Nielsen v. Nee Tahi Buhn Indian Band

Nielsen v. Nee Tahi Buhn Indian Band
Collection
Canadian Human Rights Tribunal
Date
2019-12-18
Neutral citation
2019 CHRT 50
File number(s)
T2256/1118
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Grounds
National or Ethnic Origin
Race
Religion
Decision Content
Tribunal canadien des droits de la personne
Canadian Human Rights Tribunal
Citation: 2019 CHRT
50
Date: December 18, 2019
File No:
T2256/1118
Between:
Hayley Nielsen
Complainant
- and -
Canadian Human Rights Commission
the Commission
- and -
Nee Tahi Buhn Indian Band
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Background 1
II. Preliminary remark — Minimal participation of the respondent 3
III. Issues in dispute 7
IV. Analysis 9
A. Prohibited ground(s) of discrimination under the CHRA 10
B. Adverse impacts under sections 7 and 14 CHRA and existence of a nexus between the prohibited grounds of discrimination and these adverse impacts 13
(i) The general facts proven at the hearing 13
(ii) Adverse differential treatment in the course of employment (section 7 b CHRA) 17
(iii) Harassment in matters related to employment (section 14 (1)(c) CHRA) 19
C. Lack of justification by the respondent and its liability for the acts committed by Mr. Raymond Morris (sections 15 and 65 CHRA) 21
V. Remedies 22
A. Reparations requested by Ms. Nielsen 22
(i) Damages for discriminatory practice 22
(ii) Damages for lost wages 24
(iii) Letter of apology 28
B. Reparations requested by the Commission 28
C. Interest 31
VI. Decision 33
I. Background
[1] Ms. Hayley Nielsen (complainant) is from Burns Lake, a small community located in British Columbia. She is a member of the Nee Tahi Buhn First Nation (Nation) and holds her “Indian” status under the Indian Act, L.R.C. (1985), ch. I-5. Ms. Nielsen is of mixed origins, her father being Caucasian and her mother being a member of the Nation.
[2] In 2014, Ms. Nielsen applied for nomination as councillor on the Nee Tahi Buhn Indian Band Council (respondent). In December of that year, she was elected for a 4-year term ending in November 2018.
[3] During her term, Ms. Nielsen alleges that she was the subject of discriminatory remarks by the then-Chief of the Nation, Mr. Raymond Morris. These discriminatory remarks were allegedly made in the context of her term for the respondent and referred to her race, national or ethnic origin and religion.
[4] Ms. Nielsen alleges that she had no choice but to leave her position as councillor prematurely in March 2017, due to the toxic environment within the Band Council caused by the actions of Mr. Raymond Morris.
[5] Specifically, she alleges that she underwent an adverse differential treatment in the course of her employment (section 7 CHRA) and that she was the victim of harassment in matters related to employment (section 14 CHRA). These discriminatory acts are alleged to be based on her race, her national or ethnic origin and her religion.
[6] In August 2016 Ms. Nielsen filed a complaint with the Canadian Human Rights Commission (Commission) which was referred to the Tribunal in February 2018. The Commission, which represents the public interest, fully participated in the Tribunal hearing.
[7] Ms. Nielsen is seeking reparations for the alleged discriminatory practices she suffered. She seeks the following remedies:
· $5000 in damages for pain and suffering (subsection 53 (2)(e) CHRA);
· $25,500 in damages for lost wages (honorariums) (subsection 53 (2)(c) CHRA);
· A letter of apology from the respondent, to be published on the Band’s Facebook feed and in the local Burns Lake newspaper.
[8] The Commission, in turn, supports Ms. Nielsen’s reparations, but also seeks systemic reparations, in the public interest, so that such acts do not happen again. It seeks the following remedies, according to section 53(2)(a) CHRA:
· That the respondent cease the discriminatory practices and take measures to prevent such practices from happening again. Specifically, the respondent will have to develop human rights and anti-harassment policies in consultation with the Commission;
· After these policies are created, the respondent is to engage an expert trainer to train the Band Council’s employees, the councillors and the Chief on these new policies.
[9] I would like to specify that the respondent’s participation in the Tribunal process was minimal, on the whole. I will address this problem in section II of this decision (Preliminary remark – Minimal participation of the respondent).
[10] Although Mr. Frank Morris appeared at the hearing as its representative, the respondent did not present a defence in this case.
[11] During the hearing, Mr. Frank Morris was quite inactive. He did not cross-examine Ms. Nielsen and only very briefly cross-examined Ms. Debbie West, a witness of the complainant. He did not file documents or present a defence under section 15 CHRA. Nor did he present any evidence to rebut the presumption of section 65 CHRA.
[12] I have ensured that I have given each party the opportunity to present a complete and full defence and I must render my decision with the evidence that was presented at the hearing, both the limited documentation from Ms. Nielsen, her testimony, that of Ms. West as well as the very short cross-examination and finally the brief testimony of Mr. Frank Morris.
[13] For the following reasons, I find that Ms. Nielsen’s complaint is well founded and I will order compensation for the discrimination she was the victim of (subsection 53 (2) CHRA).
II. Preliminary remark — Minimal participation of the respondent
[14] As previously mentioned, the respondent’s participation in this complaint was minimal. I think it is appropriate to give a brief overview of this lack of participation. Of course, this minimal participation is reflected in the Tribunal’s official record.
[15] When the complaint was referred to the Tribunal, the respondent was represented by Mr. Johny Najm. He was speaking on behalf of the former chief, Mr. Raymond Morris. A statement of facts was filed in the Tribunal’s record. However, no list of documents or witnesses was filed. Mr. Najm also joined a few teleconferences.
[16] That said, in January 2019, Mr. Najm informed the parties and the Tribunal that he was withdrawing from the case and that he would no longer represent Mr. Raymond Morris. At the same time, he informed the Tribunal and the other parties that Mr. Frank Morris would be the respondent’s only witness at the hearing. It was after Mr. Najm’s departure that the respondent’s lack of participation became clear.
[17] Throughout 2019, the Tribunal attempted many times to contact the respondent. These steps, including attempts by the clerks to call, sending emails, and even sending a bailiff to the Band Council office to serve a notice of hearing, were inconclusive. The respondent’s participation was then non-existent.
[18] A hearing was scheduled in April 2019, but was cancelled due to the respondent’s lack of participation. New hearing dates were set in June 2019, but were again postponed due to the respondent’s lack of participation.
[19] After numerous attempts to contact the respondent, the Tribunal was finally able to contact Ms. Patricia Prince, Band Chief at the time, and another councillor, Mr. Mark Morris.
[20] Having contacted them, the Tribunal attempted to convince them to join a teleconference. The first attempt unfortunately failed. The teleconference was postponed and the respondent was informed.
[21] On July 4, 2019, the respondent surprisingly joined a case management teleconference. During this call, four Band Council representatives were present: Ms. Patricia Prince, Mr. Victor Burt, Mr. Mark Morris and Mr. Frank Morris.
[22] Clear instructions were given by the Tribunal during this call for further action. The respondent expressed the desire to retain the services of a lawyer. The Tribunal ordered the respondent to follow up on this matter before August 23, 2019. In addition, hearing dates were set for November 4 to 8, 2019, at Burns Lake, with the consent and availability of all parties, including the respondent’s representatives.
[23] By August 23, 2019, the respondent had not followed up with the Tribunal regarding its efforts to retain the services of counsel. The Tribunal followed up with it, but once again without success.
[24] On September 6, 2019, the Tribunal sent correspondence to the parties declaring the case ready to proceed. The respondent did not respond. On October 11, 2019, the Tribunal sent a notice of hearing to the parties. The respondent did not respond. Finally, on October 29, 2019, the Tribunal sent instructions regarding the filing of documents at the hearing. The respondent still did not respond.
[25] The hearing began on November 4, 2019, 9:30 am, at Burns Lake. Ms. Nielsen was present, as was Ms. Samar Musalam, counsel for the Commission. Mr. Frank Morris, Deputy Chief of the Band, was also present as the respondent’s representative. Considering the presence of all parties, the hearing was able to begin.
[26] The Tribunal heard evidence from Ms. Nielsen and the Commission on that first day. The evidence was succinct.
[27] In the afternoon, when it was the respondent’s turn to present its evidence, Mr. Frank Morris was clearly not ready to proceed. He had documents with him that he wanted to file, but stated that he had run out of time to collect all the documents that he felt were necessary. He explained that he had contacted various individuals to collect the missing documents, but that they had not responded. He also stated that he had run out of ink in his printer.
[28] With the consent of the other parties, the hearing was adjourned to Tuesday, November 5, 2019, to give Mr. Frank Morris a little more time to prepare. The Commission indicated that it had never received any documents from the respondent, and in doing so stated that the admissibility of such documents would eventually have to be addressed.
[29] The following day, Mr. Frank Morris arrived late at the Tribunal hearing. Mr. Frank Morris explained that he had tried to contact the other councillors, but without success. He had also attempted to retrieve certain documents, particularly from the finance department, but without success.
[30] I explained to Mr. Frank Morris that it was the respondent’s turn to present its defence and to file its evidence. I told him this was his opportunity to give his side of the story to the Tribunal. I also pointed out that the respondent should have had time get ready since January 2019 and that the four councillors present on the call in July 2019 were all aware of the hearing.
[31] Mr. Frank Morris testified very briefly, just a few minutes. He also stated that he had no further defence to offer the Tribunal. I made sure that Mr. Frank Morris understood the gravity of the situation and the consequences that would ensue if the respondent did not provide a defence. I asked him several times if he wished to explain to me what he understood about the complaint and make his comments to me, but he declined to do so. I also asked him if he wished to file the documents that he had mentioned the day before, which he immediately declined. Mr. Frank Morris simply had nothing else to add.
[32] I understand from all the exchanges between the parties and the Tribunal that there have been some difficulties within the Band Council including an arbitration which took place in August 2019 in relation to the constitution of the Band Council and the election of the Chief and Councillors. I take note of these difficulties. That said, I have decided that this situation does not prevent the Tribunal from proceeding as planned for several months, especially since the hearing had already been postponed on more than one occasion.
[33] Mr. Frank Morris and Ms. Nielsen confirmed that Ms. Patricia Prince, Mr. Victor Burt and Mr. Frank Morris himself were still on the Council, despite the result of the arbitration. In other words, it appears that the formation of the Band Council has not ultimately changed substantially. I understand that out of 4 members, only one has changed.
[34] I recall that Ms. Prince, Mr. Burt and Mr. Frank Morris were all present on the teleconference of July 4, 2019. Thus, three Council members, including the Chief, were well aware of the Tribunal’s proceedings and the dates of the upcoming hearing. However, only Mr. Frank Morris appeared in person at the hearing to represent the respondent.
[35] Finally, while Ms. Musalam was making her final arguments, Mr. Frank Morris suddenly stood up and stated that he was leaving the hearing. As he was heading for the exit, he stated that he did not have time “for this type of thing”. I asked him whether he would not rather prefer to stay, which he declined and dashed off. He did not return before the hearing closed.
[36] That being said, it is unfortunate that the respondent did not take the opportunity it had to fully participate in the Tribunal’s proceeding. Between January 2019 and November 2019, the Tribunal offered the respondent, on many occasions, the opportunity to present a full and complete defence. After the call on July 4, 2019, and despite the presence of several councillors and the Chief, the respondent chose to limit its participation at the hearing.
[37] Even at the hearing, the Tribunal was flexible and understanding of the respondent’s situation. It gave additional time to the respondent’s representative so that it could retrieve missing documents, prepare its testimony and file its evidence. Nevertheless, the respondent’s representative left the hearing during the final arguments and ultimately did not file any documents.
[38] That said, I recall that the CHRA requires that the complaints’ inquiries be dealt with informally and expeditiously, in accordance with the principles of natural justice and the rules of practice (subsection 48.9 (1) CHRA).
[39] In my view, the respondent had ample opportunity to present, in person or through counsel, its evidence and representations (subsection 50 (1) CHRA) and Rule 1 (1) of the Canadian Human Rights Tribunal Rules of Procedure 03-05-04 (Rules)).
[40] The ultimate role of the Tribunal is to hear the complaint (subsections 48.9 (1), 49 (1) and 50 (1) CHRA) and to decide on it as required by subsections 53 (1) and (2) CHRA.
III. Issues in dispute
[41] The objective of the CHRA is to guarantee each individual the enjoyment of the right to equal opportunities with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations within society, regardless of any considerations based on grounds of unlawful discrimination (section 2 CHRA).
[42] It is well established that in the case of discrimination, it is the complainant’s onus to present sufficient and complete evidence to satisfy the burden of its case. In other words:
[…] sufficient evidence to the contrary is that which relates to the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in favour of the complainant, in the absence of a reply by the respondent employer.
(Ontario Human Rights Commission v. Simpsons-Sears [Simpsons-Sears], [1985] 2 RCS 536, at para. 28)
[43] Three elements must be proved by Ms. Nielsen for her to meet her burden of proof, namely:
1) She has one or more prohibited grounds of discrimination under the CHRA;
2) She has suffered an adverse impact (in this case, under sections 7 and 14 CHRA);
3) The prohibited ground or grounds of discrimination was (were) a factor(s) in the manifestation of the adverse impacts.
(Moore v, British Columbia (Education) [Moore], [2012] RCS 61, at para. 33 and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre) [Bombardier], [2015] RCS 789; Simpsons-Sears, supra, at para. 28).
[44] The evidence presented must be analyzed on the balance of probabilities. I recall that the prohibited ground of discrimination does not have to be the sole factor in the manifestation of the adverse impact. In addition, direct evidence of discrimination or evidence of intent to discriminate is not necessary for the complainant to meet its burden of proof (Bombardier, at paras. 40 and 41).
[45] As the Tribunal often points out, discrimination is not usually committed openly and with intent. In doing so, the Tribunal must analyze all circumstances of the complaint in order to determine whether there is a subtle scent of discrimination (see Basi v. Canadian National Railway Company [Basi], 1988 CanLII 108 [CHRT]).
[46] Circumstantial evidence can help the Tribunal to draw inferences when evidence presented in support of allegations makes such inferences more likely than assumptions or other possible inferences (see Basi, supra). That said, the circumstantial evidence presented at the hearing must still be substantially related to the decision or conduct impugned to the respondent (Bombardier, supra, at para. 88).
[47] It is my view that when the Tribunal analyzes the evidence to determine whether a complainant has met its burden, it must analyze the evidence as a whole. This may include evidence that was presented by the respondent (Brunskill, supra, at para. 64) which, if it so desires, may attempt to rebut the complainant’s evidence.
[48] Thus, the Tribunal could conclude, on the balance of probabilities, that the complainant has, or has not, presented sufficiently complete evidence on these 3 elements. If the evidence is not complete and sufficient, the complaint is rejected.
[49] Conversely, if the Tribunal concludes that the evidence is sufficiently complete, the onus now belongs to the respondent party. The latter may present a justification for its decision or conduct, as provided for by section 15 CHRA. The complainant may, in turn, present evidence to rebut this justification. In doing so, it would attempt to show that the respondent’s justification is, in fact, a mere pretext.
[50] Once again, the Tribunal will assess these elements on a balance of probabilities. It is as a result of all this analysis that the Tribunal may conclude that discrimination exists or not (subsections 53 (1) and (2) CHRA).
[51] Finally, the respondent could limit its liability, in applicable cases, by rebutting the presumption of section 65 CHRA.
[52] It is under this analysis that I will address the evidence presented at the hearing.
IV. Analysis
[53] The facts of this complaint are relatively simple. I should point out that Ms. Nielsen testified at the hearing: her testimony was clear, direct, imbued with certainty and emotion. Ms. Nielsen was able to present the facts of her complaint with specific recollections of the events.
[54] Some of the information she presented at the hearing was corroborated with documentary evidence or the testimony of Ms. Debbie West, making Ms. Nielsen’s testimony credible and reliable.
[55] The respondent did not offer a defence on the record. Mr. Frank Morris provided some information, nothing more. The respondent was unable to neither rebut Ms. Nielsen’s allegations nor attack the reliability of her testimony or that of Ms. West.
[56] Therefore, I have no reason to question the facts that were presented by Ms. Nielsen and her witness, Ms. West. I therefore give credence to the facts they presented to me.
A. Prohibited ground(s) of discrimination under the CHRA
[57] The prohibited grounds of discrimination alleged in Ms. Nielsen’s complaint are national or ethnic origin (Aboriginal and Caucasian origins) as well as religion (non-practising).
[58] According to the evidence presented at the hearing and in her own terms, Ms. Nielsen describes herself as half Aboriginal and half Caucasian. Specifically, her mother is a member of the Nation and holds “Indian” status under the Indian Act. Her father is of Caucasian descent. That is why she defines herself by these two origins. She also confirmed that she held her status under the Indian Act.
[59] Ms. Nielsen also made it clear that she does not practice a religion.
[60] In connection with the evidence filed and the facts of the complaint, for example, it was presented that Mr. Raymond Morris, who had been elected Chief of the Nation on December 12, 2014, for a 4-year mandate, sent emails to Ms. Nielsen calling her a “white bastard”.
[61] It is recognized that the CHRA also prohibits discrimination that is based on the perceived membership in a protected group (see Polhill v. Keseekoowenin First Nation, 2019 CHRT 42, at para. 68. See also Warman v. Kyburz, 2003 CHRT 18, at para. 52; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City of) ; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City of), [2000] 1 R.C.S. 665; Rail Canada Inc. v. Canada (Human Rights Commission.) (no 2) (1999), 33 C.H.R.R. D/127 (CHRT)).
[62] I believe it is the fact that Ms. Nielsen is perceived to be of Caucasian origin (in other words, “white”, to use the words of Mr. Raymond Morris) that is at issue in this complaint. I recall that Ms. Nielsen is also of Aboriginal origin, her origins coming from her maternal lineage.
[63] As for religion, it is the fact that Ms. Nielsen does not practice a religion, specifically that she does not pray at the beginning of Band Council meetings, nor at the beginning of public meetings, that prompted derogatory comments by the former chief Mr. Raymond Morris.
[64] It is interesting to note that, to my knowledge, the Tribunal has never dealt with the question of whether the fact of not practicing a religion, of having no religion, of being a non-believer, of being an atheist or agnostic is covered by the prohibited ground of discrimination of religion under section 3 CHRA.
[65] I do not intend to dwell at length on the subject since I firmly believe that the ground of religion includes the fact of not practicing religion, of not having a religious belief, of being atheistic or agnostic, or a non-believer.
[66] The purpose of the CHRA is to allow individuals to be equal in fact and in law, independently of any personal characteristics. It is the fundamental concept of equality of chances, equality of opportunities, which is the essence of our Act (see section 2 CHRA).
[67] The CHRA aims to protect individuals against discriminatory practices that are based in particular on their personal characteristics. In this case, it is religion. Whether in matters of employment, services, property, facilities, accommodation, commercial premises or residential accommodation, etc. (sections 5 to 14.1 CHRA), all individuals are entitled to equal opportunities, regardless of whether they have one or more beliefs, or have none.
[68] Interpreting the CHRA otherwise could lead to absurd results in that people who are non-practicing, non-believers, atheistic, agnostic, etc., would not receive any protection under our Act because they do not have, strictly speaking, a religion. Let us illustrate this potential non-sense with a simple example.
[69] An employer embraces religion x and requires that his 3 employees (A, B and C) submit to the practices of this religion x. A is a non-believer; B and C practise religion y. The employees consider that the employer’s requirements are discriminatory and want to file a complaint about it.
[70] If we consider that the fact of being non-believing, non-practicing, atheistic, agnostic, etc., is excluded from the prohibited grounds of discrimination of religion (section 3 CHRA), only employees B and C would, in fact, be protected by the CHRA. Why? Because they identify with a religion or because they practice a religion, unlike employee A. Therefore, only employee A, who is non-believing, non-practicing, atheistic or agnostic, would have no remedy under the CHRA. This is illogical.
[71] This result would be nonsense and is not at all the purpose of the CHRA. Even more so, it is precisely the equal opportunities for all that the CHRA aims to protect, independently of their membership in a religion or not.
[72] If a doubt persists, I recall that our Tribunal is obliged to consider the values of the Canadian Charter when interpreting its own Act (see Doré v Barreau du Québec, 2012 SCC 12, at para. 35 and Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42).
[73] Thus, the precepts established by the Supreme Court of Canada in matters of religion, freedom of religion, beliefs, etc., are clearly fundamental to the CHRA.
[74] Without going into a review of the jurisprudence in the matter, suffice it to say that the concept of freedom of religion has generated a great deal of ink, including by the Supreme Court of Canada. It has been a long time since the Supreme Court confirmed that the Canadian Charter protects both believers and non-believers (section 2a) Canadian Charter. See also R. v. Big M Drug Mart Ltd., [Big M Drug Mart], [1985] 1 RCS 195, at para. 123; S.L. v. Commission scolaire des Chênes, [2012] CSC 7, at para. 32)
[75] Provincial courts have followed the important teachings of the Supreme Court in this area and have in turn confirmed that non-believers and believers are equal in fact and in law and benefit from the same protections (see, for example, Commission des droits de la personne et des droits de la jeunesse (in Québec, see for example Payette v. Laval (City of), 2006 QCTDP 17, at paras. 108 and subsequent. In Ontario, see, for example, R.C. v. District School Board of Niagara, 2013 HRTO 1382. In British Columbia, see, for example Mangel and Yasué obo Child A v. Bowen Island Montessori School and others, 2018 BCHRT 281).
[76] Accordingly, I conclude that Ms. Nielsen was able, on a balance of probabilities, to prove that she has two prohibited grounds of discrimination under the CHRA, namely national or ethnic origin and religion (Moore, supra).
B. Adverse impacts under sections 7 and 14 CHRA and existence of a nexus between the prohibited grounds of discrimination and these adverse impacts
[77] For the following reasons, I find that Ms. Nielsen was able to demonstrate, on a balance of probabilities, that she has suffered an adverse impact under sections 7 and 14 CHRA. She was also able to prove the existence of a nexus between this adverse impact and the prohibited grounds of discrimination that are her national or ethnic origin and her religion.
(i) The general facts proven at the hearing
[78] Ms. Nielsen is a member of the Nee Tahi Buhn Nation. In 2014, she applied to be appointed as councillor on the Band Council. She won her election and was appointed for a 4-year mandate, beginning on December 12, 2014, and ending on November 12, 2018.
[79] 3 other members were elected: Ms. Charity Morris (Councillor), Mr. Cody Reid (Deputy Chief) and Mr. Raymond Morris (Chief). I understand from the evidence that Mr. Reid is the son of Ms. Nielsen.
[80] Ms. Nielsen explained that she had decided to run for office so that she could participate actively in her community and be involved with its members.
[81] It was expected that councillors would receive a salary of $1500 per month for their work, and the Chief $2500. Ms. Nielsen calls them honorariums, which is of little importance in our circumstances. In addition, it was not discussed that Ms. Nielsen would not be able to keep her other job at the water plant, a job which she retained.
[82] At the beginning of her mandate, Ms. Nielsen confirmed that the relationship between herself, the councillors and the Chief was good. Collaboration was the order of the day, and the atmosphere was pleasant.
[83] She quickly addressed the issue of not practicing religion with the general manager of the Band, who at the time was the wife of Mr. Raymond Morris. Ms. Nielsen explained that she did not wish to pray at the beginning of the council meetings or assemblies. She also did not want to be asked to say or make the prayer. She was told that this would not be a problem.
[84] Ms. Nielsen explained that the situation quickly began to deteriorate between her and the Chief. When the councillors took a different position than Mr. Raymond Morris, that was when everything got worse. According to her, he liked everything to go his way. The situation gradually deteriorated and the working environment became increasingly negative and cold.
[85] Ms. Nielsen stated that Mr. Raymond Morris was sending her very negative comments both by text message, emails and by voice. Among others, he told her that she should not have had the opportunity to sit on the council because she was non-practicing.
[86] Ms. Nielsen does not have a copy of these text messages, which she states she ignored for some time. But in her testimony, it is clear that the situation persisted over time and that it happened on a number of occasions. She added that the manager of the Band, the wife of Mr. Raymond Morris, attempted to mitigate her husband’s reactions by saying that he had had a bad night.
[87] Without going into all the details, an incident occurred in May 2016 when the councillors tried to limit the use of certain sums of money by Mr. Raymond Morris. Some explanations are included in an email from Ms. Nielsen sent to Mr. Raymond Morris dated May 16, 2016. It appears that he did not appreciate this approach by the councillors because he virulently replied to Ms. Nielsen.
[88] Two emails were sent by Mr. Raymond Morris to Ms. Nielsen in May 2016, during this series of events. The two emails were filed at the hearing.
[89] In the first, Mr. Raymond Morris wrote: “I resign fucken[sic] white bastards run it”. I understand that when he says “run it”, he was referring to the leadership of the Council or the Band, but this is of little relevance. In the second email, he continued his comments and wrote again to Ms. Nielsen: “white bastards”.
[90] Ms. Nielsen felt directly targeted by these vulgar words, which refer directly to her Caucasian origins. She also explained that she felt that her son, Mr. Reid, was also the target of these comments.
[91] Following receipt of these emails, a public assembly was held on May 17, 2016. It was scheduled for 9 am, but Mr. Raymond Morris arrived nearly three hours late. Ms. Nielsen testified that she had approached him before the assembly to ask him if he wanted to meet her in private and discuss the emails of the previous days. He declined her offer and told her that he stood by his words. She also asked him if he wanted to apologize for having called her “white bastard”, to which he replied that he doesn’t apologise.
[92] The assembly began and Ms. Nielsen explained that at this type of assembly, members of the community can attend. There were members of the public in the room and Mr. Raymond Morris, in front of everyone and including the other councillors, loudly proclaimed that since Ms. Nielsen does not practice religion, she should not serve as a councillor.
[93] Ms. Nielsen, when she testified about this event, broke down in tears. I note that this event still hurts her. The resurfacing memories do not allow her to contain her tears. The words still make her suffer and it is clear that she is still shocked by the remarks made by Mr. Raymond Morris.
[94] Ms. Nielsen had already explained to the manager of the Band as well as to the councillors that she would not be praying. This had not been a problem in the past. As such, she does not understand why Mr. Raymond Morris suddenly stated publicly and to members of her community that she had no religious beliefs and that for this reason she should not sit on the council.
[95] She also confirmed that Mr. Raymond Morris had never apologized for what had happened. She is well aware that Mr. Morris’s intervention at this meeting was unfair, especially since she has always respected the religious beliefs of others.
[96] Despite this event, Ms. Nielsen remained in office until March 2017, almost ten months later. However, because of the harassment and unfair treatment she was subjected to at the hands of Mr. Raymond Morris and the resulting toxic environment, she decided to resign.
[97] The evidence shows that she is not the only councillor to have left her position: Ms. Charity Morris also resigned because of the harassment committed by Mr. Raymond Morris. Finally, her son Mr. Cody Reid, who was Deputy Chief, also left office before the end of his term.
[98] That said, Ms. Nielsen stated that she believed that the respondent did not have any policy against harassment nor a human rights policy. The only training she remembers attending was provided by the police department in relation to violence.
[99] Ms. Nielsen testified that her experience as a councillor was stressful for her and that the work environment affected her greatly. Mr. Raymond Morris’s messages, comments and emails were vulgar and affected her greatly. The working environment was cold, negative and unhealthy. Ms. Nielsen explained that she avoided going to the office when she could, to escape the toxic environment caused by Mr. Raymond Morris. She was only going to the office when necessary, for example for meetings and assemblies.
[100] Ms. Debbie West, who was manager of the Band Council, testified in the same vein as Ms. Nielsen. She described the work environment as negative and toxic. She was also the object of remarks by Mr. Raymond Morris. When she talks about it, Ms. West becomes very emotional: tears flow. I see that she is still affected by what may have happened in her own professional relationship with Mr. Raymond Morris.
[101] Ms. Nielsen testified that the effects of Mr. Raymond Morris’s actions are still present to this day. His public comments have tarnished her reputation. She explained that Mr. Morris spread false information about her in connection with her term as councillor. This false information concerned, among other things, her involvement in management of the Council and the undue use of certain sums of money.
[102] Ms. Nielsen also explained that she had been threatened and intimidated since her complaint was filed. Some people think that she should not have the opportunity to continue working at the water plant while the proceedings of our Tribunal are under way. Another councillor, Mr. Mark Morris, also mentioned that she should not have the right to remain within the Nation while the proceedings are under way.
[103] I do not intend to dwell further on these matters, but suffice it to note that the deterioration of this relationship between Ms. Nielsen and Mr. Raymond Morris appears to have had repercussions far beyond the specific facts of this complaint.
[104] Once again, Ms. Nielsen struggled to hold back her tears when she recounted these collateral effects to me. She explained that she is still under stress from everything that has happened and has a great deal of difficulty sleeping. She still feels the negativity and consequences of these events, which prevents her from continuing her life with serenity.
(ii) Adverse differential treatment in the course of employment (section 7 b CHRA)
[105] That being said, section 7 CHRA prohibits anyone, directly or indirectly, to refuse to employ or to continue to employ any individual (subsection a) or to adversely differentiate them in the course of employment (subsection b).
[106] It is clear to me that it is subsection 7 b) CHRA that applies in the circumstances since the respondent did not refuse to employ or continue to employ Ms. Nielsen. It is rather the respondent’s adverse differential treatment that is in play in this complaint, adverse differential treatment which has caused adverse impacts to Ms. Nielsen. It was the consequence of these adverse impacts that ultimately led Ms. Nielsen to resign prematurely from her position.
[107] As I have already explained in Brunskill v. Canada Post Corporation, 2019 CHRT 22, at paras. 90 and subsequent, when we analyze section 7 CHRA, the content of subsection 15 (1) (a) CHRA is relevant to the extent that it is the defence that a respondent may invoke to justify adverse differential treatment.
[108] Specifically, subsection 15 (1) (a) CHRA provides that “[i]t is not a discriminatory practice if” “any refusal, exclusion, expulsion, suspension, limitation, specification or preference” is based on a bona fide occupational requirement. In other words, an employer who refuses, excludes, suspends, limits or who puts in place conditions or limitations on an employee could be justified in so doing if it can demonstrate that it was a bona fide occupational requirement. The bona fide occupational requirement is provided for in subsection 15 (2) CHRA.
[109] Therefore, refusals, exclusions, expulsions, suspensions, limitations, specifications or preferences represent actions that could be committed by an employer and which, without justification, could be considered as adverse differential treatment of an employee in the course of employment.
[110] In this case, the evidence shows that Mr. Raymond Morris, who, I recall, was Chief of the Nation and sat on the Band Council with three other councillors, expressed his belief that Ms. Nielsen should not have the opportunity to sit on the Council because she does not practice religion. These comments, made at the assembly of May 17, 2016, in the presence of other councillors and members of the community, are particularly categorical, brutal and shocking.
[111] When relying on the grounds of religion, Mr. Raymond Morris attempted to suppress Ms. Nielsen’s right to equal opportunities, by stating publicly that since she does not practice a religion, she should not have the opportunity to hold the position of councillor.
[112] Similarly, Mr. Raymond Morris’s vulgar comments, specifically the terms “white bastard”, are outrageous. These comments are directly based on Ms. Nielsen’s mixed origins. She felt that because of her origins she was treated differently, which is also an infringement of section 7 b) CHRA.
[113] The Federal Court of Appeal, in Tahmourpour v. Canada (Attorney General), 2010 CAF 192, at para. 12, teaches us that for an adverse differential treatment to be discriminatory, it must be harmful, hurtful or hostile.
[114] The evidence shows that Mr. Raymond Morris’s comments, both about Ms. Nielsen’s origins and her religion, were hostile, hurtful and harmful. And since I have no reason to question the credibility and reliability of the testimony of Ms. Nielsen and Ms. West, I believe that Ms. Nielsen was able to meet her burden of proof and demonstrate that her national or ethnic origin as well as her religion were a factor in the adverse differential treatment in the course of employment, pursuant to section 7 CHRA. She therefore meets the three criteria of Moore, supra.
(iii) Harassment in matters related to employment (section 14 (1)(c) CHRA)
[115] Subsection 14 (1)(c) CHRA provides that harassing someone in matters related to employment on a prohibited ground of discrimination is a discriminatory practice.
[116] Harassment is not defined in the CHRA. That said, the Tribunal’s jurisprudence provides a useful and relevant insight into what constitutes harassment in matters related to employment, which is generally defined as unsolicited or unwelcome conduct, linked to a prohibited ground of discrimination and which has adverse consequences for the victim (see for example Alizadeh-Ebadi v. Manitoba Telecom Services Inc. [Alizadeh], 2017 CHRT 36, at para. 163 as well as Morin v. Canada (Attorney General) [Morin], 2005 CHRT 41, at para. 246).
[117] The Tribunal has often written that harassment is essentially the creation of a hostile work environment that undermines the complainant’s personal dignity (see, among others, Alizadeh, supra, at para. 163, Dawson v. Canada Post Corporation, 2008 CHRT 41; Chopra v. Health Canada,