Couchie v Ontario (Ministry of Munipical Affairs and Housing) [2011] OHRTD 748

What happens when the employer treats two instructors differently based on the same negative evaluation?

Couchie v Ontario (Ministry of Municipal Affairs and Housing) [2011] OHRTD 748.

What happens when you treat two instructors differently based on the same negative evaluation?

Facts:

In 2008, the Ministry of Municipal Affairs and Housing contracted the Consulting Matrix Inc. to provide Aboriginal relations training (based on a training session provided for another Ministry) for its staff in Northern Ontario. The theme of the training included “the Aboriginal peoples, culture and history in Ontario, an understanding of treaty rights, claims and assertions and Aboriginal relations; and an introduction to engagement with Aboriginal peoples” (19).  The Matrix provided the Ministry with two instructors: an Aboriginal woman (to give an Aboriginal perspective) and a non-Aboriginal male (to give the crown perspective).  There was no contractual relationship between the Matrix’s instructors and the Ministry.

After the first training session, the regional director of the northwestern services office of the MMAH (who had moderated a training session with the applicant in 2007) received negative oral feedback from three staff members about both presenters. The director called the consulting firm to voice his concerns about the two instructors and to request the removal of the Aboriginal instructor. Upon the request of Consulting Matrix, the decision was delayed until the parties had the opportunity to assess the written evaluations. The latter assessed the overall training session given by both presenters, and was very poor; only 33.33% of the attendees found the training to be “very good” (whereas the government training standard was 85%).  There were negative comments about the attitudes, knowledge and presentation styles of both the Aboriginal and the non-Aboriginal trainers; however there were more negative comments about the Aboriginal trainer. Some of those negative comments about the Aboriginal presenter included assertions that she was “being blitzed” “spacey”, “disconnected” and involved with “drug abuse”.  Others commented on her defensiveness/confrontational attitude at the end of the training session when she reacted to an offensive comment made by the other speaker about the duty to engage in meaningful consultation with the Aboriginal community (he spoke of the importance of “covering [one’s] ass” by, at minimum, making a phone call.

The Ministry required Matrix to coach the non-Aboriginal instructor and to replace the Aboriginal instructor.  Matrix complied but was unhappy with the Ministry’s decision. It would have chosen to coach both instructors. The Aboriginal instructor was replaced by another Aboriginal instructor, who was very well received by the staff.  The non-Aboriginal instructor was coached, but continued to receive poor evaluations for the remaining training sessions.

Issue

• Is an inference of discrimination more probable than not based on all of the evidence?
• Yes

Decision

Reasons

-          “Upon reviewing all of the evidence before me, I find that it is more probable than not that the applicant’s race was a factor at play in the Ministry’s differential response between her and A.B. I make this finding for the following reasons:

1. Both trainers had performance problems at the training and yet they were treated differently. On its face, one of the difference between the trainers is their race;
2. The distinction made by the Ministry to justify the differential treatment is illusory. There is no meaningful difference between a presentation that is poor because it is delivered in a monotone way and a presentation that is poor because the presenter is “spacey”. Both traits could be perceived as disconnectedness. The particular criticism made about the applicant’s presentation style does not take into [consideration] cultural differences that may exist in the communication styles of the two presenters;
3. The applicant was criticized for being opinionated or attitudinal and yet she was retained as an Aboriginal person to provide training from an Aboriginal perspective. One might expect an Aboriginal person to have opinions about the subject-matter of this particular training;
4. A racial stereotype was used by Ministry staff to describe the applicant’s demeanor. It was unclear to me how a link was made between the applicant being disconnected when presenting the slide material and allegations of drug abuse
5. The applicant was subject to greater scrutiny and a more punitive response than A.B. who continued to perform poorly throughout the training. A.B. was seemingly immune from consequences for his performance;
6. The applicant was blamed for the low overall rating of the training even though it applied to both presenters and the training as a whole. The negative comments on the individual assessment were also predominately attributed to the applicant even where she was not identified;
7. The applicant may have had bona fide reason for being defensive at the end of the training in light of the comment made by A.B, and yet she was given no opportunity to explain her performance prior to the decision to direct the termination of her contract.

 

 Order

The Tribunal ordered the Ministry to pay the applicant $20,000 in damages