Firing from Mr. Lube was discrimination, Divisional Court finds

Ontario Human Rights Commissioner Keith Norton said in a statement that the ruling "sends a very clear message that employers are responsible for ensuring workplace environments are free of harassment and discrimination."

The Globe and Mail
March 3, 2005

Firing from Mr. Lube was discrimination, Divisional Court finds
Ruling sets precedent in race-based claims
James Rusk

Almost 10 years after Mark Smith lost his job at a Mr. Lube franchise in Brampton, the Ontario Divisional Court has said in a precedent-setting ruling that he was racially discriminated against, and it ordered his former employer to compensate him for mental anguish and lost income.

The decision overturned a September, 2002, ruling by the Ontario Human Rights Tribunal, the quasi-judicial agency that hears human-rights cases in the province. It found that Mr. Smith had not been discriminated against when he was fired in 1995 by Mardana Ltd., the operator of the Mr. Lube franchise.

The tribunal found that Mr. Smith's work environment was racially poisoned — he often was subject to racial slurs over the three years he worked for Mr. Lube — but, since Mr. Smith, who is black, was hired and promoted by the employer and since it was not proved that his firing was racially motivated, he had not been discriminated against.

Mr. Smith and the Ontario Human Rights Commission, which had investigated Mr. Smith's complaint and concluded he was discriminated against, appealed the tribunal's ruling.

The Divisional Court found that the tribunal's ruling was legally wrong, and it ordered the employer to pay its former employee more than $35,000 in compensation.

It said that in finding Mr. Smith could not have been discriminated against because he had been hired and promoted by Mr. Lube, the tribunal "unfortunately expressed a presumption consistently identified in human rights jurisprudence as a common myth."

It also found that the tribunal erred in law when it ruled that to find racial discrimination requires proof racial motivation was a factor when a person loses a job. The court ruled that people claiming racial discrimination need only prove that race was a factor in how they were treated.

"It is not the motivation or knowledge of the employer that is in issue; it is the effect of the discrimination on the complainant," the Divisional Court, a panel of three Ontario Superior Court judges, found unanimously.

It said that the circumstances surrounding Mr. Smith's termination were "clearly suspect," and that two high-ranking white employees had been punished less severely for infractions that were arguably more serious than the one for which Mr. Smith was fired.

It ordered the employer to compensate Mr. Smith $10,000 plus interest for mental anguish, $25,131.35 plus interest for the wages he lost from 1995 to 1997 as a result of being fired. He also ordered the company to implement an anti-harassment policy.

Ontario Human Rights Commissioner Keith Norton said in a statement that the ruling "sends a very clear message that employers are responsible for ensuring workplace environments are free of harassment and discrimination."

Mr. Smith's lawyer, Marie Chen of the African Canadian Legal Clinic, said the ruling "sets out what I think is completely appropriate framework for deciding human-rights, race-based claims."

She continued, "This is quite far-reaching because it is the first case where the Divisional Court has set it out, straight-out, like this. The court is obviously recognizing the importance of human-rights cases."

She added that although it is not apparent in the court's judgment, Mr. Smith's work environment was horrendous. "Mr. Smith suffered a lot. We referred [in court filings] to some slave names, but there were other racial slurs that were constant."

Stephen Bernofsky of Fogler Rubinoff LLP, the lawyer for the employer, would not comment when asked whether the company plans to appeal.


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