Tag Archives: racism

Saskatchewan Gaming Corporation – Casino Regina v Public Service Alliance Of Canada, 2021 CanLII 5520 (SK LA)

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Grievance dismissed. Previous incidents that included insensitive and racist remarks to an Indigenous female colleague, demonstrated that the Grievor has a hard time controlling his emotions and comments. There is little indication that his behaviour will change if given another chance. Casino Regina is in a customer focused business, and has a diverse workforce and diverse clientele. The Grievor’s dismissal was for just cause.

Indigenous Law Centre – CaseWatch Blog

The Grievor, a dealer at Casino Regina, was terminated in 2018 following the investigation of two harassment complaints lodged against him by co-workers. The first complaint alleged that he had made insensitive and racist remarks to an Indigenous female colleague and the second complaint, several weeks later, alleged rude and possibly racist behaviour towards a server of Asian origin. Combined with previous discipline and what senior managers viewed as a lack of remorse or acceptance of responsibility, the Grievor’s employment was terminated.

The Grievor was hired in 2008. The Casino has a very diverse work force that includes a significant Indigenous component and a diverse customer base. As part of ongoing training employees do take programs on “Diversity & Inclusion” and “Respectful Workplace”, which the Grievor last took in 2017 and 2018.

At the time of his dismissal, the Grievor had two disciplines plus a letter of expectations on his record. The letter of expectations, arose from a verbal altercation on the gaming floor with another staff member in which derogatory comments and expletives were exchanged within earshot of customers. The Grievor also received a one day suspension for consuming multiple alcoholic beverages during a staff charity poker tournament and then preparing to report to work. Another written reprimand was given for a comment made to customers at his table during a routine hand-off of the table to another dealer. The other dealer was not a native English speaker and the Grievor told the customers “hopefully you can understand him”. The remark was overheard by the incoming dealer who was upset by it.

The decision to terminate was made by the Employer from reviewing the initial complaints and the statements of staff and customers who had witnessed the incident that involved the Asian server. It was noted that the customer statements were unsolicited and highly unusual. The Employer argued that the harassment complaints, combined with the Grievor’s previous disciplinary record justified termination. In addition, the Grievor had been issued a letter of expectations for a verbal altercation with another employee in front of customers. The Employer argued that a common theme in all three previous cases was the reluctance of the Grievor to accept responsibility for his behaviour. He had been warned several times that a failure to change could result in more severe consequences.

Casino Regina is in a customer focused business and has a diverse workforce and diverse clientele. The evidence gives little confidence that the Grievor’s misconduct would not be repeated if he was reinstated. Accordingly, the grievance is dismissed.

Kim v Vancouver Native Health Society and another, 2020 BCHRT 153

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The British Columbia Human Rights Tribunal dismissed a complaint under s. 27 (1)(c) of the Human Rights Code on the basis that it had no reasonable prospect for success. The Complainant unsuccessfully argued discrimination in employment based on race and place of origin by the Vancouver Native Health Society.

Indigenous Law Centre
Indigenous CaseWatch Blog

Ms. Ji Kim is an immigrant from Korea and a former employee of the Vancouver Native Health Society [“Respondent”]. She alleged that she was not afforded the same funding opportunities as other team members, experienced bullying, false accusations, and different performance standards applied to Aboriginal employees. She also alleged that her termination was due to her not being an Aboriginal person and that this amounts to discrimination in employment based on race and place of origin contrary to section 13 of the Human Rights Code [“Code”]. The Respondent denies the allegations and seek to dismiss the complaint on the basis that it has no reasonable prospect for success as per section 27 of the Code.

The Tribunal must consider the whole of the evidence to determine whether there is no reasonable prospect that the complaint will succeed (Workers’ Compensation Appeal Tribunal v Hill, 2011 BCCA 49). When assessing the evidence, the Tribunal looks for internal and external consistency and considers it in the context of the overall relationship between the parties and the circumstances in which the alleged discrimination occurred (Ritchie v Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110).

Race must be proven as a factor in the adverse impact that Kim experienced. Direct evidence of race-based discrimination is rarely available and as a result, it is necessary to draw inferences from the evidence to prove such (Mezghrani v Canada Youth Orange Network (No. 2), 2006 BCHRT 60). In regard to the allegation of discrimination pertaining to the funding opportunities, neither the complaint nor the response to the application explains how her race was a factor in the decision not to approve the funding requests for her Indigenous clients requiring support. There were other workers seeking funding for their clients that were not Aboriginal, but Kim did not explain nor provide any evidence from which a reasonable inference could be drawn as to what would single her out.

Kim does not deny that many issues arose during the course of her employment nor that she had several conflicts with her co-workers. There has been no reference to Indigenous identity in the communications made to her and the allegations regarding “inappropriate racial comments” are found to have been too vague. They allege that she was a poor performer, had poor interpersonal skills and despite months of coaching and guidance, she did not demonstrate signs of improvement. The Respondent assured that the decision would have been the same regardless of whether she was Aboriginal or not.

The Tribunal decided that the complaint had no reasonable prospect of success at a hearing. The application was granted, and the complaint dismissed in its entirety under section 27 (1)(c) of the Code.

CAS v KC and Constance Lake First Nation, 2020 ONSC 5513

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The Court issued a temporary order for twin children to be returned to the care of their mother on terms of supervision. Among other things, the Court interpreted the interplay between the federal Bill C-92 and Ontario’s Child, Youth and Family Services Act as establishing an augmented best interests test that overrides the hierarchy of placement for Indigenous children in Bill C-92.

Indigenous Law Centre – CaseWatch Blog

An Indigenous mother [the “Mother”] does not deny that her twins were in need of protection but that it is in the children’s best interests to be returned to her care on terms of supervision. The Court interprets the interplay between Bill C-92 and the Child, Youth and Family Services Act as establishing an augmented best interests test as the paramount consideration that overrides the hierarchy of placement for Indigenous children set out at section 16(1) of Bill C-92. A rote application would be to the detriment of the best interests of the Indigenous child, which detracts from the legislation’s overall goal of promoting substantive equality between Indigenous and non-Indigenous children.

The Mother is a member of Constance Lake First Nation and has extended family residing there. The Mother does not know the identity of the twins’ biological father, as she was homeless and had relapsed with drug addiction when they were conceived. Although she is addicted to opiates, she has been on a methadone program for three years. She has not used opiates since discovering she was pregnant. The Mother came to the Society’s attention following her voluntary participation in the Healthy Babies, Healthy Children prenatal program in the month prior to the twins’ birth, when a call was made by an employee of that program.

The Mother’s post-traumatic stress disorder stems in large part from unrelated events that stink of racism. In 2017, a man was stalking and harassing the Mother. No charges were laid and, instead, Mother was told by police that they would warn the man to stay away from her. Police neither warned off the man, nor was any report filed about the Mother’s complaint. Police failed to advise Mother of the man’s 56 prior convictions including sex offences and an assault on his own 18-month-old child. When the man later attempted to rape the Mother, who fought him off and fled, he called Sudbury Regional Police who charged her with Break and Enter and Assault.

Although she initially intended to take the matter to trial, the Mother found the situation overwhelming and pleaded guilty to the reduced charge of unlawfully entering a dwelling house. Two subsequent instances of questioning by separate police agencies about the same violent assault from which Sudbury Region Police failed to protect the Mother from, triggered her post-traumatic stress disorder such that she found herself suffering from hallucinations and fears that she was being stalked and watched.

The Society appears to rely upon these events to suggest that the Mother has a history of domestic violence. The Society also allege that the Mother has been disengaged with them and with the medical officials, and that her partner has been “overbearing” and aggressive in his demeanour. Their approach appears high-handed rather than collaborative, despite the assertion that there is cultural sensitivity.

The Court has to start with the premise that a biological parent is entitled to parent his or her child. All parents start as first-timers; no inference should be drawn that a new parent cannot adequately care for his or her child. Three factors clearly do impact the Mother’s ability to care for the children: 1) her anxiety and attendant issues; 2) the significant burden of caring for twins in general; and 3) the additional therapeutic needs of these children (Baby A needing physiotherapy to address the congenital club feet and Baby B needing physiotherapy to address the muscles in her neck).

The best interests of the Indigenous child, however, are the paramount consideration in determining the placement of that child. The hierarchy of placements is to be followed where it is consistent with the Indigenous child’s best interests in the context of promoting substantive equality between the Indigenous child and other children.