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A Costly Lesson: Human Rights Tribunal Issues Large Damages Award Against Employer in Breach of Human Rights Code

In Matheus v McCann, the Human Rights Tribunal of Ontario heard an application alleging discrimination in employment on the bases of race, ancestry, place of origin, and age, as well as reprisal pursuant to the Human Rights Code.  The applicant alleged that his employer continuously made racist statements, yelled at him, insulted his home country Ecuador, and mocked his beliefs and intelligence.  The applicant was highly educated as a food processing engineer, had four years of work experience, and a masters’ degree in food safety from McGill University, but given his young age (28 years old) and country of origin, he alleged that his employer subjected him to unbearable harassment and discrimination, including insulting his purported lack of experience.

The applicant gave his employer a written letter demanding that the mistreatment end.  Seemingly in response, the employer terminated the applicant’s employment.  Further, the employer issued a Record of Employment indicating that the applicant had resigned from employment, thereby disqualifying him from receiving EI benefits.

For their parts, the respondents denied any discrimination, and instead submitted that there were performance and behaviour issues that rendered the applicant unsuitable for work with the company.

Not surprisingly, the Tribunal’s decision hinged largely on an assessment of credibility.  Ultimately it found that the applicant’s evidence was more reliable and credible than that of the respondents.  One of the more striking examples of the employer’s inconsistency was that it submitted in its Response that it did not terminate the applicant, it issued the Record of Employment indicating that the applicant resigned, but also submitted that the applicant was dismissed “for this inability to perform all of the requirements of the position”.

The Tribunal found as a fact that the following incidents occurred:

• The Employer referred to the applicant as a “lazy Ecuadorian that didn’t want to wake up early”;
• When the applicant suggested using a flow meter for molasses, the employer told him “it’s impossible you know everything you say you know, you’re too young to know that, they don’t teach molasses in Ecuador”;
• The Employer told the applicant that if he did not like an instruction he could “go back to Ecuador”;
• The applicant was late for work due to snow, recounted his time in Montreal, and the employer said to him “Oh you Ecuadorians are so full of shit, no one cleans the snow in Montreal”;
• The respondent made a number of generalized comments including: Ecuadorians are nice but “don’t do shit”; all Ecuadorians want is to get paid; “these Ecuadorians are lazy, all they want is to get their paychecks, but they don’t do anything”. The Tribunal noted that the respondent made similar generalizations about women cleaning toilets and “Asians being fussy”.

The Tribunal made clear findings that:

[105]   There can be no dispute that the above-noted comments are discriminatory: they are disparaging comments based on the prohibited grounds of place of origin and age.  They were vexatious to the applicant and ought reasonably to be known to be unwelcome.  This is borne out by his letter of December 1, 2016. The comments were made by the owner of the respondent business, Mr. McCann.  They constitute harassment contrary to the Code.

[106]   The harassing comments were made over the relatively short span of no more than 5 months, indicating that they were regular occurrences. They impugned the character of Ecuadorians and their attitude toward work.  They impugned the competence of Ecuadorians.  They impugned the competence of younger workers, despite education and qualifications. Comments such as these, especially where made by one’s employer, in addition to being hurtful, undermine the status and feelings of self-worth of the individual and are rightly considered to be of a serious nature. The comments were persistent and repeated, and it is fair to say that they had become a condition of the applicant’s employment (see for example George).  These were not “one off” comments and were something he had to endure on a regular basis.  I find that the result of the regular discriminatory harassing comments constituted a poisoned work environment.

Although there was some ongoing conflict in the workplace between the applicant and respondent, and although the respondent submitted three different warning letters provided by the employer as proof of poor performance, the Tribunal held that the applicant’s place of origin and age played at least a part in the decision to terminate.  Remember, discrimination does not need to be the only reason for termination in order to breach the Code.  In fact, it does not need to be a predominant reason.  If any part of the decision to terminate employment is influenced by prohibited grounds for discrimination, the termination is illegal.  Having already found that the employer had created a toxic work environment for the applicant, the Tribunal then ruled that it was “led to conclude on a balance of probabilities that the respondents’ motivation for terminating the applicant’s employment included his race, ancestry, place of origin and his age.”

For all of the foregoing reasons, the Tribunal found that the employer breached the Human Rights Code in the manner of harassing and discriminating against the applicant, including by terminating his employment based on discriminatory reasons.  It ordered a number of remedies accordingly:

• $20,000 in general damages to be paid to the applicant;
• $8,761.15 in lost wages paid to the applicant;
• Human Rights training for the respondent; and
• That the respondent develop and implement a proper human rights and anti-harassment policy.

The fact that the respondent was required, as an organization, to craft and implement a human rights and anti-harassment policy indicates that this is likely a smaller and less sophisticated employer organization.  However, being unsophisticated is no excuse for breaching the Human Rights Code.  There are fairly reasonable and straightforward steps an employer can take when faced with human rights-type complaints from an employee, as the employer was in this case.  Taking steps to terminate the complaining employee in short order is not one of those reasonable and straightforward steps.

This case has garnered some media attention, including comment from CCPartners’ newest counsel, Rishi Bandhu, in a recent issue of the Canadian HR Reporter.  If your organization needs guidance on how to remain compliant with the Human Rights Code, the professionals at CCPartners can provide legal advice, policy implementation, and training, tailored to your unique circumstances.

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