HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Clive R. Stephens and Joseph O. Symister
Complainants
-and-
Lynx Industries Inc., Mark Schram and Marjorie Morris
Respondents
DECISION
Adjudicator: The Honourable Alvin B. Rosenberg, Q.C.
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Sharon Ffolkes Abrahams, ) Counsel, and Tess Sheldon, ) Student-at-Law
Clive R. Stephens and Joseph O. Symister, ) On their own behalf Compainants )
Lynx Industries Inc., Mark Schram and Marjorie Morris, ) Pamela Yudcovitch and Respondents ) Maria McDonald, Counsel
INTRODUCTION
1Heard on June 10, 2004; January 18, 19, 20; February 9, 10, 11, 12; April 11, 12; and May 17, 18, 2005.
2The Complainant Clive R. Stephens (“Clive”), filed a complaint on the 5th day of June, 2000 which read as follows:
I am a black person, and I believe that my right to equal treatment with respect to employment without discrimination, and to be free from harassment in the workplace because of race and colour, has been infringed by the above-cited respondents, contrary to Sections 5(1), 5(2) and 9 of the Human Rights Code, R.S.O. 1990, Chapter H. 19, as amended. I believe this for the following reasons:
a. I worked for the respondent company for eight and one half years. My last position was Supervisor of the Shipping Department.
b. To the best of my knowledge, my work performance was good.
c. On/or about January 12, 2000, Mr. Mark Schram took over the responsibilities as Vice President of the plant where I worked, and he became my immediate supervisor. I did not have any problems at work up until Mr. Mark Schram became my manager.
d. Before Mr. Mark Schram took over, I was being supervised by his brother, Jim Schram, for approximately seven years. Sometime in or around 1992, Mr. Jim Schram told me that I did not have to punch the timecard anymore.
e. During the five weeks that I reported to Mark Schram, I was subjected to racial discrimination. On one occasion Mark Schram told me that he could not understand why his brother would give power to Black people.
f. Other incidents included:
Mark Schram consistently swearing at me when speaking to me, yet he did not swear at the White employees
Mark Schram told me that he did not like my hair
Mark Schram asked me where I obtained money to buy such a “crisp” car
Mark Schram blamed me for things which were not my fault and sided with White employees
Racial slurs were written in the washroom
g. On or about February 24, 2000, I was dismissed from my employment. The reason given for my dismissal was that there were customer complaints against me; that I failed to punch my timecard and that I was rude. All these statement were falsified by Mr. Mark Schram.
h. I believe that I was treated differently in the workplace the last five weeks of my employment because I am Black.
i. Further, I believe that my dismissal from employment was unjustified and discriminatory.
3The Complainant Joseph O, Symister (“Joseph, a.k.a. Robert”), filed a complaint on the 7th of June, 2000 as follows:
- I am a black person, and I believe that my right to equal treatment with respect to employment without discrimination because of race and colour, has been infringed by the above-named respondents, contrary to Sections 5(1) and 9 of the Human Rights Code, R.S.O. 1990, Chapter H.19, as amended. I believe this for the following reasons:
a) On or about January 30, 1997, I commenced employment with the respondent company as a Shipper/Receiver.
b) Approximately two years later, I was promoted to Inside Sales by James Schram. I performed my duties without any difficulty for approximately eight months.
c) In or around the third week of January 2000, Mr. James Schram was dismissed by his brother, Mark Schram who took over his duties.
d) I worked with Mark Schram 2-3 days per week for approximately 5-6 weeks until my dismissal.
e) After Mark Schram became my supervisor, he subjected me to differential treatment in the workplace.
f) On or about February 23, 2000, I went to Mr. Schram to discuss some of the problems we were having in the company, and he stated, “How come my brother, James do such stupid a thing to give you black guys so much power in our company? “I let go James and I am going to fire you and Clive Stephen.”
g) On one occasion, I told Mr. Schram that Marjorie Morris, Accounts Receivable, constantly referred to me as “Black asshole”, “little shit” and swore at me. I told Mr. Schram that Ms. Morris’ husband attended at the office and threatened me physically, swore at me and called me “little black asshole”. Mr. Schram did not address these matters but instead sided with Ms. Morris.
h) Mr. Schram accused me of being abrupt with Ms. Morris in the presence of customers. In my termination letter, he stated that I had serious attitude and performance problems. All these statements are false, because I have never been discourteous or disrespectful to customers or co-workers. I was never spoken to about any work-related issues and the reasons given for my dismissal from employment were totally fabricated.
i) I believe that the lack of respect Mr. Schram showed to racial minority employees, caused other employees to display similar demeaning attitudes towards those employees.
j) I am aware that another Black person was also dismissed on February 24, 2000, with almost the exact reasons as my dismissal.
k) I am aware that the company now hires mostly persons of Polish origin.
l) I believe that Mr. Schram subjected me to differential treatment because I am a Black person.
m) I further believe that my rights under the Human Rights Code were violated.
Background Facts
4Lynx Industries Inc. (“Lynx”) is a Canadian Corporation with head office at St. Lambert Quebec. It has branch offices in Mississauga, Ontario; Phoenix, Arizona; Paterson, New Jersey and Archbold, Ohio. Lynx manufactures and distributes garage doors and garage door components. Lynx is a privately owned and family run business. It is at all material times to this complaint owned by Robert Schram Sr. and run by Robert Schram Sr. and Mark Schram (“Mark”).
5Mark’s brother Jimmy Schram (“Jimmy”) was involved with the business until 1999 when he was dismissed by his brother Mark.
6Lynx has been operating in Mississauga since 1992. Prior to the year 2000, Mark worked out of the head office in Montreal and Jimmy was responsible for the Mississauga operation. In January, 2000, Mark became responsible for overseeing the operations in the Mississauga location. Until he was fired by Mark, Jimmy was rarely at the plant and was not properly managing the operation.
7It is the Respondents’ position, that as a result of the lack of supervision at the Mississauga operation, there was serious issues with productivity, profit and customer service in the shipping department, inventory control and employee morale.
8Clive and Joseph (a.k.a. Robert) were terminated from employment on February 24, 2000. The Complainants’ position is that their employment was terminated because they are black.
9The Respondents’ position is that their employment was terminated because of their poor performance and attitude and that their termination had nothing to do with their race or colour.
10The Decision in this matter will turn to a great extent on the question of credibility of the witnesses, however before dealing with credibility, I will review some of the principles of law involved.
11In the case of Basi v. Canadian National Railway Co., 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.) the burden of proof and the order of proof were defined in the following terms:
38474 The burden, and order, of proof in discrimination cases involving refusal of employment appears clear and constant through all Canadian jurisdictions: a complainant must first establish a prima facie case of discrimination; once that is done, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. Thereafter, assuming the employer has provided an explanation, the complainant has the eventual burden of showing that the explanation provided was merely a “pretext” and that the true motivation behind the employer’s actions was in fact discriminatory.
38475 It is therefore encumbent on the complainant, in this case, to first establish a prima facie case: Shakes v. Rex Pak Ltd. (1982), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 at 1002 …
12Although this case refers specifically to a refusal of employment it is equally applicable to other breaches of the Code. In the complaint against Marjorie Morris (“Marjorie”), it is alleged that she called Joseph (a.k.a. Robert) “a little shit” and “black asshole”. If this were a fact, and it was repeated on a number of occasions, it could well give rise to a valid complaint under the Code. However, Marjorie testified that she had never made such remarks and I accept her evidence for reasons detailed later in this Decision. I do not find the evidence of Joseph (a.k.a. Robert) credible and for that reason alone, the claim against Marjorie would fail. Further, if the conduct of Marjorie, as Joseph (a.k.a. Robert) described it, was in fact as he described it, surely others would have heard the racial slurs and testified to that effect. Although the other people in the office testified no one confirmed hearing any such racial slurs.
13A further matter with regard to Marjorie is the allegation by the claimants that she was a directing mind of Lynx and therefore responsible for the actions of Lynx and Lynx in turn was responsible for her actions. I find, however, that she was not a directing mind. Although the word manager was used in connection with her duties and there is no question that she was a bookkeeper with some minor duties as well, she had no input into policies of Lynx or behaviour of others working under her. In fact, no one was under her control as a directing mind.
14In Basi, the Canadian Human Rights Tribunal, at para. 38475, continued:
In an employment complaint, the Commission usually establishes a prima facie case by proving:
a) that the complainant was qualified for the particular employment;
b) that the complainant was not hired; and,
c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.
If these elements are proved, there is an evidentiary onus on the Respondent to provide an explanation of events equally consistent with the conclusion that discrimination on the basis prohibited by the Code is not the correct explanation for what occurred.
15Clearly Mark was a directing mind of Lynx and accordingly Mark and Lynx are responsible for each other’s violations of the Human Rights Code if such occurred. With regard to the dismissal the Complainants have not made out a prima facie case. I accept the evidence of Mark that the dismissals were not at all racially motivated. I find the evidence of the Complainants not to be credible for reasons that I have set out later in this Decision. This is further substantiated by the fact that Mark tried to replace Clive with black persons to take over as the head of shipping. The first black person that Mark wished to offer the position to had left Lynx and was not available. The next two were employees of Lynx who testified that he had offered them the job but for reasons of their own they had refused. These actions of Mark are inconsistent with his being racially motivated for the dismissal of Clive and Joseph (a.k.a. Robert).
16In the case of Ingram v. Natural Footwear Ltd. (1980), 1980 CanLII 3904 (ON HRT), 1 C.H.R.R. D/59 (Ont. Bd.Inq.) the question of what constitutes a prima facie case was dealt with at paragraphs 473 and 474 as follows:
473 In short, the establishment of a prima facie case of discrimination is useful in shifting a burden to the employer to come forward and offer an explanation for the dismissal which is not based on discriminatory considerations. Once the employer has come forward, however, the burden rests with the complainant to prove, on the balance of probabilities, that the explanation put forward is false and pretextual. It is this burden which rests with Ms. Ingram and the Ontario Human Rights Commission in the present case.
474 … Thus, it may be that a particular employer would impose the sanction of dismissal on the basis of misconduct which most or many other employers would penalize in some less drastic way. Such a dismissal, even though it be harsh and even though it be one which could not be upheld under the terms of a typical collective agreement, would be immune from attack under the Human Rights Code, provided that the reasons for the dismissal were completely unrelated to the grounds of discrimination prohibited by the Code. To accede to Mr. D’Oliveira’s suggestion would convert the Ontario Human Rights Code from an anti-discrimination statute to one which generally prohibits harsh or unwarranted dismissal of employees. This is a construction, in my view, which the Ontario Human Rights Code cannot reasonably be expected to bear. I would agree, however, with Mr. D’Oliveira’s submission to the following extent. In a case where an employee has been dismissed on what appear to be rather insubstantial grounds, the employer is more vulnerable to the inference that the grounds put forward as an explanation for the dismissal are, in fact, pretextual. [Emphasis added]
17The possibility of Lynx Industries being in breach of the Code is dealt with in the case of Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.) at para. 22922 as follows:
(4) Where the employer is a corporate entity, and an employee is in contravention of the Code, and that employee is part of the ‘directing mind’ of the corporation, then the employer corporation is itself personally in contravention. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility. See Edilma Olarte et al. v. Rafael DeFilippis and Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 at D/1746. For example, in Cowell and Cox v. Gadhoke and Super Great Submarine et al. (1982), 1981 CanLII 4327 (ON HRT), 3 C.H.R.R. D/609 (Ont. – P.A. Cumming) under the former legislation, the Ontario Human Rights Code, R.S.O. 1980, c. 340 as amended, where the sole managerial employee was guilty of sexual harassment, then the employer corporation was itself personally committing the act of sexual harassment. While they were not necessary facts to the result, in that case the individual respondent was not only the sole manager, but also was the owner (shareholder), a corporate officer, and corporate director. Any one of these factors, coupled with the improper act coming in the course of carrying on the corporation’s business, would have rendered the corporation in personal contravention of sections 4 and 8 of the Code.
For example, in another case under the former legislation, Dhillon v. F.W. Woolworth Co. Ltd. (1982), 3 C.H.R.R. D/206 (sic) (Ont. – P.A. Cumming) where the management in a warehouse “knew, or should as reasonable men acting as management have known, that there was regular, and significant verbal racial harassment” and “did not take reasonable steps to put an end, or at least minimize, the racial abuse” the Respondent corporation was held to be in breach of the Code.
18As I have said Mark was the directing mind of Lynx. However, in the present case it can not be said that there was significant “verbal racial harassment” nor can it be said that Mark knew or should as a reasonable man acting as management have known that there was any such harassment.
19Whether repeated acts are required is dealt with in Dhanjal v. Air Canada (1996), 1996 CanLII 2385 (CHRT), 28 C.H.R.R. D/367 (C.H.R.T.) at paragraphs 204 to 206:
204Two interrelated issues flow from this: must racial harassment involve repeated acts or can it be a single offending act, and how is the seriousness of the humiliation alleged by a victim to be assessed?
205Mr. Pentney, the Commission counsel, conceded to us that harassment is normally repeated conduct. However, he added, relying on the decision of an Ontario tribunal in Bell v. Flaming Steer Steak House (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155, that harassment could be a single act if such act was “extreme” and consequently that proof of a pattern of harassing conduct is not necessarily required in order to establish harassment. The context is therefore very important, he stressed. This position appears to coincide with the case law and authorities.
206Thus, when it takes the form of jokes in bad taste, they must be persistent and frequent to constitute harassment. An isolated racial slur, even one that is very harsh, will not by itself constitute harassment within the meaning of the Act …
20There was a racial slur on the washroom wall in the form of graffiti. The offending graffiti had been placed there before Mark took over full control in management of Lynx. Even if nothing was done about it, it would have been an isolated racial slur within the meaning of the decision quoted above and would not by itself constitute harassment within the meaning of the Code. However, as soon as he became aware of it Mark took steps to have it painted over and to notify employees that anyone guilty of putting graffiti on the company property would be immediately dismissed.
21In the case that has many similarities to the present case it was held in Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.) starting at para. 6680 as follows:
…management would dismiss any employee caught writing on the walls… This despicable practice of racial insults upon the washroom walls is difficult to control, but certainly not condoned by management …
6700 With respect to the verbal remark made to the complainant, the Board stated that it was merely “an isolated offensive outburst” and therefore, in itself, was not a ground for a complaint under the Code …
6703 Thus, it is clear from the Simms case, that verbal abuse in itself can constitute a breach of the Code. The Board held though, that since the remark there was isolated, in the context of an argument and precipitated by the Complainant’s insubordinate behaviour, no breach of s. 4(1) had occurred.
22The Complainants made fun of Marjorie, particularly about her weight and alleged that she smelled and that they would not sit in a chair that she had sat in. They so harassed Marjorie that she was considering quitting. Accordingly even if Marjorie had referred to Joseph (a.k.a. Robert) as a “Black asshole” it would have been in the context of an argument and precipitated by the Complainant’s behaviour and would not be in itself harassment under the Code.
23Counsel for the Commission argues that the Board should consider the similar facts in the two complaints in that they were both black, and both fired on the same day. This is confirmed in Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div.Ct.) as follows:
23154 The fifth point related to similar fact and hearsay evidence. The appellant submitted that the Board erred in law in admitting evidence and in placing excessive reliance on certain similar fact and hearsay evidence. In our view the similar fact evidence admitted by the Board met the standards of admissibility found in Guay v. The Queen (1978) 1978 CanLII 148 (SCC), 42 C.C.C. (2d) 536 and Sweitzer v. The Queen (1982) 1982 CanLII 23 (SCC), 68 C.C.C. (2d) 193. By virtue of s. 15(1) of the Statutory Powers Procedure Act, the Board was entitled to admit and to act on such similar fact evidence and hearsay evidence and did not err in doing either.
24I considered the evidence with regard to Joseph (a.k.a. Robert) and the evidence with regard to Clive to be similar fact evidence for each of the Complainants, both were black, both were fired on the same date, and the grounds for firing in the letters of dismissal were very similar in some respects. However, as I have said, even allowing the similar fact evidence in each case the Complainants have not made out a prima facie case of discrimination.
25The Commission counsel relied on the case of Regina v Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, at 338, a Decision of the Ontario Court of Appeal, for the fact that “wide-spread anti-black racism was a grim reality in Canada and in particular in Metropolitan Toronto”.
26Accepting the fact that wide-spread anti-black racism was a grim reality in Metropolitan Toronto, it does not make Mark or Lynx guilty of anti-black racism unless this is separately proven.
27In upholding a Decision of the Board of Inquiry that Ford discriminated, the Ontario Divisional Court cited the Board’s finding in the case of Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 2) (1999), 1999 CanLII 15056 (ON SC), 34 C.H.R.R. D/405 (Ont. Ct. (Gen.Div.)), at para. 32:
… the company (Ford) should have taken meaningful steps to investigate all sources of the problem. Ford should not have sat back and waited for individual, isolated complaints. The company should have undertaken systemic efforts to develop and advocate company policies against racist language, to root out the offenders and to implement serious and effective measures of deterrence. Its virtual indifference to the racial slurs and graffiti renders the corporate respondent liable for the violations of s. 4(2).
28While the above was an appropriate finding in the Ford case, the present case is not similar. The only criticism that could be made of Mark’s actions with regard to the graffiti is that he did not adequately investigate the source of the graffiti. Even if I found that Mark was guilty of not taking meaningful steps to investigate (which I have not in fact found) this in itself would not be conduct that is in breach of the Code. The present case bears little resemblance to the situation in the Ford case above.
29In the present case the Corporation and Mark Schram took immediate steps to remove the graffiti and to let employees know that anyone putting graffiti on the walls would be instantly dismissed. Ms Abrahams, on behalf of the Commission, argued that the prohibition against graffiti should specifically mention racial graffiti. However, I find that the blanket prohibition against graffiti was all that would be required in that instance.
30The notice could have said racial graffiti will not be permitted and will be grounds for instant dismissal and any graffiti will not be tolerated and will be grounds for instant dismissal. In my view the prohibition against all graffiti accomplishes the same purpose.
31In the case of Smith v Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC), [2005] O.J. No. 377 (Ont. Div.Ct.), the Divisional Court, in overturning a decision of this Tribunal stated in part:
6 We are all of the view that the findings made by the Tribunal, which led it to conclude that Smith was subjected to a poisoned workplace, are inconsistent with the finding that the respondents were not wilful or reckless in their infringement of Smith’s right to be free from the poisoned atmosphere. Those findings of subjection to the poisoned atmosphere were grounded on the failure of an area manager, the directing mind, to do anything about complaints from Smith that he was the victim of racial slurs. The evidence in support of those findings was overwhelming. The Tribunal’s failure to provide a reason for the finding that the respondents were not wilful or reckless is an error of law. See Northwestern Utilities Ltd. v. City of Edmonton, 1978 CanLII 17 (SCC), [1979] 1 S.C.R. 684 at 705; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817; J.M. Evans et al., Administrative Law: Cases, Text and Materials, 3rd ed.; and Section 41 (1)(b) of the Code. On this record, the only finding available to the Tribunal was that the respondents were at least reckless in their infringement of Smith’s right to be free from the poisoned atmosphere. Accordingly, the appeal on this ground must be allowed and the finding that the respondents were not wilful or reckless set aside.
7 Since the complainant’s rights were infringed, at least recklessly, the complainant is entitled to an award for mental anguish and an award of $10,000.00 for mental anguish pursuant to subsection 41(1) of the Code is hereby granted, together with interest in accordance with the Courts of Justice Act.
8 The real issue in the appeal is, therefore, whether the finding that race was not a factor in the dismissal is sustainable. In determining that issue, it is instructive to read the Tribunal’s language in the context of the undisputed facts, the objects of the Code and the difficulty recognized in the case law of proving discrimination.
9 The basis for requiring that race be only a factor in the termination is the recognized difficulty in proving allegations of race discrimination by way of direct evidence. As was noted in Basi v. Canadian National Railway Co. (No. 1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481: Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced.
32Counsel for the Respondents acknowledge at the opening of the hearing that if race was a factor in the termination that the termination would be in breach of the Code. However, the Complainants have not made out a prima facie case that race was a factor and accordingly their actions fail.
33In Smith, the Divisional Court continued:
10 It may also be helpful to bear in mind that the Code is remedial legislation, aimed at remedying the effects of discrimination, not focused on punishing the individuals involved in discriminatory practices. It is not the motivation or knowledge of the employer that is in issue; it is the effect of the discrimination on the complainant. This is highlighted most notably in cases of constructive dismissal, such as Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (S.C.C.).
11 It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd., supra, at para. 14, the court said:
The proof on intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof.
34Accordingly, in examining the evidence in the present case I have not looked for or expected any proof of intent. I accept the evidence of other employees and of customers that the Complainants were making life difficult for other employees and for customers and were not working in furtherance of the company’s objectives. While Clive said that he obeyed Mark’s order to punch a timecard in and out, the records show that he did not. The fact that Mark tried to work with the Complainants to bring their conduct up to appropriate standard in the interest of company operations indicate that there was no discrimination but a wish to further the interest of Lynx through the proper actions of the Complainants.
35The Divisional Court further held in Smith, at para. 24, that, “Where termination occurs within a poisoned work environment a proper consideration of whether the termination was discriminatory requires that it be examined in the context of the poisoned work environment …”
36Commission Counsel also brought to the Tribunal’s attention the book The Colour of Democracy: Racism in Canadian Society, 2nd ed. and referred specifically to the forms of racism on pages 52 and 55:
Because it is an exceedingly complex manifestation of human behaviour, racism takes many forms. The context within which it occurs largely determines the form it takes. In its simplest form, racism has three components: individual, systemic, and cultural or ideological. In individual racism, a further distinction must be made between an individual’s attitudes and her or his behaviour. An individual might hold a set of attitudes about Black People - for example, they are lazy, unmotivated, or slow. These attitudes may remain at the level of thought, or they may result in a certain form of behaviour, such as “everyday racism,” which includes small acts like not shaking a Black person’s hand or not sitting next to a person of colour on a bus.
Everyday racism involves the many and sometimes small ways in which racism is experienced by people of colour in their interactions with the dominant White group. It expresses itself in glances, gestures, forms of speech, and physical movements. Sometimes it is not even consciously experienced by its perpetrators, but it is immediately and painfully felt by its victims – the empty seat next to a person of colour, which is the last to be occupied in a crowded bus; the slight movement away from a person of colour in an elevator; the over-attention to the Black customer in the shop; the inability to make direct eye contact with a person of colour; the racist joke told at a meeting; and the ubiquitous question “Where did you come from?”
37I now deal with the question of credibility. First with regard to Clive. He said:
a) That he was in the same position as Joe Wasowicz. This was not true.
b) That his payment for work was as a salary when it was in fact based on hours worked.
c) He denied that Mark had any involvement in giving him an increase in pay in November of 1999 when the record shows that the raise was given to him by Mark.
d) He denied that Mark had increased his pay to $15 an hour when the records confirm that.
e) In evidence he stated that once Mark told him he had to punch a timecard he did so. However, the records show that he didn’t.
f) Mark discussed problems at the company with Clive but Clive denied any such discussions.
g) Marjorie asked him about missing orders but he denied that.
h) Clive denied that he was friendly with Jimmy but I find that he was friendly and actually from time to time visited him at his boat. Clive denied that he knew that Jimmy was at the plant infrequently in 1999 and I find that most personnel at the plant including Clive knew that Jimmy rarely attended, except to pick up his pay cheque.
i) I find that Jimmy was hard to reach at the end of 1999, Clive denied this.
j) Mark called a meeting to advise everyone that he was in charge. Clive denied knowing that.
k) I find that Clive made fun of Marjorie. He denied that.
l) I find that Clive was uncooperative from time to time with Chinda Vilaisavanh. He denied that.
m) Clive denied that he ever made customers wait unnecessarily but the uncontradicted evidence of Mark and three of the customers demonstrated, and I so find, that Clive deliberately gave many customers a hard time and kept them waiting unreasonably for their merchandise.
38Accordingly I find Clive’s evidence not to be credible and I accept the evidence of Mark with regard to the situation at Lynx. If there was a poisoned workplace it was caused by the actions of Clive and Joseph (a.k.a. Robert).
39Clive and Joseph (a.k.a. Robert) so tormented Chinda and Marjorie to the point where each of them separately contemplated quitting. The change in the atmosphere with both employees and customers after the Complainants were dismissed confirms the evidence of Chinda, Marjorie and Mark with regard to their conduct. The evidence to that effect was uncontradicted.
40With regard to the credibility of Joseph (a.k.a. Robert) Symister:
a) He frequently left his desk and did not answer the pager when he was called and did not take his fair share of the workload to the point where Chinda was distressed.
b) He did not take responsibility for his own attitude towards the work and blamed it exclusively on the number of calls that were being referred to him. This was not the case, he refused to help Chinda even when she was overloaded. He ignored Marjorie when she asked him for assistance or asked him a question. In that regard I accept the evidence of Marjorie.
c) The record shows that Joseph (a.k.a. Robert) received a raise and a bonus at the end of the year 1999 but he denied this.
41Having considered all of the above and having observed Joseph (a.k.a. Robert) give evidence I find his evidence not to be credible.
42With regard to the graffiti on the washroom walls some of which was racial I find that Mark took immediate action when he heard of it and that none of the Respondents were responsible for the racial graffiti.
43With regard to the dismissal I find that the dismissal was not related to any of the grounds of discrimination in the Human Rights Code.
44While the Complainants to succeed had only to show that discrimination was a factor in the firing, I find that it was not. Accordingly, the claims against all three Respondents fail. In view of the result there is no need to have a further hearing on the question of remedy.
Dated at Toronto, this 28th day of June, 2005.
“Signed By”
The Honourable Alvin B. Rosenberg, Q.C.
Member