Bobkin v. 2439604 Ontario Inc. o/a Stackhouse Pizza and Sub Co., 2016 HRTO 1677

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Bobkin

Applicant

-and-

2439604 Ontario Inc. o/a Stackhouse Pizza and Sub Co.

and Joe Levesque

Respondents

DECISION

Adjudicator: Mark Hart

Date: December 23, 2016

Citation: 2016 HRTO 1677

Indexed as: Bobkin v. 2439604 Ontario Inc. o/a Stackhouse Pizza and Sub Co.

APPEARANCES

Richard Bobkin, Applicant

Self-represented

2439604 Ontario Inc. o/a Stackhouse Pizza and Sub Co., Respondent

Joe Levesque, Representative

Joe Levesque, Respondent

Self-represented

1This is an Application filed on March 11, 2015 alleging discrimination with respect to employment because of race, ancestry, ethnic origin, creed and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges that he was subjected to anti-Semitic slurs in the workplace, and that his Jewish ancestry and creed was a factor in the termination of his employment. He also alleges that he experienced reprisal for seeking to claim and enforce his rights under the Code.

3A hearing in this matter was held in Sudbury on August 26, 2016. I heard evidence from the applicant and the personal respondent. I also have reviewed and considered all materials filed for the purpose of the hearing and marked as exhibits.

The applicant’s evidence

4The applicant was hired as a part-time delivery driver for Stackhouse Pizza and Sub Co. (“Stackhouse”) in September 2014. He initially reported to the head driver and supervisor, R.B. R.B. in turn reported to the personal respondent, who is the sole shareholder and director of the corporate respondent.

5Sometime later in the fall of 2014, R.B. quit his job with Stackhouse, and the applicant began working full-time hours as a delivery driver at Stackhouse.

6In December 2014, R.B. returned to work at Stackhouse as head driver and the applicant’s supervisor, and the applicant resumed working part-time. The applicant and R.B. had a difficult working relationship, however the applicant clarified at the hearing that he is raising no allegation regarding a violation of his Code rights prior to the incidents on January 10 and 11, 2015 as described below.

7On Saturday, January 10, 2015, the applicant arrived for his shift at Stackhouse at 4 p.m. He had worked until closing the previous evening, and one of his duties was to mop the floors. The practice at Stackhouse was for the mop bucket to be emptied after the floors had been mopped, which the applicant had not done. When he arrived for work on January 10, 2015, the personal respondent spoke to the applicant about always emptying the mop bucket before he left for the night. The applicant states that he acknowledged the personal respondent’s request, and went to the back of the store to make pizza boxes.

8The applicant states that as soon as he went to the back of the store, he was confronted by R.B., who yelled at him to “empty the mop bucket now”. The applicant states that he tried to explain to R.B. that he would do this as soon as he had finished making the pizza boxes and that the personal respondent had already spoken to him about this issue. The applicant states that this did not satisfy R.B., who again yelled at the applicant to empty the mop bucket now and said, “I don’t care what Joe told you, I am telling you, just fucking do it”.

9The applicant states that he was surprised at R.B.’s tone, and asked R.B. what his issue was with the applicant. The applicant states that R.B. then confronted him with his face about 10 inches from the applicant’s face and continued to scream at the applicant, saying that the applicant did not do his job right and left the pop fridge unfilled and left the mop bucket without emptying it, and that all the applicant does is play games on the computer. The applicant states that he tried telling R.B. that his demeanour in treating and talking to the applicant was uncalled for. The applicant states that R.B. then threatened him, saying “I will knock you the fuck out”. The applicant states that he responded by saying that, if R.B. did so, the applicant would call the police and have R.B. charged with assault. The applicant states that R.B. then replied, “You would call the cops, you fucking Jew”.

10The applicant states that he was so angry that he reacted with a sarcastic chuckle, and that R.B. then sarcastically chuckled back at him. The applicant states that he had had enough, and walked away from R.B. and went outside to have a smoke and calm down. He states that R.B. followed him outside and proceeded to yell at the applicant again, and told the applicant that he was fired and that his services were no longer needed. The applicant states that R.B. then went into the applicant’s car without his permission to retrieve the debit machine.

11The applicant states that he then went back into the store to speak with the personal respondent. He states that he told the personal respondent that R.B. had just insulted him, verbally abused him, physically threatened him, racially slandered him, and to top it all off had broken into the applicant’s car and fired him. The applicant states that he asked the personal respondent whether he was going to do something about this. He states that the personal respondent replied by saying that R.B. was the head of the delivery drivers, and the applicant was just a part-time driver. The applicant states that he left the store in shock at about 4:45 p.m.

12The applicant states that at 10 a.m. the following morning, Sunday, January 11, 2015, he received a telephone call at home from the personal respondent. He states that the personal respondent said that he had smoothed things over with R.B. and that the applicant should come back to work, and asked whether the applicant was going to come in for his shift that afternoon. The applicant states that he asked the personal respondent to tell R.B. never to speak to him that way again and that if R.B. did, there would be consequences to his actions. The applicant states that he was assured by the personal respondent that there would not be a problem.

13The applicant arrived for work at 4 p.m. on January 11, 2015. He states that R.B. did not say a word to him while the personal respondent was in the store, but that the atmosphere was tense.

14The applicant states that he came back from a delivery at 6:30 p.m. By this time, the personal respondent had left the store. The applicant states that R.B. then took the opportunity to yell at him about what he should do or not do in the store. The applicant states that he had had enough abuse from R.B., and that he told R.B. that he owed the applicant an apology and had no right to talk to the applicant or tell him anything. The applicant states that R.B. then exploded, and said that he was the applicant’s boss and could talk to the applicant any way he deemed fit, and that the applicant did not know how to keep his “Jew mouth” shut. The applicant states that R.B. then said that the applicant was fired.

15The applicant states that he started to cash out his paperwork so he could leave, but R.B. stepped into his personal space and spat on the right side of the applicant’s cheek and said, “there is your apology” and then laughed. The applicant states that R.B. then asked, “what are you going to do?” The applicant states that he went to the phone to call the police and told R.B. that he was doing so because R.B. had just assaulted him. He states that R.B. came over and put his thumb on the button to disconnect the call, and ripped the phone out of the applicant’s hand and waved the phone towards the applicant, yelling at the applicant to “get the fuck out of the store”. The applicant states that he moved back from R.B., but R.B. pushed him out the back door.

16The applicant states that he called 911 on his cell phone and was speaking with the 911 operator when his cell phone died. He then went into a local store to call 911 again, and was told to go home. He states that when he got home, he called the personal respondent and told him what had happened. The applicant states that the personal respondent’s only concern seemed to be about the debit machine, which was still in the applicant’s car, and the applicant cashing out for his shift. The applicant states that he asked the personal respondent whether he would come pick up the debit machine, to which the personal respondent replied that he would not be impressed if he had to come all the way out there. The applicant states that he then called the store at about 9 p.m. to see whether R.B. was still at the store. When he was told that R.B. had left, the applicant went to the store to return the debit machine and to cash out.

17The applicant states that the police came to his home on the evening of Monday, January 12, 2015 and he asked them to press charges against R.B. In the end, no charges were laid by the police arising out of this incident. The applicant states that he was told by the police that it was a he said, he said situation.

18The applicant has not returned to the store since the incident on January 11, 2015. He states that his only further contact with the personal respondent occurred on Friday, January 16, 2015. The applicant states that at 9:40 a.m. that day, he received a telephone call from the person respondent, in which the personal respondent said that if the applicant took action with the Human Rights Tribunal, the personal respondent would call OSAP and the government to tell them that the applicant had been working for Stackhouse (the applicant was also attending college at this time). The applicant states that he told the personal respondent that he would do what he had to do, and that the personal respondent should do whatever it was that he had to do. The applicant states that he told the personal respondent never to call him again.

The personal respondent’s evidence

19The personal respondent states that he first became involved with Stackhouse in April 2014 as an employee, as the business at time was owned by two other individuals. He states that he took over the business from these two individuals on November 15, 2014. He states that he incorporated the corporate respondent at that time, and the corporate respondent started operating the business as of November 15, 2014. He states that he is the sole shareholder and director of the corporate respondent.

20The personal respondent states that R.B. was the head driver during this period. He described R.B. as an independent contractor, and states that R.B. was fully in charge of the delivery drivers.

21With regard to the events of January 10, 2015, the personal respondent states that the applicant came in and started folding pizza boxes. He states that there was a “little argument” in the back between R.B. and the applicant, although he states that the argument was not as extreme as described by the applicant. The personal respondent states that he went to the back to see what was going on. He states that R.B. was screaming and was upset. He states that he asked staff what had happened, and they said that the applicant and R.B. had gotten into an argument. He states that he also asked staff whether R.B. had said anything racial, and they said he had not.

22The personal respondent agrees that the applicant came in and spoke to him that evening, and told him that R.B. had called the applicant a “fucking Jew”. The personal respondent states that he specifically asked staff whether R.B. had called the applicant a “fucking Jew”, and they said no. The personal respondent states that there were staff right there when the argument was happening. He states that he was told by staff that R.B. and the applicant had gotten into an argument, and that the applicant had gone out the back door to leave. The personal respondent acknowledges that the applicant was upset at the time, and described his decision to leave as understandable. The personal respondent denies that the applicant told him that he had been fired by R.B. In his evidence in reply, the applicant states that R.B. lowered his voice when he said, “you would call the cops, you fucking Jew”, such that this may not have been heard by the personal respondent or other staff who were in the store at the time.

23The personal respondent agrees that he called the applicant the following morning to see whether he was going to come in that night for his shift. He states that he called the applicant because he wanted to see where the applicant stood and see if he was still willing to work or not. The personal respondent states that he did speak to R.B. and told him that he needed to be less angry with people and not yell and scream, to which R.B. said he would make sure everything was okay.

24The personal respondent agrees that he was not at the store very long on the evening of Sunday, January 11, 2015, and left shortly after the applicant arrived for work. The personal respondent believes that he left around 6 or 6:30 p.m. While he agrees that R.B. and the applicant were not talking, he states that he did not feel any tension beyond that. The personal respondent agrees that he was not present in the store when the incident between R.B. and the applicant occurred that evening.

25The personal respondent states that he became aware of the incident when the applicant called him at home at about 8:30 or 9 p.m. that evening and explained what had happened. The personal respondent states that the applicant said that he could not handle R.B. anymore and had enough stress in his life. The personal respondent states that the applicant did not say that R.B. had called him a Jew, but did tell him that R.B. had spat on the applicant’s face. The personal respondent states that he immediately called the store and spoke with one of his staff, and asked what had happened and whether R.B. had spat in the applicant’s face. The personal respondent states that he was told that R.B. had yelled at the applicant because he was playing games on the computer. The personal respondent states that he was also told that R.B. had not spat in the applicant’s face. He states that he asked whether R.B. had used any racial slurs, and was told no. In his evidence in reply, the applicant states that the other staff members who were present were looking on while the argument unfolded, but were in another part of the store and may not have seen R.B. spit on his face. He states that R.B. told him to keep his “Jew mouth” shut in a loud voice, which he believes would have been heard by other staff.

26The personal respondent states that there is a camera in the store, and that the police came several days later and reviewed the camera video footage. The personal respondent states that the video showed that R.B. grabbed the phone from the applicant but did not hit him with it. He states that the video did not show that R.B. had spat on the applicant’s face. This video footage was not introduced into evidence before me. The personal respondent states that the video footage was left in the store when he sold the business assets to another company on July 6, 2015. No explanation was provided by the personal respondent as to why this video footage was not preserved or brought forward in this proceeding.

27The personal respondent was in the store for the January 10, 2015 incident and has provided some direct evidence regarding his own observations and involvement. However, his evidence regarding what he was told by staff regarding this incident is clearly hearsay evidence on a material point in issue. The personal respondent was not present at all for the January 11, 2015 incident, and his only evidence regarding that incident is based on hearsay evidence from staff and his review of a video that was not submitted in evidence before me. While I have discretion to admit hearsay evidence pursuant to the Statutory Powers Procedure Act, I am not prepared to rely on hearsay evidence in this proceeding on a material point in issue or to contradict the applicant’s evidence about the incidents.

28In a Case Assessment Direction (“CAD”) dated July 25, 2016, I had raised this point with the parties. In this CAD, I specifically stated:

. . . it appears from his Response that Mr. Levesque has a different version of the events that the applicant says occurred that led to the applicant no longer working for the business. In order for the Tribunal to consider this, the Tribunal would need to hear evidence from any individuals who were present for these events, and could not rely simply upon what Mr. Levesque says that these individuals told him about the events. As a result, any such individuals, including [R.B.] . . . or any other staff who may have been involved or present, would need to appear at the hearing on August 26, 2015 to testify to their recollection of these events.

29No such witnesses were called by the respondents to testify at the hearing. When I asked the personal respondent why none of these witnesses were at the hearing to testify, the personal respondent stated that he could not get hold of R.B., did not have R.B.’s phone number, and could not find him on Facebook. With regard to other staff who were present, the personal respondent stated that he had messaged one staff member on Facebook but did not get a response, and that he had tried her old phone number but it was no longer in service. With regard to a third staff member who was present at least on January 11, 2015, the personal respondent stated that she wanted to be left out of this proceeding, and that the only contact information he had for her was a phone number and he lost it.

30While I appreciate that any party to a legal proceeding may confront difficulties in locating and securing the attendance of witnesses, I am not satisfied as to the extent of the efforts made by the personal respondent to try to find these witnesses or have them appear to testify at the hearing. In any event, in my view, any inability on the part of the personal respondent to locate these witnesses does not alter the fact that the evidence he provided as to what he was told by them remains hearsay evidence, which is inherently unreliable, deprives the applicant of his ability to cross-examine these witnesses, and makes it impossible for this Tribunal to assess their credibility.

31With regard to the phonecall on January 16, 2015, the personal respondent states that he recalls the applicant calling him. He states that the applicant was yelling and screaming and hung up on the personal respondent. The personal respondent states that he then called back. The personal respondent acknowledges that he said that if the applicant went to human rights, he was going to let the government know that the applicant had been working as an independent contractor. The personal respondent states that he did not actually report the applicant to anyone, and was just going to let it go.

32As alluded to above, the corporate respondent sold the assets of the business to another corporation on July 6, 2015. The applicant made it clear at the hearing that he was not seeking any finding of liability under the Code as against the new owner of the business, nor do I see any basis for such liability in any event on the basis of the evidence before me.

33The respondents state that they are not involved in operating any other Stackhouse locations, and do not operate any kind of pizza or sub business. The personal respondent states that he is currently employed, and that the corporate respondent still exists but is not actively operating any kind of business.

Analysis and Decision

34I first need to make findings of fact regarding the events of January 10 and 11, 2015, which requires me to assess the credibility of the witnesses who testified before me. Overall, I found the applicant to be a credible witness. His Application was filed with this Tribunal shortly after the events had occurred, and his evidence regarding these events has been consistent throughout. He gave his evidence in a forthright manner, and in my view did not seek to embellish or exaggerate his evidence. He also was prepared to acknowledge information from the personal respondent that may have been adverse to his case, for example his acknowledgement that staff should have heard the anti-Semitic slur made by R.B. on January 11, 2015.

35In addition, there were important elements of the applicant’s evidence that were corroborated by the personal respondent. With regard to the January 10, 2015 incident, while the personal respondent described it as a “little argument” and not as extreme as the applicant had described, the personal respondent nonetheless testified that R.B. was “screaming” and “upset”. He also corroborates that the applicant spoke to him on the day of the incident and told him that R.B. had called him a “fucking Jew”. With regard to the January 11, 2015 incident, the personal respondent corroborates that the applicant told him that R.B. had spat on his face, and corroborates that the review of the video confirmed that R.B. had grabbed the phone out of the applicant’s hands.

36Further, there is no direct evidence, apart from hearsay evidence, to contradict the applicant’s version of events. The personal respondent was present on January 10, 2015, but was in a different part of the store and may simply not have been in a position to hear R.B. call the applicant a “fucking Jew”. The personal respondent was not present at all for the January 11, 2015 incident. For the reasons already stated above, I am not prepared to rely upon the hearsay evidence as to what staff members are said to have told the personal respondent about these incidents to contradict the applicant’s direct evidence before me. Further, to the extent that the personal respondent relies upon the video to contradict the applicant’s evidence that R.B. spat on his face, I am not prepared to rely on this evidence in the absence of the video having been tendered into evidence before me.

37As a result, on the basis of the evidence before me, I find on a balance of probabilities that on January 10, 2015, the applicant was involved in an argument with R.B. during which R.B. yelled at the applicant, threatened to physically assault him, called him a “fucking Jew”, and fired him. I find that the personal respondent asked the applicant to come back to work the following day, and said that he had smoothed things over with R.B. and there would not be any further problems. I find that on the evening of January 11, 2015, R.B. yelled at the applicant again, told him to keep his “Jew mouth” shut, spat on his face, and fired him once more.

38On the basis of these factual findings, I find that the applicant experienced discrimination with respect to employment because of his Jewish ancestry and creed in violation of s. 5(1) of the Code as a result of the conduct of R.B. in two respects.

39First, with regard to the anti-Semitic slurs directed to the applicant by R.B., which I have found were made on two occasions, I find that these slurs created a poisoned work environment for the applicant. A poisoned work environment can be created in two circumstances: (1) if there has been a particularly egregious, stand-alone incident, or (2) if there has been serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated: see General Motors of Canada Ltd. v. Johnson, 2013 ONCA 502 at paras. 66-67 as adopted in the human rights context by Crêpe It Up! v. Hamilton, 2014 ONSC 6721 (Div. Ct.) at paras. 18-19. In my view, the making of the anti-Semitic slurs by R.B. towards the applicant on two occasions evinces repeated and serious wrongful behaviour that was sufficient to create a hostile or intolerable work environment for the applicant, particularly given that R.B. was the applicant’s supervisor and the head driver and especially when combined with R.B. yelling at the applicant, threatening to physically assault him, and spitting in his face. Further, even if the two incidents happening over the course of two consecutive days is not properly regarded as sufficiently “repeated or persistent” wrongful behaviour, I find that the nature of these anti-Semitic slurs is nonetheless sufficient to constitute a particularly egregious, stand-alone incident.

40Second, I find that the applicant’s rights under s. 5(1) of the Code were violated as a result of R.B. firing the applicant from his job. On both occasions, the decision to fire the applicant was communicated by R.B. immediately following the making of the anti-Semitic slurs, such that I infer that the applicant’s Jewish ancestry and creed was a factor in the decision to fire him.

41The respondents take the position that I cannot find a violation of the applicant’s rights “with respect to employment” on the basis that the applicant was an independent contractor hired by R.B. as the head driver, and was not an employee of the corporate respondent. I do not accept this argument. This Tribunal has held repeatedly that the term “with respect to employment” extends beyond what may traditionally be regarded as employer-employee relationships, and that a breach of s. 5(1) of the Code may arise between an employee and other persons who are not “employers” in the traditional sense. The issue in each case is whether there is a sufficient nexus or link to employment in the relationship between the parties: see Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON HRT); Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421; Sutherland v. Bradstock, 2011 HRTO 619; Chaudhry v. Choice Taxi of Cornwall Inc., 2012 HRTO 391; Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583; and Ifrah v. National Income Protection Plan Inc., 2014 HRTO 1637.

42In the instant case, there is no question that the applicant was performing work as a delivery driver that directly related to the business of Stackhouse and was of direct benefit to Stackhouse, he worked out of the Stackhouse store, he was paid out of the cash received by Stackhouse, and the personal respondent as R.B.’s supervisor was directly involved in dealing with the issues as between the applicant and R.B. In these circumstances, I find that there is a more than sufficient nexus or link to employment in the relationship between the parties to fall within the scope of s. 5(1) of the Code.

43The next question is the extent to which the respondents, or either of them, are liable for the conduct of R.B. Pursuant to s. 46.3(1) of the Code, “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 . . . shall be deemed to be an act or thing done or omitted to be done by the corporation . . .” The respondents take the position that R.B. also was an independent contractor, and not an employee of the corporate respondent. While not articulated at the hearing, the argument appears to be that the corporate respondent is not liable for the actions of R.B. either because he was not an “employee” or because his conduct was not done “in the course of employment”. With regard to the first point, whether or not R.B. was an employee of the corporate respondent, he certainly would fall within the scope of being an agent of the corporation even if he was truly an independent contractor. With regard to the second point, this Tribunal equally takes a large and liberal interpretation of the phrase “in the course of employment” within the meaning of s. 46.3(1) of the Code, consistent with its approach to the interpretation of s. 5(1). Indeed, it would be absurd for an agent to be expressly identified as capable of rendering a corporation liable, but for this very same agent to be found not to have been acting “in the course of employment” on the basis that the agent is not an employee: see Srouji v. Direct IME, 2012 HRTO 449.

44Accordingly, I find that the corporate respondent is deemed to be liable for the conduct of R.B. pursuant to s. 46.3(1) of the Code, and as a result is liable for the violation of the applicant’s rights under s. 5(1) of the Code that I have found to result from R.B.’s conduct.

45With regard to the personal respondent, he is only capable of being held liable for his own actions in this matter. While the applicant takes the position that the personal respondent was not sufficiently responsive when he raised the anti-Semitic slur on January 10, 2015, the personal respondent’s evidence indicates that he did investigate the matter by discussing it with staff who were present. The personal respondent also spoke with R.B. about his conduct and directed him not to yell or scream or be angry with staff, and communicated this to the applicant the following morning and invited him to return to work. With regard to the January 11, 2015 incident, the personal respondent’s evidence is that, after being informed of the incident by the applicant on January 11, 2015, the personal respondent immediately contacted staff to investigate what had occurred and reviewed the store video. The fact that the personal respondent may have been given information by his staff that is inconsistent with the findings I have made and that caused him to believe that the applicant’s allegations were unsupported is not a basis upon which to hold the personal respondent liable under the Code: see Deane v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1863.

46There is one final aspect of this matter with which the personal respondent was directly involved, namely the phone call with the applicant on January 16, 2015. In his evidence, the personal respondent admitted that he said that if the applicant went to human rights, he was going to let the government know that the applicant had been working as independent contractor. I find that this constitutes a threat of reprisal against the applicant for exercising his right to claim and enforce his rights under the Code, in violation of s. 8 of the Code. While the personal respondent’s evidence is that he did not actually report the applicant to anyone and was just going to let it go, a finding of a violation of s. 8 of the Code does not require an actual reprisal, but includes a threat of reprisal. I find that the personal respondent clearly evinced an intention to threaten to take reprisal against the applicant if he proceeded with a human rights claim, on the basis of the language that the personal respondent used on the call.

47Accordingly, I find the personal respondent liable for making a threat of reprisal as against the applicant in violation of s. 8 of the Code. As the personal respondent is an officer of the corporate respondent, the corporate respondent is also jointly and severally liable for this threat of reprisal pursuant to s. 46.3(1) of the Code.

48With regard to remedy, the applicant seeks lost income for a period of 16 weeks, which I find to be reasonable in the circumstances. The applicant was being paid $7 per hour, and would also earn tips from his deliveries and would be paid a premium for deliveries made to certain areas. The applicant was working part-time at the time he was fired, and his evidence is that he was working about 3 shifts per week. At the hearing, the applicant estimated that he was earning approximately $300 per week. The respondents take issue with this estimate, and suggest that the applicant was earning no more than $100 or $200 per week. There is no documentary evidence before me to clarify the applicant’s precise weekly earnings. However, I note that in the Application as filed with the Tribunal, the applicant stated that he was making around $500 to $600 per month, which is significantly less than $300 per week and more in accord with the personal respondent’s estimate. In these circumstances, I find that it is appropriate to award the applicant lost income for a period of 4 months on the basis of $550 per month, for a total amount of $2,200. The applicant is also entitled to pre-judgment interest on this amount at the rate of 1.3% per annum in the further amount of $50.05.

49The applicant further claims compensation for injury to his dignity, feelings and self-respect in the amount of $20,000. The applicant states that he had never been treated this way before, in terms of being subjected to anti-Semitic slurs, threatened with physical assault, spat upon and fired. He was attending college at the time, and was relying upon the part-time income he earned from Stackhouse to help support his family. He states that he is devastated and humiliated by the treatment he received, and feels like he has been ostracized. He states that he has been living in fear that R.B. will do something else to him, given that the applicant lives in a small community and R.B. lives nearby. He states that as a result of these events, he does not tell anyone in the community that he is Jewish, and has not been able to be as open and friendly with other people as he once was. He states that this has affected his relationship with his family.

50The Tribunal’s jurisprudence primarily applies two criteria in evaluating 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. The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. 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: see Arunachalam v. Best Buy Canada, 2010 HRTO 1880.

51In Brathwaite v. Komenda Contracting Corporation, 2013 HRTO 1979, the applicant was awarded $15,000 as compensation for injury to dignity, feelings and self-respect as a result of two racially discriminatory comments made to him in the workplace. In my view, the specific circumstances of this case call for a somewhat higher award, given that the anti-Semitic slurs were coupled with yelling, threats of physical assault and spitting in the applicant’s face and in light of the fact that the applicant lost his job for what I have found to be a discriminatory reason. As a result, I find that the amount of $20,000 as requested by the applicant is an appropriate amount to award to the applicant in relation to the impact of the anti-Semitic slurs made by R.B. and being terminated from his job, for which the corporate respondent is liable.

52With regard to the threat of reprisal made by the personal respondent, I regard this violation of the applicant’s rights to be of a significantly less serious nature than the anti-Semitic slurs and termination of the applicant’s job. There also is little evidence regarding the impact on the applicant specifically in relation to the making of this threat of reprisal. In my view, an award of compensation for injury to dignity, feeling and self-respect arising from this threat of reprisal in the amount of $2,000 is appropriate in the circumstances, for which the personal respondent and the corporate respondent are jointly and severally liable.

53Finally, the applicant requests that the respondents be required to develop a human rights policy, conduct human rights training for staff, and post Code cards in the workplace. In my view, given that the corporate respondent is no longer operating any business and the personal respondent is employed, awarding these remedies would serve no real purpose.

ORDER

54For all of the foregoing reasons, I hereby make the following order:

a. The corporate respondent shall pay to the applicant the amount of $2,200.00 for lost income plus a further $50.05 for pre-judgment interest;

b. The corporate respondent shall further pay to the applicant the amount of $20,000.00 as compensation for injury to dignity, feelings and self-respect;

c. The personal respondent and the corporate respondent are jointly and severally liable to pay to the applicant the additional amount of $2,000.00 for injury to dignity, feelings and self-respect due to the threat of reprisal; and

d. Post-judgment interest at the rate of 2.0% per annum shall accrue on any amounts not paid within 30 calendar days of the date of this Order.