Ontario Superior Court of Justice – Divisional Court

Ontario (Human Rights Commission) v. Ford Motor Co. of Canada Ltd.

Date: 1999-06-23

Counsel: N. Overend, for the Commission (respondent); M. Naraine, on his own behalf; C.G. Riggs, for Ford Motor Co. of W.H. Canada Ltd.

(Court File No. 16/97)

Decision

[1] Matlow, J.: This appeal is dismissed.

[2] Counsel may make submissions in writing with respect to costs within 30 days.

[3] The appellant, Ford, appeals from the decisions of Professor Constance Backhouse sitting as an Ontario Human Rights Board of Inquiry appointed to inquire into two complaints of discrimination filed by the complainant, Naraine. The first complaint is dated May 24, 1985, and alleged that, from 1976 to 1985, certain named individuals and Ford had discriminated against the complainant, Naraine, on the basis of his race, ethnic origin and colour in training, job assignment and discipline and that he was subject to harassment. The complaint invoked ss. 4(1) and (2), 8 and 10 of the Human Rights Code, 1981. The second complaint is dated October 24, 1995, and alleged that Naraine's termination from employment on August 10, 1985, was discriminatory. It invoked ss. 4(1), 7 and 8.

[4] In a series of decisions rendered in 1996 and 1997, the Board upheld the complaints and awarded Naraine relief against Ford that included reinstatement, damages and costs.

[5] Submissions were made to us by both counsel with respect to the standard of review that ought to be applied on this appeal. Counsel for Ford submitted that both the wording of the statutory right of appeal contained in s. 42(3) of the Code which confers a right of appeal "on questions of law or fact or both" and which provides expressly that this court may substitute its opinion for that of the Board and judicial authority have conferred a very broad power on this court to intervene. It was his submission that only the lowest level of deference is to be accorded to the decisions of the Board. Counsel for the Commission, on the other hand, submitted that the decisions of the Board ought to be given curial deference and that a narrower scope of review ought to be applied.

[6] In the circumstances of this case, it is not necessary for me to address those submissions in detail or to determine whether there is a substantive difference in the various standards said to be supported by the authorities cited. I am persuaded that, judged on the basis of any of the tests proposed, the decisions of the Board, both of law and fact, were correct and should be upheld.

[7] I will deal in turn with the principal grounds of appeal which were argued before us.

[8] Should the Board have dismissed the complaints because of delay?

[9] In its main decision of July 25, 1996, the Board addressed the issue of delay at paragraph 7 and following. It reviewed the various causes of the delay which included institutional delay by the Commission and the illness of the chairman of a prior Board which lead to his premature resignation and replacement by the present Board. In dealing with the delay of almost eight years from the fall of 1985 to the winter of 1993 attributable to the Commission, the Board described it as "truly remarkable". I would not hesitate to go further and describe it as shameful and scandalous. After hearing all of the evidence presented to it, the Board dealt with delay by applying the test enunciated by the Manitoba Court of Appeal in Nisbett v. Human Rights Commission (Man.) (1993), 89 Man.R.(2d) 101; 41 W.A.C. 101;, 101 D.L.R.(4th) 744 (C.A.), with which I agree. That test is simply whether on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing. The Board dismissed two of the specific complaints made by Naraine holding that Ford had demonstrated sufficient prejudice by reason of the delay to warrant the dismissal of those complaints.

[10] However, with respect to the remaining complaints, the Board held that there still remained sufficient reliable evidence available to enable it to adjudicate fairly.

[11] The Board heard all of the evidence before it decided this issue and it was in an excellent position to determine whether it could proceed without prejudice to Ford. I am satisfied that its decision on this issue is supported by the evidence before it and that it is a decision for which the Board ought to be given the deference of this court.

[12] Moreover, Naraine himself was not responsible in any way for the delay caused by the Commission to which he looked to invoke the statutory process and the decision of the Board to adjudicate on all but two of his complaints reflected a resolution of the issue of delay that was fair to both him and to Ford.

[13] Despite the contrary holding of the British Columbia Court of Appeal in Blencoe v. Human Rights Commission (B.C.) (1998), 31 C.H.R.R.D. 13, I also agree with the holding in Nisbett that cases dealing with s. 7 of the Charter of Rights and Freedoms have no application to proceedings of a nonpenal nature under human rights legislation.

[14] I would not interfere with the Board's decisions on this ground.

[15] Did the Board err in refusing to apply the principles of res judicata and issue estoppel to the earlier finding of fact by an arbitrator that Naraine had assaulted another employee, one Mena?

[16] In its preliminary decision of February 13, 1995, the Board addressed the issue of whether it should be bound by the earlier finding of an arbitrator that Ford was justified in terminating the employment of Naraine because he had assaulted another employee and concluded that it was not. Counsel for Ford acknowledged board of inquiry jurisprudence on issue estoppel contrary to the position that he was taking but argued that the Board should still consider itself bound by the arbitrator's decision because of the judgment of the Ontario Court of Appeal in Rasanen v. Rosemount Instruments Ltd. (1994), 68 O.A.C. 284; 17 O.R.(3d) 267 (C.A.). The Board, however, held that that decision was "not sufficient to justify departing from the long line of jurisprudence …" "that has established that there is no identity of issue between labour arbitration and human rights matters, even where the proceedings arise out of the same factual circumstances, and even when the arbitration purports to consider matters of human rights and discrimination".

[17] The Board further concluded that "mutuality of parties" in the two proceedings upon which the judgment in Rasanen rested was not present in this case because the Commission was not involved in any way in the arbitration. As well, it concluded that it was not clear that there was the "mutuality of interest" between the Commission and Narine as was present between the parties in Rasanen and relied upon in the judgment of Abella, J.A.

[18] And finally, the Board referred to the view expressed by the arbitrator that evidence of discrimination by Ford was not relevant to the case before him which involved a fellow member of the same bargaining unit.

[19] I agree with the Board's conclusion regarding res judicata and issue estoppel. Its fresh examination of the circumstances leading to the termination of Naraine's employment, including the alleged assault on Mena, was essential to the function that it was engaged in and was not an abuse of process. I would not interfere with the Board's decisions on this ground.

[20] Did the Board err in excluding evidence of Naraine 's loss of temper after the termination of his employment by Ford?

[21] At paragraph 67 of its main decision, the Board dealt with evidence that Ford had sought to tender regarding Naraine's temper. That evidence dealt with an event leading to the termination of his employment at General Motors in 1989 and with another event that led to a criminal conviction seven years after he left his employment at Ford.

[22] After hearing evidence regarding these events, the Board concluded "that neither is probative of the issues before me. Both occurred years after the matters giving rise to this inquiry".

[23] In my view, the Board was entitled to exclude this evidence on the basis of irrelevance if it had decided to do so. However, as I read the Board's decision, it did not exclude the evidence. Rather, it considered it and decided not to give any weight to it as it was entitled to do.

[24] I would not interfere with the Board's decisions on this ground.

[25] Did the Board err in finding that there was a causal connection between the poisoned working environment at Ford and the termination of Naraine's employment?

[26] At paragraph 99 of its main decision, the Board made this finding after an extensive review and analysis of the evidence regarding Naraine's employment at Ford.

[27] Earlier, at paragraph 96, the Board stated that "To an outside observer, Mr. Naraine's outbursts do not always seem to be clearly and directly linked to specific racist acts or individuals. However, within this highly racist working environment, Mr Naraine had no way of separating out what was racist from what was not. He became suspicious of the motivation of most of the workers in the plant, whatever their intent or perspectives might have been in fact. Furthermore, his suspicions appear to be reasonable, given the working conditions under which he was labouring. It is my view that all of the outbursts were provoked by the discriminatory environment that was taking its toll on Mr Naraine's ability to function at work".

[28] Although it is true that Naraine did not directly attribute his altercation with Mena to the "discriminatory environment", in my view the Board was entitled to draw that inference from the totality of the evidence despite the fact that the expert sociologist who gave evidence, Dr. Henry, did not explicitly support this finding. It was not necessary that there be any explicit support for this finding. At paragraph 90, the Board found that "Dr. Henry provided a useful framework for evaluating Mr Naraine's temperament … ". Its finding on this issue was based on an application of reason and common sense to the totality of evidence and the drawing of appropriate inferences. There was considerable evidence capable of supporting the inference made by the Board.

[29] I would not interfere with the Board's decisions on this ground.

[30] Did the Board err in imposing employer liability on Ford for the statutory breaches proven?

[31] In paragraphs 54 to 58 of its main decision, the Board followed the authority of a prior human rights board which held that an employer would be directly liable for breaches of s. 4(1) and (2) (now s. 5(1) and (2)) without reliance on the deemed liability provision contained in s. 44 (now s. 45) of the Code "Where the individual employer himself takes no direct action of discrimination, but authorizes, condones, adopts or ratifies an employee's discrimination …".

[32] The Board then went on to say that "the company (Ford) should have taken meaningful steps to investigate the sources of the problem. Ford should not have sat back and waited for individual, isolated complaints. The company should have undertaken systemic efforts to develop and advocate company policies against racist language, to root out the offenders and to implement serious and effective measures of deterrence. Its virtual indifference to the racial slurs and graffiti renders the corporate respondent liable for the violations of s. 4(2)".

[33] The Board then went on to rely on the "organic theory of corporate responsibility" as an alternate basis for imposing liability on Ford.

[34] In my view the Board correctly interpreted the statutory provisions and there was ample evidence to support the Board's findings.

[35] I would not interfere with the Board's decision on this ground.

[36] Taken in its entirety, the record of the proceedings before the Board reflect, in my view, a meticulous and painstaking effort on its part to afford the parties a fair and complete hearing of the issues raised and to render decisions that were supported by the evidence and correct in law.

Appeal dismissed.