Ontario Board of Inquiry
Kelly B. McCarthy Complainant
and
Ontario Human Rights Commission Commission
v.
Kays Toronto Trading Ltd. and Hu Suk Lee Respondents
Date of Decision: May 28, 1993
Before: Ontario Board of Inquiry, Ronald W. McInnes
Comm. Decision No.: 522
Appearances by: Anthony Griffin, Counsel for the Commission Joseph Mazzolino and Wolfgang Pazulla, Counsel for the Respondent Hu Suk Lee, on her own behalf
DISABILITY — discriminatory treatment on basis of AIDS — PUBLIC SERVICES AND FACILITIES — services denied in restaurant — EVIDENCE — credibility of witnesses — DAMAGES — determining quantum by using restitutio in integrum principle — LIABILITY — personal liability
Summary: The Board of Inquiry finds that Kays Toronto Trading Ltd. and Hu Suk Lee discriminated against Kelly B. McCarthy by refusing him a service and providing him with discriminatory service because he has AIDS.
The Board of Inquiry finds that Mr. McCarthy and his wife, Patricia, lived near Dairy Fast Foods, Kay's Desserts and Kay's Sushi, restaurants operated successively by the respondents at the same location on Dundas Street in Toronto. The McCarthys were well known to the proprietors of these restaurants, Hu Suk Lee and her brother Kuk Pyong Nho. It was also widely known in the neighbourhood, and by Ms. Lee and Mr. Nho that Mr. McCarthy has AIDS.
Though some testimony is confused in this case, the Board of Inquiry finds that Mr. and Ms. McCarthy are credible witnesses and it prefers their evidence where it conflicts with that of Hu Suk Lee. The Board of Inquiry finds that Mr. McCarthy and his wife were refused service on more than one occasion at the respondents' restaurants and that when they were served they were given plastic plates and utensils rather than the regular china plates and steel knives and forks. The Board of Inquiry also finds that one of the reasons for this discriminatory treatment was that Mr. McCarthy has AIDS.
The Board of Inquiry orders Kay's Toronto Trading Ltd. to pay Mr. McCarthy $4,500 as compensation for the discrimination. Hu Suk Lee is jointly and severally liable to $1,500 of this award.
Cases Cited
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 43
Foster Wheeler Ltd. v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 8514 (ON HCJDC), 8 C.H.R.R. D/4179 (Ont. Div.Ct.): 43
Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 39
Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd.Inq.): 42
Peterson v. Anderson (1991), 1991 CanLII 13132 (ON HRT), 15 C.H.R.R. D/1 (Ont. Bd.Inq.): 42
Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 42
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 1: 2, 30
s. 10: 2, 30
s. 39(1): 34
s. 41(1): 40
s. 45(1): 38
Authorities Cited
Keene, Judith, Human Rights in Ontario, 2d ed. (Toronto: Carswell, 1992): 36
THE COMPLAINT
1Kelly McCarthy is a man with AIDS. Mrs. Hu Suk Lee was the proprietor of the Dairy Fast Food restaurant on Dundas Street West, Toronto, Ontario, from 1989 until it closed for renovations in or about October 1991. The restaurant was re-opened for business by Kays Toronto Trading Ltd. in or about March 1992, at which time it carried on business under the name Kays' Desserts and Kays' Sushi (or some similar variation). Mrs. Lee was at all times the president and sole director of Kays Toronto Trading Ltd. Mrs. Lee was apparently also known as Sue Lee and Sue Kay. Mr. McCarthy alleges in his complaint that he was refused service because he had AIDS both during the period when the restaurant was being operated as Dairy Fast Food and when it was being operated as Kays' Desserts and Kays' Sushi.
2By letter dated January 20, 1993, I was appointed by the Minister of Citizenship to form a board of inquiry to hear and decide the complaint of Kelly McCarthy dated April 26, 1992, alleging discrimination in services on the basis of handicap by Kays Toronto Trading Ltd. (c.o.b. as Kays' Desserts and Kays' Sushi, formerly Dairy Fast Food) and Hu Suk Lee (known as Sue Kay) contrary to ss. 1 and 9 (now s. 10) of the Human Rights Code [S.O. 1981, c. 53, now R.S.O. 1990, c. H.19].
3The actual complaint by Mr. McCarthy dated April 26, 1992, names as respondents Kays' Dessert[s] (formerly carrying on business as Dairy Fast Food) and Sue Kay. To the extent that it may have been necessary, considering the names of the parties as set out in my appointment, I granted an application by counsel for the Ontario Human Rights Commission (the "Commission") to amend the complaint to name as respondents Kays Toronto Trading Ltd. and Hu Suk Lee. There was no suggestion that this would cause any injustice or surprise in that the respondent questionnaire responding to the complaint was filed in the name of Kays Toronto Trading Ltd. naming Hu Suk Lee as president and the company official with whom the Commission should deal. Correspondence filed with the Boards of Inquiry office by Joseph Mazzolino, agent for the respondents, also referred to Hu Suk Lee as being known as Sue Kay.
THE HEARING
4The hearing in this matter was commenced by conference call on February 15, 1993. At this time, the respondents were represented by Mr. Joseph Mazzolino and agreement was reached to resume the hearing on April 19 and 20, 1993, in Toronto. On April 16, 1993, Mr. Mazzolino filed with the Boards of Inquiry office a notice that he would no longer be representing the respondents and enclosing a copy of a letter which he had written to Mrs. Lee withdrawing his services on the basis of her failure to provide information and instructions to permit him to properly prepare a defence, and also referring to her advice to him that she had decided to file for personal bankruptcy. On Sunday, April 18, 1993, a letter was received by fax at the offices of the Boards of Inquiry by Wolfgang J. Pazulla, barrister and solicitor, requesting that the hearing be adjourned. Mr. Pazulla stated in the letter that he had been consulted by Mrs. Lee but had not yet accepted a retainer. He also enclosed a short note from W.Y. Shin, MD, stating that "Mrs. Lee is under great pressure and she is suffering from anxiety attacks."
5At the commencement of the hearing on April 19, 1993, Mr. Pazulla appeared and requested an adjournment. He stated that he was appearing solely for that purpose and was not prepared to represent the respondents should the hearing continue on that date. He advised that he had not been retained in the matter. The request was based on Mrs. Lee's need to have new counsel represent her together with the fact that she was physically unable to attend because of medical problems. Following argument by counsel, a speaker telephone call was placed to Dr. Shin to obtain clarification of Mrs. Lee's medical condition. He confirmed that Mrs. Lee was under considerable strain because of her financial difficulties and that this could [be] exacerbated by proceeding with the hearing, but he stopped short of saying that Mrs. Lee was physically unable to attend or that it would be seriously detrimental to her health. On the other hand, it was pointed out by Commission counsel that Mr. McCarthy's health was rapidly deteriorating and that his deterioration included progressive memory loss. Mrs. Lee's problems, both with respect to representation and her physical wellbeing, appeared closely related to her financial difficulties and there was no clear indication that, if an adjournment were granted, she would be in a position to engage counsel at a future date.
6Considering all of the circumstances and the evidence before me, I was not satisfied that an adjournment was required to permit an adequate hearing to be held and, balancing the respective interests and health problems of the parties, I ruled that the matter proceed. However, the hearing was adjourned until 2:00 p.m. that afternoon in order for Mrs. Lee to be permitted an opportunity to attend. I was advised that she declined to do so and Mr. Pazulla withdrew.
7The hearing continued in the afternoon of April 19, 1993, with the evidence of Kelly McCarthy and his wife, Patricia McCarthy. On the morning of April 20, 1993, Mrs. Lee appeared on her own behalf. Because of her difficulty with English, a Korean language interpreter was provided. With the consent of Commission counsel, I explained to her the events of the previous day and summarized the evidence given by Kelly McCarthy and Patricia McCarthy. She was then given the opportunity to cross-examine these witnesses and chose to ask a few questions of Mr. McCarthy. The hearing then proceeded with evidence on behalf of the respondents and argument.
EVIDENCE FOR THE COMPLAINANT
8During his testimony, Mr. McCarthy stated that he suffered from memory loss because of the progress of his illness. He could remember certain events but was confused as to exactly when they occurred and how they related to other events. I also found the evidence given by Mrs. McCarthy to be disjointed with respect to particulars. Although she has been diagnosed as HIV positive, there was no suggestion that she suffered from any memory loss related to illness. However, the nature of the evidence given by both of these parties, the only witnesses called by the Commission, made it difficult to form a clear impression of the specific events complained of.
9Mr. McCarthy was diagnosed as having AIDS in June 1990. This was described as "full-blown" AIDS as opposed to a diagnosis of being HIV positive. Sometime in late 1990 or early 1991, the McCarthys went public about their medical situation in order to increase awareness. This apparently occurred at a municipal committee meeting of some sort and was widely publicized in newspapers and on television. Mrs. McCarthy stated that everyone in the housing project in which they lived and the surrounding community was aware that Mr. McCarthy had AIDS.
10The restaurant in question was only about a five-minute walk from their home. It was apparently frequented by the McCarthys and their friends both while it operated as Dairy Fast Food and in its subsequent reincarnation as Kays' Desserts and Kays' Sushi. It was difficult from the testimony of the McCarthys to determine which incidents took place during which time periods, but both testified that they had been refused service at the restaurant under both of the names under which it operated. They were also under the impression that the restaurant was at all times being operated by Sue Lee which appears to have been the name by which they knew Mrs. Hu Suk Lee.
11When the restaurant was being operated as Dairy Fast Food, they testified that they were refused service and were told that it was because other customers had complained and left the restaurant when the McCarthys came in. These customers were apparently from the same housing project in which the McCarthys lived and were aware that Mr. McCarthy had AIDS. They were also told by a waiter in the restaurant, identified by them only as "John," that their presence was "bad for business" and that customers had complained about their presence. No date was given for this incident. There was also a brief reference by Mr. McCarthy to an incident in which the police were called by Mrs. Lee to escort them from the restaurant and he was told by the police that "AIDS is part of the issue." No further details were given in his testimony.
12Most of the evidence given by both Mr. and Mrs. McCarthy appeared to relate to incidents after the restaurant was re-opened in the spring of 1992 as Kays' Desserts and Kays' Sushi. During this time period, Mrs. Lee's brother, Kuk Pyong Nho, was apparently operating the restaurant, although the McCarthys testified that Mrs. Lee was in the office on various occasions and still appeared to be in charge.
13In one incident, which apparently occurred on the date the restaurant re-opened or very soon thereafter, Mrs. McCarthy went into the restaurant to get a cup of coffee to take out while Mr. McCarthy remained outside on his scooter. She testified that a waitress named Kay was going to serve her but that Mrs. Lee was standing nearby and told her not to. There ensued a discussion in what was described as Chinese following which Kay told Mrs. McCarthy that she could not serve her. Mr. Nho was also present. Mr. McCarthy then went into the restaurant while Mrs. McCarthy waited outside but he was refused service as well. Mr. McCarthy testified that he was refused service on three occasions but could only recall details of this one. He specifically stated that it was Mrs. Lee who said "don't serve him." He also stated that the refusal was based on the fact that he had AIDS, although he offered no clear explanation of how he came to this conclusion.
14Mrs. McCarthy testified to a second occasion on which there was a refusal to serve them take-out coffee. She stated that the same people were present. No explanation was given for the refusals, but she regarded it as a continuation of the refusals which occurred when the restaurant was operated as Dairy Fast Food and when they were told their presence was bad for business because customers complained and left because Mr. McCarthy had AIDS. Both Mrs. Lee and the waiter named John had told them this.
15On those occasions when the McCarthys went into the restaurant to eat and were served, they testified that they received their food on plastic plates and their beverages in styrofoam cups. The cutlery given to them was also plastic. Other customers received their food and beverages on regular china with stainless steel cutlery. Mrs. McCarthy stated that at first they did not complain because they were content that they were finally being served but that later they became upset and asked Mr. Nho for regular china and utensils. They stated that he offered no explanation as to why they were being treated differently although Mrs. McCarthy later gave evidence that both Mrs. Lee and Mr. Nho had told them to leave if they did not like it. However, when they continued to return to the restaurant and insisted on regular eating utensils, they eventually were given them. Mr. McCarthy estimated that they were served on plastic at least four times and that following this period, the mugs which they used for coffee were kept physically separate from others used in the restaurant. Mr. McCarthy testified that he knew this because he had marked the mugs on the bottom by scratching them with a key and thereafter each time they ordered coffee, they received the marked mugs. He also stated that their mugs were washed separately with bleach but he did not indicate how he knew this.
16There was also reference to an incident where the table which the McCarthys usually used was marked as "reserved" for a period of time. They felt that this was an attempt to discourage them from coming into the restaurant and they arranged for friends to go in and request the table, following which they joined them. After this incident, the "reserved" sign disappeared from the table. There was no evidence as to who was responsible for putting the sign on the table.
17Both McCarthys testified that there had been a very friendly relationship between Mr. McCarthy and Mrs. Lee prior to her becoming aware that he had AIDS. He had apparently helped out in cleaning the premises on a number of occasions but whether this was a job or gratuitous assistance was not made clear. At another point in his testimony, Mr. McCarthy stated that he had also helped out at the restaurant after he had been diagnosed with AIDS.
18Since Mrs. Lee was not present at the hearing during this evidence, Commission counsel put to each of Mr. and Mrs. McCarthy for response the statements from the respondent questionnaire. They both denied the allegations contained in that document to the effect that any refusal of service was related solely to the actions of the McCarthys in messing up the washrooms, disturbing other customers, offensive body odour or the use of foul language and profanities. Each of Mr. and Mrs. McCarthy denied both that there was any truth to these allegations or that it was ever given as a reason for refusing to serve them or asking them to leave the restaurant.
19Mr. McCarthy testified that he felt "labelled" because of the way in which he was treated in the restaurant. He stated that he was "really embarrassed" when offered service only with styrofoam cups and plastic utensils. He felt that he had had a good relationship with Mrs. Lee before it was known he had AIDS and afterwards he felt "used and abused" and "like a used a [sic] doormat." Mrs. McCarthy described his feelings as being hurt by the attitude and actions of Mrs. Lee to the extent that he felt that he was not treated humanely and felt less than human.
EVIDENCE FOR THE RESPONDENTS
20Mrs. Lee attended on April 20, 1993, and gave evidence on her own behalf. She also called Mrs. Woo Ja Lee. Much of Mrs. Lee's evidence was of limited relevance in that it concerned her financial problems which apparently began with the operation of Dairy Fast Food and recently had become more serious as a result of another business which she was operating in Hamilton. She exhibited no signs of physical illness and was quite forceful in denying the allegations against her.
21On cross-examination, Mrs. Lee confirmed that she ran the restaurant when it operated as Dairy Fast Food. Mr. Nho also worked in the restaurant at this time. She also referred to a manager/waiter named John Lim who she described as a friend of Mr. McCarthy.
22She testified that Dairy Fast Food had closed in October 1991 and was not open in December 1991, which was the time specified in Mr. McCarthy's complaint when he alleges he was refused service. Her brother, Mr. Nho, took control of the restaurant when it re-opened in March 1992. Kays Toronto Trading Ltd. was incorporated in her name only because her brother was "not yet an immigrant" and the paperwork could not be done in his name. The restaurant was operated by her brother together with his girlfriend, Ahn Kay. She testified that Ms. Kay was experienced in restaurant operation and that it was from her name that the name of the corporation and the restaurant was derived. She stated that she was running a business in Hamilton and was only rarely at the Toronto restaurant and that these visits were solely for the purpose of visiting her brother.
23Mrs. Lee stated that she was at the restaurant the day it opened as a sushi bar as were a number of other family members and people from her church. In response to a question, she appeared to indicate that the incident with respect to the take-out coffee occurred but stated that she did not have the authority to tell the waitress whether or not to serve them. She stated that the waitress was her brother's girlfriend, Ms. Kay. Her testimony on this point was evasive and contradictory. She testified that she would not have told anyone not to serve the McCarthys, but did not know whether her brother had given such instructions. Later, in response to a question from the Board, Mrs. Lee wondered if it was a Korean waitress who was working on that day. She stated, "the first waitress I had was a Korean waitress," whom she identified as a Miss Hong. Later in her testimony, she appears to deny ever witnessing Ms. Kay refuse to serve the McCarthys and stated, "I have never been in the restaurant when Mr. or Mrs. McCarthy was refused service."
24She testified that she was aware that AIDS was transmitted through body fluids and not through restaurant utensils. She was aware that china plates and stainless steel cutlery was normally used in the sushi restaurant but that plastic plates, cups and utensils were available for take-out. She said that she knew this from what she saw when she visited the restaurant and also because much of the china and cutlery had been retained at the restaurant from the time she operated it as Dairy Fast Food.
25She stated that she overheard other customers discussing AIDS when the McCarthys were in the restaurant. She did not herself hear customers complaining about the presence of the McCarthys but was told by her brother that this was happening. It was not clear to which period of time she was referring.
26Mrs. Lee testified that her friendship with Mr. McCarthy broke down because he had made complaints to health and building authorities about the Dairy Fast Food restaurant, which had caused her serious problems. The cost of complying with orders resulting from these complaints was part of the reason she was now in financial difficulty.
27Mrs. Woo Ja Lee testified that she worked at Dairy Fast Food for a period of two years. She confirmed that, after March 1992, the restaurant became Kays' Desserts and Kays' Sushi and that Mr. Nho had taken over the business at that point and had full responsibility for hiring staff. She did not work at the sushi restaurant. She confirmed that Mrs. Lee was very infrequently in the Toronto restaurant after that time as she was operating another business in Hamilton. She stated that she normally worked mornings on a daily basis at Dairy Fast Food but managed the restaurant full time during a four-month period during which Mrs. Lee was in Korea. During that time she was in the restaurant all day. She testified that the McCarthys came in frequently and that she had personally served them. She testified to serving them hot tea. She stated that she had never been told by Mrs. Lee not to serve the McCarthys. In reply, Mr. McCarthy stated that he had never been served by Mrs. Woo Ja Lee at Dairy Fast Food although he had seen her at the restaurant and in the office.
28Mrs. Lee, in effect, continued to give evidence during her summary or argument. She stated that John Lim was really upset about the McCarthys' complaints to the health department and this was why he kicked them out. John was the one responsible for calling the police but this was not done under her direction. She and John worked at different times and John was in charge when she was not there.
29Mrs. Lee took the position that she had no control or responsibility for the operation of the restaurant once it came to be operated by Kays Toronto Trading Ltd. I understood her to be appearing solely on her own behalf and not as a representative of the corporate respondent. No one else appeared nor was there any evidence as to the position of the corporate respondent other than as set out in the respondent questionnaire.
ANALYSIS
30The only real issues in this case are factual and these, to the extent that they can be determined at all, fall to be decided on the basis of credibility. There is no dispute that AIDS is a handicap within the meaning of what is now s. 10 of the Code and that a restaurant is providing services within the meaning of s. 1.
31The difficult issue to determine on the evidence before me is the nature and extent of discriminatory practices, if any, and who bears responsibility for discriminatory practices which may have occurred while the restaurant was operating as Kays' Desserts and Kays' Sushi. Commission counsel stated at the outset that the Commission was not pursuing the incidents alleged to have occurred while the restaurant operated under the name Dairy Fast Food or seeking a remedy for anything occurring prior to March 1992. Evidence with respect to these prior incidents was only introduced to show a pattern of behaviour by the individual respondent.
32In assessing the credibility of the witnesses, I was invited by Commission counsel to consider why the McCarthys would make up such a story and carry their complaint through to the hearing stage when there had been prior warning that Mrs. Lee was facing bankruptcy and the likelihood of any financial gain for them was slim. On the other hand, Mrs. Lee was, at the very least, facing severe financial problems and had every motive to wish to avoid further obligations. He also referred to the contradictions and evasiveness inherent in much of the testimony of Mrs. Lee and the suspicious circumstances surrounding the requests for adjournment and her state of health. I accept the submissions of Commission counsel in this regard and, wherever there is conflict between the testimony of Mrs. Lee and Mr. or Mrs. McCarthy, I prefer the evidence of the McCarthys. My problem, because of the manner in which evidence was given by all parties, is to know where there is such conflict. Much of the time it was not at all clear to which incidents evidence related.
33I was initially concerned that the evidence adduced on behalf of the complainant bore very little relationship to the allegations set out in the complaint of April 26, 1992, which I had been appointed to inquire into. That complaint listed two incidents involving Dairy Fast Food said to have occurred in or about December 1991. The first involved the police being called to remove the complainant from the restaurant and the second a request from "a waiter named John" to leave because customers would complain. The second set of allegations involved two incidents after the restaurant re-opened as "Kays' Dessert" in March 1992, when it is alleged that Sue Lee, described as the "personal respondent," directed a waitress not to serve the complainant a coffee to take out, and another incident, apparently in the same month, when Sue Lee again directed a waitress not to serve the complainant.
34My attention was drawn [to] s. 39(1) of the Human Rights Code which provides in part:
39(1) The board of inquiry shall hold a hearing,
a) to determine whether a right of the complainant under this Act has been infringed;
b) to determine who infringed the right;
This section has previously been considered on a number of occasions with respect to whether additional grounds of discrimination could be added to a complaint at the time of the hearing. In this case, we are only concerned with particulars of the alleged discriminatory acts. I am satisfied that I have jurisdiction to consider all evidence put before me with respect to discrimination in services on the basis of handicap without the necessity to amend the complaint, although I would be prepared to do so if necessary. Although there was, of course, no evidence in this regard before me, I was assured by Commission counsel that the investigation of the complaint by the Commission had included the particulars of unequal treatment concerning the plastic utensils, and that the respondents had full notice of these particulars and an opportunity to respond and that this was confirmed in the case summary. In addition, Mrs. Lee did not express any surprise that these allegations were being made when I summarized the evidence for her.
35On all of the evidence before me, I am prepared to find that the complainant was subjected to both a refusal of services and unequal treatment with respect to services at the restaurant known as Kays' Dessert and Kays' Sushi. While the evidence is generally unsatisfactory, I find that it is sufficient for me to conclude, on a balance of probabilities, that both Mrs. Lee and Mr. Nho were, directly or indirectly, responsible for infringing the rights of Mr. McCarthy. It seems most likely that Mrs. Lee was involved either in refusing, or instructing a waitress to refuse, service to Mr. McCarthy on at least one occasion. The specific incident on which I can make a finding occurred on the day that the sushi restaurant opened for business and was the incident involving the take-out coffee. I find also that there was unequal treatment of Mr. McCarthy with respect to the refusal to provide [him] and his wife with other than plastic utensils on several occasions but I can only find Mr. Nho responsible for this. I am not satisfied from the evidence that Mrs. Lee can be connected, directly or indirectly, to these incidents.
36I am satisfied that at least one of the reasons for the treatment of Mr. and Mrs. McCarthy was that Mr. McCarthy suffered from AIDS. There is no dispute that this was well-known to both Mrs. Lee and to Mr. Nho, and no credible reason was advanced by the respondents for the treatment of Mr. and Mrs. McCarthy other than fear of customer complaints and loss of business because of the presence of Mr. McCarthy and the knowledge in the community that he had AIDS. While this no doubt created a difficult situation for the proprietors of the restaurant, it does not excuse their behaviour or relieve them of responsibility under the Human Rights Code. I accept that some of the bad feeling between Mrs. Lee, Mr. Lim and, possibly, Mr. Nho and the McCarthys arose from the complaints made by Mr. McCarthy to building and health authorities. However, the law is clear that where there is more than one reason for a discriminatory action, only one of which is a prohibited ground, the presence of that reason is sufficient to create a breach of the Code provided that the reason is a proximate element or operative factor in the refusal. As pointed out in Keene, Rights in Ontario, 2d ed. at 352, numerous Ontario boards of inquiry have applied this rule. I find that an operative factor for the discriminatory actions was Mr. McCarthy's handicap. No evidence was led at the hearing in support of the allegations in the respondent questionnaire with respect to the McCarthys messing up washrooms, disturbing other customers, having offensive body odour or using foul language and profanities.
37In support of my findings, including my rejection of Mrs. Lee's position that she had no involvement in the operation of the sushi restaurant, I draw an adverse inference from the failure of Mr. Nho to testify at the hearing. Mrs. Lee sought to shift all responsibility to her brother, who is not a named respondent, without offering any explanation as to why he failed to appear to testify on behalf of the corporation, which she alleged was in reality under his complete control.
38With respect to the liability of Kays Toronto Trading Ltd., I had regard to s. 45(1) of the Human Rights Code which states, in part:
45(1) For the purposes of this Act, . . . any act or thing done . . . in the course of his or her employment by an officer, official, employee or agent of a corporation . . . shall be deemed to be an act or thing done . . . by the corporation . . .
The evidence was clear that Mrs. Lee was at all times an officer of the corporate defendant and I find that her involvement in the discriminatory actions must be regarded as being in the course of her employment by the corporation. Mr. Nho must, at the very least, be regarded as an employee or agent of the corporate respondent, and his involvement in the discriminatory actions were clearly in the course of this employment. Accordingly, I find that the corporate respondent is liable for the actions of both Mrs. Lee and Mr. Nho. In addition, Mrs. Lee is personally liable for her part in the discriminatory actions as set out above in my findings. Mr. Nho is not a respondent in these proceedings nor was any application made to join him as a party.
39In considering the responsibility of the corporate respondent for the breach of the Code, I have also considered Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797, where the Board of Inquiry stated, at D/2801 [para. 22922]:
Where the employer is a corporate entity, and an employee is in contravention of the Code, and that employee is part of the "directing mind" of the corporation, then the employer corporation is itself personally in contravention. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility. See Edilma Olarte et al v. Rafael DeFilippis and Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 at D/1746.
Were s. 45 not applicable, I would be prepared to find that both Mrs. Lee and Mr. Nho were "directing minds" of the corporate respondent.
REMEDIES
40Section 41(1) of the Code provides:
41(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,
(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and
(b) direct the company to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
The Commission made no request for an order pursuant to subsection (a). There was evidence at the hearing that the restaurant has now closed and, accordingly, such an order would serve no useful purpose. Commission counsel also stated that Mr. McCarthy had suffered no monetary loss and no claim was put forward for restitution.
41There is no doubt that the infringement of the Code was engaged in wilfully or recklessly and it is in order to consider general damages. Independent of actual monetary losses suffered by a complainant whose human rights are infringed, the very human right which is being contravened itself has intrinsic value. General damages are in the nature of restitution or compensation for the complainant's loss of dignity or self-respect and not a penalty imposed on the respondent.
42Because of the emphasis of Mrs. Lee on her distressed financial circumstances and, presumably, the financial difficulties of the corporate respondent as well, I have considered whether it is relevant to take this into consideration. I agree with the board in Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.) which stated that the object of human rights legislation is to effect restitution and the personal circumstances of the respondent is not a legitimate consideration for awarding less than is required to meet that objective. I adopt this position despite what may appear to be conflicting authority in Peterson v. Anderson(1991), 1991 CanLII 13132 (ON HRT), 15 C.H.R.R. D/1 (Ont. Bd.Inq.) and, possibly, Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd.Inq.).
43In his submissions on general damages, Commission counsel made reference to Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.) and Foster Wheeler Limited v. Ontario Human Rights Commission (1987), 1987 CanLII 8514 (ON HCJDC), 8 C.H.R.R. D/4179 (Ont. Div.Ct.). I agree with the statement in the Cameron case at D/2198 [para. 18538]:
Where a contravention of the Code results in injury to the complainant's dignity or self-respect, general damages for this loss should reflect the seriousness of the injury caused.
In this case, it is clear from the evidence that Mr. McCarthy was deeply distressed by the discriminatory actions directed against him at the restaurant. While the time period over which these activities occurred is not clear from the evidence, I am satisfied that there was a continuing course of conduct with a number of instances of discriminatory action.
44Giving my best consideration to all of the foregoing, I conclude that the appropriate measure of general damages to be awarded against Kays Toronto Trading Limited is $4,500. This award is based on responsibility for the actions of both Mrs. Lee and Mr. Nho. As indicated earlier, there is insufficient evidence for me to ascribe personal liability to Mrs. Lee for all of the discriminatory actions against Mr. McCarthy. Accordingly, I find that she should be personally liable, on a joint and several basis with the corporation, for the amount of $1,500 of the total award made against the corporate respondent.