Derogatory Comments (Nigger)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-27
CLNP Page ID:	2042
Page Categories:	[Category:Human Rights]
Citation:	Derogatory Comments (Nigger), CLNP 2042, <https://rvt.link/2m>, retrieved on 2024-11-27
Editor:	Sharvey
Last Updated:	2023/01/10

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George v. 1735475 Ontario Limited, 2017 HRTO 761 (CanLII)

[42] I also found the drywall subcontractor to be a credible witness. He was a reluctant witness, and had to be summonsed to testify before me. His evidence about the incident where Mr. Seto used the term “nigger” towards the applicant was clear and was placed in a specific context. My observation of this witness while he was in the stand supports that he was genuinely and appropriately offended by this racial comment, and the emotions expressed by this witness at the hearing were consistent with this reaction. I appreciate that this witness’ evidence regarding the incident where he recalls Mr. Seto calling the applicant a “nigger” differs from the context provided by the applicant in relation to the first incident raised in the Application about being called a “nigger.” In this regard, I note that the applicant testified that the first incident raised in the Application was not the first or only time he was called a “nigger” by Mr. Seto. I also note that it is clear from the differing contexts provided by the applicant and the drywall subcontractor that there obviously is no issue of the two of them colluding in their evidence. In the end, in my view, I find that the evidence given by the drywall subcontractor supports and corroborates the applicant’s allegation that Mr. Seto used the term “nigger” to refer to the applicant. While I appreciate Mr. Seto’s position that the drywall subcontractor is simply a disgruntled ex-employee, in my view that does not provide a sufficient basis upon which to discount this witness’ evidence.

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[67] In particular, I find that the racial epithets used by Mr. Seto toward the applicant were not only objectively serious, but were egregious. With regard to Mr. Seto’s use of the term “nigger” and “worthless nigger” and “niggers can’t do nothing right” towards the applicant, I adopt and endorse the following comments about the use of this term as made by this Tribunal in Knights v. Debt Collect Inc., 2017 HRTO 211 at para. 21:

The N-word carries with it the baggage of centuries of slavery, racism, abuse and disrespect. The term is more than simply hurtful towards African-Canadians: it demeans, humiliates and asserts a threatening sense of racial superiority. It is without a doubt discriminatory language only made more egregious by the addition of the qualifiers “stupid” and “f***ing” to amplify the implicit threat carried by the N-word itself.

[68] This Tribunal also has found that the term “you people”, when applied to a racialized group, as I have found in the instant case, similarly represents racially discriminatory language: see Bayliss-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28 at para. 139. I find such language especially to be racially discriminatory in the instant case when combined with references to Black persons as being “stupid” or not being able to do anything right.

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[88] In the end, in my view, the amount of $20,000 as an award of compensation for injury to dignity, feelings and self-respect is appropriate in the circumstances. I also grant the applicant’s request for pre-judgment and post-judgment interest on these amounts, calculated in accordance with the rates established under the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43.

Bento v. Manito’s Rotisserie & Sandwich, 2018 HRTO 203 (CanLII)

[61] The applicant testified that one day, one of the servers, a Black woman, made a mistake and got into an argument with Joseph Graca. When the server left, the applicant suggested that Joseph Graca apologize to her. The applicant maintains that Joseph Graca replied “I will never say sorry to a Black woman”. The applicant could not remember the name of the server but recalled that it happened at the Market location. The applicant contended that Joseph Graca is a racist person; that he would make comments such as “people like this should go back to their countries”.

[62] When prompted by her counsel, the applicant stated that Joseph Graca used the term “nigger” when the server left; he said “I won’t apologize to that nigger”. The applicant explained the inconsistency in her testimony by saying that she was nervous and did not quote Joseph Graca appropriately the first time around.

[63] The applicant’s witness statement differs somewhat from her testimony: “I often heard Joe make racist comments, particularly directed at Black people. He would often refer to them as ‘niggers’. In approximately January 2016, Joe yelled at a waitress, who is Black, in front of customers and she left the restaurant crying. I told him he needed to apologize for treating her that way and he said, ‘I’m a Portuguese man and I will never say sorry to a Black woman’.”

[64] Joseph Graca categorically denied making such statements.

[65] Although the applicant could not provide further examples of alleged racist attitude and she could not remember the name of the server, I find that, on a balance of probabilities, it is more likely than not that Joseph Graca made racist comments in the context of the incident with a server. The applicant recalled with sufficient detail the incident both in testimony and in her witness statement.

[66] I find that, at least on one occasion, the applicant heard Joseph Graca make inappropriate racist comments or comments based on colour, ancestry or ethnic origin.

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[126] In Sanford v. Koop, 2005 HRTO 53, the Tribunal outlined the following factors to assess the appropriate amount of the award for injury to dignity, feelings, and self-respect:

a. Humiliation experienced by the applicant;

b. Hurt feelings experienced by the applicant;

c. An applicant’s loss of dignity;

d. An applicant’s loss of self-esteem;

e. An applicant’s loss of confidence;

f. The experience of victimization;

g. The vulnerability of the applicant;

h. The seriousness, frequency, and duration of the offensive treatment.

[127] The following principles are also relevant:

a. An award for monetary compensation must not be set too low as to trivialize the social importance of the Code by creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane (2008) 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153.

b. The low end of the monetary spectrum involves circumstances of a few incidents, less serious incidents, and/or incidents that did not include physical touching. Conversely, the high end of the monetary spectrum includes multiple incidences, incidences of a serious nature and physical assault and/or reprisal or loss of employment. See Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 at para. 55.

[128] The Tribunal has consistently held that monetary awards under the Code are compensatory in nature. The intention is to put the applicant into the position he or she would have been in but for the discriminatory act. See Insang v. 2249191 o/a Innovative Content Solutions Inc., 2017 HRTO 208 at para. 49.

[129] The applicant seeks $25,000 in damages for restitution for injury to dignity, feelings and self-respect. For the reasons outlined below, I find that the injury to the applicant’s dignity, feelings and self-respect from the personal respondents’ discriminatory treatment of her is such that I would award $20,000.00 in damages for the conduct.

Phillip v. Andrews, 2018 HRTO 28 (CanLII)

[11] On November 11, 2014, she was in the lunchroom with about ten other employees. Of these, one other worker, (“JD”) is also a Black person. There was a computer on a shelf that was on. JD said “can someone turn that computer off?”. The applicant’s evidence is that the personal respondent said to JD “What was your last nigger job?” The applicant confronted the personal respondent about his comment. The applicant’s evidence is that he admitted making the comment and said “so what?” Another co-worker then intervened and explained to the applicant that she did not think the comment was significant. Meanwhile, JD and the personal respondent had a short continuing conversation about the incident.

[12] The applicant and JD left the lunchroom. The applicant went to the office of the supervisor and JD was already there. The supervisor told them there would be an investigation.

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[48] The applicant is seeking monetary compensation in the amount of $1,000.

[49] I was referred to the following decisions as providing support for the requested award: Szyluk v. United Food and Commercial Workers Canada, 2009 HRTO 902; Brooks v. Total Credit Recovery Limited, 2012 HRTO 1232. I find that these cases are not identical but provide some guidance. They both involved racist comments by co-workers. Liability as between the personal respondent and the corporate respondent was not delineated in the decisions but the amounts awarded for injury to dignity, feelings, and self-respect in both cases was higher than the amount sought here from the personal respondent.

[50] I find that that $1,000 is an appropriate amount of compensation for injury to dignity, feelings, and self-respect, based on the personal respondent’s personal liability and based on the applicant’s evidence about the impact on the applicant.

Khan v. 820302 Ontario, 2010 HRTO 265 (CanLII)

[38] Mr. Hughes testified that the personal respondent used to regularly use terms such as “Paki”, “Indian” and “Nigger”. He suggested that the personal respondent used the word “Nigger” almost every day, and recalled the personal respondent using the word “Nigger” with a Black employee who, according to Mr. Hughes, “went ballistic” in response. Mr. Hughes testified that he was aware of the personal respondent specifically using the word “Paki” with the applicant approximately 15 times but he did not recall hearing the personal respondent make any reference to the word “Nigger” specifically in relation to the applicant or her children. He testified that the personal respondent would refer to the drivers of Indian origin as “Indians” and would make statements such as “Why did we hire them? Are there not any good White people we could hire?” He testified that the personal respondent would refer to employees of Indian origin as stupid or dumb.

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[77] In finding that the personal respondent did resort to racial comments, I am prepared to find that he did so in the manner alleged by the applicant. I accept that the respondent made repeated use of the term “Paki” when directly addressing the applicant, as well as explicitly making references to the applicant having “Nigger babies” and having slept with a “Nigger”. This finding is based on the cumulative evidence of the applicant, Ms. Al-Jazrawi, and Mr. Hughes. There was evidence from all three of these witnesses that the personal respondent made demeaning racial comments about others and referred to the applicant as “Paki”. There was testimony by both the applicant and Mr. Hughes that the personal respondent repeatedly used the term “Nigger”.

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[100] Monetary compensation is awarded as a way to make victims of discrimination whole. The exercise of quantifying the impact of discriminatory treatment on a person is not a precise science. It is important not to set the quantum of damages too low even in less egregious cases, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”: Sanford v. Koop, 2005 HRTO 53 (CanLII), at para. 34.

[101] After careful consideration of all the circumstances the Tribunal awards $25,000 to the applicant to compensate for the injury to her dignity, feelings and self-respect arising out of the infringement of the Code. I hold both respondents jointly and severally liable for this award.

E.T. v. Dress Code Express Inc., 2017 HRTO 595 (CanLII)

[25] The applicant, who self-identifies as Persian, testified that Bunty Islam told her repeatedly that he did not like Black people. She testified that he pointed out Black customers as persons to monitor closely for shoplifting.

[26] The applicant testified that Bunty Islam repeatedly referred to Blacks as “niggers” and complained whenever there was hip hop music on in the store, about the “nigger music” which he wanted turned off. The applicant testified that on more than one occasion Bunty Islam asked her about her “nigger boyfriend”. He told her she should avoid Black men who would make her pregnant with many children and then leave her. He also told her on one occasion that she should avoid Black men because they would make her pregnant and mess up “her insides.”

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[55] I accept the applicant’s evidence that she was employed by Dress Code Express Inc. I also accept her evidence that the store in which she worked, Dress Code Express Inc., was managed by Bunty Islam – he directed the applicant in her work, he opened and closed the store, was responsible for the daily operation of the store and counted the receipts at closing. He was the only management of this enterprise that the applicant ever encountered. I also accept her evidence that he represented to her that he was an owner of the business. As such, Dress Code Express Inc. is responsible for Bunty Islam’s discriminatory conduct towards the applicant. To the extent that some of his conduct is more properly characterized as harassment, Dress Code Express Inc. is also responsible because it had been made aware of the poisoned work environment created by Bunty Islam’s conduct and no steps were taken to address it.

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[58] The Tribunal makes the following Orders:

a. The Application as against Saef Islam and 1674977 Ontario Inc. is dismissed.

b. The respondents Dress Code Express Inc. and Bunty Islam will pay to the applicant the sum of $15,000 in compensation for injury to dignity, feelings and self-respect inclusive of pre-judgment interest arising from the violations of her rights under the Code.

Lombardi v. Walton Enterprises, 2012 HRTO 1675 (CanLII)

[52] In the course of his testimony, Mr. Ajaran testified that racist, as well as homophobic, slurs were used in the workplace. In particular, he recalled that the applicant had used racial slurs, including referring to him as a “camel jockey”, and using the words “sand nigger” and “brown bastard”. He said that he had not complained about this because he “didn't feel I needed to-- I tend to move on with my day-- I've heard them before-- I don't let words get me”. Mr. Ajaran stated that he did not complain about the insults; that he would put up with it when it wasn't a constant occurrence. I asked Mr. Ajaran whether he considered these terms acceptable. He said he did not.

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[182] Applying the above-noted principles and having regard to the evidence, I find that $20,000.00 is an appropriate amount to compensate the applicant for the injury to dignity, feelings and self-respect occasioned by both the termination of his employment and the harassment he suffered in the workplace.

Bura v. King, 2004 HRTO 9 (CanLII)

[40] The tenants’ accommodation consisted of six rooms that typically housed three tenants on the third floor, and two on the second. The tenants would all share the bathroom and kitchen facilities situate on the second floor. There was also a spare room on the second floor that would be used for guests or very short-term rentals. It was mostly empty. Until April 2000, only the tenants used the kitchen and bathroom on the second floor and none of the Bura family stayed in any of the rooms. At no time did any member of the Bura family shower or brush their teeth in the tenants’ bathroom nor was there any evidence that any member of the Bura family cooked and ate their meals, or slept in the tenants’ accommodation.

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[44] The Complainant explained that from the time he took over, Matthew Bura, would always be in an intoxicated state and would consistently direct unprovoked and disgusting racial slurs at him. He would come upstairs at least twice a week swearing and screaming, accusing the Complainant of making noise and calling him, amongst other things, a “dirty fucking little nigger,” “black bastard”, or “boy” and accusing him of being nothing but “a little fucking black alcoholic.”

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[68] The Complainant testified that over a ten-year period he was humiliated and degraded by the actions of Matthew Bura. Vera Bura calling him “nigger” and accusing him of being a pedophile has furthered the humiliation and degradation. This has made him sick, scared, tired, hurt, and depressed. He testified that he would walk the streets, unable to sleep, because his mind was racing. The allegation that he was a pedophile scared him. Although he knew it wasn’t true, because Vera Bura had said that everyone knew he was nothing but a “dirty little nigger pedophile”, he wondered what people were thinking and felt that the neighbours would think badly of him. He worried that he may be the target of vigilante justice.

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[80] For the purposes of finding liability I have no hesitation in finding that Matthew Bura and Vera Bura acted as landlord or an agent of the landlord and that the conduct that the Complainant alleges occurred, did occur. I am satisfied that this falls within the definition of harassment found at subsection 2(1) of the Code, and as it also created a “poisoned” environment, falls within the definition of discrimination found at subsection 2(2) of the Code.

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[82] There was no excuse for the way that Matthew Bura and Vera Bura treated the Complainant. Without commenting on the merit of such an argument, in this case there was no evidence or legal authority cited to support an allegation that intoxication could or should excuse the conduct of Matthew Bura. Even if Vera Bura was somehow provoked, Persaud provides that racial epithets should form no part of an argument and, as evidenced by the tape recording, the Complainant clearly stated that her conduct was unwelcome. In my opinion, the difference between this case and Fuller is one of degree only.

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[87] Upon finding that the Respondents violated Robert King’s rights under subsections 2(1) and 2(2) of the Code, contrary to section 9 of the Code, the Tribunal orders the following:

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4. The Respondents shall pay to the Complainant general damages in the amount of $10,000.00 and damages for mental anguish in the sum of $10,000.00, along with prejudgment interest on these amounts from April 10, 2001 to the date of this decision at the rate of 5.8 % per annum.