HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Legrand Bertrand
Applicant
-and-
Primary Response Inc. and Meredith Cranswick
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Bertrand v. Primary Response
Appearances by
Legrand Bertrand ) On his own behalf
Primary Response Inc. and ) Tom Fulford, Human Resources Meredith Cranswick ) Manager
INTRODUCTION
1The applicant, Legrand Bertrand, worked as a security guard for Primary Response Inc. (“Primary Response”) from September 1, 2007 until October 7, 2008. With the exception of what appear to be minor infractions, he was considered a reliable and loyal employee who worked long hours for the company.
2A verbal altercation took place between the applicant and a supervisor, Gary Juhasz, the evening before his termination concerning the applicant’s refusal to follow the order of a dispatcher to look for a missing item. The applicant says that during the course of this altercation the supervisor used a racial epithet. The supervisor denies this.
3The following day, the applicant was called into a meeting with the Director of Human Resources, Tom Fulford and the personal respondent, Meredith Cranswick. The applicant takes the position that it was the intention of Primary Response to fire him at this meeting. The respondents deny this, saying that the plan was to give the applicant a written warning. All parties agree that during the course of the conversation, the applicant stated that it was his belief that he was being disciplined because of his colour and/or race. When he refused to retract that statement, he was fired. The applicant further alleges that, while being escorted from the building, Cranswick directed a racial epithet at him, an allegation which Cranswick and Fulford deny.
4In his Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”), the applicant alleges he was discriminated against on the basis of race, colour, place of origin and ethnic origin. The applicant self identifies as a person born in Haiti of African descent. For reasons discussed below, the evidence does not support his allegation of discrimination on those grounds. However, the evidence supports a finding of reprisal.
EVIDENCE
5This hearing was concluded in a day. The applicant testified on his own behalf, but called no other witnesses. The respondents called four witnesses: Juhasz, Cranswick (whom the applicant described as his manager), Fulford (who also represented the respondents at the hearing) and a former supervisor.
6I have summarized the evidence of the parties separately because it was so divergent.
The Applicant’s Evidence
Prior Events
7The applicant testified that he worked for the respondent company without incident or discipline until the evening of October 6, 2008. When questioned in cross examination about the verbal warnings he had received for an unauthorized absence from a work-site (in November 2007) and for booking off sick without giving sufficient warning (February 2008), the applicant responded that he did not feel that these discussions constituted discipline.
8Much of the applicant’s testimony consisted of examples of what he regarded as prior ill-treatment by the company. He made no attempt to link this alleged ill-treatment with his race, ethnic origin or colour, and it is significant only in that it seems to have contributed to his sense of grievance at the time of the final incident. His allegations of prior ill-treatment can be summarized as follows:
Throughout his time with the company, he worked long hours, but was not paid overtime. Following his termination he filed an Employment Standards complaint and was paid for some, but not all of this overtime.
When he attempted to contact the company in late December 2007 about not receiving his vacation pay, no one from management returned his phone calls. In a follow-up call, he advised the individual who answered the phone that he quit, but was subsequently talked out of it by the company.
On July 20, 2008, the applicant worked a double shift for the company. The company had agreed to drive him to the work site and pick him up the following the morning. No one from the company appeared at the designated time, and after 17 hours on the job, he collapsed and hit his head. He was taken to the hospital for observation and released a couple of hours later.
The company gave him a number of WSIB forms (which he testified were 43 in total) to fill out with respect to this incident, which he felt was unfair and designed to confuse him. He recalled that Primary Response personnel were laughing at him.
Moreover, while still at the hospital, he testified that the company asked him if he could work that day.
The following day, he was assigned to work at a new site, Humber College, even though his main site was Guelph-Humber. He testified that he was given no training and felt this was a deliberate attempt by the company to make his life more difficult.
In early August, a supervisor, identified as Whitteveen Haye, “rudely” asked him at the end of the shift to return a tie he had borrowed from a fellow security guard
On August 14, 2008, the applicant called his shift supervisor (identified as “Juliana”) to ask if he could leave his site because he had a headache, and when he finally reached her, she was very rude to him. The applicant entered into evidence an email he sent to Fulford with respect to these two August incidents. He testified that no-one from the company responded to this email.
On October 1, 2008, while working at the Guelph-Humber campus, the applicant received a phone call that his father had died. The applicant took a short bereavement leave. He acknowledged that he received a phone call of condolence from Cranswick, but said that the real purpose of the call, which took place on October 3, 2009, was to ask him if he could work the weekend. He was supposed to return to work on October 7, 2008, but agreed to return a day earlier.
Events of October 6 and 7, 2008
9On October 6, 2008, the applicant worked a 13 hour shift at the Guelph-Humber College site from 10:00 a.m. to 11:00 p.m. He testified that at 10:30 – a half hour before his shift was to end – he received a call from dispatch asking him to check one of the washrooms for a missing wallet. He asked the dispatcher to have the supervisor do this. At that point, the phone went blank. He then phoned his supervisor, Juhasz, who started screaming at him that if the dispatcher told him to do something, he must just do it. The applicant testified that he could not comply with the order because he had to lock the college’s seven different entrances (14 doors in total), plus two second floor classrooms, by 10:45 p.m.
10At 10:45, as he was locking the doors at the north-west entrance, the applicant saw Juhasz approach him. His eyes were “red” as he asked the applicant if he knew who he was. The applicant responded “Yes, that’s why I called you to complain.” Juhasz told the applicant not to talk to him like that, at which point, the applicant told him that he should go to school to learn not to scream. The applicant testified that Juhasz said to him: “You think you can come all the way from Haiti – to tell me to go back to school.” At some point in the confrontation, Juhasz told the applicant that he was fired. At the conclusion of the altercation, Juhasz called him a “Haitian.”
11The applicant was questioned in cross-examination on how many times he was called a Haitian by Juhasz, to which he replied only the once as he had not met Juhasz until that night. When asked about his Application, which states, “my supervisor, Gary [Juhasz] would often refer to me as “Haitian”” and, “I was not happy about his constant references to my ethnicity,” the applicant replied that Juhasz had just started with Primary Response a few days earlier.
12The next day, the applicant received a call from Cranswick asking him to attend a meeting at Human Resources. When he arrived there, he met with Fulford and Cranswick. At this point they said that Juhasz had reported that the applicant had used the “f” word” to him the night before, which the applicant vehemently denied. The applicant testified that although he was really mad during the confrontation with Juhasz, he did not use this kind of language.
13Fulford asked him what happened. After he listened to the applicant, Fulford then phoned Juhasz. When he got off the phone with Juhasz, Fulford said to the applicant that he believed Juhasz, because this was not the first time the applicant had used that kind of language to a supervisor. The applicant testified he believed this was in reference to his earlier, irate calls about his pay cheque deficiencies. However, it was his position that he did not use profanities in those calls.
14At this point, he said to Fulford that he thought this had something to with his colour. Fulford asked the applicant whether he was calling him a racist. He then said to the applicant: “Shut up, get out,” and “You’re fired.” At this point, Cranswick escorted him out. The applicant testified that he told her that they would be hearing from his lawyer, at which point she called him a “fucking refugee.”
Subsequent Employment
15The applicant was unemployed for two months following his termination. He was hired by another security firm, Paragon Protection Ltd., and commenced work on December 11, 2008. He worked there until March 29, 2009, at which time he was fired. He believed the termination of his employment was orchestrated by a principal at Primary Response who had recently discovered that the applicant was employed there.
The Respondents’ Evidence
16As indicated above, the respondents called four witnesses. One of those witnesses, the applicant’s former supervisor, was called for the sole purpose of testifying that he was unaware that the applicant’s employment had been terminated by the company when he wrote a letter of reference for the applicant. Other than his comments about his regard for the applicant’s work quality and ethic, his testimony was of little relevance to the issues in this proceeding.
17Fulford, on behalf of Primary Response, and Cranswick, the personal respondent, had each prepared a Response to the Application. They acknowledged that they collaborated when they prepared their respective Responses. As might be expected, there is a high level of consistency between the two documents. To increase the expeditiousness of these proceedings, each adopted their Response at the hearing, only supplementing their in-chief testimony, before being cross-examined by the applicant.
18In addition, the respondents submitted a digital recording of several phone calls between the applicant and various company personnel. Fulford explained the manner in which the calls were recorded. I was satisfied with the authenticity of these recordings and admitted them into evidence.
Prior Events
19With respect to the events prior to October 6, 2008, the respondents’ position is as follows:
Despite his denials, the applicant did have a disciplinary history. Fulford testified that he had been given verbal warnings on two separate occasions: The first time was because he had left the job site on November 6, 2007 during his shift in order to pick up some lunch at a fast-food outlet; and the second time was because he had given insufficient notice to the company in February 2008 that he would be missing his shift for health reasons.
On December 28, 2008, the applicant phoned and spoke with a woman identified as Rita Jones concerning his missing vacation pay. He became very agitated during the second of three conversations with Ms Jones, and quit. The recording of the third call reveals that the applicant was really irate and said to her, “What the fuck is going on?” The Scheduling Coordinator then phoned the applicant to tell him that he would look into the matter and said he should not quit over this. The applicant acknowledged that he should not have yelled or quit.
With respect to the WSIB, Cranswick testified that the applicant did not get “43 pieces of paper,” but only those forms necessary for him to fill out to establish a WSIB claim. She denied that anybody laughed at him.
Fulford acknowledged that the applicant had sent him an email about his supervisors being rude to him in August 2008, and that he had no recollection of ever having responded to the applicant.
Events of October 6 and 7, 2008
20With respect to evening of October 6, 2008, Juhasz testified that he was the shift supervisor that night. He received a call from the dispatcher, who had asked the applicant to check for a piece of jewelry in the third floor washroom, and the applicant had refused. He could not recall at the time of the hearing whether he had received a call from the applicant, but his notes of that evening indicate that it was the applicant who first contacted him, and hung up on Juhasz. It was only after speaking to the applicant that Juhasz then called the dispatcher.
21Juhasz testified that he then went to the location where the applicant was working and observed that the applicant seemed agitated. In his notes, Juhasz stated that after he asked the applicant about the dispatcher’s request, the applicant “immediately got upset and stated that ‘I should go back to school and learn something.’” In his testimony, Juhasz stated that the applicant told him that “none of us knew how to do our jobs,” called Juhasz “a fucking idiot” and suggested Juhasz go back to school.
22Juhasz denied that he told the applicant he was going to be fired, but said he would be written up for disobeying a direct order. His notes indicate that the applicant would be receiving a verbal warning. They further indicate that the applicant then said to Juhasz that he did not care and that Juhasz could “go f___ yourself.” In cross-examination concerning why there is no reference in his notes to the purported “fucking idiot” comment, Juhasz maintained that it had been said to him.
23The following afternoon, the applicant was called in to a meeting at Human Resources with Fulford and Cranswick. In their respective Responses, Fulford and Cranswick state that they asked the applicant questions about what had happened the previous evening. He denied the version provided by Juhasz and stated “that Gary has always treated him, ‘Like an Animal.’” They asked the applicant to give them examples of this, but the applicant did not provide them with any.
24At this point, both state in their respective Responses that Fulford told the applicant that they believed the supervisor’s story because the applicant had become “verbally hostile” with supervisory staff and dispatchers on two prior occasions. Fulford advised the applicant that he would be receiving a written warning, a one day suspension and a reassignment to a different location for his behaviour.
25Fulford offered a somewhat different version of events in his testimony. He said that he actually called Juhasz during the meeting, after hearing the applicant’s version of events, and Juhasz confirmed that the applicant had sworn at him. Fulford testified that at that point, he stated to the applicant that he believed the supervisor and told him what the discipline would be.
26As he was printing the warning letter, Fulford testified that the applicant said to him, “You’re only doing this because of my colour.” Fulford testified that he asked the applicant if he was calling him a racist, that the applicant “danced” around the issue and that it was only after being asked three times that the applicant said that Fulford was doing this because of his colour.
27Fulford testified that he responded to the applicant that he believed the applicant was getting a break because he was still only getting a written warning. He testified that the applicant responded to this by stating: “The only reason you’re doing this to me is because I’m Black.” Fulford qualified his testimony by stating that he wasn’t certain whether the applicant said “because I’m Black” or “because of my colour.” In any event, he testified that Cranswick said to the applicant, “Okay, now you are terminated.” Cranswick testified that the “simple reason” the applicant was fired was for refusing to stop calling Tom Fulford a racist.
28In the Response, Fulford states that the applicant responded, “Yes” to the question about being a racist. Moreover, Fulford states in the Response that he:
… advised the Complainant that he should take caution in making accusations such as this without proof or evidence, as this could be slanderous. The Human Resources Manager asked the Complainant if he had any proof or evidence to substantiate his statement that the H.R. Manager was a racist, to which the Complainant offered nothing. The Human Resources Manager advised the Complaint [sic] that he was understanding that the Complainant was upset, but that the Complainant was not being terminated for his behaviour toward a company supervisor, and that he was getting another chance with the written warning. The Complainant again stated several more times that this disciplinary action was due to racism on the part of the Human Resources Manager. Finally Meredith CRANSWICK stood up and stated to the Complainant, “Now you are terminated, it’s time for you to leave.” [Emphasis added]
29Both Cranswick and Fulford denied that Cranswick called the applicant a “fucking refugee” on his way out. Both testified that the applicant stated to her, as she escorted him out, that they would hear from his lawyer, but deny that Cranswick responded to the applicant’s warning.
Subsequent Employment
30Cranswick denied any connection, either personal or through the corporate respondent, with the applicant’s subsequent employer, Paragon Security.
DECISION AND ANALYSIS
Findings of Fact
31Although there were differences between the evidence of the respondents’ witnesses and that of the applicant, it was often with respect to collateral matters or was simply a difference of perspective. For example, both the applicant and the respondents state that he was called on two occasions and told that he had not followed company protocol. Whether those calls were “disciplinary” in nature or by way of advice is unimportant to the question of whether there was a violation of the Code. Nor does the fact that the applicant interpreted them one way reflect poorly on his credibility.
32However, there were differences with respect to material facts, on which I must make findings. In resolving these differences, I must determine which version of events is most in “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.” See: Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A).
Prior Events
33Much of what the applicant testified about concerning his experiences prior to October 6, 2008 was not challenged by the respondents and was of limited relevance to the matters before me. To the extent that these allegations informed his perception of the respondents at the time of his interaction with Juhasz on October 6, 2008 and with Fulford and Cranswick on October 7, 2008, I find the following:
The applicant worked long hours for the company and did so without receiving what he perceived to be appropriate overtime pay;
He believed these long hours led to the fall on the job in late July. Although he found the forms he was given frustrating, I accept the evidence from the personal respondent that he was given only the appropriate WSIB forms, and that no one was laughing at him concerning this. Moreover, I am unable to find that the move to the new worksite following his compensable fall was in any way punitive.
Within days of the fall, the applicant experienced two unpleasant incidents with two respective supervisors in early and mid-August. He wrote to Fulford about these incidents, but received no response from the company.
Just prior to the incidents, the applicant’s father died. Moreover, he was asked, and agreed to return to work early from his bereavement leave.
Confrontation on October 6
34There were some differences in the evidence about the details of the confrontation between the applicant and his supervisor – such as whether the missing item was jewelry or a wallet – which are unnecessary for me to resolve. It is clear from the evidence that the applicant was asked to look for a missing item just as he was about to lock up and that he felt that this was an inappropriate request given the timing. It is equally clear that Juhasz, his supervisor that evening, felt that applicant was unreasonably challenging his authority by refusing to obey a direct order.
35In the ensuing altercation that took place directly between the two men, Juhasz both wrote and testified that the applicant told him to “go fuck yourself.” In his testimony, Juhasz added that the applicant had also called him a “fucking idiot.” There is no reference to the applicant calling Juhasz a “fucking idiot” in his occurrence report, however. It would appear that Juhasz did not verbally relay this comment to the respondents as neither Cranswick nor Fulford made reference to it. As it was not relied upon in any subsequent events, it is immaterial whether or not it was said.
36With respect to the “go fuck yourself” comment, the applicant denied that he ever used this kind of profanity and therefore would not have used it toward Juhasz that evening. I am unable to accept the applicant’s assertion on this point. The tape of the applicant’s conversation with the dispatcher in December 2007 shows that in fact he did use that kind of profanity when angry, which by all accounts he was the night of October 6, 2008. Moreover, this comment is reflected in Juhasz’s occurrence report, which was written immediately following the events. I accept that the comment was made.
37I do not accept that Juhasz said to the applicant “you think can come all the way from Haiti” during the confrontation, or called him a “Haitian” in a derogatory manner at the conclusion of it. On everyone’s evidence, this was the first time the applicant and the supervisor met, and only shortly after Juhasz had started with the respondent company. It seems unlikely that he would even have known the applicant’s ancestry/country of origin, never mind chosen it as the basis for his slur against the applicant. The reliability of the applicant’s evidence on this point is undermined by the fact that he alleges in his Application, filed less than two months after the incident, that Juhasz “would often refer to [him] as ‘Haitian’” and made “constant references” to his ethnicity. At the hearing, the applicant testified that he had never spoken to Juhasz before, and this was the first and only time his ethnicity was raised.
38Finally, I accept Juhasz’s evidence that he warned the applicant that he would be written up for this incident, rather than telling him that he would be fired, as the applicant testified happened. This version of events is more or less reflected in Juhasz’s occurrence report, which states that the applicant would be receiving a “verbal warning” for his behaviour. The applicant states nothing about being advised he would be fired in his Application. The first time this allegation was during the applicant’s testimony.
39These findings of fact do not negate the possibility that the applicant felt his job was in jeopardy after the heated exchange between the two men, or that, upon reflection the applicant felt that it was motivated by his race or ethnic origin.
Meeting on October 7
40The applicant and the respondents are in agreement that he was summoned to a meeting the next day at Human Resources, and that he was told the basis of the allegations made by Juhasz against him. Both the applicant and the respondents agree that after the applicant denied Juhasz’s version of events – in particular using the “f word” – Fulford phoned Juhasz and spoke with him. When he got off the telephone, he indicated to the applicant that he believed Juhasz.
41With respect to the purpose of the meeting, the respondents testified that it was to discipline the applicant, but not fire him. In contrast, the applicant testified that the respondents intended to fire him when he was ordered to attend Human Resources – indeed they had been trying for some time to fire him – and that the letter of warning the respondents entered into evidence was created after the fact by the respondents to cover up this fact. I am unable to accept the applicant’s contention on this point.
42First of all, there is no evidence that the respondents were engaged in a conspiracy to terminate the applicant’s employment prior to that date. On the contrary, the evidence before me suggests that the applicant was valued because of his reliability and his willingness to work the hours of overtime asked of him. Indeed, the respondents persuaded the applicant to reconsider his rash decision to quit in late December 2007. Secondly, the Application makes no reference to this allegation, which was articulated for the first time when the applicant was testifying. Finally, the applicant testified that the first time he heard he was being fired was when he raised the issue of race.
43I accept the respondents’ evidence that the purpose of this meeting was to question the applicant about his version of events and mete out some form of discipline. I also accept the respondents’ evidence that the letter of warning tendered into evidence was the letter prepared at this meeting. There is no compelling reason for the respondents to have fabricated this evidence after the fact. This does not negate the possibility that the applicant felt that his job was in jeopardy at the meeting. In his heightened emotional state, he seems to have not have comprehended what Fulford was telling him about the planned discipline.
44There is agreement between the parties that the applicant did not raise the issue of race until the end of the meeting. There is also agreement between the parties that after he raised the issue of his colour, Fulford asked the applicant if he was calling him a racist. At this point, the applicant testified, Fulford told him to shut up and that he was fired, without waiting for a response.
45In contrast, Fulford stated in the Response and testified to the fact that the applicant did not respond to this question, but merely repeated the allegation. Fulford testified that he then explained that he believed the applicant was getting a break, after which the applicant repeated the assertion that the treatment was based on his race and Cranswick told him he was fired. In the Response, Fulford states that the applicant repeated this allegation several times before being fired.
46Given my earlier findings about the reliability of the applicant’s recall of events, I prefer Fulford’s version over that tendered by the applicant. Even if Fulford’s question about whether the applicant was calling him a racist was rhetorical, it seems unlikely that Fulford would have cut him off before the applicant was given a chance to answer it. Also, both Cranswick and Fulford state that it was Cranswick who fired the applicant not, as the applicant alleges, Fulford. Finally, although not much turns on this, I accept the sequence Fulford furnished during his testimony rather than that set out in his Response. It seems inherently more probable that the respondents would have reacted to the applicant the first time he repeated the allegation after Fulford told him that he was getting a break rather than waiting for the applicant to repeat the allegation several more times before firing him.
47The parties are in agreement that after he was fired, Cranswick escorted the applicant out, and that the applicant told her that they would be hearing from his lawyer. I do not accept that Cranswick called the applicant a “fucking refugee” in response, an allegation which both Cranswick and Fulford deny. Given my earlier findings about the reliability of the applicant’s recollection in respect of the racial epithet he attributed to Juhasz, I cannot find on a balance of probabilities that this remark was made.
Post-termination
48The applicant asserts that the respondents became aware of where he was working after they had terminated him. Through some unspecified connection between management of the two companies, he alleges the respondents were able to influence his new employer to terminate his employment. Other than vague speculation, the applicant offered no evidence to support this theory and I do not accept his allegation that Primary Response was responsible in any way for the termination of his employment with his new employer.
Factual Summary
49The important findings of fact are as follows: Prior to the evening of October 6, 2008, the applicant was feeling aggrieved by Primary Response’s treatment of him. His emotional state was no doubt further heightened by the recent death of his father. He and his immediate supervisor, a man with whom he had no previous dealings, had an angry exchange of words over what the applicant perceived was an unreasonable request and the supervisor perceived as an unreasonable act of insubordination. Although angry words were exchanged, I do not find that any epithets with racial overtones were uttered.
50The following day, the applicant attended a disciplinary meeting at which he was going to receive a one day suspension and written warning. He asserted the company’s treatment of him was because of his colour, which the respondents perceived as an accusation that the Human Resources manager was racist. When he refused to retract this allegation, and indeed re-asserted it, he was fired. No racial epithet was used when the applicant was escorted from the premises.
Discrimination on the Basis of Race, Colour, Ethnic Origin and/or Place of Origin
51The applicant asserts that his treatment was motivated by the fact that he is a person from Haiti who is of African descent. Where an applicant makes allegations of racial discrimination, the Tribunal has applied the following principles:
(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;
(c) The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.
Radek v. Henderson Development (Canada) Ltd. (No. 3), 2005 BCHRT 302, 52 C.H.R.R. D/430 (B.C.H.R.T.) at para. 482 cited in Phipps v. Toronto Police Services Board, 2009 HRTO 878 and Persaud v. Toronto District School Board, 2009 HRTO 1728
52The applicant relied on the derogatory comments about him being a “Haitian” that he alleged were made to him by Juhasz during the evening of October 6, 2008 and the parting comment about him being a “fucking refugee” he alleged Cranswick made to him on October 7, 2008, as evidence of racial discrimination, both in the manner in which he was treated and in the decision to terminate his employment. However, as I found that these comments were not made, I can draw no conclusions from this purported evidence.
53The evidence does not support the applicant’s assertion that Juhasz’s interaction with him, or the decision to discipline him for his behaviour during that interaction, was based on any prohibited grounds in the Code.
Reprisal
54The more troubling aspect of this case is the respondents’ impromptu decision to terminate the applicant’s employment once the applicant asserted his treatment was because of his race/colour. The Code protection against reprisal is as follows:
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.
55On a plain reading of section 8, what the applicant did was “claim” his rights. Clearly he was in no position to enforce his rights or institute proceedings under the Code given the timing of his remarks. While the applicant had the option to remain silent at the meeting and subsequently take action, he instead raised the issue in the meeting and by doing so invoked the protection found in section 8. (See Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241 at para. 36.)
56With respect to whether the respondents reprised against him for claiming his rights, I am guided by the case law which states that, unlike other protections in the Code, the applicant must show that the respondents “intended” to reprise against him. (See Jones v. Amway of Canada, Ltd. [2002] O.J. No. 1504 at para. 11.) On the face of it, the respondents admit the direct link between the applicant’s words and their action. They went to great lengths to demonstrate that they had not intended to fire the applicant on October 7, 2008 when they called him into the meeting, and it was only when he asserted that his treatment was the result of his colour/race that they made the on the spot decision – without either consultation or reflection – to terminate his employment.
57The Application did not allege reprisal and it is only because of the position taken by the respondents in response to the applicant’s allegations that this issue has arisen. Given that all the parties to this matter were unrepresented by counsel at the hearing, I specifically asked the respondents to address the issue of reprisal in their submissions.
58On behalf of the respondents, Fulford responded that the applicant’s termination did not occur because the applicant claimed a right under the Code, but because he knowingly made a false and unsubstantiated claim of discrimination. Fulford pointed to the fact that the applicant refused to “back up” his claim when asked to do so. This is echoed in the corporate respondent’s Response which states that the applicant’s termination was the direct result of his having made a “slanderous” “accusation” for which he offered no “proof.”
59An applicant is protected regardless of whether the right s/he claims or enforces is ultimately substantiated. However, it is equally true that an applicant cannot maliciously make a claim that s/he knows not to be true in order to gain some advantage. (See Staniforth v. C.J. Liquid Waste Haulage, 2009 HRTO 717 at para. 95; Miller, supra at para. 39.)
60One must be cautious, however, about presuming the latter to be true. In its Policy and Guidelines on Racism and Racial Discrimination (“Policy”), the Ontario Human Rights Commission (OHRC) addresses this very issue at p. 16:
Some of the most common myths about racism and racial discrimination include:
…
mentioning the existence of racism or racial discrimination or taking proactive measures to address racism or racial discrimination constitutes reverse racism towards White people;
racialized people are less credible and their assertions must be more carefully scrutinized and investigated or must be corroborated;
racialized people play the “race card” to manipulate people or systems to get what they want [Emphasis added]
61Moreover, the evidence does not support the respondents’ position that the applicant knowingly made a false claim, but points instead to the conclusion that the applicant was sincere in his belief. The applicant’s manner of conducting himself during the hearing persuaded me that he is not someone who made a calculated decision to assert something he did not genuinely believe simply to deflect attention from his own culpability.
62The applicant appeared to genuinely believe that Juhasz had no business treating him as he did the night of their altercation and was further evidence of what he believed was a pattern of unfair treatment by Primary Response. His testimony reflected a deeply held belief that he would not be treated fairly – and that his job was in jeopardy – when he was summoned to head office for the meeting with Fulford and Cranswick.
63Whatever the objective reasonableness of these beliefs, they must be evaluated in the context in which the applicant was operating. In addition to the perceived pattern of prior treatment, the applicant had just learned of his father’s death days before the meeting with Fulford and Cranswick.
64Moreover, as a Black man and an immigrant the applicant would undoubtedly have experienced discriminatory treatment during his time in Canada. As noted by the Court of Appeal:
Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.
R. v. Parks, 1993 CanLII 3383 (ON C.A.)
65In light of the above, a sensitive and appropriate manner of addressing the applicant’s allegations would have been to reflect and investigate. Instead, Fulford and Cranswick reacted to the applicant’s allegations with incredulity and outrage. At p. 51 of its Policy, the OHRC notes that allegations of racism are often unfavourably received:
It is often the experience of persons raising complaints of racial discrimination, in particular, to be told that the allegation is inappropriate and unfounded without any investigation taking place. There may be a tendency to want to protect persons against such allegations because of their perceived seriousness, rather than to consider the perspective of the complainant.
66However unreliable I found the applicant’s recollection of the events surrounding his termination, I cannot conclude that he was insincere in his belief that he was the victim of racial discrimination. The fact that the belief was ultimately ill-founded is not a basis on which to remove the protection to which he is entitled under the Code to advance a “claim” of discrimination. That “claim” need not be proved, only genuinely held. The respondents should have adopted a more appropriate process for ascertaining the basis of the applicant’s claim rather than demanding “proof” on the spot and then summarily terminating the applicant’s employment for being unable to articulate the basis for his belief. In light of the fact that the respondents’ acknowledgement that they did not intend to fire him until he articulated that belief, I find, on a balance of probabilities, that the termination of his employment was an act of reprisal for claiming a right under the Code.
REMEDIES
67The Tribunal’s remedial powers are set out in section 45.2 of the Code:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.
Wage Loss
68The applicant found work at another security firm, which commenced on December 11, 2008, 9 weeks and 2 days after the last day he worked with Primary Response. The applicant is entitled to his wage loss for that period, minus the one day on which he was to serve an unpaid suspension for his altercation with Juhasz.
69It is difficult to ascertain with any precision what the applicant made on a weekly basis, since the representative pay stubs he submitted showed his hours varied from week to week. The most recent pay stub submitted showed that the applicant had worked 1,728.75 in accumulated regular and statutory holiday hours up to September 28, 2008, which would suggest that, on average, the applicant worked approximately 44 hours per week (8.8 hours per day). He earned $12/hour, unless he worked overtime, but since he was not entitled to overtime unless he worked in excess of 44 hours it need not be considered. In total, the applicant’s approximate wage loss for the 9 week, 1 day period (46 days on the assumption he worked 5 days per week) was $4,857.60
Monetary Compensation for Injury to Dignity, Feelings and Self-Respect Damages
70The applicant sought $15,000.00 in compensation for injury to his dignity, feelings and self-respect in his Application. However, the rationale for this amount related largely to his belief that he had been the victim of racial discrimination and had been the target of multiple racial epithets. Having found that the evidence does not support this belief, no damages can flow from it.
71However, the applicant was obviously greatly distressed about losing his job, about which a finding of reprisal has been made, and it is on this basis that damages under this heading are properly awarded. I find that $8,000.00 is an appropriate amount in compensation for injury to the applicant’s dignity, feelings and self-respect.
Interest
72The applicant did not seek interest, which is not surprising given his lack of sophistication. Even where it is not specifically sought, interest will generally be awarded unless exceptional circumstances exist. I award pre-judgment interest on the general damages in accordance with the Courts of Justice Act, R.S.O. 1990 c. C. 43, from October 7, 2008, the date of his termination. With respect to the wage loss damages, I award pre-judgment interest on the total amount from November 9, 2008, the mid-point between when the applicant’s damages would have commenced and the date on which he became re-employed.
73In addition, I award post-judgment interest in accordance with the Courts of Justice Act, supra, 30 days from the date of this Decision.
ORDER
74The respondent, Primary Response, is ordered to pay to Legrand Bertrand the following amounts within 30 days of this Decision:
(1.) $4,857.60, minus applicable statutory deductions, as compensation for his loss of employment income;
(2.) $8,000.00 as compensation for injury to his dignity, feelings and self-respect;
(3.) Prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in (1) from November 9, 2008; and
(4.) Prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (2), from October 7, 2008.
75In the event that the respondent, Primary Response, fails to make the payments described in (1) through (4) above within 30 days of the date of this Decision, the respondent shall pay postjudgment interest in accordance with the Courts of Justice Act.
Dated at Toronto, this 27th day of January, 2010.
“Signed By”
Naomi Overend
Vice-chair