Hill v. Air Canada

Hill v. Air Canada
Collection
Canadian Human Rights Tribunal
Date
2003-02-18
Neutral citation
2003 CHRT 9
Decision-maker(s)
Groake, Paul
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
YUL F. HILL
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
AIR CANADA
Respondent
REASONS FOR DECISION
2003 CHRT 9
2003/02/18
MEMBER: Paul Groarke
TABLE OF CONTENTS
I. INTRODUCTION
A. The Complaints
B. Preliminary Issues
II. FACTS
A. Credibility
(i) The Complainant
(ii) Mr. Ryan
B. The Setting
(i) The Complainant
(ii) The Dash-80 Line
(iii) Area H
(iv) The Test Cell
C. The Allegation of Discrimination
(i) Work Assignments
(ii) The Application for the Planner III Position
(iii) The Events of October 18, 1994
D. The Allegation of Harassment
E. The Complainant's Grievances and the Internal Investigations
(i) The First Grievance
(ii) The Second Grievance
(iii) The Third Grievance
III. ANALYSIS
A. Prima Facie Case
B. Discrimination
(i) The General Evidence
(ii) The Use of the Term Nig Nog
(iii) Temporary Assignments
C. The Planner III Position
D. Harassment
E. The Fundamental Nature of Human Rights
IV. ORDER
I. INTRODUCTION A. The Complaints [1] I have two complaints before me. The first alleges that Canadian Airlines International Ltd. discriminated against Yul F. Hill on the basis of race under section 7 of the Canadian Human Rights Act by failing to provide him with technical on the job training, by undermining his work, by denying him a promotion, and by monitoring him more closely than other employees. The discrimination is alleged to have occurred from June 1992 to the time of the hearing, though it began prior to that date. The second complaint alleges that Canadian failed to provide Mr. Hill with a harassment free workplace under section 14 of the Canadian Human Rights Act. The harassment is alleged to have occurred between January 1991 and October 1994, and consisted of racial graffiti, jokes and slurs.
[2] These complaints are personal rather than systemic. There was apparently a third complaint that dealt with larger issues in the workplace which was not referred to the Tribunal. The Complainant and the Commission nevertheless presented their case on the basis that there was a larger pattern of discrimination in the workplace. This is problematic, since there is no clear nexus between Mr. Hill's experiences and the general situation in the engine shop.
[3] As the successor to Canadian Airlines International Ltd., Air Canada accepted any liability that Canadian might have incurred under the Canadian Human Rights Act. The hearing into the complaints took place in Vancouver and lasted 25 days. There were 18 witnesses. I received oral and written submissions at the end of the hearing, which have been of considerable assistance. Although Mr. Ash and Mr. Fakirani, who acted for the Complainant and Commission, made a valiant attempt to sustain the complaint, the facts are simply against them.
[4] The Complainant and the Canadian Human Rights Commission took the position that he had been treated unfavourably because he was black. He was discriminated against by his foreman and was harassed by his foreman and other mechanics. The situation came to a tempestuous climax in the supervisors' office, when it erupted in an ugly and emotional exchange between Mr. Hill and his foreman on October 18, 1994. This incident led Mr. Hill to leave the workplace, for his own well-being.
[5] Air Canada took the position that Mr. Hill was a problem employee, who avoided work and displayed a conscious lack of respect for authority.
[6] The Respondent portrayed the Complainant as a person who was quick to blame his difficulties on race. In its written argument, it submitted:
While the Complainant may have been treated differently than some of the other mechanics on the dash-80 with respect to job assignments, this had nothing to do with his race and everything to do with his abilities and attitude as a Mechanic.
And again:
While the Complainant may have been monitored more closely than other employees, this was not because of his race, color, national or ethnic origin, but rather because he had a tendency to absent himself from his workstation more frequently than other employees . . .
The Respondent submits that the Complainant blamed other people for his problems. Rather than amend his work habits, or apply for advancement in the normal manner, he fell into the trap of assuming that those around him were treating him unfairly.
B. Preliminary Issues [7] I took a view of the engine shop during the hearing, which has been dealt with in a separate ruling. In the present context, it is enough to say that the view was of considerable assistance in understanding the rest of the evidence. Although there were changes in the layout of the shop, the general scheme of the buildings remained as it was when Mr. Hill worked at Canadian. The offices for the supervisors and foremen had not changed and the work was organized in a similar fashion. The view gave me a better sense of the protocols that were followed in assembling the engines, clarified the nature of the work that was done in different areas, and gave me a sense of the overall dimensions of the work environment. It reinforced the idea that the engine shop was run in a capable way and may have implicitly supported the evidence of various witnesses, but is not a major consideration in my findings of fact.
[8] There is another legal issue, however, that should be addressed before dealing directly with the facts. One of the major difficulties in hearing the present case is that most of the testimony at the hearing dealt with events that occurred in the early 1990s. There were various estimates as to the number of people who worked in the engine shop, but the reality is that I heard from a relatively small number of witnesses, whose evidence was often vague and impressionistic. It would be difficult to gauge the emotional environment in a busy shop, so long after the fact, in any circumstances. It is much more difficult in the present case, where the company was on the verge of bankruptcy, the work environment was rife with uncertainty, and the situation was anything but normal.
[9] There were nevertheless a number of internal reports on the events before me. I was impressed with the tone of these reports, which show considerable impartiality and tact in dealing with a difficult situation. Although the statements made to the authors of these reports were generally given in a more informal venue, without oath, and were not subject to searching examination, they have a freshness that adds to their significance in determining what occurred on the shop floor. Although I received additional evidence, which clarified some of the issues, I think that these reports should generally be accepted.
[10] The evidence as a whole supports the early accounts of what happened. I think it makes sense to pay particular attention to the statements that were made before the participants had the opportunity to tailor their recitals to the needs of the case. This comes with certain qualifications. On the one hand, one should be careful not to read the reports too literally, since the notes made by the investigators were not verbatim. On the other hand, it is clear that the individuals interviewed by Laurie Ferguson and Hunter Rogers expressed themselves more freely than in the hearing.
II. FACTS A. Credibility (i) The Complainant [11] I accept that the Complainant was presenting the facts as he saw them. This does not mean that I accept his account of what occurred. Mr. Hill was a partial witness, whose feelings often obscured his view of the facts. He had a tendency to reduce everything to a common denominator: that denominator was that he had not been treated fairly. The testimony of other witnesses, like Mr. Fletcher, supports this conclusion.
[12] I think the differences between the parties lies more in the interpretation of facts than anything else. I nevertheless found that Mr. Hill's behaviour in the hearing room was inherently aggressive. I understand his feelings of injustice, but he was clearly inaccurate or mistaken on a number of counts and was unwilling to recognize that there was a case on the other side. It will become evident that I have rejected some of his testimony.
[13] I accept the evidence of Doctor Pinkhasik, which established that Mr. Hill suffered from depression and anxiety. This does not in itself substantiate the complaints. There were a number of oblique references to other issues in the Complainant's life, which may have explained his psychological troubles.
[14] A number of witnesses also gave evidence that would support the employer's allegation that Mr. Hill was looking for a cash settlement in filing the complaints. I think Mr. Hill's comments to other mechanics in this regard were more a form of psychological bravado than anything else, however, and I think the situation is more complicated than this suggests. It would be wrong to question the sincerity of Mr. Hill's feelings that he had been unfairly treated.
(ii) Mr. Ryan [15] I also feel obliged to comment on the testimony of Mr. Ryan, Mr. Hill's foreman, whose credibility was put in issue by some of the witnesses. There was reference, for example, to the two faces of Ryan. Much of the present case is a story of the relations between Mr. Hill and Mr. Ryan. There is no doubt, in my mind, that Mr. Ryan had real enmity towards Mr. Hill. Mr. Kirby believed that Mr. Ryan intentionally provoked Mr. Hill, in a calculating and underhanded manner. I am not so sure of this, but the racial language that he appears to have used in speaking to Laurie Ferguson and Hunter Rogers strikes me as a more accurate reflection of the language used in the shop than the testimony at the hearing.
[16] I am nevertheless of the view that Mr. Ryan disliked Mr. Hill because he was a difficult and temperamental employee. Mr. Hill had ambitions, but he was unwilling to do more than an average mechanic and felt that most of his duties were beneath him. I do not believe that the issue between the two men was race. The real issue was that Mr. Hill did not accept his foreman's authority over him. Mr. Ryan was also resentful, in my view, of the fact that Mr. Hill had complained about him. Mr. Ryan was careful not to offend those in authority and must have seen this as an attempt to subvert his authority.
[17] There seems to have been a war of wills between Mr. Ryan and Mr. Hill. Whatever his personal faults, Mr. Ryan had a certain professional pride and was committed to the work in the shop. Mr. Hill, on the other hand, was determined to assert his independence. I have no desire to take part in the contest between the two men, but they clearly made it a point of honour to take exception to each other. There is no doubt that Mr. Hill, at least, was trying to get at Mr. Ryan.
[18] Mr. Hill had a talent for irking those with immediate authority over him, which he seems to have perfected while working in the engine shop. He was far more careful with those who were higher in the hierarchy. There was at least one incident on the line, where Mr. Hill and Mr. Ryan must have exchanged rather dangerous looks, with Mr. Hill getting the better of Mr. Ryan's emotions. This incident occurred when Mr. Hill was given a new service bulletin and asked to redo work that he had already completed.
[19] I have placed considerable reliance on the testimony of Margery Knorr, the equity officer, and Mr. Shelford, the director of the power plant. Both of these witnesses responded to questions from both sides in a thoughtful measured way. They were well informed and provided valuable evidence on company policy. I found their testimony to be eminently fair. I was also impressed with the evidence of Scott Hunter, who was impartial, precise and factual. Mr. Hunter was a member of the selection committee for the Planner III position and I accept his evidence in all respects.
[20] I found the testimony of most of the other witnesses credible. I think Mr. Kirby would agree that he had an ideological position, which was reflected in his testimony. He was nevertheless candid and well spoken. The other mechanics who testified were sincere and cooperative. The evidence of Mr. Ghuman, a member of a minority, was candid and factual. The evidence of Mr. Cavasin was helpful, but revealed a good deal about the attitudes on the shop floor. Much of the evidence of racial tensions at Canadian had little bearing, however, on the situation in which Mr. Hill found himself. The testimony of Mr. Hibbert, who felt he was discriminated against, is a case in point.
B. The Setting [21] The background to the present complaints is straightforward. Canadian was one of Canada's major commercial airlines. As a major airline, it had a maintenance and engineering department, which operated a machine shop in Vancouver. This is where most of the relevant events occurred. The evidence established that the airline was in desperate financial straits during the period covered by the complaints. No one knew whether the airline would survive and employees were in a state of constant emotional and financial pressure.
(i) The Complainant [22] Mr. Hill began his career as a jet engine technician in the U.S. Navy, where he spent six years on active and reserve duty. He was employed by Canadian in 1986 as an apprentice mechanic and worked for Canadian for about eight years. He later became a full mechanic. As an Aircraft Mechanic, he was a member of the International Association of Machinists and Aerospace Workers, known as the I.A.M. As is often the case, the allegations before me have been the subject of the grievance process under the relevant collective agreements, as well as an internal human rights investigation.
[23] During his apprenticeship, the Complainant worked in maintenance and engineering. As a journeyman, he worked on the 737 line in the hangar. He was assigned to the engine shop from October of 1989 to December of 1990, and then returned to the 737 line. While Mr. Hill was in the engine shop, he worked on one of the crews on the Dash-80 line. He transferred back to the engine shop in June of 1992 and stayed there until May of 1994, when he was temporarily assigned to the wheel and brake shop. He returned to the Dash-80 line in August and stayed there until his last day of work, which was October 18, 1994. He was nevertheless paid until January of 1995.
[24] Canadian had a company-wide mechanics' license issued by the Ministry of Transportation. As a result, the mechanics working for Canadian did not need individual licenses. Instead, mechanics were required to obtain an Aircraft Certification Authority, known as an ACA, to work on a particular engine. Mr. Hill had a company endorsement for the CF6-50 and CF6-80 engines. Mechanics could also obtain individual Ministry of Transportation licenses, known as M licenses for different aircraft and engines. There was considerable disagreement between the parties as to whether there was any significance in the fact that Mr. Hill had such a licence, since it was not required. Although I do not believe that anything turns on this, it certainly demonstrates that Mr. Hill was a man with ambitions who wanted more credentials than many of the mechanics at Canadian.
(ii) The Dash-80 Line [25] The maintenance and engineering department at Canadian operated a facility described as the power plant. The director of the plant, Graeme Shelford, testified that the power plant contained a number of shops, which included the engine shop. There was a manager under Mr. Shelford, Bob Krause, who was responsible for the daily management of the plant and the engine shop. There were also supervisors in each of the individual shops, who reported directly to Mr. Krause and at least occasionally to Mr. Shelford. The supervisors in the engine shop during the relevant time were Don Strohmaier, Jerry Jureidin, and Al Hunger.
[26] There were a number of work areas within the engine shop. This included the lines where different types of engines were serviced. It took from six to ten days to disassemble an engine, and up to two weeks to reassemble it. The repairs to the engines, modules, and parts were done off the lines. The engines were then reassembled, signed off and tested in the test cell, which was located in a large building on the same lot. There was also a balancing area and Area H, which was known as blade rework.
[27] There were crews in each of the work areas, with six or more mechanics in each crew. Up until the fall of 1994, each of these crews had a foreman and an inspector. Mr. Hill's foreman was Kerry Ryan. Although the foremen were more like lead hands, and remained members of the union, they were responsible for assigning the work to individual members of the crew. The role of the inspector was to approve and sign off the crews' work. The foremen and inspectors reported to the supervisors in the engine shop. They did not have the authority to discipline the mechanics.
[28] There were three lines in the engine shop, which were dedicated to the CF6-50, CF6-80 and JD-8 engines. Mr. Hill was on one of the three crews assigned to the CF6-80 or Dash-80 line, which worked a rotating shift. Mr. Ryan was the foreman. The crew would work two weeks of days, followed by one week of afternoons. It may be helpful to say that the Dash-80 was the newest and most sophisticated engine in the engine shop. It was therefore considered, by some employees at least, as the most prestigious area in which a mechanic might work. Mr. Kirby stated that any reassignment from the Dash-80 line to the JD-8 line was considered a first stage of punishment.
[29] When an engine came into the shop, the planners in the engine shop would prepare a package of bulletins and service orders. The service package would be given to the foremen, who would distribute it to the crews. When the engines were disassembled, the mechanics would examine individual components and parts for abnormalities. This might require changes to the work orders. The supervisors would meet with the foremen in the mornings and give them worksheets listing the engines and the work that needed to be done. The foremen would then assign individual members of the crew to a particular engine.
[30] The foremen would also assign specific tasks to individuals, particularly when there was a difficult job that needed immediate attention. Some of the jobs on the line were more technical than others and presented more challenging work. This included the removal and reinstallation of the HPT, the high-pressure turbine; the LPT, the low pressure turbine; and the core of the engine. Some of the less challenging jobs consisted of caulking, reinstalling the fuel lines, and preparing the engine for the test cell.
[31] Once a mechanic was assigned to an engine, it was normal for the mechanic to continue work on the engine until the servicing was complete. Mechanics would also be given temporary assignments, however, to deal with shortages in other areas within the shop. If the supervisor needed another person in Area H, for example, he might ask a foreman to assign one of his mechanics to the relevant area. He might also assign a specific mechanic to the area. One of the witnesses, Ray Fletcher, testified that many mechanics would simply pick up the work where the last shift had left it. Mechanics who waited to be assigned to specific tasks would often end up with the jobs that no one else wanted.
(iii) Area H [32] A jet engine contains fans, consisting of fan blades mounted on a central spoke, which push the air through the engine. The mechanics in Area H examined the fan blades for damage and irregularities, filed away nicks and scratches, and balanced the blades, so that they were properly balanced. Although the area was clean and well lit when we visited it, there was evidence that this left a fine dust on everything, which must have contained metal shavings and chemical residues. There was also evidence that hazardous chemicals like iodine and acetone were used in the process.
[33] There was debate between counsel as to whether the work in Area H was menial work. Mr. Rodominski, who was known for his mechanical skills, described it as very repetitive work and quite boring at times. No one, he testified, really wanted to work there. This was borne out by the fact that the mechanics assigned to Area H did not have to serve a rotating shift. Mr. Shelford acknowledged that this was an incentive, which was necessary to keep the area fully staffed. There were nevertheless advantages to working in Area H, since it was a sit down job with substantial overtime and straight day shifts. As a result, there were senior mechanics who were permanently assigned to the area. Since these mechanics had their choice of holidays, Area H was understaffed during the summer.
[34] Counsel for the Respondent stressed the value of the fan blades, which were worth as much as seventeen thousand dollars apiece, in American funds. Another witness, Jay Ghuman, testified that the work on the blades was important work, which required skill and effort. If a blade was not re-contoured properly, a rough surface or hairline crack could cause the blade to fracture and break, with calamitous consequences for those on board the plane. While I accept all of these observations, they do not address Mr. Hill's fundamental complaint, which is merely that the work was extremely tedious. This made it menial.
[35] I have no doubt whatsoever that Area H was one of the least attractive assignments in the shop. Mr. Kirby suggested that an assignment to the area could be seen as a form of punishment and it is evident that many mechanics resented working there. I accept that the work in the area was menial and unrewarding. I think that I can take notice of the fact that the filing of metal blades, however expensive, did not excite the passions of the mechanics.
[36] Some of the witnesses believed that most if not all of the mechanics in the engine shop had been assigned to work in Area H. Others stated that some of the mechanics had never worked in the area. There was also evidence that the proportion of visible minorities in areas like blade rework was much higher than in other areas in the shop. Mr. Kirby suggested that this was a reflection of the unfairness in the workplace, which led minorities to resign themselves to the less interesting work in the shop. The evidence of Mr. Fletcher, however, was that the members of minorities preferred to work together. The situation is open to a variety of interpretations.
(iv) The Test Cell [37] Before an engine left the engine shop, it was necessary to determine whether it met the standards set by the manufacturers and the federal Ministry of Transportation. This was done in the test cell. Individual engines were moved from the engine shop to the cell, where they were harnessed and connected to a housing that permitted the testers to start and run the engine. Once the engine was coupled to the housing, it was run by means of a computer that simulated flight conditions. This was a relatively dramatic task, which was psychologically rewarding, since it determined whether the work on the engine had been successfully completed. One tester would run and observe the engine, while another tester would monitor the information from the computer to determine whether the engine met the required standards.
[38] There were three mechanics who were designated as testers on the Dash-80 line. They received special training and were paid fifteen cents more per hour than the other mechanics. When there were no engines to be tested, they worked with the rest of the crew. The mechanics who had been working on an engine would also go with the engine when it went to the test cell. These mechanics would assist the tester in hoisting and connecting the engine to the temporary housing. When the testing was completed, they would help the tester make any necessary repairs, uncouple the harness, and complete the final check of the engine. The yoking and unyoking of the engine constituted the more laborious and less responsible part of the process.
C. The Allegation of Discrimination (i) Work Assignments [39] Mr. Hill was well qualified as a mechanic. There is nevertheless no question that his attitude to his work at Canadian left a great deal to be desired. Mr. Hill was firmly convinced that he had talents that were never recognized by his employer. As a result, he seems to have developed the belief that some of the work to which he was assigned was beneath his dignity. This led his superiors to question his abilities and aptitude. This only added to his aversion to the work they were willing to assign him. There is evidence that he had tended to loiter and shirk his responsibilities.
[40] Mr. Hill testified that he found the work environment on the 737 line at Canadian overtly racial. He was almost always assigned to the more menial tasks, such as cleaning cables, greasing, and gear fittings. The hostility came to a head when other mechanics said they had gotten rid of all the gooks and the pakis and there was just one more nigger to get rid of. Mr. Hill was the last person to be offered overtime, and was asked to work under the direction of less senior mechanics. Mr. Hill responded by requesting a transfer to the engine shop.
[41] The parties at the hearing focussed on Mr. Hill's time in the engine shop. The fundamental allegation is that Mr. Hill's foreman gave him the most menial tasks on the line. Mr. Kirby testified that Mr. Ryan, would assign him to blade rework, viewing, balancing, test cell prep, and the installation of fan blades, all of which was menial work. These jobs included changing filters and harnessing or unharnessing engines in the test cell. Some of this work was dirty work. Mr. Ryan would not assign Mr. Hill to more complex tasks unless there was nobody else around. Mr. Hill also testified that he was assigned to Area H on August 23rd and 24th, 1993. He suggested that these kinds of jobs should have been rotated among the different mechanics in the shop.
[42] In a letter of complaints, which was addressed to the Chairman of the union, Mr. Hill described the situation as follows:
Recently, I have been discriminated against by the floor management in shop 750. The same management has systematically selected and groomed certain individuals described as glory boys, and they seemed to share a certain kinship amongst themselves. While these individuals are being groomed to further their careers, visible minorities are discouraged and pushed aside.
The visible minorities are allocated menial tasks which stifle their drive and determination. They are not given the same opportunities to develop and further their careers. The select personnel are encouraged to stay on the problem solving and technical jobs. Their reward is advancement in the company. They are not assigned any menial tasks and on occasion, they are sent to relieve a visible minority worker who has began [sic] a technical job.
It was Mr. Ryan's treatment of Mr. Hill that apparently precipitated the complaint to the union.
[43] In his letter to the union chair, Mr. Hill stated that he had been assigned to Area H three times in two months, an allocation of duties that would raise some suspicions. When the Complainant and the Commission submit that Mr. Ryan assigned Mr. Hill to Area H the majority of the time, however, they overstate the evidence. The oral evidence merely establishes that Mr. Hill was assigned to blade rework on three or four occasions while he was on the Dash-80 line. Mr. Ryan did not accept that Mr. Hill was sent to blade rework on a regular basis. On the two occasions where the matter came to a head, Mr. Hill went home sick and did not work his assigned shift.
[44] One of these situations occurred on August 23, 1993, when Mr. Hill allegedly arrived late. Mr. Ryan states that Mr. Hill was the last mechanic to report and was therefore assigned to blade rework. This seems to go against the account he gave to Laurie Ferguson and Hunter Rogers, which was that Mr. Hill was the second last person to arrive for work. It is always possible that the Ferguson-Rogers report is mistaken, but I think the more important factor is that the Complainant did not take issue with the fact that he was late. It is true that this may have simply given Mr. Ryan the reason that he needed to assign a particularly troublesome employee to someone else.
[45] Rather than go to Area H, as he was directed, Mr. Hill returned home sick, on the basis that he felt too stressed to work that day. When the supervisor was advised of the situation, he told Mr. Ryan to assign Mr. Hill to blade rework on the following day. The following day, when this occurred, Mr. Hill went home sick again and did not return for a week. Mr. Hill was indignant because he arrived early on the second day and suggested that Mr. Ryan was not following his own system in assigning him to blade rework. The last person in, he suggested, should have been sent to blade rework.
[46] Mr. Hill's attitude was disingenuous and ignores the larger picture. It is notable that the Complainant and Commission stubbornly ignored the obvious insubordination in his actions. I am of the view that management did not deal with the situation. The matter was not handled properly, since the supervisor and the foreman clearly thought that Mr. Hill was feigning sickness. They should have called him on the issue. In any event, the real issue between the Complainant and his superiors had progressed well beyond the assignment to Area H.
[47] The relations between Mr. Hill and Mr. Ryan were strained, to say the least, and Mr. Ryan may have been quick to assign Mr. Hill to Area H. If this was the case, however, it had more to do with the enmity between the two men than with the fact that Mr. Hill was black. The evidence on the substantive issue is minimal at best, and the problems with the Complainant's evidence are sufficient to prevent me from accepting it without more support from other witnesses.
[48] The Complainant and Commission have argued that Mr. Ryan monitored Mr. Hill more closely than other employees. I have no doubt that this was the case, at least later in the process, when the two men had become adversaries. There was an allegation, for example, that he would be questioned when he returned from the washroom. If he was shirking his duties, of course, this was entirely justified. I do not accept that Mr. Ryan was malicious or fabricated events. There were limits to his enmity. There is no doubt that in Mr. Ryan's mind, Mr. Hill was an unreliable employee, who was not pulling his weight in the shop. There was evidence from almost all the witnesses that supported this view. Mr. Hill required monitoring.
[49] Mr. Hill alleges that he received more than his fair share of unattractive work assignments, both on the line and in the other areas of the shop. He also testified that he repeatedly asked for more technical jobs on the Dash-80 line. He gives examples of this in one of the complaint before me: on December 6, 1993, he states he was assigned to an engine when only the menial jobs remained. On September 6, 1994, while doing technical work, he was reassigned to more menial work. He provided a number of other examples, some of which were clearly refuted by the assignment sheets that were used to keep a record of who worked on specific engines, which were filed as exhibits.
[50] The passage of time has made the reconstruction of what occurred all that more difficult, however, the concrete facts that one would expect in substantiating such a charge was missing. Mr. Hill's recollection of what occurred was partial and impressionistic, and many of the circumstances of which he complained were open to interpretation. There is no question that he felt discriminated against, but the evidence presented by the Complainant and Commission consisted more of allegations than facts. The quality of the evidence was poor at best.
[51] Mr. Hill also states that Mr. Ryan gave him new service bulletins after he had completed a job and had him re-do the work. Mr. Hill felt that this was done on purpose, to make life difficult to him. There was bad blood between the men at this point in time because Mr. Hill had complained about Mr. Ryan. Mr. Hill also testified that after Mr. Ryan threw the pages on the work podium so violently that he instinctively backed away from him. There was real hostility between the two men by this point in time, and if Mr. Hill was suggesting that Mr. Ryan's conduct was unprovoked, I do not accept his testimony. It is obvious from the evidence that Mr. Hill had his own ways of challenging his immediate superiors.
[52] There were other incidents, such as Mr. Hill's exchange with Jeff Reimer, who had been given the responsibility for renewing licenses. Mr. Hill accosted Mr. Reimer on the shop floor, as if he was an underling, who could be imposed upon at will. Mr. Hill's application was already late and rather than apologize or acknowledge his tardiness, he goaded Mr. Reimer into an angry exchange. Although Mr. Reimer may not have conducted himself appropriately for a member of management, the reality is that Mr. Hill's attitude was provocative and high-handed. It is characteristic that Mr. Hill's response to the incident was to formally complain about Mr. Reimer's attitude.
[53] There were other incidents. There was an exchange with Jerry Jureidin, one of the supervisors, when Mr. Hill was caught photocopying pages from a manual. Mechanics were expected to work from originals and there are serious policy reasons why this was not permitted. Mr. Hill was also using the photocopier without permission. Rather than apologize, he adopted an indifferent attitude, which must have confirmed the prevailing view that he did not accept the authority of his superiors. This kind of behaviour only exacerbated the situation. I recognize that Mr. Hill found himself in an unpleasant environment, but I am satisfied that his conduct was probably the most significant factor in creating the situation in which he found himself.
[54] Mr. Kirby provided the strongest evidence in support of Mr. Hill's allegations. In his testimony, he adopted the statement that he had made to Ms. Ferguson and Mr. Hunter, claiming that anyone entering the shop will be aware of the preferential treatment within five minutes. Mr. Kirby testified that Mr. Ryan would only assign Mr. Hill to the more challenging jobs in the shop when there was no one else available. He also testified that the visible minorities in the shops were concentrated in the areas away from the actual lines, where the less challenging mechanical work was done. Mr. Kirby also stated that the visible minorities tended to be prominent in areas like blade rework, viewing and balancing. The testimony of Mr. Abbing and Mr. Fletcher supported such an observation. Mr. Fletcher suggested that the members of visible minorities wanted to be together, and therefore gravitated towards the same areas in the shop.
[55] Although I understand why Mr. Kirby reached the conclusions that he did, there is a speculative element in his views that I cannot adopt. Accusations of discrimination, however sincere, are not enough. It can certainly be inferred, from the comments of many of the witnesses, that there were racial communities within the engine shop. I am not prepared to go further, however, on the basis of accusations. It would be presumptuous to conclude that the distribution of employees in different areas of the shop was a result of overt discrimination.
[56] There was discord in the workplace without a doubt, and some of it had a racial signifier. The evidence of witnesses like Mr. Kirby, Mr. Hui and Mr. Panis established that minorities did not feel they had the same opportunities in Canadian as other mechanics. Mr. Kirby and Mr. Hibbert both testified that minorities were simply not in the running for the better positions in the shop. Mr. Hibbert was concerned enough to write a letter of complaint in 1988, raising issues similar to those of Mr. Hill. The complaints before me are personal complaints and the evidence of systemic discrimination is only relevant insofar as it provides a context in which to consider what happened to Mr. Hill. The Complainant and Commission described the more general testimony as similar fact evidence, but Mr. Hill's situation seems to have developed independently of any pattern of discrimination in the shop.
(ii) The Application for the Planner III Position [57] While he was assigned to the tire and brake shop, in 1993, Mr. Hill applied for the position of Aircraft Planner III. There was extensive evidence before me regarding the posting of this position, the process of choosing the final applicants, the interview process, the decision-making process and Mr. Hill's response to the decision. The evidence establishes two rather different propositions. The first is that the selection committee assumed that the successful applicant had the proper qualifications for the position. This included an ACA, an Aircraft Certification Authority. It is clear, in retrospect, that he did not have such an authority, or obtain it after receiving the position. This was in clear contravention of the posting.
[58] The second proposition is that the committee had good reasons to reject Mr. Hill's application for the position. Although he was more senior than the successful applicant, he was not familiar with the responsibilities of the Planner III position and did not fare well in the interview. I am of the view that the successful applicant should not have been awarded the position, and I suspect that politics was at work, somewhere. I do not accept, however, that this had any effect on Mr. Hill's candidacy. There is no convincing evidence that the committee had racial motives.
[59] I heard evidence from two members of the committee. The evidence of Mr. Clement, who was very frail, was problematic. Although Mr. Clement was a sincere witness, with a great deal of managerial experience, he clearly changed his scores in a misguided attempt to accommodate the other members of the committee. This was inappropriate, to say the least. It does not establish, however, that the committee had a discriminatory animus. These problems raise issues under the collective agreement, rather than a question under the law of human rights.
[60] I have already stated that I was impressed with the evidence of Scott Hunter, the other committee member who was a forthright witness, with an excellent recollection of the facts. Mr. Hunter was quite willing to acknowledge that the position should not have been awarded to the successful candidate and suggested that the union could have grieved the decision. None of this redeems Mr. Hill's conduct during the interview, which failed to hit the mark. When he was asked why he wanted the position, for example, Mr. Hill went into a relatively long monologue about his aspirations as a novelist. This was unprofessional and clearly out of keeping with the interview process. It probably explains the comments of the third committee member, Ms. Lange, who wrote on her assessment sheet that Mr. Hill was laid back. I think it is stretching the truth to suggest that this comment was racially motivated.
[61] The problem with the case for the Complainant is simply that the evidence does not establish that race was a factor in the selection process. The evidence is merely that Mr. Hill, who was a member of a racial minority, did not receive the position. I think it is fair to say that Mr. Hill would have been entitled to a n