Kalia v. KV Custom Windows & Doors, 2013 HRTO 772

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neel Kalia Applicant

-and-

KV Custom Windows & Doors aka MAAS Door Systems Inc. and Ben C Respondents

DECISION

Adjudicator: Mary Truemner Date: May 9, 2013 Citation: 2013 HRTO 772 Indexed as: Kalia v. KV Custom Windows & Doors

APPEARANCES

Neel Kalia, Applicant Self-represented

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), specifically alleging discrimination in employment on the basis of race, colour, place of origin and age. I note that reprisal and discrimination on the basis of creed were not specifically indicated in the Application, but given the description of events in the Application, it is clear that the Application also alleges reprisal and discrimination because of creed. The same address, the address of the corporate respondent, was provided by the applicant for the corporate and personal respondents, and the Tribunal delivered the Application to them at that address.

2The Application form itself contains little narrative, but indicates that the reasons for the allegations are contained in the attachments to the Application form. The attachments include descriptions in letter format to unknown recipients of what happened, and email chains between the applicant and staff of an organization for newcomers to Canada called “India Rainbow”, and between the applicant and the Ministry of Labour. There is also an email from the applicant to a union steward in a workplace allegedly owned by a company related to the corporate respondent. The emails are dated during the months that the applicant worked with the respondents.

3The respondents have not participated in the proceedings since the Application was delivered to them by the Tribunal at the corporate respondent’s address indicated on the Application. The applicant was never able to ascertain the last name of the personal respondent or his home address.

4In an Interim Decision, 2012 HRTO 113, the Tribunal determined that the corporate respondent received notice of the Application and also received the Tribunal’s direction to file its Response. In the Interim Decision, the Tribunal determined that the corporate respondent refuses or chooses not to participate in these proceedings. The Tribunal therefore deemed the corporate respondent to have accepted all of the allegations set out in the Application, and to have waived all rights to notice or participation in these proceedings. Nonetheless, the Tribunal sent to the corporate respondent notice of the hearing of the Application.

THE HEARING

5The respondents did not appear at the hearing. At the hearing, the applicant claimed that he was reprised against and harassed because of his race, colour, creed and place of origin, but withdrew his allegation of discrimination because of age. The applicant testified, adding details to the allegations made in his Application, and he confirmed that he is South Asian, from India, and Hindi. The following points summarize his uncontested evidence and help to clarify his Application, including the attachments to the Application, which was made an exhibit at the hearing:

• The applicant commenced employment with the respondent, a door manufacturer, as a production worker. After a brief training period with another employee tagging door frames, his supervisor, “Mario”, sent him in June 2010 to help “Ben C” cut doors and learn from Ben C about how to do it. Ben C was not a supervisor and he did not play a supervisory role with respect to the applicant. He was supposed to work with the applicant and help him to learn how to cut doors.
• The applicant confirmed that “C” is not the proper last name of the personal respondent, but probably the first initial of the personal respondent’s last name. He was not sure.
• Ben called the applicant a “fucking Indian guy” days after they met.
• Ben continued to harass the applicant, calling him “donkey” and telling him that he was doing a bad job. Ben teased the applicant about being a general labourer now that the applicant was in Canada even though the applicant had a master’s degree from India. Ben wondered out loud about how the applicant could have passed his exams in India because he was doing such a bad job as a labourer.
• Several times, Ben told the applicant that “foul smells” were coming from his body that white people would not like, and he bought the applicant soap.
• Ben knew the applicant did not eat meat because of his religion, and told the applicant that he should eat meat in order to give him more strength.
• At the end of the summer, when the applicant’s supervisor, Mario, was giving a lift to the applicant in his car, Mario told the applicant that he knew that Ben was not a good trainer. Mario asked the applicant how he was getting along with Ben, and the applicant told Mario, “Ben C is a nice person,” because the applicant was afraid to tell the truth in case he might lose his job for criticizing someone that some of his co-workers had said was very valuable to the company because it appears that he was best at operating the machine that cut doors.
• Sometime in the Fall, Ben stopped talking to the applicant when Ben learned that the applicant had inquired about harassment with the Ministry of Labour. Ben would not help the applicant, and no longer trained him properly. He would tell the applicant, “Go ask your supervisor.”
• Around this time, the applicant told Mario that Ben was not a nice person and was not providing proper training. The applicant admits that he did not mention to Mario anything about human rights or tell Mario that Ben’s behaviour was related to his race, creed, colour or place of origin. Mario told the applicant that he would nevertheless have to remain working with Ben, but Mario spoke to Ben, and it appears that Ben’s behaviour toward the applicant improved afterwards because an email from the applicant to staff at India Rainbow dated November 7, 2010, attached to the Application, states, “Thanks for your reply and guidance. I talked to my supervisor and he talked to the person. It seems the matter is solved. If there is any problem in future then I will let you know.” There were no further emails with India Rainbow.
• December 17, 2010 was the last time that the applicant worked in the factory which was closing for holidays. He understood that once the factory opened again in January, he would resume working. On January 10, 2011, when the factory reopened, the respondent told the applicant that he had been laid off, and the applicant has not worked for the respondent since. Other employees were also laid off.

6The applicant is seeking $500,000 in damages for the alleged harassment and termination of his employment.

ANALYSIS

Harassment Allegation

7Subsection 5(2) of the Code provides:

(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, age, record of offences, marital status, family status or disability.

8In the context of no evidence to the contrary, I find that the hurtful comments alleged to have been made by Ben to the applicant were made. There is no doubt in my mind that Ben’s comments were vexatious, and that they were known or ought to have been known to be unwelcome. Those comments constitute harassment and violate subsection 5(2) of the Code; however, “C” is not the real surname of the person who worked with the applicant. At best, it is an initial. Without the real name of the harasser whose first name is Ben, the Tribunal was not able to deliver the Application to him, or deem him to have received the Application. For this reason, I cannot make an order against him, and I cannot make an order against someone named Ben C when the applicant has admitted that Ben C is not the real name of the harasser. The Application is therefore dismissed against Ben C.

9The next question is whether the corporate respondent can be found liable for the harassment by the co-worker known to the applicant as Ben C.

10Subsection 46.3(1) of the Code states:

For the purposes of this Act, except… subsection 5(2)…, any act or thing done or omitted to be done in the course of his or her employment by an… employee… shall be deemed to be an act or thing done or omitted to be done by the corporation… [my own emphasis].

11Given the exemption in subsection 46.3(1), the applicant may not assert that harassment done by Ben is deemed to be harassment by the respondent, particularly given that there is no evidence that the applicant’s supervisor or anyone in management knew of possible Code violations. To the contrary, the applicant admitted that he did not tell his supervisor of any Code violation, and the evidence implies that if Mario had known, he would have intervened.

12Accordingly, I dismiss any allegations of harassment against the corporate respondent.

Reprisal Allegation

13Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

14Although the applicant did not check off the box marked “reprisal” on his Application, the narrative in the Application and the submissions the applicant made at the hearing make clear that he wonders if one of the reasons for which he was laid off was reprisal. He believes that the respondent might have been worried that he would report Ben’s harassment to the Ministry of Labour or to the Human Rights Tribunal. It is also clear from the Application that the applicant feels that the corporate respondent might have laid him off for making inquiries about whether a union might be established for his workplace, and whether he might be covered by a collective agreement.

15Despite the applicant’s belief that reprisal might have been a reason for his lay-off, the applicant provided no evidence at the hearing to establish that one of the reasons for losing his job was related to his human rights or his right to be free from reprisal for claiming or enforcing his rights under the Code.

16In the absence of any evidence that a reason for the decision to lay off the applicant was related to Ben’s harassment or a fear that the applicant might make a claim under the Code, I cannot find that the lay-off violated the Code. I note that there was no evidence that Ben was in any way involved in the respondent’s decision to lay off the applicant, and given that the applicant admitted that he never told his supervisor or management that Ben was violating his human rights, all allegations related to the lay-off are therefore dismissed.

ORDER

17The Application is dismissed.