Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 22: Race and Indigeneity in Recent Case Law

This meeting focused on cases related to discrimination in the workplace. In addition, this meeting showcased human rights cases related to race and indigeneity. Our guest Speaker was Janice Hill, Director of Indigenous Initiatives.

Recent Human Rights Cases and Lessons for the Post-Secondary Environment

Sandhu v. Regional Municipality of Peel Police Services Board, 2017 HRTO 445 (CanLII)

Full Case Summary

Summary

In this case, the applicant, Mr. Sandhu alleges discrimination and reprisal against the Peel Police Services Board. Mr. Sandhu self-identifies as a South Asian Punjabi Sikh. The applicant speaks English, Punjabi, Urdu and Hindi. Mr. Sandhu was hired by Peel Police Services in 1989. His ability to speak so many different languages and understanding of the South Asian community was perceived as an asset to the police force. During his time with the police force, Mr. Sandhu worked in the South Asian unit of the Intelligence Bureau and was promoted to the rank of Detective. As a Detective Sergeant he worked in Diversity Relations from 2009-2012. During his time in the South Asian unit of the Intelligence Bureau and his time in Diversity Relations, Mr. Sandhu was highly regarded for his police work. In addition to these assignments, Mr. Sandhu worked at the Airport Division for eight months. In February 2013, the applicant applied for a promotion to the rank of Inspector, but his supervisors did not recommend him. In this case the adjudicator concluded that the applicant was not recommended for this position because his experience in Diversity Relations and in the South Asian Intelligence unit was discounted. In addition, it was found that Mr. Sandhu’s cultural knowledge and languages were the reason he was placed into these positions to begin with. It was stated that not only was he placed into these positions because of race, he also stated and was asked to stay longer in these positions because of his racial identity. In this case it was stated that work in the South Asian Intelligence unit and Diversity Relations unit was not considered “real police work” and therefore because of this judgment, Mr. Sandhu was discriminated against when applying for a promotion. In addition, it was stated that when assessing Mr. Sandhu for this promotion, his supervisors only evaluated his work with the Airport Division. This was deemed to be the only appropriate/relevant experience, despite Mr. Sandhu’s years of experience working in other units of the Peel Police force. It is important to note that in these other positions, Mr. Sandhu occupied supervisory roles. Ultimately it was concluded that Mr. Sandhu’s race and place of origin were factors in his failure to be recommended for promotion and that he was discriminated again contrary to s. 5 of the Code.

Questions to be Determined:

  1. Was the applicant, Mr. Sandhu, the subject of discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?
     
  2. Was the applicant subject to reprisal in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?

Findings:

  1. Was the applicant, Mr. Sandhu, the subject of discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?
    YES

  2. Was the applicant subject to reprisal in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?
    NO

Reasoning:

  1. In determining the Mr. Sandhu had been subject to discrimination in employment on   the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code, the adjudicator considered all other reasons why Mr. Sandhu may have not received the promotion. The rationale was explored point by point in the ruling. In particular, the adjudicator ruled out performance and lack of supervisory experience as reasons why Mr. Sandhu was not promoted.
    First, performance was not an issue (para 113).
    Second, it was not because of lack of time in the Staff Sergeant / Detective Sergeant role. He had been at that rank for four years, not counting the six-month period of  indefinite acting at that rank immediately prior to his promotion (para 114).
    Third, it was not because of his lack of experience as an Acting Inspector; though  Mendyk noted that “some had more”, the applicant’s over 800 hours of acting time was, as acknowledged by Superintendent MacMullen, more than enough to be considered  for promotion. The fact that his acting time was all in Diversity, however, is relevant,  and in fact was specifically raised in the Command Team Assessment as a factor against  recommending the applicant for promotion (para 115).
    Fourth, his unique contributions to the Service were acknowledged by all concerned. There is little question that he was, and is, an excellent officer. His skills as an officer, combined with his cultural and linguistic skills, have without doubt assisted the Service   in enhancing its reputation within the community ( para 116).
    Fifth, the only specific reason given in his command team assessment was his lack of experience supervising front-line officers. As I have found above, the applicant did in fact have such experience from his time as a Staff Sergeant at the Airport Division.  Furthermore, given the evidence, in particular the experience of the other candidates   for the 2013 promotional process, and the experience at the rank of Staff/Detective Sergeant of those senior officers who testified before me, I do not find that the applicant’s experience supervising front-line officers was as important a factor in recommending an individual for promotion to inspector as has been suggested by the respondent (para 117).
    Given the above, my finding is that the applicant’s time in Diversity and South Asian Intelligence was a reason, and in fact the primary reason, he was not recommended for promotion to inspector (para 118).
    Given these findings, the adjudicator then turned their attention to the reasons why Mr. Sandhu was not awarded the promotion. As an overall comment it was decided that the  applicant was not awarded the position because of a devaluing of the units and therefor   work done in the units to which Mr. Sandhu was assigned.
    I have found above that the South Asian portfolios were generally devalued in the Service, and have accepted that at least one reason for this was the fact that they were associated with the South Asian population. Even though I find that MacMullen and Mendyk did not share such negative views, and despite the fact that they accepted that the applicant’s “instrumental” work had “continually reflected very well on the Peel Regional Police”, I have found that their decision was nonetheless based on the fact that they ultimately did not give much value to this work as a qualification for promotion  (para 136).
    In addition to my finding that work in the South Asian units was devalued in the service, I also accept the evidence that the applicant was assigned to these positions, in part, due to his race, particularly his ethnic origin and place of origin, because of his specific cultural knowledge and language skills. I further find that the length of time he spent in those portfolios was also due in part to these same factors (para 137).
     
  2. In this case the applicant also alleged reprisal after filing a grievance related to his not  being recommended for promotion. It was ultimately decided he was not subject to reprisal because there was no evidence provided with respect to who, within the Service had seen a copy of the grievance.
    There was, in fact, no evidence with respect to who, within the Service, ever saw an  actual copy of the grievance. As noted in the May 24, 2013 cover letter from the Peel Regional Police Association accompanying the grievance, it was filed directly with the Police Services Board, rather than the Chief as would be the normal practice, as the Chief was part of the promotional board (para 150).

Even if I were to accept that specific actions were intentionally taken against the  applicant because he had filed a grievance, if the individuals responsible were not aware the applicant had raised Code issues, there is no basis to make a finding of reprisal under the Code. There is no evidence before me on which I could find that Mendyk, MacMullen, Thorne or Asanin knew that the applicant had raised Code issues in the grievance (para 151).

Remedy:

In this case the remedy has yet to be decided. In September 2017 an interim decision was released regarding the amendment of personal remedies sought by the applicant. A case management conference call has been scheduled to discuss further evidence with       respect to remedy.

Fredricks v. The BTS Network Inc. and Rose Burt, 2015 HRTO 1597 (CanLII)

Full Case Summary

Summary:

In this case, the applicant, Farouk Fredricks worked for BTS Network Inc. from July 2013 till August 29, 2014 when his job was terminated. The applicant worked as a bus driver for BTS Network Inc. in Port Hope, ON.  The respondent, BTS Network Inc. alleges that Mr. Fredricks’ employment was terminated because he violated a non-competition Appendix in his employment contract. During the time of his employment, the applicant does not deny working for Coach Canada, a “rival” bus company on his weekends. The applicant alleges that his employer was aware of his employment with Coach Canada on the weekend. Contrary to the respondent’s position, the applicant alleges he was fired as a form of reprisal for a letter he had written to the company alleging racial discrimination in the workplace. It is important to note that the applicant was encouraged to document his concerns regarding racial discrimination by his supervisor, Rose Burt. In this case there were a number of issues that were decided. In considering whether the applicant’s complaint of racism played a part in the decision to fire Mr. Fredricks, the adjudicator considered the depth of investigation that BTS Network preformed when considering his complaint. In this case, the adjudicator concluded that Ms. Burt did not perform any real type of investigation (i.e. not speaking to the applicant at any point) and therefore disregarded his complaints. Ms. Burt, working on behalf of BTS Network ultimately decided that Mr. Fredricks’ complaints of racial discrimination was unfounded. In this case the adjudicator decided that contrary to the respondent’s position, that Mr. Fredricks was terminated for violating the non-competition appendix in his employment contract. It was asserted that Mr. Fredricks was ultimately terminated as a form of reprisal for writing a formal complaint against BTS alleging racial discrimination in the workplace. In this case, the adjudicator paid particular attention to the requirement of an employer to properly investigate a claim of discrimination in the workplace. There is no evidence that the employer did an investigation into the applicant’s concerns regarding racism in the workplace.

Questions to be Determined:

  1. Was the applicant’s employment terminated as a form of reprisal, contrary to Section 8 of the Code?

Findings:

  1. Was the applicant’s employment terminated as a form of reprisal, contrary to Section 8 of the Code?
    YES

Reasoning:

In this case it was determined that the applicant’s employment with BTS Network Inc. was terminated as a form of reprisal for the concerns he raised in relation to racism in the workplace. This is contrary to the respondent’s position that the applicant’s           termination was a result of his violation of the non-competition appendix in his employment contract.

This leads to the conclusion that the respondents were looking to fire the applicant in late August, 2014 and used the applicant’s part-time employment with Coach Canada as an excuse…. If the applicant’s work for Coach Canada was not the reason for the termination of his employment, what was the reason? I agree with the applicant that the only plausible explanation is the fact that he had made a formal complaint of racism against another of his co-workers. That is, he claimed his rights to a workplace free from discrimination and harassment on the basis of race (para 61 and 62).

It was further stated that,

The respondents’ attitude to the fact that the applicant made an allegation of discrimination is made manifest by the way they reacted to his complaint. Having asked him to put his concerns in writing, they appear to be deeply offended by what they read. Other than to get the alleged perpetrator’s point of view, they did nothing to investigate what might be the applicant’s concerns. There is no evidence that they made any effort to speak to him and the other worker before concluding that his concerns had no merit (para 64).

It would appear that the respondents took the view that differential treatment, in the absence of any overt expressions of racism, cannot amount to racism and that it was, therefore, improper for the applicant to have even raised the spectre of racism.Ultimately, the respondents may have been correct that the applicant’s concerns were either groundless, or based on some other, non-Code related hostility, but given the short shrift they gave them, their outrage seems misplaced (para 65).

Remedy:

In this case the adjudicator remained seized to deal with the issue of remedy but no future cases exist with a description of the remedy.

Josephs v. City of Toronto and Toronto Police Services Board, 2016 HRTO 885 (CanLII)

Summary:

This case centres around an incident that occurred on January 7, 2013 at the Toronto East Provincial Court. On this day, the applicant, Mr. Josephs, who self-identifies as Afro-Caribbean, attended the Court Services Office. While being helped by clerk at a service window the applicant was informed there was an error on his documentation and that he would need to take a number and wait to speak with a supervisor. Although his number had not been called Mr. Josephs approached another window to speak to a supervisor. At this point, V.F. another member of the public that was waiting to be served began yelling about waiting ones turn and called Mr. Josephs a “Monkey Boy”. V.F. also taunted Mr. Josephs to go outside and said he would be waiting for him in the parking lot.  During this incident other members of the public were present and reported V.F.’s behaviour to one of the clerks, Juan Sanagustin. Mr. Sanagustin, advised the witness that if the altercation escalated into something physical he would call security. Mr. Sanagustin indicated that they usually let people resolve their own verbal altercations. This witness reported his conversation to the applicant. Upon receiving this information, Mr. Josephs approached another clerk window and asked for assistance, regarding the incident with V.F. Shortly after this request was made Court Office (CTO) McArthur arrived. CTO McArthur spoke to both V.F. and Mr. Josephs. The applicant felt like he was being interrogated by CTO McArthur and objected to the way he was treated. The next day, the applicant emailed a complaint to the manager of the counter staff, Ms. Edwards. Ms. Edwards investigated the applicant’s complaints and responded to the applicant in a timely manner. In this case it was determined that the City did have an obligation to investigate the applicant’s complaint and that they did so in an effective and efficient manner. It was also determined that CTO McArthurn did not treat the applicant in an adverse manner due to race. It was however decided that Mr Sanagustin’s comments relating to only responding to the incident if it turned violent were inappropriate and amounted to discrimination.

Questions to be Determined:

  1. Did the City of Toronto discriminate against the applicant, failing to respond to a racial slur made against him by another member of the public?
  2. Did Court Officer, McArthur treat the applicant in an adverse manner due to race?
  3. Did the City have a duty to investigate the applicant’s complaint in order to ensure a discrimination-free service environment consistent with the Human Rights Code?

Findings:

  1. Did the City of Toronto discriminate against the applicant, failing to respond to a racial slur made against him by another member of the public?
    YES
     
  2. Did Court Officer, McArthur treat the applicant in an adverse manner due to race?
    NO
     
  3. Did the City have a duty to investigate the applicant’s complaint in order to ensure a discrimination-free service environment consistent with the Human Rights Code?
    YES

Reasoning:

  1. In this case it was determined that the City discriminated against the applicant by failing to respond to a racial slur uttered by V.F., another member of the public.

    Although I have found that Mr. Elannan responded promptly and reasonably to the incident involving the applicant and V.F., including the racial slur, I have also found that when N.P. told Mr. Sanagustin there was a dispute and a racial slur had been used, he responded to the effect that if it escalated he would call security. I find that Mr.Sanagustin’s response in that regard was not reasonable and effectual, and wasinadequate in terms of what is required under the Code in such circumstances. I have also found, as set out above, that it is more likely than not that the applicant understood City staff had been told about the racial slur by N.P., and City staff were not going to do anything in response. Understandably, this would have been upsetting for the applicant and could very well have contributed to his perception of how the incident was handled from that moment forward. I find that in not responding appropriately to N.P. advising that a racial slur had been used, and in the applicant coming to understand that City staff had been told about the racial slur and were not going to do anything in response, the applicant was subjected to discrimination, contrary to the Code, by the City (para 86).
     

  2. Although the applicant felt like he had been adversely treated by CTO McArthur, it was determined that he was not subjected to adverse treatment based on race.
    Having carefully considered all of the evidence, I also find that CTO McArthur’s response to the situation was reasonable in the circumstances, and does not give rise to any violation of the Code. Again, it is not necessary that CTO McArthur’s response to the     situation be perfect or ideal. Rather, in my view, the Code requires that CTO McArthur’s response be reasonable in the context of what CTO McArthur reasonably understood to be a dispute between two customers in a services environment, wherein he came to     understand that one customer used a racial slur against another (para 109).

    It appears from the evidence that CTO McArthur understood his role was to ensure that there was no continuation of the racist behaviour. He took steps in that regard in separating V.F. and the applicant, and having already cautioned V.F. concerning his     interactions with the applicant. He also then obtained V.F.’s contact information and provided it to the applicant, based on the understanding that the applicant wished to pursue “a human rights complaint” against V.F. In the particular circumstances of this     case, I find that CTO McArthur’s response was reasonable (para 113).
     

  3. It was decided that yes, the City did have a duty to investigate the applicant’s complaint and that their investigation was reasonable. Tribunal jurisprudence (Laskowska v. Marineland of Canada Inc.) was used to establish the duty to investigate.
    In the present case, while the racial slur was made by another customer, I see no reason why the respondent City would not have a duty to investigate the applicant’s complaint in order to ensure a discrimination-free service environment, consistent with the requirements of the Code. In my view, it is appropriate that the above criteria be applied reasonably and flexibly, having regard to the particular circumstances of this case. In particular, I note that Ms. Edwards testified that she was concerned about what her staff did in relation to being told about a racial comment. She agreed in her evidence that the focus of her investigation following the applicant’s complaint was what staff should have done, or did not do. While the focus of the applicant’s complaint to Ms. Edwards appears have been CTO McArthur’s handling of the situation, I find that it was     appropriate that the focus of Ms. Edwards’ investigation was on how her staff responded to the situation, in the context of a racial slur being made by one customer against another. In the present case, I agree with the respondents that they are not responsible for V.F.’s racial outburst. The respondents, however, are responsible for how their employees respond to such incidents (para 128).

Remedy:

The Tribunal orders as follows:

  1. Within 30 days of the date of this Order, the respondent City shall pay the applicant $1,500.00 for injury to dignity, feelings and self-respect;
     
  2. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act; and,
     
  3. Within 90 days of the date of this Order, the respondent City shall conduct human rights training for its CSO staff at the Toronto East Provincial Court that specifically includes and addresses how to respond to complaints of discrimination and/or     harassment between customers.

Josephs v. City of Toronto, 2016 HRTO 1547 (CanLII)
(Reconsideration Decision)

In this reconsideration decision it was stated, that the training order included as part of the remedy in the original decision was not valid.

The respondent argues that there is evidence potentially determinative of this issue that could not reasonably have been tendered at the hearing because the respondent was not put on notice that this remedy was in play. The applicant opposes this aspect of the Request, arguing that the issue of training was a live one during the hearing and the respondent had every opportunity to lead such evidence as it considered necessary to respond to the issue as it arose during the hearing (para 25).

It was determined that,

while the Tribunal may of its own motion order any remedy that it considers appropriate, it seems evident that the Tribunal must put the parties on notice that such an order is being contemplated. Whether framed in the manner that the respondent has or as a failure of notice, the ordering of a remedy without notice to the affected party is one that cannot stand in my view and accordingly that part of the Decision is set aside (para 27).

Orders:

a. The Request as it relates to the finding that the applicant experienced discrimination is denied.

b. The Request as it relates to the Order requiring training is granted. The respondent will deliver and file any further materials in respect of this issue it intends to rely upon within 21 days of the date of this Reconsideration Decision. The applicant may deliver and file any responding submissions within 14 days of receiving the respondent’s materials.

Nwagbo v. Li, 2017 HRTO 458 (CanLII)

Full Case Summary

Summary:

In this case the applicant, Mr. Nwagbo worked as a Client Service Representative (CSR) at Top Choice Tax Accounting Inc. (Top Choice). The respondent, Ms. Li was the owner of Top Choice. Mr. Nwagbo worked as CSR from January 25, 2016 till April 17, 2016, when his employment was terminated by the respondent. It is important to note that the applicant in this case self-identifies as African-Canadian. Under the job duties of a CSR were the following responsibilities; conducting recruitment or marketing activities with prospective clients. The central issue in this case stems from an email Ms. Li sent to another employee, Mr. Borrelli, regarding the applicant’s work performance. A central part of Mr. Nwagbo’s work was making cold-calls to potential clients. In the email dated March 4, 2016 Ms Li wrote,

            Dear Pete [Mr. Borrelli],

            Thank you for sharing your thoughts. I had conversation with Steve [the applicant] about his duties to prospect. He said he hates cold calls. For the those reasons:

            1. For phone cold call: he can not be on the phone for long as his ears hurt. He told me that the first a couple of days of video wearing headsets still  ringing buzz sounds in his head till now.

            2. (This is what I assumed) for in-person cold call, he is a big and tall African man. That may be an issue to many people for the stereotype.

            So far, Steve has not making 2-3 appointments per week he should be getting on his own. […]

This email and other emails exchanged between Ms. Li and Mr. Borelli were later forwarded on to Mr. Nwagbo. In this case the applicant testified that he took offence to the email and that the email impacted him psychologically. He did not however, communicate these feelings to Ms. Li. Following this email, Ms. Li testified that Mr. Nwagbo’s performance declined and therefore she was forced to terminate his employment during the probationary period. After being terminated, Mr. Nwagbo sent an email to the respondent outlining his concerns regarding the email and stating that he wanted $20,000 in compensation and that if he did not receive this amount he would file a case with the Human Rights Tribunal of Ontario. Ms. Li did not respond to this message from the applicant. In this case it was found that the respondent discriminated against the applicant with respect to employment because of race.

Questions to be Determined:

  1. Did the respondent, discriminate against the applicant with respect to employment  because of race?

Findings:

  1. Did the respondent, discriminate against the applicant with respect to employment  because of race?
    YES

Reasoning:

  1. In this case the adjudicator, discussed the stereotypical assumptions being made by the respondent Ms. Li.

    The applicant never told the respondent that he did not like making in-person cold     calls. The respondent explained that she assumed he did not make them because he had been “racially profiled” in the past and felt uncomfortable engaging in such activities. I find that the respondent’s perception of the applicant’s work performance, as described in the March 4, 2016 email, is based in part on stereotypical assumptions about the applicant because of his race. Based on those stereotypical assumptions, the     respondent believed that the applicant felt uncomfortable engaging in in-person cold calling and clients would react negatively to the applicant (para 44).

    In addition, the adjudicator also considered the fact that Ms. Li shared these stereotypical ideas with a 3rd party, Mr. Borrelli.

    Not only was the respondent’s email offensive and based on racial stereotypes and assumptions, she shared her views with Mr. Borrelli, a third party, and with the applicant. Instead of assisting the applicant by providing him with advice and support     to improve his prospecting activities, she forwarded the offensive email to him sharing    with him her racially based stereotypical assumptions that he struggled in his position because of his race. The incident is further aggravated by the views having     been made in writing in an email exchange that other employees had access to (para 46).

    Ultimately it was determined that race was a factor in the applicant’s termination.

    The respondent’s explanation for sending the email was to try and assist the applicant by finding a reason for his weak performance. The inference I draw from this, as well as all of the surrounding circumstances, is that the respondent’s perception of the applicant’s work performance was, in part, tainted by his race. I  understand that the applicant’s performance was weak from the beginning and the respondent was forced to eliminate the marketing and client recruitment activities in part because of the applicant’s performance. However, the respondent inappropriately believed that the applicant could not perform the essential elements of his position because of his race and ultimately affected his performance. Since he was terminated because of his poor performance, I find that race was a factor in his termination (para 47).

Remedy: 

Award for injury to dignity, feelings and self-respect - $2,500.

(In this case the amount was determined based on the fact that the racial discrimination only occurred once, but also taking into the account that the racial discrimination had been shared with another employee).