Chau v. Olymel S.E.C./L.P., 2009 HRTO 1386

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thao Ngoc Chau Applicant

-and-

Olymel S.E.C./L.P. Respondent

-and-

United Food & Commercial Workers Canada, Locals 175 & 633 Intervenor

DECISION

Adjudicator: Faisal Bhabha Date: September 1, 2009 Citation: 2009 HRTO 1386 Indexed as: Chau v. Olymel S.E.C\L.P.

APPEARANCES

Thao Ngoc Chau, Applicant ) Cecil Norman, representative Olymel S.E.C\L.P., Respondent ) Stephen Bernardo, Counsel United Food & Commercial Workers Canada, Locals 175 & 633, Intervenor ) Marcia Barry, Counsel

INTRODUCTION

1This is an Application filed on July 30, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). The applicant alleges that he was discriminated against and harassed in his employment on the basis of race, ancestry, place of origin and ethnic origin.

2The Tribunal issued an Interim Decision, 2009 HRTO 562, dealing with a number of preliminary issues including a request to intervene by the Union and a request for particulars by the respondent. The applicant filed particulars two days after the deadline set in the Interim Decision. The respondent took the position that the applicant's particulars were insufficient.

3The hearing was held in Toronto on June 10, 2009.

PRELIMINARY ISSUES

4At the outset of the hearing, the parties each raised preliminary issues. First, the applicant took the position that two individuals, John He and Michel Boudreault, were personal respondents and ought to be named in the style of cause and be expected to appear before the Tribunal. The respondent adamantly denied the two men were named as personal respondents. Counsel argued that there is no indication that the applicant ever tried to serve documents on these individuals, or that the Tribunal gave them notice of these proceedings. Based on the submissions of the parties, and my own review of the Tribunal file, I concluded neither was named as a personal respondent. I refused to order that they be added this late in the proceedings.

5The applicant next requested that the case be referred to the Ontario Human Rights Commission (the "Commission") for a "systemic investigation". No authority for such a referral was provided, though it appears that the applicant may have been invoking the power contained in section 45.4 of the Code:

45.4 (1) The Tribunal may refer any matters arising out of a proceeding before it to the Commission if, in the Tribunal's opinion, they are matters of public interest or are otherwise of interest to the Commission.

(2) The Commission may, in its discretion, decide whether to deal with a matter referred to it by the Tribunal.

6I heard submissions from the parties on the issue. The applicant's representative argued that all of the witnesses who the applicant intended to call were frightened to testify (due to alleged intimidation by the employer), necessitating the immediate initiation of a systemic investigation by the Commission. Respondent's counsel argued that the request was an abuse of process intended solely to ruin the respondent company's reputation with unproven claims.

7I ruled orally against the applicant. The applicant's request was made at the opening of a scheduled two-day hearing. To grant this request would have necessitated ordering a substantial adjournment, making a referral to the Commission, waiting for the Commission to decide whether to deal with the issue, and then determining next steps. This was not the most fair, just and expeditious way of proceeding.

8The only reason provided in support of the applicant's request for referral was that witnesses had been allegedly intimidated into not testifying in this hearing. No evidence was adduced to prove this claim. Not only did the applicant not raise the issue of witnesses in advance of the hearing, he failed to comply with his essential pre-hearing disclosure obligations, contained in Rules 16 and 17, requiring disclosure of witness names and anticipated testimony. To date, the applicant has not identified the proposed witnesses. Moreover, there is no evidence that the applicant made any attempts to compel the attendance of any witness through service of a summons. In the face of these circumstances, there was no basis for granting the applicant's preliminary request.

EVIDENCE

9The applicant, Thao Ngoc Chau, who is originally from Vietnam and gave his testimony through an interpreter, testified that he had worked with the respondent company since 1995 with virtually no problems. He testified that more than half of the respondent's employees are of Vietnamese or Chinese origin, and that it was a tolerant workplace for members of these communities.

10Upon the commencement of Michel Boudreault's tenure as supervisor, Mr. Chau testified that things began to change. He stated that Mr. Boudreault complained that Mr. Chau's English was poor, his accent unintelligible and that he would likely eventually lose his job for it. He was unable to provide any supporting details about the circumstances in which these statements were allegedly made and further testified that he did not know if Mr. Boudreault was serious or joking. He stated that the comments, nonetheless, caused him significant consternation and hurt feelings.

11Mr. Chau testified that the situation with Mr. Boudreault worsened, starting around June 2007. First, Mr. Chau had been delegated for a month to train another employee in his job. Then, he learned why: on August 28, 2007, he was called into a meeting with Mr. Boudreault and was advised that he was being bumped out of his job. Working a Grade 5 position, Mr. Chau says he was told to choose between two Grade 3 level jobs, which he felt to be a demotion.

12Mr. Chau believes that he was treated unfairly, effectively given no choice in decisions affecting his career and no opportunity to meaningfully deliberate about his needs and preferences. A big part of his discontent with the process was the way he felt Mr. Boudreault treated him. He testified that he felt bullied and ridiculed and, as a result, was not given the same opportunity to exercise his bumping rights as other employees in the same situation. He felt his English-language deficiencies were used against him.

13Mr. Chau further testified that he believed his employer and union had worked together to force him into a lower level position. He stated: "Michel [the manager] didn't treat me fairly; Gill [the union rep] didn't help me but rather took the side of the employer."

14Mr. Chau also gave evidence about an incident that occurred in June 2008 when a Quality Control staff member, whose name he could not recall, deposited a few pieces of chicken on the lunch table where Mr. Chau and some colleagues were seated, and stated "This is dog food for you." Mr. Chau testified that he understood the co-worker to be referring not to himself alone, but to the table, which was occupied by mainly Chinese and Vietnamese employees. Mr. Chau testified that he and the others at the table felt angry and frustrated by the comment. He believed someone complained about it to a union representative, Linh Lien, and asked her to raise the issue with the supervisor. Mr. Chau had no knowledge of any follow-up.

15On cross-examination by respondent's counsel, Mr. Chau acknowledged that he understood the company had shut down its weekend shift in August 2007 and that the person who replaced him in his job, Ruben Bulawan, was a more senior employee who held a Grade 6 position on the weekend shift. Mr. Chau understood that when Mr. Bulawan was laid off, his bumping rights under the collective agreement were triggered, entitling him to bump into Mr. Chau's job. In turn, he could also bump into a position held by any lower-seniority employee.

16Mr. Chau emphatically maintained on cross-examination that when he was called into Mr. Boudreault's office on August 28, 2007, he was not presented with options, but rather was told that he would be bumping into the lowest seniority, Grade 3 position. He testified that he felt this was unfair because Mr. Bulawan had not been forced to bump into the lowest-seniority Grade 5 position, held by an individual whom all the parties referred to as Jogi, which would have preserved Mr. Chau in his position.

17On cross-examination by the intervenor's counsel, Mr. Chau testified that he had filed a grievance, dated August 30, 2007, making the following complaint: "Not bumping according to seniority; Jogi is lower in seniority than Chau but not bumped; Chau not satisfied." He testified that his union representative, Ms. Lien, who is fluent in Vietnamese, assisted him in filing the grievance.

18Union counsel tried unsuccessfully to assist Mr. Chau to recall attending a grievance meeting in mid-September 2007 where he was given the option of bumping into Jogi's Grade 5, split-shift position. Mr. Chau stated that his only specific recollection was of his August 28 discussion with Mr. Boudreault, but acknowledged that he attended many meetings with union and management officials.

REQUEST TO DISMISS

19Upon the completion of the applicant's evidence, counsel for the respondent requested that the Tribunal dismiss the Application for failing to establish a prima facie case of discrimination. Counsel argued, first, that the request should be granted for procedural reasons. Because of the applicant's serious breaches of the Rules regarding particulars and disclosure, there could be no prima facie case to meet because there was no evidence properly before the Tribunal. He asked the Tribunal to refuse to accept any of the applicant's evidence and to dismiss the case on that basis.

20Respondent's counsel alternatively urged me to find, even on the evidence before me, that there is no prima facie case. Counsel argued that the allegations were extensive, spurious and scurrilous, and that the evidence is scant.

21Regarding the "language issue", counsel argued that the applicant provided no dates, locations or context. Counsel also noted that there is no evidence that the applicant has a language deficiency, other than his own claims to that effect. Further, he argued that there is no evidence of a nexus between the applicant's alleged language deficiency and his claim of ethnic or racial discrimination.

22Regarding the "chicken incident", respondent's counsel argued that the allegation concerns statements attributed to a bargaining unit member, not management. Counsel submitted that there is no evidence, other than hearsay, that the matter was ever brought to management's attention. If it was reported, there is no evidence as to what was said or done. On this basis, the respondent asked me to rule that there is insufficient evidence to make a finding of company liability with respect to the "chicken incident".

23Finally, regarding the "demotion", respondent's counsel argued that this issue related entirely to the operation of the collective agreement. Counsel argued that the applicant understood the difference between a "bump" and a "demotion", and that the respondent's evidence would clearly establish that the applicant was offered various positions at Grade 5, Grade 4 and Grade 3, and that he made an informed choice from among the available jobs, based on his shift preferences.

24The union intervenor was also afforded an opportunity to make submissions. Counsel echoed the respondent's argument that the applicant was bumped in accordance with the collective agreement. On that issue, the union argued that the August 2007 grievance, filed by the applicant, clearly demonstrated that the applicant understood what bumping meant and that he was subject to the same bumping process and rights as every other affected employee.

25In opposing the request, the applicant's representative argued that his client's non-compliance with the Rules was minor and that the respondent suffered no prejudice. He noted that the applicant attended the hearing with no witnesses or evidence (other than himself), and therefore had nothing to disclose in advance of the hearing.

26The applicant's representative further argued that his client had met the test for establishing a prima facie case: he proved that he is an individual from Vietnam, he has limited English, he worked for the employer, he was denied his basic right to exercise bumping rights and was demoted from Grade 5 to Grade 3, and he was treated differentially because of his race and/or language deficiencies (which are a proxy for racial discrimination). He further argued that the respondent had failed to establish a prima facie defence. On the basis of the foregoing factors, the applicant's representative urged me to infer from the circumstantial evidence a nexus between Mr. Chau's race, ethnic origin, place of origin and ancestry, and the treatment to which he was subjected at the hands of his employer.

ANALYSIS

27The applicant bears the onus of establishing a prima facie case of discrimination, which can be described as a factual foundation for allegations which, if believed, provide a complete and sufficient basis for finding in the applicant's favour, before considering any responding evidence. Only after the applicant establishes a prima facie case does the onus shift to the respondent to provide a credible and rational explanation, or raise a statutory defence, to demonstrate on a balance of probabilities that the applicant's allegations do not amount to discrimination.

28It is not difficult to establish a prima facie case of discrimination. The Tribunal does not hold applicants to an exacting standard of proof at this stage of the proceedings, given the Tribunal's access-to-justice mandate, and the longstanding interpretive principle of giving "large and liberal" meaning to human rights legislation: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114.

29Yet, where an applicant clearly fails to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to proceed with the Application and to require the respondent to bear the onus of making out a reasonable defence: see Jagait v. IN TECH Risk Management (2009), HRTO 779 at para. 19.

30I am persuaded that the applicant has failed to make allegations and adduce sufficient evidence that could enable me to make a finding of discrimination, regardless of the evidence that may or may not be introduced by the respondent.

31This finding is based on the evidence put to me in the applicant's presentation of his case. While the respondent argued that the applicant's technical breaches of the Rules are reason enough to dismiss the Application, it is unnecessary for me to reach that conclusion.

32There are no facts before me that could give rise to a finding that the respondent administered the lay-off in August 2007 in a discriminatory manner. Mr. Chau was dissatisfied with the fact that Mr. Bulawan, a more senior employee, bumped him when there was a more junior employee who could have—and in Mr. Chau's view, should have—been bumped. He does not allege that this bump was discriminatory.

33It appears that a substantial amount of Mr. Chau's dissatisfaction with the bumping process concerns the union's conduct. However, the union is not a respondent in this Application and the question of union liability is not before me. Other proceedings currently underway are addressing additional issues arising out of the same facts. Mr. Chau filed a grievance related to the bumping process and currently has a duty of fair representation complaint pending against the union with the Ontario Labour Relations Board.

34I am also unable to find a sufficient evidentiary basis for Mr. Chau's allegation that the result of the bumping process was, in effect, a demotion instigated by Mr. Boudreault, and related to Mr. Chau's lack of English proficiency. The allegations against Mr. Boudreault are so lacking in detail that they do not amount to a case requiring a response from the respondent. Mr. Chau gave insufficient detail as to the time and place of the alleged threat. Moreover, there were conflicting claims. In his Application, Mr. Chau alleged that Mr. Boudreault expressly threatened him with termination, while in his testimony he described the threat as implied, and stated that it may have been a joke. Either way, in the absence of a clear and consistent account of the allegation, supporting details and any corroborating evidence, I cannot find a prima facie case of discrimination arising from the allegations relating to Mr. Boudreault.

35Even if I were to accept that Mr. Boudreault made a statement of some sort in reference to the applicant's English-language proficiency, the mere fact of the comment is not sufficient to establish a prima facie case of racial discrimination: see Henry v. Kuntz, 2004 HRTO 7 at paras. 356-357. While language is not a prohibited ground of discrimination, it can be a defining characteristic of ethnicity or race, and as a consequence can give rise to interests protected under the Code: see Espinoza v. Coldmatic Refrigeration of Canada Ltd. (1995), 95 C.L.L.C. 230-026, 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 (Ont. Bd. Of Inquiry), aff'd 1998 CarswellOnt 3825 (Ont. Dist. Ct.). The onus is on the applicant, however, to present sufficient facts to support a finding that language is being used as a proxy for racial or ethnic discrimination, which the applicant in this case failed to discharge.

36Finally, with regard to what appears to be an unrelated, independent incident, which I have called the "chicken incident", the evidence is simply too scant and speculative to find a prima facie case. The applicant argued that the main cause of the racially poisoned workplace was Mr. Boudreault, yet the chicken incident occurred a long time after Mr. Boudreault had left the company. The applicant did not call any of the individuals who witnessed the incident. He also failed to provide key details of the incident, including the name of the individual alleged to have made the discriminatory comment. It is clear, however, that the individual was not a manager. Therefore, even if I accept that the incident occurred, there is still no evidence before me regarding company knowledge of the incident, beyond Mr. Chau's second and third-hand hearsay testimony. On the evidence, it would be impossible for me to find the company vicariously liable for the actions of a nameless, non-managerial employee, or liable for tolerating discrimination about which it had no knowledge or information.

ORDER

37The Application is dismissed.