Sun Yuen Leung v. 798065 Ontario Limited o/a Concept Tooling & Manufacturing, 2010 HRTO 1426

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sun Yuen Leung

Applicant

-and-

798065 Ontario Limited o/a Concept Tooling & Manufacturing, Dave Hisey and Keith McNair

Respondents

DECISION

Adjudicator: Mary Anne McKellar

Date: June 29, 2010

Citation: 2010 HRTO 1426

Indexed as: Leung v. 798065 Ontario

APPEARANCES BY

Sun Yuen Leung, Applicant ) Self-represented )

798065 Ontario Limited o/a Concept Tooling ) Doug McNair,

& Manufacturing, Respondent ) Representative

Dave Hisey, Respondent ) Self-represented

Keith McNair, Respondent ) Did not appear

INTRODUCTION

1This is an Application under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (“the Code”). It was filed with the Tribunal on March 24, 2009. The underlying complaint to the Human Rights Commission (the “Commission”) was filed on November 8, 2004. The applicant alleges discrimination in employment on the grounds of ancestry, ethnic origin, place of origin and race.

2The corporate respondent is properly identified as 798065 Ontario Limited o/a Concept Tool & Manufacturing. The style of cause is amended accordingly.

3The personal respondent, Keith McNair did not file a Response to the Application nor did he attend the hearing although I am satisfied he received notice of it.

4A hearing was held on May 20, 2010. I questioned the applicant, the personal respondent, Dave Hisey, the organizational respondent’s owner, Doug McNair, and its Office Manager, Maureen Short. Opportunity for questioning of each witness by the party (or parties as the case may be) opposite was also provided. The answers of each witness were made under affirmation. My findings of fact below are based on the testimony of the witnesses and the documentary evidence admitted.

Scope of the Application

5The hearing was confined to the allegations set out in the Application, which appended the original complaint filed with the Commission. Several years subsequent to the date of the complaint, and some time after filing the Application with the Tribunal, the applicant clarified his remedial request to seek recovery of certain WSIB benefits on the basis of his assertion that the organizational respondent had interfered with or colluded with the WSIB to prevent him from receiving those benefits. I made no inquiry into these matters as they are outside the scope of the original complaint and therefore not properly before me in an application brought pursuant to section 53(5) of the Code.

The Facts

6There is no material dispute about the identification of the parties and the chronology of the applicant’s relationship with the respondents. I start with a recitation of these facts and then turn to the allegations raised in the Application. The applicant self-identifies as Chinese. He is from Hong Kong, where he was trained as a tool and die maker.

7The corporate respondent is a small family business, with approximately 25 employees in total. Doug McNair is the owner and works on-site each day. His wife, Arlene, also works in the administration of the business but is not generally on site. Doug McNair’s two sons, Keith and Kevin, also worked in the business at the relevant time.

8The applicant was hired by the corporate respondent in March 1998. There is some dispute about his job title, which I address later.

9Keith McNair was the applicant’s immediate supervisor, and worked with him daily. Dave Hisey was the Plant Manager. Both Mr. Hisey and the applicant agreed that they would not normally have had occasion to speak to one another more than once or twice per week, and then only briefly.

10The corporate respondent downsized throughout the course of 2004 and terminated the employment of a number of employees. The applicant was laid off indefinitely in late August, but remained in receipt of benefits paid for by the corporate respondent. The applicant was the only employee who was laid off rather than terminated.

11The corporate respondent’s benefits carrier changed shortly after the applicant was laid off. The corporate respondent made several attempts in writing to contact the applicant and have him fill out the requisite forms so that his benefit coverage could continue uninterrupted. These efforts were made in October 2004. The applicant did not follow up on them.

12The corporate respondent also wrote to the applicant on November 15, 2004, seeking to have him come in and meet with Doug McNair. The latter testified that his intention was to talk to the applicant about his return to work, although he agreed that the letter does not make this intention explicit. The applicant did not respond to the letter, either verbally or in writing. A second letter, dated November 23, 2004, purports to be a follow-up to the first, and does refer specifically to a return to work. The applicant claims this letter is a “fabrication” and that he never received it.

13On November 25, 2004, the applicant made the first of several applications for WSIB benefits.

14Under cover of a letter dated November 29, 2004, the Commission delivered a copy of the applicant’s complaint dated November 8, 2004 to the respondents.

15The complaint is quite brief. In its entirety it reads:

I am Chinese and I have been an employee with Concept Tool & Manufacturing for 6 years as a Tool and Die Maker.

For a year, I have been subjected to racial discrimination. Some of the differential treatment that was subjected to included the following:

1. On more than one occasion, I was scolded with the words: “Fuck Chinese” and was threatened to be beaten by Jeff, a co-worker who is the best friend of Supervisor in the company.

2. I was told by Keith (supervisor) not to drive the tow motor because I had no license. However, other workers including Jeff without license were allowed to drive the tow motor.

3. On August 17, 2004, Kelvin [Kevin], Dough’s [Doug’s] son, asked me to perform Job #3935. It involved using a big PROTH grinding machine to grind off 0.13 inches by punch cut method. I refused to carry out the job because it was very dangerous and it would cause fatal industrial accident. Moreover, every other worker knew that the machine had some mechanical problems such as the grinding wheel suddenly lowered down 0.02 inches. Nevertheless Kelvin [Kevin] insisted to push me to do the job in his way using the bad machine. On August 18, 2004, I accomplished the job using a safe method by another good working machine. Dave, the Manager, scolded me when he saw me finished the job. He blamed me for not using the bad machine to do the job. I gave him the reason that I could do the job in a safer method by using a good working machine. I did not use the bad machine because it would put my life into danger. Dave was very angry with me. He grabbed at my chest and pulled me to hit the toolbox. It made me feel painful. I said I did not want to fight. He said, “I am not beating you. I am teaching you. Stupid Chinese!”

4. On August 20, 2004, Keith told me that Dave laid me off. On August 23, 2004, at about 2:00 p.m., when I was moving the toolbox, Dave came up to me and said, “What do you feel?” I ignored what he said, but he got closer to me and closed his hands tightly as fists. I was scared and I called Keith loudly to come. As soon as Keith approached, I go out of there.

5. In my career life, I have trained many machine operators and Tool and Die Apprentices and upgrade them as Tool and Die makers. I was employed as Tool and Die maker. But the company downgraded me as a machine operator 5 years ago without any reason. It only happened to me, the only Chinese Tool and Die makers in the company, not any other people.

6. They used to set me as a target; used 5 powerful fans surrounded and blew at me in the winter.

I believe that the management has threatened, intimidated and harassed me because of my race. The harassment affected my health. I strongly believe that this type of differential treatment amounts [sic] the definition of discrimination under the Human Rights Code.

16In the course of the hearing, I took the applicant through his complaint paragraph by paragraph. My factual findings with respect to each of the six allegations is set out below, starting with the allegation in the second paragraph.

17The applicant admitted that he did not possess a license to drive the tow motor. After a considerable amount of questioning at the hearing, he conceded that he did not in fact know if others had the requisite license or not. The corporate respondent had submitted to the Tribunal copies of certificates indicating that a number of individuals did, and these had apparently earlier been disclosed to the applicant during the course of the Commission’s investigation of his complaint.

18The applicant at this point suggested that he was prevented from taking the training that led to the license, and that this occurred because he is Chinese. As I understand it, this training occurred sometime in 2003. The complaint was never amended to include this allegation, and it is not therefore properly before me.

19Even if the complaint had been properly amended however, the evidence does not establish on a balance of probabilities that the applicant was deliberately denied a training opportunity because he is Chinese. The applicant did not attend the training. I am prepared to believe his evidence that he did not know about it. That does not lead me to conclude, in the absence of any evidence except his suspicion, that he was deliberately excluded, particularly as the corporate respondent, through Ms. Short, indicated that the training had been offered on two separate Saturdays and that notice of the training had been posted on the employee bulletin board.

20I find there is no basis for concluding that the applicant’s race, ancestry, ethnic origin or place of origin contributed in any way to the fact that he was not licensed to drive the tow motor. I further find that there is no basis for concluding that Keith McNair refused to allow the applicant to drive the tow motor for any reason other than that he was not properly licensed to do so, unlike the other employees who were permitted to drive it.

21The applicant and Hisey agree that they had a dispute about a certain task assigned to the applicant, and that this occurred on August 18, 2004. Consistent with paragraph 3 of his complaint set out above, the applicant testified that the dispute arose because he questioned the safety of using a particular grinder (PROTH) to complete the task, and wanted to use a different grinder. The applicant repeated his view that using the PROTH grinder would lead to a fatality.

22For his part, Hisey testified that he had no knowledge of any complaints about the safety of the PROTH grinder and indicated that it remains in use in the shop to this day. Furthermore, Hisey said there is in place a protocol for reporting that a piece of equipment needs servicing or repair and he was not aware of any having been filed in respect of this machine. Doug McNair echoed this evidence and also added that, even had the PROTH machine exhibited the mechanical problem that the applicant attributed to it, it was a gross exaggeration to suggest that that problem would render the machine unsafe to operate to the point that a serious industrial accident, let alone fatality, would be likely.

23In Hisey’s view, he became involved with the applicant in connection with this particular job because he thought it should only take a short time to complete and yet the applicant had not managed to finish it on the day it was assigned to him. Additionally, Hisey had a concern that the machined part produced by the applicant exceeded the stipulated tolerance for error. Hisey testified that he then completed the job to the stipulated tolerance. The applicant agreed that his work did not meet the stipulated tolerance, and agreed that Hisey showed him how to do the work properly. He emphasized that Hisey did not use the PROTH grinder when he produced the part.

24In the complaint the applicant asserted that Hisey grabbed the applicant by his shirt collar, shoved him against a toolbox, and called him “stupid Chinese”, and he repeated those assertions in his testimony. He further testified that Hisey had called him “stupid” before and yelled at him frequently, but that he had never used a racial epithet. The applicant attributes the alleged workplace injury for which he later applied for WSIB benefits to this physical contact with Hisey.

25For his part, Hisey said that the interaction he had with the applicant about the production of the part in question and its failure to meet the specified tolerance, resulted in a situation where he wanted to talk to the applicant about it, but the latter just turned away. Hisey said that he reached for the applicant’s arm to get his attention, but absolutely denies using a racial epithet, grabbing the applicant forcefully, or shoving him against the tool box. In Hisey’s questioning of the applicant, the latter agreed that they had quite often helped each other out and taught each other things, and he also agreed that they had been friends and that he had traveled to Muskoka to attend a surprise birthday party for Hisey.

26Where there is a discrepancy in the testimony of the applicant and Hisey as to what occurred on August 18, 2004, I prefer the evidence of Hisey. His account is most consistent with all of the evidence, including the applicant’s acknowledgement that: he spent two days on the job; there was a problem with the tolerance; and Hisey showed him how to complete it properly. I do not see how that situation could then have led to the kind of angry confrontation (including physical contact) that the applicant asserts occurred, nor do I see how it could have followed after an angry confrontation.

27There are further improbabilities in the applicant’s testimony. On the one hand, he agrees he rarely interacted with Hisey but that when they did they taught each other things. He also agreed that they were friends. On the other hand, he paints Hisey as an individual who was frequently angry and called him “stupid”. Despite those apparently frequent angry verbal outbursts by Hisey, it is only on this one occasion that he is alleged to have used a racial epithet, and I find that that is unlikely as well.

28At the hearing Hisey remained calm throughout his own testimony including when the applicant cross-examined him, and he remained calm when the applicant testified and alleged he had been physically assaulted. By contrast, the applicant when questioned about certain controversial matters had a tendency to make more and more extreme and implausible statements, and their effect was to undermine the credibility of his testimony generally. Possibly the clearest example of this occurred when I asked the applicant why he did not respond to the attempts to contact him about returning to work, and he said that “everyone knows they call people back to work just to put them in a room and beat them”. At another point in his testimony he offered that “Keith used to punch me”, which is a rather extraordinary allegation to have left out of a complaint in which Keith McNair was identified as a personal respondent. No particulars of this allegation were provided.

29On August 20, 2004, the applicant was laid off. That was his last day of work. It was agreed at the hearing that the reference to August 23, 2004 in paragraph 4 of the applicant’s complaint was an error. The corporate respondent had previously terminated the employment of other employees, including the co-worker Jeff who is referred to in paragraph 1 of the applicant’s complaint. Hisey wished to communicate the fact of the layoff to the applicant, but the latter refused to go to his office or speak to him. Ultimately, it was Keith McNair who told the applicant verbally that he had been laid off. Hisey then approached him to see how he was feeling. On Hisey’s version of events, the applicant just turned away. The applicant, on the other hand, indicated that Hisey made fists and adopted a physically threatening stance. Again, I find Hisey’s version of events more credible, largely for the reasons I have already set out above.

30Hisey and McNair indicated that they understood the applicant possessed tool and die maker qualifications recognized in Ontario when he was hired. At some point they realized that that was not the case. There was no change to the applicant’s job title (“machine operator”) and there was no change to his rate of pay. I find no evidence that any “downgrading” of the applicant’s position occurred.

31I am going to deal with the allegations in paragraphs 1 and 6 of the complaint together.

32Where employee conflicts arise on the shop floor, the supervisor deals with the matter and completes an Incident Report. Copies of the report are retained and filed but it does not appear that they are reviewed or followed up on by any more senior member of management. The allegations in paragraph 6 of the complaint relate to events that became the subject of an incident report. Hisey explained that the applicant was machining a part using a smelly lubricant and that other workers redirected some fans towards him so the smell was contained. The applicant took exception to this and appears to have attributed what occurred to Jeff. The applicant took steps to turn the fans back, but knocked over a large one in the process. Jeff complained to the supervisor that he was almost hit by the fan, and the incident was investigated and a report completed by Keith McNair. The applicant disagreed that the fan almost hit Jeff, and testified that it was Jim who was closest to the fan. The applicant testified that Keith asked him to apologize to Jeff and that he repeatedly refused to do so, until he finally agreed to say, “If the fan almost hit you, I am sorry”.

33In paragraph 1 of his complaint, the applicant asserts that he was “threatened to be beaten by Jeff”. In his testimony, he clarified that he had had an argument with Jeff who had then asked him if he wanted to fight. This is another example of the applicant’s tendency to exaggerate his claims.

34With respect to the assertions that Jeff said “Fuck Chinese” to him on more than one occasion, I asked the applicant when this occurred and if anything prompted it. I noted that the complaint indicates at the outset that the applicant has been subjected to racial discrimination “for a year”, and it was established that Jeff had worked with the applicant since 2000. The applicant said he had notes detailing the incidents and would like to refer to them. I asked why they had not been disclosed to the respondents and filed with the Tribunal, and he said it was because they were written in Chinese and we could not read them. I advised the applicant that he could not rely on his notes and must testify to the best of his recollection without consulting them. The applicant was unable to recall any specific incident with Jeff.

35I asked the applicant if he had complained to anyone in management about his problems with Jeff. The applicant testified that he had had an on-going issue with Jeff in the employee parking lot, as a result of which the applicant had taken to parking elsewhere for a period of time until Ms. Short had told him he could not park there. The applicant maintained that he complained to Ms. Short about Jeff’s behaviour and she said she could not do anything. When the applicant first provided this account, it was clear that it was a one-time conversation with Ms. Short in the parking lot. Later on, however, he said “whenever” he asked Ms. Short for help she would “usually say” she could not do anything, suggesting that more than one conversation on this topic took place. He also characterized Ms. Short as a “not nice” person later in his testimony. Ms. Short did not recall ever discussing any issue with the applicant about where he parked his car, nor did she recall ever discussing with him any issues he may have had with Jeff. In my view, I do not need to resolve whether the applicant’s or Ms. Short’s account is more probable in the circumstances.

36The applicant then indicated that he spoke to Arlene McNair and she put a stop to Jeff’s antagonizing him, but was unable to clarify when that occurred or how Arlene became involved. When questions were put to him by Doug McNair, the applicant further asserted that he had complained to him about Jeff as well.

37There is no allegation in the complaint that the applicant ever raised an issue about Jeff’s behaviour with anyone in management. I asked the applicant why he had not made reference to these matters in his complaint, and he replied that he was “just providing the highlights” in the complaint.

38An incident report filed by Keith McNair on November 18, 2003, indicates that he had been made aware that the applicant’s locker had profanities written on it and that he had investigated but could not determine who had written them, but that he posted a notice to remind all employees to read the company handbook, which includes a proscription on harassment.

39On January 14, 2004, Keith McNair also spoke to another employee, Mark, who had removed the applicant’s name tag from his locker. An incident report was completed.

40In April 2004, Jeff complained that someone had soaked his backpack with varsol, ruining its contents, and had asserted that the applicant had been seen with varsol in the locker area. It appears that there was a staff meeting to discuss this incident, and that there may have been an intemperate exchange of words between the applicant and Jeff in the course of it.

41Doug McNair became involved and investigated this matter and met with a number of people, including the applicant. His summary of his conversations with the applicant indicate that he asked the applicant about what caused the problems between him and Jeff, and that the applicant reported that Jeff had “instigated hostility towards him” since November 19, 2003 and refers to an incident report. It is not clear what incident report is being referred to, as there is not one dated November 19, 2003. It appears that the problem with the fans occurred on November 13, 2003, and that the graffiti on the locker incident occurred on November 18, 2003. Doug McNair’s summary also records that the applicant told him he had kept notes of what had gone on with dates and that he had been asked to provide a copy to the company. There was no dispute that these notes were never provided. The summary reports as well that the applicant specifically asserted to Doug McNair that Jeff had uttered racial slurs in the staff meeting on April 15, 2004.

42There is another document in the file that appears to chronicle a meeting between Arlene Mulder and Jeff on April 15, 2004. Arlene Mulder and Arlene McNair are one and the same individual. Both participants in the meeting signed the account. Jeff apparently refers to the incident with the fan and another one where he asserts that the applicant spit on the ground very close to him so that he was splashed with spittle. The report sets out that Jeff was asked why he had never reported to management that he had any problems with the applicant, and that Jeff referred to the incident reports, but was advised that they were not considered to be complaints. Jeff was directed to prepare a written account of all the incidents between the applicant and himself. It is not clear if that ever occurred as it does not seem to have been filed by the respondents. I do note, however, that the applicant did say his problems with Jeff stopped after Arlene became involved.

43There is a typed document dated April 19, 2004, which seems to be a follow-up to the conversations with the applicant and Jeff. It is not clear who authored it, but presumably it was Doug or Arlene McNair. I think a fair summary of the contents of this document would be that it sets out that there are certain factual discrepancies between the accounts provided by both the applicant and Jeff with respect to certain incidents and that it contemplates further investigation and interviewing of witnesses. I did not hear whether any further investigation occurred. McNair’s testimony was that the corporate respondent’s response to the conflict between the applicant and Jeff was to separate them as much as possible on the work floor.

44Based on all of the above, it appears that the applicant had a workplace confrontation with Jeff in mid-November 2003 and that it disintegrated into a situation where they may have both engaged in behaviour inappropriate to the workplace over the succeeding months. In Jeff’s case there was evidence to suggest (whether conclusively or not) that the inappropriate behaviour took the form of derogatory remarks about the applicant’s race and/or ancestry and/or ethnic origin and/or place of origin. At some level (i.e., on the shop floor as it may have affected production) management in the form of their immediate supervisor, Keith McNair, was aware of the tension between them, but there is no evidence to suggest that he knew anything about the remarks Jeff is alleged to have made. It does not appear that Keith McNair brought the problems to the attention of anyone with human resources responsibility for follow up. Neither the applicant nor Jeff initiated a formal complaint about the other to Doug McNair or Arlene McNair or Maureen Short. The conflict appears to have been resolved by late April 2004 after Arlene McNair became involved.

45Regardless of whether Jeff or the applicant complained, Doug and Arlene McNair at least became aware of the conflicts and that it was alleged that Jeff had uttered racial and/or ethnic slurs. An investigation appears to have commenced, but not to have been concluded. It further appears, that, faced with differing accounts of what occurred, the corporate respondent simply decided to separate the two antagonists. It did not: (1) complete an investigation and make findings of disputed facts; (2) engage a professional investigator to look into the matter; (3) provide any additional human rights training in the workplace; or (4) clarify or strengthen any of its workplace policies around commitments to human rights or the handling of human rights complaints.

Analysis

46As already set out earlier, I find that the applicant was not permitted to drive the tow motor because he did not have the required license. His race, ancestry, ethnic origin and/or place or origin did not factor in any way into that decision.

47I have also set out why I find Hisey’s account of what transpired between him and the applicant on August 18, 2004 to be more plausible than the applicant’s account. That being the case, the applicant has not established on a balance of probabilities that Hisey uttered the words “stupid Chinese”. There is nothing else about the encounter that occurred this day that suggests the applicant’s race, ancestry, ethnic origin and/or place of origin played any part in Hisey’s conduct towards him, or Kevin McNair’s conduct towards him. I also find that the applicant has not established on a balance of probabilities that Hisey engaged in any threatening behaviour towards him on August 20, 2004.

48In view of this, the Application is dismissed as against the personal respondents Keith McNair and Dave Hisey.

49The applicant was treated more advantageously than other employees affected by the shortage of work that the corporate respondent was experiencing. Those other employees were terminated: he was laid off indefinitely. Certain of his benefits were maintained during the period of his layoff, and I find there were attempts made to recall him to employment. In all these circumstances there is nothing to suggest that the applicant experienced any differential and disadvantageous treatment as compared to other employees because of his race, ancestry, ethnic origin or place of origin. The circumstances in which his employment ceased do not therefore constitute a contravention of the Code, and no wage loss remedy is warranted.

50Senior management of the corporate respondent was made aware in mid-April 2004 that the applicant alleged that other employees, specifically Jeff, had engaged in behaviour that could constitute a contravention of the Code. The applicant’s immediate supervisor had been aware for some time that there was a conflict between the applicant and Jeff, but it does not appear that there was any specific complaint by the applicant to the supervisor that Jeff had exhibited any discriminatory behaviour. The corporate respondent’s response to the situation in April 2004 was not very sophisticated. It did not complete an investigation into and make any factual findings with respect to who did what and when and whether corrective action was required, nor did it even assess whether employee training in human rights might be required, or whether its policies could be clarified.

51The applicant did not cooperate fully in the investigation that did occur. The applicant’s lack of cooperation may be attributable to a number of factors. Like Jeff, he may not have understood how to complain about another individual’s behaviour in the workplace, and may have thought the issues between him and Jeff were already known to management and being ignored. The applicant may also have been initially confused about the purpose of the investigation, which commenced as an inquiry into whether someone had deliberately soaked Jeff’s backpack with varsol, but then appears to have become an inquiry of sorts into Jeff’s behaviour and comments towards the applicant. Nevertheless, the fact is that the applicant appears to have taken some self-help measures in respect of his difficulties with Jeff rather than making a clear complaint to management, all the while compiling a private record of Jeff’s behaviour that he then failed to provide to the respondent. It also appears that, regardless of the quality of the respondent’s investigation, Jeff’s unwelcome behaviour toward the applicant ceased once Arlene McNair became involved.

52The case law establishes that an employer must take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so constitutes a breach of section 5(1) of the Code. There is an extensive discussion of this case law in Murchie v. J.B.’s Mongolian Grill, 2006 HRTO 33, including a discussion of what constitutes “reasonable steps”.

53I find that the respondent did not take reasonable steps to address the allegations of discrimination in its workplace. Its failure to do so is a contravention of section 5(1) of the Code. An order of compensation for the applicant is therefore in order. In determining the amount of such compensation I have taken account of the following facts: that the applicant did not initiate a complaint to management; the applicant did not cooperate fully in the investigation that the respondent initiated; and, despite the flaws in the investigation, the applicant testified that Jeff’s objectionable behaviour towards him ceased very shortly after that investigation commenced and Arlene McNair met with Jeff. In all the circumstances I find that an award of $1,000.00 is appropriate.

54I have also determined that this is an appropriate case in which to make a non-monetary order aimed at bringing the respondent’s workplace policies into compliance with the Code.

55The respondent is directed to do the following:

a) Pay to the applicant the sum of $1,000.00, within 30 days of the date of this Decision, failing which the sum awarded will attract post-judgment interest calculated in accordance with the Courts of Justice Act;

b) Revise its workplace policy within 60 days of the date of this Decision to make it consistent with the Ontario Human Rights Commission’s guidelines on developing human rights policies and procedures; and

c) Require all employees at or above the rank of supervisor to take the Ontario Human Rights Commission’s on-line training course found at http://www.ohrc.on.ca/hr101/ within 60 days of the date of this Decision.