Human Rights Tribunal of Ontario
B E T W E E N:
Paul Lombardi
Applicant
-and-
Walton Enterprises o/a Midas Auto Services Experts, Domenic Mollica and Ian Watson
Respondents
decision
Adjudicator: Judith Keene
Indexed as: Lombardi v. Walton Enterprises
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on March 10, 2010. The applicant alleged discrimination in employment based on disability, sex, sexual orientation and family status.
2Three days of hearing on the merits of this matter were held commencing February 6, 2012. One allegation made in the original Application (concerning an alleged demotion on the ground of disability) was withdrawn by the applicant. The applicant also chose to withdraw his claim that “family status” as defined in the Code was at issue.
3The remaining allegations are:
a) that the applicant was subjected to harassment in the form of the posting of newspaper clippings and drawings intended to upset him, a suggestion about suicide by personal respondent Watson, a comment related to perceived homosexuality by an employee of the corporate respondent, (who was not named as a personal respondent and was not called as a witness at the hearing), and comments and text messages by personal respondent Ian Watson, related to perceived homosexuality and perceived obesity, and to the applicant’s depression; and
b) that the termination of the applicant’s employment, in the circumstances of the case, breached s.5 of the Code on the grounds of sex, sexual orientation and/or disability. The applicant’s position is that the fight that led to his termination was related to his depression and to the harassment he had endured, and that the respondents should have investigated this possibility.
4The Application previously involved an allegation of a transfer and demotion contrary to s. 5 of the Code. However, this allegation was withdrawn by the applicant after the respondents raised a time-limit issue, and was not dealt with at the hearing. The respondents Walton Enterprises o/a Midas Auto Services Experts and Domenic Mollica also initially raised an argument about the Tribunal’s jurisdiction in respect of the allegations, but that was not pursued at the hearing.
5I heard the testimony of the applicant, personal respondents Ian Watson and Domenic Mollica, Jack Walton for the corporate respondent, and the corporate respondent’s employees Ali Ajaran and Tim Freeborough. All witnesses were affirmed, and witnesses other than Mr. Walton were excluded from the hearing until after they had given their evidence.
6As Mr. Mollica was part of the management staff of the corporate respondent, and he and the corporate respondent were represented by the same counsel, I will refer to them collectively as “the corporate respondent” unless I refer to testimony by or liability of a specific individual.
7There was considerable evidence concerning complicated fact situations, which continued until late in the afternoon of the third day. There was general agreement that the parties would not have adequate time to make closing submissions before the end of the third day of hearing. The parties agreed to make closing submissions in writing, and I agreed to schedule a conference call or an additional half day of hearing in person if I had questions after reading the parties’ submissions. The final date for submissions was April 10, 2012, and the parties made their submissions within that time period.
8The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists. (See Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18.). Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory; however, the onus of proving discrimination remains on the claimant throughout (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para.119).
9Direct evidence of discrimination is not necessary to establish a breach of the Code. Nor does an applicant need to have a witness to discriminatory conduct. The applicant may rely on circumstantial evidence, which may include evidence concerning any relevant circumstances, including evidence of actions or omissions on the part of the respondent, that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence.
10I have concluded that the applicant was harassed on the grounds of disability (depression and perceived obesity) and sex (perceived homosexuality) during his employment with the corporate respondent, largely through text messages and remarks made by his immediate supervisor Ian Watson, and that the harassment was known to and condoned by the corporate respondent. I have also concluded that the harassment, and his ongoing depression, was part of the reason for the applicant’s involvement in the fight that was the cause of the termination of his employment. Finally, I find that, in the light of the information it had before granting the applicant a medical leave, which occurred some fifteen months before the termination, the respondents failed in their duty to inquire sufficiently into the circumstances of the fight before terminating the applicant's employment.
THE FACTS
11The parties agree on many of the facts; where there is disagreement it will be noted below.
12The applicant testified that he had been diagnosed as hypothyroid in his early 20s, and that he was prescribed a thyroid supplement (synthroid). He stated that he had also been diagnosed with depression at about age 25 or 26, and that he had been prescribed an antidepressant medication. He stated that he had been on both medications during the time he worked for the respondents, and that he was still taking both medications.
13The applicant did not call his physician as a witness. Among the documents produced by the applicant in preparation for the hearing and relied upon at the hearing was a “Medical Questionnaire” signed by Dr. Donald Smith, a doctor whom he said that he had been seeing for the last three years, including during his period of employment. He said he was not seeing a psychiatrist or psychologist during his time of employment. He and his family doctor had discussed counselling by a psychologist, but the applicant stated that he had declined to undertake counselling; implying that he had had bad experiences in the past and was concerned about the cost. The applicant stated in his evidence that, “I'm old school-- rely on support from the family…[seeing a psychologist is] a sign of weakness; not being a man”. He said that he continued with his medication for depression, understanding that “it's not going to go away-- you just learn to manage it”.
14While the applicant did not display a great deal of knowledge or understanding of his medical conditions, the Medical Questionnaire indicates that the applicant has been prescribed levothyroxine since 1995, and citalopram since 2002, some six years before the start of his employment.. There was no dispute at the hearing that the applicant had been prescribed those medications, nor did anyone question that levothyroxine is a medication prescribed for hypothyroidism, and that citalopram is an antidepressant.
15The applicant started employment with the corporate respondent at its Oshawa store on April 14, 2008, as a “manager in training”. He reported to Ian Duncan, the store manager at the corporate respondent’s Oshawa Store.
16There is no dispute that, on or shortly before the time he started working at the Oshawa store, the applicant discontinued his thyroid medication on his own, without being advised to do so by his doctor. He said that he became tired, moody and irritable, and that his thinking lacked clarity. He also became very depressed and had suicidal ideas. At the hearing, he testified that he had told both Mr. Duncan and Mr. Walton that he was depressed and feeling suicidal. On cross-examination, he stated that he had explained to Mr. Walton that an imbalance in his thyroid had led to his depression, and that failure to take his medication had led to suicidal thoughts.
17The corporate respondent’s Response indicated that on June 7, 2008, less than two months after the applicant commenced his employment, the applicant met with Mr. Duncan and informed him that he suffered from a medical condition that caused him to have suicidal thoughts. As noted above, at the hearing, the applicant testified that he specifically identified the condition as depression; this was not contested by the respondents and Mr. Duncan was not called as a witness. The applicant requested a leave of absence, submitting a medical note from his doctor, Dr. Donald H. Smith. Mr Walton, the owner and president of the corporate respondent, confirmed in his testimony that he received a letter from Dr. Smith, concerning the applicant. The letter, dated June 10, 2008, advised that:
Paul, on his own, discontinued medication he was on. He became irritable and less able to concentrate on his duties. He became aware of this. He is presently back on his medication. It will probably require approximately 3 weeks to recover what he has lost.
He loves his job and will be able to regain his rapport with clients. He will quickly regain his professionalism.
A leave of absence was granted by Mr. Walton.
18When questioned about the leave of absence, Mr. Walton recalled that the applicant had said that he had “mood swings” related to a thyroid condition and thyroid medication, but did not recall that the applicant had specifically mentioned depression. However, he did recall that Mr. Duncan had told him that the applicant was having suicidal thoughts.
19As the corporate respondent’s Response confirms that the applicant met with Mr. Duncan and informed him that he suffered from a medical condition that caused him to have suicidal thoughts. As noted above, the corporate respondent did not call Mr. Duncan, the applicant’s then supervisor, to testify. I therefore heard no evidence from Mr. Duncan as to precisely what information was conveyed by Mr. Duncan to Mr. Walton. There is no evidence that Mr. Walton asked any questions of the applicant or of Dr. Smith. However, as Mr. Walton understood the applicant’s condition to involve “mood swings” and suicidal thoughts, and on that basis granted the medical leave of absence, I infer that Mr. Walton knew that the applicant had a health-related problem that could affect his behaviour and outlook, and was sufficiently severe that he required a three-week absence from work shortly after commencing employment. In view of the evidence of the applicant that he told Mr. Duncan that he suffered from depression that had him contemplating suicide, which I accept, along with the information confirmed in the Response, I think it reasonable to infer that Mr. Duncan told Mr. Walton that the applicant suffered from depression as well as a hypothyroid condition.
20In cross-examination, the applicant admitted that the medical note did not specifically mention depression, nor indeed any other medical diagnosis. The applicant stated that he preferred that his doctor not identify his conditions as he “did not want to be labelled”. He stated his understanding that his thyroid imbalance worsens depression, and he felt that his suicidal thoughts were linked to his failure to take his medication. He stated that he was “embarrassed to say the thoughts were there”.
21On July 9, 2008, the applicant returned to work. In his testimony he stated that there was “no back-to-work meeting”, and that he did not request accommodation. He continued to see his doctor every three months. He did not feel that he needed any particular accommodation; he testified that he was “feeling okay and antidepressants help with the mind”.
22Shortly after his return to work, the applicant was transferred to the corporate respondent’s store in Newmarket. He was employed as a Service Advisor.
23Mr. Walton stated that he did not inform anyone at the Newmarket workplace about the applicant’s disability. The corporate respondent's submissions state that this was out of concern for the applicant's privacy and because the applicant had not made a request for accommodation. That is certainly a decision that Mr. Walton was entitled to make. It would also have been open to Mr. Walton to approach the applicant, inquire about his health condition and whether he might need any accommodation, and suggest that his manager at the new workplace, Mr. Mollica, be told about the reason for the medical leave on a confidential basis in case the applicant needed any accommodation in adjusting to being back at work. Having made the decision not to inquire and not to suggest sharing relevant medical information, the knowledge of the existence of a disability at first rested with Mr. Walton.
24The respondents testified about both the employment structure of the Newmarket store and the more informal pecking order. The Newmarket store was a small shop (7 employees) that was fairly loosely organized. The Manager, Assistant Manager and Service Advisor dealt with customers and suppliers. Mr. Walton testified that Mr. Mollica, as Manager, was responsible for the assets, financial performance, sales and management of employees at Newmarket. Mr. Mollica could hire and fire “without approval” although he was expected to call Mr. Walton prior to doing so. The Assistant Manager position was held by Ian Watson. Mr. Watson was in charge when Mr. Mollica was absent. When he was in charge, Mr. Watson had the authority to “send an employee home” by way of discipline “if there was a flagrant breach” although he did not have the authority to hire and fire. The Service Advisor position was created because the corporate respondent “needed a third person at the counter”. The Service Advisor was in charge when the Manager and Assistant Manager were absent. Mr. Walton indicated that, as Service Advisor, the applicant had the authority to send an employee home, “if he spoke to [Mr. Watson] first”.
25The applicant stated that he was unclear about the extent of his own managerial authority. Mr. Walton testified that he did not know what information the applicant had been given about the extent of the Service Advisor’s managerial authority. Counsel for the respondent asked Mr. Walton whether the Service Advisor position was classified as a supervisor. Mr. Walton reiterated that the Service Advisor had authority when the manager and the assistant manager were not there.
26Mr. Mollica, the Manager, stated that, as Assistant Manager, Mr. Watson's duties were similar to his, but that Mr. Watson did not have the authority to discipline, hire or fire: “he would have to come to me”. He agreed that Mr. Watson was responsible for the store when he was away. He stated that if Mr. Watson was not there, the applicant “would fill those duties” but that in regard to discipline, the Assistant Manager had more responsibility in that “he would have the final say about what happened”.
27Both the applicant and Mr. Watson testified that they had had differences in the workplace - the applicant had criticized Mr. Watson to his face, indicating that he was lazy. Mr. Watson had no knowledge whether the applicant had said the same thing to anyone else, “although he may have said it to [Mr. Mollica]”. In cross-examination he stated that he had imagined that the applicant would complain “about the back-and-forth”. It was his understanding that the applicant had come from a different work environment and was used to clearer lines of authority, “a pecking order”, and more orderly procedures.
28Mr. Mollica’s testimony indicated that the technicians had an importance to the corporate respondent that was not reflected in the management structure. It was the technicians who “generated the profit”; the supervisory staff (the Manager, Assistant Manager and Service Advisor) was “focused on customer service”. While the technicians were “technically” under the direction of the office supervisory staff, because of the pay structure they were in fact paid approximately as much as, and sometimes more than, the Service Advisor and Assistant Manager who supervised them.
29The parties generally agreed that there was some friction between the applicant and the technicians. Two of the technicians, Ali Ajaran and Tim Freeborough, gave evidence about getting into disputes with the applicant over issues such as “pricing out” jobs and overbooking. Inaccurate pricing or overbooking had a direct impact on the income of the technicians-- allowing for too little time meant that they were not paid for all the hours they worked.
30Mr. Mollica stated that the applicant complained to him about communication and clerical issues including procedures for pricing and ordering parts, and that “there was always an issue to work on with a technician”. He denied that the applicant complained about the way the technicians talked to him or of any lack of respect from the technicians. Mr. Mollica’s response to the applicant's complaints concerning the technicians was to talk to the technicians and tell them that the applicant was not used to workplace procedures yet and that they should be patient with him while he was learning. He was aware that when the technicians were impatient they made fun of the applicant “joking among themselves”, because he heard them do so.
Allegations Of Harassment
31The applicant testified that he met Mr. Watson when he was introduced at a family function some 15 years ago. Apparently Mr. Watson had been married to a cousin of the applicant's. The applicant testified that he did not know Mr. Watson well. Mr. Watson, in his testimony, stated that the applicant is his ex-wife’s cousin and that he has known him for about 18 years. He said that he has tried to help the applicant in various ways and that they joked back and forth (“we would all joke around”), with the applicant often the initiator.
32The applicant alleged that, a couple of months into his employment at the Newmarket store, Ian Watson began verbally abusing him, with most of the remarks being focused on perceived obesity and perceived homosexuality. Allegedly, Mr. Watson also suggested that the applicant use a noose to commit suicide. The Application also stated that Mr. Watson made comments about the applicant to other employees, and sent him harassing text messages after work and on his days off. The Application also alleges that Mr. Watson also sent harassing e-mails to the applicant, and that newspaper and magazine clippings meant to disparage the applicant were posted in the washroom or the board in the back office. While the applicant identifies Mr. Watson as the main source of harassing remarks, he also indicated in his Application that other employees used homophobic slurs and that, at one point, another employee, identified during the hearing as Ali Kabir, stated that the applicant was ”going to make a man a happy wife someday”.
33The applicant stated that Mr. Watson knew about his depression because Mr. Watson once saw him taking pills at the workplace. The applicant stated that he had told Mr. Watson that he was taking thyroid medication and an antidepressant. He thought this conversation had occurred within the first two months of his transfer to Newmarket. He said that on some occasions Mr. Watson had asked how he was feeling and he would say “not too good”; he said that at the time he was living at home with his parents and “having a hard time”.
34Mr. Watson did not recall seeing the applicant taking medications, other than a garlic pill. He stated that the applicant “shared details about his life” with him and that he knew that the applicant was unhappy, but he had no recollection of the applicant specifically mentioning depression or anxiety.
35Based on Mr. Watson’s evidence that the applicant shared personal details and that he knew the applicant was unhappy, I find that it is more likely than not that the applicant did tell Mr. Watson about his depression. However, it appears on the evidence that the applicant did not inform anyone at the Newmarket office other than Mr. Watson about his depression. In cross examination on this point he stated that he didn't specifically tell anyone at Newmarket about his depression “other than Ian”. He wanted to avoid being “stereotyped and stigmatized”. He said that he was feeling better with the adjustment in dosage and didn't need “to inform anyone of a major weakness. I had to prove myself”.
Alleged Suggestions About Suicide
36The alleged suggestion about suicide is the only allegation of harassment directly connected to depression. The applicant claimed that Mr. Watson had said something to the effect of “I know how to fix your problems-- hang yourself” and had pantomimed using a noose. In cross-examination the applicant indicated that he had not reported these comments to Mr. Mollica or Mr. Walton. When asked if anyone could hear Mr. Watson make these comments, the applicant stated that probably someone had.
37Mr. Watson denied the allegation that he had suggested to the applicant that the way out of problems was to kill himself. He said that nothing of that nature had occurred.
38Mr. Ajaran testified that he did not know whether the applicant had suffered depression nor did he recall witnessing any jokes about depression. He did not recall hearing Mr. Watson suggesting that the applicant hang himself or otherwise commit suicide.
39Mr. Freeborough stated that he did not hear Mr. Watson tell the applicant to get a noose or commit suicide.
40Given the testimony of Mr. Ajaran and Mr. Freeborough (below) that indicated that they had rarely overheard conversations between Mr. Watson and the applicant because of the structure and function of the shop floor, I place no particular significance on their testimony that they had not heard this conversation.
41I am left with the applicant's assertion and Mr. Watson's denial. Given the evidence and my findings below concerning other harassment by Mr. Watson, it is unlikely that Mr. Watson would have hesitated to make such an insensitive remark. The applicant consistently maintained, in cross-examination, his position that the remark was made. There was nothing in his testimony or in other evidence that would have suggested that he had fabricated the allegation. I find that the preponderance of probabilities supports the applicant’s version of events.
Comments, “Jokes”, “Shop Talk” And Text Messages
42Mr. Walton testified that he was only at the Newmarket workplace about once a week for 4 to 6 hours. He stated that he “rarely” heard profanity, and did not hear the words “faggot” or “gay”. He stated that he knew that “the guys tease each other”, but he did not state how he knew this. He had no recollection of anyone specifically teasing the applicant or singling him out. He had no recollection of the applicant showing him text messages on his telephone or complaining of harassment. He denied that Mr. Mollica had forwarded any complaints from the applicant.
43Mr. Watson admitted using the words “faggot” or “gay” to the applicant at work; the example he cited was “hurry, up, you fag”. I asked if anyone had heard him say that sort of thing and he said “somebody must have heard”. He stated that this was not the kind of language used “in front of a customer”, but that the technicians had heard and it is possible that Mr. Mollica had heard, although he stated that he had no specific recollection of any particular incident.
44Mr. Watson recalled that others at the workplace used the terms “gay” and ‘fag” to the applicant but could not recall a specific instance. He also stated that the applicant himself used these terms to others. Mr. Watson recalled that the applicant had used profanity in the workplace and had made “fat” jokes; he stated that he assumed that none of this bothered the applicant “because he gave as good as he got”, and because he didn't take Mr. Watson to one side and protest.
45Mr. Mollica admitted that he had heard the terms “gay” and ‘fag” used in the workplace. He denied that he himself had ever used these terms in the workplace. He stated that the only time he heard the applicant use the word “gay” was during a discussion of the applicant's plan to get a tattoo and his dismissal of a particular design as “kind of gay for me”. He stated that he had heard the applicant say “fag” or “faggot” but could not recall the occasions.
46Mr. Ajaran could not recall hearing Mr. Watson using homophobic slurs to the applicant or vice versa-- he stated that he did not hear or remember most conversations between them. When asked about whether there was any talk in the workplace about the applicant being gay, Mr. Ajaran stated “not really” but added that the applicant had never had a girlfriend although “he may have gone out on a couple of dates”.
47Both Mr. Ajaran and Mr. Freeborough testified about homophobic and racist slurs used generally in the workplace. Mr Ajaran indicated that there was teasing of this nature between employees but “nothing serious or degrading”. However, he stated that people in the workplace used the terms “fag” and “faggot” both to and about each other. I asked him whether he considered these terms acceptable; his answer was “not at work”.
48Mr. Freeborough also indicated that there was considerable teasing between employees and his understanding was that it was largely good-natured. When asked whether he had heard any individuals questioning the applicant's sexuality, he stated that he did not see why that should happen as the applicant had had three girlfriends while he was employed with the corporate respondent. Mr. Freeborough did not recall the applicant using homophobic slurs but did state that the words “gay” and “fag” were heard around the workplace. He denied making homophobic remarks. He also stated that the applicant had uttered racial slurs relating to skin color about two of the technicians.
49I asked Mr. Freeborough to state his understanding of the meaning of “homophobic” remarks-- he gave as examples calling someone a “homo” or a “poof”. I also asked Mr. Freeborough whether he considered racial slurs in the workplace to be acceptable and his response was “no, never”.
50In his Application, the applicant noted that another employee had stated that the applicant was “going to make a man a happy wife someday”. The applicant did not name this employee in his Application, and the respondent did not take steps to ensure that the identity of this employee was disclosed. At the hearing the applicant identified this employee as Ali Kabir. The applicant also stated that Mr. Kabir was not the only one of the technicians who had made remarks of this nature to or about him.
51On the first day of the hearing, the corporate respondent took the position that it should be allowed sufficient extra time to contact Mr. Kabir as a matter of fairness. I pointed out that the respondents had had the Application, which quoted the alleged remarks, for some 11 months, and that there was some responsibility on the parties to take steps to obtain the disclosure they need, including if necessary applying for an interim order from the Tribunal. I ruled that we would continue the hearing that day, but that the respondents might attempt to contact this individual, who I was informed no longer worked for the respondents, and that they might argue the next day as to whether they should be permitted to call Mr. Kabir, and if so, what arrangements might be suitable to obtain his testimony. In the event, the respondents indicated that they did not wish to call Mr. Kabir.
52In the course of his testimony, Mr. Ajaran testified that racist, as well as homophobic, slurs were used in the workplace. In particular, he recalled that the applicant had used racial slurs, including referring to him as a “camel jockey”, and using the words “sand nigger” and “brown bastard”. He said that he had not complained about this because he “didn't feel I needed to-- I tend to move on with my day-- I've heard them before-- I don't let words get me”. Mr. Ajaran stated that he did not complain about the insults; that he would put up with it when it wasn't a constant occurrence. I asked Mr. Ajaran whether he considered these terms acceptable. He said he did not.
53The applicant admitted using homophobic remarks in the workplace. He admitted that he used the terms “gay” and “faggot”. He also stated that he “may have” used racist slurs, and I find on the basis of the evidence that he did so. He also admitted making jokes about Mr. Watson’s weight, though “not with intent to hurt”. The applicant also admitted that he used the words “gay” and “faggot” to address Mr. Watson in the same pejorative way that Mr. Watson used these terms towards him.
54The applicant stated that Mr. Watson’s abusive texting started around the end of July or early August of 2009. He submitted in evidence a record of text messages from his cell phone (Exhibit 3), as well as a sworn, commissioned statement attesting to the method of extraction used for production of the texts, and stating that the phone numbers, dates, times and contents of the texts had not been altered, amended or modified, were retrieved from his cellular phone number and were in their true and original form.
55The applicant was questioned extensively in cross-examination concerning whether he deleted any text messages and if so how many might have deleted. In a statement that was not challenged by the respondents, he indicated that his cell phone was “wonky”, and that it sometimes deleted messages on its own. In addition, the applicant indicated that he had deleted from the phone some messages that he considered unimportant, and that this might have included both messages from Mr. Watson and messages he sent to Mr. Watson. In their final submission, the corporate respondent and Mr. Mollica alleged that the applicant had attempted to mislead the Tribunal by manipulating the text message evidence. The submissions referred to “a pre-hearing dispute” between the parties concerning the text messages, and alleged that ”[t]he selective deletion of the text message (sic) resulted in Mr. Watson's text messages appearing out of context and hid the fact that the applicant had been using similar language”.
56I note that pre-hearing disputes concerning evidence to be presented can be addressed with a Request for an Order During Proceedings. There was no request in this case. More importantly, as discussed below, the applicant admitted using homophobic slurs in the workplace; he was quite candid in this regard.
57The applicant was also cross-examined about whether the text messages exchanged between himself and Mr. Watson could have been considered friendly. He consistently indicated that he did not consider them friendly.
58The text messages are somewhat incoherent, but those identified as being from Mr. Watson's telephone number included many references to fat and baldness, and suggestions that the applicant was homosexual or was perceived as being so. While some messages (as noted below) could be seen as supportive or friendly, the messages that were seen by the applicant as upsetting, insulting and abusive include: “The way u think for sure u r of the gay” (message # 2 in the transcript, undated), “Sweaty t shirted bad breathed fat chinned fag” (message # 13, dated August 24, 2009), “good u fat no mind fag shorts drive looking at the sky think ur good-looking but not be 100 before u find a woman if ur not gay rr dinr chump” (message # 17, dated August 24, 2009), “drive looking at the sky…fat asshole…closet fag goof” (message # 26, dated September 3, 2009), “the anger inside u is going to manifest itself in a bad way ur having conflict with co workers” (message # 40, dated September 19, 2009).
59The applicant stated that he replied to some but not all of the messages. The text messages continued after the applicant's employment was terminated.
60Mr. Watson, in his Response and at the hearing, admitting texting the applicant, although he did not recall some of the messages given in evidence at the hearing. At the outset of his testimony, Mr. Watson denied any harassing behaviour. When I asked if he had sent any of the text messages included on the transcript that the applicant submitted in evidence (Exhibit 3), he first stated that he did not recall. He admitted that the telephone number identified in the transcript next to some of the messages containing homophobic and other slurs was the number of his phone. However he suggested that someone might have sent a message from his phone. When I asked how this might have occurred he stated that he recalled leaving the phone on the table at work “several times during that time period”. When I asked if he any idea who might have used his phone he said no. He could not think of a reason why anyone might want to use his phone. There is no evidence that anyone did so.
61I asked Mr. Watson to identify any message that was not something that he might have sent. He identified message number 29 as something that “just doesn't seem like something I would say”. I asked him to review the transcript of the messages and identify any words from those messages that he could say he had never said. He could not identify anything other than message number 29, delivered on September 4, 2009, which said “Then u will feel better expand ur life socialize with people let ur personality shine through in the meantime ur welcome for boxes XXXX”.
62I asked Mr. Watson if he could tell me what some of the messages meant. He could not make much sense of them other than to say they could have referred to previous conversations, and that message number 26 was a reference to the way the applicant drove a vehicle and to the fact that “we always thought he looked older”.
63Mr. Watson implied that the messages recorded in the transcript might have been altered, but had no evidence to offer that might support this idea. Mr. Watson had not saved any text messages from his own phone. In addition to admitting that he texted the applicant, and commenting on the meaning of some of the text messages, he stated that he might have sent message number 49, delivered on September 19, 2009, which said “goodnight my friend”.
64Mr. Watson stated that in sending text messages, both he and the applicant were “trying to top each other”. He stated that he had no intent to “ruin the applicant's life, bring him down or hurt him”. He considered that he and the applicant were friends. However he also said that he had no reason to believe that the applicant would welcome the text messages recorded in Exhibit 3, other than possibly message number 45, which advised the applicant to “get ur own place”. He stated that he thought the messages were friendly “because it was reciprocal”. He recalled that one day at work the applicant had referred to the text messages saying something to the effect of “that was a good one”.
65As noted above, in answer to a question as to whether Mr. Watson had ever had the idea that the applicant might suffer depression or anxiety, he replied that “shortly before the fight I saw a change in his behaviour”. It was obvious to Mr. Watson that the applicant “no longer took it as a joke… he seemed more angry and upset than anything”. Mr. Watson also stated that the change in the applicant was especially obvious to him after “the clipboard incident” (further discussed below) in which the applicant smashed a clipboard on a counter and yelled, in late summer or early fall of 2009.
66Mr. Watson stated that eventually he himself “backed off” and treated the applicant ”more along professional lines” and stopped using the term “faggot” to him. He pointed to his text messages from number 34 to the end of the list as “less insulting; more conciliatory”.
67Mr. Watson stated that he saw “an increased sense of paranoia” in the applicant during the late summer of 2009. “He would think that people were talking about him-- he took things personally”. I asked if anyone else in the workplace had “backed off”. Mr. Watson said no, “they remained the same”. He said “I kept my own counsel”, but he thought that at some point he had said (apparently to the technicians) “take it easy on him”. He did not recall saying anything to Mr. Walton or to Mr. Mollica about the applicant becoming more upset—“there was not much time before he was fired”.
68Mr. Mollica testified that he had heard the applicant and Mr. Watson calling each other “fag” or “faggot” at work. I asked Mr. Mollica what his understanding is of the word harassment. He defined it as “doing or saying something hurtful”. He also stated that it was unacceptable to call someone “gay”, “fag” or “faggot” unless it was “in jest and friendly”. He said that when he heard these terms used in the workplace it was acceptable because they were used humorously and no one complained; otherwise, it would have been unacceptable. He denied that he himself had ever used these terms in the workplace.
69I asked Mr. Mollica what he would do in a situation in which these terms were used in an unacceptable way. He indicated that he would “find out who they were talking to and ask that person if they were okay or upset”. If the person was upset, he would ”bring them both in, and sit down and talk” about the situation and the anti-violence policy. If this did not resolve the situation, “paper work would be done to describe the incident and filed in personnel folders”.
70Mr. Mollica denied that he ever received a complaint of harassment. When asked what he would do to respond to such a complaint, he stated that he would “talk to the person who reported, speak to the other party, investigate what was said or done, discipline if that were needed and help rectify the situation at the shop level.”
71The applicant testified that he complained to Mr. Mollica about unwelcome comments by Mr. Watson on three or four occasions, at “meetings upstairs about how we were working together”. The applicant also testified that he complained to Mr. Mollica and Mr. Walton about the text messages, at the end of July or early August of 2009. Although he could not remember the precise date, he could remember details. He stated that “I opened my phone and showed [Mr. Mollica] the messages and said this is what he is sending me after work”. He stated that Mr. Mollica saw “one or two” of the messages. The applicant stated that Mr. Mollica’s response was a remark to the effect that “this is just shop humour”. He stated that Mr. Mollica did not suggest that he make a formal complaint under the corporate respondent's anti-violence policy.
72Mr. Mollica denied hearing the applicant complain of harassment or being shown text messages in July of 2009.
73The applicant also stated that he told Mr. Walton about the text messages at the end of August or early September of 2009 on a day that Mr. Walton was meeting with Mr. Mollica. He said that Mr. Mollica had left the office, and that Mr. Walton was alone briefly when he showed him a couple of the messages on the text messages on his cell phone. He stated that Mr. Walton became concerned and said something to the effect of “does Dominic know about this?”. However when Mr. Mollica returned, he gave the same response about “shop humour”, “and after that Jack didn't do anything further”.
74Mr. Walton testified that he had no recollection of the applicant showing him text messages on his telephone or complaining of harassment.
75In cross-examination the applicant was asked whether the messages allegedly shown to Mr. Mollica and Mr. Walton had homophobic language in them. The applicant was not sure. He also stated that he did not specifically advise Mr. Mollica or Mr. Walton of concern about homophobic language. However, it is probable that the applicant would have shown Mr. Mollica and Mr. Walton messages he found particularly upsetting, and on a review of the transcript of the messages, I find that it is unlikely that the messages he showed them were free of homophobic slurs or remarks about the applicant’s weight.
76I find that the applicant has established, on a balance of probabilities, that Mr. Watson repeatedly used homophobic slurs and insults about the applicant’s perceived obesity, both at work and via text messages. In view of the testimony of both the applicant and the respondents’ witnesses about the friction between the applicant and the technicians, the fact that the technicians evidently discussed whether the applicant dated women, and the evidence about the general use of homophobic slurs in the workplace, I find that it is more likely than not that other employees followed Mr. Watson’s example and used homophobic slurs to and about the applicant.
77Mr. Freeborough confirmed the evidence given by Mr. Mollica that he at some point told the technicians to stop “taking the Mickey” or teasing the applicant. He also recalled that Mr. Mollica had “told people not to make homophobic remarks” some six months before the applicant was fired.
78I find that Mr. Mollica knew that homophobic slurs were used in the workplace, including towards the applicant, but did nothing sufficiently effective to remedy the situation because of his expressed belief that these slurs were acceptable if conveyed in a joking way. As noted above, Mr. Mollica was aware that technicians made fun of the applicant, “joking among themselves”, because he heard them do so.
79I find that it is more likely than not that the applicant attempted to bring Mr. Watson’s text messages to the attention of Mr. Mollica, at the end of July or early August. It is not surprising that Mr. Mollica did not remember this incident. Given his expressed opinion that homophobic slurs were acceptable if used humorously, it is not likely that he considered the issue itself important. It appears to me that, to get Mr. Mollica to take his complaint seriously, the applicant would have to have been much more forceful and direct concerning his own reaction; whereas it appears to me from the applicant’s testimony that he believed that the texts spoke for themselves and were obviously abusive.
80I also accept that the applicant showed Mr. Walton one or more of the text messages when he visited the office in August, that he said something to the effect of “does Dominic know about this?” and referred the matter to Mr. Mollica, and that Mr. Mollica reacted in the way recalled by the applicant. Mr. Walton’s recollection of events involving the applicant was generally poor; Mr. Mollica’s alleged reaction to the applicant’s attempt to show Mr. Walton the text messages is consistent with testimony given by Mr. Mollica about the prevalence of “teasing” between employees and his view that homophobic slurs in the workplace were not a problem as long as they were good-natured.
Posting of photographs, posters or news clippings
81The applicant’s evidence about posters or news clippings allegedly meant to harass him was somewhat vague. He said that there were two such postings sometime in July of 2009. His recollection was that one of these was a picture of a serial rapist or murderer on “the board in the back office”. The applicant implied that the picture was intended as a reference to him because the man depicted was balding and overweight, which he stated he was at the time. He suggested there may have been a bubble on the picture (referring to a cartoon balloon) with a comment, but he did not recall what the comment was. He stated that the picture was displayed where anyone could have seen it, and that he took it down. The other posting was a picture of a rat, taped up in a washroom.
82The applicant cited two reasons why he thought it was Mr. Watson who had displayed the pictures. First, “his handwriting was on the bubble” drawn on the picture of the rapist or murderer. Secondly, he stated that Mr. Watson took that picture and put it beside his face and said “look, it's the same; that’s you“. The applicant stated that the picture of the rat related to Mr. Watson's knowledge that he had complained to Mr. Mollica about Mr. Watson's “work ethic”.
83The applicant maintained that he had complained to Mr. Mollica about the pictures and clippings. During cross-examination, the applicant was shown his letter, filed with the Application, addressed to Human Resources and Skills Development Canada and dated November 27, 2009 (Exhibit 7, set out below) with the suggestion that it had gone into much more detail than anything he had raised at work. The applicant stated that he has “basically covered all of this with Domenic”.
84The applicant’s claim that he complained to Mr. Mollica about posters or news clippings was not contradicted; Mr. Mollica did not comment specifically about whether the applicant had complained about posters or news clippings. I conclude that the applicant did complain about this.
85Mr. Mollica did not recall seeing any posters or news clippings in the shop during the relevant period. He agreed that there was a policy that non-work-related items must not be posted, in contrast to a time previous to the introduction of this policy and previous to the applicant's employment, in which pictures of “pinup girls” had been allowed.
86Mr. Ajaran did not recall seeing any pictures or posters displayed in the workplace that were not work-related. However he did later recall a picture of “Mr. Clean” that was intended to portray another employee, which might have been displayed in the washroom or in the back office; he did not remember where.
87Mr. Watson denied seeing or posting a picture of a rat in the employee washroom. He recalled that there might have been “something to do with another employee”, but he could not remember any specifics about an incident that could have involved posting a picture of a rat in the washroom. When asked if the picture indicated any reference to anyone he said that it had not.
88Mr. Walton indicated that the workplace has a policy that non-work-related posters or flyers were not allowed in the workplace. He stated that no issue about posters had been brought to his attention at the relevant time.
89Mr. Freeborough recalled the policy about not putting up posters or clippings and said they had not been allowed in the last seven or eight years. Prior to that, “Sunshine girls” pictures had been posted. Employees were told to take them down. Mr. Freeborough did recall a picture of a bald fat man-- he thought it was directed at Mr. Mollica who at that time weighed some 290-300 pounds. He stated that “Dom” was written on the top of the poster. He did not recall seeing a picture of a rat, nor of anyone identified as a serial killer or rapist.
90Mr. Watson stated that he had no recollection of seeing any photo of a balding fat man. He denied putting up either of the two pictures alleged to have been displayed.
91After Mr. Watson had given his testimony, in view of the fact that he was self- represented, I asked him if he wished to address the statement given by the applicant that he had actually pointed out similarities between the applicant and the photo of the balding fat man who was identified as a serial rapist or murderer. He stated he had nothing to add to his testimony.
92Despite the no-posters policy, it appears to me that non-work related posters were occasionally put up in the workplace. A poster of a rat might be seen to be connected with one of Mr. Watson’s text messages (# 32), which calls the applicant a rat in relation to “backstabbing”. However, if a poster of a rat was displayed, I cannot see any connection to the grounds of discrimination cited in this Application.
93In view of the evidence of both the applicant and two of the corporate respondent’s witnesses, it appears that there was a poster of a fat man. A poster of a fat man associated with crime might be said to have a connection to perceived obesity, but in this instance, it does not appear sufficiently clear from the evidence, on a balance of probabilities, that the poster was put up by Mr. Watson, or that whoever might have put up the poster intended it to be seen as connected to the applicant. In fact, one employee testified that he thought the poster depicted Domenic and that it had the name “Dom” on it.
94There is no doubt that the posting of pictures, posters or graffiti can be considered behaviour that amounts to harassment for the purposes of the Code (see for example Dhillon v. F. W. Woolworth Co (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743). However, as noted above, I cannot see a connection between the “rat’ poster and a cited ground of discrimination, and in view of the conflicting evidence, the applicant has not established the necessary facts to support a conclusion that the poster of a fat man was, on a balance of probabilities, a part of the alleged harassment in this case.
Allegations And Evidence In Respect Of The Applicant’s Dismissal
The Clipboard Incident
95The applicant was questioned about an incident in which he “lost his cool”, yelled and smashed a clipboard on a counter sufficiently hard to damage the counter during the summer of 2009. He admitted that this incident had occurred and that he had been upset with Ali Ajaran. In his testimony, Mr. Ajaran recalled the clipboard incident as a situation in which the applicant had got upset with him. They were both upset and had yelled at each other. He stated that the applicant screamed “fucking Ali” and slammed the clipboard down on the counter so hard that he marked the counter. Mr. Ajaran described himself as “shocked” by the applicant's reaction: “I didn't see it coming”.
96Mr. Mollica testified that he had neither witnessed the clipboard incident nor disciplined the applicant concerning the incident. He stated that he had been informed by Mr. Watson that the applicant had had a disagreement with one of the technicians and had struck the counter with the clipboard, but had “cooled off” afterwards. Mr. Mollica stated that he was very surprised that the applicant would do something like this, but that he did not ask any questions of Mr. Watson and was told nothing more about the incident. He stated that he did not speak to the applicant because the applicant “never brought it up”.
The Fight And The Termination Of The Applicant’s Employment
97On October 29, 2009, a dispute erupted between a technician and the applicant. The parties agree that the dispute became a fight. I heard a great deal of evidence about the fight that was the culminating incident before the applicant was fired. Not surprisingly there is considerable variation about the details of the fight, not only between the applicant and the respondent’s witnesses, but among the respondent’s witnesses.
98The corporate respondent has a violence prevention policy, which states that if any employee engages in workplace violence, the employee involved will face discipline which may include immediate termination of employment. Mr. Walton also testified that the workplace had an anti-violence policy, and that employees were aware that there was “zero tolerance” toward violence. However on cross examination he could not recall whether the applicant had received training on this policy. He did recall that there were meetings about the policy and that there were sign-in sheets when employees were trained. No such document was filed in evidence by the respondent. Mr. Mollica also stated that employees had been trained in the anti-violence policy, and that he believed that the applicant had been trained, but he could not recall when they had been trained.
99In his testimony, Mr. Walton stated that racial slurs and homophobic remarks could be considered a breach of the anti-violence policy.
100The applicant's recollection of events was that a particularly good customer of the shop went in to have tires changed to winter tires. The applicant said he talked to Mr. Mollica about pulling a “tech” away from one job in order to give this customer the service he had requested right away. The applicant said that Mr. Mollica told him he should ask Mr. Freeborough to do the job. The applicant stated that when he asked Mr. Freeborough, Freeborough “flipped me the bird”—“he basically told me to fuck off”. The applicant admitted that he said something to the effect of “one of these days someone is going to knock that attitude out of you.” At that point, the applicant stated that Mr. Freeborough gestured “come on” as though he wanted to fight, and approached the applicant with his fists up. The applicant stated that Mr. Freeborough slipped and fell, and then got up and hit him. He said he hit back to defend himself. He stated that the fight was not broken up immediately and he was not sure who came up. He said that eventually the fight was broken up and that Mr. Mollica made a humorous remark to the customer.
101The applicant admitted that getting involved in a fist fight was unacceptable and that he should have reported the situation to Mr. Mollica. He stated that there had been other instances where people have backed away from a fight, “including me”. However he stated that he didn't back down because Mr. Freeborough was punching him, and because ”with the ridicule--after all the remarks about the feminine traits, imagine what the guys would have said about it if I had backed down”.
102The corporate respondent’s position is that on October 28, 2009 at about 5:30 p.m., the applicant requested that a co-worker, Tim Freeborough, instantly abandon tasks he was performing (oil changes on two separate vehicles) to come to the aid of a waiting customer. Mr. Freeborough refused, and the applicant physically assaulted him.
103Mr. Mollica stated that he was in the shop when the fight started but did not see it start. When he reached the scene he stated that Mr. Freeborough had his back to a truck and the applicant was facing him yelling and “throwing fists”. He said he was surprised and said something to the effect of ”what are you doing?” and tried to separate them. “Paul said that Tim didn't want to do the work assignment and Tim said that Paul wouldn't listen-- I told them both to go and compose themselves”
104Mr. Mollica said that there was a customer there, as was Ali Ajaran. He quoted the customer as saying something to the effect of “they argued about doing something for my car-- Tim asked for time; didn't want to do it, they started pushing and Paul hit him”. Mr. Mollica said that he then spoke to Ali Ajaran, who he understood had witnessed the fight and that Ali had said “Paul struck him and Tim defended himself”. Mr. Mollica stated that, after the incident, both employees went separate directions, cooled down and finished the workday. No medical attention was needed and he decided to deal with it the next day. He called Jack Walton the next morning. Mr. Walton asked who started it, and he told him that Mr. Ajaran and the customer had both said that Paul had thrown the first punch. Mr. Walton came to the shop; Mr. Mollica did not remember whether he spoke to him or to Mr. Ajaran first. Mr. Walton spoke to the customer by phone to confirm what he saw. He also talked to Mr. Freeborough. There is no evidence that Mr. Mollica or Mr. Walton spoke to Mr. Watson, the applicant’s immediate supervisor.
105The applicant was not scheduled to be at work on October 30, 2009; Mr. Mollica testified that neither he nor Mr. Walton spoke to him on that day. Later in his evidence, Mr. Mollica said that, just after the fight, the applicant had “kind of [given] me the breakdown of what had happened”. Mr. Mollica and Mr. Walton decided that the applicant's employment should be terminated.
106The next day, October 31, 2009, Mr. Mollica sent the applicant a text message instructing him to come into work. Mr. Mollica had a brief interview with the applicant to tell him that his employment was terminated. He said that the applicant was apologetic, sad and tearful, but that he composed himself, shook hands and left. The applicant gave uncontradicted evidence that he apologised to Mr. Freeborough after he was fired.
107Mr. Walton testified that he had found out about the fight on a Sunday during a time the corporate respondent was doing “certificate training” at a hotel. He stated that Mr. Mollica had not told him about the fight and that he only found out by seeing Mr. Freeborough’s black eye. He stated that he asked Mr. Freeborough what had happened and “Tim told me that he walked into a door. Dominic told me that there is a fight that Tim's eye was the result and that Paul started the fight.” Mr. Walton was not sure whether the Sunday of his recollection was the Sunday before or the Sunday after the termination of the applicant's employment. He stated that on Monday “Dominic told me that Ali Ajaran had witnessed the fight and that Paul had punched Tim in the head”.
108Mr. Walton's evidence concerning how he was informed about the fight contained a significant anomaly. All parties agreed that the fight had occurred on a Thursday, and that the applicant's employment was terminated the following Saturday. Mr. Walton testified that he was informed about the fight and consulted as to the applicant's termination before the applicant was fired. Clearly Mr. Walton could not have found out about the fight on a Sunday, since the Sunday before the termination the fight had not occurred, and by the following Sunday the applicant's employment had been terminated. After this issue was explored in cross-examination, counsel for the corporate respondent asked Mr. Walton if he could have been confused about the dates. He said that he could, but the anomaly concerns the day of the week rather than the date. In his evidence Mr. Mollica confirmed that the training was on a Sunday but also stated that Mr. Walton had attended at the shop on the Friday before the applicant was fired. The best explanation I can see for this is that, despite being able to give detailed evidence about the Sunday training as the setting in which they found out about the fight, Mr. Walton’s recollection about who told him about the fight and on what day was faulty.
109The applicant alleged differential treatment in respect of the violence prevention policy. He recollected an event that did not involve him which he stated breached the workplace violence policy. The applicant alleged that an employee called Donald had grabbed Ali Ajaran and tore his shirt, but there were no injuries. The applicant alleged that there was no discipline resulting from this altercation.
110Mr. Walton indicated that the anti-violence policy was complaint driven. In cross-examination, the applicant's representative referred to the allegation concerning an incident between Donald Scott and Ali Ajaran, and asked whether the allegation had been investigated. Mr. Walton indicated that he did not know, and that it was not brought to his attention.
111Mr. Ajaran gave testimony about the incident involving himself and Donald Scott. He stated that he had run out of work pants because the supplier had not delivered enough clean pairs. He borrowed a pair belonging to Donald Scott. Scott saw him, pointed upstairs and yelled “go back and take those off”. Mr. Ajaran started to comply but as he was going Scott yelled some more, grabbed the loop of the pants and “pulled me back—the loop snapped”. Neither was hurt and no blows were exchanged. Later Mr. Ajaran talked to Mr. Mollica about this incident.
112Mr. Mollica recalled having been informed of an argument between Mr. Ajaran and Mr. Scott, but stated that he had not understood there to be “a scuffle” involved. He had understood that there were no injuries resulting from that argument. He stated that he had been told by Mr. Ajaran about the incident, and that he had questioned both parties and told Mr. Ajaran not to borrow Mr. Scott’s work clothes.
113In view of the fact that apparently Mr. Scott attempted to pull Mr. Ajaran backward while Mr. Ajaran was climbing stairs, it is arguable that there was a physical altercation between Arajan and Scott although no injuries were sustained. On my reading of the corporate respondent’s anti-violence policy, this behaviour might have been caught by the policy, and the applicant’s claim of differential treatment has some validity. However, there is no clear connection in this instance between the differential treatment and the grounds of discrimination alleged.
The Letters
114The respondent produced in evidence a letter from the applicant that had been filed with the Application addressed to Human Resources and Skills Development Canada and dated November 27, 2009 (Exhibit 7). The letter gives “details of events and circumstances” which include the following paragraphs:
The main issue is the consistent and persistent verbal abuse from the assistant manager where his comments were unnecessary and unjustified. I have been employed there for about 1.5 years where his actions had started a month or two into the start of my employment. His comments were offensive embarrassing humiliating annoying and demeaning towards me. He has taken my personal state of affairs where he would make fun of my situation and verbally speak them towards other employees in the shop.
Further (sic) more he would undermine my work, belittling my opinions, constant criticizing, using profanity, making jokes by word, e-mail, text messages, newspaper/magazine clippings whether in text or pictures posted in the washroom or the board in the back office for all to see.
The applicant's letter indicated that he would be “pursuing this matter” with, among other listed entities, the “human rights council”.
115The applicant sent Mr. Walton a letter dated December 1, 2009 (Exhibit 8). Some of the letter contains criticisms about the shop situation that are not germane to the Application. However, the letter also:
a) purported to remind Mr. Walton that the applicant had complained about harassment, and that he (Mr. Walton) had spoken to Mr. Mollica in the applicant's presence. The letter indicates that when Mr. Mollica called the situation “shop humor”, Mr. Walton accepted it.
b) stated that “it has been a pleasure to have worked with Dominic [Mollica] and he is a great guy”.
c) noted “constant verbal abuse”, discusses “comments directed toward me“ that had “a direct influence on me where I broke down in the washroom on two separate occasions” and instilled “feelings of frustration sense of vulnerability loss of confidence panic and anxiety… inability to concentrate...low morale”
d) indicated that the applicant considered this treatment to be harassment, bullying and verbal abuse,
e) mentioned “newspaper clippings drawings that were posted and text messages and questions of sexual orientation”, and
f) suggested that the altercation that preceded the termination of his employment was connected with harassment:...” so what I am trying for you to understand is that I was very frustrated and stressed. In psychology if someone is severely stressed they may exhibit rash emotional outbursts of anger. So my episodes of or having lost my cool was justified with Ali A and Ali K I do not get upset just for the fun of it.… Ian told me many times you know we are just joking and that all the guys like you but that was only an excuse to continue the comments. I say this because I have been released going on for weeks now and no one has called to see how I am doing is people who care or friends would. I do have to say the comments have slowed down but the underlying and lingering damage still remains”.
The letter also gave the applicant’s version of the events of October 29, 2009 that led to the termination of his employment.
116I have found above on the basis of other evidence that Mr. Walton knew about the applicant’s disability, and that the applicant complained to Mr. Mollica about posters and news clippings, and to both Mr. Walton and Mr. Mollica about harassing text messages. Although I need not rely on it in this decision, the letter dated December 1, 2009 can be seen as further notice to the corporate respondent that the applicant was alleging harassment and that sexual orientation was an issue in this claim. (See, for example, Re Ottawa Civic Hospital, (1995) 1995 CanLII 18382 (ON LA), 48 LAC (4th) 388, [1995] O.L.A.A. No. 60 (QL), at p. 398, in which an arbitrator concluded that there can be a breach of the Code if an employer fires an employee in ignorance of the disability that caused problems, and refuses to reinstate a disabled employee once the disability becomes known to the employer.)
117None of the parties deny that the “clipboard incident” occurred, that this was surprising behaviour from the applicant, that the applicant was involved in a fight, that his employment was terminated as described above or that he wrote the letters noted above. For the purposes of this Application it does not matter whether the applicant initiated the fight, but I assume without deciding that the applicant did so.
LEGAL PRINCIPLES AND ANALYSIS
118The relevant provisions of the Code, at the relevant time, were as follows:
- (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, gender identity, gender expression, 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 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.
…
- (1) In Part I and in this Part,
…
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
…
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
119Plainly, the definition of disability is very broad. As with all statutory provisions that advance the purpose of human rights legislation, “disability” has also been interpreted broadly in the jurisprudence. As noted in Chen v. Ingenierie Electro-Optique Exfo, 2009 HRTO 1641:
The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665, 2000 SCC 27 [reported 37 C.H.R.R. D/271]. For example, if an employer believes that an employee's condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54 [C.H.R.R. Doc. 05-738].
Connection With Grounds Of Discrimination Alleged
120There was no dispute that a hypothyroid condition and depression (anxiety was not claimed by the applicant as a basis of adverse treatment but was noted by the applicant’s doctor in his documentary evidence) are encompassed within the Code definition of disability.
121In its final submissions, the corporate respondent asserted that the applicant had failed to prove on a balance of probabilities that he had a disability as defined by the Code. The corporate respondent put forward two written submissions relevant to this point. The first was based on the medical note submitted by the applicant upon his return to work from his medical leave, which failed to specifically identify that the disabilities for which the applicant was being treated were depression and a hypothyroid condition. I have found above that Mr. Walton knew from other information given that the applicant was depressed and was having suicidal ideas. However, had he wanted further information, he had both the right and the duty to inquire. While an employer has a right to require that an employee provide information from doctors and other health care providers in order to properly fulfill the duty to accommodate, the employer cannot sit passively, fail to inquire about this information, and on that basis refuse accommodation because of lack of relevant information. See Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 aff’d AGDA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), Wall v. Lippé Group (2008), 64 C.H.R.R. D/26, 2008 HRTO 50, McDonald v. Mid-Huron Roofing, 2009 HRTO 1306, and Krieger v. Toronto Police Services Board, 2010 HRTO 1361. It follows that the corporate respondent cannot deny the existence of a disability by relying on its own failure to inquire, where, as here, it is aware of facts that should trigger inquiry.
122The corporate respondent's second submission on this point was that the tribunal should not rely on a document relied upon by the applicant at the hearing. The applicant, who did not call his doctor to testify, disclosed and filed prior to the hearing a document entitled “Medical Questionnaire”, signed by Dr. Donald H. Smith, who had been previously identified as the applicant's physician by both the applicant and by Mr. Walton in his testimony concerning the letter upon which he relied in starting the applicant back to work after his medical leave.
123While counsel for the corporate respondent and Mr. Mollica indicated in his opening remarks that the applicant had “no medical evidence”, the corporate respondent did not object at the hearing to the admissibility of the previously-filed documents relied upon at the hearing by the applicant in regard to his medical condition. However, in its submissions, the corporate respondent indicated that I should disregard this evidence on the ground that the applicant did not call his doctor to testify as a witness. The corporate respondent claimed that it would be unfair to rely on a doctor's note without providing the respondents with a chance to cross-examine.
124As noted above, the Medical Questionnaire indicates that the applicant has been prescribed levothyroxine since 1995, and citalopram since 2002. There was no dispute at the hearing that the applicant had been prescribed those medications, nor did anyone question that levothyroxine is a medication prescribed for hypothyroidism, and that citalopram is an antidepressant.
125In the circumstances of this case, the corporate respondent did not challenge the claim that the applicant had a disability as defined by the Code until its final written submissions. Moreover, the corporate respondent, in written materials filed prior to the hearing and in testimony during the hearing, did not dispute the applicant's assertion that he had a hypothyroid condition and depression. The corporate respondent indicated in its Response to the Application its understanding that the applicant was experiencing suicidal impulses and that it had granted him a “medical leave” on this basis.
126By October 12, 2011, the corporate respondent had a copy of the documentary evidence offered by the applicant at the hearing, including the Medical Questionnaire, as well as the information that the applicant would not be calling the author of the Questionnaire to testify. Despite knowledge of the allegation and the proposed evidence, the corporate respondent failed to raise this issue during preparation for the hearing. The Tribunal's Rules of Procedure are designed to ensure, as a matter of fairness, that there are no surprises in relation to allegations or evidence. The Rules allow that matters including disclosure of evidence and attendance of witnesses can be raised with the Tribunal prior to a hearing. It would have been open to the corporate respondent to have requested an order that the applicant’s doctor be called, and the corporate respondent could of course have issued a summons to compel the attendance of a witness it wished to examine. The corporate respondent could also have objected at the hearing to the admission of the Medical Questionnaire for the truth of its contents without the testimony of the author. Passivity may sometimes be a litigation tactic, but the party that chooses this tactic must be aware that all of the factual circumstances will be considered if a submission is made this late in the day that the Tribunal should ignore evidence that has been placed before it. I find this situation readily distinguishable from decisions cited by the corporate respondent such as Race v. General Motors of Canada: Race v. Canadian Auto Workers, 2011 HRTO 24, in which the applicant submitted no medical evidence, and Baber v. York District School Board, 2010 HRTO 538, an Interim Decision which concerned a request by the respondent for production of certain of the applicant’s medical documents, and an objection by the respondent to the admissibility of certain documentary evidence unless the author of that evidence was called as a witness.
127I find that the applicant has established that, at the relevant time, he had and was being treated for depression and a hypothyroid condition, which are disabilities as defined by the Code.
128There is no evidence that the applicant was obese at the time of the events that are the subject of this Application. However, he has claimed that part of the reason for the alleged harassment was a perception that he was obese. An adverse action or omission based on an incorrect perception that a person has a disability engages the protection of human rights legislation: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) 2000 SCC 27 (Montréal (City)); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) [2000] 1 S.C.R. 665, 2000 SCC 27 (Boisbriand (City)).
129In Ontario (Human Rights Commission v. Vogue Shoes (1991), 14. C.H.R.R. D/425, a Board of Inquiry concluded that obesity was not included under the definition of “handicap” unless it was caused by bodily injury, birth defect or illness. However, more recently, the Tribunal has accepted that obesity is included under the definition of “disability” (see for example Ball v. Ontario (Community and Social Services), 2010 HRTO 360, Ketola v. Value Propane Inc. (No. 1), 2002 CanLII 46510. This development mirrors the Supreme Court of Canada’s acceptance of a social model that conceptualizes “disability” as the outcome of socially constructed barriers and discriminatory customs and norms and seeks to eliminate those barriers and prejudicial attitudes; see discussion of Montréal (City) and Boisbriand (City) in Hinze v. Great Blue Heron Casino, 2011 HRTO 93.
130Harassment in employment was not, until June 19, 2012 specifically prohibited on the basis of sexual orientation under section 5(2) of the Code. Bill 33, An Act to amend the Human Rights Code with respect to gender identity and gender expression, came into force on June 19, 2012. The Act amends the Code to specify that every person has a right to equal treatment without discrimination because of gender identity or gender expression with respect to services, goods and facilities, accommodation contracting, employment and membership in a trade union, trade or occupational association or self-governing profession. The Act also amends the Code to specify that every person has a right to be free from harassment because of sexual orientation, gender identity or gender expression with respect to, accommodation and employment.
131Having said that, section 5(1) provides protection in situations where harassment on the basis of an enumerated ground, including sexual orientation, has created a discriminatory working environment for the complainant: Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205, Crozier v. Asselstine (1994), 1994 CanLII 18435 (ON HRT), 22 C.H.R.R. D/244 (Ont. Bd. Inq.)). In Smith v. Menzies Chrysler, 2009 HRTO 1936, the Tribunal concluded, at para. 150:
The Code provides that all persons have a right to be free of discrimination (section 5(1)) and harassment in the workplace (section 7(2)) “because of sex”. There can be no doubt that the reference to “because of sex” captures the concepts of gender, sexuality and sexual categories, as well as sexual characteristics and, therefore, includes sexually-related discrimination and harassment. The focus of a sexual harassment inquiry is not strictly on the gender or sexual orientation of the parties. It is a multi-faceted assessment that looks at the balance of power between the parties, the nature, severity and frequency of impugned conduct, and the impact of the conduct. The key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarass the victim.
132The applicant did not assert that he is homosexual, and at least 2 witnesses testified that they did not think that he was homosexual. However, the evidence, discussed below, establishes that homophobic slurs were used in the workplace, that such slurs were directed at the applicant (among others) and that words like “fag” and “gay” were understood to be pejorative. Homophobic taunts are discriminatory, whether or not the harassers believe the object of their scorn is homosexual: North Vancouver School District No. 44 v. Jubran (2005), 2005 BCCA 201, 39 B.C.L.R. (4th) 153 (B.C.C.A.). Citing Jubran, a recent decision of this Tribunal noted that “[c]omments and conduct that are derived from derogatory stereotypes of gay men, lesbians, bisexuals and transgendered people are captured by the prohibited ground of sexual orientation, regardless of the complainant’s sexual identity or the perception of the respondent”: see Selinger v. McFarland, 2008 HRTO 49, at para. 23.
Did Harassment As Defined By The Code Occur?
133Section 10(1) of the Code provides the definition of harassment:
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
134As noted in Moffatt:
It is now settled law that discriminatory working conditions can be created by derogatory comments which target a person on the basis of their identification with a prohibited ground of discrimination. Comments which are, for example, racist, sexist, homophobic or mocking of a person's disabilities, whether written or oral, whether said directly to an employee or behind their back, can be the basis for a finding of employment discrimination. An isolated remark may not, on its own, create a poisoned work environment; each case requires consideration based on all the circumstances, including the nature and frequency of the remarks and the impact on the complainant. (para 211)
135There is an objective as well as a subjective element to the definition of harassment. The applicant has met the subjective aspect: despite invitations from counsel for the corporate respondent to agree that he considered the text messages and homophobic comments in the workplace to be something that did not bother him, the applicant consistently and credibly maintained that these communications were unwelcome.
136Relevant to the objective element is the corporate respondent’s suggestion that a different standard of behaviour, and one that encompassed homophobic and racist slurs, was suitable for a workplace like that of the respondent. This argument has been raised in past cases, largely in the context of racial discrimination, without success. In Dhillon v. F. W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd. Inq.), which was decided on an earlier version of the Code that did not specifically prohibit harassment, the Board of Inquiry found that verbal racial harassment was prohibited conduct under the Code. The atmosphere of the workplace was addressed:
6686……Undoubtedly, the ambience of a warehouse in Toronto, bringing together many men of very diverse backgrounds doing physical labour, is not going to be the equivalent of a Sunday School picnic. It will be common to have profanity or "rough talk" as one might call it, as an ordinary part of the conversation, and whatever one's views as to the niceties of such an environment, one cannot ignore reality.
6687 I am sure that the Respondent's warehouse was not exceptional in this regard, but rather is typical. However, the "rough talk" in the Respondent's warehouse contained racial epithets and insults, that is, verbal harassment of a racial nature and on a regular basis…
6688 … the fact that other groups, as new Canadians, experienced racial prejudice historically with legal impunity to those who discriminated, and the receivers of the insults simply had to tough it out, does not excuse racial discrimination now prohibited by the Code in the contemporary work environment.
137In Naraine v. Ford Motor Co. of Canada (No. 4), [1996] 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230 aff’d 1999 CanLII 18727 (ON SCDC), 124 O.A.C. 39 (Ont. Div. Ct.); rev’d 2001 CanLII 21234 (ON CA), (2001), 209 D.L.R. (4th) 465 (Ont. C.A.); leave to appeal refused [2002] S.C.C.A. No. 69 (Naraine), the Board of Inquiry reviewed similar cases decided after Dhillon:
51Later cases took an increasingly serious approach to verbal harassment. In Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 at D/1772–D/1773 (Ont. Bd.Inq.), the Board stated that racial name-calling is "an invidious and insidious practice", that "name-calling is necessarily injurious unless there exists a tacit agreement between the parties", and that it is doubtful that "racial name-calling in the workplace can ever be mere “personal interplay” or “shop talk'". Lee v. T.J. Applebee's Food Conglomeration (1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.) held at D/4783 that the environment created by racial slurs could constitute a violation of the Code even where the remarks were not specifically directed to the complainant.
138In Naraine, the Board of Inquiry reviewed evidence that summarized an attitude of middle management to racist slurs in the workplace that is similar to the evidence in this case:
39Mr. Naraine …stated that he complained about Mr. Marsh's use of the term "Paki" to Gord Batstone, the general foreman. Although Mr. Batstone could not remember this complaint specifically, he did admit that he knew that Frank Marsh commonly referred to Mr. Naraine as "Paki" and "Wacky Paki". "I did not respond to it. At that time I thought it was just kind of shop talk and there had been no complaints to me about it. I thought they were friends", Batstone explained. This was the sort of reasoning which was proffered by numerous Ford witnesses, who insisted that they thought the jokes, slurs and graffiti did not upset anyone, that such talk was not meant to give offence, was "never used in a hurtful way", was "just in fun", "between friends", "comical", that the words were even "terms of endearment".
139More recently, in a decision dealing with a male-dominated poisoned work environment, the Tribunal rejected the argument that a “locker room” atmosphere was a way for sales staff to keep themselves “amused” and “pumped up” to be “competitive” and “aggressive” while waiting for customers, and that such an atmosphere was commonplace in used car sales and could not be considered sexual harassment; see Smith v. Menzies Chrysler, 2009 HRTO 1936, at paras 47, 146, 155 and 157. The Tribunal rejected the proposition that the same-sex composition of the workplace rendered the behaviour acceptable and found that there is no basis in law for excluding sexually vexatious behaviour from Code protection simply because it occurs in a same-sex work setting or because some of the participants accept and/or even appear to enjoy it. The Tribunal stated that the argument that men in male-dominated workplaces are expected to tolerate crude and lewd environments is contrary to the purpose of the Code, which seeks to promote and protect the mutual respect, inherent dignity and worth of every person.
140All of the social areas addressed by the Code engage the public sphere, which reflects ongoing changes in society, including behavioural norms and customs. Providers of services, goods and facilities and accommodation, as well as employers, trade unions and vocational associations may choose the degree of formality in behaviour that they believe is suitable to their business or service. However, the Legislature has set certain minimum standards in enacting the Code. Subject to the restrictions in the definition of harassment that speak to whether behaviour is vexatious and known or ought to be known to be unwelcome, there is no foundation in the Code for an interpretation that would excuse harassing behaviour because of the type of business or service at issue.
The Significance Of The Applicant’s Own Racist And Homophobic Remarks In The Context Of The Workplace
141As noted above, the applicant admitted using homophobic remarks in the workplace. I have found that he also used racist slurs.
142To meet the harassment definition of the Code, the conduct in question must be known or ought to be known to be unwelcome. In cross examination, the applicant agreed with the suggestion by counsel for the corporate respondent that he might be considered to have consented to take part in an abusive exchange via text messages with Mr. Watson. In its submissions, the corporate respondent referred to this and repeatedly submitted that the applicant “implicitly consented” to remarks such as that alleged to have been made by Mr. Kabir, because of his own use of profanity, and homophobic and racist slurs.
143A primary response to this argument is that an agreement between parties cannot allow a “contracting out” of the application of the Code; see for example Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, and Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 2003 SCC 42, [2003] 2 S.C.R. 157. The only qualification of that rule by the Supreme Court has occurred in the context of a decision involving Newfoundland’s human rights legislation, in which the Supreme Court allowed a contractual provision the effect of which was “to raise and further protect the human rights of the people affected”: Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC), [1996] 2 S.C.R. 3 at para. 26.
144Secondly, the phenomenon of racist, sexist or homophobic remarks being made by a person who is the target of harassing behaviour does not lead, without evidence that is not present in this case, to the conclusion that such behaviour is welcome and not vexatious to the target individual. While not excusable, it is not unusual for people within a workplace, or any other situation in which people must work together, to go along with the unacceptable and even themselves adopt behaviour they know to be unacceptable, as will be discussed below. Adopting harassing behaviour often appears to be a strategy aimed at getting the harassment to stop, either by retaliating or by attempting to be seen as a “good sport” or someone who can “take a joke”.
145In Naraine (above), the board of inquiry reviewed evidence of this type of behaviour:
46The respondents attempted to ameliorate the implications of the racial graffiti and slurs by countering with testimony that implicated Mr. Naraine in some of the same insidious practices. One of Ford's few black supervisors testified that Mr. Naraine once used the epithet "nigger" during a verbal altercation with him. In another instance, Mr. Naraine was called "Wacky Paki" while standing beside another South Asian employee who worked in the plant. Pointing to the other South Asian man beside him, Mr. Naraine allegedly said jokingly, "I'm not a Wacky Paki, he's a Wacky Paki." When the other South Asian man took offence at the comment, the two apparently talked it over and resolved the issue between them. Mr. Naraine did not testify regarding these allegations, since he did not take the stand as a witness in reply. Consequently I have accepted in whole the testimony of the witnesses who cited Mr. Naraine's occasional participation in the prevailing racialized plant culture.
47These incidents are no less deplorable than the racial name-calling and graffiti directed at Mr. Naraine himself. Mr. Naraine may have been trying to deflect racist attacks from himself by participating in the prevailing culture on occasion, but this does not diminish the harmful impact of his adoption of racist norms. Mr. Naraine's participation in name-calling does not, however, serve as a bar to his claim under the Code. Within a racist society, it is not surprising that individuals who are discriminated against racially may themselves discriminate against others on the basis of race. While this may give rise to the potential for additional complaints under the Code, it should not insulate corporations and individuals who discriminate in the first instance.
146In Smith (above) the Tribunal accepted evidence that the applicant had to some extent participated in the impugned behaviour, but rejected an argument to dismiss on that basis:
159It is now settled law that, in the context of a poisoned work environment, tribunals must carefully consider allegations that the complainant also participated in the misconduct to determine whether the environment was a causal factor in the complainant’s alleged behaviour: see Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC), 2005 CanLII 2811 (ON S.C.D.C.) and Naraine v. Ford Motor Company [1996] O.H.R.B.I.D. No. 23; aff’d 1999 CanLII 18727 (ON SCDC), 124 O.A.C. 39 (Ont. Div. Ct.); rev’d 2001 CanLII 21234 (ON CA), (2001), 209 D.L.R. (4th) 465 (Ont. C.A.); leave to appeal refused [2002] S.C.C.A. No. 69. To some extent, this proposition is applicable to the present case because the evidence indicated that the complainant resorted to coarse language to describe Graham’s behaviour and to try to get Graham to stop. While the complainant may be culpable for his own use of inappropriate language, this does not excuse or nullify Graham’s discriminatory misconduct towards the complainant. Nor does it excuse the failure of Lyons, Clark Menzies and the corporate respondent to take steps to address the existence of a poisoned work environment. The evidence established that the complainant was disgusted by, and protested, when Graham subjected him to crude remarks and exhibitionism. Based on this evidence, it is apparent that the respondents knew, or ought to have known, that Graham’s behaviour was unwelcome. Further, regardless of whether anyone objects to, or everyone participates in, sexually charged behaviour, the employer has a duty to take steps to ensure the workplace is free from vexatious comments or conduct; see Smith, supra, and Naraine, supra.
147The testimony of all of the parties except Mr. Mollica, including all of the respondents’ witnesses, showed an awareness that homophobic slurs and racial slurs were unacceptable in the workplace. However, their actual reaction to this practice was clearly tempered by both the relative power of their positions and the need to cope with the realities of their workplace. Mr. Ajaran and the applicant, who among others were on the receiving end of this abuse, clearly tried to create rationales by which they convince themselves that they could continue to tolerate it. Mr. Ajaran tried not to “let words get me”, and had clearly decided that he would put up with it “when it wasn't a constant occurrence”. The applicant made remarks to the effect of “To fit in you just go along”; that “that kind of talk could be fine but you hear it one day and then you have a bad day and it doesn't sit well”. “I can take some of it but it takes its toll”. Although the applicant denied that he and Mr. Watson were friends in the sense of socializing outside of the workplace, he testified that he would have liked to believe that he and Mr. Watson were friendly, but that he concluded looking back after employment that they were not in fact friends.
148In interchange with counsel for the respondent as to whether the technicians, using this type of language, intended to hurt, the applicant said “either way, it was hurtful-- you try to shrug it off but it sinks in”.
149In using homophobic and racist slurs the applicant made his own contribution to a poisoned work environment. However, this does not excuse harassment by others.
150Nor does it excuse failure by management of a business to take both disciplinary and preventive action. Employers routinely set behaviour norms in the workplace to enhance their ability to meet business goals. They also enforce legal obligations arising, for example, from health and safety legislation. Because employees may fail to meet even minimum standards, good employers know that they must set the standard well above the minimum, and both model and enforce the behaviour they want.
151Mr. Walton and Mr. Mollica stated that the corporate respondent had taken some measures and made efforts to prevent and deal with violence in the workplace. It had also prohibited the posting of non-work-related materials in the workplace, specifically referencing a prohibition against materials that depict women in a hyper-sexualized way (referred to in the course of testimony as “pinup girls” or “Sunshine girls”). This indicates a consciousness of restrictions imposed by law on both violence in the workplace and the poisoning of the workplace atmosphere for women or for persons who, because of other personal characteristics protected by the Code, experience discomfort when forced into daily confrontation at work with hyper-sexualized images.
152Having said that, the testimony of witnesses for both the respondent and the applicant indicate that the corporate respondent has not yet taken the leap to address expressions of racism and homophobia in the workplace. The corporate respondent condones the use by employees of racist and homophobic slurs which spring from the same toxic sources as sexist posters or violence, and poison the workplace every bit as much.
153The evidence of the applicant, Mr. Freeborough and Mr. Ajaran illustrate the importance of the role of management in a business. Unless persons charged with the authority to manage a business demand and enforce acceptable behaviour, a poisoned environment can continue until one person is brave enough to “blow the whistle”, or simply overreacts. In this case the applicant, who was dealing with depression and the pressures of “fitting in” in a new workplace and “proving himself” in addition to harassment, was that person.
154In Dhillon (above) and in numerous decisions since, this Tribunal and its predecessors have ruled that there is a duty on an employer to take reasonable steps to eradicate this form of discrimination, and if the employer does not, it is liable under the Code.
The Duty To Investigate
155Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code: see Murchie v. JB's Mongolian Grill, 2006 HRTO 33 and cases cited therein, Dhillon v. F.W. Woolworth Company, (above); Olarte v. DeFilippis and Commodore Business Machines Ltd. (No. 2) (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 (Ont. Bd.Inq.); Persaud v. Consumers Distributing Ltd. (No. 1) (1990), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23 (Ont. Bd.Inq.). In Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 at D/65, para. 160, an Ontario Board of Inquiry identified six elements of a reasonable response as follows:
(i) the response must be prompt;
(ii) there must be corporate awareness that the conduct complained of is prohibited;
(iii) the matter must be dealt with seriously;
(iv) there must be a complaint mechanism in place;
(v) the corporation must act so as to provide a healthy work environment; and
(vi) management must communicate its actions to the complainant.
145In this case, the applicant’s complaints about harassment were dismissed by Mr. Walton and Mr. Mollica without an investigation. Reasonable steps were not taken to address the allegation.
Was The Applicant Dismissed For Behaviour Connected To Discrimination Or Harassment?
156This Tribunal and its predecessors have in a number of cases concluded that, where a discriminatory working environment results in the person targeted becoming confrontational, aggressive and arrogant, and this response triggers a dismissal, the dismissal itself may infringe the Code. See for example Naraine and Dhillon (above) and Smith v. Mardana Ltd. (No. 2) (2002), 2002 CanLII 46512 (ON HRT), 44 C.H.R.R. D/142 at para. 26 (Ont. Bd. Inq.), (varied on other grounds: (2005), CHRR Doc. 05-434 (Ont. Div. Ct.), Krieger v. Toronto Police Services Board, 2010 HRTO 1361).
157In his testimony, the applicant admitted that he should not have engaged in a fight, and that this behaviour was unacceptable in the workplace. While testimony of the applicant and the other witnesses differed as to who had thrown the first punch, he stated that he did not back down when Mr. Freeborough opposed him because “with the ridicule—after all the remarks about the feminine traits, imagine what the guys would have said if I had backed down”.
158In its submissions, the corporate respondent argued that there was no evidence that persons with depression or hypothyroidism are more likely to engage in violence at the workplace than other employees. I agree with the submission. However I find that the fight was at least in part a reaction by the individual applicant to being harassed in the course of his employment.
Individual And Corporate Liability
159Subsection 46.3 (1) of the Code is a statutory deeming provision that makes it clear that “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization”. This deeming provision applies for the purposes all Code provisions “except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1)”, which deal with harassment.
160As noted above, the applicant alleged that the termination of his employment, in the circumstances of the case, breached s.5 of the Code on the grounds of sex, sexual orientation and/or disability. His position is that the fight that led to his termination was related to his depression and to the harassment he had endured, and that this possibility should have been investigated by the respondents and accommodation made. There is no dispute that Mr. Walton and Mr. Mollica, respectively the owner and a manager of the corporate respondent, took the decision to fire the applicant. If in so doing they breached the Code, the corporate respondent is automatically liable through section 46.3 (1).
161In respect of the harassment allegations, Mr. Watson bears individual responsibility as the person who harassed the applicant. Mr. Mollica also bears individual responsibility as a person with knowledge of the harassment who had both the duty and the authority to investigate and remedy the situation. Corporate responsibility is not automatic, as subsection 46.3 (1) exempts allegations of harassment in employment from the deeming provision. For this reason, it must be established that governing minds of the corporate respondent had sufficient knowledge of the harassment that the corporate respondent should be found liable.
Liability Of The Corporate Respondent
162As noted in Smith (above), at para. 179:
The law is clear that employers are liable for workplace harassment and a poisoned environment on the basis that the employer controls the terms and conditions of the workplace and therefore is in the best position to address the environment: see, Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84. Employers are also liable when harassment is carried out by a supervisor or if the supervisor knew or ought to have known that the workplace harassment was unwelcome, failed to address the complainant’s concerns and failed to curtail the misconduct: see Moffatt, supra, and Wall, supra.
163As noted above, I have accepted that Mr. Walton for the corporate respondent had knowledge of the applicant’s claim of harassment, as he was approached by the applicant and shown some of the abusive text messages. Mr. Mollica’s response about “shop humour” was not enough to satisfy Mr. Walton's responsibility to investigate the applicant's complaint.
164Mr. Walton’s knowledge of the applicant’s disabilities also has relevance in respect of the fight that preceded the termination of the applicant’s employment.
165In respect of the firing, the final decision-maker was Mr. Walton. In view of the above-noted facts surrounding the applicant’s medical leave of absence for depression that had triggered suicidal thoughts, I am satisfied that Mr. Walton was on notice that the applicant had a disability which clearly could affect his outlook and behaviour, and that he continued to require medication for that disability. The testimony indicated that fighting was not part of the applicant’s usual behaviour, and both Mr. Walton’s knowledge of the applicant’s disabilities and his knowledge of the applicant’s complaint of harassment triggered a duty to inquire further in respect of the circumstances of the fight.
166As noted above, I have found that the fight was in part a reaction by an individual dealing with depression to being harassed on the basis of perceived disability and perceived homosexuality in the course of his employment. Mr. Walton knew that the applicant had disabilities which might affect the applicant's outlook and behaviour at work. This placed certain responsibilities on Mr. Walton to at least make inquiries when the applicant displayed unusual behaviour in the workplace. Had an inquiry been undertaken at the time, the corporate respondent might have concluded that neither the applicant’s depression nor the harassment were sufficiently closely linked to the fight, but the corporate respondent cannot rely on its own failure to inquire into the applicant’s situation in these circumstances.
Liability Of The Personal Respondents
167The personal respondent Ian Watson breached the applicant's right to be free from harassment in employment on the ground of disability (perceived obesity), and created a poisoned and discriminatory workplace situation through harassment on the ground of perceived homosexuality.
168The personal respondent Domenic Mollica breached his duty to investigate complaints of discrimination and harassment and to take appropriate steps to remedy the situation. Mr. Molllica also took part in the decision to terminate the applicant’s employment, although the final decision was not his. In view of his knowledge of the applicant’s claim of harassment, Mr. Mollica should have suggested that the corporate respondent investigate the possibility that the fight and the harassment were connected.
REMEDY
169Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:
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.
170In respect of monetary compensation, the applicant seeks $50,000 “in general damages for the infringement of his human rights” and “special damages for lost wages for having been dismissed without an investigation and any other damages this Honorable Tribunal deems appropriate in this case”. In this application the applicant also requested that the respondents be ordered to conduct “Human Rights training”.
171Pursuant to section 45.2 (1), above, an applicant who proves a breach of section 5 of the Code is entitled to compensation for wage loss arising out of the discriminatory act.
172There was very little evidence given at the hearing concerning wage loss, and minimal written submissions on this issue from the parties. The respondent states that the applicant’s salary at the relevant time (October 31, 2009) was $35,000 per year. In its alternative submission, the corporate respondent suggested that the Tribunal should consider the applicant's actions as a relevant factor in assessing the appropriate remedial award. Conduct listed included an allegation that applicant had attempted to mislead the Tribunal, which I have found did not occur, and the applicant's use of homophobic and racial slurs and jokes about Mr. Watson's weight, as well as his involvement in the fight.
173The applicant testified that he did not look for another job until January, 2010 -- he said that he broke down in tears after the firing and that he was not in a good state for some time, and that the end-of-year holidays were not a good time to be looking for employment. He said he saw his doctor during that time and told him about the firing and about his low spirits he said his doctor advised him to try to obtain counselling and he did go to one counselling session. He submitted a receipt dated December 14, 2009 for psychotherapy. He said that he did not continue with the counselling; his reasons appear to be partly that it did him no good and partly the expense of paying the psychologist. He qualified for Employment Insurance and he testified he sent out “at least 80” resumes while looking for work. He indicated that some of the records that he had made of job searches had been deleted because of problems he had with a computer. He decided to go back to school in 2010, and undertook continuing education between September 2010 and August 2011.
174The applicant established that he was unable to obtain employment after he was fired, and that he was unemployed at the time of the hearing. The respondent has not established any significant failure to mitigate on the part of the applicant. On the evidence submitted, I find that the applicant is entitled to an order for compensation from October 31, 2009 to August 31, 2010 amounting to his usual salary and the value of any benefits and minus the usual statutory deductions.
175The applicant has also requested monetary compensation to address the effect of the respondent’s breach of the Code on his dignity, feelings and self-respect. Section 45.2(1)1 encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.
176Quantifying intangible loss and distress is a difficult exercise. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents. The Tribunal has applied a degree of objectivity in assessing the amount of compensation; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. At the same time it has recognized that the actual impact of the discrimination on the applicant is an important consideration in assessing compensation. In addition, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (2008) 295 D.L.R. (4th) 425 (Ont. Sup. Ct.).
177In Sanford v. Koop, 2005 HRTO 53, the Tribunal summarized the following factors (not a closed list) frequently used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment.
178The applicant stated that he could see how some people might have thought the texts were humorous, but that they made him feel so bad that on a couple of occasions he “went to the washroom and broke down (crying).” He also stated that the harassment made him feel “like a loser”, “embarrassed and ashamed-- the vision of me was of a lesser inadequate person living at home life not on track-- put a negative connotation on me and embarrassed me in front of coworkers”. He stated that he felt that he was on pins and needles watching his back and that this was defamation of character. The messages made him anxious and nervous at work. Loss of employment, objectively one of the more serious forms of discriminatory conduct (see LeBlanc v. Syncreon, 2010 HRTO 2336) was also an issue in this case.
179As noted above, as an alternative to the argument that the applicant’s use of homophobic and racial slurs in the workplace amounted to consent to being harassed, the respondent argued that this behaviour should result in a denial of monetary damages. For the reasons noted above concerning the circumstances of a person who is experiencing and attempting to deal with harassment, I do not agree. Certainly there is no indication, in the cases cited above which involved harassing behaviour on the part of the person harassed, that the relevant tribunal took this behaviour into account in assessing damages for intangible loss and distress. More recently, this Tribunal has taken into account retaliatory behaviour against another tenant by a tenant who had experience discrimination: see Robdrup v. J. Werner Property Management Inc. 2009 HRTO 1372 (2009), 68 C.H.R.R. D/22, and reduced damages where it found that a “complainant’s behaviour was a precipitating and contributing feature to the confrontation with the personal respondent” which resulted in discriminatory remarks (Abdallah v. Thames Valley District School Board, 2008 HRTO 230) but such cases are certainly rare.
180The complicated dynamic involved in harassment situations in my view distinguishes this case from Robdrup and Abdallah (above). However, it is troubling that, in using homophobic and racist slurs, with no suggestion in the evidence (as there was in Naraine) that this was an isolated incident, the applicant made his own contribution to a poisoned work environment.
181Subection 45.2 (1) 1 authorizes monetary “compensation for injury to dignity, feelings and self-respect”. My reading of this provision, informed by the discussion in Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) is that it provides no authority to punish the conduct of any party, including an applicant who behaves in a way that could give rise to an Application under the Code on the part of someone else. The inquiry under subsection 45.2 (1) 1 should be limited to an assessment of how the breach of the Code affected the applicant. Having said that, my finding on the facts is that the applicant uttered racist and homophobic slurs with some frequency, and this indicates to me that the impact on him of being on the receiving end of this behaviour was less than it would have been on an individual who had never exhibited this behaviour, or had behaved in this way in a single instance.
182Applying the above-noted principles and having regard to the evidence, I find that $20,000.00 is an appropriate amount to compensate the applicant for the injury to dignity, feelings and self-respect occasioned by both the termination of his employment and the harassment he suffered in the workplace.
183Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the "date the cause of action arose". Based on the evidence, this cause of action may be seen to have arisen when the applicant first began experiencing harassment, but evidence as to when this occurred was not placed before me. It is certainly clear that a cause of action arose when the applicant was fired, on October 31, 2009. A link to the relevant rates of pre-judgment interest is provided on the Tribunal’s website, at the section on “The Law and Policies”.
184With respect to the applicant’s damages for his loss of wages, I award pre-judgment interest on the full amount of wage loss from March 3, 2010, the mid-point between the date on which the applicant lost his employment and the date he started his educational program. I award post-judgment interest in accordance with the Courts of Justice Act, above, from the date that is 30 days from the date of this Decision.
185Finally, a remedy under section 45.2(1)3 of the Code to “promote compliance with this Act” is appropriate in this case. The corporate respondent must create and apply a workplace policy that reflects the responsibilities of employer and employees under the Code. The corporate respondent is referred to the website of the Ontario Human Rights Commission, which contains, among other useful publications, Guidelines on developing human rights policies and procedures, Human Rights at Work 2008 - Third Edition, Finding the right human rights consultant and the Commission’s own workplace policy, titled Internal human rights policy: Working Draft.
ORDER
186The Tribunal makes the following order:
a) Within 30 days of this Decision, the corporate respondent shall pay an amount to the applicant for loss of employment income that corresponds to the value of salary, vacation pay and benefits that he would have received had he continued to be employed from October 31, 2009 to August 31, 2010 inclusive.
b) Within 30 days of this Decision, the respondents shall pay $20,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity. The personal and corporate respondents are jointly and severally liable to pay this amount. This award is an award in the nature of general damages for pain and suffering.
c) The corporate respondent shall pay the applicant prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (a), above, from March 3, 2010.
d) The respondents shall pay the applicant prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (b), above, from October 31, 2009.
e) In the event that the respondents fail to make the payments described in paragraphs (a) through (d) above within 30 days of the date of this Decision, the respondents shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision. The personal and corporate respondents are jointly and severally liable to pay this amount.
f) Within 90 days of the date of this Decision, the corporate respondent shall create and post within the workplace a workplace policy setting out its responsibilities, under the Human Rights Code, as an employer. The corporate respondent shall confirm to the Tribunal and to the applicant that it has done so.
Dated at Toronto, this 5th day of September , 2012.
“Signed by”
Judith Keene
Vice-chair