Isolated Comments

Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6 (CanLII)

[1125] In Dhanjal v. Air Canada, [1996] C.H.R.D. No. 4 the Canadian Human Rights Tribunal concluded that the “conduct must include a racial dimension and have the effect of humiliating or offending the person who is the victim” (at para. 209).

[1126] The Tribunal, as noted above, held that the context was very important (para. 212 and 214-215):

Thus, when it takes the form of jokes in bad taste, they must be persistent and frequent to constitute harassment. An isolated racial slur, even one that is very harsh, will not by itself constitute harassment within the meaning of the Act: Pitawanakwat v. Canada (1994), 1992 CanLII 7190 (CHRT), 19 CHRR D/110, par. 40‑41 (overturned in part on other grounds by the Federal Court in (1994) F.T.R. 11).

...

As it was rightly pointed out in C.D.P. v. Commission Scolaire Deux-Montagnes (1993), 1993 CanLII 1202 (QC TDP), 19 CHRR D/1, "[Translation] the durableness that oppressive conduct must also entail in order to constitute harassment may therefore be established in some cases by the repetition of certain acts, in some cases by their seriousness, insofar as their effects then have some continuity". Thus, if a racial slur were accompanied by an assault, for example, this incident alone could constitute harassment, in view of the profound and lasting prejudicial effects that such extreme conduct would be likely to have on the victim. See also, in this connection, in the context of sexual harassment: Kotyk v. C.E.I.C. (1983), 1983 CanLII 4708 (CHRT), 4 CHRR D/1416, par. 12251.

In short, the more serious the conduct the less need there is for it to be repeated, and, conversely, the less serious it is, the greater the need to demonstrate its persistence in order to create a hostile work environment and constitute racial harassment. See, in this connection, A. Aggarwal, Sexual Harassment in the Workplace, 2nd ed., Toronto, Butterworths, 1992, p. 84; M. Drapeau, Le harcèlement sexuel au travail, Éd. Yvon Blais, 1991, p. 102.

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[1129] In the workplace context, a pattern of behaviour is generally required, and usually a single episode or one in the heat of the moment will not necessarily constitute discrimination.

Latronico v. York Region District School Board, 2011 HRTO 2012 (CanLII)

[28] While the Tribunal has accepted a single comment as a Code breach, it also has considered context and incorporated the analysis of a British Columbia Human Rights Tribunal decision Pardo v. School District No. 43, 2003 BCHRT 71, in which that Tribunal stated that “all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the [British Columbia Human Rights] Code.” See B.C. v. London Police Services Board, 2011 HRTO 1644.

[29] I find that the repeating back of an insult several times in this circumstance is similar to a single occurrence in that by both men’s accounts the exchange occurred rapidly and within a few minutes. However, given my finding that the applicant initiated the insulting words in a heated altercation, I find that Mr. Paz repeating the words back in frustration was within the bounds of a reasonable response. See Berisa v. Toronto (City), 2011 HRTO 912 (comment fell within the bounds of a reasonable response). Therefore, in the context of the altercation and under the circumstances, even if Mr. Paz repeated the word “wop” back to the applicant several times I do not find that those utterances would rise to the level of discrimination under the Code.

Pardo v. School District No. 43, 2003 BCHRT 71 (CanLII)

[11] The Respondents have cited three human rights decisions which concluded that one isolated comment does not amount to a contravention of the relevant legislation: Quebec v. Bombardier (1983), 1983 CanLII 4750 (QC CQ), 4 C.H.R.R. D/1447 (the supervisor subsequently apologized for his remark); Nimako v. Canadian National Hotels (1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985 (one racial slur does not amount to harassment); and Parsonage v. Canadian Tire Corp. (1991), 1995 CanLII 18170 (ON HRT), 28 C.H.R.R. D/42 (a single insulting joke with racial overtones does not amount to a violation of the legislation).

[12] In my view, all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.