Jason Loppie v. United Furniture Warehouse LP, 2010 HRTO 646

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Loppie

Applicant

-and-

United Furniture Warehouse LP, Bill Abels, Chris Welch and Josh Ward

Respondents

decision

Adjudicator: Kaye Joachim

Date: March 24, 2010

Citation: 2010 HRTO 646

Indexed as: Loppie v. United Furniture Warehouse

1This is an Application filed on December 3, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The hearing in this matter was held in Ottawa on February 18 and 19, 2010.

2The applicant filed a complaint on March 27, 2006 alleging discrimination in employment on the basis of race, colour and ethnic origin.

Non-appearance of the Applicant

3On the day before the hearing, the applicant’s counsel advised the Tribunal that he was no longer representing the applicant and the applicant would be self-represented at the hearing. The counsel also advised that the applicant, who resides in Halifax, was having difficulty reaching Ottawa due to a winter storm. Counsel stated that the applicant’s flight of February 17, 2010 was cancelled and he was attempting to reschedule to be in attendance on February 18, 2010.

4On the morning of the February 18, 2010, the applicant was not in attendance at the hearing in Ottawa and he had not contacted the Tribunal to explain the circumstances. The local Halifax newspaper reported that the area around the Halifax airport had received 31 centimetres of snow and that some early morning flights had been cancelled or delayed, but by nine o’clock flights resumed. The respondents submitted arrival information downloaded from the Ottawa international Airport Authority that showed that flights from Air Canada and Porter Airlines, the only two airlines with Halifax to Ottawa flights in February, had arrived on time on the evening of February 17, 2010 and the morning of February 18, 2010. The respondents asserted that the applicant’s non-attendance was intentional and questioned whether his flight had actually been cancelled.

5The Tribunal made efforts to reach the applicant. The applicant returned the Tribunal’s call on the afternoon of February 18, 2010 and advised that he would try to be in Ottawa on February 19, 2010. He was asked to provide documentation regarding his cancelled flight and he agreed to do so. The Tribunal staff also asked the applicant to update them with respect to his ability to reach Ottawa for February 19, 2010.

6By the morning of February 19, 2010, the applicant had not yet contacted the Tribunal either to provide documentation regarding the cancelled flight or to confirm his attendance on February 19, 2010.

7The Tribunal and the respondents again reconvened on the morning of February 19, 2010. The hearing was scheduled to begin at 10.00 a.m. and the Tribunal waited until 10.30 a.m. for the arrival of the applicant or an explanation from the applicant for his non-attendance.

8Neither was forthcoming. By letter dated February 22, 2010, the applicant was directed to provide the Tribunal within ten days with documentation to establish his inability to reach Ottawa on February 17, 18 or 19, 2010, together with an explanation for his failure to contact the Tribunal in a timely fashion to explain his inability to attend either day of hearing. The applicant did not respond to this direction.

9In my view, the applicant has displayed an absolute disregard for the Tribunal process. He has flagrantly abused the process by failing to attend the hearing on February 18, 2010 and failing to explain his absence. He compounded this abuse by implying he would attend on the second day of hearing, requiring the Tribunal and the respondents to attend on a second day, for no reason.

10In similar cases, but where an applicant has ‘simply’ failed to appear, the Tribunal has dismissed the Application as abandoned. In this case, the respondents asked me to hear their evidence and decide the Application on the merits as they did not wish to have the allegations as set out in the original complaint left unchallenged.

11In these somewhat unique circumstances, in particular given my findings that the applicant’s conduct amounted to an abuse of process, I agreed to hear the Application notwithstanding the applicant’s absence. I accepted the applicant’s original complaint and his statement of additional facts as his evidence. I heard from the respondents, Bill Abels and Josh Ward. The respondent, Chris Welch is deceased, but had provided a written statement at the time the complaint was filed. I accepted that written statement as his evidence. In addition, I accepted the written statements of three additional employees who did not attend to adopt their evidence.

12The applicant was hired by the Bill Abels, the Store Manager, as a sales manager commencing September 2005. He was demoted to the position of sales consultant in December 2005 for performance issues and eventually terminated effective February 23, 2006 for performance issues.

13The applicant alleged that the personal respondents harassed him throughout his six months of employment, which ended in February 2006. The applicant claimed that the respondents repeatedly called him a “N****” and other variations of the “N” word, made him clean the toilets, sang a racist song at the Christmas party in December 2005, told him to “smile so we can see you” and engaged in other similarly degrading actions which I need not detail here. The respondent, Chris Welch, now deceased, was the Assistant Store Manager and the respondent, Josh Ward was in Warehouse/Maintenance.

14Bill Abels testified that he had hired the applicant as a sales manager because of his extensive sales experience and positive performance during the interview. In his capacity as Manager, he had the opportunity and obligation to review the performance of all employees. He understood that the applicant got along well with everyone in the store, and was generally very sociable and well liked. He and Chris Welch in particular seemed to be close, as they took breaks together and sometimes drove to work together. He was surprised and upset by the allegations raised by the applicant for the first time after his dismissal. Mr. Abels testified that he was particularly upset by the allegations as the mother of his daughter is a Black woman and his daughter is also Black. He testified that he has never used the “N” word and would never have permitted it to be used in the workplace. He further testified that it was the applicant who downloaded and sang along to a racist song using the “N” word at the Christmas party held at his home. He was uncomfortable with the applicant’s actions. He emphasized that the song was not a rap song where the “N” word has sometimes been used as a form of empowerment; rather it was an old song and that the use of the “N” word was unambiguously racist. Mr. Abels also testified with respect to a specific occasion when the applicant asked him to write a letter stating that the applicant’s neck and back problems prevented him carrying out certain duties at work. As Mr. Abels had witnessed the applicant performing his work duties and even moving furniture without any apparent discomfort, he refused to write the letter. He relies upon this as evidence of the applicant’s willingness to provide false evidence to further legal claims. He also testified that the applicant and all new employees signed a non-discrimination and harassment policy and were made aware of how to pursue internal complaints of discrimination. At no time did the applicant file an internal complaint regarding the actions of the respondents.

15Josh Ward testified that his interactions with the applicant during the applicant’s six months of employment was limited to brief interactions, perhaps a dozen for a few minutes daily, as he was in the Warehouse and the applicant was on the store floor. He had a good working relationship with the applicant and it appeared to him that the applicant was well liked and was happy in his work. He could not account for the comments the applicant alleged he had made and unequivocally denied them. He also testified that he heard the applicant sing a racist song at the Christmas party and was made uncomfortable by this.

16Mr. Welch’s statement written in August 2006 immediately after the complaint was provided to the respondents, also denied the allegations in their entirety.

17The respondents note that on at least one day that Mr. Welch and Mr. Ward are alleged to have acted in a racist manner, they were not scheduled to work.

18The three statements of three coworkers at the store also denied that the alleged comments were made or would have been tolerated in the workplace.

Analysis and Decision

19The applicant’s credibility is obviously affected by his failure to attend and confirm his allegations, and by his failure to explain to the Tribunal the reasons for his failure to attend the hearing.

20The respondents’ evidence on the other hand was given in a straightforward and credible manner. It was substantiated by the witness statements of other coworkers and is consistent with the preponderance of probabilities. I accept the respondents’ evidence without reservation and I find that the applicant did not experience the racist discrimination and comments as alleged.

21The Application is dismissed.