Tuesday, July 28, 2015

Some Evidence on Panel's Conduct Allegation:30 Points from HW Massiah's Public Hearing You May Not Have Known

     In this post I wish to bring to light the following 30 salient aspects of this most intriguing little case.

1.  Complaint by Senior
     Management of the
     Ministry of the Attorney

     The current allegations before the Justices of the Peace Review Council Hearing Panel take their genesis from an investigation conducted by a senior Ministry of the Attorney General manager under the auspices of that employer's Workplace Discrimination and Harassment Prevention Policy in August, 2010. According to the investigation report's author the complaints under the WDHPP policy were out of time and therefore her report was forwarded to the Justices of the Peace Review Council as a complaint by this senior manager. The subject employees themselves did not initiate a complaint to the Justices of the Peace Review Council.

2.   Complaints under the WDHPP policy must be initiated within a two year period.  Those allegations were beyond the limitation period prescribed by this policy.

3.   All of the employees involved in the initial prosecution of HW Massiah were covered by a collective agreement which provided protections from discrimination and harassment contrary to the Human Rights Code.

4.   The union played no role in the investigation and complaint initiated by management.

5.   The initial complaint of judicial misconduct against HW Massiah dealt with allegations taking place between 2008 and August, 2010 and involved court staff at 50 Bond Street and 272 King Street in Oshawa.

6.   A public hearing into the initial complaint of judicial misconduct against HW Massiah was heard by a Hearing Panel between September - October, 2011.  He was found liable and received a reprimand, a 10 day suspension and gender/boundary sensitivity training.

Presenting Counsel
sends a "Report"
to the Justices of the
Peace Review Council:

7.   While that hearing was going on five court employees from the court at Rosalyn Street          contacted the lawyer prosecuting HW Massiah with "new information" regarding HW Massiah.
That lawyer interviewed those five persons and forwarded summaries of their information to the
Justices of the Peace Review Council.

8.    The Justices of the Peace Review Council appointed a Complaints Committee to investigate and that body interviewed some 33 persons.

9.     The Complaints Committee uncovers some 14 or so allegations through their investigation.

10.   s.10.2 of the Justices of the Peace Act mandates that a complaint of judicial misconduct against a justice of the peace must be in writing and submitted to the Review Council.  This information is also prominently and clearly articulated on the JPRC website and in their literature.

11.   Other than a senior manager from MAG in the first prosecution and Presenting Counsel (from first proceedings - Mr. Hunt) in the current prosecution, not a single member of the public has ever brought their own complaint in writing to the Justices of the Peace Review Council against HW Massiah.

12.   On or about May 31st, 2013 the Justices of the Peace Review Council issued a Notice of Hearing alleging that between May, 2007 and August, 2010 HW Massiah made unwelcome acts and comments of a sexual nature to court staff, leered at litigants and created a poisoned work environment.

13.    His Worship Massiah did not commit any new infractions following his April, 2012 disposition by a Hearing Panel chaired by Justice Vailencourt.  The "new" infractions in the current proceedings all pre-dated the April, 2012 disposition.

14.   Not a single member of the public(litigants before the court) was called to testify that HW Massiah leered or conducted himself inappropriately in court.

15.   In fact, HW Massiah called a member of the public who court staff had identified in their interview with Presenting Counsel in the first case as having inappropriate interaction with HW Massiah and she had nothing but praise for his court conduct.

16.   HW Massiah called three members of Durham Region management and they had no knowledge of him causing a poisoned work environment for their employees. In fact, one manager testified that most of the witnesses enjoyed a sense of comradery with him.

17.   Current Presenting Counsel agreed to an admission that between 2007 and 2010 no grievance was filed with the Region of Durham with respect to HW Massiah.

18.   Several witnesses admitted that the passage of time adversely impacted their recollection on material points.

19.   A few of the witnesses candidly admitted that they were motivated to come forward on account of their concern that HW Massish may "get a slap on the wrist."

20.  One witness(HH) testified that she did not complain at the time of the "loooking good" occurrence in 2010,"Because truly in the whole scheme of things it was fairly minor in nature."  This same witness, HH, did not remember material points in the "lady in red "allegation addressed at paragraphs 113-117 of the Panel's Decision on Liability.

21.  Examination of another witness went like this:

Q.   Would it be fair to say that on some material particulars your recollections have been weakened by the passage of time ?

A.   I think that would be fair to say.

22.  Examination of another witness revealed the following:

Q.   So, in terms of the specifics, do you know what the comments were about ?

A.   No. I can't remember specifics.  I just remember the impression that was left with me.

Q.  Did anyone approach you particularly about how they felt in terms of Justice of the Peace Massiah's interactions with them ?

A.   Yes it was BB

Q.   And what did she -

A.   I can't remember any of the specifics about it.

23.  One witness testified that she was surprised at the fact that people were coming forward with complaints.  The following is a synopsis of her evidence on this point:

Q.   ...You said that you were surprised that some of the complainants have come forward, because they never seemed to have a problem with it at the time --

A.   That is correct

Q.  -- do you remember saying that ?

A.   Yes, I do.

Q.  What did you mean by that ?

A.   With the clerks in particular, it always seemed to be a laughing, great funny time with His Worship.  I didn't see anybody complaining.  I didn't see anybody coming back later and saying, "oh, wow, he said....I don't remember there ever being any problem with any kind of jokes, I mean...

24.   On one of the particulars on which HW was found liable - he is said to have given a clerk(AA) he was introduced to an up and down stare when introduced to her in 2007.  This is how her evidence went:

Q.    Are you able to describe the circumstances and any details of that meeting ?

A.   I remember being by the Bail Court.  There was two Bail Courts side by side, I was in the back hallway.  I was not working in Bail Court that day, I was working for another justice.  And I remember someone introducing me, I don't remember who that was.  But I do remember the introduction.

Q.   And other than the introduction where you say his eyes wandered, if I can put it that way, every
other interaction with Justice Massiah was professional and appropriate ?

A.   Yes, I would say it was.

25.   The only member of the public who testified regarding their experience in appearing before His Worship Massiah had noting but praise for the manner in which he conducted himself in court while dealing with her case.  The following is some of her evidence:

Q.   Now, in the period of time that you were in His Honour's court, did he say anything inappropriate to you ?

A.   No

Q.   Did he ogle you ?  Do you know what I mean by that ?

A.  Yes.  No, he did not.

Q.   How about leering, winking, undressing you with his eyes ?

A.   No, no

Q.   Was there anything about the way the he comported himself in your case that was offensive to you in any way ?

A.   No, nothing he did.

Q.  In your view, does the reputation of the administration of justice, is it lowered by what happened or raised ?

A.   Raised.

Allegation that Mr. Guiste delayed
the proceedings:

26.   In order to expedite the hearing Mr. Guiste and Ms. Henein agreed that allowing Ms. Margot Blight to voluntarily recuse herself from the panel would expedite the process and avoid a possible quashing of the proceedings.  Ms. Blight sat on the panel from July 4th, 2013 to February 12th, 2014 and revealed on November 19th, 2013 that she sat on a previous Complaints Committee which dealt with a judicial misconduct complaint against HW Massiah.

27.   Unfortunately, subsequent developments in the hearing, including statements by her replacement and others on the panel made it necessary to later bring a motion asserting a reasonable apprehension of bias.

28.   Again, in order to expedite the hearing Mr. Guiste and Ms. Henein agreed that if Mr. Guiste elected to proceed with a motion challenging the independence of Mr. Gover to act as Independent Counsel to the panel this would be done in writing and pursuant to an agreed upon timetable and if not this would end that issue.  The panel agreed to this plan.

29.   A motion asserting a lack of jurisdiction and abuse of process was filed with the panel in July, 2013.  At that time the panel raised a question of law to the parties regarding their jurisdiction to entertain this motion. The panel ultimately retained Independent Counsel to provide them with a legal opinion on their concerns.  Mr. Gover's opinion letter is dated May 23rd, 2014.

30.   The hearing panel invited counsel to make written submissions to them on the issues of jurisdiction and the impact of the Divisional Courts June 6th, 2014 decision between May 23rd, 2014 and July 8th, 2014.  The hearing panel acknowledged the novelty of the legal issues raised and acknowledged that counsels' submissions were helpful to them.  The hearing started July 15th, 2014.

Wednesday, July 15, 2015

Some More Evidence on Paragraph 5(6) of Panel's Addendum re Discrimination

Panel's Addendum paragraph 5(6)

"Mr. Guiste made comments to suggest that this panel was discriminating against Mr. Massiah and his counsel during this process."

Excerpts of transcript of
April 9th, 2014 - pages 118 - 129:

JUSTICE OF THE PEACE CUTHBERTSON:  Sir, would you narrow that ?  My question was, where is the section that says it must be the complainant ?  You said there was something here that alludes to that.

MR. GUISTE:  "The complaints committee shall report in a timely manner to the complainant that it has received the complaint and it shall report in a timely manner to the complainant on its disposition of the matter."

Sir, this didn't happen here.


Well, sir, you are digressing.  Would you address the issue I have asked, please.  Is there a section in the Act that specifically says the complaint has to come from the complainant ?  You suggest to me there is other than 10.2 sub (1), which you and I may have different interpretations of that.

MR. GUISTE:  Well, I am putting to you that a proper reading of the whole and the objective of the legislation, and then when it requires them to report in a timely manner to the complainant, and a requirement in writing, and furthermore - furthermore - I will invite you to look at the Justices of the Peace Review Council's own website and the language in there is very clear, a letter in writing.

So can this Council put information out on its website that is consistent with what I am saying when I'm representing this African-Canadian gentleman, Justice of he Peace, and then all of a sudden by whim, oh, it doesn't apply to you.  That's the problem.  That's the problem.


MR. GUISTE:  So, I place reliance on the Council's own public proclamation with respect to the interpretation and the jurisdiction issue.  I didn't write their website.  I didn't write their annual report.  I am just a little African Canadian lawyer that advocates for justice for people and fairness.  That's all I do.


MS. FOSTER:  I was going to bring up the same points that His Worship did, because it's very clear when one is on the Council that a complaint can come from anybody.  You have said several times talking here about fairness to His Worship and that I appreciate and understand.

But you have never kind of indicated the fairness to people on the other side.  If you deny a complaint being heard or if a complaint is being made by somebody or indicated to somebody else, and that is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.

MR. GUISTE:   Well, I don't think so.  I think the process - - and if you visit the website, you will see that is is very clear that it contemplates a complainant writing their own complaint in writing, it says so, and I suspect that the rationale for this is when you have other people bringing complaints on behalf of others, how do you ensure for fairness ?

So for example, Manager X, if Manager X decides that she doesn't like His Worship and she decides okay, well, what I'm gong to do is I'm going to round up five people and I'm going to record their - - whatever they have to say and send it to the Justices of the Peace Review Council, that calls into question the integrity of the process.

If an individual has a grievance against a judicial officer, believe me, they know how to and they will execute on their own.  They do not need another party who is part of the governmental apparatus to assist them.  And that's the problem here.  Who is bringing these ?  Presenting Counsel in another case.

MS. FOSTER:   Your're saying that Mr. Hunt is part of the governmental apparatus ?

MR. GUISTE:  He's part of the statutory process.  He was presenting another case.

MS. FOSTER:   And the complaints couldn't be part of that, that's clear.

MR. GUISTE:   Which complaints ?

MS. FOSTER:   The new complaints could not be part of it.

MR. GUISTE:   No, no, they couldn't.  But what he should have done - - what he should have done is say individuals, here is the Justices of the Peace Review Council, here is their address, here is their phone number, here is a contact, go over there, make your letter of complaint, send it to them and they'll deal with; if you can't write, you will let them know and they will accommodate you.

So Justice Cuthbertson, the issue of whether they can write or not, that's a non-issue.  that's a non-issue.  If they can't write, they will call the Justices of the Peace Review Council, they might be deaf, whatever, they will find - - they are obligated under the Human Rights Code, they can't discriminate against them, they have to accommodate them.  So that's a non-issue.

But the writing requirement is a very serious one, and all I'm saying is you can't suck and blow.  You can't say on your websites, this has to be in writing, signed letter.  You can't say in your annual report, and when this African Canadian Justice of the Peace comes, oh the law is changed for you.  It doesn't look good.  It's not right.

JUSTICE LIVINGSTONE:   Thank you, Mr. Guiste.  It is now five to 1:00.  I think what we'll do is take a break now and then return.  The panel had hoped to conclude the argument by 4:30 today.  I'm not sure if that will restrict you, Mr. Gourlay or Ms. Henein, to any great degree.  I am suggesting we return at - - 2:15 too little time for you ?  Two ?  Mr. Guiste, two o'clock ?

MR. GUISTE:   Yes, that's fine with me.

JUSTICE LIVINGSTONE:   All right.  Se we shall recess until 2:00 p.m.  Thank you very much.



MR. GUISTE:  Ms. Foster, are we ready ?


MR. GUISTE:   I wanted to address an important question that you asked about the rights of complainants and do they have any rights of fairness in this process.

JUSTICE LIVINGSTON:   You are not finished your argument, I gather, Mr. Guiste ?

MR. GUISTE:   Well, she raised the question and I don't think I properly addressed it and I just wanted an opportunity to address it.  If that's okay with everybody.


MR. GUISTE:   Yes.  Ms. Foster, you indicated that what about the fairness interests of the complainants in this process and I think that's an important question.  And you will recall that I passed this out, and what it demonstrattes is that calls were made to presenting counsel, "N", "E", "G", "D", "P" were the people.  It went and was submitted to the JPRC.  The complaints committee concluded "N" had no bais; "E" had no basis, "G" had no basis, "D" had no basis; the only one that they found had some basis was "P".

Thirty-three persons were interviewed.  In the context of interviewing those 33 persons, information was gleaned by the investigators soliciting, what is it that you know that's appropriate, et cetera, et cetera  - - inappropriate.  And 14 counts were laid.

So at the end of the day the question that arises from that is, are these complainants ?  They didn't make a letter of complaint to the Justices of thePeace Review Council, they were gleaned by virtue of an investigation that stemmed from this one issue with "P" where 33 people are investigated.

You will recall that I used a term "fishing epedition" and I used it in reference to that.  It will be my submission that it's inappropriate for the investigators to seek out information, oh, what do you know about Justice Massiah ?  Did he ever do this to you ?  Did he ever do that ?  And that's what happended here.  So that's what I'm saying.

So it's not as if they are complainants that went to court and had a legitimate grievance with his conduct and wrote in a complaint letter.  Those people I surely respect that they have an interest in the integrity of the process.

But these types of irregulariteis cast a dark shadow on the legitimacy of this process and I hope I have clarified.

MS. FOSTER:  I appreciate your answer in regard to that.  I appreciate your questions. I think I was asking a question in relation to your comments that if complaints were heard, that it was unfair or people would think it was unfair to His Worship;;  the same - - I would suggest to you that the same applies if complaints are disregarded for whatever reason, people would feel that they weren't being investigated properly.  So there would be a perception on the part of the public that there was an unfairnes to those people who perhaps had reason to complain.

MR. GUISTE:   We must be very careful because we must not assume they are complainants.  We must be mindful of how this came to be, and what I'm saying is if investigators go out and they say Mr. Gusite, what can you tell me Mr. Massiah has done that's inappropriate ?  Has he ever done this to you ?  Has he ever done that to you ?

MS. FOSTER:   I understand what you're saying.

MR. GUISTE:  Thats wrong.  So that was my point. The other point I wanted to raise was the website.  It says:

"How are complaints process ?"

No, actually, before that:

"Making a complaint."

I want it to be very clear, this is not my website.

"If you have a complaint of misconduct about a justice of the peace in Ontario, you must state your complaint in a signed letter.  The letter of complaint should include the date, time and place of the court hearing and as much detail as possible about why you feel there was misconduct..  If your complaint involves and incident outside the courtroom, you will need to provide as much information as you can about what you feel was misconduct on the part of the justice of the peace."

And then:

"How are complaints processed ?

When the Justices of the Peace Review Council receives your letter of complaint, the Review Council will write to you to let you know your letter has been received.  A three-member complaint committee of the Review Council will investigate your complaint and gather whatever information it deems necessary to complete its investigation; for example, copies of transcripts of a hearing.  Each complaint committee is make up of a judge, a justice of the peace and a lawyer member of the Review Council.  Every complaint is investigated by the Review Council."

Later on it indicates:

"Regardless of what decision is made about a complaint, the person who made the complaint and the justice of the peace about whom the complaint is made, will be advised in writing of the decision of the Review Council."

As I indicated earlier, those are two salient mandatory provisions, that the Complaints Committee has to acknowledge receipt of a complaint, to write the complainant; it didn't happen here.  And they also have to inform them where it's going, is it going to a hearing , and so on and so forth.

In this case, as is illustrated from here, the matters on the notice of hearing were not from letters of complaints from individuals or anybody.  They arrived as a result of the 33 people that were interviewed in the context of the investigation by investigators asking them, have you ever been the recipient of inappropriate conduct by Justice Massiah ?  Tell us about it.  And on and on and on.  That's wrong.  Thank you very much.

JUSTICE OF THE PEACE CUTHBERTSON:   Actually, a question sir.  The website that you just read from.


JUSTICE OF THE PEACE CUTHBERTSON:   It would be helpful, I think, if that was printed and tendered as an exhibit.

MR. GUISTE:   I will do that.  I thought I had a copy with me, but what I will do is I'll make a copy and submit it, please.  That's a good point.

JUSTICE OF THE PEACE CUTHBERTSON:   With the agreement, of course, of presenting counsel.

MS. HENEIN:   No difficulty with that.

Excerpt of transcript of 
April 28th, 2014 at p.
4 - 5:

JUSTICE LIVINGSTONE:   And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th, and I refer specifically to the transcript, so we are all clear, the transcript from April 9th, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste has stated in his submissions that:

"....this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council.  There are some serious flaws in terms of the procedural integrity of investigations and the like, and some good may come of this."

Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had independent opinion in respect of the administrative law which applies in this hearing.

NOTE:  Care has been taken to ensure the accuracy of these excerpts.  If there is any error kindly bring it to my attention and I undertake to correct same forthwith.  Interested persons should refer to the actual transcripts from the Justices of the Peace Review Council.

Some Evidence on Panel's Addendum Paragraph 5(6) on May 28, 2014 Submissions Regarding Discrimination

Paragraph 5(6) of Panel's Addendum:

"Mr. Guiste made comments to suggest that this Panel was discriminating against Mr. Massiah and his counsel during this process."

Excerpts of May 28th, 2015 transcript:
at pages 72 - 74 - starting at line 3
on p.72:


So after I make submissions on that objection, and that starts from - - and if I can just have a second - - it starts,  Members of the Panel from page 148, 49, 50, 51, 52 and page 153, and the Chair of the Panel says, "Thank you, Mr. Guiste for that speech."  Resonable observers looking at this and the totality of the proceedings would see the sarcasm and disrespect.  "Thank you for that speech."  To a man of African-Canadian descent, it strikes at the - - what is the word ?  A stereotype of the black man on a soap box giving speeches on the street corner.


With great respect, Mr. Guiste, that I take it is your position, but if you say the word speech at all reflects any racism by this panel, we are offended.


I am suggesting to you that the context in which that was said, "Thank you Mr. Guiste for that speech", I'm a man of African-Canadian descent and I'm very familiar with my history, and that when individuals of European descent in power want to exert their power, it is not uncommon to resort to that type of stereotyping.  Whether you did it or not, I don't know.  I'm saying to you that I, as lawyer representing an African-Canadian man who is the subject of judicial misconduct proceedings and I'm trying to discharge my duty, that that is a possible interpretation of that.  Whether you intended it Madame Justice, I don't know and I take your word that you didn't intend it that way, but that's not the test.  The test is, what is the reasonable person fully informed going to come to a conclusion on.

And that's not the only time you use it.  At page 158:
(April 9th, 2014)


At the outset of my response to your speech, Mr. Guiste, I said the Panel knows what it's here to do and that's to deal with the issue of jurisdiction.  Was there something unclear with that ?

MR. GUISTE  ---Ms. Henein stood up and now it's been clarified, so I think we're good now.


I'm happy you feel that way. Thank you"

MR. GUISTE:   Again, how is one to interpret "I'm happy you feel that way.  Thank you " ? In my respectfull submission, with the greatest of respect to each and every Panel Member, it's my submission that a fully informed member of the public looking at this would say there's a hint of sarcasm and disrespect in that: "I'm happy you feel that way. Thank you."

NOTE:  Every effort has been made to accurately reproduce the excerpts from the transcripts cited above.  If there is any error kindly advise me forthwith and I will undertake to correct same. Interested persons may consider obtaining and reviewing the original transcripts from the Justices of the Peace Review Council.

Monday, July 13, 2015



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,  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 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  centreor 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 employmentrelated   benefits,  punitive   damages   and  Wallace  damages,   totalling approximately $530,000.

Text Box: 2013 ONCA 502 (CanLII)[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   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:

Is   the   trial   judge’s   finding   of     racism  tainted   by palpable   and  overriding  error  or   otherwise  clearly

wrong,    unreasonable,    or    unsupported    by              the evidence?
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?

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  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. Nikolaisen2002  SCC  33,  [2002]  S.C.R.  235,  at  paras.  1-3  and  10-25;  H.L. v.
Canada  (Attorney  General)2005  SCC  25,  [2005]  S.C.R.  401,  at  paras.  4, 52-

55  and  64-65;  F.H.  v.  McDougall2008  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  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” factsor  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 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   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, 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 the 1997 Incident and his subsequent embellishment   of   the   circumstances    surrounding the 1997  Incident during his interview  with Laverdière; (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 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 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  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] 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   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  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.


“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.