Michelin v. Johnson, 2014 HRTO 321

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neil Michelin

Applicant

-and-

Ralph Johnson and Chris Carter

Respondents

-and-

Nishnawbe-Gamik Friendship Centre

Intervenor

DECISION

Adjudicator: Douglas Sanderson

Date: March 10, 2014

Citation: 2014 HRTO 321

Indexed as: Michelin v. Johnson

APPEARANCES

Neil Michelin, Applicant

Self-represented

Ralph Johnson, Respondent

Jordan Lester, Counsel

Chris Carter, Respondent

No one appearing

Nishnawbe-Gamik Friendship Centre, Intervenor

Holly Walbourne, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, creed, family status, marital status and reprisal.

backround

2This Application concerns incidents arising during the applicant's brief employment with the Nishnawbe-Gamik Friendship Centre (the "Centre") in Sioux Lookout, Ontario. The Centre provides programs intended to assist First Nations people and is a former respondent to this Application. See Michelin v. Johnson, 2013 HRTO 1914. The hearing of this matter took place on November 25 and 26, 2013 in Thunder Bay, Ontario. The applicant had three witnesses, including himself. While Ralph Johnson, an individual respondent, also testified. Chris Carter, the other individual respondent, did not attend the hearing on either November 25 or 26, 2013. Although Mr. Johnson indicated that he believed Mr. Carter was ill, Mr. Carter did not seek an adjournment and there is no reason to believe that he did not have notice of the hearing. The Notice of Rescheduled Hearing, dated August 1, 2013, advised the respondents that the Tribunal could proceed without them if they did not attend the hearing. Accordingly, the hearing proceeded without Mr. Carter as permitted by the Tribunal’s Rules of Procedure.

3At the commencement of the hearing, I granted the Centre's request for intervenor status. Both respondents were members of the Centre's Board of Directors (the “Board) when the incidents giving rise to this Application occurred. Pursuant to the Centre's bylaws, individuals acting for the Centre are entitled to be indemnified for any awards against them for actions taken in the course of their duties. Accordingly, the Centre had an interest in the outcome of the Application and I granted the Centre's request to participate in the hearing as an intervenor.

4The Centre hired the applicant in the role of Wasin Nabin worker in early August 2009. The role of the Wasin Nabin worker is to provide culturally appropriate programming to urban aboriginal youth, aged 13-18 years. The applicant’s evidence was that sometime between the commencement of his employment and the Centre's Annual General Meeting (“AGM”), held on or about September 24, 2009, Mr. Carter came into the applicant's office and began questioning the applicant about the traditional First Nations medicines he kept there. Mr. Carter is a First Nations person and, at the time, he was a member of the Centre’s Board. The applicant stated that he was born and raised in Sioux Lookout and describes himself as Caucasian. The applicant's evidence was that he was baptized in the Catholic Church, but that he came to follow First Nations spiritual practices. The applicant’s evidence was that he had some sage, sweetgrass, tobacco and a turtle shell in his office. The applicant explained, for example, that sage is burned in a "smudge ceremony", which he described as a cleansing ritual intended to assist participants to hear, see and speak with goodness.

5The applicant's evidence was that Mr. Carter's demeanor was disrespectful and he questioned the applicant's right to carry traditional medicines, but did not explain why he felt the applicant should not have them. The applicant stated that he advised Mr. Carter that others in the Centre had medicines and also noted that the Centre itself has medicines and that he had harvested medicine for the Centre. The applicant stated that Mr. Carter took a small bundle of sage without asking permission and left the remaining medicines behind. The applicant testified that he asked Mr. Carter why he was acting in this manner, to which Mr. Carter responded to the effect that Mr. Johnson, who at the time held the position of the Elder on the Centre’s Board, was to be in control of all cultural programs and medicines. The applicant stated that he advised Mr. Carter that Mr. Carter was acting disrespectfully. The applicant's evidence was that he never received any memorandum or official confirmation regarding use of medicines at the Centre.

6Charles Williams is the current Elder on the Centre’s Board. Prior to his testimony I affirmed Mr. Williams, as I did with all the witnesses, and the applicant presented Mr. Williams with a small quantity of tobacco. The applicant explained that it is customary in First Nations’ culture to give tobacco when seeking guidance from an Elder, which also impresses upon the recipient the need to speak with truthful intentions. Mr. Williams testified that he held the position of Aboriginal Healing and Wellness Coordinator with the Centre when the applicant was employed there. As the Aboriginal Healing and Wellness Coordinator, Mr. Williams explained that he looked after the Centre’s medicines and he confirmed that he and others Centre employees also kept medicine of their own. As the Elder, Mr. Williams opens and closes Board meetings with prayer and works with Centre staff regarding spiritual and cultural activities. Mr. William’s evidence was that the respectful way to receive medicine from someone is to offer tobacco or other gifts in return. Mr. Williams stated that taking medicine without offering a gift is disrespectful and that such disrespect may have consequences for the transgressor. Mr. William explained such potential consequences as “karma”, e.g., that someone showing disrespect may fall ill.

7As noted, the Centre's AGM was held on September 24, 2009. The applicant stated that he attended the AGM and assisted with preparations. The applicant's evidence was that Mr. Carter was elected president of the Centre's Board. The applicant stated that he was outside the Centre having a cigarette break when Mr. Carter came outside. The applicant overheard Mr. Carter make a comment to the effect that it was obvious that staff were not happy that he had been elected and that "we'd see who has a job or not." The applicant stated that he did not appreciate Mr. Carter's comments and therefore approached him and spoke to him about them. After his break, the applicant went back to work assisting with AGM related activities and at some point spoke to Ché Curtis-September, the Centre’s Executive Director at the time, about Mr. Carter's comments. The applicant stated that Mr. Curtis-September brought him and Mr. Carter to his office to discuss the matter.

8Mr. Curtis-September held the position of Executive Director, the Centre's senior administrator, between June 2009 and December 12, 2009. Mr. Curtis-September stated that he was on parental leave between September and December 12, 2009, when he chose to stay home rather than return to the Centre. Mr. Curtis-September noted, however, that he participated in the AGM. Mr. Curtis-September's evidence was that the applicant came to him during the AGM and stated that Mr. Carter made inappropriate comments. Mr. Curtis-September noted that he had not heard the comments and stated that he immediately called Mr. Carter and the applicant to his office to discuss the incident. According to Mr. Curtis-September, Mr. Carter acknowledged that he made the comments the applicant attributed to him and expressed his view that the Centre did not have enough First Nations people on staff. Mr. Curtis-September stated that Mr. Carter agreed that his comments had been inappropriate and apologized. Mr. Curtis-September considered the matter closed.

9Mr. Curtis-September stated that he was aware that ethnicity was a concern for the Board and Mr. Carter in particular. Mr. Curtis-September's evidence was that Mr. Carter had asked him if he was a status First Nations person and seemed disappointed when he advised Mr. Carter that he was not.

10The Centre terminated the applicant's employment on October 30, 2009. This decision was taken at a meeting of the Board on October 29, 2009. The Minutes of that meeting indicate that two members of the Board, Ms. M., and Ms. C. made a motion to dismiss the applicant because of "personal unsuitability" and that the motion was carried. The Minutes indicated that the Board assigned the respondents, Mr. Carter and Mr. Johnson, the task of informing the applicant of the termination of his employment. Mr. Johnson attended the meeting and his evidence was that the contents of the Minutes were accurate. Mr. Johnson stated that the Board discussed the motion to dismiss the applicant. According to Mr. Johnson, the Board members who made the motion raised concerns about the applicant's ability to carry out his duties. Mr. Johnson stated that the particular concern was that the applicant often did not show up for work and would go off without authorization. Mr. Johnson stated that he listened to the discussion, but did not participate in it and did not recall who also may have added to the discussion.

11The applicant's evidence was that he was called into a meeting with the respondents on October 30, 2009 in the Executive Director's office. The applicant stated that he asked to have someone to accompany him into the meeting, but his request was denied. The applicant stated that Mr. Johnson sat behind the desk and Mr. Carter sat in a chair beside the wall to the left. The applicant's evidence was that Mr. Johnson presented him with the termination letter. The applicant was shocked because he believed he was meeting the requirements of the position and making progress on several fronts. The termination letter indicated that the applicant was "found to be personally unsuitable" for the Wasin Nabin worker position and indicated that he would receive two weeks’ pay in lieu of notice. The applicant stated that he asked for an explanation and Mr. Johnson advised him to write a letter to the Board to request an explanation. According to the applicant, Mr. Carter said nothing during the meeting.

12After the meeting, the applicant went to his office to collect his belongings and Mr. Carter followed him. The applicant's evidence was that he asked Mr. Carter for an explanation and noted that they had had a good relationship in the past. According to the applicant, Mr. Carter responded to the effect that the applicant should retrieve all his belongings so he would not have to come back and warned him not to take anything that was not his.

13The applicant's evidence was that Mr. Carter began to compare the applicant to the applicant's father because the applicant's family had broken up just as his father left his mother. According to the applicant, Mr. Carter also told him that he thought the applicant was a poor father. The applicant considered this to be a personal attack and informed Mr. Carter had no right to comment on these matters.

Analysis and decision

14The relevant Code provisions are as follows:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

10. (1) In Part I and in this Part,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

“family status” means the status of being in a parent and child relationship

15The applicant’s alleged Mr. Carter harassed him on two occasions because he is not a First Nations person and not because of the applicant’s own particular ethnic origin, which in any event the applicant did not identify. Consequently, these allegations, in my view, come under the prohibited grounds of race and ancestry. In Ross v. Canadian Corps of Commissionaires, 2009 HRTO 34, the Tribunal noted that the prohibited ground of “ancestry” has rarely been considered in human rights jurisprudence and adopted the definition set out in Cousens v Canadian Nurses’ Association (1980), 2 CHRRD/365 (Ont. Bd. of Inq.) :

The term “ancestry” is here determined to mean family descent. In other words, one’s ancestry must be determined through the lineage of one’s parents through their parents, and so on. (at p. D/367).

16The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondents discriminated against him and/or harassed him, on the grounds alleged, contrary to the Code. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41 at paragraph 46.

17I find that the evidence does not support the inference that any of the Code grounds the applicant alleged were a factor in the Centre's decision to terminate his employment. Further, there is no evidence that either respondent caused his dismissal. The only evidence regarding the decision to terminate the applicant's employment came from Mr. Johnson who indicated that the decision was initiated by two other board members and was related to factors not connected to the Code. Mr. Johnson's evidence was uncontradicted and there is no cogent evidence or reason not to accept it.

18Similarly, the applicant presented no evidence that any of Mr. Johnson's actions were connected to a Code ground. Indeed, in his opening remarks, the applicant acknowledged that Mr. Johnson did not bully or harass him. Consequently, there is no proper basis for finding Mr. Johnson breached the applicant's Code rights and I dismiss the Application as against Mr. Johnson.

19Mr. Carter did not participate in the hearing, but the onus nonetheless remains on the applicant to prove that Mr. Carter breached his Code rights. In my view, the applicant provided credible testimony with respect to the allegations of discrimination and harassment. He readily admitted when he could not recall facts and did not embellish or exaggerate, despite the fact he was aware that his evidence regarding Mr. Carter's behaviour would not be contradicted. Moreover, the evidence provided in support of the applicant’s Application corroborated important elements of his testimony. For the reasons that follow, I find Mr. Carter's behaviour amounted to harassment in the workplace because of race and ancestry.

20In order to establish that Mr. Carter harassed the applicant in a manner that breached section 5(2) of the Code, the applicant must prove, on a balance of probabilities, that (1) the individual respondent was his employer, his employer’s agent, or another employee; (2) the individual respondent harassed him by engaging in a course of vexatious comment or conduct towards him that was known or ought reasonably to have been known to be unwelcome; (3) the individual respondent harassed him in the workplace; and (4) the individual respondent harassed him because of the ground(s) alleged.

21The applicant identified three incidents of alleged harassment: (1) Mr. Carter questioning the applicant about having the traditional medicines in his possession, (2) Mr. Carter's comments at the AGM, and (3) Mr. Carter's comments about the applicant's family. All three of these incidents occurred in the workplace. Mr. Carter instigated all three incidents and was either a member of the Centre's Board of Directors or the President of the Center's Board at the material times and was therefore an agent of the Center, i.e., the applicant's employer.

22The uncontradicted evidence establishes that sometime prior to the AGM, Mr. Carter came into the applicant's office and questioned the applicant's right to possess traditional medicines. The applicant defended having the medicines and questioned Mr. Carter's behaviour, which he described as disrespectful. The applicant's evidence was that he follows First Nations spiritual practices and he demonstrated knowledge of and respect for them throughout the hearing. The applicant interpreted Mr. Carter's comments to mean that he did not believe the applicant to be entitled to hold traditional medicines because the applicant is not a First Nations person. On the totality of the evidence before me, I find this to be a reasonable inference.

23The applicant's uncontradicted evidence was that Mr. Carter did not give a reason for questioning the applicant's right to have medicines other than to say that Mr. Johnson was to be in charge of such things. The applicant’s uncontradicted evidence was also that the Centre did not have a policy or practice regarding possession of medicines. In addition, Mr. Williams’ evidence directly contradicted the explanation provided by Mr. Carter. Mr. Williams stated that was he, and not Mr. Johnson, who was charged with the Centre’s medicines in the position of Aboriginal Healing and Wellness Coordinator, which he held at the material time. Mr. Williams also confirmed that other employees kept medicines at the Centre. As a result, to the extent that Mr. Carter’s hearsay explanation is admissible in these proceedings, I reject the explanation provided to the applicant by Mr. Carter. In these circumstances and given Mr. Curtis-September’s uncontradicted evidence of Mr. Carter's explicitly stated views about non-First Nations people working for the Centre, i.e., an organization for the First Nations community, I find that Mr. Carter questioned the applicant's entitlement to hold traditional medicines because he is not a First Nations person, i.e., because of his race and ancestry.

24I find that the comments Mr. Carter made at the AGM were also connected to race and ancestry. Not surprisingly, the applicant found unwelcome Mr. Carter's comments that called into question the continued employment of Centre staff. At the time the comments were made, the comments were not obviously connected to a prohibited ground of discrimination. However, the applicant and Mr. Curtis-September subsequently met with Mr. Carter regarding the comments during the AGM. During this meeting, Mr. Carter admitted the comments and expressed his view that First Nations people were underrepresented on the Centre's staff. Given that the purpose of the meeting was specifically to discuss Mr. Carter’s comments, the inference that I draw is that Mr. Carter was explaining the basis for his comments when he admitted them and went on to express his view regarding underrepresentation of First Nations. In other words, Mr. Carter, in his comments, questioned the continued employment at the Centre of employees who were not First Nations persons. Accordingly, I find that Mr. Carter’s comment at the AGM was related to race and ancestry. In making these comments, the applicant called into question the job security of the applicant and all other employees who were not First Nations. Given the obvious importance of job security, I find that Mr. Carter knew or ought to have known that his comments were unwelcome and, indeed, he apologized for them.

25Immediately after the individual respondents informed the applicant of the termination of his employment, Mr. Carter followed the applicant to his office where he made derogatory statements to the applicant in relation to his father and regarding his own qualities as a father. The Supreme Court of Canada has held that "family status" in the Code is broad enough to encompass circumstances where discrimination results from the particular identity of the applicant's family member: B. v. Ontario (Human Rights Commission), 2002 SCC 66 at paragraph 46. I see no principled basis or reason why the Court’s reasoning in this case would not apply to harassment and section 5(2) of the Code. In this case, Mr. Carter disparaged the applicant because of his negative views of the applicant's father and made derogatory comments alluding to the fact that the applicant was separated from his wife and child. I am satisfied that these comments were related to the applicant's family status. The nature of the comments was obviously insulting and I find that Mr. Carter knew or ought reasonably to have known that they were unwelcome.

26I find that the first two incidents amount to a course of conduct because Mr. Carter's comments questioned the applicant's right to carry traditional First Nations medicines and put in question his employment at the Centre because the applicant is not a First Nations person. Consequently, I find these comments amount to harassment in the workplace because of race and ancestry, in violation of section 5(2) of the Code.

27I find that Mr. Carter's comments to the applicant following the termination of the applicant employment did not form part of this course of conduct. Mr. Carter's comments on October 30, 2009 related to the applicant's family status, not his race, or ancestry, and occurred several weeks after the incident at the AGM on September 24, 2009. In my view, Mr. Carter's comments on October 30, 2009 were a single distinct incident. The Tribunal has found that in appropriate circumstances a single incident may amount to discrimination under the Code. See Murchie v. Mongolian Grill, 2006 HRTO 33. In B.C. V. London Police Services Board, 2011 HRTO 1644, this Tribunal adopted the decision of the British Columbia Human Rights Tribunal (BC HRT) in Pardo v. School District No. 43, 2003 BCHRT 71 in which the BC Tribunal stated as follows at paragraph 12:

(…) all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.

28The circumstances surrounding Mr. Carter's comments about the applicant and his family indicate that Mr. Carter intentionally sought to insult the applicant in a particularly personal matter immediately after he was dismissed, a time when he was in a particularly vulnerable position. In my view, this behaviour was sufficiently egregious amount to harassment based on the prohibited ground of family status, notwithstanding that it was a single incident.

Remedy

29It follows from the foregoing that it is entitled to a remedy regarding the harassing comments made by Mr. Carter. The Tribunal’s remedial authority is set out in section 45.2 of the Code as follows:

45.2 (1) On an Application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the Application has infringed a right under Part I of another party to the Application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the Application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

30An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON SCDC), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.

31In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 52-54:

(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 , 2009 HRTO 940 at para. 16.

The First criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

32I accept the applicant's evidence that he found Mr. Carter's behaviour objectionable and that he made this clear to him. The applicant's evidence regarding the effect of the respondents’ behaviour, however, focused entirely on the loss of his employment. There is no doubt that this loss has had a profound impact on the applicant and he gave detailed and compelling evidence in that regard. However, as I have found that the termination of the applicant's employment did not violate the Code, I can have no regard to it when considering the appropriate remedy.

33The Tribunal has considered the appropriate remedy for a single comment or a few comments in a short period of time or number of occasions and has generally awarded relatively modest damages. See Adorgloh v. Seasons Foodmart and Feng Lin, 2013 HRTO 1201 ($2,000.00), Romano v. 1577118 Ontario Inc., 2008 HRTO 9 ($1,000.00), Baisa v. Skills for Change, 2010 HRTO 2161 ($1,500.00), Brooks v. Total Credit Recovery Limited, 2012 HRTO 1232 ($2,500.00). Abdallah v. Thames Valley District School Board, 2008 HRTO 230 ($1,500.00) and Szyluk v. United Food and Commercial Workers Canada, 2009 HRTO 902 ($2,000.00).

34In my view, the harassment the applicant experienced was at least as serious as the Code violations found in the cases cited above. However, in the cases cited there was at least some evidence of the effect of the harassment on each applicant. Without such evidence, there is no proper basis for awarding applicant more than modest damages. In these circumstances, I find it appropriate to award damages for injury to the applicant's dignity, feeling and self-respect of $3,000.00: $2,000.00 in respect of the workplace harassment because of race and ancestry and $1,000.00 in respect of the workplace harassment because of family status.

order

35The Tribunal orders as follows:

1. The Application is dismissed as against Ralph Johnson:

2. Within 45 days of the date of this Decision, the respondent, Chris Carter, shall pay to the applicant $3,000.00 as compensation for injury to dignity, feelings and self-respect; and

3. The respondent, Chris Carter, shall pay pre-judgment interest on the amounts described in paragraph 35(2), above, from September 24, 2011 to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43. In the event that Chris Carter fails to make the payment described above within 45 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O 1990, c. C.43;