Willcott v. Freeway Transportation Inc.

Willcott v. Freeway Transportation Inc.
Collection
Canadian Human Rights Tribunal
Date
2019-08-13
Neutral citation
2019 CHRT 29
File number(s)
T2149/2316
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
Disability
National or Ethnic Origin
Race
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
29
Date:
August 13, 2019
File No.:
T2149/2316
Between:
Corey Willcott
Complainant
‑ and ‑
Canadian Human Rights Commission
Commission
‑ and ‑
Freeway Transportation Inc.
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Complaint overview 1
II. Issues 2
III. Applicable law 2
IV. Complaint background: who are Freeway and Mr. Willcott? 7
V. Analysis 10
A. Does Mr. Willcott have one or more prohibited grounds of discrimination protected by the CHRA? 10
B. Did Mr. Willcott sustain one or more adverse impacts (sections 7 and 14 of the CHRA), does a link with a prohibited ground of discrimination exist and what is Freeway’s justification (section 15 of the CHRA)? 11
(i) Incidents involving Mr. Marshall 11
(a) Racist insults and threats on March 6, 2013 11
(b) Incidents involving forced leave on June 7 and October 25 and 27, 2013 13
(c) Incidents involving incitement to sell drugs 14
(d) Conclusions as to the incidents involving Mr. Marshall and Freeway’s possible justifications 14
(ii) Antifreeze incident of June 11, 2013 21
(iii) Termination in November 2013 21
(iv) Incident involving Ms. McNab and alleged sexual harassment 25
(v) Reinstatement in June 2014 and exclusion from the truck driver position due to disability 29
(vi) Return to work, use of medicinal marijuana and exclusion from the truck driver position in October 2016 42
VI. Remedies 47
A. Discrimination under sections 7 and 14 of the CHRA involving Mr. Marshall 47
(i) Forced leave 48
(ii) Mr. Marshall’s harassment 49
B. Discrimination under section 7 of the CHRA in relation to the termination 52
C. Discrimination under section 7 of the CHRA following reinstatement 53
D. Reimbursement for medicinal marijuana prescription 56
VII. Interest 57
VIII. Decision 58
I. Complaint overview
[1] Corey Willcott is a truck driver who works for Freeway Transportation Inc. This company operates in the Greater Toronto Area and among other locations. Mr. Willcott believes that his employer did not provide him with a work environment free of harassment (paragraph 14(1)c) of the CHRA), which he alleges was committed by the company’s General Manager, James Marshall. He also deems that Freeway Transportation Inc. did not provide him with an environment free of sexual harassment (paragraph 14(1)(c) and subsection 14(2) of the CHRA), which he alleges was committed by Nicole McNab, a dispatcher. He also considers his termination to be discriminatory (paragraph 7(a) of the CHRA). Lastly, he believes that he was subject to adverse differential treatment in the course of employment (section 7 of the CHRA), particularly by being forced to take leave when it was not his turn, and then upon his reinstatement. He further believes that the employer failed to fulfill its duty to accommodate.
[2] Mr. Willcott alleges that the employer’s discriminatory practices were committed because of his sex, disability, national or ethnic origin, and race (subsection 3(1) of the CHRA). These are the reasons for which he filed a complaint with the Canadian Human Rights Commission against Freeway Transportation Inc.
[3] For these discriminatory practices, Mr. Willcott is seeking monetary compensation (subsections 52(2) and (3) of the CHRA). He is claiming:
· $20,000 total in damages for pain and suffering (paragraph 53(2)(e) of the CHRA);
· $20,000 total in special compensation for willful or reckless discriminatory practices (subsection 53(3) of the CHRA);
· lost wages and reimbursement of drug costs (paragraph 53(2)(c) of the CHRA).
[4] During the hearing, I heard from only two witnesses: the Complainant himself and Ms. Crawford, the company’s representative. The parties filed concise documentary evidence, namely two binders identified as C‑1 and R‑1.
[5] I must base my decision on the testimonial and documentary evidence presented to me at the hearing. For the reasons that follow, I allow Mr. Willcott’s complaint in part (subsections 53(1) and 53(2) of the CHRA).
II. Issues
[6] The issues are as follows:
1) Did Mr. Willcott meet the burden of proof for his case—hat is, was he able to prove the following three elements?
a. Mr. Willcott has one or more prohibited grounds of discrimination protected by the CHRA.
b. Mr. Willcott suffered one or more adverse impacts (termination of employment, adverse differential treatment in the course of employment, harassment (sections 7 and 14 of the CHRA)).
c. One prohibited ground of discrimination (sex, disability, national or ethnic origin, race) was a factor in the adverse impact.
2) If yes, was the employer able to present a defence (section 15 of the CHRA) or limit its liability (section 65 of the CHRA)?
3) If not, what remedies should the Tribunal order (subsection 53(2) of the CHRA)?
III. Applicable law
[7] The purpose of the CHRA is to guarantee that all individuals should have an opportunity equal 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 as members of society, without being hindered in or prevented from doing so by discriminatory practices (section 2 of the CHRA).
[8] In the adjudication of complaints within the Tribunal, the Complainant is required to meet the burden of proof for his or her case (traditionally referred to as a prima facie case of discrimination; see, for example, Brunskill v. Canada Post Corporation [Brunskill], 2019 CHRT 22, at paras. 56 to 58). Mr. Willcott must therefore present sufficient proof, on the balance of probabilities and in the absence of evidence to the contrary, that there is discrimination. To echo the words from the decision in Ont. Human Rights Comm. v. Simpsons‑Sears (Simpsons‑Sears), [1985] 2 SCR 536, at para. 28:
. . . A prima facie case . . . is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.
[9] The Supreme Court of Canada, in the decision in Moore v. British Columbia (Education) [Moore], [2012] SCR 61, at para. 33, developed a three‑step analysis of discrimination. Mr. Willcott must therefore show:
(1) that he has a prohibited ground of discrimination protected by the CHRA (in the case at hand, he is reffering to disability, national or ethnic origin, race or sex, or a combination of these grounds);
(2) that he experienced an adverse impact—that is— he was treated differentially in the course of employment or harassed in respect of employment, pursuant to sections 7 and 14 of the CHRA;
(3) that the prohibited ground of discrimination (disability, national or ethnic origin, race or sex) was a factor in the adverse impact experienced.
[10] As noted in the decision of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) [Bombardier], [2015] SCR 789, the evidence presented at the hearing must be analyzed based on the balance of probabilities. There is no need to demonstrate that the prohibited ground of discrimination was the only factor in the adverse impact that the Complainant allegedly suffered. Lastly, direct evidence of discrimination is not necessarily needed just as proof of the intention to discriminate is not mandatory (Bombardier, at paras. 40 and 41).
[11] There have been repeated reminders that discrimination is not usually committed overtly or with intent. The Tribunal must therefore analyze all of the circumstances of the complaint in order to determine whether there is a subtle scent of discrimination (see Basi v. Canadian National Railway [Basi], 1988 CanLII 108 (CHRT)). Circumstantial evidence can also help the Tribunal draw inferences when the evidence that was offered in support of the allegations renders such an inference more probable than the other possible inferences or hypotheses (see Basi, above). The circumstantial evidence offered must nonetheless be tangibly related to the respondent’s decision or conduct (Bombardier, above, at para. 88).
[12] I am of the opinion that when the Tribunal analyzes the evidence in order to determine whether a complainant has met the burden of proof for his or her case, it must consider the evidence in its entirety, which can include evidence filed by the respondent (Brunskill, above, at para. 64). The Tribunal could also conclude that the complainant failed to meet his or her burden of proof if the evidence that he or she presented is not sufficiently complete to show that discrimination exists, in the absence of evidence to the contrary (Simpsons‑Sears, at para. 28). The Tribunal can also dismiss the complaint if the respondent is able to present evidence that, for example, refutes the complainant’s allegations, thus preventing the latter from meeting the burden of proof for his or her case.
[13] If, on the contrary, the complainant meets the burden of proof for his or her case, the respondent has the opportunity to use one of the defences provided for in section 15 of the CHRA or can try to limit its liability under section 65 of the CHRA, as applicable. In the case at hand, Freeway entered the defence provided for in section 15 of the CHRA.
[14] Regarding harassment, the CHRA does not offer a specific definition as to what constitutes harassment. Thus, the guides and principles developed by the different courts and tribunals are quite useful. Pursuant to the CHRA, harassment is defined in general terms as unwelcome conduct that detrimentally affects the work environment or leads to adverse job‑related consequences for the victim (Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, at p. 1284). My colleague Edward P. Lusting summarized various elements to analyze when it comes to harassment in his decision at para. 163 of Alizadeh-Ebadi v. Manitoba Telecom Services Inc., 2017 CHRT 36 :
the conduct has to be unwelcome by the victim and related to a prohibited ground of discrimination that detrimentally affects the work environment or leads to adverse job related consequences for the victim;
Morin, above.
the gravamen of harassment lies in the creation of a hostile work environment which violates the personal dignity of the complainant;
Dawson v. Canada Post Corporation, 2008 CHRT 41 (“Dawson”).
in certain circumstances a single incident may be enough to create a hostile work environment and in others some element of repetition or persistence is required.Accordingly, the nature of the conduct should be calculated according to the inversely proportional rule: the more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated;
Dawson, above.
harassment does not include expressions that are rude and offensive but not connected to a particular characteristic.Conduct can be offensive and based on personal circumstances, but not repetitive enough or serious enough to constitute harassment under the CHRA;
Morin, above.
in determining whether the conduct is unwelcome, an objective standard must be applied based on what a reasonable person would perceive from the perspective of the victim;
Hill, above.
in assessing the “reasonableness” of the conduct at issue, the touchstone is the usual limits of social interaction in the circumstances.The following more specific factors are relevant in the determination:the nature of the conduct; the workplace environment; the pattern of prior conduct between the parties; whether the alleged harasser is in a position of authority over the complainant; and whether an objection has been made.
Hill, above.
by virtue of section 65 of the CHRA any act or omission committed by an employee of an association or organization, in the course of employment of said employee, shall, for the purposes of the CHRA, be deemed to be an act or omission committed by that association or organization.This remains the case unless the association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and subsequently, to mitigate or avoid the effect thereof;
employers have an obligation to their employees to create and maintain a discrimination-free work environment and their duty of diligence exists once it becomes aware of an act that, by reason of its intrinsically offensive, humiliating or degrading character, would likely degenerate into harassment if it were subsequently repeated.
Dawson, above.
the existence of an anti-harassment policy itself is not enough to release the employer from all due diligence.There is a positive duty upon an employer to take prompt and effectual action when it knows or should know of the conduct in the workplace amounting to racial harassment and to avoid liability, the employer is obliged to take reasonable steps to alleviate, as best it can, the distress arising within the workplace and to reassure those concerned that it is committed to the maintenance of a workplace free of racial harassment.
Hinds v. Canada, 1988 CarswellNat 993.
[Member Lustig makes reference to the following decisions: Morin v. Canada (Attorney General), 2005 CHRT 41 and Hill v. Air Canada, 2003 CHRT 9]
[15] Actions or conducts of harassment must be sexual in nature to be deemed as sexual harassment (see Franke, supra).
[16] Finally, the undersigned also concluded in Duverger v. 2553‑4330 Québec Inc. (Aéropro), 2019 CHRT 18 that when Tribunal analyses allegations of harassment in matters related to employment, the creation of a hostile or a poisoned work environment is not necessarily a factor to consider. This will depend on the circumstances. In some instances, the question lies in determining if a sufficient nexus exists between the allegations of harassment and the employment context. This interpretation allows to include, for example, cases of post-employment harassment under the umbrella of the CHRA.
[17] Bearing these principles in mind, and given our Tribunal’s many reminders, I will analyze Mr. Willcott’s complaint (see, among others, Morin v. Canada (Attorney General), 2005 CHRT 41, at paras. 245 and 246; Alizadeh‑Ebadi v. Manitoba Telecom Services Inc., 2017 CHRT 36, Stanger v. Canada Post Corporation, 2017 CHRT 8, Siddoo v. International Longshoremen’s and Warehousemen’s Union, Local 502, 2015 CHRT 21, decision affirmed 2017 FC 678, Duverger v. 2553‑4330 Québec Inc. (Aéropro), 2019 CHRT 18).
IV. Complaint background: who are Freeway and Mr. Willcott?
[18] Freeway Transportation Inc. is a trucking and freight transportation company headquartered in Brampton, Ontario. They operate in various locations, including in Brampton, Cambridge and Hamilton. They have only one client, a company called ABF, which is separate from Freeway; they have their own staff, their own clients and their own equipment. This company takes care of their clients’ freight, provides trailers, and ships and distributes goods.
[19] Freeway’s role is to provide trucks so that their only client, ABF, can attach trailers to them. They are also responsible for supplying truckers whose licenses are in good standing, in addition to training them.
[20] The relationship between the two companies seems vital because without Freeway, ABF would not be unable to ship and distribute goods as they would have no trucks to pull its trailers. Conversely, without ABF, Freeway would have no trailers to attach to their trucks. Lastly, ABF also acts as a dispatcher for Freeway.
[21] Freeway is a small company that, at the time of the incidents, employed approximately 45 to 50 employees. Of this number, nearly all were labourers. This included truck drivers, mechanics and loading dock employees.
[22] Since ABF is Freeway’s only client, not many employees are required for administrative tasks. In 2013, just two employees performed this type of task, which included invoicing and accounts payable. Some other individuals had tasks that were rather organizational or managerial in nature. One example is Freeway’s owner, Stewart Crawford, and his daughter, Caitlyn Crawford.
[23] Mr. Willcott is a professional truck driver. His license allows him to drive semi‑trailers. In the past, he worked for Freeway as a truck driver on three separate occasions. It was not until May 27, 2011, that he began to work there regularly.
[24] In October 2013, Mr. Willcott was involved in an accident between his truck and another vehicle. This accident occurred during his work hours. Unfortunately, the accident caused him to sustain serious injuries to his neck, shoulder and left arm on the left side.
[25] During the hearing, Mr. Willcott and the Freeway representative explained that the relationship between them was good initially. Ms. Crawford testified that Mr. Willcott was, all in all, a good truck driver. However, some problems emerged in 2012, particularly between Mr. Willcott and some other individuals in the workplace.
[26] The situation deteriorated in 2013, mainly as a result of various incidents cited by Mr. Willcott that are part of the present complaint. These incidents involved, among others, James Marshall, the General Manager of Freeway, and Nicole McNab, the ABF dispatcher.
[27] Another part of Mr. Willcott’s complaint pertains to his termination of employment in November 2013 as well as his attempted reinstatement in June 2014. This reinstatement was the result of an arbitral award made by arbitrator Diane Gee, to whom the dispute had been submitted under the Canada Labour Code. When Mr. Willcott tried to return to work in June 2014 following this award, he was prevented from doing so for two reasons. He was still suffering from the effects of his 2013 truck accident, which is what he told Freeway. It was not until October 2016 that Mr. Willcott was able to undergo an independent medical assessment to confirm that he was fit to return to work. And, despite this positive medical report, it was at this time that Freeway learned that Mr. Willcott used medicinal marijuana to alleviate his pain. In response to this information, they asked Mr. Willcott to provide more information in that regard before they would allow him to work. Therefore, Mr. Willcott could not actively resume work. He alleges that this constitutes discrimination based on disability.
[28] The parties made my task difficult because the evidence is based solely on documentation filed at the hearing and on Mr. Willcott’s and Ms. Crawford’s testimony. I could not hear testimony from Ms. McNab or Mr. Marshall because they were not called to testify at the hearing. These individuals would likely have shed light on some of the specific aspects of the case. Lastly, another individual with considerable involvement in the various alleged incidents, Jeff Felix, was not called as a witness either. Like the others, his testimony could have been useful to me.
[29] That said, Ms. Crawford and Mr. Willcott were, in my opinion, honest and forthcoming in their testimony. Both were answering questions in a succinct and frank manner, such that I did not question their credibility. Some elements in their testimonies seemed less reliable to me, but I reiterate that credibility and reliability are two different things. A witness can testify in a credible manner about facts that he or she believes to be true, but some of the information may not be reliable for various reasons (for example, the time elapsed, memory loss, stress and anxiety).
V. Analysis
A. Does Mr. Willcott have one or more prohibited grounds of discrimination protected by the CHRA?
[30] Yes, Mr. Willcott demonstrated that he has prohibited grounds of discrimination protected by the CHRA. These grounds are sex, race, national or ethnic origin, and disability.
[31] Mr. Willcott is a man who identified himself as Aboriginal. Freeway did not file evidence refuting these aspects.
[32] The fact that the Complainant had a road accident in October 2013 involving his truck and another vehicle is also not contested. An ABF dispatcher had cargo to deliver to a client and assigned this task to Mr. Willcott. After reaching the client, the cargo was to be unloaded from the trailer. Mr. Willcott and the client noticed that a pump truck was missing for unloading the goods. The evidence shows that the dispatcher is normally responsible for enquiring about the client’s needs. This way, the dispatcher can ensure that the truck driver and the client have all the equipment they need to unload the goods.
[33] Since the cargo could not be unloaded, Mr. Willcott continued on his way. Despite driving carefully because the trailer was loaded with heavy goods, Mr. Willcott was forced to hit the brakes because another road user had crossed a street illegally. The goods began to move, striking the back of the trailer with full force. The impact caused a nerve in Mr. Willcott’s neck to get pinched. This nerve was damaged, sending pain all the way to the fingertips of his left hand.
[34] Despite the pain, the Complainant continued to work after the accident. Freeway suggested that he see a doctor, but Mr. Willcott refused.
[35] The evidence shows that Mr. Willcott ultimately saw a doctor shortly after because he underwent extensive medical tests. A specialist issued a diagnosis of a pinched nerve in his neck, leading to chronic pain in his neck, left shoulder and left arm, all the way to his fingertips. Mr. Willcott said that at the time, the pain was also disturbing his sleep.
[36] In the case at hand, Mr. Willcott’s injury and resulting chronic pain are a disability within the meaning of the CHRA. The evidence is clear in this regard and shows that Mr. Willcott’s injury and the pain sustained caused functional limitations (section 25 of the CHRA; see also Desormeaux v. Ottawa (City), 2005 FCA 311; Audet v. Canadian National Railway, 2005 CHRT 25, at para. 39; Temple v. Horizon International Distributors, 2017 CHRT 30, at paras. 38 to 40).
B. Did Mr. Willcott sustain one or more adverse impacts (sections 7 and 14 of the CHRA), does a link with a prohibited ground of discrimination exist and what is Freeway’s justification (section 15 of the CHRA)?
[37] I will now analyze Mr. Willcott’s various allegations to determine whether he sustained an adverse impact under section 7 or 14 of the CHRA. At the same time, I will determine whether one of the prohibited grounds of discrimination put forward was a factor in this adverse impact.
[38] Lastly, I will analyze whether Freeway was able to provide a justification for the alleged conduct or whether they were able to limit their liability.
(i) Incidents involving Mr. Marshall
(a) Racist insults and threats on March 6, 2013
[39] During the hearing, Mr. Willcott explained that incidents prior to 2012 had occurred in the workplace. Clearly, this is not part of the complaint before me. Nonetheless, it offers a better understanding of the context surrounding the case. It appears that Mr. Willcott had had interpersonal problems for some time with certain people at work, particularly Mr. Marshall.
[40] Since only the facts beginning in March 2013 fall within the scope of the complaint, I will address Mr. Willcott’s allegations against Mr. Marshall and Freeway from that point forward.
[41] It is important to note that at the time of the allegations, according to the evidence, Mr. Marshall was the General Manager at Freeway. He was therefore not only involved in the company’s activities, but also held a supervisory role.
[42] Mr. Willcott testified that on March 6, 2013, an incident occurred between him and Mr. Marshall when he was supposed to make a delivery with trailer number 2022. This trailer had some defects. Mr. Willcott informed Mr. Marshall of the issues. However, other deliveries had to be made with the same trailer the same day. Mr. Marshall asked Mr. Willcott to make the deliveries with trailer 2022 anyway, which Mr. Willcott refused because he felt that it was not safe to do so.
[43] Mr. Marshall became angry with him, yelled and spat in his face. He also assumed a threatening posture against him. It was during this altercation that he made racist remarks about Mr. Willcott, calling him a dirty Indian. He also said that no one cares for him and his kind. Mr. Marshall went even further by saying that it was pointless for Mr. Willcott to complain to the company’s owner, Mr. Crawford, because he too hates his kind of people. Lastly, Mr. Marshall threatened Mr. Willcott with reducing his work hours or even ensuring that he would be the first dismissed from the company.
[44] Mr. Willcott stated that he reported the issues he was having with Mr. Marshall to Freeway, but feels that the company did not do what they should have to rectify the situation. This inaction on Freeway’s part angered Mr. Willcott.
[45] Ms. Crawford testified that she had no knowledge of this incident and that she only learned what had happened from reading the complaint. She stated that neither Mr. Willcott nor any other employee had reported this event. After reading the complaint, she looked into the situation to understand what might have happened with the trailer. She also questioned Mr. Marshall, who denied making such comments. In addition, she asked Mr. Felix whether he remembered what had happened, but he said that he did not.
[46] The evidence shows that Ms. Crawford was not on site at the time of this incident. She speculated that other employees must have been present on the loading docks who might have seen this altercation. Therefore, hypothetically speaking, there would have been witnesses to the scene. Since Ms. Crawford was absent, this type of speculation is not really useful for the Tribunal.
[47] That said, Ms. Crawford remembers having certain discussions with Mr. Willcott. These discussions were about the workplace, Mr. Marshall and the fact that Mr. Willcott found it unfair that his work hours were reduced. She explained that she had already checked company records to understand what was going on. She tried to show Mr. Willcott that his hours had not actually been reduced by Mr. Marshall.
[48] During her testimony and with the help of documents filed during the hearing, Ms. Crawford explained that the work hours of all employees decreased between 2012 and 2013. Based on these data, she concluded that Mr. Willcott’s hours had not been reduced more than those of other drivers.
[49] She also remembers meeting Mr. Willcott in the office to give him an opportunity to voice his concerns. She stated that he was agitated and unstable, and that he was unable to continue the meeting. She also suggested that he meet with a third party to offer him assistance, particularly if he did not feel comfortable with other people at work. Mr. Willcott declined this offer.
(b) Incidents involving forced leave on June 7 and October 25 and 27, 2013
[50] Mr. Willcott also raised another incident, again involving Mr. Marshall, that allegedly occurred on June 7, 2013. He explained that Freeway makes it a practice to rotate truck drivers and to force them sometimes to take a day off.
[51] Mr. Willcott was forced to take leave when it was not his turn in the rotation. He spoke about it to Mr. Felix, who agreed that it was in fact not his turn. On June 10, 2013, Mr. Willcott also walked in on a conversation between Mr. Marshall and Mr. Felix during which they were discussing this situation. Mr. Felix asked Mr. Marshall why Mr. Willcott was forced to take another day off when it was not his turn. Mr. Marshall answered that he wanted to irritate Mr. Willcott.
[52] Mr. Willcott finally decided to talk to Mr. Felix about what he had heard. Mr. Willcott testified at the hearing that Mr. Felix had a very good understanding of what was going on between him and Mr. Marshall, along with the interpersonal problems and Mr. Marshall’s abuse.
[53] In the same vein, Mr. Willcott also testified that he was forced to take leave on October 25 and 27, 2013. Again, it was not his turn in the truck driver rotation.
(c) Incidents involving incitement to sell drugs
[54] On September 12, 2013, Mr. Willcott walked in on another conversation at work between Mr. Marshall and another worker. During this conversation, Mr. Marshall said that he wanted Mr. Willcott to be dismissed from the company.
[55] This same worker then sent Mr. Willcott a text message asking if he could sell him drugs, which he refused to do. He approached him again when Mr. Willcott was in his truck. He asked him the same thing, but Mr. Willcott again declined. Mr. Willcott informed Mr. Felix of the situation and the ploys of this individual and Mr. Marshall. Mr. Felix told him that he agreed the situation had to stop and that he was going to talk to Ms. Crawford about it.
(d) Conclusions as to the incidents involving Mr. Marshall and Freeway’s possible justifications
[56] With respect to the incidents involving Mr. Marshall, I must determine, on the balance of probabilities, whether Mr. Willcott was the subject of adverse differential treatment in the course of employment and whether he was harassed in matters related to employment. Are Mr. Willcott’s allegations, if believed, complete and sufficient enough to justify a verdict in his favour, in the absence of a reply from Freeway? I think they are.
[57] Part of Mr. Willcott’s evidence as to Mr. Marshall’s actions was not contradicted by the Respondent. I also have no reason to doubt Mr. Willcott’s testimony about these incidents.
[58] As for Ms. Crawford, she was unable to testify about most of the alleged incidents because she did not have personal knowledge of them. She was therefore limited to saying that she did not know anything and that she had not been made aware of many of the incidents.
[59] Freeway did not file any other evidence to refute Mr. Willcott’s allegations. Nor did they call the main party concerned, Mr. Marshall, to testify. Mr. Felix was not called to testify either, even though he could have had relevant information to offer the Tribunal. I am therefore limited to the evidence before me.
[60] I believe, on the balance of probabilities, that Mr. Marshall did make the racist remarks on March 6, 2013. Although Ms. Crawford stated that she had asked Mr. Marshall about it and he denied making such comments, this is not enough to refute the testimony of the main party concerned, Mr. Willcott, because he was present during this incident.
[61] I am therefore of the opinion that Mr. Marshall did indeed make racist remarks about the Complainant when he called him a dirty Indian and told him that it was pointless telling Freeway’s owner because the latter did not like his kind of people either. I believe that these comments referred to the Complainant’s Aboriginal background. I also accept as proven the threats Mr. Marshall made towards Mr. Willcott regarding reducing his work hours and his desire to see him leave the company. I consider all these comments to have been made in connection with Mr. Willcott’s Aboriginal origin.
[62] The terms used by Mr. Marshall (dirty Indian) are provocative and racist, as is the expression those of your kind. How can a Human Rights Tribunal remain insensitive to such prejudicial comments? Nor can I ignore the fact that these words were spoken by the company’s General Manager, a member of senior management.
[63] As the Supreme Court of Canada pointed out, judicial notice is taken of the systematic and historical factors affecting First Nations, which include the fact that Aboriginal peoples are victims of racial prejudices (see R v. Williams, [1998] 1 SCR 1128, and cited in Commission des droits de la personne et des droits de la jeunesse v. Blais [Blais], 2007 QCTDP 11 (CanLII)).
[64] Not only were racially prejudicial words used, but also Mr. Marshall’s actions following this incident were equally consistent with this state of mind. The evidence reveals, based on the balance of probabilities, that Mr. Marshall had something against Mr. Willcott. Their relationship was not good, and Mr. Marshall used his position to discriminate against him.
[65] This includes the event of June 7, 2013, during which Mr. Willcott was forced to take leave when it was not his turn in the truck driver rotation. Mr. Marshall told Mr. Felix that the aim was to irritate the Complainant. I consider these actions to be planned and devious.
[66] The Complainant was also forced to take off October 25 and 27, 2013, when it was also not his turn in the rotation. I did not hear any other evidence to refute these allegations.
[67] I add that the conversation between Mr. Marshall and another individual to entrap Mr. Willcott and have him sell drugs to the latter was also unacceptable. This evidence also was not contradicted by the Respondent, and I have no reason to doubt the Complainant’s testimony.
[68] Not only was Mr. Willcott discriminated against in the course of employment by Mr. Marshall for the incidents on June 7 and October 25 and 27, 2013, but I also conclude that Mr. Marshall’s overall conduct constitutes harassment in matters related to employment within the meaning of the CHRA. The repetition and persistence of Mr. Marshall’s harassing actions were established on the balance of probabilities. Mr. Willcott felt persecuted, singled out and targeted within the company. His frustrations grew, just like his feeling of injustice. I am convinced that due to the General Manager’s actions, the workplace became hostile and unhealthy for Mr. Willcott. He clearly sustained an adverse impact as a result of this man’s actions due to his race and his national or ethnic origin.
[69] That being said, it is difficult for Freeway to present a justification for Mr. Marshall’s actions, especially since the latter was part of the company’s senior management. The fact that Ms. Crawford was not aware of the situation is not a justification, in my opinion.
[70] Freeway demonstrated that in March 2013, it adopted a policy for the prevention of violence and harassment in the workplace, and that they provided training about this policy to their employees. Both Ms. Crawford and Mr. Willcott testified to that effect, specifying that the trainer was Ms. Crawford herself. That makes sense considering that her role within the company is that of a coordinator of both occupational health and safety, and human resources.
[71] Mr. Willcott explained that during the training, he had tried to draw Ms. Crawford’s and the group’s attention to certain problems he had noticed within the company. These problems were targeted and specific. He also took the opportunity to call the training bullshit. Ms. Crawford intervened at that moment, particularly due to the inappropriate language. In addition, since the training was on violence, prevention and harassment, she felt that this was neither the time nor the place to discuss this type of specific situation. She informed Mr. Willcott that he could discuss his concerns with her in private. Although annoyed, Mr. Willcott nonetheless completed the training successfully. However, he did not ask to speak with Ms. Crawford after the session to raise his concerns.
[72] When I check Freeway’s policy on the prevention of violence and harassment in the workplace, it is clear that an employee must report any situation involving violence or harassment to Freeway’s management. Despite that, the policy does not contain any specific guidance for employees for reporting such situations. The policy does not explain who is in management or what positions or individuals are considered part of the company’s management.
[73] The policy also does not specify who —in management— is responsible for receiving information from employees on violence and harassment in the workplace. For example, if Freeway expects employees to complain to Ms. Crawford as the one responsible for human resources, the policy should perhaps specify that employees must file their complaint with her.
[74] I add that the policy does not address cases where an employee is harassed by a member of management. There is no clear channel for the employee in this type of situation. Since Mr. Marshall was part of management, to whom was Mr. Willcott supposed to turn? The policy could be clarified in this regard to say that the employee must then report to the person responsible for human resources.
[75] Moreover, Mr. Willcott reported different events to Mr. Felix. The Respondent tried to prove that Mr. Felix was not a member of management and that Mr. Willcott should instead have reported the events to Ms. Crawford directly, like he had done in the past.
[76] However, a letter sent on October 29, 2013, by Mr. Felix himself was disclosed into evidence. In this letter, he informed the Complainant that he was being temporarily laid off considering the decrease in the company’s activities. Mr. Felix’s title in this letter is Operations Manager.
[77] It is not clear to me whether, between March and October 2013, Mr. Felix changed positions and ended up in a managerial position later that year. Freeway did not provide me with any explanations in that regard. I believe that Mr. Felix did, in actual fact, play a higher role than Freeway tried to demonstrate to me during the hearing. He may not have been the highest ranking member of the company (unlike Ms. Crawford, Mr. Marshall or Mr. Crawford), but he nonetheless had a more important role than that of the truck drivers. I add that the letter of October 29, 2013, falls within the sequence of events specific to this complaint. It is therefore more likely that Mr. Felix was a manager when Mr. Willcott reported the various incidents to him.
[78] It is also worth pointing out that Mr. Willcott had, at different times, expressed his concerns to Mr. Felix, who told him that he was going to discuss the situation with Ms. Crawford. The evidence also shows that when there were problems with the truck driver rotation and the forced leave, the Complainant again spoke to Mr. Felix about them. The latter then discussed the situation personally with Mr. Marshall. Again, this reinforces the evidence that Mr. Felix had a more important role within Freeway than the company tried to disclose into evidence.
[79] When Mr. Felix informed Mr. Willcott that he was going to speak with Ms. Crawford about the various situations, I believe that Mr. Willcott was right to believe that the situation would be raised and potentially resolved. Yet, Ms. Crawford was never made aware by Mr. Felix of what was going on in the company. Lastly, if Mr. Felix was not a resource person who could receive the type of information that Mr. Willcott reported to him, such as complaints and incidents, he could very well have referred him to the right people who could have received such complaints.
[80] Mr. Willcott also filed a letter dated July 14, 2016, written by Ms. Crawford. This letter was a follow up to the road test completed by Mr. Willcott at Freeway's request. During this test, the instructor selected by Freeway reported that Mr. Willcott had said something unacceptable to a group of drivers. Mr. Willcott found that his words had been misreported by the instructor to his employer. He therefore wanted to file a complaint against him. It is in this context that Ms. Crawford encouraged him to file a formal complaint with her or, alternatively, with the Operations Manager, who was now Mr. Sylvain (and not Mr. Felix).
[81] I reiterate that this is the role that Mr. Felix