Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 27: Accent/Language Discrimination

This meeting focused on cases related to accent and language discrimination.

Ontario Human Rights Commission: Language-related grounds of discrimination: ancestry, ethnic origin, place of origin, race.

Guest Speakers

Erin Clow, Education and Training Advisor, and Vanessa Yzaguirre, Equity Advisor at Queen’s University Human Rights and Equity Office.

Cases

PD v. JVI Canada

Summary

PD v. JVI Canada

The applicants immigrated to Canada from India and started working as assembly, packing and machine operators since 2000 for JVI Canada, a business located in Mississauga. PD and LG were the only employees at the time of their layoff who identified as Indian and Sikh, and their first language was Punjabi. They were supervised by Mr. Stairs.

They regularly spoke Punjabi to each other during their lunch break. On at least two occasions, the general manager made a comment to PD and LG along the lines of: "What, are you talking about me?" in front of their co-workers. According to the manager, their language was loud and intimidating, and she felt that it was rude for them to speak Punjabi since their co-workers could not understand them. The applicants claim that they were humiliated when Ms. Stairs made comments about their use of Punjabi during their lunch hour.

Ms. Stairs spoke to the applicants about using Punjabi in the lunchroom, alledging that other employees were "constantly" complaining to her about the applicants' use of Punjabi.

Additionally, PD and LG argue that they were subjected to more scrutiny than non-racialized employees and that they were isolated in the workplace. As an example of this, LG explained that every other employee received a birthday cake from the respondents on their birthday. For religious reasons, LG does not eat cake prepared with eggs or dairy products. Although the respondents initially provided him with a cake for his birthday, that practice ceased after he had worked there for three or four years. He testified that, as the only individual whose birthday was not celebrated, he felt bad and isolated.  

The applicants were laid off for the first time in 2004 and were called back to work several weeks later. In early 2009, in response to a very significant downturn in business, the corporate respondent reduced its workforce from nine to six employees and eliminated one of its two assembly lines. The applicants and a third employee, a 27-year old Caucasian woman, were laid off indefinitely on January 23, 2009.

The applicants argue that prohibited grounds were factors in the respondents' decision to lay them off. They suggest that this is the only reasonable conclusion in the circumstances, given that they not only had more seniority than all or many of their co-workers but also had a history of excellent work performance.

Questions to be determined and Findings

  1. Where the comments made about the use of Punjabi discriminatory in nature? (YES)

  2. Did JVI Canada terminate PD because of their race and ethnic origin? (YES)

  3. Did JVI Canada terminate LG because of their race and ethnic origin? (NO)

  4. Did the Respondent create a poisoned work environment for PD and LG? (NO)

Reasoning

  1. Regarding the allegations of receiving several complaints from other employees about the use of Punjabi during lunch hours, Ms. Stairs could not identify the employees whom she says were intimidated by the applicants. She could not recall when or how often these complaints were made. Ms. Stairs's evidence on this point raised some concerns about her overall credibility.

    Noting that language is not a protected ground in the Code, she nevertheless accepted that "it can be a proxy for or indicator of discrimination based on race, ethnicity or place of origin, especially given the fact that Punjabi was the complainants’ first language.

    [The] comments about the [complainants'] use of Punjabi constitute differential treatment based on race and ethnic origin. In the circumstances, suggesting to the [complainants] that they express themselves in English during their non-working hours imposes a burden on them that is not imposed on other employees who do not share the [complainants'] race and ethnic background. Similarly, even if the respondent's intention was not to prevent the [complainants] from speaking Punjabi, her ambiguous comments made the [complainants] feel uncomfortable and were embarrassing to them. I note that these comments were made publicly and repeatedly. ... [D]iscomfort with the use of a different language does not, in my view, justify urging or requiring the use of a more common language, particularly during non-working hours. (p. 67)

  2. The Tribunal accepted that the respondent experienced an economic slowdown and that the company had very minor performance concerns about PD that were previously addressed.

    On the evidence, I find that she had no real ongoing performance issues and, over the duration of her employment, she had a good work history. Given my conclusions below that (in the case of PD) the other factors considered by the respondents were a pretext, and given PD’s  long-term work history and the fact that she addressed the only significant performance issue brought to her attention, I cannot accept that performance issues formed a reasonable and non-discriminatory basis for her layoff. (p. 82)

  3. In the case of LG, the applicants argued that the respondents' perception of LG “argumentativeness” or “rudeness” was based on discriminatory attitudes or perceptions. However, the respondents demonstrated that ongoing performance issues constituted a non-discriminatory basis for the decision to select him rather than his co-workers for layoff.

    I do not dispute that prohibited grounds may subtly affect perceptions and may come into play in the way described by the applicants' counsel. However, on the balance of probabilities, I am not able to conclude that was the case in the circumstances. (p. 87)

  4. On the issue of subtle discrimination against both applicants, the Tribunal expressed:

    I accept that the applicants felt isolated in the workplace. A sense of isolation does not, however, automatically lead to a finding of discrimination. The issue I need to decide is whether the sense of isolation relates to a ground prohibited in the Code and whether it can, in some way, be attributed to the respondents. I have already discussed my serious concerns about Ms. Stairs' comments to the applicants about their use of Punjabi. I appreciate that this incident forms part of the workplace context, which has to be considered as a whole. However, in light of all of the evidence, I do not find that the workplace was poisoned such that all of the respondents' decisions or behaviour are suspect. While I have made specific findings of discrimination, I do not conclude that some broader form of subtle discrimination existed in the workplace. (p. 90)

Result

Tribunal ordered that each complainant be paid $3,000 in damages for loss of dignity with respect to the manager's comments regarding their use of Punjabi. Also, the Tribunal awarded PD $10,000 for loss of dignity stemming from the termination of her employment; and $18,500 for lost wages. In addition, PD was reinstated to her original position.

Woolrich v. Royal LePage Relocation Services

Summary

Woolrich v. Royal LePage Relocation Services

The applicant self-identified as a Francophone and a French Canadian. At the hearing, she testified that she speaks fluently both English and French, although she can not write French fluently. She grew up speaking French but now speaks English at home and speaks English better than French. To maintain her ability to speak French, she sought employment in positions where French was required.

In late May 2005, the applicant began employment with the respondent as a Consultant to provide relocation assistance to Government of Canada employees in its Government Services Division. The applicant was hired by Paula Roy, who was team leader until the end of August when Debbie Tucker assumed that position and became the applicant’s supervisor. The applicant testified that she was upset that the respondent replaced Ms. Roy with a unilingual team leader.

The applicant alleged that in the office setting, Ms. Roy told her that Francophones could speak French to one another but to speak English if someone else came into the room. The applicant asserted that half the team was Francophone, yet the internal meetings were conducted in English.

After Ms. Tucker became the team leader, the applicant alleged that at internal meetings, when the applicant spoke in French to another colleague, Ms. Tucker would give her a certain disapproving look. The applicant also claimed that Ms. Tucker often told her to speak English and that during a meeting in Ms. Tucker’s office, she demanded harshly that the applicant spoke English. The applicant said that in September, Ms. Tucker told her that all correspondence used internally should be in English. As a result of this and the earlier comments, the applicant felt that French was not to be used in the office and that she thus could not speak in her first language.

The applicant also alleged that she faced harassment from co-workers at the office due to her ethnic origin. She alleged that another consultant, Julia MacLeod, made personal attacks on her with comments about her body and that she gave the applicant looks and spoke in a tone that was bullying. Both the comments and the looks created a poisoned environment. Finally, every Friday during team meetings, the applicant claimed that Ms. MacLeod told “sexual and racist jokes.” Although she recalled that these were not about French Canadians, the applicant can not recall what the jokes were about.

The respondent terminated the applicant’s employment for cause by letter dated November 29, 2005.

Questions to be Determined and Findings

  1. Was the applicant discriminated against and harassed due to her ethnic origin? (NO)

  2. Did the respondent terminate the applicant’s employment on the basis of her ethnic origin or disability? (NO)

Reasoning

  1. The parties did not agree on whether or not the applicant was instructed not to speak French in the office and was harassed for doing so, whether or not she was harassed by co-workers for her French Canadian ethnic origin, and whether or not because of her ethnic origin she was given different and inadequate training for her job duties.

    At the office, it was understood who was Anglophone and that they were spoken to in English. And she agreed that she was able to participate if a meeting was held in English because she is bilingual. She also agreed at the hearing that at the office Ms. Roy often spoke to her Francophone colleagues in French.

    Additionally, Ms. Roy did not recall that Ms. Tucker had been rude to the applicant when, at the meeting referred to by the applicant, Ms. Tucker requested the applicant to speak English. Ms. Roy recalled that Ms. Tucker, who is not bilingual, asked politely that the conversation be in English so that she could participate. This was also Ms. Tucker’s recollection.

    I do not find that the request made to the applicant and others when in internal meetings to use English so that all could follow the conversation constituted a proxy for discrimination on any of the grounds alleged against the applicant. I have not found that the applicant was mocked on the occasions when she chose to speak French or that she was instructed that she could not speak French in the workplace. In fact when she asked that a certain document be provided to her in French that was forthcoming. (p. 35)

    Therefore, the applicant was not discriminated against on the basis of when she chose to speak French at the workplace or her opportunity to do so.

  2. With respect to whether or not the applicant was harassed by her co-workers for her French Canadian heritage, the Tribunal did not find evidence to support that conclusion.

    Although she may have had some conflicts with Ms. MacLeod and discomfort that others were trying to learn who had complained about the team meeting jokes, there is no evidence to support that a course of vexatious comment or conduct regarding her ethnic origin occurred to constitute harassment. (p. 47)

  3. The applicant alleged that her employment was terminated because she insisted on speaking French in the workplace and because she was French Canadian. Regarding this claim, the Tribunal found that the respondent did not interfere or object to the applicant speaking French in the office, asking only of all employees that, as a matter of courtesy, English be spoken when Anglophones were present in these meetings.

    Additionally, it was not disputed that the applicant did not perform well when evaluated in November 2005, nor that she did not complete some additional training that was offered. These facts led the Tribunal to conclude that the applicant was terminated for performance-related reasons.

Result

The Application was dismissed.

Liu v. Everlink Services, Inc.

Summary

Liu v. Everlink Services, Inc.

The applicant, Yongbin Liu, was born in China and immigrated to Canada in 2004. He became employed by the respondent as a Helpdesk Support Analyst parttime from June 1, 2009, to February 26, 2011. His hours were extended to full-time hours from February 27, 2011 to May 31, 2012.

The applicant was the respondent’s only Helpdesk Support Analyst at the time his employment was terminated. As a Helpdesk Support Analyst, his duties centred on resolving any information technology (“IT”) problems encountered by the respondent’s employees. In addition to the applicant’s IT position, the respondent employed approximately ten employees in its National Client Support Center (“NCSC”). These NCSC employees also provide IT support. However, unlike the applicant, NCSC employees provide IT support to the respondent’s customers rather than its employees.

The applicant received four performance reviews while employed with the respondent being graded as meeting objectives on all four of them. Also, the applicant received a merit increase and an incentive bonus in 2009 and 2010.

Liu's performance reviews consistently indicated that he was meeting objectives, and he received a merit increase and incentive bonus in 2009 and 2010. In his 2010 and 2011 performance reviews, Liu identified one of his development objectives as attempting to improve his verbal and written English through online courses and tests. Following his 2011 performance review, Liu's supervisor sent him a memorandum advising that he was performing well and attaching a development plan to assist him in reaching an expected level of proficiency in his role, including adherence to his stated objective of improving his verbal and written English language skills. However, the applicant’s manager for the second part of 2011, Bruce Rice, did not follow up on the development plan sent by Mr. Watkins. Mr. Rice rated the applicant as having met performance expectations in his performance appraisal for the full 2011 year.

The applicant began to report to Ray Boorman in early 2012. Liu alleged that since beginning in November 2009, Boorman had subjected him to harassing and bullying behaviour, including berating him in front of co-workers and unfairly blaming him for IT problems in the workplace. Liu also alleged that, for discriminatory reasons, Boorman denied him a long-distance travel package that would allow him to use his company mobile device and computer during a personal trip to China.

Mr. Boorman testified that Vice-President Paul Mighton had instructed him to “eliminate the applicant’s Helpdesk Support Analyst position” when he first took over the supervision of the applicant and the NCSC agents in February 2012. On February 23, 2012, Boorman sent an e-mail to the employer's human resources consultant concerning the termination of Liu's employment because of his English language difficulties, stating:

Courtney, when I took over Bruce’s group I also inherited Yongbin. Paul [Mighton] has indicated that he has had more than a few complaints over the past few months about Yongbin’s communication skill and English language abilities. Basically, I have been told to deal with Yongbin ASAP. As in let him go. Not the nicest of tasks I know, but can we discuss this situation sometime tomorrow. (p. 44)

Later that day, the human resources consultant responded by e-mail, stating: "Can you tell me where the complaints have been coming from? Because there is not anything documented and this is related to a protected status. The termination is complicated. I would prefer to review his file and prepare a thorough plan." (p. 45)

In a May 31, 2012 meeting, Boorman terminated Liu's employment, informing him that the helpdesk support analyst position was being eliminated and that, given Liu's qualifications, no other appropriate position existed with the employer. Liu remained unemployed for approximately one year following his dismissal.

Liu filed an application with the Ontario Human Rights Tribunal, alleging discrimination based on race, colour, place of origin, and ethnic origin, contrary to the Ontario Human Rights Code. He sought the equivalent of two years' lost wages and damages for injury to dignity, feelings, and self-respect.

Questions to be Determined and Findings

Was the applicant’s perceived English language communication difficulties a factor in his termination? (YES)

Was the applicant discriminated against on the basis of place of origin? (YES)

Reasoning

When Mr. Boorman emailed Ms. Kindrat, the Human Resources representative responded by e-mail on the same date, stating:

Hi Ray, I am travelling, back in the office on Tuesday. I recall discussing this with Bruce and he had indicated that he was working on some language courses. Can you tell me where the complaints have been coming from? Because there is not anything documented and this is related to a protected status. The termination is complicated. I would prefer to review his file and prepare a thorough plan. (p. 46)

Mr. Boorman testified that he had e-mailed Ms. Kindrat because Mr. Mighton had told him to eliminate the Helpdesk Support Analyst position. Mr. Boorman stated that he had suggested to Mr. Mighton that the applicant be placed in an NCSC position. According to Mr. Boorman, Mr. Mighton told him that the applicant’s English language skills were not good enough for an NCSC position. Mr. Boorman also testified that Mr. Mighton mentioned having received complaints from the respondent’s staff about the applicant’s language abilities. Mr. Boorman testified that Mr. Mighton had told him that they needed to push the applicant to improve his English language skills. According to Mr. Boorman, he e-mailed Ms. Kindrat on February 23, 2012 because he wanted to find out whether the human resources staff knew whether the applicant had followed up on his goals to improve his English speaking skills by taking an ESL course.

I find that Mr. Boorman’s testimony on this point is not credible as it is inconsistent with the content of the e-mail he sent to Ms. Kindrat in several respects. First, in the e-mail, Mr. Boorman stated clearly that Mr. Mighton had instructed him to terminate the applicant’s employment due to (unspecified) complaints that had allegedly been made about his communication and English language abilities. There is no mention at all in the e-mail about eliminating the Helpdesk Support Analyst position filled by the applicant. Second, Mr. Boorman made no mention whatsoever in the e-mail of wanting to determine whether the applicant had ever taken an ESL class. Instead, in the e-mail, Mr. Boorman appeared resigned to carrying out the task that Mr. Mighton had assigned him to do – that is, “let him [the applicant] go.” It is clear from the e-mail that Mr. Mighton had made the decision to terminate the applicant’s employment due to perceived problems with the applicant’s communication and English language skills and that he had instructed Mr. Boorman to carry it out. It was only after Ms. Kindrat raised concerns about the termination being “complicated” due to the connection to a protected ground, that the decision to terminate the applicant’s employment at the end of February was either put on hold or reconsidered. As noted in the e-mail, Ms. Kindrat advised that she wished to review the applicant’s file and prepare a thorough action plan with respect to the matter. (p. 48)

Mr. Boorman met with the applicant on March 16, 2012, and asked the applicant whether he had attended an ESL class. When the applicant said he had not, Mr. Boorman told him he needed to. Approximately three weeks later, Mr. Boorman followed up and suggested that the applicant take an ESL course offered by Seneca College, the cost of which would be covered by the respondent. The following day, the applicant confirmed with Mr. Boorman that he had registered for a Level 6 ESL course. The applicant began attending the course on May 12, 2012. The course was scheduled to run until August 12, 2013.

The respondent terminated the applicant’s employment on May 31, 2012. In the termination meeting, Mr. Boorman informed the applicant that his position was being eliminated and that the respondent had determined that there was no other position with the company that suited his qualifications.

The respondent could not provide direct evidence as to why they determined that the applicant’s position should be eliminated or re-organized. Mr. Gomes, the respondent’s Vice President of Finance and Comptroller, testified that they decided to eliminate the position at its executive retreat in May 2012. He stated that Mr. Mighton had mentioned the applicant’s perceived English language difficulties in the months leading up to the ELT’s retreat. However, Mr. Gomes testified that the Helpdesk Support Analyst position was eliminated because there was insufficient work to justify continuing to employ someone full-time in that position.

Regarding this series of event, the Tribunal stated:

As noted above, the respondent itself submitted that the applicant’s English skills were insufficient for him to be moved to the NCSC agent position. In my view, the applicant’s perceived difficulties communicating verbally in English were a factor both in the respondent’s decision to re-organize his position and its decision not to move him to an NCSC position. (p. 78)

Additionally, none of the applicant’s performance appraisals or any other evidence clearly specified the nature of the perceived inadequacy in the applicant’s verbal English language skills.

Meanwhile, the applicant was employed by the respondent for three years. His hours were extended from part-time to full-time partway through his employment. He was rated as having met expectations in each of his performance appraisals. In this context, I find on a balance of probabilities that the problems Mr. Mighton and others perceived with the applicant’s language skills related to factors such as the applicant’s accent, less grammatical sentence structure, pronunciation, syntax, etc., which are all factors that are more readily associated with the applicant’s place of origin. For these reasons, I am satisfied that the evidence supports a nexus between the applicant’s perceived difficulties communicating verbally in English and his place of origin. (p. 90)

For the reasons stated previously, the Tribunal determined that the applicant experienced discrimination on the grounds of place of origin when the respondent terminated his employment.

Result

The Tribunal awarded compensation for lost income and $15,000 in damages for injury to dignity, feelings, and self-respect. Additionally, the respondent had to compensate the applicant for his lost wages for the period May 31, 2012, to May 1, 2013.

Chan v. MTY Tiki Ming

Summary

Chan v. MTY Tiki Ming Enterprises Inc.

The applicant, who is Chinese and immigrated to Canada from Hong Kong, sought, unsuccessfully, to enter into a franchise agreement with the respondent, which is a franchisor of fast food outlets, to give him the right and license to operate an outlet in a shopping mall in London.

The applicant grew up in Hong Kong. He stated that his first languages are Cantonese and Mandarin and that his second language is English. He stated that he attended and graduated from an English language high school in Hong Kong.

The applicant stated that he immigrated to Canada and settled in London in 2004. He stated that when he first arrived in Canada, some of his friends suggested that he take English as Second Language courses, but he declined to do so because he was educated in English and was confident that he could communicate with people in English.

Joe Zhu was the owner and franchisee of the Koya Japan outlet, where the applicant worked. The landlord of the shopping mall had leased the premises where the outlet was located to the respondent, who, in turn, had sub-leased it to Mr. Zhu. In March 2009, the landlord and the respondent executed a renewal of the lease.

The applicant testified that his ultimate goal after immigrating to Canada was to own his own business. He stated that in May 2009, he reached a verbal agreement with Mr. Zhu to purchase his Koya Japan franchise for $140,000. On June 15, 2009, the applicant, Ms. Wong and Mr. Zhu met with Mr. Tang and the respondent’s Operations Manager to discuss the process for transferring ownership.

On June 21, 2009, the applicant sent a completed Personal Information Form (“PIF”) to Mr. Tang. With respect to language ability, the PIF indicated that his spoken English was “good.” Regarding capital investment, the PIF indicated that he planned to invest $180,000 in the franchise. With respect to his financial situation, the PIF indicated that he had $300 in his bank account, he owned a condominium with a value of $250,000 with no mortgage, and his annual income was $6,000.

On July 23, 2009, Mr. Tang spoke with the applicant by telephone about providing a renovation deposit. Mr. Tang testified that they spoke in Cantonese.

On August 25, 2009, the applicant, Ms. Wong and their friend, Mr. Cheng, met with Mr. Worts and Mr. Tang. The applicant testified that he introduced Mr. Cheng as a person who would be assisting and occasionally interpreting for him. Mr. Worts and Mr. Tang testified that Mr. Cheng was introduced to them as the applicant’s interpreter. The applicant testified that during the meeting, he spoke in English to Mr. Worts and in Cantonese to Mr. Tang and that Mr. Cheng occasionally interpreted the terms of the franchise agreement for him. Ms. Wong also testified that the applicant spoke in English to Mr. Worts. Mr. Worts and Mr. Tang, on the other hand, testified that Mr. Cheng provided interpretation for the applicant during the meeting and that they recollected that the applicant spoke very little or no English.

Following the meeting, Mr. Worts, Mr. Tang and Mr. Hamam met and decided to reject the applicant’s application for the Koya Japan franchise. They all testified that the main reason that they rejected the applicant’s application was because they did not believe that he had the finances to pay for the upcoming renovation. Mr. Worts and Mr. Tang also stated that they did not believe that the applicant had sufficient English skills to operate a franchise because he used an interpreter during their meeting, and did not appear to understand why the respondent needed a renovation deposit.

The applicant testified that the respondent’s decision to reject his application because he lacked English skills surprised him. He stated that during the application process, the respondent never indicated that there was a problem with his English, and never tested his English skills. He further stated that the respondent’s disclosure documents do not require that a franchisee participate personally in the operation of the franchise.

He alleged that the respondent’s refusal was discriminatory because there is an inextricable link between language and place of origin. He denied that the respondent rejected his application because of a lack of English skills. Rather, he stated that the respondent rejected his application because he is Chinese. Specifically, he stated that he speaks English with a heavy Chinese accent and that he has difficulty pronouncing certain English words.

Questions to be Determined and Findings

Did the applicant establish that his race, place of origin and/or ethnic origin were factors in the respondent’s decision to refuse his application for a franchise? (NO)

 If so, did the respondent establish that there was a credible non-discriminatory explanation for refusing the applicant’s application? (YES)

Reasoning

Mr. Hamam, who is also an immigrant whose second language is English, testified that the respondent had rejected other franchise applications because of the applicants’ lack of English skills. However, the respondent did not tender any letters of rejection to other applicants or other documentation to substantiate Mr. Hamam’s testimony.

Mr. Hamam also admitted that there are franchisees whose English skills are lower than the applicant’s, and Mr. Tang testified that the applicant’s English skills appeared to be substantially better at the hearing than they were at the time he applied for the franchise.

The Tribunal also noted that the respondent does not have a formal policy for assessing the English skills of potential franchisees since it does not require a franchisee to participate personally and directly on a full-time basis in the operation of the franchise. However, Mr. Tang stated that the respondent would consider English skills when deciding whether or not to grant someone a franchise. He also stated that he had no concerns about the applicant’s English skills until he brought an interpreter to the meeting on August 25, 2009.

Additionally, the respondent provided credible and reliable evidence, which was not rebutted by the applicant, that the main reason that it turned down his application for a franchise was because of his financial situation. Specifically, the applicant’s PIF showed that he would have had very little equity remaining to pay for renovation costs after he paid the purchase price for, and invested in, the franchise, and he was balking at providing a renovation deposit to the respondent. (p. 41)

The Tribunal expressed that Code does not include “language” as a prohibited ground of discrimination. For the Tribunal to have jurisdiction, the discriminatory action must be in relation to a prohibited ground of discrimination in the Code. As such, the onus is on the applicant to establish that there was a nexus between the respondent’s decision to refuse his application for a franchise because of a lack of English skills, and his race, place of origin and/or ethnic origin. In the absence of such a nexus, a prima facie case of discrimination will not be established.

In this case, the applicant did not allege that the respondent had an English skills requirement that had an adverse discriminatory impact on Chinese individuals who are originally from Hong Kong. Such an allegation would have been difficult to substantiate given that the respondent’s founder and President/CEO (Mr. Ma) is Chinese and originally from Hong Kong, the main person who dealt with him (Mr. Tang) is Chinese and originally from Hong Kong, and 18 of the 20 Koya Japan franchisees at the time of his application were of Asian descent, including several individuals of Chinese descent. Instead, the applicant alleged that he was singled out and that his supposed lack of English skills was a pretext for discriminating against him because of his race, place of origin and ethnic origin.

Specifically, he alleged that the respondent turned down his application because he speaks English with a heavy Chinese accent, he has difficulty pronouncing certain English words, and he speaks a Chinese form of English (“Chinglish”). (p. 44)

The Tribunal found that the applicant failed to establish a prima facie case discrimination because he failed to prove that there was a nexus between the respondent’s decision to refuse his application for a franchise because of a lack of English skills, and his race, place of origin and/or ethnic origin.

Even though the Tribunal did accept that the respondent’s representatives had concerns at that time about the applicant’s proficiency in English (because e-mails were being sent from his wife’s email address rather than his own, and because he brought an interpreter to the August 25, 2009 meeting), the applicant did not present any evidence to support his allegation that the respondent turned down his application for a franchise because of his accent and pronunciation.

At best, the applicant established that the respondent treated him unfairly by failing to notify him that they had concerns about his English skills, by failing to provide him with an opportunity to demonstrate that he was proficient in English, and by singling him out. However, the Tribunal does not have the power to deal with general allegations of unfairness. There must be a basis beyond mere speculation and accusations to establish discrimination on the basis of one of the grounds alleged in the Code. (p. 48)

Result

The Application was dismissed.

A.B. v. Joe Singer Shoes Limited

Summary

A.B. v. Joe Singer Shoes Limited

Born in Thailand, A.B. came to Canada in 1979 and began working at a shoe store operated by Joe Singer Shoes Limited. Her son was born in 1988 and was diagnosed with epilepsy when he was 5. After she separated from her husband in 1989, A.B. moved into an apartment above the shoe store, which was owned by Buy-A-Hammer Investments Inc., as this allowed her to work full-time and care for her young son. Both Joe Singer Shoes Limited and Buy-A-Hammer Investments Inc. were owned by Paul Singer.

The applicant testified Mr. Singer’s sexual comments to her began before her divorce in 1992. A.B. claimed that Singer began making sexual comments to her sometime before 1990 and soon after began to touch her inappropriately, kissing her in the workplace and rubbing up against her, and did not stop when she tried to push him away.

A.B. testified that Mr. Singer’s sexual harassment and comments to her harmed her marriage: she could not let her husband touch her because of what was happening to her at work. She testified the attacks continued from sometime before 1990 up until January 2008 when she went to the police.

She claimed that often Singer called her down to the basement or his office to perform oral sex on him or force her to have sexual intercourse, approximately twice a month, for years. She testified most of the attacks happened in his office after hours after everyone else had gone home. Singer would also enter her apartment without knocking and force himself on her, resulting in cuts and bruises. She alleged that when she told him not to do so, he laughed at her, and when she told him she would report him, he told her no one would believe her.

The applicant testified most of the incidents did not last long because a customer or another staff member would come in. She testified she wore jeans to work 80 to 90% of the time and tacked her belt to prevent Mr. Singer from trying to pull her pants down.

The applicant testified that Mr. Singer would call her, and when she went upstairs to his office he already had his penis out, grabbed her and forced her to perform oral sex on him. He told her she was supposed to do it and that she liked it. She testified she could not quit her job and felt she had no way out, and that Mr. Singer reminded her that no one would believe her.

A.B. claimed that she confided in some of her co-workers, but was told that Singer treated many women this way and there was nothing she could do about it.

In addition to the physical assaults, A.B. alleged that Singer made derogatory comments about her body, and referred to Thailand as a "third world country."

The applicant also testified that Mr. Singer made derogatory comments about her accent or how she spoke. She argued that Mr. Singer asked customers if they understood what the applicant was saying and what she was talking about.

Singer denied this, but admitted that when she told him she had one “uvary” he asked what the hell that was, and that when she said “doesn’t supposed to happen,” he repeated it. He testified the store was a stressful place and he liked to make jokes and have fun. He testified he and the applicant laughed together, and at times she was funny, and he corrected her language nicely. (p. 58)

In January 2007, the applicant experienced a workplace injury. In January 2008, she reported Mr. Singer’s alleged sexual harassment and assaults to the police.

In October 2008, the applicant saw Dr. Bart for the first time. The applicant was referred to her because she had deteriorated significantly psychologically in June 2008, which Dr. Bart testified she found out later was related to the applicant appearing in criminal court concerning the charges against Mr. Singer that were ultimately dropped.

The doctor assessed A.B. with chronic pain, emotional distress, and post-traumatic stress disorder (“PTSD”); noting symptoms of dissociation, hypervigilance, hyperarousal, fight/flight, hyperventilation, sadness, emotional distress, flat affect, memory impairment, trouble focusing, physical arousal, cognitive impairment, restlessness and being emotionally closed down.

The applicant was distressed when she arrived if a cab driver had taken her a different route or if the driver smelled a certain way, and was uncomfortable with most drivers because they were male. Dr. Bart testified the applicant was distressed by anything that reminded her of her employer or employment situation. She felt vulnerable and unsafe and became more socially isolated because she feared leaving her apartment. She did not think the applicant could return to work even though the applicant told her she enjoyed her work. (p. 84)

On January 19, 2009, A.B. filed a human rights complaint alleging discrimination with respect to employment and housing because of race, colour, place of origin, ethnic origin, disability, sex, sexual solicitation or advances, and family and marital status, contrary to ss. 5 and 7 of the Ontario Human Rights Code.

At the hearing, A.B.'s psychologist testified that A.B. was distressed by anything that reminded her of Singer or her employment situation, and she feared to leave her apartment. Although A.B.'s symptoms emerged after her fall, the psychologist stated that, in her opinion, the PTSD resulted from the sexual assaults. The symptoms emerged after the fall because A.B. was in pain from her fall, and this made her more vulnerable, thus triggering the PTSD, which was also heightened by her decision to go to the police. As well, her psychiatrist testified that A.B. suffered from severe PTSD from sexual trauma, as well as cognitive defects from her head injury, including memory loss, and that she continued to suffer from PTSD symptoms, including flashbacks, hypervigilance, and nightmares, although medication had improved her anxiety and depression somewhat. He testified that her story had remained consistent over the years and that her symptoms were consistent with having experienced sexual assault.

Questions to be Determined and Findings

Was the Applicant sexually harassed by her employer and landlord? (YES)

Did the respondent make discriminatory comments that created a poisoned work environment for the Applicant? (YES)

Reasoning

The applicant’s son testified that on one occasion when he was 12 or 13 years old, he heard a kissing noise and saw his mother and Mr. Singer standing close together. He testified his mother was not happy after that, did not want to talk to him and told him to never mind it.

The applicant testified that as a mother, it was the worst, dirty thing that her son had to see someone grab her and that she could not protect herself, that she pushed Mr. Singer away and it did not work, and that her son had to witness her doing something she was not willing to do. She testified he was not her husband, and she was not his girlfriend, and this was the boss she worked for who should have understood that she was a hard worker and did not have to sleep with him to get paid. She testified she worked for money and did not have to be his sex slave. (p. 21)

During the hearing, Mr. Singer admitted he called the applicant to his office at times, and they were alone together but testified it was solely for the purpose of having her try on shoes because she had a perfect sample size foot and nothing else happened. Mr. Singer also testified that to access the applicant’s apartment, one would need a pass card to open a box that held the key, and he denied he had that card. The Tribunal found this evidence not to be credible given the fact that the landlord was a company he controlled.

I find on a preponderance of probabilities that Mr. Singer sexually harassed and assaulted the applicant both in her apartment and in his office, which was part of her place of employment. The applicant was vulnerable given she had no family here, was single, lived above the store and English was not her first language. I find that Mr. Singer told the applicant she was stuck, that he had money and would get the best lawyers if she reported him while she would have to rely on community lawyers, and that she stayed because she felt she had no option. (p. 143)

Mr. Singer admitted he made sexual comments and jokes about the Applicant. He also admitted he made fun of the applicant’s accent and use of English at times, testifying he liked to make jokes. Mr. Singer testified on cross-examination that the applicant spoke with a Thai accent, and at times he could not understand her. He denied making fun of her accent because his parents were immigrants and he respected immigrants. He also denied telling the applicant that Thailand was a third world country.

The respondent questioned the applicant’s evidence with respect to Mr. Singer’s comments about her place of origin. The respondent submitted that the applicant’s position that it was racist when Mr. Singer told the applicant she would get the best food at his birthday party was absurd. However, this is a mischaracterization of the applicant’s evidence. The applicant testified that the context of Mr. Singer’s remark was that she was going to taste the best food she had ever eaten at his birthday party, and told her that her people did not understand that it was gourmet food. In addition, he asked what did she know given she was from Thailand, and he referred to Thailand as a third world country. These remarks are, in fact, indicative of discrimination based on the applicant’s race and place of origin. (p. 150)

The applicant further alleged that it was good that the applicant’s marriage ended because her ex-husband was Iranian, and they are terrorists and no good. He congratulated her for leaving, telling her she would be safe because the Iranians kill their women. The applicant pointed out her son is half Iranian.

Mr. Singer dismissed these [comments] as he and the applicant were laughing together, but the applicant’s testimony painted this quite differently. Her testimony was that she found his comments humiliating. In light of Mr. Singer’s testimony in which he did not deny making jokes about the applicant’s English use, I find Mr. Singer created a poisoned work environment for the applicant with his comments. (p. 148)

Result

The Ontario Human Rights Tribunal awarded $200,000 in damages for injury to dignity, feelings, and self-respect.

I find the applicant was in a vulnerable position given that she was a single woman raising a son with a disability; that she needed to live in the same building where she worked, which allowed her to care for her son; and that she was an immigrant who felt, as she put it, stuck in the situation she was in. She endured not only harassment and sexual assaults but also threats. The applicant’s ordeal lasted far longer and involved many more assaults and harassment than experienced by the applicants in Presteve. For those reasons, and because of the objective nature of the discrimination involving someone who was vulnerable and virtually unable to leave, as well as the lasting effect on the applicant, I find an award of $200,000 as compensation for injury to dignity, feelings and self-respect is appropriate. (p. 172)