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Proving Racism at the Court of Appeal

Posted On: January, 23 2015

In the decision General Motors of Canada Limited v. Johnson, 2013 ONCA 502, the Ontario Court of Appeal overturned a lower court’s decision which held that a worker was constructively dismissed based on allegations that the workplace was poisoned by racism.

Johnson, a Black man, claimed that the reason another employee, Markov, refused to attend a training session led by Johnson was because Markov was racist.  Markov claimed that he refused to train with Johnson because of his personal dislike of Johnson, resulting from insensitive comments Johnson allegedly made about the death of Markov’s brother.  General Motors [“GM”] investigated Johnson’s complaints on three occasions, each time concluding that Markov’s refusal to train with Johnson was not motivated by race.  Markov died before trial, so his credibility and version of events could not be tested.

Johnson eventually took a two-year approved medical leave, asserting disability arising from discriminatory treatment due to racism in his workplace.  GM offered Johnson two different positions once he was deemed medically fit to return to work. Johnson declined both, maintaining that he was disabled from working in any GM plant as he might run into certain employees, including Markov. GM concluded that, in the absence of any medical support for his continued absence, Johnson had resigned from the company.

Johnson sued for damages for constructive dismissal and a poisoned workplace based on racism. The trial judge agreed with Johnson, and awarded him various damages.

The Ontario Court of Appeal overturned the trial decision, having found that key findings by the trial judge were unreasonable and unsupported by the evidence. The appellate Court concluded that Johnson had failed to establish systemic or institutional racist behavior. It noted that, while Johnson “genuinely believed that he had been a victim of racism in his workplace” and that his “perception of events unfortunately led to stress and mental anguish”, the evidence did not support Johnson’s claim of a work environment poisoned by racism.

In reasons written by Justice Cronk, the Court of appeal emphasized the seriousness of an allegation of racism in the workplace and the far-reaching reputational and employment implications that a finding of a poisoned work environment has for the alleged perpetrators and the employer.

The reasons in General Motors are particularly interesting when compared with those in Peel Law Association v. Pieters,2013 ONCA 396 - another decision of the Court of Appeal addressing racism against Black men, released just one month before the decision in General Motors.  Peel Law was an appeal from a judicial review decision by the Divisional Court setting aside a finding of the Human Rights Tribunal that two Black lawyers and one Black articling student had been discriminated against when they were asked to show their identification at the lawyers’ lounge at the Brampton courthouse.

The two decisions arguably take different approaches to determining whether racism took place. In Peel Law, the Court adopts an effects-based analysis which requires that the respondent proffer affirmative evidence to rebut the inference of discrimination once an applicant has made out a prima facie case based on circumstantial evidence. However, in General Motors, the Court seems to require that the plaintiff present “affirmative evidence of racism” without any appreciation of its observation in Peel Law that “the outcome [of a racism case] depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence.”

 

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