Human Rights Office

Human Rights Office
Human Rights Office

Mohammed Ashfaq Islam, Arif Hossain and Abdul Malik v. Big Inc. cob Le Papillon on the Park and Danielle Bigue 2013 HRTO 2009 (CanLII)

Summary:

Mr. Islam, Mr. Hossain and Mr. Malik all immigrated to Canada from Bangladesh. All three men worked for Mr. Paul Bigue, sole shareholder of Big Inc. and owner of Le Papillion on the Park. Danielle Bigue, the personal respondent named in this case, was the daily manager in the restaurant. Mr. Malik worked as the head chef, Mr. Hossain was the sous chef, and Mr. Islam was a cook. All three men were life-long adherents to Islam. The allegations in this case stem from a number of incidents which occurred at the restaurant over the course of a number of months.  The incidents included the following:

  • 2 occasions when Mr. Malik was made to eat pork sandwiches and schnitzel contrary to his religious beliefs
  • 1 occasion when Mr. Islam was asked to eat pork tortière contrary to his religious beliefs
  • 1 occasion when Mr. Hossain was asked and felt compelled to taste soup during his fasting period for Ramadan
  • Kitchen rule to only speak English, not Bengali. When Bengali was used in the kitchen Ms. Bigue would mock the applicants saying something like “blah, blah, blah”
  • Multiple incidents when Ms. Bigue threatened to fire Mr. Islam, Mr. Hossain and Mr. Malik. Ms. Bigue would say she wanted hire “white staff” and “clean the shit from the kitchen”
  • Ms. Bigue denied Mr. Hossain’s request for time off during Eid (religious accommodation)
  • On two different occasions the applicants wrote letters to Mr. Bigue and Ms. Bigue alleging discrimination. On both of these occasions the complaints were ignored and not investigated.
  • The applicants were terminated from their employment

In relation to all of these incidents it was determined that the applicants’ testimony was more credible than that of the respondents. It was found that the respondents discriminated against the applicants on the basis of race, colour, ancestry, place of origin, ethnic origin and creed.

Question(s) to be Determined:

  1. Did the respondents discriminate against Mr. Islam and Mr. Malik on the basis of race, colour, ancestry, place of origin, ethnic origin and creed?
  2. Did the respondents discriminate against Mr. Hossain on the basis of race, colour, ancestry, ethnic origin and creed?

Findings:

  1. Did the respondents discriminate against Mr. Islam and Mr. Malik on the basis of race, colour, ancestry, place of origin, ethnic origin and creed?

  YES

Did the respondents discriminate against Mr. Hossain on the basis of race, colour, ancestry, ethnic origin and creed?

YES

Reasoning:

In this case the applicants and respondents had different versions of events. In the majority of cases, the respondents denied that the alleged discrimination occurred. It was determined that the version of events provided by the applicants was more credible than that provided by the respondents.

“I have accepted that all of the applicants suffered discrimination during their employment in the workplace on the basis of creed, colour, ancestry, place of origin and ethnic origin, and that this discriminatory behaviour included harassment and failure to respond to complaints of discrimination. In addition, Mr. Hossain’s request for time off for a religious occasion was denied without any consideration of accommodation. The evidence establishes and I accept that the respondents’ breaches of the Code made the workplace intolerable for each of the applicants” (para 276).

Remedies:

In this case the remedies awarded to Mr. Islam, Mr. Hossain and Mr. Malik totaled nearly $100,000.

The Tribunal makes the following order:

a) Within 30 days of this Decision, the respondents shall pay $18,632, less statutory deductions, to Abdul Malik to compensate for loss of income.

b) The respondents shall pay Abdul Malik pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (a), above, from March 28, 2011.

c) Within 30 days of this Decision, the respondents shall pay $37,000 to Abdul Malik to compensate for violation of his inherent right to be free from discrimination, for injury to his dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

d) The respondents shall pay Abdul Malik pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (c), above, from March 15, 2011.

e) Within 30 days of this Decision, the respondents shall pay $7,920, less statutory deductions, to Arif Hossain to compensate for loss of income.

f) The respondents shall pay Arif Hossain pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (e), above, from March 15, 2011.

g) Within 30 days of this Decision, the respondents shall pay $22,000 to Arif Hossain to compensate for violation of his inherent right to be free from discrimination, for injury to his dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

h) The respondents shall pay Arif Hossain pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (g), above, from August 15, 2010.

i) Within 30 days of this Decision, the respondents shall pay $1,040, less statutory deductions, to Mohammed Islam to compensate for loss of income.

j) The respondents shall pay Mohammed Islam pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (i), above, from February 7, 2011.

k) Within 30 days of this Decision, the respondents shall pay $12,000 to Mohammed Islam to compensate for violation of his inherent right to be free from discrimination, for injury to his dignity, feelings and self-respect, including the continuing stress caused by failure to investigate his complaints of discrimination.

l) The respondents shall pay Mohammed Islam pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (k), above, from August 15, 2010.

m) In the event that the respondents fail to make the payments described in paragraphs (a) through (l) above within 30 days of the date of this Decision, the respondents shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision.

n) Within 30 days of the date of this Decision, the corporate respondent shall post Human Rights Code cards, available from the Ontario Human Rights Commission, at the entranceway to its premises and in the kitchen. These Human Rights Code cards shall be posted in visually prominent places.

o) Within 60 days of the date of this Decision, the respondents shall complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at http://www.ohrc.on.ca/en/learning/human-rights-101) and confirm in writing to the applicants’ counsel at the Human Rights Legal Support Centre that they have completed this training and have posted the Human Rights Code cards as set out in paragraph (n) above.

p) Within 90 days of the date of this Decision, the corporate respondent shall create and post within the workplace a workplace policy setting out its responsibilities, under the Human Rights Code, as an employer. The corporate respondent shall confirm in writing to the applicants’ counsel at the Human Rights Legal Support Centre that it has created and posted the policy, and shall include with the written confirmation a copy of the policy.

**Following the decision by the Human Rights Tribunal, Big Inc. filed an application for judicial review (Big Inc. v. Islam, 2015 ONSC 2921). Tribunal decisions can be challenged via reconsideration or judicial review.  Big Inc.’s reasons for judicial review were as follows:

  1. The Tribunal made unreasonable findings of fact, particularly because it applied a more exacting level of scrutiny to the witnesses called by the applicants as compared to the level of scrutiny applied to the witnesses called by the respondents.
  2. The Tribunal erred in its treatment of s. 45.1 of the Code[1]. The applicants claimed that Mr. Malik had filed his human rights application and had filed a claim for employment insurance, as well as a claim for termination pay and severance pay pursuant to the Employment Standards Act. The applicants claimed that Mr. Malik’s complaint had been appropriately dealt with by the ESA officer and the application should have been dismissed.
  3. The Tribunal erred in not considering unsworn willsay statements that had been filed by the applicants.

In all three of these areas the Divisional Court ruled that the Tribunal had not erred. As part of the decision in this case the applicants (Big Inc.) were ordered to pay the respondents their costs for the application in the amount of $7,500.

 

[1] 45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.