Ontario Human Rights Commission and Richard Pleasant v. Mainline Manufacturing & Installing Inc., and Robert Greeley, 2005 HRTO 34

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Richard Pleasant

Complainant

-and-

Mainline Manufacturing & Installing Inc., and Robert Greeley

Respondents

DECISION

Adjudicator: Mary Ross Hendriks

Date: September 9, 2005

Citation: 2005 HRTO 34

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

APPEARANCES

Ontario Human Rights Commission ) Brian Smith, Counsel

Richard Pleasant, Complainant ) On his own behalf

Mainline Manufacturing & Installing Inc., ) Cindy Baird, as Agent

and Robert Greeley ) for the Respondents

INTRODUCTION

1Mr. Richard Pleasant (the “Complainant”) is a Black man who alleges that Robert Greeley (the “Personal Respondent”) and Mainline Manufacturing & Installing Inc. (the “Corporate Respondent”) violated his rights under the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). He alleges discrimination based on colour, race and disability.

2The Complainant alleges that the violations of his rights under the Code took place during the course of his employment with the Respondents.

3The Ontario Human Rights Commission (the “Commission”) referred the Amended Complaint, dated September 12, 2003, to the Tribunal for a hearing on the merits on November 27, 2003.

4The Corporate Respondent categorically denied the allegations made by the Complainant that it refused to allow him time off to visit a doctor following a car accident, or that it terminated his employment. The Personal Respondent denied that he uttered a racial slur to the Complainant. The Corporate Respondent denied that it had a poisoned workplace. The Corporate Respondent also denied that it has any liability for the actions of the Personal Respondent, pleading that the Corporate Respondent is a separate legal entity and that the Personal Respondent is merely an independent contractor.

5Rather, the Personal Respondent, the Corporate Respondent and their witness, Keino Mitchell, testified that the Complainant quit his position prior to the occurrence of the Complainant’s car accident. The Respondents believe that the Complainant fabricated these allegations in order to be eligible for accident benefits for lost wages from his own insurer and to make a claim on the ground of disability before the Tribunal.

6The parties pointedly questioned each other’s character and credibility throughout the hearing, and engaged in what Commission counsel aptly termed, “mudslinging.”

7The contested preliminary matters were heard in-person on July 12, 2004, and a letter from the Registrar setting out the Tribunal’s directions was sent to all parties on July 14, 2004. The hearing on the merits was held in Toronto on October 12-15, 2004, November 1-5, 2004, and January 6, 7, 18 and 20, 2005. The hearing took thirteen days, and the Tribunal heard from six witnesses and received 62 exhibits.

8At the conclusion of the oral hearing, the Tribunal provided all parties with the opportunity of making closing submissions orally, or filing any additional final written submissions and authorities, or both, if they so elected. All parties indicated that they would rather make their closing submissions in writing. The Tribunal permitted them to file any written submissions by February 28, 2005, and allowed the Commission until March 7, 2005 to reply to any new issues raised. The Complainant advised the Tribunal that he chose to rely on the Commission’s final written submissions. The Commission filed its Closing Submissions and Book of Authorities on February 7, 2005. The Respondents filed their final written submissions late on March 3, 2005, to which the Commission replied late with permission on March 9, 2005.

PRELIMINARY MATTERS

9On July 12, 2004, on what was originally scheduled to be the first day of the hearing on the merits, several preliminary matters were heard:

(1) The Complainant asked for leave to tape record the proceedings, as an accommodation for his difficulty with note-taking, which was consented to by the Commission and opposed by the Respondents, who viewed it as an attempt to promote racial tension in their office;

(2) The Respondents requested a police officer to be present when Keino Mitchell testified, abandoning their earlier request that he be permitted to testify by telephone. This request was opposed by the Commission, who argued that the allegations made in support of this request were inappropriate as a submission in a letter to the Tribunal, which was not copied to all parties. The Complainant requested that a police officer be present at all times, since he viewed the Respondents’ request as implying that he is a “bad person”;

(3) The Respondents sought to enter a transcript of a tape recording of allegedly threatening telephone messages, to which the Commission objected because of the lateness of its disclosure;

(4) The Commission sought production of all telephone bills, whether for the office telephone or cellular phones, showing incoming and outgoing calls for March 9, 2001. The Respondents opposed this request, particularly where the telephone records belong to third parties who are their customers; and

(5) The Respondents sought copies of tax returns, orders for child support and the criminal record, if any, of the Complainant, in order to impeach his credibility. The Commission objected and argued that those documents have no relevance to the human rights complaint.

10The Tribunal made the following directions in response to these requests:

(1) The Complainant would be permitted to audiotape the proceedings, using his own equipment, in lieu of note-taking, as per the Tribunal’s Practice Direction #2. (The Tribunal notes that at the outset of the hearing on the merits, the Complainant advised the Tribunal that he had changed his mind and no longer wanted to record the proceedings);

(2) The Tribunal agreed to provide a police officer the day on which Mr. Mitchell testified;

(3) The Tribunal indicated that it was prepared to hear all the evidence but would consider the admissibility of the transcript at a later time;

(4) All telephone records of all parties for March 9, 2001 were ordered produced, and the Respondents were directed to ask their customers themselves for copies of those phone records. If those records were not produced expeditiously, the Commission could subpoena them; and

(5) The Complainant’s entire criminal record, if any, was ordered produced. The Complainant’s tax returns and child support obligations, if any, are irrelevant to this matter, and no direction was made with respect to those documents.

11Because of the number of production issues that required resolution, and the additional time involved in obtaining those documents, the hearing on the merits was adjourned until October 12-15, 2004 and November 1-5, 2004.

12The Tribunal notes that the Respondents did ultimately comply with its direction to produce phone records for March 9, 2001, but that the Complainant did not. Counsel for the Commission advised the Tribunal that he had had some difficulty obtaining the phone records from (then) counsel for the Respondents, but that in the end, they did comply with the direction. Counsel for the Commission then added, during the preliminary matters, that he subsequently had difficulty with the Complainant’s unwillingness to provide his telephone records. Counsel for the Commission said that the Complainant had told him that he had two telephone numbers at the time, one being a home number which involved the Complainant’s roommate, and the other was the Complainant’s cell phone number. He said that the Respondents could explore these issues with the Complainant if they chose to do so. The Complainant advised the Tribunal that he could not produce the phone records because they are on a “prepay system” and are unavailable, adding that “Fido doesn’t give phone records.” Finally, counsel for the Commission advised the Tribunal that he had contacted the Homesense, Ancaster location, and a witness advised him that Mainline had been using its 1-800 number from their premises.

ISSUES

13The Tribunal considered the following issues:

(1) Was the Complainant’s right to equal treatment with respect to employment without discrimination based on race and colour infringed, contrary to ss.5(1) of the Code?

(2) Was the Complainant’s right to equal treatment with respect to employment without discrimination based on disability infringed, contrary to ss. 5(1) of the Code?

(3) Was the Complainant’s right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race and colour infringed, poisoning his workplace, contrary to ss.5(2) of the Code?

(4) Did the Complainant quit on Friday, March 9, 2001, or was he terminated on Monday, March 12, 2001?

(5) If any discrimination did take place, who is liable for the infringement?

(6) If any discriminatory conduct did occur in the workplace contrary to section 5 of the Code, did the conduct of the Respondents, subsequent to March 12, 2001 constitute a continuation of such discriminatory conduct?

DECISION

14The Tribunal finds that Mr. Pleasant’s rights to be free from discrimination and harassment in the workplace based on race and colour were infringed at the conclusion of his employment, contrary to subsections 5(1) and 5(2) of the Code. However, the Tribunal dismisses his allegations based on disability, and further finds that he resigned from his employment. The Tribunal finds the Respondents jointly and severally liable to the Complainant for the breaches that occurred.

LIST OF WITNESSES

15The Tribunal heard evidence from six witnesses, being the Complainant, Mr. Pleasant, the Personal Respondent, Mr. Greeley, and Ms Baird as Agent for and the sole Director of the Corporate Respondent, and their other witnesses, as follows:

1. Richard Pleasant, Complainant;

2. Cindy Baird, Agent for the Corporate Respondent;

3. Robert Greeley, Personal Respondent;

4. Troy Moore, witness;

5. Keino Mitchell, witness; and

6. Paul Noseworthy, witness.

16Due to the conflicting nature of the viva voce evidence regarding telephone calls made on March 9, 2001, during the hearing, the Tribunal also directed that Joanne Pullara, the Corporate Respondent’s former receptionist, appear before it to testify as a witness. A Summons to Witness had been previously issued on behalf of the Respondent’s former counsel to compel her to do so. In addition, counsel for the Commission made a number of attempts to contact her by telephone, as did Ms Baird. The Tribunal is satisfied that Ms Pullara chose to ignore the Tribunal’s direction of her own accord, and advised all parties that it would not draw a negative inference against any of them for her failure to appear.

SUMMARY OF EVIDENCE

Richard Pleasant

17Mr. Pleasant is a middle-aged Black man. He grew up in a large family in a small town in Nova Scotia. He has a grade seven education, and experiences some challenges with reading and note-taking. He has improved his ability to read and write by attending an Adult Learning Centre in Scarborough beginning in 2001 and ending in 2004. He said that he ended his studies because he feels he “can’t study properly with the accusations” arising from this case.

18Mr. Pleasant was searching for employment in mid-January, 2001, with his friend Troy Moore, when they dropped by the Corporate Respondent’s office to look up Mr. Pleasant’s old friend, Robert Greeley. Mr. Pleasant had seen a newspaper ad for a job that involved pulling wires at a different company also located in Concord. After he and Mr. Moore left their applications at the other company, which Mr. Pleasant said he had some difficulty completing, they went “down the road” to see their “buddies down at Mainline.” They stopped at a restaurant and bought an extra coffee to take to Mr. Greeley.

19His last job prior to working for the current Mainline was with a roofing company, which ended on November 27, 1997. He testified that he had had a work-related accident in 1997, involving a bad fall on a roof, resulting in injuries to his back, left leg, and arm. He was off work from the time of this accident until he began working at Mainline. Prior to his work at the roofing company, he had worked the nightshift at a poultry company from the late 1980s until 1994, when he lost that job. He said that he worked the nightshift at the poultry company and then would go to Mainline.

Their Friendship

20Mr. Pleasant testified that he had known Mr. Greeley for about twenty years, since they had first worked together at one business, and later, at another company. The first business involved the sale of sewing machines and cutting tables, and the latter involved the installation of monorail systems. Mr. Pleasant said that the “first Mainline” was the monorail business of Mr. Greeley’s and others prior to the incorporation of the current Mainline. He said that the first Mainline was a partnership begun in the late 1970s or early 1980s, formed by former employees of the other monorail company. Mr. Pleasant said that he worked for the previous Mainline, installing pipe and shelving for their clients, off and on for many years throughout the 1980s. During his testimony, Mr. Pleasant wanted to call his previous employer and co-workers from the monorail business he worked at prior to the first Mainline, in order to impugn Mr. Greeley’s character. The Tribunal refused this request, since it ruled that they were not on the witness list and were irrelevant to this matter in any event.

21Mr. Pleasant testified that he knew Mr. Greeley well as a personal friend, and that he and his former wife had lent Mr. Greeley money, when the first Mainline was “in trouble.” Their handwritten loan agreement, “Between: Richard Pleasant…Lender [and] Rob Greeley…Borrower,” dated July 23, 1990, for $5000 at 12% interest was entered into evidence (Exhibit 2). Mr. Greeley repaid the loan. He said that they stayed in touch until 1990.

His Employment at Mainline

22Mr. Pleasant testified that he and Mr. Moore visited Mr. Greeley on Friday, January 15, 2001, brought him a coffee, and when he asked what they were doing in the area, replied that they had filled in applications elsewhere to pull wires. Mr. Pleasant said that Mr. Greeley advised them that he was “pretty busy,” but asked if “we want to come to work for him.” They agreed that he would be paid $15/hour, and would work Monday-Friday, 7:30 a.m. til 5 p.m., with some overtime, but that every second Friday, Mr. Pleasant would leave early to pick up his children from school and keep them over the weekend. They also agreed that because Mr. Pleasant had a car, he could travel between jobs in the surrounding area, such as Ancaster, but that due to his childcare responsibilities, he would not be interested in jobs in Edmonton or Montreal, for example, as he had done in the past. Mr. Pleasant said that Mr. Greeley had assured him that the company was very busy now, that they had “lots of work” and that the “cheques wouldn’t bounce.” However, during cross-examination, Mr. Pleasant admitted that he did not ask Mr. Greeley if Mainline or Mr. Greeley still owed money to employees. In fact, Mr. Pleasant admitted that he borrowed $100 from Mainline on January 25, 2001.

23Mr. Greeley brought out application forms from another office for them to fill in. Mr. Pleasant’s job application form was entered as Exhibit 3, and it indicates a starting date of January 15, 2001, and an hourly wage of $15. His Canada Revenue Agency TD1 E – Personal Tax Credits Return form (Exhibit 4) also indicates that Mr. Pleasant executed the form on January 15, 2001. When he was hired in January, 2001, Mr. Pleasant said that he believed Mr. Greeley was the owner, since he had been the co-owner of the previous Mainline.

24Mr. Pleasant testified that he began working at Mainline, and said, “I started work and it was going good for a while.” He said that he and the other employees received their job assignments from Mr. Greeley, during a meeting held each Monday morning between 7:00 and 7:30 a.m. He said that he would “wait at the shop until Rob comes,” in order to receive his work assignment for the week. He said that Mr. Greeley ran these meetings himself, and that Ms Baird did not attend them. The receptionist, Ms Pollara, also did not attend these meetings.

25Mr. Pleasant testified that he kept time sheets (Exhibit 5) for the period from January 15, 2001 until March 9, 2001, that recorded the time he began and ended jobs, noting whether the work was internal in the shop, i.e. picking orders, shipping and receiving; or working on external jobs, marked with the names of customers. He often went to different locations for different customers during the same week. He said that some of his coworkers did not have automobiles, and so he gave them rides to and from work. When asked during cross-examination if anything had changed at Mainline from the first Mainline, he admitted that he had to fill in timesheets and sign-out sheets, that work orders were now kept, that he had to attend weekly meetings, and that locations “now had drawings.” He also observed new manufacturing equipment, including drill presses, and added that the work now involved drilling, rather than taps and screws.

26Mr. Pleasant maintained in his testimony that he followed all the procedures given to him. He testified that between January and March 2, 2001, Mr. Greeley had not criticized his work and had been “…very happy I was there.” He said that Mr. Greeley was “…happy I put all the hours in” and that the “customers were happy.” These customers were the other businesses that Mainline was providing their services to prior to the Homesense, Ancaster job, which was during the week of March 5 to 9, 2001.

27However, during cross-examination, Mr. Pleasant laughed, and when compelled to answer by the Tribunal, admitted that at another job site for a different customer, for the week ending February 16, 2001, too many holes were drilled, but Mr. Pleasant said that this was essentially his co-worker Tony’s fault. He said that it was Tony and Rob who drew on the floor and drilled the holes. He said, “I didn’t mark up the floor and I didn’t drill the holes.” Although originally he had been asked to supervise that project, saying, “I was in charge to help Tony,” he later added that Tony had been ordered back to the shop. He testified that, “I had to refill the holes with cement the next day and was ordered to take control of the job.” He also said, “I got in trouble but I’m not taking responsibility. Tony was ordered back to the shop by Rob. I was ordered to take over this particular job by Rob.”

Events at the Homesense, Ancaster Location

28The events that gave rise to Mr. Pleasant’s allegations of discrimination began at the job site of Homesense, located in Ancaster. Mr. Pleasant testified that Mr. Greeley had sent him and Mr. Mitchell to this jobsite, and that he picked up Mr. Mitchell on the morning of Tuesday, March 6, 2001 in his station-wagon and drove to this location. He said that Mr. Greeley had given him a blueprint to follow and said that the materials required would be on location waiting for them. He added that he had brought Mainline’s tools with him. He said that it takes about 12 ½ hours to put up a monorail.

29There was a dispute in the evidence between Mr. Pleasant and the Respondents regarding whether or not Mr. Pleasant had drilled too many holes in the floor at the Homesense, Ancaster location. Mr. Pleasant’s evidence was that he had to change the blueprint because there was not enough room left for a skid, due to some pillars that were in the way. He said that both Tom and Mr. Greeley came out at certain points to see how they were doing, but could not recall on which days Mr. Greeley attended on the premises. By Friday, March 9, 2001, Mr. Pleasant said that they had put up the shelving and had put together a table at the location.

Departure from Homesense, Ancaster

30When they were close to being finished the job that day, Mr. Pleasant said that he called the shop at about 4:30 p.m. He tried to reach Mr. Greeley, who was not in, and talked to Ms Pollara, who said that she would try to reach Mr. Greeley. Mr. Pleasant called back, at about 4:45 p.m., and she advised him that she still could not reach him. Mr. Pleasant testified that he told Ms Pollara that if Mr. Greeley was “not here by 5 p.m., Keino and I are leaving.” He said that Mr. Greeley “didn’t show, so Keino and I packed up all the tools and left.” Mr. Pleasant made both of these calls from the phone on the warehouse wall at Homesense, Ancaster, and called the “office” on their “1-800 number.” He did not try Mr. Greeley’s cell phone number. He added that “Keino grabbed a burger, we waited until 5:05 p.m., and he was not there, so we left.”

31Mr. Pleasant was shown the Respondents’ telephone records by Commission counsel. He could not identify them as evidence, since they were not his records. However, when asked if he could have made the first call to Mainline’s 1-800 number from Ancaster at 4:14 p.m. and the second call at 4:36 p.m., he agreed that those times seemed correct.

32The Respondents confirmed Mr. Pleasant’s evidence that those calls were made to the 1-800 number used by their office, and asked the Tribunal not to record their telephone numbers in this proceeding. All parties consented to this request, and the Tribunal agreed not to post them in its decision.

33Mr. Pleasant testified that he and Mr. Mitchell left the Ancaster jobsite, but that he did not return to his home until March 12, 2001. He said that on Saturday, he picked up a telephone message left by Mr. Greeley the night before, which had been recorded on the “house phone” of his roommate. Mr. Pleasant said that Mr. Greeley’s message indicated that he was calling from Homsense, Ancaster to “tell me about the job.” Mr. Pleasant said that between Saturday and Monday, he did not call back Mr. Greeley, but waited until Monday to talk to him. Mr. Pleasant denies leaving any messages on Mainline’s office number on March 9, 2001. Mr. Pleasant denies telling anyone at Mainline, or anyone outside of Mainline, that he quit on March 9, 2001. When asked by Commission counsel if he would have had any reason to quit on March 9, 2001, he laughed and said, “No, things were going fine.”

Car Accident of March 11, 2001

34Mr. Pleasant testified that he was driving his station-wagon when he was involved in a car accident on the evening of Sunday, March 11, 2001. He said that he was in litigation with his own insurer, Kingsway, concerning this accident, and identified his Statement of Claim as Exhibit 6. He testified that the police officer that came to the scene advised him not to drive the car, because it was damaged, but told him to drive it home and call his insurance company. The officer also advised him that he would be charged if he were caught driving the car. Then he testified that the tow-truck driver who came to the scene told him about a rehabilitation centre, and suggested that he have himself checked out there. Mr. Pleasant said that he took the card for the rehabilitation centre, and kept it for the future.

35He testified that he was hurt in this accident, and had pain in his leg and shoulder, on his left side and his back, with tingling sensations at night. He went home on the evening of March 11, 2001, and made himself comfortable. He did not see a doctor that evening.

36Mr. Pleasant testified that on Monday morning, he talked to the rehabilitation centre people, saw his doctor, who put him on Tylenol #3. He said that he could not pinpoint the pain and tinglings he felt on Monday, and “wanted to see the doctor and not speculate.” At this point in his testimony, he added that when he picked up Mr. Greeley’s voice message on Saturday, he found out that he needed him to go back to Ancaster on Monday.

37Mr. Pleasant testified that he called Mr. Mitchell on Monday morning, picked him up at approximately 6 a.m., and went to the shop, arriving at about 6:45 a.m. He said that he wanted to tell his boss about the car accident, and then get the car back home and tell his insurance company, to find out if the car was driveable or not. He said that he did not want to go into work on Monday, but went to take the tools in because they needed the tools for the jobsite.

38Paul, who opens the shop with the key, arrived at about 7:25 a.m., according to Mr. Pleasant. The Monday morning meeting began at 7:30 a.m., and Mr. Pleasant testified that he did not have an opportunity prior to the meeting to advise Mr. Greeley of his accident either before or during the meeting. Once the meeting was underway, he said that Mr. Greeley asked him and Mr. Mitchell to go to Ancaster to do some repairs. He replied, “I’m not going there, I was in a car accident.” He said that Mr. Greeley responded, “Oh, Rick, come into my office for a minute,” and took him to a side office, and that this is “when things happened.” Mr. Pleasant said that they were alone together in that office.

39Mr. Pleasant said that Mr. Greeley came out to see his car, and said, it is “not in bad shape and you can drive it.” Mr. Pleasant said Mr. Greeley told him that there was nothing wrong with him, he could work, and that he needed to finish the job. He said that Mr. Greeley told him the amount of time involved to do the job, drive home and return. He said that Mr. Greeley told him that Homesense was an important job, that Mainline had had the contract for three years, and that he told him to finish the job in half a day, and then go see the doctor. Mr. Pleasant said he replied that he would need more than half a day, and refused to go.

The Alleged Racist Remark

40Mr. Pleasant said that when he refused to go, Mr. Greeley called him, “you stupid airhead nigger” (the alleged “Racist Remark”). He said, “My fist went up.” Mr. Pleasant said that Mr. Greeley replied, “You come near me, the cops will come and get you.” Then he said that Mr. Greeley said, “I’m really sorry, man, it just slipped out.” Mr. Pleasant later said that Mr. Greeley had said, “Oh, Rick, I’m sorry, it slipped out – do the things – do the doctor,” and that Mr. Pleasant then added, “he was ok” when he realized that Mr. Pleasant would not go to Ancaster.

41Mr. Pleasant said, “He agreed that I would go to the doctor to see what is wrong and get back to him.” Mr. Pleasant said he responded, “OK, we’ve been friends for a long time,” and told him that he would bring all the tools in so that Mr. Greeley could check them and sign off. Mr. Pleasant said that this exchange took place in the office and that no one else would have heard it, because the office door was closed and the outer doors were closed. He said, “I brought back the tools to the meeting. He checked off the tool list, said, “See you guys.” Mr. Pleasant said that he did not discuss this incident with the other workers. As he was leaving, his intention was to go see a doctor to find out about his condition.

Other Racist Comments Allegedly Made

42Mr. Pleasant also testified in chief that Mr. Greeley had never said any other racial comments to him prior to the incident, or to others. Mr. Pleasant said that some of the “other guys talk about Blacks and niggers.” However, this was contradicted by his statement in his letter to the Commission, dated November 12, 2001 (Exhibit 24), item #23, where he said, “Several times comments were maid [sic] in a racist manner by Mr. Robert Greeley towards Richard.” When asked during cross-examination what he meant by that statement, he said that Mr. Greeley had challenged him and two other Black workers, one of whom he calls “Buck”, who were moving heavy furniture, with the remark, “Hey man, which one of you Black men can beat us.” He also said that Mr. Greeley had said in reference to Africa, on another occasion, “You’d fit right in there.” Mr. Pleasant became very emotional, and yelled, “People make fun of me all the time. People get in my face.” He then had a further outburst, demanding, “one big trial and one judge, for everybody who hurt me.”

His Lifetime of Experiences with Racism

43Throughout Mr. Pleasant’s life, both in various positions as an adult and as a child in school, he testified that he has repeatedly been called a “nigger.” At a different place of employment, he said that the owner of the business said, “shut your mouth you goddamn nigger” day after day to him, and no one would come forward on his behalf, even though his coworkers had heard these remarks. He cried uncontrollably when he testified that he stayed at this other employer despite these remarks, “because I felt the same thing would happen if I moved to the next place.” He said that he has engaged in fighting over such racist remarks in the past, and that he felt like “hitting people, but I didn’t want to go back to jail, and no one wanted to be a witness.” He also testified emotionally that it was worse coming from a friend, “when they call you names, what kind of friends are we?” When asked why he would want to return to Mainline after Mr. Greeley allegedly called him the alleged “Racist Remark”, he said:

All my life, since I was small, who is a Black man to work for? You’re a Black man. I don’t know what’s the matter with this world. Who am I going to work for? Same thing when I was a kid at school and for the rest of my life. Can’t hit them, because then you’re the guilty one and the cops put you in jail.

Visit to his Doctor

44He testified that he saw his family doctor on Monday, who gave him Tylenol #3. He said that he contacted the rehabilitation centre on Tuesday or Wednesday, as suggested by the tow-truck driver. He said that he had no money and that Tylenol #3 is cheap, whereas a good prescription is expensive.

45Counsel for the Commission asked the Tribunal to accept the clinical notes of Mr. Pleasant’s family physician, without calling the doctor. Counsel for the Commission submitted that since Mr. Pleasant was never cleared to return to work, was not seeking any claim for loss of wages, nor was there any argument being put forward that the respondents failed to accommodate his disability, that the Tribunal could accept these notes only to show that Mr. Pleasant did consult with his doctor and to establish the date of the motor vehicle accident. The Tribunal accepted them on this basis, and entered them as Exhibit 7.

46It is clear from these clinical notes that Mr. Pleasant was in a motor vehicle accident on March 11, 2001, that he saw his doctor, Dr. San-Marina, on March 15, 2001, and that the doctor gave him a prescription for Tylenol #3 with a note “physiotherapy to follow.” He described his injuries as left shoulder pain, elbow pain, headaches, whiplash, and multiple contusions. He said that his doctor referred him for x-rays and ultrasounds, and agreed with the suggestion of the tow-truck driver to go to the rehabilitation centre, and added that he should start exercising and see him in a couple of weeks, and let him know what happens.

47Mr. Pleasant said that his doctor never cleared him to return to work, and that he had to go on welfare. He was sobbing when he testified that he did not tell his doctor that he went back to work in September, 2004, because he needs to work to “take care of the kids…it is better to have one person in pain than three people in pain.”

His Application for ODSB

48Mr. Pleasant testified that he applied for Income Support under the Ontario Disability Support Program Act, 1997, S.O. 1997, c.25, Sched. B (“ODSB”) in November, 2001, because he was unable to work due to chronic pain syndrome, at the advice of his doctor. He identified his own report and the report filed by Dr. San-Marina, both reports dated November, 2001, together as Exhibit 8.

49Mr. Pleasant’s application for ODSB was turned down. When he went to file an appeal, he had difficulty with the paperwork, and was crying as he testified, “I don’t want it and walked out.”

50He went to the Rehabilitation Clinic and was treated by two doctors. Both gave him physiotherapy treatments, which he described in some detail, that included heat pads and special machines. He went there two or three times a week, until his insurer, Kingsway Insurance, would not let him go there any longer. He said he “found out why later.”

Employer’s Confirmation of Income

51Mr. Pleasant testified that both he and Mainline were required to complete some paperwork, in order for him to be covered under accident benefits, the Employer’s Confirmation of Income form, completed by Ms Baird, “CFO”, dated May 7, 2001, which he identified (Exhibit 9).

52Although he says he spoke to Ms Baird about filling in the form, he said that she did not do it right away. He said he went back, because there was a part of the form he had to fill out first, and that he cannot recall the date that he went to Mainline’s office. He said he took the form, went around the corner to a donut shop, “filled in my part,” and took it back to Mainline and left it with Ms Baird.

53Mr. Pleasant testified that Rick Fleury of the Rehabilitation Centre called Mainline on his behalf, as he was not receiving any accident benefits. Mr. Fleury was not called as a witness. Mr. Pleasant said that they told Mr. Fleury that they had already filled it out and sent it in. Apparently, this was untrue, and Mr. Fleury advised Mr. Pleasant that if the insurance company was not paying for his rehabilitation treatments, that he needed to arrange for welfare to pay it, or else his treatments would end. Mr. Pleasant said that his insurer should have provided him with weekly income replacement benefits until he was able to return to work, but that he did not receive them.

54Mr. Pleasant testified that his brother in Nova Scotia and his local MPP, Steve Gilchrist, both assisted him in this regard. Mr. Pleasant identified a letter he received from Mainline, on letterhead, dated March 22, 2001 (Exhibit 10). It stated as follows:

RE: Your returned Insurance payment & service charges

Richard,

Thank you for the print out from your bank showing the returned item. Unfortunately, because your account balance shows you were already in overdraft by $120.59, the cheque that was returned for $144.00 did not make your insurance payment go back.

Due to this, we are not able to reimburse the service charge your insurance company has charged you.

Also, I am in receipt of your insurance form. I will fill out the portion for the employer and as the instructions state, I will mail it directly to the insurance company.

Yours truly,

Cindy Baird

55Mr. Pleasant testified that he quietly sat in Mr. Fleury’s office, while Mr. Fleury called Ms Baird on the speaker-phone, and asked her about the form. He stated that she said that she was trying to “help out” but “there is nothing we can do, because he quit his job before the accident.” Mr. Pleasant said that this was the first time he had heard that the Respondents were alleging that he quit. He felt shocked, because he had been friends with Mr. Greeley for many years, as had his former wife, and they had lent him money.

His Lawsuit Against his Insurer

56Mr. Pleasant commenced an action against Kingsway General Insurance Company, the insurer of his station-wagon, and against the other driver in the March 11, 2001 accident, by way of Statement of Claim, dated February 12, 2003 (Exhibit 6). In this action, he alleged that his insurer denied his application for benefits “based upon false information obtained by Kingsway,” as per paragraph 10 of the Statement of Claim.

57Kingsway filed a Statement of Defence, dated August 21, 2003, denying his allegations.

58While no claim for lost wages was put forward in this case, Commission counsel said that this lawsuit that was properly filed in Superior Court was the result of the false information provided to Kingsway that led to its denial of Mr. Pleasant’s claim. He submits that this evidence supports Mr. Pleasant’s allegation that he was fired, hence his alleged shock at finding out that his insurer was told that he quit.

59Mr. Pleasant testified that he had executed a Partial Release of Accident Benefits Entitlement on October 6, 2003 (Exhibit 12), so that his insurer would cover the cost of his physiotherapy. On January 18, 2005, while canvassing various “housekeeping” matters, counsel for the Commission said Mr. Pleasant and his insurer had fully settled this lawsuit.

Discussion of Bounced Cheque, Unpaid Overtime, and Gas Money

60Mr. Pleasant testified that a paycheque for $144.00 bounced, and that this caused his own bank account to go into overdraft. He said that they should have reimbursed him for the overdraft charge of $50.00. He also said that the Corporate Respondent “banked” his hours, a scheme of smoothing out uneven work-weeks, that he said he never agreed to, and that resulted in his being deprived of overtime pay.

61He made a Claim to the Ministry of Labour (“MOL”), dated January 23, 2001, for $321.15, which included this claim for $50.00 (Exhibit 15), his claim for unpaid overtime, and his claim for gas money. This Claim indicates in his own handwriting that he worked at the Corporate Respondent from January 9, 2001 until March 9, 2001. He gave evidence that after this event, he felt that he needed to take his paycheques to Money Mart to clear them. He provided the Tribunal with an example of a paycheque he took to Money Mart to cash (Exhibit 19). His handwritten statement at the end of this Claim, provides verbatim:

Money owning to me for the falling reason. Seventeen and one-half hours overtime $131.25. Fifty dollars for one bounce cheque and twenty for gas. Thrity nine dollars and ninty cent for cashing cheques at money mart so they would not bounce. Ten cent a k.m. from Scarborough to Hamilton four round trips,800 k.m. at ten cent a k.m. that eighty dollars. It come to $321.15 that is all. The wrong reason for dismissal. [emphasis added]

Witnesses

Grent Main phone number….Tom Main phone number…

Thank you

Richard Pleasant

62When asked what he meant by “the wrong reason for dismissal”, he said, “I didn’t lose my job. I was in an accident, had to be off to see the doctor – I shouldn’t have lost my job. It was the wrong reason for dismissal.”

63Mr. Pleasant identified a form he filled in, dated March 29, 2001 (Exhibit 13), addressed to the Corporate Respondent, which stated that he had spoken with a representative of the Employment Standards Program, MOL, on “March 29/01” and filed a Claim. In this form, he asked for unpaid wages for “3 hours (deduction) + service charge + Gas expense” of $115.00; vacation pay for the period “Jan 16th/01 to March 9th/01”, which he indicated was “4% of Gross Earnings” and Overtime Pay, which he said was “1/2 time for all hours”, worth $131.00. He asked for a response by April 9, 2001, and executed the form. In support of this testimony, Mr. Pleasant also identified a post-it note from Mr. Greeley (Exhibit 22), which states:

Richard

We had to deduct 3 hours off your time sheets for the following:

Ancaster

-1 hr conveyor ht

-2 hr not enough cross beams in post as per instructions

64Mr. Pleasant said that he needed to involve his MPP, Steve Gilchrist, in order to receive his vacation pay and Record of Employment. He testified that he finally received his ROE from the MPP’s office. He also testified that the MPP’s office helped him by “calling welfare” for him, since “welfare needs the details of why you were fired or quit,” and he said that he did not have enough documents. He said that Canada Manpower had rejected his claim, and that he had to take it to welfare, because his pay-stubs did not match up. Mr. Pleasant said that he did not receive the ROE in the mail, nor his outstanding vacation pay, even though they claimed to have sent them in their April letter. He spoke with Jennifer at the MPP’s office, who wrote a note, dated June 11, 2001 (Exhibit 18), after she had spoken with Mainline about vacation pay. That note indicates that Mr. Pleasant was given a choice: he could either have the vacation pay cheque reissued, and Ms Baird would notify the bank and put a stop payment on it and deduct the $7.50 fee, or he could wait three months for her to re-issue it.

65However, during cross-examination, Ms Baird showed Mr. Pleasant the email she had received from Jenna Clark, assistant to Steve Gilchrist, dated June 11, 2001 (Exhibit 26), indicating that Mr. Pleasant had elected to “wait out the three month period and have his vacation pay cheque reissued at the expense of Mainline Manufacturing. ” This email indicates that the ROE had been issued on April 12, 2001. She also showed him her fax message to Jenna, dated May 28, 2001 (Exhibit 27), that indicated she was forwarding a copy of Mr. Pleasant’s ROE. Once she put these records before him, he said, “I remember the cheque now.” He then said he did not receive the ROE until July 20th, when he received his vacation pay. Then he said that even though he had all of this confirmed by the MPP’s office, on May 28th, he was still not sure when he received the cheque. He added, “it took so long to get it.”

66He said he was unsure how he received Mainline’s letter of April 11, 2001, whether or not he received it in the mail or if it went to Rick Fleury.

67Mr. Pleasant identified the letter he received from the Corporate Respondent, signed by Cindy Baird, dated April 11, 2001, to his claim of March 29, 2001 (Exhibit 14). In this letter, Ms Baird wrote as follows:

Richard,

I am responding to your “outstanding claim” dated March 29th. Firstly, Richard let me start by saying how very disappointed and surprised I am at receiving this note. When you were employed by Mainline, effective January 16, 2001, you were very well aware that the job required you having a vehicle. Doing installations requires driving to job sites. These job sites are situated throughout the GTA and surrounding areas. Nowhere in our discussions was compensation for driving to job sites mentioned, nor would it have been agreed to.

• The job that you are claiming “gas expense” for was booked for March 6th, 2 days only, in Ancaster. Given the current financial restraints that you have expressed to Robert and I, Robert Greeley, President, felt that he would give you a gas allowance for this job only. Robert gave you $20.00 cash on March 6th, which would have covered both days. Apparently you asked Robert, and received an additional $15.00 for the second day, March 7th. Certainly it does not take $35.00 gas for travelling to and from Ancaster for 2 days. The fact [sic] you had to return to Ancaster Thursday March 8th and Friday March 9th was due to your errors and the need to correct your mistakes. I do not see how you can possibly claim “gas expense” for your mistakes.
• In terms of your claim of “3 hours deduction”, again Richard this all pertains to the Ancaster job and the number of mistakes you made. When you left the job on Friday, stating to Keino that you quit and could not handle the work, you left the job site unfinished and whatever work was done was still wrong. Robert had to go to the job site on Monday after you came to the shop to return the tools refusing to work and had to spend the next 3 hours fixing your mistakes. The customer was not satisfied with the workmanship provided. Honestly Richard I do not feel that you should have been paid more than the two days that was allotted, however you did put in the hours, so we paid you. The deduction was for Robert’s time (at your wage not his) fixing your mistakes. These mistakes were explained to you on Wednesday March 7th, and repeated to you again on Thursday, March 8th. If you had read the layout and the instructions provided to you, these mistakes would not have happened.
• In terms of the “service charge” you are claiming, I believe I explained this in writing to you with your final pay. Richard, I have apologized for the error with your cheque being returned, however, that was not the reason your insurance payment was returned. According to your own bank statement printed (copy attached) your account was already in overdraft by $120.59 and the insurance payment was $126.74. Therefore, as I already advised you Mainline will not be paying your service charge.
• Your claim for “overtime hours” is also not a valid one. Richard, please remember that you approached Robert and requested to bank your hours, so that in case of a work slow down you would be able to maintain the same pay. This was your suggestion, not ours, and one that Robert and I were not overly comfortable with, but agreed to do so, again due to your financial restraints. Now you are claiming overtime hours? You worked for Mainline a total of less than 2 months, asked to be able to clean the offices, for extra money; shovelled the snow, without being asked, and on company time and asked for extra money. The first day you approached Robert for a job, you asked if we would loan you money. Then your car breaks down and you ask to get your pay in advance. In addition, you do not show up for work, and you ask to leave early alternating Fridays. Richard we have been very accommodating for you, however [sic] am very disturbed at receiving this claim.
• Your vacation pay is enclosed with your ROE form.

I am not in agreement with your claim, and if you cannot see the reasons why, please feel free to take this matter up with the Ministry of Labour. I have attached a copy of your bank print out, given to me by you, as well as the letter I gave to you with your final pay, outlining the reasons that your service charge was not going to be paid by Mainline. If you would like a list of the mistakes from the Ancaster job, I will ask Robert Greeley to write them down and I will gladly forward it to you. I do believe that you were given the necessary tools with which to do the job properly. Mainline has had this contract for 3 years and we have not ever encountered the problems you seem to have had. Even after explaining again and again, you did not correct your mistakes.

We trust that you will govern yourself accordingly.

Sincerely,

MAINLINE MANUFACTURING

Cindy Baird [emphasis theirs]

68When asked why the deductions were made for Rob’s wages (in reference to Mainline’s letter of April 11, 2001), Mr. Pleasant said, “because Rob went to finish the job on Friday and it took him 3 hours to finish the job.” However, when asked by Commission counsel, why earlier, he had testified that he received a telephone message on Friday, March 9th from Rob, saying that there was work left to do and that he would have to go on Monday, Mr. Pleasant then changed his testimony and said that the job was not finished after all.

69Mr. Pleasant also said that he had been left a post-it note by Mr. Greeley concerning the gas money (Exhibit 21), which provides:

Richard

You were given $35.00 for gas. You made 3 round trips from Toronto to Hamilton. My truck did 1 round trip for $10.00. You are paid in full for gas.

Thanks again

Rob

70Mr. Pleasant had testified that he had been upset about not receiving his Record of Employment (“ROE”). He said that he went to his MPP’s office to obtain his ROE and his vacation pay. He said he also spoke to MOL about his unpaid overtime, his vacation pay, his lack of an ROE and the outstanding gas money.

71He identified his ROE (Exhibit 23), dated April 12, 2001, which indicates that the “reason for issuing this ROE” was Code “E,” which means “quit.” It states that his first day worked was January 15, 2001, and that his last day worked was March 9, 2001. His final pay period ended March 16, 2001. The ROE was signed by Joanne Pullara, who failed to appear before the Tribunal although summoned.

72Mr. Pleasant identified a letter sent to the Corporate Respondent by the MOL, dated October 11, 2001 (Exhibit 16), seeking redress of the issues covered by the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), as set out in his Claim. It explained that the MOL lacks the jurisdiction over claims for service charges, gas expenses or traveling expenses under the ESA, but does have jurisdiction to seek recovery for the deductions made from Mr. Pleasant’s pay for allegedly faulty workmanship, “the time it took Robert to repair the errors made by Mr. Pleasant at the Ancaster job,” plus compensation for overtime, since “banked” hours are not permitted by law, and finally, the matter of his outstanding vacation pay. The MOL’s letter suggested that the Corporate Respondent make a payment of $192.56 to resolve the matter.

73Mr. Pleasant identified the letter to him from MOL dated November 14, 2001 (Exhibit 17), settling the matter for $108.00, and terminating its investigation.

Tom and Doug Incident

74Mr. Pleasant alleged that Mainline deliberately avoided the tax authorities by paying people cash or, in the case of Tom and Doug, paying them through Mr. Pleasant. The cheque payable to Mr. Pleasant, dated March 2, 2001 re: February 24, 2001, Tom and Doug was identified by him as the replacement cheque for the $144 paycheque that bounced (Exhibit 11).

Mr. Pleasant’s Significant Outburst

75Mr. Pleasant made a surprising and significant outburst during the testimony of Ms Baird, who was alleging that he had picked up his ROE with the April letter (Exhibit 14), and that all “three cheques were ready on March 16th,” something which Mr. Pleasant contested. He suddenly said, in a jovial, light-hearted manner, “The last day I worked was on Friday, and I didn’t pick them up.” Then he added that the issue was “not getting the proper paperwork when I quit or got dismissed, whatever.”

76When the Tribunal asked him what his use of the word “whatever” meant, he replied, “whatever you say I did.” Then he quickly added, when asked by the Tribunal if he was changing his evidence or being flippant, he said that, “no” he was not changing his evidence. Counsel for the Commission offered the suggestion that perhaps Mr. Pleasant meant the statement hypothetically, as if to say, “If I quit, why wasn’t the paperwork ready?!”

Troy Moore

77Mr. Moore testified as a witness for the Commission and Complainant. He has known Richard Pleasant for about ten to twelve years, having worked together in the roofing industry. He had been laid off his position as a roofer for the winter, when he and Mr. Pleasant went searching for new employment together in January, 2001, in response to an advertisement in the newspaper. They went in person to apply for that position “roughing in” wires, when Mr. Pleasant suggested that they stop by Mainline because “Richard said his buddy owned it.”

78They went to grab a coffee and then dropped by Mainline. The first time they dropped by, Mr. Greeley was not in, but they went back after the coffee, and Mr. Greeley had returned. Mr. Moore said that neither he nor Mr. Pleasant asked for a job, but that Mr. Greeley had been talking about the business, and said that he “needed guys,” and that he asked Mr. Pleasant if he would like to work there. He cannot recall exactly what Mr. Pleasant replied, but said that he agreed to take the job. During this same conversation, Mr. Pleasant then asked if Mr. Greeley would also be able to hire Mr. Moore. He said that he and Mr. Pleasant were hired to work “as of that day.” However, he added that they began the “next day or the following Monday, something like that.”

79Mr. Moore believes the decision to hire him was Mr. Greeley’s, and that he did not check with anyone else, to his knowledge. He does not recall Mr. Greeley making the offer conditional on the approval of Ms Baird.

80He testified that he received paycheques from Mainline, but no stubs, and worked about 8 a.m. to 5 p.m., full-time. He worked in the shop, and did some repairs.

81He worked for Mainline for about one month. He said his employment ended when he called in, spoke to Mr. Greeley, and was told “there was no work.” He did not work for Mainline in March 2001, and has no direct knowledge of whether or not Mr. Greeley made a racist remark to Mr. Pleasant.

82When his employment ended, he said he did not receive any termination pay, nor did he receive an ROE. During cross-examination, when asked if his work status had been set up as “casual labour” he said that he “didn’t know.” He could also not answer whether he had been working a reduced 20 to 30 hour week, or a full-time work week, saying, “I don’t know.” He also could not recall if any source deductions, such as CPP, had been taken off his pay. He confirmed that none of his paycheques bounced.

83Although he believed that Mr. Pleasant received his instructions from Mr. Greeley, he was not certain. He did not hear anyone criticize Mr. Pleasant’s work.

84He attended the weekly Monday morning meetings, and was clear that they were run by Mr. Greeley. These meetings covered, “basically, what we did in the week.” They were held between 8 a.m. and 9 a.m. Typically, the attendees were “the guys in the shop.” He could not recall if Ms Baird attended.

85When asked if he ever heard anyone at Mainline use any racist language, he said he did, and it was “Paul”, who used it in the lunchroom. He heard Paul use the word “nigger.” He said that Mr. Pleasant was in the shop at the time, on the other side of the lunchroom, and may have heard Paul, as well. Ms Baird and Mr. Greeley were “not around” when this happened. During cross-examination, he admitted that he did not report this incident to the office.

Cindy Baird

86Ms Baird testified that she is a fifth generation Canadian, who is committed to fair and equal treatment and considers herself an equal opportunity employer. She said that the majority of her workforce is made up of “visible minorities,” and that she “hired Troy Moore on the spot.” She said that Mainline has not received a single complaint concerning racist remarks. She said she is the President and owner of the Corporate Respondent, and its sole director. She said that she is the only decision-maker for the company.

87She said that she met Rob Greeley, to whom she is married, in January, 1996. He owned Mainline Materials Handling Ltd. She said that when Mr. Greeley owned and operated the previous Mainline, “things were lax.” She said that there were no work orders, no procedures, and staff were paid in cash. From 1996 to 1998, she was involved in the previous Mainline, dealing with tax collectors and creditors, “to keep the business afloat,” and during that period, she lent Mr. Greeley about $40,000. When it filed for bankruptcy, she said, “I lost my money.” In the settlement with the trustees, she purchased the existing assets of the old business and took it as payment in full.

88In November, 2000, she said, Mainline Manufacturing & Installation Inc. was created, which was a “new company, a new concept, and a new director,” herself. As proof of this, she entered into evidence its Articles of Incorporation (Exhibit 29), and a Corporation Profile Report (Exhibit 30), both of which confirm that she is its first and only director, and that its mailing address is in Sutton, Ontario.

89She maintained that the workplace ethics of the previous Mainline “have no relevance to this hearing.” She believed that when Mr. Pleasant approached Mr. Greeley in January, 2001 looking or work, he presumed that “things ran the same way as before, and they do not.” She said that, “these are very personal issues,” and that, “people assume Rob owns Mainline, but this is nobody’s business, and she didn’t feel the need to correct people on what their assumptions were.” She maintained that she has put in procedures and guidelines and oversees all decisions. She stated that Mr. Greeley is not a director, nor does he function as a directing mind, and added that he does not hire or fire personnel.

90Ms Baird maintained that Mr. Greeley’s visibility in dealing with customers is only “due to this industry’s male dominance,” and said that, “…some customers don’t want to deal with me.” She added that most installers only want to deal with a male authority figure. She said that Mr. Greeley is not qualified to handle any matters of administration, including: hiring, firing, payments, and that all personnel, all pricing and all contracts are “through me”. She maintained that anything discussed at a Monday morning meeting “had already been discussed by me and Rob prior to that.”

Mr. Pleasant Approaches Mainline

91Ms Baird testified that Mr. Pleasant and Mr. Moore came into Mainline on January 15, 2001, which was also the first day that Mr. Pleasant worked. She relied on his ROE (Exhibit 23) and his TD1 form (Exhibit 4), to establish the date. She said that at the time, “We weren’t hiring, but because Richard and Rob Greeley were old friends, he came and spoke to me about hiring Mr. Pleasant. He stressed that he had a great number of years of service, that he could go out on service calls, and vouched for him, saying he was a good worker and an asset to the company.” Troy Moore was hired at the same time, because “he was a friend of Richard’s and he had vouched for Troy.” She added, “we thought he’d be alright.”

92She referred to Mr. Pleasant’s time sheets for the first four weeks he worked at Mainline, and testified that he began work on January 16th, in the shop, because they were not busy. She said that, “we got lucky” and had a service call at a customer’s premises early on during his employment. However, she stressed that they kept him busy the third week in the shop, because there was no work for him, and “we wouldn’t have hired anyone else for it,” and certainly would not have paid them $15 per hour to tidy the shop. On the first time sheet, she referred to the notation to “I LAB” which she stated meant “inventory labour,” someone who is “not costed out to any job.” She also explained that the notation “100” was a coded reference to a service call at a client’s premises. Mr. Pleasant had some work on his timesheets that was clearly “costed out” to some of Mainline’s customers.

Mainline’s Complaints about Mr. Pleasant’s Work

93For the week ending February 16, 2001, she said that he had problems at one customer listed on that time sheet, where Mr. Pleasant had made reference to drilling holes in the floor. She said that he made other mistakes at a different customer, too. However, she admitted that she “didn’t see them herself,” and that she was basing her assessment of the quality of his work based on Mr. Greeley’s assessment, “to some extent.”

94She said that during his first four weeks at Mainline, he requested to be paid partially in cash, in order to avoid child support deductions. She said that her answer to this request was, “no” because she has an ex-husband herself who does not pay child support. During Mr. Pleasant’s cross-examination of her, he admitted that he has to pay child support, and asked her if he had requested that she call “the government people” about these deductions. She refuted this sharply, and said, “The Family Support Plan contacts me, I don’t contact the government, and you didn’t ask me to do so.” She added, “the government did not contact me about child support payments and none were taken.”

95She also said that Mr. Pleasant wanted his hours “banked” in order to have a regular paycheque in case there were any “work slow-downs.” She said that Mainline had never done this before, but that they agreed to do it, because they had seen it in other construction companies. She said that they agreed to bank his hours above 44 hours per week, rather than pay him overtime. She referred to his pay-stub (Exhibit 31), which stated, “17.5 hours banked.”

96Ms Baird also testified that by mid-February, 2001, Mr. Pleasant had asked if he could bring in other workers, because he knew people looking for work, and he could be their “contractor.” She said, “no” because of “worker’s comp issues.” She said, “if we have that contractor, we pay them, and they either have WSIB or it is their own responsibility…”

97Ms Baird said that Mainline’s disciplinary measures for Mr. Pleasant’s errors were not written, but verbal, because “he was still on probation.”

Tom and Doug Incident

98She said that Mr. Pleasant brought in workers at one job site on February 24, 2001, even though he had been told not to do so, and they were “Tom and Doug.” She did not visit that job site herself that day, but was told about it by Mr. Greeley, who had told them to leave. She said that despite his refusal to follow her direction, she felt that Tom and Doug “had to be paid.” She said that the cheque to Mr. Pleasant for $144.00, dated March 2, 2001, was for Tom and Doug’s work on February 24, 2001. She admitted that it was a replacement cheque for the first cheque, which bounced.

99Her evidence became more complicated when Mr. Pleasant cross-examined her about Tom and his brother Grant, vis-à-vis February 24, 2001. She testified that Grant was a contractor for Mainline for a short period, and that he submitted invoices for his crew, who were not employees of Mainline (Exhibit 56). She testified that Tom was working for Grant, and not Mainline, and that is why she refused to give Tom a T4 slip. She also submitted a transcript of Tom’s voice messages to Mr. Greeley, which have been transcribed by a court reporter (Exhibit 57). Tom’s voice messages indicated that he disputed the nature of this employment relationship and was considering his own legal course against Mainline.

100Since Tom, Doug and Grant were not called as witnesses and the issue again was simply credibility, the Tribunal ruled orally that whether Tom was or was not an employee of Mainline was not material to this proceeding and asked all parties to proceed.

101Ms Baird testified that Mr. Pleasant was sent to the Ancaster location, “to do a two-day job” at a Winner’s store, called “Homesense.” She said that he was sent there on March 6, 2001, and was supposed to be finished on March 7, 2001. Winners was a major client of the Corporate Respondent in 2001. She said that none of the other contractors had any problems with the Winners stores, describing these jobs as “light labour” and “easy.” She said that when Mr. Greeley arrived on March 7th, to find Mr. Pleasant’s work was incomplete and that he had made some mistakes, Mr. Greeley told him that he had to go back for a third day, on March 8th. Mr. Pleasant also had to go back on March 9th, and he said that the job was finished, but it was not. She said that the problems were addressed with him at the time they occurred. She said that he remained on three-month probation at the time of his resignation.

Her Evidence About His Paperwork

102She testified that Mr. Pleasant’s pay-stubs (Exhibit 31 was a single pay-stub), added together on her accounting package, equalled the total insurable earnings recorded on his ROE (Exhibit 23). She said that Mr. Pleasant disputed this and advised the welfare authorities that his ROE was incorrect, but she referred to the print-out from her accounting package (Exhibit 32), which showed a discrepancy of only $7.50, between his ROE, his pay-stubs and her accounting package.

103She admitted that the cheque for $144.00 bounced (Exhibit 11), but said that the service charge of $50.00 he paid was due to his own overdraft of $120.59 (Exhibit 33), which she maintained occurred prior to the bounced cheque, and so she denied liability for the $50.00 service charge.

104Ms Baird admitted that Mainline deducted 3 hours pay from Mr. Pleasant for the Ancaster job from his final paycheque, as per her letter (Exhibit 13), and the post-it note written by Mr. Greeley (Exhibit 22).

105In terms of covering his gas money, she said that Mainline does not pay gas expenses or car allowance, except where workers are required to go out of town. However, she said that Mainline did pay Mr. Pleasant $35.00 for gas, in two instalments, as a “one time thing.” She said that Mr. Greeley, “paid it out of his own pocket.” However, when shown one of Mr. Pleasant’s paystubs (Exhibit 31), which referred to $400.00 for “car allowance,” she could not say why this had been permitted, and blamed it on her administrative assistant, claiming not to review all paycheques, saying, “no, I trusted her judgment.”

106She insisted that he picked up three cheques on March 16, 2001, being: his cheque for banked hours for $262.50 (recorded in her accounting spreed-sheet Exhibit 32), a cheque for “$1252.50 gross” wages (Exhibit 32), and a replacement cheque for $144.00, dated March 2, 2001 (Exhibit 34). Mr. Pleasant disputed this during his cross-examination of her, stating that their failure to give him his documents, including his cheques and ROE, was the reason he needed to go to MOL and his MPP. She responded, “you had your own reasons for going…” and said that he went to MOL for overtime pay instead of “banked” pay, and for $45.00 for the three hours deducted. She referred to Mr. Pleasant’s MOL claim filed March 29, 2001 (Exhibit 13), in which he claimed for three hours pay, the service charge and his gas expense (which he said was worth $115.00), plus 4% vacation pay, as well as overtime pay (which he said was worth $131.00). She also referred to her response to that claim, being her letter of April 11, 2001 (Exhibit 14), which addressed those issues. The last bullet in her letter of April 11, 2001, stated, “Your vacation pay is enclosed with your ROE form.” It was during this part of the cross-examination that Mr. Pleasant made his “Significant Outburst”, set out in detail in paragraphs 75-76.

107Ms Baird testified that sometime after March 22, 2001, Mr. Greeley called Mr. Pleasant and said that Sections 1 to 3 of the Employer’s Confirmation of Income (Exhibit 9) had not been completed and had to be done first. She referred to a post-it note that Mr. Greeley attached to the form (Exhibit 20), that was attached to the top of the forms, which stated:

Richard

As per the instructions you are to fill out sections 1, 2 & 3. When you have completed this return the form to us and we will complete the rest.

Thanks

Rob

108She said that Mr. Pleasant came in, picked up the forms and that she asked him to take them out of the premises to complete them. He filled in Sections 1 to 3, returned them, and their administrator completed them and they were sent to Kingsway Insurance. She said that the date of the forms is in error, because when the forms went over they were undated, and so the date on the form is the date that Mr. Fleury contacted her. She believes Ms Pollara dated these forms May 7th.

109Ms Baird testified that in mid-April, Mr. Fleury called around the same time that Mr. Pleasant’s insurance forms had been declined, which was four weeks after the accident and about two weeks after they had been faxed over. The cover sheet was entered as evidence (Exhibit 45), but there is no confirmation attached to it. She maintained that the insurance forms were submitted in a timely fashion by the Respondents. During cross-examination, she could not say precisely when that was, but said it was “feasible it happened within three weeks” of the March 11th accident. She disputed the Commission counsel’s suggestion that these forms were not completed until May 7th, which was the date on the Employer’s Confirmation of Income form (Exhibit 9), by saying, “wrong.” Ms Baird understands that the insurance company denied Mr. Pleasant’s claim for loss of income based on the information provided by Mainline that Mr. Pleasant had resigned. She said, “I simply told the truth.” In any event, counsel for the Commission reiterated that no relief was sought with respect to the insurance claim, and said that this line of questioning had to do with credibility.

110Ms Baird testified that she heard from Jenna Clark of the office of Steve Gilchrist, MPP, and noted that all the correspondence between herself and Ms Clark dealt with issues concerning matters such as vacation pay and the ROE, but that there was never any mention of any allegation of racism at the time.

Her Letter of April 11, 2001

111Ms Baird identified a letter that she wrote to Mr. Pleasant, on Mainline’s letterhead, dated April 11, 2001 (Exhibit 14). It was in response to Mr. Pleasant’s claim of March 29, 2001, seeking reimbursement for his gas expenses, reimbursement for the three-hour deduction from his final pay, and reimbursement for the service charge to his bank. She also addressed his claim for overtime, and stated that his vacation was enclosed with this letter, along with his ROE form. Ms Baird said that Mr. Pleasant disputed receiving his last paycheque, and that it had to be re-issued in July, because he did not want to pay the stop payment service charge.

112Her letter describes his departure from Mainline the following way:

When you left the job on Friday, stating to Keino that you quit and could not handle the work, you left the job site unfinished and whatever work was done was still wrong. Robert had to go to the job site on Monday after you came to the shop to return the tools refusing to work and had to spend the next 3 hours fixing your mistakes. The customer was not satisfied with the workmanship provided. Honestly Richard I do not feel that you should have been paid more than the two days that was allotted, however you did put in the hours, so we paid you…

Her Letter of May 25, 2001

113Ms Baird wrote to Rick Fleury of Target Rehab on May 25, 2001 (Exhibit 44 with the Respondents’ handwritten notations on it, reproduced below in capitalized italics, and Exhibit 55, the clean copy). She said that this letter was a “follow up to a phone call” with Mr. Fleury, reiterating what she had already told him. It is reproduced below in its entirety:

RE: Richard Pleasant employment status

Sir,

I am following up with you with respects to the telephone conversations we have had regarding Richard Pleasant and his employment status.

Please be advised that I have discussed this fully with Mr. Robert Greeley and what I have said to you is correct.

The sequence of events leading up to Richard terminating his employment was as follows:

• Richard was doing a small job in Ancaster (near Hamilton) which was to have taken 2 days (March 7 & 8), but due to his errors, he was still there on Friday, March 9th.
• After 4:30 PM March 9th Richard called the office, left a voice mail stating that he was done and “that’s it, I’m not working for you anymore”. “I’ll bring back the tools on Monday”.
• Rob Greeley met with the contractor that was on the job site with Richard on Friday evening and told him at that time that he had just picked up a message from Richard and that Richard said he quit. The contractor also confirmed that Richard had said that he cannot do this anymore, he cannot handle the customers constantly changing their minds, he cannot handle the work.
• Monday March 12th Rob arrived at the office for the weekly staff meeting. Richard was already at the office and in the lunch room chatting. Rob was very surprised that Richard was here, but thought that he may have had a change of mind and wanted to work.
• Rob conducted his meeting, which lasted approx. 10 minutes.
• Richard asked to speak to Rob after the meeting was finished and presented Rob with receipts for gas, wanting to be paid more money than what was already given to him. This is the only reason Richard was at the office so early on the Monday morning. This is the only time anyone can be assured that Rob will be in the office as he is out on sales calls, job sites, etc.
• Richard returned the tools that he had had on the job site.
• Richard was angry that Rob would not give him extra money for gas; Rob had already given him $35.00 for gas, which was not part of his employment and certainly more than was needed.
• Richard was told that the job was not done right. ON FRI There were still several mistakes and that if Richard had any intentions of carrying on with his employment then he needed to go and fix these mistakes, again. MESSAGE LEFT FRIDAY 6:30 PM PER TELEPHONE RECORDS
• Richard said he cannot afford to work, he has no money for gas. He had no intentions of working on Monday, therefore reconfirming the message that he left on Friday that he quit was accurate.
• Richard then informed Rob that he was in an accident the day prior. That does not involve Mainline as he had quit on the Friday March 9th.
• Mainline’s pay schedule was on Friday March 16th. When Richard arrived to collect his cheque, he tried to tell Rob that he really didn’t quit, but he cannot work now because he was involved in this accident.
• March 29th Richard was in contact with Employment Standards Program of the Ministry of Labour and filed a claim for unpaid Vacation Pay, and Unpaid wages. Nowhere in this claim does it state that he wants to work. It only addressed payments due when an employee leaves a place of employment.
• My response dated April 11th clearly reiterates the fact that Richard quit and deals with the unpaid wage and vacation pay issues. At no time since April 11th has Richard contacted my office to dispute the fact that he quit.
• Richard’s ROE (Record of Employment) has been issued and also states “E”, quit.
• The Ministry of Labour sent a letter dated May 4th, outlining one outstanding issue. This issue was not Richard’s termination status.

As you can see Richard’s status as of Friday March 9th was quite clear. Even if you have some questions as to why Richard was at the office so early on the following Monday, everything since that time reconfirms the position that he quit on Friday March 9th.

I can appreciate that you would like to help Richard, however this is what happened. I hope this helps to clear up any questions that you may have in this matter.

Sincerely,

Cindy Baird

Office Manager

114Ms Baird insisted that Mr. Pleasant quit throughout her testimony, and she denied the suggestion that he was not allowed to return to work. Ms Baird testified that Mr. Pleasant’s original Complaint (Exhibit 48) only alleged racism, and that the allegation based on disability was added prior to referral to the Tribunal, without the Commission conducting a further investigation. The original Complaint stated, at paragraphs 1(c) to (e):

(c) On March 12, 2001, I reported to work and informed Mr. Robert Greeley, Owner, that I was in a car accident the previous day and I was going to visit the doctor. Mr. Greeley told me I had to work at the site in Hamilton and I repeated that I was in a car accident and needed to see my doctor.

(d) Mr. Greeley proceeded to invite me into another office and began discussing the work in Hamilton. Again, I reiterated that I needed to see my doctor. Mr. Greeley stated, “You stupid airhead Nigger! You know I’ve had that contract for three years, you have to go back and finish the job or you’re fired!”

(e) On March 12, 2001, Mr. Greeley terminated my employment.

115Her response to the original Complaint was set out on October 16, 2001 (Exhibit 49), which stated, inter alia:

…..

5. Mr. Pleasant was informed at the onset of his employment that a vehicle was required. He was also made aware that Mainline does not pay for mileage. Getting to and from the job sites is the employees’ responsibility, unless travelling outside the Greater Toronto area. The first four (4) weeks was spent working in the shop. The next three (3) weeks was spent doing light local installations. The only travelling Mr. Pleasant did was the last week he was employed. On March 6, 2001 Mr. Pleasant was contracted for a two (2) day job in Ancaster (Hamilton area).

6. Due to Mr. Pleasant’s financial restraints, Mr. Robert Greeley and myself agreed to pay for gas to travel to Ancaster for the two (2) day job. On March 6, 2001, he was given $20.00 cash and on March 7, 2001, he was given an additional $15.00. The job was not completed and when Mr. Greeley arrived on the job site and pointed out all the errors, Mr. Pleasant was required to return and complete the job on Thursday, March 8th. On Friday, March 9th, Mr. Pleasant still was not finished correcting the mistakes and at 4:30 PM he told a fellow contractor that he quit and left the job site. Mr. Pleasant called in to the office and left a voice message for Mr. Greeley stating “I’m finished the job. That’s it, I can’t work for you anymore Robbie. I’ll bring back the tools on Monday.” Mr. Greeley had to personally finish the job on Friday, March 9th.

7. I have attached a copy of a letter sent on April 11, 2001 in response to a form Mr. Pleasant sent with respect to outstanding funds due to him.

8. March 9, 2001 Mr. Richard Pleasant called at 4:40 PM, left a voice mail stating he quits.

9. Sunday, March 11, 2001 Mr. Pleasant was apparently in a car accident.

10. Monday, March 12, 2001 Mr. Pleasant comes in to the shop to return the tools from the job site. Mainline conducts weekly meetings on Monday mornings so all staff and contractors were in the shop. Mr. Greeley arrived and conducted the staff meeting then spoke to Mr. Pleasant. The conversation was again revolved around Mr. Pleasant needing money. He wanted additional gas money for the Thursday and Friday prior and he returned the tools. At no time was there any vulgar, racial disrespectful language at all. In fact, Mr. Greeley completed the job on the previous Friday, so there was no issue of incomplete work, nor was there an issue of his employment.

11. March 17, Mr. Pleasant arrived to pick up his final pay cheque and stated to Mr. Greeley that he didn’t really quit, he just can’t work for a while due to the car accident.

12. Early April I received a telephone call from an insurance rehab company with respect to Mr. Richard Pleasant and his car accident. I followed the proper procedures in filing an Employment Income form as well as notified the insurance company of Mr. Pleasant’s employment status at the time of the accident.

13. At the end of May I received a telephone call from an attorney apparently representing Mr. Pleasant and his claim against the insurance company. I forwarded the documents that were sent to the insurance company. Apparently the insurance company denied his “lost wages” claim due to his employment status at the time of the accident.

14. In June, I received a telephone call from the MPP’s office with respect to Mr. Pleasant. Again I forwarded to them all the documents required.

15. Now in October I received this Human Rights complaint from Mr. Pleasant, claiming Race…

116Ms Baird testified that after 4:30 p.m., the “night-line goes on, and calls go directly into voice mail.” Ms Pollara would have left at 4:30 p.m. on March 9, 2001, and she is probably the person who would have taken the step to activate it at the end of the day. She said that the standard procedure is to activate it when the office closes, which is typically at 4:30 p.m., sometimes at 5 p.m. Once it is activated, calls go directly into voice mail, and the telephone does not ring. She admitted that although the Commission had requested telephone records for several months, the Respondents only produced them when ordered to do so by the Tribunal. Ms Baird stated that she did not hear the message that Mr. Pleasant left Mr. Greeley when he resigned, nor did she save it. Ms Baird also confirmed that she was not with Mr. Greeley when he left voice messages for Mr. Pleasant at 6:30 and at 6:36 p.m. on March 9, 2001, but was basing her evidence on what Mr. Greeley had told her, “…seconds immediately before he contacted Mr. Pleasant.”

117Ms Baird testified that she was not in Mr. Greeley’s office with Mr. Pleasant and Mr. Greeley on the morning of March 12th, 2001. Her evidence is that she did not hear what was discussed. However, she said that her office and Mr. Greeley’s are very close together, and “if there were any disputes, I would have heard.” She cannot recall if Mr. Greeley and Mr. Pleasant stepped out the office at any time.

Robert Greeley

118Mr. Greeley is a middle-aged man, who came to Canada in the late 1960s with his parents from the United States. He was born in Boston but raised in New Jersey before moving to Toronto.

119Although he is Caucasian, he testified that he was “subjected to racism” when he moved to Canada, because of his thick, New Jersey accent. He said he was mocked and called “dumb.” He said that the other “kids had watched TV, and Vietnam was going on,” and called him a “killer” for being an American.

120Mr. Greeley said that growing up, there was also tension within his family, which he had to deal with while being ridiculed at school for his nationality. He was a “C student” and said he struggled to achieve that grade. Growing up in Downsview, in a “multicultural neighbourhood,” attending a “multicultural high school,” and feeling that he was of a “different culture myself,” he accepted it, saying, “it’s not different, this is the way it is.”

121Mr. Greeley said that when his parents divorced after he finished Grade 12, rather than choose with whom to live, he simply moved out and started working.

122He said that he met Mr. Pleasant when he was in his late teens, early twenties, after he finished high school, in the workforce, more than twenty years ago. He described that workplace as being multicultural. Overall, he has worked with Mr. Pleasant “roughly six to eight years.” He said his relationship with Mr. Pleasant had been “good.”

123Mr. Greeley testified that he, along with some other former employees, of this first employer left to “go out as a sub-contractor” but that he “left on good terms.” His business was called, “Mainline Materials Handling Ltd.” It began around 1985 or 1986, and ended in the early 1990s. It was a mono-rail installation business.

124Mr. Greeley said that “things ran loosely there,” with many people being paid in cash at their request, and he said, “I agreed to it – to get the job done, or they wouldn’t work.” However, he said that these lax business practices, “caused a lot of problems” and they went bankrupt. He added that, “I’m not good at paperwork, I’m more nuts and bolts.”

125He said that he had borrowed $35,000 to $40,000 from Ms Baird, and was unable to pay her back, so “everything was signed over” to her and that company went bankrupt.

Mr. Greeley’s Status at the Corporate Respondent

126Mr. Greeley testified that he is not a director of the new business, called “Mainline Manufacturing & Installation Inc.” He said that he is active with sales, and “making sure jobs get done” and described himself as a “sales consultant.” He referred to the “Independent Sales Agent Agreement” between himself and the Corporate Respondent, dated January 1, 2001, executed by himself and Ms Baird, but not witnessed, as evidence that he is only an “independent sales agent” (Exhibit 58). In it, Mr. Greeley is to be paid 4% commission for the sales that he makes, and he testified that he is not given any salary, or hourly rate of pay as compensation. When asked during cross-examination why Ms Baird’s letter of April 11, 2001, stated, “…The deduction was for Robert’s time (at your wage not his) fixing your mistakes,” his only response was, “I can’t comment on that.” Moreover, Mr. Greeley said that he receives his sales commission for “overseeing” projects, as well as bringing in business, even if the business came in without any sale being made on his part. He also admitted that although Ms Baird describes him as an “average employee,” he is the only employee or contractor at Mainline who brings in new business, and he is “not aware” if there are any others who are compensated in this manner.

127During cross-examination, counsel for the Commission showed Mr. Greeley the response of their former counsel to the Commission’s Director of Mediation and Investigation (Exhibit 53), in which he was described as the “Respondent’s agent” in paragraph (r) on p.4. He agreed with this statement, but added it was their former counsel that had drafted it. Mr. Greeley also admitted that he is the only employee or contractor who has his own office, and that his office is beside Ms Baird’s office.

References to the “President” of Mainline

128When Commission counsel put it to Mr. Greeley that in 2001, that Ms Baird had held him out to be the “President” to potential investors, and was asked if he had been aware of that, he said he was “not sure.” When asked if he had been aware that Ms Baird had referred to him as the “President” in her letter to Mr. Pleasant of April 11, 2001 (Exhibit 14), he responded, “I had nothing to do with that letter, so right at that point, I didn’t know about this.” When asked if he and Ms Baird had ever discussed any references to him as the “President” he said he “didn’t recall.” He testified that if this was done, it was done without his knowledge. He stated, “It’s just a title, I’m not the President…my job is to bring in the sales, and I have nothing to do with the structure of Mainline.”

129In terms of managing others, Mr. Greeley testified that while he makes recommendations on the hiring and firing of staff to Ms Baird, his function is sales and installations. He said, “All I can do is suggest that they are handy with power-tools, based on past experience.” He added, “I recommended Richard Pleasant because of the past, because he knew the terminology, the service work, how to do installations and what consists of installations.”

130However, during cross-examination, he admitted that if he saw someone performing poorly at a job site, “I’d pass that information on.” Later on, he also admitted that while he does not watch over the other employees, he does “periodically check in to see how the guys are doing” and that he reports back to Ms Baird, the “good news on job sites.” Moreover, he admitted that in terms of hands on experience with installations, he “definitely” has more experience than Ms Baird. It was also Mr. Greeley’s evidence that he was the one who reported to Ms Baird that Mr. Greeley had drilled too many holes on a particular job site. When asked if any other employees or contractors report the mistakes of others to Ms Baird, he said, “it’s possible.” When asked if any other employees of Mainline give gas money to their coworkers besides himself, he replied, “not that I’m aware of.”

131Mr. Greeley admitted that he and Ms Baird “spoke about” whether or not to “bank” Mr. Pleasant’s hours, as noted in Ms Baird’s letter of April 11, 2001, on p.2, where it stated that, “This was your suggestion, not ours, and one that Robert and I were not overly comfortable with, but agreed to do so, again due to your financial constraints.” Rather than see this discussion with Ms Baird as managerial in nature, he testified that it took place simply because, “Richard was a friend.”

132In terms of the preparation of work proposals where Mainline quotes on the cost of a project, he said that he prepares them in consultation with Ms Baird. He said that she prepared the proposal for the Ancaster job site herself. Counsel for the Commission asked why this proposal was never produced, and the Corporate Respondent asked that it not be made part of the record, because it contained competitive costing information. A direction was made that it would be inspected by the Tribunal, only to determine the number of hours to be worked in that estimate, and that it would not form part of the record of this proceeding.

How Mr. Pleasant Went to Work for the Corporate Respondent

133Mr. Greeley testified that Mr. Pleasant had been out looking for work, since things had been slow at the roofing company and there was no work.

134Mr. Greeley said that in terms of paying travel expenses, they would only pay for out-of-town jobs that require an overnight stay, and that would be a “per diem kind of thing,” but did not discuss any other kind of travel expenses.

Hiring Mr. Pleasant

135Mr. Greeley testified that he did not hire Mr. Pleasant on his own accord, but had a brief meeting with Ms Baird. He said he recommended him, especially to perform service calls. Mr. Pleasant was hired as an installer, but there was no installation work when he was hired. He said Mr. Pleasant had not told him that he was off work due to an injury, and only said he was doing roofing. He said this work was slow, and he was looking for other employment. He began the next day.

136Mr. Greeley testified that Mainline tells its workers that they must get to and from job sites on their own. They can talk to each other and make “other arrangements” but that they are responsible for their own travel.

137Mr. Greeley said that Mr. Pleasant had drilled too many holes in the floor at one customer’s location, in mid-February 2001. They put lines on the floor to denote where the “monorail goes,” not the actual posts, and Mr. Pleasant had “way too many holes drilled.” Tony was taken off the site to do manufacturing work in the factory, but Mr. Greeley says that was for a “different reason.” When asked why Mr. Pleasant was sent to three different Winners/Homesense locations after they were having difficulty with his performance, particularly with drilling too many holes in the floor, Mr. Greeley said that he and Ms Baird had had a “…discussion, and were sure that Richard only needs to concentrate more, because he knows what the job entails, and he hasn’t been doing it for awhile...”

138On February 24, 2001, at a different customer’s location, Mr. Greeley said that Mr. Pleasant had asked to be sent to that location, for a “tear down.” He said that when he arrived at this particular site, there were people on the site who had not been authorized to be there and “didn’t work for Mainline.” He said he immediately called Ms Baird, and she explained to him that if they were not authorized to be there, they had to leave the site. Mr. Greeley asked them to leave and said to Mr. Pleasant, “Hey Rich, just don’t let it happen again.” He testified that the Corporate Respondent had “a new process, no big deal,” but that non-employees could not be on the site, “for insurance purposes.”

Tom and Doug Incident

139During cross-examination, counsel for the Commission put to him that Ms Baird had testified that these two workers were “Tom and Doug” and asked if he agreed with that statement. He responded that he was uncertain of the names of the people who were sent home. When asked about Mr. Pleasant’s evidence that he had provided the full name and telephone number of “Tom” to him prior to his arrival at that job site, and that Mr. Greeley had made arrangements for him to work there, he responded that Mr. Pleasant had failed to ask him, and that if he had done so, they would have been told to go to Mainline’s office and fill in an application form and have an interview.

Events at the Homesense, Ancaster Location

140Mr. Greeley testified that the job site in Ancaster should only have taken two days to complete, because he sent a “couple of people to install.” He said that there were several delays with this installation, “due to not having the level of the shelving correct.” He explained that the issue, in particular, was related to installing shelves at the correct height. Since the shelves were meant for merchandise, having the heights set at the correct level was key. The job was not complete, and “by Friday, it’s gotta be done.” They were very close to being finished. He said that he “checked in with Richard in the morning,” whom he said advised him that things were “ok, and that it was going to be done.”

Mr. Greeley’s Evidence that Mr. Pleasant Quit

141Late Friday afternoon, Mr. Greeley said that he “checked for messages,” and found a voice message from Mr. Pleasant, stating, “Robbie, I quit. I’ll finish the job, I can’t work for you anymore and I’ll bring back the tools on Monday.”

142Mr. Greeley said that he called Ms Baird right away to advise her that Mr. Pleasant had just quit. He said that she replied that, “You’ve got to finish it tonight, because they are receiving merchandise on Saturday.”

143Mr. Greeley said that he then called Mr. Pleasant and left him a voice message in which he said, “…the job isn’t finished. You’ve got to go back and finish the job tonight,” and asked him to call back and confirm that he was going back. Mr. Greeley said that he thought to himself that, “it was Friday night and he’s quit, and he won’t do it,” so he called him back and said, “forget about it, I’ll do it myself.” He said he called Ms Baird again, and told her that he needed to see Mr. Mitchell “and give him some money,” and after this discussion, they hung up. He then called her again, and said, “I’m going to go and finish the job.” He went to Toronto, and called Mr. Mitchell to “let him know I’m on my way because I’ve got to head out again.”

Meeting with Mr. Mitchell

144Mr. Greeley testified in chief that he met Mr. Mitchell in Mr. Mitchell’s truck, at a shopping mall. He asked Mr. Mitchell if the job had been completed, and he said, “no” and explained that different levels and pieces were missing that still had to go up to complete the shelving. Mr. Greeley said he responded by saying, “Great, I’ve got a voice message here that Richard quit.” Mr. Mitchell allegedly replied that he was not surprised to hear this news, since he was “there when Richard made the call.”

145When asked why he met with Mr. Mitchell on a Friday night, when inconvenient, he said that he owed him a “cheque” which was a “replacement” which had been “promised to Keino for Friday.”

146Mr. Greeley said that Mr. Mitchell described what had to be done at the Ancaster job site to complete the work, and that he left Mr. Mitchell, called Ms Baird, and said that he “had to go to complete the job.”

His Evidence About the Telephone Records

147Mr. Greeley testified at length about telephone records, call by call, a record made from “fido,” and addressed to the Corporate Respondent as its “customer account” for March 9, 2001 (Exhibit 43), as follows:

#499, from Hamilton to Thornhill, at 17h45 (5:45 p.m.), 1 minute, 54 seconds – Mr. Greeley testified that this is the telephone number used to check messages at Mainline from an outside line. Mr. Greeley said that this was the voice message left by Mr. Pleasant saying that he quit.

#500, from Hamilton to Sutton, at 17h47 (5:47 p.m.), 4 minutes, 5 seconds – Mr. Greeley said that this was his next call to Ms Baird, advising her that Mr. Pleasant had quit and that the job at Ancaster was not complete. He said Ms Baird agreed he should “go see Keino and then finish the job.” He said he was in transit while making these calls.

#501, from Hamilton to Sutton, at 18h20 (6:20 p.m.), 9 minutes, 19 seconds – Mr. Greeley identified this as another call to Ms Baird. The telephone number is the same as call #500.

#502 – from Hamilton to Toronto, at 18h30 (6:30 p.m.), 1 minute, 50 seconds – Mr. Greeley said that this was his message to Mr. Pleasant to “finish the job tonight and call me to confirm that you are on your way back.”

#503 – from Hamilton to Toronto, at 18h36 (6:36 p.m.), 51 seconds – Mr. Greeley said this was his next message to Mr. Pleasant saying, “forget it, don’t bother.” The telephone number is the same as call #502.

#504 – call received to Hamilton, from unknown location, at 18h46 (6:46 p.m.) no telephone number recorded – 2 minutes 48 seconds. Mr. Greeley does not recall the particulars of this call.

#505 - from Hamilton to Sutton, at 18h49 (6:49 p.m.), 4 minutes, 21 seconds – Mr. Greeley said he called back Ms Baird. The telephone number is the same as calls #502 and #503.

#506 - from Hamilton to Toronto, at 18h54 (6:54 p.m.), 4 minutes, 25 seconds – Mr. Greeley said it was his call to Mr. Mitchell.

#507 – from Toronto to Toronto, at 20h18 (8:18 p.m.), 11 seconds – Mr. Greeley said it was another call to Mr. Mitchell, telling him to meet him in the parking lot of the mall. The telephone number matches call #506.

#508 – from Toronto to Sutton, at 20h43 (8:43 p.m.) – Mr. Greeley said it was his call to Ms Baird to say that he was on his way “back to the site.”

His Trip to Homesense, Ancaster on Evening of March 9, 2001

148Mr. Greeley testified that when he arrived at this job site, he found that the conveyor was not anchored down, and some nuts and bolts were missing. He also said that the shelving levels were not in the correct place, and that the site needed a “clean up, generally.” He described in detail what was involved in finishing the shelving project and the conveyor work, and attaching the connecting piece, which he completed that evening. He said that he “finished the job, went home and had a relatively good weekend.”

His Evidence About Mainline’s Weekly Meetings

149Mr. Greeley testified repeatedly that he is not a directing mind of Mainline, and that in order to prepare for the Monday morning weekly meetings, he and Ms Baird discuss the upcoming assignments “over the weekend” or “after hours”. The weekly meetings sometimes vary in timing, depending on the jobsites and how early people have arrived at the office. He admits that Ms Baird is not in attendance during those meetings, and so he conducts those meetings himself.

Events of Monday, March 12, 2001

150Mr. Greeley recalled that Mr. Pleasant attended the weekly meeting held on Monday, March 12, 2001. He could not recall when it began. He could not recall what time Mr. Pleasant arrived, or if he was already there.

151Mr. Greeley said that he asked him to meet him in his office, and when they went in, he said, “What’s up?” to Mr. Pleasant. He said that Mr. Pleasant asked him “for extra money for getting lost going to the job site, after he had already been there,” and that he said, “no.” He added, “I found this peculiar – he’d already quit.” Mr. Greeley testified that he said, “You already know how to get there.” Mr. Pleasant repeated his request for more money to get there. Mr. Greeley testified that he was “puzzled,” and said, “Richard, you quit and I’m not giving you any more money to finish the job, because it’s done.” On the way out of the office, Mr. Pleasant advised him that he had been in a car accident. Mr. Greeley told him, “you look ok.”

152Mr. Greeley said that Mr. Pleasant pointed to the rear of the car, but Mr. Greeley said that he could not see any visible damage. He testified he said, “That’s it Rich, I gotta get back to work, see you later, man.” He denies having any “argument, raising my voice, or using any racist words,” during this conversation.

His Evidence About Mainline’s Letter of May 25, 2001

153When asked during cross-examination about Mainline’s letter of May 25, 2001 to Rick Fleury of Target Rehab (Exhibit 44), he agreed that it was “an accurate accounting of the events of March 12th.” He maintained that the last bullet on p. 1 of that letter, in which it stated that, “Richard was told that the job was not done right. There were still several mistakes and that if Richard had any intentions of carrying on with his employment then needed to go and fix these mistakes, again” was part of his voice message to him on Friday night, rather than a conversation with him Monday morning.

154Mr. Greeley said that after Mr. Pleasant had left, he did return to the Ancaster job site, only “to double-check on things.” He added that the customer had made one request, “nothing to do with Richard,” after the conveyor had been installed, the customer asked that it be moved away from the wall. He said that this visit on Monday was “actually a courtesy, to help out because of the delays, and just a good gesture.” He went out on Monday with Mr. Mitchell and another worker to make this change, and when they left, “everyone was happy.”

155Mr. Greeley vehemently denies calling Mr. Pleasant the alleged “Racist Remark” on March 12th, and says, “absolutely not – never.” Further, he denies that Mr. Pleasant became angry and made a fist at him, saying, “…none of that happened, it was a non-eventful day.”

156Mr. Greeley denies having any knowledge of any deliberate attempt to delay the processing of Mr. Pleasant’s paperwork, and says, “there was no reason to, he quit.”

157Mr. Greeley testified that he had no dealings with Kingsway Insurance, and added, “No one would lie for him at Mainline to say he didn’t quit when he actually did.”

158Mr. Greeley said that there were no conflicts based on race at Mainline, saying “nothing of the sort.” He denied the allegation made by Mr. Pleasant during his testimony that he made a comment asking which of two Black men was the toughest and who could lift the most. He also denied the allegation that he mocked Blacks by saying, “yo, man” when greeting them. Further, he denied the allegation that he suggested to some Black workers that “they would fit right in in Africa,” to which he replied, “absolutely not.”

Mr. Pleasant’s Angry Outburst During Mr. Greeley’s Testimony

159Mr. Greeley stated that the stress of this hearing had caused him and Ms Baird to suffer, urging the Commission and the Tribunal to consider the “pain and physical damage that Richard has caused by this, which is tremendous” to both the well-being of himself and Ms Baird, and the “possible damage to our livelihood…that this could cause…because of an out and out, bold-faced lie.” At this point in Mr. Greeley’s testimony, Mr. Pleasant had another outburst, in which he began screaming that the Tribunal’s process was “a waste of time and a lie” and announced that he was “leaving and going to the Supreme Court of Canada” to tell them about his experiences with racism.

160The Tribunal was very clear with Mr. Pleasant that he had no recourse to any other courts until the Tribunal had made some findings of fact and law, and since nothing had been determined yet, there was no recourse available to any higher courts. The Tribunal stated that it would take its lunch break at this juncture, and told Mr. Pleasant in no uncertain terms that if he did not return after the lunch break, the Tribunal would “not allow him to hijack its process,” and would carry on without him. Mr. Pleasant returned after lunch, as directed, and Mr. Smith for the Commission advised the Tribunal that Mr. Pleasant wanted to be recalled. The Tribunal declined that request, and advised Commission counsel to proceed with his cross-examination of Mr. Greeley.

His Draft Interview Notes with the Commission’s Investigator

161Mr. Greeley was shown his Interview Notes (Exhibit 62), which he identified. He admitted that the handwritten changes on those notes were made by Ms Baird, but said that was because, “I’m not a wordsmith, and don’t know the proper words. I was in shock this was being done, and had trouble remembering the events of Monday because nothing happened on Monday. Again, I will repeat myself, he quit on Friday. We left the office saying goodbye and that was it.” The handwritten changes to his interview notes include an amendment to the dates Mr. Pleasant worked for the company, changed from January 15, 2001 to January 16, 2001, and include the handwritten note saying, “to Friday, March 9/01.” The handwritten changes also change Mr. Greeley’s status from “employed” to “contracted.” The other handwritten change was to paragraph 4 of these notes. The typed original read:

4. Was Mr. Pleasant involved in a car accident prior to his departure from Mainline Manufacturing & Installation Inc.?

He quit on a Friday, and was involved in a car accident on Sunday. He left a message on my cell phone saying, “I will finish the job and I am quitting. I’ll bring back the tools on Monday.”

The handwritten change crossed out, “I will finish the job” and changed it to, “I have finished the job...”

14. Did he tell you that he could not work on that day because of his car accident?

He said that he would not be working for Mainline, anymore. He did not give a reason.

The handwritten change crossed out, “He,” and replaced it with, “His voice message…”

162When asked if he thought the message left by Mr. Pleasant was on a cell phone, he responded that, “I guess, we thought it was on the cell phone, but the fact is the message was left on a phone.” Once Mr. Greeley reviewed the office telephone records, he was of the view that the message was left there instead. He was unable to explain why Mr. Mitchell thought the message had been left on his cell phone. When asked if he was confused because there had been no such message, he replied very clearly, “There was a message. Clear as a bell. ‘I quit. I’ll finish the job Robbie, and bring back the tools on Monday.’ ”

Keino Mitchell

163Mr. Mitchell testified that he worked at Mainline as a contractor during the period of January to March 2001, on “installations,” and that he no longer works there. He began as a contractor at Mainline sometime in 2000, filling out timesheets. He was hired through another contractor, named, “Junior,” and no taxes were deducted. He said that he was paid in cash, because he lacked a social insurance number (“SIN”) being from Grenada. He left Mainline in 2001 to return to his homeland, Grenada. He added that he worked for Mainline again in May to June, 2004, for about two or three weeks. He said that when he worked at Mainline in the spring of 2004, he was given cheques made out to his name, that he now has a SIN number, and added, “I have nothing to hide, at the end of the year, I file my taxes.” He described Mr. Greeley at the time as his “boss,” but said that he works elsewhere now.

164Mr. Mitchell said that both he and Mr. Pleasant were sent to a few different job sites by Mr. Greeley. He often received rides to and from work from Mr. Pleasant, which they would coordinate over the telephone in advance. He went with Mr. Pleasant to the Homesense, Ancaster location to work on the job site. He testified that he worked at the Ancaster job with Mr. Pleasant on March 7, 2001, and that they had been installing the shelving and the conveyor and “moving stuff out of the way,” from March 7th to 9th.

165Mr. Mitchell described Mr. Pleasant’s frustration on March 9, 2001, starting with his missing the exit on the road, which meant that they had to turn back. They spent the day installing shelves and the conveyor.

166Sometime during the day, “Richard called Rob… using the 1-800 number, and told him that the job was finished.” He said, “before that happened, Tony, a co-worker, and Rob, had gone to another job site.”

167Mr. Mitchell said that during the day, Tony called the Ancaster job site, and told him, “make sure you install the shelves correctly and the conveyor.” When Mr. Mitchell passed this along to Mr. Pleasant, he replied, no, and said that he was the supervisor, he was above me, and that Mr. Mitchell had to listen to him. Mr. Mitchell said that they installed it incorrectly. Mr. Mitchell said, “we installed the shelving incorrectly because Richard didn’t listen to me when I told him because Tony had called before and told us to move the shelving to get the correct installation…the set up was one way but the measurements were different… ” Mr. Mitchell said that although Tony never saw the Ancaster job, he and Mr. Greeley were working on another Homesense job, and they realized the error in the blueprint.

168Mr. Mitchell said that Mr. Greeley called Mr. Pleasant to ask how the job was going. He said that, “Richard was frustrated that morning, a bit hostile in a way.” However, Mr. Pleasant told Mr. Greeley that they would be finished that afternoon. He said, “I could tell Rob was concerned about how the job was going and Richard was upset.”

169After speaking to Mr. Greeley, “Richard seemed frustrated again, and he used the 1-800 number to call the shop,” but he “didn’t get” anyone, although Mr. Pleasant did indicate to him that he had spoken to Joanne, who told him that she did not know where Mr. Greeley was. Mr. Mitchell was uncertain if Mr. Pleasant had called the shop once or twice before he reached Joanne. He said that after speaking with Joanne, Mr. Pleasant called Mr. Greeley’s cell phone and, “Richard left a voice message telling them that he quit and had finished the job.” He said that Mr. Pleasant left this message at 10 or 11 a.m. Mr. Mitchell testified, “I was right beside him when Richard gave that message and said he’d bring the tools to the shop on Monday.” He explained that he was two to four feet away from Mr. Pleasant, who was “talking loud, angry and yelling,” when he overheard his message, “I quit…I can’t work for him no more. I’m going to bring the tools up to the shop on Monday.”

170He said that he and Mr. Pleasant worked until about 4 or 4:30 p.m. that day. However, “we didn’t finish the job site.” Mr. Pleasant drove him home, and he was in Toronto between 5 and 6 p.m.

Meeting with Mr. Greeley on March 9, 2001

171Mr. Mitchell said that he met with Mr. Greeley at his truck, at a gas station close to his house in Scarborough, at about 6 or 7 p.m., so that Mr. Greeley could pay him the money he owed him. Mr. Greeley “called me on the way from Ancaster,” and said that he had spoken to him twice before they met, the second call when Mr. Greeley was in the area. Although he testified that one of his paycheques bounced “once,” he said he could not recall if that is why they had to meet that evening. He said that Mr. Greeley asked me how it was going, and I told him it was installed incorrectly, “because he wouldn’t listen to Tony.” He said that Mr. Greeley had told him that he received a voice message that Mr. Pleasant was not working anymore, which was “no surprise to me, because I had heard him leave the message.”

172Mr. Mitchell testified that he has not heard Mr. Greeley use any racist slurs towards anyone, nor has he been made aware of any made by Mr. Greeley. He said that he, Buck and Tony were all from Grenada and described himself and them as Black, but that Troy Moore and Paul Noseworthy were not Black.

Telephone Calls to His Home

173Mr. Mitchell said that he lives with his mother, who is concerned about his decision to testify at this hearing. He said that Mr. Pleasant, “…punched on a guy because he called him the ‘N’ word.” He said that someone “keeps calling my mom…who doesn’t want me to appear.” He also testified that someone kept bothering his attorney in Grenada, for which Mr. Pleasant offered an apology.

174Mr. Mitchell testified that he is fearful of some of Mr. Pleasant’s friends, but said that no one has actually threatened him.

His Witness Statement

175After he testified, he identified his witness statement (Exhibit 59), and said that the timing might be a bit different, because it was a couple of years ago, but “that’s what happened, and everything that happened that day.” His signed witness statement, faxed to Mr. Greeley from his brother’s law firm in Grenada, stated as follows:

Statement of Keino Mitchell

My name is Keino Mitchell and I reside in St. George’s Grenada.

I can recall March 9, 2001. At that time I resided in Toronto, Canada.

At that time I was employed with Robert Greely. [sic]

At around 10:30 am on that morning, Robert (Rob) phoned Richard at the job site and said that he (Rob) was concerned with the manner in which the job was going and asked whether we, (Richard and I) would finish the job today. After Richard came off the phone, he looked frustrated and said that he would not work for Rob anymore and that the current job was his last.

A couple of hours later, in my presence, Richard phoned Rob and left a message for him on his voicemail stating that he had finished the job and that he would carry the tools to the shop on Monday. He also told him that he was quitting, and that this was his last job for him.

Later that day, I met with Rob at his truck, and Rob again asked about how the job was going. I told him that we had not finished the job. While speaking to Rob, he told me that he had received a message on his voicemail from Richard stating that the job was complete, he would be carrying the tools to the shop on Monday and that he quit the job. I told Rob that I was not surprised as I had heard Richard earlier leaving him that message.

The Trip Back to Ancaster on Monday

176Mr. Mitchell said that he, Buck and Mr. Greeley went back to the Ancaster job site on Monday, “to do the stuff Tony had told us to do…we had to go and put back the shelves in the manner in which Tony said it.” During Mr. Pleasant’s cross-examination of Mr. Mitchell, he asked him, “what did you complete on Monday?” to which Mr. Mitchell retorted, “the same thing you refused to do!”

Paul Noseworthy

177Mr. Noseworthy was employed by Mainline for two years, between 1999 and 2001. He went to the Corporate Respondent through an acquaintance, and took over the “machining part of the shop.” He said that he was paid between $12 – 15 per hour, and that he was on the payroll at Mainline and taxes were deducted. He also said that the person who trained him on the machines was also on the payroll, and had been qualified as a “journeyman millwright.” Mr. Noseworthy said that he left Mainline because he was laid off.

178He testified that he was in a car accident while employed at Mainline, and missed some days during that period. He said that his accident took place in March of 2000 or 2001, and could not recall the date. Because of his car accident, he did not call Mainline for a few days, and said that when he did not call or go into the office, his employer was “actively trying to find out what was wrong, and were concerned for my well-being.” He said they called the police to ask them to look for him, and also called his then girlfriend, now wife, looking for him.

179Mr. Noseworthy said that when he returned to work, his employer continued to be concerned for his “health” and did not put him back on the machines right away, because there is a risk of injury associated with them, particularly with high-speed machinery.

180Mr. Noseworthy testified that he has never heard Mr. Greeley utter any racist words, and that the workplace was diverse. He also denied using any racist words himself in the lunchroom, and said that he did not know why anyone would say that about him.

181He said that he opened and closed the shop, and that his hours were from 7 a.m. until 7 p.m. It was clear from his evidence that he had not known the contractors who went out to the job sites particularly well, and said, “I don’t know a lot about those guys…on different hours, they’d go right to the job site, work til about 6 or 8 at night, especially if they guys were out of town.” He could not remember Mr. Pleasant since the last time he had seen him, and when he saw Mr. Mitchell at the hearing, said that Mr. Mitchell “recognized me first…I couldn’t recall his name.”

182Mr. Noseworthy testified that January to March 2001 was a busy time at Mainline, and that he had made a lot of parts during that period.

183During Mr. Pleasant’s cross-examination of Mr. Noseworthy, he asked him if any of the materials sent to the Ancaster location had to be done over again, and he said, “no, not that I can remember.” He also denied recalling any defective parts that went to another customer and were allegedly returned to the shop.

184Mr. Noseworthy identified his interview notes with the Commission (Exhibit 60), dated July 22, 2003. He confirmed in his evidence what he had stated in his interview, which was that he had no information about Mr. Pleasant’s departure from Mainline. He added in his testimony that, “quite a few fellows would come and go…I rarely even had a conversation with them.”

THE PARTIES’ WRITTEN SUBMISSIONS

The Commission’s Final Brief and Reply

185Counsel for the Commission filed his closing submissions and brief of authorities, and Mr. Pleasant indicated to the Tribunal at the close of the oral hearing that he would be relying upon the Commission’s final brief. The Tribunal has summarized the relevant parts of this submission, set out below.

186The Commission points out that the Respondents have not denied that the allegations made by the Complainant would establish a breach of the Code, but rather, have simply denied that the allegations are true. Thus, the Commission urges the Tribunal to assess the overall credibility of the parties, and determine whether, on a balance of probabilities, the Complainant’s evidence “has the ring of truth.”

187The Commission maintains that Mr. Pleasant’s evidence should be preferred over that of the Respondents, because the Respondents have characterized Mr. Greeley’s role as that of an independent sales contractor, but during their testimony, admitted to a wide variety of management roles that he plays. For this reason, the Commission asserts that where the Respondents gave evidence contrary to that of Mr. Pleasant, their evidence should be given no weight. See: Commission’s Closing Submissions, paragraphs 14-16.

188Moreover, the Commission provides numerous examples of the flaws in the Respondents’ evidence concerning the additional work done by Mr. Greeley at the Homesense, Ancaster location on March 9 or 12, 2001, and what the Commission characterizes as a “’hybrid’ story” in order to reconcile a number of inconsistencies. See: Commission’s Closing Submissions, paragraphs 67-73.

189The Commission pointed out some of the attempts made by the Respondents to withhold information from the Tribunal, highlighted as follows: their refusal to produce telephone records until ordered to do so by the Tribunal; their objection to the Commission’s line of questioning about the Respondents’ letter of April 11, 2001, that had to do with whether or not Mr. Greeley was paid in “wages” as opposed to sales commissions; and their reluctance to have Mr. Greeley testify. See: Commission’s Closing Submissions, paragraph 77.

190Ms Baird’s overall credibility was also questioned by the Commission, who questioned her willingness to refer to Mr. Greeley as the “President” of Mainline when it was convenient to do so in 2001, on the advice of a financial advisor, who told her that this could attract investors, as evidence of her deliberate effort to mislead investors on behalf of her business. See: Commission’s Closing Submissions, paragraph 81. `

191The Commission asserts that the evidence favours a finding that Mr. Pleasant was telling the truth about the alleged “Racist Remark”, contrary to subsection 5(1) of the Code, and that what flowed from it was further adverse conduct that poisoned his work environment and constituted a course of vexatious and unwelcome conduct, such as telling his insurer that he had quit, delaying his receipt of key paperwork, and illegally withholding his earnings, that amounted to harassment on the basis of race and colour, contrary to subsection 5(2) of the Code. The Commission maintains that by refusing to allow Mr. Pleasant to go to the doctor, the Personal Respondent also infringed his right to equal treatment without discrimination on the basis of disability, contrary to subsection 5(1) of the Code. See: Commission’s Closing Submissions, paragraphs 85-88.

192The Commission submits that Mr. Greeley is both an agent and de facto employee of the Corporate Respondent, as well as part of its “directing mind.” Thus, the Commission argues that the organic theory of corporate responsibility applies to make the Corporate Respondent jointly and severally liable for all of Mr. Greeley’s breaches of the Code. See: Commission’s Closing Submissions, paragraphs 89-92.

193The Commission requests a finding of liability against the Respondents and a number of remedies on behalf of the Complainant and in the public interest.

194The Tribunal permitted the Commission to file a short Reply to the Respondents’ final submissions. It is not necessary to summarize it here, other than to say it was meant to rebut their key assertions about the evidence.

The Respondents Final Brief

195The Respondents also filed their “Closing Summation” in writing, but did not file any brief of authorities. It highlighted key evidence and included argument, and was 60 pages in length. The Tribunal has summarized the relevant portions of it, below.

196The Respondents deny that they have violated any part of the Code, and suggest that they have been “falsely, spitefully and vindictively accused.” Moreover, they maintain that Mr. Pleasant had “many opportunities to tell people in a position to do something about this alleged racist slur and chose not to,” including: Ms Baird, the police, the Ministry of Labour, the Employment Standards Office, the MPP’s office, the Rehab company, his doctors and lawyers. They argue that given his “knowledge and experience relating to human rights complaints as he has testified to filing (or trying to file) several in the past”, the Respondents implicitly are asking the Tribunal to draw a negative inference from these omissions. See: Respondents’ Closing Summation, paragraphs 1- 4 and 43.

197They maintain that Mr. Pleasant quit on March 9, 2001, and that while he had many opportunities to tell people in a position of authority about his allegation of wrongful dismissal, he did not do so.

198They argue that Mr. Pleasant was in a car accident on March 11, 2001, and only came to Mainline on March 12, 2001, in order to return his tools, and not to report to work. Thus, Mr. Greeley had no cause to refuse to allow him to see his doctor, since he had quit.

199They deny Mr. Greeley is a directing mind of Mainline. They rely on the telephone records to demonstrate the large number of calls he makes in a day to Ms Baird, as evidence that he lacks managerial responsibilities.

200The Respondents maintain that they have been forthright and credible throughout the hearing, and that they brought in an independent witness, Keino Mitchell, who is independent of them, as well as corroborating documents, to demonstrate that their evidence is consistent, and that their three witnesses, Mr. Mitchell, Mr. Greeley and Ms Baird, have all been very clear that the Complainant quit his position on March 9, 2001, by telephone.

201The Respondents argue that the Complainant’s decision to quit was “rash” and that he fabricated his Complaint after realizing that his decision to quit was rash in light of his subsequent car accident and the negative effect it would have on his insurance claim for lost wage benefits and lawsuit against his insurer. Moreover, they argue that the Complainant had repeated “outbursts and irrational and rash actions” throughout the hearing, including yelling at the Tribunal, leaving the hearing a number of times, threatening actions against the Corporate Respondent with the tax authorities, threatening criminal proceedings, and other threats.

202The Respondents argue that the evidence of Paul Noseworthy indicates that the Corporate Respondent shows kindness and caring to employees who are recovering from injuries.

203The Respondents submit that the Complainant refused to provide his telephone records for March 9, 2001, when ordered to do so by the Tribunal.

204The Respondents argue that Mr. Pleasant has testified that he has filed or tried to file several human rights complaints against other former employers and is in the process of filing another human rights complaint in Nova Scotia, stating, “the complainant has shown there is a pattern here.” They also argue that he has a pattern of having problems in every job he has ever held, with the exception of his paper route, “which begs the question: how can everyone else always be wrong and Mr. Pleasant always be in the right?”

205The Respondents make the following telling closing submission, on page 58, which is reproduced below:

5. Contrary to the Commission’s submissions, the respondents do not agree that Mr. Pleasant’s allegations would establish a breach of the Code. To the contrary, even if everything Mr. Pleasant says is taken at face value, (which we don’t) he has not established anything that would support a complaint of discrimination under the Code. His decision to go to the doctor on Monday rather than to work is related to a car accident in which he was not injured or disabled; it had nothing to do with discrimination on the basis of disability. Similarly, a single derogatory remark, made in private, for whom an apology was provided almost immediately, does not constitute harassment under the Code, and no evidence was given to suggest that it created a poisoned work environment.

FINDINGS OF FACT AND LAW

206The Tribunal has examined in detail the competing viva voce evidence of all witnesses, as well as examining all documentary evidence put before it as exhibits. After carefully weighing all of this information, the Tribunal concludes that the Commission and Complainant have established a prima facie case of discrimination with respect to the ground of race and colour, but has rejected the claim put forth based on the ground of disability. The Tribunal has determined that Mr. Pleasant quit his job on Friday, March 9, 2001, and after he quit, he was subjected to the “Racist Remark” on Monday, March 12, 2001 by the Personal Respondent, contrary to subsection 5(1) of the Code, and to a deliberate delaying of his final paperwork and an illegal withholding of part of his earnings, by the Corporate Respondent, which in this factual context is a form of racial harassment, contrary to subsection 5(2) of the Code. The Tribunal rejects Mr. Pleasant’s testimony that he was terminated, and that the Respondents failed to accommodate his disability on March 12, 2001.

207Below, the Tribunal sets out the reasons for these findings of fact and law.

The Initial Onus of Proof Belongs to the Complainant

208The Supreme Court of Canada has held that the initial onus of proof to establish a human rights complaint belongs to a complainant, who must establish a prima facie case of discrimination. Such a prima facie case is one that is based on the allegations made, and if believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent. The onus of proof falls to the complainant to prove the case on a balance of probabilities. Once the prima facie case has been established, then the burden shifts to the respondent to provide some evidence that the allegations made did not occur or that they did not constitute discrimination. See: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 558.

209The Tribunal finds that the issue of credibility is central to this case, particularly with respect to whether or not the Complainant quit or was fired, and what exactly transpired between the Complainant and the Personal Respondent when they were alone together in the Personal Respondent’s office on Monday, March 12, 2001.

210In assessing witness credibility, the Tribunal adopts the test set in Hadzic v. Pizza Hut Canada (1999), 1999 BCHRT 44, 37 C.H.R.R. D/252 (B.C.H.R.T.), at paragraph 36, as follows:

To be credible, a witness’s testimony must be in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356 (B.C.C.A.). Other factors that must be weighed include the witnesses’ motives, their powers of observation, their relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.

211The Tribunal has the discretion to accept all, part or none of the evidence of each of the witnesses, in order to make a determination about their truthfulness and veracity with respect to several critical and conflicting assertions.

212The Tribunal finds that while some of Mr. Pleasant’s evidence was self-contradictory, self-serving, deliberately misleading, and at times, inflammatory, other key aspects of his evidence were credible, consistent and rang true. The Tribunal is satisfied that Mr. Pleasant was subjected to a course of conduct that violated the Code when he quit, including the “Racist Remark” and the deliberate withholding of documents and partial earnings, contrary to subsections 5(1) and 5(2) of the Code.

213All employment relationships have a beginning and an end, and it is important to society that the Code be upheld whether conduct is at the time of hire, during the course of employment, or at its conclusion. The Tribunal has determined that Mr. Pleasant’s right to be free from discrimination because of his race was violated at the conclusion of his employment relationship with the Respondents. The racial harassment in the workplace was not ongoing, it occurred when he quit. This is different from the notion of reprisal, in that Mr. Pleasant’s rights under the Code were violated when he returned his tools, and subsequently needed his ROE and other standard employment-related paperwork completed and all of his final earnings paid out, including his vacation pay and overtime.

214Similarly, the Tribunal finds that the testimony of Mr. Greeley and Ms Baird was also frequently self-serving and deliberately misleading, but that parts of their evidence were also credible and consistent. For instance, while Ms Baird is meticulous in her record-keeping, the Tribunal finds that she and Mr. Greeley have both been deliberately misleading as to his role at Mainline. The Tribunal rejects the notion that he is merely an independent sales agent, noting that he works long hours and is pivotal to the survival of this business, is its rainmaker, oversees the work of other employees and contractors, and has his own office. The Tribunal finds that he is an active part of the Corporate Respondent’s management team, and that despite their protests to the contrary, he hired both Mr. Pleasant and Mr. Moore on the spot. The Tribunal finds that the Corporate Respondent’s management team consists of himself and Ms Baird, and has no hesitation in therefore finding that he is part of the Corporate Respondent’s “directing mind”.

215The Tribunal finds that the independent witnesses were each credible and genuine, and for the most part accepts their evidence, noting however, that time has passed, and that their accounts sometimes lacked detail, or were in conflict.

216The Tribunal appreciates that counsel for the Commission was professional, prepared and helpful throughout this challenging hearing.

The Racist Remark

217Mr. Pleasant’s testimony was steady throughout the hearing, and his demeanour was consistent and sincere with someone who was the subject of the “Racist Remark”, “fucking airhead nigger.” He was clearly hurt that someone who had been his friend for twenty years said this to him, “when they call you names, what kind of friends are we?” For Mr. Pleasant, the “Racist Remark” was especially painful, since he has been called a “nigger” his entire life, and it has left him feeling wounded yet combative both physically and legally. The Tribunal accepts his evidence that he has entered into physical fights over such racist remarks in the past, hence his references to not wanting to go back to jail, and also the corroborating evidence of Mr. Mitchell, that Mr. Pleasant has previously engaged in physical fighting over racist remarks.

218Mr. Pleasant has alleged, during the hearing, that Mr. Greeley had made some other racist comments, as well. However, he contradicted himself during his own testimony in chief, when he testified that Mr. Greeley had never said anything racist before the “Racist Remark”, and then attempted to take that testimony back, see: paragraph 42. Other than Mr. Pleasant’s own self-contradictory evidence on this point, there is no other evidence to support the suggestion that Mr. Greeley has made other racist remarks, and the Tribunal declines to find that he has done so.

219The trenchant submission made by the Respondents that, “the complainant has shown that there is a pattern here” regarding the number of times he has made or attempted to make a human rights complaint based on race, sadly reflects how often he has been besmirched because he is Black. While the Tribunal did not appreciate Mr. Pleasant’s outbursts, they certainly were telling, and his painful call for “one big trial and one judge for everybody who hurt me” rang true.

220There may have been racist remarks made by others at Mainline, but the evidence on this is also contradictory overall. However, it is clear that if these other alleged incidents took place, they were not reported to management. The Tribunal declines to make a finding on this basis.

221The Tribunal finds that Mr. Greeley made the “Racist Remark” to Mr. Pleasant, on Monday, March 12, 2001, while they were alone together in Mr. Greeley’s office after the regular Monday morning meeting.

222That having been said, Mr. Pleasant’s evidence about his departure from the Corporate Respondent was fraught with his own inconsistencies, and on a balance of probabilities, the Tribunal prefers the evidence of the Respondents and their witness, Mr. Mitchell, buttressed by the their evidence as to the nature of the conversations established by the telephone records, that he quit on Friday, March 9, 2001, and was not fired, as he stated, on Monday, March 12, 2001.

223In particular, his testimony in chief was self-contradictory about what transpired between himself and Mr. Greeley with respect to finishing the work on March 9, 2001. As noted in paragraph 68, he testified:

When asked why the deductions were made for Rob’s wages, Mr. Pleasant said, “because Rob went to finish the job on Friday and it took him 3 hours to finish the job,” however, he disputes that he made any mistakes at the Ancaster job. However, when asked by Commission counsel, why earlier, he had testified that he received a telephone message on Friday, March 9th from Rob, saying that there was work left to do and that he would have to go on Monday, Mr. Pleasant then agreed that the job was not finished after all.

224Mr. Pleasant’s own dates, submitted to MOL in his own handwriting when he made his MOL Complaint, indicate that his last day worked was March 9, 2001. See: paragraph 61.

225The Tribunal believes that Mr. Greeley needed to spend three hours in Ancaster on March 9, 2001, finishing the job, because Mr. Pleasant had refused to do so, having quit. This view is clearly supported by the unequivocal testimony of Mr. Mitchell, who while being cross-examined by Mr. Pleasant, said that he, Buck and Mr. Greeley had returned to Ancaster on Monday, in order to fix the shelving. When asked by Mr. Pleasant, “what did you complete on Monday?” Mr. Mitchell retorted, “the same thing you refused to do!” See: paragraph 176.

226Mr. Pleasant’s Significant Outburst, set out in detail at paragraphs 75-76, took the Tribunal aback. He obviously found it amusing to wonder out loud whether or not he “quit or got dismissed, whatever,” after announcing, “the last day I worked was on Friday…” The Tribunal has the discretion under sections 2 and 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 (“SPPA”) to admit this evidence, even though it was not given under oath, and has done so, because of its probative value.

227The factual foundation for his alleged discrimination on the basis of disability is that the Respondents refused to let him go see a doctor on Monday, March 12, 2001, because they demanded that he return to Ancaster to finish the job. Although the Respondents have credibility issues of their own, it is incumbent, as the Supreme Court of Canada has said in Simpson-Sears v. O’Malley, supra, for the complainant to meet the prima facie onus of proof. Mr. Pleasant’s demeanour and sincerity concerning the disability and termination issues were destroyed when he made this off-the-cuff remark, particularly since the Respondents and their witness, Mr. Mitchell, were all unshakeable in their testimony that he clearly resigned on March 9, 2001, by telephone.

228Moreover, the Tribunal rejects Mr. Pleasant’s evidence that he did not check his voice messages at home until Saturday and found that Mr. Greeley wanted him to return to Ancaster on Monday, in no small part due to Mr. Pleasant’s decision to stonewall the Tribunal when it directed all parties to produce their telephone records for March 9, 2001, as well as the fact that he made no effort to contact Mr. Greeley over the weekend to discuss the matter. Rather, the Tribunal finds that he picked up Mr. Mitchell early on the morning of Monday, March 12, 2001, after calling him, and drove to Mainline.

229Although the car accident took place on Sunday, March 11, 2001, Mr. Pleasant did not go see his family doctor to discuss his injuries until March 15, 2001, as established by his family doctor’s clinical notes and records, even though he testified that he went to see his family doctor on Monday. Given that it took him six days following the accident to go see his doctor, the Tribunal finds that he went to the Corporate Respondent on March 11, 2001, to return their tools, as they testified, and not to report into work. One of the factors that the Tribunal can consider when assessing any witness’s credibility is motive, and Mr. Pleasant wanted to obtain his wage loss benefits from his insurer in order to secure a new source of income.

230Whether or not the Personal Respondent thought that Mr. Pleasant was injured due to his car accident is irrelevant, since Mr. Pleasant had already quit, and so no accommodation was necessary. Mr. Pleasant was entitled to a reasonable exit when he returned the tools, and should not have been subjected to the “Racist Remark” nor to racial harassment vis-à-vis his paperwork and an unlawful withholding of part of his earnings, even if the conversation did deteriorate into an argument.

231The Tribunal is prepared to accept the evidence of Mr. Noseworthy as similar fact evidence that the Respondents have accommodated an employee injured in an accident during the same time period that Mr. Pleasant worked for them, but such finding is obiter dicta, because Mr. Pleasant quit.

232The Tribunal finds that the Respondents intentionally withheld key paperwork and some of his earnings after Mr. Pleasant resigned and was called the “Racist Remark”. This coincides with part of Mr. Pleasant’s testimony, and with his “Significant Outburst”, when he said that the issue was, “not getting the proper paperwork, when I quit or got dismissed, whatever.” However, the Tribunal finds that Mr. Pleasant has embellished what actually happened.

233It is clear from the testimony of both Mr. Pleasant and Ms Baird and from the dates of key exhibits that he did not receive his ROE and his vacation pay until she sent him the letter dated April 11, 2001, which was in direct response to his Complaint filed with MOL, dated March 29, 2001. The unlawful deduction of three hours pay for what the Respondents viewed as his “mistakes” is uncontroverted evidence, and was fully resolved by MOL. The Tribunal finds that this further adverse conduct was vexatious and unwelcome, and it flowed from the poisoned ending to their employment relationship, contrary to subsection 5(2) of the Code.

234The Tribunal also finds that the Respondents did not finish completing the Employer’s Confirmation of Income form until May 7, 2001, when they were pushed by Mr. Fleury to do so. However, the Tribunal accepts that some of this initial delay was due to Mr. Pleasant’s delay in filling in sections 1-3 of this form, as set out in paragraph 108. The Tribunal has rejected Mr. Pleasant’s allegation of discrimination on the basis of disability, and rejected his evidence that he was terminated by Mainline as a result. Nevertheless, his former employer had an obligation to complete his key paperwork in a timely manner. What Mr. Pleasant’s insurer ultimately did with that information is a separate legal issue. The Tribunal finds that this further adverse conduct also flowed from the poisoned ending to their employment relationship, contrary to subsection 5(2) of the Code.

235However, contrary to Mr. Pleasant’s evidence, the Tribunal prefers the evidence of Ms Baird that he picked up three large cheques on March 16, 2001, which represented the majority of the money owed to him, as set out in paragraph 106. The Tribunal finds that he lost one of them, and that the Respondents issued a replacement cheque for it. For the most part, the Tribunal finds that the Respondents paid him what they owed him, with the notable exceptions of his vacation pay, his overtime pay, and the wrongfully deducted three hours wage. The Tribunal is satisfied that the Respondents are not responsible for the overdraft charge on his bank account. The Tribunal finds that these outstanding amounts were paid to him in mid-April 2001, as a result of his successful Complaint to MOL, made in March 2001. Thus, the Tribunal finds that no money remains owing to Mr. Pleasant for his wages. The Tribunal finds that the deliberate withholding of his vacation pay, his overtime pay, and the wrongfully deducted three hours wage was also adverse conduct that flowed from the poisoned ending to their employment relationship, contrary to subsection 5(2) of the Code.

ANALYSIS

Racial Discrimination and Harassment

236The “Racist Remark” revealed prejudice against Mr. Pleasant for being Black, and a stereotype about his intelligence based on his race, which are unacceptable to society. It is settled law that the use of racial slurs violates the Code.

237“Harassment” is defined in subsection 10(1) of the Code as follows:

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

238It is clear from all of the viva voce and documentary evidence that in order to secure his final paperwork and part of his final pay, Mr. Pleasant had to make formal complaints to his MPP, to MOL, and to seek the intervention of Mr. Fleury in order to obtain the Employer’s Confirmation of Income form. The Respondents’ failure to provide such standard documents and pay routinely given to departing employees in a timely manner was vexatious. Mr. Pleasant’s corresponding efforts to obtain them, despite their resistance, demonstrates that this behaviour was known to the Respondents to be unwelcome. This is a form of racial harassment that falls within the “factual matrix” approach taken by the Divisional Court in Smith v. Mardana (No.1) (2005), CHRR Doc.05-094.

“Mudslinging” and Character Evidence Generally

239Both the Complainant and the Respondents made a number of accusations about each other that Commission counsel described early on as “mudslinging,” such as testimony about errant child support payments, a poor personal work-history, paying contractors in cash, the incident with Tom and Doug, failing to make remittances, and the like. The Tribunal was only prepared to accept Mr. Pleasant’s criminal record into evidence, if entered, and the Respondents chose not to do so. Mr. Pleasant, to his credit, testified as to his criminal record in any event, although certainly not compelled to do so.

240The Tribunal has the discretion to consider everything from hearsay evidence to character evidence, in accordance with sections 8 and 15 of the SPPA, provided that disclosure of character evidence is made in advance of the proceeding.

241The Tribunal adopts the reasoning set out by David Mullan in one of his interim decisions in Modi v. Paradise Fine Foods Ltd. et al, 2005 HRTO 25, at paragraph 3, where he held:

Character evidence is generally inadmissible in civil proceedings in Canada, and the Human Rights Tribunal of Ontario (and its predecessor, the Ontario Board of Inquiry (Human Rights Code)) has applied that principle: Rubio v. A-Voz Portuguese Canadian Newspaper Ltd., [1997] O.H.R.B.I.D. No.10; Chacko v. Transpharm Canada Inc. (c.o.b. Toronto Institute of Pharmaceutical Technology), [2001] O.H.R.B.I.D. No. 11. In contrast, similar fact evidence is more readily admissible. Classification of the nature of the relevant evidence therefore tends to be critical.

242The Tribunal has determined that it is unnecessary to classify these various unsavoury allegations into the appropriate evidentiary categories, because none of them were relevant to the matters in dispute. For this reason, the Tribunal has not given them any weight.

Similar Fact Evidence

243The Tribunal is satisfied with the evidence provided by Mr. Noseworthy that when he was injured in an accident while working at Mainline during the same time period, his disability was accommodated in the workplace. Although not a necessary finding, the Tribunal is satisfied that this constitutes similar fact evidence in favour of the Respondents and meets the probative value test.

244The Tribunal relies upon Cory J.’s analysis of similar fact evidence in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at 367, and on section 15 of the SPPA, which provides the Tribunal with the statutory authority to admit similar fact evidence.

JOINT AND SEVERAL LIABILITY

245The Tribunal finds that the Respondents are jointly and severally liable to the Complainant for two distinct reasons. First, on the facts, it was the Personal Respondent who uttered the “Racist Remark” to the Complainant, but it was the Corporate Respondent that deliberately withheld the issuance of key paperwork and part of Mr. Pleasant’s earnings at the conclusion of his employment. Thus, they are equally responsible for these two breaches of the Code. Secondly, the Tribunal finds that Mr. Greeley has played an active role in the management and operation of this business, and as such, is a “directing mind” of the Corporate Respondent.

REMEDY

246The Tribunal hereby sets out its remedial order in accordance with section 41 of the Code.

247Although the “Racist Remark” was made by Mr. Greeley, the deliberate withholding of key paperwork and part of the Complainant’s earnings was done by the Corporate Respondent, and so it is appropriate that the remedy be made against both Respondents as a matter of natural justice and fairness.

248To compensate Mr. Pleasant for his losses arising out of the infringements of his rights, the Tribunal makes the following order for general damages and mental anguish, no order being made for special damages.

General Damages and Mental Anguish

249Mr. Pleasant has had his right to equal treatment with respect to race and colour violated, contrary to section 5 of the Code.

250The Tribunal has considered that the “Racist Remark” was a serious but single incident, made at the conclusion of his employment, as well as the considerable difficulty the Complainant was put to before obtaining his final paperwork and part of his final earnings, which he was entitled to by law and which he required in order to move forward.

251The Tribunal finds that Mr. Pleasant’s general damages, including mental anguish, are $7,000 against the Respondents.

Public Interest

252Counsel for the Commission requested public interest remedies. The Tribunal refers to its findings and has concluded that public interest remedies are necessary for the protection of current and future employees.

253The Tribunal finds that within three months of this decision, Mainline Manufacturing & Installing Inc. must provide human rights education and sensitivity training to management and supervisors, and post notices provided by the Commission, within its place of business indicating that it observes and upholds the Code.

Pre-Judgment and Post-Judgment Interest

254The Commission asked for pre-judgment and post-judgment interest on any awards made.

255The Tribunal grants pre-judgment interest on all the awards, commencing from the date of the filing of the Complaint. The Tribunal also orders post-judgment interest on all damages, commencing within thirty days from the date of this Decision.

ORDER

256The Respondents, Robert Greeley and Mainline Manufacturing & Installing Inc., are jointly and severally liable to pay Richard Pleasant the following amounts within thirty days of this Order:

(1) $ 7,000 as compensation for his humiliation and loss of dignity resulting from the infringement of his rights to be free from discrimination and for his mental anguish, under the Code;

(2) pre-judgment interest on the awards, commencing from the date of the filing of the Complaint, and post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act commencing thirty days from the date of this Order.

257Further, the Respondents are ordered and directed to take the following actions to achieve compliance with the Code in respect of their future conduct and practices within three months of this Order:

(1) provide human rights education and sensitivity training to the management and supervisors of Mainline Manufacturing & Installing Inc., facilitated by an expert on anti-discrimination principles, who has been provided with a copy of this Decision; and

(2) post notices provided by the Commission, within its place of business indicating that it observes and upholds the Code.

258The Tribunal shall remain seized of this matter for a period of twelve months from the date of this Order, in order to deal with any implementation issues that may arise.