Wan v. Greygo Gardens
1982-03-08
ONTARIO
CHRR Doc. 82-040
Chia-Su Wan and Lee Min Chen and Shun-Shun Soong Complainants
Greygo Gardens and Frank Peter Respondents
Place: Windsor, Ontario
Before: Ontario Board of Inquiry, Robert W. Kerr
Appearances by: Leith Hunter and Shelley Brown, Counsel for the Ontario Human Rights Commission Chia-Su Wan, Lee Min Chen, Shun Shun Soong, on their own behalves Frank Peter, on his own behalf
RACE, COLOUR AND PLACE OF ORIGIN — commercial enterprise service denied — PUBLIC SERVICES AND FACILITIES — commercial enterprise service denied — REMEDIES — letter of undertaking to abide by human rights legislation — apology — EVIDENCE — similar fact evidence
Summary: The Board of Inquiry rules that Frank Peter discriminated against the complainants when he refused them access to his vegetable gardens where members of the public are invited to pick their own vegetables. The Board finds that one of the grounds for refusing the complainants access was their race and consequently a violation of the Code occurred.
The Board awards each complainant two hundred dollars in damages and requires the respondent to provide apologies and an undertaking to the Ontario Human Rights Commission that he will comply with the law in future.
Preliminary Matters
1At the outset of the hearing, counsel for the Commission informed me that it did not intend to present any evidence or claim any remedy against Mr. John Peter Sr. who was named as a Respondent on the complaint forms in these matters, and that Greygo Gardens, also named as a Respondent, was merely a business name and did not exist as a legal entity. Thus, it was the intention of the Commission to proceed only against Mr. Frank Peter. Mr. Frank Peter informed me that Mr. John Peter Sr. was deceased and he objected to proceeding in the latter's absence. In light of the fact that no notice of the hearing had been directed to the estate of Mr. John Peter Sr., and with the consent of counsel for the Commission and of the Complainants, I ordered, pursuant to section 23(1) of The Statutory Powers Procedure Act, R.S.O. 1980, c. 484, that the proceedings be amended by removing Mr. John Peter Sr. as a party. While Mr. Frank Peter objected to this, I can see no legal ground for this objection since he was named as a party and notified of the proceedings. This is especially the case since it appears that all of the allegations related to the conduct of Mr. Frank Peter. The name of Mr. John Peter Sr. was only added to the complaints initially because he was the registered owner of the property on which Mr. Frank Peter conducts his business. In light of this amendment, Mr. Frank Peter will be hereinafter referred to as the Respondent.
2Counsel for the Commission moved to join the three complaints as a single matter, considering in particular the convenience in conducting the hearing since much of the evidence would be common to all of the complaints. The Respondent objected on the basis that, since he had been charged with three offences, he had a right to three hearings. On the face of the complaints, it appeared that two separate incidents were involved – one on August 26th, 1978 giving rise to the complaint of Mr. Wan, and the other on August 27, 1978, giving rise to the complaints of Mrs. Chen and Mrs. Soong. In view of this I ruled against joining the complaint of Mr. Wan with the other two. However, to avoid undue repetition at the hearing I ruled that evidence received in relation to each complaint would be considered part of the record, so far as it was relevant, for the purposes of the other complaints. At the Respondent's request, I ruled in favour of hearing Mr. Wan's complaint first since it arose first in time. Having reserved a decision on the joinder of the complaints of Mrs. Chen and Mrs. Soong until the commencement of the hearing with respect thereto, I subsequently ruled in favour of joining the two complaints since it was clear that they arose out of a single set of facts.
3As it turned out, the hearing proceeded much as it would have had all three matters been joined. As will be explained below, the Respondent did not attend the afternoon session of the first day of the hearing. Since I had undertaken not to close the hearing until he had an opportunity to give evidence the next day when he intended to be present, it was not possible to conclude the evidence on any of the complaints the first day. Upon the conclusion of the Commission's evidence on Mr. Wan's complaint, it was adjourned to the next morning, and I proceeded to hear the Commission's evidence on the other two complaints. This evidence was also concluded on the first day, leaving only the Respondent's evidence to be heard the second day. Moreover, when the Respondent gave evidence, it was agreed by both counsel for the Commission and the Respondent that he would give all his evidence at once and then be subjected to a single cross-examination with respect to all three complaints.
4At noon of the first day of the hearing the Respondent requested an adjournment until the next day in order that he could attend to the unloading of a truck. Apart from the fact that this did not constitute any legal justification for an adjournment, the Respondent and the other parties received several weeks notice of the hearing in which arrangements could have been made to free themselves from such matters in order to attend the hearing. Moreover, other parties have similar problems with respect to their attendance and would suffer unjustifiable inconvenience if an adjournment were granted for such a purpose at the request of one party. I denied the request for an adjournment, but did adjourn for 1 ½ hours to give the Respondent as reasonable an opportunity to make other arrangements as was possible at this stage. I also undertook to adjourn the hearing until the next morning at the close of the Commission's evidence in order to give the Respondent an opportunity to present his own evidence and I advised him of his right to have an agent present to represent him if he wished.
Application of the Code
5It appeared from the evidence that the Respondent claims to reserve a rather extensive right to exclude persons who seek to use the "pick-your-own" vegetable farm which is operated by him under the name of Greygo Gardens. Thus, some question arises as to whether he is engaged in providing a service or facility "to which the public is customarily admitted" with[in] the meaning of section 2(1) of the Ontario Human Rights Code, R.S.O. 1980, c. 340. Some credence is given to this argument by the decisions of the Divisional Court in Re Cummings and Ontario Minor Hockey Association (1978), 1978 CanLII 1551 (ON HCJ), 21 O.R. (2d) 389 and Re Ontario Rural Softball Association and Bannerman (1978), 1978 CanLII 1299 (ON HCJ), 21 O.R. (2d) 395, that sports teams which limit themselves to members of one sex are, by that reason, not open to the public. In effect, the Divisional Court's reasoning would permit the grossest violations of the intent of The Ontario Human Rights Code for it would allow a place to maintain a private status outside the provisions of the Code simply by maintaining an admission policy which is blatantly discriminatory. However, the decision of the Court [of] Appeal in the latter case, Re Ontario Human Rights Commission and Ontario Rural Softball Association (1979), 1979 CanLII 2094 (ON CA), 26 O.R. (2d) 134, has, in my view, laid this argument to rest. While the exact basis of the majority decision in the Court of Appeal is unclear, no one on the Court was prepared to adopt the reasoning of the Divisional Court.
6In any event, whatever restrictions the Respondent may impose, he does invite the general public to use the farm for a commercial purpose, which is the essence of what section 2(1) is concerned with. Any restrictions are mere exceptions to this general policy. It cannot be said that he invites only individuals specifically selected by him such as would be typical of a private place.
Similar Fact Evidence
7As between the complaint of Mr. Wan on the one hand and those of Mrs. Chen and Mrs. Soong on the other hand, the question arises whether the evidence supporting an inference of discrimination in one case may be used to support an inference in the other case. This question does not arise as between the complaints of Mrs. Chen and Mrs. Soong because the facts are the very same facts, not merely similar facts.
8In my view, the correct approach to similar fact evidence is that outlined by D.K. Piragoff's Similar Fact Evidence (Toronto: Carswell's, 1981). As with all evidence, the primary test of admissibility is one of relevance, but similar fact evidence creates a danger of unduly prejudicing the mind of the fact-finder. In light of this, similar fact evidence should be excluded where the risk of undue prejudice outweighs the real probative value of the evidence as assessed in terms of its relevancy.
9Insofar as the evidence of the second incident might be used as probative in Mr. Wan's case, the main relevance of this evidence would be that it may show a proclivity on the Respondent's part to engage in some form of discrimination. Where the relevance of evidence is to show proclivity to engage in certain activity, it is generally recognized that the prejudicial effect greatly outweighs the real probative value. Indeed in the courts this realization has given rise to what might be called a "rule of evidence" excluding such similar fact evidence. While I am not bound by such rules, the policy behind the rule is sound and I would decline to accept the evidence of the second incident for this purpose in relation to Mr. Wan's complaint.
10The main other possible relevancy of this similar fact evidence would be to rebut some defence such as misunderstanding by reason of the unlikelihood that such circumstances could have happened repeatedly if it were a mere case of misunderstanding. While such a defence was raised in this case, and therefore the similar fact evidence would be relevant, care must be used in accepting similar fact evidence for this purpose to ensure that there is not some other explanation for the similarity in the facts. Particular concern is shown in cases where the parties who allege the similar facts have discussed their respective situations prior to giving evidence.
11Since it did appear that Mr. Wan's wife and Mrs. Soong had conversed about the two incidents shortly after they occurred, I held a voir dire in an effort to determine whether I should allow the use of the evidence from one incident as similar fact evidence in relation to the other incident. I was satisfied on the basis of the voir dire that there was no attempt by the witnesses involved to modify their evidence as a result of such discussions.
12However, in. my view, the concern about similar fact evidence is not merely one of avoiding deliberate collusion. Rather the concern is that the similarities in the evidence, on the basis of which a probability inference is to be drawn, should be free of a potential influence which might alter the probabilities. Because of the prejudicial impact of similar fact evidence, one should be cautious, rather than liberal, in its use. Because Mrs. Soong did discuss the complaint with Mr. Wan's wife, there is some risk that her evidence was subconsciously influenced, in spite of the fact that there was no intention to collude. Consequently, I decline to use her evidence as similar fact evidence in relation to Mr. Wan's complaint.
13This concern would not directly affect the use of Mrs. Chen's evidence in relation to Mr. Wan's complaint. Although Mrs. Chen was not called during the voir dire, there was no evidence that she had discussed the events with anyone involved in Mr. Wan's case. However, because the events involved in Mrs. Chen's complaint were the same as those involved in Mrs. Soong's complaint, it would be extremely difficult for the same tribunal, having heard all of the evidence, to make a decision giving weight to Mrs. Chen's evidence as similar fact evidence without being influenced by Mrs. Soong's evidence. I think it is possible for a tribunal, at least if it has the benefit of legal training, to hear the evidence with respect to both incidents and yet properly instruct itself to disregard the evidence relating specifically to one incident for purposes of making a decision on the other incident. However, I do not think it is possible for a tribunal, even with legal training, to draw the same distinction between the impressions created upon it by two witnesses recounting the same set of events. In view of the prejudicial nature of similar fact evidence, I conclude that in these circumstances I should not use the evidence of Mrs. Chen as similar fact evidence in relation to Mr. Wan's complaint anymore than I should so use Mrs. Soong's evidence.
14Since the discussion of the events took place between Mrs. Wan and Mrs. Soong, and did not involve Mr. Wan or his daughter, who testified at the hearing, I have no reason to fear that the evidence of the Wans may have been influenced by the conversation with Mrs. Soong. In any event, as will appear more fully in my discussion of the complaints of Mrs. Soong and Mrs. Chen, the evidence of the Saturday incident is relevant to the Sunday incident in a very direct and forceful manner. For this reason, I do accept the evidence of Mr. Wan's complaint as part of the record for purposes of the complaints of Mrs. Chen and Mrs. Soong.
The Complaint of Mr. Wan
15The principle facts in the complaint of Mr. Wan are not in serious dispute. On Saturday, August 26, 1978 Mr. Wan, his wife, his two children, his sister and her husband, and two university students went for a drive in a station wagon owned by Mr. Wan. All members of the Wan group were of Chinese origin and had come to Canada at various times during the 1970s. Mr. Wan's brother-in-law is a Mr. Chen, but is unrelated to the Mrs. Chen who was involved in the other incident.
16The Wan group was attracted to Greygo Gardens by roadside signs advertising it as a place where customers could pick their own vegetables. Greygo Gardens was operated then, as now, by the Respondent.
17The Wan group parked in a lot provided for customers of Greygo Gardens and walked over to a vegetable stand adjacent to the parking lot, which was attended by an elderly couple. Several members of the group obtained baskets from one of the attendants for the purpose of picking their own vegetables. They were advised by the attendant to wait in the parking lot for the owner who would drive them into the fields.
18The Respondent subsequently appeared on the scene and told the group to leave. Mr. Wan asked why they were being told to leave and was given to understand that the Respondent had experienced difficulty previously with another group. According to the Respondent's testimony, he was referring to large groups in general, but the impression received by Mr. Wan and his daughter was that the Respondent had mistaken them for another specific group which had damaged his property. Since members of the Wan group may not have been fully fluent in the English language at the time, it is quite possible that this difference of interpretation was an honest misunderstanding.
19The Respondent's instructions to leave were given in a rather loud voice which apparently became louder and angry when Mr. Wan insisted on an explanation. After a brief exchange in which Mr. Wan asked for an explanation, but was not satisfied by the explanation given by the Respondent, Mr. Wan stated to the Respondent that he thought discrimination was involved. At about this stage, Mr. Wan also threw the vegetable basket he had been holding to the ground in the vicinity of the Respondent. The Wan party then got into their vehicle and left.
20Mr. Wan's view of the incident was that his group had been mistaken for another group on account of their race and had been denied access to Greygo Gardens because of this. The Respondent's position was that he had decided the Wan group were not desirable customers because of two factors which he uses subjectively to decide whether to admit particular people. First, the group was a large one which arrived in a single vehicle suggesting that they were merely on a pleasure outing and would not treat the property with the desired respect. Secondly, the group had started to walk towards the fields after being told to wait for the Respondent in the parking lot, suggesting that they did not obey instructions and thus might act in a disorderly fashion in the fields. A third factor was also mentioned, although the Respondent indicated that the two factors already mentioned were enough to persuade him to exclude the Wan party. This factor was that the Wan group did not know what vegetables they wanted to pick, suggesting again that they were not the serious, knowledgeable customers that he desired in his fields.
21With respect to the second factor mentioned, there is a dispute of fact. The Wans testified that they had remained in the parking lot as instructed, contrary to the Respondent's testimony that they were moving toward the fields. In light of the size of the Wan group, I think it is quite probable that some members of the group may have started to move in the direction of the fields, although I do not doubt the testimony of the Wans that their family had remained in the parking lot. While I think that the interpretation placed by the Respondent upon any such actions was quite unreasonable, particularly since it does not appear that there was any effort to notify customers of the importance of following instructions, I would find in his favour that as a fact some members of the Wan group had moved out of the parking lot toward the fields.
22On the other hand, there is no evidence that the Respondent did in fact attempt to ascertain whether the Wan group knew what vegetables they wanted to pick before he asked them to leave. While it does appear that they would have responded in the negative to a question whether they knew what they wanted to pick, if the question was not asked it cannot have been a factor in the decision to exclude them. I find that the decision to exclude was made without this question being asked and therefore this was not a part of the reason for excluding them. Since the Respondent indicated that he really based his decision on the other two factors in any event, this is not a critical finding. While it might reflect adversely on the Respondent's credibility, I am prepared to accept that he raised this third factor as another example of the bases on which he makes decisions and did not mean to infer that it was an additional factor in this actual incident.
23I am satisfied with the Respondent's evidence that the size of the group and the fact that some members of it had wandered out of the parking lot were factors influencing his decision to exclude the Wan group from Greygo Gardens. This does not dispose of the matter, however. Under the Ontario Human Rights Code, a violation is committed if a factor such as race or place of origin is one factor influencing the Respondent's actions. It is not necessary that this be the only factor; it is sufficient if it is one of several factors. This principle is now well-established and is based on the decision involving similar language in the Canada Labour Code which was reached by the Ontario Court of Appeal in Regina v. Bushnell Communications Ltd. (1974), 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288.
24By the same token, there maybe discrimination based on a factor such as race or place of origin, even though some such individuals are admitted. Where a decision involves a combination of factors, of which race, or place of origin is only one, it may well be that, in the absence of certain of the other factors, the person making the decision is prepared to admit the individuals in question. The law requires that race or place of origin is not [to] be taken into consideration at all, whether alone or in combination with other factors.
25In determining whether an improper factor such as race or place of origin influenced the Respondent's decision to exclude the Wan group from Greygo Gardens, I would first observe that it is quite clear that the Respondent makes his decisions to exclude persons in a subjective fashion. He has not established a set of explicit criteria which he applies objectively. Instead he appears to assess potential customers individually on the basis of criteria which he has set up only within his own mind. Moreover, I am satisfied that he does not apply his own criteria uniformly, although, of course, this would not be unlawful as long as lack of uniformity is unrelated to factors such as race. This lack of uniformity was demonstrated by the Respondent's evidence with respect to one criterion which he has now posted for the information of his customers, that is, a rule against children. It appears that he does not automatically exclude children, but rather uses this as a basis for ordering parties with children to leave if they cause any actual problems after being allowed on the premises.
26In light of this, the Respondent's motivations must be subjected to careful analysis to determine whether some ground such as race or place of origin was one of the factors in his subjective decision to exclude the Wan group. Several pieces of evidence are significant in this respect. First, it is apparent that the Respondent does in fact make decisions on the basis of the origins of his customers for he testified that he asks customers their nationality for the purpose of determining which of his vegetables are likely to be of interest to them. Secondly, the report of the human rights officer who first investigated the matter, Mr. Kenneth McCuaig, indicates that the Respondent told him of having problems with "Oriental groups, Arabian groups and Italian groups". This report was entered in evidence by the Respondent and in this respect it is further evidence that considerations such as race and place of origin are taken into account by the Respondent.
27In any case such as this it would be useful to compare the Respondent's treatment of other persons in similar circumstances. While the Respondent spoke of frequently excluding persons from Greygo Gardens, he gave concrete evidence of only two cases. One case was that of a Chinese couple who had overloaded their baskets and the other was that of a Lebanese group which had threatened him with a knife after being ordered to leave. This evidence is as consistent with a conclusion that race or place of origin is a factor in such cases as it is with other explanations. Far more examples would have been necessary of similar cases involving other groups to demonstrate anything by this evidence. Moreover, when counsel for the Commission began to cross-examine the Respondent as to the typical size of groups visiting Greygo Gardens, he became evasive. I can only conclude that straight-forward answers to these questions would not have supported his position that it was his policy to exclude large groups regardless of race or place or origin.
28I conclude on the balance of probabilities that the race of the Wan group, as well as its size and the fact that some members had wandered out of the parking lot, influenced the Respondent in his decision to exclude the Wan group. Thus, there was a denial of services and facilities to which the public is customarily admitted because of race, contrary to section 2(1)(a) of the Ontario Human Rights Code.
29Because of issues with respect to remedy which are common to all of the complaints, I will return to the issue of remedy after dealing with the merits of the complaints of Mrs. Soong and Mrs. Chen.
The Complaints of Mrs. Soong and Mrs. Chen
30The principle facts in this case are also not in serious dispute. On Sunday, August 27, 1978, Mrs. Soong, her husband, her mother and her two children went for a drive in their car, and they were followed by Mrs. Chen, her husband and her four children in another car. All were of Chinese origin. Mrs. Chen had emigrated to Canada only a few months earlier, while Mrs. Soong had come to Canada in 1970 after studying at university in the United States.
31The Soongs were attracted to the Greygo Gardens by signs along the road advertising that people could pick their own vegetables. Greygo Gardens was operated then, as now, by the Respondent.
32The Soongs signaled to the Chen car to follow them into Greygo Gardens and both cars drove into the parking lot. Mrs. Soong, Mrs. Chen and Mrs. Soong's mother went to a vegetable stand adjacent to the parking lot and obtained baskets from an elderly couple attending the stand. They stated they wanted to pick green beans and they were directed to a nearby fence gate leading into a field. The remainder of the two groups stayed in the vicinity of their cars, while the three women started toward the indicated field.
33Before the three women had reached the field, they were stopped by the Respondent and told to leave. The Respondent testified that his reason for doing so was that he believed they were connected with the group who had been there the day before, that is, the Wan group. He concluded, therefore, that they were likely to cause trouble. Mrs. Soong asked why they were being made to leave and the Respondent advised her that he did not have any green beans. The Respondent spoke to them in a loud voice and became louder and angry as they temporarily resisted his request to leave. After they started to leave, they observed him speaking to a white couple in a very courteous fashion and telling them where they could find green beans in the field. They continued back to the cars and both groups drove away.
34The Respondent testified that he commonly told persons he did not wish to admit to Greygo Gardens that he did not have the vegetables they wanted since this was the easiest way to get them to leave. There is, of course, nothing unlawful in this as long as the real reason for the exclusion does not involve some ground such as race or ancestry.
35In light of the Respondent's explanation that he excluded the Soong and Chen groups because he thought they were connected with the Wan group, the evidence of the incident involving the Wans is directly relevant. In comparing the two incidents, I can see only two possible grounds on which the Respondent might have made any such connection. One is that people by the name of Chen were present on both occasions. However, there is no evidence that the Respondent ascertained the names of the members of either party. On the contrary, it is clear that normally the Respondent identifies even regular customers by their faces, more often than by their names.
36The only other basis on which any connection could have been made was on the basis of the race of the Soong and Chen groups. It follows that, in connecting the Soong and Chen groups with the Wan group, the Respondent's decision to exclude the Soongs and Chens was influenced by their race. As a result, he denied them services and facilities to which the public is customarily admitted because of race, contrary to section 2(1)(a) of the Ontario Human Rights Code. This would be true even if the Respondent had been justified in excluding the Wan group since it is apparent the connection was based solely on race without the slightest attempt by the Respondent to determine if there was any legitimate basis for making such a connection.
Remedy
37All three Complainants, with one partial exception, testified that they wished no personal monetary compensation as a result of the Respondent's discrimination, but would wish any monetary compensation to go to a charitable human rights organization. They asked for an apology for themselves, along with some order to prevent the Respondent from discriminating against others. The partial exception was that Mrs. Chen asked for reimbursement of the $19.00 train fare she incurred to attend the hearing. Counsel for the Commission requested a monetary award totalling $500.00 for the three complainants, which they could donate to charity if they wished, together with the $19.00 to reimburse Mrs. Chen's train fare. Counsel also asked for an order that the Respondent post the Commission's human rights placard on the Greygo Gardens premises, provide letters of apology to the individual complainants and a letter of apology to the local Chinese community in general, and give the Commission a letter of undertaking to abide by the Human Rights Code in future.
38I have no jurisdiction, of course, to comply directly with the Complainants' desires to have any monetary compensation paid to a charitable organization. The only payment I can order under section 19(b) of the Code is compensation, which means a payment to the injured party. The parties compensated are free to turn their compensation over to charity if they so desire.
39Each of the Complainants testified to having experienced feelings of embarrassment and distress as a result of the incident in question. While this evidence would support an award of compensation, it did not indicate such a severity of suffering as would support an award of a very substantial amount. However, a further element was involved in each case which would, in my view, support a substantial award. Each Complainant testified to a loss of trust in other people as a result of this experience, and a feeling of disappointment with respect to an expectation that, Canada, to which each had chosen to emigrate, was a country free of such discrimination. While I have some doubts as to the adequacy of the amount, in light of each Complainant's statement that personal compensation was not desired and in light of the Commission's suggestion that a combined award of compensation of $500.00 be made, I would award each Complainant $200.00 for compensation for the elements of mental suffering set out above.
40With respect to Mrs. Chen's claim for train fare, I would observe that this item related to the conduct of the hearing, and not directly to the Respondent's wrongful acts. In ordinary civil litigation it would be regarded as a matter of costs, rather than part of the claim for damages. There is no express provision for an award of costs under the Human Rights Code. In my view, the distinction between a compensation for loss and the costs of a legal action is sufficiently well-known that the legislature would have expressly provided for recovery of costs under the Code, had it intended to authorize such an award. Since section 19(b) of the Code provides only for compensation, I conclude that an award for an item in the nature of costs, such as Mrs. Chen's train fare to attend the hearing, is not within my jurisdiction.
41With respect to the Complainant's request for an apology, it is my view that, as long as some more substantial remedy like an award of compensation is justified, it is generally preferable to leave it to the Respondent to volunteer an apology. A forced apology is rarely meaningful anyway. However, the Respondent in this case demonstrated an attitude of being willing to comply only with the strict letter of the law, and not with its spirit. Moreover, in relation not only to the Human Rights Code, but to other laws as well, he revealed some rather serious errors in his understanding of what his legal rights are. For example, his testimony showed that he had no appreciation of the process of conciliation under the Human Rights Code and at one point he tendered the rather frighten[ing]ly erroneous opinion that he was legally entitled to shoot anyone who did not leave his property when asked to do so. In light of his attitude, I see no prospect that the Respondent will apologize to the Complainants unless he is ordered to do [so]. In view of this I will order him to send them such an apology.
42With respect to the Commission's request for an apology to a Chinese community association, the evidence before me does not indicate that the Respondent discriminates against all Chinese persons. It merely shows that, when making decisions about people based on other factors, he takes into account the race and ethnic origins of the people in question., Moreover, no Chinese community association was involved as a party to these complaints. Therefore, it is neither appropriate nor within my jurisdiction to order an apology to any such association.
43The matter of a further undertaking by the Respondent to comply with the Ontario Human Rights Code causes me some concern, not in terms of its appropriateness, but rather in terms of its potential effectiveness. It is apparent from the evidence that the Respondent makes decisions about his customers in a highly subjective fashion. While such subjective decision-making is not in itself unlawful, such subjectivity provides an often impenetrable cover for unlawful discrimination. In view of the fact that the Respondent has actually exercised his subjective decision-making in a discriminatory manner, it occurs to me that this might have been a case for an order which would, at least for a limited period, force the Respondent to stop making decisions in this matter. For example, he might have been ordered to provide the Commission with a list of objective criteria to be used in deciding whether to admit people to his premises and to give an undertaking that he would apply these criteria in a uniform manner and not exclude people on the basis of any other criteria. Under such an order, for example, he might have adopted a rule to exclude individuals who damaged his property, but this would not allow him to exclude others whom he associates with such individuals by their race or ethnic origin.
44However, such an order raises a number of difficult issues. Since I am not aware of any precedent for such an order under The Ontario Human Rights Code, I conclude that I should not make such an order in the absence of a request for it by one of the parties and the resulting opportunity for the issues to be argued before me at the hearing. The modest request of the Commission for a letter of undertaking that the Respondent will comply with the Code in the future is certainly appropriate and I will so order.
45In addition, an order that a copy of the Ontario Human Rights Commission placard be posted on the Respondent's premises is commonly granted and can have a salutory educational effect. I will, therefore, so order.
Order
46These matters coming on for hearing on the 10th and 11th days of February, 1982, before this Board of Inquiry, pursuant to the appointment of Robert Elgie, Minister of Labour, in the presence of counsel for the Commission, the Complainants, and the Respondent, upon hearing evidence adduced by the parties and what was alleged by the parties, and upon finding that the complaint was substantiated by the evidence;
It is ordered that:
(a) The Respondent pay the Complainant Mr. Chia-Su Wan the sum, of $200.00 as compensation for injured feelings;
(b) The Respondent pay the Complainant Mrs. Lee Min Chen the sum of $200.00 as compensation for injured feelings;
(c) The Respondent pay the Complainant Mrs. Shun-Shun Soong the sum of $200.00 as compensation for injured feelings;
(d) The Respondent keep posted a placard supplied by the Ontario Human Rights Commission setting out the principles of The Ontario Human Rights Code in a prominent place near the entrance to any "pick-your-own" vegetable farm operated by him;
(e) The Respondent provide a letter of apology to each of the Complainants;
(f) The Respondent provide a letter to the Ontario Human Rights Commission undertaking that he will in future comply with The Ontario Human Rights Code at Greygo Gardens or any other "pick-your-own" vegetable farm operated by him;
(g) The Respondent send the letters of apology and the letter of undertaking referred to in paragraphs (a) and (f) to Ms. Leith Hunter, counsel for the Commission, at her office, Crown Law Office, Civil Law, 17th Floor, 18 King Street East, Toronto, Ontario, M5C 1C5.