Fadi Kash Kannaiti v. Patricia Allen, 2015 HRTO 502

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fadi Kash Kannaiti

Applicant

-and-

Patricia Allen

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: April 21, 2015

Citation: 2015 HRTO 502

Indexed as: Kannaiti v. Allen

APPEARANCES

Fadi Kash Kannaiti, Applicant

Self-represented

Patricia Allen, Respondent

No one appearing

Introduction

1In his Application filed on September 18, 2013, the applicant alleges harassment and discrimination in employment on the basis of race, ancestry, place of origin, citizenship, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2The respondent has failed to file a Response, although she has repeatedly been directed to do so. On July 10, 2014, the Tribunal sent a letter to the respondent telling her that she needed to file a Response to the Application by August 15, 2014. This letter warned the respondent that failure to file a Response might result in the Tribunal deeming the respondent to have accepted the allegations set out in the Application and waived her right to participate in the Tribunal proceeding.

3In Interim Decision 2014 HRTO 1270, the Tribunal determined that the respondent had refused or had chosen not to participate in these proceedings. The Tribunal ordered that the respondent is deemed to have accepted all the allegations set out in the Application and is deemed to have waived all rights to notice or participation in the Tribunal’s proceedings.

4The Tribunal directed that the applicant to advise the Registrar if he wished to make oral submissions at the hearing.

5The applicant advised the Registrar that he wished to make oral submissions and the Tribunal scheduled a half-day hearing for April 7, 2015. A hearing was held by teleconference on that day.

6For reasons that follow, I find that the respondent breached the Code by discriminating against the applicant in his workplace on the basis of his race, ancestry, place of origin, citizenship and ethnic origin.

THE FACTS

7At the teleconference hearing the applicant provided sworn testimony and answered the questions that were posed to him. My findings of fact are based on the Application filed and the oral evidence provided during the hearing.

8The applicant began working at Allen’s Executive Management Services as an office administrator on June 4, 2013. He was hired by Patricia Allen, who he understood to be the manager and one of the owners of Allen’s Executive Management Services. Initially it was understood that the applicant was hired on a trial basis. He worked on this trial basis for about one month and was paid $10 per hour. After two months, the respondent indicated to the applicant that she liked his work, that he had demonstrated many skills and that she thought the applicant could help her to develop her business. The respondent asked the applicant to continue working for her. The applicant told the respondent that he was interested in continuing to work for her but that he could not continue the work if she were only to pay him $10 per hour.

9The respondent agreed to find a way to pay him more. Allen’s Executive Management Services then enrolled in the Employment Service Training Incentive, which is a wage subsidy program funded by Ontario’s Ministry of Training, Colleges and Universities. This service was provided by Accessible Community Counselling and Employment Services, registered as (A.C.C.E.S.). Under the terms of the Training Incentive Placement Agreement, the applicant was to be paid $12 per hour. The respondent was to provide the applicant with training and to pay the applicant directly. A.C.C.E.S. was to reimburse the respondent for half of the amount paid to the applicant once time sheets were submitted to A.C.C.E.S. The term of the Training Incentive Placement Agreement was to be from July 3, 2013 to October 1, 2013.

10For a short period of time after that Training Incentive Placement Agreement was signed, the respondent paid the applicant the full amount of the wages that he was owed. At times the respondent would say things to the applicant and to others in the office which he would consider to be rude and obnoxious, but he did not consider the statements to be a form of harassment that could be found to be a breach of the Code. In August 2013, the respondent began paying only part of the wages that were owed to the applicant. Even though the respondent was not paying the applicant his full wages the respondent forced the applicant to sign time sheets that indicated that he had been paid in full. The respondent told the applicant that he would be paid his full wages once she was reimbursed by A.C.C.E.S. When the respondent continued to fail to pay the applicant his wages, he contacted A.C.C.E.S. to discuss the unpaid wages. When A.C.C.E.S contacted the respondent, she told them that she would pay the applicant. The respondent again promised the applicant that he would be paid. The respondent continued to not pay the applicant’s full wages and by September 3, 2013, the applicant was owed $3,311.55 in unpaid wages. The applicant decided that he should not be working if he was not going to get paid so he told the respondent that he was going to take a few days off.

11On September 10, 2013, the applicant went to the office to speak to the respondent about his unpaid wages. Rather that discussing the outstanding wages, the respondent yelled at him and insulted him so the applicant left the office without resolving the outstanding wages issue.

12Over the next few days, the applicant and the respondent exchanged phone calls and text messages. The applicant agreed to go to the office on September 13, 2013 to discuss the outstanding wages. The applicant arrived at the office at about 3:30 on September 13, 2013, but the respondent was not in the office. The applicant spoke to May Tang, who the applicant understood to be the respondent’s business partner. Ms Tang advised the applicant that she did not want to be part of the wages dispute.

13At 4:00, the respondent entered the office and acted as if the applicant were late for work. She asked the applicant to start working on some documents. The applicant refused and said that he wanted to be paid first. In response, the respondent began yelling at the applicant. Her recalls her saying, “I told some people what you had done and they all thought it was disgusting and I should call them to come chop off your head”. She yelled, “you are only an immigrant, you are not a citizen”, “I am a Canadian and I was born here”. When the applicant asked her why she was threatening him, the respondent stated, “I am not threatening you, I am telling you”.

14The applicant asked again about his pay and said that he needed to pay his rent. In response, the respondent yelled, “I will not pay. Go cry about it you Muslim terrorist”. When the applicant tried to stop her from saying these things, the respondent yelled further, “you are a terrorist. You came from a terrorist country and you are a Muslim terrorist. That is what you are, a terrorist.”

15The applicant then left the office. As he was leaving he realised that during the whole time that the respondent was yelling at him, Ms Tang had been standing there and had said and done nothing. He also noticed that the security guard had heard the whole exchange from outside the office doors. As the applicant passed the security guard he told the applicant that he was very angry about what he had just heard. He told the applicant to not tolerate that and to just walk away. The security guard offered to give the applicant some money to help him pay his rent.

16The applicant left the office and has never returned.

17The applicant says that he was devastated and gutted by this experience. He stated that his family is from Turkey and he was educated in England. He continued his studies in Canada and obtained a Financial Planning post graduate certificate from George Brown College. He said he is proud to call Canada his home but his experiences working at Allen’s Executive Management Services for three months has made him question whether this was the view that many Canadians held of immigrants. He said that he will not again reveal his origin, ethnicity or religion to anyone, knowing that this could be used against him or to hurt him.

18The applicant said he was deeply saddened and hurt by the incident. He said the memories of the racist insults continued to play over and over in his mind for a long time. For the first two weeks following this incident he was struggling emotionally. He was unable to sleep or concentrate. He said that it was hard for him to reconcile what had happened. He had worked hard and had always been very professional while at the respondent’s office. He felt that the respondent was wrong to not pay him the wages that were due to him and then he felt victimized for asking to be paid. He said he felt sad and troubled by this and he kept questioning why would someone do this to him.

19The applicant reported the incident to the police. The police advised him to file this Application.

20The applicant also filed a claim with the Ministry of Labour for unpaid wages, termination pay and vacation pay. On April 28, 2014, an employment standards officer ordered the respondent to pay the applicant $4,410.44 for unpaid wages, termination pay and vacation pay. In her decision the employment standards officer noted that the respondent agreed that the applicant was owed the unpaid wages. The applicant stated that as of April 7, 2015, he had not received these monies that are owed to him.

21The applicant looked for work after leaving Allen’s Executive Management Services. He said that he did not want to risk taking work at another small business for fear that he might have the same experience as he had at Allen’s Executive Management Services. He believed it would be better for him if he could find work with a larger organization that would have proper human resources systems in place. He did not find work and he started his own consulting business. He did not earn income from this business until November 2013. As a result of not being paid his proper wages and having to leave Allen’s Executive Management Services, he fell behind on his rent and other bills. He had to borrow money to cover his expenses and he was late in paying for his rent. He felt that there was a strain in his relationship with his landlord after he was late in paying the rent so he decided it best that he find a new place to live.

ANALYSIS

22The relevant Code provisions provide 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, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

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

10 (1) “Harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

46.3(1) For the purpose of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), any act of thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

Reprisal

23In his Application, the applicant had indicated “reprisal or threat of reprisal” as a ground of discrimination. For the reasons that follow, I have determined that the applicant did not establish that the respondent’s actions were reprisal under the Code.

24Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, is a decision which has been consistently followed and which considered what is required to show reprisal contrary to section 8. At paragraph 23, the Tribunal stated:

Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason.

25Noble v. York University, 2010 HRTO 878, is also consistently followed. At paragraph 31, the Tribunal stated:

In order to prove reprisal, [an applicant] must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.

26Although the respondent may have retaliated against the applicant when he asserted his right to be paid the wages he was owed within the terms of his employment contract, the applicant has not alleged that the respondent’s refusal to pay his wages was based on race, ancestry, place of origin, citizenship, and ethnic origin or that he raised a Code issue with the respondent at the time in relation to the wages dispute. Consequently I cannot find that the respondent’s actions on September 13, 2013 were acts or threats of reprisal which were retaliation for the applicant’s claiming of rights under the Code.

Discrimination in Employment Because of Race, Ancestry, Place of Origin, Citizenship, Ethnic Origin

27The Application raises the issue of whether the respondent discriminated against the applicant in his workplace in a manner contrary to the Code when he attended at the office on September 13, 2013 to discuss the matter of his unpaid wages with her.

28I am satisfied on a balance of probabilities that the applicant did experience discrimination in the workplace contrary to section 5(1) of the Code. I find that the respondent made the statements that the applicant is a “Muslim terrorist”, that he came from a “terrorist country”, that he is “only an immigrant”. These statements are, in my view, so egregious and contemptuous as to amount to discrimination on the basis of race, ancestry, place of origin, citizenship, and ethnic origin.

REMEDY

29It follows from the above that the applicant is entitled to a remedy regarding the harassing and discriminatory comments made by the respondent. The Tribunal’s remedial authority is set out in section 45.2 of the Code as follows:

45.2 (1) On an Application under 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.

Monetary Compensation

30Under section 45.2(1)1 the Tribunal can make an order for monetary compensation for intangible losses. Among the factors that Tribunals should consider when awarding compensation for such damages are injury to dignity, feelings and self-respect. In interpreting the statutory language, the Tribunal assesses the subjective feelings of humiliation; the experience of victimization; the vulnerability of the applicant; and the objective seriousness of the offensive treatment.

31In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed a number of factors to consider when awarding damages, including:

• Humiliation experienced

• Hurt feelings experienced

• Loss of self-respect

• Loss of dignity

• Loss of self-esteem

• Loss of confidence

• The experience of victimization

• Vulnerability

• The seriousness, frequency and duration of the offensive treatment.

32The 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).

33There is no fixed formula for the Tribunal to follow to assess a monetary compensation award. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated at paras. 51-54:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

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. … 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.

34I find that the circumstances of this Application warrant an award of damages that is somewhat higher than the awards referenced in paragraph 32. Unlike this Application, Brooks, above, involved discriminatory comments that were made by co-workers rather than the owner/employer. In Adorgloh, above, and Abdallah, above, the discrimination arose in social area of services rather than an employment relationship and in Arunachalam, above, at para. 53 the Tribunal acknowledged that loss of employment usually has a greater effect on dignity that a single comment. In Szyluk, above, the discriminatory comments were not directed at applicant personally.

35In addition, I find that this Application warrants a higher damages award because the respondent’s comments were particularly repugnant and had a serious impact on the applicant. I find it appropriate to order an award of $7,500 as compensation for the injury to the applicant's dignity, feelings and self-respect.

Loss of Income

36Under section 45.2(1)2, the Tribunal has the power to make an order directing the party who infringed the right to make restitution to the party whose right was infringed for out of pocket losses, including lost income, resulting from the discriminatory conduct. The issue here is whether the applicant’s lost income resulted from the respondent’s infringement of the Code.

37I find that the applicant would have continued to work at Allen’s Executive Management Services at least until the end date of the Training Incentive Placement Agreement, which was October 1, 2013, had it not been for the respondent’s behaviour on September 13, 2013. I find that the applicant was justified in leaving his employment after being subjected to the comments made by the respondent. The Ministry of Labour ordered that respondent pay the applicant the outstanding wages to September 6, 2013 and one week termination pay. I therefore find that the applicant had loss of earnings for the period of September 16, 2013, to September 30, 2013. The earnings for that period are $960.52 (87.32 per day x 11 days = $960.52)

DECISION

38The Tribunal makes the following order:

a. The respondent shall pay to the applicant $7,500 for injury to dignity, feelings and self-respect and pre-judgement interest on this amount for the period between October 1, 2013 and the date of this Decision pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

b. The respondent shall also pay to the applicant $960.52 for loss of earnings, less the applicable statutory deductions, plus pre-judgement interest on this amount for the period between October 1, 2013 and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.

c. The respondent shall also pay to the applicant post-judgment interest on the above awarded amounts from May 20, 2015 to the date payment is made to the applicant calculated pursuant to s. 129 of the Courts of Justice Act.