HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cheryl Khan
Applicant
-and-
820302 Ontario Inc. c.o.b. Lynx Trucking, Transportation and Leasing
and Lynn Tompkins
Respondents
DECISION
Adjudicator: Eric Whist
Indexed as: Khan v. 820302 Ontario
APPEARANCES
Cheryl Khan, Applicant ) Bruce Best, Counsel
820302 Ontario Inc. c.o.b. )
Lynx Trucking, Transport and Leasing ) Richard Chojnacki, Counsel
and Lynn Tompkins, Respondents )
INTRODUCTION
1Cheryl Khan, the applicant, alleges in her Application that 820302 Ontario Inc. c.o.b. Lynx Trucking, Transport and Leasing (“Lynx Trucking”) and Lynn Tompkins (the “personal respondent”) discriminated against her in employment on the basis of race, colour, ethnic origin and family status contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant’s principal allegations are that the personal respondent, who is the owner of Lynx Trucking, repeatedly made offensive and demeaning racial comments to her during the five months she was employed at Lynx Trucking. She alleges these comments were often made at times when the personal respondent had lost his temper and was yelling and swearing at the applicant about her work performance. The applicant alleges that the personal respondent also made racial comments about other employees of East Indian origin and she questions whether the personal respondent gave preferential treatment to Caucasian drivers over drivers of East Indian origin.
3The applicant further alleges that the personal respondent’s decision to terminate her employment was related to her race, colour and ethnic origin and furthermore, to her family status, because the personal respondent was unwilling to accommodate her need to miss work in order to be with her hospitalized son.
4The personal respondent stated that he was a tough manager who often yelled at his employees but denied having made any racial comments to the applicant. He contended that the applicant would repeatedly challenge his decisions and argue with him and that ultimately she was not effective in her job. He stated that the applicant’s employment was terminated because of her poor performance and failure to adhere to certain job requirements such as being at work on time and not using company computers for personal matters. The personal respondent argued that the decision to terminate the applicant’s employment was made prior to his knowing that the applicant wished to take time off in order to attend to her son in hospital and consequently could not constitute discrimination based on family status. The personal respondent denied having made racial comments about other staff or having favoured certain drivers because of their racial background or ethnic origin.
PROCEEDING
5The hearing took place over five days. I heard testimony from ten witnesses: the applicant, the personal respondent and eight current or former employees of Lynx Trucking.
6During the hearing the terms Indian, East Indian and Pakistani were used by witnesses to describe the origin of the applicant and other racialized persons in the workplace. I also heard testimony about the use of derogatory racial names. I have generally employed the terms used by the witnesses.
7At the outset of the hearing, the applicant sought to amend her Application to include as grounds of discrimination sex, association with a person identified by a ground of discrimination (her son) and reprisal or threat of reprisal. I denied this request on the basis of its lateness and its prejudice to the respondents.
BACKGROUND
8Lynx Trucking is a trucking firm based in Toronto specializing in the transportation of containerized freight. The company is owned by the personal respondent and his spouse, Jacqueline Tompkins, who works for Lynx Trucking on a part-time basis, primarily as a bookkeeper. The company owns its own fleet of trucks and employed approximately 15-17 truck drivers at the time the applicant was with the company. The truck drivers are a racially diverse group but with a concentration of drivers of South Asian origin. Most drivers work a daytime shift but there is a nighttime shift as well. I heard testimony from four drivers about how the personal respondent related to his employees, including the applicant, and how jobs were allocated to drivers.
9Lynx Trucking maintains its trucks in a yard which is also the site of the company’s office. The office is comprised of two trailers placed together in an “L” shape. One trailer contains the personal respondent’s office. The other trailer contains an open area with five desks which is where the company’s administrative staff work. This trailer also contains a separate dispatch office. A key issue in this case is what was said between the applicant and the personal respondent in this trailer and what was heard of their verbal exchanges by others working in the trailer. I heard testimony from four other persons who worked in this trailer.
10The applicant was hired to be the dispatcher at Lynx Trucking. The dispatcher is responsible for assigning drivers to pick up and deliver loads. It was generally agreed that this is a challenging job requiring an understanding of the logistics of moving freight, particular knowledge of the container business, an understanding of the needs of customers, as well as an ability to efficiently deploy the company’s trucks and appropriately apportion assignments to drivers.
EVIDENCE
11A brief overview of the key evidence follows. I will begin with the applicant’s and personal respondent’s testimony.
The applicant’s employment
12The applicant self-identifies as a Canadian of East Indian or Pakistani origin.
13The applicant testified that she was hired by the personal respondent in September 2007. The applicant testified that she felt she was well-qualified for the job of dispatcher having worked in the transportation sector for 11 years, including 5½ years as a dispatcher. She also testified that she had attended the Canadian Institute for Traffic and Transportation and taken a number of courses relevant to the work of a dispatcher.
14The applicant testified that her hours of work were 10:00 a.m. to 6:00 p.m. She testified she worked closely with the personal respondent both because he acted as the company’s dispatcher prior to her arrival in the morning and because he was, by nature, a very hands-on manager. The personal respondent also testified that he spent a lot of time working with the applicant. He testified that this was not only because he was a hands-on manager but because the applicant had explicitly been hired as a trainee. The personal respondent stated that he spent part of each day teaching the applicant the requirements of the dispatch job at Lynx Trucking. The personal respondent described the dispatch job as being demanding.
15The applicant testified that the personal respondent would, on a daily basis, swear and yell at her about her work. She testified that he would constantly belittle her by calling her stupid, ignorant or uneducated. She testified that there were occasions when the personal respondent was so angry that he would aggressively hit a desk with his fists or throw office supplies. The applicant testified that he would never say anything good about the work she had done, even when she felt she had made useful contributions such as introducing a new paperwork process that the drivers found helpful. The applicant testified that it was difficult to determine what the personal respondent wanted as he was inconsistent in his demands and expectations and there were no written company policies or procedures in place to indicate what was required or expected in her job. The applicant testified that the personal respondent would defend his decisions or actions, whether or not they made sense, by stating that it was his company and he could do what he wanted.
16The applicant testified that the personal respondent repeatedly made explicit racial comments directly specifically to her and in reference to other racialized persons including employees. She testified that he routinely called her “Paki” or referred to her as “that Indian” and that eventually these comments were made almost on a daily basis. She stated that sometimes the overtly racial comment of “Paki” was made when the personal respondent would also state that she was stupid, uneducated, useless or worthless. The applicant testified that the personal respondent would make general comments about persons of “East Indian” origin, repeatedly saying that they were stupid or ignorant, that no one would hire them. She testified that he called her a stupid immigrant. The applicant stated that the personal respondent would also tell her that she was lucky to have her job and she should be grateful. The applicant testified that the personal respondent was aware that her two children (now aged 11 and 14) had a Black father and he would describe them as her “half-Nigger babies” or would tell her such things as “that’s what you get for sleeping with a Nigger”.
17The applicant testified that in October 2007 a number of drivers of Indian origin asked for time off to attend Diwali, an important religious occasion for Hindus, and that she recalled the personal respondent commenting in response that “the fucking Indians did not want to work”. She further recalled the personal respondent telling another White employee, Ed “Skip” Hughes, that Mr. Hughes should remind him [the personal respondent] never to hire those Indians again.
18The applicant testified that the personal respondent would also tell racist jokes in the office, although she stated this was rare because the personal respondent would only tell jokes when he was in a good mood and this was not often.
19The applicant testified that she initially tried to laugh off some of the racial comments, stating that she could not truly believe someone would talk like that and further noting that it was her employer who was making these comments. She stated that later, when she would tell the personal respondent that he could not talk to her in that way, he would respond by telling her it was his “fucking company”.
20The personal respondent denied having made any racial comments to the applicant or having made any racial comments about other racialized employees. The personal respondent denied having made any racial comments in relation to employees wanting time off for Diwali in October 2007 and testified that he willingly accommodated drivers who wanted time off to attend Diwali festivities.
21The personal respondent acknowledged that he had a temper and that he would yell and swear, including yelling at his staff, but stated that this was his style and that his staff all knew this. He testified that the tensions between him and the applicant arose principally because the applicant would not follow his directions.
22The applicant testified that she would assign loads to drivers based on what loads had been assigned the day before in an effort to ensure that work was apportioned fairly amongst drivers. Drivers, it should be noted, were not paid on an hourly basis but rather only by the loads they delivered. The applicant testified that the personal respondent would then often re-assign loads, in a way that she alleges would favour White drivers.
23The personal respondent denied that White drivers were favoured based on consideration of their race. He testified that loads were assigned on the basis of seniority and that a number of the more senior drivers were White (although not all). The personal respondent testified that the applicant did not have a suitable understanding of how loads should be assigned and that this was one of the problems with her performance.
The Applicant’s Dismissal
24The applicant testified that on Saturday, January 26, 2008, she had to take one of her sons to the hospital as he was ill. She testified that on the Sunday morning she was told by two hospital staff that her son had been diagnosed with liver cancer and had tested positive for sickle cell anaemia. The applicant testified that she left three telephone messages for the personal respondent on Sunday, January 27 to say her son was hospitalized and that she would not be in on Monday, January 28. She testified that she eventually spoke to an employee, Donnie Lewis, and then the personal respondent early on the morning of Monday, January 28 about her situation and that the personal respondent told her “do what you have to do”. The applicant testified that she telephoned later on January 28 and spoke to the personal respondent to say that as her son was still in hospital she would not be in on the Tuesday. The applicant testified that she believed she spoke to the personal respondent twice on Tuesday to communicate that the hospital was releasing her son because it was determined that he did not have cancer but was a carrier of sickle cell anaemia and that consequently the applicant would be into work on Wednesday, January 30.
25On Wednesday, January 30, the applicant came to work and saw that someone new was sitting at her desk. She testified that the personal respondent then briefly met with her to tell her that that she had been fired. She testified that no reasons for her dismissal were given to her. The applicant testified that she was given a cheque and Record of Employment (“ROE”) stating that her last day of work was January 30, 2008, and that she had been dismissed. The ROE was signed by Jacqueline Tompkins and dated January 28, 2008. The applicant testified that she believed that being absent from work on January 28 contributed to the personal respondent’s decision to terminate her employment.
26The personal respondent testified that he had been considering terminating the applicant’s employment since early in January 2008 on the grounds that she was not doing a good enough job. The personal respondent testified that he made the final decision to terminate the applicant’s employment on Friday, January 25, prior to any knowledge that the applicant was at a hospital with her son or would be asking for time off. The personal respondent testified that he directed Jacqueline Tompkins on January 25 to prepare the applicant’s ROE and final cheque over the weekend.
The Applicant’s Work Performance
27The personal respondent indicated in his Response and his testimony that there were further job-related issues with the applicant. He stated that the applicant was not punctual and that she would not always arrive at work by 10 a.m. as was expected. He testified that the applicant was caught playing solitaire on her computer and visiting Facebook while on company time. He stated that despite a warning, the applicant was again found visiting the Facebook website. The respondent stated that the applicant had used her company-issued cell phone for personal telephone calls. The personal respondent also testified that the applicant had a practice of not showing up on Mondays. The personal respondent referred in particular to a Monday in December 2007 when he believed the applicant was absent because she had gone on a weekend shopping trip to Syracuse, New York and had called in to say that she would not be coming into work on the Monday because she was too tired from the drive home the night before.
28The personal applicant testified that the applicant was not an effective dispatcher. He stated that she did not know how to properly assign loads so as to minimize unnecessary travel. He stated that when he tried to correct mistakes the applicant was making the applicant would inappropriately challenge what he had to say, not respecting his experience and knowledge of the trucking business. He stated that a number of important customers were not happy with the service provided by the applicant.
29The applicant maintained that she generally arrived at work a few minutes before 10:00 a.m. but acknowledged she could be five or ten minutes late. She testified that she did not know how often she was late but she denied that it was more than once a week. She stated no warnings had been issued about her punctuality and she was keen to note that she often worked late. She denied that she had been frequently absent from work. She indicated that she had taken time off when her brother had had a heart attack but denied that she had been off work on a Monday because she had been on a shopping trip to Syracuse New York, and was too tired to come into the office.
30The applicant acknowledged having logged on to Facebook while at work but stated it was only once, and while on her lunch hour, and testified that when told that this was against company policy, she did not do it again. She stated that she had used the company’s cell phone to make personal telephone calls, but this was after 4:30 p.m. when she knew she had to work late and she needed to resolve child care for her children. The applicant testified that she was on good terms with Lynx Trucking clients, noting that she received presents from a number of them and was offered a job by one prominent customer while she was employed at Lynx Trucking.
31The applicant was questioned about a number of specific incidents and how she handled her dispatch duties. The applicant stated she did not recall the incidents but made the general comment that she would likely have made some mistakes in her job but not on a regular basis.
The Testimony of the Other Witnesses
32Sahar Al-Jazrawi, a former administrative clerk, and Earl “Skip” Hughes, a former sales representative at Lynx Trucking, testified on behalf of the applicant. Annie Rampersaud, the current dispatcher at Lynx trucking, Jacqueline Tompkins the current bookkeeper (and the personal respondent’s spouse), and four current truck drivers, Donny Lewis, Charanjit Singh Chauchan, Balwinder Ghag and Gurvinder Grewal testified for the respondents.
Sahar Al-Jazrawi
33Ms. Al-Jazrawi worked as an administrative clerk for Lynx Trucking from February 2007 until February 2008. She is originally from Iraq and has been in Canada for seven years. Ms. Al-Jazrawi testified that she felt that the personal respondent was an abusive boss who often yelled at staff and whose treatment of staff she believed constituted verbal harassment. She testified that she had never worked in such an environment.
34Ms. Al-Jazrawi felt some of the comments made to her by the personal respondent were deliberately demeaning and explicitly anti-immigrant. She referred to an occasion that the personal respondent yelled at her and told her she did not deserve to be in Canada and made further comments that immigrants don’t deserve to be in Canada. She testified that she heard the personal respondent yell at the applicant and that on two occasions she could recall the personal respondent referring to the applicant as “Paki”. She testified that she heard the personal respondent refer to company drivers as “Indian” in a manner she felt was demeaning. She testified that she never heard the personal respondent use the term “Nigger”.
35I also had before me two documents that Ms. Al-Jazrawi testified she had written shortly after she left Lynx Trucking, both of which refer to the personal respondent making racial comments. The first was a letter Ms. Al-Jazrawi wrote to the personal respondent dated Friday February 8, 2008:
To Mr. Lynn Tompkins:
Since I started at Lynx Trucking Transportation on April 2007, I have had the dissatisfaction of seeing how you treat the employees of this company. The employees not only endure your harsh verbal abuse but they have to deal with your constant harassment and racial comments. Many of my colleagues have left due to this unacceptable behaviour.
For last months I have been under too much pressure due to your verbal abuse which keeps me escalating and racial comments, you always tried to put me down by yelling and screaming at me for no reason and in front of everybody whom surprise from your behaviour against me. Last Friday (February 29th) your wife made it clear that such immigrants cannot find jobs due to our lack of Canadian education. That I must endure your abuse and be grateful you have hired me.
Furthermore I don’t feel comfortable and I feel continuously harassed.
For all of the above reasons Ii [sic] is in the best interest of my health and sanity that I cannot continue working here in such a negative environment. As many of the other employees have left, I will as well.
The second document was a form Ms. Al-Jazrawi prepared for Human Resources and Skills Development Canada (“HRSDC”) in relation to her application for Employment Insurance benefits. In this form she states that she quit her job with Lynx Trucking because of harassment and refers to the personal respondent’s practice of screaming at employees and comments made to her by both the personal respondent and his spouse, Ms. Tompkins, that she felt were anti-immigrant and intended to humiliate her.
Ed “Skip” Hughes
36Mr. Hughes testified that he worked for Lynx Trucking for two years, until February 2009. He testified that his principal job was sales but that he did a little bit of everything, including dispatch. It was Mr. Hughes who initially referred the applicant to Lynx Trucking.
37Mr. Hughes testified that the applicant and the personal respondent initially got along but that the relationship deteriorated. He stated that the applicant and personal respondent would continuously argue about how the dispatch job should be done. Mr. Hughes testified that he thought the applicant was a good dispatcher, that customers liked her, that people generally thought highly of her.
38Mr. Hughes testified that the personal respondent used to regularly use terms such as “Paki”, “Indian” and “Nigger”. He suggested that the personal respondent used the word “Nigger” almost every day, and recalled the personal respondent using the word “Nigger” with a Black employee who, according to Mr. Hughes, “went ballistic” in response. Mr. Hughes testified that he was aware of the personal respondent specifically using the word “Paki” with the applicant approximately 15 times but he did not recall hearing the personal respondent make any reference to the word “Nigger” specifically in relation to the applicant or her children. He testified that the personal respondent would refer to the drivers of Indian origin as “Indians” and would make statements such as “Why did we hire them? Are there not any good White people we could hire?” He testified that the personal respondent would refer to employees of Indian origin as stupid or dumb.
39Mr. Hughes testified that he was asked by the personal respondent to prepare an affidavit in response to the applicant’s Application saying that the personal respondent was a nice guy who did not make the racial comments alleged in the Application, but that he was not prepared to do this as this would not be true.
40Mr. Hughes testified that he was aware that the applicant and personal respondent argued and their arguments could be pretty heated. He believed that these arguments eventually occurred on a daily basis. Mr. Hughes did not recall the specifics of these arguments but did recall the applicant saying to the personal respondent that her heritage had nothing to do with her job.
41Mr. Hughes testified that he had some knowledge of the applicant’s termination. He testified that he knew that the personal respondent was not happy with the applicant and had been considering terminating her even prior to the January 25-26, 2008 weekend. He testified that he believed that the personal respondent had been in touch with a temporary employment agency before the weekend to get a temporary dispatcher. This was the person who was present on Wednesday, January 30 when the applicant appeared for work. However, Mr. Hughes stated that he was of the opinion that the personal respondent was “ticked off” by the applicant’s absence on Monday, January 28 and that this was “the topper” in the personal respondent’s decision to fire the applicant.
Annie Rampersaud
42Ms. Rampersaud identifies as a Canadian of West Indian or Trinidadian origin. She began at Lynx Trucking in December 2006 as the accounts receivable clerk. She testified that she also became the assistant dispatcher before she left Lynx Trucking in December 2007. She later returned to Lynx Trucking in March 2008 and she currently continues to work at Lynx Trucking.
43She testified that working with the personal respondent could be stressful because he would regularly yell, scream and swear, often using the “‘F’ word”. Ms. Rampersaud stated that she would hear and see the personal respondent get angry at others given the close proximity of everyone who worked in the trailer.
44Ms. Rampersaud testified that she never heard the personal respondent use the word “Paki” in reference to the applicant, nor the personal respondent make any other racial, sexist or demeaning comments (such as the applicant being stupid or worthless) to the applicant, including any comments about the applicant’s children. Ms. Rampersaud testified that she was unaware of any racial comments made to or about any of the other office staff (including herself and Ms. Al-Jazrawi) or any of the drivers either when she worked with Lynx Trucking in 2007 or since her return to the company in 2008.
45Ms. Rampersaud testified that the personal respondent would occasionally tell jokes but that he was not very good at it. Ms. Rampersaud could not recall if these jokes were racist or sexist.
46Ms. Rampersaud testified that the applicant would often be late for work, arriving between 10 and 10:15 a.m. more than two times a week. She stated that the applicant would leave the dispatch desk unattended – something that should not be done – to have lunch or to take a cigarette break. Ms. Rampersaud recalled the applicant telling her that she was just back from a shopping trip in Syracuse, New York, and had arrived home late on a Sunday because of the weather and had consequently decided that she would not be into work on the Monday.
47Ms. Rampersaud testified that she heard the personal respondent and applicant argue daily about work-related matters with the personal respondent telling the applicant what should or should not have been done. Ms. Rampersaud stated that she was aware that there was an issue between the personal respondent and the applicant as to whether the applicant was favouring new drivers (who were mostly, but not all, of East Indian origin) rather than assigning loads to senior drivers. She stated that she was aware that the personal respondent would re-assign loads to senior drivers after they had initially been assigned by the applicant to new drivers.
48Ms. Rampersaud celebrates Diwali. She testified that she never heard any of the drivers complain about being denied an opportunity by the personal respondent to attend Diwali events nor did she hear any of the drivers complain about the personal respondent being racist. She further testified that while the personal respondent could get angry with the drivers, she never heard him voice his displeasure in racial terms.
Jacqueline Tompkins
49Ms. Tompkins stated that she worked at Lynx Trucking three days a week (Tuesday, Wednesday and Friday) doing a range of administrative jobs. She testified that given the layout of the trailer she could see and hear what generally happened, including what took place in the dispatch office.
50Ms. Tompkins testified that the personal respondent hired the applicant in order to train her to be the dispatcher. She testified that the personal respondent would sit with the applicant and watch what she did. Ms. Tompkins testified that the personal respondent would get mad at the applicant if she did something wrong. She testified that there would be arguments between the personal respondent and the applicant over how something should be done and that both of them would use raised voices. She stated that the personal respondent naturally had a loud voice and that while he might raise his voice he did not yell. She testified that the personal respondent would occasionally swear, but testified that she never heard racial, sexist or demeaning comments from the personal respondent. She testified she never heard the term “Paki” or “Nigger” used by the personal respondent in conversation with the applicant or any other staff person. She testified she never saw the personal respondent throw anything.
51Ms. Tompkins testified that she believed the applicant favoured newer drivers when assigning loads. She also had concerns about the applicant’s behaviour, noting that the applicant was caught playing solitaire on her computer. She testified that the personal respondent would regularly tell her that he did not believe that the applicant’s future at Lynx Trucking looked good.
52Ms. Tompkins testified that while driving home on Friday, January 25, the personal respondent told her that he was terminating the applicant’s employment and asked Ms. Tompkins to prepare an ROE for the applicant. Ms Tompkins testified that she prepared the ROE on Sunday, January 27, and dated it for Monday, January 28, given that she never dates office-related documents on a Sunday.
53Ms. Tompkins testified that the personal respondent never told jokes because he could never remember the punch line.
54Ms. Tompkins testified that the applicant played solitaire until the company had the program removed from the office computers. She testified that the applicant also accessed Facebook and despite being told that she should not be viewing Facebook on company time, Ms. Tompkins saw her use it again. Ms. Tompkins also testified that she reviewed the applicant’s cell phone use and determined that the applicant had used the phone to make inappropriate personal calls (not just to her children).
55Ms. Tomkins noted that the applicant had been absent from work on a number of occasions noting that it always appeared to be on a Monday. She too, recounted the story of the applicant calling into the office to say she would not be in on a Monday because she was tired from driving home from a shopping trip to the United States.
Donnie Lewis
56Mr. Lewis worked as a driver for Lynx Trucking for 16 years, the last 12 on the night shift. He has worked in the office as well. He described himself as the personal respondent’s right hand man. He testified that he had some contact with the applicant either in the morning after his shift or in the evening before beginning work and that he got along fine with the applicant. However, he testified that he later began to conclude that the applicant wasn’t getting the dispatch job and that she was in over her head. He testified that he believed the applicant’s performance did improve but not greatly.
57Mr. Lewis testified that he saw the applicant and the personal respondent interact a couple of times a week in the dispatch office and that, over time, they increasingly would argue with each other. He testified that the personal respondent had a short fuse and that initially the applicant responded defensively but increasingly began to stand up for herself. However, he noted that the personal respondent was someone who wanted things done his way.
58Mr. Lewis testified that the personal respondent would routinely yell and swear at employees, including himself, but he testified that he never heard the personal respondent use any words that referred to the gender or race of a person. Mr. Lewis testified that the applicant would complain to him about the personal respondent’s treatment of her but that he never heard the applicant complain of any racist or sexist comments. Mr. Lewis suggested that the personal respondent was too clever a businessman to make such comments.
59Mr. Lewis further stated that he did not hear any one employee complain about the personal respondent using racist or sexist language, although there were lots of complaints about the personal respondent’s temper. He testified that the personal respondent did not tell jokes because he could never remember the punch line.
60Mr. Lewis testified that some drivers complained about the applicant’s apportioning of loads, but that he was unaware about any favouritism that she might have displayed. He testified that the expectation was that senior drivers would get more assignments and that the night shift would get a large number of assignments in order to facilitate getting container loads cleared by Canadian customs.
61Mr. Lewis testified that he was aware of the circumstances surrounding the applicant’s termination. He testified that he discussed the termination with the personal respondent two weeks before the termination at which time the personal respondent had told him that the applicant was not understanding the job. Mr. Lewis testified that he and the personal respondent discussed the applicant’s work performance two or three times; the last time was Friday, January 25, at which time the personal respondent told him that he was really “pissed off” and that the applicant’s termination would be soon. Mr Lewis testified that it was he who answered the applicant’s telephone call on Monday, January 28, at which time the applicant told him she was at the hospital with her son. He replied by telling the applicant to do whatever was necessary.
Charanjit Chauhan, Balwinder Ghag and Gurvinder Grewal
62Mr. Chauhan’s, Mr. Ghag’s and Mr. Grewal’s evidence was relatively brief. They all identified India as their place of origin. They testified that as drivers they were in the Lynx Trucking office on a very limited basis and consequently they did not witness a lot of the interaction between the personal respondent and the applicant. However, they all testified about their experiences in working with the personal respondent. Mr. Chauhan, an employee of Lynx Trucking since 2000, testified that he did not believe the personal respondent had a short temper and that he had never seen him yell or swear. Mr. Ghag, an employee of Lynx Trucking since February 2007, testified that he was aware that the personal respondent yelled but he had not heard him swear. He testified that other truck drivers complained about the personal respondent’s yelling but that Mr. Ghag would tell them that they would have to bear with it. Mr. Grewal, an employee of Lynx Trucking since August 2007, testified that the personal respondent had gotten angry at him once but had not raised his voice.
63Mr Chauhan, Mr. Ghag and Mr. Grewal all testified that they had not heard the personal respondent make racial comments to the applicant or to any other employee. They all testified that they did not believe the personal respondent assigned work on a preferential or discriminatory basis. All three were satisfied that work was assigned to drivers on the basis of seniority. None of them had concerns about the personal respondent’s behaviour in relation to employees wanting to attend Diwali events in 2007.
ANALYSIS AND FINDINGS
The Law
64Subsections 5(1) and 5(2)of the Code provide that
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
Harassment is defined in section 10 of the Code:
10(1) “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
65In both her pleadings and her evidence at the hearing, the applicant discussed the grounds of discrimination she was alleging: race, colour, and ethnic origin as intersectional. Therefore, I have considered these grounds together.
Did the personal respondent make racial comments to the applicant?
66This is the central issue in this case. It is an issue that turns, in large measure, on the question of credibility. Who was more credible: the personal respondent and those witnesses who claimed that he did not make such comments or the applicant and those witnesses who supported her allegations? Having weighed the evidence before me I find, on a balance or probabilities, that the personal respondent did repeatedly use the terms “Paki” and “Nigger” as well as make other offensive comments to the applicant that he knew to be unwelcome.
67In determining credibility, I follow the Tribunal’s usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its 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…
In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.
68I find the applicant, Ms. Al-Jazrawi and Mr. Hughes credible in their evidence concerning the applicant being subjected to racial name calling and I decidedly prefer their testimony to that of the personal respondent and those witnesses supporting his claims. Ms. Al-Jazrawi’s testimony, in which she expressed great concern about the way she and the applicant and others were treated at Lynx Trucking was forthright, emotional and detailed. I accept Ms. Al Jazrawi’s claim that she specifically heard the personal respondent refer to the applicant as “Paki”.
69Significantly, I also had before me Ms. Al-Jazrawi’s letter of February 8, 2008, shortly following her resignation from the company. In this letter she states that the personal respondent made racial comments to her and other staff, staff which she testified included the applicant. This letter (and the further document Ms. Al-Jazrawi provided to HRSDC) predates the applicant’s Application and I am satisfied that it was prepared not for the purposes of human rights litigation but only to voice Ms. Al-Jazrawi’s concerns as a departing employee about the treatment she and others received while working for Lynx Trucking. I give weight to this documentary evidence, produced only a few weeks after the applicant’s employment with Lynx Trucking was terminated. I find that it corroborates the oral testimony before me that the personal respondent did make racial and demeaning comments in the workplace, including to the applicant.
70Mr. Hughes’ testimony was decidedly different in tone from Ms. Al-Jazrawi’s but was also persuasive. Mr. Hughes’ description of the personal respondent’s behaviour and use of racial epithets, unlike Ms. Al-Jazrawi’s, was neither emotional nor condemnatory. Initially Mr. Hughes was very general in his testimony. His manner was gruff and his answers brief. He repeatedly noted the rough and tumble nature of the trucking business. It was only during cross-examination that he spoke specifically about the personal respondent’s practice of making racial comments, including using the terms “Paki” and “Nigger”. He referred to the personal respondent’s repeated use of racial comments suggesting that such comments were not so unusual in the trucking business.
71Mr. Hughes, like Ms. Al-Jazrawi, was able to credibly refer to both his own experiences in witnessing the personal respondent’s use of racial comments as well as being present at times the personal respondent made such comments directly to the applicant. He testified that he heard the personal respondent make disparaging comments about another employee of East Indian origin, describing him as dumb and stupid and referred to the personal respondent having asked him when discussing East Indian drivers, “Why did we hire them? Are there not any good White people we could hire?” Mr. Hughes testified that he heard the personal respondent use the term “Nigger” almost every day and heard the personal respondent use the term “Paki” with the applicant on approximately 15 occasions. The fact that Mr. Hughes’ testimony regarding the personal respondent’s behaviour and language was provided with little expression of disapproval, and had to be drawn out, contributed to its credibility.
72The applicant’s overall testimony was forthright and clear and, despite a vigorous cross-examination, she provided a consistent account of her experiences at Lynx Trucking. The applicant was, on occasion, emotional about describing her experiences in working with the personal respondent and credibly described the shock and indignation she felt when the personal respondent made racial comments to her. I have concluded that the collective, consistent testimony of the applicant and her two witnesses is persuasive.
73By contrast, the personal respondent and the respondents’ witnesses provided inconsistent testimony regarding the nature of the personal respondent’s alleged anger and the way in which he treated staff. Ms. Rampersaud stated the personal respondent repeatedly swore, principally using the “‘F’ word”. Ms. Tompkins testified that the personal respondent might swear but only occasionally used the “‘F’ word”. Mr. Ghag testified that the personal respondent did not swear at all. Mr. Lewis stated that the personal respondent yelled a great deal while Ms. Tompkins testified that the personal respondent did not yell but only raised his voice. Mr. Chauhan stated he was unaware of the personal respondent losing his temper at all. Ms. Rampersaud stated that the personal respondent told jokes but Ms. Tompkins and Mr. Lewis said that this was decidedly not the case.
74I am troubled by these inconsistencies. I am of the view that they are likely as a result of witnesses presenting sanitized accounts of the personal respondent’s behaviour but in so doing failing to present a consistent version of the personal respondent’s actions. Put another way, if each of the respondents’ witnesses was accurately describing the personal respondent’s behaviour and the way he interacted with staff, I would not expect such a significant degree of divergence in their evidence. I am of the view that these witnesses, who I recognize would have had differing opportunities to observe the personal respondent’s behaviour, were attempting to hide aspects of the personal respondent’s behaviour, most particularly his use of racial comments, and present him in a more favourable light.
75I also heard testimony from the applicant that she approached Ms. Rampersaud in February 2008 when Ms. Rampersaud was unemployed. This was before Ms. Rampersaud returned to work for Lynx Trucking. According to the applicant, Ms. Rampersaud agreed at that time to testify as a witness for the applicant if she was to proceed with an Application to the Tribunal. Ms. Rampersaud categorically denied this but when comparing the applicant’s and Ms. Rampersaud’s accounts of their contact in February 2008, I preferred the applicant’s version of events. The applicant testified that she telephoned Ms. Rampersaud in February 2008 to ask her to be a witness and went on to describe her interaction with Ms. Rampersaud. This evidence was forthright and detailed. By contrast, Ms. Rampersaud’s evidence was decidedly awkward and hesitant. Ms. Rampersaud testified that the applicant provided no reason for her telephone call to her nor did Ms. Rampersaud ask. I did not find this testimony to be credible and it did affect the overall credibility of Ms. Rampersaud.
76In the final analysis, I prefer the testimony of the applicant and her witnesses. This testimony was clear and unproblematic. I am of the view that the testimony of the personal respondent and his witnesses was inconsistent, troublesome and ultimately less persuasive. As a result, I find that the personal respondent did make racial comments to the applicant.
77In finding that the personal respondent did resort to racial comments, I am prepared to find that he did so in the manner alleged by the applicant. I accept that the respondent made repeated use of the term “Paki” when directly addressing the applicant, as well as explicitly making references to the applicant having “Nigger babies” and having slept with a “Nigger”. This finding is based on the cumulative evidence of the applicant, Ms. Al-Jazrawi, and Mr. Hughes. There was evidence from all three of these witnesses that the personal respondent made demeaning racial comments about others and referred to the applicant as “Paki”. There was testimony by both the applicant and Mr. Hughes that the personal respondent repeatedly used the term “Nigger”.
78The personal respondent argued that it was not credible that he would have referred to the applicant’s children as “Nigger babies” or their father as a “Nigger” as he did not know the racial background of the applicant’s partner or children. The personal respondent denied the applicant’s claim that she had had photographs of her children on the dispatch desk and so he could not have known the racial background of her children. The personal respondent, Ms. Rampersaud, Ms. Tompkins, and Mr. Lewis all explicitly stated that the applicant never had photographs of her children on the dispatch desk.
79I do not accept this testimony. I am satisfied that the more probable account is that that in addition to making the demeaning racial comment of “Paki” the personal respondent made the further racial slur of “Nigger” in reference to the applicant and her children and the children’s father. I do not find the testimony of the personal respondent and the respondents’ witnesses on this point to be reliable given my general credibility findings. I have no reason to find that the applicant was not credible on this specific point. There is the further testimony of Mr. Hughes that the personal respondent routinely used the word “Nigger” including directly with a Black employee.
80The applicant also alleged that the personal respondent’s references to her being stupid and dumb and uneducated and undeserving were made because of her race, colour and East Indian origin and that they reflected the personal respondent’s views of persons of East Indian origin, including herself. She testified that such comments were made when the personal respondent would call her “Paki” and she noted that she heard the personal respondent routinely make disparaging comments about persons of East Indian origin. I also had before me Mr. Hughes’ evidence that the personal respondent had talked about Indians in an offensive manner. I find that these further demeaning comments about being stupid, ignorant and uneducated were made by the personal respondent to the applicant, in some measure, because of her race, colour and ethnic origin.
81While I did not hear explicit arguments at the hearing as to whether the personal respondent’s alleged comments constituted harassment as defined under the Code, I have no difficulty in concluding that they do. I find the personal respondent engaged in a course of vexatious comment or conduct that he knew or ought reasonably to have known to be unwelcome. The personal respondent repeatedly referred to the applicant as being stupid and uneducated and used the explicitly demeaning racial terms of “Paki” and “Nigger” in his interactions with the applicant. I am satisfied that he would have known these racial terms were offensive, and given the very nature of these terms he also would have known that they were unwelcome. I am satisfied that the personal respondent repeatedly harassed the applicant and that this constitutes a violation of both sections 5(2) and 5(1) of the Code.
82I am further satisfied that the applicant was subject to a poisoned work environment at Lynx Trucking. The concept of a poisoned work environment is a well-established one in human rights law. In the case of Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.), the Board stated at p. 17 that:
It is now beyond question that the atmosphere in which an employee must work is a condition of his or her employment, and should that atmosphere be oppressive or “poisoned” for a minority group, that circumstance might amount to discrimination on a prohibited basis.
83It appears Lynx Trucking was a difficult place to work for many employees given the personal respondent’s predilection for losing his temper and yelling and berating staff. However, I have found that the applicant was subject to the further demeaning treatment of having to face ongoing racial name calling which amounted to a denial of her rights under the Code. I also accept the applicant’s testimony, corroborated by Mr. Hughes, that this name calling increased over time to the point that it was constant.
84It also appears the applicant’s attempts to protest this treatment by telling the personal respondent that his comments were inappropriate and unwelcome were unsuccessful. I accept the applicant’s testimony that the personal respondent, the applicant’s employer, simply told her that as Lynx Trucking was his business he could do as he liked. As a consequence, a very real condition of the applicant’s employment was that she had to face the personal respondent’s persistent verbal abuse and that on any given day the applicant could expect to be subjected to racial comments from the personal respondent. I am satisfied that this recurring racially abusive treatment created a poisonous work environment for the applicant, an environment where she knew to expect that in carrying out her job duties she would be subject to harassment.
85It must be noted that the Application also alleges that the personal respondent discriminated against other employees, stating that White drivers were favoured over East Indian drivers in load assignments and that the respondents did not appropriately accommodate Hindu employees around Diwali in 2007. I did hear evidence about these issues. However, ultimately, the issue of whether the personal respondent discriminated against other staff is not directly related to the decision I must make which is whether the personal respondent discriminated against the applicant. Accordingly, I do not need to make findings in regard to these allegations and have not done so.
Was the decision to terminate the applicant’s employment related to her race, colour and ethnic origin?
86The personal respondent argued that the decision to terminate the applicant was strictly performance-related. The personal respondent testified that the applicant would not listen to his directions and did not sufficiently understand the particulars of the container business. He described, in some detail why he had to, on occasion, change her decisions, for example when he had to re-assign loads to the night shift. He testified about the economic losses he suffered from some of the applicant’s decisions. The personal respondent also testified that the applicant’s use of the company computer and cell phone for personal purposes, her tardiness and her failure to consistently work hard (for example, on Fridays) were factors in his decision to dismiss her.
87The applicant challenged this characterization of her work performance. She testified that she believed that while she made some mistakes she was generally doing a good job. She testified that she got along well with customers and drivers and that she introduced a number of useful innovations. She further suggested that concerns about her punctuality, use of Facebook and absences from the office were exaggerated and hardly noteworthy given her willingness to work extra hours, her subsequent agreement not to access Facebook while at work, and her having received permission for her very few absences from work.
88There was some evidence in support of the applicant’s contentions about her work performance. Mr. Hughes and Ms. Al-Jazrawi noted that the applicant got along well with customers. Mr. Lewis suggested that while there were shortcomings with the applicant’s performance, she did get better. The personal respondent even acknowledged that the applicant did some things well (although not consistently) and that she could be a good dispatcher if she put her mind to it.
89However, there was also evidence that the personal respondent and applicant repeatedly argued over the applicant’s job performance, a fact acknowledged by the applicant and attested to by Mr. Hughes, Ms. Al Jazrawi as well as a number of the respondents’ witnesses. It is also clear that there were some performance issues with the applicant – she herself acknowledged as much – although she described her mistakes as reasonable given she was learning the job.
90I am of the view that some of the applicant’s mistakes were related to the applicant not knowing or understanding the personal respondent’s preferences for how work should be done, preferences that may well have been idiosyncratic or difficult to predict. I am also of the view that the applicant challenged the respondent about his decisions and that this contributed to their work-related arguments. I also accept that the personal respondent had a low tolerance for any small transgressions and that the applicant’s occasional lateness and use of Facebook may well have rankled him and contributed to his decision to terminate the applicant’s employment.
91However, while the personal respondent may have had legitimate concerns about the applicant’s performance, her willingness to follow directions and adhere to company rules, nonetheless I am of the opinion that the termination of the applicant’s employment was tainted by inappropriate considerations of her race, colour and ethnic origin. Where termination occurs within a poisoned work environment, as I have found existed in this case, a proper consideration of whether the termination was discriminatory requires that it be examined in the context of the poisoned work environment (see Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON S.C.D.C.) at para. 24).
92First, I am of the view that the personal respondent’s ongoing verbal harassment of the applicant indicates that he saw the applicant as inferior and less capable because of her race, colour and ethnic origin. I find the personal respondent’s constant and what can only be described as deliberately cruel references to the applicant being a “Paki”, and having slept with a “Nigger” and having “half-Nigger babies” to be indications that the personal respondent considered the applicant inferior and her personal behaviour objectionable. I find the personal respondent’s references to the applicant being a “Paki” and a person who was stupid, ignorant and uneducated to be indications that the personal respondent considered the applicant’s work performance to be linked to her race, colour and ethnic origin. I am of the view that the personal respondent’s eventual decision to terminate the applicant’s employment was, in some measure, because the personal respondent preferred not to work with the applicant because of her race, colour and ethnic origin and because the personal respondent doubted the applicant’s abilities given her race, colour and ethnic origin. It is relevant to note that the personal respondent is a person who said, in a slightly different context (referring to drivers of East Indian origin), “Why did we hire them? Are there not any good White people we could hire?”
93Second, the personal respondent indicated that the applicant’s unwillingness to follow his directions and accede to his decisions was a reason for his decision to terminate her. However, I am satisfied that one of the reasons the applicant was unwilling to accept directions was because of the personal respondent’s treatment of her, including his abusive name calling.
94It is understandable that the applicant challenged the personal respondent about the way he treated her, and complained about his use of offensive racial names and racial comments about her ability. It is also understandable that the applicant challenged the personal respondent about the relative merits of some of his other work-related decisions given, that from the applicant’s viewpoint, he demonstrated a belief in the inferiority of persons of East Indian origin.
95I am satisfied that the ongoing conflict in the workplace between the personal respondent and applicant cannot be separated from his racially discriminatory views of her and her efforts to respond to his demeaning treatment. Therefore, I find the claim that the applicant was a poor performer because of her unwillingness to accept the personal respondent’s directions was inextricably linked to the personal respondent’s racist treatment of the applicant. The applicant’s race, colour and ethnic origin were a factor in the termination of her employment.
Was the termination of the applicant’s employment based in some measure on her family status?
96The key issue here is the timing of the respondents’ decision to terminate the applicant’s employment. The applicant’s theory is that the decision was made once the personal respondent learned early Monday, January 28, 2008 (or possibly from a telephone message the day before) that she was requesting time off in order to attend to her son in hospital. The applicant argues that this would be consistent with her ROE which was dated January 28. The applicant further notes that Mr. Hughes testified that he believed that the applicant’s absence on January 28 was the “topper” that led to the personal respondent’s decision to terminate her employment.
97The personal respondent argued that he considered firing the applicant for a number of weeks before making his final decision on January 25, 2008. According to the personal respondent and Ms. Tompkins, the ROE was filled out by Ms. Tompkins on Sunday, January 27 and deliberately signed on January 28 as Ms. Tompkins did not sign company documents on a Sunday.
98I was initially concerned about the personal respondent’s suggested sequence of events given that the decision to terminate the applicant was allegedly made on the Friday just before she was absent from work and given the ROE is only signed on the day the applicant was, in fact, absent from work. However, Mr. Hughes testified that he was aware that the personal respondent had been considering terminating the applicant for a number of weeks and that he recalled that prior to the weekend of January 26-27 the personal respondent had arranged for a temporary dispatcher to be hired from an employment agency. I find that this compelling evidence in support of the personal respondent’s contention that the decision to terminate the applicant occurred before she requested any time off work. I accept the personal respondent’s argument that the further comment made by Mr. Hughes that the applicant’s absence on January 28 was the “topper’ in the personal respondent’s decision to terminate the applicant’s employment is only an opinion and that it is at odds with Mr. Hughes’ other credible evidence regarding the termination. As a result, I do not find that the applicant was discriminated against because of her family status.
Remedies
99Section 45.2 of the Code sets out the Tribunal’s remedial powers:
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 ought to do to promote compliance with this Act.
Monetary Compensation for Loss Arising out of the Infringement
100Monetary compensation is awarded as a way to make victims of discrimination whole. The exercise of quantifying the impact of discriminatory treatment on a person is not a precise science. It is important not to set the quantum of damages too low even in less egregious cases, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”: Sanford v. Koop, 2005 HRTO 53, at para. 34.
101After careful consideration of all the circumstances the Tribunal awards $25,000 to the applicant to compensate for the injury to her dignity, feelings and self-respect arising out of the infringement of the Code. I hold both respondents jointly and severally liable for this award.
102I find the applicant’s testimony regarding the significant effect the personal respondent’s actions have had on her to be credible. She testified that she could not believe at the time she was being subject to such demeaning name calling in the workplace and testified about trying to cope by either trying to disregard the comments or by challenging the personal respondent. She also testified that there would be occasions while at work that she would visit a friend over lunch time and cry. She described her experience at Lynx Trucking as one of the four most traumatic experiences of her life, the other three being the deaths of her brother and father and an occasion when one of her children briefly went missing. She testified that she was not sure if pursuing her Application was worthwhile given that it obliged her to relive her experiences at Lynx Trucking.
103The applicant emotionally and poignantly testified about the weekend of January 26-27, 2008, when she was with her son in the hospital. She testified that her overriding fear was not about her son, who she believed had just been diagnosed with cancer and sickle cell anaemia, but rather about how the personal respondent would react when she telephoned him to ask for time off in order to be with her son.
104The applicant testified about the difficulties she had adjusting to other work places after her time at Lynx Trucking, illustrating this by referring to an occasion that she was scared to ask an employer for time off following her brother’s death and having to be assured that this would not be a problem. She talked about her ongoing emotional struggles.
105I find that the injury to the applicant’s dignity, feelings and self-respect from the discrimination I have found to have occurred to be considerable. I am satisfied that overt racial comments such as “Paki” and “Nigger” used in a fashion to denigrate a person‘s background, abilities and family has, by its very nature, a significant impact on a person’s dignity, feelings and self-respect. The fact that the applicant had to endure such overt racial abuse on a repeated basis in her place of employment only adds to the injury. Moreover, I am satisfied that the applicant worked in a poisoned work environment. This meant not only did she have to endure racial abuse while working at Lynx Trucking but there came a point in time where she knew that such abuse would regularly occur. It became, in effect, part of the job. I am satisfied that knowingly having to endure this condition of work only added to the injury to the applicant’s dignity, feelings and sense of self-respect.
106I also note the difficulties the applicant had to either prevent or avoid such abuse. The applicant tried to get the personal respondent to stop but was told that as it was his company, the personal respondent could do as he pleased. She could also not complain to someone else in Lynx Trucking about this treatment, given the personal respondent was the company owner and very much the directing hand of the organization. The applicant further testified that she felt that she could not quit her job because she needed the income, and that as she was ineligible for Employment Insurance, leaving Lynx Trucking to look for another job was not a financially viable option.
107I have also found that the applicant was not only discriminated against during employment, but in the termination of her employment. I am satisfied that the termination of employment, by its very nature, has a significant impact on a person’s dignity, feelings and self-respect. I am also satisfied that the applicant’s experiences at Lynx Trucking had a lasting effect on the applicant both in terms of her ability to adjust to other work environments as well as having to emotionally cope with the experience. These factors also contribute to my conclusion that the injury to the applicant’s dignity, feelings and self-respect that arises in this case is considerable.
Lost Wages
108Where a breach of the Code has been found, an applicant is also entitled to restitution for monetary losses suffered as a result of the breach. In this case the applicant is seeking lost wages as a result of Lynx Trucking terminating her employment.
109The applicant testified that she was unemployed for one month following her termination from Lynx Trucking on January 28, 2008, and that she was subsequently employed by another trucking company from March 2008 to March 2009 at the rate of $45,000 per year. This was less than the $51,000 per year she earned at Lynx Trucking. The applicant testified that she was then laid off for two months (and did not receive any employment insurance benefits) before finding work at another company in June 2009. The applicant continues to work for this company earning $46-48,000 per year.
110The applicant’s claim for lost wages is $21,600. This is based on being unemployed for one month and the difference between what she has earned since leaving Lynx Trucking and what she would have earned had she continued to be employed by Lynx Trucking up until the date of the hearing.
111Where an applicant is dismissed for discriminatory reasons, the amount of compensation to be awarded for loss of wages is to be based on what would have happened if the discrimination had not occurred: Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).
112However, in this case I must consider whether the applicant would likely have remained employed at Lynx Trucking until the date of the hearing had the discrimination not occurred. In considering the evidence before me I am not satisfied that I can conclude that the applicant would have.
113The applicant was an employee of only five months when she was dismissed. It is clear from the evidence that the respondents did have concerns about the applicant’s performance. These concerns related to her understanding of the dispatch function, her willingness to follow directions and her ability to meet company expectations regarding such things as timeliness and the use of personal computers. While I have clearly found that the applicant’s dismissal was tainted by considerations of her race, colour and ethnic origin, I am satisfied that there were identifiable issues with her performance and her willingness to follow the personal respondent’s directions and that these were significant reasons for her dismissal.
114It is also true that the personal respondent was a hard man to work for with a habit of expecting things to be done exactly his way and a propensity to lose his temper. It is not at all clear that the applicant, who expressed frustrations about what she felt were the arbitrary nature of some of the personal respondent’s decisions and his unwillingness to consider other ideas, would have wanted to continue to work at Lynx Trucking. It is relevant to note that the applicant did appear to have strong skills and was able to find alternative work in the trucking business only a month after leaving Lynx Trucking.
115In my view the applicant’s work status at Lynx Trucking was anything but stable. Under the circumstances, I am prepared to conclude that even in the absence of racial discrimination and harassment, she would not have continued to work there for more than another six months. Accordingly, she is entitled to one month of lost wages and five months of the difference in wages between her first job after Lynx Trucking and what she would have earned if she continued at Lynx Trucking. I calculate this amount to be $6,750.
Future Compliance Remedies
116The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote future compliance with the Code. It is well-established in human rights law that any order intended to promote Code rights should reflect the facts of the case and be remedial, not punitive, in nature.
117The applicant asked that Lynx Trucking be required to develop a human rights and anti-harassment policy that explicitly addresses racial harassment and that the respondents be required to undergo related human rights training. The respondents made no submissions on the issue of future compliance remedies.
118Given my findings in this case, I agree that the development of a human rights and anti-harassment policy for Lynx Trucking would be beneficial, along with training for the respondents in order to promote compliance with the Code. I will make a number of specific orders in relation to these remedies so as to ensure appropriate implementation.
ORDER
119Having found that Lynx Trucking and Mr. Lynn Tompkins have violated the applicant’s rights under section 5 of the Code to equal treatment and to be free from harassment on the basis of race, colour and ethnic origin the Tribunal orders:
(a) Within 30 days of the date of this Decision, the respondents are jointly and severally liable to pay $25,000 to the applicant for violation of her inherent right to be free from discrimination and harassment, and for injury to her dignity, feelings and self-respect.
(b) Within 30 days of the date of this Decision, the corporate respondent is liable to pay the applicant $6,750 for loss of wages.
(c) The applicant is entitled to an order for pre-judgment interest in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (the “CJA”). Pre-judgment interest will run from the date of the Application, December 31, 2008. Post-judgment interest on the awards is payable, pursuant to section 129 of the CJA.
(d) The respondents shall pay the applicant post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Order.
(e) Within three months of the date of this Decision Lynx Trucking shall retain at its own expense an expert in human rights to assist in the development and implementation of a human rights and anti- harassment policy for the organization. The policy shall be finalized within six months of the date of this Decision and copies provided to all current employees and, in future, to all new employees.
(f) Within six months of the date of this Decision, training shall be provided by an expert in human rights to the personal respondent and whomever is designated to administer the human rights and anti-harassment policy on human rights law, racial harassment and how to administer the provisions of the organizational human rights and anti-harassment policy.
Dated at Toronto this 5th day of February, 2010.
“Signed by”
Eric Whist
Vice-chair