Human Rights Tribunal of Ontario
B E T W E E N:
Yongbin Liu
Applicant
-and-
Everlink Payment Services Inc.
Respondent
DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Liu v. Everlink Services Inc.
APPEARANCES
Yongbin Liu, Applicant
Self-represented
Everlink Payment Services Inc., Respondent
Tracey Epp, Counsel
1The applicant, who self-identifies as Chinese-Canadian, was employed by the respondent as a Helpdesk Support Analyst until his employment was terminated on May 31, 2012. The applicant filed an Application alleging that the respondent discriminated against him because of his race, colour, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). The applicant alleged that he was bullied and targeted by his supervisor on several occasions. He also alleged that the respondent terminated his employment because he is Chinese-Canadian and/or because he has a Chinese accent. The applicant was born in China and immigrated to Canada approximately ten years ago.
2The respondent submitted that the incidents of alleged bullying and targeting raised by the applicant do not constitute harassment. According to the respondent, even if they did amount to a general form of harassment (which was denied), there was no link between these incidents and a ground protected under the Code. The respondent submitted that the applicant was not terminated for discriminatory reasons. According to the respondent, the applicant was terminated because his position was eliminated as part of a re-organization. In addition, the respondent argued that, even if the applicant’s language were a factor in his termination (which was denied), there was no connection between his language and any of the grounds of discrimination alleged in the Application.
3The hearing of this Application took place on November 15, 2013. I heard testimony from the applicant; Ray Boorman, his former supervisor; Renald Ching, the respondent’s in-house counsel; and Duane Gomes, the respondent’s Vice President of Finance and Comptroller.
4For the reasons that follow, I am satisfied on a balance of probabilities that the applicant’s termination was discriminatory under the Code. However, I find that the applicant has not made out the other claims set out in his Application.
Applicable Law
5Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including race, ethnic origin, place of origin and colour. Section 5(2) protects employees from harassment in employment because of the grounds listed in that section. While some legislation and workplace policies prohibit broader forms of personal or workplace harassment (see, for example, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Part III.0.1), the Code’s harassment protections are specifically linked to the grounds referenced in s. 5(2) of the Code.
Legal Onus of Proof
6The applicant bears the legal onus of establishing discrimination and/or harassment on a balance of probabilities. To successfully establish harassment, the applicant must prove that it is more probable than not that the respondent’s actions constituted harassment because of one of the grounds protected under the Code. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83, and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The case law is clear that a protected ground need only be one of the factors involved for there to be a violation of the Code. It does not have to be the only factor, or even the primary factor.
7It is also not necessary to establish an intention to discriminate, as discrimination will often stem from unconscious biases or beliefs. Moreover, it is well established that a facially neutral standard may have a discriminatory adverse effect. See s. 11 of the Code; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 551; and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at para. 20 (“Meiorin”).
8In this matter, the applicant’s case largely falls to be determined in accordance with well-established principles applicable to circumstantial evidence. These principles were set out by the Tribunal and affirmed by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884 at para. 77, upheld 2012 ONCA 155:
(1) Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.
(2) It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.
(3) A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.
(4) There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.
(5) The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
Language-Related Discrimination
9Language is not a prohibited ground of discrimination under the Code. However, language can be a defining characteristic of place of origin, ethnic origin or ancestry, all of which are grounds protected under the Code. See the Ontario Human Rights Commission’s Policy on Discrimination and Language. As a consequence, differential treatment because of language can give rise to discrimination under the Code. However, the onus is on the applicant to establish a nexus between the respondent’s actions and a ground protected under the Code. See, for example, Arnold v. Stream Global Services, 2010 HRTO 424 at para. 20; Chan v. MTY Tiki Ming Enterprises Inc., 2013 HRTO 915 at paras. 41-42; and Chau v. Olymel S.E.C\L.P, 2009 HRTO 1386 at para. 35.
Findings of Credibility
10Where it was necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so below. In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.
11The Tribunal has recognized that a party’s failure to call a witness who has material and direct knowledge of the disputed facts may prompt the Tribunal to draw an adverse inference. That is, in such cases, the Tribunal may infer that the party did not call a particular witness because the witness’ testimony would not have supported that party’s case. See, for example, Woolrich v. Royal Lepage Relocation Services, 2010 HRTO 670 at para. 23.
General Factual Background
12The applicant was born in China and immigrated to Canada approximately ten years ago.
13He became employed by the respondent as a Helpdesk Support Analyst part-time from June 1, 2009 to February 26, 2011. His hours were extended to full-time hours from February 27, 2011 to May 31, 2012.
14The respondent is in the business of providing services and technology for processing financial transactions (for example, debit and credit card transactions) to financial institutions and various points of sale across Canada.
15The applicant was the respondent’s only Helpdesk Support Analyst at the time his employment was terminated. As a Helpdesk Support Analyst, his duties centered on resolving any information technology (“IT”) problems encountered by the respondent’s employees. In addition to the applicant’s IT position, the respondent employed approximately 10 employees in its National Client Support Center (“NCSC”). These NCSC employees also provide IT support. However, unlike the applicant, NCSC employees provide IT support to the respondent’s customers rather than its employees.
16The applicant received four performance reviews while employed with the respondent: one for 2009, one for 2010, one of the first half of 2011 and one for the full 2011 year. He received two performance reviews in 2011 because his manager changed mid-year. The applicant was graded as meeting objectives on all four performance reviews. Also, it was not disputed that he received a merit increase and an incentive bonus in 2009 and 2010.
Alleged Harassment and/or Bullying
17The applicant began to report to Ray Boorman in early 2012. I summarize below the incidents of alleged harassment raised by the applicant at the hearing. In my view, even if I were to accept the applicant’s version of these incidents, he has not provided any evidence from which I could infer that these incidents were linked to any of the grounds protected under the Code.
Background to Incidents of Alleged Bullying
18The applicant testified that Mr. Boorman, who later became his supervisor, ignored him when he said good morning to Mr. Boorman on his first day of employment. The applicant testified that he and Mr. Boorman never had friendly communications after this first interaction. The applicant provided the following incidents as examples of bullying and/or harassment by Mr. Boorman.
November 2009
19The applicant testified that, in November 2009, Mr. Boorman unfairly blamed him when an employee’s computer was showing the wrong time. The applicant stated that Mr. Boorman blamed him for not providing the employee local administrative rights when in fact the problem had to do with a patch file that needed to be installed on the employee’s computer.
March 2011
20The applicant testified that, in March 2011, Mr. Boorman shouted at him in front of other employees when he unplugged a computer’s power cable instead of shutting down the computer by pressing the power button.
September 2011
21The applicant testified that, in September 2011, Mr. Boorman angrily asked why he was receiving a certain onscreen message when he opened a computer program. The applicant stated that the message was not his fault but instead related to the fact that the respondent had not purchased a license for a certain component of the program.
November 2011 – First Incident
22The applicant testified that, in November 2011, Mr. Boorman unfairly blamed him for not upgrading the memory card on an employee’s computer. The applicant testified that the problem with the computer related to the fact that it was not running the proper service pack.
November 2011 – Second Incident
23The applicant testified that, later in November 2011, Mr. Boorman shouted at him in front of another employee. According to the applicant, Mr. Boorman unfairly blamed him for failing to grant the employee administrative rights to install a certain program. The applicant testified that this omission was not his fault, as his previous supervisor had never authorized him to grant such administrative rights.
February 2012
24The applicant testified that Mr. Boorman blamed him for breaking company policy by asking for another employee’s login information. The applicant stated that this was unfair since his previous supervisor had authorized him to obtain login information in order to set up computers for employees who worked remotely.
25On March 16, 2012, the applicant approached the respondent’s Vice President of Channel Sales and Marketing, Paul Mighton, to complain about how Mr. Boorman was treating him. The applicant followed up with an e-mail to Mr. Mighton two days later. The applicant testified that he approached Mr. Mighton because he trusted him and saw him as a father figure. In his e-mail, he raised the last four incidents set out above. However, he did not allege any violation of the Code due to these incidents. Instead, he stated in his e-mail that Mr. Boorman did not like him and “treat[ed] him personally (sic)”. He also stated that Mr. Boorman treated him rudely and with contempt which he said hurt his dignity as a human being.
Analysis of Alleged Bullying Incidents
26Although I understand that the applicant felt that Mr. Boorman unfairly criticized him and raised his voice at him in each of these incidents, I find that these incidents do not amount to harassment under the Code.
27The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27, and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10. As noted above, the Tribunal does not have jurisdiction to address general forms of workplace or personal harassment unconnected to a ground protected under the Code.
28The applicant made no allegation, until his closing submissions, that Mr. Boorman bullied him because he is Chinese-Canadian. During his testimony in chief, I asked the applicant whether he was alleging that Mr. Boorman bullied him because he is Chinese-Canadian, or whether he was instead alleging a more general form of bullying. The applicant confirmed that his claim was that Mr. Boorman bullied him in a “personal” or general way. The applicant confirmed this a second time during cross-examination.
29The applicant’s characterization of his claim as one of general bullying was consistent with his Application and witness statement. In his Application and witness statement, the applicant made no claim that the incidents outlined above amounted to bullying linked to his race, ethnic origin or place of origin. Further, in his March 18, 2013 complaint to Mr. Mighton, the applicant made no allegation that Mr. Boorman’s actions were linked to his race, ethnic origin or place of origin.
30In his closing submissions, the applicant, for the first time, claimed that Mr. Boorman bullied him because he is Chinese-Canadian. However, the applicant provided no evidence from which an inference could be drawn that any of the incidents above were linked to his race, ethnic origin, place of origin or any other ground protected under the Code.
31For the reasons set out above, even if I were to accept the applicant’s version of the above incidents, he has not established that these incidents were linked to any of the grounds protected under the Code. As a result, the applicant’s allegations of harassment must be dismissed.
Denial of Long Distance Package
Factual Background
32The applicant claimed that Mr. Boorman denied him a long distance travel package for discriminatory reasons. The applicant testified that Vice President Paul Mighton’s executive assistant e-mailed him in April 2012 to ask whether he wanted a long distance package to use his Blackberry and computer during an upcoming vacation to China. The applicant replied that he would be happy to be provided with a long distance package. Shortly after this, the executive assistant e-mailed the applicant once again to advise that no package would be purchased as the company had begun to buy such packages only for executives, managers and critical support staff. The executive assistant also advised the applicant that the company would like him not to take his Blackberry with him on his vacation.
33Mr. Boorman followed-up with an e-mail to the applicant and the executive assistant stating that the respondent’s informal policy was that only managers and key employees were permitted to carry the company’s equipment outside of normal work hours or locations. He indicated that the company’s equipment was not to leave the province for legal reasons that he would not get into. Mr. Boorman ended his e-mail stating “Personally though, Yongbin take the vacation time… Without worrying about Everlink!”
34Following this e-mail, Mr. Boorman e-mailed Mr. Mighton to say that the company should probably formalize its policy on the long-distance package issue. He noted at the end of the e-mail “Yongbin wanted to take his PC and phone to China with him. Lol.”
35At the hearing, Mr. Boorman testified that the executive assistant had asked him whether he had provided approval for the applicant to take his computer to China. He testified that it was the company’s policy not to take company equipment outside Canada. Mr. Boorman testified that the respondent had had problems with employees accidentally incurring significant long distance and roaming charges while on vacation. Mr. Boorman testified that there was no reason for the applicant to take his phone or computer on vacation with him. It was not disputed that the applicant was not expected to work, or be available, while he was on vacation.
Analysis of Allegations Re. Long Distance Package
36Although I understand that the applicant felt targeted by Mr. Boorman, I find Mr. Boorman’s testimony with respect to this incident more credible and consistent with the preponderance of possibilities than the conclusions drawn by the applicant.
37The applicant’s view that he was being targeted unfairly was based on only a partial awareness of the facts surrounding the denial of the long distance package. I find it credible on the whole of the evidence that the respondent did have an informal policy that long distance packages were only made available to employees who were expected to work or be available for consultation during their vacations. The applicant conceded in cross-examination that he was not expected to work while in China and therefore he did not need his computer or Blackberry for any work-related reason while on vacation. I find that it is more probable than not that Mr. Boorman was applying this informal policy rather than targeting the applicant for any improper reason.
38Moreover, I note that, even if I were to find that Mr. Boorman targeted the applicant for a more strict application of the policy, there was absolutely no evidence to support the applicant’s conclusion that his race, ethnic origin, or place of origin were factors in Mr. Boorman’s actions. The applicant himself did not suggest that Mr. Boorman had targeted him due to these grounds and the applicant led no evidence to support such an inference.
39In order to establish a violation of the Code, the applicant had to satisfy the Tribunal on a balance of probabilities that one or more of the Code grounds alleged in the Application were a factor in Mr. Boorman’s failure to provide him with a long distance package for his vacation. For the reasons set out above, he has failed to do so.
The Applicant's Termination
Background re. Applicant's English Language Abilities
40One of the personal development objectives the applicant identified in his 2010 and 2011 performance reviews was that he would seek to improve his verbal and written skills in English by completing online English as a Second Language (“ESL”) courses and tests. By e-mail dated June 23, 2011, the applicant’s supervisor at the time, Steve Watkins, sent the applicant a memorandum to follow up on his 2010 performance review. In the memorandum, Mr. Watkins told the applicant that he was performing well. However, Mr. Watkins told the applicant that he was attaching a development plan to assist him in reaching an expected level of proficiency in the Helpdesk Support Analyst role. In addition to various technical objectives, the development plan stated that the applicant needed to adhere to Personal Development Objective #2 from his 2010 performance review by July 22, 2011. Personal Development Objective #2 involved the improvement of the applicant’s verbal and written skills in English. The applicant was to improve his skills by completing certain online ESL courses and tests and investigating other sources of assistance such as night school and other online courses.
41In a follow-up development plan dated July 26, 2011, Mr. Watkins noted that he had seen an improvement in the applicant’s writing skills and that he wanted to see a significant improvement in his verbal skills. Mr. Watkins noted in the plan that the applicant should continue to focus on improving his verbal skills using various online and other resources. It was not disputed that the applicant’s manager for the second part of 2011, Bruce Rice, did not follow up on the development plan sent by Mr. Watkins. Mr. Rice rated the applicant as having met performance expectations in his performance appraisal for the full 2011 year.
Discussion of Terminating Applicant in February 2012
42Members of the respondent’s management staff discussed terminating the applicant’s employment in February 2012.
43Mr. Boorman testified that Vice-President Paul Mighton had instructed him to “eliminate the applicant’s Helpdesk Support Analyst position” when he first took over supervision of the applicant and the NCSC agents in February 2012. Although Mr. Boorman stated several times that Mr. Mighton had told him to eliminate the Helpdesk Support Analyst position, this testimony is inconsistent with a set of e-mails that were admitted into evidence. The e-mails involved communications between Mr. Boorman and human resources consultant Courtney Kindrat. From the e-mails, it is evident that Mr. Mighton’s instructions related not to the elimination of the Helpdesk Support Position, but to the termination of the applicant’s employment due to his perceived communication and English language difficulties.
44In an e-mail dated February 23, 2012, Mr. Boorman informed Ms. Kindrat that Mr. Mighton had instructed him to terminate the applicant’s employment due to complaints Mr. Mighton allegedly had received about the applicant’s communications skills and English language abilities. Specifically, Mr. Boorman stated as follows in his e-mail:
Courtney, when I took over Bruce’s group I also inherited Yongbin. Paul [Mighton] has indicated that he has had more than a few complaints over the past few months about Yongbin’s communication skill and English language abilities. Basically, I have been told to deal with Yongbin ASAP. As in let him go.
Not the nicest of tasks I know, but can we discuss this situation sometime tomorrow.
45Ms. Kindrat responded by e-mail of the same date which stated in its relevant part:
Hi Ray,
I am travelling, back in the office on Tuesday. I recall discussing this with Bruce and he had indicated that he was working on some language courses.
Can you tell me where the complaints have been coming from?
Because there is not anything documented and this is related to a protected status. The termination is complicated. I would prefer to review his file and prepare a thorough plan.
46Mr. Boorman testified that he had e-mailed Ms. Kindrat because Mr. Mighton had told him to eliminate the Helpdesk Support Analyst position. Mr. Boorman stated that he had suggested to Mr. Mighton that the applicant be placed in an NCSC position. According to Mr. Boorman, Mr. Mighton told him that the applicant’s English language skills were not good enough for an NCSC position. Mr. Boorman also testified that Mr. Mighton mentioned having received complaints from the respondent’s staff about the applicant’s language abilities. Mr. Boorman testified that Mr. Mighton had told him that they needed to push the applicant to improve his English language skills. According to Mr. Boorman, he e-mailed Ms. Kindrat on February 23, 2012 because he wanted to find out whether the human resources staff knew whether the applicant had followed up on his goals to improve his English speaking skills by taking an ESL course.
47I find that Mr. Boorman’s testimony on this point is not credible as it is inconsistent with the content of the e-mail he sent to Ms. Kindrat in several respects. First, in the e-mail, Mr. Boorman stated clearly that Mr. Mighton has instructed him to terminate the applicant’s employment due to (unspecified) complaints that had allegedly been made about his communication and English language abilities. There is no mention at all in the e-mail about eliminating the Helpdesk Support Analyst position filled by the applicant. Second, Mr. Boorman made no mention whatsoever in the e-mail of wanting to determine whether the applicant had ever taken an ESL class. Instead, in the e-mail, Mr. Boorman appeared resigned to carrying out the task that Mr. Mighton had assigned him to do – that is, “let him [the applicant] go”. It is clear from the e-mail that the Mr. Mighton had made the decision to terminate the applicant’s employment due to perceived problems with the applicant’s communication and English language skills and that he had instructed Mr. Boorman to carry it out.
48It was only after Ms. Kindrat raised concerns about the termination being “complicated” due to the connection to a protected ground, that the decision to terminate the applicant’s employment at the end of February was either put on hold or reconsidered. As noted in the e-mail, Ms. Kindrat advised that she wished to review the applicant’s file and prepare a thorough action plan with respect to the matter.
49Mr. Boorman testified that he, Ms. Kindrat, and Mr. Mighton held a teleconference meeting to discuss the issue sometime near the end of February, 2012. When I asked Mr. Boorman to provide specifics about what was discussed in the meeting, Mr. Boorman stated that he was only brought in part way through the conference call. He stated that he was “not privy to” the first part of the meeting. Mr. Boorman testified that, in the part of the meeting he was privy to, Mr. Mighton instructed him to make sure that the applicant took an ESL course to improve his English language skills.
50In an e-mail dated March 9, 2012 to Mr. Mighton, copied to Mr. Boorman, Ms. Kindrat stated:
As a follow up to our discussion regarding the attached documentation for Yongbin, I would suggest that as a first step Ray meets with Yongbin to review the previous development plan (July 2011) and to determine which, if any, actions have been taken. We can then better establish an action plan based on this meeting and the effort he has put into the established plan over the past few months.
51I note that the attached documentation referred to in Ms. Kindrat’s e-mail was not disclosed by the respondent. Also, the respondent did not call either Mr. Mighton or Ms. Kindrat to testify at the hearing. Neither Mr. Mighton nor Ms. Kindrat is currently employed by the respondent but both clearly have material and direct knowledge of key facts relating to the applicant’s termination. Without these two key persons being called as witnesses, the Tribunal was left without any testimony about the discussions held between Mr. Mighton and Ms. Kindrat which appear to have led to the respondent’s decision to re-organize the Helpdesk Support Analyst position a few months later. As noted below, the respondent included Mr. Mighton and one of its human resources representatives on its list of intended witnesses. It also submitted witness statements for them. However, shortly before the hearing, the respondent advised that it would not be calling either of them as witnesses.
March 16, 2012 Meeting
52Mr. Boorman met with the applicant on March 16, 2012. In his direct testimony, Mr. Boorman stated that he met with the applicant as part of a series of meetings he held with the staff who began reporting to him in February 2012. In the meeting, Mr. Boorman asked the applicant whether he had attended an ESL class. When the applicant said he had not, Mr. Boorman told him he needed “to go”. In his testimony, the applicant said he understood Mr. Boorman’s statement that he “need[ed] to go” to mean that he should quit. By contrast, Mr. Boorman testified that, when he told the applicant that he “need[ed] to go”, he meant that the applicant needed to go take an ESL course.
53Mr. Boorman testified that he was focused on this issue because, at that point, he knew that the respondent would soon be making budget cuts and likely would be eliminating the Helpdesk Support Analyst position. Mr. Boorman stated that he wanted to make sure that he could do everything to keep the applicant employed if his position were eliminated.
54While Mr. Boorman testified that he met with the applicant as part of a more general series of meetings with staff, based on the e-mails set out above, I find it clear that Mr. Boorman met with the applicant specifically to follow up on the directions arising from the meeting between Mr. Mighton and Ms. Kindrat and the directions set out in Ms. Kindrat’s March 9, 2012 e-mail. I find it likely that, when Mr. Boorman told the applicant “to go”, he meant that he needed to take an ESL class. This interpretation is most consistent with the rest of the evidence on this point. Even the applicant admitted in cross-examination that he had signed up for a course following Mr. Boorman’s instructions. In my view, this implies that the applicant understood Mr. Boorman’s direction to mean he should register for an ESL class.
55Approximately three weeks later, on April 5, 2012, Mr. Boorman followed up with the applicant by e-mail to find out whether he had made progress in signing up for any ESL courses. After an exchange of e-mails, on April 10, 2012, Mr. Boorman suggested that the applicant take an ESL course offered by Seneca College, the cost of which would be covered by the respondent. The following day, the applicant confirmed with Mr. Boorman that he had registered for a Level 6 ESL course. The applicant began attending the course on May 12, 2012. The course was scheduled to run until August 12, 2013.
May 31, 2012 Termination Meeting
56The respondent terminated the applicant’s employment on May 31, 2012. In the termination meeting, Mr. Boorman informed the applicant that his position was being eliminated and that the respondent had determined that there was no other position with the company that suited his qualifications.
57Mr. Boorman testified that the decision to eliminate the Helpdesk Support Analyst position was taken by Vice-President Paul Mighton and the respondent’s Executive Leadership Team (“ELT”). Mr. Boorman and the respondent’s two other witnesses, Renald Ching and Duane Gomes, testified that the respondent has not filled the Helpdesk Support Analyst position since the applicant’s termination.
58The applicant testified that Mr. Boorman told him in the meeting that the Helpdesk Support Analyst position would be taken over by the assistant to the respondent’s President. By contrast, Mr. Boorman testified that he had told the applicant to turn his keys and computer equipment in to the President’s assistant. He testified that his communications about the President’s assistant would be on the MP3 audio recording of the termination meeting filed by the respondent. In response, the applicant claimed that Mr. Boorman had manipulated the audio recording because he said he remembered Mr. Boorman stating in the meeting that the President’s assistant would take over his former duties. Mr. Boorman denied manipulating the audio recording. Further, he stated that even if he had wanted to, he would have no idea how to manipulate or edit an MP3 file.
59Having listened to the audio-recording, I note that there is no reference to the President’s assistant on it. Since both the applicant and Mr. Boorman testified that Mr. Boorman had made a reference to the President’s assistant, I find that Mr. Boorman likely made this reference either before he began recording the meeting or sometime after the meeting.
60On balance, I find it more probable than not that Mr. Boorman did not tell the applicant that the President’s assistant was taking over his former duties. I find it most likely that he told the applicant to turn over his keys and computer to her. I find that the applicant likely mistook this to mean that the President’s assistant would be taking over his duties. Instead, I accept the respondent’s evidence that the President’s assistant is the person who holds such things for safe keeping and redistribution when an employee ceases to be employed by the company.
Respondent's Re-Organization
61Both Mr. Boorman and Mr. Ching, the respondent’s in-house counsel, testified that the respondent underwent a re-organization starting in the Spring of 2012. Both testified that the respondent’s ELT was responsible for the decision-making surrounding the re-organization. Therefore, Mr. Boorman and Mr. Ching could only provide hearsay testimony about the ELT’s decision-making relating to the re-organization and the reasons for choosing the positions that were to be eliminated or consolidated as part of the re-organization.
62Mr. Ching testified that the respondent began to implement a re-organization of positions in the Spring of 2012 as a cost savings measure. According to Mr. Ching, the re-organization involved a realignment of certain positions and the elimination of other positions. While the Response stated that the respondent concluded its re-organization in May 2012, Mr. Ching testified that the re-organization occurred in two phases. He testified that two positions were eliminated in May 2012 and six positions were eliminated in February 2013. These eight positions amounted to approximately 10% of the respondent’s staff. Paul Mighton, the Vice-President of Channel Sales and Marketing, was one of the persons whose position was eliminated in February 2013.
Reasons Given for Elimination of Applicant's Position in May 2012
63Neither Mr. Boorman nor Mr. Ching could provide any direct evidence as to why the ELT determined that the applicant’s position should be eliminated or re-organized in May 2012. The respondent also provided no documentary evidence whatsoever relating to the re-organization or setting out the reasons why the applicant’s position was re-organized. The only evidence provided on the issue was general testimony from Mr. Boorman that Mr. Mighton had told him that he was facing pressure to hire more NCSC staff and that he felt there was not enough work for a full-time Helpdesk support person.
64When I raised my concerns about the lack of any direct or documentary evidence on the re-organization and on the reasons why the respondent chose the applicant’s position to be eliminated or re-organized in May 2012, the respondent’s counsel sought to call her instructing client Duane Gomes, the respondent’s Vice President of Finance and Comptroller. I permitted Mr. Gomes to testify even though he had not been subject to the Tribunal’s order excluding witnesses from the hearing room prior to their testimony.
65As a member of the respondent’s ELT during the relevant time period, Mr. Gomes was able to provide relevant testimony regarding the ELT’s decision-making in regards to the respondent’s re-organization. According to Mr. Gomes, towards the end of 2011, the ELT determined that the company’s best possibility for achieving growth was through its point of sale business. Mr. Gomes testified that the ELT determined that it required an additional employee in its National Client Support Center who had point of sale experience. Mr. Gomes testified that, due to the respondent’s financial position, it determined that it could not increase its head count and in fact would have to look at combining or eliminating positions.
66Mr. Gomes testified that all the respondent’s Vice-Presidents made presentations on positions that could be eliminated within their departments. Based on these presentations, the ELT decided to eliminate two persons immediately: the applicant and an NCSC agent who, according to Mr. Gomes, was fairly new and “not working out”.
67There was some lack of clarity as to the timing of the decision to eliminate the applicant’s position. In its Response, the respondent stated that it made the decision to eliminate the applicant’s position in March 2012 but that it did not communicate the decision until May 2012. However, Mr. Gomes testified that the ELT made the decision to eliminate the position at its executive retreat in May 2012.
68Mr. Gomes stated that Mr. Mighton had mentioned the applicant’s perceived English language difficulties in the months leading up to the ELT’s retreat. However, Mr. Gomes testified that the reason that the Helpdesk Support Analyst position was eliminated was because there was insufficient work to justify continuing to employ someone full-time in that position.
69While Mr. Gomes provided relevant and useful testimony as to the ELT’s decision-making in relation to the re-organization, Mr. Gomes’ testimony was a poor substitute for Mr. Mighton’s testimony. By all accounts, Mr. Mighton was the person who proposed the termination of the applicant’s employment in February 2012 due to apparent concerns about his communication and English language skills. Mr. Mighton was also the person who proposed that the applicant’s position be eliminated in the following weeks or months. Mr. Gomes could provide little testimony as to the reasons Mr. Mighton had determined that the applicant’s position should be one of the two positions eliminated in May 2012. Mr. Gomes did testify that the ELT had determined that there was not enough work to justify continuing to employ someone full-time in the Helpdesk Support Analyst position. However, the respondent admitted no further evidence to support this determination and the determination appears to have been made based on Mr. Mighton’s recommendation with respect to the changes that could be made within his department or area of the company.
70There was some inconsistency between the respondent’s Response and its witnesses’ testimony as to who is now performing the duties formerly associated with the Helpdesk Support Analyst position. Mr. Boorman and Mr. Gomes testified that the duties of the applicant’s former position were taken up by various managers who all “pitched in” with NCSC staff being called upon as necessary. In the Response, the respondent stated that the duties of the position were merged with the position of NCSC agent. However, both the Response and the respondent’s witnesses were clear that the Helpdesk Support Analyst position remained unfilled after the applicant’s termination.
71Both Mr. Gomes and Mr. Boorman testified that the respondent decided not move the applicant into the position of NCSC agent due to the applicant’s perceived English language difficulties. Both testified that the applicant’s English language skills were not strong enough to perform the role of NCSC agent. Both testified that the NCSC position requires strong language skills to communicate with customers. Mr. Boorman testified in cross-examination that, while the applicant’s English writing skills had improved, it was not always clear what the applicant was saying.
72Mr. Gomes also noted that in hiring an additional NCSC agent the respondent was hoping to hire someone who could speak both English and French. There was no evidence admitted at the hearing as to whether the person hired as a new NCSC agent was in fact bilingual.
Parties' Submissions Re. Termination
73The applicant submitted that the respondent terminated his employment due to his accent which he sought to link to his place of origin, ethnic origin and/or race. The applicant placed the blame on Mr. Boorman, who he assumed was primarily responsible for his termination. He noted that his previous supervisor had rated him as meeting expectations and seemed content to let him improve his language skills through online self-study. For this reason, the applicant concluded that Mr. Boorman was the person responsible for his termination. According to the applicant, Mr. Boorman’s “plot” was “foiled” by Courtney Kindrat, the respondent’s human resources consultant, when she expressed concern about the applicant’s termination in February 2012. However, according to the applicant, Mr. Boorman was eventually successful in terminating him due to his perceived lack of proficiency in speaking English.
74The respondent submitted that there was absolutely no evidence of a conspiracy by Mr. Boorman, or anyone else, against the applicant. The respondent argued that the applicant was prone to dramatic interpretations of the facts. Instead, the respondent argued that its witnesses’ evidence about the reasons for the applicant’s termination should be preferred over the applicant’s conspiratorial suspicions. The respondent submitted that the applicant was not terminated for discriminatory reasons but was instead terminated due to the respondent’s re-organization and the merging of his former position with that of NCSC agent. The respondent argued that the applicant did not possess the necessary English skills for the position of NCSC agent. Finally, the respondent argued that, even if the applicant could show that his language skills were a factor in his termination, he failed to establish a nexus between his language abilities and any of the grounds listed in the Application.
Analysis Re. Termination
No conspiracy by Mr. Boorman
75I accept the respondent’s submissions that the evidence simply does not support any conspiracy on the part of Mr. Boorman against the applicant. I accept the evidence of the respondent’s three witnesses that the decision to terminate the applicant’s employment was taken by the respondent’s ELT. I also accept Mr. Gomes’ testimony that the ELT made its decision based on the positions put forward for elimination by its Vice-Presidents. In this case, based on the testimony at the hearing, the person responsible for the applicant’s termination was most likely Mr. Mighton. Therefore, I do not accept that there was any conspiracy by Mr. Boorman against the applicant.
76Even if the applicant is mistaken in his thinking that Mr. Boorman was the person responsible for his termination, this does not end the matter. The termination decision was taken by the respondent as an employer and therefore I must determine whether the decision was discriminatory under the Code.
Applicant's Perceived English Language Communication Difficulties a Factor in Termination
77Based on the evidence admitted at the hearing, I am satisfied on a balance of probabilities that the applicant’s perceived verbal communication difficulties in English were a factor in the respondent’s decision to re-organize his position and to terminate his employment.
78As noted above, the respondent itself submitted that the applicant’s English skills were insufficient for him to be moved to the NCSC agent position. In my view, the applicant’s perceived difficulties communicating verbally in English were a factor both in the respondent’s decision to re-organize his position and its decision not to move him to an NCSC position.
79I reach this conclusion based on the totality of the evidence. The two main factors leading to my conclusion are the e-mail exchange between Mr. Boorman and Ms. Kindrat a few months before the applicant’s termination, as well as the respondent’s failure to call Mr. Mighton and Ms. Kindrat as witnesses.
80A few days before the hearing, the respondent decided not to call three intended witnesses, at least two of whom -- Mr. Mighton and the respondent’s President -- had direct input into the ELT’s decision to eliminate the applicant’s position. The respondent submitted a witness statement for Mr. Mighton as well as the respondent’s President and one of its human resource consultants. However, four days before the hearing, one of the respondent’s counsel advised that the respondent would not be calling these three intended witnesses at the hearing.
81If one or more of these three intended witnesses were no longer available on the date of the hearing, the respondent could have sought an adjournment. Alternatively, the respondent could have sought permission to have one or more of these intended witnesses testify by telephone. It did not do so.
82The applicant raised concerns about the respondent’s failure to call these three intended witnesses at the hearing and its late notice on the issue. By not calling these witnesses, the respondent deprived the applicant of the opportunity to cross-examine them to obtain evidence relating to the reasons why his position was eliminated or re-organized in May 2012. Moreover, the respondent’s late notice that it would not call Mr. Mighton and the two other witnesses deprived the applicant of any reasonable opportunity to summon these witnesses to provide evidence at the hearing.
83In my view, Mr. Mighton and Ms. Kindrat (or in the alternative the other human resources representative the respondent had intended to call) would have material and direct knowledge of the facts surrounding the applicant’s termination. This is particularly the case for Mr. Mighton who, based on the testimony at the hearing, was likely the person primarily responsible for terminating the applicant’s employment. Based on the testimony at the hearing, I am satisfied that the ELT’s decision was based on Mr. Mighton’s recommendation as to positions that could be eliminated in his area of the company. Mr. Mighton would have knowledge of significant facts relating to the reasons for the applicant’s termination to which the respondent’s other witnesses could not testify. These circumstances would provide the basis for the Tribunal to draw an adverse inference. That is, it would provide the basis for the Tribunal to infer that the respondent did not call Mr. Mighton as a witness because his testimony likely would not have supported the respondent’s case.
84However, even if an adverse inference were not appropriate in this case, I am satisfied on a balance of probabilities that the applicant’s perceived verbal communication difficulties in English were a factor in the re-organization of his position and his termination. Based on the e-mail correspondence disclosed at the hearing, I find that Mr. Mighton directed Mr. Boorman to terminate the applicant’s employment due to his communication and English language difficulties in late February 2012. I find that this decision was put on hold or reconsidered due to Ms. Kindrat’s concerns that the termination was “complicated” as it might raise a Code issue. That is, the decision was either put on hold or reconsidered so that Ms. Kindrat could formulate a “thorough plan” with respect to the matter. Three months later, the respondent terminated the applicant’s employment due the elimination of his position as part of the first phase of its re-organization. According to testimony by Mr. Ching and Mr. Gomes, the applicant was one of only two employees terminated during this first phase of re-organization. The other employee, in Mr. Gomes’ words, was an NCSC employee who was fairly new and “not working out”.
85In these circumstances, in the absence of evidence explaining this sequence of events, I find that, on a balance of probabilities, one of the reasons the applicant was terminated was because the respondent believed his verbal communication skills in English were inadequate for his position. In light of this sequence of events and the e-mail correspondence admitted at the hearing, I am satisfied on a balance of probabilities that the applicant’s perceived difficulties communicating in English were a factor in the respondent’s decision to re-organize his position and to terminate his employment. In other words, I am satisfied that the respondent re-organized the applicant’s position and terminated his employment in part because he did not meet a certain, unspecified, standard of verbal English language communication that they judged was required for his position.
86Of course, that is not the end of the matter. The Code will not be violated unless the evidence establishes a nexus to a Code ground. Even if a nexus is established, the Code will not be violated if the respondent can establish a defence under the Code. I turn to these issues next.
Nexus to the Code
87As noted above, language is not a ground protected under the Code. In order to make out discrimination, I must be satisfied that there was a nexus between the applicant’s perceived difficulties communicating verbally in English and a ground protected under the Code. In this case, it was not disputed that the applicant’s perceived difficulties communicating verbally in English arose from the fact that English is his second language. English is his second language because he was born in China. These circumstances alone might be sufficient to establish a connection to the Code. However, in my view, additional evidence in this case supports a nexus to the applicant’s place of origin.
88The Tribunal has recognized that most Ontario employers require that their employees speak English with a level of fluency commensurate with their work requirements. See Arnold v. Global Stream Services, above at para. 19. However, the Tribunal has also found that the Code may prohibit some forms of discrimination linked to one’s language, such as speaking less grammatically or speaking with an accent. See Arnold v. Global Stream Services at para. 20; Segula v. Ferrante (1995), 1995 CanLII 18168 (ON HRT), 27 C.H.R.R. D/412 (Ont. Bd. Inq.). In each case, the evidence must be examined to determine whether there is a basis to infer from the evidence that the English language difficulties perceived by a respondent relate to factors associated with one’s place of origin.
89The respondent advanced very little evidence as to the exact nature of the English language difficulties perceived by Mr. Mighton or other employees in February 2012 which I found played a role in the respondent’s decision to re-organize the applicant’s position and terminate his employment. The respondent advanced very little evidence on this point because its position was that the applicant’s English language skills played absolutely no role in its decision to re-organize his position. The respondent submitted that the applicant’s position was eliminated solely for legitimate business reasons as part of a re-organization. For the reasons set out above, I found that, on a balance of probabilities, the applicant’s perceived difficulties communicating in English were at least a factor in the re-organization and/or elimination of his position in May 2012.
90The only testimony about precisely why the respondent perceived the applicant’s verbal English language skills to be inadequate was Mr. Boorman’s testimony in cross-examination that the applicant was not always clear when speaking. None of the applicant’s performance appraisals or any other evidence clearly specified the nature of the perceived inadequacy in the applicant’s verbal English language skills. Meanwhile, the applicant was employed by the respondent for three years. His hours were extended from part-time to full-time part way through his employment. He was rated as having met expectations in each of his performance appraisals. In this context, I find on a balance of probabilities that the problems Mr. Mighton and others perceived with the applicant’s language skills related to factors such as the applicant’s accent, less grammatical sentence structure, pronunciation, syntax, etc., which are all factors that are more readily associated with the applicant’s place of origin. For these reasons, I am satisfied that the evidence supports a nexus between the applicant’s perceived difficulties communicating verbally in English and his place of origin.
Respondent's Failure to Make Out a Valid Defence
91In some cases, a respondent will be able to establish that a certain level of verbal English language skills, even skills relating to accent, pronunciation, syntax, etc., is justified as a reasonable and bona fide requirement of employment. Section 11(1)(a) of the Code provides that a requirement, qualification or factor will not be found to be discriminatory if it is reasonable and bona fide in the circumstances. This is commonly referred to as a bona fide occupational requirement or “BFOR”.
92In order to establish that a requirement is a BFOR a respondent must discharge its evidentiary onus of showing that:
(1) it adopted the requirement for a purpose rationally connected to the performance of the job;
(2) it adopted the particular requirement in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) the requirement is reasonably necessary to accomplish that legitimate work-related purpose. To show that the requirement is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the respondent.
See Meiorin at para. 54.
93In several cases, the Supreme Court has cautioned that impressionistic evidence will be insufficient to discharge a party’s onus of proof, including a respondent’s evidentiary onus of proving a BFOR. See, for example, Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 at p. 212. See also British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 at para. 41.
94The respondent advanced no evidence in regards to any implicit English verbal skills requirement rationally connected with Helpdesk Support Analyst position since it denied that the applicant’s language skills played any role in the re-organization of this position. Therefore, I find that the respondent has failed to establish that the applicant did not meet whatever level of English language skills were reasonably required for the Helpdesk Support Analyst position.
95The only evidence advanced by the respondent in regards to the BFOR issue was in relation to the NCSC agent position. However, in my view, the evidence advanced on this point was largely impressionistic.
96The only evidence directly addressing the BFOR issue was Mr. Gomes’ testimony that the applicant’s English language skills were insufficient to perform the duties of the NCSC agent position and Mr. Boorman’s testimony that Mr. Mighton had reached the same conclusion. Both Mr. Gomes and Mr. Boorman testified that the NCSC agent position required a greater degree of English proficiency than the Helpdesk Support Analyst position because it involved communications with clients.
97In my view, this evidence falls short of establishing what level of English verbal skills were reasonably necessary to perform the NCSC agent position. The evidence also falls short of establishing that the applicant did not meet whatever level of English verbal skills were required for this position.
98For the reasons set out above, I find on a balance of probabilities that the applicant experienced discrimination on the grounds of place of origin when the respondent terminated his employment.
Remedy
99The Tribunal’s broad remedial jurisdiction is set out as follows in s. 45.2 of the Code. Among other things, the Tribunal has the power to direct 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.”
Parties' Submissions and Evidence
100In his Application, the applicant sought two years’ worth of lost wages and $990,000 as damages for injury to dignity and self-esteem. He also sought reimbursement for lost benefits, the cost of the ESL class for which he registered, and costs associated with his employment search. The applicant also sought a letter of reference. Finally, he sought as public interest remedies that the respondent adopt human rights policies and that Mr. Boorman take human rights training.
101The respondent submitted that the damages sought by the applicant were excessive and insupportable in law.
102At the hearing, the applicant produced no documentary evidence to support his claim for lost wages, nor did he provide any documentary evidence to support the other amounts he was seeking. He did testify that he earned approximately $44,000 annually while employed by the respondent. He testified that he was unemployed for approximately one year after his termination: between May 31, 2012 and May 2013. He testified that he received Employment Insurance benefits during this time period that amounted to $900 bi-weekly. He also testified that he searched for employment during his period of unemployment.
Damages for Injury to Dignity, Feelings and Self-Respect
103I have found that the applicant’s place of origin was a factor in the respondent’s decision to terminate him, but I have found that it likely was not the sole reason for the termination of his employment. The applicant testified that his termination had a very significant effect on him and his family.
104In the circumstances of this case, I have determined that it is appropriate to award $15,000 to the applicant as monetary compensation for damages for his injury to his dignity, feelings and self-respect. I find that the situation before me is comparable to Macan v. Strongco, 2013 HRTO 841, in which the Tribunal found that a Code ground was a factor in an employee’s termination, but not the sole factor. The Tribunal in that case awarded $15,000 as monetary compensation for damages for injury to dignity, feelings and self-respect.
Lost Wages and Mitigation Expenses
105I find that the applicant is entitled to lost wages for his period of unemployment less applicable statutory deductions. He testified that he searched for work throughout the period during which he was unemployed. This testimony was not challenged in cross-examination. In accordance with Supreme Court of Canada case law, the Employment Insurance benefits received by the applicant must not be deducted from his compensation for lost wages: Jack Cewe Ltd. v. Jorgenson, 1980 CanLII 177 (SCC), [1980] 1 S.C.R. 812 at 818; IBM Canada Limited v. Waterman, 2013 SCC 70 at paras. 44 and 51. I find that the applicant is not entitled to be reimbursed for the other amounts sought as he provided no evidence in relation to these claims.
Other Remedies Sought
106I do not award a letter of reference as it was not disputed at the hearing that the respondent had already provided the applicant with a letter of reference.
107I also do not consider it appropriate to award the public interest remedies requested by the applicant. I decline to order the respondent to put in place a human rights policy as it already has such a policy. I decline to order that Mr. Boorman participate in human rights training as I found that he was not responsible for the violation of the Code in this case.
Conclusions
108The Tribunal makes the following orders:
a. The application is granted in part.
b. The respondent shall pay the applicant $15,000 as monetary compensation for injury to his dignity, feelings and self-respect;
c. The respondent shall compensate the applicant for his lost wages for the period May 31, 2012 to May 1, 2013, less any monies already paid and less deductions required by law;
d. The respondent shall pay to the applicant pre-judgment interest on the amount due under paragraph c. above, for the period May 1, 2013, to the date of this Decision, calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
e. The respondent shall pay to the applicant post-judgment interest from the date of this Decision, calculated pursuant to s. 129 of the Courts of Justice Act.
Dated at Toronto, this 13th day of February, 2014.
“Signed by”
Jo-Anne Pickel
Vice-chair