Law Times

Page 14 November 11, 2013 Law Times • FOCUS Racism finding flawed, unsupported by evidence Continued from page 10 Jones LLP partner in Toronto who represents employers in litigation, says companies that approach complaints in good faith should feel emboldened about taking action to break a deadlock with an employee in light of the Johnson decision. "At some point, you have to stand your ground. If they're refusing to return to work or demanding unreasonable accommodation, you can't be gun-shy about drawing lines because it can affect the morale of your workforce. There is a way to meet your human rights obligations and at the same time be firm about returning to work. This case is a good, strong signal that the law will protect you if you do those things." He says employers can be flexible when it comes to the formality of responses to complaints. "The scope of the investigation should be determined by the nature of the complaint. Not every one has to be a full-blown public inquiry," says Agarwal. Johnson's dispute with GM began in 2005 when Markov skipped a mandatory training session he was leading for body shop workers on new policies and procedures. After speaking with other colleagues, Johnson formed the view that Markov had refused training by him due to prejudice against black men, according to the decision. Markov, on the other hand, put his refusal down to an alleged 1997 incident in which he said Johnson had laughed at an insensitive joke about his murdered brother. Distressed by the outcome of the first two investigations, WHY Johnson got approval for medical leave under the care of a psychiatrist while a third investigation took place that eventually concluded there were reasonable grounds to believe Markov's perception of the 1997 incident whether or not it had actually occurred. After two years off work, a GM physician cleared Johnson to return. The company offered Johnson a similar job to his old one at two sites a kilometre from his old workplace, but he turned them down as he insisted he couldn't work at any GM plant. Instead, he wanted a job at the company's head office, its training centre or its old financing wing. In September 2007, Johnson received a letter from GM indicating it had concluded he was resigning from his employment as a result of his refusal to return to work or provide medical evidence of his disability. Four months later, Johnson sued for $500,000 for constructive dismissal. The trial judge awarded Johnson $160,000 in damages after finding Markov's refusal was "solely racially-based" and labelling his version of the 1997 incident as a "cover up of his discriminatory action." Markov died before the matter came to trial, a fact Ledger says made it easier for the appeal court to engage in a rare reversal of a trial decision on its facts. Since Markov never appeared as a witness, the trial judge was unable to make credibility findings about his evidence, something that would have attracted a greater degree of deference on appeal. "In a sense, it put GM at a disadvantage because they didn't get a chance to have the person accused of racism give the other side of the story," says Ledger. "On the other hand, it cut both ways because we could and did argue that the Court of Appeal was essentially in the same position as the trial judge. . . . They looked at the interview and investigation records and reached very different conclusions." The appeal court decided the racism finding was "at the core" of the trial decision but that it was flawed to such an extent that it was unreasonable and unsupported by the evidence. "Without the existence of underlying racism and the discriminatory treatment that the trial judge held flowed from it, there is no basis in law for the trial judge's additional finding of a poisoned work environment, leading to constructive dismissal," the judges added.LT Today, as I practice family law, I am confident and tenacious. I dreamed of becoming a lawyer in my teens, inspired by the lawyers I saw on television. However, as an immigrant woman of colour – except on the Cosby Show – they didn't look like me. As an adult, facing actual and perceived obstacles, I became a legal assistant instead. I worked for a lawyer who was intelligent and confident, but unlike most lawyers on television, she was also kind and socially conscious. With her blonde hair and blue eyes, she didn't look like me, but I dreamed of emulating her all the same. She encouraged me to follow my dream, while still keeping my young children a priority. Two years after meeting her, I was accepted into Osgoode Ha l l L aw Scho ol. Sh e celebrated my graduation with my family and me. Nineteen years after meeting her, I sat in my f i rst Masters in Law (ADR) class and unexpectedly, she was the guest lecturer. We both cried tears of joy! At that moment, I realized my life had come full circle, and I had followed the path that was meant for me. Today, I endeavour to pass on similar compassion and encourage clients, staff, future lawyers and others to conquer their fears and make changes in their lives, regardless of obstacles. WENT TO LAW SCHOOL To know a lawyer is to know someone passionate about solving the problems of the day. Cheryl Suann Williams, Fryer & Associates, is one of the 18,000 member lawyers of the Ontario Bar Association. Learn how the OBA advocates for this unique profession, and share your story at www.whyIwenttolawschool.ca. Untitled-4 1 www.lawtimesnews.com 13-11-04 4:21 PM

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