HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Malek Bouraoui
Applicant
-and-
Ottawa Valley Cleaning and Restoration
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Bouraoui v. Ottawa Valley Cleaning and Restoration
APPEARANCES
Malek Bouraoui, Applicant
Self-represented
Ottawa Valley Cleaning and Restoration, Respondent
No one appearing
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, colour and place of origin. On May 15, 2014, the Tribunal issued Interim Decision 2014 HRTO 699 which allowed the amendment of the Application to include an allegation of reprisal and to increase the monetary amount sought by the applicant.
2The respondent has not filed a Response, nor otherwise participated in this matter. On February 4, 2014 the Tribunal issued Interim Decision 2014 HRTO 164 which ordered that the respondent was deemed to have accepted all of the allegations in the Application and that the matter would proceed without further notice to it. I note however, that following Interim Decision 2014 HRTO 164 that the respondent has in fact continued to receive notice of the hearings from the Tribunal and that it did not participate in this matter.
3A merits hearing was scheduled by telephone conference call on June 30, 2014 at 9:30 a.m. Due to an administrative error this telephone conference call had to be cancelled by the Tribunal.
4The merits hearing was rescheduled to August 13, 2014, via telephone conference call. When the respondent still had not called in by 10:00 a.m., the Tribunal proceeded with the hearing.
The Evidence
5In advance of the hearing the applicant filed documents and a will-say statement which were entered as an exhibit. The applicant was affirmed by the Tribunal and he testified with respect to the issues giving rise to this Application.
6The applicant explained that he was seeking employment and that he attended at a number of businesses and left his resume. He does not recall when he left his resume with the respondent or the type of job that he was seeking.
7The applicant testified that on June 4, 2013, the applicant received a telephone call from someone named Jesse who identified that he worked for the respondent. The entire telephone conversation took place in English. The applicant indicated that the telephone call was very short, less than 90 seconds. The applicant testified that Jesse asked him whether he was still looking for employment. After the applicant indicated that he was still seeking employment, Jesse asked him about his work experience. After the applicant answered, Jesse asked him from which country he was from. The applicant answered that he was not from here. Jesse then asked the applicant if he was white or black. The applicant testified that he was shocked by this question and could not answer. Jesse then proceeded to state that he would send his decision regarding the employment of the applicant by text message.
8Shortly after this conversation the applicant received a text message from Jesse which resulted in a number of text messages being exchanged the same day. The applicant produced a printout version of the series of texts which are reproduced in their entirety in the language used by the parties, as follows:
11:44 Jesse: Try learning English you will have better luck I don’t hire foreners I keep the white man working
12:02 Applicant: You said you keep the white man woking is abuse iwill file a complaint against you about your message . Ihave proof
12:16 Jesse: Go ahead have fun with that you told me fy that’s what you get and I didn’t say anything that can get me in trouble you are a former and I said that I keep the white man,working so you go and waste your time and see how far this gets you they are going to laugh at you I can say what ever I want this is a very good example of why I don’t hire foreners you waste peoples time with your bull shit so please go waste your day let me know how it goes for you
12:21 Applicant: Je plaisant pas avec toi la repnse tu vas le voir pas lentendre
12:24 Applicant : What you said is discrimination
12:43 Applicant: I confirm for you is descromination is not me who said that you will se next step
12:59: Jesse: It’s not one bit go ahead stop testing me you are a waste of time get a life it’s not my fault you can’t get a job
13:02 Applicant: I have 2job I dont need your job
13:03: Applicant: Just why you said word racist for me
13:03: Applicant: Ok the law exist
13:09: Jesse: I didn’t say anything that is racist all I sad was I don’t hire foreners and I hire white men so stop texting me take it how ever you want if you text me again it will be hearasment and there is no law for what I said it’s called freedom of speech in Canada maybe you would know that if you were a Canadian good by stop wasting my time I run a business I don’t have for you get a life
13:12: Applicant: Law exist
13:21: Jesse: Ya and now you are harassing me so I’ll file a company to don’t text me again and you are a forener and I only hire white men how the fuck is that racist you clearly have no life stop wasting mine you clearly have no friends and if you are looking for a friend sorry I don’t want to be your friend
13:23: Jesse: And stop texting me and go file a complaint he will probably be a white man and he will probably laugh at you and tell you to go away
9The applicant explained that he was shocked when he received the text messages from Jesse. He had never been exposed in Canada to such direct discrimination on the basis of his race, colour and place of origin. He stated that it would have been so simple for Jesse to simply state that the applicant was not a potential candidate for the position for any number of reasons. However, he chose to insult and mock the applicant based on a number of prohibited grounds.
10The applicant testified that he was hurt and humiliated. He felt that the respondent was treating him like a second class citizen because he was black and not born in Canada and that the respondent was somehow above the law. The applicant explained that when he responded in the text messages that he had two jobs that this was not true. He was angry and he wanted to save face with the respondent.
11The applicant explained that this incident has had a lasting effect on him because when he applies for employment the issue of his racial identity is always in the back of his mind and he constantly wonders if it is part of the decision-making process when he is not hired.
12During his testimony it was clear that the applicant is still very angry and hurt with respect to the way that he was treated by the respondent during both the telephone interview and subsequent text messages. He is shocked and disappointed that this has happened in Canada, a country in which he believed equality prevailed.
Findings
13I accept the applicant’s testimony as a truthful recounting of the events that gave rise to the Application. I also accept the documentary evidence relied on by the applicant, including the series of text messages as reproduced above. I am satisfied that the applicant has established that the telephone call and text messages that he received were from the respondent. First, the applicant testified that the individual identified himself on the telephone as “Jesse from Ottawa Valley Cleaning and Restoration”. Second, the applicant provided the Tribunal with an internet printout from 411 Local Search which indicates the business contact information for the respondent. The respondent’s contact information via email includes the letters “jessecsimpson”. Further, the respondent’s telephone contact information is the same number from which the text messages were sent to the applicant. Given the applicant’s testimony, the documentary evidence and that the respondent is deemed to have accepted all of the allegations I am satisfied that the applicant has proven on a balance of probabilities that the telephone call and text messages were sent by Jesse, who is either an employee and/or an agent of the respondent. In light of these findings and pursuant to section 46.3(1) of the Code, I find that the respondent is vicariously liable for the actions of Jesse which occurred during the course of his employment.
14Having considered the uncontested evidence tendered by the applicant, I find that the applicant has established that he has been discriminated against by the respondent based on his race, colour and place of origin. Further, I find that this evidence establishes that the respondent has engaged in a number of breaches of the Code. The relevant provisions of the Code are:
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.
(1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.
15The applicant applied to work for the respondent and therefore section 5 of the Code applies to the applicant’s interactions with the respondent. The respondent contacted the applicant in order to conduct a telephone interview to review his employment qualifications. I am satisfied that when the respondent asked the applicant “where he was from” and whether “he was white or black” that these oral inquiries were deliberately made so as to directly classify the applicant based on three prohibited grounds contained in the Code, his race, colour and place of origin. I find that the Code clearly prohibits the respondent from making these types of inquiries during the interview process and the respondent has therefore infringed the applicant’s rights pursuant to section 23(2) of the Code.
16I also find that the sole reason that the applicant was denied employment with the respondent is because of his race, colour and place of origin. This is clearly repeatedly expressed in the text messages to the applicant. The manner in which this information was communicated to the applicant was egregious. When the applicant took offence to the discriminatory comments the clear documentary evidence establishes that the respondent proceeded to repeatedly ridicule and humiliate the applicant.
Reprisal
17The applicant also amended the Application to include an allegation of reprisal. The applicant testified that after the Application was served on the respondent he received a telephone call from Jesse. He states that this was a very short telephone call and that Jesse was very angry. He states that Jesse told him that if he did not withdraw his Application that the respondent would retain counsel to defend itself against the Application. Jesse told him that if he did not withdraw the Application that the respondent would seek the repayment of the costs of its defence, including its legal costs.
18The applicant advised that after seeking independent legal counsel he made a complaint to the police. The applicant stated that he was concerned about his safety because the respondent was provided his contact information when his Application was delivered to the respondent. However, the applicant advised me that the only threat that Jesse made was with respect to the recovery of costs.
19Section 8 of the Code states:
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 for so doing.
20In the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 33:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
21I have considered the applicant’s evidence on this point and whether the conduct complained of constitutes a reprisal. The initiation of an Application at the Tribunal commences a legal proceeding which is adversarial in nature. Routinely, both applicants and respondents seek the recovery of the costs associated with the proceeding. It would not constitute a reprisal for a respondent to make a request for the recovery of costs.
22Further, I note that the Tribunal encourages parties to have discussions with respect to ongoing litigation including the resolution of that litigation. In this case I find that the respondent was calling the applicant to discuss the Application and his position with respect to its merits. Though the applicant was concerned about his safety and that is why he filed a police statement it is not because the respondent threatened his physical well-being. The applicant was surprised that the respondent had his contact information which had been disclosed by the Tribunal.
23I do not accept the applicant’s position that the respondent’s comment that he would seek the recovery of costs is a threat within the meaning of section 8 of the Code. In this case I find that the respondent was communicating its legal position with respect to the proceeding commenced by the applicant and that it would seek the recovery of legal costs. As such I find that the applicant has not established that he was reprised against and this allegation is dismissed.
Remedy
24The applicant does not seek any compensation for lost wages or any public interest remedies.
25Initially in the Application the applicant sought $4,000.00 as compensation for injury to his dignity, feelings and self-respect. However, the Tribunal allowed the applicant to amend the monetary award sought in Interim Decision 2014 HRTO 699 to $8,000.00. The applicant brought the amendment after he obtained independent legal advice. The applicant advised that he has reviewed some of the Tribunal’s caselaw and he believes that $8,000.00 is warranted in the circumstances.
26The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 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:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
27In addressing the relevant factors in determining compensation for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-54:
(…) 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: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
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. Losing long-term employment because of discrimination is typically more harmful than losing a new job. 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.
28As discussed above I have found multiple violations of the applicant’s rights under the Code by the respondent based on a number of grounds. Though the applicant’s interactions with the respondent were of a very short duration, the contents of the text messages sent to the applicant are not only discriminatory but they are egregious and abusive in nature. The respondent persistently ridiculed the applicant because of his race, colour and place of origin. I am satisfied that the applicant was deeply hurt, shocked and humiliated by the respondent’s comments and that he was denied employment based on a number of prohibited grounds. In the circumstances of this case, I award the applicant the full amount of the compensation that he is seeking for injury to dignity, feelings and self-respect.
29I also find it appropriate to award some public interest remedies, even though the applicant has not sought any such remedies. It is appropriate that these remedies have some educational component, to ensure that the owners and managers of the respondent are cognizant of their obligations under the Code. I find that such educational remedies promote the goals of the Code and will result in compliance in the future.
Order
30The Tribunal Orders:
a. Within 30 days of this Decision, the respondent will pay $8,000 to the applicant as compensation for the infringement of the Code and injury to his dignity, feelings and self-respect;
b. The respondent shall pay to the applicant pre-judgment interest running from June 4, 2013, on the sum at paragraph 30(a) above, calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
c. The respondent shall pay the applicant post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43 from the date that is 30 days after the date of this Decision; and
d. Within 60 days from the date of this Decision, the respondent shall confirm to the applicant that all of its current owners and managers have completed the Human Rights 101 eLearning Module prepared by the Ontario Human Rights Commission which is available online at: http://www.ohrc.on.ca/hr101/.
Dated at Toronto, this 3rd day of September, 2014.
« Signed by »
Geneviève Debané
Vice-chair