Asad v. Kinexus Bioinformatics

Date Issued: July 23, 2008

File: 532

Indexed as: Asad v. Kinexus Bioinformatics, 2008 BCHRT 293

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

B E T W E E N:

Ghassan Asad

COMPLAINANT

RESPONDENT

A N D:

Kinexus Bioinformatics Corp.

REASONS FOR DECISION

Tribunal Member:

Abraham R. Okazaki

Rose Chin

Counsel for the Complainant:

On behalf of the Respondent:

Dates of Hearing:

Steven Pelech

November 1 – 5, 12, 15, 17 and 18,

December 13-17, 2004,

January 4 – 7 and 14,

February 10 ,11, 17, 18 and 21, and

April 13 and 15, 2005

Table of Contents

I Introduction

1

II Summary of the Complaint and these Reasons

A. The Evidence

1

2

4

B. Background of the Complaint

C. Discrimination Regarding Employment – Section 13(1)(b)

D. No Discrimination in Termination of Employment – Section (13)(1)(a)

E. Credibility of Witnesses

F. Costs

G. Conclusion

9

10

11

13

III Evidence

13

A. Exclusion of Witnesses

B. Ghassan Asad

1.Direct Examination

13

14

15

17

19

20

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23

25

26

28

30

31

32

33

35

38

39

40

41

42

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50

53

54

60

(a) Personal Background and Immigration to Canada

(b) Commencement of Employment at Kinexus

(c) Sign In/Out Sheets and Time Sheets

(d) Overtime Pay

(e) Performance Review

(f) Canadian Citizenship and the Trip

(g) September 11, 2001 – (“9/11”)

(h) Start of the RCMP Investigation – September 17

(i) The Second Interview – September 18

(j) Conversations Connected to the Sept. 17 and 18 Interviews

(k) Medical Attention and Reports

(l) Return to Work and Newsletter Article

(m)Continuation of the RCMP Investigation

(n) Interactions with Dr. Pelech, Ms. Stoute and Ms. Karia

(o) Kinexus Social Functions

(p) Salary Adjustment and Job Title

(q) Kinexus Personnel and Financial Issues

(r) 2002 and 2003 Technical Reports on IT Issues

(s) Photograph on the Kinexus Website

(t) Computer System Crashes – October and November 2002

(u) Overtime Pay and Requests for Performance Review

(v) Management Position Issue

(w)January and February 2003 Time Sheets

(x) The Termination

(y) Circumstances Following the Termination

2. Cross-examination

3. Re-Direct

i

C. Disclosure and the Tribunal’s Rules

D. Jenny Morgan

E. Conclusion of Mr. Asad’s Evidence and Further Disclosure Issue

F. Kevin McDuffie

G. Sara Mirzaei

H. Daniel Tarbuck

61

63

64

65

67

68

69

70

72

73

74

75

76

I. Catherine Sutter

1. Direct Examination

(a) Employment Background

(b) Relationship with Mr. Asad

(c) Time Sheets – Prior to May 2002

(d) Mr. Asad’s August 2001 Performance Review and Salary Increase

(e) Overtime Payments to Mr. Asad in 2001

(f) The Events of 9/11

(g) The RCMP Investigation and Related Events

(h) Newsletters and the September and October 2001 Editions

(i) 2001 Christmas Party

(j) Dr. McDermott and the Financial Problems and Restructuring of Kinexus 77

(k) Revisions to the Time Sheets and Time Sheets Policies – May 2002

(l) Mr. Asad’s Salary, Stock Options and Title

(m)Ms. Karia and Changes in Position

(n) Computer System Crashes – October and November 2002

(o) 2003 Time Sheets, Performance Reviews and Mr. Asad’s Termination

(p) Other Incidents Involving Mr. Asad

2. Cross-examination

(a) Mr. Asad’s Title

(b) Performance Reviews

(c) Ms. Sutter’s View of Mr. Asad

(d) The Events of 9/11 and Their Aftermath

(e) Change to Overtime Policy

77

79

80

81

82

83

84

88

89

(f) The April 4, 2002 Confidential Report

(g) Mr. Asad’s Work Habits

(h) Newsletters

(i) Ms. Stoute’s Suspicions and Ms. Karia’s Reports of Mr. Asad’s 9/11

Comments

(j) Who Reported Mr. Asad to the RCMP?

J. Mira Karia

90

91

92

95

96

97

1. Direct Examination

(a) Personal and Employment Background

(b) Description of Kinexus and Dr. Pelech

(c) The Events of 9/11 and Their Immediate Aftermath

(d) Relationship with Mr. Asad

(e) Overtime Policy and Time Sheets

2. Cross-examination

(a) Dr. Pelech

(b) Discussions with Ms. Stoute, Dr. Pelech and Ms. Sutter

ii

(c) Ms. Karia’s Role in Kinexus’ Defence and Reliance on Dr. Pelech and

Ms. Sutter

100

102

103

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107

108

109

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113

114

115

118

119

122

(d) Mr. Asad’s Demand for Overtime Pay

(e) Mr. Asad’s Demeanour, Attitude and Title

(f) Mr. Asad’s Time Sheets and Ms. Karia’s Time Sheets and Diary

(g) Ms. Karia’s Views of Mr. Asad’s Allegations and Certain Terms

(h) Warning to Mr. Asad and the Termination

(i) Ms. Karia’s Diary and March 13 E-mail

(j) Who Reported Mr. Asad to the RCMP?

3. Re-Direct

K. Patricia Stoute

1. Direct Examination

(a) Personal and Employment Background

(b) Description of Kinexus and Dr. Pelech

(c) Mr. Asad’s Trip

(d) 9/11 and the RCMP Investigation

(e) Mr. Asad’s Stress Leave and Return to Work

(f) Knowledge of Ms. Stoute’s Involvement in the RCMP Investigation

(g) Ms. Stoute’s View of the Complaint and Hearing

2. Cross-examination

(a) Return to Kinexus

(b) Relationship with and Suspicions about Mr. Asad

(c) Knowledge of Ms. Stoute’s Involvement in the RCMP Investigation

(d) RCMP

(e) The Computer Crash

(f) Discussions with Ms. Sutter between 9/11 and Ms. Stoute’s Layoff in

February 2002

(g) Relationship with Mr. Asad After His Return to Work

(h) Discussions after February 2002

3. Re-direct

122

124

125

126

127

128

130

131

132

133

L. Steven Pelech

1. Direct Examination

(a) Personal and Employment Background

(b) The Kinexus Workplace and Dr. Pelech’s Views of Discrimination

(c) Hiring Mr. Asad

(d) The Events of 9/11

(e) The RCMP Interview at Kinexus

(f) Conversation with Mr. Asad and Dr. Pelech’s Views of the Situation

(g) Who Reported Mr. Asad to the RCMP?

(h) Mr. Asad’s Return to Work

(i) Mr. Asad’s Request for an Apology

(j) The Christmas Party

(k) Turmoil at Kinexus, the Layoffs, and Change in Mr. Asad’s Demeanour 134

(l) Mr. Asad’s Title and Management Status

(m)Concerns about Mr. Asad’s 2002 Vacation

(n) Mr. Asad’s Photo on the Kinexus Website

135

136

137

iii

(o) Mr. Asad’s Claim for Overtime Pay

(p) Performance Reviews

(q) Time Sheets

(r) The Termination

2. Cross-examination

137

138

139

140

141

142

144

145

146

147

148

149

150

151

152

154

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157

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159

(a) The Events of 9/11

(b) The RCMP Interview at Kinexus

(c) Events and Conversations Subsequent to the RCMP Interview

(d) Conversations with Mr. Asad and Dr. Pelech’s Views of the Situation

(e) Mr. Asad’s Return to Work from Stress Leave

(f) Ms. Stoute Did Not Apologize and Did Not Report Mr. Asad

(g) Mr. Asad’s Photo on the Kinexus Website

(h) The Website and the Computer Crash

(i) Overtime Pay

(j) Overtime Calculations Prepared by Ms. Sutter

(k) Comments about Documents Prepared by Others

(l) Management Meetings and Title

(m)Mr. Asad’s Work Performance

(n) The Events of March 2003

(o) Dr. Pelech’s Compensation

(p) Discussions with Ms. Sutter

(q) Who Reported Mr. Asad to the RCMP?

(r) Discussions with People Outside Kinexus

(s) Dr. Pelech’s Conclusion of No Discrimination

(t) Further Disclosure Issues and Relationship with Ms. Sutter

3. Re-direct

M. Recall of Ghassan Asad

1. Recall

2. Cross-examination on Recall

IV Analysis – Credibility of Witnesses

160

A. General Principles and the Exclusion of Witnesses

B. Ms. Morgan, Mr. McDuffie, Ms. Mirzaei and Mr. Tarbuck

C. Dr. Pelech

160

161

162

165

167

170

172

173

D. Ms. Sutter

E. Ms. Karia and Indicia of Collusion among Certain Witnesses

F. Ms. Stoute

G. Mr. Asad

H. Conclusions on Credibility of Witnesses

V Relevant Provisions of the Code

174

VI Analysis – General Principles of Interpretation and Application of the Code 175

A. Purposive Approach 175

iv

B. What Is Discrimination?

175

176

177

178

181

183

C. Intention Is Not an Essential Ingredient

D. Alleged Ground Only Needs to be a Factor

E. Onus to Establish a Prima Facie Case

F. The Law Analysis

G. Proving Discrimination

H. Employer Liability for Discrimination

VII Analysis – Discrimination Pursuant to Section 13(1)(b)

184

A. Ms. Stoute

185

186

189

190

191

1. Who Reported Mr. Asad to the RCMP?

2. Racial Profiling

3. Ms. Stoute’s Report to the RCMP

4. Ms. Stoute’s Other Discriminatory Conduct

B. Dr. Pelech and Ms. Sutter

1. Knowledge of Ms. Stoute’s Suspicions and Mr. Asad’s Condition –

a “Company Matter”

191

194

195

197

199

200

201

203

2. Their Own Suspicions and Attitudes

3. The Kinexus Workplace Environment

4. How Did Kinexus Deal with the Workplace Environment?

5. Ms. Karia

6. Improvements Over Time

7. Ongoing Discrimination

C. Decision

VIII Analysis – Discrimination Pursuant to Section 13(1)(a)

205

A. Introduction

B. Evidence and Discussion

C. Decision

205

206

215

IX Remedies

216

A. Remedies Sought by Mr. Asad

B. Remedies Awarded

216

217

X Costs

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221

225

226

A. RELEVANT PROVISIONS OF THE CODE AND THE RULES

B. Meaning of “Improper Conduct”

C. Kinexus’ Improper Conduct

D. Purpose of Costs

E. Decision on Costs

XI Conclusion

227

v

I

INTRODUCTION

[1]

Ghassan Asad filed a Complaint in which he alleges that, contrary to s. 13 of the

Human Rights Code, Kinexus Bioinformatics Corp. (“Kinexus”) discriminated against

him with respect to his employment and terminated that employment because of his race,

religion, place of origin, and political belief. Kinexus denies the allegations of

discrimination.

[2]

The hearing of this matter encompassed 26 days, followed by extensive final

written submissions. Mr. Asad was represented by counsel, Ms. Chin. Kinexus was

represented by its President, Dr. Pelech, who also gave evidence. The hearing was

preceded by several pre-hearing conferences to which I will refer from time to time in

these Reasons.

[3]

In these Reasons, I will identify the witnesses and certain other key individuals by

name. I will identify, by their initials or given names, other persons who were not directly

involved in the allegations and issues raised by the Complaint. All quotations from

documents submitted in evidence are reproduced as written in their original forms.

II SUMMARY OF THE COMPLAINT AND OF THESE REASONS

[4]

In the following, I summarize the main factual findings and the reasons for the

decisions which I have made after considering all of the evidence presented at the

hearing.

A.

The Evidence

[5]

These Reasons are exceptionally lengthy and detailed because of several factors.

First is the substantial volume of oral and documentary evidence that was adduced during

a 26-day hearing in a case that was very much fact-driven. Second, in large measure, the

testimony of most of the witnesses contradicted and conflicted with that of others,

sometimes on fundamental issues. Those conflicts and contradictions occurred even

among witnesses called by the same party. That, of course, has resulted in the need to

1

make findings of credibility, findings with which certain parties may take umbrage. For

that reason, it is important to set out the testimony of the witnesses in detail.

[6]

Third, some of the evidence of what was said and done by various individuals

may provide cautionary tales and useful lessons for some readers. Those lessons, of

course, include those involving the substantive issues raised by the Complaint. However,

among other things, the evidence also illustrates that even a collective effort by a group

of persons to present a united front through the development and presentation of a

common story can be broken down and exposed through thorough and effective cross-

examination. It is an example of why it is always best to be completely truthful in giving

evidence. Apart from the obvious legal and moral duty to do so, a witness who is

completely candid is first spared the stress and pain of trying to remember what he or she

or another witness had said earlier or is expected to say in future, and secondly is spared

the confusion, embarrassment and loss of credibility resulting from faulty recollections of

all that.

[7]

Finally, the evidence and the manner in which it emerged over the course of the

hearing have resulted in an order for significant costs. For these reasons, the evidence is

set out in such detail.

B.

Background of the Complaint

[8]

The events giving rise to this Complaint and their background are complex and

tragic. They involve the 9/11 terrorist attacks on New York City and Washington, DC,

RCMP investigations and interrogations, corporate rivalries and infighting, racial

profiling of an innocent individual which wrongfully cast him as a suspected terrorist,

and friendships soured and ultimately destroyed by fear, suspicion and mistrust.

[9]

Mr. Asad is an Arab Muslim. At the time of the relevant events, he was in his

early 30’s. Before immigrating to Canada and becoming a Canadian citizen in August

2001, he was a citizen of Jordan but had resided in Saudi Arabia for 28 years. He

attended university there and graduated with a degree in biochemistry.

[10] Like many immigrants throughout history, Mr. Asad came to Canada, seeking to

live in a society free of the oppressive environment he had experienced in his former

2

country. He found employment in Vancouver but, because of his desire to expand his

career opportunities through his interest in computers and information technology (“IT”),

he attended Capilano College, receiving a diploma in the Business Administration –

Technical Computer Professional Program in May 2001.

[11] While still in that program, Mr. Asad was offered employment by Kinexus, a

company located on the campus of the University of British Columbia which was

engaged in the business of bioinformatics. Kinexus had been founded in July 1999 by Dr.

Pelech who holds a Ph.D. in biochemistry. Dr. Pelech was the company’s President and

CEO, and, together with members of his family, owned 1/3 of the shares of Kinexus. He

is also a full-time professor in the UBC Faculty of Medicine, but described his position at

Kinexus as, in reality, his full-time job. Although he reports to the company’s Board of

Directors, Dr. Pelech has a proprietary view of Kinexus as his company in which he is the

ultimate decision maker.

[12] Mr. Asad was interviewed by, and reported to, Dr. McDermott, Kinexus’ then

Director of Informatics, although his hiring was approved by Dr. Pelech who also briefly

interviewed him. Mr. Asad was hired in August 2000 initially as a Bioinformatics

Associate, but his role and responsibilities quickly changed and expanded, so that he was

responsible for the development and maintenance of an integrated information system at

Kinexus.

[13] The first year of his employment was one of success for both Mr. Asad and

Kinexus. During that year, the company tripled its workforce from eight employees to 24

or 25. At his performance review in August 2001, Mr. Asad received high praise from

both Dr. Pelech and Dr. McDermott for his dedicated hard work and accomplishments, a

very positive assessment, and the promise from Dr. McDermott of a substantial raise,

subsequently settled at 45%, far larger than that received by any other employee.

[14] Mr. Asad was very happy with his decision to move to Canada and with his

position at Kinexus where he enjoyed good relationships with management and his co-

workers. He developed a friendship with Ms. Stoute, who was employed by the company

to do reception and administrative work. They regularly socialized together outside the

workplace over dinners and coffee and at clubs.

3

[15] Mr. Asad received his Canadian citizenship on August 24, 2001, a day he

described as one of the best of his life. To celebrate, he took a trip to some places that he

had always wanted to visit. The timing and itinerary proved to be most unfortunate. After

his citizenship ceremony, Mr. Asad flew to Toronto where he rented a car and toured the

city. He then proceeded to Niagara Falls, Buffalo, Boston, New York City, Washington,

DC, Cleveland, Detroit, Windsor and back to Toronto. Upon his return, he told his co-

workers about his trip and showed them photos he had taken. He wrote a short article

about his travels for the September 7 edition of the Kinexus company newsletter,

accompanied by a photo.

[16] Four days later, on September 11, 2001, terrorists struck New York City and

Washington, DC. It has been said by many that, on that day, the world changed forever.

That was certainly so for Mr. Asad.

C.

Discrimination Regarding Employment Contrary to Section 13(1)(b)

[17] Like countless others around the world, including her co-workers at Kinexus, Ms.

Stoute was horrified, anguished and angered by the scenes of the massive devastation and

wrenching human tragedies inflicted by the 9/11 terrorist attacks. However, Ms. Stoute

was particularly emotionally affected, and focussed her reactions and attention on her

friend and co-worker, Mr. Asad.

[18] Encouraged by her sister Heather, Ms. Stoute began with Mr. Asad’s profile as a

single, young Arab Muslim male who had lived in Saudi Arabia and who had openly

expressed views of the politics of the Middle East that were critical of American policies.

To that she added his trip to New York City and Washington, DC a couple of weeks

before 9/11. Finally, she embellished that profile with exaggerations, assumptions and

products of her imagination, spinning threads of innocent events into a web of suspicion

around Mr. Asad.

[19] For example, his decision to stop eating candy bars became “fasting” to purify

himself before 9/11. The observation that Mr. Asad carried on overseas telephone

conversations in Arabic took on sinister overtones, even though Ms. Stoute was aware

that Mr. Asad had immigrated to Canada alone, and that his family members remained in

4

the Middle East. The fact that Mr. Asad kept himself informed about events in the Middle

East became, in Ms. Stoute’s mind, a matter of suspicious behaviour. Even Mr. Asad’s

offer to buy her a birthday present the day before 9/11, when viewed by Ms. Stoute from

her post-9/11 perspective, somehow took on a sinister character, even though a few days

earlier when Mr. Asad had returned from his trip, she had asked him if he had brought her

back a gift. Indeed, it seems that any aspect of Mr. Asad and his activities that did not

conform to her post-9/11 concept of the norm became, in her mind, “bizarre”, “strange”

and “odd” behaviour with possible connections to the 9/11 terrorist attacks.

[20] In short, Ms. Stoute added two plus two and came up with ten. Ten was the

product of racial profiling and a highly active imagination in the emotionally charged

environment of post-9/11, rather than accurate observations rooted in reality and

rationality.

[21] Urged on by Heather, Ms. Stoute reported Mr. Asad to the RCMP as someone she

suspected might have been involved in the 9/11 attacks. As a result, on September 17,

Mr. Asad was interrogated by the RCMP at the Kinexus workplace. That was followed

the next day by an early morning telephone call and a further two-hour interrogation at

RCMP premises. That interrogation was videotaped. A third, less formal one followed

shortly after. During those interrogations, Mr. Asad was extensively questioned about his

family, friends, religious and political beliefs, and activities, which required him to

divulge many personal details, not only of himself, but of his relatives and friends.

[22] Mr. Asad was traumatized and terrified, fearful that he would be imprisoned

without just cause, simply because of his racial and religious background, not because of

anything he had done. He was unable to sleep or eat, and was forced to seek medical

attention for a variety of ailments resulting from the stress. He was unable to concentrate

or work, and took nine days of stress leave from his job at Kinexus. Concerned about his

career, he returned to work, against the advice of his doctor who was of the opinion that

he needed more time to recover from his trauma.

[23] Ms. Sutter was then the company’s Director of Human Resources, and was later

appointed Director of Sales and Marketing in January 2003. From or shortly after 9/11,

she and Dr. Pelech knew about Ms. Stoute’s suspicions and the racial profile basis for

5

them. In fact, Ms. Sutter had many discussions with Ms. Stoute, during which she shared

her own suspicions of Mr. Asad. Dr. Pelech also harboured those suspicions.

[24] Immediately after the RCMP officers arrived at Kinexus to interrogate Mr. Asad,

Dr. Pelech and Ms. Sutter knew that Ms. Stoute had reported him. Within hours of that

first interrogation, they were informed of Mr. Asad’s anxieties and fears which worsened

over time. Dr. Pelech and Ms. Sutter were also aware that Ms. Stoute was speaking about

her suspicions with other employees, and that some of them shared those concerns about

Mr. Asad.

[25] Ms. Stoute also made discriminatory race and religion based remarks to Mr. Asad

both before and after the RCMP interrogations. Although she denied it, I have also found

that Ms. Karia, then an accountant at Kinexus who was later promoted to Controller and,

in addition, subsequently succeeded Ms. Sutter as Director of Human Resources, also

made certain discriminatory remarks to Mr. Asad that he found hurtful.

[26] Finally, Dr. Pelech and Ms. Sutter knew that Mr. Asad was correct in his belief

that a co-worker had reported him to the RCMP. In fact, Dr. Pelech confirmed to Mr.

Asad that a Kinexus employee had made the report, but would not disclose that person’s

identity.

[27] Thus, Dr. Pelech and Ms. Sutter, as the then senior management of Kinexus, knew

that, when Mr. Asad returned to work in early October 2001, he entered what for him was

a poisoned workplace, in which a cloud of suspicion that he had somehow taken part in

history’s most notorious terrorist attacks hung over him. Virtually overnight, Mr. Asad

was transformed from a popular, competent, valued and respected employee into an

object of suspicion, speculation and mistrust.

[28] Before 9/11, he was described as exuberant, enthusiastic and a friendly, social

person. After 9/11, Dr. Pelech and Ms. Sutter described him as “very anxious”,

“traumatically affected”, and “clearly more withdrawn”, and observed that “he looked

around a lot at people” in the workplace.

6

[29] Dr. Pelech, Ms. Sutter and Kinexus had a legal duty to provide him with a safe

and healthy workplace, and Mr. Asad trusted them and expected that they would do so.

However, they failed to fulfill that duty, effectively leaving Mr. Asad to fend for himself.

[30] Although Dr. Pelech and Ms. Sutter knew Ms. Stoute to be a relatively young and

junior employee who was emotionally distraught by the 9/11 attacks, they did not make

any independent inquiries about the basis for her suspicions. At the conclusion of the

evidence at the hearing, Dr. Pelech maintained that Ms. Stoute’s suspicions, which he

shared, were justified, even though he admitted that they were based, in part, on

“mistakes, assumptions and inaccuracies”. More to the point, at the time of the relevant

events, he and Ms. Sutter accepted, apparently without question, what Ms. Stoute said.

[31] They did not advise or instruct Mr. Asad’s co-workers that he must be presumed

to be innocent of any wrongdoing and treated accordingly. Their only plan was to observe

him. In fact, they themselves engaged in racial profiling of Mr. Asad and were part of the

corrosive cloud of suspicion hanging over him in the workplace. Ms. Sutter tried to

counsel Mr. Asad, but her repeated advice to simply “get over it”, “move on”, and go out

and have a good time was unhelpful. In their only conversation about the situation, Dr.

Pelech attempted to persuade Mr. Asad that reporting him to the RCMP was

understandable because he looked like the 9/11 terrorists.

[32] Shortly after Mr. Asad had returned to work, the RCMP advised Mr. Asad that it

had closed its file on him. No charges were ever laid against him, and the RCMP did not

contact him again. Earlier, in reference to his trip, an officer had told Mr. Asad that he

had the misfortune of being in the wrong place at the wrong time.

[33] In his testimony, referring to Mr. Asad’s upset, Dr. Pelech stated: “In my

observation, if people have nothing to hide, they are not so shaken up”, and “Most

indignant people are guilty”. Both he and Ms. Sutter asserted that, if they had been in Mr.

Asad’s position, they would not have been so frustrated or agitated as Mr. Asad. Yet Dr.

Pelech, Ms. Stoute and Ms. Karia were themselves visibly indignant and agitated by Mr.

Asad’s allegations that they had discriminated against him.

[34] Mr. Asad’s situation at Kinexus improved with the passage of time, not because

of any positive action by the company or its management, but because of Mr. Asad’s own

7

determination to re-integrate into the workplace, and because Ms. Stoute was laid off in

February 2002 due to a financial crisis at Kinexus. After a year of rapid expansion,

almost one-third of the staff, including all of the management except for Dr. Pelech and

Ms. Sutter, departed in early 2002. Ms. Stoute returned to the Caribbean region where she

had previously lived. However, she and Ms. Sutter remained in contact, and Ms. Stoute

returned to Kinexus in March 2004, a year after Mr. Asad’s employment had been

terminated.

[35] In addition, for a time after his return to work, Mr. Asad was very useful to Dr.

Pelech in his dispute with Dr. McDermott over the direction and control of Kinexus in the

midst of the company’s crisis. Ms. Sutter told Mr. Asad that Dr. McDermott was critical

of Dr. Pelech’s management and was trying to persuade the company’s Board of

Directors to follow a different course. She urged him to submit reports about the IT

department that criticized Dr. McDermott and supported Dr. Pelech, and she actively

participated in writing them. Dr. Pelech and Mr. Asad met so frequently that Dr.

McDermott complained that Mr. Asad was now reporting to Dr. Pelech rather than to

him. However, once the Kinexus Board had decided to support Dr. Pelech, and Dr.

McDermott had left Kinexus, that aspect of Mr. Asad’s usefulness disappeared, and his

relationship with Dr. Pelech rapidly deteriorated.

[36] I have found that the specific act of Ms. Stoute reporting Mr. Asad to the RCMP

was not an act for which Kinexus, the only respondent named in the Complaint, was

responsible in law, and I therefore do not need to determine if that specific act was

discriminatory or justified. That was the individual act of Ms. Stoute who is not a named

respondent in the Complaint.

[37] However, Kinexus is responsible for the acts and omissions of its employees,

including Ms. Stoute, Dr. Pelech and Ms. Sutter, which are sufficiently connected in law

to their employment. It is clear that Kinexus, through the acts of certain employees,

particularly Ms. Stoute, and the acts and omissions of its President and then CEO, Dr.

Pelech, and its Director of Human Resources, Ms. Sutter, discriminated against Mr. Asad

in his employment. Consequently, I have found on the evidence that Kinexus did

8

discriminate against Mr. Asad regarding his employment because of his race, religion,

place of origin, and political belief, contrary to s. 13(1)(b) of the Code.

D.

No Discrimination in Termination of Employment

[38] However, I have not found that, when Kinexus terminated Mr. Asad’s

employment in March 2003, it discriminated against him under s. 13(1)(a). On a balance

of probabilities, I have found that Dr. Pelech made the decision to fire Mr. Asad because

of Dr. Pelech’s personal priorities and commercial considerations, his perceptions of

himself and Kinexus, and his perception of Mr. Asad as a problem for reasons other than

his race, religion, place of origin, and political belief.

[39] Dr. Pelech’s focus and priority was the survival and performance of Kinexus, in

which he has a very substantial financial and personal stake. Indeed, when Mr. Asad was

on stress leave during his interrogations by the RCMP and suspicions about him were

running high, Dr. Pelech’s concern was not about the police investigation or Mr. Asad’s

health. In Dr. Pelech’s view, the only thing that was a “company matter” was “how to get

this guy back to work”, because he had just returned from vacation, he was needed at

work, and he was paid to do a job that he wasn’t performing while on leave.

[40] Despite the fact that other shareholders own 2/3 of the shares of the company, Dr.

Pelech views himself and Kinexus as essentially one and the same. He most certainly is

the company’s “ultimate decision maker”, a description given by a former manager who

was called as a witness by Kinexus. Dr. Pelech’s view was not altered when the Kinexus

Board, although deciding to support him rather than Dr. McDermott, appointed the CEO

of a major shareholder as CEO of Kinexus, removing that title from Dr. Pelech. The

evidence and Dr. Pelech’s demeanour and conduct throughout the hearing indicate that he

is not given to excessive modesty and he bridles at criticisms of his management and

challenges to his authority, even from the new CEO whom Ms. Sutter described rather

dismissively as “a part-time CEO” and just a “figurehead”.

[41] Over time, Dr. Pelech increasingly saw Mr. Asad as a thorn in his side. Among

other things, Mr. Asad’s salary demands and threats to resign, his unwelcome warnings

of potential problems with the computer system (which Dr. Pelech did not address and

9

which in fact materialized and caused significant problems and loss to the company), his

demands for his overdue annual performance review and overtime pay, and, from Dr.

Pelech’s perspective, his untimely vacations and stress leave, all made against the

backdrop of Kinexus’ cash shortage and the removal of Dr. Pelech’s CEO title, were

sources of considerable irritation.

[42] Dr. Pelech perceived various incidents, including Mr. Asad’s refusal to participate

in certain Kinexus social events, as acts of defiance. Then Dr. Pelech received reports

that, in discussions with other employees, Mr. Asad was openly criticizing him and

questioning his management. Finally, in defiance of direct orders from Dr. Pelech, Mr.

Asad refused to sign and submit Time Sheets that were required for the preparation of

financial statements and reports required pursuant to a federal government program. The

latter represented money in the hands of Kinexus. That was the last straw.

[43] Although Dr. Pelech continued to harbour suspicions about Mr. Asad, I have

concluded that, on a balance of probabilities, his decision to terminate Mr. Asad’s

employment was driven by commercial and personal factors, separate and apart from Mr.

Asad’s race, religion, place of origin, or political belief. Therefore, in terminating his

employment, Kinexus did not discriminate against Mr. Asad and did not contravene s.

13(1)(a) of the Code.

E.

Credibility of Witnesses

[44] Dr. Pelech argued that I should accept the evidence of himself and the other

witnesses produced by Kinexus over the evidence of Mr. Asad. According to Dr. Pelech,

the Tribunal must have regard for the significant educational and professional

accomplishments of himself and his colleagues, pointing to their achievements and the

positions they occupied in Kinexus. He asserted: “You don’t get into these positions

unless you have ability”. In essence, intentionally or not, Dr. Pelech submitted that the

testimony of a highly educated professional such as himself must necessarily be worth

more than that of someone with inferior qualifications.

[45] I reject any such proposition or suggestion. Honesty, integrity, trustworthiness,

and a sense of fairness and justice are quite separate from a person’s education, wealth,

10

power or position. Persons from the most humble backgrounds may possess the finest

human qualities and be totally truthful in their testimony. Conversely, a post-graduate

degree does not necessarily equip its holder with a moral compass and truthful tongue,

any more or less than does a grade school education. Each person must be assessed on his

or her individual human qualities, and the sworn testimony of each witness must be

assessed and weighed in the context of the totality of the evidence.

[46] For reasons which I set out under the heading “Analysis – Credibility of

Witnesses”, I have accepted the evidence of certain witnesses, including some called by

Kinexus, but find much of the testimony of others to be neither credible nor reliable.

F.

Costs

[47] Kinexus, through its representative Dr. Pelech, engaged in improper conduct

throughout the proceedings, which unnecessarily elongated the hearing.

[48] Despite clear directions from the Tribunal set out in three pre-hearing conferences

(“PHCs”), and despite several orders issued during the hearing, Kinexus repeatedly failed

to make full disclosure of relevant and potentially relevant documents in its possession

and control, as required by the Tribunal’s Rules of Practice and Procedure. Indeed, Dr.

Pelech did not even read the Rules until he was specifically directed to do so by the

Tribunal during the hearing, and, in fact, a second order was required when he failed to

comply with the first. Even when disclosure was made, Kinexus sometimes unreasonably

delayed delivery of documents to Mr. Asad’s counsel.

[49] Dr. Pelech, Ms. Stoute, Ms. Karia and, to a lesser degree, Ms. Sutter were evasive

and unnecessarily argumentative in cross-examination, despite directions to answer

questions directly. I also found indicia of collusion among those witnesses, and

determined that much of their evidence was not credible.

[50] Throughout the hearing, Dr. Pelech misrepresented directions that members of the

Tribunal had given at the PHCs, and misrepresented and misquoted evidence that had

been previously given.

[51] Shortly before the hearing commenced, Kinexus contradicted its previously long-

held position that an employee had reported Mr. Asad to the RCMP, asserting that

11

someone else had made the report. That was a specious argument which only served to

confuse and delay Mr. Asad and his counsel in their preparations.

[52] The improper conduct continued to the conclusion of the hearing. In his closing

submissions, Dr. Pelech attempted to include assertions of fact that were never put into

evidence and indeed had never even been mentioned.

[53] Dr. Pelech complained that, because he is not a lawyer, he was disadvantaged by

his unfamiliarity with evidentiary issues and legal processes. He made those complaints,

notwithstanding the substantial latitude he was afforded during the hearing, including the

conduct of his examinations-in-chief of the Kinexus witnesses.

[54] In any event, Kinexus is not an unsophisticated party. By its own evidence, it is a

substantial high tech company whose staff is accustomed to working with a sophisticated

computer system and internet resources. Indeed, the use of those electronic tools and of

the Kinexus website is essential to its business operations, and the collection,

organization and analysis of data are at the core of its business. Kinexus also submitted,

and indeed emphasized, that its management has impressive academic and business

credentials and experience.

[55] The Tribunal’s website and other internet resources offer readily accessible

sources of information and advice. Many unrepresented parties, including individuals

without the considerable human and technical resources available to Dr. Pelech and

Kinexus, are able to effectively research and apply those sources. Yet, in discussions

about procedural issues, Dr. Pelech sometimes blamed his confusion on the Tribunal,

criticizing the Tribunal’s informational material which is available in printed and

electronic formats, and Tribunal staff for, among other things, having suggested that he

seek legal advice for Kinexus. The closing arguments and submissions made by Dr.

Pelech on behalf of Kinexus do not reflect substantive research or consideration of cases

and other material which are readily available on the Tribunal’s website.

[56] Because of its repeated improper conduct, including its repeated failures to

comply with the Rules and orders made by the Tribunal, I have ordered Kinexus to pay

Mr. Asad the sum of $5,000 in costs.

12

G.

Conclusion

[57] Having considered all of the evidence, I have found that Kinexus discriminated

against Mr. Asad regarding his employment because of his race, religion, place of origin,

and political belief, contrary to s. 13(1)(b) of the Code. I have also found that it did not

discriminate against Mr. Asad in the termination of his employment, contrary to s.

13(1)(a).

[58] I have ordered the remedies set out under that heading near the end of these

Reasons.

[59] I have also found that, through its representative, Dr. Pelech, Kinexus repeatedly

engaged in improper conduct throughout these proceedings, including repeated failures to

comply with the Rules and orders made by the Tribunal. I have therefore ordered Kinexus

to pay Mr. Asad the sum of $5,000 in costs.

III EVIDENCE

A.

Exclusion of Witnesses

[60] Before the first witness was called, I made the usual witness exclusion order; that

is, that witnesses be excluded from the hearing room until such time as it is necessary for

them to give their evidence. At that time, seated at Kinexus’ table were three members of

Kinexus’ management: Dr. Pelech, Catherine Sutter and Mira Karia, all of whom

Kinexus intended to call as witnesses.

[61] Dr. Pelech asserted that, at a PHC, the Tribunal had advised Kinexus that three

persons, all of whom would be called as its witnesses, would be allowed to remain

throughout the hearing. Mr. Asad’s counsel, Ms. Chin, objected and produced the

memorandum of the PHC held on October 8, 2004, which had been attended by Dr.

Pelech, Ms. Sutter, Ms. Karia and Ms. Chin. In the memorandum, copies of which had

been sent to the parties, the Tribunal Member who presided at the PHC said, in part:

The matter of who could attend on behalf of the respondent at the hearing

was raised. The respondent would like both Ms. Sutter and Ms. Karia,

both in Human Resources at some time, to be there; Dr. Pelech will be

representing the respondent. Ms. Chin indicated there may be an objection

13

to Ms. Sutter and Ms. Karia both being there throughout the complainant’s

case. I indicated that it would be the Tribunal Member hearing the case

who would ultimately decide on the exclusion of witnesses. I advised that

the respondent should think about who its instructing witness should be

and if either Ms. Sutter or Ms. Karia were excluded, they could be called

as the first witness for the respondent, and then remain in the hearing

afterwards.

[62] In light of the memorandum, I considered submissions from Dr. Pelech and Ms.

Chin. I ordered that Dr. Pelech, as Kinexus’ representative, and either Ms. Sutter or Ms.

Karia, but not both, could remain in the hearing room throughout the hearing. Dr. Pelech

designated Ms. Sutter. Ms. Karia was excluded until she was called to testify. I will return

to this matter under the heading, “Analysis - Credibility of Witnesses”.

[63] That was the first of numerous procedural issues and incidents that occurred

during the course of the hearing, some of which I will refer to in these Reasons.

B.

Ghassan Asad

1. Direct Examination

(a) Personal Background and Immigration to Canada

[64] Mr. Asad was born in Saudi Arabia and resided there for 28 years before

immigrating to Canada in 1998. However, because both of his parents held Jordanian

citizenship, he was a citizen of Jordan, not Saudi Arabia. He became a Canadian citizen

in August 2001.

[65] Mr. Asad’s father now lives in Jordan. His mother is deceased. He has 10 siblings,

three brothers and seven sisters, some of whom reside in Jordan and others in Saudi

Arabia. Mr. Asad immigrated to Canada alone and has no family members in this

country. He is single.

[66] Mr. Asad describes himself as Arab in race and a devout practising Muslim. He

says that, in accordance with his beliefs, he is kind and respectful to others.

[67] Mr. Asad attended King Saud University in Riyadh, Saudi Arabia where he

earned a bachelor’s degree in biochemistry. He worked for several years in that country

as a lab technician, chemist and medical supplies sales representative.

14

[68] Mr. Asad says that he became discontented with the political environment in

Saudi Arabia. Although that country is generally perceived to be very wealthy, Mr. Asad

says that most Canadians do not understand that in Saudi Arabia human rights do not

exist as they do in Canada, and that, from afar, “no-one would understand what’s

happening in Saudi Arabia”.

[69] He heard that Canada is a free and peaceful society with an international

reputation for peacekeeping missions, and a place where, in contrast to Saudi Arabia,

people enjoy freedom of speech. He spent two years preparing to move to Canada, and

was very happy and excited upon his arrival: “I thought this is where I wanted to be”.

[70] However, his first years as a landed immigrant were not easy. He was unable to

find employment as a lab technician, so he supported himself working as a machine

operator while planning to return to school to prepare for a new career. Because of an

interest in computers which he had developed while studying and working in Saudi

Arabia, and the demand for employees skilled in information technology, Mr. Asad

enrolled in IT and business administration courses at Capilano College, first as a part-

time, then a full-time student. He received a diploma in the Business Administration –

Technical Computer Professional Program in May 2001.

[71] In the meantime, because his money was running low, Mr. Asad began looking

for work. He responded to an advertisement posted on the internet for a Bioinformatics

Associate position at Kinexus.

(b) Commencement of Employment at Kinexus

[72] As reflected in its corporate name, Kinexus is engaged in the business of

bioinformatics. Mr. Asad described bioinformatics as a subcategory of biotechnology. It

involves obtaining information from biological sources such as human and animal tissue,

and, through processing, compiling and analyzing data, exploring it for patterns which

may lead to new discoveries, including treatments for diseases. Work in the field requires

a biological and biotechnical background and computer skills. The data resulting from the

bioinformatics process is used either for research and development by, for example,

15

pharmaceutical companies, or for the more immediate commercial purposes of Kinexus

customers.

[73] Mr. Asad submitted his résumé and reference letters from former employers in

Saudi Arabia, and was interviewed by Dr. Joe McDermott, who was then Director of

Informatics at Kinexus. The interview, which took place in mid-August 2000 at Kinexus’

offices located on the UBC campus, went extremely well. According to Mr. Asad, Dr.

McDermott was “so excited about my background, combination of IT and biochemistry,

and my attitude”. Dr. McDermott expressed to Mr. Asad that, rather than working in a

lab, he envisioned Mr. Asad developing an information system which did not then exist at

Kinexus.

[74] He then told Mr. Asad that, as a matter of procedure, he would have to meet the

President of Kinexus, Dr. Pelech, whom Dr. McDermott described as “my boss”. Mr.

Asad said that his meeting with Dr. Pelech was very brief, only a couple of minutes,

whereas he spent approximately 1 ½ hours with Dr. McDermott.

[75] Shortly afterwards, Dr. McDermott offered the position to Mr. Asad. He asked

him to start immediately, but said that Kinexus could only formally commence his

employment at the beginning of September, although Mr. Asad would be paid as a

contract consultant for the remainder of August. Mr. Asad was very excited and happy

about his job, and telephoned his father and other members of his family with the good

news.

[76] Mr. Asad first reported for work at Kinexus as a contract consultant on August 22,

2000. A Kinexus Employment Approval Form, signed by Dr. Pelech as President and

CEO, reflects that, as of September 1, 2000, Mr. Asad became a permanent full time

employee with the following terms of employment:

• Position: Bioinformatics Associate (a job description consisting of nine

paragraphs was attached);

• Reports to: Director of Informatics (Dr. McDermott);

• Salary: $36,000 per annum;

• Stock options: 3,000 shares per annum; and

16

• Health benefits and pension plan.

[77] When his counsel showed him a document titled “Policy and Procedure

Guidelines for all Employees” (the “Policy Manual”), Mr. Asad stated that he first saw a

copy at an Employment Insurance (“EI”) hearing in June 2003, following the termination

of his employment. He pointed to dates on the pages of the Policy Manual which

indicated that they had been prepared on December 20, 2000 and September 21, 2002,

and asserted that he had not been given a copy until the EI hearing.

[78] At the time Mr. Asad commenced his employment, Kinexus had eight other

employees. They were the receptionist, G.L., two lab technicians, D.W. and L.B., and the

following five members of management:

• Dr. Pelech, the company founder and President;

• Dr. McDermott, Director of Informatics, who began his employment as

Kinexus’ first full-time employee in June 2000;

• Catherine Sutter, Human Resources Director;

• Kevin McDuffie, Corporate Development Manager; and

• J.W., Controller.

Of those eight, Kinexus called Dr. Pelech, Ms. Sutter and Mr. McDuffie as witnesses.

[79] Over the course of the next year, Kinexus expanded rapidly. The original eight

employees were joined by others, boosting the staff complement to 24 or 25 by late 2001.

(c) Sign In/Out Sheets and Time Sheets

[80] When Mr. Asad commenced his employment, Dr. McDermott informed him that

working hours were weekdays 9 a.m. to 5 p.m., give or take ½ hour. He did not realize

until he had been at Kinexus for a couple of months that he could come into the office on

weekends, and thereafter he worked on weekends as needed.

[81] Hours worked by all employees were recorded on daily sign in/out sheets which

were kept at the front desk and on which employees recorded their arrival and departure

times. At the end of each month the sign in/out sheets were circulated among the

17

employees, and each would then key in his or her arrival and departure times on each day

into an Excel program, producing one monthly sheet for each employee. These monthly

sheets were titled “Time Allocation Report for (month and year)” but were generally

referred to as the “Time Sheets”.

[82] Each Time Sheet had columns grouped into four broad categories and, under

them, subcategories, as follows:

•

Kinexus – Administration

• Kinetworks – Kinase Profiling, Drug Profiling, Kinase Discovery, and

Service

• Kinformatics – Database Develop(ment), Drug Discovery, and Service

• Kinex – Drug Profiling, Disease Diagnosis, Drug Efficiency, and Service

[83] The basic purpose of the Time Sheets was for employees to allocate percentages

of their hours to various categories and subcategories of work at Kinexus. Mr. Asad

testified that the Time Sheets did not provide any “value added” to his own work, but he

understood that they were “useful” for Kinexus’ corporate calculations. He says that he

did not object to completing the Time Sheets and did not discuss them with management,

saying: “I was asked to fill them in and I did”.

[84] Each completed Time Sheet was signed by the employee, and approved and

signed by the employee’s supervisor. In Mr. Asad’s case, the Time Sheets were approved

and signed by Dr. McDermott until January 2002. In that month, although Dr.

McDermott’s printed name appears, the Time Sheet was signed by Dr. Pelech. Thereafter

Dr. Pelech’s name and signature appear on the Time Sheets as Mr. Asad’s supervisor.

[85] Mr. Asad stated that at the beginning, all of his time was allocated to Database

Development, which included server maintenance. This is reflected in his Time Sheets

for each month from September 2000 through March 2002, although I note an anomaly in

August 2001 when, perhaps as the result of an error, the subcategory “Database

Development” was replaced by “Drug Targe Discovery”. Commencing in September

2001 the subcategory was renamed “Database Management”. In April 2002 some of Mr.

18

Asad’s work percentages were recorded under “Kinexus – Administration”, although the

bulk of his time is recorded under the subcategory called, in that month only, “Database”.

[86] The categories and subcategories were substantially changed in May 2002, so that

the following categories and subcategories appear on the Time Sheets:

• Kinexus – Administration

• Sales – Sales/Marketing

• Commercial Services – Lab, Analysis and Tech Support

• Screen Development – Lab and Analysis

• Collaborator R & D – Lab and Analysis

• IT – R & D and Aministration

From May 2002 onwards, the majority of Mr. Asad’s time (ranging from 72 – 80%) was

allocated to IT – R & D with the balance allocated to IT – Aministration, which I take to

mean Administration.

[87] As revealed later in these Reasons, the Time Sheets played a pivotal role in

subsequent events.

(d) Overtime Pay

[88] With respect to overtime hours worked, Mr. Asad asserts that he was advised that

he could take compensating time off, and that Dr. McDermott told him to feel free to do

so. His Time Sheets indicate that, from November 2000 onwards, he regularly worked on

many, but not all, weekends and some statutory holidays. No-one informed him that he

would be paid for overtime, and he neither requested nor expected overtime pay.

However, Kinexus did pay him for overtime work on two occasions in 2001.

[89] The first arose from a server crash in August 2001. Mr. Asad discovered the

problem when he went to the Kinexus offices during a weekend to do some tasks. He

worked 30 hours over the weekend to fix the problem before Kinexus employees arrived

for work on the following Monday. In recognition of Mr. Asad’s work and dedication,

Dr. McDermott made a recommendation at the next management meeting to compensate

19

Mr. Asad at time and a half for the first 11 hours and double time after that. Not being

part of management, Mr. Asad was not at the meeting, and did not know about Dr.

McDermott’s action until after the fact. The recommendation was approved, and the

overtime pay was included in Mr. Asad’s next paycheque.

[90] The second overtime payment arose from a problem with the loss of e-mails in

November 2001. Dr. Pelech instructed Mr. Asad to come in on a weekend to resolve the

problem. According to Mr. Asad, it was another server problem which he fixed and the

lost e-mails were restored. He did not ask for overtime pay, but this time he expected to

be paid because he had gone into work on the specific instructions of Dr. Pelech. The

overtime payment was made to him very shortly thereafter.

[91] According to Mr. Asad, on neither occasion, was he asked or required to complete

any special forms or provide any additional information. The overtime calculations were

based in both cases on his sign-in/out sheets for the relevant days. He further asserts that

no-one told him that the overtime payments were exceptional. Mr. Asad says that he

worked on numerous other weekends, but did not request overtime pay as he was simply

doing tasks in the usual course of work. However, as a result of the two payments in

August and November 2001, he expected to be paid in case of a major emergency or

when he was specifically instructed to work overtime by his supervisor.

(e) Performance Review

[92] During the first year of Mr. Asad’s employment, the staff of Kinexus had grown

substantially to number 24 or 25. The new employees included Ms. Karia, who was then

employed as an accountant, and Patricia Stoute, who was the receptionist and did other

routine administrative work. There were now five employees in the bioinformatics group,

including Mr. Asad and Dr. McDermott.

[93] On August 22, 2001, precisely one year after the commencement of his

employment, Mr. Asad had his first and, as matters transpired, his only performance

review. He submitted his completed Employee Assessment form, and met with Dr.

McDermott and Ms. Sutter. The results of the review are captured in a four-page pre-

printed document, most of which consists of 25 questions in which Dr. McDermott

20

evaluated Mr. Asad’s job, interpersonal, administrative and management skills by

indicating his answers with checkmarks in one of five columns: Not Applicable, Unable

to Assess, Needs Improvement, Meets Expectations, and Exceeds Expectations. In the

sections relating to job, interpersonal and administrative skills, Mr. Asad scored ten

Exceeds Expectations, and eleven Meets Expectations. The four questions relating to

management skills were all answered Not Applicable.

[94] Dr. McDermott wrote the following comments:

Ghassan is a very hard-working and diligent employee. He works very

hard at keeping current in his knowledge base and is very willing to take

on new tasks. There are times when he needs to plan some of his activities

more. He has been a real asset to the IT team.

[95] Dr. Pelech added the following under “President’s Comments”:

Ghassan is an excellent employee and a tremendous asset to our company.

His dedication is greatly appreciated and he is well liked by his colleagues

and the company management. His creativity, can do attitude and

commitment is very refreshing.

[96] Mr. Asad added the following Employee’s Comment: “Signing this doesn’t

necessarily mean I agree on everything on it. But I am glad to hear and read some nice

comments on my overall performance.” Dr. McDermott changed his responses to two

questions as a result of his discussions with Mr. Asad at the performance review,

upgrading them from “Meets Expectations” to “Exceeds Expectations”.

[97] At the performance review, Dr. McDermott, Ms. Sutter and Mr. Asad agreed that

the scope and nature of his work had changed considerably from his original job

description, as Dr. McDermott had, during the course of the year, assigned Mr. Asad

more and different tasks. In the beginning, Mr. Asad’s job was related to data

compilation, but over time it focussed increasingly on IT.

[98] When he had started at Kinexus, the company only had a number of stand alone

individual computers. He was responsible for building a corporate computer network

“from the ground up”, describing it as essential to Kinexus: “Income is generated by data.

All that data goes through the network and database that I solely designed and built”. Mr

Asad says that he welcomed this challenge, as he enjoyed new opportunities and read

21

books to figure out ways to solve problems. He would think about work while he was at

home or driving his car, and describes it as “the primary focus, if not the only focus of

my life”.

[99] As a result of the performance review, Dr. McDermott said that a salary

adjustment was required to reflect Mr. Asad’s new and increased duties and

responsibilities, and to bring his salary into line with what he could make elsewhere. Ms.

Sutter agreed and promised to check on salaries for similar jobs in industry to use as a

baseline for further negotiations.

[100] At that point, Mr. Asad describes himself as “so happy, so excited by what I was

doing, the environment, the people around me”, and that he could not have asked for

anything more. He says that he was “doing what I really wanted to do. Finding solutions,

using my creativity for my company, the business”. When asked by his counsel to

describe his relationships with his co-workers, he responded: “The best. Couldn’t be

better”. That included Dr. Pelech. According to Mr. Asad, he then had a very good

relationship with Dr. Pelech.

(f) Canadian Citizenship and the Trip

[101] Mr. Asad describes August 24, 2001 as “one of the best days of my life”. That

was the day on which he took his citizenship oath and became a Canadian citizen. He

says that to live in a free country and have a nice life was well worth moving half-way

around the world. As soon as he knew the date of his citizenship ceremony, he made

plans for a celebratory trip. The timing and itinerary of that trip proved to be highly

unfortunate.

[102] On August 24, Mr. Asad attended his citizenship ceremony in the morning,

worked at Kinexus in the afternoon, and went to the airport in the evening. Travelling

alone, he flew to Toronto where he rented a car and toured that city, visiting the CN

Tower and the downtown core. He then visited Niagara Falls, and crossed the border into

the United States. Mr. Asad next drove to Buffalo, Boston and then New York City

where he toured landmarks that he had heard and read about – Times Square, Broadway,

the Empire State Building, and the World Trade Center. From there he drove to

22

Washington, D.C. where he saw the Capitol Building and the White House. He testified

that he did not see the Pentagon and denies knowing its location.

[103] Mr. Asad’s journey continued through Cleveland, Detroit, Windsor, and back to

Toronto, returning by air to Vancouver on September 4. He thoroughly enjoyed his trip

which he said was “really fun, better than I’d expected”.

[104] Upon his arrival at Kinexus’ office on the day of his return to Vancouver, Mr.

Asad told his co-workers about his trip and showed some of them, including Ms. Sutter,

Ms. Stoute, G.L., L.B., and Dr. S., photos he had taken. Mr. Asad said his co-workers

liked his photos, commenting that it looked like he had had a good time, and were

impressed that he had covered so much territory in such a short time.

[105] Ms. Sutter requested Mr. Asad to write an article about his trip for the Kinexus

monthly Newsletter. He and Ms. Sutter composed it together, and it appeared in the

September 7, 2001 Newsletter, together with a photograph of Mr. Asad standing beside

an old motor vehicle at a museum. The one-paragraph item read:

Congratulations to Ghassan who, on Friday August 24^th, was sworn in as a

Canadian Citizen. He celebrated this occasion in his unique way by

travelling more than 5,000 km to visit the most famous cities in the world:

Washington, DC (world political capital), New York City (world financial

capital), Niagara Falls (worlds largest falls), Toronto (Canadian financial

capital) and Detroit (the car capital of the world);

[106] That was followed shortly by the terrible and fateful events of September 11,

2001. It has been said by many that, on that day, the world changed forever. That was

certainly so for Mr. Asad.

(g) September 11, 2001 (“9/11”)

[107] Mr. Asad learned about the terrorist attacks on the World Trade Centre while on

his way to work that morning when a friend called him on his cell phone to ask him if he

knew what was happening in New York City. He first thought his friend was joking

because he had just been to New York. Mr. Asad says that he was shocked and found the

situation unbelievable.

23

[108] Mr. Asad says that, at the Kinexus office that day, “everyone was stressed out and

trying to find out what was happening, how many people had died”. Because there was

no television at Kinexus, people were going on the internet to obtain news. He described

the scenes of people running for their lives in New York as “really horrible”, with special

meaning to him because he had just visited there. He says that there was speculation on

the internet that the attacks had been perpetrated by Arab terrorists. He recalls a co-

worker commenting on that. When someone from Afghanistan was interviewed, the co-

worker asked Mr. Asad if he could understand what was being said, and he replied that he

could not because it was not his language. He felt uncomfortable in the circumstances.

[109] Mr. Asad says that he felt sad and embarrassed to be of the same race and religion

as the apparent attackers, although he had nothing to do with what had happened. He

states that he is absolutely opposed to the September 11 attacks, and that they are

contrary to his religion. He felt angry and sad about the whole thing, and describes

himself as feeling increasingly isolated from his co-workers. According to Mr. Asad his

situation at work worsened during the days immediately following 9/11.

[110] He recalls that when he went to the front desk in the reception area where Ms.

Stoute, who did reception and administrative work, was located, she said: “See what they

did.” According to Mr. Asad, she referred to scenes of Palestinians celebrating and

dancing in the streets, and said that he was always defending the Palestinians, to which he

replied: “Those are two different issues.”

[111] He alleges and describes incidents involving Ms. Karia, who at that time was

Kinexus’ accountant. The first took place near the water cooler in the reception area

where Ms. Karia was conversing with Ms. Sutter. When Mr. Asad joined them, Ms. Karia

said to Ms. Sutter: “Isn’t it suspicious that Ghassan is Arab and Muslim, and he went to

New York and Washington?”, and then she laughed. Mr. Asad says that Ms. Sutter

appeared shocked, and he felt sick to his stomach, excused himself and walked away. In

the second incident, Ms. Karia made similar comments to Ms. Stoute in his presence. He

recalls Ms. Stoute giving him a suspicious look, and Ms. Karia laughing again. The third

alleged incident also occurred in the presence of Ms. Stoute. According to Mr. Asad, Ms.

Karia said that his trip was truly suspicious and that he doesn’t like American politics.

24

She accused him of going to New York and Washington “to give (the terrorists) the zero

time for the attack”, and of being one of them. Mr. Asad says: “When I heard it, it hit my

heart”, and he walked away. Mr. Asad says that he was particularly taken aback by Ms.

Karia’s comments because she is from the Hindu community and should know that “you

can’t dump on someone because of their race”.

[112] Mr. Asad also recalls other conversations with Ms. Stoute before September 11.

He acknowledges that he and Ms. Stoute had argued about the Palestinian situation in

previous discussions. Ms. Stoute had noted that Americans are the biggest donors to

Christian charities, and accused Mr. Asad of hating Americans and criticizing Israelis. He

says he responded that there is a difference between Americans and American foreign

policy, and that he admires American culture which embodies freedom. He contrasted his

conversations with, on one hand, Ms. Stoute and Ms. Karia, with, on the other hand, his

discussions with Dr. McDermott and Dr. S. He says that, unlike Ms. Stoute and Ms.

Karia, Dr. McDermott and Dr. S. could engage in intellectual conversations with him

about political views, the 9/11 attacks, and the Israeli/Palestinian conflicts without

attacking him personally.

[113] Mr. Asad denies making any jokes about the 9/11 attacks or about the World

Trade Center. He says that he only remarked that the photos he had taken of the World

Trade Center were “special” because they had been taken shortly before 9/11.

(h) Start of the RCMP Investigation – September 17

[114] Mr. Asad described the events of September 17. He was working at his desk at

Kinexus at approximately 4:45 PM when Dr. Pelech approached him, saying that some

people wanted to see him. Dr. Pelech led him to the Kinexus boardroom and brought in

two men. Dr. Pelech then left.

[115] The men identified themselves as RCMP officers, and showed Mr. Asad their

badges. He recalls that one of them was with the national security division, and the other

with the hate crime investigation division. They said that they wanted to talk to him about

his recent trip and other issues, but told him not to worry, that they had nothing against

him, and were just interviewing him. Mr. Asad says that, at that point, he felt that it had

25

already been a tough week: “Every day, a new hit; every day, a new story”. However, he

“never thought it would be this serious”, and “I couldn’t believe it”.

[116] The officers asked him questions about his background, his religion, and how

religious he was. They asked him detailed questions about his trip: where he went; where

he ate; whom he met; to whom he talked; the names and addresses of any friends in the

cities he visited and how he had met them. They asked if he knew any of the terrorists

and if he had met with anyone from al-Qaeda, and about his views of Americans.

[117] The officers advised Mr. Asad that someone had complained about him, so they

had to investigate. When Mr. Asad asked who had complained, the officers said that they

did not know but that they had been instructed to interview him. At the end of the

interview, one of the officers assured Mr. Asad that: “This is a free country”. However,

he advised Mr. Asad that, in the present circumstances, he could not express his opinions

about Americans. Mr. Asad says that his reaction was: “He’s a police officer”. He had a

feeling of déja vu, that he had seen this in Saudi Arabia, and that he had come to Canada

for a very different environment. However, he did not say anything more as argument

would not lead anywhere.

[118] Mr. Asad says that the officers possessed a lot of information about conversations

he had had with people at Kinexus, including comments he had made about the

Israeli/Palestinian conflict in conversations with Ms. Stoute, both before and after

September 11. He recalls the officers asking him why he criticized American foreign

policy in that context.

[119] The interview process lasted approximately one hour. Mr. Asad returned to his

desk, turned off his computer, and went home. He did not speak to anyone at Kinexus.

(i) The Second Interview – September 18

[120] Mr. Asad says that he felt sick to his stomach. He could not sleep. Every day since

September 11 had brought “a new disaster”. He felt hostility and discrimination at work,

was interviewed by the RCMP at Kinexus’ office, then returned home and watched the

horror of 9/11 revisited and replayed on television, especially the individual stories of

26

people who had perished. He says that he suffered “endless pain”, for the victims and for

himself. He was exhausted, hurt and sick.

[121] Early the next morning, September 18, one of the RCMP officers telephoned Mr.

Asad at home and asked to see him again, saying that they had a few more questions but

not to worry. They would come and pick him up just after noon at his home. The officer

said to make sure he brought his camera with him. Mr. Asad says that he was certain that

someone at Kinexus had told the RCMP about the photos he had shown at the office.

[122] Mr. Asad telephoned Dr. McDermott and Ms. Sutter to advise them that he would

not be at work that day because he had to go to the RCMP.

[123] The same two officers who had interviewed Mr. Asad the day before came to his

home and drove him first to RCMP headquarters in Vancouver. They left him alone in

the car while they went into the building, emerged shortly after, and drove on to offices in

Richmond. Mr. Asad says that he felt “so stressed” and could not believe what was

happening. When he asked to go to the washroom, one of the officers stood outside the

door. They then proceeded to the interview room.

[124] He was seated on a couch, between the officers. A video camera faced them and

recorded the interview. For approximately two hours, the officers questioned Mr. Asad.

They inquired again about his personal background and beliefs, and asked for further

details about his trip: where he went, stayed and ate; what he had bought with his credit

card. Some questions were new, and related to comments that he had made only at

Kinexus, so he was certain that the complaint to the RCMP must have come from a co-

worker.

[125] The officers asked how he felt about the September 11 attacks and if he supported

them. He responded “No – absolutely”. They inquired about what countries he had been

to, specifically Afghanistan, Pakistan and Iraq, none of which Mr. Asad says he had ever

visited. They questioned him about what mosque he attends and how often he goes, and if

he had ever seen anyone suspicious there. The officers asked him questions about the

Palestinian situation, and about Saudi Arabia, Pakistan and Afghanistan, and if he liked

and had ever met Osama bin-Laden.

27

[126] At the end of the process, the officers drove Mr. Asad home. They removed and

kept the chip from his digital camera, later returning it to him, as promised, with the same

images stored in it. They did not tell Mr. Asad what would be done with the photos and

the information gathered during the interviews.

[127] Mr. Asad asserts that he was linked to 9/11 because he is Muslim and had lived in

Saudi Arabia. On the ride home, Mr. Asad asked one of the officers if they would have

interviewed him if he was Caucasian. The officer laughed and responded that most of the

9/11 terrorists were from Saudi Arabia. Mr. Asad says that he could understand why the

officers asked him about his trip, but that he found the questions about his personal

beliefs offensive.

[128] Mr. Asad also asked if an employee of Kinexus had reported him to the RCMP,

observing that someone in his office doesn’t like him because of who and what he is. The

officer replied that he did not know who reported him, but said that Mr. Asad had been in

the wrong place at the wrong time.

(j) Conversations Connected to the September 17 and 18 Interviews

[129] Mr. Asad testified about his fear that he might be imprisoned. He saw news

reports of people being removed from airplanes simply because they looked Arabic.

During the following several days, he felt ill from stress and lost track of time. He did not

know what to do. He says that he lost faith in everything and did not trust anyone. He was

unable to return to work.

[130] He telephoned Ms. Sutter, he believes the day after his second interview by the

RCMP. He told her about his interviews and asserted that someone at Kinexus had

reported him. At first, she denied that it was anyone at Kinexus. Mr. Asad told her that

the officers had questioned him about comments and events that no-one outside the

company could have known about. She told him to calm down and that it would go away.

They agreed to meet at a café near the Kinexus offices.

[131] Mr. Asad told Ms. Sutter that he had made more money in Saudi Arabia, but he

moved to Canada because of the protection of human rights and freedoms in this country.

He asserts that he complained to Ms. Sutter about racist comments made to him at

28

Kinexus and that he had even been labelled a terrorist. Ms. Sutter responded by observing

that people were in shock over 9/11, and she spent most of their lengthy conversation

attempting to calm him down. He says that, during the course of the conversation, Ms.

Sutter began to think that it might have been a Kinexus employee who had reported him

to the RCMP.

[132] Over the next several days, Mr. Asad and Ms. Sutter had a number of further

conversations on the telephone and in person. He met Ms. Sutter outside the building

where the Kinexus offices were located, but he could not enter. Each time he approached

the building, he would “feel sweaty” and began to shake.

[133] During those several conversations, Ms. Sutter started to acknowledge that

someone at Kinexus had called the RCMP. However, she focussed on calming Mr. Asad

down and telling him that people were reacting irrationally to the September 11 events.

Her advice to Mr. Asad was to go out and have some fun, go down to Robson Street as he

had done in the past. He told her that he could not do that in the circumstances, and

needed to be by himself.

[134] Mr. Asad says that he told Ms. Sutter that he was seeking an apology from

whoever had reported him to the RCMP. She asked if, in his religion, he believed in

forgiveness. She repeatedly urged him to forgive that person and to move on. He replied

that he could not do so unless he knew the identity of the person who had reported him,

and he was satisfied that the individual recognized that he or she had done something

wrong. Ms. Sutter told him that the person had changed and now thought differently.

When Mr. Asad asked how he could be assured of that, Ms. Sutter replied: “I just know.”

[135] Mr. Asad acknowledges Ms. Sutter’s efforts, but says that her words, although

“nice” and “calming”, were not helpful. The issue, he says, was too big, too important to

be changed merely by such words.

[136] Ms. Sutter attempted to assure him that people at Kinexus liked him and wanted

him to return to work. He asked her if she could know how horrible it felt when people

around you think you would blow up the building. Mr. Asad said that he could not return;

he was too stressed and nervous. Ms. Sutter suggested that he try it in a couple of days.

29

Mr. Asad asked for some additional time off. After taking nine working days off, Mr.

Asad returned to work on October 1.

[137] During that time, Mr. Asad telephoned Ms. Karia. According to Mr. Asad, she

was aware that the RCMP had interrogated him. He asked her two or three times if she

knew who had reported him to the RCMP. She said she did not. He then asked her if she

had reported him, and quotes her as replying: “How could you think that? I wouldn’t do

that.” Mr. Asad adds that Ms. Karia advised him that her parents, with whom she lived,

were uncomfortable about him calling her because of the RCMP interrogation.

[138] Mr. Asad also telephoned Ms. Stoute and asked her the same questions. Ms.

Stoute also denied reporting him to the RCMP and said that she was shocked that Mr.

Asad would ask her those questions.

[139] According to Mr. Asad, he conversed during his stress leave with only one other

Kinexus employee, Dr. McDermott. That took place within a day or two after the first

RCMP interrogation. It was a very long telephone call, and he appreciated Dr.

McDermott’s approach, which he described as very rational and calming. Dr. McDermott

assured him that he knew Mr. Asad had not been involved in the terrorist attacks, that

every nation has good and bad citizens, and that people were in total shock because of

9/11 and behaving irrationally. They also talked briefly about some technical work

matters.

(k) Medical Attention and Report

[140] During his stress leave, Mr. Asad sought medical attention from his family

physician, Dr. Robinson, whom he saw on September 24 and 27. Mr. Asad says that he

was very ill, suffering nosebleeds, diarrhea, and loss of concentration, and was very low

emotionally. In his medical report addressed to Mr. Asad’s counsel and dated September

7, 2004, Dr. Robinson briefly outlined Mr. Asad’s narrative of his trip, his assertion that

someone at Kinexus had reported him to the RCMP, and his interrogations by the police.

Dr. Robinson referred to Mr. Asad being “informed on by a colleague to the RCMP” as

“clearly a devastating accusation for him”. Dr. Robinson said, in part:

30

… When I saw him on September 24 2001 in my office, he complained of

symptoms of feeling very nervous and anxious, accompanied by undue

sweating; he had been unable to work for a period of one week specifically

because of poor concentration and sleeplessness, he had diarrhea, feelings

of very low mood on a scale of 1-2 out of 10, and he had been crying a lot.

I asked him if he felt suicidal, and he replied no and that it was not allowed

in the Islamic religion. His self esteem was very low and he indicated he

had experienced racial slurs in his workplace. I made the diagnosis of

depression and stress which I felt was to a severe degree. For treatment I

recommended a 2 week period away from work on medical grounds and I

strongly advised an antidepressant but he refused any medication. I also

advised that he obtained counselling, but he was unable to take advantage

of this due to financial restrictions. I asked him to return to see me in one

week.

I next saw Mr. Asad on September 27 2001 when he reported he was still

having trouble sleeping; I had a long talk with him about the benefits of

antidepressants; however he remained hesitant to try these as he felt he

should be able to cope without medications. Despite my noting that he was

not functioning very well, he insisted that he wanted to return to work and

give it a try. Accordingly he asked me to supply him with a note stating he

was off work for medical reasons from September 18 - October 1 2001.

[141] Mr. Asad declined to take antidepressants because, according to his religious

beliefs, substances, including such drugs that affect your state of mind and induce an

artificial state of happiness, are forbidden. He states that, in accordance with the way he

was brought up, he relied upon prayer and reading the Koran to get through the

difficulties.

[142] Mr. Asad also confirms that Dr. Robinson advised him that he was not ready to

return to work, but he told his doctor that he had to go back. Mr. Asad had already

discussed this with Ms. Sutter. He says that he needed a job and was eager to resume his

career. Consequently, he returned to work at Kinexus on October 1.

(l) Return to Work and Newsletter Article

[143] Ms. Sutter and Dr. McDermott were pleased by his return. However, Mr. Asad

describes the atmosphere as:

… very tense. Everyone was very quiet. You could really see the tension.

People didn’t talk or joke or do anything. Too formal actually.

31

[144] Upon his return to work, Ms. Sutter advised Mr. Asad that there were many

rumours circulating around the company about his absence. He thought that everyone

knew about his RCMP interrogation, but was told that some employees thought he had

been on strike because he hadn’t received a salary increase. In order to still the rumours,

Ms. Sutter suggested that Mr. Asad submit an article for the Kinexus Newsletter. The

following, which they wrote together, appeared in the October 2, 2001 Newsletter:

Ghassan’s Story

In case you were wondering where I have been for the last 1 ½ weeks, this

is my story:

At 4:45 pm Monday, September 17, 2001, two RCMP officers came to the

Kinexus to ask me some questions regarding my recent trip to New York

and Washington, D.C. Apparently, someone thought that this trip (the one

I had planned in advance and told everyone about) combined with my

Arabic background, (that I am proud of as well as being proud of being

Canadian) could be related to the September 11^thincident in N.Y. and

called the RCMP to report it. After spending approximately 1 hour with

the RCMP answering some questions, I went home. The next day, the

RCMP called to see me again, to ask me some more questions about my

trip, my culture, my background, etc. for another 2 hours. At the end of the

session they said “we won’t be calling you back again”. And they didn’t.

Following this, I took the next week off to recover and readjust from this

traumatic incident. Now I have put it behind me and am going forward. If

anyone has any questions, please feel free to talk to me about it

(absolutely!). Also I would like to thank everyone who called me at home

to offer their support during this difficult time.

[145] Mr. Asad says that he originally wished to talk more about his trip, the RCMP

interrogations, and the person who had reported him, but Ms. Sutter told him to keep it

brief. He adds that the last sentence was inserted at his suggestion, and refers to Ms.

Sutter and Dr. McDermott.

[146] Notwithstanding the publication of the article, Mr. Asad asserts that the

atmosphere in the office continued to be tense and uncomfortable. Only one co-worker

spoke to him about the article, asking him if the RCMP had been mean to him. He replied

that what they did was mean but they did not torture him.

32

(m) Continuation of the RCMP Investigation

[147] As matters subsequently transpired, Mr. Asad’s contacts with the RCMP did not

end with the second interview on September 18. He received further telephone calls from

one of the officers with follow-up questions and requests for more addresses of people to

whom he had referred in the earlier interviews. He was also asked if a particular person

had attended flying school. Then, on Thanksgiving Day, the RCMP called once more,

asking to meet him again. Although Mr. Asad asserted that he had already told them

everything, he agreed to meet the officer at a coffee shop.

[148] This interview lasted 1 ½ hours. By this time, American forces had begun their

operations in Afghanistan, so the officer asked questions about Mr. Asad’s views on that

and about the Taliban. He asked Mr. Asad why he had not gone to the Statue of Liberty

but had taken photos of the World Trade Center while in New York, and if he had taken

and shown anyone photos of the Pentagon. Mr. Asad told the officer he had never been to

the Pentagon and did not know where it was. He says he was sick of answering questions.

[149] When he subsequently received another call from the officer, he decided to file a

complaint with the RCMP and went to their office. He told the officer who met him that

he just wanted to “get rid of this thing”, and “If you have something, arrest me”. The

officer reviewed Mr. Asad’s file, observing that his background and trip to New York

were “big red flags”, so he should not blame the officers who conducted the

investigation. However, she said that she would try to finalize things. Mr. Asad says that

he was very impressed by her attitude.

[150] On the following day, one of the officers who had interrogated Mr. Asad called to

say that he had been cleared, there was nothing against him, and they were closing the

case. He promised Mr. Asad that they would not call him again. That was the last time

the RCMP contacted Mr. Asad.

(n) Interactions with Dr. Pelech, Ms. Stoute and Ms. Karia

[151] In the meantime, Mr. Asad had asked to speak to Dr. Pelech in his office within

the first couple of days after his return. It was his first meeting with Dr. Pelech since the

RCMP interrogations. Mr. Asad says that he had two things on his mind: to ensure that

33

there would not be a repetition of the racial comments that had been made to him; and to

clear up the RCMP issue. He wanted to know who had reported him to the RCMP in

order to clear the air, forgive that person, and “get it behind us”. He started to explain to

Dr. Pelech that his work environment was very stressful and referred to specific

comments that had been made in the office following September 11.

[152] According to Mr. Asad, Dr. Pelech’s reaction was not what he had expected. Dr.

Pelech defended the comments and the report to the RCMP, saying that you cannot blame

people for doing and saying what they did, and that the trauma of 9/11 was so big, there

was good reason for people to do what they did. Dr. Pelech said that people were

paranoid. As further justification, Dr. Pelech then asked Mr. Asad if he had seen the 9/11

terrorists’ pictures on television, and said that they looked like Mr. Asad.

[153] When Mr. Asad asked about the person who had reported him to the RCMP, Dr.

Pelech said that the person had come to him and had changed. The person felt that he or

she had a duty to report Mr. Asad, but felt sorry about what had happened. Mr. Asad

asked, if that person felt that way, why he or she wouldn’t come to him and apologize. He

requested Dr. Pelech to ask that person to apologize to him. Dr. Pelech refused and said

that he would not betray the individual.

[154] The meeting was quite lengthy. Mr. Asad believes that it lasted 30 minutes – one

hour, but says that he was too stressed to focus on the time. He left the meeting very

disappointed and frustrated:

It didn’t go anywhere. Just went back and forth. He was the President and

CEO. He was the last person I could go to. It ended there.

In Mr. Asad’s view, Dr. Pelech had taken “the other side’s position”. He was surprised

and offended. He says that he “would not expect someone who is President and CEO to

take a position that is racial and defend it”.

[155] Mr. Asad was particularly disappointed and frustrated because, until then, he and

Dr. Pelech had enjoyed a very good relationship. He says that they liked each other and

shared mutual respect. He had gone into the meeting with Dr. Pelech, expecting that the

issues would be resolved that day. It was not.

34

[156] The situation at Kinexus continued to trouble Mr. Asad. He described his co-

workers as follows: “Some were supportive, some were neutral, and some were

suspicious of me”. He asserts that the latter treated him differently than before. They saw

“me through my race, religion and culture”, and “looked down on me”. When asked what

he meant by “suspicious”, he said that he could see it in the way they interacted with him,

observing that they were not comfortable dealing with him, seemed scared of him, and

tried to avoid him. When asked who was suspicious of him, Mr. Asad identified Ms.

Stoute, Ms. Karia and Dr. Pelech.

[157] Mr. Asad says that Ms. Stoute was not convinced that he did not go on his trip to

meet the 9/11 terrorists. He quotes her as saying, a couple of weeks after he had returned

to work, that she did not feel comfortable with how Arabs think, describing them as “so

weird” and wanting to destroy America. She then added that she was speaking about

Arabs in general, not specifically Mr. Asad. She also described Arabs as “unpredictable”.

[158] According to Mr. Asad, Ms. Karia had been more open, courteous and friendly

before September 11. He believes that she lost trust in him and became more cautious

after that time, so that their subsequent relationship was one of “work is work”.

[159] Mr. Asad says that Dr. Pelech “switched 180 degrees” after September 11: “He

didn’t respect me any more. Ignored me all the time … He would just ignore me when I

wanted to talk about work-related issues. He became a different person”. Mr. Asad

asserts that he tried to discuss the comments made by Ms. Karia and that he felt unsafe

and uncomfortable in the workplace, but Dr. Pelech totally ignored his concerns.

[160] When asked by his counsel if he now knew who had reported him to the RCMP,

Mr. Asad responded: “With very high certainty, it would be Patricia Stoute, but I can’t be

certain. I used to go back and forth between Mira (Karia) and Patricia, but now it’s more

likely Patricia than Mira”.

(o) Kinexus Social Functions

[161] Mr. Asad describes organized social functions at Kinexus and says that, prior to

September 11, he attended and enjoyed all of them. The first post – 9/11 function was an

annual potluck, organized by Ms. Sutter, in which each employee would bring a dish to

35

share with all. It was held in November in the Kinexus boardroom. He did not attend,

saying that: “In my culture, we don’t share food with people we know hate us or who are

uncomfortable with us”. Ms. Sutter was unhappy when informed by Mr. Asad that he

would not attend and tried to persuade him to change his mind. However, he told her that

no-one had apologized or explained to him about what had happened, and that Dr. Pelech

had not done anything about it.

[162] After the potluck, Dr. Pelech asked Mr. Asad why he had not attended, and said

that he should be part of the company. According to Mr. Asad, he replied that he is part

of the team. However, he had tried to discuss his concerns with Dr. Pelech, but it had

made no difference to Dr. Pelech and he had not taken any action. When his counsel

asked him if Dr. Pelech had ever inquired if he was still being subjected to comments

about his race, religion or political beliefs, Mr. Asad replied: “No, he never cared

actually”.

[163] The next function was the Kinexus Christmas party on December 21. Once again,

Ms. Sutter attempted to persuade Mr. Asad to attend. Mr. Asad reiterated his reason for

not going, and said that if there was a party without food, he would go, but he would not

be forced to attend the Christmas party which was being held at a restaurant. Ms. Sutter

told Mr. Asad that the person who had reported him to the RCMP did not hate him, but

Mr. Asad reiterated that the issue was very serious and had not been resolved. He says

that Ms. Sutter did not really understand his position, telling him to put it behind him and

to get over it; and that “she just wanted everyone to be happy”.

[164] Dr. Pelech then approached Mr. Asad shortly before the Christmas party, and told

him that he had to attend. Mr. Asad tried to explain that, under the circumstances, he

could not share food with the person who had reported him to the RCMP. Dr. Pelech said

that he had thought they were going to put it all behind them and move on. Mr. Asad says

that he was surprised by that comment, and reminded Dr. Pelech that he had asked him to

resolve the issue. However, nothing had been done, people continued to look at and

treated him differently, and he continued to feel stress and pressure because of the

situation. According to Mr. Asad, Dr. Pelech replied that it had been resolved, again told

Mr. Asad that he had to attend, and walked away.

36

[165] The Christmas party was held during the afternoon. Mr. Asad remained at work.

After the party, Dr. Pelech and Ms. Sutter returned to the Kinexus office. According to

Mr. Asad, Dr. Pelech was very angry, yelling at Mr. Asad and lecturing him for five

minutes about his non-attendance. Mr. Asad again tried to explain his reason, but says

that Dr. Pelech would not listen and continued to lecture him. Ms. Sutter then gave him a

card, gift, and bonus cheque, which all the other employees had also received. He then

went home.

[166] Mr. Asad says that he was unhappy that Dr. Pelech was so upset. However, in his

view, Dr. Pelech was not “giving me the right place to work”. Mr. Asad insists that he

had continued to work in a very professional way with the people who had made racist

comments, but he objected to sharing food with them. That evening, he sent the following

e-mail to Dr. Pelech:

Since I started with Kinexus, I have big commitment to my company.

Beside that, I have great respect and appreciation towards you. My respect

to you is much more than respect to a manager; it is a big respect to

yourself as a person. The only thing I can say is I am really proud of you

being my manager.

I didn’t feel comfortable when you ordered me doing something (which is

joining the Christmas party) and I didn’t come. I am willing to listen to

any order from you, but it was really hard on me to do it. Actually, I

couldn’t do it.

You know everything about what happened to me. I can’t share good time

and party with someone who was very aggressive and eager to destroy my

life. The result of that: a videotape recorded by RCMP that reveals all

details in my personal life, as well as my close friends information. And

don’t forget having my name is in the to watch list. Something you know,

when the war on Afghanistan started, they called me on Thanksgiving Day

to ask me how do I feel towards that war, and some other stupid questions.

And, of course, you never know what could happen in the future specially

with the new laws where police can detain someone without charges for 3

days, and no right to remain silent.

I didn’t move half way across the world away from my family, friends,

life, and everything I have to be humiliated. I don’t accept that racial

profiling, nor I accept that treatment. Even though they have no charges

what so ever, but still, they insisted to record that videotape, as well as

taking my personal pictures. I don’t accept that. All that happened just

37

because someone that you want me to party with. I am a human and I have

feelings like others.

[167] Dr. Pelech did not respond to that e-mail, and no discussion ever occurred

between him and Mr. Asad about the e-mail.

[168] Mr. Asad says that during the next several months, he focussed on doing his job

as well as possible. Although his relationships with some of his co-workers improved, he

continued to feel tension with certain people, specifically Dr. Pelech, Ms. Karia and Ms.

Stoute.

[169] In the summer of 2002, a little less than a year after 9/11, he proposed to Ms.

Sutter that he host the annual Kinexus summer party. Ms. Sutter said that she would have

to get permission from Dr. Pelech. A couple of days later, she advised Mr. Asad that Dr.

Pelech was wondering what kind of party he had in mind. He explained that he was

planning to serve Arabic food to expose his co-workers to his culture. Ms. Sutter later

returned and said that Dr. Pelech had given his permission, but Mr. Asad says that he felt

he had done so reluctantly.

[170] Although he describes the party as a success, he was disappointed that he did not

perceive any subsequent change in the attitudes of Dr. Pelech and Ms. Karia. By this

time, Ms. Stoute was no longer employed by Kinexus although, as revealed in the

subsequent evidence of Kinexus’ witnesses, she returned after Mr. Asad’s employment

had been terminated.

(p) Salary Adjustment and Job Title

[171] As agreed during Mr. Asad’s August 22, 2001 performance review, Ms. Sutter

completed her compilation of salary information in November. Mr. Asad drafted a new

job description and title for his position, and circulated them to Ms. Sutter and Dr.

McDermott. Following some discussion, agreement was reached at the end of November

or early December. Mr. Asad’s salary was increased to $55,000 per annum.

[172] However, it was also agreed that the salary increase would not be implemented

until after Kinexus had completed a then pending $1 million financing. Upon completion

of that financing, the salary increase would be paid retroactively to January 1, 2002. That

38

is reflected in a Salary Increase Form dated December 5, 2001 and signed by Dr. Pelech.

Mr. Asad received the retroactive pay in June 2002, and thereafter he was paid at the

increased rate.

[173] According to Mr. Asad, his stock options were also increased at that time from

3,000 to 6,000. However, the Salary Increase Form states, under the heading: “Stock

Options”, that he was to receive “3,000 shares per annum, as per original Employment

Approval Form”. Mr. Asad was unable to explain the discrepancy, saying that he had not

noticed it, and had never exercised any of his options.

[174] Mr. Asad’s new title was “Systems Analyst and Database Architect”. His duties

and responsibilities were set out in the Job Description under three categories: Network

Administrator and Support; Database Architect, Administrator and Developer; and

Systems Analyst & Software Architect. He says that, at that point, he was very happy

with his new job description and title, and that he did not ask for a management title. At

that time, Dr. McDermott, the Director of Bioinformatics, was the IT manager, and Mr.

Asad continued to report to him.

(q) Kinexus Personnel and Financial Issues

[175] Mr. Asad says that in the spring of 2002 Kinexus ran short of cash and laid off

seven employees. Among those who departed were: J.W., the company’s Controller;

L.A., the Sales and Marketing Manager; Mr. McDuffie, the Corporate Development

Manager; and Ms. Stoute. Ms. Karia was subsequently promoted to Controller.

[176] Dr. McDermott resigned and left Kinexus in April 2002. At one point, Kinexus’

management consisted of Dr. Pelech, Ms. Sutter and Ms. Karia. Around that time Dr.

Pelech’s position and title changed. His title of CEO was removed and given to David

Turner. Mr. Turner was not an employee of Kinexus. He represented the outside

shareholders of the company; that is, investors who were neither employees nor involved

in the day-to-day management of the company.

[177] Mr. Asad says that, before Dr. McDermott’s departure, he learned from Ms. Sutter

and others of serious disagreements between Dr. Pelech and Dr. McDermott. Ms. Sutter

approached him to prepare reports relating to IT and Dr. McDermott’s performance. She

39

advised Mr. Asad that Dr. McDermott was questioning and challenging Dr. Pelech about

decisions he had made as President and CEO. The disagreements had reached the

shareholders of Kinexus, and Ms. Sutter insisted that the reports had to be prepared so

that they supported Dr. Pelech.

[178] A 39-page report marked “Confidential Information” about “Concerns with

Information Technology Department”, is addressed to “Human Resources, Kinexus

Bioinformatics Corporation” and dated April 4, 2002. The report is highly critical of Dr.

McDermott’s performance. Mr. Asad asserts that it was produced at Ms. Sutter’s request.

Although it indicates Mr. Asad as its author, he says that he and Ms. Sutter, who was then

the Human Resources Director, wrote it together. Upon completion, it was delivered to

Dr. Pelech.

[179] In his testimony, Mr. Asad says that he really liked and respected Dr. McDermott,

describing him as a very good scientist and person. They had good personal and working

relationships. However, he also says that Dr. McDermott was “not strong in computers”,

and they disagreed about judgments and decisions involving computer technology. In

fairness, he adds that, although he has a Ph.D. in genetics and biology and was Director

of Bioinformatics, Dr. McDermott should not be expected to be too knowledgeable about

computers.

[180] With Dr. McDermott’s departure, Mr. Asad assumed greater responsibilities and

additional duties, and he reported directly to Dr. Pelech. However, no announcement was

made to the staff. According to Mr. Asad, when someone is promoted to a management

position, the appointment is announced in the Kinexus Newsletter. No such

announcement was ever made, and he maintains that he was never promoted to a

management position.

(r) 2002 and 2003 Technical Reports on IT Issues

[181] At Dr. Pelech’s request, Mr. Asad prepared other reports in March and mid-April

2002 and on January 9, 2003, which focussed on technical issues:

• IT Strategy Overview for Year 2002 at Kinexus (the “2002 Overview”);

• IT Status Report on mid-April 2002 (the “April 2002 IT Status Report”); and

40

• IT Assessment @ Kinexus (the “January 2003 IT Assessment”).

[182] In tabular form, the reports identified specific problems, current and potential, in

the IT system at Kinexus, and offered detailed analyses, including, in each case, the

consequences of failing to address the problem, the degree of severity, current status, and

suggested remedy. The first item in the April 2002 IT Status Report specifically

identified firewall hardware and software problems. Mr. Asad says that he was

particularly concerned about a firewall failure which would have the most serious

consequences for Kinexus.

[183] Mr. Asad sent copies of each of the reports to Dr. Pelech, and attempted to discuss

them with him. They began a discussion on the April 2002 IT Status Report, but were

interrupted when Dr. Pelech had to leave. According to Mr. Asad, during their meeting,

Dr. Pelech did not pay attention and seemed disinterested. He promised to meet again and

resume the discussion, but that never happened. Mr. Asad asserts that he asked Dr. Pelech

on numerous occasions to discuss his reports, but he always responded that he would do

it later. Mr. Asad says that Dr. Pelech showed no interest in his reports, even though he

had requested Mr. Asad to prepare them.

[184] According to Mr. Asad, prior to 9/11, he and Dr. Pelech would chat about work

and life in general, and Dr. Pelech would show him respect. After 9/11, Dr. Pelech

showed him no respect or interest, even on critical business issues. Mr. Asad says that

this caused him more and more stress, and made him feel very bad.

(s) Photograph on the Kinexus Website

[185] Mr. Asad says that, in August 2001, a decision was made to post on the Kinexus

website photos of people who had made “remarkable achievements” for the company,

being: the then members of the management team (Dr. Pelech, Dr. McDermott, Ms.

Sutter, Mr. McDuffie, and J.W., the then Controller); Dr. S.; and Mr. Asad.

Consequently, Mr. Asad’s photo appeared on the website when it was launched on

September 11.

[186] Approximately one year later, in early September 2002, Mr. Asad’s brother

telephoned Mr. Asad from Saudi Arabia to ask if he was still working at Kinexus because

41

his photo was no longer on the website. When Mr. Asad checked, he discovered that the

other photos were still there but his was missing. Mr. Asad says that he was never

advised that his photo would be removed, and he did not discuss its removal with anyone

at Kinexus.

[187] Referring to computer-generated records produced and disclosed by Kinexus at

the request of his counsel, Mr. Asad says that they reflect that the link to his photo was

taken off the website from August 7, 2002 until it was restored on June 27, 2003. He had

filed his Complaint on May 1, 2003.

[188] According to Mr. Asad, Dr. Pelech was fully responsible for the contents of the

website, and was the only person who would issue any instructions in that regard.

(t) Computer System Crashes – October and November 2002

[189] In the fall of 2002, Mr. Asad decided to visit his family in Jordan, and applied for

vacation leave December 2 – 30, 2002. As evidenced by a Request for Leave Form, Dr.

Pelech approved the request on October 4.

[190] At the end of October, the Kinexus server crashed. Mr. Asad fixed it. However,

almost immediately thereafter, the firewall crashed. In his April 2002 IT Status Report to

Dr. Pelech, Mr. Asad had detailed the consequences of a firewall hardware or software

problem: Kinexus employees would have no e-mails and no access to the internet, and the

website would be down. In short, Kinexus employees would be cut off from their usual

means of communication with the outside world, including their customers, potential new

customers, and sources of outside information. He had ranked the severity of such a

problem as 5, the highest level, and had stated that, in its current state, Kinexus would

have to wait for an outside company to come in and fix it. He had suggested remedies to

avoid such a situation.

[191] Dr. Pelech and Ms. Sutter were in Florida at the time of the firewall crash. Mr.

Asad telephoned Dr. Pelech. Dr. Pelech initially instructed him to fix the problem at any

cost. Mr. Asad says that he had no training to fix a firewall, and that he had asked for

such training but his requests had not been approved. He called a software consultant who

identified the problem as a hardware issue. Mr. Asad contacted a hardware consultant

42

who was available at a cost of $150 per hour. Mr. Asad says that he called Dr. Pelech for

authority to hire the consultant, but Dr. Pelech refused.

[192] Mr. Asad says that he was left with no choice. He bought two books at a cost of

$200 from his own money and trained himself. He worked most of each day, including

weekends, in November to fix the problem, finally resolving it during the last week of

November. In the meantime, Dr. Pelech and Ms. Sutter had returned from Florida in mid-

November.

[193] Mr. Asad says that he was very stressed throughout this time, as all of the

employees were complaining and some were blaming him for the problem. He tried to

explain that he was doing his best, and that he had tried to warn management but his

warnings had gone unheeded. Little work was being done, as everyone was dependent on

their computers. Only one computer was functioning normally. Mr. Asad says that he had

initially tried to fix the problem with a home grade firewall, but it could not handle the

volume of traffic at Kinexus and kept shutting down, so he installed it on that one

computer while continuing to work on fixing the overall firewall problem.

[194] According to Mr. Asad, Dr. Pelech constantly complained about the computer

problem, and showed him no respect, either ignoring or yelling at him.

[195] Shortly before Mr. Asad had resolved the firewall problem, Dr. Pelech called him

to a meeting with himself and Mr. Turner. They were concerned about Mr. Asad’s

imminent vacation, and Mr. Turner asked Mr. Asad if he was happy about leaving with

the firewall problem unresolved. Mr. Asad says that he assured Mr. Turner that he would

do everything possible to fix it before he left, and that Mr. Turner was satisfied, although

Dr. Pelech was unhappy.

[196] After fixing the firewall, Mr. Asad trained a co-op student how to troubleshoot

problems with the server. The student had been hired to work in the bioinformatics

department and cover for Mr. Asad during his vacation, and Dr. Pelech had instructed

Mr. Asad to train him. Although he says that it was impossible to fully train the student

how to set up the firewall, Mr. Asad gave him the steps to follow in case of any problem,

and told him to telephone or e-mail him if he needed further assistance. In fact, the

student did contact Mr. Asad by telephone and e-mail while he was on vacation, and Mr.

43

Asad says that he was able to very quickly provide him with the necessary information

and instructions.

[197] Having resolved the computer problems and trained the student, Mr. Asad decided

to take off the last two working days of the month, November 28 and 29. He told Ms.

Sutter that he had worked so many hours in November that he had been unable to prepare

for his trip, and had not yet purchased gifts for his family. Ms. Sutter said that he had to

speak to Dr. Pelech about that. Mr. Asad said good-bye to his co-workers and went home.

He says that he intended to telephone Dr. Pelech, but before he could do so, Dr. Pelech

called him. Dr. Pelech was not happy. According to Mr. Asad, he gave Dr. Pelech the

same explanation that he had provided to Ms. Sutter. Dr. Pelech asserted that the systems

were not ready. Mr. Asad replied that they were and that he had trained the co-op student.

Dr. Pelech was not satisfied, and insisted that Mr. Asad report to work. Mr. Asad asserts

that Dr. Pelech stated that Kinexus would pay him for the two days.

[198] Mr. Asad returned to work for the last two working days of November. He says

that he did not have to do any further work on the firewall, but spent his time on another

internal server and with the co-op student. He says that he chatted with Dr. Pelech during

those two days about general matters, nothing specific. He then left on his vacation as

scheduled.

(u) Overtime Pay and Requests for Performance Review

[199] According to Mr. Asad, immediately before those last events, he had gone to Ms.

Sutter on November 27 and asked her to prepare his Time Sheets to reflect the overtime

that he claims Kinexus owed him. He told Ms. Sutter that he asked her to do this to

ensure that his overtime pay would be included in his next paycheque.

[200] Mr. Asad says that, during one of their telephone conversations in November

while Dr. Pelech and Ms. Sutter were in Florida, Dr. Pelech had promised him overtime

pay to fix the computer problems. He says that he was to be paid overtime from October

28 when the server had crashed, and thereafter for the overtime required to fix the

subsequent firewall crash. In Mr. Asad’s view, this promise was consistent with the

overtime payments which he had received in August and November 2001. Each situation

44

involved substantial amounts of overtime work to deal with emergencies, and, like

November 2001, he was specifically directed to do the work by Dr. Pelech.

[201] According to Mr. Asad, Ms. Sutter did not object, and she did not indicate to him

that he was not entitled to receive overtime pay. She prepared the Time Sheets for the

months of October and November 2002, printed them, kept a copy of each for her own

records, and gave copies to Mr. Asad.

[202] A couple of days after Mr. Asad’s return from vacation on December 30, he

discovered that he had not been paid for his overtime hours. He asked Ms. Sutter, noting

that she had already calculated his overtime. She responded that, according to Kinexus’

policy, managers were not paid overtime. Mr. Asad denied that he was a manger. Ms.

Sutter said that the matter of his overtime would be discussed at Mr. Asad’s performance

review. By that time, his annual performance review was over four months overdue, as

the only preceding one had occurred on August 22, 2001. When he asked when it would

be held, Ms. Sutter responded that it would be in a week or two. Since Dr. Pelech had

replaced Dr. McDermott as Mr. Asad’s supervisor, he must be involved in his

performance review.

[203] A few days after January 1, 2003, all Kinexus employees were instructed to

complete and submit an Employee Assessment form and other documents required for

their performance reviews. Mr. Asad handed in his documents to either Ms. Sutter or Ms.

Karia, or both. By that time, Ms. Sutter had been appointed Director of Sales and

Marketing. Ms. Karia had been appointed to succeed Ms. Sutter as Human Resources

Director, in addition to her ongoing duties as Controller.

[204] Mr. Asad says that he was very anxious to have his performance review. In

particular, he wanted to discuss two related issues: his claim for overtime pay; and the

assertion, with which he disagreed, that he was part of management and therefore

ineligible for overtime pay. He says that he repeatedly asked Dr. Pelech, Ms. Sutter and

Ms. Karia to schedule the review. However, they all told him that Dr. Pelech was too

busy.

45

(v) The Management Position Issue

[205] According to Mr. Asad, during their discussion in early January 2003, Ms. Sutter

first asserted that he was a manager, but then asked him if he would accept a management

position if it was offered to him. He says that he replied that he would only do so if he

had actual management authority to do such things as buying proper software licences,

saying that, otherwise, he did not want to have management responsibilities. Mr. Asad

had long been concerned about legal issues that could arise because Kinexus did not have

the requisite licences.

[206] Mr. Asad was also aware that regular management meetings were held, weekly

unless management members had scheduling conflicts, but at least every two or three

weeks. Dr. McDermott had attended those meetings, but Mr. Asad had never been asked

to attend, either before or after Dr. McDermott’s departure.

[207] In late January 2003, Dr. Pelech came to Mr. Asad’s desk and, for the first time,

asked him to attend a management meeting. Mr. Asad says that Dr. Pelech did so “at the

last minute” on the day of the meeting, saying that he needed Mr. Asad to explain to the

management team how any future server and firewall problems could be resolved.

[208] In attendance were: Dr. Pelech; Ms. Sutter; Ms. Karia; Dr. H.Z., a scientist who

was then in charge of the lab; and an administrative assistant who recorded the minutes.

Mr. Turner was not present at that meeting. Mr. Asad gave the requested briefing on the

computer system. He says that he then raised the matter of the overdue performance

reviews. He was told that Dr. Pelech had to attend a conference, but that the reviews

would be conducted immediately after his return. Dr. Pelech then stated that members of

the management team do not get overtime pay; that meant everyone around the table,

except the assistant taking the minutes. Looking at Mr. Asad, he said that he would try to

resolve the overtime issue at his performance review which would be soon.

[209] One or two weeks later, Dr. Pelech again came to Mr. Asad’s desk and asked him

to join a management meeting. Mr. Asad attended management meetings regularly from

that point until his employment was terminated in March.

46

(w) The January and February 2003 Time Sheets

[210] In the meantime, Mr. Asad had not been paid any overtime pay, and he continued

to wait for his performance review. He spoke to Ms. Karia who requested him to prepare

a report for Dr. Pelech setting out the details of his overtime hours. He understood that

she was requesting details of all his overtime hours, both emergency and non-emergency,

and responded that he was only claiming for emergency overtime. He told her that Ms.

Sutter had already calculated and recorded the relevant overtime hours. Mr. Asad says

that Ms. Karia repeated her request on several occasions, and he gave the same response

each time.

[211] In February Ms. Karia asked Mr. Asad for his January Time Sheet. He says that

Kinexus employees usually turned in their Time Sheets a week after the end of the

month. According to Mr. Asad, he told Ms. Karia that he would hand in his Time Sheet

after his overtime situation had been resolved. Ms. Karia replied that the overtime issue

would be dealt with at his performance review. Mr. Asad says that he responded: “That’s

good. Then the Time Sheets and overtime will be discussed together”. Ms. Karia told Mr.

Asad that Dr. Pelech would be the one to resolve the overtime issue, but that his claim

was questionable because Mr. Asad was part of management.

[212] Ms. Karia told him that she needed the Time Sheets in order to prepare the

company’s financial statements. Mr. Asad acknowledges that Ms. Karia “looks for how

much time we spend on R&D (research and development) versus commercial”, and that

in May 2002 the form of the Time Sheets was changed to be more specific, so that

employees broke down their hours between R&D and commercial work. Before that

change, he used to break down his time between Administration and Database. However,

starting in May 2002, he recorded his time under the category “IT”, allocated between

R&D and Administration. He also acknowledges that Ms. Karia advised him that the

breakdown was important for the purposes of Kinexus reporting to Revenue Canada.

[213] Mr. Asad asserts that he would sometimes fill in the breakdown between R&D

and Administration, but on other occasions, he would only fill in his total hours and Ms.

Sutter would complete the breakdown figures. When he was away from the office, he

would ask Ms. Sutter to complete his Time Sheets for him.

47

[214] He recalls that on two or three occasions, Ms. Sutter told him that it was better for

the company if he put more in R&D, and suggested a 75/25 split between R&D and

Administration. He says that he gave those figures to Ms. Karia, and noted that he

continued to make his entries in the sign in/out sheet which recorded his total hours

worked, but she insisted that he must complete, sign and hand in his Time Sheets.

[215] Sometime in mid-February, Ms. Sutter approached Mr. Asad and asked him to

prepare his January Time Sheet for Ms. Karia. He told her that he was waiting to meet

Dr. Pelech to resolve the overtime issue. Ms. Sutter responded that Dr. Pelech had

already told him that he could not get overtime pay.

[216] Throughout the rest of February, with increasing frequency, Ms. Karia and Ms.

Sutter made repeated requests to Mr. Asad. He acknowledges that he understood the

reason; that is, that Time Sheets were required to prepare the company’s financial

statements, and that there were deadlines for their preparation. He also acknowledges that

Dr. Pelech had work pressures, but says that, week after week, Ms. Sutter and Ms. Karia

kept assuring him that Dr. Pelech would be available soon to meet him.

[217] He denies that either Ms. Karia or Ms. Sutter gave him any warnings about his

failure to complete his Time Sheet. He says that they were always very polite, and only

made requests of him: “They were pushing it but no warning”.

[218] According to Mr. Asad, Dr. Pelech was in the office much of February and they

did speak. However, he says that they only talked about the timing of his performance

review, and that: “When I tried to discuss management title or overtime, he said that we’d

discuss it at the performance review”. They did not speak about his January Time Sheet.

[219] February passed into March. Ms. Karia and Ms. Sutter now asked Mr. Asad to

complete his February Time Sheet as well as the one for January. He gave them the same

explanation as before. Mr. Asad says that he also advised Ms. Karia that he “totally

understood she was under pressure to do the financial statements, but that the issue would

be resolved when I had the meeting with Dr. Pelech”.

[220] On March 6, Dr. Pelech returned to the office from a trip. He went into Ms.

Karia’s office and then proceeded to Mr. Asad’s desk. According to Mr. Asad, Dr. Pelech

48

said: “The performance review will be done but I’m busy. You have to fill in your Time

Sheets or you’re fired”. He then walked away. Mr. Asad says that this took place in front

of other employees, and describes the incident as “humiliating and disrespectful”. He

says Dr. Pelech “didn’t wait to hear my answer”. According to Mr. Asad, this was the

only time Dr. Pelech had ever said anything to him about the Time Sheets. Later Mr.

Asad tried to find Dr. Pelech to talk to him, but he was too busy.

[221] At work the next morning, Mr. Asad received the following e-mail that Dr. Pelech

had sent from his home late on the previous night. The e-mail indicates that Dr. Pelech

had sent copies to Ms. Karia and Mr. Turner:

Dear Ghassan,

Please be aware of the seriousness of the matter of your failure to comply

with repeated requests from Mira and myself for your completed

timesheets. We are unable to complete calculations for important

information that has been requested on a monthly basis by the Investors of

Kinexus and the Board of Directors. Such insubordination cannot be

tolerated and it can unfortunately necessitate termination of your

employment with Kinexus. I hope that you appreciate and understand the

severity of this situation and will act to rectify this immediately.

Sincerely, Steven Pelech

[222] Mr. Asad acknowledges that Dr. Pelech’s e-mail reflects what he had said to him

in the office. Mr. Asad sent the following reply during the morning of March 7:

Dear Dr. Pelech,

If it a matter of calculations for Mira, the time in and out every day is

filled and exists at the front desk all the time.

Last year, I was called at home when I was on vacation and told to come

in. When I said, I have already spent more time than I am supposed to

work, I’ve been told quote “WE WILL PAY YOU”.

Now it’s more than 3 months, and the company is NOT recongizing that. I

repeatly asked to discuss that issue, but NEVER happened. I DID NOT

STOP ANY OF DAILY DUTIES (backup, maintenance, support, etc…). I

only held filling the time sheet (because it’s not doing anything to protect

my right) until I have my overtime recogized.

Since the beginning until this moment I accept to fill it immediately after

having my right recogized.

49

Regards,

Ghassan Asad

[223] Mr. Asad says that during the next several days, Ms. Sutter and Ms. Karia both

reiterated their requests to him to hand in his Time Sheets. He continued to demur, telling

them that he had sent an e-mail to Dr. Pelech, explaining his position.

[224] Sometime between March 10-13 he keyed in his sign in/out times from the sign

in/out sheets into the program that produces the Time Sheets. Mr. Asad’s data, and the

corresponding data for all other employees, were stored in a folder in the Kinexus

network hard drive, and were accessible to all employees. He says that he was prepared to

print, sign and hand in his Time Sheets. However, he also says that, following his March

7 e-mail to Dr. Pelech, he expected that his next paycheque, due on March 14, would

include his overtime pay, so he did not intend to hand in his Time Sheets until then.

(x) The Termination

[225] On March 13, Ms. Karia asked Mr. Asad to come with her to Dr. Pelech’s office.

She had two sets of documents with her.

[226] Dr. Pelech told Mr. Asad that he had two choices; resign or be fired. Mr. Asad

says that Dr. Pelech then began to talk without stopping, and would not allow Mr. Asad

to finish a sentence. Mr. Asad says that he does not recall Dr. Pelech mentioning the

Time Sheets; nor did he refer to Mr. Asad’s technical competence. He spoke instead at

length about Mr. Asad’s attitude, saying that his attitude had been different since 9/11,

and that he didn’t know if it had to do with Mr. Asad’s culture or background.

[227] Mr. Asad asserts that he was surprised and tried to explain that they needed to

resolve the issues of his overtime pay and Time Sheets, thinking that perhaps Dr. Pelech

had not received his March 7 e-mail. However, Dr. Pelech said that the decision had been

made and the management team had agreed. He reiterated that Mr. Asad had to

immediately choose between resignation or firing, and that if he did not make a choice,

he would be fired. Mr. Asad objected.

50

[228] Dr. Pelech then instructed Ms. Karia to give Mr. Asad the termination letter. Ms.

Karia asked Mr. Asad to sign it, but he refused and said that the issue was not finished

yet. Dr. Pelech then told Mr. Asad that a technician from a computer consulting firm,

Unilogik, was waiting outside the door, and directed Mr. Asad to give him his computer

passwords, keys and backup tapes. Mr. Asad turned everything over to the technician,

except the firewall password which he refused to disclose because he used the same

password for personal matters, such as banking. That led to another confrontation with

Dr. Pelech which ended with Dr. Pelech asking Mr. Asad to return the following day to

resolve the matter. Mr. Asad also recalls saying to Dr. Pelech at some point after the

termination meeting that he was going to take legal action and file a human rights

complaint, and that Dr. Pelech responded that Mr. Asad needed counselling. Mr. Asad

says that he was in shock over his firing, and went home.

[229] The letter, which Ms. Karia handed to Mr. Asad at the termination meeting, is

dated March 13, 2003 and states, in part:

We confirm our conversation with you on Thursday, March 13, 2003.

During our conversation, we informed you that due to a breach of the

terms of your Employment Agreement, dated September 1, 2000, we

would no longer be able to employ you and we would be terminating your

employment for cause, as described in Section 8.2 of your Agreement.

Over the past few months, your behaviour and attitude has seriously

deteriorated to the point where you spend a great deal of time complaining

about the company, speaking unfavourably about the management, and

distracting other employees from their work. You have repeatedly

complained about many company policies required of all employees, and

on Friday, March 7, 2003 you refused to comply with a simple task

requested of you by your direct supervisor. After serious consideration,

and given that you have previously served the company with a level of

satisfactory competency during your employment term from September 1,

2000 to March 14, 2003, we were still willing to offer you the opportunity

to resign, hoping to leave our relationship on reasonable terms. But given

that you have chosen to decline this opportunity, and due to the breach of

your employment contract, this letter is our formal notice of termination of

your employment effective immediately.

[230] The letter sets out calculations of Mr. Asad’s final compensation. He received his

regular pay, pension and vacation pay to March 14, and $1,268.12 for “Overtime pay for

51

exceptional circumstances during the system crash (From November 12-30, 2002 = 6

days of overtime)”. The letter further states:

Please note that the overtime payment was made in an exceptional

circumstance due to the system crash that the company experienced during

the month of November 2002, combined with the fact that your direct

manager verbally requested you to work overtime to ensure that our

computer systems were functional prior to your month long vacation in

December 2002. Although the standard company policy for employees

such as your self, is not to compensate for overtime as this is reflected in

your higher salary level, position and job responsibilities, due to the urgent

nature of the situation at the time of the systems crash, and the fact that

you were leaving on vacation and unwilling to further assist the company

without receiving additional payment for your services, the company was

forced to agree to pay overtime to you for your services above and beyond

the standard 40 hour week.

[231] In accordance with his discussion with Dr. Pelech at the end of March 13, Mr.

Asad returned to Kinexus the next morning to find that, in the meantime, the Unilogik

technician had figured out how to change the firewall password without Mr. Asad’s

password. He said good-bye to co-workers, and had a discussion with Ms. Karia about

the overtime calculations. Mr. Asad advised Ms. Karia that he disagreed with the

calculations, and asked why she had calculated overtime pay for only the period

November 12-30, noting that the systems crashes had occurred before those dates. She

replied that those were the dates discussed at the November 12 management meeting, and

she would not change her calculations.

[232] Two or three weeks later, Mr. Asad contacted Dr. Pelech “to encourage him to

pay the remaining overtime”. He advised Dr. Pelech that the calculations in the

termination letter were incorrect and asked to resolve the matter. According to Mr. Asad,

Dr. Pelech replied that it was more than he deserved and refused to discuss the matter.

However, Dr. Pelech added that Unilogik had said that Mr. Asad had done a good job

configuring the Kinexus network. Mr. Asad says that he was very pleased and satisfied to

hear that professionals had evaluated and appreciated his work.

[233] Mr. Asad states that, during his employment at Kinexus, no work performance

issues were ever raised and no warnings about his performance were ever given to him by

52

Dr. Pelech, Ms. Sutter or Ms. Karia. He adds that he is unaware of any other employee

having concerns about his performance.

(y) Circumstances Following the Termination

1. Employment Insurance

[234] Mr. Asad says that he applied for employment insurance but was denied because

he had been terminated for cause. He attended a hearing of an EI board of referees who

held that there was insufficient evidence of wrongful dismissal, and that he had been

terminated for misconduct. Mr. Asad asserts that he did not have an opportunity to

properly present his case, noting that Kinexus was represented at the hearing by Dr.

Pelech, Ms. Sutter and Ms. Karia, whereas he represented himself and is not fluent in

English.

[235] His appeal of that decision was also denied. He says that he had expected a new

hearing, but discovered that the appeal proceeding was restricted to the evidence that had

been presented to the board of referees.

2. Job Search and Mitigation Efforts

[236] Mr. Asad says that he began seeking other employment immediately after his

termination from Kinexus. He produced his résumé and copies of over 150 pages of

correspondence and e-mails relating to his job search. He used job search banks and

searched employment advertisements, with the goal of sending 10 – 15 applications every

day. His efforts were fruitless. According to Mr. Asad, the absence of a reference from

Kinexus and the circumstances of his termination proved to be barriers. He enrolled in

programs offered by Yes Canada and Douglas College to explore the possibility of

starting his own business. He ultimately decided to return to school for further education

and enrolled in the Engineering Transition program at Capilano College.

[237] Mr. Asad describes himself as extremely frustrated, stressed and anxious because

of his circumstances and resulting financial strain. He had difficulty sleeping, and in

November 2003 he blacked out and was taken by ambulance to a hospital. He saw Dr.

Robinson who again recommended anti-depressants, but Mr. Asad continued to decline to

53

take them because, in his view, they are prohibited by his religious beliefs. He did,

however, accept a prescription for sleeping pills.

2. Cross-Examination

[238] Dr. Pelech conducted the cross-examination of Mr. Asad. Because Dr. Pelech is

not a lawyer, I allowed him a good deal of latitude. The cross-examination jumped back

and forth among numerous subjects and included many questions that, in the end, proved

to be irrelevant or unhelpful to Kinexus, as they simply elicited the same responses which

Mr. Asad had given in his direct testimony. I had to correct Dr. Pelech on numerous

occasions when he misquoted answers previously given by Mr. Asad either earlier in the

cross-examination or in his direct examination. The cross-examination also involved

disclosure issues to which I will refer. Therefore, although the cross-examination

consumed a good deal of hearing time, its length, relative to the other parts of the hearing,

is not proportionately reflected in these Reasons.

[239] The initial part of the cross-examination involved details about Mr. Asad’s

background and work and medical histories. At one point, in response to questions about

his beliefs with respect to the use of anti-depressants, Mr. Asad corrected Dr. Pelech by

noting that Islam is not a culture, it is a religion. Dr. Pelech then said: “If you’re an Arab,

you can’t be any other religion except Muslim”. Mr. Asad noted that many Arabs are

Christians. He also noted that, among Arabs, there are many different cultures which vary

from country to country and region to region.

[240] Dr. Pelech then questioned how Mr. Asad could refuse to take anti-depressants,

yet drink coffee and cola drinks that contain caffeine, asking if Mr. Asad knew that

caffeine is a stimulative and addictive drug. Mr. Asad replied that caffeine is not

considered a mind-altering drug, so Islamic law permits coffee consumption. He also

acknowledged that, although Islam prohibits the consumption of alcohol, he does go to

bars where alcohol is served but denied consuming alcohol.

[241] Mr. Asad acknowledged that, during his employment, Kinexus had a multi-

cultural staff that included Greek, Chinese, Indonesian, Indian, Italian and Jewish

employees. Two employees, in addition to Mr. Asad, were Muslim. He was aware that

54

one of them, D.W., an employee originally from Indonesia, used the Kinexus boardroom

to pray during the day, and that Kinexus had given her a lengthy leave so that she could

go to Mecca on the Hajj. Dr. Pelech asked Mr. Asad if he had completed the Hajj to

which he answered yes. Dr. Pelech then referred to the rigors of the Hajj and asked Mr.

Asad if he knew that some people die during the Hajj, to which Mr. Asad replied that he

was aware of that.

[242] Mr. Asad acknowledged that he was not aware of any discriminatory action by

Kinexus against any other employee. When asked if the policies, procedures or practices

of Kinexus were discriminatory, Mr. Asad said that he was not aware of the existence of

the Policy Manual until his second year of employment, and maintained that he had not

been given a copy until the EI hearing.

[243] He agreed that Kinexus allows its employees, at their option, to take another

religious holiday as a vacation day in lieu of Easter Monday, although he also said that

the same policy applies if an employee works on any statutory holiday.

[244] Mr. Asad also agreed that Kinexus had allowed him time off and medical benefits

so that he could undergo surgery in February 2001, and expressed his ongoing

appreciation to Dr. Pelech.

[245] In extensive questioning about the April 4, 2002 memo addressed to “Human

Resources”, in which Dr. McDermott is heavily criticized, Mr. Asad acknowledged that

he and Dr. McDermott had disagreed on occasion about technical matters and that he had

concerns about Dr. McDermott’s competency in IT. However, he said that he otherwise

considered Dr. McDermott to be a good manager.

[246] According to Mr. Asad, he raised his concerns about the state and direction of IT

at Kinexus with Dr. Pelech at a meeting in late 2001 which was also attended by Ms.

Sutter. Mr. Asad maintained that the memo had been written together with Ms. Sutter and

at her request, that she had written parts of it herself, and that he had felt partially

pressured to produce it.

[247] Dr. Pelech questioned Mr. Asad about an e-mail he had sent to all employees on

November 11, 2002, during the time that the Kinexus computer system had crashed and

55

was out of service for several weeks. In that lengthy e-mail, Mr. Asad outlined the

problem and its causes. He blamed Dr. McDermott for having made poor decisions in

configuring the system, decisions that he was unqualified to make, even stating that Dr.

McDermott “didn’t even know how to install Windows 2000 Professional (some 10 years

old kids can do it)”. By that time, Dr. McDermott had not been at Kinexus for

approximately seven months.

[248] In that e-mail, Mr. Asad continued:

• We have a single point of failure (the firewall), means if it is down,

the whole connection to the outside world is down

• No backup plan what-so-ever in case of crash

• Management is aware of that (we don’t have a backup plan) If no

backup plan, that means the plan would be “fix it as soon as

possible”

…

Last few days, I heard a tune of blame few times for not having the

web site as well as the emails up. All I can say:

• Our network had as a single point of failure without backup plan

• I was never trained to install, run or troubleshoot IPSO operating

system which is the firewall operating system

…

Kinexus IT decision makers introduced a new piece of hardware and

software, never trained me, and now expecting me to fix it? (especially

it is a very sensitive machine). And by the way, when I applied for this

job at Kinexus, I was never claimed that I know anything about it…

[249] Noting that Dr. McDermott had left the company in April, Dr. Pelech asked Mr.

Asad why he had not fixed the problem before. Mr. Asad replied: “Very good question. I

sent you a memo in April/02 about this. Nothing happened. No authorization from you.

How could I fix anything?”.

[250] With respect to Mr. Asad’s trip in August 2001, Dr. Pelech asked him: “Do you

think it’s odd to celebrate Canadian citizenship by going to the US?”, to which Mr. Asad

replied: “I don’t think it’s odd to go to New York City”. Dr. Pelech then questioned Mr.

56

Asad about an incident involving a customs officer when he had crossed the border to

return to Canada. Mr. Asad said that his rental car was searched, and, because he was

unable to prove that he had bought certain goods in Canada, he was charged duty. Upon

returning to Vancouver, he submitted to the customs agency purchase receipts from the

Canadian store where he had bought the goods and got a refund. He said that he was

unhappy because the officer had not believed him, and he later wrote a complaint letter to

the agency.

[251] When questioned extensively about the events that occurred in the Kinexus office

on, and during the days following, September 11, Mr. Asad maintained the narrative he

had offered in his direct examination. When it was put to him that Ms. Karia’s suggestion

that he was a terrorist must have been a joke, he acknowledged that at the time he wasn’t

sure. However, he said that, in the end, he did not believe it to be a joke, but added that he

could not read her mind. He described Ms. Karia’s demeanour during the three incidents

involving her as “hostile”, and Ms. Stoute’s expression when she looked at him as

“suspicious” of him.

[252] Dr. Pelech asked him if Ms. Stoute and Ms. Karia are racist. Mr. Asad said “Yes”

to both. When asked if he considered the management team to be racist, Mr. Asad

identified Dr. Pelech and Ms. Karia, saying “That’s it from the management team”.

[253] Mr. Asad asserted that he reported the alleged racist incidents to Dr. Pelech. When

asked why he didn’t report them to Human Resources, Mr. Asad replied that it was “a

bigger problem” that required action by the President and CEO. He returned to work

thinking that Dr. Pelech would resolve the problem and “take care of the poisoned work

environment”.

[254] Mr. Asad acknowledged that Ms. Sutter had tried to help by calming him down

during his stress leave, and that at the time he considered her to be his friend.

[255] He reiterated that he remained convinced that a Kinexus employee had reported

him to the RCMP, and that at first he suspected Ms. Karia. However, over time, he

“started to lean more towards (Ms. Stoute)”, because of other comments that she made to

him after he had returned to work. He did not suspect anyone else.

57

[256] Mr. Asad said that he understood that the person who reported him to the RCMP

had a right to do so, and that he did not feel that Kinexus was directly responsible for that

action. Dr. Pelech then asked what Kinexus should have done and how it had

discriminated against him. Mr. Asad responded that it had failed to provide a racist-free

and safe environment in the workplace.

[257] Mr. Asad asserted that the racist comments did not stop upon his return to work,

but continued during October and November 2001. When asked by Dr. Pelech for

examples of discrimination, Mr. Asad referred to the comments of Ms. Stoute about

which he had testified in direct examination, saying that she would repeat them whenever

there was a suicide bomber in Israel. Pressing for specific dates, Dr. Pelech said that there

are suicide bombers all the time in Israel.

[258] Mr. Asad also referred to Dr. Pelech’s comments that he should not blame anyone

for reporting him to the police because Mr. Asad looks like the terrorists, and added that

Dr. Pelech had also said that some of the terrorists were nice-looking young men. Mr.

Asad also recalled Dr. Pelech’s references to Mr. Asad’s culture and background during

the termination meeting. When pressed for other examples, Mr. Asad said that Dr. Pelech

showed him no respect or interest after 9/11.

[259] When asked by Dr. Pelech if he thought Ms. Stoute was purposely trying to hurt

him or make him feel uncomfortable, Mr. Asad replied: “I don’t know what she was

thinking, but that’s how I felt”.

[260] Asked again if he had reported the incidents of alleged racism to anyone at

Kinexus, Mr. Asad said that he had reminded Dr. Pelech before the Christmas party that

he had not taken any action to address his concerns about a poisoned work environment,

but that Dr. Pelech only insisted that Mr. Asad attend the party.

[261] When asked why he had not reported his allegations to the Board of Directors or

to Mr. Turner, Mr. Asad responded that he did not know, but later reiterated that he had

reported to Dr. Pelech, who was the company President and his direct supervisor.

58

[262] Dr. Pelech asked Mr. Asad if it made any sense that he would be the only Kinexus

employee to be discriminated against. Mr. Asad responded that he was the only male

Arab Muslim from Saudi Arabia.

[263] Dr. Pelech noted that Mr. Asad had testified that they had a poor relationship after

9/11 and that Dr. Pelech had little time for him. He then pointed to an e-mail that Mr.

Asad had sent to him on August 14, 2002 in which Mr. Asad said: “I know I see you

almost everyday”. In response, Mr. Asad noted that the rest of the sentence read “but I

wanted to send this email so you can read it whenever you’re not busy”. Mr. Asad said

that he sent the e-mail because Dr. Pelech, although in the office, was always too busy to

talk to him.

[264] Directing Mr. Asad to the e-mail that he had sent to Dr. Pelech on December 21,

2001, after the Kinexus Christmas party, Dr. Pelech noted that Mr. Asad had said: “I have

great respect and appreciation for you”. Mr. Asad responded: “I was that day trying to

make you feel good because I wasn’t going to the party. Didn’t mean that literally.”

[265] Dr. Pelech asked Mr. Asad, if he was racially discriminatory as alleged by Mr.

Asad, why he would have given him a large salary increase and promotion in late 2001

when Kinexus was then, in Dr. Pelech’s words, “in dire straits”. Mr. Asad responded that

the salary increase was conditional on Kinexus securing new financing, and that he had

negotiated his salary with Dr. McDermott and Ms. Sutter, not Dr. Pelech.

[266] When asked, if he considered Dr. Pelech and Ms. Karia to have discriminated

against him, why he had eaten food with them at the 2002 Kinexus summer party, Mr.

Asad replied that it had then been almost ten months since 9/11, and “I pushed myself to

show integration”.

[267] Mr. Asad acknowledged that he had drafted and agreed to his own job description

in late 2001. He also agreed that, following Dr. McDermott’s resignation:

• he was in charge of the IT department;

• his work was in line with that of an IT manager; and

• he would expect that management employees would have the highest salaries

and greatest responsibilities in the company.

59

However, he maintained that he did not consider himself to be a manager at Kinexus.

[268] Mr. Asad acknowledged that Dr. Pelech had not told him explicitly that he would

be paid overtime for working in November 2001, but that it was his “feeling” and

assumption that he would be paid because of the past payments for overtime. He also

acknowledged that he did not complete a Request for Leave form for November 28 and

29, 2002.

[269] Mr. Asad said that he was unaware that Mr. Turner had wanted to fire him in

November 2001 or that Dr. Pelech had refused to do so.

[270] Dr. Pelech directed Mr. Asad to an October 3, 2002 e-mail addressed to him by

Mr. Asad and captioned “A problem with the power supply unit”. In that e-mail, Mr.

Asad identified a problem with the Kinexus computer power supply unit and said: “It’s as

simple as a battery with some intelligence that will take over and provide power to

servers for 10 to 15 minutes until the power is back”. Below the e-mail is the following

comment, written in an different font: “I couldn’t understand why Ghasson, being aware

of a problem with the power supply for months neglected to do anything about it until

after it failed”. Mr. Asad responded that the battery cost $350, and when he asked Ms.

Sutter, she advised him that the company was short of money and could not afford to do

things.

3. Re-Direct

[271] In re-direct, Ms. Chin pointed to that written comment and others that had been

apparently added to the copies of e-mails between Mr. Asad and Dr. Pelech and Ms.

Sutter which had been put to him during the cross-examination. Mr. Asad stated that he

had not written those comments and did not know who had. I note that the collection of e-

mails is titled “Copies of E-Mail messages from Ghassan Asad” and immediately below

is a statement that “Steven Pelech has added some brief comments in red text”. However,

the copies that were submitted to me contain only black text.

[272] Mr. Asad also stated that he had spoken to Ms. Sutter about the battery because he

had no authority to buy anything. He reiterated the response given in his cross-

examination that Ms. Sutter had told him that Kinexus could not afford to buy the battery,

60

and added that he did not receive a response to his e-mail from Dr. Pelech. He said that

he only received authorization to buy the battery on November 28 or 29, immediately

before he left on his vacation.

[273] Mr. Asad said that, while he was Director of Informatics, Dr. McDermott had

authority to contract with outside software companies, purchase hardware and software,

issue purchase orders, and authorize others to make purchases. Mr. Asad did not have

such authority, and had to obtain Dr. McDermott’s approval for any purchases. Purchases

were made through UBC. After Dr. McDermott had left Kinexus, Ms. Sutter became the

Kinexus contact person with UBC, so Mr. Asad would make his requests for

authorization to her.

C.

Disclosure and the Tribunal’s Rules

[274] During his cross-examination of Mr. Asad, Dr. Pelech produced a document and

began to question him about it. Ms. Chin objected, stating that the document had not

previously been disclosed by Kinexus. During the ensuing discussion, Dr. Pelech and Ms.

Sutter advised that, in fact, they intended to introduce into evidence a number of

documents that had not been disclosed to Mr. Asad and his counsel. Ms. Chin asserted

that the requirement of, and reasons for, full disclosure had been discussed in several

letters and telephone conversations between Ms. Chin and Ms. Karia, as well as during

PHCs at which Dr. Pelech and Ms. Sutter had also been present.

[275] PHCs were held by teleconference on February 12, March 24 and October 8,

2004. Each was conducted by a Tribunal Member and the proceedings of each were

recorded in a memorandum prepared by the presiding Member and sent to the parties.

The memoranda indicate that each PHC was attended by Ms. Chin, Dr. Pelech and Ms.

Karia. Ms. Sutter attended the February 12 and October 8 PHCs. In the February 12 PHC

memorandum the Member states: “The Respondent reports that they have already

provided a list of documents to the Complainant. I reminded the parties of their ongoing

obligation to disclose potentially relevant documents”. The March 24 PHC memorandum

states: “The parties are reminded of their ongoing duty of disclosure”, and the October 8

PHC memorandum states: “The ongoing nature of disclosure was affirmed”.

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[276] Dr. Pelech said that the document then immediately at issue had not been

previously disclosed by Kinexus because, until they had heard Mr. Asad’s testimony the

day before, they did not know that Mr. Asad would say that there were no computer

problems when he returned to work on November 28.

[277] I directed Dr. Pelech to Rules 18(5) and (6) of the Tribunal’s Rules of Practice

and Procedure which set out the obligation of parties to deliver to each other “copies of

all relevant documents” in their possession or control, and Rule 18(8) which states that

disclosure is an ongoing obligation. It was noted that the purpose of the Rules is to

prevent surprise and trial by ambush, and that they have particular relevance in an

employment situation such as the subject one where the employer generally is in

possession of many more documents than the complainant, some of which the

complainant may not even know exist.

[278] Dr. Pelech then complained that the binders of reliance documents presented by

Ms. Chin at the hearing contain documents that had not been previously disclosed by Ms.

Chin. Ms. Chin denied that. Dr. Pelech was unable to identify any such document.

[279] I ordered Kinexus to make full and complete disclosure to Mr. Asad’s counsel of

all relevant and potentially relevant documents by the following Monday. That was one

of several disclosure orders made during the hearing.

[280] In response to my question, Dr. Pelech admitted that, although he was

representing Kinexus at the hearing, he had not read the Tribunal’s Rules. I directed him

to do so. That was the first, but unfortunately not the last, occasion on which disclosure

issues arose.

[281] Indeed, disclosure arose again one week later when the hearing resumed. Ms.

Chin said that, although Kinexus had forwarded to her further disclosure, its covering

letter referred only to documents that Kinexus intended to produce through its witnesses,

whereas the Rules require the disclosure of all relevant documents, whether or not

Kinexus intended to adduce them in evidence.

[282] In subsequent discussion, Dr. Pelech admitted the existence of other documents,

including e-mails, which he had reviewed one and one-half years previously and not yet

62

disclosed. He had determined at that time that they were not relevant but had not looked

at them since then. He stated that he was surprised by the amount of detail in Mr. Asad’s

evidence, and acknowledged that the scope of what must be disclosed was far wider than

he had thought before the commencement of the hearing. By way of example, Dr. Pelech

said that he thought that, if Mr. Asad had referred in his Complaint form to one

conversation with Ms. Karia in which she made allegedly racist comments, only

documents relating to that conversation were relevant. He said that he was surprised

when Mr. Asad referred in his evidence to three conversations with Ms. Karia.

[283] Following further detailed discussion about the scope of required disclosure, I

again ordered Kinexus to forthwith make full disclosure to Mr. Asad’s counsel.

[284] Dr. Pelech repeated his previous statements that he was not a lawyer and was

doing his best. I observed that many parties represent themselves, and reminded him that,

in preparing for the hearing, he had not read the Rules. Indeed, despite my earlier

direction, he had still not read them. It was also noted that the first PHC memorandum

had provided information as to possible sources of free legal assistance, in the event that

Kinexus chose not to be represented by counsel.

D.

Jenny Morgan

[285] Ms. Morgan holds a Bachelor of Social Work degree and is a child protection

social worker employed by the Ministry of Children and Family Development. She and

Mr. Asad first met in February 2003. She knew that, at the time, Mr. Asad was working

with computers in the IT department at Kinexus.

[286] She recalls that Mr. Asad was stressed from working evenings and weekends, and

rarely took a lunch break. When she called him on his cell phone, he was almost always

at work. In March, she learned that he was having a serious problem at work. Mr. Asad

told her about a discussion between him and “Steve” about a timesheet issue, and that

Steve had sent him an e-mail.

[287] Around the same time, she and Mr. Asad discussed what he had experienced after

9/11. Mr. Asad told her that a co-worker had reported him to the RCMP because she

thought Mr. Asad had been involved in the terrorist attacks. Ms. Morgan recalls that Mr.

63

Asad recounted to her that one co-worker in particular, “Mira”, had made comments to

him that, because Mr. Asad is Arab and Muslim and had travelled to the United States,

she suspected that he may have been involved in last minute preparations for the 9/11

attacks. Ms. Morgan described Mr. Asad as “very anxious and disturbed” and “very sad”

when he talked about those incidents.

[288] She learned about his firing on the day he was terminated. She had called him and

when he answered, “his tone was very low”. When she asked if he was okay, he replied

in a low voice: “Today I was fired”. He said little else. Ms. Morgan says that she was

concerned because he had never been like that before. They met that evening. She says he

was “very sad, almost like he was in shock”.

[289] Ms. Morgan describes Mr. Asad as continuing to be “very anxious and

distraught”, observing that the termination of his employment has taken a toll on him

emotionally. She says that he is focussed on trying to find another job.

[290] In cross-examination, Ms. Morgan confirmed the testimony she had given in

direct examination. She did not recall Mr. Asad referring to anyone except “Mira” having

made racist comments to him; nor did she recall Mr. Asad recounting to her any other

discriminatory incidents, but said that Mr. Asad had told her about his interviews by the

RCMP.

[291] Ms. Morgan said that Mr. Asad did discuss with her the possibility that he might

be fired if he did not complete his timesheets. She recalled that Mr. Asad told her that he

was to be paid for overtime but that, after several months, he had not been paid, so he had

decided not to hand in his timesheets until he received payment.

E.

Conclusion of Mr. Asad’s Evidence and Further Disclosure Issue

[292] That concluded Mr. Asad’s evidence. I note that Ms. Chin had earlier advised that

a witness she had intended to call was, at the last moment, unexpectedly unavailable

because of work demands and scheduling conflicts. She requested that an alternative

witness be allowed to testify by telephone from Saudi Arabia. After considering Ms.

Chin’s submissions, I declined to grant an order allowing that person to so testify.

64

[293] At this point, a further disclosure issue arose. Ms. Chin stated that certain sign

in/out sheets that Kinexus was supposed to disclose were missing from the latest

documents sent by Kinexus to Ms. Chin. Dr. Pelech undertook to fax them to Ms. Chin

that day. However, at the resumption of the hearing one month later, Kinexus had still not

produced the documents to Ms. Chin. Ms. Sutter promised to follow up forthwith.

F.

Kevin McDuffie

[294] Mr. McDuffie was Director of Corporate Development at Kinexus from July 2000

to April 2002. He was part of the company’s management team and reported to Dr.

Pelech whom he had known since the late 1980’s.

[295] Mr. McDuffie, as did each of the witnesses called by Kinexus, testified as to the

multi-cultural character of the Kinexus staff, and cited the annual Halloween pumpkin

carving contest, Christmas party and potluck meal as reflecting that character. He and the

other Kinexus witnesses also stated that they were not aware of, or had ever experienced,

any discriminatory acts at Kinexus, and each also referred to the Kinexus policy of

granting each employee a day off in lieu of Easter Monday to observe their own religious

holiday. Mr. McDuffie also referred to flex holidays in lieu of Christmas holidays.

[296] Mr. McDuffie describes Dr. Pelech as “the ultimate decisionmaker at Kinexus”

and founder of the company. In response to Dr. Pelech’s questions, he praises Dr.

Pelech’s abilities and character.

[297] Mr. McDuffie says that he received a package of documents relating to Kinexus

policies and procedures when he commenced his employment, and that the company

policy on overtime was that members of management did not receive any compensating

time off. All other employees, with the approval of their supervisor, could take time off

for overtime hours worked. If the time off was one day or more, the approval had to be in

writing. There was no policy for payment of overtime wages. The only two payments of

overtime pay were made to Mr. Asad in urgent circumstances involving a crash of

Kinexus’ computer system.

[298] Mr. McDuffie says that all employees, except those not involved in research

work, kept Time Sheets. He himself did not keep Time Sheets because his job was to sell

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products. However, he understands that the Time Sheets were required “for government

purposes”, to keep track of, and report to the government, time spent by Kinexus

employees on research. This related to a research and development tax credit program.

[299] Mr. McDuffie’s employment at Kinexus overlapped with Mr. Asad’s from August

2000 until April 2002 when Mr. McDuffie left Kinexus. He describes Mr. Asad as having

been helpful to him during that time and his work to have been of good quality, and says

that, prior to 9/11, Mr. Asad had enjoyed good relationships with his co-workers.

[300] Recounting events after 9/11, Mr. McDuffie recalls that employees were aware

that Mr. Asad had been interviewed by the RCMP at the Kinexus offices. Mr. McDuffie

says that, in the atmosphere of fear and uncertainty caused by 9/11, some people had

misgivings and uncertainties about Mr. Asad’s trip and the events of 9/11. He describes

some people as being “uncomfortable” about Mr. Asad, and recalls that there was

speculation about his possible connection to 9/11. Mr. McDuffie says that discussions

took place at the front desk in the reception area which he described as the normal

gathering point for Kinexus employees.

[301] Mr. McDuffie says that Ms. Stoute was especially distressed about Mr. Asad’s

trip and she had wondered if it was merely coincidental that it had preceded 9/11 so

closely. During a particular conversation, which involved Ms. Stoute, Mr. McDuffie and

others, she was “teary-eyed”. He is uncertain as to whether the conversation occurred

before or after the RCMP interview of Mr. Asad.

[302] Mr. McDuffie also recalls that, following the RCMP interview at Kinexus, Mr.

Asad was reluctant to enter the building and to return to work. Leaving work with others

some days after the RCMP interview, Mr. McDuffie saw Mr. Asad pacing in front of the

Kinexus building, and recalls Mr. Asad saying that he was uncomfortable entering the

building because he did not trust someone in there.

[303] Mr. McDuffie says that, after Mr. Asad returned to Kinexus, he was withdrawn

from the staff and did not participate in company social functions as he had done in the

past. Mr. Asad expressed frustration that a co-worker had reported him and caused the

RCMP to interrogate him. Mr. McDuffie says that Mr. Asad became more relaxed and

comfortable during the first quarter of 2002, and began to participate in conversations in

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the reception area. He was aware of conversations that Mr. Asad had had with Dr. Pelech

and Ms. Sutter, but he was not present and has no knowledge of the contents or substance

of those conversations.

[304] According to Mr. McDuffie, Mr. Asad’s relationship with Dr. McDermott

deteriorated after his return to work, and did not recover. Mr. McDuffie says that Mr.

Asad and Dr. McDermott worked very closely together, but Dr. McDermott “was the lead

and made the decisions”. Dr. McDermott had been happy with Mr. Asad, but complained

to Mr. McDuffie that, after Mr. Asad had returned to work in October 2001, he talked to

Dr. Pelech and Ms. Sutter instead of him. Dr. McDermott told Mr. McDuffie that, as far

as Mr. Asad was concerned, he was no longer “in the loop”. Dr. McDermott expressed

reservations about “losing responsibility”. Mr. McDuffie says that he believes that Mr.

Asad expressed his interest in reporting to Dr. Pelech rather than Dr. McDermott, and

says that Dr. McDermott complained that Mr. Asad was not keeping him informed about

IT matters.

G.

Sara Mirzaei

[305] Ms. Mirzaei is a research technician who commenced her employment at Kinexus

in January 2003. She describes herself as a non-practising Muslim. Her testimony with

respect to Kinexus’ overtime policy and Time Sheets accords with that of Mr. McDuffie.

Ms. Mirzaei says that, if you don’t hand in your Time Sheet, you sometimes get a

reminder to do so. Her employment at Kinexus overlapped with Mr. Asad’s for 2 ½

months. She did not work directly with Mr. Asad and did not know him well.

[306] Ms. Mirzaei identified a letter addressed “To Whom It May Concern” and dated

July 9, 2003 as one which she had written. In it she praises Kinexus’ management and

states that she has never felt discriminated against by any of the management team. In

cross-examination, Ms. Mirzaei acknowledged that she wrote the letter at the request of

Ms. Karia or another member of the Kinexus management team, saying: “I was asked

pretty much to write a reference letter for Dr. Pelech and Kinexus”. She had submitted

the letter to Ms. Karia.

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H.

Daniel Tarbuck

[307] Mr. Tarbuck began his employment as IT Systems Administrator at Kinexus on

April 23, 2003. At that time, Kinexus had approximately 15 employees. Before joining

Kinexus, Mr. Tarbuck had been employed elsewhere as an IT professional for eight

years, including seven years managing an IT consulting company. He reports to Dr.

Pelech. Mr. Tarbuck says that, a month or two after commencing his employment, he

began attending management meetings where he reports on IT matters.

[308] Mr. Tarbuck says that he was asked to review a copy of the Policy Manual on his

first day of work. Management members are expected to work a reasonable amount of

overtime without compensating time off or overtime pay. Depending on the

circumstances, he works an average of one – three overtime hours per month. He says

that Ms. Karia reminds you if your Time Sheet is not handed in on time.

[309] According to Mr. Tarbuck, anyone doing IT work would know how to handle a

firewall crash. However, in cross-examination, he agreed that “a firewall crash would be

challenging” for someone without training in network administration and that, in those

circumstances, it would be advisable to call in a consultant, even though that would be

expensive. He also acknowledged that, when he commenced his employment at Kinexus,

“things were working pretty well”, although some things were not configured in the usual

way. He did not know who was responsible for those configurations. He says that his

predecessor had some expertise and had done quite well.

[310] Mr. Tarbuck says that he has determined that, sometime between August 7 and

August 18, 2002, Mr. Asad’s photo on the Kinexus website was replaced by a 12-frame

animated image. He observes that K.C., another Kinexus employee, is the Kinexus

webmaster who takes care of the general design of the website. Mr. Asad’s image was

unavailable on the website from August 2002 until it was restored on or about June 27,

2003. He believes that he looked into the matter around that time because Ms. Karia and

Ms. Sutter had inquired about Mr. Asad’s image on the website in response to a request

from Mr. Asad’s counsel.

[311] Mr. Tarbuck says that changes to the website are only made at the request of Dr.

Pelech or, less frequently, Ms. Sutter. Because Dr. Pelech always wants to create a more

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dynamic website, he believes that Dr. Pelech probably gave the instruction to replace Mr.

Asad’s image with an animated one.

[312] Mr. Tarbuck says that Dr. Pelech listens to and respects him. He describes Dr.

Pelech as “quite a busy man”, but says that he is generally prompt in responding to Mr.

Tarbuck’s concerns and responds to most important issues immediately.

[313] When asked in cross-examination about categories of work set out in the Time

Sheets, Mr. Tarbuck looked at Dr. Pelech and asked him if he should answer the question.

I directed Mr. Tarbuck to do so, and not to look to Dr. Pelech for his answer.

[314] In contrast to Mr. Asad’s time allocations, Mr. Tarbuck generally allocates in

excess of 90% of his time to Administration in his Time Sheets, and has never allocated

less than 75%. Only in a couple of months when some of his time was spent on new

products did he allocate as much as 25% of his time to Research and Development.

I.

Catherine Sutter

1. Direct Examination

(a) Employment Background

[315] Ms. Sutter holds a Bachelor of Science degree in biochemistry from the

University of Victoria. She was employed as office manager at a shark research lab in

Florida before returning to BC where she first worked with Dr. Pelech in 1991 as a lab

manager. In 1992 Dr. Pelech started a company, Kinetek Biotechnologies Corporation,

where he was CEO, and Ms. Sutter went to work there. Dr. Pelech left Kinetek in 1998

and started a new company, Kinexus. Ms. Sutter became the first employee of Kinexus in

September 1999, working part-time and then full-time as Human Resources Director. In

that capacity, she prepared personnel documents such as the forms of Employment

Agreement, Performance Review and Time Sheets.

[316] In September or October 2002, Ms. Sutter assumed the position of Sales and

Marketing Director, although the appointment was not formalized until January 1, 2003.

Ms. Karia took over Ms. Sutter’s human resources role. Ms. Sutter is also the corporate

69

Secretary of Kinexus. In that capacity, she is responsible for the preparation of minutes of

shareholder meetings and corporate correspondence.

(b) Relationship with Mr. Asad

[317] Ms. Sutter says that at the end of 1999, Kinexus had two employees and a co-op

student in addition to herself and Dr. Pelech, and Kinexus was operating from Dr.

Pelech’s laboratory at the UBC Faculty of Medicine. Dr. Pelech raised over $1 million in

financing to expand Kinexus’ operations.

[318] By the end of August 2000, Kinexus had moved into its new facilities on the UBC

campus and had hired several new employees, including Mr. Asad. Ms. Sutter says that

she was not involved in hiring Mr. Asad. That was left to Dr. McDermott. However, she

and Dr. McDermott jointly prepared Mr. Asad’s job description and determined his

starting salary, and she prepared his Employment Agreement.

[319] According to Ms. Sutter, she and Mr. Asad thereafter enjoyed a good relationship.

They were the only Kinexus employees who regularly worked on weekends, so there

were ample opportunities for conversations which included discussions about his religion.

Ms. Sutter says that Mr. Asad had no difficulty talking about his religious beliefs. She

would sometimes give him a ride home from the office.

(c) Time Sheets – Prior to May 2002

[320] Ms. Sutter referred to a document titled “Time Allocation Report” which she says

all Kinexus employees receive on their first day of employment. She also asserts that Mr.

Asad would have received a copy when he first started work at Kinexus. However, I note

that an information line at the bottom of each page of the document indicates that it was

prepared on December 29, 2000, several months after Mr. Asad had commenced his

employment. I base that on the interpretation of such information lines in Kinexus

documents given by Ms. Sutter in her testimony.

[321] The document describes what is referred to in these Reasons as the Time Sheets.

It states, in part:

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… These records are necessary to determine the total amount of salaries,

wages and benefits … eligible for a tax credit under the Scientific

Research and Experiment Development (SR&ED) program by Revenue

Canada. SR&ED is the legal term for activities that qualify as research and

development for Canadian tax purposes and is defined as the systematic

investigation or search carried out in a field of science or technology by

means of experiment or analysis…

Revenue Canada requires detailed documentation of people’s SR&ED

activities, including time spent on a project and the activities completed

within a project. This involves maintaining time sheets that Revenue

Canada then links to salaries to form the basis of qualifying and non-

qualifying activities… Without accurate time sheets, Companies run the

risk of Revenue Canada disallowing part or all of the claim.

[322] The document then sets out details of the various categories and subcategories

into which employees’ time is to be allocated, and detailed instructions with respect to

completion of the Time Sheets. It states:

The time report must be completed, signed by the employee and

supervisor, and submitted to Human Resources within the first week of the

following month.

[323] Ms. Sutter says that the information contained in the Time Sheets is required by

the shareholders and directors of Kinexus, as well as by Revenue Canada. She adds that,

for audit purposes, Revenue Canada may ask to see the Time Sheets and speak to the

employees who completed them. In her former position of Human Resources Director,

Ms. Sutter says that her job was to get the Time Sheets from the employees, to send them

reminders to complete and hand them in to her, and to speak to them if they were late.

She adds that reminders are also published in the Kinexus Newsletters.

[324] According to Ms. Sutter, employees who were not engaged in research and

development, such as Mr. McDuffie and Kinexus’ Controller, were not initially required

to complete Time Sheets. However, after the departure of several members of

management in 2002, all employees were required to do so. The only exception was Mr.

Turner. Ms. Sutter describes him as the “part-time CEO” who is really a “figurehead”.

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(d) Mr. Asad’s August 2001 Performance Review and Salary Increase

[325] After describing the Kinexus performance review protocol, Ms. Sutter referred to

Mr. Asad’s performance review on August 22, 2001. She says that Mr. Asad was not

happy with two of Dr. McDermott’s responses in the Performance Review questionnaire,

and he discussed this with both herself and Dr. McDermott. As a result, Dr. McDermott

made changes as requested by Mr. Asad.

[326] According to Ms. Sutter, Mr. Asad demanded a substantial salary increase and

indicated that he intended to leave Kinexus if his compensation was not raised to industry

levels. Dr. McDermott agreed and promised Mr. Asad a substantial raise. Consequently,

it was agreed that, as of January 1, 2002, his salary would be increased to $55,000 per

annum, but the increase would not take effect until Kinexus had secured an additional $1

million financing.

[327] Ms. Sutter says that, although he signed off on the increase, Dr. Pelech was

unhappy about it, feeling that it set a bad precedent and was unfair to the other

employees. According to Ms. Sutter, Ms. Karia learned about Mr. Asad’s raise because

she was then working in the Kinexus payroll and accounting department. Ms. Karia

expressed her own unhappiness because she had already agreed to delay any increase in

her salary until after the financing had been secured, and, unlike Mr. Asad’s, her increase

was not retroactive.

[328] At that time, Kinexus was going through a financial crisis. To cut expenses, the

company laid off 1/3 of its employees in the spring of 2002. However, the additional

financing was secured in April 2002, and all the remaining employees, except Dr. Pelech

and Ms. Sutter, received raises. Mr. Asad’s, at 45%, was the largest. Ms. Karia’s salary

was increased by 21% to $55,000. Most other employees received a 10% increase. Ms.

Sutter’s salary remained at $60,000 and Dr. Pelech’s at $50,000.

[329] Later in her testimony, Ms. Sutter asserted that in May 2002, Mr. Asad

approached her and said that he wanted 10,000 share options. She says that she told Mr.

Asad that she would take it up with Dr. Pelech and Mr. Turner. She noted that, at that

point Dr. McDermott had left the company, so Mr. Asad was the only Kinexus employee

who had knowledge of IT.

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(e) Overtime Payments to Mr. Asad in 2001

[330] Ms. Sutter referred to the Policy Manual with respect to Kinexus’ overtime policy.

According to her testimony, overtime worked by a non-management employee is

compensated, with the approval of the employee’s supervisor, by equivalent time off. In

contrast, management employees do not get compensating time off because “management

is expected to work overtime to get the job done”. She says that this is justified by their

higher salaries and more interesting work.

[331] When asked who the members of management were prior to May 2002, she

responded: Dr. Pelech; herself; Dr. McDermott; Mr. McDuffie; J.W., the Controller; and

L.A., the Sales and Marketing Director. She identified Kinexus management after May

2002 as: herself, Dr. Pelech, Mr. Turner, Ms. Karia, Mr. Asad, and, after September

2002, Dr. H.Z.

[332] Ms. Sutter confirms that Mr. Asad received two payments for overtime. The first

related to the computer systems crash in August 2001 and was made at Dr. McDermott’s

suggestion. The second involved the restoration of lost e-mails in November 2001.

According to Ms. Sutter, over one year of Kinexus e-mails had been lost in the systems

crash, and Mr. Asad informed Ms. Sutter that Dr. McDermott would not give him

permission to restore them. Ms. Sutter says that, at her suggestion, Dr. Pelech authorized

Mr. Asad to work overtime to resolve the problem and also, albeit reluctantly, agreed to

pay him for the overtime work.

[333] Ms. Sutter also says that Dr. McDermott was very angry when he discovered that

Mr. Asad had restored the e-mails because he had done so without Dr. McDermott’s

authority, and wanted to fire Mr. Asad. Ms. Sutter says that she informed Dr. McDermott

that Dr. Pelech had authorized Mr. Asad to restore the e-mails.

[334] Ms. Sutter describes both payments as “unusual” because they “did not fit the

policy”, and says that no-one else has been paid for working overtime at Kinexus. She

also confirms that, in neither case, did Mr. Asad request overtime pay.

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(f) The Events of 9/11

[335] Ms. Sutter describes the atmosphere at Kinexus’ offices on 9/11 in these terms:

“Everyone was shocked. Hardly any work was done that day”. People were talking about

the attacks on the World Trade Center all day. However, she says that Mr. Asad “didn’t

seem as affected as the rest of us”, “his spirits seemed higher than everyone else”, and his

demeanour “was probably similar to an ordinary working day”.

[336] She recalls that Mr. Asad said that it was the best day to launch the Kinexus

website, and, although not certain, she thinks that Mr. Asad showed photos of his trip on

that day. She says that she thought the comment was “strange”. She was not involved in

the launch and did not know about it until sometime later: “It was news to me that it was

launched that day”.

[337] Ms. Sutter says that, at the time, her desk was just outside Dr. Pelech’s office, that

his office door is always open unless he is on the phone or in a meeting, that he is always

available unless he is busy, and that he has an excellent sense of hearing. Her desk was

located along the wall between Dr. Pelech’s office and the reception counter where Ms.

Stoute worked. People would congregate around the counter.

[338] Ms. Sutter says that she believes she became aware from photos that she saw

during the evening of September 11 that the terrorists responsible for the 9/11 attacks

were Arab and Muslim.

(g) The RCMP Investigation and Related Events

[339] Ms. Sutter recalls that, around 4:30 p.m. on the day of the first RCMP interview

of Mr. Asad, the RCMP officers called her from outside the office to announce their

arrival. She believes that Ms. Stoute had already left work, so she took the call. She

escorted them to Dr. Pelech’s office and provided them with the boardroom to interview

Mr. Asad. They were still there when she left to pick up her children.

[340] Ms. Sutter telephoned Mr. Asad that evening. He was very upset. He told her that

the police had interrogated him about his trip. She says: “I felt so bad for him”. She is

“pretty sure” that he told her at that time that he thought it was someone from Kinexus

who had reported him to the RCMP and that “he couldn’t believe that someone could

74

hate him that much”. Ms. Sutter recalls that she “could see the other side”; that someone

may have suspected him because he had been to New York shortly before 9/11.

[341] According to Ms. Sutter, that was followed by daily lengthy conversations during

the next week. After that, she says they conversed every few days until Mr. Asad returned

to work. Mr. Asad wanted the person who had reported him to admit what they had done

and apologize. Her recollection is that he initially suspected Ms. Stoute, Dr. S. and

another employee, J.S. She does not recall Mr. Asad saying anything about Ms. Karia.

Ms. Sutter says that she asked him if forgiveness was part of his religious beliefs, and

told him that “forgiveness is for you, not for the other person”.

[342] She tried to persuade him to return to work, saying that it would be better than

dwelling on it at home. He was absent from work for nine days. Ms. Sutter says that

Kinexus had no obligation to give him stress leave, but she asked Dr. Pelech who agreed

to give him nine days of stress leave. She asserts that Dr. Pelech was sympathetic to Mr.

Asad and did not put any pressure on him to return to work.

[343] According to Ms. Sutter, Dr. Pelech had a conversation with Mr. Asad during his

stress leave. She knows this because Mr. Asad said to her that Dr. Pelech had “slipped

and referred to a female as having called the RCMP”. She also learned from Ms. Karia

that Mr. Asad had called her, and “she was very upset”.

[344] Ms. Sutter says that she thought it was inappropriate for the RCMP to have

interrogated Mr. Asad at the office because it was very embarrassing for Mr. Asad. She

does not remember if the officers were in uniform or plainclothes.

[345] Later in her testimony, Ms. Sutter asserted that only a few people at Kinexus

knew about the interrogation because they saw Mr. Asad going into the boardroom with

the officers. She added that Ms. Karia knew because Mr. Asad had telephoned her.

(h) Newsletters and the September and October 2001 Editions

[346] Ms. Sutter says that the first Kinexus Newsletter was published in May 2001.

Thereafter they were published monthly, although she describes them as “a low priority

item”, so if she is busy, an issue might be skipped. The purpose of the Newsletters is to

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provide information and entertainment to employees. Ms. Sutter is responsible for their

publication and contents.

[347] Ms. Sutter recalls that Mr. Asad helped her write the article about his trip for the

September 7, 2001 Newsletter, and that he had shown her approximately 30 photos that

he had taken on his trip.

[348] The article about Mr. Asad’s interrogation by the RCMP, which appeared in the

October 2, 2001 Newsletter, came about at Ms. Sutter’s suggestion. She told him: “I think

it’s best to set the record straight”. Ms. Sutter says: “We wrote it together”, and she

acknowledges that she “may have edited it”.

(i) The 2001 Christmas Party

[349] Ms. Sutter says that, before 9/11, Mr. Asad had participated in the Kinexus social

functions: the international potluck, which originated from Ms. Stoute’s suggestion; the

pumpkin carving contest; and the Christmas lunch party. She remembers that, on

occasion, he did not eat until later in the day which she understood was because of his

observation of the Muslim month of Ramadan.

[350] After 9/11, he did not participate in those activities. However, Ms. Sutter also

recounts that in December 2001 people signed up to bring different treats over the

Christmas season, and that Mr. Asad would eat food brought by certain people such as

herself but not by others.

[351] According to Ms. Sutter, when she learned that Mr. Asad did not intend to go to

the Christmas party, she suggested to Dr. Pelech that he specifically invite him. Dr.

Pelech did so, but Mr. Asad did not attend. She says that, when she and Dr. Pelech

returned to the Kinexus office, Dr. Pelech told Mr. Asad that he was disappointed and

that his absence from the party “was not good for company unity”. She denies that Dr.

Pelech was “upset per se”, and maintains that Dr. Pelech did not yell at Mr. Asad. Indeed,

she says that she has never heard him yell at any employee. She describes Mr. Asad as

quiet and perhaps “embarrassed because you (Dr. Pelech) had given him an order and he

didn’t come”. The matter, she says, was never discussed again.

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(j) Dr. McDermott and the Financial Problems and Restructuring of Kinexus

[352] Ms. Sutter referred to what she describes as a “difference of opinion” between Dr.

Pelech and Dr. McDermott as to how Kinexus should be run. At the end of 2001, Kinexus

was running out of cash as anticipated sales had not materialized. Dr. McDermott was of

the view that the company should undertake a big sales campaign; Dr. Pelech believed

Kinexus should slow down research and development activities, lay off staff, and weather

the storm. Dr. McDermott took his concerns to the Chair of Kinexus’ Board of Directors.

[353] The Board decided to follow Dr. Pelech’s recommendation. A major corporate

shareholder of Kinexus agreed to invest $500,000, but on condition that its CEO, Mr.

Turner, be appointed CEO of Kinexus in place of Dr. Pelech. That took effect in late

April 2002.

[354] Dr. McDermott submitted his resignation on March 11, 2002, although he did not

leave Kinexus until April. Ms. Sutter says that, after he had learned of the resignation,

Mr. Asad told Ms. Sutter that Dr. McDermott was taking Kinexus data with him, and that

he felt he had to report this because the data were Kinexus property. According to Ms.

Sutter, “things started coming out about Dr. McDermott’s incompetence in IT”, and she

suggested that Mr. Asad put it in writing because it was important to have it documented.

[355] Referring to the 39-page confidential report dated April 4, 2002 addressed to

Human Resources, Ms. Sutter says that Mr. Asad prepared it after Dr. McDermott had

submitted his resignation but before he had left the company. She asserts that she “helped

Mr. Asad with editing”, but did not change the meaning of the report. She gave the

completed report to Mr. Asad to give to Dr. Pelech.

(k) Revisions to the Time Sheets and Time Sheets Policies – May 2002

[356] Although Ms. Sutter had earlier described Mr. Turner as a “part-time CEO” who

is really a “figurehead”, she says that changes to the Time Sheets were made in order to

reflect the information that he wanted to see. His objective of focussing on where

employees were spending their time on producing new products and commercial services

resulted in substantial changes to the Time Sheets and the applicable corporate policies.

77

[357] Those changes were the subject of a 5-page document titled “New Guidelines for

Time Allocation Reports” issued in May 2002. The introductory paragraph states:

The [Time Sheet] is a monthly record of the amount of time an employee

works on the corporate projects of Kinexus … These records are necessary

to determine the amount eligible for a tax incentive program offered by

Revenue Canada (… the SR&ED) to encourage Canadian Businesses to

conduct research to lead to new and improved technologies. For every

dollar invested by Kinexus towards eligible Research and Development

projects (R&D), Kinexus is eligible to receive back approximately 35%...

The document then describes various categories of work that are eligible and not eligible

for the tax credits, and continues:

Revenue Canada requires detailed documentation of employee activities

including time spent on a project and the activities completed within a

project. Without accurate time sheets, Companies run the risk of Revenue

Canada disallowing part of their claim. Kinexus requires employees to

complete the new electronic time sheets, initially on a weekly basis … and

then eventually on a monthly basis. Please email your weekly time sheets

to Cathy [Sutter] every Friday before you leave for the day.

[358] The document concludes with detailed instructions about the determination of

time allocation under five categories, one of which is Information Technology. It states

that IT is divided into R&D and Administration, sets out instructions on how to record

R&D work, and concludes:

• Work is considered as IT R&D if it involves developing a new system,

database, or software program. Once it becomes used for commercial or

operating purposes, it is considered as administration.

• All other work is considered as IT Administration, including work done on

the website.

[359] Ms. Sutter says that, prior to May 2002, 100% of Mr. Asad’s time was spent on

database management and recorded as such. However, in the new Time Sheets, Mr. Asad

had to allocate his time between Administration and R&D. She says that she helped Mr.

Asad with this transition. Ms. Sutter observes that Mr. Asad was sometimes slow in

doing his Time Sheets, so she would sit down with him and they would do them together.

She would type in the data, but says that it is up to the individual employees to decide

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what information to input. She denies telling Mr. Asad how to allocate his time between

Administration and R&D.

(l) Mr. Asad’s Salary, Stock Options and Title

[360] Ms. Sutter referred to an undated document titled “2002 Income & Benefits

Statement” which indicates that, as of June 1, 2002, Mr. Asad’s salary was $55,000 per

annum and he was eligible for 6,000 stock options per annum. The document also

includes the following: “Note: $7,166.67 still owing from January to May 2002 as per

contract”. She says that she prepared the document after meeting with Dr. Pelech and Mr.

Turner. According to Ms. Sutter, the increase in the number of share options was made to

reflect Mr. Asad’s new responsibilities; that is, that he was “basically running the IT

department as manager of the IT department” after Dr. McDermott’s departure.

[361] Mr. Asad expressed unhappiness about the number of share options. He wanted

10,000. According to Ms. Sutter, Mr. Asad said that he would only work as much as he

had to work, no more and no less.

[362] Ms. Sutter asserts that she informed Mr. Asad that he was a manager, but that he

denied it, saying that his title did not say “manager”. Ms. Sutter disagreed and told Mr.

Asad that he could be a manger without the title. She says that, on more than one

occasion, Dr. Pelech also informed Mr. Asad of his managerial status.

[363] Ms. Sutter says that no announcement was made about Mr. Asad’s appointment to

a management position, noting that, although Kinexus had previously announced

appointments or promotions in press releases, it ceased doing so in 2000.

(m) Ms. Karia and Changes in Position

[364] Ms. Karia was appointed as Controller in April 2002, following the departure of

her predecessor, J.W., in the wave of layoffs. The Director of Sales and Marketing, L.A.,

also left the company. When no suitable candidates presented themselves, Dr. Pelech and

Mr. Turner asked Ms. Sutter to take on that role. Ms. Sutter says that she “unofficially”

started in September, although her appointment as Director of Sales and Marketing was

not officially made until January 2003.

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[365] Ms. Karia took over Ms. Sutter’s responsibilities for human resources in addition

to her ongoing role as Controller. Ms. Karia did not receive a salary increase to reflect her

added role, although she was already being paid less than J.W. had been paid as

Controller.

[366] Mr. Turner drew Ms. Sutter’s attention to the fact that Ms. Karia was

accumulating overtime hours in her Time Sheets. Ms. Sutter advised Ms. Karia that she

could not do so, because she was now a manager. Ms. Karia expressed her unhappiness,

saying that was unfair because Mr. Asad was accumulating overtime.

(n) Computer System Crashes – October and November 2002

[367] At the beginning of November 2002, Ms. Sutter and Dr. Pelech were at a

conference in Florida when they learned that the Kinexus computer system had crashed.

She recalls Dr. Pelech saying to Mr. Asad on the telephone to go ahead and fix the

problem. When they returned to Kinexus around November 9, they expected the problem

to have been resolved but discovered that the e-mail system and the website were not

operational.

[368] Ms. Karia informed Ms. Sutter that, during the absence of herself and Dr. Pelech,

Mr. Asad had spent a lot of time talking to other employees. Ms. Karia told Ms. Sutter

that when she asked Mr. Asad what he was doing to fix the computer problem, Mr. Asad

replied: “It’s not my problem, it’s Steve’s problem”, and that he was waiting for Steve

(Dr. Pelech) to do something.

[369] Ms. Sutter recalls that Mr. Asad approached her and asked her to prepare his time

calculations for October and November. He told her that he wanted to be paid for his

overtime, calculated in accordance with Employment Standards Branch regulations. She

asserts that she told Mr. Asad that he was not eligible for overtime pay and that the

overtime issue would be discussed at a meeting. She says that there were a lot of issues

that needed to be discussed and clarified which, in cross-examination, she said involved

Mr. Asad’s performance with respect to the firewall crash and his attitude in the

workplace. However, he wouldn’t leave her desk until she did the calculations. Ms. Sutter

says that she quickly did the calculations and gave him a copy. In cross-examination, Ms.

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Sutter confirmed that this was the only occasion on which Mr. Asad ever claimed

overtime pay.

[370] According to Ms. Sutter, on November 28, Dr. Pelech realized that Mr. Asad was

not at work. He telephoned Mr. Asad at home, asking him why he was not at work and

saying that he was worried that the co-op student would not be able to handle the

situation if another computer crash occurred while Mr. Asad was on vacation. She recalls

that the discussion “went back and forth” between Dr. Pelech and Mr. Asad, and that Dr.

Pelech said: “We’ll pay you Ghassan”. Mr. Asad came to work later that day and signed

out at 1:35 a.m. the following day. Ms. Sutter says that she does not know what he did

that day.

[371] Mr. Asad attended work on November 29, and purchased a battery for the

computer system. Ms. Sutter denies that she authorized the purchase, although she says

that the old battery was faulty and caused the e-mail, and possibly the firewall, crash.

[372] Ms. Sutter says that Dr. Pelech asked Mr. Asad to postpone his vacation, and

offered to pay him the resulting difference in airfare. However, Mr. Asad refused to do

so, saying that he could not postpone his trip.

[373] Ms. Sutter asserts that, around this time, Mr. Turner wanted to fire Mr. Asad.

(o) The 2003 Time Sheets, Performance Reviews and Mr. Asad’s Termination

[374] According to Ms. Sutter, Ms. Karia asked Mr. Asad many times for his January

and February 2003 Time Sheets, but Mr. Asad refused to complete and submit them until

he had been paid for his overtime work. Ms. Sutter says she also made the same requests

to Mr. Asad.

[375] She recalls that, on March 6, she was sitting at a desk beside Mr. Asad’s when Dr.

Pelech approached and said to him: “No Timesheets, no job. Complete your Timesheets”.

Ms. Sutter says that Dr. Pelech spoke in a “firm voice” but did not yell at him. After Dr.

Pelech left, she said to Mr. Asad: “Ghassan, please do your Time Sheets”. She says that

thereafter she and Ms. Karia repeated their requests to Mr. Asad every day but to no

avail.

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[376] In the meantime, Mr. Asad had not had his annual performance review. According

to Ms. Sutter, no performance reviews were conducted in 2002 because there had been so

many departures from the company. Ms. Sutter describes 2002 as “a period of real

turmoil” and “a transition year”.

[377] It was decided that Dr. Pelech would do the reviews in January 2003, and Mr.

Asad submitted his Employee Assessment form on January 9. However, Mr. Asad’s

review was delayed because Dr. Pelech was out of town.

[378] Pointing to Sections 8.2 and 8.3 of Mr. Asad’s Employment Agreement, Ms.

Sutter asserts that he was terminated for cause because he had refused to complete and

submit his Time Sheets, in direct contradiction of specific orders from his supervisor.

[379] Finally, Ms. Sutter asserts that Mr. Asad never complained to her about

discrimination. She says that she had not even heard the word “discrimination” until after

his termination. According to Ms. Sutter, compared to other employees, Mr. Asad

actually received “special treatment”.

(p) Other Incidents Involving Mr. Asad

[380] Ms. Sutter gave evidence about a number of other issues relating to:

• Kinexus employee benefits, including the pension plan and Employment

Insurance premiums;

• a Newsletter article about computers written by J.S., to which Mr. Asad

responded with an e-mail to all employees to correct what he perceived to be

errors but which offended J.S.;

• Mr. Asad’s refusal to forward L.A.’s e-mails to his personal e-mail address

unless L.A. directly requested him to do so; and

• company policies limiting the accumulation of vacation time, as a result of

which Mr. Asad decided to use up his vacation time by taking his vacation in

December 2002.

Ms. Sutter asserts that Mr. Asad frequently questioned and challenged Kinexus’ policies

and procedures. She says that this made him a “very challenging employee”, and

expresses the view that he sometimes engaged in unnecessary, prolonged and

argumentative discussions with her. She adds that the aftermath of 9/11 required a lot of

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her time, and that, of all the employees with whom she has dealt, she spent more time

with Mr. Asad than any other.

2. Cross-examination

(a) Mr. Asad’s Title

[381] Ms. Sutter agreed that, in 2001, Dr. Pelech had approved an increase in Mr.

Asad’s salary to $55,000 while Dr. McDermott was still employed by Kinexus and Mr.

Asad’s supervisor. When questioned about the change in Mr. Asad’s job title resulting

from his August 2001 performance review, Ms. Sutter at first hesitated but then agreed

that it reflected a promotion. She also agreed that, at that time, Mr. Asad was not a

member of the management team.

[382] She asserted that Mr. Asad became a manager after Dr. McDermott had left

Kinexus in April 2002. Ms. Sutter agreed that, following Dr. McDermott’s departure

from Kinexus, Mr. Asad wanted the title of IT Manager or IT Director because he was

then doing the work of an IT manager. She acknowledged that Mr. Asad discussed this

matter with her in May 2002, and he expressed to her his view that Dr. Pelech ought to

confer the title on him without him having to ask for it.

[383] Ms. Sutter said that she raised this subject when she met with Dr. Pelech and Mr.

Turner in June 2002 to discuss the matter of Mr. Asad’s stock options. They decided not

to give him the title of IT Manager until they saw how he performed during the next

several months. They thought it was unnecessary and inappropriate to change the title at

that time, and decided to re-evaluate the situation in a year or so, although she added that

no definite time frame was set. According to Ms. Sutter, because the company was going

through a lot of changes, and because Mr. Asad did not have much experience, they

wanted to wait to see how Kinexus evolved, and how Mr. Asad performed. When asked

in what areas Mr. Asad was perceived to be lacking experience, Ms. Sutter responded

“management”.

[384] Ms. Sutter said that Mr. Asad managed co-op students. The first was hired in

September 2002 to fill in for Mr. Asad while he was on vacation in December. Others

were hired after his return, to work on particular projects.

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[385] According to Ms. Sutter, that was the only time the subject of Mr. Asad’s

management title came up, and she does not believe that Mr. Asad “pushed to have his

title changed”.

(b) Performance Reviews

[386] Ms. Sutter describes 2002 as a “tough year” during which many employees were

doing extra work. She says that a decision was made to conduct all performance reviews

in a concentrated period rather than on the employees’ individual anniversary dates as

had been the practice in the past. She did not recall when that decision was made but said

that employees were informed that the reviews would take place in 2003. However, when

shown an article titled “Performance Reviews” in the November/December 2002 Kinexus

Newsletter, which she had written, she agreed that employees had been advised that the

reviews would take place in December 2002.

[387] In response to related questions, Ms. Sutter agreed that the Kinexus Employment

Agreements and Policy Manual do not necessarily reflect current company policies and

practices. Those policies and practices may change, but it is impractical to amend the

Agreements and Manual each time. She described the Manual as containing “guidelines”.

(c) Ms. Sutter’s View of Mr. Asad

[388] During her direct examination, Ms. Sutter described Mr. Asad as “very bright”,

knowledgeable about IT, and possessing “incredible potential”. She described how she

would call him on weekends if she was experiencing a computer problem, and he would

talk her through a remedy over the telephone.

[389] When asked if she would call him often during weekends, Ms. Sutter asked for a

definition of “often”. Mr. Asad’s counsel directed Ms. Sutter to her will-say statement in

which she had said that she “would often call him for help on weekends”.

(d) The Events of 9/11 and Their Aftermath

[390] Ms. Sutter admitted that she did not know if Mr. Asad was involved in the launch

of the Kinexus website on September 11, 2001. When asked if Dr. Pelech or Dr.

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McDermott had the authority to postpone the launch, Ms. Sutter provided evasive

answers before agreeing that they could have “given the word” to stop the launch.

[391] Similarly, in response to questions about Mr. Asad’s demeanour on that day, Ms.

Sutter was hesitant before responding: “I don’t know if he was pleased. I know that he

was from Palestine, Jordan, the Middle East. Perhaps he had seen other things in his life

that were shocking, so maybe he wasn’t so shocked”. She went on to say that Mr. Asad

normally tends to be an enthusiastic person, and seemed to be “more the same person

than everyone else” on that day.

[392] Ms. Sutter said that she gave Mr. Asad a great deal of advice after the RCMP had

interviewed him. She advised him that: “He had to come to terms with what happened.

The only control you have is how you respond to it. Deal with it and get on with it. He

had to move on… He would have to find a way to deal with it and get on with life”. She

added: “That was the way I would have dealt with the situation if it happened to me”.

[393] Ms. Sutter admitted that she knew that Mr. Asad “thought it had to be an

employee of Kinexus that reported him to the RCMP”. She agreed that Mr. Asad’s race

was a factor in why the person who had reported him did so, saying that it was part of a

“package” or “combination”. According to Ms. Sutter, if it had just been his race, it

would not have been acceptable to report him. However, his race and religion, combined

with the fact that he had just been to New York before 9/11, and perhaps his gender made

him “suspicious enough” and justified reporting him to the police. His circumstances, she

said, “fit the profile” enough to warrant a call. The “profile” to which she referred

included Mr. Asad’s race and religion, and the fact that he was a young, single male. She

then reiterated that she advised Mr. Asad to “deal with it and move on”.

[394] Ms. Sutter maintained that Mr. Asad’s trip “is a huge part of it”, and that “if he

hadn’t taken the trip, it wouldn’t have happened”. Ms. Sutter was asked if a Caucasian

person had taken the same trip at the same time, would that person have been reported to

the police. After a long pause and much hesitation, Ms. Sutter replied: “I don’t know

what to say”.

[395] She acknowledged that she knew that Mr. Asad believed a co-worker had reported

him to the police because he is Arab and Muslim. Ms. Sutter also agreed that, “trying to

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put myself in his place”, she would expect that, after 9/11, Mr. Asad would accord

different treatment to the person he believed had reported him to the police. When asked

if Kinexus could have done anything about the fact that an employee had called the

RCMP, Ms. Sutter said that: “We honestly felt we could not force that person to make

themselves known to (Mr. Asad)”.

[396] Ms. Sutter was then asked if Kinexus had taken any action to see that no-one

treated Mr. Asad differently after he had returned to work. She responded: “Yes. I was

observant of him”. According to her, all of the employees went out of their way to be

sympathetic, especially after they had read Mr. Asad’s Newsletter article about his

experience. For her part, she said that she “tried to nurture him back” and spent a lot of

time with him.

[397] Ms. Sutter acknowledged that she had heard comments from employees who were

“quite shocked” by the 9/11 events, and said that she spoke to a few employees about the

need to make sure that Mr. Asad felt a part of, and welcome at, the company. When asked

which employees she had spoken to, Ms. Sutter named only Dr. Pelech, Dr. McDermott

and Ms. Karia.

[398] Ms. Sutter was asked if Kinexus had made any statement to its employees that

targeting someone because of race is discriminatory. She replied: “No, no memo was put

out”. Ms. Sutter also acknowledged that Kinexus did not provide any anti-harassment or

sensitivity seminars or other training to its employees, either before or after 9/11. She

also stated that Kinexus did not and does not have an anti-discrimination policy.

[399] When questioned further on what Kinexus had done after Mr. Asad’s return to

work, she said that the plan was: “To observe. To make (Mr. Asad) comfortable. Go the

extra mile for him”.

[400] Ms. Sutter says that she and Mr. Asad had frequent conversations about the

aftermath of 9/11 for the first month after his return to work on October 1, 2001, and

thereafter “from time to time”. They had no further discussions about the subject after

February 2002.

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[401] Upon his return to work, Ms. Sutter describes Mr. Asad as “very anxious”, and

concerned about his co-workers not knowing how to respond to him. She disagreed with

the observation made by Ms. Karia in her will-say statement that: “Ghassan appeared to

be in much better spirits and he seemed fine in the months following my return to

Kinexus on October 23^rd, 2001”. According to Ms. Sutter, he was not “fine”. He

continued to want disclosure of the identity of the person who had reported him to the

police. She continued to urge him to move on and “see things in a different light”; that is,

to understand why the person had reported him. In attempting to reassure him, she told

him that he fit the profile of the terrorists and that the person had a duty to call the police.

Ms. Sutter also referred to Mr. Asad’s activities in the workplace as giving rise to

suspicions.

[402] When asked to explain to what activities she referred, Ms. Sutter replied that she

meant Mr. Asad showing photos of the World Trade Center on 9/11 while making joking

comments about them being “the last pictures”; and saying that it took a lot of courage to

fly the planes into the buildings. When questioned further, Ms. Sutter admitted that she

had not heard Mr. Asad making such remarks, and that she had been told about them by

Ms. Stoute and Ms. Karia. She was unclear in her recollection of when they told her.

[403] Later in her cross-examination, Ms. Sutter stated that she first heard Ms. Karia

mention Mr. Asad’s comment about the courage required to fly the airplanes into the

World Trade Center when they were preparing for this hearing. Ms. Sutter said that she

thinks that Ms. Karia was present when Mr. Asad made that comment, but she is not

certain. She admitted that the only remark she had heard Mr. Asad make on 9/11 was that

it was the best day to launch the Kinexus website.

[404] Ms. Sutter acknowledged that Dr. Pelech had ordered Mr. Asad to attend the

Christmas party, saying that Dr. Pelech wanted to “get (Mr. Asad) back into the

company” for the sake of “company unity”. She initially expressed the view that it was

appropriate to order Mr. Asad to attend. However, when asked if it would be appropriate

to order attendance by a female employee who had alleged that an attendee had sexually

harassed her, she demurred, saying first that “the issue would have been dealt with better

before that” and then that such an order would be inappropriate.

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[405] Ms. Sutter maintained that Mr. Asad had never complained of discrimination. She

acknowledged that she knew that he felt he had been targeted because of his race.

However, she continued to assert that what Mr. Asad had experienced was not

discrimination because “It wasn’t just race”. It was also “where he’d been, his behaviour,

all those things”. When asked, if Mr. Asad had been targeted solely because of his race,

would that be discrimination, Ms. Sutter replied: “I guess so”.

(e) Change in Overtime Policy

[406] Ms. Sutter said that the company overtime policy for managers was changed at the

time that Dr. H.Z. commenced employment at Kinexus in October 2002, so that managers

would no longer be entitled to time off for overtime hours worked. She acknowledged

that employees were not given a copy of the new policy; instead she verbally advised the

affected employees. Although the Policy Manual was amended, only the Human

Resources department had a copy of the amended Manual.

(f) The April 4, 2002 Confidential Report

[407] Ms. Sutter said that, after learning that Dr. McDermott was leaving Kinexus, Mr.

Asad informed her that Dr. McDermott had asked him to copy the company’s entire

database onto his computer. He expressed other concerns as well. Ms. Sutter said that she

asked Mr. Asad to document his concerns in a report. She stated that she helped Mr. Asad

write the report in terms of editing and grammar, but “tried not to make it my report”. It

was given to Dr. Pelech.

(g) Mr. Asad’s Work Habits

[408] Ms. Sutter was directed to a document which she acknowledged had been

prepared by Kinexus in defence of Mr. Asad’s Complaint and into which she had input

(the “Defence Document”). She initially agreed with the statement contained therein that,

commencing in or around June 2002, Mr. Asad “worked only the minimum number of

hours required and nothing more”. Ms. Sutter stated that, from June through November

2002, Mr. Asad only worked eight hours a day and did not work longer hours or on

weekends as had been his past practice.

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[409] However, she admitted that she had not been keeping track of his hours; nor had

she examined his Time Sheets. When Mr. Asad’s 2002 Time Sheets were put before her,

she acknowledged that they reflected that, in fact during that period, he had worked more

than eight hours on many weekdays and, except for June, on two weekends each month.

His November Time Sheet indicates that, in that month, he regularly worked nine or ten

hours per weekday, as well as two weekends and a statutory holiday.

(h) Newsletters

[410] Ms. Sutter confirmed that she is largely responsible for putting together the

monthly Kinexus Newsletter, and that she is responsible for editing it and ensuring that

its contents are satisfactory. She also acknowledged that she does so in the context of

Kinexus’ multi-cultural environment, and tries to ensure that material that is offensive or

culturally insensitive is not published.

[411] In response to questions, Ms. Sutter said that the use of the term “Chinaman”

could be acceptable in a joke, saying that “It depends on the joke”. She later added: “I

don’t know if Chinese people find that offensive. I guess I’m not up on those things”. She

drew a distinction between Chinese males and females, indicating that because, in her

view, “Chinaman” refers to a Chinese male, Chinese females would probably not be

offended. When she was directed to a joke published in the Newsletter which uses the

term “Chinaman”, Ms. Sutter said: “In this particular case, I don’t think it’s meant in a

negative way”.

[412] When asked if the term “nigger” could be appropriate, Ms. Sutter replied: “You

have to be careful. It depends on who you’re talking to”. She said that: “If you’re not

cutting someone down, it might be okay”, and that its appropriateness would depend on

the audience and the meaning and context of the joke. After further thought, she said that

the use of “nigger” would probably not be appropriate.

[413] Ms. Sutter defended other jokes published in the Kinexus Newsletter, saying that

people like them, and they are not meant to hurt anyone because they are not directed at

any particular individual.

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(i) Ms. Stoute’s Suspicions and Ms. Karia’s Reports of Mr. Asad’s 9/11 Comments

[414] Ms. Sutter described Ms. Stoute as “conflicted” because she and Mr. Asad had

socialized together before 9/11, and they were friends. Ms. Sutter says that Ms. Stoute

had a “doubt in her mind that (Mr. Asad) may have known something about the (9/11)

attacks”. That “doubt” was largely based on comments he had made and the fact that he

had recently been in New York, but there were other “items” as well. Those included:

• Mr. Asad had had a roommate, described by Ms. Stoute as “secretive”, who,

according to her, disappeared shortly after 9/11; and

• a confrontation between Mr. Asad and a customs officer when Mr. Asad

crossed the border back into Canada on his trip.

[415] Ms. Sutter sat beside Ms. Stoute in the Kinexus office. They discussed Ms.

Stoute’s concerns about Mr. Asad’s possible involvement in the 9/11 attacks because of

what she perceived to be his “odd behaviour”. Ms. Sutter said that she has no clear

recollection of her conversations with Ms. Stoute, but acknowledged that she agreed with

Ms. Stoute that Mr. Asad’s comments and behaviour were strange. Ms. Sutter

acknowledged that she considered Ms. Stoute’s doubt and concerns to be reasonable, and

that they caused her to “wonder as well”.

[416] With respect to the Defence Document, Ms. Sutter believes that Ms. Karia may

have made the comments, referred to therein, about the coincidence of Mr. Asad’s trip

being so close in time to 9/11. Ms. Sutter also said that Ms. Karia wrote the reference to

Mr. Asad showing photos of the Pentagon. She recalled seeing photos of the World Trade

Center, but has no memory of Mr. Asad showing any of the Pentagon or White House, as

stated in the Defence Document.

(j) Who Reported Mr. Asad to the RCMP?

[417] Ms. Sutter stated that Ms. Stoute was not the person who had reported Mr. Asad

to the RCMP. She further stated that she does not know what information the person who

did so had about Mr. Asad. Ms. Sutter went on to say that that person did not actually call

the RCMP. Rather, the person had an acquaintance, an RCMP officer, and mentioned Mr.

Asad to the officer. The officer then “took it upon himself to conduct the investigation”.

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[418] Ms. Sutter was reminded that the Defence Document states:

… However, one employee thought Mr. Asad’s recent trip may not have

been coincidental, and after serious consideration, felt it was their duty to

report the situation to the RCMP…

[419] It is also noted that Kinexus’ Response to the Complaint states:

… After the attack, someone from Kinexus (an employee who is no longer

with the company) thought his recent trip may not have been coincidental

and reported him to the RCMP who came to investigate. Ghassan was very

upset that someone from the workplace believed he could be involved in

any terrorist activity, and took 9 days off work on “stress leave” which

was paid for by Kinexus ...

[420] Ms. Sutter stated: “That’s what I believed was the case. But recently I found out it

wasn’t an employee”. She said that she believed Kinexus had discovered in October 2004

the identity of the person who had reported Mr. Asad, and that Kinexus had informed Mr.

Asad’s counsel of their error in October.

[421] Ms. Sutter said that Kinexus had been advised by legal counsel not to disclose the

identity of the person unless ordered to do so. Ms. Sutter was asked who had reported Mr.

Asad to the RCMP. I ordered her to answer the question. Ms. Sutter responded that it was

Ms. Stoute’s sister, Heather.

J.

Mira Karia

1. Direct Examination

(a) Personal and Employment Background

[422] Ms. Karia holds a Bachelor of Commerce degree and was completing work on a

Certified Management Accounting (“CMA”) designation. She had worked for Dr. Pelech

as an accountant at his previous company, Kinetek, from 1997 to 2000. Ms. Karia

commenced employment with Kinexus in December 2000 as a part-time, then full-time,

accountant, reporting to the Controller, J.W.

[423] Following J.W.’s departure, she was appointed as Controller and became a

member of management in May or June 2002, reporting first to Mr. Turner and then to

Dr. Pelech. Ms. Karia was appointed Director of Human Resources in January 2003. In

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cross-examination, Ms. Karia stated that her salary had been recently increased to

$80,000 per annum and her share options were increased to 50,000.

[424] Ms. Karia describes herself as a Hindu Indo-Canadian. She was born in Uganda

and immigrated to Canada with her family, becoming a Canadian citizen in 1977.

(b) Description of Kinexus and Dr. Pelech

[425] Like all of the witnesses called by Kinexus, Ms. Karia described the work

environment as multi-cultural with an ethnically diverse staff. When asked for examples

of Kinexus’ multi-cultural environment and policies, Ms. Karia cited the international

potlucks, the Easter holiday policy, pumpkin carving contest, and D.W.’s use of the board

room to pray. Ms. Karia testified that she socialized with D.W. and her spouse, and has a

Muslim hairdresser.

[426] She denies ever having witnessed or heard of any acts of discrimination at

Kinexus, and says that employees are treated with respect and dignity. Ms. Karia testified

that, if she had experienced any discriminatory act, she would have reported it to Ms.

Sutter, Dr. Pelech or the Board of Directors.

[427] Ms. Karia says that she has known and worked with Dr. Pelech and Ms. Sutter for

seven years. She refers to a letter of reference that she wrote for them dated July 10,

2003. In response to questions put to her in direct examination, Ms. Karia was effusive in

her praise for Dr. Pelech’s personal qualities. According to her, his office door is always

open and he always answers his telephone, even though “he is a very, very busy man”.

She finds it impossible to believe that he could harbour racist views.

(c) The Events of 9/11 and Their Aftermath

[428] Ms. Karia testified that she learned of the 9/11 attacks from her sister before she

left for work. Referring to her Time Sheet for that day, Ms. Karia says that she was at

Kinexus from 8:00 a.m. until 7:35 p.m., and that she was very busy because she was

getting ready to go on leave to prepare for her CMA examinations in October. According

to Ms. Karia, she was on leave September 12-October 23, so September 11 was her last

full day at work.

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[429] She describes herself as feeling “shock and sadness”, and Mr. Asad as “quite

jovial and cheerful” that day. Her recollection is that they had one conversation on 9/11.

Mr. Asad showed her photos of the Twin Towers of the World Trade Center and “many

monuments” in New York, and that he made a comment about how much strength and

resolve it would take to fly the airplanes into the buildings, “like he was very proud”. Ms.

Karia also asserts that Mr. Asad was very proud that he had taken his photos of the World

Trade Center. She says that she acknowledged their importance because of the events of

that day, and asked him for a copy of a photo of the Twin Towers, adding that he

promised to give her a copy but never did so.

[430] Ms. Karia also says that Mr. Asad “went on how coincidental it was” that he had

been in New York and Washington a few days before the attacks. She says that she was

“shocked and disappointed” by his reaction, and that she agreed with him that it was

coincidental. According to Ms. Karia, Mr. Asad laughed and said that people who saw

the photos would think he was a terrorist and involved in the attacks. She denies ever

making any comment about Mr. Asad’s religion or about him being a terrorist.

[431] According to Ms. Karia, Mr. Asad then began talking about politics. She says that

she makes a point of never discussing politics or religion in the workplace (an assertion

she repeated several times during her testimony), so she did not engage in discussion, and

Mr. Asad “seemed fine with that”. Ms. Karia is unable to remember where her desk was

located on 9/11. She does not think anyone else was present at, or could have overheard

the conversation between herself and Mr. Asad, but admits that she cannot be certain.

[432] Referring again to her Time Sheets, Ms. Karia says that she worked between 8:40

and 9:30 a.m. on September 13. Although the sign-in/out sheet for that day indicates that

she was in the office during that time, Ms. Karia says that that might be time she worked

at home. She says that the sign-in/out sheet shows that neither Ms. Stoute nor Ms. Sutter

was in the office before Ms. Karia had signed out at 9:30, and that Mr. Asad had arrived

at 9:00 a.m. On that basis, Ms. Karia says that she could not have seen either Ms. Stoute

or Ms. Sutter on September 13, although she acknowledges that she does not recall much

about the events of that day.

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[433] According to Ms. Karia, she learned about the RCMP interview of Mr. Asad when

he telephoned her at home. She recalls that he was “quite upset”, “embarrassed and

stressed”, and asked if she had reported him to the police. She replied that she had not,

and says that she “felt for him” and tried to console him. Mr. Asad asked if she knew who

had reported him, mentioning Ms. Stoute, J.S. and Dr. S. as the people he suspected. She

told him she did not know who had reported him. Ms. Karia describes Mr. Asad as “very

upset but very polite, not antagonistic”. She says: “I think he knew I wouldn’t report him,

so I think he called me to fish for information”.

[434] About a week later, she telephoned Mr. Asad to see if he was okay, and he

expressed his gratitude for her call. She says that she did not see Mr. Asad until she

returned to work on October 23. According to Ms. Karia, Mr. Asad has never complained

to her about her treatment of him, or accused her of being a racist.

[435] She testifies that, to the best of her knowledge, no Kinexus employee reported Mr.

Asad to the RCMP, and that she learned from Ms. Sutter the identity of the person who

had reported him. Ms. Karia also expresses the view that it was not Kinexus’

responsibility to find out who had reported Mr. Asad to the RCMP, and that that person

was only performing a “civic duty”.

[436] In her view, it was inappropriate for the RCMP to interrogate Mr. Asad at

Kinexus, causing him unnecessary embarrassment and stress. However, Ms. Karia

asserted that it was not a work-related matter, although she acknowledged that the

interrogation had affected how Mr. Asad was perceived by others in the workplace.

[437] Ms. Karia professed ignorance as to the reasons why someone had reported Mr.

Asad to the RCMP. When directed to Kinexus’ submissions that refer to that subject, Ms.

Karia attributed the statements to Ms. Sutter. She similarly denied any knowledge of Mr.

Asad’s views as to those reasons, saying that she had only a vague recollection of his

Newsletter article which spoke to that subject. She added that she is oftentimes too busy

to read the Newsletter.

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(d) Relationship with Mr. Asad

[438] Ms. Karia describes Mr. Asad as very knowledgeable about computers and a

person with “incredible potential”. She says that Mr. Asad helped her on many occasions

to solve computer problems at work, and also assisted her and her sister to set up and

maintain their personal computer which they share at home. Ms. Karia says that she

offered gift certificates and money to Mr. Asad as payment for his services with respect

to the home computer, but he always declined them, saying that he would not charge for

helping friends.

[439] According to Ms. Karia, she did not socialize with Mr. Asad outside of the

workplace, but describes their relationship as “polite and cordial” and says that they were

always on friendly terms. However, Ms. Karia adds that she “backed off” during the last

six-eight months before Mr. Asad’s employment was terminated because she “was

disappointed in his demeanour”.

[440] In Ms. Karia’s view, Kinexus “went out of the way” to treat Mr. Asad well,

saying that the staff was extremely sensitive. Ms. Sutter “spent countless hours

counselling him, trying to support him”, and Dr. Pelech made a special effort to invite

him to the Christmas party. She describes Mr. Asad and Ms. Sutter as “very, very close

friends”, and says that Ms. Sutter edited his reports and sometimes did his Time Sheets

for him.

[441] According to Ms. Karia, after his return to work in October 2001, Mr. Asad was

“moody at times”. Ms. Karia accuses Mr. Asad of deliberately, and without authorization,

slowing down the computer accounting system in January 2002 and telling her that it was

his way of retaliating against her. He no longer talked to Ms. Stoute very much.

[442] His mood improved after the layoffs and departures of employees that occurred in

February and April 2002. Ms. Karia asserts that, over time, Mr. Asad saw that he was part

of the group and began to attend Kinexus social functions. She refers, in this regard, to

the summer party where Mr. Asad supplied the food and the 2002 Christmas party.

[443] However, during the last six months of his employment, Mr. Asad became

“defiant and argumentative”. Ms. Karia alleges that, when the computer system crashed,

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“he did not do as much as he could have done”, and quotes Mr. Asad as saying that he

knew the cause of the problem but, because he was not management, it wasn’t his place

to fix it; it was up to Dr. Pelech. Ms. Karia asserts that she saw Mr. Asad sitting and

talking to other employees and taking long coffee breaks when he should have been

working on fixing the problem. He criticized Dr. Pelech and Dr. McDermott and the

company’s management generally, and questioned their administrative decisions and

Kinexus’ corporate policies and procedures. Mr. Asad also argued with Ms. Sutter about

his management status and, according to Ms. Karia, manipulated Ms. Sutter into doing

his Time Sheets for him.

(e) Overtime Policy and Time Sheets

[444] Ms. Karia states that she understood from the commencement of her employment

at Kinexus that, under the company’s policies, employees were not entitled to receive

overtime pay but were eligible for compensating time off. She was aware that Mr. Asad

had been paid twice for overtime, and says that Ms. Sutter advised her that it was because

of “extraordinary circumstances”.

[445] Ms. Karia says that, in the summer of 2002, Ms. Sutter advised her that Mr.

Turner had instructed that she should no longer be accruing overtime because, with her

appointment as Controller, she had become part of management in June. Ms. Karia says

that she responded that the policy should apply to all management personnel, including

Mr. Asad. Ms. Sutter replied that she would raise the matter with management and then

discuss it with Mr. Asad.

[446] Ms. Karia testified about the need for the Time Sheets for accounting and R&D

purposes, and the importance placed on them by Mr. Turner. She states that she asked for

Mr. Asad’s January 2003 Time Sheet, but he refused, saying that he would not submit it

unless he received the overtime pay he claimed he was owed, referring to some

arrangement that had been made between himself and Dr. Pelech. Dr. Pelech was out of

town at the time, so Ms. Karia approached Ms. Sutter. Ms. Sutter advised Ms. Karia that

the matter of Mr. Asad’s overtime claim and other “performance issues” would be dealt

with at Mr. Asad’s performance review. When Ms. Karia suggested to Mr. Asad that he

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prepare a report on his overtime for Dr. Pelech, he replied that he preferred to wait until

the performance review.

[447] Ms. Karia expresses her view that, in addition to the need for Mr. Asad’s Time

Sheets for accounting purposes, it was unfair to expect all other employees to complete

their Time Sheets without requiring the same of Mr. Asad.

[448] Ms. Karia testifies that she was aware of both the verbal and written warnings

which Dr. Pelech gave to Mr. Asad about his Time Sheets, and that both she and Ms.

Sutter tried to persuade Mr. Asad to complete and submit them. She says that it would

have taken Mr. Asad 10-15 minutes to complete them. The decision, she says, to fire Mr.

Asad was made by Dr. Pelech and Mr. Turner.

[449] According to Ms. Karia, Kinexus was generous in calculating the final payment

made to Mr. Asad upon his termination, saying that Kinexus was only obliged to pay Mr.

Asad for two days of overtime but paid him overtime for an extra five or six days.

2. Cross-examination

(a) Dr. Pelech

[450] Ms. Karia reiterated her praise of Dr. Pelech, describing him as very respectful,

responsive, a man of principle, and a good manager who always gives people an

opportunity to talk to him. She added that he does forget things because he is “a very,

very busy man”. Ms. Karia referred to 2002 as a particularly busy and stressful time for

Dr. Pelech because sales were down and the company was going through major changes.

Consequently, the employee performance reviews had to be postponed.

(b) Discussions with Ms. Stoute, Dr. Pelech and Ms. Sutter

[451] At the beginning of her cross-examination, Ms. Karia stated that, after the opening

statement of Mr. Asad’s counsel on the first day of the hearing, she had not discussed any

of the evidence with Dr. Pelech, Ms. Sutter, Ms. Stoute, or any other witness called by

Kinexus, except to ask them if they felt comfortable testifying; nor had she reviewed any

notes taken by Dr. Pelech or Ms. Sutter during the hearing.

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[452] However, at several other points in her cross-examination, in response to

questions posed by Mr. Asad’s counsel, Ms. Karia stated that she had had a number of

discussions with Dr. Pelech and Ms. Stoute. Ms. Sutter was present at some of them. Dr.

Pelech told her that she had to prepare to defend herself against the allegations made at

the hearing by Mr. Asad that she is racist and had made racist remarks after 9/11. She

also stated that Dr. Pelech told her to review various documents, and that consequently

she went through “the EI reports and Time Sheets” and other material. She “gathered

evidence and gave it to (Dr. Pelech)”, and prepared questions for Dr. Pelech to ask her in

direct examination.

[453] Ms. Karia admitted that she had been mistaken in believing that Mr. Asad had

gone to the Pentagon during his trip. She had based this belief on what Ms. Stoute had

told her; that is, that Mr. Asad had shown Ms. Stoute a photo he had taken of a sign

pointing to the Pentagon. She also therefore acknowledged that statements in documents

prepared by her, or with her input, contained that error. She was unable to recall when

Ms. Stoute had told her about such a photo.

[454] Ms. Karia agreed that Ms. Stoute had left Kinexus in February 2002 and had

returned in March 2004. Under further questioning, Ms. Karia first acknowledged that

she may have had more than one conversation with Ms. Stoute about a photo of the

Pentagon, but later asserted that she could only recall a conversation during which she

expressed sympathy for Mr. Asad because of his interrogation by the RCMP. Finally, Ms.

Karia said: “I don’t really recall having any conversations with (Ms. Stoute) about this

event”.

[455] Ms. Karia said that she did remember a conversation with Ms. Stoute about Mr.

Asad’s comment about the courage it took to fly the planes into the Twin Towers, but

does not remember when that conversation took place. She added that Ms. Stoute also

recalled that conversation. Ms. Karia described Mr. Asad as “almost proud of what had

happened”. She said that at the time she questioned whether Mr. Asad was insensitive or

immature, and added that there were “many instances when I thought he was immature”.

[456] Ms. Karia said that she and Ms. Stoute had had a recent conversation during

which she expressed to Ms. Stoute how she feels “about these false allegations (Mr.

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Asad) has made towards me”. Ms. Karia asserted: “I know in my mind, I’ve never said

anything derogatory to (Mr. Asad)”. She referred to her need to “prepare for this case to

defend myself”, and the resulting need to try to recollect incidents involving Mr. Asad.

[457] Ms. Karia later said that, in fact, she had had a number of discussions with Ms.

Stoute after the hearing had commenced. She stated that she had told Ms. Stoute that:

“We would have to defend ourselves”. Ms. Karia said that, in discussions about “the

strategy for this case” and in preparing Ms. Stoute to give her evidence, Ms. Karia and

Ms. Stoute agreed that they were both hurt by Mr. Asad’s allegations, and they would

have to defend themselves. Ms. Karia repeated that and similar comments numerous

times during her cross-examination, referring to what Dr. Pelech had informed her about

Mr. Asad’s testimony.

[458] Ms. Karia stated that she had only discussed Mr. Asad’s interrogation by the

RCMP with her sister and Ms. Sutter. However, at another point in her cross-

examination, she referred to discussions with her parents. During her discussions with

Ms. Sutter, the first of which shortly followed her return to work from her study leave on

October 23, 2001, Ms. Karia told her about Mr. Asad’s comment about flying the planes

into the World Trade Center. She and Ms. Sutter discussed Mr. Asad’s interrogation by

the RCMP and what had motivated someone to report him to the police. Ms. Karia said

that Ms. Sutter expressed her concerns about Mr. Asad’s possible involvement in the 9/11

attacks. Ms. Karia maintained that, notwithstanding those discussions with Ms. Sutter,

she did not then suspect Mr. Asad of involvement in the 9/11 attacks.

[459] However, Ms. Karia later said: “At this time, I think anything is possible… I think

it’s possible (Mr. Asad) had some involvement in the terrorist attacks”. When asked why

she now has a different view from that which she had previously held, Ms. Karia

responded: “Because of his lack of integrity. And his demeanour that day – his odd

behaviour”. Ms. Karia said that Mr. Asad’s lack of integrity is reflected by the “false

allegations he’s made”. By demeanour, Ms. Karia explained that she was referring to “his

jovial manner” on 9/11. Ms. Karia later added Mr. Asad’s trip and the RCMP

interrogations as other factors leading to her reassessment of Mr. Asad’s possible

involvement. She offered: “As time passes, impressions change”.

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[460] Ms. Karia characterized Mr. Asad’s recent acts as “carrying forward to almost

hatred”, explaining that hatred is: “When you make false allegations against people –

people who tried to be nice to him”. She added: “I thought I knew (Mr. Asad) as a kind,

nice person, but I discovered that I didn’t know him at all”, and “I’ve learned not to trust

people after what he’s done”.

[461] When asked if she was aware that Ms. Stoute had suspected Mr. Asad of

involvement in the 9/11 attacks, Ms. Karia first stated that she was “not aware at all”.

However, in response to further questions, she said that she became aware of Ms.

Stoute’s suspicions after Ms. Stoute had returned to Kinexus in March 2004. Finally, Ms.

Karia said that she actually found out “through other means” in June 2003, shortly after

Mr. Asad had filed his Complaint. She explained that, during a meeting with Kinexus’

legal counsel at that time, Dr. Pelech mentioned Ms. Stoute’s suspicions. At the same

time, according to Ms. Karia, he also indicated that Ms. Stoute had reported Mr. Asad to

the RCMP. Ms. Karia attributed to Dr. Pelech and Ms. Sutter statements contained in the

Defence Document that a Kinexus employee (believed by them to be Ms. Stoute) had

reported Mr. Asad, but she denied any knowledge of how Dr. Pelech and Ms. Sutter had

acquired that information.

(c) Ms. Karia’s Role in Kinexus’ Defence and Reliance on Dr. Pelech and Ms. Sutter

[462] Ms. Karia acknowledged that she had prepared and assembled much of the

material for Kinexus’ defence of the Complaint. She agreed that she and Ms. Sutter had

prepared the Defence Document, with input from Dr. Pelech. When questioned about the

reference in the Defence Document to a comment made to Mr. Asad about how

coincidental it was that he had been in New York and Washington shortly before 9/11,

Ms. Karia admitted that she had made that comment. However, she asserted that she had

simply acknowledged what Mr. Asad had himself said. She also quoted Mr. Asad as

saying: “It might have been me (Mr. Asad) in one of those towers”.

[463] During the course of her cross-examination, Ms. Karia admitted errors that had

been made in the Defence Document. For example, she stated that a reference to a request

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made to Mr. Asad for a report in “early February 2003” should have read “early March

2003”.

[464] Ms. Karia said that Ms. Sutter informed her that Ms. Stoute’s sister, Heather, not

Ms. Stoute, had reported Mr. Asad to the police. She claimed that she did not discuss this

further with anyone because: “I’m not a person who questions people about people’s

private business”. Although, by then she was Director of Human Resources, she did not

feel it was her place to ask questions as Dr. Pelech and Ms. Sutter were handling this

matter, and she depended on them. Furthermore, she “didn’t feel it was important”.

[465] When asked if she had made any previous inquiries about who had reported Mr.

Asad, Ms. Karia described herself as a very private person who does not intrude in other

people’s lives. However, elsewhere in the context of another line of questions, she

described herself as an “inquisitive” person who likes to “find out what people” think and

do because of her interest in human relations.

[466] Ms. Karia denied any knowledge that Mr. Asad had asked for an apology from the

person who had reported him to the police, or had requested Kinexus to take any action

with respect to that person. She stated: “To the best of my knowledge, he didn’t ask for

anything”. Ms. Karia also denied having had any discussion with Dr. Pelech or Ms. Sutter

about any such request from Mr. Asad. However, when directed to a passage in the

Defence Document that referred to that matter, she admitted that it jogged her memory

and said: “I think he had brought this to my attention. I forgot about it”. She later added:

“This was likely something (Ms. Sutter) had stated that I forgot”.

[467] She said: “Things that impact me are pretty clear”, but “people forget things”. She

spoke about how busy she has been, dealing with her work responsibilities as Controller

and Human Resources Director, her CMA courses, and family commitments. She

acknowledged that she lacks knowledge about employment standards and, although she

had been responsible for payroll while she was Kinexus’ accountant, about details of

payroll matters about which she said she relies on the company’s bank. She also

acknowledged that she does not have any formal training in human resources, and that

she relies heavily on Ms. Sutter for advice and guidance in human resources matters. She

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repeatedly observed: “You don’t know what you don’t know” and “I can only remember

what I remember”.

[468] Ms. Karia agreed that, together with Dr. Pelech and Ms. Sutter, she had attended

all of the PHCs on behalf of Kinexus, and that she was Kinexus’ contact person with Mr.

Asad’s counsel with respect to correspondence and the disclosure of documents.

However, she stated that Dr. Pelech made the decisions in preparing for the hearing of

Mr. Asad’s Complaint. Ms. Karia noted that there were many discussions between, on

one hand, Mr. Asad and, on the other, Dr. Pelech and Ms. Sutter in which she had not

been involved. Ms. Karia also stated that she relied on Ms. Sutter and Dr. Pelech to

“come up with information” with respect to defending the Complaint. At one point, she

said that she did not recall having read parts of Mr. Asad’s Complaint.

(d) Mr. Asad’s Demand for Overtime Pay

[469] Ms. Karia insisted that she did not know that Mr. Asad was demanding overtime

pay when, at the end of November 2002, he pressed Ms. Sutter to prepare his overtime

calculations. She said that she was only present in the office that she shared with Ms.

Sutter for a “very brief period of time”, 10-15 minutes, during the conversation between

Mr. Asad and Ms. Sutter. Yet, at another point in her cross-examination, she also said

that she was aware that “he had said for a couple of months that he wanted overtime”.

During the course of her cross-examination, Ms. Karia kept returning to the subject of

that conversation to add more and more details to her recollection. She recalled that Ms.

Sutter had said to Mr. Asad: “You can’t hold me to these calculations. You’ll have to

discuss these calculations with (Dr. Pelech)”.

[470] However, Ms. Karia maintained that she did not know that Mr. Asad was

demanding overtime pay until March 2003 when the issue of his Time Sheets flared up.

According to Ms. Karia, Mr. Asad never mentioned overtime pay to her when, in

February, she asked him repeatedly for his January Time Sheet. However, she later

became aware that Mr. Asad was demanding overtime pay based on the calculations that

Ms. Sutter had prepared at his insistence. At one point, she said that she felt that Mr.

Asad had pressed Ms. Sutter to do the overtime calculations because he was planning to

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“use it against the company”, but later said: “I didn’t think he was planning to use it

against the company”.

[471] Ms. Karia stated that Ms. Sutter would sometimes prepare Mr. Asad’s Time

Sheets. On other occasions, he prepared them himself.

[472] Ms. Karia justified the withholding of overtime pay claimed by Mr. Asad because

he had been wasting his time during regular working hours. However, Ms. Karia

acknowledged that the sign in/out sheets are not always reliable because employees

frequently do not record their arrival and departure times, although they are requested to

do so. Some choose to record their time electronically. She also acknowledged that the

company cannot keep track of time wasted by employees in the office or the lengths of

their coffee breaks. She described the time recording system as an “honour system”.

[473] According to Ms. Karia, Mr. Asad told her that he would not submit his Time

Sheets until he received his overtime pay. She said that she was surprised by his demand

because, according to Kinexus’ policies, no-one received overtime pay and management

people did not get compensating time off. According to Ms. Karia, anyone who “wants to

make their mark” at Kinexus works overtime, saying that this is not out of the ordinary.

[474] Ms. Karia first stated that, as Human Resources Director, she never receives a

Time Sheet from an employee more than seven or eight days after the preceding month

end. However, when presented with a Newsletter article that appeared to contradict her,

she conceded that it was possible that some employees might turn in their Time Sheets

beyond that timeframe, saying that “it’s not a hard and fast rule”, and that the seven-eight

day timeframe is “sort of like a ballpark figure”.

[475] Ms. Karia conceded that the Kinexus overtime policy had been amended in

January 2003 but the revisions had not been disclosed to Mr. Asad’s counsel.

(e) Mr. Asad’s Demeanour, Attitude and Title

[476] According to Ms. Karia, when she returned to work on October 23, 2001, she

observed that Mr. Asad was not as upset as he had been during their two telephone

conversations while he was away on stress leave. However, she added that he was “not

back to normal”. Ms. Karia said that, shortly after her return from her study leave, Ms.

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Sutter told her that they should ensure that “he’s feeling okay and still part of our group,

part of our company unity”.

[477] According to Ms. Karia, Mr. Asad’s demeanour improved gradually and he

smiled more over the next few months, particularly after the layoffs in 2002. She

attributed that, in part, to Mr. Asad feeling that the person who had reported him to the

police had been laid off. However, elsewhere in her cross-examination, Ms. Karia denied

having had any knowledge that, after returning to work from his stress leave, Mr. Asad

had continued to be unhappy that the person who had reported him to the police had not

been identified and had not apologized. She said that she was “not aware it was an issue”.

Ms. Karia also observed that Mr. Asad was excited about having more responsibilities

after Dr. McDermott’s departure.

[478] Ms. Karia agreed that Mr. Asad was “technically very bright” and knowledgeable.

He was also generally responsible and eager to expand his knowledge base. However, she

maintained that his attitude deteriorated during the last six-eight months of his

employment. She described him as defiant, and referred again to the accounting program

incident.

[479] She alleged that Mr. Asad complained to other employees about the company and

its policies, and that this damaged the corporate culture and environment and lowered

employee morale. She was particularly upset because Mr. Asad’s comments damaged the

credibility of management, and this demeaned her as Director of Human Resources and

jeopardized her work: “We’re trying to be leaders of the company, and that’s difficult to

do if someone is complaining about our policies”. Ms. Karia said that she raised this issue

with Ms. Sutter as something Dr. Pelech needed to address when they returned from

Florida in November 2002.

[480] She said that one of the reasons Mr. Asad did not have “manager” or “director” in

his title is the fact that he only possesses a diploma, whereas Dr. McDermott had a Ph.D.

She also agreed that, apart from Dr. Pelech and Mr. Turner, Mr. Asad was the only

member of management whose title lacked those terms. Despite that, in her view, Mr.

Asad was a manager and had a management title.

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[481] Ms. Karia said that, after Mr. Asad had asked for a change in his title in 2002, Dr.

Pelech, Mr. Turner and Ms. Sutter looked at his performance and considered his

educational background and communication skills. They decided they needed more time

to assess Mr. Asad, and wanted to leave the IT management title open “in case we hired

someone for that position in the future”. Ms. Karia said that she overheard a subsequent

conversation between Mr. Asad and Ms. Sutter in which Ms. Sutter informed him of the

decision, and told Mr. Asad that he could suggest another title for Dr. Pelech and Mr.

Turner to consider.

(f) Mr. Asad’s Time Sheets and Ms. Karia’s Time Sheets and Diary

[482] Ms. Karia agreed that, following Mr. Asad’s termination, Kinexus had to

complete his Time Sheets for the months of January and February and part of March

2003 by estimating his time allocations. Ms. Karia prepared those estimates, saying that

she probably applied the averages of his time allocations during the preceding months.

She was unable to recall those estimates. Ms. Karia also agreed that, similarly, she would

have to prepare estimates of time allocations if an employee was injured or seriously ill

and could not complete his or her Time Sheets.

[483] When questioned about her own Time Sheet for September 2001, the month when

she commenced her leave of absence to study for her CMA examinations, Ms. Karia first

acknowledged that the sign in/out sheets are unreliable and then described them as “not

totally reliable”. She acknowledged that, like some other employees, she possibly had

forgotten to record her hours on the sign in/out sheets. She then referred to a diary in

which she recorded her own sign in/out times. When asked if she had disclosed the diary,

she responded that she “would have thrown it away”. I will refer further to the diary

below.

(g) Ms. Karia’s Views of Mr. Asad’s Allegations and Certain Terms

[484] Ms. Karia denied that she had ever told Mr. Asad that he was “suspicious”

because he is Arab and Muslim or that she had ever accused him of any participation in

the 9/11 attacks. She said that such remarks would not be funny. Ms. Karia said that she

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had experienced racism herself, and described herself as “very sensitive” to incidents of

racial discrimination. She said that Kinexus would not tolerate racist behaviour.

[485] Ms. Karia said that the use of “Chinaman” in a joke would be appropriate if it was

not “demoralizing”, saying: “If the joke was funny, that would be fine”. She expressed

the view that describing a person of Chinese ancestry as a “Chinaman” would be

appropriate, “depending on the context”.

[486] When asked about the use of the term “nigger”, she responded: “I don’t know if

that’s politically correct. I am not particularly versed on what’s politically correct and

politically incorrect”. She added that she does not know what “people of negro descent”

would think of it, but it might be appropriate depending on the context.

[487] When asked if she had discussed Ms. Sutter’s evidence with anyone, Ms. Karia

replied that she had not.

(h) Warning to Mr. Asad and the Termination

[488] Ms. Karia stated that, at a meeting with Dr. Pelech and Ms. Sutter, Dr. Pelech

instructed her to warn Mr. Asad that if he did not submit his January and February Time

Sheets by 4 p.m. on March 7, his employment would be terminated. She gave that

warning to Mr. Asad on March 6. Mr. Asad did not respond and he did not comply

despite daily repeated warnings that Ms. Karia said she gave to Mr. Asad. Ms. Karia said

that Dr. Pelech asked her and Ms. Sutter several times between March 6 and 13 if Mr.

Asad had turned in his Time Sheets.

[489] Dr. Pelech instructed Ms. Karia to prepare the documents for the termination

meeting. She said that she commenced their preparation on March 8 with assistance from

Ms. Sutter. She continued to ask Mr. Asad to submit his Time Sheets after March 8

because she believed that Dr. Pelech “would have given (Mr. Asad) a chance to turn this

whole thing around”. In the meantime, Dr. Pelech contacted Unilogik to arrange for a

technician to be at Kinexus before the termination meeting.

[490] When advised that March 8 was a Saturday, Ms. Karia then said that Dr. Pelech

had instructed her on March 7 to prepare the termination documents and last inquired on

March 10 if Mr. Asad had submitted his Time Sheets.

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[491] Ms. Karia’s recollection of the termination meeting was very detailed. She

described Mr. Asad’s demeanour during the termination meeting as “very quiet” and

“very composed”, and that he was not upset.

(i) Ms. Karia’s Diary and Her March 13 E-mail

[492] On numerous occasions during her cross-examination, Ms. Karia explained her

difficulty in recalling events and conversations by saying that she had never expected to

be giving evidence at a hearing. She also stated that she had not felt it necessary to

document events because Mr. Asad had been terminated for cause. However, she

acknowledged that on March 13, very shortly after the termination meeting, she

addressed an e-mail to Mr. Turner, copied to Dr. Pelech and Ms. Sutter, stating, in part:

… Ghassan was quite angry and threatened to take this matter to the courts

and proceed with legal proceedings... I do recommend that we all take

some time, while it is fresh in our minds to document any relevant

situations, whether it is anecdotal, or we have hard copies of emails, or

other items that substantiate our reason for terminating Ghassan, in the

event that we do end up in court. As well, I shall hold off on posting the

job posting for a replacement until you and Steve discuss this prospect and

let me know…

Mr. Asad’s counsel noted that this e-mail had not been initially disclosed by Kinexus, and

had been delivered to her only after I had made a further order for disclosure during the

hearing.

[493] Ms. Karia first acknowledged that the Defence Document had been prepared, in

part, from information she had entered into her diary, which she described as an 8 in. x 10

in. daytimer diary in which she makes notes of her work hours and significant activities

and events, such as the incident involving Mr. Asad and the accounting program. She

acknowledged that she had not disclosed the diary, saying that she usually throws her

diaries out after six months and, notwithstanding her own advice in her March 13 e-mail,

she had not kept her entries relating to Mr. Asad’s termination. Ms. Karia later said she

was not certain that her diary notes were incorporated into the Defence Document.

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(j) Who Reported Mr. Asad to the RCMP

[494] Ms. Karia agreed that, until October 27, 2004, Kinexus had maintained in its

documents relating to the Complaint and in its correspondence with Ms. Chin that a

Kinexus employee had reported Mr. Asad to the RCMP. She also agreed that Ms. Chin

had written to her on October 19 requesting the name of the employee who had made the

report, because that person would be called as a witness in the proceedings. Ms. Karia

wrote to Ms. Chin on October 20 stating:

… we are unable to do so without obtaining legal advice regarding the

rights and obligations in relation to this matter … Given that you have

requested this information at such a late stage in the disclosure period, and

only a week prior to the hearing, we can not commit to a firm time line in

providing this information, as the time involved in obtaining counsel is not

yet determinable. Nevertheless, we shall comply with the best of our

ability, without jeopardizing any legal obligation of the company.

[495] Ms. Chin wrote to Ms. Karia again on October 26, repeating her request. Ms.

Karia initially denied having seen that letter, saying: “This never came by my desk”.

However, in fact she referred to Ms. Chin’s October 26 letter when she replied to Ms.

Chin on October 27:

Please be advised that we are unable to comply with the request made in

your letter, dated October 19, 2004 and subsequent letter dated October

26^th, to provide the name of the individual who reported Mr. Asad to the

RCMP. Please also note, that there was an error in stating that an

employee had reported Mr. Asad to the RCMP. Since we prepared our

disclosure statement, information has been provided to indicate that this

statement was made in error. The request of the individual’s name does not

appear to have relevance to the case … The situation involving the RCMP

had no relevance to Mr. Asad’s termination. Mr. Asad was terminated

from his employment, resulting from actions of his own misconduct.

… so that Kinexus is not exposed to further litigation by the individual

whose rights we must protect. … Dr. Steven Pelech, the President and

Chief Scientific Officer of Kinexus is currently away on a business trip,

but has been consulted and has agreed with this decision.

[496] Ms. Karia stated that she had reviewed the letter with both Dr. Pelech and Ms.

Sutter before she sent it to Ms. Chin, and that she also discussed it with Ms. Stoute. She

admitted that, almost simultaneously with receipt of Ms. Chin’s first letter dated October

19, she knew that someone other than a Kinexus employee had reported Mr. Asad to the

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police, but later said that she could recall when she learned that information. Ms. Karia

agreed that Ms. Sutter had informed her of the identity of that person.

3. Re-Direct

[497] Dr. Pelech began asking questions which related to matters that had not

previously been put into evidence. When I directed him to restrict his questions to matters

that arose in Ms. Karia’s cross-examination, he stated that he had lost all of the notes that

Ms. Sutter had taken during the previous two days of the hearing, so he did not have a

basis for his re-direct examination. When Dr. Pelech alleged that Ms. Chin had misled

and confused Ms. Karia by asking her a question which included an incorrect date, I

noted that the date was one which Ms. Karia had herself stated in her will-say statement

and in her testimony. Dr. Pelech initially refused to accept that and continued to argue

before finally retracting his incorrect assertions.

K.

Patricia Stoute

1. Direct Examination

(a) Personal and Employment Background

[498] Ms. Stoute was first employed by Kinexus from June 2001 to February 2002 as an

Administrative Assistant responsible for reception. She reported to Ms. Sutter. She was

one of seven employees who were laid off in February 2002. She returned to Kinexus in

March 2004 as Technical Sales Representative/Administrative Assistant, again reporting

to Ms. Sutter.

[499] Ms. Stoute is originally from the Caribbean region, and describes herself as of

mixed race. Her father is Caucasian and she describes her mother as a Christian of

Indian/black heritage.

(b) Description of Kinexus and Dr. Pelech

[500] Ms. Stoute’s testimony about Dr. Pelech’s character, and Kinexus’ multi-cultural

staff and environment and its sign in/out, timekeeping and overtime policies and

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procedures echoed that of Kinexus’ previous witnesses, with the same references to social

activities and accommodation of D.W.’s use of the boardroom for prayers. Ms. Stoute

also denied having experienced or witnessed any discriminatory acts at Kinexus, and said

that Mr. Asad had never confided in her that he had been discriminated against at the

company.

(c) Mr. Asad’s Trip

[501] According to Ms. Stoute, before 9/11 Ms. Stoute and Mr. Asad regularly

socialized once or twice a week, going out for coffee and dinners at restaurants, and he

would seek her company both at and after work.

[502] Ms. Stoute says that she learned about Mr. Asad’s trip to New York

approximately two weeks before his departure, describing it as “spontaneous” and on

short notice. She knew that the trip was in celebration of his Canadian citizenship. She

helped him select a gift for a female friend of his in St. Catherines, Ontario where he was

renting a car to drive to the United States. She says that she found it curious that Mr.

Asad could afford to spend $800 to buy a digital camera, because they both regularly

complained about their low salaries.

[503] According to Ms. Stoute, Mr. Asad was not eating at the time. He told her that he

wanted to lose weight so that he would look good in his trip photos. In her testimony, Ms.

Stoute suggested that he was fasting for religious reasons and that “some people see it as

a way of purifying themselves”.

[504] She described Mr. Asad as “quite celebratory” and happy on the day of departure

because he had become a Canadian citizen and now possessed a Canadian passport.

Because he had been so generous to her, she offered to drive him to the airport.

[505] Upon his return to Kinexus, Ms. Stoute says that Mr. Asad was “quite withholding

about his trip”. She asked him if he had brought her a gift. Mr. Asad said that he had, but

it had been confiscated at the border, describing an incident with a customs officer who

had forced him to pay duty on goods he had bought in Canada. According to Ms. Stoute,

Mr. Asad told her that he had accused the officer of racism and wasting time while letting

criminals through, and that he had written a letter of complaint.

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[506] Ms. Stoute says that, on September 10, 2001, Mr. Asad insisted that he take her

shopping to buy her a birthday present and asked her to select something. At a store, she

pointed to a cross because “I knew he’d react”, and he replied: “Anything but that”. Ms.

Stoute said that she, Ms. Sutter and Mr. Asad had had previous discussions together in

the office about religion. Ms. Stoute described herself as “very strong about my religion”.

(d) 9/11 and the RCMP Investigation

[507] Ms. Stoute heard about the 9/11 terrorist attacks while en route to work. She

describes herself as “shocked, horrified, pretty upset” and, like her co-workers, she found

it very difficult to work that day. She describes Ms. Karia as “shocked”. In contrast, she

says that Mr. Asad was “unaffected, lighthearted” and went about his work as usual.

[508] Ms. Stoute describes Mr. Asad’s demeanour during the rest of the week as

“almost celebratory”. She told Mr. Asad that her sister had informed her that some people

in her apartment building had a party to celebrate the attacks. According to Ms. Stoute,

Mr. Asad replied that it was about time Americans experienced what people elsewhere

experienced, and that people around the world were celebrating. She says that, after

September 11, Mr. Asad showed her photos of people standing on the steps of the White

House, a highway sign pointing to the Pentagon, and the World Trade Center. Ms. Stoute

asserts that Mr. Asad also said to her that it must have taken great strength to fly the

airplanes into the Twin Towers. She says that she found those comments to be “very

strange”.

[509] Ms. Stoute says that Mr. Asad has “a real passion about the Middle East” that she

describes as “burning within him”, and about American arms sales to Israel. She “knew

his heart was tied to that part of the world”. She asserts that he talked about the Middle

East every time they went out, and “seemed to have current information” about events

there. She began to think that there were many coincidences – his experiences in Saudi

Arabia, the fact that he could now travel on a Canadian passport, his trip to New York

shortly before 9/11 – and that “maybe he knew things in advance”. Ms. Stoute says that

she struggled with that, because Mr. Asad was her friend.

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[510] Ms. Stoute shared her thoughts with Ms. Sutter because they sat beside each other

in the office and because she considered Ms. Sutter to be trustworthy, level-headed and

mature. They both commented on Mr. Asad’s behaviour after he had returned from his

trip and on 9/11. Ms. Sutter expressed her own suspicions about Mr. Asad, and Ms.

Stoute says that Ms. Sutter “agreed with my line of thinking”. However, she maintains

that they did not reach any conclusions but they agreed that the circumstances “pointed in

a certain direction”.

[511] Ms. Stoute also discussed her suspicions with her sister and other members of her

family. Before 9/11 she had previously told them about Mr. Asad and his trip. On the

evening of 9/11 she went to the home of her sister, Heather. As soon as she walked

through the door, Heather told Ms. Stoute that she had to call the RCMP, saying that if

Mr. Asad wasn’t involved, he definitely knew something. Heather was acquainted with a

couple of RCMP officers and subsequently spoke to them about Mr. Asad. She informed

Ms. Stoute that they would be interested in talking to her.

[512] Ms. Stoute says that she met with RCMP officers on September 14, three days

after 9/11. She provided them with information about Mr. Asad’s background, telling

them that he is single, Palestinian and grew up in Saudi Arabia. She described to the

officers his character, his passion about the Middle East, his trip and photos. She told

them that his trip was spontaneous and that he had left without having made any advance

arrangements about accommodation, and about a computer crash at Kinexus where she

said only Mr. Asad had access to e-mails. She said that Mr. Asad had fasted before his

trip. Ms. Stoute informed the officers that when they went out together, he would receive

calls on his cell phone, and that all the calls were from overseas and the conversations

were all in Arabic. Ms. Stoute alleged that Mr. Asad despises Americans and thinks they,

and Canadians, are stupid. She also told the officers that he had expressed a desire to

learn how to fly.

[513] Ms. Stoute says that she was at Kinexus when plainclothes officers arrived. Ms.

Sutter let them into the office and advised Ms. Stoute that they were RCMP officers who

were going to interview Mr. Asad. She left shortly after.

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[514] Ms. Stoute referred to a conversation she had with Ben, one of the RCMP officers

acquainted with her sister and who was involved in the investigation of Mr. Asad. The

conversation took place after Mr. Asad had filed his Complaint and after she had returned

to employment with Kinexus in March 2004. She told Ben about the Complaint and the

Tribunal proceedings, and says that Ben advised her that, following 9/11, the RCMP had

received many reports and that the report about Mr. Asad was worthy of investigation.

(e) Mr. Asad’s Stress Leave and Return to Work

[515] Ms. Stoute asserts that she telephoned Mr. Asad twice at his home while he was

away on stress leave. The first call was on September 18 because he was not at work. She

described him as “shaken, upset”, and asserts that he told her that he believed someone in

the bioinformatics department had reported him to the police because they were jealous

of him. Ms. Stoute says that she tried to explain to him why someone would be

suspicious of him. Mr. Asad told her that the officers had been pleasant and drove him

home after the interview. She said that she called again some days later to ask when he

would be back to work, but did not recall asking Mr. Asad how he was feeling.

[516] Ms. Stoute says that, during his absence from work on stress leave, Mr. Asad was

in contact with Ms. Sutter and Dr. Pelech, saying that if he didn’t speak with them, he

would leave messages for them. She expressed her view that Kinexus was “very flexible”

because it gave Mr. Asad so much time off.

[517] Ms. Stoute asserts that, upon Mr. Asad’s return to work, the Kinexus staff treated

him in a “pretty normal” way and expressed sympathy about his experiences with the

RCMP. However, she adds that she does not know if anyone spoke to Mr. Asad directly,

but says that people expressed their feelings to her, specifically referring to J.S.

According to Ms. Stoute, after Ms. Karia had returned from her study leave, she also

expressed her sympathy, saying that it must have been very hard on him, and that people

were intolerant to have reported him to the police.

[518] Ms. Stoute describes Mr. Asad as “deeply suspicious of people”, especially those

in the bioinformatics department, and “aloof”. He spoke to very few people, and no

longer ate in the Kinexus boardroom (which doubled as the staff lunchroom) and did not

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attend Kinexus social functions as he had done in the past. She surmises that Mr. Asad

was “hurt and suspicious” and did not want to socialize with people he didn’t trust and

considered to be enemies. However, she describes him as otherwise “very compliant and

cooperative” in the workplace.

[519] Following his return, Mr. Asad did not interact with Ms. Stoute except at work.

She says that Mr. Asad basically never spoke to her again, except to say good morning.

They never discussed 9/11, and he did not confront her about making racist remarks. Ms.

Stoute says that she tried to speak with him a few times but he did not reply, so she “got

the message”.

[520] Ms. Stoute says that, following 9/11, she did not observe any change in the

relationship between Mr. Asad and Dr. Pelech. Dr. Pelech’s “open door” policy for all

employees applied to Mr. Asad, and, if anything, Mr. Asad spent more time with Dr.

Pelech after 9/11. There was also no change in his relationship with Ms. Karia.

[521] In contrast, Ms. Stoute describes Mr. Asad’s relationship with Dr. McDermott as

“strained at best”. She surmises that Mr. Asad thought Dr. McDermott was “an idiot”,

and that he was very frustrated working under his supervision.

(f) Knowledge of Ms. Stoute’s Involvement in the RCMP Investigation

[522] According to Ms. Stoute, at the time she left Kinexus in February 2002, the only

people at the company who knew of her involvement with the RCMP investigation were

Dr. Pelech and Ms. Sutter. Ms. Karia became aware sometime in 2003 because of her role

as Director of Human Resources.

[523] Ms. Stoute says that, until Ms. Sutter approached her in September 2004 to

prepare a will-say statement in preparation for this hearing, Dr. Pelech, Ms. Sutter and

Ms. Karia believed that she had reported Mr. Asad to the police. At that time, she

disclosed to them that her sister had reported Mr. Asad. In subsequent discussions, Ms.

Stoute advised them that her sister did not mind if her name was disclosed as the person

who had made the report to the police. However, she says that Dr. Pelech was reluctant to

do so because he did not like “the risk that it could bring about”.

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(g) Ms. Stoute’s View of the Complaint and the Hearing

[524] In response to a question posed by Dr. Pelech, Ms. Stoute stated her view that the

hearing was “unfortunate and counterproductive” because it “fosters division, not

retribution or healing” and “breeds suspicion”. She believes that Mr. Asad was treated

fairly by Kinexus which “more than accommodated” him. She asserts that the hearing is

“not about human rights”, and complains that it has subjected Kinexus to stress, lost time

and financial loss.

2. Cross-examination

(a) Return to Kinexus

[525] Ms. Stoute said that, following her layoff from Kinexus in February 2002, she

commenced work for her brother in Barbados in June 2002. She stayed in regular contact

with Ms. Sutter whom she described as her friend. Ms. Stoute returned to Kinexus on

March 1, 2004. Ms. Sutter had told her that a position was coming up, so she applied to

Ms. Karia in her capacity as Human Resources Director, and was hired. Ms. Stoute said

that she was happy to return because she had enjoyed her previous employment there.

(b) Relationship with and Suspicions about Mr. Asad

[526] When asked about Mr. Asad’s cellular phone conversations about which she had

testified in direct examination, Ms. Stoute said that the fact that they were all in Arabic

was a factor, although not a key one, in her decision to call the RCMP. In her view,

“having non-Canadian based friends” indicated Mr. Asad’s “lack of integration or

assimilation into Canadian society”. She described it as “odd” that Mr. Asad had no

communications in English while he was living in an English-speaking country, saying

that if she went to Saudi Arabia, she would make an effort to learn the local language and

adapt to the culture. Although she had earlier used the word “assimilate” in reference to

Mr. Asad, Ms. Stoute later denied that she had said that, asserting that there is a

difference between making an effort to adapt and assimilating.

[527] Similarly, Ms. Stoute maintained that she “was getting to know (Mr. Asad) as a

friend”, and demanded that Mr. Asad’s counsel define “friend” before she answered a

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question. After I noted to her that, in her direct examination, she had described Mr. Asad

several times as her friend, she agreed that she had indeed considered him as such and

that they “were hanging out a lot”.

[528] Ms. Stoute described Mr. Asad as “pleasant to have around” and punctual. Part of

her job during her initial period of employment at Kinexus was transferring information

from the sign in/out sheets to the Time Sheets, so she observed that Mr. Asad arrived for

work on time and did not take long coffee breaks. She said that he seemed to be

respectful of his co-workers and willing to help when they experienced computer

problems.

[529] However, according to Ms. Stoute, Mr. Asad was “unpredictable”. As examples

of such behaviour, she said that he sold his car and took his trip “on a whim”. She

described him as “social”, and asserted that he consumed alcoholic drinks at a club they

attended one evening. She admitted that, although she knew him to be a Muslim who is

“passionate” about his culture and religion, she did not express any surprise or question

him about such an apparent divergence from his beliefs.

[530] When asked about the itinerary of Mr. Asad’s trip, Ms. Stoute referred only to St.

Catherines, Boston, New York City and Washington, D.C. She did not recall Mr. Asad

telling her that he also intended to go to Toronto, Detroit, Windsor or any other

destination except Niagara Falls. She said that she told the RCMP and Ms. Sutter, and

possibly Heather, that Mr. Asad had shown her a photo of a highway sign pointing to the

Pentagon.

[531] Ms. Stoute reiterated her testimony given in direct examination that Mr. Asad was

“withholding” about his trip until after 9/11, and that he did not show her his photos until

after that date. However, she acknowledged that she had read and distributed the

September 7, 2001 Newsletter in which Mr. Asad’s article about his trip and

accompanying photo were published. When asked if she continued to maintain that he

had been withholding about his trip, Ms. Stoute replied: “Is that what I said? Then, yes”.

[532] When asked about her testimony in direct examination that Mr. Asad had fasted

before his trip, Ms. Stoute said that he had stopped eating candy bars. She interpreted that

to mean that he was not eating anything except his evening meal, and noted that Dr.

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Pelech had used the term “fasting” during their discussions about Mr. Asad’s Complaint.

Ms. Stoute then denied remembering that she had used the term “fasting” in her previous

testimony.

[533] When asked about Mr. Asad’s incident with a customs officer, Ms. Stoute said

that she was “incredulous” and “bewildered” by it and asked him why he would create a

confrontation with a border guard. She discussed this with Ms. Sutter because she could

not understand why anyone would antagonize someone with any kind of authority and

then suffer the consequences.

[534] At another point in her cross-examination, Ms. Stoute said that she also found it

“bizarre” and “strange” that Mr. Asad had not mentioned to her that he had a roommate

until the subject came up because of a particular set of circumstances. She said that she

knew that J.S. had a roommate, although she did not socialize with him. She also found it

strange that Mr. Asad had sold his car without telling her. Ms. Stoute said that, to her,

having a roommate and selling a car are “big things” that she would talk about with

people.

[535] Ms. Stoute said that she had no recollection of any conversation with Mr. Asad on

9/11. She was initially very firm in her recollections that he did not show her his trip

photos until sometime after that day, and that Mr. Asad made the comments about the

courage required to fly the planes into the Twin Towers, to which she had referred in her

direct examination, “a few days after 9/11”. According to Ms. Stoute, he made those

comments in the course of an ongoing conversation among a revolving group of people

who came and went. The conversation took place by Ms. Stoute’s reception desk which

she described as a common place for people to congregate. However, Ms. Stoute later

said she and Mr. Asad were alone when he showed the photos and made the comments.

[536] At other points in her cross-examination, Ms. Stoute indicated uncertainty, saying

that she “believed” that she saw the photos for the first time after 9/11. Then she said that

Mr. Asad showed her the photos and made the comments at the same time, “probably a

couple of days after 9/11”. When told that Ms. Sutter had testified that Ms. Stoute had

seen the photos and heard the comments on 9/11, Ms. Stoute said that she disagreed with

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Ms. Sutter. However, later in her cross-examination, Ms. Stoute said that, on the evening

of 9/11, Heather knew about Mr. Asad’s trip photos.

[537] Finally, Ms. Stoute said that Mr. Asad had shown her photos of the White House

before 9/11, although she subsequently indicated that she was not certain. She then added

that she asked Mr. Asad why he had taken a photo of “random people” in front of the

White House, and he replied, in a joking manner: “I’m a spy”. At that point, Ms. Stoute

also claimed that Mr. Asad described the Twin Towers as “sexy”, and that she had

responded that that was an inappropriate remark because people had died there.

[538] Ms. Stoute said that she was not aware of Mr. Asad making any such comments to

Ms. Karia, and she did not recall telling Ms. Karia about them.

[539] Ms. Stoute acknowledged that she was emotional on 9/11 and that she cried in the

car on the way to work that morning after hearing about the planes crashing into the

World Trade Center. She agreed that she may have also cried in the workplace that day.

She also acknowledged that she regarded Mr. Asad differently after 9/11.

[540] Ms. Stoute agreed that Mr. Asad’s race and religion (which she sometimes

referred to as his “affiliations”), being the same as the 9/11 terrorists, his “passion” about

the Middle East, his anti-Israeli and anti-American views, his knowledge about Osama

bin-Laden, the fact that he grew up in Saudi Arabia, and his trip were all factors that led

to her suspicions of his possible involvement in the 9/11 attacks.

(c) Knowledge of Ms. Stoute’s Involvement in the RCMP Investigation

[541] Contrary to her earlier testimony, Ms. Stoute said that she first disclosed her

involvement in the RCMP investigation of Mr. Asad to Ms. Sutter on September 17,

2001 when the police officers attended at the Kinexus office. Ms. Stoute stated that she

advised Ms. Sutter at that time that Heather had initially contacted the police, and that she

(Ms. Stoute) had subsequently met with RCMP officers. Later in her cross-examination,

she said that she may have had this discussion with Ms. Sutter the day after the officers

came to Kinexus. Ms. Stoute also stated that she had further subsequent discussions with

Ms. Sutter about Heather’s report to the police and her own conversations with the

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RCMP, and that she was confident that Heather’s involvement was clear in Ms. Sutter’s

mind. She advised Ms. Sutter what she had told the RCMP officers about Mr. Asad.

[542] Ms. Stoute said that she “told [Ms. Sutter] the whole situation” because she “just

wanted to let her know”. She felt that Ms. Sutter would understand “because we had been

discussing [Mr. Asad’s] strange behaviour” and Ms. Sutter had expressed the same

suspicions. Shortly afterwards, Ms. Sutter informed her that she had told Dr. Pelech about

her involvement with the RCMP because, as President of the company, he had to know.

Ms. Stoute recalled that Ms. Sutter told her that Dr. Pelech understood that she had to do

what she thought was right, that is, report Mr. Asad to the RCMP. Ms. Stoute therefore

agreed that Dr. Pelech had known of her involvement since September 17, 2001, but she

maintained that Dr. Pelech did not discuss the matter with her at all until during the

course of the hearing. Ms. Stoute later offered contradictory evidence.

[543] According to Ms. Stoute, she and Ms. Sutter were shocked that the police showed

up at the workplace and they were embarrassed for Mr. Asad. She said that she was

disappointed by how the RCMP handled the matter. Ms. Stoute initially said that she left

to catch her bus very shortly after the officers and Mr. Asad were shown into the

boardroom, and that Ms. Sutter and Dr. Pelech were still there when she left. However,

when shown the sign in/out sheet for that day, Ms. Stoute acknowledged that, in fact, she

had left the office after Ms. Sutter and Dr. Pelech, and at least 30 minutes after the

officers had arrived. She also remembered that she had not left to catch a bus, because by

then she had her own car, finally acknowledging that her memory was not clear.

(d) RCMP

[544] Ms. Stoute reiterated her testimony in direct examination that, on the evening of

9/11, Heather told her that she had to call the police to report Mr. Asad because there

were “too many coincidences”. She credits Heather with having “crystallized my

thoughts” about Mr. Asad. Ms. Stoute said that, from their earlier conversations, Heather

was aware of Mr. Asad’s Arab and Muslim background, his single status, his passion

about the Middle East, his recent trip, his trip photos, and the incident with the customs

officer. At the time, Heather, a physiotherapist, was treating an RCMP officer.

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[545] Ms. Stoute said that she felt confused, but considered other factors as well: Mr.

Asad’s previous residence in Saudi Arabia; his knowledge about current events in the

Middle East; the computer crash; and his “strange behaviour”, including being seemingly

unaffected by the events of 9/11, and his insistence on September 10 that he buy her a

birthday present. She also referred to Mr. Asad sharing a similar background to the 9/11

terrorists, saying that he is “bright” which seemed to be a “common denominator” among

the terrorists. She described the terrorists as very intelligent, possessing several university

degrees, but struggling with life in other countries.

[546] Although Ms. Stoute had referred in her earlier testimony to Mr. Asad’s hatred of

Americans, in cross-examination, she admitted that she could not recall Mr. Asad actually

using such language. Instead, she said: “I believe he disliked them”.

[547] Ms. Stoute described her tension during the following days because Mr. Asad was

her friend and she felt conflicted. However, although she had earlier acknowledged that

she viewed Mr. Asad differently after 9/11, she asserted that she did not let the tension

affect her behaviour toward him. They had conversations at work each day until

September 17 when the RCMP arrived at the Kinexus office.

[548] She went to Heather’s home each evening after work. Although she did not recall

the date, Ms. Stoute said that Heather advised her that the RCMP had indicated they

would like to talk to her, and had asked Heather if Ms. Stoute would feel comfortable

doing so. Heather gave Ms. Stoute the name and telephone number of the officer. Later in

her cross-examination, Ms. Stoute said that this occurred on Tuesday, which was

September 11. Ms. Stoute telephoned the RCMP that day or the day after.

[549] In her view, it was her responsibility and civic duty to provide her information to

the police. It would then be up the RCMP to deal with that information. Ms. Stoute said

that she was stressed because she knew “the impact it would have on (Mr. Asad’s) life”.

However, Ms. Stoute denied that she told Ms. Sutter that she was torn and did not know

what to do, saying that may have been Ms. Sutter’s interpretation. Ms. Stoute said that

she had affection for Mr. Asad and he had been kind and generous to her, “but his

behaviour was bizarre”.

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[550] She said that she met with an RCMP officer in the evening either on the day of, or

the day after, her call to the police. She was uncertain as to the day. When reminded that,

in her direct testimony, she had specifically said the meeting took place on Thursday, Ms.

Stoute replied: “OK, then it was a Thursday”. The meeting lasted approximately 1 ½

hours during which she provided information to the officer, and the officer asked her

many questions to jog her memory.

[551] According to Ms. Stoute, after the RCMP interviewed Mr. Asad at Kinexus on

September 17, she telephoned the officer that evening to find out why they had come to

the office. She told the officer that she had been put into a predicament. It was

embarrassing for Mr. Asad because people at work would know he was being

investigated by the police. The officer told Ms. Stoute that he wished to meet her again to

have a further discussion.

[552] Ms. Stoute and the officer met again the next evening or the day after. She told the

officer that she was upset that the RCMP had come to Kinexus and that they had not

handled it correctly. The officer apologized and said that the investigation file had been

turned over from the Richmond detachment to the Vancouver detachment. The meeting

lasted between ½ hour and an hour. Ms. Stoute denied giving any further information

about Mr. Asad at this second meeting.

[553] In her direct examination, Ms. Stoute had referred to one recent conversation she

had had with Ben. In cross-examination, she admitted that, after the initial RCMP

interview of Mr. Asad on September 17, she had had a number of conversations with

Ben. She described Ben as an RCMP officer who worked on the 9/11 special task force,

and said that Ben also did general handiwork at Heather’s house. Ms. Stoute provided

Ben with information that she described as “highlights, not details”. She added that Ben

seemed to have his own information. Ms. Stoute said that she made inquiries of Ben

because she knew of his involvement with 9/11, and she wanted to know what was

happening in the RCMP investigation of Mr. Asad. Ben told her that a file had been

opened, but that he could not discuss it further. Although Ben repeatedly and consistently

told Ms. Stoute that he could not say anything more, Ms. Stoute continued to inquire

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about the matter, saying that she was curious because she was involved in the

investigation.

(e) The Computer Crash

[554] In her testimony, Ms. Stoute referred to a computer crash as one of the factors

giving rise to her suspicions about Mr. Asad. Ms. Stoute said that she found it strange

that, as a result of the crash, everyone but Mr. Asad had lost their e-mails, and that he had

discovered the crash and fixed it himself, working around the clock through a weekend.

According to Ms. Stoute, it was not necessary for Mr. Asad to do so because Kinexus

employees were not busy then, and she thought it strange that Mr. Asad was working

alone in the office. In response to questions from Mr. Asad’s counsel, she acknowledged

that she was aware that Mr. Asad had worked weekends prior to 9/11.

(f) Discussions with Ms. Sutter between 9/11 and Ms. Stoute’s Layoff in February 2002

[555] Ms. Stoute acknowledged that she and Ms. Sutter discussed their concerns and

suspicions about Mr. Asad. She said that she probably initiated the first conversation

after, but not on, 9/11, at a time when she had not yet seen the photos of the Twin Towers

and Mr. Asad had not yet made his comment about the courage to fly into the buildings,

and before she had spoken to the RCMP.

[556] Ms. Stoute said that she did not know how many such conversations followed, but

they sat beside each other in the Kinexus office so it was easy to communicate.

Sometimes Ms. Stoute would initiate the discussion, on other occasions Ms. Sutter would

do so. Ms. Stoute describes it as an ongoing, dynamic dialogue.

[557] Ms. Stoute said that, as thoughts occurred to her, she would ask Ms. Sutter for her

views. Ms. Stoute did that “to see if she had the same reactions and thoughts as I did, or if

she had opposing thoughts that would bring clarity”. According to Ms. Stoute, she did not

give Ms. Sutter any information that she did not already have, and that “everyone knew

how he felt about the Middle East situation – he didn’t keep it a secret”.

[558] Ms. Sutter agreed with Ms. Stoute that Mr. Asad’s behaviour was “bizarre” and

expressed her own suspicions to Ms. Stoute. Ms. Stoute said that Ms. Sutter noted,

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among other things, that, when she was helping him write the Newsletter article about his

trip, Mr. Asad specifically asked her to describe Washington as the “world political

capital” and New York as the “world financial capital”. Ms. Stoute found that strange.

When Mr. Asad’s counsel noted that, in the same article, he also described Toronto as

“Canadian financial capital”, Detroit as the “car capital of the world”, and Niagara Falls

as “worlds largest falls”, Ms. Stoute responded: “I’m just sort of summarizing”.

[559] Ms. Stoute said that she did not tell Ms. Sutter in advance that she intended to call

the RCMP. She advised her only after “the RCMP brought Kinexus into the situation by

showing up” at the premises.

[560] Ms. Stoute acknowledged that she and Ms. Sutter continued to share their

suspicions about Mr. Asad after the RCMP interviewed Mr. Asad at Kinexus on

September 17. However, later in her cross-examination, Ms. Stoute appeared to resile

from that statement. She claimed that the RCMP investigation “relieved me of my

suspicions”, because it was up to them to do what they needed to do, and she and Mr.

Asad no longer interacted, so she was no longer involved.

[561] When reminded that she had earlier stated that she had continued to ask RCMP

officer Ben about the investigation of Mr. Asad, Ms. Stoute then said that there was

nothing more to talk about with Ms. Sutter. She said that if she followed up with Ms.

Sutter, it was to find out why Mr. Asad was no longer speaking to her. Ms. Sutter told her

that Mr. Asad was hurt and suspicious because he thought someone in the office had

reported him to the RCMP, and he did not trust people. She said that she discussed this

with Ms. Sutter “more than once” before she was laid off by Kinexus.

[562] Ms. Stoute also acknowledged that Ms. Sutter had informed her that Mr. Asad

suspected her of reporting him to the police, although she added that Ms. Sutter told her

that she was among a few people Mr. Asad had in mind. Ms. Sutter also told Ms. Stoute

that Mr. Asad was seeking an apology from the person who had reported him, but Ms.

Stoute did not interpret that as a suggestion that she tell Mr. Asad about her discussions

with the RCMP. She denied ever speaking to Dr. Pelech about her contacts with the

RCMP, and said that Dr. Pelech had never approached her about speaking to Mr. Asad.

Indeed, according to Ms. Stoute, no-one at Kinexus asked her to do that.

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(g) Relationship with Mr. Asad after His Return to Work

[563] Ms. Stoute was asked, if Mr. Asad was her friend, did she not think it important to

resolve the matter of who had reported him to the police. Ms. Stoute responded “No”,

saying: “I knew he would not understand the technicalities of what was involved”. She

added: “I didn’t think it would be resolved, knowing him”.

[564] Although Ms. Sutter had informed her that Mr. Asad suspected several other

Kinexus employees in addition to her, and although Ms. Stoute had described Mr. Asad

after his return to work as “hurt”, “deeply suspicious of people”, and not wanting to

socialize with people he didn’t trust, Ms. Stoute said that she did not consider the removal

of his suspicion of others to be important enough to speak to Mr. Asad.

[565] Ms. Stoute had testified in her direct examination that, following his return from

stress leave, Mr. Asad no longer socialized with her, only interacted with her in terms of

work, and never spoke to her, except to say good morning. When asked how she felt

about Mr. Asad’s demeanour and his avoidance of her, Ms. Stoute replied: “I was hurt. I

was his friend. I was getting to know him. I was disappointed. The whole thing was

stressful”.

[566] She was directed to an article, titled “The twelve days at Kinexus”, which she had

written and which was published in the December 5, 2001 Kinexus Newsletter. It mimics

the “Twelve Days of Christmas”, and included the following:

On my second day at Kinexus Ghassan said to me

“Patreeesha, where are you from?”

When asked, even though they had no relationship, why she had made a joke of Mr.

Asad’s accent, Ms. Stoute replied: “I don’t think it’s a joke. It’s just what he said on the

second day”. She added that it had never occurred to her that Mr. Asad might be

offended, and she had no idea what others who had read it might think, describing it as

“mild entertainment”.

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(h) Discussions after February 2002

[567] Ms. Stoute said that she and Ms. Sutter stayed in regular contact during the time

between her layoff from Kinexus in February 2002 and her return in March 2004. Ms.

Sutter informed her that Mr. Asad had been fired, that “they pretty much agonized over

the decision” to terminate him, that the decision involved Mr. Asad refusing to fill out his

Time Sheets, and that he was suing Kinexus for wrongful dismissal. She also informed

Ms. Stoute about Mr. Asad’s Complaint under the Human Rights Code. Ms. Stoute added

that Ms. Sutter knew that she was aware that Mr. Asad was a difficult person, and that he

became increasingly difficult over time.

[568] Ms. Stoute asserted that, until September 2004, she did not know that there was

any misunderstanding about who had reported Mr. Asad to the RCMP. She had made it

clear to Ms. Sutter in September 2001 that Heather had called the RCMP. Ms. Stoute also

reiterated this to Ms. Sutter after she had returned to Kinexus. Ms. Stoute also said that

she informed Ms. Karia in March 2004, shortly after she had returned to Kinexus, that

Heather had called the RCMP. Ms. Stoute said that she unaware that Kinexus had stated

to Mr. Asad and his counsel that a Kinexus employee had reported Mr. Asad.

[569] She said that this came to light after Mr. Asad’s counsel had asked Kinexus for

the name of the employee. Ms. Stoute was asked by Ms. Karia in September 2004 for a

will-say statement in preparation for the hearing of the Complaint. Contrary to her earlier

testimony, Ms. Stoute said that she then had a discussion with Dr. Pelech. According to

Ms. Stoute, it was determined that the fact that Heather had initially contacted the RCMP

rendered irrelevant her own discussions with the police.

[570] Ms. Stoute stated that, during the course of the hearing, Ms. Sutter informed her

that, in his testimony, Mr. Asad had accused her of being a racist. Ms. Sutter advised her

to refresh her memory with respect to events leading up to and during 9/11. Ms. Stoute

acknowledged that she had also had discussions with Dr. Pelech, but maintained that they

only discussed matters of timing and strategy and did not discuss any of the evidence that

had been adduced. However, she later referred to Ms. Sutter telling her about questions

relating to jokes published in the Kinexus Newsletters, and Ms. Stoute expressed the view

that it was “ludicrous” to bring them into issue. Ms. Stoute also later referred to other

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aspects of the cross-examinations of Ms. Sutter and Ms. Karia, including specific

questions that had been put to them.

3. Re-Direct

[571] Dr. Pelech’s re-direct of Ms. Stoute was brief, and nothing substantive emerged.

At one point, he asked Ms. Stoute a lengthy, convoluted question related to Ms. Stoute’s

earlier testimony to which Ms. Chin objected. I allowed the question but directed Dr.

Pelech to reframe it so that I could be satisfied that Ms. Stoute understood it. He then

based the reframed question on an entirely different version of Ms. Stoute’s testimony

that was fundamentally incorrect, so that Ms. Sutter then interjected and concurred with

my correction.

L.

Steven Pelech

1. Direct Examination

(a) Personal and Employment Background

[572] In speaking about his background, Dr. Pelech referred to his 37-page curriculum

vitae. Dr. Pelech founded Kinexus in July 1999. He has been a Director of the company

and its President and Chief Scientific Officer since its formation, and reports to its Board

of Directors. He and members of his family collectively own 1/3 of the outstanding

shares of Kinexus.

[573] Dr. Pelech is also a professor in the Neurology Division of the Faculty of

Medicine at UBC where he has been a faculty member since 1988. He does not have a

medical degree, but holds a Ph.D. in biochemistry.

[574] Dr. Pelech has offices at both UBC and Kinexus, but he does not use the UBC

office very much, as the majority of his time is devoted to Kinexus. According to him,

“officially” he spends 1/3 of his time at Kinexus, but in reality his work at the company is

a full-time job. He says that, through his research and development work, there is an

overlap between his UBC and Kinexus responsibilities.

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[575] Dr. Pelech had previously founded Kinetek Pharmaceuticals Inc. (“Kinetek”) in

1992. He was President and CEO of Kinetek until May 1998.

[576] Dr. Pelech refers to the ethnic diversity of the many students he has taught and

supervised, of at least 100 people who had been employed over the years at Kinetek, and

of the staff at Kinexus, and says that he had never before been accused of discrimination.

He describes his own background as mainly Ukrainian and says that he was raised as a

Ukrainian Orthodox altar boy.

(b) The Kinexus Workplace and Dr. Pelech’s Views of Discrimination

[577] In the same terms as Kinexus’ previous witnesses, Dr. Pelech describes the multi-

cultural environment of the Kinexus workplace, referring to the same social functions,

Easter holiday policy, and accommodation of D.W.’s prayers and Hajj. He says that D.W.

was “grateful that we allowed her to practise her religion”, and he produced a letter

addressed “To whom it may concern” that he said was written by D.W. on July 8, 2003.

Dr. Pelech acknowledged that he had asked her to write the letter. Dr. Pelech says that

D.W. had left Kinexus, but could not recall when.

[578] Dr. Pelech describes the design of the workplace as wide open as opposed to

private offices, in order to stimulate interaction. He had never witnessed, or heard of, any

act of discrimination at Kinexus, except the case of Mr. Asad being reported to the

RCMP, saying that he assumed that the report had been made by a Kinexus employee.

[579] According to Dr. Pelech, discrimination is clearly intolerable. If he knew of a

discriminatory act, he would talk to the offender in his office and give that person a

warning. He would expect the offender to apologize to the other person. If the

discriminatory behaviour continued, that would be grounds for dismissal. Dr. Pelech

opined that prejudice arises from ignorance, saying: “That’s why we strive in the

workplace to let people know more about each other”.

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(c) Hiring Mr. Asad

[580] Dr. Pelech says that he saw Mr. Asad’s résumé before hiring him, so he knew that

he had worked in Saudi Arabia and was from the Middle East. He assumed that Mr. Asad

is Muslim. His race and religion did not cause Dr. Pelech any concern.

(d) The Events of 9/11

[581] Dr. Pelech says that he first heard about the 9/11 attacks when his wife called him

at home from her workplace. He says that he picked up Ms. Sutter with whom he

carpools, dropped her at Kinexus, and proceeded to his UBC office. He arrived at

Kinexus just after noon.

[582] He recalls that Kinexus employees were traumatized and “couldn’t function” that

day. No work was being done. Dr. Pelech says that he just stayed in his office because he

does not follow news about events like that, observing that there is “so much garbage that

comes out, so I don’t pay attention”.

[583] Dr. Pelech says that, in contrast to the other employees, Mr. Asad “seemed

unaffected, almost jovial”, but he acknowledged that that was Mr. Asad’s basic nature.

Dr. Pelech described him as “generally quite exuberant and enthusiastic” before 9/11.

[584] Dr. Pelech recalls a very brief conversation with Mr. Asad on 9/11. Kinexus

planned to launch its website that day. Mr. Asad came to Dr. Pelech’s office. He asked

Mr. Asad if they should launch that day or wait because people were traumatized and no-

one would pay attention. Mr. Asad replied that it would be a good day to launch the

website. Dr. Pelech says he figured that the website would be up for years, so he said to

go ahead and launch it.

[585] They did not discuss the events of 9/11 that day. Dr. Pelech also says that they

never discussed Mr. Asad’s trip, and he never showed him any photos of his trip.

(e) The RCMP Interview at Kinexus

[586] Dr. Pelech says that Ms. Sutter knocked on his office door to advise him that the

RCMP were on their way up to Kinexus’ 4^thfloor office from the ground floor. She told

him that she thought she knew what this was about. According to Dr. Pelech, Ms. Stoute

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had spoken to her a few days before, telling Ms. Sutter about Mr. Asad’s suspicious

activities.

[587] The plainclothes officers met with Dr. Pelech in his office and told him that a

report had been filed with the RCMP that one of his employees may have a connection to

the 9/11 attacks. Dr. Pelech says: “I was hearing in my own workplace that there may be

a connection to my workplace”. The officers asked Dr. Pelech if he knew of any

suspicious activities on the part of Mr. Asad, to which he responded that Mr. Asad had

been on a trip to New York and other American cities, but nothing more.

[588] They said that they needed to interview Mr. Asad, so he took the officers to the

boardroom, got Mr. Asad and left them together. Dr. Pelech says that, after ½ hour or

less, he and Ms. Sutter, who carpool together, had to leave to pick up her children from

their babysitter, so he returned to the boardroom to advise the officers. According to Dr.

Pelech, Mr. Asad “looked well composed” and “not at all upset”. One of the officers

spoke privately to Dr. Pelech, advising him that the interview was going well and told Dr.

Pelech that Mr. Asad was a good worker and that he should make every effort to retain

him. Dr. Pelech says he thought that a strange remark, but agreed that Mr. Asad was a

good worker. He asked why they had come to the office, and they replied that it was the

only address they had for Mr. Asad.

[589] On the drive home, Dr. Pelech and Ms. Sutter talked about what Ms. Stoute had

told Ms. Sutter. He says that, after hearing that information, he “could certainly

understand why the RCMP were there”. Ms. Sutter said that she would call Mr. Asad that

evening. Dr. Pelech thought that was a good idea, since Ms. Sutter was the Human

Resources Director.

[590] The following day, Ms. Sutter informed Dr. Pelech that Mr. Asad had advised her

that he was being investigated further, so he would not be coming to work that day. Ms.

Sutter kept Dr. Pelech informed about her subsequent conversations with Mr. Asad.

[591] Dr. Pelech says that he was aware that Mr. Asad had been interviewed by the

RCMP two or three times. However, until hearing Mr. Asad’s testimony, he did not know

that he had made a complaint to the RCMP. Dr. Pelech says that, knowing Mr. Asad, his

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reaction to authority, and his “belligerent” attitude, he was not surprised to learn of the

complaint, especially after hearing about the border crossing incident.

[592] Dr. Pelech asserts that probably the main reason the RCMP interviews of Mr.

Asad were so lengthy is the way in which Mr. Asad responded to the questions.

(f) Conversation with Mr. Asad and Dr. Pelech’s Views of the Situation

[593] According to Dr. Pelech, Mr. Asad called him a few days after he had been

interviewed by the RCMP at Kinexus, and told him that he was convinced someone at

Kinexus had reported him to the RCMP. Mr. Asad was certain because some of the

questions the officers had asked him were based on information that only a Kinexus

employee would know, such as references to the computer crash. Mr. Asad said that he

could not continue to work at Kinexus.

[594] Dr. Pelech says that he advised Mr. Asad to take time off work until he felt

comfortable returning, and that it would be no problem if he wanted to take a week or

two. However, Dr. Pelech was frustrated because Mr. Asad had just returned from

vacation and he was needed at work. He says that, despite that, he appreciated Mr. Asad’s

position and accommodated him. According to Dr. Pelech, Kinexus had no obligation to

give Mr. Asad paid stress leave, saying the normal procedure would have been for the

employee to use vacation time. Dr. Pelech says that Ms. Sutter spent an “incredible

amount of time” talking to Mr. Asad, and that Mr. Asad also told Ms. Sutter that he was

quitting Kinexus.

[595] Dr. Pelech was puzzled that Mr. Asad was “so traumatically affected”, describing

him as “shook up” and that “it was pretty clear” that he was “very much affected by it”.

Dr. Pelech recalls that they may have had some discussion that Mr. Asad was seeing a

doctor.

[596] Dr. Pelech opined: “I’d think if a person was falsely accused of something, they

wouldn’t necessarily be so agitated”. He added that the information he had at the time

“seemed suspicious”, and: “To this day, I haven’t formed a conclusion. Too many things

have happened”.

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[597] Dr. Pelech’s focus was on “how to get this guy back to work”. He says that “this

was a police matter”, not a “company matter”. What was a company matter was getting

Mr. Asad back to work and functioning normally as soon as possible.

[598] In Dr. Pelech’s view, Ms. Stoute’s action was not “discrimination motivated”

because she and Mr. Asad “were socially interacting with each other” and got along well.

“It didn’t make sense” that it could be discrimination. He says that, by reporting Mr.

Asad, Ms. Stoute was doing a “civic duty”.

(g) Who Reported Mr. Asad to the RCMP?

[599] Dr. Pelech says that he had assumed Ms. Stoute had reported Mr. Asad to the

RCMP because of what Ms. Sutter had told him. He did not know until October 2004 that

Heather had reported him.

(h) Mr. Asad’s Return to Work

[600] Dr. Pelech says that the Kinexus staff did not initially know why Mr. Asad had

been away from work, although “rumours get around fast” in a small workplace. He

denies that there was any hostility directed at Mr. Asad because he is an Arab male, and

says that no-one told him they thought Mr. Asad was a terrorist.

[601] According to Dr. Pelech, Mr. Asad decided to write the Newsletter article about

his absence, and people were sympathetic toward him. Ms. Sutter told Dr. Pelech and

other management people that “we had to watch out for him”.

[602] Dr. Pelech describes Mr. Asad’s demeanour after his return to work as “not as

exuberant as he used to be”, and that he “looked around a lot at people”. Dr. Pelech also

observes that Mr. Asad was “clearly more withdrawn, and moping around a lot”, and

says: “He was disturbed but he was making an effort to get on with the job”. Although he

opened up with some people, it was “obvious that he didn’t want to interact” with others.

When asked who the latter were, Dr. Pelech identified J.S. and Ms. Stoute.

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(i) Mr. Asad’s Request for an Apology

[603] Dr. Pelech says that, on the day Mr. Asad returned to work or the day after, they

had a discussion. Mr. Asad asked that something be done about the employee who had

reported him to the RCMP; he wanted an apology. Dr. Pelech believes that he confirmed

to Mr. Asad that the report had been made by a Kinexus employee. According to Dr.

Pelech, Mr. Asad referred to J.S. and Dr. S. as people he suspected had reported him. He

asserts that the names of Ms. Stoute and Ms. Karia never came up.

[604] He told Mr. Asad that, based on his knowledge of the employee, that person was

not motivated by hatred of any kind and had internal turmoil about reporting him, and

assured Mr. Asad that he did not expect that Mr. Asad would experience any hostility in

the future. When Mr. Asad replied that was not enough and continued to press for an

apology, Dr. Pelech told him that he could not force the employee to apologize, and that

Mr. Asad had to “move on”. Dr. Pelech says that Mr. Asad did not respond to that

comment, but that he could tell that he was frustrated.

[605] According to Dr. Pelech, during that discussion, he asked Mr. Asad if he had seen

photos of the 9/11 terrorists, and noted to him that, like Mr. Asad, they were “all young,

handsome, clean-cut” men, and lots of them were well-educated. He says that the point he

was trying to make was that “they didn’t look like terrorists”.

[606] Dr. Pelech says that, relying on Ms. Sutter’s conversations with Ms. Stoute, he

was satisfied that Ms. Stoute had not acted out of hate, malice or discrimination toward

Mr. Asad. He says that he had heard that Ms. Stoute was “teary-eyed” and, based on what

Ms. Sutter had told him, he ascribes that to Ms. Stoute being upset that things “didn’t

unfold as she thought they would”. Dr. Pelech says that it is a terrible thing to be accused

of a crime, but it is also a terrible thing to do something you think is right and it goes

wrong. He adds that he knew that one of the RCMP officers was from the hate crime

division, so he thought that, if the officer considered Ms. Stoute’s report of Mr. Asad to

be a hate crime, the officer would have informed him and investigated Ms. Stoute.

[607] He did not speak to Ms. Stoute because “she had confided in [Ms. Sutter] as HR

Director” and those discussions were confidential. Dr. Pelech also says that, as a citizen,

it was not his place to interrogate Ms. Stoute; that was done by the RCMP.

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[608] Dr. Pelech says that he considered if reconciliation between Ms. Stoute and Mr.

Asad was possible. According to Dr. Pelech, “we did let (Ms. Stoute) know that (Mr.

Asad) was looking for an apology”. In Dr. Pelech’s view, it was up to her to decide what

to do. He says that it was not the place of the company to tell her to apologize for

something she thought was the right thing to do, and that the company could not force an

employee to do something they do not think is right: “It had to come from her. Not much

else we could do”.

(j) The Christmas Party

[609] Prior to the 2001 Christmas party, Mr. Asad did not participate in the potluck or

the pumpkin carving contest, although Dr. Pelech says that he was able to persuade Mr.

Asad to deliver the carved pumpkins to a local hospital.

[610] When Dr. Pelech learned from Ms. Sutter that Mr. Asad did not intend to attend

the Christmas party, he spoke with him. Mr. Asad advised that he did not want to share

food with the person who had betrayed him. Dr. Pelech says that he assured Mr. Asad

that no-one hated him, that the person who had reported him to the RCMP felt badly, and

that he had to move on. He told Mr. Asad that it was unfair of him to make the rest of the

staff suffer, particularly Ms. Sutter who had put in a lot of work organizing the event.

[611] When Mr. Asad continued to refuse to attend, Dr. Pelech says he “ordered him to

go”. According to Dr. Pelech, it was “not really an order like if you don’t go, you’re

fired, but I told him he had to go”.

[612] Mr. Asad did not attend. Dr. Pelech says that he was not really surprised, because

“he’d been like this before”. After the party, Dr. Pelech and Ms. Sutter returned to

Kinexus. He told Mr. Asad that “I expected him to be there because I told him to be

there” and that he had missed “a great opportunity”. He gave Mr. Asad his gift and $500

bonus, and says that Mr. Asad may have expressed some holiday wishes. Dr. Pelech

denies that he yelled at Mr. Asad or gave him a lecture, and merely expressed his

disappointment. Dr. Pelech says that he never yells at people, describing that as

“counterproductive”.

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[613] With respect to the e-mail which Mr. Asad sent to Dr. Pelech the day of the

Christmas party, Dr. Pelech acknowledges that Mr. Asad was probably correct in saying

that he had sent it in the afternoon, before Dr. Pelech and Ms. Sutter had returned to

Kinexus. According to Dr. Pelech, Mr. Asad had sent the e-mail to his home, and that

there is sometimes a delay of ½ day before he sees such e-mails.

(k) Turmoil at Kinexus, Layoffs, and Change in Mr. Asad’s Demeanour

[614] Dr. Pelech says that Kinexus went through “an incredible financial crisis” in early

2002 and that the management team was aware that the company “might go under”,

which would have meant everyone would lose their jobs. The company’s investors

determined that expenses had to be reduced by cutting staff. Consequently, six or seven

employees were laid off, including Ms. Stoute and J.S.

[615] Dr. Pelech refers to “turmoil in the management” and says that he and Dr.

McDermott had a dispute. Dr. McDermott and L.A., the then Marketing Manager, came

up with a plan that, in Dr. Pelech’s view, “would have caused the company to go broke”.

Dr. Pelech recalls a meeting at which Dr. McDermott yelled at him and accused him of

micromanaging. Dr. Pelech says that Ms. Sutter made Mr. Asad aware of the “different

philosophies as to the direction the company should take” held by himself and Dr.

McDermott.

[616] Dr. Pelech says that “things went downhill with (Dr. McDermott)”, but he is not

sure if it had anything to do with 9/11. Mr. Asad reported to Dr. McDermott until the

latter resigned from Kinexus. Dr. Pelech describes the relationship as “a little strange”.

According to him, after Mr. Asad returned to work in October 2001, he came to see Dr.

Pelech every two or three days about Dr. McDermott, expressing frustration about what

Dr. McDermott was doing in IT. Their conversations lasted ½ hour or more. Dr. Pelech

asserts that, although he thought it important for Mr. Asad to work with Dr. McDermott

who was then his supervisor, his door was always open to him. He said that Mr. Asad did

not just complain about Dr. McDermott, he had some “really good ideas too”.

[617] Dr. Pelech asserts that he was simply managing Mr. Asad to work with Dr.

McDermott. However, Dr. McDermott saw this as Mr. Asad now reporting to Dr. Pelech.

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Dr. McDermott was upset that Dr. Pelech had directly authorized Mr. Asad to restore e-

mails that had been lost due to a computer systems crash.

[618] According to Dr. Pelech, in October 2001, Dr. McDermott wanted to fire Mr.

Asad. This represented a “big flip flop”, because only a few months before, Dr.

McDermott had praised Mr. Asad and promised him a substantial salary increase. Dr.

Pelech says that, given the company’s financial problems, he and Ms. Sutter had been

disappointed that Dr. McDermott had made that promise. However, Dr. Pelech felt that

there were no grounds to fire Mr. Asad, because he was a hard worker with a good

attitude, and had received a very good performance review and the promise of a salary

increase.

[619] In the end, the Board supported Dr. Pelech and rejected Dr. McDermott’s plan for

Kinexus. Dr. McDermott resigned in March 2002 and left the company in April. In the

meantime, according to Dr. Pelech, Mr. Asad brought up more information, including an

allegation that Dr. McDermott was planning on taking the Kinexus database. Ms. Sutter

asked him to document his concerns about Dr. McDermott.

[620] Dr. Pelech asserts that, after the layoffs and Dr. McDermott’s departure, Mr.

Asad’s demeanour completely changed. He was “happy, active, back to his old self”, as

he was before 9/11, and interacted with all of the remaining Kinexus staff.

(l) Mr. Asad’s Title and Management Status

[621] Dr. Pelech says that, although the company was in financial difficulty, Mr. Asad

had threatened to quit Kinexus unless he received a substantial salary increase as

promised by Dr. McDermott. It was agreed that his salary would be increased to $55,000

per annum and his share options to 6,000, but the salary increase would not take effect

until Kinexus obtained additional financing, at which time the increase would be

retroactive to January 1, 2002. His new title was also agreed.

[622] According to Dr. Pelech, the increase meant that Mr. Asad and Ms. Karia were the

second highest paid employees at Kinexus; only Ms. Sutter, at $60,000 earned more.

Unlike Mr. Asad, Ms. Karia’s salary increase was not retroactive. Dr. Pelech says that, at

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the time, his own salary was $50,000 and he had 100,000 share options, although he also

received a salary from UBC. His Kinexus salary has since increased to $100,000.

[623] After Dr. McDermott’s departure, Mr. Asad wanted a further change to his title, to

include the term “manager”. Dr. Pelech asserts that he did not have a problem with Mr.

Asad’s request, because he had the responsibilities of a manager and was paid at that

level. However, Mr. Turner wanted to see how Mr. Asad performed in managing people.

[624] Dr. Pelech asserts that Mr. Asad became part of management in June or July

2002, at the time that his salary increase took effect following the new financing for

Kinexus. It was Dr. Pelech’s opinion that it was unfair to consider him management until

then.

[625] Dr. Pelech says that, at that point, Mr. Asad was not asked to attend management

meetings because he was supervising coop students, and his weekly meetings with the

students coincided with the time of management meetings. Dr. Pelech says that, in any

event, he felt that he could convey the necessary information from management meetings

directly to Mr. Asad.

(m) Concerns about Mr. Asad’s December 2002 Vacation

[626] During the summer of 2002, Mr. Asad advised that he wished to take a month-

long trip to the Middle East. Dr. Pelech says that he had concerns about Mr. Asad being

away for such a long period of time, but they came up with a plan to hire a coop student

whom Mr. Asad would train to look after things in his absence.

[627] However, when major problems with the computer system occurred in November,

Dr. Pelech and Mr. Turner met with Mr. Asad. According to Dr. Pelech, after the

meeting, Mr. Turner wanted to fire Mr. Asad because he was not confident about his

competency, but Dr. Pelech gave Mr. Asad the benefit of the doubt and Mr. Turner

“reluctantly agreed”. Dr. Pelech and Mr. Turner agreed that they “should monitor his

behaviour and competence” after Mr. Asad had returned from his vacation in the Middle

East.

[628] Dr. Pelech states that it is important to understand the “power structure” of

Kinexus. As a condition of the investors agreeing to inject more money into the company,

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they had insisted that one of them be in management. Consequently, Mr. Turner was

appointed as CEO. However, Dr. Pelech says that he did not report to Mr. Turner.

Instead, all major decisions were made jointly. According to Dr. Pelech, he and members

of his family own 1/3 of the shares of Kinexus, twice as many as Mr. Turner’s company

owns. Consequently, Dr. Pelech says that Mr. Turner could not fire Mr. Asad without his

support.

(n) Mr. Asad’s Photo on the Kinexus Website

[629] Dr. Pelech denies that he authorized the removal of Mr. Asad’s photo from the

Kinexus website in August 2002, and states that it was “clearly the result of an accident”.

He says that, at the time, K.C., a Kinexus employee and the website master, had personal

problems which may have affected his performance. Elsewhere in his testimony, Dr.

Pelech had also referred to personal and medical problems of a specific former employee,

which sometimes made him “non-functional”.

[630] Dr. Pelech also says that Mr. Asad did not ask him about the removal of his photo

from the website.

(o) Mr. Asad’s Claim for Overtime Pay

[631] Dr. Pelech says that he was surprised to learn that Mr. Asad was not at work on

November 28, 2002, just before his scheduled vacation. According to Dr. Pelech, he was

concerned that the coop student had not yet been properly trained by Mr. Asad, and some

employees told him that the computer system was not running optimally. He “begged”

Mr. Asad to return to work on November 28 and 29, and agreed to pay him overtime pay

for those two days. However, Mr. Asad did not work overtime, so no overtime payment

was made to him.

[632] According to Dr. Pelech, until the beginning of March 2003, he was unaware of

Mr. Asad’s claim for pay for overtime work prior to November 28 and 29. Ms. Karia

informed him at that time of Mr. Asad’s claim. He says that he asked Ms. Karia to obtain

details of Mr. Asad’s claim from him, so that he could discuss it with him, but Mr. Asad

refused, saying that Ms. Sutter had already done the calculations.

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[633] Dr. Pelech claims that he did not see the calculations prepared by Ms. Sutter until

the course of this hearing. However, later in his testimony, Dr. Pelech said that he had

had previous discussions with Ms. Sutter about Mr. Asad’s overtime claim, and that the

overtime issue was one of the subjects to be covered in his performance review. I also

note that a copy of the calculations bears the exhibit stamps of the EI hearing which was

held in June 2003.

[634] Dr. Pelech also says that Ms. Karia also expressed to him her concern that Mr.

Asad was not actually doing work during regular work hours. He asserts that it was not

unusual for Mr. Asad to walk around with a coffee cup, chatting with people, and that he

had previously spoken to him about disrupting other employees during their work hours.

[635] In Dr. Pelech’s view, Mr. Asad did not have a valid claim for overtime pay.

Kinexus had no policy to pay overtime pay. Non-management employees were eligible

for compensating time off, but management employees were not. Mr. Asad was part of

management.

(p) Performance Reviews

[636] Dr. Pelech states that he was responsible for seven or eight performance reviews,

and that he had trouble doing them because of other pressing issues. He was out of town

at conferences, had to prepare grant material for his UBC job, and was continuing to

work on financing issues and ways to improve sales in order to keep Kinexus solvent. In

his words, it was “just one thing after the next”. He says that he was embarrassed by the

delay in doing the performance reviews.

[637] Dr. Pelech describes the many issues that he says would have been discussed at

Mr. Asad’s performance review: concerns about his competency raised by Mr. Turner;

his “blackmail comments” about not coming in unless he was paid overtime; failure to

submit his Time Sheets; badmouthing management; and generally complaining about the

company. Later in his testimony, Dr. Pelech referred to the “contempt (Mr. Asad) had for

my management”. He says that he did not have the time to meet with Mr. Asad.

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[638] Dr. Pelech acknowledges that Mr. Asad was frustrated but “pretty patient” about

the delay in his performance review, and that he understood that he had to see the “bigger

picture of everything that was going on”.

(q) Time Sheets

[639] Dr. Pelech offers two reasons for requiring Kinexus employees to record Time

Sheets: first, to track time worked by employees; and secondly, because it is critical to

document time spent on R&D activities for corporate tax purposes. The Time Sheets

must be signed by the employee and approved and co-signed by the employee’s

supervisor. He says that estimates without an employee’s signature are only allowed by

Revenue Canada if an employee is ill or has been terminated.

[640] Dr. Pelech states that Ms. Karia would be unable to complete Kinexus’ financial

statements without everybody’s Time Sheets, and that the financial statements are audited

by Kinexus’ auditors and submitted monthly to its Board of Directors and annually to

Revenue Canada.

[641] Dr. Pelech states that Ms. Sutter and Ms. Karia spoke to Mr. Asad regularly and

then daily about completing his January and February 2003 Time Sheets. When he

learned on March 6 that Mr. Asad was still refusing to submit them, Dr. Pelech says that

he was “irritated” and went to his desk. In the presence of Ms. Sutter and a coop student,

he ordered Mr. Asad: “Ghassan, fill in your Time Sheets. No Time Sheets, no job”. He

confirmed that by an e-mail to Mr. Asad later that day.

[642] On the following day, Dr. Pelech requested Ms. Sutter and Ms. Karia to try again

to persuade Mr. Asad to hand in his Time Sheets. Mr. Asad continued to refuse to do so.

According to Dr. Pelech: “If the guy had just completed the Time Sheets (before March

13), there’s still a chance he’d still be employed today”, and “I would’ve considered

keeping him if he had filled in the Time Sheets before March 13 (the day Mr. Asad was

terminated)”.

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(r) The Termination

[643] Dr. Pelech states that he made the ultimate decision to terminate Mr. Asad after

consultation with Mr. Turner and discussions with Ms. Sutter and Ms. Karia. He made

the decision because Mr. Asad would not comply with a simple request, and Dr. Pelech

decided that we “couldn’t control him”, so he had to go. According to Dr. Pelech, the

main issue was Mr. Asad’s refusal to complete his Time Sheets. He described that refusal

as “insubordination”.

[644] He instructed Ms. Karia on March 10 to prepare the paperwork, but the actual

termination date was determined by the availability of a consultant from Unilogik to take

over Mr. Asad’s work until a replacement was hired.

[645] The termination meeting was attended by Dr. Pelech, Ms. Karia and Mr. Asad.

Dr. Pelech says that he expressed his concerns about Mr. Asad’s refusal to complete his

Time Sheets, describing it as an act of insubordination that could not be tolerated, and

that, in light of that and other issues, he had to be terminated. He describes Mr. Asad as

very calm, as though he had expected it. On the other hand, Ms. Karia was very upset and

was shaking, and Dr. Pelech had to calm her down.

[646] Dr. Pelech introduced Mr. Asad to the Unilogik consultant and left them together.

Subsequently, an issue arose over Mr. Asad’s refusal to provide his computer password

because he used the same password for his personal accounts. Mr. Asad was becoming

angry, so Ms. Karia suggested that he return the following day.

[647] On the next day, according to Dr. Pelech, Mr. Asad threatened a lawsuit against

Kinexus. Dr. Pelech says he told Mr. Asad to get legal advice and said goodbye.

[648] Dr. Pelech describes the termination as a “real tragedy” because Mr. Asad had

“real potential” but “he just blew it”.

2.

Cross-examination

(a) The Events of 9/11

[649] Dr. Pelech said that, following his wife’s telephone call which first alerted him to

planes crashing into the Twin Towers, he picked up Ms. Sutter in their carpool and drove

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to Kinexus. Ms. Sutter was unaware of the events in New York City, and he does not

recall if they listened to the car radio.

[650] Although everyone at Kinexus was upset and focussed on obtaining and

discussing news about the 9/11 events, Dr. Pelech said that he paid little attention.

Because employees would come by his office to tell him about developments, he was

“perfectly aware” of the collapse of the Twin Towers and of people jumping out of the

buildings, but said that he did not have time to spend on them. Dr. Pelech said that he had

learned from watching coverage of the O.J. Simpson incident that he did not want to

waste his time waiting for something to happen and listening to rumours and false

information.

[651] Dr. Pelech said that he had many things to do, and the workplace is not the place

to try to find information about such events. Instead, he tried to “set an example” that

people should get to work, saying that the events were occurring in a different country

and “there was nothing we could do about it”. In response to a question, he first hesitated,

but then agreed that he had tried to treat 9/11 “as a regular workday”.

[652] Dr. Pelech also agreed that he had approved the launch of the Kinexus website on

9/11, saying that his objective was to launch it as soon as possible and that the events of

9/11 would not make a big difference. In fact, he thought it would be good to launch it on

that day to “keep people busy”.

[653] He asked Mr. Asad for his opinion as to whether to launch the website that day.

Although, in his direct testimony, Dr. Pelech had quoted Mr. Asad as saying it would be a

“good day” to launch it, in cross-examination Dr. Pelech quoted Mr. Asad as saying it

would be the “best day”. Later, Dr. Pelech asserted that Mr. Asad had said that he

“couldn’t think of a better day to launch the website”.

(b) The RCMP Interview at Kinexus

[654] In Dr. Pelech’s view, the RCMP officers were discreet in their interview of Mr.

Asad at the Kinexus offices because they were in plainclothes and came at the end of the

day so as not to disrupt work activities. However, when shown the sign in/out sheet for

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September 17, Dr. Pelech agreed that 14 of the 19 employees at work that day were still

in the offices when the RCMP officers arrived.

[655] Although the officers did not say who had reported Mr. Asad to the police, Dr.

Pelech assumed it was Ms. Stoute because Ms. Sutter had told him about her previous

discussions with Ms. Stoute. The officers asked him if Kinexus had had a computer crash,

and he confirmed that one had occurred in August. They informed Dr. Pelech that they

were investigating over 200 reports connected to 9/11.

[656] Dr. Pelech reiterated that one of the officers told him that Mr. Asad was a good

employee and a “good guy”, and that he should make every effort to retain him. Dr.

Pelech surmised that the officer was telling him that, if Mr. Asad was innocent, Kinexus

should not jeopardize his employment. The message he took from the officer’s comment

was that, at that point, Mr. Asad was an innocent person and should be treated as such.

[657] Although Dr. Pelech acknowledged that he and Ms. Sutter remained at the

Kinexus offices for ½ hour after the RCMP officers had arrived, he said that he did not

have any discussions with Ms. Stoute and did not recall if he spoke with Ms. Sutter about

the presence of the RCMP or their reasons for being there. He said that he was very busy.

[658] On the drive home, Dr. Pelech and Ms. Sutter discussed her conversations with

Ms. Stoute. He denied talking to Ms. Stoute about her own suspicions of Mr. Asad until

shortly before the commencement of the hearing, and again after Mr. Asad had completed

his testimony. According to Dr. Pelech, he acquired one-half of his knowledge only upon

interviewing Ms. Stoute after the hearing had commenced.

(c) Events and Conversations Subsequent to the RCMP Interview

[659] Dr. Pelech said that he did not contact Mr. Asad after the RCMP interview at

Kinexus because: “This was not an employment related matter. We didn’t intend to pry

into personal matters”. He later backed away from that answer and added that Mr. Asad

had an excellent rapport with Ms. Sutter with whom he had a relationship of “trust and

confidentiality”, and it was Ms. Sutter’s job to deal with Mr. Asad.

[660] After Ms. Sutter had spoken to Mr. Asad, she told Dr. Pelech that Mr. Asad was

upset and should take some time off work. She also informed him that Mr. Asad believed

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a Kinexus employee had reported him to the RCMP. Dr. Pelech said that he had the

impression that Mr. Asad “thought someone was out to get him at the workplace”. Ms.

Sutter also told Dr. Pelech that Mr. Asad had told her that he wanted to quit.

[661] Dr. Pelech said that the strategy he and Ms. Sutter followed was to discourage Mr.

Asad from quitting, and: “Get him back to work”.

[662] Ms. Sutter informed Dr. Pelech of her discussions with Ms. Stoute and the

following reasons for Ms. Stoute’s suspicions about Mr. Asad:

• Ms. Stoute had regularly socialized with Mr. Asad outside the workplace;

• Mr. Asad had visited New York and Washington shortly before 9/11;

• he had taken 20 photos of the Twin Towers, and also had taken photos of the

Pentagon, and the White House;

• he was familiar with other terrorist activities;

• he fitted the profile of the 9/11 terrorists;

• he had been involved in an incident with a customs officer at the border;

• he was the only Kinexus employee whose e-mails had not been lost in a

computer crash;

• he would not let Ms. Stoute into his apartment because he had a mysterious

roommate.

He said that, on the basis of those factors, he “could see why someone could have

concerns” about Mr. Asad, and why someone would report him to the RCMP.

[663] According to Dr. Pelech, Ms. Stoute talked to Ms. Sutter about these matters to

see if she was correct in holding her suspicions. Ms. Sutter informed Dr. Pelech that Ms.

Stoute had spoken to the RCMP. Although Dr. Pelech acknowledged that Ms. Sutter had

“concerns” about these matters, he denied that Ms. Sutter ever conveyed to him her

thought that Mr. Asad was a terrorist.

[664] Dr. Pelech said that Ms. Sutter reported to him that Ms. Stoute was upset after the

RCMP had interviewed Mr. Asad. He also stated that he had seen Ms. Stoute “teary-

eyed” in the office at least twice, and, based on what Ms. Sutter had told him, he ascribed

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that to the RCMP investigation. He said that he did not discuss the cause of her upset

with Ms. Stoute because he sensed that she did not want to talk about it and he respected

her privacy.

[665] Dr. Pelech then said that both he and Ms. Sutter had assumed that Ms. Stoute had

called the RCMP, but he asserted that they had been mistaken.

(d) Conversations with Mr. Asad and Dr. Pelech’s Views of the Situation

[666] Dr. Pelech asserted that he had at least two conversations with Mr. Asad while he

was on stress leave. Mr. Asad told him that someone at Kinexus hated him and he could

not return to work while that person was still there. He also told Dr. Pelech about his

interrogations by the RCMP, including descriptions of the video camera and lights used

by the officers. Dr. Pelech reiterated that Mr. Asad was obviously shaken up by the

circumstances and his experience.

[667] Dr. Pelech then stated: “In my observation, if people have nothing to hide, they

are not so shaken up”, but “if they have something to hide, they’ll be more indignant”. He

then offered: “Most indignant people are guilty”, then added that his statement was “not a

rule, just an observation”. He also stated: “I just know if I was in that situation, I

wouldn’t let myself get so frustrated” to the point where he could not work: “That’s not

how I would react to the situation”.

[668] Dr. Pelech acknowledged that Mr. Asad’s reaction was “a genuine feeling he

had”, and added: “He was really traumatically affected at that point. We recognized that

and accommodated him”. According to Dr. Pelech, he advised Mr. Asad that he was

aware of Mr. Asad’s conversations with Ms. Sutter, and told him that they did not think

he was guilty of anything and wanted him back at work. He also advised Mr. Asad to

return to work when he felt ready and did not give him any ultimatums.

[669] Dr. Pelech recalled that, in their first conversation, Mr. Asad was non-committal

about returning to Kinexus and pressed him to find out who had reported him to the

police. According to Dr. Pelech, he believes that, during their second conversation, he

told Mr. Asad that he could not be certain that an employee had reported him, although

he admitted that the information the RCMP had about the computer crash at Kinexus was

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“a hard one to reconcile”. Dr. Pelech said that he confirmed to Mr. Asad that the

informant was a Kinexus employee. He believes that he did so after Mr. Asad had

returned to work from his stress leave.

[670] Dr. Pelech reiterated that the RCMP investigation was “not a company matter”,

and that he saw no evidence of discrimination. He could not see how there could be racial

discrimination when Ms. Stoute and Mr. Asad had been socializing together, saying:

“That made no sense to me at all”.

(e) Mr. Asad’s Return to Work from Stress Leave

[671] Dr. Pelech insisted that he could not reveal the identity of the person who had

reported Mr. Asad to the RCMP because disclosure “might be in breach of “privacy

laws”, and because Ms. Sutter had learned about Ms. Stoute’s discussions with the

RCMP “under confidential circumstances”. According to Dr. Pelech, an employee must

be able to discuss concerns with the Human Resources Director without that information

being transmitted to other employees. That, he said, would create an environment of

suspicion “where someone else might start thinking funny things and it gets out of hand”.

In Dr. Pelech’s view, it was important to protect Ms. Stoute.

[672] With respect to Mr. Asad, Dr. Pelech said Kinexus assisted him first by giving

him time off work. Dr. Pelech said he found that frustrating because Mr. Asad had been

on vacation and then was on stress leave: “He was paid to do a job and he wasn’t doing it

while on stress leave”. Secondly, Kinexus assisted Mr. Asad by getting him focussed on

returning to work, which Dr. Pelech acknowledged was his own primary objective, for

the good of both Mr. Asad and the company. Thirdly, Dr. Pelech told Mr. Asad that he

should feel free to discuss his concerns with Ms. Sutter, and to let them know if he

suffered any abuse or comments from any Kinexus employee.

[673] Dr. Pelech said that Mr. Asad received counselling. When asked who provided

that counselling, he replied that it had been done by Ms. Sutter and “other people”. When

asked to explain what he meant by that, Dr. Pelech said that Dr. McDermott had spoken

to Mr. Asad, and other employees had told Mr. Asad that they were happy to see him

back at work, although he admitted that he had not observed that himself and was unable

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to identify such employees. Dr. Pelech admitted that he did not suggest to Mr. Asad that

he seek professional counselling, and that he had only suggested counselling by Ms.

Sutter. He also stated that he had not suggested any diversity or sensitivity training for

Kinexus employees.

[674] When asked what he would have done if Ms. Stoute had said that she did not feel

comfortable because Mr. Asad is Arab, Dr. Pelech responded that he would suspect that

there was a problem, that there might be racial discrimination, and he would be

concerned. He continued that he would have asked Ms. Sutter to investigate further, and

that if there was blatant discrimination, especially if that was the only thing Ms. Stoute

was saying, he would have taken action. Dr. Pelech said that, if there was a “clear case of

hatred”, he would suggest to Ms. Stoute that she get counselling. A second incident

would be grounds for dismissal. Dr. Pelech said that, in that case, he would have spoken

to Ms. Stoute, to make it “very clear from the top of the company” that such

discrimination was unacceptable.

[675] Dr. Pelech admitted that, although his “door was always open to him”, he did not

spend a lot of time helping Mr. Asad recover from the trauma of the police investigation.

He also agreed that statements contained in documents prepared by Kinexus that he had

devoted a great deal of time helping Mr. Asad were incorrect, although he suggested that

they “could be misinterpreted”. Dr. Pelech said that he told Mr. Asad that “he had to

move on”, that Kinexus was not responsible for the report to the RCMP, and that

management thought he was innocent.

(f) Ms. Stoute Did Not Apologize and Did Not Report Mr. Asad

[676] Ms. Sutter informed Dr. Pelech that she had told Ms. Stoute that Mr. Asad wanted

an apology from the person who had reported him to the RCMP. He understood that Ms.

Stoute did not feel comfortable about making an apology and that she did not want Mr.

Asad to know she had reported him. He surmised that she thought it might be possible to

salvage their relationship.

[677] Dr. Pelech maintained that he did not know until shortly before the

commencement of the hearing that Ms. Stoute had not reported Mr. Asad to the police.

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He said that he had not had a conversation with Ms. Stoute until after the hearing had

commenced.

[678] Dr. Pelech stated that he did not want to discuss the matter with Ms. Stoute

because it would undermine confidence in Kinexus management. He said that this was a

human resources matter involving confidentiality, and that Ms. Sutter is very sensitive to

issues of confidentiality. In his view, if Ms. Stoute knew that Ms. Sutter had discussed

their conversations, it would be a breach of confidentiality, and “We can’t help

employees if we breach their confidence”. He added that this is especially so if the matter

is “not work related, and this was not work related”.

(g) Mr. Asad’s Photo on the Kinexus Website

[679] Dr. Pelech stated that it was his idea to put Mr. Asad’s photo on the Kinexus

website. However, he did not know why it had been removed in 2002; nor did he know

why it had been restored to the website in June 2003. He claimed that he first learned

about its removal and restoration at the hearing.

[680] When he was directed to a copy of Mr. Asad’s photo printed on June 27, 2003,

Dr. Pelech said that it must have been printed because of a request from Ms. Chin. Then

he said that the matter of the photo was first raised by Mr. Asad in his testimony. When

Ms. Chin noted that she had been retained as Mr. Asad’s counsel on February 11, 2004,

Dr. Pelech then said that perhaps it had been generated for Mr. Asad’s EI proceedings,

and surmised that either Ms. Sutter or Ms. Karia had requested it. He stated that he had

not done so. Although he acknowledged that he had represented Kinexus at the EI

proceedings, he did not recall the photo or any other documents being presented before

the EI board of referees.

[681] Finally, when shown a copy of Kinexus’ Response to the Complaint, which he

had signed on July 24, 2003, Dr. Pelech acknowledged that in fact, Kinexus, not Mr.

Asad, had raised the issue of the photo. He described himself as “the person of authority”.

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(h) The Website and the Computer Crash

[682] According to Dr. Pelech, Kinexus has monthly sales of $50,000 – 80,000. The

company does not make cold calls on prospective customers, so the only means of

communication is through its website. He said that the company sends out advertisements

and attends conferences which drive prospective customers to the website, but it takes

months for these activities to produce results.

[683] As a result of the computer crash, the website was down for three weeks. While

the system was down, one stand-alone Kinexus computer could receive e-mails. Dr.

Pelech was unable to estimate how much Kinexus lost in sales during that time.

(i) Overtime Pay

[684] According to Dr. Pelech, Mr. Asad did not inform anyone at Kinexus that he was

taking November 28 and 29, 2002 off work. When Ms. Chin pointed to a portion of

Kinexus’ Defence Document which contradicted that statement, Dr. Pelech responded

that that document had “not properly recorded” the events, saying that “the wording is not

accurate”. He was unable to recall the name of the employee who he said advised him on

November 28 of Mr. Asad’s absence. Dr. Pelech said that he telephoned Mr. Asad at his

home, and that Mr. Asad told him that he had put in a lot of overtime fixing the computer

system, and needed time to prepare for his trip to the Middle East.

[685] Mr. Asad assured Dr. Pelech that the computer systems had all been fixed, that the

coop student had been fully trained to look after things in his absence, and that he would

be available by telephone to address any problems that did arise. Dr. Pelech said that he

did not understand why Mr. Asad had not trained the coop student earlier, and that he had

received reports that there continued to be problems in the system.

[686] However, Dr. Pelech acknowledged that the only person who had complained

about the system was Ms. Karia. According to Dr. Pelech, Ms. Karia had informed him

that she and other employees were experiencing computer problems, but she did not

identify those employees or tell him what those problems were. He did not advise Mr.

Asad that Ms. Karia had reported a problem with her computer.

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[687] Dr. Pelech also admitted that he had not himself encountered any problems and

that, as far as he knew, the system “worked okay”. Later in his cross-examination, Dr.

Pelech contradicted his earlier testimony, saying that he had told Mr. Asad about Ms.

Karia’s computer problem. He explained the contradiction by saying: “I was under a lot

of stress. I don’t remember when I said that.”

[688] He told Mr. Asad that he would pay him for any overtime. Dr. Pelech said that he

meant that Kinexus would pay Mr. Asad for any overtime he worked on November 28

and 29. However, he admitted that “it wasn’t very clearly defined in our conversation”,

but that was his intent and “in my head, I was thinking we’d pay him overtime for the

28^thand 29th”. Mr. Asad then said he would come into work. Dr. Pelech said that he

made that promise “under duress”, and thought they would discuss it further when Mr.

Asad came to work. However, Dr. Pelech stated that they did not have any such

discussion because he had to leave to work at UBC.

[689] When shown the sign in/out sheet for that day which indicated that he was at

Kinexus until 8:35 p.m., Dr. Pelech said that he was actually at his UBC lab. Earlier in

his testimony, he had said that Ms. Sutter regularly signed him in and out on his behalf,

and he stated: “I would say, as President of the company, (the sign in/out sheet) is to keep

track of staff time, not mine”.

(j) Overtime Calculations Prepared by Ms. Sutter

[690] Dr. Pelech was unclear and contradictory in his responses to questions about his

knowledge of the calculations, which Ms. Sutter had prepared, of Mr. Asad’s claim for

overtime. Dr. Pelech changed his answers on several occasions. He said: “A lot of things

didn’t make sense to me”.

[691] Dr. Pelech first stated that he had learned from Ms. Karia in March 2003 of Mr.

Asad’s claim for overtime worked before November 28 and 29, 2002, describing it as

“quite a surprise”. He said that he also learned of Ms. Sutter’s calculations in March

2003, shortly before Mr. Asad was terminated. Then he said that he could not recall when

he first saw the calculations. Next, he said that it was probably shortly after “Mr. Asad

had barged into Ms. Sutter’s office and would not leave until she did the calculations”.

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Then he said that it must have been later because Mr. Asad had already left on vacation,

and he and Ms. Sutter were distracted by Christmas coming up and other matters.

[692] Dr. Pelech did recall that Ms. Sutter was quite upset by Mr. Asad’s demand, and

told Dr. Pelech that she had advised Mr. Asad that he was not eligible for overtime pay

because he was a manager. Dr. Pelech continued to say: “We were going to address these

issues when (Mr, Asad) got back (from vacation) – try to deal with it all in one package”.

[693] Dr. Pelech had stated that Ms. Sutter had informed him, after the hearing had

commenced, that she had deleted the overtime calculations from her computer. When

questioned further, he recanted and said that she had told him that a few days after she

had done the calculations.

[694] Dr. Pelech agreed that, although Ms. Sutter had deleted her calculations, they

might still exist in backup data in the Kinexus computer system, but he acknowledged

that, despite the Tribunal’s orders that Kinexus make full disclosure, he had not taken any

steps to retrieve those calculations. Dr. Pelech also acknowledged that, although he had

instructed Mr. Tarbuck to do a global search of the Kinexus database for anything

containing Mr. Asad’s name, there may be documents, including e-mails, in his personal

computer that had not yet been disclosed.

[695] Dr. Pelech later reiterated that he did not know that Mr. Asad was claiming

overtime pay for days other than November 28 and 29 until shortly before his termination

in March 2003. Dr. Pelech was reminded that he had earlier testified that Ms. Sutter had

told him in December 2002 about Mr. Asad’s claim for overtime worked before those

dates, and that she had prepared the calculations. Dr. Pelech then said that Mr. Asad had

not “formally requested” overtime pay from himself: “[Mr. Asad] may have

contemplated it, but he didn’t ask [me] for it”.

(k) Comments about Documents Prepared by Others at Kinexus

[696] Ms. Chin questioned Dr. Pelech further about the Defence Document. Dr. Pelech

acknowledged that he had read and approved it, but asserted that it contained statements

that were capable of different interpretations, or that certain other apparently missing

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statements must be contained in other documents. He observed: “Your brain puts things

into it, kind of does things. It happens all the time”.

[697] When questioned about statements contained in the Termination Letter, which he

had signed, Dr. Pelech asserted that: “The way this was written, it’s incorrect”, and “It’s

not what I meant”. He described it as “a poorly written sentence” with “a lot of things

jumbled up in it”. Dr. Pelech was unable to explain how Ms. Karia had calculated the

overtime pay set out in the Termination Letter. He described the overtime period set out

in the Termination Letter as a “mistake” and “poorly worded”.

(l) Management Meetings and Title

[698] Dr. Pelech stated that he wanted Mr. Asad to begin attending management

meetings in September 2002, and spoke once to him about that. However, according to

Dr. Pelech, Mr. Asad was supervising two sets of coop students from BCIT and was

meeting them at the same time as the management meetings were held. He said that the

management meetings were normally held every Tuesday afternoon, although sometimes

adjustments would be made. If he was out of town at a conference or had another

important UBC commitment, the meeting would be cancelled. Because of his schedule in

the fall of 2002, management meetings were held only once or twice a month.

[699] Dr. Pelech did not recall if he had asked Mr. Asad about possibly rescheduling his

meetings with the coop students, and stated that he did not consider changing the time of

the management meetings because of his heavy teaching schedule in the fall. Dr. Pelech

acknowledged that he did not give Mr. Asad copies of any management meeting minutes,

and admitted that it probably would have been a good idea to have done so. Instead, he

“talked (Mr. Asad) up”.

[700] In Dr. Pelech’s mind, it was a good idea for Mr. Asad to attend management

meetings, but it was not critical because Mr. Asad was a one-man department and

reported regularly to him. Because they “had a good dialogue back and forth”, Dr. Pelech

had a good sense of what was going on in IT. However, it became more important for Mr.

Asad to attend because of all the computer problems experienced in November and

December.

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[701] Dr. Pelech asserted that Mr. Asad became a manager in June 2002 when his salary

increase took effect. He described that as the “overriding factor” in determining Mr.

Asad’s management status. Dr. Pelech first asserted that he discussed Mr. Asad’s status

with him, but then said that he could not remember having a specific conversation on that

topic. After a further narrative of what other people had said or done, he said that

scientists have a habit of qualifying their answers. He agreed that Mr. Asad was the IT

manager at Kinexus.

[702] Dr. Pelech agreed that Mr. Asad’s ability to manage people was one of the

concerns he and Mr. Turner had. When reminded that he had testified in direct

examination that he was fine with giving Mr. Asad a management title but Mr. Turner

wanted him to have more management experience, Dr. Pelech said that was “basically

correct”. He stated that Mr. Turner’s view was that Mr. Asad was not ready to have

“manager” in his title.

[703] When asked who had the final say on matters affecting the IT department, Dr.

Pelech stated that he was in charge of that department. When asked if a person’s title

determines who is a manger, Dr. Pelech replied: “Not in my company”.

[704] Dr. Pelech described Mr. Turner as the CEO and Chairman of the Board of

Kinexus, but not part of management. He said that he could override Mr. Turner but tries

to work with him. Dr. Pelech added that it would have been possible for him to have

made Mr. Asad a manager over Mr. Turner’s objections, but that would have been “at

great cost”. Finally, Dr. Pelech said that the Kinexus Board of Directors has the final say

on personnel matters.

(m) Mr. Asad’s Work Performance

[705] Earlier in his cross-examination, Dr. Pelech had described Mr. Asad as a good

employee prior to September 2002, and said that, if Mr. Asad had left Kinexus before

then, he would have given him a good, positive reference letter. However, Dr. Pelech

later described him as “satisfactory”, saying that the latter description averages out Mr.

Asad’s performance during his entire employment at Kinexus.

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[706] He confirmed that Mr. Asad had been a good employee before September 2002

with only “minor quirks”. Dr. Pelech also stated that, even after September 2002, his own

observation was that Mr. Asad continued to be conscientious about his work, describing

him as a “responsible employee”.

[707] However, he asserted that Mr. Asad’s performance had deteriorated from that

point. When asked in what ways it had deteriorated, Dr. Pelech said that he had been told

by Ms. Sutter and Ms. Karia that Mr. Asad had complained about management while he

had been away. Dr. Pelech also referred to serious computer problems that arose in

October and November 2002, and asserts that, despite warnings, Mr. Asad did not act

upon them in the expected manner.

[708] When Ms. Chin showed him the April 2002 IT Status Report, Dr. Pelech

acknowledged that Mr. Asad had brought the risk of firewall failure to his attention in

April 2002. He then asserted that he had instructed Mr. Asad to act on the firewall risk

when they discussed the report. However, Dr. Pelech also admitted that Mr. Asad had to

obtain his authority before incurring any costs, and that he had not given such authority

except for “minor items”.

[709] Dr. Pelech also agreed that he had not received any complaints about Mr. Asad

from anyone except Ms. Sutter and Ms. Karia. He stated that he relied on their

observations that Mr. Asad was wasting time and distracting other employees from their

work, and that they had informed him that the behaviour started in September 2002. He

did not have any first-hand direct knowledge from his own observations of when the

alleged behaviour commenced.

[710] According to Dr. Pelech, during a telephone conversation in November while he

and Ms. Sutter were in Florida, Ms. Karia told him that Mr. Asad was making derogatory

comments about Kinexus’ management, and specifically about Dr. Pelech. Dr. Pelech

said that he was surprised to hear that because he and Mr. Asad had seemed to have had a

good relationship before that.

[711] Ms. Karia also told Dr. Pelech that Mr. Asad was spending too much time talking

to his co-workers, and that he was complaining about company policies. Dr. Pelech said

he did not like this, but did not speak to Mr. Asad because that was the job of Human

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Resources. He said that he left it to Ms. Sutter and Ms. Karia, and believed that they had

spoken to Mr. Asad about this.

[712] Dr. Pelech admitted that he did not know what Mr. Asad had been talking to other

employees about. He acknowledged that Mr. Asad was developing a new system for use

at Kinexus and, for that purpose, Mr. Asad would have to hold discussions with his co-

workers. Later in his cross-examination, Dr. Pelech denied saying that Mr. Asad was

developing a new system. However, when shown Mr. Asad’s January 2003 IT

Assessment, Dr. Pelech agreed that it referred to a new system. He then referred to earlier

drafts of that document, but when asked if Kinexus had disclosed those earlier drafts, he

recanted and said that was the only draft.

[713] Dr. Pelech asserted that, in the late spring of 2002, he told Mr. Asad to spend less

time talking to Ms. Sutter because she had complained that he took up too much of her

time when she was working in the office on weekends. That was the only such

conversation Dr. Pelech could recall having had with Mr. Asad about excessive

socializing on the job. He observed that work seemed to be Mr. Asad’s main social outlet.

[714] Dr. Pelech said that he wanted to deal with these issues at Mr. Asad’s

performance review.

(n) The Events of March 2003

[715] Dr. Pelech acknowledged that he had received Mr. Asad’s e-mail dated March 7,

2003 in which Mr. Asad had responded to Dr. Pelech’s March 6 verbal and e-mail

warnings. When asked if he had responded to it, he said: “Not directly. Through (Ms.

Sutter) and (Ms. Karia)”. Dr. Pelech said that he told them what he was expecting, and

they conveyed that to Mr. Asad. He then said that he had to discuss Mr. Asad’s situation

at a management meeting on March 10, and attend a conference in Seattle on March 11.

[716] Dr. Pelech then said: “At this point it was clear I couldn’t work with him”. He

added that Mr. Asad had not addressed the issues raised in his March 6 e-mail, and then

criticized the grammar and punctuation in Mr. Asad’s e-mail, saying that it was vague

and poorly written. When asked, if Mr. Asad’s e-mail was vague and poorly written, why

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he did not ask Mr. Asad for clarification, Dr. Pelech responded: “I didn’t want to speak

with him until we resolved the Time Sheets”.

[717] When asked if Mr. Asad’s e-mail appeared to be an attempt by Mr. Asad to

resolve the situation, Dr. Pelech replied: “No. This looks to me like blackmail”. Dr.

Pelech also described Mr. Asad’s actions as “insubordinate”. To Dr. Pelech, the “key”

and “the real issue” resulting in Mr. Asad’s termination was his insubordination. Mr.

Asad did not complete and submit his Time Sheets, “despite direct orders” from Dr.

Pelech.

[718] Dr. Pelech stated that Mr. Asad’s refusal to attend the Kinexus Christmas party

was not an act of insubordination, but “there was a pattern of behaviour that goes back

one and a half years before he was terminated”.

[719] Dr. Pelech affirmed that he was Mr. Asad’s direct supervisor, and added: “Yeah.

Also the entire company. And this isn’t my only job either”.

[720] Dr. Pelech reiterated that Mr. Asad was calm at the termination meeting on March

13, and that he did not threaten legal action against Kinexus until the following day.

When shown Ms. Karia’s March 13 e-mail in which she refers to Mr. Asad’s threat of a

lawsuit, Dr. Pelech dismissed it as “her perspective”.

(o) Dr. Pelech’s Compensation

[721] During cross-examination on a newspaper article about him, Dr. Pelech stated that

he received annual bonuses of approximately $25,000 from Kinexus in addition to his

annual salary which was then $100,000, plus 100,000 stock options per annum. He also

said that, in addition, he received a salary from UBC which in 2004 was approximately

$105,000.

(p) Discussions with Ms. Stoute

[722] Dr. Pelech stated that he had been told by Ms. Sutter about a photo of Mr. Asad in

front of the Pentagon. Ms. Sutter had informed him “around the 9/11 events” that Ms.

Stoute had spoken to her about a lot of “strange things” involving Mr. Asad and the 9/11

attacks. At the time, he and Ms. Sutter were having a lot of discussions about that subject.

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[723] He said that, during Mr. Asad’s testimony, he had a lengthy discussion with Ms.

Stoute, and learned directly from her that what she had seen was a photo of Mr. Asad

standing in front of a road sign pointing to the Pentagon. During that discussion with Ms.

Stoute, Dr. Pelech told her about Mr. Asad’s testimony, including his statement that he

does not consume any alcohol. Dr. Pelech first stated that he “really questioned (Ms.

Stoute)” about whether she had seen Mr. Asad drinking alcohol, but later denied that he

had done so. He also denied that he had previously said that he had “really questioned”

her about that subject.

(q) Who Reported Mr. Asad to the RCMP?

[724] Dr. Pelech asserted that Ms. Stoute did not contact the RCMP, saying that the

RCMP had contacted her after Heather had spoken to them. He said that he had “the

impression” that Ms. Stoute had had extensive discussions with Heather and that Heather

had called a friend in the RCMP. Dr. Pelech recalled that Ms. Stoute said that she was

reluctant to go to the RCMP to report Mr. Asad because she felt conflicted.

[725] According to Dr. Pelech, Kinexus had sought legal advice after Mr. Asad had

filed his Complaint. He complained that it had cost $5,000 and the lawyer could not give

them a straight answer. However, he then said that the company had not sought legal

advice about Mr. Asad’s request for disclosure of the employee who had reported Mr.

Asad to the police. Dr. Pelech said that, in the back of his mind, he thought that

disclosure might open the company to legal liabilities, but he did not seek legal advice. In

his view, quite apart from the issue of possible liability, it was best not to disclose the

employee’s name

[726] Dr. Pelech stated that Kinexus’ position is that “Technically, this was not initiated

by Ms. Stoute”, and: “The spirit is that [Ms. Stoute] didn’t report [Mr. Asad] to the

RCMP”. He continued: “Technically, if you say ‘report’ means talk to the RCMP, then

she reported him”.

[727] Dr. Pelech reiterated his belief that “it was a police matter, not a company matter”.

He said that Kinexus’ objective was to ensure that Mr. Asad was not discriminated

against and that there was “no witch hunt” against Ms. Stoute.

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(r) Discussions with People Outside Kinexus

[728] Dr. Pelech asserted that Ms. Stoute’s suspicions and actions were reasonable, and

that every person with whom he had discussed this matter agreed. When asked with

whom he had discussed this matter, Dr. Pelech replied: “Family members, friends, (Ms.

Sutter) and (Ms. Karia)”. According to Dr. Pelech, they all thought it “was very

suspicious and the person who reported it had done the right thing”. Dr. Pelech then

retracted part of his statement, saying that Ms. Sutter had not said that Ms. Stoute was

right to be suspicious of Mr. Asad, and that he was only referring to family members and

friends.

[729] Dr. Pelech said that he had had those discussions with people both during and

after Mr. Asad’s stress leave. However, he also stated that the “goal was to minimize

information getting out”. He asserted that most of the information was already out to the

staff because of Mr. Asad’s Newsletter article.

(s) Dr. Pelech’s Conclusion of No Discrimination

[730] When asked if he felt compelled during Mr. Asad’s stress leave to have

discussions with Ms. Stoute about the reasonableness of her suspicions, Dr. Pelech stated

“Absolutely not”. He cited privacy concerns, and said that it was not his job to investigate

terrorism.

[731] Dr. Pelech stated that, based on the information he and Ms. Sutter had, they

concluded that there was no discrimination against Mr. Asad. That conclusion was based

on what Ms. Stoute had told Ms. Sutter, the fact that Ms. Stoute and Mr. Asad had

socialized outside the office, his observation that Ms. Stoute had been teary-eyed at the

office after the RCMP interrogation of Mr. Asad, and Ms. Stoute’s own ethnic

background.

[732] According to Dr. Pelech, people of mixed racial background are “more sensitive”

to issues of discrimination because they have experienced it themselves. Dr. Pelech stated

that, in his own experience, he had seen conflicts between Ukrainians and English, and

referred to his own children as being of mixed heritage. He described Ms. Sutter as being

of mixed Scottish, English and German heritage.

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(t) Further Disclosure Issues and Relationship with Ms. Sutter

[733] In the course of Dr. Pelech’s cross-examination, further issues arose with respect

to Kinexus’ failures to make full disclosure and its late deliveries of disclosure documents

to Mr. Asad’s counsel. During questions relating to these matters, Dr. Pelech

acknowledged that he and Ms. Sutter live together.

3.

Re-Direct

[734] Nothing substantive emerged from re-direct questions put to Dr. Pelech by Ms.

Sutter.

M.

Recall of Ghassan Asad

1. Recall

[735] Mr. Asad was recalled by his counsel to address evidence led by Kinexus about

which he had not been cross-examined.

[736] Mr. Asad denied that he had been unaffected by the 9/11 terrorist attacks, saying

that his reaction was similar to his co-workers and, like everyone else, he had trouble that

day focussing on work.

[737] He denied saying that 9/11 was the best day or a great day, or that he could not

think of a better day, to launch the Kinexus website. He denied saying that it would take a

great deal of courage to fly planes into the World Trade Center, adding that it was “not

something to brag about or talk about in that way”. He denied that he ever wanted to take

flying lessons, or that he had told anyone of such a desire or that he was a spy.

[738] He denied fasting before his 2001 vacation trip to New York City and other

destinations. Mr. Asad said that he took five photos of the World Trade Center during his

visit to New York City, not 20 as alleged by Ms. Stoute. He denied that he had ever seen,

taken, or shown anyone a photo of a sign pointing to the Pentagon.

[739] With respect to Ms. Stoute’s assertion that he had suddenly decided to sell his car

in 2001, Mr. Asad stated that “the engine broke” so he left it at a gas station. When he

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learned that the cost of repairs exceeded its value, he allowed it to be towed away for

scrap.

[740] Mr. Asad said that he had a roommate who did not disappear as asserted by Ms.

Stoute. Rather, he moved out on November 30, 2001, and Mr. Asad said that he helped

the roommate move to his new residence.

[741] He denied drinking alcohol with Ms. Stoute, saying that he had never consumed

an alcoholic drink in his life. He also stated that, when he went shopping with Ms. Stoute

to buy her a birthday present, he had in mind something in the $20 – 30 range, but that

Ms. Stoute started looking at items costing $70 – 90, and that he did not insist on buying

her a gift. Rather, Ms. Stoute asked him if he would buy her something.

[742] According to Mr. Asad, he did not tell Ms. Stoute or anyone else at Kinexus that

he is Palestinian or from Palestine.

[743] When asked about a document he had submitted to the EI board of referees, Mr.

Asad said that his reference to “concerns about his credibility” was to Dr. Pelech. He

explained that he gave his April 2002 IT Report to Dr. Pelech in which he set out, as his

top concern, the risk of a firewall crash. After the crash had occurred, Dr. Pelech “started

blaming me for the problem he knew about six months before and did nothing about it”.

2. Cross-examination on Recall

[744] Although Dr. Pelech asked Mr. Asad a considerable number of questions, most

simply elicited the same responses Mr. Asad had previously given.

[745] Mr. Asad stated that he did not recall any conversation with Dr. Pelech on 9/11.

[746] He denied taking any photo at the White House.

[747] According to Mr. Asad, he told Ms. Stoute before 9/11 that he had a roommate,

and did not allow her into his apartment to use the bathroom because his roommate would

not have liked it. Mr. Asad believes the roommate had been contacted by the RCMP, and

that he continues to stay in touch with him.

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[748] Mr. Asad denied telling Ms. Stoute that he had sold his car. He said that he did not

ultimately buy Ms. Stoute a gift because she kept “walking back and forth to different

stores” and then left to meet Heather.

[749] Mr. Asad denied that his family is from Palestine, and when asked if he identified

himself with Palestine, he replied that all Arabs historically identify with Palestine.

[750] When asked why he had not taken any action to prevent the firewall from

crashing, Mr. Asad replied that he did not have any authority to spend any money on it.

Dr. Pelech then asked how he had blamed Mr. Asad for the firewall crash. Mr. Asad

responded that Dr. Pelech was angry, and “kept yelling at me, lecturing me”, asking how

could this happen, and that Dr. Pelech “kept talking, talking, talking”. He denied that Dr.

Pelech had ever suggested any positive, constructive steps to solve the problem.

IV ANALYSIS - CREDIBILITY OF WITNESSES

A.

General Principles and the Exclusion of Witnesses

[751] It is apparent that the credibility of the witnesses is a central issue in this case. The

matters that the Tribunal should consider in assessing credibility were summarized in

Wust v. Lai’s Chinese Restaurant (1990) Ltd., dba TJ’s Chinese Restaurant, 2002

BCHRT 36, at paras. 32 and 33:

[32] This case requires me to assess the credibility of the witnesses. The

applicable law is as set out in the well-known case of Faryna v. Chorny

[1952] 2 DLR 354 at 357, in which the B.C. Court of Appeal said that:

"the real truth of the story of a witness…must be its harmony with the

preponderance of the probabilities which a practical and informed person

would readily recognize as reasonable in that place and in those

conditions".

[752] [33] In addition, in Hadzic v. Pizza Hut Canada (1999), 37 CHRR D/252

(BCHRT), the Tribunal set out the following non-exhaustive list of factors that should be

weighed in assessing credibility: the witnesses' motives, their powers of observation, their

relationship to the parties, the internal consistency of their evidence, and inconsistencies

and contradictions in relation to other witnesses' evidence.

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[753] Finally, under heading II A. “Exclusion of Witnesses”, I described the order

which I made before the first witness was called, excluding witnesses from the hearing

room until they were called to give their evidence. As a consequence of that order, on the

Respondent’s side, only Dr. Pelech and Ms. Sutter were allowed to remain throughout the

hearing.

[754] The reason for a witness exclusion order is described in the following passage

from Sopinka et al, The Law of Evidence in Canada, Butterworths (1995) at pp. 826-7:

The purpose of excluding witnesses is to preserve a witness’ testimony in

its original state. A witness listening to the evidence given by another may

be influenced by the latter’s testimony, and accordingly change his

evidence to conform with it. Also, by being present in the courtroom and

listening to testimony prior to giving his evidence, he or she may be able

to anticipate, and thereby reduce the effectiveness of, the cross-

examination that will ultimately be faced. It may also facilitate collusion

by allowing a witness to tailor the evidence to fit that of another. An order

excluding witnesses seeks to eliminate this potential unfairness. Moreover,

exclusion of witnesses may reveal earlier collusion. The similarity of

language and phrases used may expose the fact that the witnesses had

compared their version of events and memorized consistent stories.

[755] During the 26 days of the hearing, it was, of course, obvious that much of the

testimony of certain witnesses conflicted with that of others and that, therefore, the

credibility of each would be pivotal to my decisions. With that in mind, I observed the

demeanour of each witness and listened to their testimony, and have set out their

evidence in considerable, although even then not complete, detail. That includes some

evidence that is not directly relevant to the specific issues that I must determine, but

which illuminates the truthfulness and reliability of the testimony of each witness.

[756] I note that, in making findings on credibility, I am able to accept none, some, or

all of the testimony of each witness, and to determine the weight to be given to each.

B.

Ms. Morgan, Mr. McDuffie, Ms. Mirzaei and Mr. Tarbuck

[757] I accept the evidence of Ms. Morgan and Mr. McDuffie. Although Ms. Morgan is

Mr. Asad’s friend and Mr. McDuffie is a former Kinexus employee with a long-standing

relationship with Dr. Pelech and Ms. Sutter, they both testified in a straightforward and

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direct manner. In cross-examination, each responded unhesitatingly with answers that

were candid and sometimes unhelpful to the party who had called them as a witness.

[758] I also accept the evidence of Ms. Mirzaei and Mr. Tarbuck, both current

employees of Kinexus. Ms. Mirzaei’s testimony was restricted to her own background

and personal experience at Kinexus, and she did not have any direct knowledge of the

relevant events involving Mr. Asad. Ms. Mirzaei also acknowledged that a member of the

company’s management had essentially asked her to write a reference letter for Dr.

Pelech and Kinexus for the purposes of this hearing.

[759] I am satisfied that Mr. Tarbuck testified candidly, although at one point, he asked

Dr. Pelech if he should answer a question put to him in cross-examination by Mr. Asad’s

counsel. After I directed him to answer and not to look to Dr. Pelech for his response, Mr.

Tarbuck completed his evidence without further incident.

C.

Dr. Pelech

[760] I have concluded that much of Dr. Pelech’s testimony was, at best, highly

unreliable. It is, of course, obvious that he has a direct and substantial pecuniary interest

in these proceedings. He and members of his family own 1/3 of the shares in Kinexus. At

the time of his cross-examination, he was paid an annual salary of $100,000 as President

of the company. In addition, he received an annual bonus, which, in 2004, was $25,000.

Dr. Pelech also held substantial share options, accumulating at the rate of 100,000 shares

per annum. The value of those options, of course, depends on the financial performance

of the company.

[761] All of that is in addition to his salary as a full-time professor in the UBC Faculty

of Medicine where he earned approximately $100,000 in 2004. According to Dr. Pelech,

although he “officially” spent only 1/3 of his time at Kinexus, in reality his work there

was a full-time job. Kinexus began its operations in Dr. Pelech’s UBC lab, and

subsequently occupied premises on the UBC campus, and at least some purchases were

made by Kinexus through UBC.

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[762] Dr. Pelech had previously founded another company, Kinetek Pharmaceuticals

Inc., in 1992, and had been its President and CEO until 1998. Approximately one year

later, Dr. Pelech founded Kinexus in July 1999.

[763] His relationship with Kinexus is not merely that of a manager with his employer.

It is apparent that Dr. Pelech takes great personal pride in Kinexus. He and the company

are, in his view and apparently that of its employees, one and the same. He referred to

Kinexus as “my company”. Although outside investors own the remaining 2/3 of the

shares in Kinexus, and Dr. Pelech reports to its Board of Directors, Dr. Pelech described

himself as the “person in authority”. He is fiercely protective of Kinexus and its finances.

He also takes much pride in, and defends, what he perceives to be its corporate culture,

and what he, Ms. Sutter and Ms. Karia referred to as “the company unity”.

[764] Mr. McDuffie, the former Director of Corporate Development and member of

Kinexus management, described Dr. Pelech as “the ultimate decision maker”. It was

apparent from the testimony of all past and present employees who were called as

witnesses, including Mr. Asad, that they view him as such. Ms. Karia, who was

supposedly responsible for the preparation of Kinexus’ material and communications

with the Tribunal and Mr. Asad’s counsel in these proceedings, stated that the decisions

in that regard were actually made by Dr. Pelech.

[765] When Kinexus encountered serious financial problems which almost put it under

in 2002, the Board of Directors removed the title of CEO from Dr. Pelech and conferred

it on Mr. Turner. In his testimony, Dr. Pelech referred to the importance of understanding

the “power structure” of Kinexus. He emphasized that Mr. Turner, although Chair of the

Board as well as CEO, was not part of management, and that he could override Mr.

Turner but tried to work with him. Ms. Sutter echoed that view when she described Mr.

Turner as “a part-time CEO” and “really a figurehead”.

[766] Thus, Dr. Pelech clearly saw himself as the personification of Kinexus and as its

very busy “ultimate decision maker”, and ensured that the employees saw him in that

light. He regularly reminded the hearing of his important and demanding schedule,

reciting details of his presentations at various meetings and conferences. His evidence

also revealed that he did not take kindly to opposition to, or criticism of, his views and

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decisions. That is reflected in his perceptions of his relationships with Mr. Turner and the

Board, and his reaction to Dr. McDermott’s conflicting opinions on the direction of

Kinexus. Dr. Pelech’s responses to criticism or perceived criticism were also reflected in

his reactions to information and directions from the Tribunal. I will refer to that later in

these Reasons under the heading “Costs”.

[767] Related to that is the observation that, during his testimony, Dr. Pelech was not

above blaming errors on others, rather than assuming responsibility himself. When

confronted with statements contained in documents prepared and submitted by Ms. Karia

for Kinexus which conflicted with his testimony, Dr. Pelech would describe the

statements as incorrect, capable of misinterpretation, “poorly written”, “not accurate”, or

“not [having] properly recorded the events”, even though he had apparently approved

and, in some cases, signed, the offending document.

[768] His perceptions, and the inconsistencies and contradictions in his testimony, point

to Dr. Pelech’s efforts to shape his evidence of events and conversations to conform to,

and vigorously defend, his views of himself and Kinexus. He also attempted, as the last

witness called by Kinexus, to tailor his testimony to rehabilitate parts of the evidence

previously given by Ms. Sutter, Ms. Karia and Ms. Stoute which had been damaged or

discredited during their cross-examinations.

[769] Dr. Pelech was frequently evasive in his answers to questions put to him in cross-

examination, and engaged in rambling but oftentimes revealing soliloquies in an effort to

tie his evidence to his recollections of what he and earlier witnesses had said. On many

occasions, Dr. Pelech’s recollections were faulty. That led to internal contradictions in his

evidence, followed by awkward attempts to explain them. On numerous occasions, Dr.

Pelech denied having made particular statements in his earlier testimony. Even Ms. Sutter

sometimes interjected to confirm that Dr. Pelech’s recollections were inaccurate. When I

read his words back to him, he would sometimes reply: “That’s not what I meant”.

[770] I was also frequently required to direct Dr. Pelech to answer Mr. Asad’s counsel’s

questions rather than drifting off into an obfuscating side stream. Indeed, even in his

direct examination, Ms. Sutter, who put questions to Dr. Pelech, had to ask for

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adjournments because Dr. Pelech had confused her in his answers by straying into

unexpected areas.

[771] In the end, Dr. Pelech’s testimony contained numerous internal conflicts and

contradictions, as well as conflicts and inconsistencies not only with Mr. Asad, but also

with evidence given by Ms. Karia, Ms. Stoute, Ms. Sutter, Mr. McDuffie and Mr.

Tarbuck. The testimony offered by the Kinexus witnesses imbued Dr. Pelech with many

fine qualities, but not with credibility in the context of this hearing.

[772] In summary, applying the principles articulated in Faryna and in Hadzic, I find

that much of Dr. Pelech’s testimony is not in harmony with the preponderance of the

probabilities which a practical and informed person would readily recognize as

reasonable in that place and in those conditions. Therefore, it must be viewed, at best,

with considerable scepticism, and many parts are simply neither credible nor reliable.

D.

Ms. Sutter

[773] Mr. Asad testified that, during the aftermath of 9/11, he had considered Ms. Sutter

to be a good friend and had confided in her. Indeed, even in cross-examination, when Mr.

Asad was asked what members of Kinexus management he considered to have racist

views, he responded by naming Dr. Pelech and Ms. Karia. He did not name Ms. Sutter.

[774] In her submissions, Mr. Asad’s counsel describes Ms. Sutter as “duplicitous”,

noting that Ms. Sutter had represented herself to Mr. Asad as his confidant and friend

while, at the same time, harbouring the belief that Mr. Asad was “suspicious” and sharing

those views with Ms. Stoute. Both Ms. Sutter and Dr. Pelech described Ms. Stoute as

“torn” and “conflicted” because of her friendship with Mr. Asad. Having observed and

listened to both, in my view, those latter adjectives are perhaps more appropriately

ascribed to Ms. Sutter than Ms. Stoute. I agree that Ms. Sutter was duplicitous in her

relationship with Mr. Asad, but it is also apparent that, in doing so, she was carrying out

Dr. Pelech’s instructions.

[775] That said, I agree that much of Ms. Sutter’s testimony is suspect and unreliable.

As Director of Sales and Marketing, she has a substantial financial stake in Kinexus and

these proceedings through her salary and ancillary benefits, including many thousands of

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stock options. In addition, Ms. Sutter has a direct personal, as well as financial, interest in

Kinexus and these proceedings. Cross-examination of Dr. Pelech revealed that Ms. Sutter

lives with Dr. Pelech who is separated from his spouse. Their numerous prior references

to carpooling together, not only to work but also to the hearing, and Dr. Pelech’s frequent

references to his spouse had created a different impression of their relationship.

[776] In her cross-examination, Ms. Sutter’s evidence was shown to be often internally

inconsistent and contradictory. It became clear that virtually all of her knowledge of the

statements and actions of Mr. Asad, which she found to raise suspicions about his

possible involvement with the 9/11 terrorist attacks and about which she had testified in

direct examination, was rooted, not in her own observations, but in what Ms. Stoute and,

to a lesser degree, Ms. Karia had told her. She admitted that she had not conducted any

independent inquiries with respect to such information.

[777] Documents and submissions, which she was instrumental in preparing, contained

statements that she was unable to substantiate, and she was forced to admit that some

were erroneous. For example, Ms. Sutter admitted that, even though she was Director of

Human Resources, she had not checked Mr. Asad’s Time Sheets to verify a statement

made by Kinexus that Mr. Asad had only worked minimal hours from June to November

2002. She had to admit that the statement was in error.

[778] Ms. Sutter was very sure and quick in her answers in direct examination. In sharp

contrast, during her cross-examination, she frequently paused for lengthy periods of time

before responding, trying to recall her earlier testimony and attempting to anticipate

where a line of questioning was headed. She was particularly defensive and hesitant in

answering questions about the events of 9/11 and their aftermath. She was evasive in her

responses to questions about her suspicions of Mr. Asad, maintaining that she merely

could see why others might be suspicious. Her position was later contradicted by the

testimony of Ms. Karia and Ms. Stoute who said that, in fact, Ms. Sutter had expressed

her own suspicions which were in accord with those of Ms. Stoute. Ms. Sutter’s

responses were calculated to fit the overall defence strategy of the Respondent and its

witnesses, Dr. Pelech, Ms. Stoute and Ms. Karia, which was the subject of discussions

among themselves. However, under the pressure of thorough and effective cross-

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examination, they were unsuccessful in their attempts to fully coordinate and maintain

their respective stories.

[779] Applying the principles articulated in Faryna and in Hadzic, I find that some of

Ms. Sutter’s testimony must be viewed, at best, with considerable scepticism, and other

parts are neither credible nor reliable.

E.

Ms. Karia and Indicia of Collusion among Certain Witnesses

[780] Ms. Karia was visibly angry. Her testimony and other evidence pointed to sources

of friction between Ms. Karia and Mr. Asad, and the possibility of resulting resentment

directed against Mr. Asad. In 2002 Mr. Asad received a much larger salary increase than

she did (45% vis á vis 21%), and his increase was retroactive whereas her’s was not. She

complained to Ms. Sutter that it was unfair that Mr. Asad was continuing to record

overtime hours, whereas Mr. Turner had given instructions that she was not to do so. Ms.

Karia was also assigned the duties of Director of Human Resources in addition to her

responsibilities as Controller without an increase in salary, when Mr. Asad’s salary

equalled her’s and she was already being paid less than her predecessor had been paid to

work as Controller alone.

[781] Ms. Karia had a significant financial and emotional stake in Kinexus and these

proceedings. She occupied two senior management positions as Controller and Human

Resources Director. At the time of her testimony, she was paid $80,000 and received

50,000 share options per annum. She was very conscious of her role as a manager in the

company: “We’re trying to be leaders of the company, and that’s difficult to do if

someone is complaining about our policies”. She also allowed that she was particularly

upset by Mr. Asad’s criticisms of Kinexus management and policies during the months

preceding his termination because, in her opinion, they demeaned her as Director of

Human Resources and jeopardized her work.

[782] However, whatever underlying feelings resulted from all that paled in comparison

to her reaction to what she was told shortly before she testified. It was apparent that she

was outraged by what Dr. Pelech had informed her; that is, that Mr. Asad had said in his

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evidence that she, Dr. Pelech and Ms. Stoute are racist, and that she would have to defend

herself against that allegation.

[783] In cross-examination, Ms. Karia made repeated references to what she described

as “these false allegations [Mr. Asad] has made towards me” and the resulting need to

“prepare for this case to defend myself”. She said that she had not previously suspected

Mr. Asad of involvement in the 9/11 attacks. However, she now believed that “anything

is possible” and that he might have been involved. Her changed view was due to “his lack

of integrity” and his “odd behaviour” on 9/11. His lack of integrity was reflected, in her

view, by “the false allegations he’s made” which she described as “carrying forward to

almost hatred”. Ms. Karia then defined hatred as: “When you make false allegations

against people – people who tried to be nice to him”. She added: “I thought I knew (Mr.

Asad) as a kind, nice person, but I discovered that I didn’t know him at all”, and “I’ve

learned not to trust people after what he’s done”.

[784] In Ms. Karia’s words: “As time passes, impressions change”. Dr. Pelech’s report

to Ms. Karia of Mr. Asad’s testimony did indeed change not only Ms. Karia’s impression

of Mr. Asad, but her recollections of events and conversations as well.

[785] In cross-examination, Ms. Karia initially said that, after the opening statement of

Mr. Asad’s counsel on the first day of the hearing, she had not had any substantive

discussion with anyone about any of the evidence. However, later in her testimony, Ms.

Karia said that she had had a number of discussions with Dr. Pelech and Ms. Stoute, and

that Ms. Sutter was present at some. That is only one example of numerous

inconsistencies and contradictions in Ms. Karia’s testimony. It also points to possible

collusion among witnesses as described in the passage from Sopinka which I have quoted

above.

[786] Another factor pointing to collusion is the similarity of the language and phrases

used by Ms. Karia, Ms. Sutter and Dr. Pelech in their testimony. For example, Ms. Karia

and Ms. Sutter gave strikingly similar responses when each was questioned about the

appropriateness of the terms “Chinaman” and “nigger”. They all described Mr. Asad as

having “incredible potential”. Together with Ms. Stoute, they all described Ms. Sutter as

“nurturing”, and referred to Ms. Stoute’s “civic duty” to report Mr. Asad to the RCMP.

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[787] All employed identical or virtually identical terms to describe Mr. Asad’s alleged

demeanour on 9/11 (“jovial”, “unaffected”, “similar to an ordinary working day”). This

despite the fact that Dr. Pelech, Ms. Stoute and Ms. Karia all asserted that they had very

little contact with Mr. Asad on that day. Indeed, Ms. Stoute stated that she had no

recollection of any conversation with Mr. Asad on 9/11, and Dr. Pelech testified that he

had only one very brief conversation about launching the website. It is also noted that Dr.

Pelech admitted that he had himself tried to treat 9/11 as “a regular workday” to set an

example for the employees that they should focus on work.

[788] Throughout her cross-examination, Ms. Karia was argumentative and evasive in

her answers, frequently changing them as further questions and documents were put to

her. For example, she denied having received a letter addressed to her by Ms. Chin until

she was shown her own subsequent letter which clearly referred to and responded to Ms.

Chin’s letter. When asked a question, she oftentimes demanded a definition of even

simple terms that she had used herself, such as “social conversation”.

[789] On numerous occasions, when directed to statements in documents that she had

prepared, but that contradicted her evidence, she would respond that they had actually

been written by Dr. Pelech or Ms. Sutter, and she had no knowledge of their contents.

[790] Ms. Karia frequently excused her contradictions and inconsistencies by saying: “I

wasn’t paying attention”, “I didn’t think it was important”, “I’m very busy”, “It wasn’t a

major event in my life”, “I remember important issues that impact me”, and “I remember

details of events but not dates”. Yet, in her testimony, Ms. Karia was able to recall in

great detail parts of conversations and events which were unfavourable to Mr. Asad, but

had no memory of other parts of the same conversations and events.

[791] Ms. Karia’s anger and upset at Mr. Asad’s allegation that she is racist and made

racist remarks, and her discussions with Dr. Pelech, Ms. Sutter and Ms. Stoute, caused

her to try to tailor and shape her testimony to fit with their evidence, and to depict Mr.

Asad in as unfavourable a light as possible. That resulted in Ms. Karia’s evidence being

confused and contradictory, rather than convincing.

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[792] Applying the principles articulated in Faryna and in Hadzic, I find that much of

Ms. Karia’s testimony must be viewed with considerable scepticism, and other parts are

neither credible nor reliable.

F.

Ms. Stoute

[793] Ms. Stoute’s role is a mixed but important one. She was the Kinexus employee

who reported Mr. Asad to the RCMP and therefore initiated the events which ultimately

led to Mr. Asad making his Complaint under the Code. (I will deal later in these Reasons

with Kinexus’ assertion that the report was not made by Ms. Stoute.) Ms. Stoute was

consequently a key player in the police investigation of Mr. Asad and the events which

followed.

[794] Ms. Stoute was laid off by Kinexus in February 2002 and left the country until she

returned to employment at the company in March 2004. Therefore, Ms. Stoute was not

physically present at Kinexus when the events leading up to Mr. Asad’s termination

occurred. However, she and Ms. Sutter stayed in touch during her absence, and Ms.

Sutter informed her about Mr. Asad’s termination and the reasons for it, as well as the

filing of his Complaint. Ms. Stoute became very much directly involved again as Dr.

Pelech, Ms. Sutter and Ms. Karia prepared for this hearing. In fact, much of Kinexus’

defence involved a justification of her actions, and then, shortly before the hearing

commenced, a denial that she had reported Mr. Asad to the RCMP.

[795] Quite apart from that, Ms. Stoute maintained her interest in the police

investigation of Mr. Asad. After the completion of Mr. Asad’s interrogations in 2001, and

even after her return to Kinexus two and a half years later, Ms. Stoute continued to make

inquiries of Ben, Heather’s RCMP member acquaintance, despite Ben having repeatedly

told her that he could not divulge any information. Ms. Stoute explained her ongoing

inquiries by saying that she was curious because she was involved in the police

investigation.

[796] Ms. Stoute had loosed the mischief, which she admits she knows caused Mr. Asad

considerable anguish and which ultimately led to the filing of his Complaint against her

employer. This gave Ms. Stoute a compelling reason to justify her actions, and to tailor

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her evidence to depict Mr. Asad in the most unfavourable light and to fit the Kinexus

defence strategy and the evidence of its other witnesses.

[797] Her efforts were unsuccessful, as her responses in cross-examination exposed

numerous inconsistencies and contradictions in her evidence. Her cross-examination also

revealed that much of what she had told Ms. Sutter, Ms. Karia and Dr. Pelech, and what

she had reported to the RCMP about Mr. Asad, was distorted, erroneous or highly

exaggerated. In her testimony and other evidence, Ms. Stoute presented as an articulate,

intelligent and imaginative individual. Unfortunately, those characteristics, when applied

to Mr. Asad’s circumstances, led her to recall and report things that were the products of

a highly active imagination in the emotionally charged environment of post - 9/11, rather

than accurate observations rooted in reality and rational thought.

[798] In short, Ms. Stoute added two plus two and came up with ten. Ten is what she

passed on to Ms. Sutter and the RCMP. Cross-examination revealed the underlying two

plus two, and thus exposed the fundamental flaws in her suspicions and conclusions.

Indeed, in his closing submissions for Kinexus, Dr. Pelech was forced to concede that

some of the statements that Ms. Stoute had made about Mr. Asad were “mistakes,

assumptions, or inaccuracies”.

[799] Ms. Stoute was also visibly angry and hostile while giving her evidence. Like Ms.

Karia, she had been informed, prior to her testimony, that Mr. Asad had accused her of

being a racist. Ms. Stoute’s demeanour and words on the witness stand reflected an

emotive individual with a penchant for emotionally expressive language. Her repeated

references to Mr. Asad as having a “passion about the Middle East” which was “burning

within him” or “in his heart”, “fuelled by his background and experiences when he was

growing up” reflect the nature and tone of her testimony. Under cross-examination, she

retreated from some of her earlier allegations. For example, she changed her testimony

about Mr. Asad’s “hatred of Americans” to an admission that: “I believe he disliked

them”.

[800] Ms. Stoute, like Ms. Karia and to a lesser extent, Ms. Sutter, unnecessarily

demanded definitions of terms before answering questions in cross-examination. While,

of course, it is prudent for witnesses to be satisfied that they understand the question

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being put to them, the aforementioned three witnesses called by Kinexus sometimes

carried this to the point of absurdity. For example, although Ms. Stoute had, in direct

examination and earlier cross-examination, repeatedly referred to Mr. Asad as her

“friend”, when asked a question that incorporated one of those previous references, Ms.

Stoute demanded that Ms. Chin first define “friend”.

[801] Throughout her cross-examination, Ms. Stoute was argumentative and evasive in

her responses. When inconsistencies and contradictions in her testimony were brought to

her attention, her attempts to explain them were unconvincing and often resulted only in

further inconsistencies. Among them was her initial insistence that, prior to giving her

testimony, she had not discussed with Dr. Pelech, Ms. Sutter or Ms. Karia the evidence

given by previous witnesses. Her subsequent responses and other evidence pointed to a

contrary conclusion.

[802] In summary, Ms. Stoute’s testimony about Mr. Asad and his activities and

statements lacked the ring of truth, and instead sounded notes of disharmony with the

preponderance of reasonable probabilities. Applying the principles articulated in Faryna

and in Hadzic, I do not find Ms. Stoute to be a credible or reliable witness, particularly

with respect to her evidence about Mr. Asad’s activities and comments.

G.

Mr. Asad

[803] In contrast, Mr. Asad gave his evidence in a straightforward, detailed and direct

manner. His testimony was unshaken by Dr. Pelech’s sometimes provocative cross-

examination, and his responses were, with a few possible minor exceptions which were

not of significant consequence, entirely consistent with the evidence he gave in direct

examination.

[804] There were two problematic aspects of Mr. Asad’s testimony. First was his

insistence that Ms. Karia made offensive comments on three separate occasions between

September 11 and 17, 2001. Ms. Karia was apparently on study leave which commenced

on September 12 and ended on October 23, although the sign in/out sheets reflect that she

was in the office for 50 minutes on September 13. Ms. Karia suggested that she may have

worked at home on that day. However, Ms. Karia also acknowledged that the sign in/out

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sheets are not always accurate, and it is therefore possible that they do not completely

capture the times when she may have been in the office. Ms. Karia’s diary might have

clarified when she was at Kinexus, but, when asked why she had not disclosed it in

accordance with the Tribunal’s Rules, she said that she was unable to produce it because

she had thrown away the relevant pages.

[805] Secondly, in my view, Mr. Asad’s testimony about his relationship with Dr.

McDermott was somewhat puzzling and self-serving. It may be that he was embarrassed

that, following his return to work in October 2001, he apparently turned against his

former champion, perhaps in an effort to curry favour with Dr. Pelech and Ms. Sutter.

[806] Apart from that, applying the principles articulated in Faryna and in Hadzic, I

find Mr. Asad’s testimony to be credible and reliable.

H.

Conclusions on Credibility of Witnesses

[807] In his closing oral submissions, Dr. Pelech argued that I should accept the

evidence of himself and the other witnesses produced by Kinexus over the evidence of

Mr. Asad. According to Dr. Pelech, the Tribunal must have regard for the significant

educational and professional accomplishments of himself and his colleagues, pointing to

their achievements and the positions they occupied in Kinexus. He asserted: “You don’t

get into these positions unless you have ability”. In essence, intentionally or not, Dr.

Pelech submitted that the testimony of a highly educated professional such as himself

must necessarily be worth more than that of someone with inferior qualifications.

[808] I reject such a proposition or suggestion. Honesty, integrity, trustworthiness, and a

sense of fairness and justice are quite separate from a person’s education, wealth, power

or position. Persons from the most humble backgrounds may possess the finest human

qualities and be totally truthful in their testimony. Conversely, a post-graduate degree

does not necessarily equip its holder with a moral compass and truthful tongue, any more

or less than does a grade school education. Each person must be assessed on his or her

individual human qualities, and the sworn testimony of each witness must be assessed

and weighed in the context of the totality of the evidence.

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[809] For the reasons previously stated, I accept the evidence of Ms. Morgan, Mr.

McDuffie, Ms. Mirzaei and Mr. Tarbuck.

[810] Also for the reasons previously stated, I am sceptical of much of the testimony of

Dr. Pelech, Ms. Sutter, Ms. Karia and Ms. Stoute. Where there is a conflict between the

evidence of any of them on one hand, and the evidence of Mr. Asad on the other, I prefer

the evidence of Mr. Asad.

V RELEVANT PROVISIONS OF THE CODE

[811] Section 2 of the Code provides:

Discrimination in contravention of this Code does not require an intention

to contravene this Code.

[812] Section 3 provides:

The purposes of this Code are as follows:

(a)

to foster a society in British Columbia in which there are no

impediments to full and free participation in the economic, social, political

and cultural life of British Columbia;

(b)

to promote a climate of understanding and mutual respect where all

are equal in dignity and rights;

(c)

(d)

to prevent discrimination prohibited by this Code;

to identify and eliminate persistent patterns of inequality associated

with discrimination prohibited by this Code;

(e) to provide a means of redress for those persons who are

discriminated against contrary to this Code.

[813] Section 13(1) of the Code provides:

(1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any

term or condition of employment

because of the race …, place of origin, political belief, religion, … of

that person …

174

[814] Section 1 defines “person” as including an employer.

VI ANALYSIS – GENERAL PRINCIPLES OF INTERPRETATION AND

APPLICATION OF THE HUMAN RIGHTS CODE

A.

Purposive Approach

[815] Human rights jurisprudence has clearly established the purposive approach to be

applied when interpreting human rights legislation. That approach, articulated by the

Supreme Court of Canada, was summarized in University of British Columbia v. Berg,

[1993] 2 S.C.R. 353:

Following [Insurance Corporation of British Columbia v. Heerspink,

[1982] 2 S.C.R. 145], this Court has had many occasions to comment on

the privileged status of human rights legislation. In Ontario Human Rights

Commission v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p.

547) that “[l]egislation of this type is of a special nature, not quite

constitutional but certainly more than the ordinary -- and it is for the courts

to seek out its purpose and give it effect.” This Court has repeatedly

stressed that a broad, liberal and purposive approach is appropriate to

human rights legislation, and that such legislation, according to La Forest

J. in Robichaud, at p. 89, “must be so interpreted as to advance the broad

policy considerations underlying it”…

B.

What Is “Discrimination”?

[816] What is “discrimination”? The term is not defined in the Code. The Policy and

Guidelines on Racism and Racial Discrimination published by the Ontario Human Rights

Commission observes:

There is no fixed definition of racial discrimination and society’s

understanding of what constitutes racial discrimination will continue to

evolve over time. Several descriptions of racial discrimination have been

offered which can be helpful in understanding and explaining it.

For example, in the international human rights context, it has been

described as any distinction, exclusion, restriction, or preference based on

race that nullifies or impairs the human rights or fundamental freedoms

offered citizens …

[817] In Law Society British Columbia v. Andrews, [1989] 1 S.C.R. 143, McIntyre J. set

out the following:

175

… I would say then that discrimination may be described as a distinction,

whether intentional or not but based on grounds relating to personal

characteristics of the individual or group, which has the effect of imposing

burdens, obligations, or disadvantages on such individual or group not

imposed upon others, or which withholds or limits access to opportunities,

benefits, and advantages available to other members of society.

Distinctions based on personal characteristics attributed to an individual

solely on the basis of association with a group will rarely escape the

charge of discrimination, while those based on an individual's merits and

capacities will rarely be so classed. (At para. 37)

That description has been widely and frequently cited in subsequent jurisprudence, most

recently by the Supreme Court of Canada in R. v. Kapp, 2008 SCC 41.

C.

Intention Is Not an Essential Ingredient

[818] Next, the courts and s. 2 of the Code make it clear that intention is not an essential

ingredient of discrimination. In other words, persons may discriminate against another

and thus contravene the Code, without intending to do so and without knowing that they

have committed a discriminatory act. It is the result or effect, not the intention, of the act

that is relevant in determining whether or not discrimination has occurred.

[819] In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd.,

[1985] 2 S.C.R. 536 (“O’Malley”), McIntyre J., for the Court, said:

… It is the result or the effect of the action complained of which is

significant. If it does, in fact, cause discrimination; if its effect is to

impose on one person or group of persons obligations, penalties, or

restrictive conditions not imposed on other members of the community, it

is discriminatory. (At para. 12)

The proof of intent, a necessary requirement in our approach to criminal

and punitive legislation, should not be a governing factor in construing

human rights legislation aimed at the elimination of discrimination… (At

para. 14)

In Andrews, supra, at para. 37, McIntyre J. cited O’Malley, and stated:

… It was held in that case, as well, that no intent was required as an

element of discrimination, for it is in essence the impact of the

discriminatory act or provision upon the person affected which is decisive

in considering any complaint.

176

D.

Alleged Ground Only Needs to be a Factor

[820] Finally, to succeed, a complainant need only establish that the alleged ground of

discrimination was a factor in the impugned discriminatory act. It does not have to be the

only factor, or even the most important factor.

[821] In Lee v. British Columbia (Attorney General), 2003 BCSC 1432, at para. 22, in

setting aside a decision of the BC Human Rights Commission (the “HRC”), the

reviewing judge stated:

The Decision states that: "the complainant has not provided any evidence

that this decision was based on his race, ethnicity or place of origin". That

statement is a misstatement of the test. A human rights complainant is not

required to establish that a decision was based on a prohibited ground,

only that a prohibited ground was a factor in the decision; see Premakumar

v. Air Canada, [2002] C.H.R.D. No. 3 No. TD 3/02 at para. 82 and

Kennedy v. British Columbia (Ministry of Energy and Mines), 2000

BCHRT 60, [2000] B.C.H.R.T.D. No. 60.

On appeal, in Lee v. British Columbia (Attorney General), [2004] B.C.J. No. 1851, the

BC Court of Appeal restored the Commission’s decision, but affirmed the test set out in

the court below in the following terms:

… The proposition that a human rights complainant need only show that a

prohibited ground was a factor in the impugned activity is well known and

understood by those who work in the field. It should not be readily

assumed that a specialized tribunal like the HRC was unaware of

something as fundamental, even trite, as this. The corollary of the

reviewing judge's finding, that the HRC obliged Mr. Lee not only to show

racism to have been a factor but also the only reason for BC Hydro's

treatment of him is, in my view, unsupportable.

E.

Onus to Establish a Prima Facie Case

[822] Mr. Asad has the legal burden of establishing a prima facie case of discrimination

on a balance of probabilities. A prima facie case of discrimination is one which covers

the allegations made and, if believed, is sufficient to justify a finding in the complainant’s

favour, absent an answer from the respondent. As noted by Loo J. in Troy v. Kemmir

Enterprises Inc., 2003 BCSC 1947, at para. 25, the onus is not an onerous one:

177

Mr. Troy complained that he was discriminated against based on racial

stereotyping. He does not need to show that discrimination comprised the

sole factor in the conduct complained of, and he only needs to raise a

prima facie case that it was a factor. The burden is not an onerous one.

This is because the law recognizes that discrimination is rarely openly

displayed, and in most cases, must be inferred from circumstantial

evidence.

[823] To satisfy this initial burden, Mr. Asad must establish, on a balance of

probabilities, that he experienced some adverse treatment or effect in his employment,

and that any or all of his race, religion, place of origin, and political belief was a factor in

that adverse treatment or effect. Adopting and paraphrasing McIntyre J.’s judgment in

Andrews, the adverse treatment or effect may have been in the form of a burden,

obligation or disadvantage imposed on him but not upon other employees, or in the form

of withholding or limiting his access to opportunities, benefits and advantages available

to other employees. That is sometimes referred to as the traditional approach.

[824] Once a prima facie case has been made, the onus shifts to the respondent to

establish a justification for the discrimination: O’Malley, supra at p. 558.

F.

The Law Analysis

[825] In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R.

497, a case brought under s. 15(1) of the Charter of Rights and Freedoms, the Supreme

Court of Canada set out a substantive analytical framework to determine if an impugned

law discriminated against a claimant and contravened that provision of the Charter. In

Vancouver Rape Relief Society v. Nixon et al., 2003 BCSC 1936, the BC Supreme Court

held that the Law analysis must be applied in determining whether or not discrimination

has occurred under the Code. The applicability of the Law analysis, and the extent of its

applicability, to complaints under the Code has since remained a subject of considerable

discussion: see, for example, Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601.

That said, the Tribunal has, in some circumstances, applied the Law analysis: see, for

example, Doige v. BC (Ministry of Finance), 2008 BCHRT 158 and Verkerk v. BC, 2007

BCHRT 472.

178

[826] The approach in the Law analysis involves three steps or inquiries, whereas

Andrews involves two. The main element that the Law analysis adds to the traditional

approach is the subjective-objective test, part of the third inquiry, and articulated in the

following, at paras. 59 and 60:

… the focus of the discrimination inquiry is both subjective and objective:

subjective in so far as the right to equal treatment is an individual right,

asserted by a specific claimant with particular traits and circumstances;

and objective in so far as it is possible to determine whether the individual

claimant’s equality rights have been infringed only by considering the

larger context of the legislation in question, and society’s past and present

treatment of the claimant and of other persons or groups with similar

characteristics or circumstances. The objective component means that it is

not sufficient, in order to ground a s. 15(1) claim, for a claimant simply to

assert, without more, that his or her dignity has been adversely affected by

a law.

As stated by L’Heureux-Dubé J. in Egan, supra, at para. 56, the relevant

point of view is that of the reasonable person, dispassionate and fully

apprised of the circumstances, possessed of similar attributes to, and under

similar circumstances as, the claimant. Although I stress that the inquiry

into whether legislation demeans the claimant’s dignity must be

undertaken from the perspective of the claimant and from no other

perspective, a court must be satisfied that the claimant’s assertion that

differential treatment imposed by legislation demeans his or her dignity is

supported by an objective assessment of the situation. All of that

individual’s or that group’s traits, history, and circumstances must be

considered in evaluating whether a reasonable person in circumstances

similar to those of the claimant would find that the legislation which

imposes differential treatment has the effect of demeaning his or her

dignity.

[827] In Kapp, supra, the Court clarified and explained Law and its relationship with

Andrews, as follows:

… Andrews set the template for this Court’s commitment to substantive

equality – a template which subsequent decisions have enriched but never

abandoned. (At para. 14)

The template in Andrews, as further developed in a series of cases

culminating in Law … established in essence a two-part test for showing

discrimination under s. 15(1): (1) Does the law create a distinction based

on an enumerated or analogous ground? (2) Does the distinction create a

disadvantage by perpetuating prejudice or stereotyping? These were

179

divided, in Law, into three steps, but in our view the test is, in substance,

the same. (At para. 17)

… in Law, this Court suggested that discrimination should be defined in

terms of the impact of the law or program on the “human dignity” of

members of the claimant group, having regard to four contextual factors:

(1) pre-existing disadvantage, if any, of the claimant group; (2) degree of

correspondence between the differential treatment and the claimant group's

reality; (3) whether the law or program has an ameliorative purpose or

effect; and (4) the nature of the interest affected (paras. 62-75). (At para.

19)

[828] While acknowledging the achievement of Law in unifying its approach to s. 15,

the Court recognized that “several difficulties have arisen from the attempt in Law to

employ human dignity as a legal test” because:

… human dignity is an abstract and subjective notion that, even with the

guidance of the four contextual factors, cannot only become confusing and

difficult to apply; it has also proven to be an additional burden on equality

claimants, rather than the philosophical enhancement it was intended to

be… (At para. 22)

[829] The Court then stated:

The analysis in a particular case, as Law itself recognizes, more usefully

focuses on the factors that identify impact amounting to discrimination.

The four factors cited in Law are based on and relate to the identification

in Andrews of perpetuation of disadvantage and stereotyping as the

primary indicators of discrimination…

Viewed in this way, Law does not impose a new and distinctive test for

discrimination, but rather affirms the approach to substantive equality

under s. 15 set out in Andrews and developed in numerous subsequent

decisions. The factors cited in Law should not be read literally as if they

were legislative dispositions, but as a way of focussing on the central

concern of s. 15 identified in Andrews – combating discrimination, defined

in terms of perpetuating disadvantage and stereotyping. (At paras. 23 and

24)

[830] However, the Court also affirmed its view of human dignity:

… There can be no doubt that human dignity is an essential value

underlying the s. 15 equality guarantee. In fact, the protection of all of the

rights guaranteed by the Charter has as its lodestar the promotion of

human dignity… (At para. 21)

180

[831] Finally, the definition of human dignity in the context of s. 15(1) of the Charter,

which the Court set out in Law, is instructive:

… Human dignity means that an individual or group feels self-respect and

self-worth. It is concerned with physical and psychological integrity and

empowerment. Human dignity is harmed by unfair treatment premised

upon personal traits or circumstances which do not relate to individual

needs, capacities, or merits. It is enhanced by laws which are sensitive to

the needs, capacities, and merits of different individuals, taking into

account the context underlying their differences. Human dignity is harmed

when individuals and groups are marginalized, ignored, or devalued, and is

enhanced when laws recognize the full place of all individuals and groups

within Canadian society… (At para. 53)

[832] The Court has thus clarified that Law affirms the traditional approach articulated

in Andrews and contributes to it by providing additional factors which may usefully be

applied in appropriate circumstances, but always in a manner which is consistent with

Andrews’ reasoning and objective.

G.

Proving Discrimination

[833] The courts have long recognized that proving discrimination, particularly racial

discrimination, is oftentimes difficult, and that, in most cases, the evidence must

necessarily be circumstantial. As noted in Smith v. Ontario (Human Rights Commission),

[2005] O.J. No. 377, a decision of the Ontario Superior Court of Justice, Divisional

Court:

The basis for requiring that race be only a factor in the termination is the

recognized difficulty in proving allegations of race discrimination by way

of direct evidence. As was noted in Basi v. Canadian National Railway

Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481:

Discrimination is not a practice which one would expect to see displayed

overtly. In fact, rarely are there cases where one can show by direct

evidence that discrimination is purposely practiced.

[834] In Basi, at para. 38482, the Canadian Human Rights Tribunal also said:

Since direct evidence is rarely available to a complainant in cases such as

the present it is left to the Board to determine whether or not the

complainant has been able to prove that the explanation is pretextual by

inference from what is, in most cases, circumstantial evidence …

181

[835] On the specific issue of racial profiling, in Johnson v. Halifax Regional Police

Service, (2003), 48 C.H.R.R. D/307 (N.S. Bd.Inq.), the Board observed:

A recent decision by the Ontario Court of Appeal which raised the issue of

racial profiling by the police has made it clear that discriminatory acts by

the police (or anyone) can arise from a process of subconscious

stereotyping as well as from conscious decisions. Thus I must be alert at

all stages of the inquiry for evidence from which such stereotyping might

be inferred. In R. v. Brown, [2003] O.J. No. 1251, an African-American

member of the Toronto Raptors basketball team was stopped by police and

arrested for driving with a blood alcohol level above the legal limit… The

Court of Appeal agreed with the definition of racial profiling advanced by

counsel for the police (at § 7): "racial profiling involves the targeting of

individual members of a particular racial group, on the basis of the

supposed criminal propensity of the entire group". The Court added that

"the attitude underlying racial profiling is one that may be consciously or

unconsciously held. That is, the police officer need not be an overt racist.

His or her conduct may be based on subconscious racial stereotyping".

Brown deals with the criminal law but these comments about racial

stereotyping are equally applicable in proceedings before human rights

tribunals such as this one.

[836] In Troy, at para. 30, Loo J. referred to “the insidious nature of racism”, and cited

the following passage from the judgment of McLachlin J. (as she then was) in R. v.

Williams, [1998] 1 S.C.R. 1128 at p. 1142-3:

To suggest that all persons who possess racial prejudices will erase those

prejudices from the mind when serving as jurors is to underestimate the

insidious nature of racial prejudice and the stereotyping that underlies it.

As Vidmar, supra, [Vidmar, Neil. "Pretrial prejudice in Canada: a

comparative perspective on the criminal jury" (1996), 79 Judicature 249]

points out, racial prejudice interfering with jurors' impartiality is a form of

discrimination. It involves making distinctions on the basis of class or

category without regard to individual merit. It rests on preconceptions and

unchallenged assumptions that unconsciously shape the daily behaviour of

individuals. Buried deep in the human psyche, these preconceptions

cannot be easily and effectively identified and set aside, even if one wishes

to do so. For this reason, it cannot be assumed that judicial directions to act

impartially will always effectively counter racial prejudice …

Racial prejudice and its effects are as invasive and elusive as they are

corrosive. We should not assume that instructions from the judge or other

safeguards will eliminate biases that may be deeply ingrained in the

subconscious psyches of jurors …

182

H.

Employer Liability for Discrimination

[837] The law is clear that an employer is liable for discriminatory acts committed by its

employees in the work environment. In Robichaud v. Canada (Treasury Board), [1987]

S.C.J. No. 47, a case involving the Canadian Human Rights Act (the “CHRA”), the

Supreme Court of Canada unanimously held that the purpose of human rights legislation

is to remove and remedy discrimination, and recognized that only an employer is in the

position to effectively remedy workplace discrimination.

[838] In his judgment, La Forest J. first affirmed that motives or intention are not

necessary elements of prohibited discrimination, stating that:

Any doubt that might exist on the point is completely removed by the

nature of the remedies provided to effect the principles and policies set

forth in the Act. This is all the more significant because the Act, we saw, is

not aimed at determining fault or punishing conduct. It is remedial. Its aim

is to identify and eliminate discrimination. If this is to be done, then the

remedies must be effective, consistent with the "almost constitutional"

nature of the rights protected. (At para. 13)

[839] He then examined the remedies provided by the CHRA, which include lost wages,

expenses, and reinstatement of employment, and stated, at paras. 15 and 17:

… Indeed, if the Act is concerned with the effects of discrimination rather

than its causes (or motivations), it must be admitted that only an employer

can remedy undesirable effects; only an employer can provide the most

important remedy -- a healthy work environment …

…

Hence, I would conclude that the statute contemplates the imposition of

liability on employers for all acts of their employees "in the course of

employment", interpreted in the purposive fashion outlined earlier as being

in some way related or associated with the employment. It is unnecessary

to attach any label to this type of liability; it is purely statutory. However,

it serves a purpose somewhat similar to that of vicarious liability in tort, by

placing responsibility for an organization on those who control it and are

in a position to take effective remedial action to remove undesirable

conditions. I agree with the following remarks of Marshall J., who was

joined by Brennan, Blackmun and Stevens JJ., in his concurring opinion in

the United States Supreme Court decision in Meritor Savings Bank, FSB v.

Vinson, 106 S.Ct. 2399 (1986), at pp. 2410-11 concerning sexual

discrimination by supervisory personnel:

183

An employer can act only through individual supervisors and

employees; discrimination is rarely carried out pursuant to a formal

vote of a corporation's board of directors. Although an employer may

sometimes adopt company-wide discriminatory policies violative of

Title VII, acts that may constitute Title VII violations are generally

effected through the actions of individuals, and often an individual

may take such a step even in defiance of company policy. Nonetheless,

Title VII remedies, such as reinstatement and backpay, generally run

against the employer as an entity.

. . .

A supervisor's responsibilities do not begin and end with the power to

hire, fire, and discipline employees, or with the power to recommend

such actions. Rather, a supervisor is charged with the day-to-day

supervision of the work environment and with ensuring a safe,

productive, workplace. There is no reason why abuse of the latter

authority should have different consequences than abuse of the former.

In both cases it is the authority vested in the supervisor by the

employer that enables him to commit the wrong: it is precisely because

the supervisor is understood to be clothed with the employer's

authority that he is able to impose unwelcome sexual conduct on

subordinates.

[840] Although Robichaud dealt with provisions of the CHRA which are not identical in

wording to the Code, the principles articulated by the Supreme Court in that case resonate

in the interpretation and application of the Code. The Tribunal has followed and applied

Robichaud: see, for example, Hashimi v. International Crowd Mangement (No. 2), 2007

BCHRT 66; Dastghib v. Richmond Auto Body and others (No. 2), 2007 BCHRT 197; and

Algor v. Alcan and others (No. 2), 2006 BCHRT 200.

VII ANALYSIS – DISCRIMINATION PURSUANT TO SECTION 13(1) (B)

[841] In this section of these Reasons, I will deal with the part of Mr. Asad’s Complaint

in which he alleges, pursuant to s. 13(1)(b), that he was discriminated against with respect

to the terms and conditions of his employment. I will deal separately with his allegation

under s. 13(1)(a) that he was discriminated against with respect to the termination of his

employment.

184

[842] Applying the foregoing principles to the evidence before me, I find that, under

both the traditional approach and the Law analysis, Mr. Asad has established a prima

facie case of discrimination.

A.

Ms. Stoute

1. Who Reported Mr. Asad to the RCMP?

[843] I will first deal with what, in my view, is a specious submission advanced by

Kinexus. Until October 27, 2004, Kinexus had consistently stated in its documents and in

its correspondence to Mr. Asad’s counsel that one of its employees had reported Mr.

Asad to the RCMP. Ms. Chin had asked for the name of that employee. On that date, Ms.

Karia advised Ms. Chin that the information previously given to her and Mr. Asad was an

error, and that the name of the person who had made the report to the police was

irrelevant to Mr. Asad’s complaint.

[844] At the hearing, Dr. Pelech maintained on behalf of Kinexus that Mr. Asad had

been reported by someone who was not a Kinexus employee. In her cross-examination,

Ms. Sutter identified that person as Ms. Stoute’s sister, Heather.

[845] The evidence, including the testimony of Ms. Stoute, reveals the position taken by

Dr. Pelech to be a distortion of the realities. Heather spoke to an acquaintance whom she

knew to be a member of the RCMP, and she advised Ms. Stoute that the RCMP would be

interested in talking to her if she felt comfortable doing so. Heather gave Ms. Stoute the

name and telephone number of the officer and encouraged her to call him. Ms. Stoute

acknowledged that she telephoned the officer, and agreed to meet with him. At that

meeting, she provided the RCMP with her description and accounts of Mr. Asad and his

activities which resulted in three interrogations by the RCMP of Mr. Asad. Ms. Stoute

had a second meeting with the officer, and followed up with further inquiries about the

progress of the investigation of Mr. Asad.

[846] In these circumstances, it is a fiction to assert, as did Dr. Pelech, that Heather and

not Ms. Stoute reported Mr. Asad to the RCMP. It was Ms. Stoute, not Heather, who had

direct knowledge of Mr. Asad and his alleged activities which led to the police

investigation. It may have been Heather who initially contacted an RCMP acquaintance

185

to inquire if they would be interested in speaking with Ms. Stoute. However, it was Ms.

Stoute who made the decision to initiate her contact with the RCMP by making the

telephone call to the officer, and it was Ms. Stoute who offered information about Mr.

Asad to the police.

[847] Indeed, in cross-examination, Dr. Pelech admitted that: “The spirit is that [Ms.

Stoute] didn’t report [Mr. Asad] to the RCMP”, and “Technically, if you say ‘report’

means talk to the RCMP, then she reported him”. Moreover, Ms. Sutter, Ms. Karia and

Ms. Stoute herself all referred, perhaps unwittingly, in their evidence to Ms. Stoute

having reported Mr. Asad.

[848] I note that Ms. Stoute stated that, during their various conversations following the

RCMP interrogation of Mr. Asad at the Kinexus offices on September 17, 2001, she had

made clear to Ms. Sutter the details of how she had contacted the RCMP and of Heather’s

involvement. As noted above, until shortly before the hearing commenced, Kinexus had

consistently and repeatedly stated that a Kinexus employee had reported Mr. Asad to the

RCMP. The evidence indicates that it was only in October 2004, when, in the course of

preparing for the hearing, Dr. Pelech spoke directly to Ms. Stoute about her involvement,

that the position that someone other than Ms. Stoute had reported Mr. Asad was

formulated. Clearly, Ms. Stoute made the report. To have asserted otherwise was merely

a red herring.

2. Racial Profiling

[849] Ms. Stoute clearly engaged in discriminatory racial profiling. In her eyes, Mr.

Asad fit the profile of a terrorist. He was a single, young Arab Muslim male who had

lived in Saudi Arabia and whom she identified as Palestinian. In addition, shortly before

9/11, he had travelled to New York City and Washington, D.C. Ms. Stoute then

embellished that basic profile with exaggerations, assumptions, and creations of her

imagination:

• Mr. Asad’s dietary decision to stop eating candy bars became “fasting” to

purify himself before 9/11.

186

• The abandonment of his broken down car became the mysterious sale of his

vehicle.

• His reluctance to allow Ms. Stoute into his apartment because he had a

roommate, who some months after 9/11 moved to another Lower Mainland

residence with Mr. Asad’s assistance, was turned by her into the strange

disappearance of a “secretive” roommate, even though Mr. Asad had

previously introduced her to the roommate.

• The observation that Mr. Asad carried on overseas telephone conversations in

Arabic took on sinister overtones, even though Ms. Stoute was aware that Mr.

Asad had immigrated to Canada alone, and that his family members remained

in the Middle East.

• The fact that Mr. Asad kept himself informed about events in the Middle East

became, in Ms. Stoute’s mind, a matter of suspicious behaviour.

• His freely and openly expressed views of the politics of that region became

“his passion about the Middle East” and the subjects of distortion by Ms.

Stoute who depicted him as harbouring hatred of Americans, an allegation

from which she was forced to resile in cross-examination.

• She thought it suspicious that a computer crash with resulting loss of e-mails

occurred at Kinexus, and that Mr. Asad discovered it and worked all weekend

by himself to fix it, even though she was aware of Mr. Asad’s work ethic and

dedication and the fact that he often worked on weekends.

• Ms. Stoute alleged that before 9/11 Mr. Asad had been “withholding” about

his trip, even though, upon his return, he showed co-workers photos of his

travels and submitted an article and photo which were published in the

September 7 Newsletter.

• Even Mr. Asad’s offer to buy her a birthday present, when viewed by Ms.

Stoute in her post-9/11 perspective, somehow took on a sinister character,

even though a few days earlier when Mr. Asad had returned from his trip, she

had asked him if he had brought her back a gift.

[850] Ms. Stoute’s testimony revealed that she had judged Mr. Asad by her own

personal standards in the context of what she perceived to be appropriate behaviour by a

person in Canada. For example, in her mind, having a roommate and selling a car are “big

things” that she would tell people about, so she found it “bizarre” and “strange” that Mr.

Asad had not confided in her about such matters. She asserted that, if she lived in Saudi

Arabia, she would make a greater effort than Mr. Asad had made in Canada to assimilate.

187

Ms. Stoute admitted that she strongly disagreed with Mr. Asad’s views of the political

situation in the Middle East, and offered that she is “very strong” about her own religion.

[851] After 9/11, any behaviour of, or opinions expressed by, Mr. Asad that did not fit

her view of what she herself would do or think, or which she did not consider

appropriate, was, in her mind, “odd”, “bizarre” and “strange”. That included Mr. Asad

continuing to have “non-Canadian based friends”. Before 9/11, she was quite happy to

accept Mr. Asad’s friendship and generosity, describing him as a “social person”.

However, after 9/11, she apparently did not consider his dedication to his work at

Kinexus, or his buying her dinners and “hanging out a lot” together on Robson Street and

at clubs, as indicia of his efforts to integrate into Canadian society.

[852] Mr. McDuffie said that Ms. Stoute was particularly distressed about Mr. Asad’s

trip, and she had wondered if it was merely coincidental that it had preceded 9/11 so

closely. He recalled that, during a particular conversation involving Ms. Stoute, himself,

and other employees, she was “teary-eyed”. That was one of the discussions speculating

about Mr. Asad’s possible connection to 9/11 that took place at Ms. Stoute’s desk.

[853] Ms. Stoute and Kinexus argue that Mr. Asad’s race, religion, place of origin, and

political belief were only part of the “overall factors” that led to her suspicions, pointing

to Mr. Asad’s trip and what they allege was his “bizarre behaviour” as additional

elements of what Ms. Sutter described as a “package” or “combination”. By so arguing,

they necessarily admitted that those four grounds did play a role. Furthermore, even many

of those other overall factors were related to Mr. Asad’s race, religion, place of origin and

political belief: for example, his supposed fasting before his trip to the target cities of the

9/11 terrorists; his telephone conversations in Arabic; and his alleged views of the politics

of the Middle East. In any event, I am satisfied on the evidence that, if Mr. Asad had not

been an Arab Muslim who had immigrated to Canada from Saudi Arabia, Ms. Stoute

would not have thought and acted as she did. It is unreasonable to believe that Ms. Stoute

would have had the same reactions toward a Caucasian Christian who had taken the same

trip at the same time as Mr. Asad.

[854] The horrifying terrorist attacks of 9/11 undoubtedly caused Ms. Stoute anguish,

anger and apprehension. It is to state the obvious that those responses and emotions were

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shared by countless people around the world, including her co-workers at Kinexus.

Unfortunately the brutality and devastation of those attacks triggered overreactions

among some people, including Ms. Stoute, who, encouraged by Heather, spun threads of

innocent events into a web of suspicion around Mr. Asad. Unlike her co-workers, she

reported Mr. Asad to the RCMP, and, even long after the police investigation had

concluded, she continued to view him with suspicion.

3. Ms. Stoute’s Report to the RCMP

[855] Clearly individuals do have a societal duty to report to the police what they

reasonably believe to be the commission of a crime. However, equally clearly, they are

under no such duty if their suspicions are based on prejudice rooted in racial profiling,

and inflated by unfounded speculation, assumptions and exaggerations.

[856] That said, for the purposes of these Reasons, it is not necessary to determine if

Ms. Stoute’s act of reporting Mr. Asad to the RCMP was itself a discriminatory act. Nor

therefore is it necessary to deal with the corollary issue of whether or not Ms. Stoute and

Kinexus have established a justification for that act. Ms. Stoute is not named in the

Complaint as an individual respondent. Kinexus is the sole Respondent.

[857] Ms. Stoute and Mr. Asad were co-workers and had met at Kinexus. Their

relationship began and continued there. However, after applying the purposive

interpretation articulated in Robichaud, I find that Ms. Stoute did not report Mr. Asad in

the course of her employment, or in a manner related to or associated with her

employment. To put it another way, there is an insufficient nexus between Kinexus and

the specific act of Ms. Stoute’s report of Mr. Asad to the RCMP. That was an act

committed outside the Kinexus workplace, and separate from Ms. Stoute’s employment.

It was, on the evidence, Ms. Stoute’s individual decision and action, suggested and

encouraged by Heather, who is not, and was not, a Kinexus employee.

[858] Although Ms. Stoute had shared her suspicions with Ms. Sutter, who expressed

her own concerns and suspicions, there is insufficient evidence that Ms. Sutter suggested

to, or encouraged, Ms. Stoute to report Mr. Asad to the police; nor is there sufficient

evidence that Ms. Sutter had prior knowledge of Ms. Stoute’s act before the RCMP

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officers arrived at the Kinexus offices. Although, when the officers arrived Ms. Sutter

said to Dr. Pelech that she thought she knew why they were there, that is consistent with

Ms. Sutter surmising at that point, because of their earlier conversations, that Ms. Stoute

had contacted the police.

4. Ms. Stoute’s Other Discriminatory Conduct

[859] That said, the Complaint is made against Kinexus, and Ms. Stoute was, at the

material times, a Kinexus employee. Therefore, her conduct in the course of her

employment, or otherwise related to or associated with her employment, and the conduct

of other Kinexus employees, particularly its management personnel, both before and after

her initial report of Mr. Asad to the RCMP, are directly relevant to the issue of whether or

not Kinexus discriminated against Mr. Asad in contravention of s. 13(1)(b) of the Code.

[860] First, I find on the evidence that Mr. Asad did not make the comments on and

after 9/11 that Ms. Stoute attributes to him, and that he did not make any comments in the

triumphant or jovial manner she alleged. I also find that Ms. Stoute’s accounts of Mr.

Asad’s comments and actions were initially the result of racial profiling and her

imagination and emotional upset on 9/11 and following days, and that she subsequently

maintained and indeed embellished those accounts in order to justify her original actions

which have resulted in considerable trouble and turmoil, not only to Mr. Asad, but also to

her employer.

[861] Furthermore, I find that Ms. Stoute repeatedly made remarks in the Kinexus

workplace to Mr. Asad about Arabs celebrating the 9/11 attacks and dancing in the

streets, scenes which she had discussed with Heather. I am also satisfied that, after Mr.

Asad had returned to work from his stress leave, Ms. Stoute told him that she did not feel

comfortable with how Arabs think, describing them as “unpredictable” and “so weird”

and wanting to destroy America, and that she repeated those and similar comments to Mr.

Asad following his return to work. I note that, in her testimony, Ms. Stoute repeatedly

described Mr. Asad as “unpredictable”. I am also satisfied on the evidence that Ms.

Stoute made such remarks about Arabs and about her suspicions of Mr. Asad’s possible

involvement in the 9/11 attacks to other Kinexus employees.

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[862] Particularly in the circumstances in which they were made, her remarks caused

Mr. Asad considerable discomfort and distress, and created and contributed to a poisoned

workplace for Mr. Asad. When asked in cross-examination why Ms. Stoute would have

done what she did, Mr. Asad stated: “I don’t know what she was thinking, but that’s how

I felt”. Although her intention is not a necessary element of a determination of

discrimination, on the evidence it is probable that Ms. Stoute knew the effects her

remarks would have on Mr. Asad. For example, Ms. Stoute had testified that, when they

were shopping for a birthday gift for Mr. Asad to purchase for her before 9/11, she

deliberately pointed to a cross because: “I knew he’d react”. Finally, I am satisfied that

Mr. Asad avoided interacting with Ms. Stoute because of her remarks in the workplace.

B.

Dr. Pelech and Ms. Sutter

1. Knowledge of Ms. Stoute’s Suspicions and Mr. Asad’s Condition – a “Company

Matter”

[863] The evidence is clear that, even before the RCMP arrived at Kinexus to conduct

the first interrogation of Mr. Asad, Ms. Stoute and Ms. Sutter had discussed his possible

involvement in the 9/11 attacks. Ms. Stoute stated that, on or shortly after 9/11, she and

Ms. Sutter had commenced what she described as an ongoing, dynamic dialogue, in

which they shared their concerns and suspicions. As noted above, Dr. Pelech said that,

upon the arrival of the RCMP officers at Kinexus, Ms. Sutter informed him that she

thought she knew why they were there, and he was aware that Ms. Sutter and Ms. Stoute

had previously discussed Mr. Asad’s “suspicious activities”. On their drive home, Dr.

Pelech and Ms. Sutter discussed in detail what Ms. Stoute had told Ms. Sutter, and Dr.

Pelech said in his direct examination that, after hearing that information, he “could

certainly understand why the RCMP were there”.

[864] Thus, it is clear that, on or very shortly after 9/11, both Dr. Pelech, the President

and then CEO of Kinexus, and Ms. Sutter, the then Director of Human Resources, were

well aware of Ms. Stoute’s suspicions and views of Mr. Asad and the discriminatory

basis for those suspicions and views. I note that Dr. Pelech and Ms. Sutter drove together

to and from work virtually every day. Although the evidence does not disclose when they

began to co-habit, given the fact that they had worked together since 1991 in a corporate

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environment dominated by Dr. Pelech, it is only reasonable to accept that Ms. Sutter

shared with Dr. Pelech all significant aspects of her conversations and personal

perspectives. Indeed, the evidence shows that she kept Dr. Pelech fully informed of the

details of her discussions with Mr. Asad and Ms. Stoute. For these reasons, I do not

accept Dr. Pelech’s assertion that he and Ms. Sutter did not discuss her suspicions about

Mr. Asad until they were preparing for this hearing.

[865] Neither Dr. Pelech nor Ms. Sutter ever undertook any independent investigation

of Ms. Stoute’s suspicions. In cross-examination, Ms. Sutter admitted that, with only one

exception, she had not herself heard Mr. Asad making any of the statements connected to

9/11 that she, Dr. Pelech, Ms. Stoute, Ms. Karia, and Kinexus attributed to him. She

admitted that the rest of her knowledge is based on what she had been told by Ms. Stoute

and Ms. Karia, and her recollections of who told her what and when are admittedly

unclear. Even her recollection of the one exception, being Mr. Asad’s remark about it

being the best day to launch the website, is somewhat hazy, as she admitted that she was

not involved in the launch and she was unaware until after the fact that the website had

been launched that day.

[866] Yet Ms. Sutter, as Director of Human Resources, accepted, apparently without

question, what she was told by Ms. Stoute, a relatively young and junior employee whom

she knew to be emotionally distraught by the tragedy of 9/11, and who looked up to her

as a mature, trustworthy and level-headed person. By signalling her agreement with Ms.

Stoute’s suspicions, Ms. Sutter supported and thereby encouraged Ms. Stoute’s misplaced

views.

[867] For his part, Dr. Pelech essentially tried to distance himself from the situation by

adopting three fictions. First, in his testimony, he maintained that the entire situation was

a police issue and not “a company matter”. That assertion does not fit with the realities. I

have earlier found that Ms. Stoute’s initial report to the RCMP was not the act or

responsibility of Kinexus. However, even before the RCMP became involved, Dr. Pelech

and Ms. Sutter were well aware that a Kinexus employee, Ms. Stoute, was highly

suspicious of another employee, Mr. Asad, suspecting him of involvement in horrendous

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terrorist acts. They were also well aware that the factors on which Ms. Stoute based her

suspicions included Mr. Asad’s race, religion, place of origin, and political belief.

[868] That itself was clearly enough to make it a company matter. However, in addition,

the RCMP conducted an interrogation of Mr. Asad in the company boardroom at a time

when most of the employees were still at work. That was followed by further

interrogations of Mr. Asad, one of them videotaped at RCMP offices, which left him

traumatized and terrified, unable to work, and forced to seek medical assistance.

[869] Both Dr. Pelech and Ms. Sutter were well aware of his emotional and physical

state within hours of the first interrogation. Ms. Sutter spoke to Mr. Asad by telephone

that evening, and described him as very upset. That was followed by daily lengthy

conversations over the telephone and in person during which Mr. Asad’s worsening

condition was apparent. Both Dr. Pelech and Ms. Sutter were informed by Mr. Asad that

he was certain that another employee of Kinexus had reported him to the RCMP, and that

he therefore could not return to work. In Dr. Pelech’s words, Mr. Asad “thought someone

was out to get him at the workplace”.

[870] Yet Dr. Pelech continued to argue that this was not a company matter. Although

he maintained that he had accommodated Mr. Asad, it was Ms. Sutter who persuaded him

to grant Mr. Asad stress leave which in his mind, as reflected in Kinexus documents and

his testimony, was a large and gratuitous concession by the company. After all, Dr.

Pelech said, Mr. Asad had just returned from his vacation trip, and now he was on stress

leave when he was needed at work. In Dr. Pelech’s view, the only thing that was a

company matter was “how to get this guy back to work”.

[871] Second, Dr. Pelech tried to distance himself by adopting the fiction that he did not

have to be involved because it was best left to Ms. Sutter as Director of Human

Resources. In actual fact, she kept him fully informed and, consistent with the evidence

that Dr. Pelech was the “ultimate decision maker”, he made the decisions with Ms. Sutter

providing a screen.

[872] This leads to the third fiction adopted by Dr. Pelech; that things were best left to

Ms. Sutter because of the confidential nature of the relationship between Ms. Sutter and

the employees, including Ms. Stoute and Mr. Asad. According to Dr. Pelech, it was

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essential to the trust between Ms. Sutter and the employees that her discussions with them

remain confidential. He offered that as a reason for not discussing any of these matters

with Ms. Stoute. Yet, it is clear that whatever Ms. Stoute or Mr. Asad disclosed to Ms.

Sutter was conveyed by her to Dr. Pelech.

[873] Furthermore, in a corollary to that position based on the need for confidentiality,

Dr. Pelech maintained that, because of overriding privacy concerns, he and the company

were under a duty to protect, at all costs, the identity of the person who had reported Mr.

Asad to the RCMP. Yet, at the same time, he apparently saw no need to protect Mr.

Asad’s privacy. Dr. Pelech readily offered that, both during and after Mr. Asad’s stress

leave, he had discussed Mr. Asad’s circumstances with various friends and family

members, proclaiming that they all agreed that, based on the information Dr. Pelech had

supplied to them, Ms. Stoute had done the right thing by reporting Mr. Asad to the police.

Although Dr. Pelech claimed that most of the information about Mr. Asad was contained

in the Newsletter article about his RCMP interrogations, in actual fact, only a minimal

amount of information was set out in the article. Certainly the article was devoid of any

of the detailed allegations that Ms. Stoute had passed on to the RCMP and Ms. Sutter,

and which Ms. Sutter then conveyed to Dr. Pelech.

[874] Thus, Dr. Pelech’s efforts to portray himself as somehow removed from the

subject events and knowledge are unsuccessful. As President and, at the time CEO, of

Kinexus, he and Ms. Sutter were fully informed of Ms. Stoute’s suspicions and actions,

and of Mr. Asad’s views and condition. Furthermore, he made the decisions at Kinexus,

including those affecting Mr. Asad.

2. Their Own Suspicions and Attitudes

[875] In fact, not only did Dr. Pelech and Ms. Sutter have full knowledge of Ms.

Stoute’s attitude toward Mr. Asad, they shared her suspicions. I have dealt above with

Ms. Sutter’s discussions with Ms. Stoute. Furthermore, in cross-examination, Ms. Sutter

stated that Mr. Asad’s circumstances “fit the profile”, and that the “profile” included Mr.

Asad’s race, religion and place of origin.

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[876] Dr. Pelech’s attitudes were revealed during his testimony. Dr. Pelech expressed

little or no sympathy for, or understanding of, Mr. Asad’s state and plight during and

after his police interrogations. In his direct examination, he expressed puzzlement that

Mr. Asad was “so traumatically affected” by his police interrogations, describing him as

“shook up” and “very much affected by it”. Dr. Pelech also said: “I’d think if a person

was falsely accused of something, they wouldn’t necessarily be so agitated”. In cross-

examination, Dr. Pelech added: “In my observation, if people have nothing to hide, they

are not so shaken up”, and “if they have something to hide, they’ll be more indignant”,

and “Most indignant people are guilty”. Although he professed that: “To this day, I

haven’t formed a conclusion” about Mr. Asad’s possible involvement with the 9/11

attacks, it is clear from his testimony that, both during the time that Mr. Asad was off on

stress leave and after he had returned to work, Dr. Pelech, like Ms. Stoute and Ms. Sutter,

was very suspicious of Mr. Asad.

[877] When asked in cross-examination if he had felt any need to have discussions with

Ms. Stoute about the reasonableness of her suspicions, Dr. Pelech emphatically replied

“Absolutely not”, saying that it was “not my responsibility to investigate terrorism”.

3. The Kinexus Workplace Environment

[878] Thus, Mr. Asad returned to what can fairly be described, from his perspective, as

a poisoned workplace. On and after 9/11, he had been exposed to remarks from Ms.

Stoute and Ms. Karia that, because of his race, religion, place of origin and political

belief, linked him to horrendous terrorist attacks.

[879] With very good reason and, as it turned out, correctly, Mr. Asad was certain that a

co-worker had reported him to the RCMP, as a result of which he endured three police

interrogations. The first was at his workplace and commenced when the majority of his

co-workers were still at work. On the following day, he received a telephone call from the

RCMP early in the morning, and spent the next several hours in the company of police

officers driving to and from RCMP premises where he was extensively interrogated for

two hours about his family, friends, personal beliefs and activities. That interrogation was

videotaped. That was followed by further telephone calls and a third meeting with an

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officer. Mr. Asad was traumatized, fearful that he would be imprisoned, unable to sleep,

and had to seek medical attention for diarrhea, nosebleeds and depression.

[880] He was unable to enter the building where Kinexus was located, breaking into a

sweat and shakes when he approached it. Mr. McDuffie described how, several days after

the police interrogations, he saw Mr. Asad pacing in front of the building and recalled

Mr. Asad saying that he was uncomfortable entering the building because he did not trust

someone in there.

[881] When he returned to work after nine days of stress leave, Mr. Asad trusted and

relied on Dr. Pelech and Ms. Sutter to provide protection and a safe workplace. Instead,

unbeknownst to him, they were themselves very suspicious that he was involved in

terrorist activities. Thus, they were part of, and contributed to, the dark cloud of suspicion

that hung over Mr. Asad at Kinexus.

[882] Dr. Pelech and Ms. Sutter were clearly aware that at least some of his co-workers

knew that the RCMP had come to Kinexus to interview Mr. Asad, and, as Dr. Pelech

himself observed, it was a small office where rumours travelled quickly.

[883] Mr. McDuffie testified that employees were aware that Mr. Asad had been

interviewed by the RCMP at Kinexus, and that some had misgivings and uncertainties

about Mr. Asad’s trip and the events of 9/11. He described some Kinexus employees as

being “uncomfortable” about Mr. Asad, and recalled speculation about his possible

connection to the 9/11 terrorist attacks. He also noted that the usual gathering place for

employees to chat was the reception desk where Ms. Stoute worked. Ms. Sutter’s desk

was next to Ms. Stoute’s. Dr. Pelech’s office was in close proximity to their desks. Dr.

Pelech testified about his pride in what was literally his “open door” policy, and Ms.

Sutter stated that Dr. Pelech has excellent hearing.

[884] Dr. Pelech acknowledged that, either before or on the day of Mr. Asad’s return to

work, he had confirmed to Mr. Asad that one of his co-workers had reported him to the

RCMP. Small wonder then that Dr. Pelech observed that Mr. Asad was “really

traumatically affected”, “clearly more withdrawn, and moping around a lot”, “disturbed”,

and “looked around a lot at people” in the workplace. Ms. Sutter described Mr. Asad

upon returning to work as “very anxious” and concerned about how his co-workers

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perceived and related to him. She acknowledged that she had heard comments from

employees who were “quite shocked” by the 9/11 events. Mr. Asad described the

atmosphere in the office upon his return as “very tense”, and that: “Everyone was very

quiet. You could really see the tension”.

4. How Did Kinexus Deal with the Workplace Environment?

[885] It was therefore apparent to all, including Dr. Pelech and Ms. Sutter, that Mr.

Asad had returned to a poisoned work environment. What did Kinexus do to provide a

safe and healthy work environment?

[886] I start by noting that the protestations of Dr. Pelech and Ms. Sutter that they did

not know that Mr. Asad felt discriminated against, lack credibility. Ms. Sutter said that

Mr. Asad never uttered the word “discrimination” to her. That may be so, but she and Dr.

Pelech clearly knew that Mr. Asad believed that he had been targeted by a Kinexus

employee because he was an Arab Muslim who had immigrated to Canada from Saudi

Arabia. Indeed, in his e-mail sent to Dr. Pelech on the day of the 2001 Christmas party,

Mr. Asad said: “I didn’t move half way across the world away from my family, friends,

life and everything I have to be humiliated. I don’t accept that racial profiling, nor [do] I

accept that treatment”. If someone leads an elephant into a room, it would hardly be

necessary for that person to cry out “Elephant!” before the occupants became aware of its

presence.

[887] Mr. Asad clearly felt unsafe and uncomfortable in the workplace. Mr. Asad

trusted and looked up to Dr. Pelech, as President and CEO of Kinexus, and sought his

assistance. That trust and expectation were misplaced. Dr. Pelech’s priorities were to

protect Ms. Stoute’s identity and “get this guy back to work”, because “He was paid to do

a job and he wasn’t doing it while on stress leave”. He told Mr. Asad that he should

understand why someone would report him to the police because he looked like the 9/11

terrorists. Dr. Pelech may have thought he was softening his words by saying to Mr. Asad

that, like him, the 9/11 terrorists were all “young, handsome, clean-cut” men who “didn’t

look like terrorists”. Such words offered not even cold comfort to Mr. Asad, and merely

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reinforced his feelings of isolation and being identified with terrorist acts that were the

subjects of outrage and condemnation among the people around him.

[888] Kinexus did not offer Mr. Asad any professional counselling services to assist him

through his trauma and to deal with a difficult return to the workplace. The only

counselling came from Ms. Sutter who has little or no formal training. Mr. Asad trusted

Ms. Sutter and appreciated her efforts to comfort him, although he did not find helpful

her constant advice to “get over it”, “move on”, go have some fun on Robson Street, and

forgive the person who had reported him to the RCMP. He was unaware that Ms. Sutter

was herself suspicious of his possible involvement with the 9/11 attacks, and that she was

not in a position to offer professional, objective advice. In Mr. Asad’s words, she just

wanted everyone to be happy.

[889] Ms. Sutter admitted that Kinexus did not then have an anti-discrimination policy,

and did not take any steps to develop one. No anti-harassment or sensitivity training was

provided to employees, either before or after 9/11. Ms. Sutter said that she spoke to Dr.

Pelech, Dr. McDermott and Ms. Karia about the need to make sure that Mr. Asad felt a

part of, and welcome at, the company, but her plan was merely to be “observant of him”.

Neither she nor Dr. Pelech spoke to any other Kinexus employees about Mr. Asad’s

situation.

[890] No memo or other statement was issued to the employees to point out that the

RCMP had closed its investigation of Mr. Asad, that no charges had ever been laid

against him, and that he must be treated by everyone as an innocent person. The only

publication was the article published in the Newsletter under Mr. Asad’s name and

unhelpfully titled “Ghassan’s Story”. The article was edited by Ms. Sutter who persuaded

Mr. Asad not to include further details about his experiences or his desire to know who

had reported him. As the senior management of Kinexus, Dr. Pelech and Ms. Sutter

effectively left Mr. Asad to fend for himself.

[891] All this stands in sharp contrast to Dr. Pelech’s description of what he would do if

presented with “a clear case of [race-based] hatred”. In such an event, he said that he

would speak to the offender to make it “very clear from the top of the company” that such

discrimination was unacceptable. However, he was convinced that there was no such

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discrimination in Mr. Asad’s case because Ms. Stoute had socialized with Mr. Asad

outside the office, he had observed her to be teary-eyed after the RCMP interrogation of

Mr. Asad, and because of Ms. Stoute’s own mixed ethnic background.

[892] It is apparent that neither Dr. Pelech nor Ms. Sutter considered the possibility that

they themselves were discriminating against Mr. Asad. It is also apparent that neither

considered that they, and Kinexus, had a responsibility to take action to provide Mr. Asad

with a safe and healthy work environment.

5. Ms. Karia

[893] Apart from her testimony at the hearing, Ms. Karia’s actual involvement in the

events presently at issue under s. 13(1)(b) was relatively minor. Certainly that is the case

when her actions are compared with those of Dr. Pelech, Ms. Stoute and Ms. Sutter.

[894] Until May or June of 2002, she was an accountant who reported to the then

Controller before assuming that position herself. She did not become Director of Human

Resources until January 2003. Therefore, until the summer of 2002, Ms. Karia occupied a

relatively junior and non-managerial position. Thereafter, although Ms. Karia held what

appeared to be senior managerial responsibilities, she admitted that she was relatively

inexperienced, and relied heavily on Ms. Sutter in the performance of her human

resources role. Indeed, although she was ostensibly responsible for the assembly and

preparation of Kinexus’ defence documents and communications with the Tribunal and

Mr. Asad’s counsel, Ms. Karia stated that she depended on Dr. Pelech and Ms. Sutter to

identify and provide her with relevant information, and that Dr. Pelech made the

decisions which she then carried out on his instructions.

[895] Mr. Asad alleges that Ms. Karia made discriminatory remarks to him on and

shortly after 9/11. In his testimony, Mr. Asad acknowledged that, at the time Ms. Karia

made the impugned remarks, he thought she may have made them humorously. Perhaps

she had intended them as a joke to reduce his discomfort and tension at the time.

However, that is not the interpretation or explanation that Ms. Karia gave during her

testimony. Instead, she said that she was reacting to Mr. Asad’s own jocular observations

about the timing of his trip. In light of the circumstances and other evidence, including

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Ms. Karia’s own testimony about her misgivings about Mr. Asad’s character and her

suspicions about his activities, that explanation is not in accordance with the

preponderance of reasonable probabilities. Therefore, having weighed and assessed all of

the relevant evidence, including the many inconsistencies and contradictions in her

testimony, I find, on a balance of probabilities, that Ms. Karia did make the remarks

alleged by Mr. Asad.

6. Improvements Over Time

[896] Mr. Asad’s overall situation improved over time. That is reflected by the

testimony of Mr. Asad who said that the racist remarks eventually ceased, and by the

testimony of Dr. Pelech, Ms. Sutter, Ms. Karia and Mr. McDuffie who said that Mr.

Asad’s demeanour and outlook began to brighten considerably in the first part of 2002.

[897] There were three related reasons for this improvement. None resulted from any

positive, constructive action by Dr. Pelech or Ms. Sutter as executives of Kinexus to

address and remedy the discrimination about which he had complained or the resulting

workplace environment.

[898] First was the fact that, because of a severe financial crisis, Kinexus laid off seven

employees, including Ms. Stoute. Mr. Asad was quite certain that she was the person who

had reported him to the police, so her departure in February 2002 markedly improved the

environment for Mr. Asad in terms of his feelings of discrimination. The ongoing tension

between them, and her ongoing remarks about Mr. Asad made to him and other

employees, were removed from the workplace. Ms. Sutter testified that the last

conversation she and Mr. Asad had about 9/11 took place in February 2002.

[899] Secondly, after Ms. Stoute’s departure, Mr. Asad made a determined effort to re-

integrate into the Kinexus environment. He attended Kinexus social functions in 2002,

and even organized the food for the summer party. He shared dishes that were brought by

others to the office. When asked by Dr. Pelech in cross-examination why he was prepared

to share food at such functions with himself and Ms. Karia if he thought them to be racist,

Mr. Asad replied: “I pushed myself to show integration”.

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[900] Third was the resignation of Dr. McDermott. That opened the possibility of

greater responsibilities for Mr. Asad and freed him from what he perceived to be the

frustration and restraint of reporting to someone who, in his view, had little expertise in

IT. That, however, was only part of the scenario, and resulted in only a short-term

improvement in his work situation. For a period of time, Mr. Asad was highly useful to

Dr. Pelech in his battle with Dr. McDermott over the direction and control of Kinexus.

7. Ongoing Discrimination

[901] According to Mr. Asad’s evidence, the improvement in the work environment was

limited in scope and short-lived. Mr. Asad alleges that his relationship with Dr. Pelech

fundamentally changed after 9/11. Whereas before 9/11, they had enjoyed a close and

friendly working relationship and Dr. Pelech treated him and his ideas with respect, Mr.

Asad asserts that Dr. Pelech ignored him and treated him disrespectfully after that day.

Mr. Asad attributes that to Dr. Pelech’s prejudicial attitude following 9/11. Mr. Asad

points to the incident over his refusal to attend the 2001 Christmas party as an example of

Dr. Pelech’s attitude. I will return to that incident later in these Reasons.

[902] However, the evidence reveals that, in fact, Dr. Pelech did meet with Mr. Asad

frequently during late 2001 and the first part of 2002. Mr. McDuffie gave evidence to that

effect, saying that he had the impression that Mr. Asad wanted to report to Dr. Pelech

rather than Dr. McDermott, and that Dr. McDermott complained that, after Mr. Asad

returned to work in October 2001, he talked to Dr. Pelech and Ms. Sutter rather than to

him.

[903] Mr. Asad’s complaints about Dr. Pelech’s lack of attentiveness and respect appear

to be focussed on the period after Dr. McDermott left Kinexus in April 2002. The

evidence points to the conflict between Dr. Pelech and Dr. McDermott as the underlying

reason for Dr. Pelech’s meetings with Mr. Asad, and to Dr. McDermott’s departure as the

signal for a change in the relationship between Dr. Pelech and Mr. Asad. I will return to

that matter in the analysis of discrimination under s. 13(1)(a) with respect to the

termination of Mr. Asad’s employment.

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[904] I turn now to the removal of Mr. Asad’s photo from the Kinexus website. His

photo was included in the website when it was launched on 9/11. According to Mr.

Tarbuck, who was hired by Kinexus as IT Systems Administrator in April 2003, his

investigations show that, sometime between August 7 and 18, 2002, Mr. Asad’s photo

was removed from the website and replaced by a 12-frame animated image. Mr. Asad

testified that he became aware of this in early September 2002 when his brother

telephoned from Saudi Arabia, inquiring if he was still working at Kinexus because the

photo was no longer on the website. Mr. Asad also stated that, when he checked the

website, he discovered that, of the photos of various employees, his was the only one that

had been removed. He did not discuss its removal with anyone at Kinexus. Mr. Asad said

that Dr. Pelech was fully responsible for the contents of the website, and was the only

person who had authority to make changes to it.

[905] Mr. Tarbuck testified that changes to the website are only made at the request of

Dr. Pelech or, less frequently, Ms. Sutter. Mr. Tarbuck also stated that, because Dr.

Pelech always wants to create a more dynamic website, he believes that Dr. Pelech

probably gave the instruction to replace Mr. Asad’s photo with an animated image.

[906] Dr. Pelech denied that he had authorized the removal of Mr. Asad’s photo. He

blamed it on an accident, asserting that K.C., the webmaster who was a Kinexus

employee, had personal problems at the time which may have affected his performance.

Although K.C. was still employed by Kinexus at the time of the hearing, he was not

called to give evidence.

[907] In fact, Dr. Pelech denied any knowledge of not only the removal of Mr. Asad’s

photo, but also its restoration in June 2003 and its subsequent use by Kinexus at the EI

hearing, even though he had represented Kinexus at that proceeding. Dr. Pelech also

asserted that the photo had been raised as an issue by Mr. Asad’s counsel, but, under

cross-examination, finally acknowledged that Kinexus had initially referred to it in its

Response to the Complaint as an example of how well it had treated Mr. Asad.

[908] In all the circumstances, and after considering all the evidence, I find that Dr.

Pelech did issue instructions to remove Mr. Asad’s photo in August 2002, and that he did

so because he did not want Mr. Asad’s photo, which clearly depicted a person who, in Dr.

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Pelech’s words, looked like the 9/11 terrorists to appear on the Kinexus website. Dr.

Pelech was keenly aware of the website’s importance as the company’s face presented to

the world, and its primary marketing tool to attract potential new customers.

C.

Decision

[909] I find that Ms. Stoute, an employee of Kinexus, engaged in discriminatory racial

profiling against Mr. Asad in the course of her employment and in the Kinexus

workplace. She based her suspicions that Mr. Asad was involved in the 9/11 terrorist

attacks on his race, religion, place of origin, and political belief, and embellished her

accounts of Mr. Asad’s activities with exaggerations, unfounded assumptions and

speculation, and creations of her imagination.

[910] Ms. Sutter, Kinexus’ Director of Human Resources, accepted Ms. Stoute’s racial

profiling of Mr. Asad and her accounts of his activities. Although she knew that Ms.

Stoute, as a relatively young and junior employee, looked up to her and sought her

guidance, Ms. Sutter failed to conduct any independent investigation or inquiries of Ms.

Stoute’s suspicions and accounts. Instead, Ms. Sutter accepted and agreed with them, and

shared her own suspicions of Mr. Asad with Ms. Stoute. By doing so, Ms. Sutter not only

failed to discourage Ms. Stoute, she tacitly encouraged her to continue her behaviours

until Ms. Stoute left her employment with Kinexus. Those behaviours included Ms.

Stoute expressing her suspicions to other Kinexus employees and making derogatory

comments to Mr. Asad about his race, religion, place of origin, and political belief. Ms.

Karia also made some discriminatory remarks to Mr. Asad.

[911] In the meantime, Ms. Sutter had many discussions with Mr. Asad, urging him to

forgive, get over it, and move on. Although he did not find such advice helpful, Mr. Asad

trusted Ms. Sutter, unaware that she shared Ms. Stoute’s suspicions.

[912] Mr. Asad also initially trusted Dr. Pelech and sought his assistance, as President

and CEO of Kinexus, unaware that Dr. Pelech also shared those suspicions with Ms.

Stoute and Ms. Sutter. However, unlike Ms. Sutter, Dr. Pelech had little or no sympathy

for Mr. Asad. His objective was to get Mr. Asad back to work because Kinexus needed

his IT services and expertise.

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[913] Both Ms. Sutter and Dr. Pelech were well aware that Mr. Asad felt discriminated

against, and unsafe in the workplace. They were also aware of the concerns and

suspicions about Mr. Asad, held not only by Ms. Stoute, but by other employees as well.

However, rather than taking any remedial measures to correct a poisoned workplace, they

were, in fact, themselves part of the corrosive cloud of suspicion hanging over Mr. Asad

when he returned to work.

[914] Dr. Pelech and Ms. Sutter failed to recognize that they were also discriminating

against Mr. Asad by themselves also engaging in racial profiling. They also failed to

recognize that, as the senior management of Kinexus, they and the company had a

responsibility in law to provide Mr. Asad with a safe and healthy work environment. Dr.

Pelech and Ms. Sutter, and therefore Kinexus, failed to take any positive, meaningful

action to fulfill that responsibility.

[915] There is no doubt that Mr. Asad suffered adverse treatment and effects in his

employment because of his race, religion, place of origin, and political belief. Under the

traditional approach in determining discrimination, Mr. Asad has clearly established a

prima facie case that Kinexus discriminated against him regarding his employment.

[916] Although, in light of the decision in Kapp, supra, it is probably unnecessary to

apply Law, I also find under that analysis that Mr. Asad was the victim of discrimination.

In his workplace, he was subjected to corrosive suspicion, and was isolated, marginalized

and devalued. It is clear that, under the subjective-objective test of the Law analysis, Mr.

Asad’s human dignity was harmed by unfair treatment premised upon personal traits or

circumstances which do not relate to individual needs, capacities, or merits. I am satisfied

that a reasonable person, dispassionate and fully apprised of the circumstances, and

possessed of similar attributes to, and under similar circumstances as, Mr. Asad, would

find that the impugned conduct of Kinexus and certain of its employees had the effect of

demeaning his human dignity.

[917] Kinexus, through Dr. Pelech, did not offer any substantive justification for that

discrimination. Instead, it simply denied that the company had, in any manner,

discriminated against Mr. Asad. That denial was based on the testimony of Ms. Stoute,

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Ms. Sutter, Ms. Karia and Dr. Pelech. I have not found their evidence on which the denial

depends to be credible or reliable.

[918] To the extent that Kinexus could be said to have offered any justification, its

witnesses actually admitted and reinforced the discriminatory racial profiling. It did offer

justifications for Ms. Stoute’s report of Mr. Asad to the RCMP, and for the termination of

his employment. I have earlier determined that the former is not an act for which Kinexus

is responsible, and I will deal below with the latter.

[919] Having considered all the evidence, I find that, contrary to s. 13(1)(b) of the Code,

Kinexus discriminated against Mr. Asad regarding his employment because of his race,

religion, place of origin, and political belief.

VIII ANALYSIS – DISCRIMINATION PURSUANT TO SECTION 13(1)(A)

A.

Introduction

[920] I now turn to what, in my view, is the much more difficult question. Did Kinexus

discriminate against Mr. Asad by terminating his employment because of any or all of his

race, religion, place of origin, or political belief?

[921] Given that I have found discrimination under s. 13(1)(b), at first blush the answer

might seem self-evident: since Dr. Pelech, Ms. Sutter and Kinexus discriminated against

Mr. Asad in his employment, they must have also discriminated against him in the

termination of that employment. Indeed, absent an answer from Kinexus, Mr. Asad has

established a prima facie case.

[922] The decision to terminate Mr. Asad’s employment was made by Dr. Pelech. I

have found that Dr. Pelech continued to harbour suspicions about Mr. Asad’s possible

involvement in the 9/11 terrorist attacks, and in August 2002 ordered the removal of Mr.

Asad’s photo from the Kinexus website, all for discriminatory reasons. Even in the course

of his testimony, Dr. Pelech expressed his ongoing suspicions. I am mindful that any of

the prohibited grounds needs to be only a factor, not necessarily the only or even the most

important one, in the decision to terminate.

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[923] Without more, it could be reasonably inferred that Dr. Pelech’s view of Mr. Asad

through a lens of discriminatory racial profiling was a factor in the termination.

However, a thorough examination and consideration of all the evidence has led me to

conclude, albeit with difficulty, that Mr. Asad’s termination was not because of his race,

religion, place of origin, or political belief.

B.

Evidence and Discussion

[924] Kinexus offered a rather confused explanation for the termination. On one hand, it

presented evidence that, according to Dr. Pelech, pointed to Mr. Asad’s lack of

competence in his work during the last several months of his employment. However, Dr.

Pelech also stated that competence was not the reason for the dismissal. The real reason,

he asserted, was Mr. Asad’s insubordination. That said, given Dr. Pelech’s expressed

ongoing suspicions about Mr. Asad, without more it could be reasonably inferred that any

one or more of Mr. Asad’s race, religion, place of origin and political belief was a factor

in Dr. Pelech’s decision to fire him.

[925] The answer lies in the factual matrix formed by the evidence, and the examination

of that matrix revolves around Dr. Pelech. The evidence, and Dr. Pelech’s demeanour and

conduct throughout the hearing, establish that he took great pride in his role as founder,

President and CEO of Kinexus, and as its ultimate decision maker. In his view,

notwithstanding the fact that outside shareholders own 2/3 of its shares, Kinexus is “my

company”. Dr. Pelech also has a substantial financial stake in Kinexus, and much

ambition for its future. Furthermore, during the hearing, Dr. Pelech demonstrated that he

is not reluctant to speak about his accomplishments and his business and promotional

acumen.

[926] It was thus a severe blow when, after Kinexus had rapidly expanded within a year

from a handful of employees to a staff numbering in the mid-20’s, the company teetered

on the verge of financial disaster in the latter part of 2001 and into 2002. According to

Dr. Pelech, the very continued existence of Kinexus was at stake.

[927] At that point, Dr. Pelech’s position in, and perception of, the company were

threatened by Dr. McDermott, a threat that was not eliminated until the latter resigned

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and left Kinexus in April 2002. Underlying Dr. McDermott’s resignation was a conflict

between himself and Dr. Pelech over the direction of the company. Dr. McDermott was

critical of Dr. Pelech’s management and decisions. Both sought the support of the

Kinexus Board of Directors, thus placing Dr. Pelech’s control of Kinexus in jeopardy.

[928] The evidence, including that of Mr. McDuffie, reflects that, following his return to

work from stress leave in early October 2001, Mr. Asad effectively turned against Dr.

McDermott, who until then had been his champion within Kinexus, and attempted to

align himself with Dr. Pelech. Ms. Sutter told Mr. Asad about the conflict between Dr.

Pelech and Dr. McDermott, and strongly encouraged and influenced Mr. Asad to submit

reports that were highly critical of Dr. McDermott and supportive of Dr. Pelech. In

particular, the April 4, 2002 “confidential” report, which ostensibly was authored by Mr.

Asad and addressed to “Human Resources”, shows unmistakable signs that it was written,

in large measure, by Ms. Sutter. Its content and style bear scant resemblance to anything

else in evidence that was written by Mr. Asad, to whom English is quite obviously a

second language.

[929] Mr. Asad’s support and reports helped Dr. Pelech weaken Dr. McDermott’s

standing within what Dr. Pelech described as Kinexus’ “power structure”. Dr.

McDermott was probably aware of that, and complained that Mr. Asad was now

effectively reporting to Dr. Pelech, even though he, not Dr. Pelech, was Mr. Asad’s

supervisor. I note that, although Dr. McDermott did not resign until March 2002 and did

not leave Kinexus until April, commencing in January 2002 Mr. Asad’s Time Sheets

were signed by Dr. Pelech as his supervisor.

[930] Ultimately, although the Board sided with Dr. Pelech against Dr. McDermott, it

also removed Dr. Pelech’s title of CEO and bestowed it on Mr. Turner. Based on his

evidence and that of Ms. Sutter, that did not sit particularly well with Dr. Pelech. In her

evidence, Ms. Sutter was rather dismissive of Mr. Turner and some of the changes he

wished to implement, describing him as “a part-time CEO” and “really a figurehead”.

[931] If Mr. Asad had expected that his support would result in a management title and

authority and a closer relationship with Dr. Pelech, he was to be disappointed. After Dr.

McDermott’s departure from Kinexus in April 2002, Mr. Asad was given additional

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responsibilities for IT. However, over time, he found that Dr. Pelech had less, not more,

time and attention for him, and that Dr. Pelech had very little knowledge of, or interest in,

IT matters. He only paid attention to IT issues when something went wrong, resulting in a

problem which affected Kinexus’ ability to generate revenue. In such events, Mr. Asad

was expected to fix the problem with minimal resources, because Kinexus continued to

struggle with its finances. Furthermore, Mr. Asad no longer had the buffer that Dr.

McDermott had previously provided between him and Dr. Pelech.

[932] It is noted that, during his testimony, Dr. Pelech acknowledged, albeit somewhat

reluctantly, that he lacks expertise in IT, and the evidence pointed to the limitations in his

knowledge of, and interest in, technical IT matters.

[933] With Dr. McDermott gone, Mr. Asad’s usefulness and value were confined to his

IT work. In that regard, at his August 2001 performance review, Dr. McDermott had

promised Mr. Asad a substantial salary increase that was subsequently settled at a 45%

increase, the largest percentage increase among the employees, most of whom received

10%. That made Mr. Asad’s salary the same as Ms. Karia’s and the second highest in the

company. In addition, Mr. Asad’s increase was unique in that it was the only one that was

retroactive to January 1, 2002. Ms. Sutter testified that, although he signed off on it, Dr.

Pelech was unhappy about Mr. Asad’s raise, feeling that it set a bad precedent and was

unfair to the other employees. Ms. Karia also expressed her unhappiness about the

apparent inequity, as well as the fact that Mr. Turner had directed that she was not

allowed to accumulate overtime hours while Mr. Asad continued to do so.

[934] Mr. Asad’s increase was conditional on Kinexus securing additional financing to

see it through its financial crisis. That was put in place in April. However, Kinexus’

financial difficulties continued through 2002. Ms. Sutter described it as “a period of real

turmoil” and “a transition year”.

[935] In May, Mr. Asad requested additional share options and a new title and,

according to Ms. Sutter, he threatened to work minimal hours when his request was

denied. As previously noted, in cross-examination she admitted that statements in

Kinexus documents that Mr. Asad carried out his threat were untrue, and that, in fact, Mr.

Asad regularly worked overtime hours after May 2002. However, those statements

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reflected what Ms. Sutter apparently believed and, it can be reasonably taken, she passed

on to Dr. Pelech.

[936] The computer crashes of October and November 2002 focussed Dr. Pelech’s

attention on Mr. Asad. They directly and significantly affected Kinexus’ ability to

communicate with its existing customers and to attract new ones, thus impacting the

company’s revenue stream and compounding its existing financial woes. Dr. Pelech

blamed Mr. Asad for allowing the problems to develop unattended. In doing so, Dr.

Pelech ignored the fact that, in written reports several months earlier, Mr. Asad had

warned him of the risk and consequences of those precise crashes and had offered

preventative solutions, but Dr. Pelech had not followed up and did not give him authority

to incur the necessary expenses.

[937] Other employees, upset by the crashes which left them unable to fully perform

their work, also pointed at Mr. Asad as the person responsible for IT. Pressured, stressed

and frustrated, and working long hours without outside assistance, which Dr. Pelech had

refused to authorize because of the cost, Mr. Asad bought, at his own expense, books to

guide him to resolutions of the crashes. He sought to explain to his co-workers that the

fault was not his. In conversations and his November 11 e-mail to the staff, he laid the

responsibility on management.

[938] The second crash had occurred while Dr. Pelech and Ms. Sutter were in Florida.

During a telephone conversation between Mr. Asad and Dr. Pelech at that time, the seeds

of possible misunderstanding about payment of overtime pay to Mr. Asad for his work to

resolve the crashes were sown.

[939] In the meantime, Ms. Karia, who by this time was assuming the role of Director

of Human Resources as well as Controller, informed Ms. Sutter that Mr. Asad was

wasting time in the office, not only his own time but that of other employees with whom

he engaged in what she perceived to be social chats. Worse still, Ms. Karia alleged that

Mr. Asad was complaining to other employees about the company and its policies. She

was upset that his comments were damaging the credibility of Kinexus management, and

demeaned her in her new human resources role. Ms. Karia advised Ms. Sutter that Dr.

Pelech needed to address the situation when they returned from Florida.

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[940] Dr. Pelech and Ms. Sutter returned from Florida, and Mr. Asad fixed the computer

system in late November. Mr. Asad asserts that, in the meantime, Dr. Pelech constantly

complained about the system being down, and would either ignore or yell at him.

Because of the long hours he had worked through November, he decided to take the last

two working days off to prepare for his vacation trip to visit his family in the Middle

East. Dr. Pelech had approved his vacation leave request some months earlier. However,

Mr. Asad did not seek Dr. Pelech’s permission to take the two days off.

[941] Dr. Pelech telephoned Mr. Asad at home and demanded that he return to work,

saying that, notwithstanding Mr. Asad’s assurances that the systems were fine, he had

received reports from Ms. Karia of ongoing problems. However, in cross-examination,

Dr. Pelech admitted that he had no direct knowledge of any problems and he did not

advise Mr. Asad that Ms. Karia had reported problems with her computer.

[942] During that telephone conversation, further seeds of possible misunderstanding

about overtime pay were sown. Dr. Pelech agreed to pay Mr. Asad for the two days if he

came to work. In his testimony, Dr. Pelech described Mr. Asad’s position as “blackmail

comments”, and stated that he only made a promise to pay him overtime pay for those

two days “under duress”.

[943] In summary then, after Ms. Stoute’s departure in February 2002, Mr. Asad’s

relationships with his co-workers and, for the most part, his workplace environment

improved, although I have noted that the improvement was not due to any remedial action

by Dr. Pelech or Ms. Sutter. However, following Dr. McDermott’s departure in April

2002, his relationship with Dr. Pelech deteriorated. Mr. Asad was increasingly becoming

a problem and an annoyance for Dr. Pelech.

[944] In fact, Dr. Pelech’s issues with Mr. Asad reached back to his demand for a

substantial salary increase in August 2001, without which Mr. Asad had suggested he

would leave Kinexus. At this point, I note that the evidence indicates that Mr. Asad was

not himself reticent about his own abilities and importance to Kinexus. In his August

2001 performance review, he persuaded Dr. McDermott to make changes to enhance an

already very positive assessment of his work. Mr. Asad felt frustrated by having to report

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to Dr. McDermott who, in his view, lacked basic competence in Mr. Asad’s area of

expertise.

[945] Mr. Asad perceived himself as a highly capable IT practitioner with a vital role in

the company and with high ambitions for the future. Indeed, all of the witnesses called by

Kinexus, who had worked with him and were familiar with how he did his job, testified

very positively about Mr. Asad’s knowledge, competence and abilities in IT, praising his

technical skills, work ethic and ability to get the job done. Unfortunately, in the end, Mr.

Asad’s pride and perception of his importance to Kinexus contributed to the unhappy end

of his employment.

[946] All this was occurring at a time when the very existence of Kinexus was in

jeopardy because of a severe financial crisis, and almost one-third of its employees were

laid off. It was also occurring when Dr. Pelech was locked in a battle with Dr.

McDermott over the direction, and therefore, the control of Kinexus. The crisis was

alleviated by additional financing secured in May or June 2002, but the company

continued to be under financial pressure through 2002.

[947] In the meantime, Mr. Asad did not attend the 2001 Christmas party. This had

nothing to do with any religious sensitivities, and Mr. Asad had attended the party the

year before. He refused to attend because he did not wish to share food with the person

who, in his view, had betrayed him by reporting him to the RCMP. He had been

consistent in that stance since his return to work in October. Indeed, Ms. Sutter observed

that he would share food brought to the office by some persons but not by others.

[948] Dr. Pelech refused to accept Mr. Asad’s decision, and ordered Mr. Asad to attend

the party for the sake of “the company unity”. Mr. Asad did not comply. After the party,

Dr. Pelech and Ms. Sutter went to the Kinexus offices where Mr. Asad had continued to

work. Although Dr. Pelech and Ms. Sutter denied it, I accept Mr. Asad’s evidence that

Dr. Pelech was very angry, yelled at him, and lectured him. That day, Mr. Asad sent Dr.

Pelech an e-mail, describing the police interrogations, and explaining in detail the trauma

he had experienced and the fears the interrogations had instilled in him. He concluded:

“All that happened just because someone that you want me to party with. I am a human

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and I have feelings like others”. Dr. Pelech did not reply to or discuss that e-mail with

Mr. Asad.

[949] In his testimony, Dr. Pelech referred to that incident in the context of evidence of

what he described as examples of Mr. Asad’s insubordination. Although he added that the

refusal to attend the Christmas party was not an act of insubordination, it was, he said,

“part of a pattern of behaviour that goes back one and a half years before he was

terminated”. The pattern to which Dr. Pelech referred was one of insubordination.

[950] Dr. Pelech was prepared to tolerate Mr. Asad’s insubordination for a time,

particularly because he was useful during Dr. Pelech’s dispute with Dr. McDermott. As

noted, that usefulness ended with Dr. McDermott’s departure from Kinexus. However,

that did not end Kinexus’ financial woes or the pressure on Dr. Pelech, who now also had

to contend with the loss to Mr. Turner of his position and title as company CEO and Mr.

Turner’s interventions in the management of the company. For the first time, someone

other than people picked by Dr. Pelech was part of the company’s management.

[951] Matters came to a head in February and March 2003 when, after he had returned

from his vacation, Mr. Asad refused to sign and submit his January and February Time

Sheets until he received the overtime pay he claimed had been promised him by Dr.

Pelech. For the purposes of these Reasons, nothing turns on whether or not Dr. Pelech

made such a promise. I note that Dr. Pelech stated that Mr. Asad’s claim for overtime pay

was not valid because, although Mr. Asad had discussed it with Ms. Sutter and Ms. Karia,

he had not “formally requested” it from Dr. Pelech: “[Mr. Asad] may have contemplated

it, but he didn’t ask [me] for it”. In any event, what is relevant is Mr. Asad’s refusal to

submit his Time Sheets.

[952] Mr. Asad does not deny that he was aware of the underlying reasons for the Time

Sheets. There is considerable evidence about their purposes and importance, including

copies of the Time Sheets submitted by Mr. Asad throughout his employment, and the

detailed instructions and explanations given to Kinexus employees with respect to the

completion, use and significance of the Time Sheets. I have taken note of the periodic

changes in the categories and subcategories to which work hours of employees, including

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Mr. Asad, were allocated in the Time Sheets, including those implemented at the

direction of Mr. Turner after he became CEO of Kinexus.

[953] The testimony of Messrs. McDuffie and Tarbuck confirm the evidence of Dr.

Pelech, Ms. Sutter and Ms. Karia that the Time Sheets were needed by Kinexus to qualify

for tax credits under the federal Scientific Research and Experiment Development

Program. In other words, the Time Sheets represented money in the hands of Kinexus.

Ms. Karia also required them to prepare financial statements for the company’s Board of

Directors and shareholders. Mr. Asad does not dispute any of that.

[954] Nor does Mr. Asad dispute that, despite repeated requests for his Time Sheets

from Ms. Karia and Ms. Sutter, he refused to submit them. Most importantly, Dr. Pelech

then clearly ordered Mr. Asad, both orally in the presence of Ms. Sutter and others, and

by e-mail, to submit the Time Sheets or face termination of his employment.

[955] Mr. Asad’s friend, Ms. Morgan, testified that, prior to his termination, Mr. Asad

discussed with her his refusal to hand in his Time Sheets until he had received his

overtime pay. He also told her about the possibility that he might be fired if he did not

submit them. Mr. Asad thus knew that his job was in jeopardy.

[956] Despite that, Mr. Asad continued to refuse to submit his Time Sheets. That final

act of defiance was the last straw for Dr. Pelech. When asked if the e-mail which Mr.

Asad sent to Dr. Pelech on March 6 to explain his position was an attempt to resolve the

situation, Dr. Pelech responded: “No. This looks to me like blackmail”. He also described

Mr. Asad’s actions as insubordination in the face of his direct orders. In Dr. Pelech’s

view: “At this point it was clear I couldn’t work with him” because “we couldn’t control

him”.

[957] Dr. Pelech’s view and opinion of Mr. Asad is further reflected in his comments

about Mr. Asad’s interrogations by the RCMP. Dr. Pelech stated that, knowing how Mr.

Asad responds to authority and his “belligerent attitude”, he was not surprised to learn

that Mr. Asad had made a complaint to the RCMP about his interrogations. He also

surmised that the main reason why the RCMP interrogations were so lengthy was the way

in which Mr. Asad responded to their questions.

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[958] The evidence thus first points to Dr. Pelech’s self-perception and his role as the

driving force and decision maker of Kinexus, indeed the personification of the company.

By his own admission and the evidence of others, he was under considerable pressure and

stress throughout 2002 because of the company’s ongoing financial problems and the

changes to its power structure, including the loss of his CEO title.

[959] I have earlier observed that, because of Dr. McDermott’s departure, Mr. Asad no

longer had a buffer between himself and Dr. Pelech. That cut both ways. Now that Mr.

Asad reported directly to him, Dr. Pelech had to deal with Mr. Asad without an

intervening level of management. Dr. Pelech’s frustration was evident in his cross-

examination. In agreeing that he was Mr. Asad’s direct supervisor, he added in an

exasperated tone: “Yeah. Also the entire company. And this isn’t my only job either”.

[960] Thus, from Dr. Pelech’s perspective, Mr. Asad had increasingly become a thorn in

his side, causing problems because of his salary demands, threats to quit, refusal to attend

the Christmas party, his unwelcome and ultimately embarrassing warnings of potential

problems with the computer system, expectations of a management position, untimely

stress leave and vacations, and demands for overtime pay. All that played out against the

backdrop of Kinexus’ ongoing cash shortage. For a time, in addition to his IT knowledge

and skills, Mr. Asad had value in Dr. Pelech’s dispute with Dr. McDermott. However,

once Dr. McDermott was out of the company, Mr. Asad’s worth was diminished, and Dr.

Pelech focussed on Mr. Asad’s IT performance and the reports of his discontent.

[961] The reports from Ms. Karia rankled Dr. Pelech, particularly when he heard that

Mr. Asad was criticizing him personally and his management of Kinexus. In his

testimony, Dr. Pelech referred to “the contempt (Mr. Asad) had for my management”. He

also described some of Mr. Asad’s telephone and e-mail communications to him as

“blackmail”, and alleged that Mr. Asad had extracted certain commitments from him

“under duress”.

[962] When Mr. Asad openly defied specific orders from Dr. Pelech to complete and

submit his Time Sheets, Dr. Pelech reached the breaking point. To defy an order to attend

the Christmas party was enough to cause an angry lecture and subsequent cold shoulder

from Dr. Pelech. The refusal to submit Time Sheets, coming on top of direct personal

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criticism of himself and his management expressed to other employees, was of a different

magnitude. Dr. Pelech could not tolerate such insubordination, so he made the decision to

terminate Mr. Asad’s employment.

[963] In all the circumstances, that may raise questions of whether Mr. Asad

unjustifiably engaged in provocative behaviour, whether Dr. Pelech followed sound

management practices, and whether the decision to fire Mr. Asad was justified in

employment law. However, those are not matters that are determinative of the issue

before me. That issue is restricted to the question of whether or not Mr. Asad was

terminated contrary to s. 13(1)(a) of the Code.

C.

Decision

[964] I am satisfied that Dr. Pelech continued to view Mr. Asad through a lens distorted

by racial profiling and to harbour suspicions that Mr. Asad may have been involved in

some way in the 9/11 attacks. I have earlier found that he discriminated against Mr. Asad

by ordering the removal of Mr. Asad’s photo from the Kinexus website in August 2002.

Indeed, Dr. Pelech admitted to ongoing suspicions about Mr. Asad even as he gave his

testimony.

[965] On the other hand, Mr. Asad continued to be employed by Kinexus for one and

one-half years after 9/11. He was given a substantial raise in 2002, much higher than

anyone else in the company, and, albeit belatedly, he attended Kinexus management

meetings commencing in January 2003. (I note at this point that I do not accept the

assertion advanced by Dr. Pelech, Ms. Sutter and Ms. Karia that Mr. Asad was part of

management before then. The evidence clearly points to an opposite conclusion.) Mr.

Asad acknowledges that, after Ms. Stoute’s departure in February 2002, he did not hear

any further discriminatory remarks at the workplace.

[966] In the end, the issue turns on the evidence of Dr. Pelech’s personal priorities and

management style and objectives. Dr. Pelech was first and foremost concerned about the

finances of Kinexus, and his role in the company’s power structure. When Mr. Asad was

suffering the trauma of the police interrogations, and suspicion of Mr. Asad was running

high, Dr. Pelech’s concern and objective was “how to get this guy back to work”. After

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all, Dr. Pelech stated, Mr. Asad had just returned from his vacation trip to New York, he

was needed at work, and he was paid to do a job which he wasn’t doing while away on

stress leave.

[967] The evidence also indicates that Dr. Pelech does not welcome criticism, and is

prepared to assign blame for shortcomings or problems to others, including his

employees, even suggesting that errors are the result of their personal problems. Dr.

Pelech blamed Mr. Asad for the computer crashes, and was upset by reports that Mr.

Asad was openly criticizing him and his management of the company. Mr. Asad’s refusal

to submit his Time Sheets, in open defiance of Dr. Pelech’s direct oral and written orders,

signalled the end.

[968] The evidence thus points to the conclusion that Dr. Pelech was driven by his

perspective of the corporate requirements of Kinexus which, from his viewpoint, are

parallel to his personal objectives and considerations. His decision to terminate Mr. Asad

was driven by those factors.

[969] Therefore, although not without difficulty, I have determined that there is

insufficient evidence to find, on a balance of probabilities, that Mr. Asad’s termination

was a breach of s. 13(1)(a) of the Code. Given all of the evidence, it is more probable that

Dr. Pelech’s decision to terminate Mr. Asad’s employment was based on the factors set

out above, and that his race, religion, place of origin, and political belief were not factors

in that decision.

IX

A.

REMEDIES

Remedies Sought by Mr. Asad

[970] In addition to orders under ss. 37(2)(a) and (b), Mr. Asad seeks the following

remedies:

• wage loss, pursuant to s. 37(2)(d)(ii), from March 14, 2003 to September 7,

2004 in the sum of $81,435.20;

• the employer’s share of statutory benefits over the same period, including

Employment Insurance, Canada Pension Plan and Worker’s Compensation;

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• loss of employment related expenses and benefits over the same period,

including the employer’s RRSP contributions and MSP premiums of $594.00;

• unpaid overtime pay in the sum of $1,585.29;

•

an amount sufficient to cover the adverse tax liability incurred by receiving

the wage loss and overtime pay in one lump sum within one taxation year;

• pre-judgment and post-judgment interest on the wage loss, pursuant to the

Court Order Interest Act;

• reimbursement for expenses incurred as a result of the Respondent’s

discriminatory conduct, including the cost of Dr. Robinson’s medical report

in the sum of $599.00;

• a letter of reference from the Respondent in the form it would normally

provide to departing employees;

• pursuant to s. 37(2)(d)(iii), compensation for injury to dignity, feelings and

self respect in the amount of $6,000.00.

B.

Remedies Awarded

[971] Pursuant to s. 37(2)(b), I order that, other than the termination of Mr. Asad’s

employment, the conduct complained of is discrimination contrary to the Code.

[972] Pursuant to s. 37(2)(a) of the Code, I order Kinexus to cease contravening the

Code and to refrain from committing the same or any similar contravention of the Code

in the future.

[973] Pursuant to s. 37(2)(d)(ii) of the Code, I order Kinexus to pay to Mr. Asad the cost

of Dr. Robinson’s medical report in the sum of $599.

[974] It is apparent that Mr. Asad suffered severe and significant injury because of the

discrimination inflicted by, and at, Kinexus. Because of discriminatory racial profiling, he

was unfairly and without justification subjected in the workplace to suspicion of

involvement in horrendous terrorist acts. Virtually overnight, Mr. Asad was transformed

from a popular, valued and respected employee into an object of suspicion, speculation

and mistrust. That caused Mr. Asad hurt, humiliation, anxiety, and isolation in the

workplace.

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[975] Mr. Asad was not accorded the right to be presumed innocent, or an opportunity

to know the specific basis for that suspicion and an opportunity to respond. Through its

President and Director of Human Resources, Kinexus knew that its workplace was

poisoned for Mr. Asad, but it failed to take any steps to correct or even ameliorate those

conditions. It failed to meet its duty to provide its employee with a safe and healthy

workplace. Kinexus left Mr. Asad to fend for himself in a poisoned workplace, and in

fact, its President and Director of Human Resources contributed to the corrosive cloud of

suspicion that hung over him in the workplace. As a result of the discrimination inflicted

upon him, Mr. Asad suffered from insomnia, diarrhea, depression, and other effects on

his physical and mental health, and was forced to seek medical attention.

[976] The situation improved over time for Mr. Asad, not because of any positive action

by Kinexus, but because of Mr. Asad’s own determination and the company’s dire

financial straits. The financial crisis forced Kinexus to lay off Ms. Stoute, who was the

originator of the unfounded suspicions, and Mr. Asad also temporarily served a useful

role for Dr. Pelech in his related corporate battle with Dr. McDermott.

[977] At the time of Mr. Asad’s submissions, the maximum amount the Tribunal had

awarded for injury to dignity, feelings and self-respect was $7,500, and Mr. Asad

requested $6,000. The maximum amount awarded by the Tribunal has risen dramatically

since then. If it were possible to increase the award beyond $6,000, I would do so. This is

an egregious case of discrimination, particularly in light of the insensitivity and lack of

care exhibited by the company’s senior management.

[978] Having considered all the circumstances of this case, pursuant to s. 37(2)(d)(iii), I

order Kinexus to pay Mr. Asad the sum of $6,000 for injury to dignity, feelings and self-

respect.

[979] In light of my finding that Mr. Asad’s employment was not terminated in

contravention of s. 13(1)(a), it is not necessary to deal with his claim for $81,435.20 in

wage loss or his related claims for lost benefits, unpaid overtime pay, tax gross up and

interest. I also decline to order Kinexus to provide a letter of reference which, in light of

all the circumstances, would provide little or no benefit to Mr. Asad.

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X

COSTS

A.

Relevant Provisions of the Code and the Rules

[980] Section 37(4) of the Code provides:

(4) The member or panel may award costs

(a) against a party to a complaint who has engaged in improper

conduct during the course of the complaint, and

(b) without limiting paragraph (a), against a party who contravenes

a rule under section 27.3 (2) or an order under section 27.3 (3).

[981] Section 27.3 provides, in relevant part:

(1) The tribunal may make rules respecting practice and procedure to

facilitate just and timely resolution of complaints.

(2) Without limiting subsection (1), the tribunal may make rules as

follows:

(a) respecting the holding of prehearing conferences and requiring

the parties to attend a prehearing conference in order to discuss

issues relating to a complaint and the possibility of simplifying or

disposing of issues;

(b) respecting disclosure of evidence, including but not limited to

prehearing disclosure and prehearing examination of a party on

oath or solemn affirmation or by affidavit;

(3) In order to facilitate the just and timely resolution of a complaint, a

member or panel, on their own initiative or on application of a party or an

intervenor, may make any order for which a rule could be made under

subsection (1) or (2).

[982] The Tribunal’s Rules of Practice and Procedure include the following:

Rule 4(1)

If a participant fails to comply with these rules, a decision, order, or

direction of the tribunal made under these rules, or a practice direction

issued under rule 1(3), a member may, in addition to any order made under

rule 4(3) or 4(6):

(a) order costs under rule 31, if the participant failing to comply is a

complainant or respondent; and/or

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(b) make any other decision or order the member considers appropriate in

the circumstances.

Rule 18(5) and (6) and (8) provide in relevant part:

4. Within 60 days from the date of the tribunal's letter advising that the

complaint is assigned to the standard stream, a complainant must deliver to

each respondent:

…

b. copies of all documents in their possession or control that may be

relevant to the complaint or response to the complaint.

5. Within 90 days from the date on the tribunal's letter advising that the

complaint is assigned to the standard stream a respondent must deliver to

the complainant:

…

b. copies of all documents in their possession or control that may be

relevant to the complaint or response to the complaint.

8. Disclosure is an on-going obligation and each complainant and

respondent must promptly deliver to each other:

a. copies of any documents that may be relevant to the complaint or the

response to the complaint that are subsequently acquired; and

b. any other changes to the information delivered under this rule.

B.

Meaning of “Improper Conduct”

[983] Section 37(4)(a) of the Code provides that the Tribunal may award costs against a

party to a complaint who has engaged in improper conduct during the course of the

complaint, and, without limiting paragraph (a), s. 37(4)(b) provides that the Tribunal may

award costs against a party who contravenes a rule under section 27.3(2) or an order

under section 27.3(3).

[984] The scope of what may be considered to be “improper conduct” was discussed in

McLean v. B.C. (Ministry of Public Safety and Solicitor General - Liquor Distribution

Branch), 2006 BCHRT 103, at paras. 7 and 8:

… Many parties before the Tribunal now engage in a significant amount of

pre-hearing litigation. The manner in which that litigation is conducted can

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have a significant effect on the processing and eventual hearing of

complaints, and can exact significant costs, financial and otherwise, on

both other parties and the Tribunal. Under the Code, the Tribunal has very

limited tools at its disposal in order to control parties' conduct; findings of

improper conduct, and the resulting possibility of costs, are the main tool

available.

… For example, where a party contravenes a rule or an order, such

conduct may, under the express terms of s. 37(4)(b), constitute improper

conduct. While a party's intention in doing so may be relevant, no specific

intention is necessary for the breach of a rule or order to be improper.

More generally, while conduct which is the result of intentional

wrongdoing may certainly be "improper", in my view, improper conduct is

not necessarily limited to intentional wrongdoing. Any conduct which has

a significant impact on the integrity of the Tribunal's processes, including

conduct which has a significant prejudicial impact on another party, may

constitute improper conduct within the meaning of s. 37(4).

[985] At para. 10 of McLean, the Tribunal stated:

This is not a case where the finding of improper conduct rests on the

breach of a Tribunal rule or order, or on any finding of intentional

wrongdoing. Rather, the finding was based upon the impact which the

respondent’s conduct had on the integrity of the Tribunal’s processes, and

the significant prejudicial impact of its actions on the complainant.

[986] Some examples of improper conduct relevant to this case are set out in the

following:

• Offering untruthful evidence: Bains v. Metro College Inc. and Galk (No. 2), 2004

BCHRT 7; Jiwany and Jiwany v. West Vancouver Municipal Transit, 2005

BCHRT 172; Ferguson v. Kimpton (No. 2), 2006 BCHRT 467; and Stone v. B.C.

(Ministry of Health) (No. 8), 2008 BHCRT 96.

• Failure to abide by the Tribunal’s Rules, orders or directions, including those

pertaining to disclosure: Ghinis v. Crown Packaging Ltd., 2003 BCHRT 12 and

2002 BCHRT 38; Mahal v. Hartley (No. 2), 2004 BCHRT 63; Matthews v.

Huckleberry Mines and Curtis and Wakabayashi, 2006 BCHRT 93; Stone, supra;

Jacobs v. Dynamic Equipment Rentals Ltd. and Stewart (No. 2), 2005 BCHRT

353; Neuls v. Ann Davis Transition Society and Jacob (No. 2), 2007 BCHRT 5;

and Hitch v. Mount Layton Hot Springs Resort (No. 2), 2007 BCHRT 78.

C.

Kinexus’ Improper Conduct

[987] In the matter before me, Kinexus, through the actions of its management who

have represented the company throughout the proceedings, has engaged in improper

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conduct. That conduct is not restricted to, but includes, contraventions of the Tribunal’s

Rules, directions and orders.

[988] First, in these Reasons I have referred to several occasions on which it became

apparent that Kinexus had failed to make disclosure to Mr. Asad and his counsel of

relevant and potentially relevant documents in its possession. There were a number of

other such incidents which, because of the already considerable and unusual length of

these Reasons, I have not recorded herein, but I note that they continued even to the last

day on which evidence was heard. On each occasion, I ordered Kinexus’ representative,

Dr. Pelech, to make disclosure, either forthwith or within a specified time, depending on

the circumstances.

[989] At this point, I note that the obligation and responsibility of parties to make full

disclosure to each other was discussed at three pre-hearing conferences (“PHCs”). Each

PHC was conducted by a Tribunal member. Each was attended by Dr. Pelech and Ms.

Karia, and Ms. Sutter attended all but one. The proceedings of each PHC were recorded

in memoranda prepared by the Tribunal member and sent to the parties. Each

memorandum contained specific references to the Tribunal member having reminded the

parties of their ongoing obligation to disclose potentially relevant documents.

[990] Yet, during the course of cross-examining Mr. Asad, Dr. Pelech produced a

document and began to question him about it, when the document had not been

previously disclosed by Kinexus. Dr. Pelech then advised that he intended to introduce

into evidence a number of other documents that similarly had not been disclosed.

[991] During the ensuing discussion, I read aloud the relevant portions of the PHC

memoranda and directed Dr. Pelech to Rule 18 which sets out the disclosure obligations

of the parties. It was also noted that the purpose of the Rule is to prevent surprise and trial

by ambush, and that they have particular relevance in an employment situation such as

the subject one where the employer generally is in possession of many more documents

than the complainant, some of which the complainant may not even know exist.

[992] Dr. Pelech said that he was not aware of what might be relevant until he had heard

Mr. Asad’s testimony, and noted that he is not a lawyer. That was the first of many

occasions on which Dr. Pelech made the latter point, sometimes adding a complaint that

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it was “not my job” to be representing Kinexus at the hearing, to which I noted that, as

President of the company, he had in fact given himself that job.

[993] I ordered Kinexus to make full disclosure to Mr. Asad’s counsel of all relevant

and potentially relevant documents by the following Monday. In addition, when Dr.

Pelech admitted that he had not read the Tribunal’s Rules, I directed him to do so.

[994] The following week, it emerged that Kinexus had made partial but not full

disclosure, by disclosing not all relevant and potentially relevant documents, but only

those that it intended to produce through its witnesses. Dr. Pelech then also admitted the

existence of other documents, including e-mails, which, according to him, he had

reviewed one and one-half years before. He said that he had determined at that time that

they were not relevant, but admitted that he had not reviewed them since.

[995] Dr. Pelech also admitted that, notwithstanding my earlier direction, he had not

read the Rules. I again directed him to do so, and, following a further detailed discussion

about the scope of required disclosure, again ordered Kinexus to make full disclosure.

Unfortunately, that was followed by further incidents when it emerged that Kinexus had

continued to fail to make full disclosure. On some of those occasions, Dr. Pelech

complained that Kinexus had already disclosed documents that were helpful to Mr. Asad

and contrary to Kinexus’ position. It seems that Dr. Pelech never fully grasped or

accepted that that is in the very nature of the obligation to make full disclosure.

[996] Even when Kinexus did make disclosure, on some occasions Dr. Pelech delayed

delivery to Mr. Asad’s counsel until long after her office had closed or until a weekend,

even though the circumstances indicate that he could have effected delivery during

working hours. In some cases, that led to delays as Ms. Chin needed time to review the

documents before the hearing could proceed.

[997] On more than one occasion, Dr. Pelech misrepresented directions that Tribunal

members had given during pre-hearing conferences. He also repeatedly misrepresented or

misquoted evidence that had been previously given.

[998] In discussions about procedural issues, Dr. Pelech sometimes blamed his

confusion on the Tribunal, criticizing the Tribunal’s informational material which is

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available in printed and electronic formats, and Tribunal staff for, among other things,

having suggested that he seek legal advice for Kinexus.

[999] Throughout the hearing, the Tribunal made all reasonable efforts to accommodate

Dr. Pelech. Hearing dates and times were scheduled and rescheduled to accommodate his

teaching and business commitments and Ms. Sutter’s child care responsibilities. That was

made more difficult by changes to Dr. Pelech’s schedule and his failure to confirm his

availability on certain dates. On one occasion, Mr. Asad rescheduled an examination in a

course he was taking in order for the hearing to proceed on a particular day. However, Dr.

Pelech later asserted that he was unavailable on that date because of an appointment

about which he had not advised the Tribunal.

[1000] During his testimony, Dr. Pelech said that he was suffering from severe back

pains which prevented him from standing or sitting for anything but a brief period. To

accommodate him, he was permitted for a time to give his evidence while lying on the

floor with a pillow, blanket and heating pad, although this presented obvious difficulties

in observing his demeanour during his testimony. During this time period, he apparently

was able to stand while making a presentation elsewhere in connection with his UBC

duties. A subsequent request for medical confirmation that he was unable to give his

evidence while seated or standing proved to be problematic. Dr. Pelech ultimately

completed his evidence while seated in a fully adjustable chair, and did not exhibit

apparent signs of discomfort.

[1001] I have earlier found that substantial parts of the evidence of Dr. Pelech, Ms.

Stoute, Ms. Sutter and Ms. Karia are not credible, and bear indicia of collusion among

them. All were evasive and argumentative in cross-examination, although Ms. Sutter less

so than the others, and had to be instructed to answer questions directly rather than

engaging in argument and attempts to anticipate the direction of further questions. That

elongated the hearing process. I add that the advice given by Kinexus shortly before the

commencement of the hearing that someone other than an employee had reported Mr.

Asad to the RCMP, which contradicted its previously long-held position, was a red

herring that, by design or otherwise, only served to confuse and delay Mr. Asad and his

counsel in their preparation for the hearing.

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[1002] Dr. Pelech continued the course of improper conduct to the end of the hearing. In

his closing submissions on behalf of Kinexus, he attempted to include assertions of fact

that were never put into evidence, and indeed that were never even mentioned during the

course of the hearing.

D.

Purpose of Costs

[1003] The Tribunal has consistently stated that an award of costs against a party is

punitive, not compensatory. In Kelly v. Insurance Corporation of British Columbia, 2007

BCHRT 382 at paras. 90-91, the Tribunal observed:

Unlike other monetary awards by the Tribunal, the primary purpose of an

award of costs is punitive, not compensatory. In addition, such an award is

meant to act as a deterrent to prevent future participants from committing

similar acts. In Bains v. Metro College Inc. and others (No. 2), 2004

BCHRT 7, the Tribunal stated that an award of costs "should be sufficient

to signal the Tribunal's condemnation of the complainant's conduct and to

serve the punitive purpose of such an award". (at para. 18)

Flowing from this, the primary factor taken into account by the Tribunal in

determining the quantum of a cost award has been the nature and severity

of the behaviour which is being sanctioned, and the impact of that

behaviour on the integrity of the Tribunal's processes….

[1004] Throughout these proceedings, Dr. Pelech frequently complained that he was

disadvantaged because he is not a lawyer. In determining whether to award costs, and in

determining their quantum, the Tribunal may take into account the fact that a party is

self-represented, and therefore may be less familiar than legal counsel with the Tribunal’s

Rules and with what constitutes improper conduct: Leeder v. O'Cana Enterprises Ltd.,

[1999] BCHR No. 1 (QL); Kivritskaia v. Goodman, 2005 BCHRT 487; and Williams v.

Calling Foundation Parkdale Committee (No. 2), 2006 BCHRT 489.

[1005] However, in the present case, Kinexus is not an unsophisticated party. By its own

evidence, it is a substantial high tech company whose staff is accustomed to working with

a sophisticated computer system and internet resources. Indeed, the use of these

electronic tools and the Kinexus website are essential to its business operations. The

collection, organization and analysis of data are at the core of its business. Kinexus also

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submitted, and indeed emphasized, that its management has impressive academic and

business credentials and experience.

[1006] The Tribunal’s website and other internet resources offer readily accessible

sources of information and advice. Many unrepresented parties, including individuals

without the considerable human and technical resources available to Dr. Pelech and

Kinexus, are able to effectively research and apply those sources.

[1007] Despite that, and despite his attendance at three PHCs, Kinexus’ representative,

Dr. Pelech, did not even read the Tribunal’s Rules until the Tribunal specifically directed

him to do so during the hearing. Even then, he failed to read them until he was given a

second direction. Furthermore, his closing arguments and submissions on behalf of

Kinexus do not reflect any substantive research or consideration of cases or other material

which are readily available on the Tribunal’s website.

E.

Decision on Costs

[1008] For the reasons stated above, I find that Kinexus, through the actions of its

management, some of its witnesses who are also employees, and its representative who is

its President, engaged in repeated improper conduct throughout the course of these

proceedings. That conduct had a serious and substantial impact on the manner in which

Mr. Asad and his counsel were able to prepare for and engage in the hearing, on the

length of the hearing, and on the integrity of the Tribunal’s processes pursuant to the

Code. Pursuant to s. 37(4), I therefore award costs against Kinexus.

[1009] Mr. Asad seeks an order for costs in the sum of $5,000. I have considered all of

the circumstances of this case and the Tribunal’s previous decisions in which it awarded

costs: see, for example, Stone, supra; Hendrickson v. Long & McQuade Ltd., [1999]

BCHR No. 4 (QL); Fougere v. Rallis and Kalamata Greek Taverna, 2003 BCHRT 23;

Fougere (No. 2), 2003 BCHRT 43; and Fougere (No. 3), 2003 BCHRT 56; Bains, supra;

and Halliday v. H.P. & A. Sales, 2006 BCHRT 479. The conduct of the representative

and certain witnesses of Kinexus was not as crude, overt and outwardly outrageous as

that of the parties against whom costs were awarded in some other cases. However,

although their acts were more subtle and sophisticated in their design and execution, they

226

served the same purpose; that is, to disrupt a just and orderly legal process, and to

complicate and frustrate the process of determining the truth. I order that Kinexus pay the

sum of $5,000 to Mr. Asad as costs.

XI

CONCLUSION

[1010] I find that, contrary to s. 13(1)(b) of the Code, Kinexus discriminated against Mr.

Asad regarding his employment because of his race, religion, place of origin and political

belief.

[1011] I do not find that, contrary to s. 13(1)(a) of the Code, Kinexus discriminated

against Mr. Asad in the termination of his employment because of his race, religion, place

of origin and political belief.

[1012] I order the following remedies:

1.

2.

Pursuant to s. 37(2)(b) of the Code, I order that, other than the termination

of Mr. Asad’s employment, the conduct complained of is discrimination

contrary to the Code.

Pursuant to s. 37(2)(a), I order Kinexus to cease the contravention of the

Code and to refrain from committing the same or any similar contravention

in the future.

3.

4.

Pursuant to s. 37(2)(d)(ii), I order Kinexus to pay to Mr. Asad the cost of

Dr. Robinson’s medical report in the amount of $599.

Pursuant to s. 37(2)(d)(iii), I order Kinexus to pay to Mr. Asad the amount

of $6,000 for injury to dignity, feelings and self respect.

[1013] I find that Kinexus, through its managers, some of its witnesses who are also

employees, and its representative who is its President, engaged in repeated improper

conduct throughout the course of these proceedings. I order Kinexus to pay to Mr. Asad

the amount of $5,000 for costs.

Abraham R. Okazaki, Tribunal Member

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