HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gang Rong
Applicant
-and-
Gold Line Telemanagement Inc.
Respondent
DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Rong v. Gold Line Telemanagement Inc.
APPEARANCES
Gang Rong, Applicant
Xin Xin Rong, Representative
Gold Line Telemanagement Inc., Respondent
Sylvia Tint, Counsel
1The applicant, who self-identifies as Chinese-Canadian, worked as a software developer in the respondent’s Information Technology (“IT”) department. He was the only person in his four-member work team whose ethnic/racial background is not Iranian-Canadian. On January 3, 2012, the applicant filed an Application alleging that the respondent discriminated against him in his employment because of his race. The applicant did not allege that the respondent discriminated against him because he is Chinese-Canadian, but instead because, unlike the other members of his work team, his ethnic/racial background is not Iranian-Canadian.
2The applicant considers himself to be a disciplined, hard-working employee who is able to complete his work on time. In his Application, the applicant alleged that his manager and the senior colleague who assigned him work, both of whom are Iranian-Canadian, discriminated against him by yelling at him and unfairly criticizing his work performance. In particular, the applicant alleged that his manager unfairly targeted him for criticism when his co-workers were permitted to engage in similar conduct without any repercussions. Finally, the applicant alleged that the respondent discriminated against him by failing to grant him salary increases during his four years of employment with the company.
3The respondent submitted that it did not treat the applicant differently because of his race. According to the respondent, the criticism of the applicant’s work was justified and non-discriminatory. The respondent also submitted that race was not a factor in its failure to grant the applicant a salary increase in his four years with the company. It submitted that salary increases are discretionary and only granted sporadically. The respondent submitted that the applicant did not receive a salary increase because his work did not merit one.
4The hearing of this Application took place over three and a half days on April 25-26, 2013 and September 10-11, 2013. During the hearing, the applicant provided portions of his evidence in English and other portions in Mandarin. The Tribunal granted his request that an interpreter be present during the hearing. A professional interpreter attended all hearing days and interpreted for the applicant as needed throughout the hearing.
5For the reasons that follow, I find that the applicant has failed to establish that the respondent has discriminated against or harassed him because of his race.
applicable Law
6Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including race. Section 5(2) protects employees from harassment in employment because of certain grounds including race.
7“Harassment” is defined in section 10 of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
8The applicant bears the onus of establishing discrimination and/or harassment on a balance of probabilities. To successfully establish harassment, the applicant must prove that it is more probable than not that the respondent’s actions constituted harassment because of one of the grounds protected under the Code. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination was a factor in the respondents’ actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The caselaw is clear that discrimination need only be one of the factors involved for there to be a violation of the Code. It is also not necessary to establish an intention to discriminate, as discrimination will often stem from unconscious biases or beliefs.
9In this case, there is no direct evidence to support the applicant’s allegations of discrimination, which is not uncommon in cases alleging racial discrimination. As in many cases, the applicant’s case falls to be determined in accordance with well-established principles applicable to circumstantial evidence. These principles were set out by the Tribunal and affirmed by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884 at para. 77:
(1) Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.
(2) It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.
(3) A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.
(4) There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.
(5) The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
10In determining whether an inference of racial discrimination is more probable than the explanations offered by the respondent in this case, I am mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases that often operate on an unconscious level: Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 4; Naidu v. Whitby Mental Health Centre, 2011 HRTO 1279.
11The outcome of this Application turns primarily on the relative credibility of the applicant and the respondent’s witnesses, especially his manager and the senior colleague who assigned him work. The parties provided significantly divergent evidence relating to the applicant’s work performance and the respondent’s response to it. Where it was necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so below.
12In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
13An important factor in this case is the distinction between veracity and accuracy discussed by the Ontario Court of Appeal in R. v. Morrissey, 1995 CanLII 3498 (ON CA), (1995), 97 C.C.C. (3d) 193, at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness' veracity, one speaks of the witness' credibility. When one is concerned with the accuracy of a witness' testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
14In my view, while the applicant did his best to recount his experiences as he remembered them, his memory was at times unreliable and his perception of the reasons for events was generally not consistent with the preponderance of probabilities. I do not question the sincerity of the applicant’s testimony that he felt he had no work performance issues and that no one had ever raised any performance issues with him. However, I do question the accuracy of his recollection of events and therefore the reliability of his testimony on this issue. As noted below, several times in his testimony, the applicant stated that he did not remember certain things. He also acknowledged that it was difficult for him to remember details from so long ago.
15In cross-examination, the applicant was asked about whether his manager or the colleague who assigned him work had raised different performance issues with him. He flatly denied that certain issues were raised with him. However, for many other issues, he claimed that he “did not remember” the issues having been raised with him. For example, the applicant denied not letting Mr. Saravi know when he had finished a task. However, he said he did not remember Mr. Modir or Mr. Saravi ever prodding him about his progress on tasks. Similarly, he stated that he did not remember ever being told that he was taking too long to finish tasks. When asked whether Mr. Modir or Mr. Saravi ever told him he was spending too much time researching questions on the internet, the applicant said he did not remember. These answers cause me to question the accuracy of the applicant’s recollection of events.
16I have been conscious to factor into my credibility assessments in this case the fact that all of the respondent’s witnesses are still employed with the respondent. Nevertheless, based on the evidence at the hearing, I accept that, although the applicant felt his work was exemplary, his manager and the senior programmer who assigned him work had raised concerns with him regarding his work performance on several occasions. Whether their concerns were fair or unfair is not an issue that I have the jurisdiction to decide. What I have to decide is whether the respondent’s actions were discriminatory. That is, whether the applicant’s race was a factor in the respondent’s criticism of his work performance and/or the failure to grant him a salary increase during his employment with the company.
FACtual BACKGROUND
Applicant’s employment
17The applicant was employed by Totrix Inc. (“Totrix” or “the company”) as a software developer in October, 2007. Totrix is one of four corporations that form part of the Group of Gold Line companies (“Gold Line”). Gold Line offers telecommunications-based products and services to consumers worldwide. Gold Line is an umbrella brand that includes the named corporate respondent, Gold Line Telemanagement Inc. Totrix carries out IT functions to support the services provided by Gold Line.
18According to the applicant, 90% of Totrix’s employees are Iranian-Canadian. The respondent did not provide a breakdown of the composition of its workforce. However, Shawn Reyhani, the respondent’s Vice-President of Operations did note that the high number of Iranian-Canadian employees related in part to the fact that some of the respondent’s services are targeted at persons who are from Iran and/or have family or friends there. For example, the respondent’s web TV service permits individuals to watch TV stations from certain international countries. One of the original countries for which this service was offered was Iran.
19The applicant was originally assigned to a team headed by a Totrix manager who left the company in or around 2008. The applicant’s original work team included both Iranian-Canadians and persons from a variety of non-Iranian ethnic backgrounds. After one of the team’s projects was discontinued, members of the team were either redeployed or laid off. Both Iranian-Canadian team members and non-Iranian-Canadian team members were either redeployed or laid off.
20The applicant sought a position with another team led by manager Mark Modir. Mr. Modir testified that he had been looking for an additional person to join his team. He stated that, when the applicant expressed an interest, he decided to add the applicant to his team. The applicant worked as a member of Mr. Modir’s team for almost three and a half years from April 2008 until he resigned his employment on August 29, 2011. The applicant became the fifth member of the team which included three Iranian-Canadians and two members of non-Iranian origin. The applicant became the only person of non-Iranian origin after the other non-Iranian left the team sometime after the applicant joined.
21Mr. Modir is the project manager who is responsible for managing the different projects assigned to the team. However, it is Mr. Saravi, the senior developer, who is in charge of assigning and overseeing day-to-day tasks on almost all of these projects. Most of the work assigned to the applicant, with the exception of one particular project, was assigned by Mr. Saravi.
22It appears that no significant issues arose during the applicant’s first three years years or so in Mr. Modir’s team. The incidents of discrimination contained in the Application all occurred in the last seven or eight months of the applicant’s employment with the respondent.
Preliminary Issue: Source Code Repository
23Prior to the hearing, the applicant requested production of certain documents from the respondent. Among other things, he requested a full copy of the source code repository for the projects on which he had worked. By interim decision, 2012 HRTO 2367, dated December 19, 2012, the Tribunal noted a dispute between the parties as to whether there was a relationship between the quantity of source codes committed by a software developer to the repository and the developer’s work performance. The Tribunal held that this was an issue that would have to be determined at the hearing. The Tribunal found that the documents sought were arguably relevant. However, instead of ordering the respondent to produce a copy of the full source code repository, the Tribunal ordered the respondent to produce copies of a chart from the repository entitled “Commits by Author”, which shows the number of entries by each team member, and a chart entitled “Percentage of Authorship”, which weighs and values the entries made by each team member. The Tribunal ordered the respondent to produce a copy of each of these charts for each of the five major projects that the applicant worked on during his tenure of employment.
24The applicant sought to challenge the Tribunal’s Interim Decision at the hearing arguing that he should have been entitled to a full copy of the source code repository. I fully understand that the applicant believes that if he had access to the full source code repository he would be able to show that his work performance was above reproach. However, I advised the applicant that I would not overturn the Tribunal’s Interim Decision. I advised the applicant that, in my view, the decision allowed for information from the source code repository to be produced in a usable format.
25The respondent produced the required charts covering the life of each of the five projects worked on by the applicant. At the hearing, Mr. Modir testified that he had produced the charts using a computer program and that he had selected the appropriate parameters for the charts from a series of menus. Mr. Modir testified that each time a programmer makes any change to a program and commits the new version to the source code repository, the change gets logged as one “commit” at the time it is entered (“committed”) to the source code repository.
26Mr. Modir testified that the “Commits by Author” chart does not distinguish between large changes or small changes. In other words, the addition of a space in a line of code and a fundamental change to the architecture of a program would each be logged as one “commit” if they were committed back to the source code repository in one entry.
27Mr. Modir testified that the “Percentage of Authorship” chart to some extent captures the significance of the changes made by each programmer to the project. It does so through the use of an algorithm that takes into account the type of changes made to a file. According to Mr. Modir, the algorithm mostly attaches weight to changes depending on the number of lines of text committed to the source code repository. Therefore, a small change such as the addition of a space in a line of code would receive little weight in the “Percentage of Authorship” chart. A large change such as a fundamental change to the architecture of a program would receive a high degree of weight in the chart.
28The applicant took issue with the charts produced by the respondent. First, the applicant submitted that the respondent had failed to comply with the Tribunal’s production order because it had produced charts covering the life of each project rather than the time period during which the applicant was employed with the company. The applicant argued that the respondent was attempting to minimize his contributions since the charts included the contributions of other programmers who had worked on each project prior to the applicant’s employment with the company.
29In the hearing, I ruled that the respondent had in fact complied with the Tribunal’s production order. The Tribunal directed the respondent to produce charts “for each of the five major projects that the applicant worked on during his tenure of employment”. It did not require that the charts be limited to the period of time during which the applicant was employed with the company. I also do not accept the applicant’s submission that he was prejudiced by the fact that the charts cover the life of each project. As I note below, the relevance of the data contained in the charts is limited with respect to the issues before me. In addition, the relative extent of the applicant’s contributions can easily be discerned even if the charts include programmers who worked on each of the projects before he became employed with the company.
30Second, the applicant asked that Mr. Modir prove that he had not changed the algorithm for the weighing of contributions for the “Percentage of Authorship” chart. Mr. Modir testified that the algorithm was built into the program and that he simply chose the appropriate parameters from the program menus to comply with the Tribunal’s order. I accept his testimony on this point. In my view, there is no reason to believe that Mr. Modir modified the algorithm or the charts. The respondent’s position all along has been that the charts are irrelevant in that they do not measure the quality of an employee’s work performance. Therefore, there is no reason to believe that Mr. Modir altered the algorithm or the charts in any way. I accept the charts as accurate but of limited relevance for the issues raised in this case as discussed further below.
31The “Commits by Author” charts show that, except for one project, the applicant had a greater number of commits than the other members of his work team including Mr. Modir. However, once the significance of contributions was factored into the program’s algorithm, the applicant’s numbers declined. The “Percentage of Authorship” charts show that, in general, the applicant’s Percentage of Authorship was lower than that of at least one other member of his work team, usually Mr. Saravi.
32As already noted, I find these charts are of little relevance to the issues before me in this case. The “Commits by Author” charts are of least relevance as it only provides data on the number of changes that are committed by each programmer into the source code repository. It does not measure the quality of the changes or their significance to the functioning of the program. While the “Percentage of Authorship” charts at least provide some measure of the extent of the changes made, they still provide only a very imprecise measure of work quality. To the extent that the charts provide any relevant information, they show that the applicant committed many changes to programs but that these changes were relatively less significant than the commits made by others, Mr. Saravi in particular.
33At the end of the day, the source code repository does not provide data on the work performance issues raised by the respondent. It does not provide data on whether an employee browses the internet excessively, the timeliness of their work, or whether an employee follows instructions well. These are issues that the respondent raised in relation to the applicant, not the fact that he was not entering enough commits into the source code repository. For these reasons, I find the information from the source code repository of limited relevance for determining the issues raised in this Application.
Alleged Discrimination due to Criticism of Work Performance
34The applicant alleged that his manager, Mr. Modir, and, on one occasion, his colleague, Mr. Saravi, yelled at him and criticized him without justification. He claimed that no other members of his team, who are all Iranian-Canadian, were yelled at and criticized in this manner. The applicant provided five examples of the alleged yelling and criticism of his work.
35Although I understand that the applicant felt like he was treated unfairly due to the criticism of his work, for the reasons set out below, I find that these incidents do not constitute discrimination whether considered separately or together as a series of similar incidents. Based on the evidence about these incidents at the hearing, I find that the applicant failed to discharge his onus to prove that race was a factor in the way Mr. Modir and/or Mr. Saravi treated him. I also find it more probable than not that the applicant was not harassed because of race.
Incident #1
36The applicant alleged that in the Spring of 2011, Mr. Saravi yelled at him for no reason when the applicant asked him to explain the logic of a certain part of a program on which the applicant had been assigned work. The applicant claimed that Mr. Modir heard the incident and ignored it. When asked in cross-examination whether he had also raised his voice during the dispute, the applicant said that was not possible and that he never raised his voice. He also stated that the fact that Mr. Modir had a discussion with Mr. Saravi, and not him, following the incident supported his claim that only Mr. Saravi had raised his voice. The applicant admitted that he never complained about the incident to Mr. Modir or any other member of management.
37Both Mr. Saravi and Mr. Modir testified that the incident lasted no more than a couple of minutes. According to Mr. Saravi, he had tried to instruct the applicant on how to do a certain task several times but the applicant did not understand his instructions. Mr. Saravi admitted that he used a “stronger voice” because he got tired after explaining the instructions to the applicant 3 or 4 times.
38Mr. Modir testified that both the applicant and Mr. Saravi raised their voices during the incident. He stated that he did not interfere because he did not want to be seen to be taking sides. He also did not consider the incident to be more than a heated disagreement that did not last very long. Mr. Modir also testified that, after the incident, he spoke to Mr. Saravi because he was the senior team member. According to Mr. Modir, he told Mr. Saravi to keep working with the applicant to resolve the issue. Following the disagreement, Mr. Saravi sent detailed instructions to the applicant by e-mail in an effort to make them clear.
39Both Mr. Saravi and Mr. Modir testified that the incident was an isolated incident and that the work relationship between Mr. Saravi and the applicant returned to normal afterwards. In cross–examination, the applicant stated he did not think Mr. Saravi has “anything against [him]” but instead believes that it is Mr. Modir who targeted him for discriminatory treatment.
40Based on the evidence summarized above, I find that this incident was not discriminatory and did not constitute harassment because of race. At most, the incident was an isolated work-related disagreement between colleagues. The applicant has not provided any evidence from which an inference could be drawn that race was a factor in the way Mr. Saravi treated him. The applicant did not raise any further allegations against Mr. Saravi. In addition, the applicant himself stated in cross-examination that he did not think Mr. Saravi had anything against him.
41Likewise, I find that race was not a factor in Mr. Modir’s decision not to intervene in the incident. I accept the testimony from both Mr. Modir and Mr. Saravi that the incident did not last very long. I also find that it is more probable than not that the applicant also raised his voice during the incident. Although the applicant may not have shouted at Mr. Saravi, I accept both Mr. Modir and Mr. Saravi’s testimony that both the applicant and Mr. Saravi had raised their voices. I also accept Mr. Modir’s evidence that he did not see the need to intervene in the dispute because it did not last long and it did not appear to affect the working relationship between the applicant and Mr. Saravi. Based on all of this evidence, I accept that Mr. Modir had legitimate non-discriminatory reasons not to intervene in the disagreement between the applicant and Mr. Saravi.
Incidents #2-5
42The applicant raised four other incidents in his Application (Incidents #2-5) that he provided as examples of Mr. Modir’s alleged tendency to yell at him and single him out for unjustified criticism. These three incidents allegedly occurred in February, July and August 2011 respectively. I summarize below the facts relating to Incidents #2-5 and then set out my analysis of whether they support the applicant’s allegations of racial discrimination and/or harassment.
Incident #2
43In the incident identified as Incident #2 in the Application, the applicant claimed that Mr. Modir yelled at him and criticized him when Mr. Modir thought he was working on the wrong project. On February 9, 2011, Mr. Saravi sent the applicant an e-mail assigning him a task to complete on a project called “GLPhone”. The document attached to the e-mail mistakenly referred to another project, “GLNumber”. According to the applicant, shortly after receiving the e-mail, he opened up the GLNumber project file to determine whether the reference to GLNumber was an error. In his Application he claimed that, when he did so, Mr. Modir appeared behind him and yelled “what are you doing? You’re supposed to be working on GLPhone.” At the hearing, the applicant testified that Mr. Modir said something to the effect of “I told you to do this, why are you doing something else?”
44Mr. Modir denied that the incident occurred. According to Mr. Modir, he had no involvement in “micromanaging” day-to-day tasks such as this one. Although Mr. Modir was copied on the e-mail that Mr. Saravi sent to the applicant, he testified that Mr. Saravi was exclusively in charge of such assignments. Likewise, Mr. Saravi testified that Mr. Modir did not oversee day-to-day tasks. Specifically, Mr. Saravi testified that he was in charge of both the GLPhone and GLNumber projects and therefore it would not make sense for Mr. Modir to be overseeing any assignments relating to these projects. Mr. Modir also noted that Mr. Saravi’s e-mail, which was entered into evidence, was sent at 3:27 PM, very close to the end of the working day. In his view, this supported his contention that the incident did not occur since it was unlikely that he would have read the e-mail and immediately gone to the applicant’s desk to berate him for opening the wrong computer file.
45I find that it is more probable than not that this incident did not occur in the way the applicant has alleged. I accept the testimony by Mr. Modir and Mr. Saravi that Mr. Modir was not involved in assigning or overseeing day-to-day tasks such as this one. Also, the applicant’s recollection that Mr. Modir yelled at him and said something to the effect of “I told you to do this and you are doing something else” is inconsistent with the evidence that Mr. Saravi assigned the task to the applicant by e-mail. For these reasons, I find it is more likely than not that the applicant’s description of the incident is inaccurate.
Incident #3
46In the incident identified as Incident #3, the applicant alleged that Mr. Modir criticized and yelled at him several months later in July 2011. According to the applicant, Mr. Modir had asked him to change the default browser for a donation project. While the applicant converted the default browser from one program to another, Mr. Modir was speaking to another team member in Persian. The applicant testified that his colleagues would often speak to each other in Persian which left him feeling isolated.The applicant testified that, when Mr. Modir was finished talking to the other team member, Mr. Modir saw the applicant waiting for him and yelled “What are you doing? That’s the way you work?”
47Mr. Modir testified that he had assigned a task to the applicant. According to Mr. Modir, when he observed the applicant browsing a Chinese website, he asked the applicant whether he was done the task he had assigned. When the applicant said he was not done, Mr. Modir asked him why he was spending time browsing the internet if the task was not done. According to Mr. Modir, he did not “yell” but his voice was “stern”.
48On balance, I accept the applicant’s general description of the context of the incident. His account was much more detailed and precise than Mr. Modir’s more general recollection. However, I find that it is more likely than not that the applicant was not simply “waiting” for Mr. Modir while he was talking to one of the applicant’s colleagues. I find that it is more likely than not that the applicant was instead doing something, such as browsing the internet, that Mr. Modir perceived as wasting time. It is more likely than not that it was because of this that Mr. Modir criticized the applicant by saying “What are you doing? That’s the way you work?” As noted below, the applicant’s personal internet browsing and its effect on the applicant’s work was of significant concern to Mr. Modir.
Incident #4 and 5
49In the incidents identified as Incident #4 and 5, the applicant testified that sometime in August 2011, Mr. Modir came up to him and started yelling at him. He testified that Mr. Modir’s voice could be heard all over office. According to the applicant, Mr. Modir asked him whether he had finished a particular task. The applicant testified he could not remember specifically what the task was. The applicant stated that Mr. Modir then asked him whether he had kept Mr. Saravi informed about the work he had done, to which the applicant replied “yes”. In the applicant’s view, Mr. Modir was trying to find fault with him but was embarrassed when he could not. The applicant also testified that several days later, Mr. Modir started yelling at him in the washroom asking whether he had completed various tasks.
50Mr. Modir denied that Incidents 4-5 occurred.
51I find it more probable than not that some form of incidents 4-5 occurred. I find it more probable than not that Mr. Modir did ask the applicant on different occasions whether he had finished particular tasks and whether he had informed Mr. Saravi about any work that he had completed. Mr. Modir himself testified that, although he did not oversee day-to-day tasks, over time he became concerned about the applicant’s personal internet use, what he saw as the applicant’s failure to meet timelines and the applicant’s failure to keep Mr. Saravi apprised of his progress. Mr. Modir testified that he became increasingly concerned about these issues because Mr. Saravi told him that the applicant was not communicating well with him about assigned tasks. Based on Mr. Modir’s evidence, I find that the main point of contention between him and the applicant was the applicant’s personal internet use which Mr. Modir found to be excessive. At a certain point Mr. Modir began to oversee the applicant’s work as he became concerned by the various performance issues that he and Mr. Saravi had identified. In my view, it is likely that Mr. Modir did question the applicant on different occasions about whether he had completed various tasks.
52Even if I accept the applicant’s evidence as generally accurate, it is unclear what the applicant meant when he used the term “yelling”. When asked to provide an example of the alleged yelling, he spoke harshly in a loud voice. All of the respondent’s witnesses denied that they ever heard Mr. Modir yell at anyone at work. On balance, I think it is more probable than not that Mr. Modir elevated his voice and warned the applicant in a stern and pointed fashion rather than shouting loudly as might be suggested by the term “yelling”. In any event, as noted in the next section, I conclude that it is more probable than not that race was not a factor in the way Mr. Modir treated the applicant.
Analysis of Incidents 2-5
53As noted above, I find that the applicant’s description of the above events is generally accurate except for the omission of certain contextual details. However, I find that his evidence does not support a finding that race was a factor in these incidents. Even if the incidents did occur as described by the applicant, I find it more probable than not that Mr. Modir’s questioning of the applicant was motivated by his concern that the applicant was not properly prioritizing his work and his concern that the applicant was browsing the internet excessively for personal reasons and/or wasting time searching for answers instead of consulting Mr. Saravi as he had been instructed to do. Both Mr. Modir and Mr. Saravi’s testimony support this conclusion. Although the applicant did not agree with Mr. Modir’s concerns, I accept that Mr. Modir had concerns about the applicant’s work performance that he and Mr. Saravi raised with the applicant on several occasions.
54In my view, it is entirely possible that many of the problems between the applicant, on the one hand, and Mr. Modir and Saravi on the other stemmed from difficulties in communicating with each other in English. It is also likely that difficulties stemmed from the applicant’s feeling of isolation because his colleagues would often speak to each other in Persian which often left him feeling isolated.
55However, my task is not to analyse the possible reasons for the various personal dynamics between the applicant, his manager, and his colleagues. My jurisdiction in relation to Incidents 2-5 is to determine whether there is sufficient evidence to support an inference that race was a factor in Mr. Modir’s criticism and treatment of the applicant. Specifically, I must determine whether it is more likely than not that Mr. Modir singled the applicant out for unfair treatment because he was not Iranian-Canadian, as alleged. Using the analysis in Shaw v. Phipps, I find that the respondent has offered an explanation for Mr. Modir’s conduct during these three isolated incidents which is credible on all the evidence. I also find that the explanations offered by the respondent are more probable than an inference that race was a factor in Mr. Modir’s treatment of the applicant. For these reasons, I do not find that the applicant has made out a case of discrimination or harassment in relation to Incidents 2-5 whether considered separately or together as a series of similar incidents.
Applicant’s Meetings with Mr. Modir (Incidents #6-7)
56On the morning of August 25, 2011, Mr. Modir called the applicant into his office to raise concerns about his work performance and the applicant’s use of the internet for personal reasons. Although the applicant’s recollection of the meeting differs in certain respects from Mr. Modir’s account, the main difference between the two lies in their respective interpretations of the reasons and motivations behind what was said at the meeting.
57According to the applicant, Mr. Modir criticized his work performance without justification. He testified that Mr. Modir established a number of work requirements such as reporting to him every hour and bringing any unfinished work home to complete. According to the applicant, he told Mr. Modir he did not agree with him and that what he was saying had “no basis in fact”. The applicant also testified that Mr. Modir told him that he was the manager and whatever he said was right. According to the applicant, Mr. Modir told him that he had to follow Mr. Modir’s way or else he should leave. The applicant stated that this was the reason he started thinking about resignation. He interpreted Mr. Modir’s comments as in essence “forcing” him to resign.
58Mr. Modir testified that he called the applicant into his office because he felt that the applicant’s personal internet browsing was excessive and that it was interfering with his work. He testified that he called the applicant into his office after he saw him browsing on a non-work-related website when he had not finished a task that had been assigned to him. Mr. Modir also stated that he raised other performance issues in the meeting such as the applicant’s failure to consult Mr. Saravi and to inform him when he had finished assigned tasks. According to Mr. Modir, Mr. Saravi had complained about these problems to him on several occasions. Mr. Modir testified that he had raised the same issues with the applicant in a prior meeting before the company moved to a new office in July 2011. Both Mr. Modir and Mr. Saravi acknowledged that some of the difficulties they perceived with the applicant’s work performance might have arisen from problems in communicating in the English language.
59According to Mr. Modir, the key issue of concern he raised in the August 25, 2011 meeting was the applicant’s personal internet browsing, which he perceived to be excessive. Although it is company policy that employees may only use the internet for business purposes, Mr. Modir testified that he had no problem with employees doing some personal browsing so long as it did not interfere with their work. In cross-examination, he was asked whether he ever criticized other employees for browsing the internet. Mr. Modir replied that he only intervenes if he thinks that an employee’s internet browsing is interfering with their work. According to Mr. Modir, once the company moved to its new location, he noticed the applicant’s personal browsing habits more because the applicant’s cubicle was located in front of Mr. Modir’s office. Mr. Modir testified that he felt that the applicant’s personal internet browsing was interfering with his ability to complete his work in a timely manner.
60Mr. Modir testified that he told the applicant in the meeting that his internet browsing was excessive and that he was violating company policy. Mr. Modir testified that he often saw the applicant browsing Chinese websites when he should have been doing his work. According to Mr. Modir, the applicant replied that he was on Chinese sites searching for technical solutions and not browsing for personal reasons. Mr. Modir told the applicant that there was no reason to search Chinese sites since the team programmed in the English language and that there were several English websites that covered the same material. As well, Mr. Modir reminded the applicant that he had been told several times to consult Mr. Saravi if he had any technical problems rather than waste time trying to find solutions on the internet. Mr. Modir testified that he told the applicant there was no point in arguing and that excessive personal internet browsing was against company policy. According to Mr. Modir, he said “I’m your manager and I am letting you know that what you are doing is not acceptable and against company policy. If that bothers you, then it is up to you to decide whether you want to stay or not.”
61When asked in cross-examination whether he agreed that Mr. Modir called him into his office because he saw him on a non-work-related website, the applicant replied “I don’t remember”. When asked in cross-examination whether he remembered that Mr. Modir went over the company internet policy with him, he replied once again “I don’t remember”. When asked whether Mr. Modir told him that employees had to follow company rules and not browse excessively, the applicant replied “I don’t remember”.
62The applicant testified that, after he left Mr. Modir’s office, he thought about what had happened and decided to approach Mr. Modir again in the afternoon. The applicant stated that he stopped by Mr. Modir’s office in the afternoon to ask if he could speak to him again briefly. According to the applicant, he asked Mr. Modir if he had any short comings in his work that he could resolve. The applicant testified that Mr. Modir raised the same issues he raised in the morning meeting and repeated the same work requirements. Mr. Modir did not recall this afternoon meeting.
63Based on all the evidence, I conclude that Mr. Modir had legitimate non-discriminatory reasons to meet with the applicant. I accept that Mr. Modir had various concerns with respect to the applicant’s work performance, the prime one being the applicant’s use of the internet for personal reasons. I accept that Mr. Modir’s concerns related not to the fact that the applicant was browsing the internet for personal reasons, but that this browsing was interfering with his work. He did not “single out” the applicant because he was not Iranian-Canadian. He singled him out because he felt his browsing habits were interfering with his work.
64I find that the respondent has offered an explanation for Mr. Modir’s meeting with the applicant that is credible on all the evidence. I also find that the explanations offered by the respondent are more probable than an inference that race was a factor in Mr. Modir’s meeting with the applicant to address perceived issues with his performance. In light of the evidence at the hearing, I am satisfied that Mr. Modir’s intended message to the applicant was that he should not let his personal internet browsing interfere with his work. For these reasons, the applicant has failed to persuade me that Mr. Modir discriminated against him or violated the Code in any way when he met with him on August 25, 2013. The applicant may have felt under pressure due to Mr. Modir’s criticism but the evidence does not support the applicant’s submission that Mr. Modir singled him out due to his race and in essence forced him to quit.
Meeting with Gold Line’s Chief Financial Officer
65The following day, Friday August 26, 2011, the applicant approached Shala Yazdani, Gold Line’s Chief Financial Officer, to tell her about his meeting with Mr. Modir the day before. The applicant told Ms. Yazdani that he felt like Mr. Modir had treated him differently, unfairly, disrespectfully and impolitely.
66The applicant and Ms. Yazdani had different recollections of the meeting. According to the applicant, Mr. Yazdani said that no one in Canada is treated equally. He stated that she also told him that her temper was not good either and that if Mr. Modir yelled at him it was because he had performance issues. According to the applicant, after his meeting with Ms. Yazdani, he did not see any chance or possibility of resolving the problem. He testified that he saw no signal that Ms. Yazdani would do anything about his complaint.
67The applicant testified that, after thinking about it over the week-end he decided to quit. He said it was not an easy decision because he and his wife had just bought a new house and were feeling a lot of financial pressure as a result. At 9:27 AM on the morning of Monday August 29, 2011, the applicant sent an e-mail to Ms. Yazdani simply stating “I quit.”
68Ms. Yazdani testified that the applicant came by her office and told her that Mr. Modir had yelled at him. According to Ms. Yazdani, she told the applicant that she could believe it and asked him why. Ms. Yazdani stated that the applicant said it was because he was using the internet. When Ms. Yazdani asked whether he had been using the internet for work-related reasons, the applicant said “no”. According to Ms. Yazdani, when she asked why he was browsing a non-work-related site, the applicant said that everyone else did also. Ms. Yazdani testified that she then told the applicant that this did not make it right. She denied saying that in Canada no one is treated equally.
69Ms. Yazdani testified that the applicant thought Mr. Modir would fire him. She said, at this point, she called Mr. Modir but no one answered. She testified that she promised the applicant that she would talk to Mr. Modir and that he would not fire the applicant. Ms. Yazdani said she told the applicant to go back to work but the applicant said he was too nervous. At this point, she told him to go home and relax over the weekend.
70In cross-examination, the applicant denied that Ms. Yazdani had tried to comfort him. When asked whether Ms. Yazdani assured him that he would not be fired over the incident, the applicant said he was “pretty sure she didn’t say that”.
71On the Monday morning after the week-end, Ms. Yazdani received the applicant’s e-mail advising that he was quitting. According to Ms. Yazdani, she called Mr. Modir to ask what had happened. She stated that Mr. Modir told her he had not yelled at the applicant. Mr. Modir said he called the applicant into his office after he went to check on a project that the applicant was supposed to finish and found him on a non-work-related website.
72The applicant has failed to persuade me that Ms. Yazdani discriminated against him or violated the Code in any way. Although in his application, the applicant does not raise any specific allegations against Ms. Yazdani, in the hearing he suggested that she had pre-judged the situation and failed to take appropriate actions in relation to his complaint. Of the two versions of events, I accept Ms. Yazdani’s as more accurately reflecting the entire course of the meeting. I do not question the sincerity of the applicant’s account in the sense that I believe that his account reflects his recollection of the meeting. However, I find that it is more probable than not that his account is only a partial account of what was said and that his recollections of what Ms. Yazdani actually said was filtered by his own understandable feelings of worry and nervousness.
73I accept Ms. Yazdani’s testimony that the applicant told her that he felt Mr. Modir was singling him out for criticism about his personal internet use when he felt that his co-workers also browsed the internet with no repercussions. These are in essence the same allegations he raised in his Application. I find that Ms. Yazdani’s testimony is in harmony with the preponderance of probabilities as it is consistent with Mr. Modir’s testimony about the meeting he had the day before with the applicant in which the key issue was the applicant’s personal internet use which Mr. Modir felt was interfering with his work. I also accept that it is more probable than not that Ms. Yazdani told the applicant that he would not be fired over the incident. Although the applicant said he was “pretty sure” she did not say that, I prefer Ms. Yazdani’s clear testimony that she did in fact say it. It is possible that the applicant did not believe Ms. Yazdani but that is a different issue. I find that it is more probable than not that she did say to the applicant that he would not be fired over the incident.
74Based on Ms. Yazdani’s testimony, which I accept as credible and reliable, I do not find that she did or failed to do anything that would force the applicant to quit. Although the applicant may have felt under pressure because of Mr. Modir’s criticism and he may not have had confidence that Ms. Yazdani would properly address his complaints, I do not find that his decision to quit was anything other than voluntary.
Denial of Salary Increases
75The applicant claimed that the respondent discriminated against him by denying him salary increases during his time with the company.
76The applicant did not receive a salary increase during his employment of just under four years with Totrix. The other two programmers in his team received salary increases during this time period. One of these programmers received two increases in this four year period and the other programmer received one increase. Although he did not receive a salary increase, the applicant’s salary exceeded the salary of one of his co-workers during the full time of his employment with the company.
77The respondent grants salary increases on a discretionary basis depending on a manager’s assessment of an employee’s work performance. There is no formal performance appraisal process and no formal timeframe for considering salary increases. Many employees must wait several years before being granted a salary increase. Several years can also pass in between salary increases. One of the applicant’s co-workers received his first salary increase over four years after he became employed with the company and received his second increase three years later. The other received his salary increase over four years after he became employed by the respondent. He testified that he had requested an increase on two occasions: one request was granted and one was denied. Ms. Yazdani, the respondent’s Chief Financial Officer testified that she has not had a salary increase in 7 years.
78The applicant believes the reason that he was not granted a salary increase is because of his race, and more precisely the fact that he is not Iranian-Canadian. He claimed that the respondent’s failure to grant him a salary increase was due to Mr. Modir’s allegedly unjustified criticism of his work performance. Again, it bears noting that my jurisdiction in this case does not extend to judging whether it was unfair of Mr. Modir not to grant the applicant a salary increase. My jurisdiction is centered on the question of whether race was a factor in Mr. Modir’s decision not to grant the applicant a salary increase. The applicant argued that the differential treatment on this issue is clear: his two colleagues received salary increases in the four year period in question and he did not. The applicant argues that this difference in treatment establishes discrimination.
79Mr. Modir testified that he did not grant the applicant a salary increase because he did not consider that his job performance justified such an increase. According to Mr. Modir, both of the applicant’s co-workers received salary increases because they had been assigned more responsibility than the applicant. One of the applicant’s co-workers is the senior developer for the team and and the other supports 25-30 other employees and is expected to be on call outside working hours. Mr. Modir testified that he did not consider that the applicant had done anything exceptional other than the duties of a programmer that were expected of him. As noted above, Mr. Modir also testified that he thought the applicant had various performance issues in the latter part of his employment with the team. For all of these reasons, Mr. Modir did not consider that the applicant merited a salary increase.
80Based on all the evidence on this issue, I conclude that, on a balance of probabilities, race was not a factor in the respondent’s failure to grant the applicant a salary increase during his employment with the company. It is well accepted that not all differential treatment amounts to discrimination. It is not enough to argue, as the applicant did, that discrimination is established by the fact that his co-workers received salary increases during the four years of his employment and he did not. The evidence was undisputed that salary increases were discretionary and based on merit. Further, it was common for employees not to receive increases until they had worked several years with the company. Although both of the applicant’s co-workers had received increases, these increases were not granted until each had worked four years with the company. Moreover, the evidence showed that, despite not receiving any increases, the applicant’s salary was higher than that one of his co-workers throughout his employment with the company. Based on this evidence, I cannot conclude that race was a factor in the respondent’s failure to grant the applicant a salary increase during his four years with the company.
other General Allegations of differential treatment
81In addition to the numbered incidents in the Application and the applicant’s allegations relating to salary increases, the applicant also raised more general allegations of differential treatment with respect to overtime hours and breaks. At the hearing, the applicant argued that he was treated differently by having to work overtime. He also alleged that the two other programmers on his team would often take longer than the allotted half hour for their lunches without any repercussions.
Overtime
82I find that the applicant was not discriminated against with respect to overtime. The respondent entered into evidence a “User Activity Report” which summarizes the hours the applicant had himself entered on his time sheet. The Report shows that the applicant worked his regular 9 AM-5 PM hours every working day for the time period covered by this Application (February – August 2011). He only deviated from these hours on one occasion and on that occasion he worked from 9:15 AM to 5:15 PM. While the applicant did occasionally work an extra 15 minutes or, at times, 30 minutes prior to February 2011, there is absolutely no overtime recorded on the Report during the time period covered by this Application.
83The applicant agreed that the Report accurately reflected the hours he had worked. That is, he agreed that all of the hours he actually worked were recorded on the Report. Despite being shown the Report, the applicant nevertheless maintained that he had worked overtime and that he had been treated unfairly in relation to his overtime work. I find that the applicant’s insistence that he had worked overtime was exaggerated and misleading in light of the hours contained in the Report. While it may be accurate to say that he had worked over time in the past, it was completely inaccurate to suggest that he had worked over time in the period covered by this Application. Moreover, the applicant advanced no evidence to support a claim of discrimination relating to past overtime.
Lunch Breaks
84With respect to the issue of lunch breaks, I do not find that the evidence demonstrates discriminatory treatment as between the applicant and his colleagues. Mr. Modir testified that his approach to lunch breaks was similar to his approach to personal internet use. He had no problem with employees taking longer lunch breaks so long as it did not interfere with their ability to complete their work on time and in a satisfactory manner. The applicant did not allege that Mr. Modir ever criticized him unfairly with respect to lunch breaks. His claim was that Mr. Modir should have reproached his colleagues for taking longer breaks than was permitted under company policy. I accept Mr. Modir’s testimony that the key issue for him was whether the length of employee lunch breaks interfered with their work performance. He testified that he had no concerns about the ability of the applicant’s co-workers to complete their assigned work. I accept this as a reasonable explanation for why he did not criticize the applicant’s colleagues if he was aware of that they sometimes exceeded their allotted time for lunch.
Conclusions
85In her closing submissions, the applicant’s daughter who represented him for part of the hearing, made the point that racial discrimination is often subtle rather than overt. She submitted that the applicant had provided sufficient evidence to draw an inference of discrimination in this case. I fully accept that racial bias does not necessarily manifest itself through overt comments or actions. Discerning racial discrimination or harassment can be a highly contextualized exercise. Such discrimination or harassment can manifest itself in subtle ways and can emanate from learned attitudes and unconscious bias in some cases.
86That said, in accordance with the established principles applicable to circumstantial evidence cases, the applicant still must bring forward evidence sufficient to establish racial discrimination on a balance of probabilities. I am not satisfied that the applicant has established discrimination based upon the evidence before me. To establish discrimination, it is not sufficient to show that the applicant is of a different racial/ethnic origin than his supervisor and co-workers. It is also not sufficient to show that his work performance was criticized or that he was not granted salary increases. There must be something more that is sufficient to connect or link the applicant’s race to this conduct. For all the reasons set out above, I find that the applicant has failed to make out his allegations of discrimination and/or harassment because of race.
ORDER
87The Application is dismissed.
Dated at Toronto, this 28th day of November, 2013.
“signed by”
Jo-Anne Pickel
Vice-chair