COURT OF APPEAL FOR ONTARIO
CITATION: General
Motors of Canada Limited v. Johnson, 2013
ONCA 502
Doherty, Cronk and
Watt JJ.A.
J. Brett Ledger, Neil Paris and Jay A. Nathwani, for the appellant
John R. Carruthers, for the
respondent
Heard:
May 3, 2013
On appeal from the judgment
of Justice Alfred J. Stong
of the Superior Court of Justice, dated June
8, 2012, with reasons
reported at 2012 ONSC 3339.
Cronk J.A.:
I.
Introduction
[1] From September
1997
until
February
2005,
the respondent, Yohann Johnson,
worked for the appellant,
General
Motors
of Canada
Limited (“GM”), as a production supervisor in the body
shop
at GM’s Oshawa assembly plant. Johnson is a black man.
[2] In late August 2005, Johnson took a medical leave of absence
from work, claiming
disability due to discriminatory
treatment
in the workplace
based on racism. He never returned to
work at GM.
[3] In the litigation
that followed, the trial judge found that Johnson was the victim
of racism and that his workplace
environment was poisoned
due to racism, eventually resulting in his constructive dismissal by GM.
[4] An allegation
of discriminatory treatment in the workplace due to racism
is a serious claim that implicates the reputational and employment interests of the claimant, as well as those of the alleged perpetrators.
It can also
affect the dignity,
self-worth and health of both the alleged victim
and
those
accused
of racist conduct.
An allegation of this type
can
reverberate for many years
after the incident or incidents in question,
with
potentially
long-term
consequences
for
all concerned.
[5] No less serious are judicial
findings of racially-motivated conduct
in the workplace and a poisoned
work environment due to racism. Judicial consideration of an allegation of constructive
dismissal
based
on alleged racism
in the workplace
requires careful
scrutiny of and balanced attention to all the evidence relating to the allegation in order to determine whether
it is
more likely
than
not that the alleged racism occurred.
[6] In this appeal, this court
is required to consider whether the
evidence adduced at trial sustains the
trial judge’s findings of racism and a poisoned work environment
due to racism, leading to Johnson’s constructive dismissal.
[7] For the reasons that follow, I
conclude that these key findings by the trial judge are unreasonable and unsupported by the evidence.
As these
findings are the foundation for the trial judge’s holding of constructive dismissal by GM, the trial judgment cannot stand. In the circumstances of this case, the appropriate remedy is to allow the appeal
and dismiss Johnson’s action against GM.
II.
Facts
[8] GM challenges the trial judge’s central findings and inferences of fact, and their
legal consequences. Accordingly, a close review of the evidence is required.
(1)
Alleged
1997 Incident
[9] During
his almost eight years of employment with GM, Johnson was generally
happy at his job. He had never encountered any instances of racism
in the workplace.
[10] In early
2005,
Johnson
became
responsible
for training
group
leaders
in
the body shop of the GM assembly plant on a new
system of policies and guidelines relating to GM’s Global Manufacturing System (the “GMS”). The assembly plant is a unionized workplace.
The GMS training was mandatory for body shop group leaders. It is uncontroverted that the GMS training
was unpopular with union members, many of whom refused or failed to attend their scheduled GMS training sessions.
[11] On June 28, 2005, Johnson was scheduled
to train Alex Markov,
a group leader
in the body shop. However,
Markov failed, without warning,
to attend
his training session.
[12] Johnson promptly informed Markov’s supervisor
that Markov
had skipped his training
session.
The supervisor spoke to Markov and
then
met with Johnson. He told Johnson
that Markov refused to take the GMS training
with him because of
an incident several years earlier when, according to Markov, Johnson had laughed at an insensitive remark made by another
GM employee about
the death of Markov’s brother.
[13] Later the same day, Jim Tucker, GM’s shift leader in the body shop and Johnson’s supervisor, met with Markov to obtain an explanation. According to Tucker,
Markov said that, in about 1997, he asked
for time
off work
to attend court proceedings involving
individuals charged with his brother’s murder.
When
the court appearance was cancelled, Markov told his superior,
Ray Michaud – a white man – that he
no longer required time off.
Markov claimed that in response, Michaud
stated, “I’ll
rub you out”. He also said
that Johnson was
present during this exchange with Michaud, and that Johnson laughed at Michaud’s remark (the “1997 Incident”).
[14] Markov considered Michaud’s comment to be a derogatory,
disparaging, and insensitive reference to his brother’s murder,
the negative impact of which was exacerbated by Johnson’s
allegedly inappropriate reaction to the comment.
[15] At trial, it emerged that at the time of the 1997 Incident,
the scheduling of work hours was logged on paper and recorded
in
writing by pencil. The trial
judge held that Michaud’s comment to Markov, “if it was made at all, could have been an innocent response to removing Markov’s name from the time sheet
requesting time off”.
[16] Tucker requested that Markov train with Johnson on the GMS. Markov refused, but did agree to train with
another
GM employee, Azar Choudry. Choudry is also a man of colour.
[17] Tucker informed Johnson of Markov’s explanation for his absence from his GMS training. Johnson later claimed that, during his meeting
with him, Tucker attempted to discourage or dissuade
Johnson
from pursuing
Markov’s absence any further. Tucker denied having done so. The trial judge accepted Johnson’s evidence on this point.
(2)
The
Hayes and Hicks Statements
[18] The day after Markov skipped
his GMS training,
Johnson was scheduled
to train another group
leader, Ted Hayes. When Hayes arrived
for his
training session, he told Johnson that he had
learned
that
if he did not want to train on the GMS, all he had to do was claim that he
was
“prejudiced
like
the last guy whose brother was killed by a black man”.
Johnson
did not ask Hayes,
then or later, about the source of this information. Nor did he ask
Hayes
for an explanation. Johnson
later testified that he was “floored” by Hayes’s statement.
[19] Johnson decided to make inquiries of another GM group
leader about Hayes’s statement. He spoke with Hugh Hicks, inquiring if he knew anything about the death of Markov’s brother and asking him to find out as much as he could. Hicks later told Johnson that he had heard from others in the body shop that Markov’s brother had been killed by a black man. Hicks did not tell Johnson
the
source of
this information, nor did Johnson take any steps to confirm it.
(3) Johnson’s Racism Complaint
[20] Based solely on Hayes's statement and the information provided by Hicks,
Johnson concluded that Markov had refused to undergo GMS training with him because
Markov was prejudiced against black men. Early
on the morning
of June 30, 2005, Johnson
met with the plant area manager, Jeff Bantam, and complained, for the first time, that
Markov’s
refusal
to train with
him was based on racism.
[21] In the weeks that
followed,
Johnson
repeated
his racism allegation to various of GM’s management personnel at the Oshawa facility, at various times. GM took several actions in response, including
three
separate
investigations
by GM personnel into Johnson’s
complaint. On
each occasion, the GM investigators concluded that there
was
no evidence of racially-motivated conduct by Markov.
(4)
GM’s First Investigation
[22] Immediately after his June 30th meeting with Johnson,
Bantam
summoned Tucker to his office, informed him of Johnson’s racism
complaint, and directed him to deal with the
situation. This marked
the beginning of GM’s first investigation into
Johnson’s complaint.
[23] Tucker then met with Hayes and told him that his comment to Johnson
was inappropriate and that Hayes owed Johnson an apology. Hayes apologized to Johnson, who accepted the
apology.
[24] Tucker, together with a GM labour relations and human rights representative,
Karine Laverdière,
also met separately with Johnson.
Laverdière took notes of the meeting. Her notes indicate that Johnson’s concerns were discussed, including Markov’s
explanation for his absence from the training session.
Tucker also interviewed Markov, in the presence
of Markov’s union representative,
and two other individuals who had worked in the body
shop
in 1997. He did
not interview Ray Michaud.
[25] By the time of the meeting with Markov, the plant manager had made a direct order that Markov take his GMS training with Johnson, failing which he was to be “walk[ed] right out of the plant”. However, at the meeting, Markov’s union representative proposed that the matter be resolved by Markov resigning as a group leader
in the body shop, thereby
relieving him of the GMS
training requirement, and assuming a different
role as a utility replacement representative within the body shop.
At trial, Tucker
testified
that
utility
replacement
personnel fill in for other plant employees, as
need
arises.
[26] Johnson was informed
of this
proposed resolution of
his complaint and accepted it. The parties are divided on whether his acceptance was unconditional. Johnson later maintained that he agreed
to the proposed resolution on condition that a note was entered in Markov’s personnel file, indicating that Markov was stepping down as a group
leader
in order
to avoid
GMS training and to “preserve his racist views”. Tucker
and Laverdi ère disputed this claim, testifying that no condition of this kind had been raised with them by Johnson,
or agreed upon. The trial judge accepted Tucker’s and Laverdière’s evidence on this point.
[27] At trial, Johnson acknowledged
that, as far as he was
concerned, the Markov-related matter was “over and done with” by June 30, 2005 as a result of the agreed-upon resolution, described above.
(5)
GM’s Second investigation
[28] Sometime in the third week of July 2005, after the GM assembly
plant re- opened following its annual
two-week
summer
shutdown
and
while
Tucker
was on holidays, Johnson observed
Markov
in the body shop,
performing group leader functions. Johnson
concluded
that
Markov’s group leader position had been restored notwithstanding the complaint resolution reached several weeks earlier.
He reported this
to Bantam who, based on Johnson’s information, promptly called a meeting to determine
who had returned Markov to group leader duties.
[29] Within hours, a disciplinary hearing into Markov’s failure to comply with the explicit direction that he undertake GMS training with Johnson was conducted pursuant to the governing
collective agreement. In the
result, Markov was suspended from work for five days. At trial, Johnson agreed that, as a result of this disciplinary action,
the matter had again
been
fully
resolved.
He testified
that, at that point, there were no outstanding
racism-related
issues
insofar
as he was concerned.
[30] However,
Markov exercised his right under
the collective agreement to appeal his suspension. His appeal
was
allowed,
his suspension
was
rescinded, and GM was criticized for permitting Markov to perform
group leader duties in apparent breach of the agreed
resolution of Johnson’s original complaint. At trial, Tucker testified that, in fact, Markov had
simply
been
filling
in as a replacement for an
absent group leader in
accordance with his duties as
a utility replacement representative. Tucker
claimed
that
this
work
did not
violate
the agreed
complaint resolution.
[31] Johnson, upset by the appeal disposition, met with Tony Costa, GM’s plant personnel director, and asked him to re-investigate
his original complaint.
Costa did so. He interviewed several
individuals, including Johnson,
Bantam and Tucker. Costa, like Tucker before him, concluded that there was no evidence of racism
by Markov. To the contrary, Costa noted that, based on his investigation, Markov’s version
of the
1997 Incident “was plausible”.
(6)
GM’s Third Investigation
[32] Johnson remained unsatisfied.
On August 29, 2005, he took his concerns
to the assistant
plant
manager,
Gerry
Meeks.
After
speaking
with
both
Johnson and Costa, Meeks offered on his own initiative to have Johnson’s racism complaint investigated again.
[33] Laverdière, the GM labour relations
and
human
rights
representative
who had participated in some of Tucker’s earlier
interviews
regarding
Johnson’s complaint, including the interview with Markov, conducted this third investigation. She interviewed Markov again, on two separate occasions.
She
asked
him
whether he was prepared to train on the GMS with Michaud, who
allegedly
made the “rub you out” comment in 1997.
Markov
replied
that
he would feel
worse about taking training with Michaud
than
with
Johnson. For the first time, Markov also asserted that some hours after the 1997 Incident,
Michaud
and
Johnson went to see him, repeated the same “rub you out” comment originally uttered by Michaud, and again laughed.
[34] Laverdière interviewed various other individuals in addition
to Markov,
including Michaud
and
Tucker.
Michaud
denied
the 1997 Incident.
Laverdière took detailed notes and documented the results of her investigation in a written report. She, too, concluded that there was no evidence that Markov was racist, reporting that Markov perceived the 1997 Incident as a threat,
that
he was still upset
by it, and that there were reasonable
grounds to believe Markov’s perception of events, regardless of whether the 1997 Incident had in fact
occurred. At trial, she testified
that, when interviewed, Markov appeared “very sincere” and
“very upset” about
the 1997 Incident.
[35] The trial judge found that GM did not take Johnson’s complaint
“sufficiently seriously” and
that, notwithstanding three
investigations, it
failed to conduct
“a reasonably comprehensive investigation into Johnson’s complaint”. He held that although GM did not act maliciously, it ignored
the agreed complaint resolution, reassigned Markov to the role of group leader, and failed
to
enforce “the voluntary
demotion” by Markov, instead
“carry[ing] on as if Markov’s resignation did not exist”. He also found
that
GM was “instrumental in having…Markov’s 5 day period of suspension over-turned in an effort to influence
contractual negotiations” with the union. He accepted Johnson’s assertion that, in so doing, GM “traded away Johnson’s human rights as a bargaining chip”.
(7)
Johnson’s Leave from Work
[36] Johnson disagreed with and was distressed by the results of the first two investigations into his racism complaint. When a co-worker in the body shop allegedly told him that Markov
had threatened to harm him, he also began to fear Markov. GM assured him that he would have
the protection of surveillance cameras in the parking lot when he arrived at and left the plant.
[37] Johnson came to view the body shop at the assembly plant as a poisoned work environment. At the end of August 2005,
after
he had spoken with Meeks and before Laverdière
commenced
her
investigation,
he took an approved
medical leave from work under the care of a psychiatrist,
asserting
disability arising from discriminatory treatment due to racism in his workplace.
[38] Johnson
was absent from work for the next two years. It appears that throughout
much of this period, he failed to furnish
GM with current
and on-going medical information substantiating his claim of continuing
disability. He led no medical evidence at trial in support of his
disability
and damages claims.
[39] About two years later,
in mid-July 2007, Johnson met with GM’s plant physician, who concluded
that Johnson was fit to return to work. GM wrote to Johnson’s legal counsel, asking that Johnson contact GM’s human resources representative, Jim Goard, to
discuss his return to work. Johnson complied. He told Goard that
he
was disabled, that
he
was unable to work
in any
plant environment where he might come into contact with Markov or Michaud,
and that he would return to work only at General
Motors
Acceptance
Corporation (“GMAC”), in GM’s training centre,
or in GM’s head office.
[40] Goard told Johnson that GM no longer owned GMAC and that no training positions were then available. He offered Johnson a supervisory role, similar to Johnson’s previous position, in two manufacturing-related
jobs,
in two
different GM facilities (the Truck Plant or West Paint building),
both of which were located in different
buildings about one kilometre away from the assembly plant body shop. He also offered to adjust Johnson’s
shifts and, possibly, his supervision. Johnson declined these offers, maintaining that he was disabled from working
in any GM plant. He provided no current
medical information
to support this claim.
[41] By the end of September 2007, Johnson had still not returned to work. On September 27, Goard wrote to Johnson
confirming that he had been informed of the available employment opportunities
outside
the assembly plant body shop and that GM had not been provided with medical support for Johnson’s claim of continuing disability. Goard
ended his letter by stating that, under
the circumstances, he had concluded that Johnson was resigning from any further
employment relationship
with GM.
[42] The trial judge found that Goard’s letter was “just short of an attempt to bully Johnson” into accepting an employment position “which could only resurrect the ill will that caused his grief in the first place”. He further held that “GM’s offer and apparent insistence” that Johnson “return to virtually the same work environment in which his problems
were suffered” could not be construed as a reasonable resolution or as the provision of “a healthy, discrimination-free work environment”. In the trial judge’s view, GM’s decision to treat Johnson’s refusal of the offered employment positions as a resignation amounted to constructive dismissal.
(8)
The Litigation
[43] On January 31, 2008, Johnson sued GM for damages for breach of his employment contract, special damages and
damages for loss of
employment–related benefits, punitive damages and Wallace damages, totalling approximately $530,000.
[44] In his pleading,
Johnson
alleged
that
prior to his medical
leave
at the end of August 2005, he had experienced 10 weeks
of “belittlement”
by GM as a result of racist behaviour
by GM employees, which left him “pained, humiliated, diminished, and bewildered”. Johnson pleaded that, as a result of this conduct, he became “profoundly
distressed”, “began to experience a profound sense of worthlessness” and, by August 29, 2005, had been rendered disabled. He also pleaded that he was later diagnosed as suffering from “a phobic
response
to a racist
workplace”.
III.
Trial Judge’s Decision
[45] The trial judge
ruled that GM was liable
to Johnson for constructive dismissal. He awarded Johnson
damages
in the amount of $159,999.92, consisting of approximately $95,000 for wrongful dismissal damages,
special damages in
the
sum of $40,000 and Wallace
damages in
the
further amount of $40,000, less $15,000 due to Johnson’s failure to mitigate his damages, plus costs and pre- and postjudgment
interest.
[46] The trial judge made the following significant findings:
(1) Markov’s excuse for not attending
his GMS training
session with Johnson was “solely racially- based” and his version of the 1997 Incident was “a cover up of his
discriminatory behaviour”; (2) the conduct
of GM and some of its employees created a poisoned
work environment; (3) GM failed to conduct a serious or comprehensive investigation into
Johnson’s racism complaint;
and (4) Johnson was constructively dismissed from his employment
with GM.
[47] The trial judge expressed his conclusions on
Johnson’s claims in this fashion:
[65] Johnson has met the
objective standard of proving on a balance of probabilities that there existed conduct sufficiently severe and persistent to create a poisoned workplace, and that it started at the hand of Alex Markov who
was racially biased against
Yohann Johnson because he is a
black
man. Because of his racial bias, Markov
refused to be trained by Mr. Johnson and GM failed to provide
Mr. Johnson
the support needed to eradicate the existence of the discrimination or to improve working conditions
such
as would provide for him a healthy, discrimination-free work environment.
[66] GM breached the implied term of Mr. Johnson’s employment that he would not be subjected to discrimination because
of the colour of his skin. As a victim
of racism in the
workplace, Mr. Johnson was adversely
affected not only by the initial expression of racist behaviour but also by the failure of GM to follow up and live by the agreements and resolutions entered into.
…
[68] I am satisfied that
Yohann
Johnson
has
satisfied the burden
of
proof placed on him of proving that he was constructively dismissed from his employment
with GM; that he suffered a foreseeable financial loss as a result of
racism and/or the
follow-up events in the workplace;
and that he suffered a foreseeable loss to his mental health and
dignity as
a
result of
racism and/or the
follow-up events in the
workplace.
[48] On appeal,
GM argues that the trial judge’s findings of racism
and a poisoned
work environment due to racism are unreasonable
and
unsupported
by the evidence and that the trial judge’s resulting finding of constructive dismissal therefore cannot
stand. In addition,
and essentially in the alternative, it challenges the trial judge’s awards of special and Wallace damages.
IV.
Issues
[49] I would frame the issues on appeal as follows:
|
(1)
|
Is the trial judge’s finding of racism
tainted by palpable
and overriding error or otherwise clearly
|
|
wrong, unreasonable, or unsupported by the evidence?
|
(2)
|
Are the trial judge’s
findings of a poisoned
work environment due
to racism and resulting constructive dismissal also tainted by palpable and overriding error or otherwise clearly wrong, unreasonable, or unsupported by the evidence?
|
|
(3)
|
Did the trial judge err in law by awarding special and Wallace damages in the circumstances?
|
V.
Analysis
(1)
Standards
of Review
[50] It is well established
that a
trial judge’s findings and
inferences of fact attract great deference from a reviewing court. They cannot be disturbed on appeal unless
they are infected by palpable and overriding
error or are
otherwise clearly wrong,
unreasonable, or unsupported
by the evidence: Housen v. Nikolaisen, 2002 SCC 33,
[2002] 2 S.C.R. 235, at paras. 1-3
and
10-25; H.L. v.
Canada (Attorney
General), 2005 SCC 25,
[2005] 1 S.C.R. 401, at paras. 4, 52-
55 and 64-65; F.H. v. McDougall, 2008 SCC 53, [2008]
3
S.C.R.
41, at paras. 55
and 73.
[51] That said, while the principle of deference applies, a trial judge’s
factual findings and inferences are not immune from
appellate scrutiny. In H.L., at paras.
55-56, the Supreme Court, citing
Housen, explained that a trial judge’s
findings or inferences of fact may be set aside on appeal if
they are “clearly wrong”. With respect to a trial
judge’s
findings of fact, the palpable and overriding test is met where the findings can be properly
characterized as “unreasonable” or “unsupported by the evidence” and they are likely to have affected the result at trial: H.L. at para. 56. With respect to a trial judge’s inferences of fact, Fish J., writing for a majority
of the Supreme
Court
in H.L., stated, at paras.
74-75:
Not infrequently, different inferences may reasonably be drawn from facts found by the trial judge to have been directly
proven. Appellate scrutiny
determines whether
inferences drawn by the judge are “reasonably supported
by the evidence”. If they are, the reviewing
court cannot reweigh
the evidence by substituting, for the reasonable
inference preferred by the trial judge, an equally
– or
even more – persuasive inference of its own. This fundamental rule is, once again, entirely consistent with both the majority
and
the minority
reasons in Housen. In short, appellate
courts not only
may – but must – set aside all palpable and overriding errors of fact shown to have been
made at trial. This applies no less
to inferences than to findings of “primary” facts, or facts
proved by direct
evidence.
[Emphasis in original.]
[52] The Supreme Court’s jurisprudence
is equally unequivocal concerning the governing
standard of review on questions
of law. There is no room for error by a trial judge on a pure question
of law – the applicable standard is that of correctness. Thus, on matters of law, an appellate court enjoys
a broad scope of review and is free to replace
the opinion of the trial judge with its own: Housen at paras. 8-9.
(2)
Trial Judge’s Finding of Racism
[53] The
trial judge
found, at para. 16:
I am satisfied that Markov’s excuse for not attending the training session by Johnson was solely racially based and his story about
his interpretation of the alleged [1997
Incident] was simp[ly] a cover up of his discriminatory behaviour which was inexcusable. I am satisfied
that Markov refused to take training
from
Johnson because
Johnson is a black man.
[54] The trial judge’s finding of racially-motivated conduct by Markov lies at the core of his decision. Without the existence of underlying racism and the discriminatory treatment that the trial
judge
held
flowed
from
it, there is no basis in law for the trial judge’s additional finding of a poisoned work
environment, leading
to constructive dismissal. There
is no suggestion that, apart from the issues of racism and a racism-infected workplace, Johnson was otherwise constructively dismissed.
[55] I am satisfied that GM has met the high hurdle for appellate
reversal of the trial judge’s impugned finding of racism. I respectfully conclude that, on this evidentiary record,
this foundational finding
is unreasonable
and
unsupported
by the evidence.
I say this for
the
following reasons.
[56] At trial, there was no direct evidence
of racism towards
Johnson by anyone at the GM assembly plant,
including
Markov.
Moreover,
the trial judge’s
finding of racism did not turn
on an evaluation of Markov’s credibility, to which heightened deference would be owed, because Markov died before trial. Further, Johnson never spoke to Markov about his explanation
for missing
his
GMS training session. As a result, the information gathered by Tucker and Laverdière in their investigations of Johnson’s
racism complaint was the only evidence
at trial regarding Markov’s motivation for skipping the GMS training with Johnson.
[57] Both Tucker and Laverdière testified that they had personally sought an explanation for Markov’s failure to attend his training
session. Both investigators independently viewed his explanation
as “very sincere”, assessed that
his
account of the
1997 Incident reflected his genuine and
strongly-held beliefs, and concluded
that there was no evidence of racism. Their evidence concerning Markov’s explanation
was uncontradicted.
[58] As GM properly acknowledges, the
trial judge was not
obliged to accept the GM investigators’ conclusions regarding Markov’s motivation for skipping his GMS training. The trial judge was nevertheless obliged to assess the available evidence concerning Markov’s
avowed excuse for his absence
from his GMS training session. This evidence included Markov’s consistent denials that his failure to attend the training session
was
racially
motivated;
instead,
Markov offered
an entirely different explanation for his absence, namely, his personal dislike of Johnson as a result of the 1997 Incident.
[59] The trial judge’s sole basis for concluding that Markov
lied about his reason for refusing to train with Johnson was what the trial judge
perceived as a significant discrepancy between what Markov first told Tucker about the 1997 Incident and what he later relayed to Laverdière when she conducted GM’s final investigation of Johnson’s complaint. As I have said, during
his interview with Laverdière, Markov alleged for the first
time that Michaud and Johnson had approached him some hours after the 1997 Incident,
repeated Michaud’s initial comment about “rubbing [Markov] out”,
and again laughed.
[60] The trial judge regarded the timing of this disclosure as highly suspect. Based on Markov’s late disclosure
of this alleged second encounter, and without the opportunity to observe Markov directly or assess
his
credibility first-hand, the trial judge concluded
that Markov had fabricated his account
of the second encounter “with the intent to bolster his claim
and
to mislead Ms.
Laverdi ère in her efforts to ascertain the existenc e
of
racial
discrimination” by
Markov.
[61] I accept
that the apparent inconsistency
between
what
Markov told Tucker
and what he said to Laverdière about the circumstances surrounding the 1997 Incident provided some basis for the trial judge’s
rejection of Markov’s
reported reason for skipping his GMS training with
Johnson.
That is quite
different, however, from finding
that there was affirmative
evidence of a racially-based animus by Markov
towards Johnson.
[62] Even if Markov had fabricated his account
of a second encounter
with Michaud and Johnson, the trial judge drew an unreasonable inference
when he concluded
on that basis alone
that Markov had lied throughout the GM investigations about his reason for skipping the GMS training to hide his racist conduct
and beliefs. The trial judge’s reasons suggest that he ignored the following considerations, which bore directly on Markov’s explanation for skipping his GMS training: the GMS training
session was mandatory
for group leaders at the assembly plant, Markov
had been told to attend and he did not do so.
W hen he skipped
his training session, he was confronted
by his superiors, who demanded
an explanation. In these circumstances, a false explanation that had nothing
to do with racism was eminently possible; Markov told Tucker that he was willing to take the GMS training with another person of colour – Azar Choudry – who also
worked at the GM Oshawa facility; Markov said that he would find
it more difficult
to train with Michaud than with Johnson because of Markov’s
perception of Michaud’s
conduct
during the 1997 Incident. Michaud, as I have mentioned, is a white man; Johnson acknowledged at trial that Markov never said
anything racist to him
or in his presence; and when pressed why he believed Markov was racist, Johnson could point only to Hayes’s statement, described above, and Hick's subsequent hearsay information that Markov's brother was killed by a
black man.
learned
that
he
could avoid GMS training
by claiming that he was “prejudiced like the last guy whose brother was killed by a black man” – was the only evidence of any racially-related comment
by a GM employee to Johnson. However, this statement had no evidentiary
value at all concerning Markov’s
alleged
state
of mind regarding Johnson.
[64] I therefore conclude,
on this evidentiary
record, that it was
unreasonable for the trial judge to hold that Markov’s absence from his GMS training
was “solely racially based”. With respect, there was simply no evidence to support this finding.
Given the centrality of this flawed finding to the trial judge’s ruling on liability, this error is sufficient to decide the appeal.
[65] However, there is more. I reach a similar
conclusion
regarding
the trial
judge’s findings that the body shop at the GM assembly plant was a poisoned work environment due to racism,
consisting
of “an underlying
but persistent aura of harassment”, which eventually led to Johnson’s constructive
dismissal. I turn now to these critical findings.
(3)
Trial Judge’s Findings of a Poisoned
Work Environment
and Constructive Dismissal
[66] Workplaces become poisoned for the purpose of constructive
dismissal only where serious wrongful behaviour
is demonstrated.
The plaintiff bears the onus of establishing
a claim of a
poisoned
workplace. As the trial judge recognized, the test is an objective one. A plaintiff’s subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence
that,
to the objective
reasonable
bystander,
would
support the conclusion that a poisoned
workplace environment had been created. See for example, Ata-Ayi v. Pepsi Bottling Group (Canada) Co. (2006), 54
C.C.E.L. (3d) 148 (Ont. S.C.), at paras. 23 and 40; Bobb v. Alberta
(Human Rights and Citizenship Commission), 2004 ABQB 733, 370 A.R. 389, at para.
85;
Houtz v. 772910 Ontario
Inc. (c.o.b. McFee’s Tavern), [2002] O.J. No. 475 (S.C.), at para.
45; Canada (Canadian Human
Rights Commission) v. Canada (Canadian
Armed Forces) (re Franke),
[1999]
3 F.C. 653 (T.D.), at paras. 43-46.
[67] Moreover,
except for particularly
egregious, stand-alone incidents, a poisoned
workplace is not created,
as a matter
of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment
is
persistent or repeated: Bobb at
paras.
85-87;
Canada (Canadian Armed Forces)
(re Franke) at
paras. 43-46.
[68] The test for establishing constructive dismissal
is no less stringent.
In Farber
v. Royal Trust Co., [1997] 1 S.C.R.
846,
Gonthier
J. explained,
at para. 26, that an objective test governs; the issue is whether
“a reasonable
person
in
the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed”. Justice Gonthier elaborated, at para. 33:
In cases of constructive dismissal, the courts in the common law provinces
have applied the general principle
that
where one party to a contract demonstrates an intention no longer to be bound
by it, that party is committing a fundamental breach of the contract that results in
its termination.
See also Shah v. Xerox Canada Ltd. (2000), 131 O.A.C. 44 (C.A.), at paras.
6 and 8.
[69] The trial judge recognized, correctly, that an objective
standard applied to determine Johnson’s claim of constructive dismissal due to a poisoned workplace arising from racism. He went on to
hold, at para. 63:
When one objectively considers the events
which comprise
the progression of the status of Johnson’s complaint through the system that existed in GM for handling such complaints, there can be no doubt that a
reasonable person
would conclude that circumstances were such as would justify Mr. Johnson
to consider he had been constructively dismissed from his employment. [Emphasis added.]
[70] With respect, I disagree. First, even
if
Markov’s absence from his GMS training session were racially-motivated – a conclusion that I regard as unreasonable and unsupported by the evidence – this alone would not support a finding that the assembly
plant body shop was poisoned
by racism, warranting a finding of constructive dismissal. As a matter of law, the offending conduct must be persistent and repeated unless the incident in question is
sufficient,
standing
alone, to taint
the
entire
workplace.
That is not this case. The trial judge made no finding that Markov’s refusal to train with Johnson on the GMS was sufficient to establish a poisoned workplace
due to racism.
[71] Nor, in my view, was such a finding available
here.
Johnson’s
racism
complaint arose from a single employee’s
failure
to attend a single
training session. Such conduct falls
short of the type of egregious behaviour
manifested in
those cases involving poisoned work environments.
Johnson did not establish systemic
or institutional racist behaviour. I agree with GM’s
submission
that
a single incident of this kind, with a single
employee,
over
the course of an eight-
year working relationship cannot objectively ground a finding
of a work environment poisoned by racism.
[72] Second, Johnson acknowledged at trial that he was satisfied, and there were no outstanding racism issues, when Markov
agreed
on June
30, 2005
to step down as a group leader and, again,
in August 2005 when Markov
was disciplined. Only when Markov’s suspension was rescinded on appeal under the collective agreement did Johnson again
allege racism in the workplace.
Dissatisfaction with the results of a legitimate grievance process cannot anchor a claim for constructive
dismissal.
[73] Third, the trial judge
committed several additional errors in
finding constructive dismissal
based on a poisoned
work environment due to racism. The trial
judge identified the following factors as supporting his conclusion that “circumstances were such as would justify Mr. Johnson to consider he had been constructively dismissed from his employment”:
(a)
Markov’s behaviour in failing
to attend his
GMS training session,
coupled with his
reason for that failure
Рthe 1997 Incident Рand his subsequent embellishment of the circumstances surrounding the 1997 Incident during his interview with Laverdi̬re; (b)
the “underlying import and impact of Markov’s unexpected resignation from his group leader position”; (c) Hayes’s statement to Johnson; (d)
Tucker’s opposition to and reluctance to accept Markov’s resignation as a group leader in the body shop; (e)
GM’s return of Markov to the position of group leader;
(f)
the “overturning” of Markov’s disciplinary suspension “because of ongoing contractual negotiations between GM and its employees”; (g) Markov’s “threats against Johnson”; and
(h)
GM’s “insistence” that Johnson “return to the work environment in which his difficulties first arose under pain of being considered to have
resigned his employment”.
[74] The first factor, in my view, affords no support for the finding
that Johnson was constructively dismissed by reason
of a poisoned work environment
due to racism.
I have
already concluded that the trial judge’s finding of racially- motivated conduct by Markov is
unreasonable and unsupported by the
evidence.
[75] It is difficult to understand how the second factor cited by the trial judge
contributes to a finding
of constructive dismissal based on a poisoned
work environment due to racism. Markov’s resignation
as a group leader
was proposed by his union representative. On the trial judge’s
findings, Johnson unconditionally accepted this proposed resolution of
his
racism complaint. There is no evidence that Johnson viewed the proposed resolution as itself inspired by racism.
[76] As I have said,
there
is no doubt that the third factor
– Hayes’s statement that he could avoid GMS training by claiming prejudice, as Markov allegedly had done – was an inappropriate, race-related comment. Tucker concluded as much. He promptly instructed Hayes to apologize to Johnson. Hayes
did so,
and Johnson accepted Hayes’s apology. These facts do not
support
the conclusion
that the GM body shop was a poisoned
workplace due to racism. Accepting the offensive nature of Hayes’s statement, Tucker’s actions signify GM’s intolerance, rather than acceptance, of inappropriate, race-related comments in the workplace.
[77] Nor does the fourth factor relied on by the trial judge support a finding of constructive dismissal
based on a poisoned workplace
due to racism.
Tucker testified that he was opposed to the union proposal that Markov step down
as a group leader because
it would
permit
Markov
to unilaterally determine whether he would comply with a mandatory training requirement imposed by his employer. Tucker regarded the resignation proposal as a “poor
precedent”
that, in
effect, would
allow Markov to “work the system”.
Nonetheless, on the advice of labour relations representatives, Tucker accepted the proposal. And, on the trial judge’s findings, Johnson also unconditionally
agreed
to the proposed resolution.
[78] Thus, on the evidence accepted by the trial judge, Markov’s resignation as a group leader was a negotiated
compromise
in the grievance disciplinary process. Tucker’s personal reaction to it is irrelevant. Johnson accepted the proposed resolution. I did not understand
Johnson to claim that the proposal, or Tucker’s reaction to it, were motivated by racism.
[79] The trial judge next identified GM’s return of Markov to a group leader role and the “overturning” of Markov’s suspension as indicia of a poisoned
work environment that led to Johnson’s constructive dismissal. The trial judge was critical of the grievance process that led to Markov’s suspension and its revocation on appeal in part on the basis that Johnson
did not
participate
in either hearing. He also held that GM ignored Markov’s voluntary demotion, carried on as if his resignation as a group leader had not occurred, and “traded away” Johnson’s human rights as a bargaining
chip in its contractual negotiations with the union.
[80] With respect, these holdings reflect a fundamental misapprehension of the evidence. The evidence
at trial established
that
Markov
was
in fact removed
from his role as a group leader. Tucker
testified that when
Johnson
observed Markov at work in the body shop after the plant summer shutdown,
Markov was performing group leader functions on a temporary
basis in his assigned role as a utility replacement
representative. Johnson
has
pointed
to no evidence
admitted at trial that contradicts this explanation for Markov’s activities
on the day
in
question.
Johnson had simply assumed, as Bantam had based on Johnson’s reported observations of Markov, that Markov continued in the role
of a group leader in
violation
of the agreed complaint resolution.
[81] However, Markov was reinstated as a group
leader
and
his suspension was rescinded only after his successful appeal
under the plant grievance procedures. GM did not control
these contractual
procedures,
including
the appeal
process and its outcome.
Johnson was not a party to the grievance
process, which involved only GM and Markov in accordance with the procedures outlined under the applicable collective agreement. There is no evidence
that the grievance process permitted or contemplated Johnson’s participation or that his involvement in the discipline
and appeal hearings was within GM’s control.
[82] Moreover, the grievance process had nothing to do with Johnson’s human rights. Both the discipline and appeal hearings were concerned with whether GM had acted properly, in accordance with the collective agreement, in suspending
Markov for failing
to obey a direct order that he take GMS training
with Johnson. Johnson’s human rights were not engaged at either hearing.
[83] I also note that there was no evidence
at trial (1) concerning the position
taken by GM at the grievance
appeal hearing or (2) establishing that GM stood to benefit in its contractual relations with the union if Markov were to be returned
to a group leader position. Although Johnson
maintained that his
human rights were somehow compromised during the grievance process, no GM witness was cross-examined on
this issue.
[84] In a related
finding, the trial judge also held that Johnson
was
adversely affected not only by Markov’s initial expression of racist behaviour but, as well, by GM’s failure “to follow up and live by the agreements and resolutions entered into”. The trial judge directed several criticisms at GM in this regard. In many instances,
these criticisms were unfounded
or simply
inaccurate.
[85] For example, the trial judge criticized Tucker for not
being
outraged
on June 28, 2005 at Markov’s
conduct when Johnson “reported racism” and, on the evidence accepted by the trial judge, for attempting to persuade Johnson
not
to pursue Markov’s behaviour any further. Johnson, however, did not
allege
or complain of racism
until June 30, in his meeting
with Bantam. As a result, anything Tucker said to Johnson on June 28 about continuing
to press the matter of Markov’s failure to attend his GMS training
session could not
have
been referable to
racism, at least
insofar as Tucker was concerned.
[86] In addition, the trial judge stated in respect
of GM’s investigations
of Johnson’s complaint, “It is not without note that no one in the GM organization charged with the responsibility of investigating [Johnson’s] allegations of racist behaviour…ever interviewed Michaud.” This
assertion,
too, is incorrect. Laverdière
interviewed Michaud as part
of
her investigation.
[87] The seventh
marker of a poisoned work
environment
identified
by the trial judge
was
Markov’s “threats against
Johnson”.
This
factor,
if
properly established by admissible evidence at trial, may well have been significant. However, during oral argument before this court, Johnson’s counsel fairly conceded that, at best, the evidence of a threat of harm by Markov was unproven hearsay. Johnson claimed
that he had been told by a co-worker
that Markov had threatened to harm him, presumably in
retaliation for
Johnson’s racism complaint. But Johnson led no evidence at trial of an actual threat, nor any evidence from the person or persons who allegedly told him of the purported
threat.
[88] Finally, there is the matter of GM’s position concerning Johnson’s return to work. The trial judge held
that
GM “insisted” and attempted
to “bully” Johnson into returning to work in “the environment in which his difficulties
first arose”, failing which he would be considered to have resigned his employment
with GM. He held, in effect, that GM acted unreasonably and failed to accommodate Johnson’s disability by failing to provide him with “a healthy,
discrimination–free work environment”.
[89] I make several observations
regarding these findings. First,
contrary to the
trial judge’s findings, GM did not “insist” that Johnson “return to a paint shop as a production supervisor”. Nor did it suggest
that Johnson return to work in “virtually the same work environment … in which there was the potential of encountering the same individual who had caused him grief in the beginning”. The evidence at trial established that Goard offered Johnson two
alternate manufacturing positions, located in facilities outside the assembly plant body shop where he had experienced his difficulties with Markov, in buildings situate some
distance
away from the body shop. Only one of these facilities
was
the plant paint
shop. Markov did not work in either
facility.
[90] Second, as the trial judge himself recognized, Johnson did not
have
the right
to dictate where he would work or the employment role he would assume on his return to work.
[91] Third, and importantly, an objective standard governs the determination whether a workplace is poisoned, by reason of racism or harassment: Houtz at para. 45. Further, in order to establish a claim of constructive dismissal, an employee must prove that the employer’s conduct constituted a repudiation
of the contract of employment, such that the employer no longer
intended
to be bound by the contract:
Farber
at para. 24. As Finlayson J.A. of this court stated in Smith v. Viking Helicopters Ltd. (1989), 68 O.R. (2d) 228, at p. 231, “The employer must be responsible for some objective
conduct which constitutes a fundamental change in employment
or unilateral change
of a significant term of that employment.” See also Ata-Ayi,
at para. 45; Shah, at paras. 6-8. Moreover, where it is alleged
that
an employee has
been
constructively
dismissed
by reason of a
poisoned work
environment due to racism, the employee must
also establish that the employer’s persistent conduct has rendered
his continued employment intolerable: Shah at
para. 6; Bobb at
paras. 85 and 87.
[92] In this case, given the trial judge’s finding that GM’s repeated investigations of Johnson’s racism
complaint were deficient,
the critical
issues
were, first, whether GM repudiated its employment contract with Johnson and, second,
whether, evaluated objectively, its decision to treat Johnson’s
refusal to return
to work as a voluntary
resignation was
reasonable.
[93] It is here, in my opinion, that the trial judge’s constructive
dismissal analysis fatally founders. The trial judge was obliged to
consider all the evidence of the circumstances surrounding Johnson’s termination of employment and the entire context in which the termination occurred.
In my opinion,
viewed in that fashion, the evidence
does not support the conclusion that GM repudiated its employment contract with Johnson or that it acted unreasonably in treating
Johnson’s decision not to return to work as a voluntary
resignation
of his employment with GM.
[94] Even if GM’s investigations of Johnson’s racism complaint were imperfect, the investigations did not reveal any intention by GM to repudiate its employment contract with Johnson.
I did not understand Johnson to argue to the contrary.
[95] Nor, as a matter of law, did
Goard’s position
concerning Johnson’s potential return to
work constitute a repudiation of the employment contract. GM, through Goard, offered Johnson
two
employment
opportunities outside the assembly plant body shop. These offers of continuing
employment are
inconsistent with the notion that GM was resiling from its employment relationship with Johnson. In fact, GM concluded that Johnson
himself
had effectively elected to terminate his employment
relationship with GM only after
Johnson declined to accept the employment
positions offered
by GM, failed for another
two months to return to work, and failed to provide GM with current medical evidence to support his
claim
of continuing disability.
[96] The trial judge appears to have concluded that GM repudiated Johnson’s employment contract by failing to
provide him with a discrimination-free employment
environment. With respect, this misconceives
GM’s obligations in the circumstances.
[97] During oral argument, Johnson acknowledged that he did not lead
any medical evidence at trial supporting his claim of continuing disability
or indicating that he required workplace accommodation outside of any GM plant due
to disability. Nor did he furnish
such evidence to GM when discussing his return to work with Goard in the summer of 2007.
In
the absence of contrary evidence from Johnson,
GM was entitled to rely on the advice of its plant physician
that Johnson was fit to return to work without accommodation measures.
[98] Nevertheless,
GM did seek to accommodate
Johnson by offering him employment as a production supervisor, a position
similar to the one he had previously occupied, in two different
plants
located
in separate
buildings
about one kilometre away from the body shop. GM also offered
“flexibility in terms of shift and perhaps, supervision”. Johnson declined these offers. At trial, he explained this decision by asserting that if he accepted
a position
in the paint shop, he might encounter
Markov (or other body shop personnel)
if they were required to attend at the paint shop to deal
with a product defect.
[99] GM, however, was not obliged
to immunize Johnson from any future contact with Markov or other body
shop employees.
The information available to GM did
not establish racism by Markov or other body shop
employees.
In
any event, the mere possibility of contact
with
body
shop
employees,
including Markov, does not alone establish that such exposure would result in future discriminatory treatment of Johnson. I also note that GM offered
Johnson
employment in the truck plant, as well as the paint shop.
[100] In all these circumstances, GM’s decision to treat Johnson’s refusal to return to work as a voluntary resignation cannot be said to be objectively unreasonable.
[101] I therefore conclude that the trial judge’s key findings of a poisoned work environment due
to racism, resulting in
Johnson’s constructive dismissal, cannot withstand
close scrutiny when assessed in the context
of the entire evidentiary record.
On this record,
these findings are unreasonable. It follows that, on this ground as well, the trial judge’s liability
finding against GM cannot stand.
(4)
Trial Judge’s Awards of Special and Wallace Damages
[102] Johnson does not
claim and the trial judge
made no finding of constructive dismissal independent
of racism in the workplace. Since I have concluded
that the liability finding against GM must be set aside, it is
unnecessary to consider GM’s alternative argument that the trial judge erred in law by awarding Johnson special and Wallace damages.
VI.
Conclusion
and Disposition
[103] There is no reason to question that
Johnson
genuinely
believed
that
he had been the victim of racism in his workplace.
I accept that his perception
of events unfortunately led to stress
and
mental
anguish.
However,
I also conclude that the evidentiary
record in this case does not support the trial judge’s findings of racism, a work environment poisoned by racism and, hence,
Johnson’s constructive dismissal.
[104] For the reasons
given, I would allow the appeal,
set aside the trial judgment and the trial judge’s costs award in Johnson’s favour, and dismiss Johnson’s action against GM. GM does not seek its costs of the trial or this appeal. Accordingly, I would make no
order as to costs.
Released:
“DD” “E.A. Cronk J.A.”
“JUL 31 2013” “I agree Doherty J.A.”
“I agree David Watt
J.A.”
NOTE: Unresolved formatting defects cause words to be stuck together etc. Readers can find the actual decision on Canli under Ontario. It is a worthy read.
