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Human Rights Office

Lalwani v. ClaimsPro Inc., 2016 AHRC 2 (CanLII)

Summary:

Mr. Kishor Lalwani was employed by ClaimsPro Inc. as an adjuster in its Fort McMurray office from September 2008 till his termination on March 16, 2010. In this case Mr. Lalwani, alleges that he was subjected to discrimination in the workplace by his supervisor, Mr. Dalton Purdy, on the basis of race, religious beliefs, colour, ancestry and place of origin, contrary to section 7 of the Alberta Human Rights Act. In addition, Mr. Lalwani alleges that he was ultimately terminated in a discriminatory manner on the basis of race, religious beliefs, colour, ancestry and place of origin, contrary to section 7 of the Alberta Human Rights Act.  In this case Mr. Lalwani recounted a number of incidents that contributed to what he considered to be a poisoned work environment (see para 21 a-k). In this case it was decided that Mr. Lalwani’s testimony was credible and consistent. It was further decided that Mr. Lalwani had made his claims of discrimination known to Mr. Murphy, the District Manager for ClaimsPro and that these claims were not investigated with any diligence. It was found that the negative comments and treatment by Mr. Purdy towards Mr. Lalwani because of his race, religious beliefs, colour, ancestry and place of origin created a poisoned work environment. In relation to the second issue of termination, it was ultimately determined that Mr. Lalwani’s employment was terminated for reasons unrelated to Mr. Purdy’s treatment of the complainant.

Question(s) to be Determined:

1.    Has the complainant met his onus to establish, on a balance of probabilities, that the respondent discriminated against him with respect to a term or condition of employment, in that Mr. Lalwani’ s work environment was poisoned, either in whole or in part because of Mr. Lalwani’s race, religious beliefs, colour, ancestry, or place of origin?

2.    Has the complainant met his onus to establish, on a balance of probabilities, that the termination of his employment was, either in whole or in part, because of the complainant’s race, religious beliefs, colour, ancestry, or place of origin?

Findings:

1.    Has the complainant met his onus to establish, on a balance of probabilities, that the respondent discriminated against him with respect to a term or condition of employment, in that Mr. Lalwani’ s work environment was poisoned, either in whole or in part because of Mr. Lalwani’s race, religious beliefs, colour, ancestry, or place of origin?

YES

2.    Has the complainant met his onus to establish, on a balance of probabilities, that the termination of his employment was, either in whole or in part, because of the complainant’s race, religious beliefs, colour, ancestry, or place of origin?

NO

Reasoning:

In this case, the rationale set out in Peel, supra guided the tribunal chair in making their findings:

1)    the prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

2)    there is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

3)    the prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

4)    there need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

5) racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

1.    In this case it was determined that the respondent discriminated against Mr. Lalwani on the basis of race, religious beliefs, colour, ancestry, and place of origin, therefore creating a poisoned work environment.

“The series of negative comments and treatment by Mr. Purdy towards Mr. Lalwani because of his race, religious beliefs, colour, ancestry and place of origin created a poisoned work environment which Mr. Lalwani was forced to endure as a term or condition of employment. That Mr. Purdy was Mr. Lalwani’s superior in the workplace, and the respondent knew about the allegations regarding discrimination yet took no effective action, further supports my view that a poisoned work environment existed contravening the Act” (para 133).

2.    In this case it was not found that Mr. Lalwani was terminated, either in whole or in part, because of the complainant’s race, religious beliefs, colour, ancestry, or place of origin. In making this finding it was stated that, “Mr. Lalwani’s position was that nobody except Mr. Purdy treated him in a discriminatory manner. The further evidence is that Mr. Lalwani distanced Mr. Watson (in a site visit), levied unfounded allegations of wrongdoing against Mr. Vey, and was generally unwilling to consider his own behaviour in such non-discriminatory interactions. Considering all of the evidence, quite distinct from Mr. Purdy’s treatment towards Mr. Lalwani, there was evidence that the respondent terminated Mr. Lalwani’s employment for reasons unrelated to Mr. Purdy’s treatment” (para 138).

The evidence considered in making this finding includes:

(a) Mr. Phillips authorized the hiring of Mr. Lalwani. I infer Mr. Phillips would have had full knowledge of many of Mr. Lalwani’s personal characteristics that fall within protected grounds. Mr. Phillips also authorized the termination of Mr. Lalwani;
(b) Mr. Purdy was not involved in any way in the termination decision;
(c) The testimony of Mr. Vey and Mr. Murphy regarding Mr. Lalwani’s defensive response to constructive feedback from them. This is particularly relevant given Mr. Lalwani’s testimony that neither Mr. Vey or Mr. Murphy behaved in a discriminatory fashion towards Mr. Lalwani;
(d) The evidence of other witnesses (not Mr. Purdy) that Mr. Lalwani did not accept constructive feedback but would become very defensive and blame others without taking responsibility for any part in conflicts;
(e) The decision to terminate Mr. Lalwani was taken primarily by Mr. Louis, who considered Mr. Lalwani the weakest adjuster in the office based on his file review. At the time of termination, Mr. Louis had been the District Manager for less than three months and had not attended in Fort McMurray;
(f) The testimony of Mr. Watson regarding his attendance at a site visit with Mr. Lalwani where he was made to feel bad by Mr. Lalwani for speaking during the visit such that he did not attend a site visit with Mr. Lalwani again;
(g) The significance the respondent attributed to the fact that Mr. Lalwani made allegations (in the six-page complaint around March 3, 2010) against Mr. Vey of impropriety; and
(h) The Branch Review conducted by Mr. Harrity noting Mr. Lalwani’s lack of proactivity on files (para 138).

Remedy:

In this case, Mr. Lalwani was subjected to a poisoned work environment that the respondent allowed to continue. The impact on Mr. Lalwani was significant both while he remained employed and after his employment was terminated. While still employed, he took a stress leave due to the treatment by Mr. Purdy. Mr. Lalwani testified that the experience with ClaimsPro has ruined his life: he was suicidal following the termination of his employment and has suffered from depression.

In light of this finding and impact, Mr. Lalwani was awarded $25,000 for injury to dignity and self-respect.