HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorne Pardy

Applicant

• and-

John Graham

Respondent

decision

Adjudicator: Naomi Overend

Date: January 17, 2012

Citation: 2012 HRTO 122

Indexed as: Pardy v. Graham

APPEARANCES

Lorne Pardy, Applicant ) On his own behalf

John Graham, Respondent ) On his own behalf

INTRODUCTION

1The applicant, Lorne Pardy, briefly worked for the catering business owned by the respondent, John Graham, but quit after the respondent used the word “faggot” during what the applicant says was an angry rant to him about an event the night before. Mr. Graham acknowledges using the word, but said that it was not directed at the applicant – indeed, he was not even speaking with the applicant at the time – and, in any event, he was not using it to describe anybody he believed to be a homosexual.

2For the reasons set out below, I accept the applicant’s version of events. I also find that the applicant’s work environment was poisoned by the use of the word given the context in which this remark was made.

EVIDENCE

3Both the applicant and the respondent testified, but did not call any other witnesses. The applicant intended to call the evidence of two previous co-workers, but thought that he could do so by submitting letters he said were written by them. I indicated that this was not possible given that the respondent was not afforded the right to cross-examine these individuals.

4The respondent stated that he did not mind if these witnesses were called via the telephone. One of the individuals was working and this was not possible; the other witness apparently agreed to be telephoned, but by the time his testimony was required, could no longer be reached.

5The respondent, who had filed no witness statements or documents in advance of the hearing, said he would like to call his former accountant. She, likewise, could not be reached to testify via teleconference.

6The applicant testified that his background is in teaching and professional theatre, but he needed work at the time and took the job doing food prep for the respondent, hoping to increase his skill set.

7The respondent’s payroll records show that the applicant began work with the respondent’s catering firm on March 2, 2009. He worked part-time until May 24, 2009, the day on which he quit. The respondent testified that the members of the kitchen staff were all part-time, and that their hours would go up and down according to the amount of business. It was common ground among the parties that the catering business becomes busier in the summer months, and the applicant expected to pick up more hours once that happened. In April, he was offered a short-term contract with another employer and thereafter only worked for the respondent on weekends.

8The respondent’s catering business was located outside of Ottawa, on the property where the respondent’s home was located. The food preparation part of the business was in a separate building, while the administration work was handled at the respondent’s house. The respondent worked at the house, but would periodically come to the other facility to supervise and/or demonstrate how to use the equipment.

9The applicant testified that the respondent had a volatile temper and that the mood of the working environment would change from pleasant and harmonious to tense whenever the respondent was in the facility. The examples given by the applicant included:

• When demonstrating the use of the propane pots, the respondent berated the applicant and another male employee by suggesting that they were stupid.

• The respondent took the applicant and this other male employee aside and showed them how to use the meat-slicer, but asked them to not show the women how to use it because “they can’t use that type of thing.”

• The respondent would often sit with the staff over their unpaid lunch and offer his opinions on matters. On one of those occasions, he attacked persons with tattoos, even though one of the other food handlers had visible tattoos. On another occasion, he disparaged people on welfare, calling them “Welfarians.”

10The applicant testified that he had an underlying anxiety disorder which was generally controlled. However, he said that the manner in which the respondent treated him and the staff increased his level of anxiety and he would sometimes have to take his anti-anxiety medication so that he could continue working.

11The respondent acknowledged that he has a temper, but testified that he is well-regarded by many of his employees, as well as by members of the community where he donates his services and money. The applicant did not dispute that the respondent had many long-term employees, but said that the part-time employees doing the prep work with him in 2009 were not happy and many of them quit.

12The respondent testified that he had a member of the catering team prepare the complimentary lunches for the staff, and he would join them. During these lunches he testified he participated in the discussions, which covered such diverse topics as politics, media events, and raising kids. He said he found it a pleasant environment and it was never brought to his attention that it was an invasion of the staff’s (unpaid) time to have him present.

13He testified that he made no secret of the fact that he found tattoos and piercings distasteful, and required them to be removed or covered up when they were on a catering job so that his team looked professional.

14However, the respondent denied that he held discriminatory attitudes towards women or homosexuals. He testified that he catered several same-sex weddings and would have the clients come to his home for meetings, which lasted on average two and a half hours, in advance of these events. Moreover, he had professional dealings with several gay employees in the funeral homes in the area and had no difficulty with them.

15With respect to women, the respondent said he had a policy that “there was nothing that a woman can’t do,” but that it was not always an easy policy to maintain when “males were introduced” because they sometimes felt that there are different jobs for different genders. He testified he would have to intervene sometimes.

16With respect to the final day, the applicant testified that the respondent was very upset about an event that they had catered the night before. The applicant attempted to leave at the end of his scheduled shift, but the respondent berated him about the fact that there was still a lot of work to be done and then told the applicant he would have to do a menial task involving the buckets from that point forward. During this rant, the respondent suggested that the applicant was incompetent and that he was of little assistance to the respondent. The applicant wound up staying another couple of hours.

17The applicant testified that shortly before he left, he was in the lunch room with the respondent, who was angrily talking about the patrons from the previous evening’s event. At one point in the tirade, he called one of the attendees a “fat cunt” because she had complained about the food and then eaten three portions of it.

18The applicant said the respondent was also upset about a special-order gluten-free meal, which the person who had ordered it had complained about. The respondent referred to it first, incorrectly, as a “vegan meal” and then as a “faggot meal,” which he said was not eaten.

19The applicant testified that this felt like a personal attack. The respondent knew he had prepared the meal. He also believed the respondent knew he was gay. Given his history with the respondent, and the events of the day, this last comment was the breaking point. He testified that he said “excuse me” and left. He never returned.

20The respondent’s version of events is somewhat different. He denied using the “C word,” saying that it was a word that is offensive to his wife and women in general, although he did admit to swearing on occasion. Indeed, he instituted a “swear jar” that employees, including himself, had to put money in when they used foul language. He said it was a high pressure environment, and that in the heat of the moment things would be said. He asked his employees to have “thick skins.”

21The respondent testified that he was sitting at a table with another employee discussing the problem with specialty meals. It is his recollection that the applicant was not at the table and was not part of the conversation, but that he came upstairs to use the washroom and overheard the respondent’s comments. The respondent said he was particularly upset with the one speciality meal because the person for whom it was made had not even bothered eating it.

22In describing these specialty requests the respondent said he started using “silly words” in a kind of riff: “vegan, vegetarians, celiacs…” At some point he believes he used the word “faggot” in this sequence because it rhymed with what he was saying.

23The respondent testified that this word was not directed at the applicant, nor was it even “relevant” to him. He testified that at some point, while the applicant was still in his employ, he had heard rumours that he was gay. He could not remember the source of his information.

24The applicant testified that his immediate reaction to the respondent’s rant was fear and anxiety, but that these emotions turned to anger after he left. He said that although he was interested in the food service industry, he did not approach anyone about returning to it until the summer of 2010.

DECISION AND ANALYSIS

25The applicant and respondent agree that the respondent had a volatile temper, which he would periodically unleash on his employees when he was under stress. However, the respondent views himself as being generally a genial manager, who supported and socialized with his employees even while asking them to have a “thick skin.” The applicant, on the other hand, perceived the respondent to be a bully, who felt free to expound offensive and discriminatory opinions about other groups.

26Both perceptions appear to be sincerely held. It is difficult for me to determine which perception is the more accurate given that only the parties to this proceeding testified. The applicant gave his testimony in a straight-forward manner, and was generally internally consistent with his previous statements, but there were no documents and no third party testimony by which to assess the external consistency of his or the respondent’s evidence.

27To the extent that I am able to ascertain the facts, it would appear that the respondent has only a limited understanding of the impact of his volatile behaviour on his subordinates. He believed his lunch-time opinions were not unwelcome because no one told him that they were. This is a naïve assumption given that he controlled the employment of his audience.

28On a balance of probabilities, I find that the respondent was sometimes abusive when angry and that this made the applicant fearful and anxious. I also find that the applicant perceived the respondent’s opinions to be offensive and, on occasion, discriminatory towards others, but that it was not an environment in which he could make his views known to the respondent.

29It is not necessary for me to make findings on most of the applicant’s particular allegations. Many of the applicant’s allegations of bullying – including the allegations that he was incompetent, that the respondent did not like people on social assistance, and that he despised piercings and tattoos – are not linked to an enumerated ground under the Code. As this Tribunal has said on repeated occasions, it does not adjudicate general claims of unfairness or harassment. There must be a nexus between the allegation and a ground under the Code.

30The reason these allegations (and those concerning gender discrimination, when the applicant was not the victim of the alleged differential treatment) are relevant at all is that they relate to how the applicant perceived the word “faggot.” He testified that his anxiety and fear increased when he heard the respondent impugn other groups because he felt vulnerable as a gay man. His underlying assumption was that if the respondent disliked these groups, there was a good chance he was also homophobic. Thus, the respondent’s use of the word “faggot” (which the respondent admits) served to confirm the applicant’s previous fears.

31With respect to the circumstances in which this was said, I prefer the applicant’s version over that offered by the respondent. The applicant said the respondent had already expressed his anger earlier in the day about the previous night’s event, and that the respondent had singled him out to be “exampled.” The respondent did not deny this in his testimony or challenge the applicant’s version in cross-examination.

32The respondent’s version of the events in the lunch room in his testimony is somewhat inconsistent with his version of events in his Response. He states in his Response that he was “blowing off steam” with a group of employees, whereas he testified that he was having a conversation with a single employee. He states in his Response that he was not “aware” of the applicant’s sexual orientation, but in his testimony admitted that he had heard rumours that the applicant was gay.

33I find that the respondent was directing his comments at the applicant, with whom he appeared to still be angry. Whether or not he intended the word “faggot” to be a direct slight to the applicant, or was just an unfortunate choice of words spoken in anger, it had the effect of confirming the applicant’s fears about the respondent’s feelings about him as a gay man. Having poisoned the applicant’s work environment, I find that the respondent discriminated against the applicant in employment on the basis of sexual orientation.

REMEDY

34The applicant testified that he did not find replacement weekend work after leaving the respondent’s employ. His temporary contract with his other employer came to an end in August, after which he was expecting to work full-time for the respondent. However, he did not introduce evidence about how much he was paid when he worked for the respondent, how many hours he worked, or any evidence about his financial situation in the summer and fall of 2009 after he left. The applicant explained he was not looking to be compensated for any wage loss.

35The applicant sought $5,000.00 for injury to his dignity, feelings and self-respect. Other than denying that he discriminated against the applicant, and suggesting that the applicant was in this for a money grab, the respondent made no submissions on what might be an appropriate amount should I find a violation of the Code.

36Before assessing the objective and subjective seriousness of the conduct, I have to first address the question of what the source of the applicant’s distress was. First of all, he indicated that many of the other employees doing kitchen prep work quit because they, like him, found the work environment intolerable. Much of what made it intolerable for the applicant – and, he believed, for his fellow workers – was that the respondent had an explosive temper and forced his employees to listen to his offensive views on a variety of subjects. Much of this behaviour, however unfair or harassing, is unrelated to the Code.

37One cannot know with certainty whether the applicant would have stayed with the respondent’s catering company had the respondent never used the word “faggot,” but based on the applicant’s testimony it seems unlikely. The applicant states that he has underlying anxiety and that the respondent’s behaviour towards him made his anxiety flare up. He testified that he wished to stay on, but this wish to stay on seems to be predicated upon the contingency that the respondent become someone other than who he was. The fact that other employees apparently also departed is not helpful to me. These employees did not testify about why they left (i.e., whether it was related or unrelated to Code grounds) and so I can conclude nothing from the fact of their departure.

38Ultimately, the fact that the applicant felt forced to depart is less of a consideration in awarding damages than the emotional circumstances under which he departed. As discussed above, the applicant felt that the respondent harboured discriminatory attitudes towards other employees, which made him fear that he harboured similar feelings towards the applicant because he was gay. Upon hearing the angry use of the word “faggot” the applicant felt that his fears and anxieties were realized. This fear and anxiety was followed closely by anger.

39It is particularly difficult to quantify this injury to the applicant’s dignity, feelings and self-respect in that he had fears and anxieties relating to the respondent’s non-Code related treatment of him. In addition, the applicant did not describe any long-term effects on him other than his inability to consider another job in the food preparation area for over a year. He did not tender any medical evidence in support of his claim for damages.

40Ultimately, I am taking into consideration that the term “faggot” coupled with the anger being expressed was a significant and painful reminder to the applicant he was being denigrated on the basis of his sexual orientation. Seen in that light, the applicant’s request for $5,000.00 seems reasonable.

ORDER

41The respondent is ordered to pay to Lorne Pardy $5,000.00 as compensation for injury to his dignity, feelings and self-respect within 30 days of this Order. In the event that the respondent, John Graham, fails to make this payment, the respondent shall pay

postjudgment interest in accordance with the Courts of Justice Act.