Counsel:

Marie Chen for the Complainant (Appellant in Appeal)

Raj Dhir for the Commission (Appellant in Appeal)

Stephen A. Bernofsky for the Respondents (Respondents in Appeal)

       The following judgment was delivered by

¶ 1      THE COURT:— This is an appeal from the decision of the Human Rights Tribunal of Ontario (the "Tribunal") dated September 10, 2002, in so far as the Tribunal determined that race was not a factor in the decision to terminate the complainant, Mark Smith ("Smith") from his employment, with the result that the complainant was not entitled to compensation for lost wages. The appellant also appeals the Tribunal's finding that notwithstanding Smith was subjected to racial harassment and a poisoned workplace, the infringement of Smith's right to be free from such a poisoned atmosphere, was not wilful or reckless, with the result that Smith was not entitled to compensation for mental anguish.

STANDARD OF REVIEW

¶ 2      There is a statutory right of appeal from the decision of a Board of Inquiry under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") and no privative clause. Such circumstances might tend to suggest a relatively stringent standard of review.

¶ 3      However, the jurisprudence indicates that the court should show a "relative degree of deference" to human rights tribunals in their findings of fact. In Ross v. New Brunswick District No. 15, [1996] 1 S.C.R. 825 at p. 847, La Forest J. stated that, as regards the superior expertise of "a human rights tribunal to fact finding and adjudication in a human rights context, the standard of review on the basis of reasonableness is applicable." See also, Entrop v. Imperial Oil Ltd. (2000) 50 O.R. (3d) 18 at p. 32 (C.A.), in which Laskin, J.A. said "the standard of review of the Board's finding of fact and the application of the law to those findings of fact is reasonableness."

¶ 4      However, general questions of law should be reviewed on a standard of "correctness". For example, in the case of Berg v. University of British Columbia [1993] 2 S.C.R. 353 at 369, Lamer J. noted: "the superior expertise of a human rights tribunal does relate to fact finding and adjudication in a human rights context, but does not extend to general questions of law."

¶ 5      There is no dispute that the standard of review on questions of fact should be reasonableness, and on questions of law, correctness. We also share that view.

OVERVIEW

¶ 6      We are all of the view that the findings made by the Tribunal, which led it to conclude that Smith was subjected to a poisoned workplace, are inconsistent with the finding that the respondents were not wilful or reckless in their infringement of Smith's right to be free from the poisoned atmosphere. Those findings of subjection to the poisoned atmosphere were grounded on the failure of an area manager, the directing mind, to do anything about complaints from Smith that he was the victim of racial slurs. The evidence in support of those findings was overwhelming. The Tribunal's failure to provide a reason for the finding that the respondents were not wilful or reckless is an error of law. See Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684 at 705; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; J.M. Evans et al., Administrative Law: Cases, Text and Materials, 3rd ed.; and Section 41(1)(b) of the Code. On this record, the only finding available to the Tribunal was that the respondents were at least reckless in their infringement of Smith's right to be free from the poisoned atmosphere. Accordingly, the appeal on this ground must be allowed and the finding that the respondents were not wilful or reckless set aside.

¶ 7      Since the complainant's rights were infringed, at least recklessly, the complainant is entitled to an award for mental anguish and an award of $10,000.00 for mental anguish pursuant to subsection 41(1) of the Code is hereby granted, together with interest in accordance with the Courts of Justice Act.

¶ 8      The real issue in the appeal is, therefore, whether the finding that race was not a factor in the dismissal is sustainable. In determining that issue, it is instructive to read the Tribunal's language in the context of the undisputed facts, the objects of the Code and the difficulty recognized in the case law of proving discrimination.

¶ 9      The basis for requiring that race be only a factor in the termination is the recognized difficulty in proving allegations of race discrimination by way of direct evidence. As was noted in Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481: Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced.

¶ 10      It may also be helpful to bear in mind that the Code is remedial legislation, aimed at remedying the effects of discrimination, not focused on punishing the individuals involved in discriminatory practices. It is not the motivation or knowledge of the employer that is in issue; it is the effect of the discrimination on the complainant. This is highlighted most notably in cases of constructive dismissal, such as Ontario (Human Rights Commission) and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 (S.C.C.).

¶ 11      It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O'Malley v. Simpson-Sears Ltd., supra, at para. 14, the court said:

¶ 12      In dealing with the reason proffered by the respondents for the dismissal, the Tribunal unfortunately expressed a presumption consistently identified in the human rights jurisprudence as a common myth, in the following language:

Later in the decision, the Tribunal said:

The only other place in the decision that the Tribunal had already made it clear that race was not a factor in the decision to terminate was in the paragraph immediately preceding. Finally, under the heading "Remedy", the Tribunal said:

Notwithstanding that the Tribunal at some point actually used the appropriate language, "that race was not a factor in the decision to terminate", it is clear that the Tribunal was preoccupied with the issue of motivation, which was not the issue before it.

THE FACTUAL MATRIX

¶ 13      As we stated earlier, the Tribunal found that the environment in which the complainant, Smith, had worked from August 1992 to August 1993, in a junior position, and from August 1993 to the date of termination in December 1995, as a supervisor, was poisoned by racism.

¶ 14      It is common ground that the relationship between Smith and Rob Neal ("Neal"), an acting manager, to whom Smith had to report, was tainted by Neal's racist attitudes. At a minimum, Don Strynadka ("Strynadka"), the principal of the corporate respondent, knew that there were difficulties in the relationship between Neal and Smith.

¶ 15      Smith was dismissed allegedly for one incident involving a refusal to assist a junior employee in serving a customer. Strynadka did not offer Smith an opportunity to defend himself against the allegation. The manager, Fernando Francisco ("Francisco"), with whom Smith worked closely and who was likely the most informed about the incident, advised against Smith's dismissal.

¶ 16      The circumstances surrounding the termination were clearly suspect. On August 4, 1995, Smith was told he was being laid off for lack of work. A week later, the manager, Francisco, spoke to Smith about the alleged incident with respect to which Smith was dismissed. On or about August 16, 1995, a white employee was transferred from another location to replace Smith. On November 6, 1995, Smith received a termination letter citing his performance from June 20, 1995 to August 4, 1995, as grounds for the termination. The letter was unsigned by its supposed author, Francisco. Francisco's failure to sign lends credence to the complainant's allegation that Francisco was not supportive of the decision to dismiss Smith. As counsel for Smith submitted, the evidence of the changing reasons, the quick replacement of the position, and the delay in providing a termination letter are all factors that would have warranted close scrutiny by the Tribunal.

¶ 17      Two higher-ranking white employees were punished less severely than Smith for infractions that were arguably more serious than that committed by Smith. Strynadka had, at an earlier date, threatened to dismiss Smith because of Smith's strained relationship with Neal. The triggering event for the threat was Neal's report to Strynadka of Smith's reaction to being described by Neal as "Kunta" (a slave name).

¶ 18      The Tribunal showed no interest in what Strynadka might have thought were the reasons for the tension between Neal and Smith, of which he was aware.

¶ 19      Strynadka testified that he only once heard the use of the name "Kunta" when Francisco referred to Smith by that name, and that he immediately took Francisco aside and told him that he did not want to hear that sort of name calling ever. That incident, without more, would indicate that Strynadka was not totally unaware of the racist nature of the environment.

¶ 20      The Tribunal found that a white employee had challenged Smith's authority by saying that "Two hundred years ago, we would have told him what to do." It also found that when the incident was reported to the manager, Francisco, the offending employee "was either dismissed or suspended from that location and was subsequently hired at another location three weeks later." The only conclusion the Tribunal drew from those circumstances was that "whether the punishment was deemed adequate, it does demonstrate that if the complainant were to make an actual complaint about racial harassment, that action would be taken." The Tribunal made no comment as to whether or not Strynadka would have been aware of such a major incident in "his" company.

¶ 21      The respondents have urged the court to accept the implication from the Tribunal's decision that Strynadka was oblivious to the racial poison in the workplace, and in particular, to Neal's reputation among, at least some of the staff, for racism, although Neal not only had referred to Smith as "Kunta" and other black employees as "Chicken George", but had opposed Smith's transfer to replace a senior manager in the company. In fact, the Tribunal seemed to consider Strynadka a victim, and found it necessary to observe that: The respondents Strynadka and the three corporations have been subjected to a substantial expense in connection with this matter and Strynadka has lost a great deal of time from his principal occupation.

¶ 22      On this issue, the respondents have rested their case substantially on the ground that Strynadka was not aware of the underlying factors of discrimination and harassment when he made the decision to dismiss Smith. However, it is usually almost impossible to prove knowledge in such cases. It is precisely for this reason that the case law requires the Tribunal to look at all the surrounding circumstances in coming to a conclusion that race was or was not a factor in the dismissal, and does not require the Tribunal to find that the dismissal was racially motivated.

¶ 23      What is more, in Ontario (Human Rights Commission) and O'Malley v. Simpson-Sears Ltd., supra, at p. 547, the Supreme Court of Canada found that "an intention to discriminate is not a necessary element of the discrimination generally forbidden in human rights legislation." The rationale for such a finding is that motivation or knowledge is not in issue, only the effect of the discrimination on the complainant is in issue.

¶ 24      Where termination occurs within a poisoned work environment, a proper consideration of whether the termination was discriminatory requires that it be examined in the context of the poisoned work environment. See Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 (Ont. Bd. Inq.) upheld [1999] O.J. No. 2530, 34 C.H.R.R. D/405 (Ont. Div. Ct.); Moffatt v. Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19.

¶ 25      On this record, a finding that race was a factor is not only available, but in our view would have been made if the Tribunal had not assessed the evidence with a view to determining the existence of racial motivation, but had assessed the evidence to determine whether race was a factor in the termination.

¶ 26      We are all of the view that the appeal should be allowed and the decision of the Tribunal that race was not a factor is set aside.

¶ 27      The subject matters of the complaint dates back to the period 1993 to 1995, and the record of proceedings before the Tribunal has been accidentally destroyed. Accordingly, we do not find it in the interests of justice to order a new hearing.

¶ 28      In the circumstances of this case, we are prepared to substitute our opinion that race was a factor in the termination of the complainant's employment in contradistinction to the Tribunal's finding that "the termination was not because of race or colour" (which was not the issue before it). Accordingly, the complainant is entitled to compensation for lost income in the sum of $25,131.35, as set out in the calculation of special damages provided by the appellant, together with interest in accordance with the Courts of Justice Act. In accepting this calculation, we rely on Airport Taxicab (Malton) Assn. v. Piazza (1989), 10 C.H.R.R. D/6347, a decision of the Court of Appeal per Zuber J.A. at paras. 45017 and 45018:

We agree with this conclusion.

¶ 29      Finally the Tribunal had the benefit of one recognized expert, Dr. Ralph Agard, who was of the view that while a punitive remedy ought not to be ordered, the respondent corporation needed professional guidance to institute a formal complaint process, with emphasis on the education of management. Presumably, because the Tribunal was "not satisfied that the situation in this case is as serious as Dr. Agard suggests", it paid little heed to Dr. Agard's recommendation of systemic remedies.

¶ 30      In Fuller v. Daoud (2001), 40 C.H.R.R. D/306 (Ont. Bd. Inq.) at paras. 86 and 87, the Ontario Board of Inquiry (Human Rights Code) said:

       We are of a different view from the Tribunal with respect to the need for systemic remedies in these circumstances, and accordingly, we order the respondent to implement those parts of Dr. Agard's recommendations relating to the implementation of a work place anti-harassment policy, staff training, implementation of an internal complaint process, and education of management, all subject to the supervision of the Commission.

COSTS

¶ 31      Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons.

E.F. THEN J.
J.D. GROUND J.
R.W.M. PITT J.