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The following case summaries describe cases of discrimination because of race, colour, or national or ethnic origin. These cases were selected to provide examples of discriminatory behaviour, what employers should do to fulfill their responsibilities under the Canadian Human Rights Act, and the types of remedies that are used to address discrimination.

Some of the cases discussed in this booklet were resolved through confidential settlements. Consequently, the parties’ names have been omitted from these case summaries to protect their privacy. For cases that became public when they were heard by a human rights tribunal or the Federal Court, the parties’ names are included.

We have separated the cases into five sections: discrimination that occurs during employment, discrimination that occurs when requesting a service, discrimination on more than one ground, employers’ responsibilities, and remedies. Readers who are looking for guidance about a particular type of situation may find that these sections provide a useful framework. See Appendix B for information on the behaviours illustrated by the cases in each of the five sections.

DISCRIMINATION IN EMPLOYMENT

Discrimination in employment includes unfair treatment by co-workers or managers as well as by the individual employer or the company. Besides discrimination at work, it can include events that happen off the work site or outside of regular work hours if these events occur in the course of employment. It also includes discrimination that occurs in the hiring process. Unfair policies or practices by an employer or an employee organization are also discrimination when they target or have an adverse impact on individuals or groups on any ground included in the Canadian Human Rights Act.

Systemic racial discrimination was a factor in Department’s treatment of employee (Pitawanakwat v. Canada, 19 C.H.R.R. D/110)

An employee with the Department of the Secretary of State in Regina claimed that she was harassed and experienced discrimination because of her Aboriginal ancestry. Mary Pitawanakwat, an Ojibway woman, worked as a Social Development Officer. At first, relationships in the workplace were good, and Ms. Pitawanakwat received good performance appraisals. After the first few years, the situation changed, relationships deteriorated, and Ms. Pitawanakwat’s performance appraisals became increasingly negative. After seven years, Ms. Pitawanakwat was fired. She complained to the Canadian Human Rights Commission about harassment and discrimination; the Commission investigated the case and sent it to the Canadian Human Rights Tribunal for a hearing.

Based on the evidence, the tribunal found that managers monitored

Ms. Pitawanakwat’s work differently from other employees’ work, and that this difference may have been partly racially motivated. Although there might have been other causes behind what was happening in the workplace, such as poor management, the fact that race was part of the dynamic made this discrimination. The tribunal also found that there were racial slurs, jokes, and stereotyping in the workplace, which created a poisoned work environment and which the department repeatedly ignored, despite complaints from several employees. The tribunal was most concerned by the Department of the Secretary of State’s “gross negligence” in not putting an end to the discrimination in the office. It said this failure directly contributed to Ms. Pitawanakwat’s declining productivity and her ultimate dismissal.

It criticized the office’s and the department’s handling of the case on many levels. For example, management kept secret personnel files on Ms. Pitawanakwat and two other employees who supported her, and one of these employees was intimidated before testifying at a grievance hearing. It was unacceptable, wrote the tribunal, that the risks to employees “of taking a position contrary to that held by management ... are substantial.”

As a remedy, Ms. Pitawanakwat received an amount for lost wages and benefits, a letter of apology, and the promise of a job comparable to the one she lost. Later, the Federal Court also ordered that she be given financial compensation for hurt feelings. The parties resolved the question of compensation in a confidential settlement.

Systemic discrimination was destructive (Grover v. National Research Council of Canada, 18 C.H.R.R. D/1)

An Indian-born research scientist with the National Research Council (NRC) experienced discrimination at work because of his race, colour and national origin. Dr. Chander Grover, a leading scientist in the field of optics, at first received excellent recommendations and regular promotions at the NRC. After a new director moved into his division, he began to experience a number of setbacks. His research funds and requests for summer assistants and participation in conferences were denied. His research group was disbanded. He was assigned to work under a junior scientist, denied a promotion, stripped of the former esteem and prestige he had held, suffered professional embarrassment, and was eventually fired.

According to the Canadian Human Rights Tribunal hearing the case, the new director and some other managers deliberately and systematically thwarted Dr. Grover’s career and discriminated against him because of his race and colour. Staff of the NRC also intimidated witnesses to prevent them from testifying at the human rights hearing,

which is a clear breach of the Canadian Human Rights Act and a criminal offence. The tribunal also criticized the NRC for the “grossly inappropriate” and prejudicial conduct of its human rights advisor, who heard Dr. Grover’s original complaints in confidence, yet later represented the NRC during the investigation and tribunal hearing of Dr. Grover’s complaint to the Canadian Human Rights Commission.

The tribunal emphasized that the discrimination “resulted not only in the destruction of Dr. Grover’s career but caused him undue distress and illness, disrupted his family and home life and put unnecessary stress on his family members.” It also mentioned that at the time of Dr. Grover’s complaint, no other NRC managers were members of a visible minority. The tribunal ordered the NRC to stop the discrimination, apologize to Dr. Grover, pay him for lost wages, correct inaccuracies in his personnel file, appoint him to a management position, and pay him $5,000 for humiliation (the highest amount possible at the time under the Canadian Human Rights Act). Dr. Grover’s legal costs, and interest on the monetary awards, were also included in the order. This case is discussed again in the Remedies section.

Stereotypes and systemic discrimination were unacceptable (National Capital Alliance on Race Relations v. Canada, 28 C.H.R.R. D/179)

A Canadian Human Rights Tribunal found that Health Canada discriminated on a systemic basis against employees who were members of visible minorities, by failing to promote them on an equal basis to white employees into senior managerial positions.

In 1992, the National Capital Alliance on Race Relations (NCARR) filed a complaint with the Canadian Human Rights Commission to redress a lack of visible minority employees in management posts at Health Canada. Using the Supreme Court’s reasoning in Action travail des femmes v. Canadian National Railway in 1987, the Canadian Human Rights Tribunal concluded that the “essential element … of systemic discrimination is that it results from the unintended consequences of established employment systems and practices. Its effect is to block employment opportunities and benefits for members of certain groups. Since the discrimination is not motivated by a conscious act, it is more subtle to detect and it is necessary to look at the consequences or the results of the particular employment system.”

The tribunal found that members of visible minorities were indeed significantly under-represented in senior management at Health Canada. They were “bottlenecked” at the lower levels of the Scientific and Professional category, “ghettoized” or stuck in particular types of jobs, and received less management-related training. Managers were less likely to tell visible minority employees about training opportunities or to encourage them to apply for promotion.

Staffing decisions were often informal, with job qualifications not set out in advance and decisions made subjectively. Senior managers had biased views of the type of work for which visible minorities were suited, believing them unfit for management roles, and the resulting entrenched practices and attitudes affected visible minorities negatively. In short, visible minorities encountered systemic barriers at every point—from hiring, to staff development, to promotions.

As part of numerous corrective measures, the tribunal ordered Health Canada to eliminate discriminatory employment barriers for visible minorities in the department, to train all members of selection boards to conduct interviews free from racial bias, and to train all managers about human rights legislation. It ordered the department to give visible minority employees acting assignments in management roles. It also ordered that Health Canada clearly define and set out the qualifications needed for senior management positions, develop an inventory of interested employees, and begin to appoint visible minorities into these positions within six months. The tribunal set target levels over five years so that the percentage of visible minority managers would reflect the percentage of the available workforce, and required Health Canada to report regularly on its progress to the Canadian Human Rights Commission.

“Jokes” were harmful and discriminatory (Swan v. Canadian Forces, 25 C.H.R.R. D/333
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Federal Court decision. Swan v. Canadian Forces, 25 C.H.R.R. D/312 -Canadian Human Rights Tribunal decision)

An Ojibway man, Melvin Swan, was a member of the Canadian Forces for 12 years. When he left, he alleged that during his military career he had experienced harassment because of his Aboriginal ancestry. He listed eight specific incidents of being treated differently or hearing negative comments about “Indians.” They included references to drunken Indians and comments such as “Indians aren’t so bright, eh Swan?” Mr. Swan alleged that he encountered racial comments, jokes and slurs throughout his career.

In the Canadian Human Rights Tribunal’s view, the evidence supported Mr. Swan’s allegations. Some of the witnesses insisted that the comments were meant to be jokes; the tribunal wrote that “the context or intention of the perpetrator [is not] the issue—the issue is the perception of the individual who is victimized. Lack of objection and even participation in the activity do not imply consent or cloak otherwise objectionable behaviour with propriety … individuals may feel powerless to do anything but accept the behaviour because of their desire to fit into the peer group.”

The employer has a duty, said the tribunal, to respond promptly and effectively to complaints of harassment with a thorough investigation and with sensitivity to the person complaining. The Canadian Forces’ response, “glossing over” the complaint and not investigating, was “not good enough,” wrote the tribunal.

By the time the tribunal heard the case, the Forces had changed its approach and was developing a ‘zero tolerance’ policy for harassment. Nevertheless, because of the way Mr. Swan’s complaints were handled, the tribunal ordered the Forces to offer him a written apology, $2,500 plus interest for hurt feelings and damage to his self-respect, and the amount of his legal costs. It also ordered the Forces to make some changes to its compassionate leave policy and to the harassment policy it was developing.

The tribunal believed it did not have the power, in this case, to award lost wages to Mr. Swan. The Federal Court later reversed that part of the decision, and sent the case back to the tribunal for it to award lost wages. But before the hearing reopened, the parties resolved the payment of lost wages in a confidential settlement.

Poisoned environment provoked harassed employee (Gannon v. Canadian Pacific Ltd., 22 C.H.R.R. D/97)

During a period of six years, a man experienced harassment and differential treatment at CP Rail. Ken Gannon was the only person of colour working in his division; his foreman and some co-workers called him racially insulting names to his face and behind his back, and continually racially harassed him. As an example, Ken Gannon alleged that his foreman made statements such as “What does that nigger know about painting?” and started calling him Jackson, saying “Aren’t all niggers called Jackson?” A co-worker asked Mr. Gannon for “nigger brown paint.” He was also wrongfully disciplined and fired because of his race.

Although Mr. Gannon himself made racially and sexually offensive remarks to his co-workers, the tribunal found that, for the most part, he said these things in retaliation for derogatory comments made to him. The Canadian Human Rights Tribunal accepted expert evidence that a person who is subjected to racial name-calling may become victimized by such name-calling, eventually reacting and often perceived as a complainer and troublemaker. “We do not condone the language used by Mr. Gannon, but we are inclined to believe that his hostile attitude was a result of the racial slurs and the poisoned environment that he was working in.”

Several times, Mr. Gannon was disciplined for incidents where his behaviour was provoked by racial slurs. Eventually, he accumulated the maximum number of demerit points allowed, and was fired. Because Mr. Gannon’s behaviour on these occasions was provoked by “the racial harassment that he was continually subjected to,” the tribunal concluded that “the discipline resulting in [his] dismissal was wrongly assessed. Mr. Gannon was singled out and subjected to unfair and differential treatment because of his race.”

Mr. Gannon had complained to management, but the company did nothing to stop the harassment, and was, therefore, liable for the discrimination. After the tribunal made its decision, the parties settled the question of an appropriate remedy between them.

Harassment through offensive comments

A financial manager with a federal government department alleged that her supervisor sexually and racially harassed her, and that the department failed in its duty to provide a workplace free of harassment. The supervisor, a white man, told the financial manager, a Mohawk woman, that whites are superior to other races, including “Indians.” He made jokes about killing Mohawks to save money, and told the woman and a colleague that Aboriginal children “enjoyed” the sexual abuse they experienced in residential schools. The financial manager reported all these comments to a higher supervisor and filed a grievance; she claimed, however, that nothing was done and she was forced to take sick leave to cope with the emotional stress at work.

The government department countered that it had educated its employees about its anti-harassment policy, and that it did respond to her grievance. It agreed that one incident complained of met its definition of sexual harassment; as a result, personnel in the branch had watched a video on harassment and attended an anti-harassment workshop. It did not address the racial harassment. In trying to resolve the internal complaint, the department had ordered the supervisor to write a letter of apology, but he refused. Both he and the financial manager who complained took early retirement from the department.

In a conciliated settlement of the financial manager’s human rights complaint, the department agreed to pay her $40,200 in general damages.

Security clearance was unfairly denied

A man working as a technician on a three-month contract alleged that his national or ethnic origin was the only reason his employer refused to offer him a permanent position at the end of his term. The claimant, an immigrant originally from Pakistan, said that at the end of his work term, he was told that a two-week-old policy forbid the hiring of people from countries that posed a security threat or a nuclear threat to Canada. Since Pakistan had not signed the Nuclear Non-Proliferation Treaty, it was considered a security threat to Canada. As the claimant had been in Canada for only 20 months, he was told it was not possible for him to get the enhanced security clearance he would need; there was not enough information about him in Canada. Although he was let go, two temporary co-workers, both Canadian citizens hired at the same time as the complainant, were given permanent positions.

The claimant maintained that, having done similar work in Pakistan, he was well-suited for the available jobs and, had he been a security risk, he would not have been permitted to enter Canada as an immigrant. He further pointed out that he had already done the job, with security restrictions, for three months with good results.

The Canadian Human Rights Commission’s investigation showed that the claimant performed his job well, and that the only reason for his not being hired was that he was from Pakistan and thus posed a perceived security risk under the new policy. The Commission’s investigation also showed that the employer did not explore any other approaches to determining whether the claimant actually posed a security risk. The employer had a policy of reviewing cases on an individual basis, but because the claimant had been in Canada a relatively short time, managers were confident that they would not be able to collect enough information to obtain an enhanced security clearance for him.

In a conciliated settlement, the claimant was hired for an 18-month term position, but with his duties restricted and supervised until sufficient information was available to obtain the necessary security clearance. If he satisfied the requirements for enhanced clearance, he would be offered a permanent position after 18 months.

Comments about spoken English led to complaint

An airline settled a complaint with a new employee, a dispatcher originally from Sri Lanka, following a Canadian Human Rights Commission investigation. Although a colleague had a formal training session of three weeks, the new dispatcher’s training was simply to watch his supervisor, who gave him contradictory instructions and criticized him frequently. The training supervisor also told her superior that pilots and agents had difficulty understanding the dispatcher’s English. The dispatcher, on the contrary, claimed to have no trouble communicating, saying no one had complained or asked for things to be repeated and that there had been no miscommunications on the flight data information sheets. Nonetheless, the dispatcher was fired; he then filed a complaint with the Commission alleging discrimination because of national or ethnic origin.

In the settlement, the airline agreed to pay $2,000 for hurt feelings, although it did not admit liability for discrimination.

Racial remarks and insulting behaviour prompted complaint

A federal government department paid $18,000 in general damages plus more than $70,000 in early retirement, severance, and pension refund payments to an employee after a Canadian Human Rights Commission investigation showed that other employees made racially offensive remarks and subjected the employee and other Black personnel to racially motivated behaviour.

The employee, a Black man, worked as a records clerk in the department for thirteen years, enduring racial slurs and racist remarks that poisoned the work environment. Besides calling him and other Black employees names and accusing them of being liars, some co-workers asked if he sold drugs or stole cars on the side. White personnel were disrespectful to Black personnel in other ways: some white employees said they wanted anti-harassment training to be given by a white manager, not the Black Employment Equity Officer; other white managers walked out of a presentation by this same Employment Equity Officer.

The employee’s complaint to the Commission alleged that the employer had not done enough to educate employees about harassment and racism. In addition to the above examples, he cited a statement signed by some employees, in which they objected to employment equity programs. He also maintained that the department had not implemented any of the strategies for resolving discrimination identified by an internal race relations committee.

In settling the complaint, the department agreed to the financial payments, a letter of reference, and a letter of apology; the employee agreed to retire from the department and to accept the terms of the settlement as full compensation.

employees made racially offensive remarks and subjected the employee and other Black personnel to racially motivated behaviour.

The employee, a Black man, worked as a records clerk in the department for thirteen years, enduring racial slurs and racist remarks that poisoned the work environment. Besides calling him and other Black employees names and accusing them of being liars, some co-workers asked if he sold drugs or stole cars on the side. White personnel were disrespectful to Black personnel in other ways: some white employees said they wanted anti-harassment training to be given by a white manager, not the Black Employment Equity Officer; other white managers walked out of a presentation by this same Employment Equity Officer.

The employee’s complaint to the Commission alleged that the employer had not done enough to educate employees about harassment and racism. In addition to the above examples, he cited a statement signed by some employees, in which they objected to employment equity programs. He also maintained that the department had not implemented any of the strategies for resolving discrimination identified by an internal race relations committee.

In settling the complaint, the department agreed to the financial payments, a letter of reference, and a letter of apology; the employee agreed to retire from the department and to accept the terms of the settlement as full compensation.