Capetola v. Elevator Components Industries, 2009 HRTO 201

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Claudio Capetola

Applicant

-and-

Elevator Components Industries Inc. and Walter Glaser

Respondents

DECISION

Adjudicator: David Muir

Date: February 25, 2009

Citation: 2009 HRTO 201

Indexed as: Capetola v. Elevator Components Industries

1This is an Application filed August 20, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A Case Resolution Conference was held in Toronto on January 28, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant and one witness called in support of the applicant as well as the individual respondent and several employees of the respondent corporation.

3The applicant, who self identifies as a male of Italian origin, alleges that he experienced a poisoned work environment as a result of incessant name calling by co-workers which was known to the respondent employer.

4The applicant was first employed by the respondent employer in 1996. He testified that the workforce of the employer was predominantly East Asian, although he could only identify five out of 40 employees whom he believed were East Asian. His supporting witness, Wayne Lawrence, testified, in contradiction, that the workplace was predominantly Filipino and Polish. The employer testified that there was no ethnic group that dominated in the workplace. On the basis of the evidence, I am not satisfied that the complainant has established that the workplace was dominated by any ethnic group.

5The applicant testified that he was subjected to name calling such as wop, gino, and grease.

6Mr. Lawrence, who worked at the workplace from 1995 to 1998, testified that he witnessed name calling and racial slurs on a daily basis while employed there. However, Mr. Lawrence also stated for the most part this language was used in a joking manner, and that he sometimes referred to the applicant in such terms, also in a joking manner. At the same time, the witness stated that the name calling could become nasty at times. The witnesses relied upon by the respondent employer all denied ever hearing any racial taunts or name calling.

7While the applicant claimed to have raised his concerns with management on a number of occasions, I find that he only went to Tony Kushler, the prior owner of the business and now deceased. He stated that he did so on two occasions; however it is not clear from his evidence what the applicant told Mr. Kushler. After one such complaint the applicant stated that there was a meeting of workers where Mr. Kushler spoke to the employees about getting along better with each other.

8The applicant’s evidence was too vague with respect to the alleged name calling during the early period of his employment to satisfy me that it rose to the level of a poisoned work environment.

9The applicant testified that the name calling continued after 1998. There is no supporting evidence for the post 1998 period and, as indicated, the employer’s witnesses deny ever witnessing such name calling. The applicant conceded that he did not raise these issues with the new owner, Mr. Glaser, or with any of his supervisors.

10The applicant also asserted that these incidents caused him considerable stress, as well as anxiety, sleeplessness and weight loss. Despite these serious consequences he did not seek medical attention, except on one occasion, in either 1998 or 2000 when he went to see a physician about a twitch in his eye. The physician is said to have advised the applicant that the condition was stress related.

11The applicant stated that after he became a lead hand in 2004 he discovered that his East Asian co-workers were upset with his promotion and began subjecting him to discrimination and harassment because they preferred an East Asian supervisor. At the Case Resolution Conference the applicant was unable to describe in any detail any single incident that would support this contention.

12Again, I find that the applicant’s evidence was so vague and unconvincing that I am not persuaded on a balance of probabilities that his work environment was poisoned by name calling post 1998.

Order

13The Application is dismissed.