Maracle v. Free Flow Petroleum, 2017 HRTO 1279

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Maracle Applicant

-and-

Free Flow Petroleum, o/a Helen Brant Bayview Variety and 49 Quick Stop with Subway Respondent

RECONSIDERATION DECISION

Adjudicator: Jennifer Khurana Date: September 28, 2017 Citation: 2017 HRTO 1279 Indexed as: Maracle v. Free Flow Petroleum

WRITTEN SUBMISSIONS

Free Flow Petroleum, o/a Helen Brant Bayview Variety and 49 Quick Stop with Subway, Respondent Christopher Robertson, Counsel

Introduction

1The Tribunal issued its Decision in this Application, 2017 HRTO 437 (the “Decision”), allowing the Application in part and granting an award for damages, as well as pre and post-judgment interest on the amount due. The respondent has asked the Tribunal to reconsider its Decision. The applicant was not directed to file a response to the respondent’s Request for Reconsideration (“Request”).

2For the reasons set out below, with the exception of the correction to the pre-judgment interest rate payable in accordance with the Courts of Justice Act, the respondent has not established the existence of any of the criteria in Rule 26.5 of the Tribunal’s Rules of Procedure (“Rules”) that would cause me to reconsider my Decision.

THE LAW

3Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules of Procedure (“Rules”).

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

5As set out in the Tribunal’s Practice Direction, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

THE DECISION BEING CHALLENGED

6In the Decision, I found that Ms. Lang, who worked for the respondent and was the applicant’s manager at the time, made two discriminatory comments, and that the applicant’s race was a factor in her termination. I dismissed the applicant’s other allegations, and found that the applicant would have been terminated in any case due to non-discriminatory performance issues. I awarded $5000 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect in relation to the discriminatory comments and the applicant’s race being a factor in her termination. I ordered payment of post-judgment interest calculated at a rate of 2% and pre-judgment interest calculated at a rate of 2% pursuant to s.128 of the Courts of Justice Act.

THE REQUEST FOR RECONSIDERATION

7The respondent seeks reconsideration under Rule 26.5 (c) and identifies three issues that it submits warrant reconsideration of the Decision:

1. The Tribunal made errors in law in issuing a decision that conflicts with the Code and human rights case law;
2. The Tribunal made an error in law and incorrectly applied the prejudgement interest provisions of the Courts of Justice Act;
3. The Tribunal made an error in law in its application of the “balance of probabilities” test regarding the evidence that is required and procedurally prejudiced the respondent.

8The respondent also submits that the award of $5,000 is excessive and aggravated by an Order for pre-judgment interest that is inconsistent with the Courts of Justice Act. It requests that the Tribunal substitute a finding of “no breach” and dismiss the Application in its entirety. In the alternative the respondent asks the Tribunal to amend the order of damages and pre-judgement interest without a rehearing of the Application.

ANALYSIS AND CONCLUSIONS

9I find that the respondent has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10The Tribunal’s jurisprudence is clear that a request for reconsideration is not an appeal and is granted only in limited circumstances. There must be more than disagreement with a decision to find that the conditions in Rule 26.5 have been made out. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as completed and final, subject to limited exceptions.

Issue 1

11The respondent’s Request largely takes issue with my findings, my analysis and my assessment of the evidence. The respondent set out a number of errors it considers I made in the Decision. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case. See Latronico v. York Region District School Board, 2012 HRTO 637 and 4137566 Canada Ltd. v. Clements, 2011 HRTO 1008. I do not intend to respond in detail to every aspect of the respondent’s lengthy submissions, however I make the following comments.

12I cannot agree that my findings are inconsistent with the Tribunal’s case law, or with the “reasonable person” standard referenced by the respondent. The applicant admitted at the hearing that she did not complain about any alleged discriminatory comments to her employer or to management prior to her termination. At paragraph 60 of the Decision, I address the employer’s responsibility to ensure a workplace is free of harassment and discrimination, and the corresponding obligation once an employer learns of any alleged racial slurs or discriminatory conduct to act and reasonably respond. On the basis of the information that was available to the respondent employer at the time, I found that the respondent was not aware of the applicant’s allegations of discrimination until the Application was filed.

13In my view, it is not inconsistent to find that the employer did not fail in its duties under the Code because the complaints of harassment and discrimination were never properly or reasonably put before it to consider, and yet to also find that the applicant was subjected to discriminatory comments made by Ms. Lang. The respondent submitted at the hearing that an employer cannot be held to a standard of perfection in trying to decipher what the applicant meant. I agree, and was persuaded by the credible evidence provided by Mr. Bailey with respect to the actions he took following the applicant’s termination. He made reasonable inquiries and took the applicant’s concerns seriously.

14The respondent highlights that the written materials the applicant sent to Mr. Bailey after her termination included reference to Ms. Lang stating she works harder and longer than the applicant but because the applicant is Indigenous Ms. Lang paid more in taxes. The document includes notes about the applicant’s experiences with Ms. Lang and about the perceived unfairness of the termination. The respondent equates these written submissions with the comments made by Ms. Lang. It objects to my finding that those comments were a Code breach when made by Ms. Lang, but that the employer did not fail to reasonably address, or even had reason to believe discrimination had occurred in the workplace on the basis of the information the applicant provided.

15The respondent also appears to take particular issue with the fact that Mr. Brant is himself a member of the Mohawks of the Bay of Quinte, and that if he did not find the comments unwelcome or discriminatory, then I should not have found that they were unwelcome when uttered by Ms. Lang. The respondent ignores, however, that the employer did not hear the comments, and that the document did not reference racial discrimination or behaviour and does not repeat the comments verbatim, or explain their context, unlike what I heard in testimony at the hearing about the interactions between Ms. Lang and the applicant. I made a credibility assessment and determination based on the oral evidence I heard at the hearing. The respondent may well disagree with my findings and my assessment of the evidence, but this is not a basis for reconsideration.

16I did not find it unreasonable for Mr. Bailey and Mr. Brant to conclude that the information provided by the applicant did not reveal violations of the Code, or to find the termination justified. While the written materials indicated that Ms. Lang made comments about paying more in taxes than the applicant who is Indigenous, they also include a number of other complaints about Ms. Lang. I dismissed the bulk of the applicant’s allegations, and did not find that Ms. Lang’s efforts to address performance issues with the applicant and to ensure that she complied with safety and hygiene requirements were related to the applicant’s race or any other Code ground. In light of what they were provided and the acknowledgement by the applicant that she had not complained of racial discrimination prior to her termination, I found that Mr. Bailey’s and Mr. Brant’s actions and response were reasonable on the basis of the totality of the information before them, which included what was written in the materials submitted by the applicant, and the results of their inquiries with the applicant.

17In the Request, the respondent suggests that while not “preferred by some”, the word Indian has “legal meaning” including the fact that Indigenous persons are exempt from tax. I do not accept that the factual basis of comments about tax exemptions somehow negate the discriminatory nature of the comments. I addressed this argument in part in my Decision at paragraph 58 in which I state that even if factually correct that certain Indigenous persons receive certain tax exemptions in some contexts, the comments made by Ms. Lang to the effect that ‘Indians get all the breaks’ play into negative impressions of Indigenous persons as receiving unwarranted tax breaks or other rights and privileges. In short these comments are based on one of several pervasive and common myths about Indigenous persons in Canada and they are an example of and serve to perpetuate racial stereotyping. The Ontario Human Rights Commission’s “Policy and guidelines on racism and racial discrimination” includes the following discussion of racial stereotyping:

One of the most obvious ways in which people experience racial discrimination is through stereotyping. Stereotyping can be described as a process by which people use social categories such as race, colour, ethnic origin, place of origin, religion, etc. in acquiring, processing and recalling information about others. Stereotyping typically involves attributing the same characteristics to all members of a group, regardless of their individual differences. It is often based on misconceptions, incomplete information and/or false generalizations. Practical experience and psychology both confirm that anyone can stereotype, even those who are well meaning and not overtly biased. While it may be somewhat natural for humans to engage in racial stereotyping it is nevertheless unacceptable.

This passage helps to explain how and why stereotypical comments can amount to racial discrimination, whether intended to or not.

18I also do not accept the respondent’s argument that Ms. Lang was not referring to the applicant’s status as a woman of Indigenous heritage, per se, and that her discontent was with the tax laws generally. Her comments were directed at the applicant, who is Indigenous. They were hurtful and offensive to the applicant, who has the right to be free from discrimination in the workplace and not to be subjected to discriminatory comments.

19The respondent also submits that as I relied on sections 5 and 9 of the Code to find that Ms. Lang’s comments were racially motivated and discriminatory, I should have considered, but failed to address, section 10 of the Code and the elements that the Tribunal has held are required to establish workplace harassment under section 5(2). It submits that Ms. Lang was never engaged in a course of vexatious comments, and that it was an error in law and contrary to section 10 of the Code to conclude on the one hand that a comment heard by a reasonable employer isn’t discriminatory, and then find they these comments attract a finding of a breach of the Code when made by Ms. Lang. It also submits that Ms. Lang made two comments that weren’t repeated or spread over the totality of her employment and that the applicant did not made a complaint about these comments until after she was terminated, which I accepted.

20I also cannot agree with the respondent’s submissions about my failure to consider sections 10 and 5(2) of the Code. I did not make my determination of discrimination on the basis of a finding of workplace harassment. Rather, I relied on ss.5(1) and 9 of the Code, and the applicable law which states that every person has a right to equal treatment with respect to employment without discrimination. The respondent has not provided any support for its claim that a finding of discrimination under 5(1) of the Code because of discriminatory comments necessarily requires a finding of harassment under subsection 5(2) or section 10(1).

21The respondent relies on Kasubeck v. General Dynamics Land Systems Canada, 2017 HRTO 390 in support of its position that my findings are inconsistent with the Tribunal’s jurisprudence. It submits that even if Ms. Lang was found to have made an insensitive comment with some connection to a Code ground, absent a sufficiently egregious or offensive character, a brief exchange following which the applicant returned to work precludes a finding of discrimination. The analysis in Kasubeck was a finding on the basis of “harassment”, in which the Tribunal did not find that the applicant was harassed and did not accept the applicant’s evidence that the comments were made. Again, I did not find that Ms. Lang’s comments constituted harassment and made my determination on the evidence before me under section 5(1) of the Code.

22The respondent submits that the award of $5000 for two comments is excessive and inconsistent with Tribunal case law. It argues that the Tribunal has consistently awarded much lower damages for a single comment or a few comments, even under far more egregious circumstances. It relies on cases from 2014 in which the damage awards ranged from $1,000 to $3,000 (Szlyuk v. United Food and Commercial Workers Canada, 2009 HRTO 902; Gubrenko v. T.O.J. Empire Auto, 2014 HRTO 1232; Michelin v. Johnson, 2014 HRTO 321).

23The remedy awarded flows from the findings I made about discrimination. As the Tribunal held in Lougheed v. Little Buddies Preschool Centre, 2016 HRTO 128 at paragraph 12, the Tribunal has the discretion to award an appropriate remedy based on the particular facts and circumstances of the case before it:

The quantum of compensation is a discretionary award and the impact of the [discriminatory] acts must be viewed in the context of each case. Although case law can be used as a guide, no two cases are identical.

Issue 2

24With respect to the Tribunal’s order for pre-judgement interest, I agree that the rates are published on the Ministry’s website, and that I erred in stating that the applicable rate was 2%. It was my intention to use the rate pursuant to s.128 of the Courts of Justice Act, and it was a simple transcription error that I listed the post-judgment rate as opposed to the pre-judgment rate. The Decision is amended accordingly to reflect the pre-judgment interest rate of 0.8%. I appreciate the applicant has not had an opportunity to make submissions on this issue; however this was a simple error which is appropriately corrected under Rule 25.

Issue 3

25Finally, the respondent takes issue with my findings on credibility, and argues that I erred in not drawing a negative inference from the applicant’s failure to call the witnesses she had indicated would be testifying at the hearing. The respondent submits that my assessment did not consider the reliability of her evidence and that I conflated the balance of probabilities test with requiring the respondent to disprove allegations of racism.

26As already stated above, reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

27The respondent’s argument that I should have drawn an adverse inference with respect to applicant witnesses who were not called is a clear attempt to reargue their case and an issue that could have and should have been raised at the hearing. The issue of those witnesses evidence was clearly in play given I disallowed written statements from these witnesses. There were a number of rulings I could have considered, not only the one the respondents now ask me to make. I could also have considered allowing the respondents to call these witnesses (including on a hostile basis if appropriate). The issue could also have been put to the applicant who was self-represented and may not have appreciated the implications of failing to call witnesses in person instead of through written statements and might well have sought permission to call them on adjournment rather than face an adverse finding. For all these reasons I give no effect to this aspect of the reconsideration request.

28The respondent disputes the findings of fact in the Decision and also disagrees with my findings on credibility. Disagreeing with findings on credibility of witnesses is not sufficient to justify a reconsideration of a decision. I also disagree with the respondent’s characterization of the Decision as having required the respondent to disprove allegations of racism. The Ontario Court of Appeal addressed a similar misplaced argument in Shaw v. Phipps, 2012 ONCA 155 at paras 29 – 34.

29In my view, the respondent provided no reason to conclude that compelling and extraordinary circumstances exist that would call for Reconsideration of the Decision. The respondent clearly disagrees with my Decision, but reconsideration is not granted because of disagreement with an adjudicator’s conclusions.

ORDER

30The respondent’s Request is dismissed, with the exception of my finding at paragraph 24, and as ordered below.

31Paragraph 77(b) of the Decision in 2017 HRTO 437 shall be corrected to include the correct pre-judgment interest rate of 0.8% pursuant to s.128 of the Courts of Justice Act payable on the amount due under paragraph 77(a) of that Decision.