Fired because of Race? Consider a Human Rights Claim This blog is co-written by our former articling student, Linda Noorafkan. In 2018, a group of eight Caucasian employees of the Spruce Hill Resort and Spa Ltd. (“the Resort”) in British Columbia made a complaint to the British Columbia Human Rights Tribunal (“the Tribunal”), in which they alleged that they had been terminated from their employment because they were not Chinese. The Tribunal found that seven of the employees had been discriminated against on the basis of race and colour, and one employee had been discriminated against on the basis of sex. The Resort was required to pay a total of $113,141.01 as compensation for lost wages and $60,000.00 as compensation for injury to dignity, feelings and self-respect, for a total of $173,141.01. The group in Eva obo others v. Spruce Hill Resort and another (“Spruce Hill”) made the claim against the Resort and Mr. Kin Wa Chan. Mr. Chan had recently purchased shares of a company that owned a resort, and as a result, took full control of the resort. The group alleged that they had been discriminated on the basis of race, colour, ancestry, and place of origin, contrary to s. 13 of the British Columbia Human Rights Code (“Code”). Some employees indicated that they were terminated by the Resort, while others chose to resign from their positions because of the discriminatory working environment. All of the employee complainants left their positions within days of each other. The group alleged that the discrimination occurred over “several months and culminated over several days in August 2016.” One of the employees also alleged that there was one instance of discrimination on the basis of sex by Mr. Chan, contrary to s. 13 of the Code. (1) DISCRIMINATION BASED ON RACE AND COLOUR With respect to race and colour discrimination, the Tribunal was faced with four main issues: (1) whether Mr. Chan stated that he wanted to replace Caucasian employees with Chinese employees; (2) whether Mr. Chan reduced the hours of Caucasian employees, and instead, provided those hours to Chinese employees; (3) whether some of the employees were fired because they were not Chinese; and (4) whether the employees who resigned did so because of discrimination in the workplace. All four issues were answered in the affirmative by the Tribunal. The Tribunal assessed the credibility of each employee and Mr. Chan, who testified at the hearing. Employee diary entries were also considered by the Tribunal. The Tribunal found that while each employee was credible, Mr. Chan was “less credible than the complainants.” Since Mr. Chan did not have “a detailed recollection of events” and conversations, the Tribunal accepted the evidence of the complainants over that of Mr. Chan. The Tribunal found that Mr. Chan had, in fact, stated that he wanted to replace the Caucasian employees with Chinese employees in order to lower labour costs. For example, Mr. Chan was heard: “… yelling and using words to the effect that “white people” were too slow and Chinese workers were faster and cheaper. On other occasions, [one employee] heard Mr. Chan use words to the effect that Canadians are too slow and cost too much, and that Chinese students work, do not complain, and do not need to be paid overtime.” Mr. Chan had also acted on those statements by demoting employees, terminating employees, and consistently expressing his desire to replace Caucasian employees with Chinese employees. The latter resulted in several employees resigning from their positions because of the discriminatory work environment. Despite Mr. Chan’s denials, the Tribunal found that “his stor[ies] d[id] not harmonize with what he actually did, what credible witnesses heard him say, and with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” It is important to note that, while the Tribunal concluded that “the Complainants are not members of a group that has been historically discriminated against [,]” the fact of the matter was that they were “subjected to a poisoned work environment due to racism.” The Tribunal considered the 2017 Supreme Court of Canada decision in British Columbia Human Rights Tribunal v. Schrenk in which the court concluded that “the structure of the Code supports an approach that views employment as a context requiring remedy against the exploitation of vulnerability.” As such, to determine the employees’ compensation for injury to dignity, the Tribunal considered that employees are “particularly vulnerable” in contrast to their employers, especially since many employees have few other employment alternatives. (2) DISCRIMINATION ON THE BASIS OF SEX One of the employees, Ms. Eva, indicated that she was sexually harassed by Mr. Chan during a business trip to China. While Mr. Chan did not dispute the facts of what occurred during the trip, he disputed the interpretation of those events. Instead of booking separate hotel rooms, Mr. Chan had booked one hotel room, which had a bathroom with a glass divide, for him and Ms. Eva. Once Ms. Eva realized this, conflict ensued in the hotel room. Ms. Eva felt that Mr. Chan booked one room because he wanted “sexual favours” from Ms. Eva, while Mr. Chan claimed that he wanted to save money by booking one room. The Tribunal found that Mr. Chan’s actions amounted to sexual harassment, in contravention of the Code. The Tribunal found that Mr. Chan’s evidence was not credible. Rather, it was “more probable than not than Mr. Chan wanted to share a hotel room with Ms. Eva for sexual purposes.” What does this mean for employees and employers? The Tribunal took into account the vulnerability of employees in finding that the employees were discriminated based on race and colour. This decision confirms that an employer’s expressed preference to hire employees of a particular group can constitute discrimination against Caucasians, even though this group has not been historically discriminated against. Although Spruce Hill is a British Columbia decision, the decision and reasoning are consistent with the law in Ontario. If you would like more information or legal advice on this subject, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawOctober 31, 2019July 5, 2023
Denied a Job Due to Lack of Canadian Work Eligibility? You May Have Been Discriminated Against If you have recently been denied a job due to a lack of proof of permanent eligibility to work in Canada, you may be entitled to compensation under Ontario human rights law. In a decision last year from the Ontario Human Rights Tribunal, Haseeb v Imperial Oil Limited 2018 HRTO 957, an employer (Imperial Oil) refused to hire the applicant to whom they offered a job (Mr. Haseeb) after the job applicant failed to provide requested documentation regarding his legal authorization to work permanently in Canada. Mr. Haseeb, an international student, was a recent graduate of McGill University’s engineering program, and only possessed a postgraduate work permit for up to three years. The applicant anticipated he would attain permanent residency status within three years. Imperial Oil required graduate engineers to have permanent residency or citizenship to be eligible to apply for a permanent full-time job at their company. To circumvent this requirement, Mr. Haseeb repeatedly answered positively when asked about his eligibility to work in Canada on a permanent basis. These responses were false, as he only had a temporary work permit. Although Mr. Haseeb was offered a job at Imperial Oil, the company later rescinded the offer about one month following the deadline for acceptance. The Tribunal found that Imperial Oil did not rescind the offer due to Mr. Haseeb’s dishonesty, but rather because Mr. Haseeb did not provide required permanent work eligibility documentation when it was requested. The Human Rights Tribunal concluded that the employer’s hiring policy was directly discriminatory on its face towards international students. This meant that Imperial Oil was not permitted to rely upon the defence that permanent work eligibility was a bona fide occupational requirement. Moreover, the Tribunal determined permanent work eligibility could not have been required (i.e., an occupational requirement) to do the job effectively, as Imperial Oil was found to have recruited individuals without permanent work eligibility where their skills were particularly sought-after. If you would like more information on discrimination in hiring practices, or would like legal advice on being denied a job for discriminatory reasons, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 23, 2019September 30, 2020
When Discrimination is Not Prohibited: Housing Caleb Pheluong, a Vancouver resident, was served eviction papers once his landlord discovered that he intended to have his boyfriend stay over one night. The landlord expressed to him via text message that homosexuality was against her “Christian beliefs” and she could no longer have him living in her house. Is this discrimination? Sexual orientation is a protected ground under Human Rights Codes, and the landlord, in writing, expressed that his sexual orientation was the reason for his eviction. According to the B.C. Human Rights Code, no, it is not unlawful discrimination. And the answer would be no different in Ontario. Both Codes prohibit discrimination in accommodation and list sexual orientation as one of the grounds that are protected. This means, for example, that sexual orientation cannot be a reason for refusing to rent to a tenant. However, the Codes provide an exception for landlords who provide accommodation in dwellings that they also occupy. In Ontario, section 21(1) expresses that landlords who share either a kitchen and/or a bathroom with their tenant are exempt from the prohibitions on discrimination. Sharing a bathroom or kitchen with your landlord or their family takes you out from under the protection of the Human Rights Code and leaves you vulnerable to discrimination without legal recourse. Caleb fell victim to this loophole; he has no right under the law to remain a tenant in his present house or be compensated for the discrimination he faced. If, however, you fall outside this exception, you do have protection under the Code from such discrimination in accommodation. A recent Ontario Human Rights Tribunal decision awarded a couple $12,000 for their landlord’s discriminatory attitude and actions when he failed to accommodate their religious practices while he was re-letting the apartment they were vacating. The landlord’s refusal to agree to their requests, such as removing outdoor shoes before entering their prayer space, was held to be discrimination under the Code. Two very different legal outcomes from what appears to be acts of discriminatory conduct from a landlord towards a tenant. What these tenant situations illuminate is the difference in treatment of tenants who rent shared spaces with those who rent self-contained, private spaces. For information or assistance in regards to protections and legal recourse for human rights claims please contact one of our Human Rights Litigation Lawyers. By: Samantha Hamilton, Student-at-Law “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawAugust 24, 2017June 19, 2020
The Legality of Refusing to Bake a Wedding Cake Because of Sexual Orientation By: Michelle Cook, Summer Law Student In Canada, it is illegal to discriminate against people on the basis of sexual orientation, especially in the case of commercial business services available to the public. However, a legal case challenging the ability to discriminate against individuals for their sexual orientation because of religious reasons is headed to the U.S. Supreme Court. With Donald Trump’s Supreme Court appointment of Neil Gorsuch, who is clearly pro-religion, anti-LGBT rights, swinging the majority of the Supreme Court to conservative-leaning judges, it appears the U.S. may return to an era where LGBT individuals can be openly discriminated against in the name of “religious freedom.” The Colorado case involves a Christian baker who refused to make a wedding cake for two men. Colorado is one of a few states that have anti-discrimination laws protecting LGBT individuals. The bakery, Masterpiece Cakeshop in Lakewood, was charged with violating the state’s discrimination laws. The state’s civil rights commission ordered the baker to provide wedding cakes on an equal basis for same-sex couples. Instead of complying with the commission’s order, the owner, Jack Phillips, refused to comply with it. Instead, he brought an appeal of the decision based on the 1st Amendment’s guarantee of the freedom of speech and the free exercise of religion. Phillips will also argue that as a baker, he should have artistic freedom that is not regulated by the state. The Colorado Supreme Court refused to hear the case, prompting Phillips to appeal the decision to the U.S. Supreme Court. Masterpiece Cakeshop has received a mixture of backlash and support for his decision. Interestingly, Phillips has noted that he has never strayed from his biblical teachings, even refusing to make cakes to celebrate Halloween, “anti-American or anti-family” themed cakes or ones that have a profane message. This is occurring in the U.S. while Toronto gains recognition as one of the top three most LGBT-friendly cities in the world. That is not to say that discrimination against LGBT individuals does not occur in Canada. In fact, this year a Montreal photographer named Premiere Productions refused to photograph a gay couple’s wedding. While no lawsuit was brought against them, it is clear that this conduct was illegal. This shows that while support for LGBT rights is increasing in both Canada and the U.S., there is still a fight to be made for true equality. What will be interesting to see is how the new conservative U.S. Supreme will delineate the ability to be able to discriminate against individuals based on religious values. Despite the rhetoric of American politicians, homosexuality is not a choice; someone is genetically born with a sexual orientation. Why is it still acceptable to openly discriminate against someone for who they love (an inherently personal matter) but unacceptable to openly discriminate against someone for their skin tone? At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJuly 4, 2017June 22, 2020
Challenging the Safe Streets Act By: Nicolas Di Nardo A law created in 1999 known as the Safe Streets Act is being challenged by the Fair Change Community Legal Clinic on the basis that it discriminates against people with mental health and addiction issues. Leading this dispute is Gerry Williams, along with the Fair Change Community Legal Clinic. Williams shares his experiences of being homeless and the amount of fines he was given over 9 years while trying to survive. Since then, he has overcome homelessness, has a job and a place to live. Gerry suffered from alcoholism and undiagnosed mental health issues, but is a very different person today. Before he was able to get the help he needed to thrive, he suffered. He managed to be handed $65,000 in fines over 9 years ago while homeless, all of which were given to him through provincial offences and convictions. These included: Loitering Littering Drinking in public Trespassing Gerry determined that approximately $10,000 worth of his tickets were issued through the Safe Streets Act while he was panhandling to survive. This law was intended to limit the aggressive behaviour brought on by people asking for money on the street, which also included squeegeeing. Williams is now part of a constitutional challenge to the Act, which was filed by the legal clinic last Wednesday. Fair Change has spoken up about the issues with this law, stating it is: Impacting people with mental health and addiction issues Costing the public $2 million in court fees and paperwork Fines under the act will likely never be paid Ruined credit scores, limiting opportunity for housing, drivers license, or work after being convicted under the Act Hurts people that are already vulnerable Increases homelessness Poverty remains the most pressing human rights issue in Canada, however, Joanna Nefs says the law is not doing anything to help fix that. Laws that are criminalizing people in poverty does not line up with the goal to end poverty, or the Human Rights Code, which Renu Mandhane, chief Commissioner for the Ontario Human Rights Commission is making reference to the Safe Streets Act as one of those laws. Fair Change is looking for the law to be repealed rather than fighting it, and this is not the first time. MPP Cheri DiNovo tabled private members’ bills in 2015 and 2016 for the Act to be repealed. Please check back to our blog for more update and developments to this story. Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJune 26, 2017June 22, 2020
Requiring Customers to Come to Stores Has Been Deemed Discriminatory By: Michelle Cook, Summer Law Student Could companies that require their customers to come into their physical stores be guilty of discrimination? A human rights adjudicator seems to think so. In Mills v Bell Mobility Inc, Canadian Human Rights Tribunal member Edward Lustig awarded $10,000 plus interest in compensation for Ms. Mills’ pain and suffering as a result of being required to attend at a Bell store. The Tribunal found that a phone activation policy that required customers to physically present themselves in the company’s stores, thereby endangering the health of some disabled persons, amounted to discrimination based on disability, in contravention of the Canadian Human Rights Act. Bell, one of the many companies that has such a policy, could not justify why disabled persons could not be accommodated through other methods of communication, such as Skype or Facetime. Ms. Mills was disabled as a result of cancer in late 2013 and a stroke that nearly killed her in 2014. Ms. Mills was bedridden, extremely weak and partially paralyzed. Her physician has instructed her to stay home, unless an emergency required her to leave. Her son had made attempts to activate her phone on her behalf, including an offer to come to the store with all Ms. Mills’ identification documents, including a valid Power of Attorney. However, Bell stood by their in-person policy and took the position that that its activation standards policy was necessary in order to combat identity fraud. Ms. Mills eventually relented and attended at a store to have her phone activated. She then commenced a human rights complaint. Interestingly, while she was ultimately successful in getting an award for pain and suffering, the CHRT member refused to find that Bell had committed reckless or wilful discrimination, citing its reputation as a company that “usually cares about its customers, including disabled Canadians,” especially its efforts to combat mental health stigma. For more commentary see: Law Times News Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJune 26, 2017June 22, 2020