Date: 19990824
Docket: T-1624-97
BETWEEN:
GURDAVE PATHAL
Applicant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
and THE BRITISH COLUMBIA MARITIME
EMPLOYERS" ASSOCIATION
Respondent
REASONS FOR ORDER
REED J.
[1] The applicant seeks an order setting aside a decision of the Canadian Human Rights Commission, which decision determined that a complaint the applicant had made to the Commission would be dismissed. The Commission's decision is dated June 27, 1997, and it relates to a complaint that was made on April 20, 1996.
[2] The applicant is Indo-Canadian and was born in Malaysia. He is a carpenter and worked on the waterfront in Vancouver for a few months in 1971, returning to work there as a casual employee in October 1994. In July of 1995, the British Columbia Maritime Employers Association adopted a policy pursuant to which casual employees such as the applicant would be placed on a newly created despatch board, if they successfully completed a Safety Orientation program. The applicant was not successful, and it is the events surrounding his attendance at that program that gave rise to his complaint. Specifically, he complained about his reception by the instructor on August 4, 1995, when he arrived a few minutes late, and the instructor's refusal to allow him to take the test a second time on August 11, 1995.
[3] The complaint reads:
ALLEGATION
| The British Columbia Maritime Employers Association has discriminated against me in employment by refusing to continue my registration for work because of my race, colour, and national or ethnic origin, contrary to section 7 of the Canadian Human Rights Act. |
| PARTICULARS |
| I am of East Indian origin. On August 4, 1995 I wrote a test for the British Columbia Maritime Employers Association. The person administering the test was known to me as Mr. Eric. I arrived about five minutes late for the test and Mr. Eric saw me coming and then locked the door. I had to knock on the door to get in. He opened the door and scolded me for arriving late. Before we could get started another individual who was a white male arrived late. Mr. Eric allowed him in without incident. |
| On August 11, 1996, I went to attempt to rewrite the test. Mr. Eric was the test administrator again. After he had called out all the names of the people scheduled to take the test it was apparent that there were approximately four individuals who had not shown up. There were about five empty chairs. Three or four individuals whose names had not been called out were then permitted to sit for the test. As well, individuals who showed up late and were allowed to write. Mr. Eric came to me and asked me to leave. |
| I believe that I was treated differently than a white person when I arrived late for the initial test and that I was not permitted to sit and write the test August 11, 1996 because of my race, colour and national or ethnic origin. |
[4] Part of the applicant"s complaint was that individuals were only allowed to sit for the test once. This, absent extenuating circumstances, applied to everyone. A letter, dated April 18, 1996, sent to him by the Commission, stated "Please note that the fact that this test can only be taken once is not an issue that the Canadian Human Rights Commission can deal with as it does not deal with discrimination under the Act."
[5] An investigation report was prepared for the Commission, it reported that there was insufficient evidence to support the allegation that discrimination had occurred:
. . .
CONCLUSIONS AND RECOMMENDATION
| 38. Those who attended the course on August 4th generally do not remember if the complainant was scolded for arriving late or if a Caucasian arrived later. The complainant has not alleged that his ethnic origin was a factor in his failing the exam. He had not slept much the previous night and had not reviewed the course material which he had obtained a week before. He thought he would be allowed to open his book during the exam even though the advance instructions clearly stated that he could not. Two other candidates failed that day, one Indo-Canadian and one Italian-Canadian. |
| 39. There is no evidence that the complainant's ethnic origin was a factor when he was asked to leave the class the following week. The complainant showed up without having received permission to re-take the course. Evidence indicates that all those who attended were either on the original list or on the stand-by list for that session. |
| 40. The complainant and the other two who failed were de-registered and were not given an opportunity to make the course again. There is no evidence that this decision was made on the basis of national or ethnic origin. The complainant was one of a group of 54 casuals who were placed on a special despatch Board subject to passing the Safety Orientation Program within 60 days. There was no provision for a second chance. 9 of these 54 were Indo-Canadians and 6 passed. Several witnesses, including Indo-Canadians, have said that the course is easy and those who fail should not be working on the waterfront. |
| 41. It is recommended that the Commission dismiss the complaint because, on the evidence, the allegation of discrimination is unfounded. |
[6] Counsel for the applicant argues that the Commission decision is flawed because the investigation was not thorough and neutral. She argues that there were objective witnesses that could have been interviewed, that were not, and that irrelevant evidence was considered by the investigator as relevant to the decision. She states that questions of credibility arose that were never decided and that the possibility that adverse impact discrimination existed was not considered.
[7] The investigator described the evidence of the incidents surrounding the applicant's arrival on August 4, 1995. He described the applicant's position, the instructor's position and the evidence given by others who were interviewed. The relevant paragraphs of his report read:
| 18. The complainant states that he arrived about five minutes late for the test and that the instructor, Mr. Eric, saw him coming and then locked the door. He had to knock on the door to get in. He thinks Mr. Eric saw him coming towards the classroom as he was carrying his course material, so Eric would have known that he was scheduled for the class. He had also met Mr. Eric some weeks before to discuss his concerns relating to persons being dispatched to jobs as carpenters despite the fact that they did not have the necessary qualifications. This was of concern to the complainant as he is a qualified carpenter. Mr. Eric opened the door and scolded him for arriving late. He does not remember what Mr. Eric said when he scolded him but he was humiliated by this. Before they could get started another individual, a white male, arrived late and was not scolded. |
| 19. Eric Skowronek states that he does not remember seeing the complainant coming towards the door on August 4, 1995 but he would have closed the door around 8:00 a.m. as the program was scheduled for that time. There were also many people in the Dispatch Hall adjacent to the classroom and the complainant could have been among them. He has no recollection of meeting the complainant before. |
| 20. Mr. Skowronek states that he has no specific recollection of scolding the complainant but he may well have told him that he should be on time, given the fact that employees are also expected to be on time when despatched to a job. He does not recall a white male arriving after the complainant. |
| 21. The investigator has reviewed a list of the twelve individuals who attended the Program on August 4, 1995. Six were interviewed in addition to the complainant. The other five could not be reached. Two had no telephone numbers and the other three were no longer at their listed numbers and those who answered the telephone said the individuals had moved and they did not know how to reach them. One of the six persons interviewed, an Indo-Canadian who also failed, said that he thinks many people arrived late for the test. A previous investigator asked him what was Eric Skowronek's reaction to people arriving late. He replied that he did not understand the question. The investigator asked him if Eric Skowronek became angry when people arrived late. He replied: "Yes, I think so." |
| 22. Another witness, an Indo-Canadian who successfully passed the test, said that he was not sitting in front and has no recollection of the complainant being scolded and he does not remember a white person arriving late. Three of the other witnesses do not remember what happened. The other witness said that he was the Caucasian who arrived after the complainant but he was not late as he had arrived earlier and had gone to the bathroom. |
[8] The report does not manifest a lack of thoroughness or neutrality in the investigation. While neither the investigator nor the Commission articulate the rationale they used in assessing the evidence concerning the August 4 incident, some common sense principles applicable to assessing evidence would be immediately obvious. For example, if there had been a voluble scolding (counsel characterized it as yelling at the applicant), it is likely that others present would have noticed and remembered it; the one observer who thought he remembered the instructor"s attitude to lateness, expressed himself in a way that indicated that the instructor's irritation was directed at all who were late; this is consonant with the instructor's statement that he might very well have said something because employees are expected to arrive on time for work and, similarly, he expected punctuality for the program. An explanation for the applicant"s belief that a white person arrived later was given, and that person had not been late. The evidence shows that while the applicant carried away one perception of the events, a more thorough investigation showed that that perception was flawed. It is not necessary for either the investigator or the Commission to find that he lacked credibility. He may have honestly believed that discrimination had occurred, but on investigation, that belief was shown to lack foundation.
[9] With respect to the applicant"s assertion that he was not allowed to sit for the exam on August 11 because of his ethnicity, the evidence of others supported the instructor's explanation. That is, no one was allowed to attend the program on that day, or on any other day, unless they were registered to do so, either as a regular registrant or on a stand-by basis:
| 27. The complainant states that he went back to the class on August 11, 1995 in an attempt to take the course again. Mr. Skowronek was the instructor. After he had called out the names of the people scheduled to take the test, it was apparent that there were approximately four individuals who had not shown up. There were about five empty chairs. Three or four individuals whose names had not been called were then permitted to sit. As well, individuals who showed up late were allowed into the Program. They had even allowed three individuals to sit at a table which normally seats two. Mr. Skowronek approached the complainant and asked him to leave. |
| 28. Eric Skowronek states that all those who attended on August 11, 1995 were either scheduled for that day or had made prior arrangements to attend as stand-bys. He explains that sometimes he is approached by individuals who ask to take the course and when he tells them that all the seats have been signed for, they request to sign their names as stand-bys in case some individuals do not show up. |
| 29. The investigator has obtained a list of the 20 individuals who were originally scheduled to take the course on the 11th as well as a list of the 20 who actually attended. 8 of those who attended, including one Indo-Canadian, were not on the scheduled list. The investigator was able to reach 4 of these 8 individuals. Their testimony is very similar. All had made previous arrangements to attend on that day by either phoning ahead or seeing a woman at the Hall. They had all picked up their course material approximately one week before the session. They are all certain that no one could just walk in as there is not enough space and people have to wait to take the course. |
[10] Again, while the applicant interpreted the events that occurred as based on the investigator's dislike of his ethnicity, a more in-depth investigation revealed that the applicant was being treated in the same manner as everyone else.
[11] Counsel seemed to argue that the investigator should have telephoned more of those who attended the course on August 11th, and that a failure to do so demonstrates a lack of thoroughness in the investigation. I do not accept that as a valid conclusion. When the evidence obtained from those who were telephoned overwhelmingly supports a given conclusion, and the conclusion relates to an objective fact about which one would expect a common understanding, an investigator cannot be faulted for not telephoning more than the sample that has been interviewed. Also relevant is the investigator's repeated reference to the fact that the applicant, at no time, asserted that he failed the test because of discrimination:
| 23. The complainant states that he failed the test along with two other individuals, one Indo-Canadian and one Italian-Canadian. The complainant has not alleged that his failure was due to discrimination. He states that he accepted work on the evening shift the previous day (5:00 p.m. to 1:00 a.m.) and when he got home he could not sleep. He had also not reviewed the course material which he had obtained from the Despatch Hall approximately one week before the Program. He had also been told by others that the course was really easy and they could open their books during the tests. |
[12] Counsel for the applicant argues that the investigator took into account irrelevant considerations when he referred to the reactions, comments and the success in passing the test, of other Indo-Canadians. She argues that the Commission"s reference to the number of Indo-Canadians who passed the test is also irrelevant. She argues that these factors are not relevant because what is being alleged is this particular instructor"s bias against this particular applicant. Assuming for a moment that there was animosity between the two, which assumption is not supported by the evidence, personality conflicts are not discrimination. Thus, this instructor"s attitude to other Indo-Canadians who took the program, their success and their failure rate, as well as their comments, are relevant both to whether the instructor had a discriminatory attitude and whether the Association tolerated discriminatory practices. The evidence in question is relevant.
[13] Counsel for the applicant argues that the Commission erred because it failed to consider whether adverse impact discrimination existed because the test was written in English. She asserts that the purpose of the testing was to weed out those who were not proficient in English and this is discrimination. This argument is based on conclusions of the Commission's investigator and comments made by an association representative. Those comments reveal that two of the individuals who failed had considerable difficulty communicating in English, and an Association representative reported that WCB claims were skyrocketing because individuals did not understand directions and warning signs:
| A large number of witnesses said that the exams were very easy and several said that those who fail such easy exams should not be working on the waterfront as they could cause accidents. A number of witnesses, including two Indo-Canadians, said that the few who fail usually do so because they can barely speak English. |
| 26. While admitting that this is not a scientific test, the investigator noted that the other two individuals who failed the exams on August 4, 1995, (an Indo-Canadian and an Italian-Canadian) experienced a good deal of difficulty in communicating in English. In the case of the Indo-Canadian, this is further confirmed by notes made by a previous investigator. However, the writer had no such difficulty communicating with the complainant. Once of the witnesses who attended the Program on August 4, 1995 said that there was a language problem with some who failed that day and that the instructor had to repeat when they did not understand. |
| . . . . |
| 36. Ms. Richards states that their WCB claims are skyrocketing as a result of employees who have language problems and do not understand directions and warning signs. They could not allow people on the special despatch Board without making sure that they were qualified. [emphasis added] |
[14] There is no evidence that language was being used to indirectly discriminate on the basis of ethnicity. Being able to understand safety and warning signs, and directions written in English is clearly a reasonable job requirement. Even if an argument could be made based on adverse impact, which I do not think exists, this applicant has no difficulty communicating in English. The investigator while not canvassing in detail the possibility of adverse impact noted the applicant"s proficiency in English. The applicant never complained that his lack of success on the exam was related to his inability to understand English. Rather, he was over tired; he had not read the course material ahead of time, and he was expecting an open book rather than a closed book test; he had been told the test was easy and believing that did not prepare as he might otherwise have done.
[15] For the reasons given, this application is dismissed.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
August 24, 1999
[16] FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: August 18, 1999
COURT NO.: T-1624-97
STYLE OF CAUSE: Gurdave Pathal
v.
| Canadian Human Rights Commission, British Columbia Maritime Employers' Association |
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF REED J.
dated August 24, 1999
APPEARANCES:
| Ms. Karima Bawa for the Applicant |
| Ms. Delayne Sartison for the Respondent BCMEA |
| Mr. William Pentney for the Respondent CHRC |
SOLICITORS OF RECORD:
Douglas Symes & Brissenden
| Vancouver, BC for the Applicant |
Ogilvy Renault for the Respondent BCMEA
Vancouver, BC
William Pentney
Canadian Human
Rights Commission
| Ottawa, ON for the Respondent CHRC |