Written on behalf of Peter McSherry
In Big Inc. v. Islam, 2015 ONSC 2921, the Ontario Divisional Court upheld the decision of the Human Rights Tribunal of Ontario that a Toronto employer created a poisoned work environment for three of its Muslim employees.
Le Papillion on the Park, a popular Toronto restaurant, opened in 2009. Shortly thereafter, the relationship between the restaurant’s owners and three of the restaurant’s employees, all practicing Muslims and immigrants from Bangladesh, began to deteriorate. The three employees subsequently testified that they were required to taste pork contrary to their religion, they were refused time off for a religious holiday and the restaurant’s manager had mocked them for using the Bengali language in the kitchen. In addition, the employees testified that the restaurant’s manager had, on numerous occasions, commented that she wanted exclusively white staff, including making a statement about “cleaning Bengali shit from the kitchen even if I have to close for two weeks to hire new staff.”
Following a hearing of this matter, the Human Rights Tribunal of Ontario concluded that the complainants had proven, on a balance of probabilities, that they had been forced to eat pork contrary to their religion and were subjected to discriminatory comments in the workplace. The Tribunal further found that the restaurant’s owners did not respond to or investigate the complainants’ allegations of discrimination. In fact, the Tribunal concluded that one of the complainants had experienced reprisal as a result of writing a letter of complaint. Finding that one of the three employees was dismissed by the employer, the Tribunal held that the restaurant’s poisoned work environment provided the other two employees with no reasonable alternative but to leave their employment. Ruling these actions were discriminatory, the Tribunal concluded that the complainants had suffered discrimination on the basis of creed, ancestry, place of origin and ethnic origin.
Along with compensation for lost wages, the Human Rights Tribunal of Ontario ultimately awarded the complainants $35,000, $25,000, and $10,000 respectively in damages for injury to dignity, feelings and self-respect. The Tribunal awarded each complainant an additional $2,000 for the restaurant employer’s failure to investigate the complaints of discrimination. The restaurant was also ordered to create and apply a human rights workplace policy, complete human rights training and post Human Rights Code cards throughout the workplace.
Upon the employer’s subsequent application for judicial review, a unanimous three-member panel of the Ontario Divisional Court held that the Tribunal’s decision was reasonable. Writing for the Court, Justice Douglas Gray emphasized the deference owed to the Human Rights Tribunal of Ontario, explaining:
[i]n assessing the grounds on which the applicants attack the decision of the Tribunal, it must be emphasized that the grounds for reviewing the Tribunal’s decision are narrow.
The Court held that there was no reason to interfere with the Tribunal’s findings of fact or assessment of the evidence. The Court further declined to consider the employer’s argument that one of the matters had already been dealt with in another forum, as this argument had not been raised before the Tribunal.
To find out more about human rights in the workplace, contact employment lawyer Peter McSherry online or at 519-821-5465.
To read the full decision, click here.