IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE
AND
IN THE MATTER OF THE COMPLAINT MADE BY THE ONTARIO HUMAN RIGHTS COMMISSION, OF TORONTO, ONTARIO, ALLEGING DISCRIMINATION IN CONTRACT EMPLOYMENT BY CYRVILLE TAXI (PIERETTE BÉGIN) AND ROGER YULE, 1059 CUMMINGS AVENUE, OTTAWA, ONTARIO
DECISION
ED RATUSHNY BOARD OF INQUIRY
JANUARY 26, 1984
DECISION
Introduction:
1The origin and subsequent progress of this case reflects a number of unusual features. The complaint was initiated by the Ontario Human Rights Commission, itself, rather than by a victim of discrimination, as is usually the case. The basis for the complaint arose directly out of "investigative journalism" by a local newspaper reporter. This Board of Inquiry was established, essentially, on the basis of a newspaper article alleging discrimination and the apparent refusal of the respondent taxi company to co-operate with the Commission's attempts to investigate the allegation.
Background:
2In July of 1982, a senior editor of the Ottawa Citizen newspaper instructed a reporter, Ian MacLeod, to investigate the prevalence of racial discrimination in the taxi industry in Ottawa. This assignment was prompted by allegations of discrimination against Haitian taxi drivers in Montréal at the time.
3Mr. MacLeod decided to conduct a telephone survey whereby he called nine different taxi companies requesting a cab but specifying that black drivers or foreign drivers should not be sent — that only a white driver would be acceptable. Three separate calls were made to each company.
4Mr. MacLeod testified that the response from the Cyrville Taxi dispatcher on each occasion, respectively, was:
- "You want a white guy? Okay, I will send you a white guy."
- "Oh, I do promise, yes."
- "For sure I can. You want a white driver, no problem at all."
5Mr. MacLeod then attempted to contact the management of Cyrville Taxi by telephone, to obtain comment upon the results. He spoke with Mr. Roger Yule, who identified himself as the Acting Manager of Cyrville Taxi.
6Mr. MacLeod's notes indicate that Mr. Yule informed him that, in fact, Cyrville Taxi did not have any non-white drivers at the time of the survey. (Coincidentally, an arrangement was being entered into with such a driver on that very day although non-white drivers had driven for Cyrville Taxi at various times in the past.) As a result, in Mr. Yule's words ". . . it was easy to do". The notes indicate that he added:
It does create a problem when customers ask for that sort of request. It happens fairly frequently . . . A few times a week . . . An individual dispatcher may not use the proper discretion . . . The dispatcher will be instructed not to do that, to respond to that sort of request in the future.
7On July 22nd, a story by Ian MacLeod appeared in the Ottawa Citizen relating the survey results and reporting part of the conversation with Mr. Yule but also including the following:
Roger Yule, Acting Manager of Cyrville Taxi said: discrimination within his company is rare because the firm only occasionally employs foreign and non-white drivers.
Mr. MacLeod described this as a paraphrase of Mr. Yule's statement.
8By letter dated July 26, 1982, Mr. Yule wrote to the Ottawa Citizen, identifying himself as the General Manager of Cyrville Taxi. The letter denied any discrimination practices, stated that they were not possible since only white drivers were used at the time and that, in any event, if non-white drivers had been working, as they had in the past, any such requests for white-only drivers would have been denied.
9Apparently on the basis of the newspaper article, the Ontario Human Rights Commission initiated a formal complaint alleging discriminatory treatment of taxi drivers based on race, colour, ancestry and ethnic origin. The basis for the complaint is stated to be the actual responses of the dispatcher during the telephone surveys together with Mr. Yule's alleged response that discrimination was rare because non-white drivers were seldom employed. [Emphasis added].
10The Complaint is dated August 19th, 1982. The Commission subsequently took a number of steps to investigate the Complaint but all of these were futile. Indeed, an unfortunate and, in retrospect, a frustrating series of events occurred in which the Ontario Human Rights Commission and Cyrville Taxi passed as "two ships in the night" leading to the establishment of this Board of Inquiry and the hearing which ensued. In the circumstances, I find it necessary to make some observations in relation to the course of the investigation in this case but will, first, deal with the substance of the Complaint.
The Evidence:
11Counsel for the Commission was frank and forthright in observing at the conclusion of the hearing that there had not been "clear evidence" of a contravention of the Ontario Human Rights Code [1981, S.O. 1981, c.53] in this case. While she suggested that it was open to the Board to find that a non-white driver was driving for Cyrville Taxi on the day in question, I find to the contrary.
12Nor can much reliance be placed on the alleged comment of Mr. Yule to the effect that discrimination was "rare". First of all, the comment is ambiguous and was described as a paraphrase. Secondly, it did not appear in Mr. MacLeod's notes although other parts of his conversation with Mr. Yule were recorded. Thirdly, Mr. MacLeod testified that he, himself, had not interpreted it as an indication that Cyrville Taxi had discriminated in the past. There were other possible inconsistencies in the evidence such as the suggestion that the dispatchers were male rather than female. However, in view of these findings they are not significant.
13This Board of Inquiry, therefore, concludes that the evidence discloses no contravention of the Ontario Human Rights Code. No rights were infringed since no non-white drivers were employed at the time. Nor was there evidence of discriminatory hiring practices.
14It should be pointed out that there may be a jurisdictional anomaly in the Ontario Human Rights Code. Section 31 permits the Commission to initiate a complaint. However, section 38 only authorizes a board of inquiry "to determine whether a right of the complainant under this Act has been infringed" [emphasis added]. Thus, it could be argued that, where the Commission initiates a complaint, a board of inquiry may not determine that an infringement of a person's right has occurred unless that person is made a party to the proceeding as "the complainant" [emphasis added], presumably then replacing the Commission. Since this issue was not raised at the hearing and the complaint has been dismissed on the merits, it is not necessary to deal with it at this time.
15Before leaving the evidence, it is important to emphasize that this result should not be erroneously interpreted as condoning, in any way, the practice of consenting to requests by potential customers for drivers of a certain colour or ethnic origin. The evidence here indicated that Cyrville Taxi is a small family business operated largely under the direction of the mother, Madame Pierette Bégin. The dispatchers were her teen-aged daughters who did not know how to react and who treated the whole matter as something of a joke. Madame Bégin emphasized that there is no policy or practice of complying with such requests by Cyrville Taxi and that her daughters had been instructed immediately that they had responded improperly and should not do so in future. I believe her testimony.
16Customer preference is entirely irrelevant in assessing conduct which might be in contravention of the Ontario Human Rights Code. Businesses are entitled to earn a profit but only if they comply with the laws of this country. Our human rights laws would be a shambles if a respondent were able merely to say: "I am not prejudiced personally but I am simply making a sound economic decision based on the preferences of my customers". If customers are lost as a result, then that simply must be accepted as a cost of doing business in this province.
The Investigation:
17The Ontario Human Rights Code provides that ". . . the Commission shall investigate a complaint and endeavour to effect a settlement". Following the initiation of the Complaint by the Commission, it took the following steps in relation to this statutory mandate:
- On September 15, 1982 the Complaint was sent by registered mail with a covering letter and a series of related questions. The letter was addressed to Mr. Roger Yule as Acting Manager at the address of Cyrville Taxi. The letter was returned marked "refused".
- On September 28 and 30, telephone calls were placed to Mr. Yule and messages left but without any response.
- On September 30, the Regional Supervisor of the Ontario Human Rights Commission, Ms. Therese Legault, personally delivered the complaint and related documents to the address of Cyrville Taxi and left them with Mrs. Pierette Bégin. (This incident will be referred to later).
- On December 12th, another letter was sent to Mr. Yule requesting a reply but it was also returned marked "refused".
- On February 16th, a letter was sent to Mr. Yule from legal counsel to the Commission in Toronto, by registered mail, urging a response so that it would not be necessary to consider establishing a board of inquiry. No response was received.
From the perspective of the Ontario Human Rights Commission, it appeared to be highly regrettable that Cyrville Taxi did not see fit to respond in any way to attempts at investigation and settlement.
18However, from the perspective of Madame Bégin, a completely different picture emerges. She and her husband are attempting to operate a small family business (of a rather hectic nature) with the assistance of their two young daughters. They are both more comfortable in the French language and, indeed, Mr. Bégin has never learned to write. During most of the period when the Commission was attempting to obtain a response, Mr. Bégin was in hospital and his wife was left to operate the business herself.
19Moreover, all of the communications were addressed to. Mr. Roger Yule rather than to Mr. or Mrs. Bégin. Perhaps that was reasonable in light of the newspaper reports identifying him as the Acting Manager of Cyrville Taxi. In fact, he acted only informally in this capacity, without remuneration, and simply to assist the Bégins, particularly where "paperwork" was involved or where representations were required in the English language. Mrs. Bégin appeared to place complete trust in Mr. Yule and to rely on him totally in this matter. She did not even attempt to deal with the documents which were left with her but kept them for him.
20There is something of the irony of a Thomas Hardy novel in the meeting of Ms. Legault and Mrs. Bégin on September 30th. The Regional Director goes to a place of business and finds herself walking into a kitchen. She leaves a letter for Mr. Yule with Mrs. Bégin, who agrees to give it to Mr. Yule, then leaves without realizing that Mrs. Bégin was the very person with whom she should have been speaking. There is no doubt in my mind that a conversation between those two women at that time would have led to the withdrawal of the complaint without the necessity of a formal board of inquiry hearing.
21These circumstances suggest a need for the Commission to reassess some of its investigation and settlement procedures. For example, in this case it may have been desirable to make informal personal inquiries prior to the formal initiation of the complaint. Moreover, while documentation of specific requests for information and responses may be valuable in many circumstances, there are situations which require a more human and personal "touch" such as the case at hand.
22These observations are not relevant to a determination with respect to any contravention of the Code. However, they are directly relevant to the power of a board of inquiry to order the Commission to pay "such costs as are fixed by the board" to the respondent. Since the respondents were not represented by counsel, I find it necessary to address this issue.
23Mr. Yule made much of the manner in which the Commission conducted or, in his view, failed to conduct the investigation in this case. He described Mrs. Bégin as having been made a victim, herself, as a result of the conduct of this case by the Commission. I have already alluded to the desirability of the Commission modifying its formal investigation procedures in appropriate situations.
24However, if responsibility is to be assigned for the plight of Mrs. Bégin as a respondent at the hearings of this Board of Inquiry, a very substantial proportion of that responsibility must be assumed by Mr. Yule, himself. He treated the entire process with total contempt and, while professing to be an advocate of minority rights, could not be bothered to provide even a simple response by telephone. Such conduct is particularly regrettable when one considers the complete trust and reliance which Mrs. Bégin placed in Mr. Yule to deal with this problem for her and her husband.
25Mr. Yule's testimony was vague in terms of when he was actually in Ottawa as opposed to on his farm. He also stated that he had left instructions not to accept mail addressed to him because of potential "trouble with a bank or lawyer or something". He spoke of personal problems related to properties and a divorce action in which he was involved. As a result of his testimony, the distinct impression is left that, on occasion, Mr. Yule's approach to dealing with problems is simply to ignore them. He stated bluntly that if he had received any documents in this case, he would have simply thrown it in the garbage.
26In all of these circumstances, the Complaint is dismissed and no order is made as to costs.