada violate Payne’s Rights under Subsection 5(1): The Prima Facie Case

Based on the findings of fact made earlier, the Board is satisfied that Mr. Okada denied Ms Payne the job of booth receptionist for Otsuka because she is Black, thus violating subsection 5(1) of the Code. A clear prima facie case has been made out. And no justification or defence has been provided by Otsuka or Okada. As noted earlier, they chose not to give or lead evidence or even to file pleadings.

The Board makes its determination, looking at the particular statements individually, and then as an aggregate. The Board finds Mr. Okada was sufficiently proficient in the English language to make his communications (verbal or written) understood and to have understood other people’s communications to him. The Board accepts the evidence that Mr. Okada was surprised, at learning for the first time, that Michelle Gay would not be Otsuka’s booth receptionist, on the morning of June 25, 1994 when he was introduced to Ms Payne. The Board also finds that Ms Akehurst was not aware prior to the day of the incident of Ms Gay not being available. “No, not right girl” underscores Mr. Okada’s surprise and disappointment. The Board also accepts that, like Ms Gay, he wanted to select the candidate, not have one presented to him as a fait accompli. However, he could have gotten over his initial disappointment and considered Ms Payne for the job. The woman Mr. Okada ultimately selected from the Manpower list to work at the booth was also “not right girl” (since it was not Ms Gay) but he chose the person nevertheless. Regarding Ms Payne, he may not have decided to hire her on the spot. He may have asked for “other girls please”. He may or may not have hired her after interviewing other applicants. But he did none of these things. He dismissed Ms Payne outright. He didn’t speak to her or acknowledge her, other than accepting Ms Payne’s handshake. He never asked about her credentials. Had he done so, he would have seen that she was well qualified for the position. The Board also accepts the evidence that he said to Ms Sears something to the effect of “what would Japanese doctors think” and the “company’s image” – implying it would be bad for the company’s image to hire Ms Payne. Why? The Board believes it was because she is Black. She was qualified for the job, presented to Mr. Okada by the same employment agency that presented Ms Gay, whom he hired. Ms Sears told Mr. Okada that Ms Payne had a very good track record with People Bank.

Is There a Human Rights Duty Not to Condone or Further Discrimination?

Ms Payne and counsel for the other parties were unable to produce a precedent directly on point, for a very good reason: there is none. The issue of liability against the Ontario Respondents involves many novel and far reaching issues. Essentially, how far down the chain of discrimination does liability attach? Is there a human rights duty not to condone or further discrimination owed to Ms Payne by the Ontario Respondents? If so, what is the composition of that duty and did they meet it?

The Board finds there is a human rights duty not to condone or further a discriminatory act that has already occurred. To condone or further a discriminatory act would extend or continue the life of the initial discriminatory act. Indeed, it is conceivable that the subsequent discriminatory act or tail-end could be worse in impact than the beginning of the chain of discrimination. The legal duty owed is not just as between employer-employee, service provider-client, landlord-tenant, etc. The obligation extends to those who become involved in a situation that involves a discriminatory act, who, while not the main actors, are drawn into the matter nevertheless, through contractual relations (i.e., the Ontario Respondents) or otherwise.

The nature of when a third party or collateral person would be drawn into the chain of discrimination is fact specific. However, general principles can be determined. The key is the control or power that the collateral or indirect respondent had over the complainant and the principal respondent. The greater the control or power over the situation and the parties, the greater the legal obligation not to condone or further the discriminatory action. The power or control is important because it implies an ability to correct the situation or do something to ameliorate the conditions. Accordingly, on one end of the spectrum of responsibility, an employer has a legal duty to its employees, agents and even to its customers and clients. On the other end of the spectrum, a mere bystander would have no duty to another stranger. A customer generally would have no duty to another customer of its supplier.

The foregoing discussion about a duty is reinforced by four points. First, section 9 of the Code provides, “No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.” [Emphasis added.] Secondly, the Supreme Court of Canada repeatedly has stated the Code should receive a large and liberal interpretation and one which advances the broad purposes set out in its preamble: see Quebec v. Montréal; Quebec v. Boisbriand, 2000 SCC 27, [2000] 1 S.C.R. 665. Thirdly, and consistent with the above, one must remember that the Code is limited in its scope and application: i.e., it applies only to specific social areas, relations and prohibited grounds. As will be seen later in these Reasons, the Board finds that the duty not to have condoned or furthered Mr. Okada’s discriminatory act owed to Ms Payne is grounded in subsection 5(1). Finally, the concept of condonation can be found elsewhere in the Code. The anti-employment discrimination deeming provision in contracts, loans and grants from the Government – a contract compliance mechanism – found in section 26 of the Code speaks to this issue. The Government did not want to be seen as condoning or furthering discrimination with respect to employment by those companies or individuals who received Government grants, loans or contracts. Section 26 will be discussed further in these Reasons. For a useful description of section 26 and contract compliance, including that in the United States, see Keene, Judith, Human Rights in Ontario, 2nd ed. Toronto: Carswell, 1992, at pp. 41-45.

Did the Ontario Respondents Have a Duty to Payne: Her Relationship to the Parties and Subsection 5(1)

The Board heard argument about Ms Payne’s relationship to the various parties and whether the Code is triggered. The Board is satisfied that subsection 5(1) is engaged against all of the Respondents. The Board accepts the evidence of various witnesses that Ms Payne was People Bank’s employee. Clearly she was. She had been hired by People Bank before, and was paid by them. She considered People Bank to be her employer and Mr. Jones and Ms Sears also treated her as such. Indeed, Mr. Jones said he felt a moral and legal obligation to address the incident: e.g., speak to Mr. Okada directly and meet with the Akehursts. Why? Because Alicia Payne was the employee of People Bank. But the analysis of who was caught in the employment web does not stop there.

Notwithstanding the above, this set of facts is unique. Indeed, the employment agency regime is sui generis. A sort of co-employment relationship exists. While Ms Payne could be deemed to be People Bank’s employee, one also may consider Otsuka her prospective temporary employer. Also added was another dimension: Intertask and Leeanne Akehurst interjected themselves into the employment equation right from the start – when Mr. Okada requested help in finding a “young and attractive person” for the Otsuka booth receptionist job and Ms Akehurst agreed and in fact did so.

Ms Akehurst was not a mere “stranger” or uninvolved bystander. Ms Akehurst and Mr. Okada entered into an executory contract, on behalf of Intertask and Otsuka respectively. Ms Akehurst was to help find “a young and attractive person” to fill the position of booth receptionist for Otsuka at the ICO. Ms Akehurst hired People Bank to fill the position. People Bank became Intertask’s agent. Ms Akehurst alone dealt directly with Mr. Okada prior to his arrival to interview Ms Gay. She asked People Bank to find additional candidates after Mr. Okada rejected Ms Payne. She then asked Manpower to do the same. Manpower then became an agent of Intertask. She reviewed the list of candidates with Manpower from their list. She brought them to Mr. Okada, speaking to them in French to ensure that they were fluent in that language. She did these things to fulfill her contractual obligation to Otsuka: to find it a booth receptionist. She also arranged for another job for Ms Payne and offered to pay her day’s wages. The Board is not criticizing her for the job and wage offers. On the contrary, they showed some concern on Ms Akehurst’s part and a positive step in addressing the incident. However, as will be discussed later, these actions alone did not satisfy the duty that the Ontario Respondents owed Ms Payne, in the wake of such serious allegations of racial discrimination.

Regarding Ms Akehurst’s relationship with Mr. Okada and Otsuka, all the written correspondence from Mr. Okada was addressed to Ms Akehurst and vice-versa. Ms Akehurst’s letter to Mr. Okada of March 23, 1994 (exhibit 1-12) is on the Conference Aide letterhead (a related company of Intertask). She wrote:

Mr. Ross forwarded to me your request for a bilingual (English and French) booth receptionist.

As the official convention services supplier to the XXVIIth International Congress of Opthalmology, we would be very happy to provide this service to you for the hours outlined in your fax dated March 22, 1994.

The foregoing clearly shows Ms Akehurst agreed to provide the service Mr. Okada had requested, on behalf of his corporate employer. She also required in that letter that he send a cheque payable to Conference Aide Convention Services for payment, which he did. The March 22 and 23, 1994 letters contain contractual terms and conditions.

As indicated earlier, the Board finds Ms Akehurst entered into an executory contract, on behalf of Conference Aide (Intertask for purposes of this hearing) with Mr. Okada, on behalf of Otsuka. There was an offer, acceptance and consideration (cheque received and deposited). It matters not whether Intertask/COS ultimately received a fee for helping to find the booth receptionist for Otsuka. As far as Mr. Okada was concerned, his company paid US$681.55 for the services of a receptionist. Whether Ms Akehurst, on behalf of Intertask or ICO/COS, took a fee out of the payment (which she did not) or paid it to People Bank or Manpower does not vitiate the consideration - the payment quoted in the letter which was sent and cashed. Ms Akehurst subcontracted the job to People Bank, just as with the other work Intertask hired People Bank to do for the ICO. People Bank was the agent of Intertask.

The Board accepts that Ms Akehurst did this as a favour and courtesy to Otsuka. However, doing a favour or extending a courtesy does not vitiate her contractual relationship with Otsuka and her employment connection with Ms Payne. Neither is it a defence under the Code.

As for COS, it is involved in two ways: Ms Akehurst was the ICO Human Resources Coordinator, and the ICO Secretariat and the Conference itself were the legal responsibility of COS; and Ms Akehurst was an employee of Conference Aide/Intertask which acted as agents of COS. As Mr. Akehurst and Ms Cherla testified, in essence, Intertask was the ICO Secretariat. Mr. Akehurst, President and owner of Intertask and Director of Operations of the ICO, approved of his daughter’s course of action. Indeed, Mr. Drouin, Executive Director of COS, testified that he was apprised of the situation and the recommended course of action. He further averred that, had he so wished, he could have overridden Ms Akehurst’s course of action as supported by her father to ameliorate the problem. He did not do so. Mr. Drouin thought the course of action was appropriate.

Otsuka also had a relationship with Ms Payne, even though they did not hire her. The relationship was not that of a traditional “employer-employee”. But Otsuka, Mr. Okada and the Ontario Respondents were all part of the broader “employment relationship”. In its interim decision in Payne, supra, the Board stated at para. 34:

Section 5(1) reads, “Every person has a right to equal treatment with respect to employment without discrimination because of race…”…Section 5(1) does not state that “no employer shall deny equal treatment to an employee”. Indeed, there is no definition of “employment” in the Code. Rather, section 5(1) involves discrimination “with respect to employment”. “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship.

The Board finds subsection 5(1) caught all the Respondents in the employment web. Ms Payne did not meet Mr. Okada to buy Otsuka products. She did not meet Leeanne Akehurst as a delegate to the ICO. Her interaction with all the Respondents occurred for one reason: she was seeking employment at the 27^th ICO. Their relationship with Ms Payne was “with respect to [Ms Payne’s prospective] employment”. But for her attempt to find employment, she would not have interacted with any of the Respondents.

What were the Ontario Respondents Required to Do to Fulfill Their Duty?

Having found the Ontario Respondents had a duty to Ms Payne not to condone or further Otsuka’s and Mr. Okada’s discriminatory act, what was the nature of said duty? It is commensurate with the Ontario Respondents’ control and power over Otsuka, Mr. Okada, Ms Payne and the situation in general and their ability to remedy the situation. While not a traditional employer-employee situation, the Ontario Respondents had a degree of power or control over the situation and parties, and Ms Payne had a corresponding degree of vulnerability as a contract worker to whatever decisions were rendered. Conference Aide/Intertask, by Ms Akehurst, had contracted with Otsuka, by Mr. Okada, to provide Otsuka with a booth receptionist. Ms Akehurst had the power to terminate the contract for a material breach (i.e., violation of the Code – Ontario’s paramount, quasi-constitutional statute). As outlined earlier, the Ontario Respondents were participants in the chain of events that culminated in Mr. Okada’s rejection of Ms Payne because she is Black. Further, they were principally involved in the events after the discrimination perpetrated by Mr. Okada.

Based on the foregoing, the Ontario Respondents do not fall on the far end of the continuum of a duty owed: e.g., traditional employer-employee relationship. The Board believes though, they did have a duty to investigate the matter in an expeditious and proper way (especially given the serious nature of Ms Payne’s allegations) and arrive at a reasonable conclusion about whether discrimination had occurred. It did not have to be the correct conclusion, although, that would be preferable - just reasonable. They did not even have to arrive at the same conclusion as the Board regarding Otsuka and Mr. Okada, after its long and exhaustive hearing. If they found that discrimination had occurred, they would have had to take reasonable action within their power to remedy the situation. In this particular case, if they had concluded that Mr. Okada had discriminated against Ms Payne, Ms Akehurst could have terminated the contract with Otsuka to provide a booth receptionist. Ms Akehurst and Intertask would not have had to provide additional candidates to him. COS might have taken away his convention credentials or contacted his superiors in Tokyo. However, the Board does not believe that the Ontario Respondents would have been required to find Ms Payne other work or pay for her day’s lost wages. Those actions were thoughtful, but not a legal requirement for the Ontario Respondents. Given the relationship of the Ontario Respondents to Ms Payne, the Board does not believe that it had to meet the more stringent six criteria used in assessing a traditional or direct employer’s response to a human rights complaint as set out in Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd. Inq.).

Did They Meet the Duty?

As indicated above, at a minimum, there was a duty to investigate promptly and properly and arrive at a reasonable conclusion and to take appropriate, reasonable action if they determined discrimination had occurred, commensurate with their control or power over Otsuka and Mr. Okada. The Board finds the Ontario Respondents did not meet their duty owed Ms Payne. Based on what was told to Ms Akehurst by Mr. Okada, Ms Payne and Ms Sears, Ms Akehurst’s conclusion that it had been a “big misunderstanding” and that Mr. Okada did not deny Ms Payne the job because she is Black was unreasonable. Her “investigation” (the Board puts this in quotes to emphasize the tenuousness of using this word here) should have been more extensive and thorough (e.g., she could have asked Mr. Okada why he wouldn’t take Ms Payne instead of providing “other girls” and she could have gotten back to Ms Payne directly). It was a barebones “investigation”.

Both Mr. and Ms Akehurst averred about the “horrible misunderstanding” and “big misunderstanding” respectively. In the Board’s mind, the Ontario Respondents never, during the hearing, explained satisfactorily what was the “horrible misunderstanding”. They suggest that it was Mr. Okada’s shock at hearing that Ms Gay was no longer available. While the Board accepts that the Ontario Respondents honestly believe that, it is not a conclusion that a reasonable person would draw. Assuming Mr. Okada was shocked at seeing Ms Payne because he was told Ms Gay, whom he expected to see, would not be there, his actions and words thereafter were inconsistent with that conclusion. He dismissed Ms Payne outright. Notwithstanding that he was told she was qualified, he did not ask to see her curriculum vitae. He did not ask her a single question, or even acknowledge her. He did not ask Ms Sears about her qualifications in their private exchange. When Ms Akehurst spoke to him, when she asked him if there was a problem, he replied, “no not right girl, not Michelle Gay.” But he clearly was told, more than once, that Ms Gay was no longer available. But instead of considering the replacement (Ms Payne) recommended by the same agency that brought him Ms Gay, he wanted “other girls please”. The Ontario Respondents say that the Board should not conclude from that statement that he was refusing to consider Ms Payne for the job at that point. The Board would have to suspend its disbelief to accept that proposition. Mr. Okada ruled out Ms Payne the minute she was presented to him, and for one reason alone – she is Black, and therefore didn’t fit the “company’s image”.

The Board acknowledges that Ms Akehurst was not present during the initial introduction of Ms Payne to Mr. Okada, the subsequent short conversation between Ms Sears and Mr. Okada, the conversation between Mr. Jones and Ms Sears, and the conversation among Mr. Jones, Ms Sears and Mr. Okada. Nor was Ms Akehurst told of the contents of the conversation among Messrs. Jones and Okada and Ms Sears. Ms Akehurst looked into the matter and executed what she thought was a satisfactory response in the context of a 3,000-plus delegate international convention with over 2,200 exhibitors starting the following day with a myriad of responsibilities for Ms Akehurst as the ICO Human Resources Coordinator. However, she fell below the standard required here and came up with an unreasonable conclusion about what had occurred. Ms Akehurst was involved right from the moment she entered into an executory contract with Mr. Okada. Indeed, had she wrongfully terminated the contract, Otsuka might have sued Conference Aide/Intertask for breach of contract. She cannot “pass the buck” to People Bank. She chose to subcontract the task to People Bank. People Bank was her/Intertask’s agent.

The Board also wishes to make another comment on the foregoing. Ms Akehurst was the ICO Human Resources Coordinator. Paul Akehurst was the ICO Director of Operations. Indeed Intertask and any related companies like Conference Aide were selected by COS, inter alia, because of their expertise in organizing large, international conferences. Mr. Akehurst testified that they had dealt with such “cultural misunderstandings” many times at previous international conferences they organized. Based on this, Intertask and Ms Akehurst should have treated the matter more seriously and investigated it more thoroughly. If this had occurred, the Board is confident that Ms Akehurst would have come to the conclusion that Mr. Okada refused to hire Ms Payne because she is Black. Undoubtedly, she would then have refused to provide further names to Mr. Okada. On one point alone, if Ms Akehurst had asked Mr. Okada, “Why don’t you want to hire Ms Payne?” after dealing with the fact that Ms Gay would not be available, Mr. Okada’s answer (“no, not right girl…”) would not have stood up to scrutiny. Upon hearing his subsequent request - “other girls please” - the reasonable course would have been for Ms Akehurst to have said, “Okay, why not hire Alicia Payne? She’s qualified.”

The Board further finds that Ms Akehurst’s assistance to Mr. Okada in finding other candidates for the Otsuka booth receptionist position condoned or furthered Mr. Okada’s discriminatory act, thus violating Ms Payne’s rights under the Code. Saying that Ms Thorpe of Manpower thought it could have been a “misunderstanding” does not diminish Ms Akehurst’s responsibility. The Board places little weight on the hearsay statement. Ms Thorpe was never called as a witness. At times, Ms Akehurst’s conduct bordered on wilful blindness: i.e., wanting to believe it was a “big misunderstanding”; under-investigating the allegations; and drawing unreasonable conclusions from what was actually presented. It is true that Ms Payne was not “the judge, jury and executioner”, as Manpower’s counsel put it at the motion to add parties. The Board agrees with Mr. Akehurst that they had an obligation to treat both Ms Payne and Mr. Okada fairly. However, the Board finds that the Ontario Respondents failed to treat Ms Payne fairly by not doing a proper investigation, and because of that, drawing the unreasonable conclusion that discrimination had not occurred. Because of this conclusion, they then condoned and furthered the discrimination by not addressing Mr. Okada’s actions and by helping him find another “young and attractive person” to fill the job.

Interim Decision of October 24, 2001

In these Reasons, the Board mentioned its Interim Decision whereupon it added COS, Intertask and Ms Akehurst – the Ontario Respondents. In that Interim Decision, the Board stressed that the threshold for adding parties under section 39 is not onerous and that an “appearance” during a motion may or may not bear out after a full and exhaustive hearing on the merits. At para. 45 of said Interim Decision, the Board wrote:

Again, the Board stresses that it is not making a final determination of liability at this preliminary stage. It may well be that Ms Akehurst did not violate Ms Payne’s rights, did not act in furtherance or condonation of, the discriminatory treatment. Indeed, there may not have been a discriminatory practice by Otsuka and Okada against Ms Payne. All of these issues will be determined after a full hearing on the merits. At this point, it is simply a question of “appearance” of a violation of Ms Payne’s rights.

At the argument of the motion to add parties, the Board only had materials filed on which to rely. There was no viva voce evidence; not even an affidavit from Ms Akehurst. Not unexpectedly, facts came out through viva voce evidence at the hearing on the merits which answered the question of whether the Ontario Respondents had in fact and law, on a balance of probabilities, violated Ms Payne’s rights. In the end, the Board has found that the “appearance” of a violation has in fact been proven. That said, it is also true that an “appearance” of a violation under clause 39(2)(d) does not necessarily mean a determination of an infringement of a right at the end of the day, after a full and exhaustive hearing.

Section 23

Ms Payne argues that Ms Akehurst and Intertask violated section 23 of the Code. That section deals with employment agencies and their responsibilities under the Code. The Board does not find Ms Akehurst and Intertask violated section 23. Section 23 is not applicable to Ms Akehurst and Intertask: neither is an employment agency. While the Board made the comment in its Interim Decision in Payne, supra at para. 44 that, “She [Ms Akehurst] “appears” to have stepped in the shoes of Manpower, acting as a de facto employment agency representative”, that was stated in the context of a motion to add a party. Furthermore, said comment did not suggest that Ms Akehurst and Intertask were employment agencies. Clearly they are not. While their actions shared some similar traits of an employment agency, many key characteristics of an employment agency were absent (e.g., they were not in the business of providing such services; they lacked such expertise; and they did not receive a fee).

Section 26

Ms Payne also claims that COS violated section 26 of the Code. There are no reported cases on this section. The relevant subsections are 26(1) and (3) which read:

(1) It shall be deemed a condition of every contract entered into by or on behalf of the Crown or any agency thereof and of every subcontract entered into in the performance thereof that no right under section 5 will be infringed in the course of performing the contract.

(3) Where an infringement of a right under section 5 is found by a board of inquiry upon a complaint and constitutes a breach of a condition under this section, the breach of condition is sufficient grounds for cancellation of the contract, grant, contribution, loan or guarantee and refusal to enter into any further contract with or make any further grant, contribution, loan or guarantee to the same person.

[Emphasis added.]

Subsection 26(1) deems a condition of non-discrimination in every contract “entered into by or on behalf of the Crown or any agency thereof and of every subcontract entered into in the performance thereof…” Subsection 26(3) provides the sanctions of cancellation of the contract and refusal to enter into any future contract with any party found in breach by the Board. In the case at bar, Mr. Akehurst signed on behalf of ICO the contract between it and the MTCC for the rental of space at the Convention Centre.

The Board notes that the licensee is ICO, which is not a party to the proceeding. This does not dispose of the matter. In the Board’s Interim Decision in Payne, supra, the Board wrote at para. 30:

Counsel for COS/ICO indicates that for purposes of the hearing, his client COS is prepared to accept any responsibility for the actions of ICO. That is so because ICO was a committee of COS, not a “person” under the Interpretation Act, R.S.O. 1990, c. I.11, as amended, [or for that matter a “person” under section 46 of the Code] and indeed it no longer is in operation. This committee ceased operating once the conference ended. The Board accepts these arguments and accordingly, declines to add a non-existent committee as a party.

Clearly MTCC is a Crown corporation and, as such, falls within subsection 26(1). However, that subsection provides that with respect to any contract with the Government, “no right under section 5 will be infringed in the course of performing the contract.” It does not say “no right under the Code…” It must be a right under section 5 (i.e., discrimination with respect to employment) “infringed in the course of performing the contract.” The Legislature could have provided for liability beyond section 5: e.g., “in the course of performing the contract” in the provision of services (section 1). Section 1 would have covered such situations as the rental of facilities, like MTCC in the instant case. Clearly, the Legislature intended to discourage employers contracting with the Crown or its agencies from discriminating against the employers’ own workers. What ICO/COS contracted with MTCC for was the rental of space at the Convention Centre to host the 27^th ICO. The liability of COS in the instant case does not flow from an infringement of Ms Payne’s section 5 right in the performance of the contract: i.e., the rental of space at MTCC. For the foregoing, section 26 is not engaged here.

Intertask’s Alleged Failure to Preserve Evidence

Ms Payne submits the Ontario Respondents failed to preserve evidence in this matter and destroyed certain documents which they knew or ought to have known were relevant to her complaint and these proceedings. Having heard the testimony of Ms Payne, Mr. Akehurst, Ms Akehurst, Mr. Drouin and Ms Cherla on this issue, the Board is satisfied that the Ontario Respondents met their obligation to preserve relevant evidence. Indeed, the Board notes that Ms Downey, the Commission’s investigating officer in this matter, testified that “Ms Akehurst, Mr. Akehurst and Mr. Drouin cooperated in the investigation and answered all my questions.”

Age and Sex Discrimination

The Board wishes to comment on two issues that were not dealt with in the hearing: age and sex or gender discrimination. It was not addressed for the simple reason that neither the Commission nor Ms Payne alleged, and rightly so, that she was discriminated against on the grounds of age or sex.

The issue of sex discrimination first rears its head in Mr. Okada’s initial letter (exhibit 1-11). Mr. Okada writes, “We wish her [booth receptionist] to sit at a reception desk…” [Emphasis added.] Subsequently, in his letter to Ms Akehurst date-stamped March 30, 1994 (exhibit 1-13) he writes, “Since the receptionist will provide the first impression of our booth, image of the personnel naturally holds importance.” He goes on to write, “We would like to meet with the person prior to the term and leave our decision on her till then. We would appreciate a young and attractive person who is positive and cheerful in character. [Emphasis added.]

It appears to the Board from the evidence that all of the candidates presented to Mr. Okada, including Ms Gay and Ms Payne, were women in their 20s. It may be a mere coincidence. The Board appreciates that “young” and “old” are relative terms. Given the evidence before the Board (e.g., the references to “her” in the above letters from Mr. Okada; his subsequent request of “other girls please” to Ms Akehurst following his rejection of Ms Payne; his written request to find “a young and attractive” receptionist; and the actual candidates provided to Mr. Okada), it would not be surprising to learn that Mr. Okada, Ms Akehurst and Ms Sears were not thinking of a middle-aged woman, or young or old man, for the job. Of course, the Board is not making any determination on the questions of age and sex discrimination. The Board’s comments are given as guidance to those who request or perform such services on the need to be cautious and contemplative of the Code when doing so.

REMEDY

Statutory Provision

Subsection 41(1) of the Code gives the Board wide powers with respect to remedy. That subsection reads:

41. (1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,

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

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

The primary purpose of compensation under the Code is to restore a complainant to the position s/he would have been in had the discriminatory act not occurred. The goal is not to punish the respondent. Regarding the monetary compensation part of the restitutive award, the Board is not limited by the dollar amount for loss arising out of the infringement of the right (which includes “general damages” and “special damages”), save for one exception. The only limitation is for damages for mental anguish ($10,000.00): Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297, at para. 43. The Board may also order other restitutive remedies such as reinstatement. The Board is not empowered to make an award of punitive or exemplary damages. The Board may order public interest remedies: e.g., training, creation of an anti-discrimination or harassment policy.

The Board notes that the Commission made no request for remedies, including public interest ones, against the Ontario Respondents, as it took “carriage” of the Complaint against only Otsuka and Okada. Again, this illustrates the awkwardness when the Commission refuses to run its case against certain respondents, even after the Board has added them as parties. Of course, the Board may order any remedies, including public interest ones, it deems appropriate under section 41 of the Code, whether the Commission or the Complainant suggested them or not.

General Damages

In making an award of general damages, the Board generally considers the following factors: the humiliation; the hurt feelings; the loss of dignity and self-respect of the particular complainant; the vulnerability of the complainant; and the seriousness, frequency and duration of the offensive treatment. The emotional stress suffered by the complainant is only properly considered when making an award for the mental anguish component of the damages.

Regarding the effects of Mr. Okada’s discriminatory act on her, Ms Payne testified:

It has changed my life. I had certain goals for myself that I put aside to work on this…Emotionally I am forever changed because of this…I’m not as open as I was…If I hadn’t done this, I might have been so angry. I don’t want to go through life with a chip on my shoulder…At the moment it happened, I was shaken to my very core because it was so unexpected. And yes I have encountered discrimination before. But he was so blatant about it. He didn’t even acknowledge me…I am more cautious now…It affected my confidence most definitely. When someone doesn’t consider your abilities before deciding, how do you have any hope?

The Board accepts the above evidence of Ms Payne.

Ms Payne requests $1.00 in damages for the loss arising out of the infringement of her right. The Commission asks the Board to award $10,000.00 in general damages to Ms Payne, “given the seriousness of Okada’s actions and the immediate and ongoing impact on Payne.” The Board believes an appropriate amount in the circumstances is $5,000.00 against Otsuka and Mr. Okada, jointly and severally. The Board notes that it is not bound in terms of quantum of damages to the amount requested by the Commission or a complainant. The Board appreciates that Ms Payne is only seeking $1.00 in damages for herself. However, general damages for loss arising out of the infringement and aggravated damages for “mental anguish” also carry a public interest component to them: i.e., the public is assured that a complainant is “made whole” from his/her loss. Consequently, the Board awards the amount stated above.

Regarding the damages to be awarded against the Ontario Respondents, the Board believes the quantum should be less than for the initial and principal discriminators: Otsuka and Okada. The whole chain of discrimination would never have occurred had Mr. Okada not refused to hire Ms Payne because she is Black. Mr. Okada is the principal respondent in this case. He and his respondent corporation bear the biggest brunt of the intangible general damages to Ms Payne. Accordingly, the Board awards the lesser sum of $3,000.00 to Ms Payne for general damages, to be paid by the Ontario Respondents, jointly and severally.

“Mental Anguish” Damages

This head of damages is only triggered where the violation was engaged in wilfully or recklessly by a respondent and resulted in mental anguish to a complainant. While aggravating in nature, these damages are not meant to be punitive. This type of award takes into account intangible injuries.

The Divisional Court has defined “wilfully” to require both that the conduct be intentional and the infringement of the complainant’s rights be itself the purpose of the conduct: York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360, at 376. Professor Cumming, then sitting as an ad hoc Board, defined “recklessly” as conduct, which is “such as to evince disregard of or indifference to its consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly”, without regard for the possible injurious impact on the complainant: Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, at D/2198.

The Board adopts the analysis of Vice-Chair DeGuire of what constitutes “mental anguish” in Fuller v. Daoud, [2001] O.H.R.B.I.D. No. 19, at para. 66:

Mental [A]nguish suggests a relatively high degree of mental pain and distress. It is more than mere disappointment, angry feelings, worries, resentment or embarrassment. Yet, it necessarily includes all of the foregoing. It does, however, include mental sensation of pain resulting from painful emotions such as grief, severe disappoint[ment], indignation, wounded pride, shame, despair or public humiliation: (see Black’s Law Dictionary, 6^th ed.). Mental anguish is a subjective suffering that does not require medical proof.

The Board generally considers the following factors in its award for mental anguish: the impact, past and ongoing, of the acts on the particular complainant’s emotional state; the vulnerability of the complainant; and the frequency and intensity of the conduct. There is no requirement that medical evidence be given to substantiate this claim, although it may be useful to the Board.

The Board does not find Mr. Okada’s actions were engaged in “wilfully”. While they were intentional, the Board does not believe that the infringement of the complainant’s rights were itself the purpose of the conduct. However, the Board does find that the conduct was engaged in “recklessly”, evincing a disregard for the consequences of his actions. The Board is also satisfied from Ms Payne’s evidence that she suffered “mental anguish”.

Ms Payne does not seek an award for mental anguish against Otsuka and Mr. Okada. The Commission requests an order for damages for mental anguish in the amount of $10,000.00. In all the circumstances, the Board considers an appropriate amount to be $5,000.00, awarded jointly and severally against Otsuka and Mr. Okada.

Regarding the mental anguish caused by the Ontario Respondents’ condonation and furtherance of Mr. Okada’s discriminatory conduct, the Board finds it was engaged in recklessly: evincing a disregard for the consequences of their actions. This is especially so, given Ms Akehurst’s position as the ICO Human Resources Coordinator: allegations of discrimination as found here are central to the field of human resources. The Board also accepts the evidence that such actions caused mental anguish to Ms Payne. Indeed, it is hard to parse the hurt in this case. Notwithstanding, the Board believes its comments and rationale for a lesser award against the Ontario Respondents also applies to the quantum of aggravated damages here. Accordingly, Ms Payne is awarded $2,000.00 in mental anguish damages against the Ontario Respondents, jointly and severally.

Special Damages

The Commission requests the Board to award the day’s wages to Ms Payne for June 25, 1994 when she was denied the job by Mr. Okada. The day’s wages were offered to her by Ms Sears and Ms Akehurst. COS agreed to pay for it. Ms Payne turned down the offer and does not request it as part of her remedy. Given Ms Payne’s refusal to accept the day’s wages and the fact that it is de minimus in quantum and accordingly does not add to the public interest like the general damages and mental anguish damages, the Board declines to award the day’s wages.

Prejudgment and Post judgment Interest

The Commission avers that it “has no expectation, given Okada’s and Otsuka’s absolute disregard for this hearing, that either respondent would willingly or quickly pay any monetary award, if paid at all.” Consequently, they request both prejudgment and post judgment interest. The Complainant is silent on both requests. The Board agrees with the Commission and awards prejudgment interest on the monetary awards granted against Otsuka and Mr. Okada at the rate specified under the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, to commence from June 25, 1994. Post judgment interest is also awarded at the rate specified under the Courts of Justice Act, to commence thirty days from the date of this Decision.

No one sought prejudgment and postjudgment interest on the awards against the Ontario Respondents. The Board declines to order interest against them.

Public Interest Remedies

Ms Payne requests the following public interest remedies vis-à-vis Otsuka and Mr. Okada:

• Otsuka and Mr. Okada should write the Commission a letter of assurance that they will not engage in discriminatory business practices when in Ontario.

• Otsuka and Mr. Okada should provide the Board with a non-discrimination policy and procedures they would follow in the event that allegations of discrimination arise when they are conducting business in Ontario.

The Commission does not request any public interest remedies. It writes:

Otsuka does not carry on business in Ontario and, therefore, any public interest remedy would be meaningless. Additionally, given the apparent lack of respect for the Board’s process and authority, a letter of assurance or the like, would be futile.

Therefore, the Commission does not seek a pubic interest remedy other than a favourable decision that will send a message that respondents cannot escape liability for discriminatory conduct in Ontario merely by residing outside of Ontario’s borders.

The Board believes that certain public interest remedies need to be made in this case, for precisely the reason the Commission seeks a “favourable decision”: to “send a message that respondents cannot escape liability for discriminatory conduct in Ontario merely by residing outside of Ontario’s borders.” Otsuka, a large Japanese pharmaceutical company, may indeed return to Ontario to do business. Mr. Okada may again travel on business to Ontario. The Board agrees with Ms Payne’s two requests for public interest remedies against Otsuka and Mr. Okada stated above, except the Board orders them to be provided to the Commission and Ms Payne, not the Board. The Board further orders for a period of five years that Otsuka shall give the Commission and Ms Payne one week’s notice of the arrival of any Otsuka representative or Mr. Okada in Ontario for the purpose of conducting business in the province of Ontario, including the attending of any convention, conference or meeting.

Ms Payne requested numerous public interest remedies against the Ontario Respondents. They are as follows:

• They should bear the cost of the Board’s decision being translated into Japanese and copies sent to Otsuka, Mr. Okada and Ms Payne.

• They should post a copy of the Code in a conspicuous place at their respective places of business.

• It shall be a condition of any future contracts entered into by Intertask or COS with Crown corporations that a non-discrimination clause shall form part of that contract.

• Intertask and COS should, with the help of a human rights specialist, develop a non-discrimination policy and procedures and provide Ms Payne with a copy.

• COS and Intertask should host a Board approved information session or workshop about discrimination for all of their employees and officers. This should be followed up by distributing materials that address the issue of discrimination to their employees.

• A written commitment from COS and Intertask to make their anti-discrimination policy known to future participants of similar events.

• Copy of the Board’s Reasons for Decision with their recommendations for preventing similar occurrences at future events should be sent to the International Congress of Ophthalmology. Said recommendations should also be forwarded to Canada’s Department of Foreign Affairs and the Canada Customs and Revenue Agency.

Public interest remedies are designed mainly to ameliorate the discrimination deficit in the present and prevent it in the future. Hence clause 41(1)(a) gives the Board wide powers to “direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices.” [Emphasis added.] Of the public interest remedies requested directly above, the Board orders COS and Intertask to establish written non-discrimination policies and procedures. They should be provided to every employee of COS and Intertask. They shall send the draft policies and procedures to the Commission and Ms Payne for comment and then send a copy of the final version to them too. The Board does not consider Ms Payne’s other requests for public interest remedies necessary or appropriate (e.g., subsection 26(1) of the Code already deems there to be an anti-discrimination condition in every contract with the Crown or its agencies).

CORPORATE LIABILITY

The Board is satisfied from the evidence that Mr. Okada was at all times, as a senior representative of Otsuka, acting in the course of his employment with Otsuka. Accordingly, Otsuka is also liable pursuant to subsection 45(1) of the Code.

The Board is also satisfied from the evidence that Ms Akehurst was at all times, acting in the course of her employment with Intertask/Conference Aide and as ICO Human Resources Coordinator, for COS. Mr. Akehurst was acting in his capacity as ICO Director of Operations and as President of Intertask. Mr. Drouin was acting in his capacity as Executive Director of COS. Accordingly, Intertask and COS are liable for their actions.

ORDER

Having found the Respondents infringed Ms Payne’s right to be free from discrimination with respect to employment based on race, colour, ancestry and ethnic origin, under subsection 5(1), which violated section 9 of the Code, the Board orders:

(1) Otsuka and Minoru Okada shall pay $10,000.00, jointly and severally, in general damages to Ms Payne for her loss of the right to be free from discrimination, including aggravated damages for mental anguish;

(2) the Ontario Respondents (COS, Intertask and Leeanne Akehurst) shall pay $5,000.00, jointly and severally, in general damages to Ms Payne for her loss of the right to be free from discrimination, including aggravated damages for mental anguish;

(3) Otsuka and Mr. Okada shall write the Commission and Ms Payne a letter of assurance that they will not engage in discriminatory business practices when in Ontario;

(4) Otsuka shall provide the Commission and Ms Payne, within three months of the date of this Order, with a non-discrimination policy and procedures it would follow in the event that allegations of discrimination arise when it is conducting business in Ontario;

(5) for a period of five years, Otsuka shall give the Commission and Ms Payne one week’s written notice of the arrival of any Otsuka representative, including Mr. Okada, in Ontario for the purpose of conducting business in the province of Ontario, including the attending of any convention, conference or meeting;

(6) COS and Intertask shall establish written non-discrimination policies and procedures within six months of the date of this Order. They shall provide them to every one of their respective employees. They shall send the draft policies and procedures to the Commission and Ms Payne for comment and then send a copy of the final version to them too; and

(7) prejudgment interest on the monetary award against Otsuka and Mr. Okada only is payable at the rate specified under the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, to commence from June 25, 1994. Post judgment interest is also awarded against Otsuka and Mr. Okada only at the rate specified under the Courts of Justice Act, to commence thirty days from the date of this Order.

Dated at Toronto, this 15^th day of October, 2002.

“Matthew D. Garfield”

Matthew D. Garfield

Chair