Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

Eva v. Spruce Hill Resort and Spa Ltd.

 

Summary

Melonie Eva, Clare Fast, Kathy Stocks, Elisha Schaff, Manuela Boos, Norbert Boos, Jessica Allison, and Elika Ward (together, the "complainants") alleged that Spruce Hill Resort and Spa Ltd. (the "Resort") and Kin Wa Chan (together, the "respondents") discriminated against them in their employment on the grounds of race, colour, ancestry and place of origin after they were forced to leave their employment because they are not Chinese. As it relates to one incident, Ms. Eva also alleged that Mr. Chan discriminated against her on the ground of sex.

In 2015, Mr. Chan took over ownership of the Resort, and in January 2016 the Resort began extensive renovations. Ms. Eva began working at the resort in January 2016. Although she was interviewed by Mr. Chan to be the assistant manager, by the time she began her employment, she took over the position of general manager due to the departure of another employee. Ms. Eva was responsible for the daily operations of the resort and finding contractors for the renovation. Ms. Eva worked long hours, and Mr. Chan acknowledged that Ms. Eva worked very hard. They often discussed business matters into the evening. Ms. Eva described retrieving documents at 11 pm for Mr. Chan's review during their telephone conversations.

The other individuals worked at the resort in different areas such as human resources, bookkeeping, catering, waitressing, and marketing. They kept working on their duties during the renovations, with some changes when needed.

During the renovations, Mr. Chan would remark on how much it costs to employ the Complainants, all of whom identified as Caucasian. He would make comments about how much better it would be to have Chinese employees because he could pay them less and they would not claim their statutory entitlements to overtime or vacation pay. Mr. Chan also hired new employees who were Chinese and simultaneously cut the hours of several of the Complainants. By the end of summer 2016, all of the Complainants had been terminated, had resigned because so many of their hours had been cut, or left because the work environment had become so toxic.

The Complainants all heard Mr. Chan make these comments on separate occasions; for example, Ms. Eva recalled having frequent arguments with Mr. Chan about "too many white people" working at the resort. Ms. Eva recorded these incidents in her diary entries.

Mr. replaced one employee and continue to exhibit a confrontational behaviour, that ended up producing a fight with his staff. At the end of July, a new schedule was presented removing most of the shifts from the Caucasian employees. Ms. Stocks saw that most of her hours were taken away, and her hours for the first week of August were cancelled. Ms. Stocks observed that the hours of other Caucasian employees had been reduced as well. As a result, Ms. Stocks did not work at the resort for the rest of that week.

Over the next two days, with one exception all of the complainants left their employment because they were either fired or resigned. The one exception was Ms. Stocks whose hours were cancelled that week. She resigned one week later on her first day back at work.
 

Questions to be Determined and Findings

1. Were the Applicants discriminated against on the basis of race? (YES)

2. Was Ms. Eva sexually harassed by Mr. Chan? (YES)
 

Reasoning

1. To prove their case, the complainants are required to establish three facts: (1) they are protected under race, colour, ancestry, or place of origin; (2) they experienced an adverse impact in their employment at the resort; and (3) their race, colour, ancestry, or place of origin was a factor in that adverse impact. The Tribunal dismissed the complaint of discrimination on ancestry and place of origin due to lack of evidence.

The respondents argue that the cessation of the complainants' employment cannot be attributed in any way to their race. In support of his argument, Mr. Chan says that his conduct had everything to do with money and nothing to do with race. Mr. Chan gave a considerable amount of evidence that he was unhappy about the money being spent on skilled workers doing unskilled work and wanted to spend less money during the renovations.

While Mr. Chan denies expressing these views, it is significant and supports a finding that he did that the Chinese employees were hired on salary because Mr. Chan believed as salaried employees they need not be paid overtime or for statutory holidays. Moreover, with the exception of Ms. Eva, it was only ethnically Chinese employees who were hired on salary. It made sense that Ms. Eva was on salary as she was the day-to-day person in charge. No reasonable explanation was provided for the difference in pay between salary and hourly wages for the other employees. (p. 99)

This case came down to credibility. Mr. Chan failed to provide any financial documents to back up their claim that the employment decisions were based solely on the financial situation of the Resort. In the end, the Tribunal found the version of events provided by the Complainants and corroborated by various records they kept at the time, to be more credible. Moreover, no reasonable explanation was provided for why the new Chinese employees were hired.

For the following reasons, I find that Ms. Schaff's race was a factor in the termination of her employment…On one occasion, Ms. Schaff overheard Mr. Chan yelling and using words to the effect that "white people" were too slow and Chinese workers were faster and cheaper. On other occasions, she heard Mr. Chan use words to the effect that Canadians are too slow and cost too much, and that Chinese students work, do not complain, and do not need to be paid overtime. Ms. Schaff overheard these conversations on a number of occasions, both when they were in their temporary office and after they moved into the main building. Ms. Schaff testified that her anxiety skyrocketed because she did not know if she would have a job. (p. 115)

For those employees who were not fired, the complainants argue that Mr. Chan created a discriminatory work environment that resulted in their "constructive dismissal" and entitled them to leave their employment. Where the work environment deteriorates to such an extent that it may be poisoned because of racism or harassment, the employer's behaviour in creating this environment may amount to a "constructive dismissal" of the affected employee as that concept is applied within the human rights context.

Over a period of five months, Mr. Chan engaged in a series of acts. These acts included making comments that Chinese workers are better and cheaper than Caucasian workers, plans to bring Chinese students to the Resort, the replacement of Ms. Stocks with a Chinese student, the replacement of some complainants with Chinese workers over the August long weekend, the reduction of hours of some complainants thereafter, and the termination of others. On the first night of a business trip to China, Mr. Chan also engaged in a single incident of sexual harassment against Ms. Eva contrary to the Code. After this incident, Mr. Chan began taking over some of Ms. Eva's managerial duties. (p. 161)

Finally, the Tribunal was not persuaded that the decisions Mr. Chan took in reducing the hours, or terminating, Caucasian employees were reasonably necessary to accomplish the broader goal of reducing expenses at the resort. Mr. Chan did not demonstrate that he could not have done anything else reasonable or practical to avoid the negative impact on the complainants.

Mr. Chan chose to reduce labour costs to the detriment of the complainants. There is no credible evidence that he reduced the work hours of the Chinese employees. He only reduced the work hours of the Caucasian employees. While one may sympathize with "Holly" who was on salary, and appeared to work long hours with limited additional compensation, Caucasian employees lost hours and income because they were Caucasian. (p. 205)

2. Mr. Chan scheduled a business trip to China to purchase materials and supplies for the renovation. Ms. Eva travelled with Mr. Chan on the trip, which occurred over two weeks in April 2016. Although Ms. Eva assumed that she would be staying in her own hotel room, Mr. Chan planned for the two of them to share a room. A confrontation ensued, and she asked Mr. Chan where his room was, and he responded that they were going to share a room. Ms. Eva became upset and told Mr. Chan that they were not sharing a room. She remembers Mr. Chan saying words to the effect "relax" and that "in China, we do things the Chinese way." Ms. Eva told Mr. Chan emphatically that she was married and not going to share a room with him or any other man during this trip.

In any event, and regardless of Mr. Chan's intentions, Ms. Eva found his conduct sexual and unwelcome. There is no evidence to suggest that Mr. Chan had any reasonable basis to believe that Ms. Eva might be interested in his advances. Yet, he walked her through a market that sold sex toys and booked a hotel room with a bathroom with only a glass divide. Mr. Chan acknowledged not advising Ms. Eva in advance that he expected them to share a room. His evidence was that such information was "mere details." His explanation was simply incredible. No reasonable person could attribute an employer's decision to book one hotel room when travelling with an employee to be a misunderstanding or "mere details" in these circumstances. (p. 84)

The Tribunal determined that this incident contributed to the poisoned work environment that Ms. Eva ultimately found herself. It was a factor in her decision to resign. For all these reasons, the incident rises to the level of a Code violation. The allegation of sex discrimination is justified in these circumstances.
 

Remedy

The Tribunal awarded the Complainants lost wages and injury dignity on a case by case basis. The combined amount of the awards was over $170,000. The decision was described as follows:

I order the respondents to pay as compensation for wage loss as a result of the contravention:

i. $47,561.28 to Clare Fast;

ii. $24,481.25 to Melonie Eva;

iii. $20,715.07 to Norbert Boos;

iv. $9,102.10 to Jessica Allison;

v. $6,129.98 to Elisha Schaff; and

vi. $5,151.33 to Kathy Stocks.

I order the respondents to pay as compensation for injury to dignity, feelings, and self-respect:

i. $18,000 to Melonie Eva;

ii. $15,000 to Clare Fast;

iii. $10,000 to Kathy Stocks;

iv. $7,000 to Manuela Boos;

v. $4,000 to Norbert Boos;

vi. $3,000 to Elisha Schaff; and

vii. $3,000 to Jessica Allison. (p. 272)