HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Colvin Smith
Applicant
-and-
Astley Gilbert Limited, Adrian Royer, John Rozinger, Scott Baldwin, Warren Eade, Wayne Wilbur, John Eslamian, Charles Triolo and Rino Dambrosio
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Smith v. Astley Gilbert
AppearanceS BY
Colvin Smith, Applicant ) Self-represented
Astley Gilbert Limited, Adrian Royer, )
John Rozinger, Scott Baldwin, )
Warren Eade, Wayne Wilbur, ) Shana French, Counsel
John Eslamian, Charles Triolo and )
Rino Dambrosio, Respondents )
1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination and harassment in employment on the grounds of race, colour and reprisal.
The Hearing Process
2At the outset of the hearing, there was discussion regarding the manner in which the Application might be dealt with. The parties agreed to try mediation and signed a Tribunal “Mediation/Adjudication” agreement. Pursuant to this, the parties agreed that during the mediation process, I would meet separately and confidentially with them and that I would continue to adjudicate the Application if a settlement was not reached. The agreement provides that if the Application proceeds to adjudication, the mediator/adjudicator will not consider statements made or documents provided during the mediation unless they also form part of the evidence in the hearing. The decision will be based entirely on the evidence, submissions and case law presented during the hearing. The mediation session did not lead to a settlement and the adjudication of the Application then proceeded.
3I proposed that this might be a case where it was appropriate to use the Tribunal’s powers with respect to the conduct of a hearing. Those powers are set out in section 43(3) of the Code and include the power to determine the order in which the issues and evidence in a hearing will be presented and give the Tribunal adjudicator the authority to question witnesses directly.
4With the consent of the parties, I questioned the applicant. The applicant was then given an opportunity to provide further testimony. Ms. French did not cross-examine the applicant at this stage in the proceeding, without prejudice to her right to do so at a later stage in the hearing. With the consent of the parties, I then heard evidence from two of the personal respondents and a witness identified by the respondents. I questioned these witnesses. Ms. French asked additional questions and the applicant was given an opportunity to cross-examine them. They provided evidence only on the events that they were alleged to have been involved with. It was understood that this questioning occurred without prejudice to the respondents’ right to adduce more evidence from the witnesses at a later stage in the hearing if that proved necessary.
5I then heard the respondents’ motion seeking dismissal of the Application in whole or in part. The applicant was given an opportunity to respond. I then provided an oral ruling, dismissing the Application in part.
6The respondents then called two further witnesses, both personal respondents who testified about the one aspect of the Application that was not dismissed. Ms. French questioned these witnesses. I asked additional questions and the applicant had an opportunity to cross-examine them. I then heard submissions from Ms. French. The applicant had no further submissions.
7This Decision sets out the reasons for dismissing the Application in part and my conclusions on the part that was not dismissed at the hearing.
The Allegations
8The applicant self-identifies as a Black man. The corporate respondent operates a printing and binding business. The personal respondents are all employees of the corporate respondent. The events in this Application concern the Head Office in Scarborough and an office in Markham. The applicant started his employment on January 2, 2008. He was hired to work in the Markham location but was first trained for two weeks at the Head Office location. There were six workers at the Markham office, including the applicant, a manager and an assistant manager. There were also approximately three drivers who came into the office periodically throughout the day.
9The applicant’s allegations are as follows:
On January 11, 2008, while he was at the Head Office location, he was subject to a racial slur by Scott Baldwin, a co-worker.
When he started work at the Markham location, he was not comfortable with aspects of the work environment. In particular, he took exception to nicknames that were assigned to him and to Mr. Royer, his Manager.
In April 2008, he was subject to harassment at work in the form of what he perceived to be “rumour mongering” to the effect that he had killed drug dealers and that drug dealers intended to harm him.
He was denied a promotion/transfer.
His employment was terminated.
He was subjected to reprisal for having raised human rights issues.
10The Application was dismissed at the hearing in respect of all of the allegations except the second allegation, relating to the work environment.
The Alleged Racial Slur Incident
11The applicant alleges that on Friday, January 11, 2008, Scott Baldwin, a co-worker, approached him. Mr. Baldwin asked him how he felt about the word “nigger”. The applicant alleges that Mr. Baldwin escalated this encounter to the point that he was repeatedly yelling at the applicant “you are a nigger, so why are you not offended by the word”. This encounter was witnessed by a manager who intervened, and by the Manager of the office who did not intervene. The applicant’s supervisor, who was training him, is also alleged to have been a witness to the encounter.
12The applicant testified that, on the following Monday, the office manager told him that he would be transferred to the Markham location so that he would not have to work with the co-worker.
13The applicant testified that he was upset about this incident but that it did not really have any lasting effects. He indicated that this incident did not contribute in any way to the later events.
14Mr. Baldwin was named as a personal respondent. He testified in response to the allegations. He self-identifies as a Canadian whose father is from India. He testified that he did not make the racial slur or have any such discussion with the applicant. He testified that he would never use the term that he is alleged to have used. He considers it offensive and would never even joke about it. He testified that he has heard the term used but never at work. When it was used, he told the person who used it not to do so.
15Mr. Baldwin testified that he was very upset by the allegation. He has felt embarrassed and anxious. For some time prior to the hearing he has not been eating well and has lost about ten pounds.
16The applicant’s direct supervisor at the time of the alleged incident was called as a witness. She is not a personal respondent. She self identifies as a Black woman. She testified that, prior to January 11, 2008, the applicant seemed very polite and friendly. She did not notice anything unusual about his behaviour.
17She denied hearing the alleged racial slur and testified that she had no knowledge of the allegation until the Application was filed. She testified she would have been personally offended and upset if she had heard the term used, would have confronted the perpetrator, and reported the matter to the Human Resources department.
18The manager of the Markham location was Adrian Royer and he is still in that position. He testified that the reason that the applicant was at the Head Office location for the first two weeks of his employment was that he himself was on vacation for that period. If he had not been on vacation, the applicant would have started work at the Markham location. He stated that it is therefore not the case that the applicant transferred to the Markham location because of anything that might have occurred on January 11, 2008 because he was scheduled to start at the Markham location on the following Monday in any event.
The Nicknames
19The applicant agreed with the respondents that, at least at first, the work atmosphere at the Markham location was generally positive. Everyone was easy going and there was a lot of friendly banter. Co-workers assigned each other various nicknames. The two people most likely to assign nicknames were Charlie Triolo, one of the personal respondents, and a driver named Sue who is no longer employed by the corporate respondent.
20It is not disputed that Sue would sometimes call the Mr. Royer “Coco Boy”. Mr. Royer self identifies as a person who was born in Dominica and who is Dominican-Canadian. The applicant considered Mr. Royer to be a Black man and he was very surprised to hear one of the workers refer to the manager as “Coco Boy.” He testified that to him, the term had clear racist overtones. He was personally offended by the term and felt that Mr. Royer should have been offended too.
21In his testimony, Mr. Royer confirmed that Sue did call him Coco Boy on occasion. He testified that he was not offended by this term. He explained that Sue often brought patties and buns to the office. He was particularly fond of coco buns and this was the origin of the nickname. He testified that Sue is a very friendly and gregarious person and that he liked her. He agreed that the term Coco Boy could have been offensive in a different context.
22The applicant testified that Sue told him that she had been instructed by Mr. Royer not to use the nickname anymore on the grounds that the applicant had indicated to Mr. Royer that the term was offensive. After this the term was not used.
23The applicant testified that Mr. Triolo and Sue also called Mr. Royer “Island Boy”. He said this happened a few times and that on at least one occasion, when he and Mr. Royer came in together, they were referred to as “Island Boys”. Mr. Royer testified that he was not referred to as Island Boy. Mr. Triolo denied ever using the term “Island Boy” and said that he did not recall that term being used by anyone else in the workplace.
24The applicant testified that there were other occasions when the general joking was offensive. For example, he said that if a Black person came to the premises, someone might say to Mr. Royer something to the effect of, “Your father is here”. At first, he thought that Mr. Royer’s father had come to the office, but when the same comment was made when another Black man came to the location, he realized that it was intended as a joke. He felt that the joke was offensive because it implied that Black people do not know the identity of their father.
25The applicant became ill at the end of March 2008. He was diagnosed with shingles and was off work for about one week. When he came back to work, he was given the nickname “Shingles”.
26Mr. Triolo testified that he decided that this would be a good nickname during the time that the applicant was off work. He testified that at the time he had no idea what the condition involved but he thought that the sound of the name was funny. He told the other workers that the applicant would be assigned the nickname of Shingles upon his return. He testified that when he told the applicant about his new nickname, the applicant indicated that he was disappointed about the new nickname and suggested that he was not happy about it. However, at least at first, seemed to go along with it.
27The applicant testified that he was not happy to learn about his new nickname when he came back to work. He did go along with the Shingles nickname for a short time but it began to bother him more. He asked his co-workers to stop using the nickname. He testified that they generally did stop although Sue persisted for a few days. Mr. Triolo testified that the workers in the office stopped using the nickname when the applicant asked them to stop. However, at least two clients who came frequently to the location had started to call the applicant Shingles and they continued to call him that until they were told that the applicant objected to the name.
The ‘Rumour Mongering’ Allegations
28The applicant alleges that in the last week of April 2008, he overheard Mr. Royer and some co-workers having a conversation concerning someone who had killed drug dealers. He later realized that they had been talking about him. Later that day he overheard a similar conversation involving Mr. Royer and some co-workers that explicitly identified him as the person who had killed drug dealers. The applicant described these allegations as “rumour mongering”.
29The day after hearing these alleged conversations, he stayed home. He testified that he spent the day in bed. He came back to work the next day, which was April 30, 2008. He came to work with a microphone attached to his cell phone in order to record further conversations. The other participants in the recorded conversations were not aware that the conversations were being recorded.
30Mr. Royer took him to a supply room in order to have a private conversation. Mr. Royer wanted to discuss performance issues relating to mistakes the applicant was making in doing his job and also to ask why he had been absent from work. The applicant recorded this conversation and also recorded subsequent conversations. He downloaded these conversations on to his computer and burned them on to a CD. He later produced a transcript of the recordings which he transcribed. The CD and the transcripts are part of the evidence in this case. The sound quality of the recordings was variable and some of the recording was not audible.
31Soon after the start of the conversation on April 30 between the applicant and Mr. Royer, the applicant asked Mr. Royer why he was spreading rumours that the applicant had been a drug dealer who had killed other drug dealers.
32From the recording of this conversation, it is apparent that Mr. Royer’s reaction to this was shock and bewilderment. He tried to assure the applicant that he has never said anything about the applicant that could suggest that he felt the applicant had something to do with drug dealers. In the recording, the applicant says, “OK you are acting like you do not even know what I am talking about. I understand. I understand.”
33The applicant testified that he agrees that the recording indicates that Mr. Royer’s reaction was that he did not know what the applicant was talking about. His explanation for this is that Mr. Royer was trying to cover up his bad behaviour.
34After trying for some time to make sense of the applicant’s assertions, Mr. Royer took the applicant out into the general work area and advised the other workers of the applicant’s allegations. The other workers then engaged in discussion about whether the applicant had misinterpreted some recent conversation but they were unable to think of anything that could have led the applicant to believe that they had been talking about him in the manner he alleged.
35The applicant and Mr. Royer then continued the discussion in private. There was discussion about whether it was possible that Mr. Royer’s cousins were in some way connected with the matter but this could not be established. Mr. Royer understood that the applicant feared for his safety and advised that he could contact the Human Resources Manager or possibly the police.
36Approximately an hour after the conversation with Mr. Royer ended, the applicant called the police. Some time later, a police officer came to the Markham location and asked for the applicant. The officer took the applicant to a near by restaurant to talk to him. This conversation lasted for about 45 minutes. The police officer did not return to the Markham location and did not contact Mr. Royer or any of the other employees.
37The applicant testified that the police officer told him that he was in a position to arrest everyone involved if the applicant wished him to do so. However, instead it was agreed that the applicant would file this Application with the Tribunal. The officer gave the applicant his card and told him that he would come to any hearing at the Tribunal to testify. He advised the applicant that it would be best if they did not communicate in the meantime. The applicant testified that the police officer warned him that he would likely be fired if he continued to make the allegations. The applicant left a message for the officer after he filed the Application. The applicant testified that he later asked the Tribunal for a summons to ensure that the officer appeared at the hearing, but he did not receive a response from the Tribunal. He did not pursue the matter further.
38On May 5, 2008, the applicant met with the Human Resources Manager. During the lengthy interview, which the applicant recorded, the Human Resources Manager tried unsuccessfully to understand what exactly the applicant was alleging and to see if there was anything that could be done to resolve the situation. However, at the conclusion of the interview, he determined that the employment relationship could not continue. The applicant was fired as a result.
The Promotion and Job Transfer Allegations
39Shortly before these events, the applicant had pursued the possibility of a transfer to the Head Office location, which would have allowed him to work the night shift. He wanted to make this change so that he could take care of his young child during the day and because the change would have represented a promotion. Mr. Royer advised him that it might be better to wait because he was concerned that the applicant was making mistakes in his work. He suggested that the transfer/promotion would be more likely to come through after the performance issues had been resolved.
40Before anything else could occur, the applicant raised the rumour mongering allegations, leading to the termination of his employment.
The Termination of Employment
41The applicant submits that his employment was terminated in reprisal for having raised the allegations relating to rumour mongering. The respondents submit that the applicant’s employment was terminated because the employment relationship had been irrevocably damaged by the applicant’s instance regarding the rumour mongering allegations and his belief that his co-workers and manager were lying to him and could not be trusted.
42In some circumstances, an employer faced with unusual behaviour on the part of an employee has an obligation to consider whether the unusual behaviour is caused by a disability and whether some accommodation is necessary and appropriate (see the Human Rights Commission “Policy and Guidelines on Disability and the Duty to Accommodate”, Part 4). Failure to do this could infringe the employee’s Code-protected rights in regard to accommodation of disability.
43In this case, the applicant has not alleged a failure to accommodate disability and did not include disability as a ground of discrimination or harassment when he filed the Application or subsequently. The applicant is in fact clear that he does not believe that the conversations that he characterizes as rumour mongering were in any way related to a disability.
Post-Termination Events
44The applicant testified that he obtained a new job about one month after his employment with the corporate respondent ended. However, after a few days, he realized that he was not coping well and had to quit.
45He experienced continuing difficulties including “severe hallucinations” and received intermittent medical attention.
46The applicant forwarded a copy of a psychiatric report to the Tribunal and the respondents before the hearing and asked that it be considered and entered into evidence as he felt that it would help the Tribunal to better understand his Application.
47The report is from Dr. W. Moore, a psychiatrist and is dated December 29, 2009. It sets out a somewhat different history of the events subsequent to the termination of the applicant’s employment with the corporate respondent but the differences are not relevant to these proceedings. Dr. Moore’s impression was as follows:
Mr. Smith has been suffering from a severe depressive disorder with psychotic symptoms for the past two years without receiving treatment for it and dealing with considerable stressors during this time.
48She indicated that he was starting to emerge from an “unstable and untreated mental state” and was responding well to therapy. The applicant has since had ongoing treatment from another psychiatrist but is not yet able to return to the workforce.
The Respondents’ Request for Dismissal
49After hearing the evidence described above, the respondents renewed their request that the Application be dismissed in whole or in part.
50The applicant was invited to make submissions on the respondents’ request but declined to do so. After a recess, I gave an oral decision, dismissing the Application with respect to all of the allegations except those concerning the work atmosphere at the Markham location. My oral ruling is reproduced here:
The first thing that I would like to address is what has not happened in this case. In particular, I find that the applicant has not lied about what he alleges occurred. A person can only be said to have lied if he says something he knows not to be true. I believe that the applicant believes that the things that he alleges happened actually did happen.
My task is to determine whether they did happen. I have to decide this on a balance of probabilities: Is it more probable than not that what has been alleged to have happened actually did happen?
The allegations in this case are essentially as follows:
a) A racial slur was used by Scott Baldwin, a co-worker at the Head Office location
b) There was harassment in regards to “rumour mongering” including rumours that the applicant was involved with drug dealers, that he killed drug dealers, and that drug dealers were going to harm him and/or his family.
c) Racist comments were used at the Markham location, including “Island Boy” and “Coco Boy”.
d) There was harassment at the Markham location in the use of the nickname “Shingles”.
e) He was denied a promotion/job transfer
f) There was reprisal for raising his allegations
g) His employment was terminated.
I am confronted with completely contradictory evidence with regard to allegations (a) and (b). The applicant continues to maintain that what he has alleged in regard to these two allegations occurred. The respondents completely deny that these things did occur.
Again, I am satisfied that the applicant believes the allegations to be true. He is not lying in the sense that he is alleging things that he knows are not true. He believes that they are true.
The only evidence to suggest that they are true is the applicant’s own testimony. The applicant has said that two other witnesses could be available and who could support his case. One of these potential witnesses is a co-worker who the applicant says witnessed the alleged racial slur. The other is the police officer who came to the workplace. It does not appear that the co-worker could add anything to the evidence already heard. He was not directly involved. It is true that he is no longer an employee and in some circumstances might therefore be seen as a reliable witness since it is well known that current employees may be reluctant to provide testimony against the interest of their employer. However I do not think this potential witness (who is not present) would be helpful in this case because, for reasons explained shortly, I am satisfied that I can rely on the evidence I have heard from the three witnesses called by the respondents.
The police officer (who is also not present) could possibly add some evidence of value but the value of his evidence would only be with regard to the information that the applicant provided to him. He did not talk to anyone else or conduct any investigation. I am therefore satisfied that there would be limited value in hearing his evidence.
The applicant also relies on the audio tapes and I will discuss this further later.
In contrast to the applicant’s evidence, there is the evidence of Mr. Royer, Mr. Baldwin and the supervisor who the applicant says witnessed the alleged racial slur.
I find the evidence of the respondent’s witnesses to be credible and reliable. They gave their evidence in a straightforward manner and I was unable to detect any indication that any of them was in any way trying to cover up improper behaviour. With regard to the racial slur allegation, I accept that Mr. Baldwin is not someone who is likely to say the sorts of things that applicant alleges he said and I accept that he has been very disturbed by the allegations. I also accept the supervisor’s evidence that she would have been shocked if she witnessed the events that the applicant describes and would have taken some action.
I turn now to the allegations of rumour mongering. The respondents submit that this allegation does not raise a Code-related ground. It is not necessary to determine this because I find that it is more probable than not that the things that Mr. Royer and the other personal respondents are alleged to have said in regard to the “rumour mongering” allegations were not in fact said.
The oral evidence I heard and my review of the recorded conversations convinces me that Mr. Royer was shocked by the allegations when confronted by the applicant. He tried at length to make some sense of them and tried to figure out an appropriate response. This is not a reaction that is in any way consistent with someone who is trying to cover something up. The audio recordings do not provide any support for the applicant’s allegations.
Once the allegations were made, there was an investigation. The applicant’s employment was terminated because it was not possible for him to continue working with the company because of the nature of the allegations. The employment relationship was by then irrevocably broken.
The termination of employment was not a reprisal for having raised a human rights issue. Any discussions that might have occurred about a transfer or promotion came to an end because of the allegations and the termination of the employment.
This leaves the allegations about the work environment at the Markham location including the use of nicknames. The evidence on this aspect of the Application indicates that the environment was one where people worked hard but also had fun. This included general joking and also included the use of nicknames.
I am not making a finding at this time about this aspect of the applicant’s allegations and require further evidence concerning this issue.
The Workplace Environment
51The allegation that was not dismissed at the hearing concerns the workplace environment and the use of nicknames.
52Section 10(1) of the Code defines, “harassment”:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
53It is not disputed that the applicant was given the name “Shingles” when he returned to work after being off work for a week with shingles. Mr. Triolo testified that when he first told the applicant about his new nickname, the applicant expressed some concern and Mr. Triolo realized that the applicant was not completely happy about the new nickname. At the same time, the applicant testified that for a little while he went along with the nickname. He also agrees that people stopped using the nickname when he specifically asked that it not be used. He testified that Sue continued to use it a few times after he asked her not to. Mr. Triolo testified that two of the regular clients also used it until they were made aware that the applicant did not like it.
54The applicant does not allege that the Shingles nickname was related to discrimination or harassment on the grounds of race or colour, the grounds identified in the Application. The nickname could constitute harassment on the grounds of disability but as noted earlier, the applicant did not identify disability as a ground of discrimination or harassment. Even if he had identified disability as a ground, the evidence shows that use of the nickname stopped when he made it clear that it was not welcome.
55In regard to the identified grounds of race and colour, it is not disputed that Mr. Royer was called “Coco-Boy” from time to time by Mr. Triolo and Sue. I accept the evidence of Mr. Royer and Mr. Triolo that the origin of this nickname was related to Mr. Royer’s like of coco buns and was not racial. However, in my view, a reasonable person not aware of the real origins of this nickname could assume that this nickname was related to colour and it is understandable that the applicant felt that the nickname was offensive.
56The applicant’s evidence was that the use of this nickname stopped because Mr. Royer told Sue and Mr. Triolo to stop using it because the applicant was bothered by it.
57The only joke or nickname that the applicant alleges was directed directly at him was the Island Boy nickname. Mr. Royer indicated that he would agree that the term would not be appropriate. On the applicant’s evidence, it appears that the nickname was applied to Mr. Royer once or twice and on one occasion it was used to refer to Mr. Royer and the applicant.
58The applicant’s uncontested evidence was that some of the general joking that occurred occasionally had a racist tone. In particular, he alleges that there were jokes based on a hurtful racial stereotype that Black people do not know their father. This too would have contributed to the applicant’s sense of that inappropriate joking was tolerated in the workplace, particularly as the manager was the target of the jokes.
59While there is some cause for concern in regard to the general work environment and the background of joking and nicknaming, I find that the applicant did not experience harassment within the meaning of the Code on the grounds of race and colour because there was not a course of conduct and because any unwelcome behaviour stopped when the applicant made it known that it was not welcome. In my view, the work environment was not so objectionable that it could be said to have been a poisoned work environment. While there was a culture that tolerated joking and nicknaming that could sometimes be offensive, it appears that the culture was also such that the potentially offensive behaviours would stop if anyone objected.
60For these reasons, the Application is dismissed in its entirety.
Dated at Toronto, this 23^rd^ day of September, 2010.
“Signed by”
Brian Cook
Vice-chair