ONTARIO BOARD OF INQUIRY

Mike Naraine v. Ford Motor Company of Canada Ltd., et al. .

Before: Constance Backhouse

Decision of the Board: March 11, 1997; December 9, 1996; July 25 1996

Upheld by Ontario's Divisional Court: The Honourable Mr. Justice P.T. Matlow, The Honourable Mr. Justice J.B.S. Southey, and The Honourable Mr. Justice D.F. O'Leary

Ontario Court of Appeal lay down strict parameters on issues for review in Ontario Human Rights Commission v. Naraine (May 8, 2000) G.D. Finlayson J.A., J.M. Labrosse J.A., S.T. Goudge J.A.

December 14, 2001: Ontario Court of Appeal reverses the Board of Inquiry decision on reinstatement and upheld all of the other remedies Ontario Human Rights Commission v. Naraine (December 14, 2001) Catzman, Abella, Sharpe.

Board Decisions [ Race; Colour; Place of Origin; Ethnic Origin; Racism; Poisoned Work Environment; Termination of Employment; Delay; Expert Testimony; Racial Slurs; Damages; Costs]

The Board's July 1996 decision in Naraine v. Ford Motor Co. Ltd. represented a significant step forward for cases involving race discrimination. The complainant, an East Indian man originally from Guyana, worked for the Ford Motor Company in Windsor for over nine years. He alleged that, during that time, his working environment was poisoned by racist graffiti and by racist verbal comments that were directed at him and, in some instances, directed at other visible minority employees. The complainant also alleged that he was given inferior work assignments and training, and that he was subject to a higher level of scrutiny and discipline than were other employees. In the later three years of his employment, Mr. Naraine was subject to progressive discipline, ultimately resulting in his termination for an alleged altercation with a co-worker. The Commission put forward the arguments that both Mr. Naraine's behaviour and his treatment by the company was, in part, a product of the poisoned environment.

The Board held that name-calling and graffiti should be recognized for their inherent destructive effect on racial equality in the workplace. The Board concluded that the respondent failed to take seriously or investigate the allegations of unfair treatment that were raised by the respondent. It further determined that there was sufficient evidence of direct supervisory involvement of, and knowledge of, the poisoned work environment to establish corporate liability. The Board held that a causal connection between the poisoned environment and the complainant's termination was established. However, the Board found that this was not an appropriate case for any findings of personal liability given the systemic nature of the racial discrimination.

The issue of damages was decided in the Board's December 1996 decision. Although rarely awarded at Boards of Inquiry, the board awarded reinstatement, in accordance with Mr. Naraine's wishes. Additionally, the board ordered the respondent to pay special damages, including seniority, pension benefits, employment benefits and vacation entitlement to Mr. Naraine for the amount that Mr. Naraine would have earned in his position from the date of discharge to the date he assumed employment with another company. The respondent was also ordered to pay $30,000 in general damages: $20,000 as compensation for the "intrinsic value of the infringement of his rights and as compensation for the experience of victimization", and $10,000 for "mental anguish caused by the respondent's recklessness in contravening the Code". The board also awarded pre-judgement interest.

The Respondents’ cost application was decided in March 1997. The Board denied the application and held that this was not a case which meets the statutory requirements regarding cost orders under the Code.

The respondents has filed a notice of appeal of the Board's decisions and the matter was heard in Divisional Court in the February 1999. In a decision dated June 23, 1999, a three judge panel unanimously dismissed Ford Motor Company appeal.

Ford Motor Company has filed an application for leave to appeal at the Ontario Court of Appeal and leave was granted.

The matter was originally set down to be argued on May 08, 2000 but was put over to another date to be set by the Registrar for reasons cited in the endorsement of court:

[1] A serious issue has arisen concerning the meaning of the endorsement granting leave to this court. That endorsement was in the following terms:

Did the Divisional Court err in failing to recognize the legal significance of the fact of the respondent’s dismissal for cause because of an assault on a fellow employee?

[2] The leave granted does not extend to a review of the finding of systemic discrimination. Rather, the question is, in light of jurisprudence such as Weber v. Ontario Hydro what is the effect, if any, of the arbitration award on the jurisdiction and power of the Board of Inquiry to grant the remedy of reinstatement. [3] Accordingly, the matter is adjourned with leave to the parties to file fresh factums, if advised, addressing this sole question. No costs of today.

A three member panel of the Court of Appeal, M. A. Catzman, R. S. Abella, and Robert J. Sharpe, JJ.A., heard argument on the appeal on Friday, November 3rd, 2000 and has reserved its judgment.