HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brett Bair
Applicant
-and-
The Crack Doctor
Respondent
DECISION
Adjudicator: Maureen Doyle
Indexed as: Bair v. The Crack Doctor
APPEARANCES
Brett Bair, Applicant
Self-represented
The Crack Doctor, Respondent
Michael Theriault, Representative
Introduction
1This Application, filed on January 4, 2012, alleges discrimination with respect to employment because of race, colour, place of origin, ethnic origin, disability and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant self-identifies as African American.
2By way of remedy, the applicant seeks monetary compensation in the amount of $20,000.00, which he states was calculated with reference to the fact that he alleges he did not get a raise as soon as he should have, and with reference to the fact that he alleges that he should have been assigned to work more hours than newer employees.
3The respondent denies any discrimination contrary to the Code.
Procedural Background
4This Application was originally scheduled to be heard on July 12, 2013. The Tribunal’s Notice of Hearing was sent to the parties and was not returned as undeliverable. The parties did not file the disclosure required by Rules 16 and 17 of the Tribunal’s Rules of Procedure. The Tribunal issued a Case Assessment Direction (“CAD”) reminding the parties of their disclosure obligations and, among other things, advising the applicant that if he did not file the required documentation within seven days of the CAD, the Application may be dismissed as abandoned. The CAD was sent to the same addresses as was the Notice of Hearing and was not returned as undeliverable.
5At the expiry of the seven-day period, the Human Rights Legal Support Centre wrote to the Tribunal asking for a further extension for the applicant and stating that he was “unaware of a hearing date having been issued”. The extension of time for disclosure of documents was granted. The July 12, 2013 hearing date was not changed.
6The applicant did not appear at the hearing. The Tribunal issued a further CAD noting special circumstances indicating some confusion regarding the hearing date and inviting submissions about whether the Application should be dismissed as abandoned. The applicant submitted that he had put a “lot of effort into this” and that he felt he did not receive proper notice of the hearing. The respondent made no submissions. In an Interim Decision, 2013 HRTO 1893, issued November 14, 2013, the Tribunal noted the unusual circumstances and directed that a new date be scheduled for the hearing.
7Both parties filed copies of documents on which they intended to rely at the hearing, but neither party filed a witness list or will-says.
8The hearing convened over two days and both parties participated. The applicant testified on his own behalf and the owner of the respondent, Mike Theriault, testified for the respondent.
9In this Decision, the applicant’s supervisors and co-workers are identified by letter only, but the Application and Response referred to these individuals by name.
BACKGROUND
10Among the applicant’s documents was a document which purports to be the Application but which is not, however, the same as the Application filed with the Tribunal and which contains new allegations. There has never been a Request to Amend this Application and the hearing and this decision are based on the allegations made in the original Application which is properly before the Tribunal. The Application relates to several allegations of discrimination in the workplace:
the applicant alleges that he was not assigned to work hours in accordance with his seniority at the respondent and that others were assigned hours before he was;
the applicant alleges that he was denied a timely raise and insurance benefit coverage and that that was for discriminatory reasons;
the applicant alleges that he was denied training and promotions and safety equipment;
the applicant alleges that the fact he was not permitted to drive the company van or handle company money was for discriminatory reasons;
the applicant alleges that his employment was terminated for discriminatory reasons;
the applicant alleges he was “teased about being an American”; and
the applicant alleges that his supervisor made negative comments about black people.
11The respondent denies all of the applicant’s allegations.
12As noted above, neither party filed a witness list or will-says despite the CAD directing them to do so and reminding them of the possible consequences of failure to exchange and file this documentation in advance of the hearing. Accordingly, and consistent with the CAD, at the hearing, in providing their testimony, the parties were confined to the material referenced in the Application and Response. The applicant did not file a Reply.
13The respondent is engaged in the business of waterproofing basements and foundation work. The applicant worked as a labourer for the respondent. In his evidence, he described his work as general labourer, essentially removing debris, jackhammering and waterproofing of basements and working in yards.
14In his Application, the applicant asserts that he began work for the respondent on September 18, 2010. In its Response, the respondent asserted that the correct start date for the applicant was November 22, 2010. The applicant’s Record of Employment (“ROE”) was entered into evidence at the hearing and it indicates a start date of November 22, 2010. In his testimony, the applicant indicated that he started work for the respondent employer on November 22, 2010. The applicant’s employment was terminated on April 14, 2011.
15I note at the outset that the applicant did not particularize any allegations of discrimination on the basis of creed.
16I also note that though the applicant alleges in the Application that the date of the last incident of alleged discrimination was March 4, 2011, he has not particularized any allegation relating to that date.
Hours Worked
17The applicant alleges that he was not assigned to work when work was available and was given to other employees. In his Application, he states that one day he worked a short shift and that his supervisor, “supervisor L”, called him in to work for one hour another day, but he told supervisor L to see if someone else could take the work assignment as he lived 25 minutes away from the workplace and would have to pay a babysitter. He states that 20 minutes later supervisor L called him back to say that he had found someone else to take the work. He also alleges that he regularly called supervisor L to ask for work, but was told that none was available. The applicant asserts that he knew work was available for him because he drove by the workplace more than once and saw supervisor L’s car and the car of an individual hired after him, later identified to him as another supervisor, “supervisor E”. The applicant testified that he began working on supervisor L’s crew, and that at some later point in his employment, he began working on supervisor E’s crew. He testified that the supervisor was at the work site with the general labourers and that for the most part, communication with the employer was through the supervisors. At the hearing, he testified that he knows there was work available for him as he went to the parking lot twice, on December 22 and 23, 2010, and saw by the cars that there were three people working, including supervisor E and Employee A, a labourer who was hired after he was.
18It was Mr. Theriault’s evidence that the applicant was a temporary seasonal worker, due to the fluctuating nature of demand for the company’s waterproofing services, which depends on the weather. He testified that he explains this clearly to employees prior to hire, telling them that if it is raining they may be asked to work 60 hours in one week, but then have no hours the following week. He testified he often tells employees that over the Christmas period, for example, there is usually nothing to do. In its Response, the respondent asserts that there were only one or two full-time positions that the company could accommodate throughout the year, and that supervisor L and a new hire, supervisor E, a university-educated individual with significant experience in the construction industry, were the supervisors. He also testified, however, that at the time the applicant was working there, in 2010 and early 2011, supervisor E was a supervisor but was not full-time. He also testified that there is a high degree of employee turnover, as the work is hard and the hours are so uncertain. He indicated that his children do some work for the company, but testified that currently there are no employees.
19The applicant testified that at the time of hiring he was not advised that he was a temporary or seasonal worker and that he would not have taken the job had he known it would be part time. When the respondent asked him to agree that he had been hired as a temporary seasonal worker, the applicant stated that he could “make up a document too”. When the respondent asked him to agree that the total number of hours he worked was 295, he again stated that he could “make up documents too”. When he was asked how he was going to demonstrate differential treatment in pay and scheduling, he answered “I am out of work, ain’t I?”
20The respondent also provided information regarding the pay and hours worked by the applicant and the other non-supervisory workers during the time the applicant was employed at the respondent. The respondent indicates that the applicant worked a total of 295 hours, with 110 of those hours being paid at $16 per hour and 185 being paid at $18 per hour. It indicates that the other non-supervisory workers worked as follows: employee A worked a total of 97 hours for $16 per hour; employee B worked a total of 44.5 hours for $15 per hour; employee C worked a total of 61 hours for $16 per hour, and employee D worked a total of 122.5 hours for $16 per hour. The respondent indicated that it paid the applicant one week’s pay in lieu of notice and the applicant’s ROE indicates 339 insurable hours.
21While the applicant did not have the opportunity to work as many hours as he would have liked, I accept the respondent’s evidence that due to the fluctuating nature of demand for its services, it did not provide steady full-time hours to its labourers. I also accept the respondent’s evidence of comparative hours for labourers, showing that while the applicant’s hours were far from full-time, he was called in for work at least as frequently as other labourers. I also note that, according to the applicant’s own testimony, he was offered a shift which he turned down. Though according to the applicant’s testimony, there were two occasions when he observed cars at the workplace, including the car of a labourer hired after he was, this is not evidence which establishes on a balance of probabilities that the applicant was assigned fewer hours overall, nor does it establish that the reason for the work assignments was discriminatory. Simply because he did not work the same days as other employees does not mean that the other employees were given more hours. In the absence of evidence establishing differential treatment on a balance of probabilities, this allegation of discrimination is dismissed.
Pay raise and Insured benefits coverage
22In his Application, the applicant alleges that supervisor E, who was hired after he was, advised him that he had received a raise and insured benefits coverage. He alleges that this was in March, 2011 and he then went to the respondent company’s office and advised Mike Theriault and his wife Lena to ask why he did not have such coverage. He also alleges he asked why he had not received a raise, as he believes he should have received one in late December, 2010. He alleges that Lena said she forgot to arrange for insurance coverage for him.
23At the hearing, the applicant testified that when he met with Mr. Theriault before being hired, he was advised that initially he would be paid $16 per hour and after 30 days his pay would increase to $18 per hour. He testified that supervisor E got a raise before he did, even though he began after the applicant. He testified that supervisor E told him he had received a raise and insurance coverage, but he did not see supervisor E’s pay stubs. He testified that he talked to Lena about it a couple of days later, around February 6 or 8, 2011, and that she told him she would give him a raise, but only with two weeks’ of retroactivity. He also testified that when he was hired he was advised he would receive coverage for insured benefits in 30 days.
24The applicant also provided his April 14, 2011 Worker’s Report of Injury to the Workplace Safety and Insurance Board (“Worker’s Report of Injury”). On that report, the applicant indicated that his usual number of paid hours per week were 8 or 13.
25In its Response, the respondent also asserted that at the time the applicant worked there, there were four other seasonal workers, all who worked fewer hours than the applicant and all of whom were paid less per hour, as indicated in the rates for employees A, B, C and D above.
26Mr. Theriault testified that some employees can receive a pay raise after one month, depending on the number of hours they work in that month. He testified that he likes to see the hours accumulated, and that if an employee works very hard every day for a month, the employee may get a raise that quickly, but that more typically, an employee receives a raise at the end of three months. He testified that at the three-month mark, the company has a better sense of the employee. He testified that this is the information he would have provided to the applicant at the interview prior to hire.
27Mr. Theriault testified that in fact the applicant was given a pay raise prematurely, as he had not worked very many hours for the company when he got his raise. He testified that the applicant’s total hours worked were only the equivalent of about one and a half months’ worth of work, as a full month is 300 hours of work. He testified that the applicant had been working hard and the respondent employer wanted to show that it appreciated that.
28Mr. Theriault testified that he did not recall having had a discussion about insurance at the interview with the applicant, but that if he had he would have at least mentioned that there is a waiting period for eligibility. He testified that he would not have advised the applicant that he would be eligible for insured benefits at the end of one month with the respondent, as the respondent’s contract with insurance company requires an individual to work for the respondent for three months, with a minimum number of hours worked, in order to be eligible for coverage. The respondent asserts that when the applicant had been working for the company for three months, he had worked an average of 8.85 hours per week, and he, as did most of the employees, did not qualify for insurance for health benefits.
29Mr. Theriault testified that the applicant never became eligible for coverage. He testified that Employee A may have thought he had coverage, but that it would not have been possible for him to have such coverage at the time the applicant indicates supervisor E claimed to have insurance coverage, as he had not been with the respondent long enough, either.
30An excerpt from the respondent’s Insurance policy description was in evidence at the hearing. It indicates that there is an “eligibility waiting period” of three months and that individuals “must be employed on a permanent and non-seasonal basis for at least 24.0 hours each week to join the plan”.
31The respondent has not pointed to any written or consistently applied policy regarding raises. It appears to exercise a good deal of discretion, with an accompanying lack of transparency, in its decisions regarding raises. In doing so, it runs the risk of having employees ascribe nefarious motives to its decisions about who gets a raise and when. The applicant’s allegation was that supervisor E received a raise before he did. Even if supervisor E received an early raise, the applicant did not allege that any other general labourer received an early raise. The applicant has not disputed the fact that he was given a raise before he had worked a total number of hours equivalent to three months because he was a hard worker. In all these circumstances, I do not find that the applicant has established on a balance of probabilities that he was treated differently from other general labourers at the respondent or that he was discriminated against contrary to the Code in respect of a pay raise. Accordingly, this allegation is dismissed.
32The applicant’s allegation that he did not receive insurance benefits coverage as early as other employees is also dismissed. While the applicant indicates that he believes that supervisor E, who was hired after him, was in receipt of insurance coverage, I accept the respondent’s evidence that this was not possible, given the terms of the respondent’s contract for insurance with its insurer. According to the terms of the contract, averaging out the applicant’s hours over the period of his employment, either with reference to the September 18, 2010 start date he originally provided or the November 22, 2010 start date, the applicant was not eligible for insurance coverage at any point in his employment with the respondent. Where the applicant’s eligibility was determined by the terms of the contract of insurance, I do not find that he has established differential treatment or that insurance coverage was withheld from him for discriminatory reasons. Accordingly, this allegation is dismissed.
Allegations relating to training and promotion and relating to safety equipment
33In his Application, the applicant states that when he began to work at the respondent, at first supervisor L went over “a little info with me about the task at hand but sometimes he wanted to get out as fast as he could so there was as he explained no time to teach”. He states that when he caught on to things on his own, supervisor L would try to explain a faster way to do it. He alleges that supervisor L “found holes in anything” he did. He alleges that one day when supervisor L advised him that he did not have time to teach him something, and he concluded it was supervisor L’s way of getting out of carrying heavy loads of concrete buckets. He alleges that that day he worked on jackhammering and carrying concrete while supervisor L worked on installing a pump. He testified that waterproofing was not “rocket science” but that he still does not know how to install a pump. He testified that grading out a basement, tracking a leak and waterproofing the walls were all things you could “get” just by watching. He testified that one day supervisor L asked him if he thought he could do it, he said yes and supervisor L gave him a high five. He also alleges that a newer worker got “first hand training every day with [supervisor L]”. He does not allege that this newer worker was assigned to anything other than general labour work, does not allege the newer worker learned how to install pumps, nor does he allege that the newer worker was promoted.
34The applicant believes he was never permitted to become a crew leader because he was black. In his testimony, he pointed to the fact that supervisor E, who is from the Middle East, was hired after he was, but was hired into a supervisory position.
35In its Response, the respondent confirms that the applicant was hired into a general labour position and asserts that the applicant was never denied a promotion. It asserts that the supervisors are responsible for the successful completion of the projects and for preparing all of the paperwork. In his testimony, Mr. Theriault identified two individuals as being in a supervisory position at the time the applicant was employed by the respondent: supervisor L and supervisor E. He agreed supervisor E was hired after the applicant, but notes he had a university degree and a good deal of experience in the construction industry.
36The respondent also states that there is little training required for the general labourer position as the tasks consist of very simple physical labour. It states that the first few times, the supervisor shows new employees how to hold the jackhammer, fill the buckets with debris and how to pour new concrete.
37In his Application, the applicant alleges that he was discriminated against because when he asked for proper work equipment, such as a mask, it was sometimes denied. In his testimony, he stated that dust masks were not always supplied, as they were not always “in the trunk”.
38In its Response, the respondent states that all protective equipment is available in the vans and the warehouse and that employees are free to take what they need.
39I am not satisfied that the applicant has established on a balance of probabilities that he was denied a promotion for discriminatory reasons. I note the applicant’s evidence that the supervisor was the individual in charge at each work site and I accept the respondent’s evidence that the duties of a supervisor included responsibility for the successful completion of projects and accompanying paperwork. The applicant has not disputed that supervisor E is a university graduate with a good deal of experience in the construction industry, nor has he provided any evidence to establish that he applied for the supervisory job or advised the respondent at any time of his ability to perform the duties required of a supervisor. The fact that the respondent hired a new supervisor after hiring the applicant is not sufficient to establish on a balance of probabilities that the respondent did not promote him for discriminatory reasons. This allegation is dismissed.
40The applicant’s allegation that he was denied training for discriminatory reasons is also dismissed. The applicant has testified that he received training during the first few days of employment at the respondent and that he learned a good deal by watching. He indicated that his supervisor gave him a “high five” when he indicated he could do certain tasks and gave him instructions regarding how to perform certain tasks more quickly. Although he indicates that he supervisor was sometimes critical of his work, neither he nor the respondent has indicated any ongoing concern with the quality of his work. While he would have liked more training on occasion, he has indicated that the supervisor was sometimes too busy to give him further instruction, or, he suspects, sought to avoid doing the heavy labour being performed by the applicant. Whether another individual received or required more instruction than did the applicant, he has not indicated that any other general labourers were trained to do tasks he was unable to do and the applicant has not established differential treatment in this regard.
41The applicant has alleged that he was denied a dust mask for discriminatory reasons, but his evidence has simply been that they were not always in the trunk of the vehicle. He does not indicate that others were able to access dust masks when he was not. He does not dispute that dust masks would have been available for all to take from the respondent’s warehouse. I do not find that he has established differential treatment. The applicant’s allegation that he was denied a dust mask for discriminatory reasons is dismissed.
Allegations regarding the company van and handling cash
42The applicant alleges that he was not permitted to drive the company van or handle company cash due to his race, colour, place of origin, and ethnic origin, as the workers who were permitted to do so were white. He testified that he was told that the owners of the business did not want him to drive. He alleges that another, newer, employee, Employee A drove the van, but he provided no further particulars with respect to this allegation. He also testified when describing the work, that either supervisor L or later supervisor E were the ones driving the van and that they drove him to the job sites in the van along with cement, jackhammers, hoses, etc.
43In his Application, the applicant alleges that supervisor L and supervisor E have to “handle lots of cash sometimes”.
44In its Response and in testimony, the respondent asserts that driving the vans is the responsibility of the supervisors only. In its Response, the respondent also stated that only supervisors are authorized to have interaction with customers. Mr. Theriault testified that he does not want any seasonal temporary labourers to drive the van or to handle cash. The respondent asserts that the supervisors are responsible for driving the vans and for ensuring that they are properly serviced and equipped. It asserts that they are the designated drivers who are approved by the insurance company, and that they must have a valid driver’s licence and an excellent driving record. It asserts that the applicant was not permitted to drive the company van, and that this is the same rule for other employees who are not supervisors at the respondent. Mr. Theriault testified that he had no knowledge of Employee A having driven the van.
45The applicant’s allegation that he was not permitted to drive the company van or handle cash for discriminatory reasons is dismissed. There was no dispute between the parties that the supervisors drove the van to the worksites, nor was there a dispute that it was the supervisors who handled the cash. Though the applicant has also asserted that Employee A, a general labourer, drove the van, he has provided no particulars regarding this allegation and Mr. Theriault testified that he had no knowledge of Employee A having driven the van. The applicant has not indicated when or where or under what circumstances he alleges Employee A drove the van, or who, other than the applicant, was aware of this. According to Mr. Theriault’s evidence, it would have been contrary to policy for Employee A to have driven the van, as he was not a supervisor. There is no evidence that the respondent gave permission for Employee A to drive the van, while withholding such permission for the applicant. Consistent with the applicant’s evidence regarding the fact that it was supervisor L and supervisor E who drove the van to the worksites, and accepting the respondent’s evidence that there were insurance considerations to be taken into account in permitting individuals to drive the company vehicle, I accept that it was the respondent’s policy that only supervisors were permitted to drive the van. The evidence before me does not establish on a balance of probabilities that the respondent deviated from its policy to permit others to drive the van. The allegation that the applicant was not permitted to drive the van for discriminatory reasons is dismissed.
46The evidence is uncontradicted that the supervisors were the only individuals to handle cash. Given the role of the supervisor as described by the respondent, which included seeing that projects and paperwork were complete, and given the applicant’s testimony that the supervisors oversaw the work at the worksite, it is not surprising that it would be policy for the supervisors to be given the sole responsibility for handling the cash. The evidence does not establish differential treatment and the allegation that the applicant was not permitted to handle cash for discriminatory reasons is dismissed.
Termination of Employment
47In his Application, the applicant alleges that some time after having been injured at work on February 28, 2011, he reported his injury to the owner’s wife Lena. He had informed supervisor L and supervisor E about the injury earlier but they did not report it. He alleges that Lena asked him why he did not go to his doctor and he told her because he is American and has no insurance. He alleges that she said she did not have his Work Permit on file and asked him to bring it in for her to copy. He states that his visa and Work Permit had expired, but alleges that they were “still valid, and immigration is a month behind”. He alleges that Lena terminated his employment, stating that it was against the law for him to work there and that there was a shortage of work.
48In his testimony, the applicant stated that he injured his shoulder at work and that it kept getting worse. His testimony was not clear about when he had a discussion with Lena about his injury but that he believes it was shortly after March 28, 2011 and he testified that when he told her she advised him to get his shoulder x-rayed. He testified that he told her he could not go for an x-ray as he was American and had no insurance. He testified that she told him she would pay for the x-ray, but that ultimately she did not pay. At the hearing, he indicated a significant level of concern with the fact that the respondent did not pay for his x-rays. He testified that he told her that he could not work for anyone else as his Work Permit had expired and she asked him to bring it in to her. He testified that he told her that Immigration was ten months behind and that they told him it would take ten months to get a renewal. He testified that he subsequently brought her the Work Permit and she photocopied it and advised him that they could not continue to employ him. He testified that he felt the expired Work Permit was an excuse to let him go. He testified that he phoned Immigration before providing the documentation to Lena and that the individual he spoke with there told him he was “legal” and could still work.
49When asked about his job search efforts at the hearing, he testified that since working for the respondent he has worked performing office work for his wife. He testified that he did not have pay stubs for the work he did for his wife and that he was collecting Employment Insurance. Later in his testimony, he denied having helped his wife in her office.
50The Work Permit from Immigration Canada which the applicant provided to the respondent indicates that the applicant “Must leave Canada by 28 Mar 2011”.
51In its Response, the respondent stated that the applicant’s Work Permit expired March 28, 2011 and he was let go as he was not permitted to work without such a permit.
52Mr. Theriault testified that the respondent had to let the applicant go because his Work Permit was expired. He testified that the applicant indicated that he had spoken with someone at the government who said it was “ok”, but that the applicant provided them of no proof of such permission. He testified that the only thing the respondent received was the expired Work Permit. He testified that he and his wife felt sorry about the situation and the respondent paid him one week’s pay, at full-time hours, in lieu of notice at termination, even though he was not entitled to such payment. He testified that he felt disappointed at having to let the applicant go, as he was a good worker, and there had never been any trouble with him. He testified that he did not feel there was any choice, and that he was not legally permitted to continue to employ the applicant. In respect of the ROE which indicates an “unknown” date of recall to employment, he testified that the applicant could have been hired back at some other time if he provided a valid Work Permit.
53The applicant’s letter of termination is dated April 14, 2011, and states that the respondent has been unable to provide him with full-time hours due to shortage of work and notes his expired work permit and SIN. It states “It is illegal for us to employ your services at this time”.
54In the comments section of the applicant’s ROE, it states “expired work permit and SIN” and indicates that the Expected Date of Recall is “unknown”. It notes that he is being paid one week’s pay in lieu of notice and his vacation pay with his final cheque.
55In the above-noted Worker’s Report of Injury completed by the applicant, he wrote that he “reported it to my boss at 1:45 today April 13th.” In a different colour ink, he has written, “She said it’s not her problem, that I reported it too late and I have no rights in Canada. I was then let go”.
56In its Response the respondent asserts that it had no knowledge of a disability, and that the applicant worked hard, as was reflected by his pay increase. The respondent also asserts that it was notified on April 27, 2011, that the applicant had filed a claim with the Workplace Safety and Insurance Board (“WSIB”) for an injury he said occurred on February 28, 2011, and that the claim was dismissed. The respondent also asserts that in August 2011 it was notified by the WSIB that the applicant had filed a claim for an injury he states occurred on April 8. It asserts that based on the time sheets, the applicant was not at work that day and it asserts that the WSIB claim was dismissed. Mr. Theriault indicated that he was unable to speak to anyone to whom the applicant indicates he reported an injury in February 2011.
57The applicant has alleged that his employment was terminated for discriminatory reasons, but he has alleged no facts which would tie the respondent’s actions to his race, colour, place of origin, ethnic origin, or creed. While he seeks to tie the decision to terminate his employment to the fact that he reported a workplace injury to Lena, he relies simply on the timing of the termination, which has led to his suspicion of discrimination. In fact, in his own testimony, he was quite adamant that Lena had offered to pay for the x-rays he could not pay for due to his lack of insurance. This would not likely be consistent with an intent to terminate an employee’s employment for disability. The respondent has offered a non-discriminatory reason for the termination of his employment, which I accept. There was no dispute regarding any work performance issues, and there was no dispute that it was only upon receipt of the expired Work Permit that the respondent terminated the applicant’s employment. I note also that this is consistent with the respondent’s entry on the ROE regarding an “unknown” return to work date, where the respondent could have indicated “not returning”. Though the applicant testified that he contacted someone at Immigration who assured him he was “legal”, the only documentation before the employer at the time of termination was the expired Work Permit which on its face indicated to them that the applicant was not only working illegally, but was in the country illegally. While the applicant is suspicious that his employment was terminated for discriminatory reasons, I am not satisfied that he has provided evidence to establish a discriminatory reason on a balance of probabilities. Rather, I am satisfied that that the respondent has provided a compelling non-discriminatory reason for its decision to terminate the applicant’s employment. This allegation is dismissed.
Comments about being American
58Though the applicant alleged in his Application that he was “teased about being American”, he provided no particulars regarding this allegation, nor did he provide any testimony regarding this allegation.
59The applicant has made a sweeping assertion, with no particulars regarding what he alleges was said, who he alleges said it, or where or when he alleges it was said. In these circumstances, I do not find that there is evidence before me to establish on a balance of probabilities that discriminatory comments were made and this allegation is dismissed.
Discriminatory Comments by the Supervisor
60In his Application, the applicant alleges that supervisor L, identified by the employer as the applicant’s direct supervisor, referred to one of the applicant’s co-workers, who was also black, as “black Employee D” (as noted above, co-workers are referred to in this decision by letter though the Application and Response provide their names), as a way to distinguish him from another individual with the same name at the workplace. The applicant testified that he could not understand why supervisor L never referred to each individual by using their last names, but did not indicate that he ever advised supervisor or the respondent employer that he found it offensive for him to refer to his co-worker as “black Employee D”.
61The applicant also alleges in his Application that supervisor L told him of a former employee who was black who he had given a ride to and from work and who one day threatened him and left the job and never returned.
62The applicant also alleges that supervisor L said that Employee D was stupid, lost and lazy. He testified that Employee D’s work ethic was not good and that one day after being required to do some hard work with the applicant, he left the workplace. In his Application he stated that Employee D never returned after that day, but in his testimony, he testified that Employee D returned at a later date for one day only and then left the workplace. He testified that understood that Employee D had been let go due to an allegation of theft. In his Application, he alleged that supervisor L “weeded out” people he “despised” and that this had included two black workers and one white worker “who [supervisor L] didn’t like because he was Employee D’s friend, and who supervisor L thought and said acted like he was black”.
63At the hearing, the applicant also alleged that supervisor L had referred to Employee D using the racist epithet “nigger”. This was an allegation which appeared for the first time in the above-noted purported Application the applicant filed prior to the hearing. When I asked him why he did not mention this allegation in the Application properly filed with the Tribunal, he stated that “some things become more clear when you have enough time to dwell on it”.
64Neither party called supervisor L as a witness. Noting the fact that there are not any employees currently at the respondent company and the indication from Mr. Theriault that he was unable to speak to anyone to whom the applicant indicated he told about his injury in February 2011 (which the applicant alleged included supervisor L), I have not drawn a negative inference from the fact that the respondent did not call supervisor L as a witness.
65The applicant bears the onus of proving that his Code rights have been infringed by the respondent on the balance of probabilities. While the evidence provided by the applicant regarding his discussions with supervisor L was uncontradicted, in order for the applicant to establish discrimination on the balance of probabilities, his evidence must be found to be credible. For the following reasons, I have not found the applicant’s evidence to be credible and this allegation is dismissed.
66An often cited case in relation to assessing credibility of a witness’s testimony is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At pages 356-357, the British Columbia Court of Appeal stated:
…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 demeanor 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.
67I am also guided by Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, where the Tribunal stated at paragraph 54:
Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witnesses, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of the witness’s evidence does not automatically ender the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.
68In assessing the applicant’s testimony that supervisor L used a racist epithet in referring to Employee D, I am struck by the reason he provided for not having included this allegation in the Application he filed with the Tribunal, and I find it so unlikely as to be incredible. In the Application, the applicant alleged that supervisor L referred to his co-worker as “black Employee D” and indicated that he found this discriminatory, and alleged that supervisor L “weeded out” a white employee who he allegedly said “acted like he was black”. He testified that he required time before it was clear to him that the alleged utterance of the racist epithet was discriminatory. If the applicant filed an Application because he felt supervisor L had made discriminatory remarks, had supervisor L uttered the racist epithet, it is reasonably to be expected that this allegation would have been recounted in the original Application. I do not accept that the applicant was offended by supervisor L’s alleged comments recounted in the Application and not offended by supervisor L’s utterance of the racist epithet. I find that in making the new allegation regarding the alleged utterance of the racist epithet, the applicant indicates no qualms about exaggerating and embellishing events where he feels it will advance his claim.
69The applicant testified that supervisor L and supervisor E drove the van; however, at the point in his testimony when he alleged that he was not allowed to drive the van for discriminatory reasons, he stated that Employee A also drove the van. This was inconsistent with his earlier statements where he had simply been describing the work at the respondent company.
70In his Application, the applicant indicated that he told Lena that the Immigration office was one month behind. In his testimony, he stated that he told Lena that the Immigration office was ten months behind. Again, this indicates a tendency to exaggerate and embellish events.
71In the course of the applicant’s evidence regarding whether he worked after the termination of his employment by the respondent, he testified that he had done office work for his wife, without remuneration as he was in receipt of Employment Insurance. Later in his testimony, he denied having performed work for his wife. Whatever his motivation in this regard, the applicant has not hesitated to change his testimony under oath, undermining his reliability and credibility.
72In his Application, the applicant alleges that the respondent terminated his employment for discriminatory reasons, including disability. Both in the Application and at the hearing, he indicated that when Lena learned he did not have health insurance, she offered to pay for his x-rays. The applicant also provided his Worker’s Report of Injury regarding his alleged workplace accident. I note that the document he provided appears to be an original and not a copy. In the narrative section of this Report to the WSIB, in which he seeks to have his claim for an accident recognized, the final line has been written in a different colour pen and states ““She said it’s not her problem, that I reported it too late and I have no rights in Canada. I was then let go”. This is in complete contrast with the testimony he provided at the hearing and is a further example of inconsistency with the applicant providing significantly different versions of the same event.
73In addition to providing inconsistent testimony, at several points in his testimony, the applicant had a tendency to be non-responsive and argumentative, saying, for example, that he could “make up” documents too.
74In his Application, the applicant alleged that after one day of particularly hard labour, his co-worker Employee D never returned to work. In his testimony, he alleged that Employee D did return to the workplace and was subsequently terminated, he was led to understand due to an allegation of theft. While this inconsistency may not be as significant as the others noted above, it is an indication of testimony which is at a minimum unreliable.
75Having considered the evidence of the applicant as described above and in light of the inconsistencies noted, I find that applicant has not been credible. Though an adjudicator may find that a witness is not credible on a particular point, but credible on another, in addition to finding the applicant to have been non-responsive and argumentative at points in his testimony, there are numerous inconsistencies in the applicant’s evidence which are so significant as to undermine his overall credibility. In these circumstances, I am not persuaded that the applicant has established on a balance of probabilities that supervisor L made discriminatory comments to him, and this allegation is dismissed.
76For all of the above reasons, the Application is dismissed.
Dated at Toronto, this 12th day of September, 2014.
“Signed by”
Maureen Doyle
Vice-chair