Broomfield v. Highview Park, 2009 HRTO 1040

Human Rights Tribunal of Ontario

Between:

Herold Broomfield Complainant

-and-

Highview Park Inc. and Shivpaul Agam Respondents

Decision

Adjudicator: Eric Whist Date: July 14, 2009 Citation: 2009 HRTO 1040 Indexed as: Broomfield v. Highview Park

Appearances:

Herold Broomfield, Complainant | On his own behalf Highview Park Inc., Shivpaul Agam, Respondents | Leah Simon, Counsel

INTRODUCTION

1Herold Broomfield (the “complainant”) alleges discrimination in employment on the basis of place of origin, ethnic origin and race, in violation of sections 5(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The complainant’s allegations centre on the conduct of Shivpaul Agam, (personal respondent) a foreman employed by Highview Park Inc. (Highview). The personal respondent supervised the complainant’s work while the complainant was employed by Highview at its Madison Lofts construction project during the period November 21 to November 29, 2006.

2The complainant self identifies as a Black man originally from Jamaica. He alleges in his complaint that the personal respondent subjected him to harassing comments related to his place of origin, ethnic origin and race and that these comments poisoned his work environment. The complainant further alleges that his place of origin, ethnic origin and race were factors in the personal respondent’s decision to assign him work, including unsafe work and to terminate his employment.

3The complainant’s original complaint was to the Ontario Human Rights Commission (the “Commission”). The Commission decided on May 27, 2008 to refer the complaint to the Tribunal for adjudication. The Commission later requested that it be allowed to withdraw from the proceeding before the Tribunal. The Tribunal allowed this request in an Interim Decision (HRTO 2009 363).

4Highview is a corporation carrying out business in the construction business. In November 2006 it was constructing condominiums at the corner of Madison Avenue and Davenport Road in Toronto (the “Madison Lofts project”). The personal respondent, who self identifies as a person of South Asian heritage originally from Guyana, was the foreman for this project and the person who supervised all project employees, including the complainant. There were approximately 20-25 employees working at the Madison Lofts project site at the time the complainant was there.

5Construction on the Madison Lofts project began in October 2006. The complainant was referred to the project by his union, the Labourer’s Union of North America, Local 183 (the “union”) in early November but because of the inclement weather (too much rain) he did not begin until November 21, 2006.

6I heard testimony from the complainant, the personal respondent and two further witnesses called by the respondents; Mr. Leo Mara Del Rosario and Mr. Fitzroy Hammith, two employees who were working at the Madison Loft project site when the complainant was there.

DECISION

7The complaint is dismissed. The complainant has failed to meet the onus on him to show that, on the balance of probabilities, he was subject to discriminatory treatment by the respondents. The complainant’s account of events was sketchy and unreliable on a number of key points. I prefer the testimony of the personal respondent which was forthright and detailed and ultimately credible and importantly, was corroborated by the testimony of the two other witnesses before me, both of whom I found to be credible. I find that the allegation of harassing comments has not been proven and I am satisfied that the complainant’s work assignments were in keeping with his job duties and his termination related only to his poor work performance.

EVIDENCE

MAY 21, 2009

8The hearing focussed on three keys issues; what the personal respondent is alleged to have said to the complainant on his first day of work on May 21, 2006; the complainant’s work assignments while he was employed on the Madison Loft project and what took place on May 29, 2009, the complainant’s last day of employment.

9The practice at the Madison Lofts project was for the personal respondent to tell the assembled employees at the beginning of the work day what their tasks would be for the day. The complainant testified that on his first day he was in the shack (the onsite building used by employees) along with the other employees when the personal respondent came to him and, recognizing him from their previous brief work together in 2002, said words to the effect of:

Who do we have here? Holy fuck, Broomfield. Are you one of them? You fucking Jamaicans are all the same you shouldn’t be on jobsites anyway.

The complainant found this comment to be offensive and was of the opinion that the personal respondent’s subsequent treatment of him was discriminatory, reflecting the personal respondent’s demonstrated prejudicial attitude towards persons of Jamaican origin.

10The personal respondent denied making any statements about Jamaicans to the complainant on November 21, 2009. Mr. Mara Del Rosario, who self identifies as a black man from the Dominican Republic, and Mr. Hammith, who self identifies as a black man from Jamaica, both testified that they were present that morning in the shack and did not hear the personal respondent make any offending comments about Jamaicans. Mr. Hammith stated that he specifically recalled the personal respondent giving instructions to the complainant that day and that he would have remembered the alleged derogatory comments given that as a black Jamaican he would have found such comments offensive. Mr. Mara Del Rosario also testified that he did not believe that the personal respondent would say something like that given that it was his experience that the personal respondent treated his employees in a proper way. Mr. Hammith further testified that he had worked with the personal respondent on a project in Whitby in 2005 and that the personal respondent had personally recruited him to work at the Madison Lofts project.

WORK ASSIGNMENTS

11The complainant testified that he has had 13 years experience in the construction industry and has a broad range of applicable skills. He testified that he has principally worked as a carpenters’ assistant and that he was hired at the Madison Lofts project as a carpenter’s assistant. He stated he was assigned to work with a carpenter on the first day but was then re-assigned to do the work of a general labourer. A general labourer does a range of tasks including cleaning up of the job site. It was clear the complainant saw the work of the general labourer as a demotion.

12The complainant testified that a number of his work assignments were also not safe and specifically referred to an assignment where he was required to walk across an area in which earth moving machines were operating in order to collect some nails from the shack. He also referred to an assignment on November 29 where he had to work in a trench while a Bobcat, a small earth moving machine, was operating in close proximity.

13The complainant testified that the personal respondent would over scrutinize his work and would threaten him by suggesting his days were numbered in the company if he did not get his work done. The complainant testified that the personal respondent would also swear at him saying things such as “Fucking Broomfield, you have 15 minutes to clean up”. The complainant found these types of comments demeaning and not respectful given his work experience and skills.

14In response, the personal respondent testified that there was no such job category as a carpenter’s assistant, that there were simply carpenters and general labourers. He testified that the complainant was one of seven general labourers at the Madison Lofts project site (the personal respondent specifically named the seven from a November 24, 2006 time sheet for the Madison Loft project that was in evidence) and that while general labourers often helped carpenters, they were also expected to do a broad range of jobs including cleaning up. The personal respondent went on to state that the complainant’s did get re-assigned tasks in part because he was not a good worker. He cited an example of the complainant being asked to stack building materials and not appropriately sorting the material into different piles. The personal respondent stated that any person with experience in construction ought to have known how to do this task.

15The personal respondent testified that he assigned the complainant to work with a carpenter on his first day but that later the carpenter told him that he was not happy with the complainant’s work and would not work with the complainant again. The complainant allegedly did not take instructions and kept telling the carpenter how to do his job. The personal respondent stated the next day he assigned the complainant to work with another labourer, John Vincente, only to be told later by Mr. Vincente that the complainant refused to strip footings because the job was too demeaning (it required working in the mud). The personal respondent testified that he subsequently assigned the complainant to work with Mr. Hammith and another carpenter, Wilfred Benjamin, only to be told later by Mr. Hammith that the complainant would go missing and was not doing the required task. According to the personal respondent Mr. Hammith stated that he did not want to work with the complainant and consequently the personal respondent now had the problem of two carpenters refusing to work with the complainant.

16The personal respondent testified that he began to assign the complainant easier tasks. He denied threatening the complainant by saying his days were numbered or that he over scrutinized the complainant’s work, as alleged. He denied that any of the complainant’s assigned tasks were dangerous, suggesting that when he ordered the complainant to get some nails from the shack, a situation the complainant described as unsafe, the complainant could have gotten the nails by taking a well established alternate route that did not require him to cross the area where earthmoving machines were operating.

17The personal respondent later testified about his general concern about safety, that as foreman he was accountable for safety on the job site and that he was strict about safety as he did not want any injury to occur. He testified that he worked closely with Highview’s dedicated safety inspector.

18Mr. Mara Del Rosario and Mr. Hammith both testified that they had worked with the complainant. Mr. Mara Del Rosario testified that he was a general labourer and that he did not like working with the complainant as he was slow to complete assigned work. He testified that during the course of his time at the Madison Lofts project the complainant was given progressively easier tasks because of his difficulty in completing work as required. Mr. Mara Del Rosario also testified that the complainant was not singled out to do clean up tasks. He identified five general labourers who regularly did clean up. He also testified that he had no concerns about safety while working at the Madison Loft project.

19Mr Hammith was employed at the Madison lofts project as a carpenter. He testified that he also worked with the applicant. He remembered working on one task together where they were required to remove joists out of the garage. He testified that during this job the complainant disappeared, in effect excusing himself from the work.

NOVEMBER 29 INCIDENT

20The complainant testified that on November 29 he was assigned to work on his own in a trench in the corner of the parking garage. He believed this to be a dangerous assignment given that there was a Bobcat in the trench and the area was congested. He testified that the Bobcat was actually moving towards him when he was in the trench and that when he attempted to move away he inadvertently knocked over the transit level, a piece of equipment used to measure heights and levels. He stated it was an accident and that he had not been warned about the need to be careful about the transit level. He testified that it was later that day he was told by the personal respondent that he was being let go because of a shortage of work. The complainant testified that he did not believe this explanation as on that very day four new employees had been hired.

21The personal respondent testified that on November 29 the rain prevented any substantive work from being done and that most personnel (except for a few carpenters) were assigned to do cleanup. He testified that the complainant was assigned to do clean up in a small area of the parking garage filled with debris. The personal respondent named six persons who were working near the complainant. He testified that no machines were in operation that day including the Bobcat. He stated that there was no trench in the parking garage at that time. He testified that he specifically told all personnel to avoid the area where the transit level was set up given that it was an expensive piece of equipment. He specifically described having done so while unwrapping the transit level from its box. He testified that despite the warning and despite the fact that the level was in the open and was easy to avoid the complainant proceeded to knock it over causing over $3,000 in damage. A repair bill for the amount for $3,219.32 was submitted as evidence by the respondents.

22The personal respondent testified that he was indeed angry with the complainant but waited until later in the day to deal with him. He testified that he decided to end the complainant’s employment based on the complainant’s poor job performance and his damage of the instrument and not wanting to “put up with his bullshit anymore”. He testified that while he considered dismissing the complainant for cause he ultimately decided to lay him off in order to allow the complainant to more easily obtain employment insurance benefits or find other work.

23Mr. Mara Del Rosario testified that on November 29 a number of persons were assigned to do clean up in the garage including himself, the complainant and other general labourers. He testified that he did not remember the Bobcat noting that it was rainy and there was lots of mud and that he believed the Bobcat was parked “up top” (i.e. not in the garage). He testified that everyone had been told earlier by the personal respondent to not go near the transit level and that the area around the transit level was not congested, being clear for 20 feet around. He testified that he did see the complainant knock over the instrument.

24Mr. Hammith testified that he was also working in the garage on November 29. He testified that the personal respondent had told everybody to be careful about the transit level. He testified that the Bobcat was not operating that day because of the rain and he did not believe conditions in the garage were dangerous that day.

25The complainant briefly testified about events that took place after he was laid off. He testified that he happened to see the owner of Highview, Frank Cerquozzi later on November 29 and was told by Mr. Cerquozzi that he was a good worker and that he would be put back on the job. However, the complainant waited for two or three weeks and nothing came of this offer from Mr. Cerquozzi.

26The complainant testified that he spoke to his union representative who tried to contact Highview but later told the complainant he was unable to get anywhere with the company and suggested that the complainant was better off getting legal advice and looking for other work.

27The complainant testified about the difficulties he had finding work after the Madison Lofts project and the impact his experience with the project had on him. He made a request for both general and specific damages. However, I will not describe this evidence in any detail given that the complainant’s complaint is dismissed and there are no remedies being awarded.

ANALYSIS

28Section 5 of the Code prohibits discrimination in employment on the basis of, among other things, place of origin, ethnic origin and race, and section 5(2) protects against harassment in the workplace on the same basis. In this case, my findings rest ultimately on my determinations about the factual circumstances, and whether the complainant has established that he was subjected to discriminatory comments and treatment on the basis of his place of origin, ethnic origin or race.

29I begin by stating that I found the testimony of the personal respondent and Mr. Hammith and Mr. Mara Del Rosario to be generally credible. In determining the credibility of the witnesses I have relied on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A):

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility....The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken

30The personal respondent’s clear, specific and detailed recollections of the complainant and what took place during the period of November 21-29, 2006 contributed to the personal respondent’s credibility as did the corroborating evidence of Mr. Hammith and Mr. Mara Del Rosario. The personal respondent is a civil engineer with 21 years experience supervising in the construction industry. His evidence about the nature of the construction industry, the requirements of supervision, the nature of job categories (e.g. carpenters and general labourers) and job site safety was persuasive and further contributed to his credibility. Parts of this evidence were also corroborated by Mr. Hammith and Mr. Mara Del Rosario.

31By contrast the complainant’s recollections of what took place at the Madison Lofts project were relatively vague, generally less probable and did not have the benefit of any corroborating evidence. There was the further oddity that the complainant vehemently denied having ever worked with Mr. Mara Del Rosario or Mr. Hammith notwithstanding their detailed evidence to the contrary and the documentary evidence indicating that both men were employed at the Madison Loft project at the same time as the complainant. The complainant also challenged the testimony of the other witnesses as to how far the construction on the Madison Loft’s parking garage had progressed at the time he was at the project, suggesting it was not as far advanced as maintained by the other witnesses. There is no reason for the other witnesses to fabricate their evidence on this point. The fact that the complainant could not remember Mr. Hammith or Mr. Mara Del Rosario and, to some degree, the physical conditions of the job site lessen his credibility before the panel.

32The complainant did argue that Mr. Hammith and Mr. Mara Del Rosario were beholden to the respondents and consequently their testimony should be given less weight. The circumstances do not bear this out. The two witnesses no longer work for Highview and the personal respondent now lives in Calgary, so their future employment is not dependent on the respondents. However, more importantly, the evidence of Mr. Hammith and Mr. Mara Del Rosario was clear, full of convincing detail and highly consistent. It was not, in my opinion, contrived.

33The complainant is evidently a proud man who testified, on several occasions, that he found that the personal respondent’s treatment of him to be demeaning. It was clear that he felt that he was a carpenter’s assistant rather than a general labourer. He felt there was a clear distinction and that as a carpenter’s assistant there were jobs that he should not be expected to do. He had firm opinions about conditions at the Madison Lofts work site. It was clear that there were criticisms of his work that he did found unwelcome. However, I do not find reliable or ultimately persuasive his contention that he was subject to harassing comments related to his race, place of origin or ethnic origin or that the treatment he received was discriminatory in nature.

34I find that the personal respondent did not make a comment to him on May 21 about Jamaicans, suggesting that he either did not want Jamaicans on his job site or believed that Jamaicans cannot effectively work in the construction industry. The personal respondent denied this statement. Mr. Mara Del Rosario and Mr. Hammith, both of whom identify as Black, denied hearing this statement. Mr. Hammith who is of Jamaican origin and who testified that he specifically recalled the exchange between the personal respondent and the complainant on November 21, stated he did not hear any disparaging comments about Jamaicans. It is significant to note, in my opinion, that Mr. Hammith was personally recruited to work on the Madison Loft project as a carpenter by the personal respondent which does not seem an action in keeping with a discriminatory attitude about Jamaicans.

35The complainant did not identify any further comments by the personal respondent about Jamaicans in his testimony. The complainant did state that the personal respondent made threatening comments to him and often swore at him. However, all the witnesses, including the complainant, stated that the personal respondent swore a great deal at all employees and that he was a demanding supervisor with expectations that work got done according to schedule. The complainant has not shown that the personal respondent’s swearing or demands about getting work done related to his race, ethnic origin or place of origin or that they constituted harassment or contributed to a poisoned work environment, related to a protected ground.

36I am satisfied that the complainant was treated as he was because of job performance. The evidence is that he was initially assigned to work with a carpenter. According to the personal respondent the complainant had difficulty working with two different carpenters. The personal respondent described work assignments he believed the complainant failed to effectively carry out, for example sorting a pile of materials. Mr. Mara Del Rosario and Mr. Hammith both testified that they felt the complainant had work performance issues. I found the testimony of these three witnesses to be consistent and credible on this point.

37A central contention of the complainant was that he had been hired as a carpenter’s assistant and a number of his assignments unfairly had him doing the work of a general labourer, including clean up. I did not find this argument persuasive. The respondent produced five Record of Employment certificates issued by different employers listing the complainant’s occupation as “general labourer” including his Record of Employment with Highview. The oral testimony of the respondents’ witnesses was that there was no job category of carpenter’s assistant, that general labourers did a range of jobs including helping carpenters. There is no evidence that the nature of the jobs assigned to the complainant was inconsistent with being a general labourer. I am also satisfied that there were other general labourers at Madison Loft project who also did duties similar to those assigned to the complainant. I am also not persuaded that the complainant was assigned to tasks that were unsafe given the testimony of the respondents’ witnesses about work conditions at the Madison Lofts project site.

38I find the evidence as to what occurred on November 29 to be clear and strong evidence in the respondents’ favour. The complainant maintained he was sent to work on his own in an unsafe area and that when he attempted to avoid an approaching Bobcat he accidentally broke a piece of equipment. He suggested that the accident was understandable given the danger he was in and because of the restricted area he was working in. He denied having been warned about avoiding this equipment. I prefer the evidence of the other witnesses that repeatedly and very specifically suggested that the complainant was working with other employees on clean up that day and that there were no vehicles in operation. I am satisfied that everyone, including the complainant, had been warned to be careful and avoid the transit level.

39Finally, I find the personal respondent’s evidence that rather than terminating the complainant he laid the complainant off on the basis of “shortage of work” in order to assist the complainant to be credible. In the circumstances, the decision to lay the complainant off is not inconsistent with the apparent decision to hire four other employees, and is not evidence that the complainant’s termination was discriminatory.

40Although counsel for the respondents provided the Tribunal with extensive case law. I do not need to rely on these materials in order to make my decision in this case. For all these reasons the complaint is dismissed.