SEVEN YEARS LATER, 15 CHINESE WORKERS WON $130,000 IN DAMAGES AGAINST RACISM IN EMPLOYMENT
Montreal, Feb. 28, 2014 --- After a seven year legal battle and a judgement from the Quebec Court of Appeal, 15 Chinese workers who suffered discriminatory treatment at the hands of their employer, Calego International, were finally successful and were awarded $100,000 in moral damages by the Court.
Additionally, the workers will receive $30,000 in damages from Agence Vincent, which the Court held solidarily liable for the involvement of its owner and president in committing the discriminatory acts against the workers.
A reminder of the facts: on July 11, 2006, Stephen Rapps, the president of Calego International Inc. gathered the workers of Chinese origin (the workers were referred to Calego by Agence Vincent) working for his company for a meeting, to address the unsanitary conditions in the company’s common kitchen and washrooms. At this meeting, Mr. Rapps told the workers: “This is Canada, not China. We take shower and shampoo every day, wash hands with soap, flush the toilet after use. Don't piss on the floor... This is my kitchen, not yours. My kitchen, I want it clean. You Chinese eat like pigs.” The Chinese workers felt hurt and humiliated, and 15 of them quit on the spot after unsuccessfully trying to have Mr. Rapps apologize for his racially discriminatory comments.
With the help of CRARR, the 15 workers brought a complaint to the Quebec Human Rights Commission. After conducting an investigation, the Commission sided with the workers, recommending that each worker receive $10,000 in damages for having been discriminated against. Since the respondents refused to comply, the case was referred to the Human Rights Tribunal.
On April 11, 2011, the Tribunal concluded that Mr. Rapps’ statements were discriminatory towards the workers on the basis of their ethnic or national origin. As a result, the Tribunal:
Calego, Mr. Rapps, Agence Vincent and Vincent Agostino appealed the decision. According to them, Mr. Rapps statements and gestures did not “break or harm” the right to the protection of dignity of the plaintiffs. The appellants claimed the statements were not discriminatory because they were not hate speech according to the definition recently set out by the Supreme Court in Saskatchewan (Human Rights Commission) v. Whatcott. In this case, the Supreme Court found that William Whatcott was guilty of hate speech for distributing homophobic flyers in Saskatoon and Regina in 2001 and 2002. The Court upheld a section of the Saskatchewan Human Rights Code that banned the publication of anything that exposed an identifiable group to hatred.
According to the appellants, rejecting their appeal would violate Mr. Rapps’ right to free expression and as a result, the workers’ case should be rejected.
In its decision issued in May 2013, the Court of Appeal upheld the Human Rights Tribunal’s decision with regard to the discriminatory actions of Calego’s president. The Court awarded the 15 Chinese workers $7,000 each in moral damages (plus interest starting in 2009 when the Human Rights Commission issued its decision in favour of the workers). However, the Court found that punitive damages were not warranted.
The Court of Appeal issued two separate opinions for the case: Justice Vézina’s and Justice Morissette’s.
Justice Vézina noted that Mr. Rapps’ statements did not constitute hate propaganda as defined in the Whatcott case. According to him, the statements were not propaganda and even if they had been made in public, they were not offensive to the point where they would incite extreme hatred towards an identifiable group.
The Court ruled that individuals can sue to protect and defend their honour and dignity for damages caused by statements linked to prejudice. It agreed with the Human Rights Tribunal that Mr. Rapps’ statements were “hurtful, humiliating, and degrading” and were unacceptable under the circumstances. Mr. Rapps’ statements caused moral damages to each of the victims as evidenced by the victims’ reactions at the meeting and the steps they took the next day and in the days that followed (unable to receive a written apology from Mr. Rapps, the workers quit on principle).
Justice Vézina found that that the $7,000 in damages awarded to each worker was high but was not unreasonable and this award was already a sufficient penalty for not respecting the workers’ fundamental rights.
On the other hand, he did not agree with the Tribunal’s decision to award punitive damages on the basis that the attack on the victims’ dignity was not only illegal but intentional. According to Justice Vézina, Mr. Rapps’ intention was not to attack the victims’ dignity; his intention was to resolve the issue with the unsanitary washrooms and kitchen by raising his concerns with his employees. He did not intend to cause the psychological damage that caused the 15 workers to quit his company. He knew his statements were harsh but he did not want or believe they would be as damaging to the workers as they proved to be. For this reason, Justice Vézina rejected the decision to award punitive damages.
Justice Vézina reasoned that punitive damages have a “preventative function” and the $105,000 award for moral damages had already accomplished this objective.
Finally, Justice Vézina upheld the finding that all of the appellants were solidarily liable because, among other things, the appellants Agostino and Agence Vincent were both the “employers” of the plaintiffs. Furthermore, Mr. Agostino, who hired the Chinese workers, supervised the workers and paid them directly in cash or by cheque from Agence Vincent, personally committed a fault in that he participated in the meeting with the workers, gathered only the Chinese workers and not all of the workers on site, did not intervene to stop Mr. Rapps from making his hurtful statements, and even laughed as they were made.
According to Justice Vézina, Mr. Rapps was 75% at fault while Mr. Agostino was liable for the remaining 25% and this division should be added to the original judgement. With interest dated to the original Commission decision in 2009, the final award was approximately $130,000 for the victims.
Justice Morissette agreed with Justice Vézina's analysis but found that Mr. Rapps’ statements did not constitute an acceptable use of his freedom of expression. According to him, unlike the Whatcott case, the insults were made in the private place of the employees’ workplace and were specifically addressed to a distinct group (the 25-35 workers of Chinese origin working at that time for Calego). In Whatcott, the defendant was acquitted because his statements “constituted a legitimate discussion in a public debate about the morality of homosexuality.” None of these considerations were present in the Calego case: the statements were not in the public interest or a part of a public debate on a question of general interest.
As of February 20, 2014, Agence Vincent failed to pay its share of the damages. Further legal procedures to recover this amount will commence shortly.
« We salute the courage and determination of these Chinese workers who fought for seven years to uphold their rights to equality and dignity,” said CRARR Executive Director Fo Niemi. “This case shows once again the importance for immigrants to know and defend their civil rights.”
Mr. Maurice Drapeau of the Commission represented the workers before the Human Rights Tribunal and Mr. Aymar Missakila acted as counsel for CRARR, which joined force with the Commission in court in its capacity of complainant.