The Human Rights Tribunal of Ontario’s recent decision in George v 1735475 Ontario Limited (2017 HRTO 761) is an important precedent in combatting discrimination that permeates a work environment. This type of discrimination is known as a ‘poisoned environment’. In this case, a construction company was found liable for a racially poisoned environment. Bakerlaw is encouraged by the decision and pleased to see the development of jurisprudence on racism in the workplace and poisoned environments.

[Note this case also dealt with termination from employment on the basis of race but this case summary only focuses on the poisoned environment findings.]

The applicant alleged that he was discriminated against by being subjected to a racially poisoned work environment based on his boss’s repeated use of racial insults towards him and general racist remarks about Black people, in contravention of s. 5(1) of the Ontario Human Rights Code (“Code”). The applicant self-identifies as Black African-Canadian and was in his early 20s at the time of the events.

Vice-chair Mark Hart, of the Ontario Human Rights Tribunal, discussed the development of the legal concept of poisoned environment and its difference from the concept of workplace harassment. The Ontario Court of Appeal in its decision in General Motors of Canada Ltd. v Johnson (2013 ONCA 502), described a poisoned environment as one where the work environment has become hostile or intolerable, such that the discriminatory conduct or attitude permeates it entirely. In the human rights context, a poisoned work environment may be found in two circumstances:

1. If there has been a particularly egregious, stand-alone incident, or
2. If there has been serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated [based on an enumerated category under the Code] (see para. 57 of the HRTO decision)

Either a single particularly egregious incident or a course of conduct/comment can be the basis of a poisoned environment, as both causes can have similar broad negative effects on the work environment. A finding of workplace harassment, in contrast, can only be based on a course of conduct/comment, not a single event.

Additionally, the issue of liability differs in the law of poisoned environments from that of workplace harassment. Where there is a finding of a poisoned work environment that violates the general protection against employment discrimination under s. 5(1) of the Human Rights Code, the corporate/organizational respondent will de facto be deemed liable under the Human Rights Code. A finding of a poisoned environment is not exempted from deemed liability under s. 46.3(1) of the Code, which makes corporate/organizational respondents liable for discrimination committed by an employee or official of the corporation. In contrast, in a harassment claim, a corporate/organizational respondent may not be deemed liable because the liability is specifically placed on the person who committed the acts.

In this case, the Tribunal made important findings about the nature of a racially poisoned work environment and an employer’s responsibility to be aware of the existence of such an environment and to prevent its perpetuation. The respondent, who was the applicant’s boss, disputed the allegations and advanced two justifications for his comments. First, he alleged that certain racially-charged terms are common in the construction industry and so construction workers should simply “get used to it”. The respondent argued that he too had been subject to racial comments based on his South-East Asian identity but he accepted it as part of the industry where he made his living. Second, while some terms may have racist etymologies, the terms are directed towards all construction workers, not just Black workers. Hence, these terms should not be seen as racist.

These arguments were rejected. In response, Vice-chair Mark Hart concluded that regardless of whether certain racial comments are common in the construction industry, it does not exonerate employers from using racial comments or condoning their use in their work environment. Everyday terms in the workplace that have racist etymologies cannot be justified on the basis of their commonality. The very usage of these terms perpetuates discriminatory and racist stereotypes about Black people – and the same applies to other terms which perpetuate stereotypes of disadvantaged communities.

This finding puts the onus on employers to proactively combat racially poisoned work environments. Employers cannot simply acquiesce to widespread racism in the work place or shirk their responsibility.

$20,000.00 in general damages was awarded to the applicant to remedy the discrimination he experienced from his employer because of the racially poisoned work environment.

George v 1735475 Ontario Limited is also interesting in light of the Ontario Superior Court’s recent decision in Merrifield v the Attorney General (2017 ONSC 1333, [“Merrifield”] and the relation with s. 46(1) of the Code. You can read bakerlaw’s discussion of the Merrifield case here (link).

The Ontario Superior Court in Merrifield recognized an independent tort of harassment, which opens the door to harassment complaints who may not be able to ground their case in an enumerated category under the Code. This raises issues concerning choice of forum to hear the discrimination claim. Complainants may now explore whether to bring their claim through the Human Rights Tribunal or a court.

S. 46(1) of the Code creates a civil remedy for human rights claim, which means that a court in a civil proceeding may investigate whether a parties’ rights under the Code were violated. If a human rights violation of the Code is found, the court is authorized award monetary and non-monetary remedies. With Merrifield, the possibility now exists to bring civil claim with the tort of harassment and concurrent claim for discrimination, which can be remedied by a court under s. 46(1) of the Code.

The events in George v 1735475 Ontario Limited may have given rise to both a tort of harassment and a discrimination claim. Instead of bringing the claim for a poisoned work environment through the Human Rights Tribunal, the claimant may have opted to bring a civil claim alleging the tort of harassment as well as a human rights violation under the Code. A civil claim brings the possibility of receiving higher damages awards than in a Human Rights Tribunal of Ontario proceeding (in Merrifield, the plaintiff was awarded $100,000.00 in general damages). Yet, if the tort claim is unsuccessful, the court may still consider the issue of the poised environment claim and whether there was of a breach of the Code (Mykki Cavic v Costco WholesaleCanada Limited, 2012 ONSC 5307). While bringing both claims in a civil proceeding increases the possibility of receiving a remedy, at the same time, the claimant would open themselves up to costs being awarded against them if they were unsuccessful.

Bakerlaw is encouraged by the Tribunal’s decision in George v 1735475 Ontario Limited and the interesting possibilities raised by the Ontario Superior Court’s recent decision in Merrifield v The Attorney General.

You can read the Tribunal decision here (link).

Update: In 2019, the Ontario Court of Appeal (ONCA) overturned the Superior Court’s decision in Merrifield. The Court of Appeal ruled that there is currently no basis for the tort of harassment. However, this decision does not mean that employers are released from their duty to create a safe and harassment free workplace. Workplaces must continue to provide harassment free environments, and employees may still have recourse through the Ontario Human Rights Code if they experience harassment or poisoned workplace environments. You can read the Court of Appeal’s decision here (link).