Law Times

Law Times • sepTember 10, 2018 Page 9 www.lawtimesnews.com Complaint made to human rights tribunal Worker wins damages after colleague says racial slur BY GABRIELLE GIRODAY Law Times T he Human Rights Tri- bunal of Ontario has ordered a man who used a racial slur to pay $1,000 in damages to a colleague who overheard the comment in a workplace lunchroom. The case involved an appli- cant, described as a "Black wom- an with Trinidadian ancestry," who was employed on a casual, part-time basis as a cleaner. In November 2014, the tribu- nal heard the woman was in a lunchroom with about 10 other employees of the same company. The woman overheard another colleague use the n-word, asking another employee "What was your last [n-word] job?" The woman complained to a supervisor and the com- pany launched an investigation, which substantiated the man's use of the slur. He was suspend- ed for five days without pay. In January 2018, the HRTO further ordered the employee to pay damages to the woman over injury to her "dignity, feelings and self-respect." "I am satisfied that the use of the term is inherently discrimi- natory and must be reasonably expected to be offensive and hurtful to any Black person. Indeed, it would be reasonably expected to be offensive to any person, regardless of race or co- lour, but especially so for a Black person," said Brian Cook, vice chairman of the tribunal, in a ruling made in January 2018. Tanya Walker of Walker Law PC in Toronto says she thinks the amount the woman received was "very low," given what she experienced. "If I were called that name, I don't think $1,000 could justify [it] or make me feel better. I have been called that name before and it makes you feel very anx- ious and stressed and brings you back to a time that you shouldn't think about when you're work- ing," she says. The woman filed the com- plaint in October 2015 against the company, later adding the other employee as a respondent in February 2016. The HRTO decision noted that the incident was "taken se- riously by the corporate respon- dent" and "a prompt investiga- tion" was done. In September 2016, the woman entered into a settlement with the company, but she chose to continue her complaint against the co-worker. The company was not named in the decision. The applicant was represent- ed by Rani Khan, legal counsel with the Human Rights Legal Support Centre in Hamilton, Ont. No one appeared on behalf of the respondent at the tribunal. Khan says one of the implica- tions of the case is that, when it comes to discriminatory com- ments or conduct in the work- place, employers and employees can be held liable "both jointly and severally." "In this case, particularly, it was the employee [who was held to be liable]," she says. She also says the case speaks to the issue of vicarious liability. "The type of conduct that this employee engaged in — a dis- criminatory comment during the course of his employment — would normally be covered un- der vicarious liability of the em- ployer; however, he was found [to be] separately liable," she says. "An employee won't necessar- ily be immune to liability even where their conduct falls under what's characterized as vicari- ous liability, [such as] comments or conduct in the course of their employment," she added. Khan says the case is also noteworthy because the appli- cant was not the object of dis- crimination and happened to overhear it in the workplace. "That's an interesting dy- namic. We haven't seen it too of- ten at the Human Rights Tribu- nal," she says. "It's generally the individual who is the object of discrimination or who has had the discriminatory comment directed toward them that have enforced their rights under the Code." In addition to the damages, the woman also wanted the tri- bunal to order her co-worker to take training in human rights. However, the ruling said that, because the woman had settled with the company, there were no longer means to order the com- pany to make sure the co-worker received the training. "In this case, the corporate respondent is no longer a party to the Application. It cannot therefore be directed to ensure that the personal respondent receives training," said Cook in the ruling. "However, I find that it is appropriate for the Tribunal to send a copy of this decision to the corporate respondent so that it is aware of the findings of the Tribunal about a matter affect- ing its employees." Andrew Monkhouse, of Monkhouse Law in Toronto, says it's more common for peo- ple to pursue claims against their employer, not other employees. "I think for a client who's experienced this, it shows that the HRTO is a valid option for pursuing it, and, obviously, this person was able to get what they asked for — they asked for $1,000, the tribunal awarded that. So, I think that that's ben- eficial," he says. Walker also says companies need to have mechanisms es- tablished for dealing with com- plaints. "[Companies] should take it seriously and investigate it right away," she says. LT FOCUS Tanya Walker says companies need to take complaints from their employees seriously and investigate issues right away. 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