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Silliphant v. Wakim (c.o.b. Lunch Bar and Dining Room)

Report of the Board of Inquiry Between Stephen Silliphant, complainant, and Sleiman Wakim, doing business under the firm name and style of "The Lunch Bar and Dining Room", respondent

Prince Edward Island Board of Inquiry Under the Human Rights Act J.K. Clark

Heard: January 7, 1986.
Decision: March 3, 1986.
(35 paras.)

Appearances:
 

Stephen Silliphant, representinghimself.
Paul Michael, for Sleiman Wakim.
Linda Gaudet, for P.E.I. Human Rights Commission.
David Riley, for the Board of Inquiry.


1      On the 23rd day of November, A.D. 1984, Stephen Silliphant filed a complaint, under the Prince Edward Island Human Rights Act S.P.E.I. 1975 c-72, with the P.E.I. Human Rights Commission to the effect that he was discriminated against by Sleiman Wakim, proprietor of The Lunch Bar and Dining Room.  The allegation is that Mr. Wakim refused to hire Stephen Silliphant as a waiter on the basis of the sex of Mr. Silliphant.

2      The Human Rights Commission investigated the matter and was unable to effect settlement between the parties and as a result, I was appointed as a Board of Inquiry by the Minister of Justice and Attorney General pursuant to Section 24(1) of the Human Rights Act.

3      The pertinent section of the Human Rights Act dealing with the refusal to employ a person on discriminatory basis is found at Section 6(1).  This Section reads in part, as follows:
 
6(1)

"No person shall refuse to employ or to continue to employ any individual on a discriminatory basis or to discriminate in any term or condition of employment."

4      Section 1(d) defines discrimination as follows:
 
1(d)

"Discrimination means discrimination in relation to the race, religion, creed, colour, sex, marital status, ethnic or national origin, age, physical disability or political belief as registered under Section 24 of The Election Act R.S.P.E.I. 1974, Cap. E-1 of any individual or class of individuals."

5      I will discuss later in my Decision how the Courts have dealt with the definition of discrimination and applied it to the matters as alleged under this complaint.

6      These provisions under the Human Rights Act indicate a strong legislative committment to irradicate discriminatory considerations in the employment process, as well as other areas, as indicated under the subject Act. The preamble to the Human Rights Act reads in part as follows:
 

"AND WHEREAS it is recognized in Prince Edward Island as a fundamental principal that all persons are equal in dignity and human rights without regard to race, religion, creed, colour, sex, marital status, or ethnic or national origin;"

7      From this, it is apparant that the Human Rights Act is attempting to eliminate sex as a valid consideration under the determination of employment within the Province.

8      In this matter, we have a male person indicating that he has been discriminated against on the basis of his sex.  In a number of the matters which have been before the Boards of Inquiry in Canada, it has been a woman who has alleged to have been discriminated against.  However, a perusal of the Human Rights Act will indicate that the purpose of the Act is to allow no distinction and a male is to be afforded as much protection as a female and vice versa.

9      The facts in relation to this case are somewhat under dispute and the evidence of the Complainant and the Respondent in relation to certain crucial areas are in substantial conflict.  I will therefore be required to make a finding of fact in relation to certain circumstances surrounding the events from which the complaint originates, as well as to determine questions of credibility in relation to the witnesses who appeared before me.

10      On the 20th day of June, A.D. 1984, Stephen Silliphant attended at Canada Employment Centre to check the availability of jobs in his area.  Mr. Silliphant met with his counsellor and received three (3) referral slips for available jobs in Charlottetown and surrounding areas.  One of these referral slips related to a waiter/waitress required at the establishment of Mr. Wakim.  Mr. Silliphant's evidence indicates that he attended at the establishment of Mr. Wakim, at which time he observed Mr. Wakim to be somewhat occupied in carrying on the tasks of his operation.  This was on the morning of June 20th, 1984.  Mr. Silliphant's evidence indicates that he showed Mr. Wakim his referral slip and indicated he was interested in the subject job of waiter/waitress.  Mr. Silliphant was asked by Mr. Riley if any discussions had taken place and Mr. Silliphant indicated there was.

11      Reference to Page 12 of the Transcript of Evidence indicates as follows:
 
Q.

Perhaps then, could you relate what the essence of that discussion was?

A.

I showed him the referral slip and that I would like to apply for the job as a waiter and he apologized and told me that ... he told Manpower.  He said I told them I didn't ... not to send me a boy.  I wanted a girl.  He apologized to me.  A ...

Q.

Umm ... was that through the whole ... did you have any preliminary discussion with him, like Hi, How are you? or, What are you doing here? or ...

A.

No, not really.

12      Later, Page 13 of the evidence reads as follows:
 
Q.

And what reasons did Mr. Wakim give you specifically?  Did he ...

A.

Only because that he wanted a girl as a waitress. He explained to me that where he comes from ... Ah, it is true that men do work as waiters but here it is not acceptable and he wanted a girl.

Q.

And he told this directly to you?

A.

Yes.

Q.

And did you get into any sort of argument or discussion?

A.

Oh, no. No, as I say, he was very good about it.  Ah ... I didn't really know what to say or what to do. Like he ... I was stunned.

Q.

So you what did you do?

A.

I thanked him and turned around and left.

13      Mr. Silliphant indicated in his evidence that on this same date, he called the Human Rights Commission and explained the essence of what had taken place.  The party who had answered the telephone was Jewell MacDonald.  At that time Mr. Silliphant did not file a formal complaint.  Ms. Jewell MacDonald, of the Human Rights Commission testified that she recalled receiving the call from Mr. Silliphant at approximately this time and recalls the conversation of Mr. Silliphant in relation to Mr. Wakim wanting a female person for the subject job and the refusal to Mr. Silliphant on the basis that he was in fact a male.

14      As indicated earlier, Mr. Silliphant did not file a complaint with the Human Rights Commission until the 23rd day of November, A.D. 1984 and his reason for this, was the fact that he had been seeking other employment and did not wish to commence any type of action against Mr. Wakim, as they had been friends.  On November 23rd, 1984 however, he was short of money and "had to do something".

15      Ms. Jewell MacDonald, from the Human Rights Commission, testified in relation to the phone call she received from Mr. Silliphant, as well as a phone call she received sometime in late November or early December from a person who identified himself as Mr. Wakim.  She indicated that Mr. Wakim related that he had told Manpower that he wanted a girl and not a boy for a waitress.  Also Mr. Wakim had requested of Ms. MacDonald, that someone explain the whole process to him.  As a result of this, Mr. Tom Klewin of the Human Rights Commission subsequently attended at the premises of Mr. Wakim.

16      Mr. Klewin testified that a substantial amount of the conversation between Mr. Wakim and himself centered around the question of Human Rights.  As well, Mr. Wakim related to the practice of male waiters being employed in Mr. Wakim's native country and that the employment of male waiters was not an accepted practice in Prince Edward Island.  Mr. Klewin, however, stated that at no time did Mr. Wakim indicate that he personally would not hire a male waiter and further indicated that the actual question was never put to Mr. Wakim by Mr. Klewin.  Mr. Klewin also stated that Mr. Wakim related that he had no position open at the time Mr. Silliphant applied for the job and this had been indicated co Mr. Silliphant.  Mr. Klewin further related that Mr. Wakim went on to state that Mr. Wakim himself was only trying to abide by all Island customs in relation to the question of male waiters and waitresses.  Mr. Wakim also, related to Mr. Klewin that Mr. Silliphant did not dress properly and was not dressed properly at the time of the application.

17      It appears that there was a substantial amount of discussion between Mr. Klewin and Mr. Wakim in relation to the question of male waiters and waitresses, as well as the general question of Human Rights.

18      Mr. Wakim's evidence would indicate that he never made any statement about the girl/boy scenario and further, that when Mr. Silliphant applied for the job, that the position had already been filled.  It appears from Mr. Wakim's conversation with Mr. Klewin, as well as his evidence at the Board of Inquiry, that the subject position was filled. However, Mr. Wakim went on to relate in great detail reasons why he did not hire Mr. Silliphant, such reasons comprising mainly of his previous knowledge of Mr. Silliphant and the fact that he would not hire Mr. Silliphant because of his appearance, his previous criminal conduct as well as the fact that Mr. Wakim was unaware of the experience of Mr. Silliphant.  Mr. Wakim indicated that in hiring employees he required three (3) characteristics of a prospective employee, being experience, honesty, and appearance.

19      Mr. Wakim provided myself with copies of his payroll documentation which indicated that a certain party had been hired two (2) days prior to June 20th, 1984 but a perusal of his payroll documents would indicate that employees were coming and going almost on a daily basis at Mr. Wakim's establishment.  I find it very difficult to accept that on June 20th, 1984 Mr. Wakim did not have a position for a waiter/waitress available at his establishment and I do not feel that this is the reason why Mr. Silliphant was not in fact hired.

20      Mr. Wakim's evidence indicates that he has both males and females working at his establishment but has never, before this time, had a male waiter or in fact prior to Mr. Silliphant, had a male apply for the job of waiter.  Mr. Wakim's evidence centered a great deal around his three (3) requirements of employment being experience, honesty, and appearance.  He stated that he had known Mr. Silliphant for a number of years and was forced in the past to have Mr. Silliphant removed from his establishment, due to the fact that Mr. Silliphant was not properly attired.  Mr. Wakim further went on to relate that he knew of Mr. Silliphant's past history of unemployment as well as his involvement with the law.  Mr. Silliphant, at his own instance, stated that he had been a frequent patron of Mr. Wakim's establishment over the years.  Mr. Wakim stated that in his establishment there would be a fair amount of discussion among staff and patrons in relation to what known patrons might be up to and involved with from time to time and as a result of this, Mr. Wakim would have some knowledge about what type of individual Mr. Silliphant was.

21      In taking into consideration all the evidence given before me, as well as my assessment of the witnesses in relation to their credibility, and what they are able. to recall of the events of June 20th, 1984, I find that in fact, when Mr. Silliphant applied for the job at Mr. Wakim's establishment, Mr. Wakim did respond that he wanted a girl and not a boy.  One must then consider whether it was on this basis Mr. Wakim did not hire Mr. Silliphant, and in fact, whether Mr. Wakim's actions amounted to discrimination and thus an infraction of the Human Rights Act.

22      Walter Tarnopolsky in his text Discrimination and the Law reviews the various definitions of discrimination and comes to a conclusion that discrimination can be found in three (3) categories which are as follows:
 
(a)

evil motive or animus;

(b)

differential treatment;

(c)

consequence or effects.

23      This approach to defining discrimination and in particular the latter catagory have been confirmed recently in the Supreme Court of Canada decision of Ontario Human Rights Commission and Theresa O'Malley (Vincent) v. Simpsons Sears Ltd. [1985] 2 S.C.R.000. This Decision of the Supreme Court was rendered on December 17th, 1985.

24      In dealing with the question of evil motive or intent, a great many of the authorities dealing with previous Boards of Inquiry indicate that, in many instances it is difficult to obtain direct evidence in relation to the discrimination complained of.  In such instances, it is requisite to look at the circumstances surrounding the time of the alleged infractions as well as responses from the Respondent and his explanations.  In many instances as well, it becomes incumbent upon the Board of Inquiry to access credibility of both the Complainant and the Respondent.

25      In the case of Britnel, et al v. Brent Personal Placement Services (Ontario 1968), the Board of Inquiry made the following references to proof of intent or motive:
 

"Sometimes when it can be compelled to the conclusion that discrimination was a motive only after observing a series of similar activities.  Sometimes the conclusion that discrimination was the motive can be determined on the basis of one act of denial in light of the surrounding circumstances.

Further in the case of Ruest v. International Brotherhood of Electrical Workers and Nickels (Ontario 1968) the same concept is discussed and adopted.

26      In the matter before this Board of Inquiry, the evidence of Stephen Silliphant indicates that the reason he was given for not being offered the job was that "I wanted a boy not a girl" [Quicklaw note:  This text should read "I wanted a girl not a boy" but is inverted in the copy provided to Quicklaw.].  The evidence of Jewell MacDonald of the Human Rights Commission indicates that she was called by Mr. Silliphant on approximately June 20th, 1984 and that he relayed to Ms. MacDonald this reason given to him by Mr. Wakim. Further evidence would indicate that a discussion over the question of boy and girl took place over the telphone between Mr. Wakim and Jewell MacDonald in late November or early December of 1984.  I am satisfied that the reason Mr. Wakim verbalilzed to Mr. Silliphant for not hiring him was in fact, that Mr. Wakim did want a girl waitress and not a boy to fulfull the position which he had advertised.  Further, as I stated earlier, although Mr. Wakim adduced evidence that the position had already been filled, I find this difficult to accept given the conduct of Mr. Wakim, and the great length he went to explain to Mr. Klewin, as well as the Board of Inquiry, that his reasons for not hiring Mr. Silliphant were due to his appearance and background.  Granted, Mr. Wakim couched his explanation on the basis that, if he had a position available, he would not have offered the job to Mr. Silliphant, but I believe, given the conduct of the parties and the evidence which was presented before the Board of Inquiry, that on June 20th, 1984, a position for a waiter/waitress was available.

27      In this matter, as had been the case in other Boards of Inquiry under Human Rights Legislation, there appears to be motives other than the question of Mr. Silliphant's sex which impressed or at least Mr. Wakim indicated could have been taken into his consideration in his refusal to hire Mr. Silliphant.  Given the evidence, I believe that on the 20th day of June, A.D. 1984 when Mr. Silliphant appeared at the establishment of Mr. Wakim, he indicated his desire for the job, Mr. Wakim's primary reason for not hiring Mr. Silliphant was the fact that Mr. Silliphant was in fact male and Mr. Wakim was looking for a female to fill the position.  There may be other reasons as well, which may have affected Mr. Wakim's mind, however, I think Mr. Wakim was adamant that he was not going to hire Mr. Silliphant because he was male whether or not these other reasons existed.

28      The case of Nogler v. New Brunswick Liquor Corporation is authority for the fact that as long as sex is one of the, factors, i.e. a proximate cause then, discrimination would be found to have occurred.

29      In the New Brunswick Board of Inquiry in the case of McBeen v. Village of Plaster Rock, Chairman Kirr indicated two (2) reasons for supporting the theory that as long as a discriminatory reason is one the facts taken into consideration, a violation of the code has been completed. Mr. Kirr stated at pp 5 and 6, as follows:
 

"The purpose of the code as indicated by the Preamble and the Substandard Provisions is to eliminate from considerations and decisions affecting employment, and other matters which are listed in the Code those factors such as race or sex which are listed in the Code.  It is made a governing principle "that all persons are equal in dignity and human rights without regard to race, colour, religion, national origin, ancestory, place of origin, age, marital status, or sex." This purpose would not be served if these factors can viably be considered merely because they are considered in conduction with other legitimate factors.

Practical considerations reinforce this conclusion.  In order to determine whether prohibited reason was a sole or primary reason for decision, it would be necessary for the Board to assume the place of the employer making the decision and analyzing in full the process, mental and otherwise, which lead to this decision.  Such an extensive interference with the appropriate internal management functions of an employer cannot have been intended by the legislature, particularly when the declared purpose of the Act can be better accomplished by the much less involved method of determining merely whether a prohibited reason form part of the reasons for the decision".

30      I believe that this approach and interpretation of the purposes of Human Rights Legislation is supported by the reasoning of the Supreme Court of Canada in Ontario Human Rights Commission and Theresa O'Malley (Vincenc) v. Simpsons Sears Ltd.

31      The question of mixed motives has been discussed by various Boards of Inquiry Decisions and the leading case which is most quoted in relation to the question of mixed motives is the case of Regina v. Bushnell Communications Limited. et al (1973) 45 D.L.R.(2d) 218 and as affirmed on Appeal in (1974) 47 D.L.R. 3d 678 (Ont.  C.A.).

32      At the Court of Appeal level Evans, J.A. stated as follows at Page 670:
 

"We agree in substance with the result at which Hughes, J., arrived and in our view the question which the Court must determine is "What motivated the employer to take the action which he in fact took with respect to the employee?" If it is found that union membership is a ground for the action taken then a conviction should be made.  Otherwise an acquittal.  It is entirely a question of fact in each case for the trial Judge to determine, after assessing the credibility of the various witnesses, whether union membership was a cause of the action taken.

In our view, to create an offence under S. 110(3) of the Canada Labour Code, R.S.C. 1970, c. L-1, union membership must be a proximate cause for dismissal, but it may be present with other proximate causes.

33      In the matter before this Board of Inquiry, I find that the question of the sex of Mr. Silliphant was the main reason Mr. Silliphant was not hired and not merely one of the many reasons.  I believe that possibly Mr. Wakim may have taken other matters into consideration, if he had thought the process through further, however, the immediacy of his response to Mr. Silliphant would indicate that the fact of his sex was the determinining factor.  Even if other, factors were present, I believe the Bushnell Decision would not allow for the condonation of Mr. Wakim's actions. Upon this basis, I find that Mr. Wakim discriminated against Mr. Silliphantand refused to employ Mr. Silliphant on discriminatory basis. Therefore,I find Mr. Wakim to have been in contravention of Section 6(1) of the Human Rights Act of Prince Edward Island.

34     The next issue to be addressed is my recommendation as to what the final disposition of this matter should be.  This matter involves the first instance on Prince Edward Island where a Board of Inquiry has found discrimination and has been called upon to make a recommendation.  Therefore, in this regard, I do not have any authorities under our particular Statute to rely upon.  There are a number of Boards of Inquiry in Ontario, and some of the other Provinces, which have been award damages for loss of wages when a person has been wrongfully dismissed from their jobs on the basis of discriminatory factors.  There have also been cases where general damages have been awarded to complainants' for injured feelings and inconvenience when they have been discriminated against.

35      In this matter, I am mindful that we are dealing with an application for employment which was basically employment for the summer season. I am also mindful of the relationship which existed between the parties and the circumstances surrounding Mr. Silliphant's application and Mr. Wakim's refusal to hire.  Mr. Wakim related to the Board some reasons he wouldn't have hired Mr. Silliphant.  I believe these considerations entered Mr. Wakim's mind after he had, on a discriminatory basis, decided not to hire Mr. Silliphant.  I do feel, however, that such matters can be considered when one is called upon to see what, if any losses, Mr. Silliphant may have suffered.  As stated above, I find that when Mr. Wakim decided not to hire Mr. Silliphant, he did so on the basis which I have found he verbalized.  However, given Mr. Wakim's three (3) stated criteria for employment, coupled with his personal opinion of Mr. Silliphant, I feel Mr. Silliphant's employment with Mr. Wakim would have been tenuous at best. Therefore, I do not feel this is a case where Mr. Silliphant should be compensated for any loss of wages.  I do find, however, that Mr. Wakim's conduct cannot be condoned and would recommend that Mr. Wakim ordered to pay Two Hundred and Fifty Dollars ($250.00) damages to Mr. Silliphant for the personal affront and inconvenience suffered by Mr. Silliphant.
 
 

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