Derogatory Comments (Nigger)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-16
CLNP Page ID:	2042
Page Categories:	[Category:Human Rights]
Citation:	Derogatory Comments (Nigger), CLNP 2042, <https://rvt.link/2m>, retrieved on 2024-05-16
Editor:	P08916
Last Updated:	2023/01/10

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.