HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Homayuon Faghihi
Applicant
-and-
2204159 Ontario Inc. c.o.b. The Black Swan
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Faghihi v. 2204159 Ontario Inc. c.o.b. The Black Swan
APPEARANCES
Homayoun Faghihi, Applicant
Rani Khan, Counsel
2204159 Ontario Inc. c.o.b. The Black Swan, Respondent
Kimberley Leonard, Self-represented
1This Application alleges discrimination with respect to employment because of race, colour, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was self-represented when he filed his Application.
2The applicant was a sous chef at the respondent, a restaurant, where he worked from March 5, 2014 until July 21, 2014 when he was terminated. Kimberley Leonard is the owner of the respondent.
3The applicant alleges that during his shift on Saturday, July 19, 2014 a co-worker, M.C., made a discriminatory comment to him, and that he told Ms. Leonard about the comment. The applicant alleges that Ms. Leonard failed to conduct an investigation and that he was subsequently reprised against when, two shifts later, he was terminated. The respondent denies these allegations. It submits that it conducted an investigation and that the applicant’s termination was because of his attitude, the problems that he had with other staff, and his attendance.
4For the reasons set out below, I have found that co-worker’s comment to the applicant was discriminatory, the respondent failed to conduct a reasonable investigation into those comments and terminated in the applicant, at least in part, as reprisal for raising human rights issues.
The Hearing
5A hearing was held on September 18, 2015. The Tribunal heard evidence from the applicant and Kimberley Leonard, the owner of the respondent.
6At the hearing, the applicant requested that the Application be amended to include reprisal. Over the objection of the respondent, I orally ruled that the Application was amended to include reprisal. I ruled that there was enough information already contained in the Application to infer that the applicant was also alleging reprisal, and made it clear that because the amendment was granted, this did not mean that the allegation was true or that the respondent agreed that the applicant had been reprised against.
7While the respondent attached three unsigned statements by individuals, V.H., M.C., and A.J., to its Response, and later filed another undated statement from P.S., it did not bring those witnesses to the hearing. The Tribunal asked the respondent if the individuals would be called as witnesses. Ms. Leonard said that they were unavailable, as some were no longer in the community and one, V.H., was working. The Tribunal specifically asked if the respondent wanted V.H. to testify, and the respondent said that there was no one else to run the restaurant and that she wanted the statements to be introduced without calling the individuals to testify. The applicant objected as he would not have the opportunity to cross-examine them. I issued an oral ruling prohibiting the statements from being introduced as exhibits or evidence without the individual being called as a witness to be cross-examined.
8The respondent conducted a very brief cross-examination of the applicant. She concluded, saying that she had no further questions for him “at this time”. I explained that this was her only opportunity to cross-examination the applicant. I identified the various issues raised in the applicant’s testimony and Application, one by one, and asked Ms. Leonard after each issue had been identified whether she had further cross-examination questions on that specific issue. She asked a few additional questions about some of the issues.
9The applicant completed his final submissions on September 18, 2015 at approximately 4:50 p.m. Given that the hearing venue was open only until 5:00 p.m., in order to give the respondent sufficient time to make its final submissions, a conference call was scheduled for September 22, 2015 for the respondent to make its final submissions (“the conference call”). On September 21, 2015, the respondent emailed the Tribunal and the applicant new documentation, specifically text messages between Ms. Leonard and V.H. During the conference call, Ms. Leonard stated that she wanted the new documentation to be entered as exhibits, and wanted V.H. and herself to testify about the new documentation. The applicant objected to the respondent’s request.
10After the parties concluded their final submissions, a timetable for the parties to file written submissions to address the respondent’s request to introduce new documentation and call new evidence was set during the conference call and later confirmed in a Case Assessment Direction of the same date (“the CAD”). The Tribunal directed the respondent to file submissions about why the text messages were not filed earlier in the Tribunal’s process. Subsequent written submissions were filed by the parties.
11For the reasons set out after the evidence section of this decision, I deny the respondent’s request to rely upon new documentation and tender new evidence.
The Evidence
12The applicant self identifies as first generation Canadian. His parents immigrated to Canada from Iran or Persia and he was born in Canada. He self-identifies as brown skinned, Muslim, and, at the time of filing the Application, was 23 years old. At the restaurant, he was called “Homes”. Much of the applicant’s evidence was not challenged during cross-examination.
13The applicant testified about his work experience in the restaurant industry, how he applied for the position with the respondent, and was accepted. He turned down an offer from another restaurant and explained the reasons why he preferred to work with the respondent. He started working for the respondent in March 2014 as a sous chef, initially at $13/hour. Later, he received a $1/hour raise. He generally worked 40 hours per week, first on the evening shift, and later on the day shift during the week and up to dinner on Fridays and Saturdays when the respondent was busiest. As sous chef, he was second in command and reported to the kitchen manager, while that manager was employed, and then to Ms. Leonard. When the kitchen manager was replaced by V.H., he still considered himself to report to Ms. Leonard.
14The applicant testified that his relationship with other employees, particularly at the beginning of his employment, was really good. He acknowledged that he had an encounter with another employee, P.S., who threatened to customize all his orders one shift if he did not put a side plate under a bowl of soup. He was really busy and could not. He told Ms. Leonard about this incident and was aware that P.S. also spoke to Ms. Leonard about it. He testified that there was a lot of staff turnover at the restaurant and some employees had been terminated. He testified that he had not received any oral or written warnings from Ms. Leonard or V.H., had not been spoken to about any issues in the workplace, and, apart from the soup bowl incident, was not aware of any complaints made about him from other staff.
15On July 1, 2014, the applicant moved to a new apartment which was further away from the restaurant. Prior to the move, he told Ms. Leonard, and asked for her understanding if he arrived late while he adjusted to local transit, which was unreliable. Ms. Leonard, he testified, said that would be okay. He agreed, during cross-examination, that he should get to work on time after he moved, but said that it was hard to get there on time which is why he had the previous conversation with her and got her approval to be late. Ms. Leonard, in her cross-examination, agreed that the applicant told her because of his move he might be late for work and that she did not have a problem with it.
16Earlier in the week of July 19, 2014, there was tension between the applicant and another employee, M.C. M.C. was late reporting for work the evening that the applicant played baseball, and the applicant had to wait for M.C. to arrive at work before he could leave.
17During the evening of Saturday, July 19, 2014, the applicant experienced difficulties with M.C. M.C. physically prevented the applicant from picking up some items that had fallen to the ground. M.C. told the applicant that he should not pretend to be a nice person, and said, “you’re garbage at your job”, “nobody here wants you, they’re going to fire you”, and “why don’t you go and harass little girls”. The applicant was baffled by these comments. The applicant and M.C. disagreed whether or not the applicant’s shift was over and whether or not he was required to show M.C. the dinner special. The applicant testified that showing M.C. the dinner special was the responsibility of another employee, to which Ms. Leonard agreed during her cross-examination.
18At the end of his shift, the applicant went into the washroom to change his clothes. While in the washroom, the applicant heard M.C., who was in the kitchen, say, “go back to your own country you fucking paki”. The applicant walked out and confronted M.C. At first M.C. denied making that statement, but then he agreed that he said “go back to your own country”. He denied saying “you fucking paki”. The Tribunal invited the applicant to address the differences between his Application, where he alleged that M.C. said, “fucking paki, go back to your fucking country” and his witness statement which alleged M.C. said, “go back to your fucking country you fucking paki” and his testimony “go back to your country you fucking paki”. The applicant testified that M.C.’s comments were vulgar, it had been about a year since the comments were made and he was trying to remember to the best of his capabilities. In re-examination, he confirmed that the “fucking paki” comment was made, as was the comment about “back to your country”.
19The applicant located Ms. Leonard in the bar area of the restaurant, told her about what M.C. said, both about “go back to your country” and “fucking paki”, was angry, and asked her what was going to happen about this. They went into the kitchen where M.C. was. The applicant testified that M.C. admitted to saying “go back to your country”, but did not admit to saying “you fucking paki”. Ms. Leonard told the applicant that nothing was being done at that moment and to calm down. She separated the applicant and M.C. The applicant disagreed, in cross-examination, that Ms. Leonard was trying to diffuse the situation.
20The applicant went and changed his clothes. He was still very angry and did not want to speak with Ms. Leonard at this time. He went onto the patio and spoke with another employee about what had happened. She advised him to speak again with Ms. Leonard.
21Ms. Leonard testified she spoke with M.C. as she wanted to get his side of the story. She agreed that this information was not included in the Response or in her witness statement, because when she read the Application, she thought it was against her personally. She did not believe either story as there are always two sides to the story and did not know what led up to the incident. M.C. agreed that he said “go back to your country”, told her that he was just venting, did not know that the applicant was in earshot when he made his comment, and the applicant was not supposed to hear it. M.C. told Ms. Leonard that the applicant had been harassing him that evening, including not showing him the dinner special, and he told him “stop harassing the girls”, and that he was very sorry about the incident. She stated, during her testimony, that M.C. is “wonderful”, “loveable” and “liked by everyone” and that apart from this one occasion, she never had any issues with him. In cross-examination, she said “[M.C.] is a wonderful person, but he’s a little simple”.
22In cross-examination, she testified that M.C. told her that he was sorry that the whole incident happened and she told him that there would be nasty ramifications if a similar incident happened again. She testified that she gave M.C. a warning, but in cross-examination she testified that she did not issue M.C. any discipline and agreed that neither the Response nor the witness statement said that she issued discipline to M.C. She did not know if V.H. also spoke with M.C.
23Ms. Leonard spoke to the applicant after he calmed down. She did not tell the applicant that she issued a warning to M.C. because, she explained, there was a lot of anger in the air. She told the applicant that M.C.’s comment was not necessarily discrimination, and that it could have been made in anger. In cross-examination, she agreed that M.C.’s comment was inappropriate, but did not know if it was discriminatory or intentional as she did not hear the comment. She maintained that the comment was said out of anger. In cross-examination, she testified that did not tell the applicant the results of her investigation, as that would be the responsibility of the kitchen manager, V.H. She did not know if V.H. did anything.
24Ms. Leonard testified about the investigation that she conducted into M.C.’s alleged comment. She disagreed with the suggestion, in cross-examination, that she believed M.C. over the applicant, as she was not present when the comment was made. She agreed that her witness statement set out what M.C. said, but not what the applicant alleged M.C. said. She testified that she did not review the surveillance camera that was pointed at the kitchen because the footage was visual not audio and that she did not take notes. She confirmed that the respondent does not have an harassment and discrimination policy, as there had never been a previous incident. She confirmed that there is no formal complaint process and that if there is an issue, an employee would address either herself or V.H.
25The applicant testified that Ms. Leonard denied that M.C.’s comment was racist. He thought that she was very nonchalant about M.C.’s comment. The applicant testified that he disagreed with Ms. Leonard’s conclusion, told her it was not right, and that he was going to the labour board. According to the applicant, Ms. Leonard told him to do what he needed to do. He left Ms. Leonard and left the restaurant.
26Ms. Leonard testified in cross-examination that she understood that the applicant was very upset with M.C.’s comment. She discussed with the applicant M.C.’s concern that the applicant had not shown him the dinner special, but agreed that it was another employee’s responsibility. She agreed that the applicant said that he was going to the labour board or human rights, to which she indicated that was fine. She testified that the applicant told her that M.C. was very bad dealing with people and deserved to be reprimanded or fired. In his examination-in-chief, the applicant denied saying this to Ms. Leonard.
27The applicant testified that the next day he reported for work. He spoke with V.H. and asked if he heard what had happened the night before. V.H. said that the applicant and M.C. were “big boys” and could handle themselves and it was not a big deal. V.H. told the applicant that he and Ms. Leonard had discussed it and the applicant said that he told V.H. that he was going to the labour board about the incident. V.H. said okay, “do what you have to do”.
28On Monday, July 21, 2014, the applicant was scheduled to work at 10:30 a.m. He was supposed to take the 10:05 bus, but it did not arrive, and he had to wait 35 minutes for the next bus. At approximately 11:00 a.m., Ms. Leonard called the applicant and asked if he was coming into work. He told her that the bus had just dropped him off and he was walking to the restaurant. The applicant testified that he arrived about 11:05 a.m.
29When he arrived, Ms. Leonard told him that one of the servers had quit that morning and that a bartender had not shown up for work. He did his work. At approximately 4:45 p.m., Ms. Leonard pulled the applicant aside and said that V.H. wanted to speak with him. It was V.H.’s day off, but he came in. V.H. told the applicant, in front of Ms. Leonard, that it was time for a change and terminated him. He did not give a reason. The applicant shook V.H.’s hand, thanked them for the opportunity and got changed. Then he went to the recipe book to remove the recipes that he brought with him to the restaurant. Ms. Leonard smacked the book out of his hand, took the book and walked out of the kitchen. Ms. Leonard testified that the recipes he brought were now the property of the respondent. Another employee asked the applicant what happened and he said that he had been fired. The applicant testified that the decision must have been Ms. Leonard’s because, as owner of the restaurant, she would oversee terminations.
30Ms. Leonard, in her cross-examination, denied saying that she was not involved in the decision to terminate the applicant. She testified that earlier that morning V.H. told her that he was going to fire the applicant, it was solely his decision, and because she was busy opening the restaurant, with a cook who was late, a server and bartender who quit, she just said fine without thinking about it. She approved the termination. She agreed that this information was not in her witness statement. She agreed that the information about V.H. was not communicated by a telephone conversation but through texts, and later in her cross-examination testified that she could not remember whether V.H. communicated by telephone or by text. She agreed that she did not produce the text messages before the hearing, because she “didn’t think about it at the time”, but she still had a copy of the text. Ms. Leonard denied, in cross-examination, that the applicant was terminated because he threatened to go to the labour board and testified that was “totally untrue”.
31The applicant testified that the first time he was given a reason for his termination was when he emailed Ms. Leonard about a replacement for a paycheque that bounced. In her return email, dated August 1, 2014, reasons for his termination were set out. They included two employees quitting, poor morale in the restaurant, no one wanting to work with him or being able to stand being around him, and V.H. sending her a text on Monday morning saying that he would be at the restaurant at 4:30 to terminate the applicant because he, V.H. “had enough of him”. The emails were marked as an exhibit.
32Ms. Leonard testified that she made the decision to terminate the applicant because of his attitude, morale, P.S. quitting, and lateness, with attitude being the main reason. Timekeeping was an issue for V.H. but that was the least of her worries. She agreed that she had never issued any verbal warnings to the applicant, but she thought that V.H. had. She agreed that the August 1 email was written after the applicant made negative comments about the restaurant and her on social media, and did not indicate that it was V.H.’s decision to terminate, not hers. She testified that was bad typing on her behalf. She agreed that the reasons for the applicant’s termination were not included in the Response. She gave differing evidence about when P.S. quit, at one point saying that she resigned on June 28, another that she quit 2 days after the applicant was terminated, and at another point testifying that she did know the date that P.S. quit. She testified that her own children have a father who is “Arab”.
33After his termination, it took the applicant approximately three weeks to receive his outstanding wages and Record of Employment. One of the cheques he received bounced and he was charged NSF, for which the respondent later reimbursed him. Another cheque did not include his total outstanding wages. He had to borrow money from a family member to pay his rent.
Documentation and Evidence the Respondent Submitted Post-Evidence
The Respondent’s Submissions
34Ms. Leonard submitted that she wanted to give further evidence, and have V.H. testify, about the text messages she emailed to the Tribunal. She submitted that they were introduced to correct some of her evidence, which was wrong, such as the time that the applicant arrived at work on July 21, to address evidence that was referred to during the applicant’s final submissions, and to demonstrate that it was V.H.’s decision to terminate the applicant.
35Ms. Leonard submitted that she had not been prepared for the hearing and thought that the unsigned statements that she filed before the hearing would be introduced at it.
36In its written submissions, the respondent also introduced new information about other aspects of the case. This included, but is not limited to, information about another employee who received a raise and was subsequently terminated; Ms. Leonard learning, after other employees quit, about allegations that the applicant harassed other employees; and the applicant receiving verbal warnings from V.H. The respondent did not provide an explanation about why this information had not been raised earlier and did not provide an explanation about why the texts were not disclosed before the hearing, despite the direction to do so in the CAD.
The Applicant’s Submissions
37The applicant objected to the introduction of the text messages, the proposed evidence of V.H. and Ms. Leonard, and the new information raised after the applicant started his final submissions.
38The applicant submits that the case is closed, as he was completing his final submissions when the new items were raised. The respondent was required to file documentation it was relying upon before hearing started, which it did not, and did not do so before the evidence had concluded. The respondent was responsible for producing its witnesses on the hearing date, and failed to do so. One of the reasons why the respondent wants to introduce these issues, the applicant submits, is to correct evidence and address deficiencies that the applicant identified during its closing submissions.
39The applicant would be prejudiced, he submits, by the introduction of these three issues, as V.H. would be subjected to examination-in-chief and cross-examination, Ms. Leonard would have to be recalled, and the applicant would have to be recalled as well. Then further final submissions would be required. All of this would result in undue delay.
40Finally, the applicant submits that the respondent’s attempts to have this information introduced is unfair to the applicant as he was entitled to know the case to meet and it would be an abuse of the Tribunal’s processes to allow these issues in at this point in time.
Analysis
41I do not allow the respondent to introduce or rely upon the text messages, have V.H. or Ms. Leonard testify about them, or give evidence on any other point, and do not permit the new information to be raised. The new information has not been considered in the section analyzing the evidence of the parties.
42It would not be fair to the applicant, at this point, to have a new witness testify, new documentary evidence tendered, and new information, entered at this point of the hearing. All of these existed prior to the hearing, in fact, well in advance of the hearing. It would be prejudicial to the applicant, having given his evidence and fully presented his case, to have the case re-opened to address new material and information in which the respondent was in possession well in advance of the hearing. It would also mean having a new witness, V.H., testify, as well requiring Ms. Leonard and the applicant recalled to testify. The Tribunal has declined to permit new evidence or documents being introduced late in the hearing process. See Bahramzadeh-Germi v. Toronto Police Services Board, 2013 HRTO 1137 at para. 9, A.B. v. Havcare Investments Inc., 2014 HRTO 1087, and B.M. v. Cambridge (City), 2009 HRTO 954.
43I appreciate that the respondent, who is represented by Ms. Leonard, its owner, is not familiar with the Tribunal’s processes and procedures. However, her explanations that she did not disclose this information earlier because she was not prepared for the hearing, or thought that her unsigned witness statements would be introduced to the hearing, or to correct testimony that she gave, are not sufficient explanations to re-open the hearing and overcome the prejudice that the applicant will experience.
44The first page of the Notice of Hearing (“the Notice”) that was issued by the Tribunal to the parties setting out the date, time and location of the hearing, contains a heading called “Important Information” which is bolded and in capital letters. Under the heading, the Tribunal directs the parties to read the entire notice right away, and refers the parties to other resources, including the Tribunal’s Rules of Procedure and Guide to Preparing for a Hearing before the Tribunal (“the Guide”). The Guide, found on the Tribunal’s website, makes it clear that a hearing before the Tribunal is a legal proceeding. The Guide has sections on witnesses and, in addition to describing witness statements, states that it is the responsibility of the party to make sure that its witnesses show up to give evidence on the day of the hearing.
45Furthermore, the Notice sets out the parties obligations to disclose documents and witnesses well in advance of the hearing. These obligations are also referred to in the Guide. Notwithstanding this, as set out in para. 7 above, I specifically asked Ms. Leonard if she wanted V.H. to testify and she declined to call him saying that he was working. It is not fair to the applicant and indeed is prejudicial to the applicant, to permit the respondent to submit new information, documents and raise new evidence five days after the hearing, while the applicant is finishing its final submissions. I find that the applicant’s prejudice cannot be cured by permitting the respondent to re-open its case, to address, as the respondent submitted, issues and evidence to which the applicant referred in his closing submissions.
46Accordingly, the text messages, new evidence, and new information are not permitted to be introduced in this proceeding.
Issues
47The facts in this Application raise the following issues:
a. Was the applicant subjected to a discriminatory comment by M.C.?
b. After the applicant told Ms. Leonard about M.C.’s comment, did the respondent conduct a reasonable investigation? and,
c. Was the applicant’s termination a reprisal?
Law and Analysis
48The following sections of the Code are relevant to this Application:
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.
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, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
- 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.
46.3(1) For the purposes of this act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), any act or 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.
49The initial evidentiary burden is on the applicant to establish on a balance of probabilities that a prima facie case of discrimination exists. See Shaw v. Phipps, 2012 ONCA, at paras. 11 to 12, and Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”) at para. 56. A prima facie case is described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.
50Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence to demonstrate, on a balance of probabilities that the applicant’s allegations do not amount to discrimination. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground. See Pieters, above, at paras. 73 – 74.
51An applicant must prove his or her allegations against a respondent on a balance of probabilities and that to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. See F.H. v. McDougall, 2008 SCC 53 at para. 46. The Court held that courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah v. George Brown College, 2009 HRTO 920 at para. 23.
52Furthermore, the Tribunal and the courts have recognized that discrimination can be proven by direct evidence or circumstantial evidence. The applicant may rely upon circumstantial evidence. That is, evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to support such an inference. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. See Mangal v. Molson Toronto Brewery, 2011 HRTO 575 at para. 8. There is recognition that in some types of cases a respondent is uniquely positioned to know why they refused an applicant employment or asked a person for identification, such that a respondent’s evidence is often essential for determining what happened and what the reasons for a decision or action were. See Shaw, above at para. 72.
53In proving discrimination, an applicant must prove:
a. That he is a member of a group protected by the Code;
b. That he has been subjected to adverse treatment in the workplace or in respect of his employment; and
c. That this adverse treatment occurred as a result of the applicant’s membership in that protected group
See Pieters, above, at para. 56.
Credibility of Witnesses
54The Tribunal is often required to decide issues of credibility between the parties and their witnesses. In this case, I have had to make such findings of credibility given the divergent evidence I have heard in this case.
55In making those findings, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v.Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed. It held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
56Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors that have been considered by the Tribunal in assessing reliability and credibility, including:
The internal consistency or inconsistency of evidence;
The witness’ ability and/or capacity to apprehend and recollect;
The witness’ opportunity and/or inclination to tailor evidence;
The witness’ opportunity and/or confirmatory evidence;
The existence of corroborative and/or confirmatory evidence;
The motives of the witnesses and/or their relationship with the parties;
The failure to call or produce material evidence.
See, Shah v. George Brown College, 2009 HRTO 920 (“Shah”) at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.
57A conclusion about the credibility of witnesses develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as, findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, as discussed in Shah, above, a finding of lack of credibility with respect to one aspect of a witness’ testimony does not automatically render the entirety of the witness’ evidence as non-credible.
58In this case, I find that the applicant was a credible witness. His evidence was internally consistent, consistent with the exhibits, and consistent with the Application and his witness statement. He readily answered questions in examination-in-chief and cross-examination, and admitted to some actions which did not present him in the best light, such as the soup bowl encounter and the comments on social media.
59I do not find Ms. Leonard credible on the two main issues: her investigation and the applicant’s termination. I found that her actions and her evidence were protective of M.C., an employee whom she characterized as a “wonderful person” and who is “loved by everyone”, such that she testified in a manner that minimized M.C.’s comments and made excuses for it. She was intransient and was unwilling to accept that M.C.’s comments were contrary to the Code.
60Furthermore, I do not find that she was credible about the reasons for the applicant’s termination. The reasons for his termination were not set out in the Response or her own witness statements. The reasons, whose decision it was to terminate the applicant, and the evidence upon which the termination was based, shifted throughout the hearing. She did not call any independent evidence to support her position, including not calling V.H. as a witness during the hearing.
Was the Applicant Subjected to a Discriminatory Comment by M.C.?
61It is a long-standing human rights principle that intention, or lack thereof, is not a relevant factor in assessing whether there has been discrimination. See Ontario (Human Rights Commission) v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. Accordingly, regardless of whether or not M.C. intended to make a discriminatory comment, one was made.
62There is no dispute between the parties that M.C. told that applicant to “go back to your own country”. There is dispute whether or not M.C. also called the applicant “a fucking paki”. In this regard, I accept the evidence of the applicant, whom I found to be credible, over the evidence of Ms. Leonard, whom I found was not credible, in concluding that M.C. said to the applicant to “go back to his own country” and called him a “fucking paki”.
63M.C.’s comments, “go back to your country” “go back to your own country” or “fucking paki” are related to the applicant’s grounds of race, colour, and ethnic origin. “Fucking paki” by itself is a racial slur. Even if M.C. did not say “fucking paki”, or the fact that he incorrectly referred to the applicant’s ethnic origin as being Pakistani rather than Iranian, the remark about going back to “your country” or “your own country” is evocative of the idea that the applicant is an immigrant and reinforces the notion that they are not legitimate members of Canadian society or wanted by Canadian society. See Abdawall v. Thames Valley District School Board, 2008 HRTO 230 at para. 66.
64Whether or not this single comment constitutes harassment under section 5(2) the Code, M.C. is not named personally and therefore there can be no liability for his comments. Pursuant to section 46.3 of the Code, the respondent is not liable for harassment under section 5(2).
65I do not find that this constituted a poisoned working environment given that the applicant was terminated two shifts after the comments were made and he raised them with the respondent.
Did the Respondent Conduct a Reasonable Investigation?
66A respondent may be held liable for the way in which it responds to a complaint of discrimination or harassment.
67The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Code are meaningful. In Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30 (“Laskowska”), the Tribunal summarized the criteria of corporate reasonableness that had been set out in Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 into three relevant criteria for an employer to consider in its duty to investigate as:
Awareness of issues of discrimination/harassment, Policy Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Act: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide him/her with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
68The Tribunal’s jurisprudence has established that the employer’s duty to investigate is held to a standard of reasonableness, not correctness or perfection. An employer need not satisfy each element in every case in order to be judged to have acted reasonably. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably. See Laskowska, above, at para. 60; Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789 at para. 79; Harriott v. National Money Mart, 2010 HRTO 353 at para. 115; and Lavoie v. Calabogie Peaks, 2012 HRTO 1237 at para. 97.
69The Tribunal has held that the relative sophistication of the respondent should be considered in assessing whether it acted reasonably in the circumstances. See Coates v. Communication, Energy & Paperworkers Union, Local 324, 2009 HRTO 1631 at para. 69.
70In Abdallah v. Thames Valley District School Board, 2008 HRTO 230, the personal respondent discriminated against the applicant when she said, “I’m sick and tired of immigrants crying discrimination when they don’t get what they want.” The applicant told one of the principals about this comment, who, upon direction from a superintendent, conducted an investigation. The Tribunal found that the investigation was flawed because the respondent did not adhere to its own discrimination and harassment procedures, the individual conducting the investigation was likely in a conflict of interest situation, and the investigation consisted of asking the applicant questions only by email.
71In this case, the respondent is not a sophisticated respondent. It does not have a discrimination and harassment policy or a formal complaint process. Ms. Leonard testified that problems are raised with either her or the kitchen manager. Notwithstanding a lack of a formal complaint process, the applicant approached Ms. Leonard, the respondent’s owner, told her that M.C. told him to “go back to your own country”, called him a “fucking paki”, and asked her to do something about M.C.’s comments. The parties agree that Ms. Leonard separated the applicant and M.C. The parties agree that Ms. Leonard spoke to M.C., who admitted that he told the applicant to go back to his country, but did not admit that he called him a “fucking paki”. The parties agree that Ms. Leonard spoke with the applicant after he spoke with a co-worker, that Ms. Leonard told him what M.C. admitted to, and told the applicant that she did not think the commentary was discriminatory and that it was made in anger. The parties admit that Ms. Leonard did not tell the applicant what, if any, discipline was issued to M.C.
72The applicant had a number of concerns with M.C. on July 19, against a background of tension because M.C. had shown up late for a shift earlier in the week. While Ms. Leonard testified that M.C. had concerns about the applicant that evening, she admitted that the applicant was not required to show M.C. the dinner special as that was the responsibility of another employee. She did not provide details about what, if any, other concerns M.C. had with the applicant that evening.
73Irrespective of any problems between the applicant and M.C. that evening, this does not obviate the respondent’s obligation to investigate into the applicant’s discrimination concerns about M.C. As the Tribunal stated in Abdallah, above, at para. 106, the fact that a complainant engaged in inappropriate behaviour does not somehow automatically nullify the offence of discrimination and the experience of victimization.
74Ms. Leonard was not, in my view, required to review the surveillance footage. As she indicated, it was focussed on the kitchen and the applicant was in the washroom, and produced only video, not audio, footage. This evidence was not challenged. Without audio footage, it was unlikely what M.C. said would have been discernable, in particular whether he said “fucking paki”, as he admitted saying “go back to your country”.
75While it would have been preferable for Ms. Leonard to take notes of her investigation, this by itself does not result in the investigation being unreasonable.
76The fact that the respondent does not have a discrimination and harassment policy, by itself, does not establish that the respondent failed to conduct a reasonable investigation. However, in this situation it was unclear to the parties about the process to be followed when the applicant raised human rights concerns about a co-worker. When Ms. Leonard’s actions are viewed together, I find that the respondent did not conduct a reasonable investigation and that it was flawed.
77First of all, Ms. Leonard was not neutral in her investigation, as demonstrated by her attitude towards M.C. A failure to be neutral has led to the finding that an investigation has not been reasonably conducted. See Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789 at para. 93 and Abdallah¸ above, at para. 94.
78Ms. Leonard testified that she never had any issues with M.C. and described him as “loveable”, “wonderful” and “liked by everyone”. In one of her witness statements, both of which were entered as exhibits, she wrote the following about M.C.:
To the best of my knowledge, I handled the situation the best that I could and over one incident I am not going to fire [M.C.] who lost his temper in the year that he has worked here, [M.C.] is always smiling, helpful and all his co-workers enjoy being around. I believe [M.C.’s] outburst to be accidental and unintentional.
79She agreed that the applicant alleged that M.C. called him a “fucking paki” in addition to saying “go back to your country”, and parties agreed that M.C. agreed to the country comment but not the racial slur. She readily accepted that M.C. made the country comment, but conducted no analysis and formed no conclusion about the racial slur, despite an allegation that it was made. In reviewing Ms. Leonard’s evidence as a whole, I find that Ms. Leonard did not want to probe too much, or conclude that M.C. made a racial slur.
80Even with the comment that she admitted that M.C. made (the country of origin comment), Ms. Leonard would not agree or acknowledge, during the hearing, that his comment was discriminatory. She claimed that she would need to know the context in which the comment was made, despite the context being told to her on July 19 and again during the hearing. She continued to provide explanations for M.C.’s comment, accepting that it was made out of anger, without any intention to discriminate, and she accepted the concerns M.C. stated that he had with the applicant earlier in the shift, including his assertion that he was being “harassed” by the applicant, without reviewing those concerns with the applicant, and she minimized the concerns that the applicant had with M.C. Her approach was essentially one sided, without thoroughly or fully examining what the applicant told her about M.C., his behaviour, and his comments. She accepted that M.C. was sorry that the comment was made, but, as the applicant submitted, it more likely that M.C. was sorry that he got caught. Ms. Leonard, in my view, did not want to accept that M.C. made a discriminatory comment. I accept the applicant’s submission that Ms. Leonard’s conduct would discourage an employee from raising human rights concerns.
81With Ms. Leonard’s evidence, it is unclear to me whether she disciplined M.C. She testified, at one point, that she told M.C. there would be “nasty” consequences if he conducted himself this way again, and at another point said that she issued him a verbal warning. Later she said that she did not issue any discipline and thought that V.H. did. She was clear in her evidence that she did not communicate the results of her investigation to the applicant. She thought that V.H. addressed the complaint with the applicant, but as noted above, V.H. did not testify at the hearing and she proffered no independent confirmation that he did so.
82While Ms. Leonard did not, in my view, have to disclose to the applicant the actual discipline that was issued M.C. (although it is unclear whether he received any), she did have an obligation to report back to him that the investigation was concluded, the findings that she made, and the consequences of her findings. She did not do any of these.
83It is unclear what role Ms. Leonard was supposed to play in responding to the applicant’s allegations of discrimination, and V.H.’s role, given that Ms. Leonard testified that she thought V.H. issued some discipline to M.C. and spoke to V.H. The lack of clarity about who was to communicate the results of the investigation is also a factor in my finding that the investigation was not reasonable.
84Accordingly, I find that the respondent did not conduct a reasonable investigation into the applicant’s human rights allegations.
Was the applicant terminated because he attempted to assert his rights?
85Noble v. York University, 2010 HRTO 878, is an oft-cited Tribunal decision which, at para. 9, sets out the requisite elements for reprisal under section 8 of the Code. They are: an action taken against, or threat made to, the complainant; the alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and an intention on the part of the respondent to retaliate for the claim or attempt to enforce the right. In addition, there is no requirement that the complainant has filed a complaint under the Code or that the Tribunal find that the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
86The parties agree that the applicant told Ms. Leonard that he would assert his rights by going to the labour board. There is also some evidence that the applicant told Ms. Leonard he would pursue his human rights. The applicant was terminated two shifts after he raised M.C.’s comments with Ms. Leonard and after he threatened to go to the labour board.
87The Tribunal has found reprisal can occur in situations where an applicant does not specifically claim that he or she would be filing an application with the Tribunal or does not specifically use the words “harassment” or “discrimination”.
88In Morgan v. Herman Miller Canada Inc., 2013 HRTO 650, the Tribunal found that the applicant was reprised against because he raised issues of harassment and discrimination and threatened to sue the organizational respondent. He was subsequently terminated.
89In Campe v. Borland Canada, 2010 HRTO 1257, the Tribunal found that by orally complaining that it is the law in Ontario that women are to be paid the same as men, the applicant was claiming rights under the Code. The respondent’s subsequent comments to not talk about that constituted reprisal.
90In Bertrand v. Primary Response, 2010 HRTO 186, the Tribunal found that in the middle of a disciplinary meeting the applicant stated his belief that he was being disciplined because of his colour and/or race. The Tribunal accepted that this statement on the part of the applicant constituted claiming rights under the Code and that his subsequent termination constituted reprisal.
91In McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295, judicial review dismissed, Systemgroup Consulting v. McConaghie, 2015 ONSC 2213, the Tribunal found that the applicant’s complaint, which did not use the word discrimination, constituted a claim of rights under the Code.
92In making a claim of reprisal, the applicant must demonstrate that the retaliatory act was, on a balance of probabilities, linked to his allegations about the discriminatory remark. He was terminated two shifts after he raised M.C.’s comments with Ms. Leonard. The parties agree that on July 19 the applicant told Ms. Leonard that he would be contacting the labour board. Ms. Leonard also testified during part of her evidence that he told her he would be contacting human rights. The applicant’s evidence that he told V.H. on July 20 that he would be going to the labour board was not challenged by the respondent. He was terminated on July 21.
93The respondent has provided a number of non-discriminatory reasons for the applicant’s termination. These reasons were not set out in the Response or Ms. Leonard’s witness statements. The applicant’s unchallenged evidence was that V.H. terminated him, in Ms. Leonard’s presence, and did not tell him any reasons. The reasons were set out in an email to the applicant from Ms. Leonard in August 2014, after the applicant posted some negative comments about the restaurant on social media. The email was entered as an exhibit.
94In addition to advising that the respondent’s lawyer had been contacted about suing the applicant for slander for his comments, the email, written by Ms. Leonard, says:
Just to inform you why you were fired. P[…] quit, C[…] quit, moral in the Back and Front of the house was very poor and nobody wanted to work with you or could stand being around you. Timekeeping bad, and I could keep going on.
[V.H.] sent me a text Monday morning to see how things were going. I told him C[…] had quit and you weren’t here yet. Quote “I will be at the Pub at 4:30 to fire Homes, I have had enough of him.” [errors in the original]
95The applicant’s Record of Employment was completed by Ms. Leonard. It was entered as an exhibit. It set out code “K” as the reason for its issuance and under the comment box stated “GUILTY OF WILFUL MISCONDUCT, WILFUL NEGLECT OF DUTY”.
96One of Ms. Leonard’s witness statements, which was marked as an exhibit, says:
Homes termination was decided by the kitchen manager [V.H.] not [V.R.]. The [V.H.] had called that morning and I told him that C[…] had quit and it was after 11:00 (We open for business at 11:00) and Homes still hadn’t showed up. [V.H.] told me he was going to come in at 4:00 and let Homes go the moral in the kitchen and in the front of the house was terrible, that enough is enough, it was totally his decision not mine.
Staff were quitting or threatening to quit because of his attitude and the way he treated his coworkers. [errors in the original]
97When reviewing the evidence as a whole, as well as the timing of the termination, two shifts after he raised allegation of discrimination and stated that he would be asserting his rights, I have difficulty accepting these were the only reasons for the applicant’s termination. As set out above, I do not find Ms. Leonard credible in her evidence about the reasons for the applicant’s termination, and I find it more probable than not that the applicant was terminated, at least in part, because he raised concerns about discriminatory comments M.C., a favoured employee, made to him, and then threatened to take the respondent to the labour board about those comments.
98As set out above, I orally ruled that V.H.’s unsigned statement could not be entered as an exhibit without him being available to be cross-examined. Despite being specifically asked by the Tribunal, the respondent decided not to call V.H. as a witness, until the very end of the applicant’s final submissions, saying that he was at work and running the kitchen. Despite being an unsophisticated party, the respondent knew that there was a hearing scheduled and that witnesses were required.
99While a party is not required to have legal representation in the Tribunal’s process, the respondent had access to legal representation as she named two lawyers in its materials, one in Ms. Leonard’s August 1, 2014 email to the applicant in which she warns that he may be sued for slander, and in Ms. Leonard’s first witness statement which was entered as an exhibit.
100I do not accept Ms. Leonard’s evidence that the decision to terminate the applicant was made by V.H. Even if it was, Ms. Leonard is the respondent’s owner and oversees the employees in the restaurant. According to her, V.H. called or texted her at approximately 11:00 a.m., when the applicant still had not reported for work, said he had had enough with the applicant and would be at the restaurant at 4:00 p.m. to terminate him. Ms. Leonard testified that she was busy when V.H. contacted her earlier that morning, as a server and a bartender had quit and a cook was late, and she said “fine” without thinking about it. However, since the termination did not occur until the late afternoon, Ms. Leonard had the opportunity to consider changing her support of the applicant’s termination. She did not and at 4:45 p.m., in Ms. Leonard’s presence, the applicant was terminated by V.H. Ms. Leonard, at a minimum, approved the decision to terminate him, as she admitted during her cross-examination.
101The parties agree that Ms. Leonard called the applicant, who told her about the delayed bus service, and that he would be reporting for work. While Ms. Leonard attempted to provide evidence during the conference call about the actual time the applicant arrived at work, which was not admitted in these proceedings, the unchallenged evidence during the hearing was that the applicant reported to work shortly after their conversation, at 11:10 a.m. Ms. Leonard knew, from her telephone conversation with the applicant that he would be reporting for work, but would be late. She testified that despite timekeeping being mentioned as a reason for his termination in her August 1 email to the applicant, it was not really an issue she had with the applicant, although it was for V.H. She agreed that the applicant told her before moving that he may be late due to the bus, and that she accepted this explanation and did not have a concern with him reporting for work late.
102Ms. Leonard’s evidence was vague and hard to follow about the applicant not getting along with his co-workers, apart from her evidence about M.C. She testified that two employees, P.S. and C., who did not work in the kitchen, quit because of the applicant. Her evidence about P.S. quitting was difficult to follow and inconsistent, stating at one point that P.S. quit after the applicant was terminated, and at another point saying that she did not know the date that P.S. quit. The soup bowl incident she agreed was some time before the applicant’s termination and admitted that the applicant raised concerns about P.S.’s conduct too. Ms. Leonard admitted that during the Tribunal’s process she had not disclosed C.’s email, which allegedly set out the reasons why C. quit. C. was not called as a witness.
103The only evidence about the “moral[e] in the kitchen”, or the “back of the house”, one of the reasons identified by Ms. Leonard in her witness statement and in her August 1 email to the applicant, were the “harassment” allegations made by M.C. to Ms. Leonard about the applicant. She did not address the applicant’s concerns that he had with M.C., including the comment that M.C. made which I have found violated the Code.
104Ms. Leonard testified at the hearing, and wrote in her witness statements, that M.C. alleged that the applicant was “harassing him” and told her about the difficulties that he had experienced with the applicant. After reviewing the evidence and the exhibits, it is clear to me that Ms. Leonard was supportive and protective of M.C., who raised concerns about the applicant, and she did not want the applicant, who asserted his rights and raised valid human rights concerns about M.C., to continue to work in the workplace.
105There is no evidence before the Tribunal that the applicant “harassed” M.C. contrary to the Code. The issues that apparently M.C., who did not testify, raised with Ms. Leonard about the applicant included the applicant not showing him the dinner special. Ms. Leonard agreed, during her cross-examination that this was the responsibility of another employee, J., not the applicant, which undermines part of M.C.’s allegations about the applicant. As set out above, Ms. Leonard would not accept that M.C.’s comments to the applicant constituted harassment or discrimination under the Code.
106Accordingly, I find that the applicant’s termination was at least in part due to the fact that he claimed that M.C. violated the Code and then said that he would further assert his rights before the labour board because of the response he received from Ms. Leonard about M.C.’s comments, when Ms. Leonard preferred to have M.C. continue as an employee rather than the applicant. The applicant was reprised against contrary to the Code.
Remedies
107Having found that the respondent breached the Code, I turn now to the question of the appropriate remedy in the circumstances. The Tribunal’s remedial jurisdiction is based on sections 45.2(1) and (2) of the Code and permits the Tribunal to award both monetary and non-monetary remedies.
108The applicant seeks various monetary and non-monetary remedies. He seeks a “general damages” payment of $18,000 for violations of the Code, including being subjected to the discriminatory comment, failure to investigate and reprisal. He seeks loss of wages in the amount of $365.17 from the time he was terminated until he commenced his new position, as well as difference in pay between the time he received his new position until the time that his pay was the same as with the respondent for 4.25 weeks, which is $170. He requests that the Tribunal order the respondent to: develop a discrimination and harassment policy, with a complaint mechanism procedure included in it; require its management, including the kitchen manager and owner, to take the Ontario Human Rights Commission’s Human Rights 101 e-learning training; and post Code cards in visible places in the workplace.
109The respondent submits that it is prepared to give the applicant 2 weeks termination pay, but submits that the other monetary remedies are too high. It does not take issue with the non-monetary remedies that the applicant is seeking.
110It is well-established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator.
111During his examination-in-chief, the applicant testified that he could not believe that he experienced such blatantly racist comments from a co-worker. He was embarrassed, his self-esteem was lowered, and he felt attacked, victimized, and alone because nothing was done to address the comment. He testified that no one should feel embarrassed about their race and is scared that this will happen in another work setting.
112He was shocked when he was terminated. He had done nothing wrong. He was hurt and confused because he turned to someone for help, and instead of being helped, he was terminated. He talked to his doctor about depression, but did not want to go on any medication. It took him about a month to come out of his shell. He did not present any medical evidence from his physician.
113The applicant financially felt the impact of his termination. It was his first time living on his own and all of a sudden he had no money. He had to borrow rent money from a family member because he did not receive his outstanding wages for quite a while. He started working for a restaurant at which he used to work on July 25, 2014, but, for approximately four weeks, it was at a lower rate of pay.
114The applicant testified about the reasons why he filed his Application. He was very distraught by what had happened, felt that it was unjust, and not handled properly. He was directed by the labour board to contact the Tribunal and then was told about how to file an application. He filed it as soon as it could and sent it in.
Damages for Injury to Dignity, Feelings and Self-Respect
115In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52 to 54, the Tribunal summarized the criteria that it considers in making the global evaluation of the appropriate monetary compensation for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the subjective effect on the particular applicant who experienced discrimination.
116In Abdallah, above, the Tribunal ordered $1,500 as a remedy when it found that the investigation conducted into the applicant’s allegations was not reasonable and was flawed.
117The Tribunal has accepted that termination from employment for Code-related reasons is in itself objectively serious conduct which supports a higher compensatory award. See Morgan, above, at para. 120. The Tribunal also considers the length of employment as a factor, with often shorter term employees receiving less compensation than longer term employees. See, for example, O’Brien v. Organic Works Inc,, 2012 HRTO 457 at para. 53 where $13,000 was awarded to a seven month employee and Defina v. Lithocolor Services Ltd., 2012 HRTO 1768 at para. 72 where $15,000 was awarded to a two month employee.
118In this case, I find it is appropriate to award $18,000, the amount requested by the applicant. The applicant is a four and a half month employee. There is no remedy for the comments made by M.C., which the applicant overheard, as M.C. was not personally named. As set out above, I have found that the respondent failed to conduct a reasonable investigation into the applicant’s allegations that another employee made comments contrary to the Code, and then reprised against the applicant by terminating him, at least in part, because he raised Code issues and threatened to pursue his rights.
119Objectively, the respondent’s actions are serious. Terminations are objectively considered more serious than some other types of actions. This termination was reprisal for the applicant raising Code allegations about another employee, which I have found to be discriminatory, and after he told the respondent’s owner that he would be pursuing his legal rights. Subjectively the applicant was impacted by the respondent’s actions and I accept his evidence in this regard. The fact that he did not provide medical evidence, apart from his oral evidence, does not diminish the impact as he experienced the issues to which he testified and had personal knowledge of it. However, the impact on the applicant was not severe enough to prevent him from securing new employment very quickly after his termination.
120Pre-judgment interest, in the amount of 1.3% as set out in section 128 of the Courts of Justice Act (“CJA”) is also awarded as of September 29, 2014, the date the Tribunal sent the Application to the respondent.
121Post-judgment interest is ordered on any amounts that remain outstanding after 30 days of the date of the Decision at the rate of 2% pursuant to section 129 of the CJA.
Loss of Wages
122Pursuant to section 45.2(1) of the Code, an applicant who proves a breach of the Code is entitled to compensation for wage loss arising out the discriminatory act. The purpose of the compensation is to place the applicant in the position that he would have been in had the discrimination not occurred. See Ontario Human Rights Commission v. Impact Interiors, 1998 CanLII 17685 (ON CA) at para. 2 and Whale v. Keele North Recycling, 2011 HRTO 1724 at para. 58, judicial review dismissed, Keele North Recycling v. Human Rights Tribunal of Ontario, 2013 ONSC 268 (Div. Ct.).
123I find it appropriate to award the applicant the amount of loss of wages that he is claiming: $365.17 from the time that he was terminated until the time he commenced a new position, and $170 representing the difference in his hourly rate for 4.25 weeks.
124Pre-judgment interest at the rate of 1.3% under section 128 of the CJA shall run from August 8, 2014, which is the approximate mid-point in the period for which compensation for wages is being ordered, to the date of the Decision. See Budd v. 783720 Ontario Inc., 2015 HRTO 825.
125Post-judgment interest is ordered on any amounts that remain outstanding after 30 days of the date of the Decision at the rate of 2.0% pursuant to section 129 of the CJA.
Future Compliance Orders
126Subsection 45.2(2) of the Code confirms that 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. In the circumstances of this case, I am of the opinion that a public interest order that promotes future compliance is appropriate.
127The applicant requests that the Tribunal order the respondent to develop a harassment and discrimination policy, with a complaint mechanism procedure included in it; require its management, including the kitchen manager and the owner, to take the Ontario Human Rights Commission’s Human Rights 101 e-learning training course; and post Code cards in visible places in the workplace.
128The respondent does not object these remedies.
129Accordingly, the Tribunal orders that the respondent develop, within 90 days, a harassment and discrimination policy, which also contains a complaints mechanism within it. While not specifically requested by the applicant, the respondent may benefit from retaining an expert in human rights to assist with the development of this policy.
130The respondent is also ordered to post, within 90 days, Code cards in locations within the restaurant visible to employees. The Code cards are found on the Ontario Human Rights Commission’s (“the Commission) website at www.ohrc.on.ca/en/human-rights-code-cards.
131The Tribunal also orders the respondent’s management, including its kitchen manager and owner(s), to take the Commission’s e-learning training course called “Human Rights 101” within 90 days of the date of this Decision. This is found on the Commission’s website at www.ohrc.on.ca/en/learning/human-rights-101.
Order
132The Tribunal orders the following:
Within 30 days of the date of this Decision, the respondent shall pay the applicant the amount of $18,000 as monetary compensation for injury to dignity, feelings and self-respect, along with pre-judgment interest from September 29, 2014 at the rate of 1.3% in accordance with section 128 of the Courts of Justice Act;
Within 30 days of the date of this Decision, the respondent shall pay the applicant loss of wages in the amounts of $365.17 and $170.00, less deductions required by law, along with pre-judgment interest at the rate of 1.3% from August 8, 2014 pursuant to section 128 of the Courts of Justice Act;
The respondent shall pay the applicant post-judgment interest at the rate of 2% in accordance with section 129 of the Courts of Justice Act on any unpaid amounts in paras. 1 and 2 that have not been paid within 30 days from the date of this Decision;
Within 90 days from the date of this Decision, the respondent shall develop a harassment and discrimination policy, which includes a complaints mechanism;
Within 90 days from the date of this Decision, the respondent shall post Code cards in locations within the respondent that are visible to employees; and,
Within 90 days from the date of this Decision, the respondent shall require its management, including the kitchen manager and the owner(s), to take the Commission’s e-learning course Human Rights 101.
Dated at Toronto, this 22nd day of August, 2016.
“Signed By”
Alison Renton
Vice-chair