Meeting 35: Poisoned Work Environment

Y.Z. v. Halifax (Regional Municipality) 2019 (No. 2)

Summary

• Y.Z. was employed as a mechanic within the Halifax Metro Transit maintenance department.

• Y.Z.’s wife identifies as African Nova Scotian and has a band status card.

• In the late 1990s, Y.Z. and his wife attended a barbeque organized by the Metro Transit Workers Union. During the barbeque, Arthur Maddox a supervisor in the maintenance department at Metro Transit commented loudly towards Y.Z. and his wife “who invited these people here?....We don’t want those kind of people here, they weren’t invited”.

• In 2000, Y.Z.’s wife called Metro Transit to speak with her husband regarding a family emergency. The phone was answered by Mr. Maddox who refused to connect Y.Z.’s wife to her husband or communicate the message. She made a written complaint to a supervisor at HRM about the behavior of Arthur Maddox. No response was provided to Y.Z. or his wife re this complaint until four (4) years later, where at the suggestion of the Della Risley Report (2003), the supervisor sent a letter on January 16, 2004 stating “we took your complaint on Arthur’s conduct to him and appropriate action was taken”.

• Y.Z. was associated with two other workers (Mr. Buckle and Mr. Symonds) who were also subject to racist comments, threats, graffiti.

• Mr. Maddox was terminated in 2001 due to an incident involving Mr. Symonds, but was reinstated a year later, with six months' back pay, as part of an agreed settlement of a grievance he initiated.

• On October 10, 2002 while in the mechanic garage, Mr. Maddox drove a bus towards Y.Z. at a speed and proximity that caused Y.Z. to leap out of the way, while noting Mr. Maddox laughing in his direction as the vehicle sped by.

• On several occasions Y.Z.’s work bench was covered with garbage and during his attempts to use the bathroom wet paper towels were often thrown over the cubicle at him.

• In 2003, Della Risley a human resources officer at HRM conducted an internal investigation and prepared a written report due to several complaints made to the Mayor’s office by Y.Z., Mr. Buckle and Mr. Symonds concerning their allegations of discrimination in the workplace.

• At the recommendation of Risley, Y.Z.’s wife was contacted regarding the phone complaint she had made in October 2000 and attempts were made by HRM to provide some education and training in relation to workplace rights. On July 13, 2006, Y.Z. filed a formal complaint with the Nova Scotia Human Rights Commission against HRM Metro Transit Maintenance Department alleging discrimination related to race, colour or aboriginal origin, of persons with whom he associated.

• On July 13, 2006, Y.Z. filed a formal complaint with the Nova Scotia Human Rights Commission against HRM Metro Transit Maintenance Department alleging discrimination related to race, colour or aboriginal origin, of persons with whom he associated.

Issues

1. Does Y.Z fall under a protected ground under the Human Rights Act? (YES)

2. Did Y.Z suffer a disadvantage/harm and specifically was he exposed to a poisoned work environment? (YES)

   1. Was Y.Z’s protected ground a factor or connected to the discrimination?

   2. Specifically, was “race” or “association with those of race” a factor or “connected” to the harm or disadvantage?

3. Is HRM vicariously liable for the actions of its employees? (YES)

Analysis

Protected Grounds

• The Human Rights Act protects the right to associate with people who identify as racialized also referred to as People of Color.

• Y.Z’s partner was self-identified as being Black and also had her Band status card.

• There was ample evidence of Y.Z’s association at work and support of Mr. Symonds in his struggles at the workplace and in his complaints, as well as during the investigation by Della Risley.

• There was ample evidence of Y.Z’s association with Mr. Buckle and the contact they had during shift change.

• Y.Z’s right to associate with people of color entitles him to protections under the Human Rights Act.

Disadvantage, Harm & Poisoned Work Environment

• Mr. Buckle and Mr. Symonds both experienced discrimination in the workplace due to their race as exampled by the several incidents that occurred during their employment (ex. language, threats, graffiti etc.)

• Y.Z’s association with both individuals was connected to and in part the cause of the discrimination he experienced.

• Y.Zs work life was overall negatively impacted in several ways because of his marriage to his wife, his association with Mr. Buckle and Mr. Symonds and because they all brought forward complaints of inappropriate conduct in the workplace. HRM’s Vicarious Liability

HRM’s Vicarious Liability

• HRM management was aware of the racial statements being made and actions being taken in the workplace.

• In the early years of Y.Z’s employment management did not effectively investigate and discipline when inappropriate racially motivated statements were made and actions committed.

• HRM management additionally did not do enough to shut down these types of discriminatory behaviors in the workplace they “allowed a bully who made racist statements to follow employes [to] run rampant in the workplace.”

• It was not until the Della Risley Report (2003) that management began the process of ensuring there was education and training in relation to workplace rights. For Y.Z, this training came too late.

• Ultimately, despite management’s efforts to improve the situation after the Della Risley Report, little was done leading up to the termination of Mr. Maddox to ensure that individuals in the workplace were not subjected to his behavior.

• HRM holds vicarious liability for the discrimination experienced by Y.Z.

Decision

• After several delays for procedural motions, the NS Human Rights Board of Inquiry hearing took roughly 38 days spread out over nearly 14 months, ending in March 2017. It took until March 2018 to determine that:

  • Y.Z. had been harassed/discriminated against on prohibited grounds (his association with people who were Black, First Nations, or Inuit)

  • Halifax was vicariously liable for the harassment/discrimination

  • Halifax did not do enough to address the comments/actions and poisoned work environment

The Commission's Board of Inquiry requested additional submissions on damages (both general and loss of income), interest, deduction of LTD benefits, tax treatment of the award(s) and any other public interest remedies. Y.Z. had not worked since January 2007.

• The damages decision took a further 14 months (May 2019)

• General damages to Y.Z.: $80,000 plus interest

• General damages for Y.Z.'s spouse: $25,000 plus interest

• Future Care costs: $43,350 (less 50%)* • Past and Future Income Loss: $866,154 (less 50%)*

• GRAND TOTAL: $593,417

• (*some of Y.Z.'s health issues were unrelated to the harassment/discrimination)

A.B. v. C.D., 2022 HRTO 890

Summary

• A.B was employed by C.D. and operated in a variety of roles including bookkeeping, office management, finance management and sales. Her employment was "on and off" during the period from 2007-2014.

• During her time working for C.D., A.B. was subjected to the following:

  • Mocking related to her weight, intelligence, appearance, and the fact that she walked with a limp (referred to by C.D. as "waddling")

  • A workplace where sexual "jokes" and the viewing of pornography were commonplace

  • A pattern of abuse, followed by gift-giving, followed by statements that A.B. "deserved" and "enjoyed" the treatment she was subjected to

  • A.B. witnessed C.D. yelling, swearing, using gendered and racial slurs, throwing things, and groping another female employee oDenial of washroom and meal breaks

  • Sexual harassment toward A.B.'s 17-year-old daughter, including a suggestion by C.D. that he would perform a sex act on the daughter

• The impact this had on A.B. was significant, and was compounded by her personal history of having been in an abusive marriage, a fact that C.D. was aware of and used to taunt A.B.

• A.B. would often be reduced to tears at work, and C.D. taunted her for that as well

• A.B. quit her job in 2011 due to the abuse, but money problems forced her to return, following which she was paid less and abused more

• She resigned for good in 2014, at which point she felt sick, depressed, and anxious. She sought medical help and counseling. She received both EI sick and regular benefits as a result of relaying the circumstances of her resignation

• She was able to secure new employment roughly one year after her resignation

The Application was filed in late 2014. The decision was delayed until mid-2022, largely due to the actions of C.D. In particular, he:

• Withdrew consent to mediate shortly before the mediation date in 2015

• Requested an adjournment after the first hearing date in February 2016 and requested the next dates (April 2016) be rescheduled also

• Showed up to the hearing in December 2016 while visibly ill, claimed strep throat, and asked for all 3 December hearing dates to be canceled

• Interrupted A.B.'s testimony by sitting in the back of the room with a roll of toilet paper, taking his shoes off, leaping to his feet and otherwise behaving so erratically the Chair questioned his competence (June 2017). He also admitted that in December he had likely just been hungover

• Weeping and shouting that he could not be in the same room as his "abuser" (meaning A.B.) when it was his turn to testify (Nov 2017), then made irrelevant and inappropriate remarks and asked for an adjournment because he was feeling ill and demanded an ambulance be called C.D. then requested the Vice Chair be replaced (March 2018) because his request for medical attention was "not accommodated" and he "feared for his safety". This request was denied, re-filed, and denied again.

• He refused to complete his testimony (Sept 2018), commenced an Action in Superior Court against the Vice Chair personally for over $1,000,000 (lost), appealed (lost again, May 2021).

• C.D. then sought dismissal on the basis that A.B.'s final submissions were 1 day late, and argued that A.B. participated in the bad behaviour in the office and all of her problems were due to her personal life

• C.D. was not found to be a credible witness, and he never gave evidence responsive to the allegations.

Issues

1. Did A.B. experience sexual harassment and/or discrimination? (YES)

2. Was A.B. exposed to a poisoned work environment? (YES)

3. Is C.D. liable for the harassment and/or discrimination that took place? (YES)

Analysis 

Sexual Harassment and/or Discrimination

• Section 5(1) of Ontario’s Human Rights Code (Code) protects against sex discrimination in employment.

• To prove that they experienced sex discrimination in employment, A.B. must prove that they experienced adverse treatment, and that sex was a factor in it.

• Section 7(2) of the Code prohibits sexual harassment in the workplace.

• Section 10(1) of the Code defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

   

Poisoned Work Environment

• A “poisoned work environment,” is a form of discrimination prohibited by section 5(1) of the Code.  It exists when there has been:

  • a particularly egregious, stand-alone incident, or

  • serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated enough that it becomes a condition of the complainant’s employment.

• To determine whether a poisoned work environment exists, relevant factors include:

  • the number of comments or incidents;

  • their nature;

  • their seriousness; and

  • whether taken together, it became a condition of the applicant’s employment that they must endure discriminatory conduct and comments.

• Subjective experience or genuinely held beliefs are not determinative. There must be evidence that the workplace was poisoned from the perspective of the objective bystander.

• In reviewing the experiences of A.B in the workplace The Human Rights Tribunal noted:

“The more vulgar or aggressive incidents described by the applicant, including the gendered and sexual comments made to the applicant’s daughter when she was a minor, are sufficiently egregious as stand-alone incidents to constitute a poisoned work environment. Taken together, the incidents the applicant described are sufficiently serious and repeated that any reasonable person would conclude that it became a condition of the applicant’s employment that she must endure the discriminatory and harassing comments and conduct of the respondent to keep her job. The evidence is clear that the bullying and harassment the applicant experienced was an abuse of power, exercised in part because she is a woman, that created a poisoned work environment.”

Liability

• Section 46.3(1) of the Code provides that—with some exceptions—any act or thing done or omitted to be done in the course of their employment by an officer, official, employee or agent of a corporation, etc. shall be deemed to be an act or thing done or omitted to be done by the corporation, etc.

• A corporation cannot be held vicariously liable, however, for its employees’, agents’ or officers’ acts of sexual harassment.

• Complaints of sexual harassment must be brought against the individual who actually committed the harassment.

• HOWEVER, if management employees fail to take appropriate action to prevent discriminatory harassment in the workplace once they know of the offending conduct, they are creating a poisoned work environment and they may be found personally liable for infringing an employee’s right to a workplace free from sex discrimination under s. 5(1). The employer may be found vicariously liable for this violation.

• Finally, if the individual responsible for the harassment is a directing mind of the employer, the employer can also be held liable for the individual act of harassment.  

• A.B had nowhere to go within the organization to report C.D’s conduct and no appropriate actions to address his conduct was taken.

• The respondent C.D. was the owner of the business and also the directing mind of the corporation.

Decision

• A.B experienced sex discrimination, and her work environment was poisoned by repeated acts of discrimination and harassment by the respondent causing her to resign from her employment.

• The organizational respondent can be found jointly and severally liable for the conduct of C.D.

• The following awards are granted: 

  • Damages for Injury to Dignity, Feelings and Self-Respect: $25,000.00

  • Lost income: $31, 200.00

  • Various public interest remedies