Brathwaite v. Komenda Contracting Corporation, 2013 HRTO 1979

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Brathwaite

Applicant

-and-

Komenda Contracting Corporation

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: November 29, 2013

Citation: 2013 HRTO 1979

Indexed as: Brathwaite v. Komenda Contracting Corporation

APPEARANCES

Mark Brathwaite, Applicant

Michael Hancock, Counsel

Komenda Contracting Corporation, Respondent

Magda Kaczmarek, Representative

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and colour.

2Mr. Komenda is the owner of the respondent. Victoria Brodowski, Mr. Komenda’s wife, was a friend of the applicant. When the applicant needed work, the respondent hired the applicant to do insulation of pipes and ductwork on a job site at the Four Seasons Hotel and Residences (“the job site”).

3The applicant worked for the respondent beginning in April, 2011. He was not a member of the union at the time he was hired but became a member at some point during his employment. His employment with the respondent ended in April, 2012 when the respondent had no further work for him.

4The applicant alleges that during his employment, Mr. Komenda made two derogatory comments in relation to the applicant’s race and colour. In September, 2011, Mr. Komenda allegedly said on the job site in the presence of the applicant and another employee that black people dance like monkeys. In mid-October, 2011, Mr. Komenda allegedly said to the applicant that he was leaving holes in his work like his big black asshole and that he was so lazy, just like all those other black people sitting at home on welfare. Mr. Komenda denies he made these comments.

hearing

5The hearing took place on October 7, 2013. The applicant and Mr. Komenda gave evidence and were cross-examined.

legal principles

6The relevant provisions of the Code are set out as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of […] race […and...] colour […]

5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of […]race […and...] colour […].

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

application to the facts

Credibility

7There was much disagreement between the applicant and Mr. Komenda about all the facts in this case. A resolution of the factual differences in this matter is central to my decision. Where there was disagreement, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:

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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

8The applicant’s evidence was consistent, specific, credible and detailed. Mr. Komenda’s evidence was vague and evasive and contained inconsistencies as discussed below. Mr. Komenda often did not answer questions, and while his representative opined that it was because English is his second language, Mr. Komenda’s English was easily understood. He did not ask that the Tribunal provide him with an interpreter for the hearing even though the “Guide to Preparing for a Hearing Before the HRTO” states that the Tribunal will provide interpretation services. I find that Mr. Komenda’s inability to answer questions with specificity was not related to any problems with the English language.

9The applicant alleges that he, Mr. Komenda and another employee, “Jay”, took meal breaks together at the job site in a shack on level P1 of the parking garage. During those breaks, they would discuss things in the newspaper, their lives and television shows. Mr. Komenda gave three different versions of his interactions with the applicant at meal breaks, as follows:

a. He first said he would sit at the shack with the applicant and Jay to eat his lunch;

b. He then said he would only use the shack as a place to write things down and order materials and would not speak to Jay and the applicant because he was too busy; and

c. Finally he said he would only from time to time talk to the applicant and Jay.

10Mr. Komenda’s evidence about how much time he spent with the applicant and Jay on meal breaks, as well as his evidence about his English skills, was evasive and contradictory. When he was asked directly if he ever spoke to the applicant on a meal break about non-work-related things, Mr. Komenda responded by first asking why he should do such a thing; then asking why the applicant’s counsel was trying to “catch” him; and finally saying that it was hard to remember.

11Although Mr. Komenda gave evidence that one of the reasons he did not speak to Jay and the applicant much at meal breaks was because his English was not very good, he also testified that he would listen to what they were saying and alleges he was able to recall that they were talking about girls and “weed” and where to find it. This evidence is contradictory in that Mr. Komenda simultaneously alleged he did not understand much English and yet was able to provide details of the conversations that Jay and the applicant allegedly had. I do not accept Mr. Komenda’s evidence about his English language skills, and overall I prefer the evidence of the applicant.

The Incidents

12The applicant alleges that on a meal breaks in September, 2011, Mr. Komenda commented that black people dance like monkeys. The applicant told Mr. Komenda he could not say such things and that it was a racial slur. In addition, he asked Jay to tell Mr. Komenda the same thing in Polish so that there was no misunderstanding. Despite both the applicant and Jay telling him that his comment was a racial slur and he should not say it, the applicant testified that Mr. Komenda insisted that such a comment would not offend a “person of colour”. The applicant testified that he felt badly about the comment because he likes to dance and it made him wonder if Mr. Komenda thought he was a monkey.

13The applicant alleges the second derogatory comment was made in mid-October, 2011, when the applicant and Mr. Komenda were inspecting the applicant’s work and Mr. Komenda was not happy with it. The applicant alleged that Mr. Komenda said to him that his work was “shit” and he was leaving “holes in it like your big black asshole”. The applicant wanted to avoid a confrontation but told Mr. Komenda he could not talk to him or others like that. He says Mr. Komenda responded that the applicant was “so fucking lazy, like all those black people sitting at home on welfare”.

14The applicant stepped away and told Mr. Komenda that he could get in trouble from human rights for saying such a thing. He says Mr. Komenda responded that the government did not have time for the applicant’s small complaints. Mr. Komenda’s comments made the applicant feel unworthy and as if he was being talked down to.

15I accept the applicant’s evidence that he did not report either of these incidents to anyone at the time because he was afraid he may be blacklisted through the Union. He explained that in this business, one can be “name hired” by a company, which means a company can ask to hire a particular worker. The applicant did not want to risk the respondent badmouthing him so that he would not be hired, an explanation I find reasonable and which I accept.

16The applicant called Mr. Komenda’s wife, Ms. Brodowski, after Mr. Komenda made the second comment because it was the second time Mr. Komenda had made a racial slur. He asked Ms. Brodowski to tell Mr. Komenda that he should not say such things, calling her because she was the only other person he knew who could explain this to Mr. Komenda in Polish so that there would be no chance he would not understand what the applicant had said to him.

17Mr. Komenda in the Response baldly denied making either comment, but offered no explanation or support for this position. At the hearing for the first time, Mr. Komenda gave varying theories for why the applicant made the allegations if they were not true. He alleged variously:

1. that because the applicant and Ms. Brodowski were friends, the applicant and she made up the allegations because they were trying to get back at Mr. Komenda when the marriage of Mr. Komenda and Ms. Brodowski ended;

2. that once the applicant became a Union member, he felt very powerful and would threaten Mr. Komenda that if he did anything he did not like, the applicant would call the Union on him because Mr. Komenda was using non-Union workers on the job site; and

3. that the applicant liked to spend money and found a way to get money by making these allegations.

I do not accept Mr. Komenda’s theories for why the applicant may have fabricated these allegations.

18With respect to the first theory, the applicant testified that he and Ms. Brodowski have not been friends since the applicant called her near the time that taxes were due in 2012 in an attempt to pressure Mr. Komenda to file required documents because Mr. Komenda had not yet done so. Ms. Brodowski told the applicant she was tired of people calling her to discuss Mr. Komenda and she wanted nothing more to do with it. In response, the applicant asked Ms. Brodowski about their friendship, and in his words, he got “dead air”. The applicant interpreted this to mean that she no longer wanted to be friends, and from that point onwards, they have not been friendly. The applicant filed this Application on September 4, 2012, several months after this conversation.

19During the course of his testimony, Mr. Komenda revised his theory by suggesting that the allegation about racist comments was concocted by not just Ms. Brodowski and the applicant as he first alleged, but also by Jay. There is no credible evidence to support this theory. Mr. Komenda’s oral evidence appeared to be an attempt to embellish his original theory that the applicant and Ms. Brodowski concocted the story. In addition, Mr. Komenda’s evidence overall was inconsistent and therefore unreliable.

20With respect to Mr. Komenda’s second theory, the respondent contradicted himself when he denied on cross-examination that the applicant had made up the allegations because he was upset about Mr. Komenda’s use of non-Union employees, even though he theorized that this was a reason the applicant may have made up the allegations in this Application.

21In any event, it is common ground that the applicant did not report Mr. Komenda to the Union, despite the applicant knowing that Mr. Komenda was using non-Union workers at the job site, and subsequently discovering that Mr. Komenda was using him as a guard to warn him if anyone from the Union showed up. I find it unlikely that the applicant would use the indirect route of filing an Application to this Tribunal on unrelated grounds rather than addressing this directly with the Union if, in fact, this was his real reason for being angry at Mr. Komenda.

22Moreover, in the context of trying to explain his theory, Mr. Komenda testified that once the applicant found out he was being used as a guard, his work went downhill. This would have been at approximately the same time as the second comment was made. It also is consistent with the tenor of the applicant’s allegation that Mr. Komenda was criticizing his work and in the process stated that black people were lazy.

23With respect to Mr. Komenda’s third theory that the applicant brought this Application because he loved spending money, this is simply a bald allegation and the respondent provided no evidence to support this.

24Finally, Mr. Komenda also denied that he made the second comment because the applicant alleged it occurred when he was inspecting the applicant’s work with him, which Mr. Komenda denied doing even though the applicant was a second-year apprentice and Mr. Komenda testified that he ultimately was responsible for the work done on the site and normally would inspect all work to make sure it was done properly. I do not accept Mr. Komenda’s evidence that he did not inspect the applicant’s work with him as he was required to do so given that the applicant was an apprentice. I conclude therefore that Mr. Komenda’s evidence and his denial of making the second comment is not credible.

25In addition to my findings with respect to the credibility of the respondent’s theories, I also find that the applicant’s evidence is preferable because he provided a level of detail consistent with the events having occurred as he said they did. He was very specific about when and where he and Mr. Komenda were when the comments were made.

26On a balance of probabilities and for the reasons set out, above, I find that the respondent made the discriminatory comments to the applicant.

remedy

27The applicant in his Application requested damages totalling $15,000.00, including wage loss, compensation for monies the applicant had to borrow while not working, and damages for injury to dignity, feelings and self-respect. At the hearing, the applicant asked for $15,000 solely for damages to his injury to dignity, feelings and self-respect.

28Section 45.2 of the Code states:

On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. 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.

2. 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.

3. 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.

29As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory act. See: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC) at para. 150 (“Lane”).

30In Lane, the Divisional Court states at para. 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

31There is no fixed formula for the Tribunal to follow to assess a monetary compensation award. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated at paras. 51-54:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

…The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination…

The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. […] The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

32In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed a number of factors to consider when awarding damages, including:

• 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.

33The applicant testified that he had significant difficulties getting paperwork from the respondent after leaving his employment, but he gave no evidence that this had anything to do with the racist comments, and I find no connection. The applicant remained an employee of the respondent for many months after the comments were made and only left when there was no more work, at which point he went to another company for a short period of time.

34The applicant also testified that when he ended up having to take out a rent bank loan as well as borrow money from friends and family and ended up ultimately on Ontario Works, it conjured up all the negative feelings he felt when Mr. Komenda had said he was lazy like all the other black people who were at home collecting welfare. He further testified he did not feel like a good member of society. He felt depressed and low. While I find the financial events were not caused by Mr. Komenda, he bears some responsibility for the applicant’s resulting feelings. Because the applicant had been subjected to the racist comments made by Mr. Komenda, his feelings of self-worth suffered because he felt that he had become the stereotype that Mr. Komenda said he was.

35In determining the general damages amount, I have considered the cases submitted by the applicant. In Pleasant v. Mainline Manufacturing & Installing Inc., 2005 HRTO 34, the Tribunal awarded $7,000 for one racist comment made to the applicant in an employment situation. In Direk v. Coffee Time Donuts, 2009 HRTO 1887, the Tribunal awarded $15,000 for repeated discriminatory treatment in the context of services and in relation to which the police were called on the applicant by the respondent. In Longboat v. 708179 Ontario Inc., 2012 HRTO 2170, the Tribunal awarded $15,000 for a racist comment followed by a racist letter in which there was obvious stereotyping by the respondent.

36I find this situation to warrant an award higher than in Pleasant v. Mainline Manufacturing & Installing Inc., above, because there were two comments, the first of which was made in front of another employee by their employer. The second was made despite the fact that the applicant complained to Mr. Komenda about the first and told him he could not make such comments. When Mr. Komenda made the second comment, which was worse than the first, and the applicant told him he could get into trouble from human rights for making such a comment, Mr. Komenda responded by saying that they would have no time for such a small complaint. Mr. Komenda showed no sign that he understood the import of his racist comments and simply dismissed the applicant’s concerns.

37I find that $15,000 is appropriate in the circumstances because while there were two comments made and this was not repeated discriminatory treatment as in Direk, above I find it as serious as Longboat, above, because of the stereotyping in Mr. Komenda’s second comment, the progressive worsening nature of the comments and Mr. Komenda’s dismissal of the applicant’s voiced concerns.

order

38The Tribunal makes the following orders:

a. The respondent shall to the applicant the sum of $15,000 as compensation for the infringement of the Code and the injury to his dignity, feelings and self-respect;

b. The respondent shall pay pre-judgment interest on this amount payable calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, from September 4, 2012;

c. The respondent shall pay post-judgment interest from the date of this Decision in accordance with section 129 of the Courts of Justice Act, if the above amounts are not paid to the applicant within 30 days of the date of this Decision.