HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda Garrell Applicant
-and-
Spicer’s Bakery of Aylmer Ltd. Respondent
DECISION
Adjudicator: Jay Sengupta Date: May 2, 2013 Citation: 2013 HRTO 734 Indexed as: Garrell v. Spicer’s Bakery of Aylmer Ltd.
APPEARANCES
Linda Garrell, Applicant Bay Ryley, Counsel
Spicer’s Bakery of Aylmer Ltd., Respondent Dana Haklander, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment. In the original Application, the applicant based her Application on the grounds of race, colour, marital status and family status.
2At the hearing, counsel for the applicant sought to add the ground of association with a person identified by a Code ground. Although the respondent registered an objection, I granted the applicant’s request as, in my view, there was no prejudice to the respondent. The applicant was not proposing to add new allegations; she was simply clarifying the theoretical basis for the claim of discrimination being advanced.
3The applicant is a former employee of the respondent business. She alleges that she experienced discriminatory conduct during the course of her employment in having racial slurs directed at her husband, Alan Garrell, during an office Christmas party. She also alleges that her employment was terminated because of her association with her husband who is black.
4Steve Nakonecznyj is the owner and director of the respondent business. Tracy Nakonecznyj, his wife, is a manager at the bakery. The respondent denies all allegations of discriminatory conduct and says it has a non-discriminatory reason for the termination.
5During the course of the hearing, I heard from the applicant and her husband, Alan Garrell. I then heard from both Steve Nakonecznyj and Tracy Nakonecznyj. The applicant and Alan Garrell also provided reply evidence.
6Following the hearing, counsel for the parties provided the Tribunal with written submissions.
7For the reasons that follow, this Application is dismissed.
THE LAW
8The relevant sections of the Code are as follows:
5(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
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, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
THE EVIDENCE
9The respondent business operates two bakeries, one in Port Stanley and the other in Aylmer. The applicant worked at the Port Stanley location of the respondent business as counter staff from October 6, 2009 through to July 11, 2011. She was hired by Tracy Nakonecznyj.
10Although the applicant’s husband, Alan Garrell, indicated in his witness statement that he had met Tracy Nakonecznyj at some point between October and December of 2009, when testifying at the hearing, he said he had not.
11The respondent held their 2009 Christmas party in a bowling alley in Aylmer. The applicant and her husband attended and took her co-worker Kathy with them. The allegation of racial slurs being directed against Alan Garrell allegedly occurred at this event.
12Alan Garrell testified that he said hello to Steve Nakonecznyj and he refused to shake his hand, something Alan found insulting.
13The respondent’s witnesses tell a different story about what transpired during the Christmas party.
14Both Tracy Nakonecznyj and Steve Nakonecznyj say that the 2009 Christmas party was held in January 2010. Steve Nakonecznyj says that he invited 28 or 29 employee most of whom brought spouses along. He also invited a dozen or so clients. He was expecting up to 75 people. He was meeting a lot of the people coming to the party for the first time.
15He says he had just had knee surgery so he was not bowling that evening but rather, sitting and talking to people. He does not recall meeting Alan other than to recall that he remembers his laugh as it is memorable. He is certain he would not have refused to shake his hand.
16During that party, the applicant says she heard the owner’s son, Greg Nakonecznyj, and two other employees make racial slurs that she assumed were directed at her husband since he was the only black person in the bowling alley. She says they were using word like “rastaclot” and “bumbaclot” that she knew to be insulting terms not used in public and were making gestures and waving their arms.
17The people in question were about four lanes over from where the applicant, her husband and their friends were sitting. In between them was a large table with the owner, his family and some friends.
18The applicant says she told her husband what she had heard and then he heard the racial slurs too. She was shocked and wanted to leave so she went over to where Tracy and Steve Nakonecznyj were sitting and said they were leaving. She did not say why they were leaving and they left 10 minutes later, taking Kathy along with them.
19Alan Garrell also testified that after the applicant had spoken to them, he went over to where the Nakonecznyjs were and told Steve Nakonecznyj that his kids were “acting irresponsibly and making racial slurs” and asked him what he was going to do about it. He says that Steve Nakonecznyj did not respond to him at all and just turned away from him.
20He and his wife and her friend left 5 minutes later. In the car, Kathy, the friend and co-worker asked what the problem was as she had apparently not heard the slurs.
21Steve and Tracy Nakonecznyj testified that it was loud that evening and neither of them heard any racial slurs being uttered. They say that they were not focussed on the applicant and her husband given the number of guests they were entertaining that evening. They agree that the applicant did not say anything to them about racist language being used. They deny that Alan Garrell said anything of that nature to them either.
22The applicant testified that after the Christmas party, although she saw Tracy Nakonecznyj regularly, she did not raise the issue with her. She says that the couple’s son, Greg, did apologize to her sometime in the new year.
23At some point in the new year, the applicant and Alan Garrell were in Aylmer and they visited the other location of the bakery. She spoke to Tracy Nakonecznyj about Alan working as a delivery driver for the respondent business. Alan Garrell told Tracy Nakonecznyj that although he had a seasonal job in the summers, he would be willing to give it up for the delivery job. He also told her that he had the appropriate “B” class license.
24After that they heard nothing further from Tracy Nakonecznyj. The applicant says she followed up with her seven or eight times and assumed that Alan’s race or colour had something to do with them not hiring him. Other drivers came and went as there was a lot of turnover in the position and the job was filled several times during the next year. But Alan never got a job driving for the respondent company.
25The applicant and Alan Garrell were asked why they would go to the Aylmer store given what had happened at the Christmas party and why Alan would campaign to work at a job which would bring him into regular contact with Steve Nakonecznyj, who Alan Garrell said had refused to shake his hand and turned away from him when he complained to him about an overt racist behaviour taking place at his company party. The applicant responded that said she just wanted to see how the Aylmer store displays were set up and Alan Garrell said he believes in second chances.
26The applicant and her husband assumed that he was never considered for the driving/delivery job because he is black. In support of that view, the applicant gave evidence that she never saw anyone working for the company that was, in her words, “ethnic”. However, they acknowledge that Alan Garrell never formally applied for a particular job and other than talking to Tracy Nakonecznyj on that one occasion, he left it to his wife to follow up with Tracy Nakonecznyj.
27Tracy Nakonecznyj denies that there has been a lot of turnover in the delivery driver job. She does recall that Alan Garrell was interested in the delivery job and discussing it with her husband. However, their concern was that he had a seasonal job that he would go back to after they had trained him. She fills in herself for workers when they need to be off or when there is turnover so that is a concern for her. She also trains the drivers, which is time consuming.
28Approximately one year later in early 2011, the applicant began talking to Tracy Nakonecznyj about Jamie, the manager at the Port Stanley store, leaving and her taking on some of his duties. When he left, her duties increased and she took on interviewing, scheduling, ordering of supplies and assisting Tracy Nakonecznyj, as required.
29The applicant then described an incident on a particular Friday morning in July, 2011 when she and Alan Garrell ran into Steve Nakonecznyj when she went to open up the Port Stanley store. The applicant and Alan Garrell both describe the encounter as one during which Alan Garrell said good morning to Steve Nakonecznyj twice and Steve Nakonecznyj ignored him. The applicant says that Steve Nakonecznyj then spoke to her briefly about work related matters and left.
30The following Monday morning, Tracy Nakonecznyj came to the store, left briefly and returned to ask the applicant to turn in her keys and terminate her employment. She said Tracy Nakonecznyj told her that she was being let go because they felt that she was not doing her duties well enough and they found her lacking in competence.
31The applicant says she was devastated and embarrassed that she had lost her job. Her husband describes the experience as being like watching a flower die. Their family had relied on that income and were left trying to cope without it.
32I also heard a great deal of evidence concerning the applicant’s attempts to find other work and how the loss of her job affected her. However, given my decision on the merits of the Application, I have not reproduced much of it.
33Tracy Nakonecznyj said that the applicant started as a part time worker. Her job was making coffee, stocking the shelves and serving customers. She did a good job and received a raise. When the manager left and the applicant began taking over some of his duties, there were problems with her performance.
34Tracy Nakonecznyj felt the applicant was not reliable. She says she left the store early without notifying Tracy Nakonecznyj. On one occasion, about a month before the termination she left without notification to the owner or manager and left a new and relatively untrained student employee on her own. She thinks it was to deal with an issue involving her son. While she understands the applicant’s reasons for leaving, she was concerned that a young student was left on her own in the store and the applicant did not tell her that she was leaving.
35While doing deliveries, Tracy Nakonecznyj said that she noticed that the applicant was not getting her work done in a timely way. She gave evidence that the applicant was not ordering the supplies correctly and, in the busy months, starting in May, refused to stay longer or over the lunch hour when needed. Even when the applicant was being asked to stay longer, she was leaving early.
36Tracy Nakonecznyj says that while she discussed it with Steve Nakonecznyj, it was her decision to terminate the applicant’s employment. Steve Nakonecznyj says he does the baking and works at night. He has minimal contact with the people working in the front of the bakery, serving customers, so leaves the hiring and firing decisions about them to Tracy Nakonecznyj.
37His evidence about the last occasion when he met the applicant and her husband on the Friday before her employment was terminated is that he had to do the deliveries that morning. He did them, then took a Coke and went to the pier. He went back to deal with the unlocked door at the store and left. He testified that although he loves baking, after a 12 hour shift he is tired and may not have a lot of patience.
38He denies any racist behaviour. He says that before opening up this business, he worked for a large corporation with a diverse workforce of engineers, programmers and database specialists. He was involved in hiring decisions involving people from diverse racial and ethnic backgrounds from all over the world.
DECISION
39Discrimination is not defined in the Code, but has been the subject of much judicial consideration. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, in discussing the meaning of discrimination under the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada stated:
…discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classified.
40Subsequent decisions of the Supreme Court of Canada have gone on to say that discrimination under both the Code and the Charter require the applicant to establish a distinction on a prohibited ground to a member of a protected group that creates a disadvantage by perpetuating disadvantage or prejudice, or by stereotyping. See: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, R. v. Kapp, 2008 SCC 41 and Withler v. Canada (Attorney General), 2011 SCC 12.
41While I have heard a great deal of information about incidents concerning and involving Alan Garrell, the applicant in this matter is Linda Garrell. The incidents involving her husband are relevant only insofar as they related to allegations of discrimination against her based on her marital status and her association with him.
42The applicant argues that the termination of her employment took place because of the race and colour of her husband. She asserts that because Alan Garrell is black, she was let go. In support of this proposition, she points to four specific incidents - the racist comments she says were made during the 2009 Christmas party, the failure of the respondent business to hire Alan Garrell as a delivery driver and Steve Nakonecznyj’s failure to shake her husband’s hand in 2009 at the party and his failure to acknowledge his greeting in 2011, at the store on the Friday before she was terminated.
43The applicant argues that there were no written warnings concerning substandard work performance and no progressive discipline meted out to her in advance of the termination. She argues that the only inference to be drawn is that the reasons offered by the respondent for the termination are not supported by any genuine concern about her performance or lack thereof.
44She also argues that the pattern of Steve Nakonecznyj’s unwelcoming, rude and unfriendly behaviour, the failure to give her husband the job he asked about and the racist comments made in 2009 should lead me to the conclusion that her husband’s race and colour were, at the very least, a reason for the termination of her employment.
45Both parties suggested that I suggested that I should draw an adverse inference against the other for their respective failures to call Greg Nakonecznyj as a witness in these proceedings. The applicant argues that the respondent company should have called him if it was their position that racist comments were not made. The respondent company argues that neither party has ownership of a witness and that if the evidence he could have given was critical to the applicant’s case, she could have called him to give evidence.
46In my view, the presence or absence of Greg Nakonecznyj is not critical. The question that I must answer about the Christmas party incident is whether I am satisfied that Steve Nakonecznyj behaved in a hostile or dismissive way towards the applicant’s husband by refusing to shake his hand and by turning away from him when he told him about the racist behaviour of his son and other employees.
47The applicant’s evidence was that her husband had not initially heard or seen the alleged slurs being uttered. She had to tell her husband what was being said before he realized what was happening. Also, their friend Kathy was not aware of anything untoward having happened, despite having been there with them. Assuming without finding that I accept that racist slurs were being used, it is quite possible that Steve Nakonecznyj and Tracy Nakonecznyj, as hosts of the event, with many friends around them had, like Alan Garrell initially and Kathy, not heard them.
48The applicant says she told them nothing about what she had heard and she did not, herself, hear her husband telling the owner and his wife about what they had heard. She also says that she said nothing further to them about this incident in the following year and a half.
49I accept the version of events presented to me by the respondent witnesses about whether Alan Garrell told Steve Nakonecznyj about racist behaviour on that evening.
50If the issue had been raised by Alan Garrell and simply not been acknowledged or dealt with, I find it difficult to accept that the applicant and her husband would never have raised the issue at some point in the following year and a half, particularly since the applicant says she got along well with Tracy Nakonecznyj.
51I would also not expect that the applicant and her husband would have approached the respondent about working in a job within their business that would have put him into daily contact with Steve Nakonecznyj a few months later. This would be particularly true if Alan Garrell had asked him to deal with an unpleasant racist incident and he had refused to either acknowledge him or respond to him.
52For the above reasons, I find that Alan Garrell did not tell the owner, Steve Nakonecznyj, or his wife, Tracy, who was also the applicant’s manager, about having heard racist language during the party. Not having been informed of such an allegation, the respondent cannot have been expected to take steps to address it.
53The applicant’s main argument is that her association with and marriage to a black man was a reason for the termination. It is an extremely difficult argument to accept given the facts in this Application.
54The applicant was hired in October, 2009. Either before or during the Christmas break, the owner and his wife were aware of her husband’s race and colour. There is no indication that there were any difficulties between the parties in 2010.
55To the contrary, the applicant and her husband went to the main location of the business, contacted Tracy Nakonecznyj and tried to have him to go work for the respondent business.
56Further, at some point in 2010 or 2011, the applicant was given a pay raise. No disadvantage appears to have resulted to the applicant from her association with her husband, a connection that everyone acknowledges was known by Christmas 2009.
57The applicant has failed to persuade me, on balance, that her husband’s race or colour, her association with him or her marital status were factors in the respondent’s decision to terminate her employment.
58Alternatively, or perhaps in addition to the above, the applicant argues that the termination amounts to a breach of her rights on the ground of family status.
59She points to the respondent’s position that one of the reasons for her termination is she left the store in the care of a student employee to “deal with her son”. She argues that this supports her position that she experienced discrimination on the basis of family status as the respondent has not established that it would have constituted undue hardship to accommodate the applicant’s need to take time off to care for her family member.
60However, I note that the applicant testified that the two incidents are unconnected. While she acknowledged occasionally having left early, she said the only occasion she left to deal with family matters relating to her son were before taking on extra responsibilities at work in April, 2011, while the old manager was still on the job.
61Tracy Nakonecznyj’s testimony on this point was not focused on why the applicant had left, acknowledging that she understands people will sometimes need to leave to deal with issues relating to their children, but rather on the fact that the applicant had failed to notify her that she was leaving the store.
62Given the fact that the applicant says that the occasion on which Tracy Nakonecznyj discovered the student employee on her own was unconnected to her family responsibilities, I cannot see the link to the ground of family status under the Code.
63Accordingly, the Application is dismissed.
Dated at Toronto, this 2nd day of May, 2013
”signed by”
Jay Sengupta Vice-chair