BOARD OF INQUIRY {Human Rights Code) IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended; AND IN THE MATTER OF the complaint by Alicia Payne, dated May 8, 1995 and amended on November 16, 1996, alleging discrimination in employment on the basis ofrace, colour, ancestry and ethnic origin. BETWEEN: Ontario Human Rights Commission - and - Alicia Payne Complainant and Otsuka Pharmaceutical Company Limited, Minoru Okada, Canadian Ophthalmological Society, Intertask Group ofCompanies Inc. and Leeanne Akehurst Respondents DECISION Adjudicator Matthew D. Garfield : Date : October 15, 2002 Board File No.: BI-0201-98 Decision No. 02-019 : Board ofInquiry (Human Rights Code) 505 University Avenue 5th Floor, Toronto ON M5G 2P3 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 TTY: (416)314-2379/ 1-800-424-1168 APPEARANCES Ontario Human Rights Commission Prabhu Rajan, Counsel Alicia Payne, Complainant On her own behalf All ofthe Ontario Respondents Francois Baril, Counsel [No one appeared for Otsuka Pharmaceutical Company Limited and Minoru Okada] INTRODUCTION Alicia Payne claims that she was denied ajob for the simple and odious reason that she is Black. She says that Respondents Otsuka Pharmaceutical Company Limited ("Otsuka") and Minoru Okada, Otsuka's Manager, EC Business Development, denied her employment on June 25, 1994 at the 27th International Congress of Ophthalmologists ("ICO") without even considering her qualifications. Ms Payne also alleges that the host and organizers of the ICO, namely, the Canadian Ophthalmological Society ("COS"), Intertask Group of Companies Inc. ("Intertask") and Leeanne Akehurst (collectively referred to as the "Ontario Respondents"), condoned and furthered the discriminatory action ofOtsuka and Mr. Okada. HISTORY OF THE CASE Ms Payne filed her Complaint with the Ontario Human Rights Commission ("Commission") alleging discrimination in employment on the prohibited grounds of race, colour, ancestry and ethnic origin on May 8, 1995 against Intertask, Paul Akehurst, Leanne Akehurst, ICO and COS. Otsuka and Okada were not named in Ms Payne's Original Complaint. On November 19, 1996, the Complainant filed an Amended Complaint adding Otsuka, Okada and the Metro Toronto Convention Centre ("MTCC") as respondents. The Commission investigated the matter and decided to "refer the subject-matter of the complaint" to the Board of Inquiry ("Board") in 1998 but only as against two of the eight respondents: Otsuka and Mr. Okada. Pursuant to subsection 36(2) ofthe Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), the Commission declined to refer as against the six other respondents named in Ms Payne's Original and Amended Complaints - COS, ICO, MTCC Intertask, Paul Akehurst, Leanne Akehurst and ("Remainder Respondents"). The Commission subsequently denied Ms Payne's request for reconsideration pursuant to section 37. Ms Payne moved to add the six Remainder Respondents, Hubert Drouin (ChiefExecutive Officer/Executive Director of COS/ICO) and Manpower Services Canada Limited . ("Manpower"). Mr. Drouin and Manpower were neither named nor referred to in either the Original or Amended Complaints. The Board heard the motion in 1999 and ruled that it lacked the jurisdiction under the Code to add the Remainder Respondents as parties. The Board did not deal with the motion as it related to Mr. Drouin and Manpower as the Complainant had failed to provide them with notice ofher motion. Ms Payne filed an application forjudicial review ofthe Board's decision. The Divisional Court reversed the Board's decision (reported at [2000] O.J. No. 1896). The Court held that the Board did have the jurisdiction to consider adding the Remainder Respondents pursuant to subsections 39(2) and (3) and remitted the matter back to the Board to consider the question in that light. The Court also stated that it was unnecessary to deal with the constitutional issues raised by Ms Payne (which were not raised in her motion before the Board) and that the Board was within its power not to have heard the motion as against Mr. Drouin and Manpower as they had not been given notice. Notwithstanding her application for judicial review had been granted, Ms Payne sought leave to appeal the Divisional Court's decision to the Court of Appeal. The Court of Appeal denied leave in October 2000. She then sought leave to appeal to the Supreme Court ofCanada and that Court dismissed her request with costs in March 2001 Ms Payne then brought her motion before the Board to add the Remainder Respondents, Mr. Drouin and Manpower. The Board granted her motion in part in its decision dated October 24, 2001, reported at [2001] O.H.R.B.I.D. No. 23. Subsequently, Ms Payne brought a motion for production which was withdrawn during the course of argument ofthe motion on February 20, 2002. The matter proceeded to a hearing on the merits, which ended on May 25, 2002. It is unfortunate to note the time line: a decision is rendered over eight years after the incident occurred. While the matter occurred in June 1994, Ms Payne did not file her Original Complaint until over ten months later and the Commission did not refer the case to the Board until November 1998 - over four years later. Indeed, the Commission did not even take statements ofwitnesses until May 1998. Further, due to the court proceedings and the motions before the Board brought by the Complainant, another four years passed until the matter was completed. The time period was noticeable during the testimony ofsome ofthe witnesses, who were having difficulty trying to remember what happened eight years earlier. While the Board was able to conduct a hearing and make a determination, some of the evidence was not as reliable as it could have been ifgiven sometime closer to the actual events in question. The case was also unique in another respect. In McKenzie Forest Products Inc. v. Ontario (Human Rights Commission)("Tilberg")(2000), 48 O.R. (3d) 150, the Court of Appeal held that the complainant, Mr. Tilberg, being a separate party before the Board, could proceed to a hearing before the Board, even if the Commission and the respondent settled between them, and the Commission withdrew from participating (not withdrawal as a party which it cannot do) in the hearing. The settlement did not oust the jurisdiction of the Board. Fortunately, the Commission infrequently decides to Tilberg a complainant. Tilberg is back before the Board and has commenced the hearing on the merits without the Commission's presence or participation. Similarly, in Forde v. Artisan Screen Print Ltd., [2001] O.H.R.B.I.D. No. 17, the Commission, upon being granted permission from the Board, withdrew from participating in the hearing on the merits, leaving an unrepresented complainant to proceed on his own. The complaint subsequently was dismissed by the Board (reported at [2002] O.H.R.B.I.D. No. 8.). In Payne, the Commission did a hdXf-Tilberg: it only executed its "carriage of the complaint" vis-a-vis the parties it had originally referred against - namely, Otsuka and Mr. Okada. It did not participate against the Ontario Respondents - even though the Board had ordered them to be added as parties under section 39. Ms Payne did not bring a motion to compel the Commission to take "carriage of the complaint" against all the Respondents before the Board. Commission counsel did make submissions as a sort of amicus tribunae, at the Board's request, concerning the legal issues ofthe duty not to condone or further discrimination. But the Commission did not take any position with regards to its applicability to the Ontario Respondents in the instant case. 3 ISSUES The Board deals with the following main issues: (1) Was Ms Payne discriminated against in employment on the basis ofher colour by Otsuka and Mr. Okada, in violation ofsubsection 5(1) ofthe Code"? (2) Is there a human rights duty not to condone or further a discriminatory practice? What was Ms Payne's legal relationship to the Ontario Respondents? Did they have a duty to Ms Payne? If so, what requirements does that duty impose? Did they meet the duty? Did any of them condone or further the discriminatory act ofMr. Okada? (3) What is the appropriate remedy? DECISION All of the Respondents violated Ms Payne's right to be free from discrimination with respect to employment because of her race, colour, ancestry and ethnic origin, in violation of subsection 5(1), which is contrary to section 9 ofthe Code. LIST OF WITNESSES The Board heard evidence from the following witnesses: Alicia Payne - the Complainant; (1) (2) Stephen Jones - owner of The People Bank ("People Bank"), one of the two employment agencies involved and Ms Payne's "employer"; (3) Sandra Sears - employee ofPeople Bank; (4) Shibani Cherla - Vice-President (Finance and Administration) ofRespondent Intertask; (5) Leeanne Akehurst - Human Resources Coordinator for ICO and Intertask; (6) Paul Akehurst - owner of Intertask and Director of Operations for ICO and father of Leeanne Akehurst; (7) Hubert Drouin - Executive Director ofCOS/ICO; and (8) Terry Downey - Human Rights [investigations] Officer ofthe Commission. INFERENCE REGARDING NON-PARTICIPATON BY OTSUKA AND OKADA The Commission and Ms Payne asked me to draw an adverse inference from Otsuka's and Okada's non-participation in the hearing on the merits. The Board declines to draw such an inference, although it is open to it to do so. Otsuka and Okada retained counsel. Counsel represented them from the beginning ofthe matter before the Board to the present. Indeed, at the last Pre-Hearing Conference call before the hearing on the merits, Mr. Zanin, counsel for Otsuka and Okada, indicated that his clients instructed him not to attend at the hearing. The Board offered to hear Mr. Okada's evidence by telephone from Japan but the offer was not accepted. Otsuka and Okada never filed pleadings, although directed to do so. Mr. Zanin had even requested an extension for filing pleadings. The Board does not have a provision for default orders. The Board notes that Otsuka and Mr. Okada have attorned to the jurisdiction of the Board. Their counsel never argued otherwise. Counsel for the Ontario Respondents urged me not to draw an adverse inference from Otsuka's and Okada's non-participation at the hearing on the merits. He indicated that their decision could be for many legitimate reasons: cost; lack of doing business in Canada. Their lack of filing pleadings and attending or calling evidence does notper se mean an admission of liability. While it may not be a prudent decision for a respondent, as a court or tribunal may draw such an adverse inference, the Board will not do so here. There are a myriad of reasons why they may have decided not to file pleadings and call evidence. The Board has enough evidence on which to make findings without having to draw an adverse inference against Otsuka and Mr. Okada for their non-participation at the hearing on the merits. FINDINGS OF FACT This is also an interesting case as what wasn't said is almost as important as what was said. Indeed, Mr. Okada never explicitly said he was not hiring Ms Payne because she is Black. However, one needs to look beyond what was expressly stated. Given the subtle nature ofmany discrimination cases (including this one), even more careful analysis must be done of all the evidence - individual pieces and the aggregate - to determine ifa complainant's rights have been violated. In this section, the Board makes its findings offact. 27th International Congress of Ophthalmology (ICO) COS, a non-profit association for Canadian ophthalmologists, was given the privilege of hosting the 27th ICO, a meeting of over 8,000 doctors, scientists, service providers and product manufacturers. The conference was to take place during the week of June 25, 1994 at the MTCC. The theme was For All the World To See. It was about blindness in the Third World. COS was not able to organize such a large conference on its own. It contracted with Intertask to run it. Mr. Paul Akehurst is President and owner of Intertask, which is a holding company of other related companies, including Intertask Limited, and Conference Aide Convention Services Limited ("Conference Aide"). Counsel for Intertask stipulated that his clients would assume liability for any contravention ofthe Code by any ofits subsidiary companies. Accordingly, the corporate structure of the related companies is not of importance in this case. Intertask in essence became the ICO Secretariat. Mr. Akehurst became the Director of Operations and his daughter, Respondent Leeanne Akehurst, its Human Resources Coordinator. Intertask subcontracted with two employment agencies: People Bank and Manpower. These agencies assisted in staffing the scientific congress part ofthe ICO. They were not responsible for staffing ofthe trade exhibition part, and did not do so, save and except for two instances: one being the Otsuka booth. Leeanne Akehurst reported to someone in Intertask who reported to Mr. Akehurst, although she dealt directly with her father in the Payne matter. Mr. Akehurst reported to Hubert Drouin, Executive Director of COS, who reported to its Board ofDirectors. Mr. Akehurst also had access to the Board of Directors, if required. People Bank and Manpower dealt with Ms Akehurst. 6 Request from Otsuka for a Booth Receptionist On March 22, 1994, the ICO Secretariat received a written request from one of the thousands of exhibitors, Otsuka in Japan (exhibit 1-11). Its senior representative attending the ICO, Mr. Okada, wanted the ICO to help him find a receptionist for the Otsuka booth. Mr. Okada wrote: During the term ofthe exhibition, we wish to appoint a receptionist in our booth, implemented in English and French. We wish her to sit at a reception desk to provide information on our stand and other services to those who visit our stand. The appointment is expected as follows: Term: Basiccaly [sic] the Exhibition Period June 26 through June 29 0800 hrs - 1700 hrs June 30 0800 hrs - 1500 hrs Principal work: Booth Receptionist The receptionist shall adequately make an image or impression of our booth. Receptionist desk will be provided. You are requested to answer the questions about Otsuka and our products, with referring to the description of our company profile and product information. Prior to your start with the work, oral instruction will be also given. You are also requested to do the following service: No use ofspecial terms nor ofcomputer softwares shall be required. It would be appreciated if you could advise us of availability and rate of a personnel as such through the ICO Secretariat. The request was given to Leeanne Akehurst. Although it wasn't something the ICO Secretariat normally did, Ms Akehurst testified that she decided to assist, out of courtesy. She responded on Conference Aide letterhead on March 23, 1994 as the ICO Convention/Human Resources coordinator (exhibit 1-12): Mr. Ross forwarded to me your request for a bilingual (English and French) booth receptionist. As the official convention services supplier to the XXVIIth International Congress of Ophthalmology, we would be very happy to provide this service to you for the hours outlined in your fax dated March 22, 1994. The cost for this service will be S15.85US per hour. Based upon your fax, the total cost for this service is $681.55US. This amount is due and payable in full one month prior to the exhibition. Cheques should be made payable to Conference/Aide Convention Services in the form of a bank draft in US dollars drawn on a US bank. 7 We require a signed copy ofthis letter as confirmation ofthese services. Failure to provide full payment one month prior to the exhibition will result in automatic cancellation ofthese services. Mr. Okada responded the next day and sent the requested cheque for payment for services payable to Conference Aide the following week. Ms Akehurst testified that the letter and cheque from Mr. Okada were given to the accounting department. The cheque was deposited in Conference Aide's bank account. She said, "Conference Aide would use it to pay for the person placed at the booth and for any expenses we would have incurred." Conference Aide/Intertask did not make a profit on this transaction. In his letter stamped March 30, 1994 (exhibit 1-13), Mr. Okada wrote: Since the receptionist willprovide thefirst impression ofour booth, image ofthe personnel naturally holds importance. We would like to meet with the person prior to the term and leave our decision on her till then. We would appreciate a young andattractiveperson who ispositive and cheerful in character. [Emphasis added.] On April 15, 1994, Mr. Okada sent a fax to Ms Akehurst indicating that he would be in Toronto the following week. He wrote, "Since I wish to see the person(s) who may be our booth receptionist and decide on to whom I should ask to join us working in the booth. It would be appreciated if you could arrange to see the person(s) either in the afternoon of 23rd or in the morning of24th April..." Ms Akehurst took the written request from Mr. Okada and forwarded it to Sandra Sears ofPeople Bank. Sandra Sears went through the computer bank ofPeople Bank to find qualified candidates for the position. She selected Michelle Gay. Ms Akehurst advised Mr. Okada of this. Mr. Okada sent a further fax to Ms Akehurst on April 20, 1994 stating, "Thank you very much for your fax ofApril 18. I will be pleased to see Ms. Michelle Gay on Saturday, April 23 at 15h00 at the Toronto Hilton." Sandra Sears testified that she introduced Ms Gay to Mr. Okada and he agreed to hire her as Otsuka's booth receptionist. 8