McCreary v. 407994 Ontario Ltd., 2010 CanLII 48672

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isabel McCreary

Applicant

-and-

407994 Ontario Ltd. o/a Specialty Print and Cassandra Buckmaster

Respondents

CASE RESOLUTION Conference DECISION

Adjudicator: Jim Dimovski

Date: August 25, 2010

Citation: 2009 HRTO 1755

Indexed as: McCreary v. 407994 Ontario

AppearanceS BY

Isabel Epifani (McCreary), Applicant ) Self-represented

407994 Ontario Ltd. o/a Specialty Print and ) Richard Hueston, Representative

Sandra Buckmaster, )

Respondents )

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission in April 2006, and abandoned upon filing this Application with the Tribunal.

2The applicant alleges that she was subjected to discrimination, in the course of her employment, and had her employment terminated on the basis of her ethnic origin and/or race by the respondents.

3A Case Resolution Conference (“CRC” or “hearing”) was held on December 7, 2009. At the hearing, I heard testimony from the applicant and the personal respondent. The applicant also relied on testimony from Alexandra Kennedy, a former employee of 407994 Ontario Ltd. o/a Specialty Print (the “corporate respondent”).

4As agreed at the outset of the hearing, I took the lead in questioning the applicant and Ms. Kennedy, while the respondents were afforded an opportunity to cross-exam them. Additionally, the parties agreed to bifurcate this matter; if liability was allowed, the parties agreed to address the issue of damages on a subsequent date.

THE ALLEGATIONS

5The applicant was born in Portugal and self-identifies as Portuguese.

6She alleges that, from approximately 2003, while she was employed as a packer in the corporate respondent’s finishing department, the personal respondent, who had become her lead-hand, began referring to her as “Pork Chop”; a derogatory reference associated with her ethnic origin and race. Also, she alleged that the personal respondent ridiculed her accent, for example, she would say: “I wish you would speak [E]nglish, because I don’t understand [your] [Pork Chop Language]”. She refrained from complaining about the personal respondent for a time for fear of losing her job.

7As confirmed by her testimony, the applicant eventually complained to her manager, Mr. Boyd, about her “mistreatment”. In response, Mr. Boyd assured her that the “abuse” would stop.

8Some time thereafter, in late 2005, the applicant accepted an opportunity to work in the proofing department with the understanding she could return to her old position if worked slowed down. In or about March 2006, she was transferred back to the finishing department, where she alleges she “suffered the indignity” of the personal respondent’s continued use of offensive comments directed towards her.

9On March 22, 2006, the applicant claims she injured her back in the course of her employment. When she reported her injury to the personal respondent, she alleges, she was advised against making a formal report of her injury. The applicant alleges that during the discussion about reporting her injury, the personal respondent stated: “I don’t want to hear you, the sound of your Pork Chop voice makes me angry”. The applicant then reported her injury directly to Mr. Boyd.

10On March 24, 2006, the applicant was called into her manager’s office and was informed that she would be dismissed. Although he noted the applicant was his “best employee”, the only reason he gave for her dismissal was that the personal respondent did not want to work with her.

THE RESPONSE

11After the Tribunal issued Interim Decision, 2008 HRTO 330, the corporate respondent filed a Response to the Application which it identified as “Response of Cassandra Buckmaster” and “Response of Paul Boyd”. Subsequently the applicant withdrew her Application against Paul Boyd with leave of the Tribunal. See 2009 HRTO 175. Besides the personal respondent’s testimony, the respondents did not rely on any other evidence.

12The personal respondent admitted that she referred to the applicant as “Pork Chop” frequently in her interactions with the applicant. The personal respondent also admitted she met with Mr. Boyd, the corporate respondent’s manufacturing manager, and he advised her to stop referring to the applicant as “Pork Chop”. She further stated that at no time prior to her meeting with Mr. Boyd did she know the term had any negative connotations related to the applicant’s ethnic origin or race; she stated she thought it was the equivalent of the word: “buddy”. Moreover, she stated that she did not know that her use of the term had disturbed the applicant until Mr. Boyd informed her not to say it anymore. Indeed, she indicated the applicant’s response often was: “I’m not a Porkchop; I’m a Tenderloin”. The personal respondent denied ever making any negative reference to the applicant’s accent or the manner in which she spoke English.

13The personal respondent stated that, after Mr. Boyd informed her of the applicant’s discomfort with the term “Pork Chop”, she did not use it. Further, the personal respondent denied that she had any role in deciding to terminate the applicant’s employment in March 2006. The respondents state that the applicant’s employment was terminated due to her poor attitude related to her disappointment after transferring back to the finishing department resulting in her poor productivity.

14In its written response, the corporate respondent indicated that, after returning to the finishing department from her brief stint in proofing, Ms. Buckmaster complained about the applicant’s poor attitude and lack of work ethic. Since she was being disruptive, and since there was no position for her on the proofing line, the applicant’s employment was terminated.

ANALYSIS

15The relevant sections of the Code for this Application are as follows:

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.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

16Under the Code harassment means:

...engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

WAS THE APPLICANT SUBJECTED TO DISCRIMINATION IN THE WORKPLACE?

17There are several important points on which the parties do not agree. While the personal respondent admitted to using the term “Pork Chop” to refer to the applicant, the issues in dispute in this matter are whether the personal respondent knew or reasonably ought to have known that the reference was unwelcome; whether she made the additional negative comments about the applicant’s accent and the manner she spoke English; whether she stopped making any inappropriate comments after meeting with Mr. Boyd; and whether Mr. Boyd played a role in the applicant’s dismissal.

18I must make findings based upon the testimony provided by the applicant, her witness, Ms. Kennedy, and the personal respondent, since no other evidence was provided by the parties. As such, as I informed them at the hearing, I must address whose testimony is more credible with regard to the relevant issues in dispute.

19Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the approach identified by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor 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 as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

20Other factors the Tribunal has applied as relevant factors in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties. See Shah v. George Brown College, 2009 HRTO 920.

21There was an absence of any contemporaneous documentation from the corporate respondent, including from Mr. Boyd, about the applicant’s initial complaint or any other evidence such as the date of the meeting between Mr. Boyd and the personal respondent. Based on the following reasons, I preferred the applicant’s version of events and placed little weight on the personal respondent’s testimony.

22Generally, the applicant’s testimony was unshaken and remained logical, consistent and reasonable throughout the hearing. Additionally, the applicant’s version of events was corroborated by Ms. Kennedy’s testimony, who I also determine was credible.

23I reviewed Ms. Kennedy’s testimony carefully. She was trained by the applicant and worked with her in the finishing or packing department before and after the applicant’s time in the proofing department. She testified that she was laid-off with several other employees after the applicant had stopped working for the corporate respondent. Prior to the applicant’s transfer to the proofing department, Ms. Kennedy testified that she had heard the personal respondent refer to the applicant as “Pork Chop”, and on two occasions, heard the personal respondent admonish the applicant for the way she spoke, stating she could not understand her “Pork Chop” language.

24Contrary to the personal respondent’s testimony, there appears to have been no feeling of camaraderie between the applicant and personal respondent. I placed significant weight on Ms. Kennedy’s testimony regarding what she heard and witnessed, which was not shaken on cross-examination. Also, Ms. Kennedy was careful to recount the comments that she actually witnessed and heard rather than merely adopting the applicant’s allegations. In this way, Ms. Kennedy’s testimony was distinct from the applicant’s to the extent that I was persuaded it was her accurate reflection and not based on an interest in the outcome of the Application.

25In my view, in light of the evidence submitted in this matter, and since I am satisfied that Ms. Kennedy’s testimony corroborates the applicant’s testimony on important points, I am satisfied that the personal respondent made negative comments regarding the applicant’s accent. More importantly, Ms. Kennedy’s testimony contradicted the personal respondent’s view that the relationship between her and the applicant had not been impacted by her comments. Her testimony also confirmed that the relationship between the applicant and the personal respondent was not good and had been hampered by the personal respondent’s comments, which precipitated the applicant’s complaint to Mr. Boyd.

26I also placed little weight on the personal respondent’s testimony for the reasons set out below. The personal respondent’s testimony about the nature of her relationship with the applicant was not entirely logical and in contradiction with testimony from the applicant and Ms. Kennedy. For example, the personal respondent noted that she, and not, as the applicant stated, someone else at the plant recommended her for a transfer to proofing on the basis of the applicant’s good work ethic and their good relationship in general. This was consistent with her view that her relationship with the applicant was good; indeed, she claimed that they engaged in banter and that the applicant had even assisted in setting up the personal respondent’s birthday party in 2005. The applicant denied this.

27I did not find the personal respondent’s description of her relationship with the applicant, prior to her transfer to proofing, particularly consistent with a process that saw the applicant dismissed within 3 weeks of returning to her old packing job. Further, the personal respondent’s version was not corroborated by any other evidence. If the relationship had been good, as claimed, the personal respondent was unable to outline the steps, as her immediate supervisor, that she had taken to correct the applicant’s “attitude”; there was no evidence that any friendly mentoring had occurred or any reasonable explanation provided as to how the relationship deteriorated so quickly before the applicant’s termination of employment.

28In my view, there is a significant disharmony between the personal respondent’s description of her relationship with the applicant before her transfer out of the packing department and the amount of time (approximately 3 weeks) it took her to tell Mr. Boyd she could not work with the applicant. In my view, this disharmony was reinforced when the personal respondent denied that she had any input in the applicant’s dismissal and was not made aware of it until after it had happened. This version of events contradicts the applicant’s testimony regarding what Mr. Boyd had told her, but more importantly contradicted the Response filed with the Tribunal, which indicated that the decision was based on direct input from the personal respondent. Additionally, and also contrary to the personal respondent’s testimony, the Response indicates that the decision to terminate was because the applicant “was no longer able to work productively with Ms Buckmaster”. Even in the face of the corporate respondent’s contrary position, the personal respondent affirmed that the basis for the applicant’s termination was due to her poor attitude and negative impact on production.

29Importantly, I was not convinced that the personal respondent’s explanation for using the term “Pork Chop” was particularly harmonious with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable. Despite repeated attempts, she could not provide any historical context in which I could understand how she had first came across the term, how she used it outside the context of her relationship with the applicant, or how she could link it to her statement that she thought it meant the equivalent of “buddy”. Moreover, she could not explain how she came to use it in reference to the only person at the corporate respondent’s plant who self-identified as Portuguese. In my view, I placed little weight on the personal respondent’s testimony in this regard in the absence of any coherent explanation behind her use of the term.

30I find that the personal respondent made comments, on at least two occasions, regarding the applicant’s accent and/or her ability to speak English. In my view, the personal respondent’s reference to “Pork Chop language” is inextricably linked to the applicant’s place of origin. The personal respondent only used ‘Pork Chop’ to refer to the applicant, which is consistent with the applicant’s view since the term used in reference to those of Portuguese origin and she was the only employee in the plant that was of Portuguese origin. Additionally, the personal respondent described the applicant’s accented English, in the course of interacting the applicant, as a language particular to the applicant and which implied that the applicant was not communicating in English effectively. In the context, I am satisfied that the comment was used to negatively refer to the applicant on the basis of her place of origin.

31I am troubled by some of the applicant’s testimony in which, contrary to her Application, she complained to Mr. Boyd three or four times, once the week prior to her termination, about the personal respondent’s continued use of inappropriate language towards her. I am, however, satisfied that the personal respondent’s testimony was much more troublesome for the reasons outlined above, and since I found significant contradictions in her testimony with statements made in the respondents’ response to the allegations, I prefer the evidence of the applicant and her witness.

32Therefore, on balance, I am satisfied that the personal respondent referred to the applicant as “Pork Chop” on a number of occasions, that the personal respondent knew these comments were unwelcome, especially after she was told to stop by Mr. Boyd, and that this behaviour constituted a course of vexatious comment contrary to the Code.

33Accordingly, I find that the applicant’s right to be free from discrimination in her employment was infringed by the personal respondent. The personal respondent subjected the applicant to discrimination on the basis of her ethnic origin and/or race during the course of her employment.

34Also, it was not disputed that the personal respondent was the applicant’s lead-hand and thus had authority, granted by the corporate respondent, to direct the applicant in the course of her employment. As such, the corporate respondent is responsible for the actions of the personal respondent and what had occurred at the workplace. Accordingly, I find that the corporate respondent is liable for the personal respondent’s harassment of the applicant.

TERMINATION OF EMPLOYMENT

35The applicant alleged that the termination of her employment flowed from the personal’s respondent’s harassment. The corporate respondent relied on the personal respondent’s testimony that upon the applicant’s return to the finishing area she became loud and disruptive and this impacted productivity. The personal respondent stated she was not involved in the decision to terminate the applicant. The corporate respondent did not provide any other direct evidence or testimony for my consideration regarding the context of the applicant’s dismissal.

36The extent of the corporate respondent’s response to the applicant’s complaints was to have Mr. Boyd tell the personal respondent to stop it, then sending her back to supervise the applicant. Based on my findings above, the discrimination continued.

37It was not in dispute that the corporate respondent did not have a human rights policy or process to address human rights in the workplace during the relevant time for this matter.

38The applicant stated that Mr. Boyd had told her that she was being terminated because the personal respondent could not work with her. She, however, could not provide any direct evidence that her termination was due to discrimination. However, discriminatory actions are often by their nature, actions which can be incapable of direct proof. As such, it may become necessary to infer discrimination from the conduct of an individual or individuals.

39It is well-established in human rights law that a protected ground need only be one factor in a decision made that adversely affects an applicant; it does not have to be the only or primary reason: See Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252.

40Despite the personal respondent’s testimony, the corporate respondent states in its response to the Application that the applicant’s termination was directly related to input provided by the personal respondent.

41In light of my findings regarding the personal respondent, and the fact that the corporate respondent admitted that of the personal respondent’s behaviour toward the applicant and that the applicant viewed that behaviour as discriminatory. Yet it admitted that the personal respondent was consulted on the decision to terminate the applicant’s employment and that the personal respondent’s assessment of the applicant was a factor in the corporate respondent’s decision. There is no evidence the corporate respondent sought any objective assessment of the applicant’s attitude or productivity. In the circumstances I am satisfied that the decision to terminate the applicant’s employment was, at least in part, tainted by the personal respondent’s discriminatory attitude toward the applicant. In these circumstances, I find the corporate respondent has violated section 5 and 9 of the Code.

WHAT IS THE NEXT STEP?

42As a result of my finding, I will need to hear evidence from the parties regarding the appropriate remedy. Accordingly, I am requiring the parties to file materials regarding remedy with the Tribunal in accordance with the following schedule:

1. Within 14 days of the date of this CRC Decision, the applicant shall serve on the respondents and file with the Tribunal a statement of the specific remedies sought. This should identify any orders for monetary compensation for the injury to her dignity and self-respect, wage loss and any other out of pocket expenses and orders for future compliance and any other orders, that are being sought and the evidence to support those remedies. If the applicant seeks damages for lost wages she must produce all documentation in support of her attempts to mitigate those losses. This shall include, at least, copies of her Revenue Canada ‘Notice of Assessment’ for the years 2005, 2006 and 2007 to the respondents.

2. Within 21 days of the date of this CRC Decision, the respondents shall serve on the applicant and file with the Tribunal its response to the applicant’s material on remedy; and

3. Within 28 days of the date of this CRC Decision, the applicant shall file any materials in reply.

43The parties should advise the Tribunal within 30 days of this CRC Decision whether they wish to have the issue of remedies determined orally or by way of written submissions. I remained seized of this matter.