DISCRIMINATION

Ms. Ning Peng was employed at Canadian Satellite Communications Inc., the predecessor to Star Choice Televisions Network Inc. (“Star Choice”) from June 20, 2000 to August 18, 2002.

Ms. Peng held the position of computer analyst. The uncontroverted evidence was that Ms. Peng was a motivated, honest, skilful, dedicated and conscientious employee. On August 8, 2002, while Ms. Peng was on maternity leave, and receiving Employment Insurance maternity benefits, she was called to a meeting with several co-workers who were all advised that they were terminated due to “consolidation” and “financial and business concerns”.

Star Choice did not rely on cause for termination and there was no dispute that Ms. Peng was entitled to reasonable notice of the termination of employment. Ms. Peng however took the position that not only was there lack of notice, and thereby a wrongful dismissal, but that the termination was racially motivated. Ms. Peng alleged that all of the members of her group that she described as a “visible minority” were among those terminated on August 8, 2002. Ms. Peng alleged that all of those persons retained were “Caucasian”. Ms. Peng maintained that she was the victim of discriminatory conduct on the basis of race and gender. The Court summarized the issues to be resolved at the trial of the matter as follows:

Issues

A. Does this Court have jurisdiction to adjudicate upon Ms. Peng’s allegation of discrimination?

B. Was the termination of Ms. Peng’s employment influenced by considerations of race or gender?

C. What are Ms. Peng’s damages?

Issue A: Does this Court have jurisdiction to adjudicate upon Ms. Peng’s allegation of discrimination?

The Court held that it was bound by a decision of the Supreme Court of Canada that a civil action cannot be brought based on the tort of discrimination or breach of Human Rights legislation (see: Seneca College of Applied Arts and Technology v. Bhadauria). However the Court held that in this case, “the action was principally based on damages for wrongful dismissal and the conduct alleged is said to provide a factual context for the dismissal and thus forms part of the basis of Ms. Peng’s argument that the dismissal was wrongful”. Ms. Peng also argued that Star Choice’s conduct constituted bad faith and that she was entitled to damages for mental distress and/or an increase in the notice period as well as punitive damages as a result of such conduct. The Court found that the evidence relating to discrimination was therefore relevant to the issue of damages. The Court held that “such claims have been permitted and recognized, most recently by the Ontario Court of Appeal which approved an award of punitive damages as a result of discriminatory conduct in breach of Human Rights legislation (see: Keays v. Honda Canada Inc.). Although, the Supreme Canada has held that the Courts cannot deal with issues relating to the tort of discrimination, it is now clear that the Courts can deal with allegations of discrimination where they relate to bad faith, punitive damages or “independent actionable wrongs” as long as such allegations are made in of context of a separate action, such as a wrongful dismissal.

It is also noted that there are upcoming changes to the Human Rights Code which appear, at least in the draft stages, to provide Courts the right to hear claims of discrimination under the Human Rights Code when such complaint forms part of a separate action, and when the nature of the claim before the Court is not limited to a claim of discrimination, such as a wrongful dismissal.

Issue B Was the termination of Ms. Peng’s employment influenced by considerations of race or gender?

The Court held that there was insufficient evidence adduced at trial to support Ms. Peng’s contention that she was the victim of discrimination. As such, the Court held that Ms. Peng was not entitled to damages on account of bad faith and/or punitive damages as a result of the alleged discriminatory conduct. The Court did however hold that Ms. Peng was entitled to reasonable notice of the termination of her employment in the amount of six (6) months pay.

It will be interesting to determine the costs consequences of Ms. Peng’s claim given that much of the Trial was spent dealing with issues of discrimination which the Court ultimately dismissed.

This article is provided for information purposes only and does not constitute legal advice. Any individual questions or legal issues should be discussed with independent counsel.