Abadi v. TST Overland Express

Abadi v. TST Overland Express
Collection
Canadian Human Rights Tribunal
Date
2023-08-14
Neutral citation
2023 CHRT 30
File number(s)
HR-DP-2789-22
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Grounds
Disability
National or Ethnic Origin
Race
Religion
Summary:
The Tribunal found that coworkers of Mr. Abadi at TST Overland Express (TST), a trucking company, harassed him for fourteen years. The Tribunal also found that TST discriminated against Mr. Abadi based on his disability when TST ended Mr. Abadi’s employment.
Starting in 2006, coworkers ridiculed Mr. Abadi for his accent, origin and having immigrated to Canada. In 2009 or 2010, the company dispatcher put posters on a bulletin board in the workplace. The posters had company pictures of or drawings about Mr. Abadi with discriminatory comments added to them. People at work called him by demeaning names. They said that individuals in news reports about terrorism were his cousins and referred to a former Libyan leader as his uncle. They suggested that, when visiting his family, he might be visiting a terrorist camp and become a terrorist. About 85% of the drivers at TST called him by demeaning names. This continued until TST ended his employment.
The conduct was unwelcome, occurred repeatedly and related to actual or perceived race, national or ethnic origin and religion. TST did not have an effective harassment policy in place. TST’s on-site management was aware of the harassment, did nothing to stop it and tolerated it. TST did not show due diligence to prevent, mitigate or avoid the effects of the harassment. The Tribunal rejected TST’s arguments that the harassment happened so long ago that it would be unfair for the Tribunal to rule on it.
In 2019, TST ended Mr. Abadi’s employment when he did not return on time from a vacation. The physical impairment that Mr. Abadi developed while on vacation was a disability that had prevented him from returning to work on time. Initially, Mr. Abadi told TST that no flights were available. After TST notified Mr. Abadi that he must return to work within three days, Mr. Abadi sent pictures to TST that showed his medical condition. Mr. Abadi’s explanation for why he did not share his medical details earlier was understandable given his experience of having been harassed. Disability was a factor in TST’s decision to end his employment.
TST did not establish any defences. Mr. Abadi had sought two weeks of unpaid leave so that he could get medical clearance to fly home. TST established no bona fide occupational requirement that would have prevented this accommodation. The information Mr. Abadi had sent was enough to let TST know that he had a health issue. TST did not ask for more medical information when making the decision to end his employment. There was no evidence that accommodating Mr. Abadi’s request would have caused TST undue hardship. TST’s termination of Mr. Abadi was a discriminatory practice.
In contrast to the findings on disability, the Tribunal did not find that actual or perceived race, origin and religion were factors in TST’s decision to end Mr. Abadi’s employment.
Mr. Abadi held other jobs after working at TST, but they were not comparable to his job at TST. During a six-month trip to visit family, Mr. Abadi did not make reasonable efforts to find comparable employment. This trip broke the causal link between the discrimination and his loss of income. The Tribunal ordered $44,731 in lost wages and directed the parties to calculate amounts for vacation leave and pension contributions for the months between the end of his employment and his six-month trip. The Tribunal also ordered $17,000 for pain and suffering, $12,000 for TST’s recklessness, and interest from the date of termination.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT
30
Date:
August 14, 2023
File No.:
HR-DP-2789-22
Between:
Amir Jafari Ebrahim Abadi
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
TST Overland Express
Respondent
Decision
Member:
Athanasios Hadjis
Table of Contents
I. Introduction 1
II. Decision 1
III. Harassment allegation 2
A. Issues 2
B. Analysis 4
(i) Mr. Abadi experienced the conduct that he alleges in support of his harassment complaint 4
(ii) The conduct was related to national or ethnic origin, religion, and race 10
(iii) The conduct was unwelcome 11
(iv) The conduct was persistent and repetitive, which created a poisoned work environment 13
(v) Mr. Abadi did not need to notify the employer of the harassment in the circumstances 14
(vi) TST did not establish its defence under section 65(2) of the Act 21
(vii) TST did not establish its defences linked to the alleged late filing of the complaint 24
IV. Termination allegation 31
A. Issues 31
B. Analysis 33
(i) Facts leading up to Mr. Abadi’s termination 33
(ii) Mr. Abadi has protected characteristics under the Act—disability, race, national or ethnic origin and religion 43
(iii) Mr. Abadi experienced an adverse impact—his employment was terminated 46
(iv) Mr. Abadi’s disability was a factor in the termination 46
(v) TST has not established a legal defence (a bona fide occupational requirement) to justify the disability-based discriminatory practice 47
(vi) Race, national or ethnic origin, and religion were not factors in the termination 53
V. Remedies 55
A. Lost wages 56
B. Pension contributions 61
C. Vacation leave 62
D. Pain and suffering 62
E. Special compensation (s. 53(3)) 63
F. Interest 64
VI. Order 65
I. Introduction [1] The Complainant, Amir Jafari Ebrahim Abadi , is a truck driver who was employed by the Respondent, TST Overland Express (TST). He is originally from Iran. While on leave from work on a trip to Iran in 2019, he asked his employer to extend his return date by a couple of weeks. TST denied the request and terminated his employment when he did not show up for work for three consecutive days.
[2] Mr. Abadi claims that the termination was discriminatory because his absence was due to a disability and that race, national or ethnic origin, and religion were factors in the decision as well. He also alleges that he was harassed throughout his employment with TST based on these same grounds other than disability.
[3] TST denies that any prohibited grounds of discrimination were factors in the decision to end his employment. It claims that Mr. Abadi misled management about the reasons for the extension request and never provided documentation of the disability. TST also denies that he was harassed and claims that, even if he did experience such treatment, he never notified his employer of it and TST should not be held accountable for the actions of others. Furthermore, TST contends that Mr. Abadi’s harassment claim should be dismissed because he took too long to make it.
II. Decision [4] For the following reasons, Mr. Abadi’s complaint is substantiated. I find that he was harassed at TST based on national or ethnic origin, race, and religion. I also find that he was discriminated against in his termination based on his disability, but not on the other grounds alleged.
[5] This case has two components—the harassment allegation and the alleged discriminatory termination of Mr. Abadi’s employment. I address the harassment allegation in the first part of this decision and deal with the other claim afterwards.
III. Harassment allegation A. Issues [6] Mr. Abadi must establish that he was harassed based on one or more discriminatory prohibited grounds. He must show that it is more likely than not that he was harassed (known in legal terms as proving on a balance of probabilities). The Tribunal must also weigh any evidence provided by TST and “consider the evidence as a whole, including the respondent’s evidence, in deciding whether a complainant has made their case” (Emmett v. Canada Revenue Agency, 2018 CHRT 23 (CanLII) at para 61). The evidence must be “sufficiently clear, convincing and cogent” to satisfy the balance of probabilities test (F. H. v. McDougall, 2008 SCC 53 (CanLII) at para 46).
[7] Section 14 of the Canadian Human Rights Act, R.S.C. c. H-6 (Act), says that it is a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters related to employment. In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at 1284, the Supreme Court of Canada broadly defined harassment as unwelcome conduct related to one of the prohibited grounds—in that case, sex—that detrimentally affects the work environment or leads to adverse job-related consequences for the victims.
[8] In Canada (HRC) v. Canada (Armed Forces), 1999 CanLII 18902 (FC), [1999] 3 F.C. 653 (F.C.T.D.) (Franke), the Federal Court explained the test to apply in sexual harassment cases. This test also extends to harassment that is based on other prohibited grounds of discrimination (see, for instance, Rampersadsingh v. Wignall, 2002 CanLII 23563 (CHRT); Morin v. Canada (Attorney General), 2005 CHRT 41 (CanLII), London v. New Brunswick Aboriginal Peoples Council, 2008 CHRT 49 (CanLII); Chaudhary v. Smoother Movers, 2013 CHRT 15 (CanLII)). The prohibited grounds of discrimination are set out in s. 3 of the Act and include race, national or ethnic origin, religion, and disability.
[9] The Franke test is as follows:
a) The conduct must be unwelcome;
b) The conduct must be shown to be related to a prohibited ground of discrimination;
c) There must be a pattern of persistent or repetitive conduct or, in certain circumstances, a single serious incident that is enough to create a poisoned work environment;
d) Where a complaint is filed against an employer regarding the conduct of one of its employees and the employer has a personnel department along with a comprehensive and effective harassment policy, fairness requires that the victim of the harassment, whenever possible, notify the employer of the alleged offensive conduct.
[10] The fourth element of the test relates to an employer’s liability for its employees’ conduct. Section 65 of the Act similarly deals with employers’ liability, stating that while they are accountable for the acts and omissions of their employees (s. 65(1)), they will not be held responsible if they establish that they did not consent to the act or omission and exercised all due diligence to prevent it and, afterwards, to mitigate or avoid its effect (s. 65(2)).
[11] TST contends that the Franke test was not met and, moreover, that the Tribunal should not deal with the harassment claim at all because it was filed after the one-year period found in s. 41(1)(e) of the Act. TST also argues that because Mr. Abadi took so long to make his complaint, the equitable doctrine of laches shields it from being held liable.
[12] Thus, the issues to be determined about Mr. Abadi’s harassment claim, in a slightly modified order from Franke, are:
1) Did Mr. Abadi experience the conduct that he alleges in support of his harassment claim?
2) Was the conduct related to race, national or ethnic origin, or religion?
3) Was the conduct unwelcome?
4) Was the conduct persistent or repetitive, and if not, was it so serious that it immediately created a poisoned work environment?
5) If Mr. Abadi was harassed, did he have to notify the employer of the conduct and if so, did he?
6) Did TST establish its defence under s. 65(2) of the Act by proving that it did not consent to the conduct and that it exercised due diligence to prevent the conduct and mitigate or avoid its effect afterwards?
7) Even if the harassment claim is well founded, should the Tribunal refuse to deal with it because it was filed more than one year after the alleged events?
8) Can TST establish a defence under the doctrine of laches?
B. Analysis (i) Mr. Abadi experienced the conduct that he alleges in support of his harassment complaint [13] Mr. Abadi testified about the incidents giving rise to his harassment complaint. TST denies that they occurred as he alleges, but, as I explain below, I find that he did experience them, as he claims.
[14] Mr. Abadi immigrated to Canada from Iran in 1996. In 2006, he was hired by the Kingsway trucking firm, which continued its business as TST Overland Express until around 2018 and then as TST-CF Express since March 2020. During his employment, which was based out of TST’s Ottawa terminal, Mr. Abadi was a member of the Teamsters Local Union No. 91 (the Union), which signs collective bargaining agreements with TST.
[15] Mr. Abadi stated that throughout his employment, he was ridiculed by co-workers and managers because of his accent and origin. English is not his first language, and he speaks it with an accent. He claims that he was made fun of as an immigrant.
[16] Around 2009 or 2010, posters with pictures or drawings about him began appearing on letter-size photocopy paper on the bulletin board situated in front of the dispatcher’s office at the trucking terminal in Ottawa for all to see. Mr. Abadi recalls that it was around the time when the news was reporting beheadings in the Middle East by terrorists, who many at work would refer to as Mr. Abadi’s “cousins,” that these posters began appearing. He retained either copies or the originals of some of the posters and entered them into evidence. They can be described as follows:
A clipping from a Sun Media newspaper with a photograph of a heavily overloaded truck in Kandahar, Afghanistan. The newspaper caption describes the truck as being “decked out in chains and sheets [which] add a dash [of] colour” to the potholed roads out of the city. At the top of the poster, someone has handwritten “Amir Transport”. Amir is Mr. Abadi’s first name.
A poster with Mr. Abadi’s photo on the left and on the right a photo that is copied from an unknown source. It appears to be a man with a dark complexion, with what may be ammunition belts across his chest, shouting with his hands up in protest. There is a crowd behind him, a flag and signs written in what appears to be Arabic script. Underneath the clipping appear the words, “BREADMAN, the impenetrable.”Whoever created the poster typed in at the top of the sheet, “Truck Driver by day – Bread Man by night.” Mr. Abadi testified that his image on the left is from the photo taken by TST management for his company access card. He recalls that, at that time, the TST morning dispatcher, who I need only refer to in this decision by his first name, Eddy, had learned Mr. Abadi’s brother was involved in the bread business in Iran, and the poster was an attempt to relate the printed image to that.
A poster with the same access card photo of Mr. Abadi with the following words typed at the top: WILL DISPOSE OF YOUR PLUTONIUM OR URANIUM FOR FREE CALL 1-800-JIHAD ASK FOR AMIR.
A poster on which at the right is a pre-printed caricature drawing of a dark-complexioned man on his knees with his hands clasped in front of him as if he is praying and with tears flowing. To the left of this image, someone has drawn by hand in blue ink a two-humped camel and added a caption above the man to indicate that he is saying, “PLEASE CAMEL START.” The camel’s behind is above the man’s face. Mr. Abadi interprets the image as suggesting that the camel is relieving itself into the person’s mouth. To the right of the man’s image is written in the same blue ink “AMIR CAMEL JOE.”
A poster where the same access card photo of Mr. Abadi appears on the left. On the right, there is a photo of Osama Bin Laden. At the top of the poster, the following words have been typed in: I WILL MISS YOU MY FATHER!! Mr. Abadi recalls that this poster appeared after Bin Laden was killed by American forces in Pakistan.
A poster with a photograph of a camel being ridden on a racetrack by a helmeted jockey. The caption above the photo says, “It took a while…but I’ll be back home……” The caption below the photo says, “Love… Prince Amir.”
[17] According to Mr. Abadi, Eddy, the company dispatcher, printed these posters in the office and posted them on the bulletin board. Mr. Abadi described him as the mastermind of the posters, especially since they contained official company photographs of him. After Eddy’s death in 2015, the posters stopped appearing.
[18] The bulletin board was in the hallway facing the office where the dispatcher’s desk was located. The dispatcher could see the bulletin board through a window. There was an open area next to the dispatcher’s office where other office staff worked. Behind the dispatcher’s office was the office of the terminal manager, Langis Sergerie, who is still employed at TST.
[19] According to Mr. Abadi, all the office staff would walk back and forth past the bulletin board. Mr. Sergerie would post many documents on the board such as refreshed seniority lists, leave lists, and newsletters. Mr. Abadi submits that Mr. Sergerie had to have seen the posters on the bulletin board. He recalls specifically that while waiting to pick up a bill of lading from the driver’s area, he saw Mr. Sergerie with Eddy looking through the window from inside the dispatch room and laughing at the Bin Laden and the 1-800-JIHAD posters.
[20] Mr. Abadi got fed up with these types of posters and began collecting them about eight months after they had first appeared. He explained that when he saw them on the bulletin board, he would try to take the originals down but that sometimes Eddy would not let him. Instead, Eddy allowed him to use the office photocopier to make a copy, as was the case with the Bin Laden poster. He would put them in his locker. He claims that he had collected and stored many more posters other than the six in evidence but that, after he was terminated, TST deactivated his access to the premises, and he never recovered them from his locker. He happened to have kept the six posters submitted into evidence in his car.
[21] Mr. Abadi maintains that the harassment went beyond the posters. From even prior to the appearance of the posters, people at work would call him Abu, which was the name of the pet monkey in the Disney cartoon film “Aladdin.” Whenever some incident arose in the news involving former Libyan leader, Muammar Qaddafi, remarks would be made about what is going on with his “Uncle Muammar.” People at work also called him Camel Joe, which I take notice of as being the name given to a well-known cartoon camel used to advertise an American brand of cigarettes.
[22] Mr. Abadi recalls that the poster with the camel at the racetrack appeared around the time that the news had shown coverage of Saudi sheikhs walking their prize camels at a show. He was approached by others at work, who addressed him as Camel Joe and asked that he explain what was going on.
[23] Until the end of his employment, he experienced these types of epithets and comments at the hands of most of the other drivers—as many as 85% of the roughly 17 or 18 drivers who worked there on average. Right up to his last day of work, he was called Abu. It got to the point that for years he bid on overnight driving shifts to places like Toronto to avoid coming into the terminal and dealing with the comments from other employees.
[24] Mr. Abadi stated that the workforce at TNT’s Ottawa terminal was almost entirely made up of people born in Canada. Mr. Sergerie acknowledged in his evidence that when Mr. Abadi was terminated in 2019, he was the last person “of another ethnicity” to be employed at the facility. He explained that this was often the outcome of the mergers of trucking firms. People with more seniority retained their jobs, which meant that more-recently hired immigrant employees may not have ended up remaining with the company. He pointed out during his testimony, given in December 2022, that the Ottawa terminal had only just hired two immigrant employees.
[25] Mr. Abadi testified that it was not just other employees and supervisors who insulted him based on his background and identity. He claims that, in 2010, he was in Mr. Sergerie’s office asking for approval for a leave to attend his sister’s wedding in Iran. The conversation took place in front of the then president of the Kingsway trucking firm. According to Mr. Abadi, Mr. Sergerie jokingly responded, “I hope it is not a terrorist camp, and you come back a terrorist.” Mr. Abadi says he reacted by keeping his mouth shut and just left the office.
[26] In his testimony, Mr. Sergerie did not recall having made the “terrorist camp” remark, suggesting that it must have been someone else who said it. He generally did not recall any name-calling about Mr. Abadi. He did remember a single occasion where Eddy said something to Mr. Abadi that Mr. Sergerie did not like. But he claims that after the remark was made, Mr. Abadi said, “That’s OK, it’s all in fun.”
[27] Mr. Sergerie also said that he first saw the posters in evidence when they were shown to him by TST’s lawyer in the context of these proceedings. He acknowledged that the picture of Mr. Abadi in the posters seemed to be from the TST access card photo. He pointed out that his office did not face the hallway with the bulletin board where Mr. Abadi said the posters had been posted. Only the supervisors in the dispatch office could view it, and no one ever reported to him that they had seen racist posters there.
[28] TST did not call any other witnesses who were employed there at the same time as Mr. Abadi. TST pointed out that Eddy, who was the morning shift dispatcher, died in 2015. A person, who I need only refer to as Maria, was employed as assistant manager in the dispatcher’s office and replaced Eddy after his death. She retired in January 2020. Another person who was the afternoon shift dispatcher retired in December 2019. TST did not explain if or why these persons or a couple of other office employees mentioned in evidence were unavailable to testify on these allegations.
[29] Mr. Abadi, however, called as witnesses two former truck drivers with whom he had worked. Robert Brownrigg was employed at TST from 2001 to 2010. He recalled that insensitive and offensive jokes and other remarks linking Mr. Abadi to terrorists or bombing were made about him. With the passage of time, he could not remember who specifically was making these remarks. He did not recall seeing the posters in evidence but remembered seeing similar ones. He questioned how management could tolerate such behaviour. Mr. Brownrigg said Mr. Abadi was a good worker and got along well with others.
[30] Claude Clanthier testified as well. He was employed as a truck driver at TST for about five years, until 2010 when he was laid off. He readily recalled seeing posters about Mr. Abadi that were “flabbergasting” and that made him look like a “killer.” In cross-examination, he was shown the posters in evidence and spontaneously responded that he specifically remembered seeing the Breadman and 1-800-JIHAD posters. He also vaguely recalled the “Amir Transport” poster.
[31] He remembers being so shocked by the first two posters that he wondered if Mr. Abadi had posted them since he could not imagine anyone else would be so bold as to publicly post such images. Mr. Clanthier was not with Mr. Abadi when he saw these posters at the time, so they did not speak to each other about them. They were all too busy working to have time to talk. He noted that Mr. Abadi was the hardest worker of all. Mr. Clanthier also confirmed that management would have been able to view the posters since they were posted on the bulletin board. He recalled seeing them in the driver’s locker room, which is just up the hall from the dispatcher’s room.
[32] TST drew attention to this last comment from Mr. Clanthier to suggest that it contradicted Mr. Abadi’s testimony that he had seen the posters on the bulletin board outside the dispatcher’s office and that I should therefore infer that they were never actually posted. However, Mr. Abadi explained that although posters were placed on both bulletin boards, the ones that he had retained and produced in evidence were from the board facing the dispatcher’s office. In any event, I do not consider this variance in the recollection of the witnesses as being material. Clearly, the other two drivers confirmed what Mr. Abadi had testified to; posters of the sort filed in evidence were placed in public view at the workplace.
[33] During TST’s cross-examination of Mr. Abadi, a slight difference was identified between what was presented as the original of one of the posters and a copy. On one poster, there was a pinhole where it was supposedly pinned to the bulletin board, but the other poster (the camel drawing) had no similar hole. However, Mr. Abadi pointed to the dot on the photocopied version, indicating where the hole had been. He explained that since Eddy did not let him have the original, he was only permitted to make a copy of it using the office photocopier. Eddy wanted to keep the original on the bulletin board saying, “It’s OK, it’s funny.” I am satisfied with Mr. Abadi’s explanations.
[34] TST also suggested that even if the posters were placed on the bulletin board, it may have been by persons other than its employees. The workplace consisted of TST’s reception and office area at the north end of the building behind which was a large warehouse storage area separated into several sections, the first of which was occupied by TST. The other storage areas were used by other transport companies. Mr. Sergerie testified that most of the tenants had access to the side door, which led to the hallway going to TST’s employee locker room and the dispatch office. However, he acknowledged that he did not remember if any non-TST employees used it. The most he could say is that workers from the other companies could come to the lunchroom.
[35] I do not find this argument at all persuasive. At the time, TST’s lunchroom and dispatch areas were used exclusively by TST staff. I find it absurd to suggest that someone from one of the neighbouring trucking companies, who did not even know Mr. Abadi, would have designed and printed these posters, which included an official TST staff photo of Mr. Abadi, and then placed them on the bulletin boards.
[36] I am satisfied that the evidence is more than sufficient to establish that the posters in evidence were placed on the TST bulletin boards by someone employed at TST, even if Mr. Sergerie does not recall seeing them.
[37] I am also satisfied that the comments and name-calling that Mr. Abadi testified about occurred. I find his evidence credible. He was forthright in his answers. Whenever a slight potential discrepancy was highlighted in cross-examination, such as the absence of a pinhole in an exhibit, or other questions relating to his discriminatory termination claim, he provided a sound and logical explanation. In sum, I find TST’s efforts at undermining his credibility are without merit.
[38] For these reasons, I find that Mr. Abadi did experience the conduct upon which he bases his harassment complaint.
(ii) The conduct was related to national or ethnic origin, religion, and race [39] There is no question that the alleged harassing conduct was about Mr. Abadi’s actual or perceived religion and national or ethnic origin.
[40] As I mentioned, Mr. Abadi is originally from Iran. He did not specify if he is a practising Muslim. However, the posters, names, and insults directed at him assumed he identifies as someone who is Muslim and from the Middle East or North Africa. They mocked him as being linked to terrorists who are regrettably often associated in the public discourse with persons from these regions and of this faith.
[41] The posters, comments, and name-calling are thus related to Mr. Abadi’s perceived, if not actual, national or ethnic origin and religion.
[42] As the Supreme Court of Canada noted in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665, 2000 SCC 27 (CanLII), a distinction will be discriminatory if it is based on the victim’s actual or perceived identification with a prohibited ground. It is irrelevant if Mr. Abadi in fact practised Islam or was from the specific Middle Eastern country to which he was being connected.
[43] In addition, I find that Mr. Abadi experienced the conduct as a racialized person. As I recount in the second part of this decision, he testified about how, as a result of his dismissal, the workplace composition became non-immigrant and “very white.” The caricatures of him as depicted in the posters had dark complexions. In emails that he sent after the termination, he accused TST of being “racially motivated” in terminating him. Basically, the notion of race was subsumed in his identity as a person of his origin and background. The Act confirms that discriminatory practices include practices based on more than one prohibited ground of discrimination or on the effect of a combination of grounds (s. 3.1).
[44] I therefore conclude that the conduct he experienced was related to the grounds of national or ethnic origin, race, and religion.
(iii) The conduct was unwelcome [45] In Franke, the Federal Court explained what should be considered in determining if the conduct is unwelcome. The Tribunal could look at a complainant’s reactions at the time the incidents occurred and assess whether they expressly, or by their behaviour, demonstrated that the conduct was unwelcome. If the evidence shows that a complainant welcomed the conduct, the complaint will fail. This determination largely turns on questions of credibility and may present real problems of evidence for the Tribunal.
[46] The degree of difficulty in making the determination depends on the type of activity involved. In the context of sexual harassment, which was the issue in Franke, a pressing sexual advance will normally bring a quick refusal. More subtle solicitations or "verbal" innuendos may be ignored and as such simply endured by the complainant.
[47] Thus, the proper inquiry will not require a verbal "no" in all cases. The complainant must nonetheless establish, for instance, by their body language or by their repetitive failure to respond to the comments, that they had in some way signalled to the harasser that the conduct was unwelcome. However, in certain limited circumstances, an employee may be forced to endure objectionable conduct for reasons such as the fear of losing a job. In these cases, the appropriate standard against which to assess the conduct will be that of the reasonable person in the circumstances.
[48] In my view, Mr. Abadi’s case falls within these exceptional circumstances.
[49] No reasonable person would think that someone with Mr. Abadi’s background would ever welcome these posters that stereotyped and insulted him. These were not micro-aggressions; they overtly mocked his perceived origin and faith. As Mr. Brownrigg noted in his evidence, the posters and jokes that he observed were insensitive, offending and simply “not right.”
[50] Mr. Abadi testified that throughout his employment at TST, he was never advised or trained on its harassment policy and did not know that he could complain about what he was experiencing. But he added that he did not see how he could, given that supervisory staff and the manager were engaging in the practices. Eddy, the dispatcher, was printing the posters. He was insisting that they were “funny.” Mr. Abadi saw Mr. Sergerie laughing at the posters along with Eddy. Mr. Sergerie made the terrorist camp comment in the presence of the then company president.
[51] Mr. Abadi explained that Mr. Sergerie managed with an “iron fist” and that he feared repercussions if he complained to him. He was afraid of losing his job if he said anything. In his testimony, Mr. Sergerie acknowledged having heard Eddy say something once that he did not like but claimed that Mr. Abadi said that it was OK and in fun. However, as the Federal Court noted in Franke, an employee may be forced to endure what is objectively unacceptable behaviour just to keep their job.
[52] Mr. Abadi, in his final submissions, referred me to Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983), 1983 CanLII 4719 (ON HRT), at para. 131 (Ont. Bd.Inq.). The Board of Inquiry found in that case that the complainant did not approve of, and did not like, being called by a racial epithet. Although he did not complain to his superiors expressly about the name-calling until later, the Board of Inquiry had no doubt that he resented the name-calling and found it hurtful. It is not enough for supervisors, being aware of the racial name-calling, to simply excuse it on the basis that the victim is not expressly complaining. The Board of Inquiry observed, “any astute individual with any common experience would have known that he found it hurtful and did not like it,” nor approve of it.
[53] I believe the same can be said here. Any reasonable person would conclude that the posters, jokes, and comments that Mr. Abadi endured at the workplace were unwelcome.
(iv) The conduct was persistent and repetitive, which created a poisoned work environment [54] Six of the posters are in evidence, and Mr. Abadi testified that others were posted over the years, which he did not manage to take, keep, or make copies of. Mr. Brownrigg and Mr. Clanthier both recalled seeing similar posters on the bulletin boards. Mr. Brownrigg also recalled hearing the jokes and names used to refer to Mr. Abadi.
[55] While acknowledging that the posters ceased appearing after Eddy died, Mr. Abadi stated that he was still being called terms like Abu and Camel Joe right until his termination.
[56] While one could arguably find that viewing even one of those posters on the public bulletin board would have been serious enough for Mr. Abadi or another person like him to reasonably feel their work environment has been poisoned, I find that their persistent appearance over several years as well as the injurious remarks and names are more than sufficient to conclude that the third Franke condition was met. It was a poisoned environment in which Mr. Abadi had to work, so much so that for several booking periods he sought out overnight driving shifts to Toronto when he would not have to see other TST employees to avoid having to deal with it.
[57] I therefore conclude that Mr. Abadi was harassed based on the prohibited grounds of national or ethnic origin, race, and religion in the TST workplace over the course of his career there.
[58] However, additional questions must be addressed before I can find that TST, as the employer, must be held responsible for the harassment. The first concerns whether Mr. Abadi had to notify TST of the harassment, and the second relates to whether TST has a valid legal defence under s. 65 of the Act.
(v) Mr. Abadi did not need to notify the employer of the harassment in the circumstances [59] The fourth Franke element (set out at paras. 47-50 of the judgment) deals specifically with the employer’s liability for harassment conducted by its employees. This is the requirement that the person alleging harassment give notice to the employer.
[60] The Tribunal in Peters v. United Parcel Service Canada Ltd., 2022 CHRT 25 (CanLII) (Peters) at paras 316-331, recently explored the implications of this fourth element. The Tribunal observed that reporting and giving notice to the employer was initially stated in Franke, at para. 47, to be a complainant’s obligation “whenever possible.” However, the Federal Court clarified that the requirement applies where “the employer has a personnel department along with a comprehensive and effective sexual harassment policy, including appropriate redress mechanisms, which are already in place” (at para 49, emphasis in the original text).
[61] As observed in Peters, Franke thus emphasized that the employer’s policy and redress mechanisms must be effective for the reporting requirement to apply. It is not sufficient to merely confirm that an employer has, for example, policies and a Human Resources (HR) department to presume that they are “effective.”
[62] The employer should be notified of the harassment by the employee where the employer has invested in and developed effective, comprehensive tools and resources to prevent, address and mitigate the effects of harassment. From a fairness perspective, if an employer has done what is required to meet its obligations under the Act to address harassment, it ought to be given the opportunity to do so.
[63] Fairness also applies when the converse is true: where the employer does not have comprehensive and effective policies, including appropriate redress mechanisms, to address harassment, it would not be reasonable to dismiss a harassment complaint against an employer because a complainant failed to report it.
[64] For the following reasons, I find that TST did not have an “effective” harassment policy in place to trigger the notice requirement referred to in Franke.
[65] Mr. Sergerie was shown a three-page document at the hearing entitled “Discrimination and Harassment Policy” (the “2005 Policy”). He testified that it was posted “somewhere around 2005 and 2006.” It bears the signatures of the then president of the Kingsway trucking firm and a human resources counsellor. The policy lists the prohibited grounds of discrimination under the Act and states that the employer adheres to a policy to provide a work environment that is free from all forms of discrimination or harassment. It goes on to define discrimination and harassment and adds that it is important for employees to file complaints when they believe they are being harassed. It does not specify to whom a complaint should be made but notes that the employee must provide precise and detailed information to the employer’s “designated representative.” It assures employees that their immediate superior or the designated HR counsellor will undertake a private inquiry as soon as possible.
[66] The 2005 Policy states that it is management’s responsibility to ensure the conduct of all employees is not discriminatory and does not constitute harassment. It concludes by declaring that if management team members witness sexual harassment, “they must react immediately, without waiting for a complaint to be made.” Interestingly, this direction does not appear to extend to harassment on other prohibited grounds of discrimination.
[67] Mr. Sergerie testified that his understanding of how a complaint would be treated under the 2005 Policy is that employees would come forward and report a complaint to management. The complaint would then go to the HR department and upper management. The employee involved would be brought up and disciplined accordingly. The employees involved would also be brought together to have a discussion and try to resolve the situation.
[68] TST called Graham Howarth to also testify on this question. Mr. Howarth is the current senior manager of safety and compliance and is based out of Toronto. He has only been with the company since December 2018. He referred to another three-page document entered in evidence entitled “Bullying, Harassment and Discrimination” dated August 2013 (the “2013 Policy”). It sets out a policy statement that TST is committed to developing and promoting a workplace culture that is free from bullying, harassment, and discrimination, which it later defines. It directs employees to report incidents in writing to their immediate supervisor or a member of management, who in turn would advise the “Director or Human Resources” about it. TST would then conduct an impartial investigation.
[69] Mr. Howarth testified that he found this document in the policy manual when he joined TST. The document is meant to be a synopsis of the policy that the Canada Labour Code, R.S.C., 1985, c. L-2, requires of federally regulated employers. He pr