Subject: McINTYRE vrs ROGERS - Judgment, long

From: [email-masked] (Mike McIntyre)
Date: 9 Feb 1996 23:38:33 GMT

FEB 06 1996                                        No. C944451
Vancouver Registry

             IN THE SUPREME COURT OF BRITISH COLUMBIA

             REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE LOW      
 
   BETWEEN:                                
                                    
     MICHAEL McINTYRE         PLAINTIFF      
                               
   AND:                           
                               
     ROGERS CABLE T.V. LTD.   DEFENDANT   

Counsel for the plaintiff:       Donald L. Richards
                               
Counsel for the defendant:       Robert W. Grant
                                 Lise J. Kirchner
                               
Place and Date of Hearing:       Vancouver, British Columbia
                                 October 31, November 1-3,
                                 December 18, 20-22, 1995

1  The plaintiff, Mike McIntyre, Claims damages for wrongful
   dismissal on July 12, 1994 from his employment with the
   defendant. He was employed as a production co-ordinator at
   the defendant's community television studio in Richmond,
   B.C. His duties were both technical and artistic and
   included working with numerous volunteers who assisted as
   camera operators, producers, directors, interviewers and
   hosts of taped and live shows. Mr. McIntyre had been
   employed with the defendant since 1978, a total of sixteen
   years. The reason given for his dismissal was his failure to
   provide a written apology to a volunteer named Gloria Chang.
   Ms. Chang alleged on March 4, 1994 that Mr. McIntyre had
   twice racially harassed her and twice sexually harassed her,
   all four incidents having occurred during the previous
   month.

2  The defendant pleads that the dismissal was for cause,
   the sole cause being the failure of Mr. McIntyre to
   apologize to Ms. Chang as demanded by the defendant.

3  Ms. Chang is now 24 years old and pursuing a career in
   journalism. She is doing post-graduate studies in Ontario.
   Mr. McIntyre met her in the summer of 1992 when she spent a
   couple of months doing volunteer work at the studio;
   however, they did not develop a working relationship until
   January, 1994, Ms. Chang having returned to the volunteer
   work in the summer of 1993. Before she began to work with
   Mr. McIntyre she worked with other employees of the
   defendant, particularly Brian Bosworth with whom she
   developed a romantic relationship. Mr. Bosworth was in an
   obvious conflict of interest position, but there is no
   evidence of that operating to Mr. McIntyre's detriment. He
   did not participate in subsequent decisions made by their
   employer.

4  It is convenient to begin the narrative with the events
   immediately preceding Ms. Chang's complaint letter to the
   defendant of March 4, 1994. Mr. McIntyre was responsible for
   a monthly live community affairs program called "On the
   Line". A water quality issue was the subject of the February
   program and Ms. Chang hosted it. She and Mr. McIntyre were
   both interested in doing the March show on the topic of
   multiculturalism. There were said to be racial issues and
   tensions in Richmond which perhaps needed responsible public
   discussion. It was a very sensitive topic and required a
   cautious approach if the result was to be of any value to
   the community.

5  The mayor of Richmond was to be prominent in the March
   show, which also was to include live phone-in questions
   from, and comments by, members of the public. The mayor
   expressed some concern to Mr. McIntyre about Ms. Chang
   hosting the show. He said he had seen the February show and
   had serious doubts about her skills as an interviewer. He
   suggested that Jim Gallacher, a more experienced interviewer
   and host with whom the mayor was familiar, would be more
   suitable or, failing him, somebody else with more experience
   than Ms. Chang.

6  The mayor's concerns presented Mr. McIntyre with a
   dilemma. He know of Ms. Chang's enthusiasm for producing and
   hosting the show, but he tended to agree with the mayor's
   position. Mr. McIntyre has an unusual personality and
   management or leadership of other people is not one of his
   better skills. That has been made plain by Mr. Gallacher in
   his evidence and has been alluded to by others, although it
   is equally fair to say that this criticism and implied
   criticism of Mr. McIntyre was not made unkindly.

7  Mr. McIntyre did not carefully handle the dilemma he
   faced. In particular, his communication skills were lacking.
   Ms. Chang prefers to characterize his approach, both in her
   complaint letter and in her evidence at trial, as being
   untruthful and deceitful, but I have no doubt that she
   deliberately arrived at this condemnation of him for her own
   self-serving purposes. He was not devious, he merely put off
   making necessary decisions. He never acted out of improper
   motives.

8  Mr. McIntyre did arrange for Mr. Gallacher to host the
   March show. I accept his evidence that he still wanted Ms.
   Chang to play a role in production and perhaps as a second
   on-air host. It was a highly sensitive situation and he was
   both indecisive and dilatory in bringing the change to Ms.
   Chang's notice.

9  On March 1st, Mr. McIntyre and Ms. Chang discussed the
   show on the telephone at some length. She was unhappy about
   the slow progress in deciding on the content of the show and
   her production role. The show was scheduled to be aired mid-
   month. Mr. McIntyre told her about his conversation with the
   ;mayor and that he had recruited Mr Gallacher to host the
   show. I accept his evidence that she became very angry and
   hung up the telephone on him.

10 Ms. Chang called Mr. Gallacher, whom she barely knew and
   who had to be reminded that they had met. I accept his
   evidence that she immediately launched into hostile
   questioning of him about what had transpired to result in
   him becoming the host of the March show. Because she had
   called him on his business cellular telephone, he asked her
   to call him at his home that evening. She finished by
   telling Mr. G, forcefully, that Mr. McIntyre hadn't heard
   the end of the matter. On the whole of the evidence, I have
   no doubt that this comment was vengeful toward Mr. McIntyre
   , as was Ms. Chang's subsequent conduct.

11 Ms. Chang also telephoned an assistant to the mayor and
   got confirmation of the mayor's concern about her being the
   host of the March show. This would be a good point to
   observe that Ms. Chang is not shy about dealing with people,
   especially when her own interests are involved. She is
   intelligent, articulate, worldly and very capable of
   managing personal situations. She gave her evidence in full
   flight, always anxious to persuade with a never-ending
   series of loquacious answers. She never missed an
   opportunity to make clear to the court her view of Mr.
   McIntyre's credibility, both in his dealings with her and in
   his evidence before the court. At times she was evasive in
   cross examination, especially when asked to account for a
   comment she made to an employee of the defendant that she
   had been responsible for the firings of two people at
   another place or places she worked.

12 Ms. Chang next complained to Mr. Bosworth about Mr.
   McIntyre's decision with respect to the March show. She made
   no complaint about harassment. Mr. B told her that if she
   felt strongly enough about how she was treated with respect
   to the show she should write a letter of complaint. She
   drafted such a letter. Again, it included no complaint of
   harassment. Mr. B read her computer composition, told her it
   was too emotional and she should redraft it. The first draft
   has not survived but that may be because no hard copy was
   made of it.

13 Ms. Chang took until the following day to complete her
   letter of complaint. It is actually two letters of
   complaint. For reasons not clear from her evidence, she
   prepared a short letter stating that Mr. McIntyre's actions
   were "unethical and unprofessional". She added that, in
   connection with the "on the Line" show, he "withheld vital
   information and overtly lied when I asked him to discuss the
   show". She also complained about comments that made her
   uncomfortable. She attached a second letter with details.
   Both letters were addressed to Mr B who had counselled, if
   not assisted, her in their preparation.

14 In the longer letter, Ms. Chang describes the efforts of
   herself and Mr. McIntyre to put together the show on
   multiculturalism for the mid-February date and their
   decision to postpone the topic to the March show.

15    The letter describes the racial harassment complaints as
   follows:
     
     During the shooting of a story on Chinese books in the
     Richmond library, I noticed that a new volunteer who came
     along to learn how to use the equipment had a car phone.
     I asked him why. Mike said "Don't all Chinese people?" On
     one occasion while riding in the company van, Mike asked
     me if I found all Chinese people to follow very closely
     behind when they drove. I replied that I didn't find this
     to be true. I was uncomfortable with these
     generalizations, but I did not mention this to anyone at
     Rogers.
     
16    The first sexual harassment complaint appears in the
   ensuing paragraph:

     On Tuesday, February 15, 1994, I went ... with Mike ...
     to interview a man with the Department of Fisheries. As
     we were preparing for the shoot, I was asked to pull a
     small microphone through the inside of my clothes so that
     the wires would not show. Mike said, "Lucky Mike." I was
     very uncomfortable with this comment. Lee Nikl from the
     department of fisheries looked surprised and commented,
     "Obviously you are a lot more casual than the commercial
     stations". I was surprised, offended and also
     embarrassed. I said to Mike, "That's sexual harassment."
     Mike did not apologize nor take back his comment. Mike
     smiled and laughed. I again let this go.
     
17 The letter continues with a description by Ms. Chang of
   her efforts to prepare the multiculturalism show prior to
   the airing of the February show. Then she complains about
   the February show being ill-prepared and about a look Mr.
   McIntyre gave her just before she went before the camera:

     Also during this time, I realized I could not trust Mike
     to fully produce the show with adequate preparation as he
     passed on the bulk of producing February's edition of "On
     the Line' to me. I was not very happen with the outcome
     of this show as I did not feel we adequately prepared for
     it. I was also uncomfortable with the way he looked at me
     when I returned to the studio in a skirt and jacket. Mike
     gave me a long look and said that I "looked good." I,
     again let this pass because I felt people would not take
     my concerns seriously and I did not want to jeopardize
     the March show. During and after the show, Mike commended
     me on my performance. He said that I was being much too
     hard on myself.
     
18 The balance of this lengthy letter covers the dealings
   she had with Mr. McIntyre about preparing the March show
   and, in some detail, the discussion they had on March 1st.
   She concludes by writing: "What I find unacceptable is the
   way he deceived and overtly lied to me."

19 I have read this remarkable letter numerous times and am
   unable to discern from it, or from the evidence as a whole,
   how Mr. McIntyre lied to her or deceived her. As I have
   said, he had a dilemma and he was indecisive. The only
   things he might have told her about earlier were his
   discussion with the mayor and his recruiting of Mr
   Gallacher. The only "lie" she can point to in her letter or
   in her evidence is Mr. McIntyre telling her he had not
   thought about the show even though he had lined up Mr.
   Gallacher a week earlier. But even in the text of the
   letter, Mr. McIntyre's comment to her was in the context of
   production of the show, not the hosting of it. In any event,
   he was only putting her off, not lying to her. As I have
   already said, I accept Mr. McIntyre's evidence that he
   continued to want Ms. Chang to have some role in preparing
   and presenting the March show.

20 Ms. Chang gave copies of her letters to Mr. B and he
   delivered one to his superior, Lesley Wood Bernbaum. Ms.
   Chang put a copy of each letter on Mr. McIntyre's desk in
   the studio. He saw them when he went there about 3:00 a.m.
   on March 5th. (The studio is run informally and even paid
   employees are permitted to keep flexible hours.)

21 On March 8th, Mr. McIntyre met with the program and
   community relations manager for the Richmond studio, Lesley
   Wood Bernbaum ( who graciously consented to being referred
   to by the surname "Wood" as used by most of the other
   witnesses). They discussed the complaint but not,
   apparently, in depth. They looked at the unedited tape of
   the interview of Mr. Nikl which followed the "Lucky Mike"
   incident. Only the edited tape is available for viewing by
   the court. The unedited tape showing Ms. Chang's demeanour
   between the time of the comment and the commencement of the
   interview has not survived. Ms. Wood agreed with Mr.
   McIntyre's evidence that on the raw footage prior to the
   interview Ms. Chang appeared to be relaxed and comfortable.

22 Mr. McIntyre showed Ms Wood a letter to Ms. Chang that he
   had drafted. Although she made a negative comment about one
   portion of it, she did not tell him not to send the letter
   to Ms. Chang.

23 This two-page letter is dated March 8th. On the first
   page, to which the defendant takes no objection, Mr.
   McIntyre points out to Ms. Chang his concern about the topic
   of the March show and his acceptance of both the mayor's
   concerns and the necessity of the mayor's close involvement.
   He also quotes from an editorial, previously discussed by
   him and Ms. Chang, on the topic of racism in Richmond. The
   editorial challenges the mayor to resort to the media and to
   "soothe the savage beast".

24 The second page of the letter, which the defendant's
   human resource officers later criticized as being
   "threatening" of Ms. Chang, reads:

     Your pathetic attempt to summon the demons of racism and
     sexism to further your agenda is despicable. What a waste
     of journalistic training. Thank heavens there were
     witnesses. If I stated that the Chinese race was one of
     the most discriatory (sic) on the face of the earth would
     that upset you? Why then, pray tell can our Lieutenant-
     governer (sic) said it, and it didn't upset you in the
     least? (see MACLEAN'S article we discussed) - May I
     suggest that it wasn't convenient to be upset in this
     situation?
     
     Brians (sic) efforts at fanning, instead of containing
     this conflict during the labor dispute are reprehensible.
     
     And now to "SOOTHE THE SAVAGE BEAST", as the editorial
     goes - Judge not because you shall be judged by your very
     judgement - for the pit that has been dug shall [be]
     filled with those that have dug it.
     
   ("Brian" refers to Brian Bosworth and the "labour dispute"
   is a reference to an extended strike or lockout involving
   the defendant and its unionized employees, which did not
   include Mr. McIntyre.)

25 Attached to the letter are photocopies of the editorial
   and the MacLean's magazine article. In the article, the
   highly-respected David Lam, then (February, 1994)
   lieutenant-governor of this province, indeed is quoted as
   saying "The Chinese race is one of the most discriminatory
   in the world ..."; although in the context of the short
   article that clearly is not intended to be a controversial
   statement.

26 Without being specific, defence witnesses maintained that
   they viewed this letter as being threatening. I am unable to
   see how it could be so viewed by Ms. Chang or by anybody
   else. Threatening what? It has to be remembered that Ms.
   Chang's letters to the defendant threatened Mr. McIntyre's
   reputation and his livelihood in a sharp and forceful way.
   His response is mild in comparison and, unlike the more
   serious allegations in Ms. Chang's complaint, it is factual.
   Mr. McIntyre's letter may have a sophomoric style, but in it
   he does not threaten Ms. Chang in any way.

27 Ms. Wood met also with Ms. Chang on March 8th. She later
   reported to Linda Pavan at the human resources office of the
   defendant in Burnaby that she was unable to discern whether
   Ms. Chang's emotionalism stemmed from being removed from the
   March show or from the harassment she alleged. Having heard
   Ms. Chang's evidence, I have no hesitation in concluding
   that her complaint letter stems entirely from her removal as
   host of the March show. Mr. Bosworth testified that she was
   very upset about being removed as host of the show and her
   objective, although not Mr. Bosworth's, was to do the show
   with a co-ordinator other than Mr. McIntyre I reject Ms.
   Chang's evidence to the contrary. While she testified, I did
   not find her emotionalism to be genuine. From the beginning,
   she was motivate by a selfish ambition to be reinstated as
   host of the show and, failing that, a vengeful desire to
   cause Mr. McIntyre harm. I do not accept any of her evidence
   to the contrary. Where her evidence is in conflict with that
   of any other witness in this case, I reject her evidence.

28 On March 9th, Ms. Wood again met with Mr. McIntyre After
   taking notes of his views of Ms. Chang's complaint and
   conduct, she told him to take a few days off work. In the
   meantime, she reported the matter to the human resources
   office of the defendant. It came to the attention of Carol
   Gibson who is a vice-president of the company and in charge
   of that department. She assigned Ms. Pavan to investigate.
   Ms. Pavan had telephone conversations with Ms. Chang, Mr.
   Nikl and Christian Yau, a volunteer cameraman and the only
   independent witness to all four incidents.

29 It must be emphasized that the defendant made no effort
   to justify Ms. Chang's attack on Mr. McIntyre's honesty and
   integrity, either in dealing with the complaint internally
   or in these proceedings. I have already indicated that her
   complaint about his handling of the March show was
   unjustified. Her assertions that he lied to her and deceived
   her were simply not true. However, the defendant made no
   attempt to assess the truth of those assertions or to
   consider them when assessing the genuineness of, or the
   motivation for the harassment complaints. The defendant's
   investigation was seriously flawed in this respect.

30 On March 15th, Mr. McIntyre met with Ms. Pavan and Ms.
   Wood. Before that meeting, Ms. Pavan, having consulted with
   Ms. Gibson about what she had learned from Ms. Chang, Mr.
   Nikl and Mr. Yau, drafted a discipline letter directed to
   Mr. McIntyre. It seems that this was done at Ms. Gibson's
   direction and that she was involved in the letter's
   preparation. There is some dispute as to when Mr. McIntyre
   received the letter. He says it was at the meeting. Ms.
   Pavan and Ms Wood say it was delivered to him later. It
   matters not which recollection is correct. It is clear that
   the letter was all but complete before the meeting. One
   wonders about the purpose of the meeting. Ms. Pavan made
   notes before the meeting listing the disciplinary sanctions
   to be imposed. She testified that these were notes to
   herself if the meeting with Mr. McIntyre went "as we
   expected it would". I conclude that she did not approach the
   meeting with an open mind. It was highly improbable that Mr.
   McIntyre would be able to persuade her at the meeting that
   he had little or nothing to answer for or that Ms. Chang's
   credibility should be looked at in light of her ambition to
   be host of the March show. All his efforts to communicate
   his concerns about Ms. Chang's motivation and credibility
   were to no avail. His words fell on deaf ears because Ms.
   Gibson and Ms. Pavan, for reasons both unexplained and
   inexplicable, divorced the two issues and conducted their
   investigation of the harassment complaint with no regard to
   the far more serious complaint relating to Mr. McIntyre's
   preparation for the March show.

31 The discipline letter is dated March 15th. It does not
   mention the incident in which Mr. McIntyre told Ms. Chang
   that she "looked good". There is good reason for that
   exclusion. The comment was made just before Ms. Chang was to
   go on air, live, as host of the February show. It was
   nothing more than a normal, encouraging comment by a floor
   director (in which capacity Mr. McIntyre was then acting) to
   steady the nerves of those about to go before the camera.
   Nothing sexual was intended. Nor could any reasonable person
   so interpret the observation, even with Ms. Chang's attempts
   in evidence to make something of it.

32 The discipline letter states, in part: "The results of
   the investigation substantiate Ms. Chang's allegations that
   you made comments which were inexcusable, demeaning and
   discriminatory and which you knew, or ought to have known,
   would be offensive to Ms. Chang." It should be interjected
   here that the defendant does not now contend that Mr.
   McIntyre said anything to Ms. Chang or in her presence which
   he knew would be offensive to her. The only contention is
   that he ought to have known that his remarks would be
   offensive to her.

33 The letter states that Mr. McIntyre's behaviour
   constituted "harassment or discrimination". There is an
   added judgement that the letter he sent to Ms. Chang was
   discriminatory. I have already dealt with that letter. The
   defendant does not seem to now assert that Mr. McIntyre's
   letter was discriminatory and I am not persuaded that
   anybody could reasonably see it to be so.

34 The defendant suspended Mr. McIntyre from March 15th to
   March 21st and required him to prepare an "acceptable letter
   of apology to Ms. Chang". It also required him to attend a
   discrimination and harassment course at the Richmond studio.
   That course previously had been scheduled for all employees.
   Mr. McIntyre did not attend the course because of subsequent
   events, but he did receive substitute individual counselling
   and the defendant does not complain of any failure on his
   part with respect to this aspect of the discipline imposed.

35 Mr. McIntyre had an inconsequential meeting with Ms. Wood
   on March 22nd. On March 23rd they met again. He gave her a
   simple letter of apology addressed to Ms. Chang. It was
   acceptable to Ms. Gibson. It was never given to Ms. Chang.
   Had the defendant simply given it to her, apart from Mr.
   McIntyre's ongoing belief that he was not justly treated,
   that would have been the end of the matter.

36 I find that Mr. McIntyre's letter of apology was received
   by the defendant, was acceptable to the defendant and was in
   compliance with the discipline imposed by the defendant on
   March 15th. Intervening events did not change the situation.
   The defendant always had the apology letter. Mr. McIntyre
   never withdrew it. On this basis alone, his dismissal on
   July 12th for failing to provide an apology letter was
   wrongful.

37 The fly in the ointment was a letter Mr. McIntyre gave to
   Ms. Wood at the same time he gave her the apology letter. It
   has come to be known as the "Dear Lesley" letter. Mr.
   McIntyre says he gave it to her only because he believed she
   rejected his apology letter. He felt offended by the entire
   business and was agitated. It is apparent to me, and I have
   no doubt that it was apparent to Ms. Wood and later Ms.
   Gibson, that the Dear Lesley letter was nothing more than
   Mr. McIntyre letting off steam, as he told them and as he
   told the court.

     The letter reads:

     Dear Lesley;

     For your information;

     The present situation has been a stimulis (sic) for much
     discussion amount (sic) friends, volunteers, and
     cyberspace users. I even had an expression of interest
     from on (sic) of those tackey (sic) American type tabloid
     shows. The origional (sic) footage showing a very
     comfortable Gloria is available. It's a very hot topic
     now.

     I shall continue to make use of the community channel for
     the benefit of the City of Richmond wether (sic) as a
     Rogers employee or not. As you know I have just completed
     the sale of our VSE company to off shore  interests so
     coin is of no consideration.

     Unless this episode is brought to an honourable
     conclusion I shall have no alternative but to sink the
     Rogers, McLean merger. How, why by magic of course. My
     preference however would be to use my talents with Rogers
     in helping steer thru the rough waters ahead.

39 I do not accept any suggestion in the defence evidence
   that this curious, perhaps juvenile, letter was of any
   reasonable concern to the defendant. It did not provoke any
   further discipline of Mr. McIntyre. The defendant did not
   fire him because of it. Ms. Gibson's response to it was to
   tell Ms Wood to ask Mr. McIntyre what he meant by the
   letter. As a result, all three of them had a one our meeting
   on March 30th.

40 The evidence about what took place at that meeting is not
   at all clear. But I got the distinct impression from Ms.
   Gibson's evidence that she viewed the Dear Lesley letter and
   Mr. McIntyre's comments at the meeting as being a lack of
   acceptance that he had harassed Ms. Chang or made racially
   discriminatory remarks in her presence. She seemed to be
   saying that the apology letter was acceptable by itself, but
   that the Dear Lesley letter and Mr. McIntyre's insistence
   that the Chang complaint was bogus somehow made it
   unacceptable. She insisted that she did not require the
   apology letter to come with Mr. McIntyre's agreement that he
   had discriminated against Ms. Chang. However, the
   defendant's conduct suggests the opposite. The defendant
   offers no sensible reason for continuing the dialogue after
   receipt of the acceptable letter of apology. Counsel for the
   defendant agrees that the defendant could only discipline
   Mr. McIntyre, not require him to accept the judgement
   rendered. He had only to comply with the discipline meted
   out and that is what he did. Eliminating from his mind a
   sense of being the victim of injustice could not be a
   condition of the defendant's acceptance of the apology
   letter or of Mr. McIntyre's continued employment.

41 Following the March 30th meeting, Mr. McIntyre did
   prepare and submit a second apology letter, but its
   elliptical and unfocused wording was not acceptable. What
   followed was a standoff, with more meetings and the
   defendant not allowing Mr. McIntyre to return to work and
   sending him various demand letters relating to an apology
   (which, as I have said, they already had). This led to a
   termination letter dated July 12th.

42 The termination letter, signed by Ms. Gibson, states:
   "Since you have not submitted an appropriate letter, your
   employment is terminated as of today". No other reason for
   the firing is given in the letter or argued in these
   proceedings.

43 In reasons given April 24, 1995, in an arbitration in
   Ontario under The Crown Employees Collective Bargaining Act,
   The three-member Grievance Settlement Board set out some
   useful guidelines for investigation of complaints like those
   made in the present case. I quote in part from pp. 171-172
   of this lengthy decision:

     Investigators must not just conduct fair investigations,
     they must conduct careful ones. ... witness statements
     were not taken, and a great many of the interviews were
     done on the telephone. One of the hallmarks of a careful
     investigation would be an investigatory file that
     documents each and every interview held; that contains,
     whenever possible, signed witness statements; and that
     includes a log of telephone calls made and received, as
     well as duplicate copies of receipts for any documents or
     other exhibits obtained. Not only would the discipline of
     a careful approach lead to better investigations, but it
     would also, where the sufficiency of the investigation
     and report was attacked after the fact, provide a sound
     evidentiary basis on which that issue could be
     determined.

     Finally, on this point, it seems to us that neophyte
     investigators should not be sent out unsupervised to
     conduct an investigation. Even a modest apprenticeship
     program would have prevented some of the investigatory
     abuses documented in this award. The employer had a duty
     to appoint a properly trained and qualified individual.
     Quite clearly, this obligation was not met.

44 These observations do not have the force of the law, but
   they are helpful in defining the inadequacy and the inherent
   unfairness of the defendant's investigation and
   determination of the Chang complaints. Those inadequacies
   are:

   (1)       As already stated, separating the harassment
             complaints and the principal complaint for all
             purposes;

   (2)       Conducting only telephone interviews of important
             witnesses, Mr. Nikl and Mr. Yau;

   (3)       Taking no witness statements in writing, including
             from Mr. McIntyre and Ms. Chang;

   (4)       Conducting no interview of Mr. Gallacher;

   (5)       Making no enquiry as to the working relationship
             between Mr. McIntyre and Ms. Chang generally;

   (6)       Maintaining a poor record of the investigation;

   (7)       Deciding in advance of the meeting with Mr. McIntyre
             on March 15th what the discipline would be;

   (8)       Not questioning Ms. Chang's credibility at any time
             despite the obvious concern that she might be making
             spurious allegations to further her own ambition and
             not addressing Mr. McIntyre's repeated assertions
             that she was doing just that;

   (9)       Failing to establish that there was a pattern of
             harassment to justify discipline as extreme as that
             meted out; and 

   (10)      Failing to have Ms. Gibson, the final judge or Mr.
             McIntyre's conduct, interview any of the witnesses,
             and not providing her with a record of witness
             statements sufficient to permit her to make a fair
             and thorough decision in the absence of personal
             interviews by her of the witnesses.

45 It remains for the court to determine whether Mr.
   McIntyre was guilty of racial or sexual harassment as
   alleged by Ms. Chang; if so, to what extent; and, finally,
   whether the discipline imposed was proportional.

46 I am not going to review extensively the evidence about
   the three remaining incidents giving rise to the harassment
   complaints. The two "racial" incidents occurred in a van
   while Mr. McIntyre, Ms. Chang and Mr. Yau were driving to
   the Richmond Public Library to prepare a story about
   availability of Chinese language books in the library. Over
   a period of time prior to this, Mr. McIntyre and Ms. Chang
   had discussed racial issues preliminary to production of the
   show on that topic, including the editorial and the
   MacLean's article referred to above. It is in this context
   that the remarks Ms. Chang complains of must be judged.

47 I prefer Mr. Yau's evidence on these events to that of
   Ms. Chang. I regard him as an independent witness. He does
   not know Mr. McIntyre well and he was an impressive witness
   who demonstrated objectivity. He testified that in the van
   on the way to the library his cellular telephone rang an Mr.
   McIntyre asked "Don't all Chinese people have cellular
   phones?" and he answered "No, I actually have a lot of
   Caucasian friends who have phones". Mr. Yau, who is a young
   man of Chinese-Canadian origin, took the question in a
   friendly and joking way. He said that Ms. Chang did not seem
   at all phased by the exchange and she made no comment.

48 On the same trip, Mr. McIntyre, who was driving, asked
   Mr. Yau if all Chinese people drove too close to preceding
   vehicles. Apparently he saw a car tailgating the van or some
   other vehicle. Mr. Yau replied that it wasn't so and that he
   had a Caucasian friend who drove really close to other
   vehicles and "who scares the pants off of me". Again, Mr.
   Yau testified that this exchange was friendly "as two people
   discussing different things". Ms. Chang made no comment and
   did not appear concerned about what was said by Mr.
   McIntyre.

49 The evidence does not support the conclusion of racial
   harassment or discrimination reached by Ms. Gibson and Ms.
   Pavan. The exchanges between Mr. McIntyre and Mr. Yau were
   light-hearted and in the context of ongoing discussion of
   racial issues. I do not believe that they made Ms. Chang
   feel uncomfortable as she later complained and as she
   testified.

50 That leaves the "Lucky Mike" incident referred to in the
   detailed complaint letter. Mr. McIntyreikl testified for the
   defence that Ms. Chang seemed upset by the remark. Mr. Yau
   agreed that, in response to the remark, Ms. Chang said
   "That's sexual harassment, Mike", but in a casual, joking
   way. I prefer Mr. Yau's evidence. I think that Mr. Nickl was
   making more of the incident that it merited. His evidence
   was quite difference from that of the other three who were
   present. It was also different from what he told Ms. Pavan
   over the telephone, according to her notes. His evidence is
   not reliable.

51 Ms. Chang claims that she saw the comment by Mr. McIntyre
   to be a reference to himself, his nickname being Mike, not
   to the microphone which she passed under her upper clothing.
   She went so far as to claim in her evidence that the use of
   the word "lucky" meant to her that he was saying that he
   might get "lucky" with her in a sexual way. I do not believe
   this evidence. It approaches fancy.

52 I accept Mr. McIntyre's evidence that he does not know
   why he made the comment. There is evidence from him and
   others that he makes a point of trying to relax people just
   before they go on camera. He testified that he often used
   the same phrase with children before they went on camera,
   although he had not dealt with children in that respect for
   some time. There is no reason to believe that he made the
   remark other than impulsively and with reference to the
   microphone, not with reference to himself. I do not accept
   Ms. Chang's evidence that the incident made her feel
   uncomfortable on an ongoing basis. It was not the beginning,
   the middle or the end of a pattern of sexual harassment. It
   was an isolated incident that was transitory and relatively
   trivial. It could not form the basis of a conclusion of
   sexual harassment attracting discipline by an employer.

53 I conclude that Mr. McIntyre was improperly disciplined
   by the defendant. It follows that he was also wrongfully
   dismissed from his employment.

54 If discipline was necessary for the "Lucky Mike" comment,
   anything more than a warning letter was disproportionate.

55 Mr. McIntyre was entitled to reasonable notice of
   termination of his employment. His counsel argues that,
   having regard to all the factors set out in the authorities
   and notice periods in similar cases, the range is 16 to 24
   months. Counsel for the defendant argues that 15 to 16
   months is appropriate.

56 Mr. McIntyre was a long-time employee earning an annual
   salary of $41,125. I am unable to locate any evidence of his
   age, but I assume at termination he was in he early forties.
   His job as a production co-ordinator was fairly well-paying
   but it did not involve an unusual amount of responsibility.
   However, it did require creativity, community interest and
   co-ordination of the efforts of a variety of people. I think
   16 months is a suitable notice period.

57 There is no suggestion of any failure on the part of Mr.
   McIntyre to mitigate his damages. He was unable to find
   similar employment and I calculate damages at $54,833.33.

58 There is some evidence of additional employee benefits,
   but I can find no note of submissions about them. If there
   is a claim for additional damages arising from loss of such
   benefits, I will hear further argument, failing agreement
   between the parties.

59 Although the investigation of the Chang complaint was
   badly flawed, the evidence falls short of supporting the
   conclusion that the defendant acted toward the plaintiff
   with malice, vindictiveness or bad faith as required to
   prove aggravated or punitive damages: see Vorwis v. I.C.B.C.
   (1989) 58 D.L.R. (4th) 193 (S.C.C.). I have no doubt that
   the defendant's personnel officers were well-intentioned in
   their handling of the difficult situation they faced upon
   receipt of the Chang complaint.

60 Mr. McIntyre will recover costs.

Vancouver, British Columbia
February 6th, 1996