Ontario Human Rights Commission v. 1233065 Ontario Inc., 2006 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Daiming Huang Complainant

-and-

1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association) o/a Ottawa Chinese Senior Association, Feng Xu and Shen Guo Respondents

DECISION

Adjudicator: Mary Ross Hendriks

Date: January 18, 2006

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

INTRODUCTION

1This is an Amended Complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging discrimination in services, goods and facilities based on creed, in violation of sections 1 and 9. Specifically, the Complainant alleges that her membership in 1233065 Ontario Inc. operating as the Ottawa Chinese Senior Association (the “Association”) was terminated because she practices Falun Gong. Her Amended Complaint was filed with the Ontario Human Rights Commission (“the Commission”) on August 24, 2004 and was referred to the Human Rights Tribunal of Ontario (“the Tribunal”) on December 7, 2004.

2In its Interim Decision of August 30, 2005, Huang v. 1233065 Ontario Inc. (2005), CHRR Doc. 05-525, 2005 HRTO 33, the Tribunal took note of the steps that have been taken to locate and contact the Respondents. During the Initial Conference Call, Mr. Guo, a Personal Respondent, requested mediation, and he advised the Tribunal that he would speak with the other Respondents.

3When the Respondents failed to contact the Tribunal to arrange for the mediation Mr. Guo had requested, or to take any steps to respond to the Amended Complaint, the Commission was given a direction to conduct a number of searches. The results of these searches have verified the last known addresses of all of the Respondents in accordance with Rule 20 of the Tribunal’s Rules of Practice.

4In its correspondence to the Tribunal of August 23, 2005, in which the Commission, with the consent of the Complainant, requested a written hearing, Commission counsel advised as follows:

Aside from providing a response to the complaint, the respondents did not participate in the Commission’s investigation. Aside from participating during the initial conference call, the respondents have not contacted the parties or the Tribunal and have not filed pleadings.

5The Tribunal is satisfied that the Respondents have been given proper notice of these proceedings and have deliberately chosen not to participate.

6In the Interim Decision, after weighing the interests of natural justice and fairness with the goal of procedural and economic efficiency, the Tribunal granted the Commission’s request to hold the hearing on the merits in writing, and ordered that if the Respondents had an objection to proceeding in this manner that they must serve and file their submissions no later than September 30, 2005 and that the Tribunal would consider them. The Tribunal has received no response to its Order contained therein, which also served as its Notice of Written Hearing.

7In accordance with section 5.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 (“SPPA”), the Tribunal has proceeded in the absence of the Respondents with a written hearing. It received the Commission’s final written submissions, brief of authorities and affidavit evidence of five deponents on November 16, 2005.

ISSUES

8The Tribunal considered the following issues:

(1) Does the practice of Falun Gong constitute a creed within the meaning of the Code?

(2) Was the Complainant treated unequally in the provision of services on the basis of her creed, contrary to sections 1 and 9 of the Code?

(3) What remedies should be awarded pursuant to subsection 41(1) of the Code, if any?

DECISION

9The Tribunal finds that Falun Gong constitutes a creed within the meaning of the Code. Moreover, the Tribunal finds that the Respondents violated the Complainant’s right to equal treatment with respect to services without discrimination based on creed, contrary to sections 1 and 9 of the Code. The Tribunal finds that the Respondents are jointly and severally liable to the Complainant.

LIST OF DEPONENTS

10The Tribunal received affidavit evidence from five deponents, as follows:

(1) Daiming Huang, Complainant, dated November 11, 2005

(2) Xun Li, the Complainant’s son, dated November 11, 2005

(3) Min Liu, an acquaintance of the Complainant, dated November 11, 2005

(4) Ken Bhattacharjee, Commission investigator, dated November 15, 2005

(5) David Ownby, Ph.D., Director of the Centre for East Asian Studies at the University of Montreal, dated November 9, 2005.

SUMMARY OF EVIDENCE

Daiming Huang

11Ms. Huang is seventy-three years old and a Canadian citizen. She immigrated to Canada from China. Ms. Huang has practiced Falun Gong, also known as Falun Dafa, since March 1998. She credits her spiritual devotion to Falun Gong with her much improved health, after several serious illnesses.

12In her evidence, Ms. Huang refers to the “main focus” of Falun Gong as being “spirituality” and “a belief in the existence of gods and divine beings in the cosmos.” She said that it also incorporates physical exercise and meditation, and a moral dimension of “Truth, Compassion and Forbearance.” She added that, “My spiritual devotion to Falun Gong is of immense personal importance to me.”

13In 1995, Ms. Huang said that she was invited to join the Association at the invitation of the Association’s former Chair and Vice-Chair. She said that a number of her classmates from her English class were also members of the Association. She wanted to be part of the Association because it is a forum for seniors of Chinese heritage to gather and form a community. She joined the Association in January 2001, explaining that she did not join it sooner due to her health problems. When she joined the Association, the Council members did not know that she practised Falun Gong.

14At the time of her Complaint, the Personal Respondents were officers or officials of the Association. Mr. Guo was the Chair of the Association’s Council and Ms. Xu was the Secretary. Mr. Guo and Ms. Xu both remained in those positions until December 2002.

15Ms. Huang provided evidence of five incidents in which she alleges that she suffered discrimination.

I. May 2001 – Incident in the Park

16Ms. Huang said that she attended an event organized by the Association in a park in May 2001. A group of Falun Gong practitioners, including her daughter-in-law, were in the park at the same time.

17While she was in the park, she saw the then Vice-Chair, and Ms. Xu, the then Secretary, collecting signatures for an anti-Falun Gong petition. Ms. Ming Liu, who is also a Falun Gong practitioner, told them what they were doing was wrong. Ms. Huang deposed that the Council members shouted and asked if anyone else in the park practised Falun Gong, to which she replied that she did. Ms. Xu asked her when she started practising, and some other questions, and she discussed her reasons for practising Falun Gong with the then Vice-Chair and Ms. Xu.

18An argument about the merits of Falun Gong took place. Ms. Huang said that the then Vice-Chair and Ms. Xu said to her, “Once [people] start practising Falun Gong, [they] will stop taking care of their family and will get divorced. Over 1000 people died as a result of practising Falun Gong.” She responded by advising them of the deceitful propaganda against Falun Gong, and about the “tremendous changes” she experienced both mentally and physically after practicing Falun Gong, and they became silent.

II. December 29, 2001 - Western New Year’s Eve Incident

19Ms. Huang indicated that on December 29, 2001, she attended a Western New Year’s Eve event organized by the Association. When she arrived, she signed a registration form, paid five dollars to renew her membership for 2002, and was given a membership receipt.

20She averred that during the party, another guest at her table asked how she maintained her good health, even at seventy years of age. She described her way of life, including her practice of Falun Gong. She added, “I often carry Falun Gong Truth Clarification flyers in my handbag, so I handed out four or five of those flyers to those who expressed interest at my table.”

21Ms. Huang stated that a Council member and another prominent individual stopped by her table and stared at her briefly. About half an hour later, Ms. Xu advised her that the Council members had collectively decided to return her membership fee. It was her evidence that they had refused to accept her because she practised Falun Gong. She advised Ms. Xu that Falun Gong was a legitimate organization registered in Canada, and that she had not violated her rules of the Association. She told them that their decision was neither legal nor reasonable, and asked for a written decision, but Ms. Xu refused.

22Ms. Xu allegedly replied that Council would not allow her to participate in any more of their activities and had already notified their Association’s team leader. Ms. Huang told Ms. Xu that she wanted to talk to Mr. Guo, the then Chair directly, but Ms. Xu refused this request. Ms. Huang felt she had no choice but to give back her membership receipt to Ms. Xu.

23Ms. Huang said that she asked Ms. Xu to allow her to review the Association’s Constitution. She refused this request as well, but said that the decision to deny Falun Gong practitioners membership had been made unanimously in May 2001. Ms. Huang asked Ms. Xu why the beliefs of “Truthfulness, Compassion and Forbearance” would be discriminated against in Canada, and did not receive a response. Ms. Huang said that she absolutely would not accept their decision.

24Ms. Huang said that the Association never communicated with her in writing about its decision to cancel her membership.

III. Her Telephone Calls to Mr. Guo, then Chair of the Association

25Ms. Huang telephoned Mr. Guo several times over the next month or so, to ask why she was not allowed to be a member of the Association. On December 31, 2001, she called and asked for a copy of the Association’s Constitution. She deposed that he said the Association needed to maintain unity and solidarity with the Chinese government and that no Falun Gong practitioner could be a member of the Association. He told her that the decision to cancel her membership was made on December 29, 2001.

26She wrote two letters to Mr. Guo at his home address. When she did not receive a response, she wrote an open letter challenging the Association’s decision to expel her, that was published in the Ottawa Weekend, on January 25, 2002, and entered as Exhibit “A”. It was contemporaneously republished in the Spring Reader’s Digest.

IV. February 16, 2002 – Chinese New Year’s Celebration

27Ms. Huang attended a Chinese New Year’s Celebration with her son, Xun Li, on February 16, 2002. They met Ms. Xu and two other Council members at the entrance, and when Ms. Huang asked to see Mr. Guo, the request was again refused.

28Ms. Huang said that Council members had set up a table with anti-Falun Gong petition forms on it, and that her son took photographs of these petitions.

29Ms. Huang averred that when her son asked why the Association had terminated her membership, one Council member replied it was because she was against the Chinese government, and a second Council member said, “Falun Gong is an evil cult (xie jiao).” A third Council member had read her open letter to the newspaper and said that just as she had the freedom of speech to write the letter, they had their freedom as well.

30Ms. Huang said that the Association would also not allow Ms. Min Liu, another Falun Gong practitioner, to participate in the Chinese New Year’s Celebration Party and future activities.

V. Continuing Discrimination

31Ms. Huang deposed that in December 2002, new Council members of the Association were elected. Mr. Guo was replaced as Chair. In her evidence, she stated her understanding that Council made a unanimous decision again on December 12, 2002 to uphold their previous decision to cancel her membership and to enforce that decision, thus deliberately reaffirming their prior decision to expel her.

Impact of These Events

32Ms. Huang was unequivocal that she dearly cherishes her beliefs, and that the incident in which a Council member called the Falun Gong an “evil cult” was profoundly hurtful to her.

33She regularly protests against all hate propaganda against the Falun Gong, and has attended Parliament Hill every other week for four years to do so.

34Ms. Huang averred that prior to the termination of her membership, she had made more than twenty friends through the Association’s activities. Now that her membership has been cancelled, most of those friends have stopped having any contact with her. Those friends who have remained in contact with her have asked her repeatedly not to use their names publicly.

35She feels that the Association’s decision to reaffirm their earlier decision to cancel her membership in December 2002 has damaged her dignity, reputation and good standing in society.

36Because of language and cultural barriers and her lack of familiarity with legal matters, she deposed that she has relied on her son and daughter-in-law a great deal, and that this matter has caused her and her family much stress.

37She stated, “Whenever I recall the termination of my membership and the slanderous words by the Council members, I feel that my heart is bleeding.” It has affected her appetite and her sleep.

Xun Li

38Mr. Li is the Complainant’s son. He is a forty-three year-old marketing manager. Like his mother, he resides in Ottawa.

39Mr. Li deposed that on February 16, 2002, he went with his mother to a Chinese community centre in Ottawa for a Chinese New Year’s celebration, hosted by the Association.

40He averred that at the entranceway, he and his mother met Ms. Xu and two other Council members, and when they asked to see Mr. Guo, this request was refused.

41In his evidence, Mr. Li said that he asked the Council members why his mother’s membership in the Association had been terminated, and they said, “Falun Gong is an evil cult.”

42Mr. Li stated that he had observed Council members collecting signatures for a petition denouncing Falun Gong, and that he took a photograph of that petition and related literature, which attached to his affidavit as Exhibit “A”.

43He described his mother’s shock and hurt at the treatment she has received. He also set out why his mother feels “haunted…as though she would never be able to escape the persecution – not even in Canada.”

44Mr. Li said that since the Association’s actions, he has witnessed his mother investing a large amount of her own time and money to counter “the hate propaganda” and to engage in regular protests on Parliament Hill and weekly protests in front of the Chinese embassy, even though she must travel three hours by bus to do so. He feels that these are “extraordinary measures to take” for someone over the age of seventy.

45Mr. Li has obtained a copy of the Association’s Constitution, adopted on August 31, 1996, which he translated himself, and attached to his affidavit as Exhibit “B”. Article 6 states:

This Association is a social organization without religious or political inclinations.

Min Liu

46Ms. Liu is a sixty-eight year-old woman, who is an acquaintance of Ms. Huang.

47She deposed that she began practising Falun Gong in 1994 in China. She met Ms. Huang in 1999 in Ottawa, at a place where they practice Falun Gong.

48Ms. Liu joined the Association in January 2001, and attended two or three of its events in 2001.

49When she tried to pay her membership fee in early 2002, once she advised them of her name, they refused to allow her to renew her membership in the Association. When she asked why, someone said, «Because you are a Falun Gong practitioner.»

50Ms. Liu averred that they told her they had not allowed Daiming Huang to renew her membership and that she could not do so either. They did not want to deal with her or talk to her, and refused to write down the reason why they were refusing to renew her membership, and simply walked away.

51About a month later, she said that when she tried to attend a Chinese New Year’s celebration, someone from the Association stopped her at the door and told her that she could not enter because she practices Falun Gong, and added that, «Falun Gong is an evil cult.» She said that since that incident, she has been told that she is no longer allowed to participate in any activities of the Association.

Ken Bhattacharjee

52Mr. Bhattacharjee has been employed as an investigator with the Commission since July 2003. He conducted the investigation into the Complaint filed by Ms. Huang.

53Mr. Bhattacharjee received a response to the Complaint of Ms. Huang from Mr. Guo, signed as Chair of the Association. His response has been translated by James Chen, an interpreter registered with the Cultural Interpretation Services of Ottawa Carleton. Both the original response and the official translation are attached to his affidavit as Exhibit « A ».

54Mr. Guo’s translated response, addressed to Mr. Bhattacharjee, is reproduced in full, below:

Sorry, I can’t use English.

Sir,

I received your letter of August 27, 2003. The following is my reply:

1. Ottawa Chinese Senior Association (OCSA) is a non-political, non-religious, non-profit organization. Its main mission is to provide an opportunity and a place to seniors for them to keep in contact with and help each other. The activities we hold are mostly in the areas of culture, sports, health, sight-seeing and English-learning.

2. Ms. Daiming Huang engaged in Falungong [sic] activities at OCSA, in violation of the OCSA’s Charter. That caused many members’ dissatisfaction. They requested the OCSA Council to advise Ms. Huang to withdraw from OCSA. This decision was conveyed to Ms. Huang by the Secretary of the Council. Ms.Huang expressed her consent with the Council decision. She took back her membership fee of $5.00 and returned the fee receipt to the Council. Everything was done quietly and calmly. There was no argument, no dispute.

3. On December 12, 2002, OCSA’s 8th Council replaced the 7th Council. The new Council unanimously endorsed the 7th Council’s resolution to ask Daiming Huang to leave OCSA.

4. There are meeting minutes for these two meetings. All the Council members signed the meeting minutes. That bears proof to their opinion. The meeting minutes are still in good keeping [sic], and can be referred to. The members of the 7th and 8th Council are witnesses to the event.

5. Starting from December 12, 2002, I no longer held the position of Chairman of OCSA, and I was no longer a member of the Council. If you have any queries to make, please contact the 8th OCSA Council.

Because I am rather advanced in years, and someone in my family is very ill who needs to rest quietly. I hope you shall not disturb me in future. Please have respect for my private life. I believe Human Rights Commission will be very considerate of my situation.

Shen Guo

August 10, 2003 (The month is scribbled and unclear.)

David Ownby

55Dr. Ownby’s evidence was submitted by the Commission in order to provide the Tribunal with an expert opinion on Falun Gong.

56Dr. Ownby has a Ph.D. in History and East Asian Languages from Harvard University, and is currently employed as the Director of the Centre for East Asian Studies at the University of Montreal, where he is a full professor. His areas of research are: the history of popular religion in China; the history of Chinese Millenarianism; and the history of French Sinology. He has written twenty-two published articles on Falun Gong, many of which have appeared in peer-reviewed academic journals.

57After reviewing Dr. Ownby’s extensive work in this field as set out in his Curriculum Vitae, the Tribunal qualifies him as an expert in Falun Gong. His evidence is relevant, necessary, unhindered by any exclusionary rule, and he is a properly qualified expert on the subject. See : R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at paragraph 17.

58Dr. Ownby outlined the history of the Falun Gong, which is also known as the Falun Dafa. It was founded in 1992 by Li Hongzhi, in the People’s Republic of China.

59The translation of the term « Falun » is « The Law Wheel. » Dr. Ownby stated that « Gong » is an abbreviation of « quigong », and refers to the discipline of refining the mind and body through special exercises and meditation. The practice of Falun Gong has two components : (1) self-improvement through the study and application of one’s personal life through the teachings of Li Hongzhi as set out in detail in two texts, which Dr. Ownby describes as a form of « scripture » and the content of which is « profoundly moral »; and (2) performing five gentle exercises.

60Dr. Ownby deposed that the teachings of Falun Gong are based on the principles of « truthfulness, » « compassion, » and « forebearance. » Falun Gong draws on popular Buddhism and teaches practitioners to work off « bad karma » through moral practice, based on these three principles. He defines « karma » as the positive or negative consequences produced by good or bad actions in past and present lives.

61He stated that the Chinese government banned Falun Gong in 1999, describing it as a « xiejiao zuzhi », meaning « cult », « heterodox religious organization » or « heretical organization », which brainwashes followers and has caused more than 1,400 deaths. He set out details of the « persecution » of its practitioners, and the numerous published reports of various human rights organizations on the subject. He believes that this persecution of Falun Gong practitioners has been extended to Canada as well.

62Dr. Ownby described the differences between Chinese religion and Western religion. One key difference is that since the mid-Ming period, Chinese religion tends to be based on popular religious practice, whereas Western religions tend to be more institutionalized and based on churches, denominations, hierarchies and doctrines. Moreover, Falun Gong arose in a Communist state, where the term « cultivation practice » has more political acceptance than « religion. »

63Dr. Ownby’s opinion, set out in his affidavit at paragraph 13, is reproduced below :

Western scholars of religion would characterize Falun Gong as a new religious movement. The essence of Falun Gong is spiritual elevation. Falun Gong practitioners believe in the existence of gods and divine beings in the cosmos. Its leader, Li Hongzhi, has written a form of « scripture. » His message is profoundly moral.

64While Falun Gong is often described as a « spiritual practice » or « cultivation practice », that is due partly to its non-institutionalized tradition, and partly to the cultural and political climate from whence it emerged. Dr. Ownby believes that in Western terms, Falun Gong ought to be described as a « religion » or « creed. »

FINDINGS OF FACT AND LAW

65The Tribunal has carefully reviewed the affidavit evidence of all the deponents, and the documentary evidence that has been submitted. The Tribunal relies upon this uncontradicted evidence, and is satisfied that the Commission and the Complainant have established a prima facie case of discrimination with respect to services on the ground of creed as alleged. Based on the self-incriminating letter that Mr. Guo, then Chair of the Association, sent to the Commission’s investigator in response to the Complaint, and the uncontradicted evidence of the deponents, the Tribunal is satisfied that the discrimination was wilful and intentional, that its purpose was to prevent Falun Gong practitioners from belonging to the Association, and that the Association subsequently reconfirmed its discriminatory decision.

Summary of Findings

66The following is a summary of the Tribunal’s findings for Ms. Huang:

(1) Her practice of Falun Gong constitutes a form of creed within the meaning of the Code.

(2) Her right to equal treatment with respect to services without discrimination based on creed was infringed by the Respondents, contrary to sections 1 and 9 of the Code.

(3) The Respondents are jointly and severally liable for these breaches.

67Below the Tribunal sets out the reasons for these findings of fact and law.

Falun Gong is a Form of Creed

68The term « creed » is not defined within the Code, thus the Tribunal has looked to other definitions for guidance.

69The Commission’s Policy on Creed and the Accomodation of Religious Observances, 1996, offers the Commission’s own definition of « creed » as set out below :

Creed is interpreted to mean « religious creed » or « religion. » It is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in God or gods, or a single supreme being or deity is not a requisite.

Religion is broadly accepted by the Commission to include, for example, non-deistic bodies of faith, such as the spiritual faiths/practices of aboriginal cultures, as well as bona fide newer religions (assessed on a case by case basis).

The existence of religious beliefs and practices are both necessary and sufficient to the meaning of creed, if the beliefs and practices are sincerely held and/or observed. [emphasis theirs]

70The Concise Oxford Dictionary, 10th edition, revised, Oxford University Press: 2001, defines « creed » as follows :

creed. n. 1. a system of religious belief; a faith. A formal statement of Christian beliefs. 2. a credo – ORIGIN OE, from L. CREDO.

71The term « creed » is also set out in Webster’s Encyclopedic Unabridged Dictionary of the English Language, Gramercy Books, New York: 1994, as follows:

Creed, n. 1. an authoritative formulated statement of the chief articles of Christian belief, as the Apostles’ Creed, the Nicene Creed, or the Athanasian Creed. 2. the creed, See Apostles’ Creed. 3. any formula of religious belief, as of a denomination. 4. an accepted system of religious belief. 5. any system of belief or of opinion…

72The Tribunal is satisfied that based on these different definitions of creed, and the expert evidence of Dr. Ownby set out in paragraph 63 that he views the Falun Gong as a « new religious movement, » the Tribunal finds that Falun Gong objectively qualifies as a form of « creed » within the meaning of the Code. It also clearly meets the subjective test, since it forms the deeply and sincerely held personal beliefs of the Complainant about her own spirituality. See: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 at paragaph 46.

"Services" includes Offering Membership in an Association

73The term « services » is also not defined in the Code. See : Braithwaite v. Ontario (Attorney General)(No.1) (2005), CHRR Doc.05-470, at paragraph 20.

74The Tribunal has considered the extensive and wide-ranging meaning of the definition given for the terms « service » and « services » as contained in the Concise Oxford Dictionary, supra, set out below :

Service n. 1. the action or process of serving. An act of assistance. A period of employment with a company…2. a system supplying a public need such as transport, or utilities such as electricity and water. A public department or organization run by the state : the probation service, the armed forces. (services) chiefly Brit. A motorway service area. 3. a ceremony of religious worship according to a prescribed form. 4. a set of matching crockery used for serving a particular meal. 5. (in tennis, badminton, etc.) a serve. 6. a periodic routine inspection and maintenance of a vehicle or other machine. v. 1. perform routine maintenance or repair work on (a vehicle or machine). Provide a service or services for. 2. pay interest on (a debt). 3. (of a male animal) mate with (a female animal).

75Similarly, the Webster’s Encyclopedic Unabridged Dictionary, supra, contains a very extensive definition of both terms « service » and « services », which states, inter alia :

…13. Often, services the performance of any duties or work for another; helpful or professional activity : medical services….

76As with the dictionary definitions, the legal interpretation of the term « services » within the meaning of the Code has also been very extensive, and includes private club membership. It includes, but is certainly not limited to, the following recent examples: education (see: Trinity Western University v. College of Teachers (British Columbia), 2001 SCC 31, [2001] 1 S.C.R. 772; private club membership (see: Barclay v. Royal Canadian Legion, Branch 12 (1997), 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486); organized sports (see: Blainey v. Ontario Hockey Assn. (1986), 1986 CanLII 6547 (ON CA), 7 C.H.R.R. D/3529 (Ont. C.A.); a fishing derby (see: Baptiste v. Napanee & District Rod & Gun Club (1993), 1993 CanLII 16495 (ON HRT), 19 C.H.R.R. D/246 (Ont. Bd. Inq.); and the decision to hold a coroner’s inquest and the inquest itself (see: Braithwaite, supra).

77The Tribunal follows the analysis of the term provided by Mr. Justice Cory in Braithwaite, supra, at paragraph 22, where he held that:

As I stated earlier, « service » must mean something which is of benefit that is provided by one person to another or to the public. The Human Rights Code of Ontario is certainly remedial in its purpose and must therefore have the least restrictive definition applied to it. Chief Justice Dickson recognized the importance of Human Rights Legislation and considered the manner in which they should be interpreted in C.N.R. v. Canada (Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 at para.248 [8 C.H.R.R. D/4210]. There he said :

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement and the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize these rights and to enfeeble their proper impact. (Emphasis added).

Discrimination on the Basis of Creed within the Provision of Services

78The Tribunal accepts Ms. Huang’s uncontraverted evidence that these five incidents occurred, as set out in detail in paragraphs 16 – 31. The Tribunal finds that these incidents constitute repeated and wilful discrimination against her on the basis of creed within the provision of services offered by the Respondents.

79Moreover, the Tribunal finds that Ms. Huang’s evidence of the Respondents’ discriminatory animus against practitioners of Falun Gong has been corroborated by the uncontraverted evidence of both Ms. Liu and Mr. Li, and actually admitted in the correspondence sent to the Commission’s investigator by Mr. Guo in response to this Complaint.

80The Respondents have deliberately and repeatedly publicly excluded her from their Association for a discriminatory purpose and demeaned her by referring to her creed as an « evil cult ». As the Supreme Court of Canada held in University of British Columbia v. Berg (1993), 1993 CanLII 89 (SCC), 18 C.H.R.R. D/310 at paragraph 75 :

…while the existence of a discretion may mean that the person with the discretion is under no obligation or duty to extend the service or facility to everyone who asks for it, he or she is surely under an obligation to not make his or her decision in a discriminatory fashion.

81Thus, the Respondents have violated the quasi-constitutional right of Ms. Huang to be free from discrimination in services based on her creed under the Code. See: B. v. Ontario (Human Rights Commission) 2002 SCC 66, [2002] 3 S.C.R. 403.

82The Respondents have chosen not to participate in these proceedings, and so the Tribunal does not have any evidence with respect to whether or not they would have had a defence available to them under section 18 of the Code.

83In Mr. Guo’s earlier letter to the Commission, he described the Association as «a non-political, non-religious, non-profit organization » adding that, « Ms. Daiming Huang engaged in Falungong [sic] activities at OCSA, in violation of the OCSA’s Charter, » and admitted that the Secretary of the Association had asked Ms. Huang to « withdraw ».

84To some extent, Ms. Huang may have been proselytizing her faith when she handed out Falun Gong flyers to others seated at her table during the Association’s Western New Year’s Eve party held on December 29, 2001. However, there is no evidence before the Tribunal that such activity violated the Association’s Charter, nor would it have changed the outcome of the other four incidents in which they sought to ban her participation and membership because of her beliefs in any event. Moreover, the Association actively engaged itself as an organization in the issue of creed in a malicious manner when it conducted a signing campaign against the Falun Gong.

85The Respondents’ treatment of Ms. Huang has caused her great pain. These discriminatory acts have exposed her to exclusion, contempt and derision within her social sphere, costing her many friendships and standing within the community that this Association is meant to promote. As an older person who came to Canada later in life, this sudden loss of standing and isolation within her own cultural community because of her faith was a particular affront to her dignity.

REMEDY

86The Commission provided the Tribunal with detailed submissions about the requested remedy, which included a request for general damages, a claim for damages arising from mental anguish, pre- and post-judgment interest, and public interest remedies. No claim was made for special damages. The Tribunal sets out its awards and reasons for same below.

Joint and Several Liability

87The discriminatory acts committed by the Personal Respondents took place in their roles as officers or officials of 1233065 Ontario Inc., operating as the Ottawa Chinese Senior Association, and as such, are deemed to be the acts of 1233065 Ontario Inc., pursuant to section 45(1) of the Code. Moreover, the decision made by the new officers or officials of 1233065 Ontario Inc. to reconfirm the discriminatory expulsion of Ms. Huang also bound the corporation. Thus, it is appropriate that the Order be against the Respondents, jointly and severally.

General Damages

88The Tribunal has considered the following in making this award: the loss of dignity and personhood suffered by Ms. Huang; the seriousness, frequency and duration of these repeated infringements; her vulnerability; and her experience of victimization in the form of religious persecution.

89Her loss of dignity and personhood are directly linked to the infringement of her rights with respect to services based on her creed. The Respondents’ repeated acts of contempt for her faith and their deliberate exclusion of her from their Association, to which she had been a member, constitute separate incidents of discrimination. These violations are in contravention of sections 1 and 9 of the Code.

90The intrinsic value of the right to be free from discrimination forms the basis of general damages, and is separate from mental anguish. See: Entrop v. Imperial Oil Ltd. (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd. Inq.), paragraph 50; affirmed (1998), 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433 (Ont. Div. Ct.); reversed in part (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. C.A.), paragraphs 135-137.

91There is no ceiling on general damage awards, nor should they be so low as to be trivial and become akin to a « license fee ». See: Ontario (Human Rights Comm.). v. Shelter Corp (« Kearney »), (2001) 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 at paragraphs 43-44 (Ont. Div. Ct.); Gohm v. Domtar Inc. (No.4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 at paragraphs 126-127 (Ont. Bd. Inq.); Gibbons and Ladouceur v. Sports Medic Inc. (2003), 2003 HRTO 26, 48 C.H.R.R. D/98 at paragraphs 49-50; Baylis-Flannery v. DeWilde (No.2) (2003), 2003 HRTO 28, 48 C.H.R.R. D/197 at paragraph 173 (Ont. Bd. Inq.); Sanford v. Koop 2005 HRTO 52 at paragraph 34; and Boodhram v. 2009158 Ontario Limited 2005 HRTO 54 at paragraph 23.

92In light of the facts of this case, the Tribunal finds that $10,000 for general damages is appropriate against the Respondents, jointly and severally.

Damages for Mental Anguish

93The Tribunal finds that the repeated violations of Ms. Huang’s rights were wilful, and have resulted in ongoing mental anguish to her, as per section 41(1)(b) of the Code. In particular, they repeatedly confronted her about her religious beliefs, publicly revoked her membership, reconfirmed the discriminatory decision to revoke her membership during a subsequent meeting of the new Council, and participated in organizing petitions against her religion during Association events. As she deposed, since these incidents, she has experienced issues with her appetite and sleep patterns, and stated, « I feel that my heart is bleeding ».

94As an older person who has lost many valuable friendships within her own community as a result of these discriminatory acts, and whose remaining friends have asked her for anonymity, she feels both victimized and vulnerable. Although her advanced age is not relevant to the issue of liability, the Tribunal finds that the Respondents are responsible for the extent of the mental anguish that flows from their repeated acts due to her vulnerability. See: Arias v. Desai (No.2)(2003) 2003 HRTO 1, 45 C.H.R.R. D/308 (HRTO) at paragraph 170, and Ketola v. Value Propane Inc. (No.2), (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd. Inq.) at paragraph 11.

95In particular, her evidence about her cultural context and her ongoing behaviour since these events occurred are consistent with someone who feels persecuted.

96The Tribunal finds that her damages for mental anguish are $8,000 against the Respondents, jointly and severally.

Pre- and Post-Judgment Interest

97The Commission has sought pre-judgment interest from the date on which the original Complaint was served on the Respondents, being July 15, 2002. The Tribunal finds this request appropriate, and so orders pre-judgment interest on all awards in accordance with section 127 of the Courts of Justice Act, R.S.O. 1990, c. C43, fixed at 2.5 percent per annum. See : Hom v. Impact Interiors Inc. (1993), 1993 CanLII 16449 (ON HRT), 23 C.H.R.R. D/345 (Ont. Bd. Inq.) at paragraph 17; reversed (1995), 1995 CanLII 18145 (ON CTGDDC), 23 C.H.R.R. D/348 (Ont. Ct.(Gen. Div.)); reversed (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont.C.A.); and Cameron v. Nel-Gor Castle Nursing Home and Nelson (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd. Inq.) at paragraphs 18564-18565.

98The Commission also sought post-judgment interest. The Tribunal has determined that in order to promote compliance with the order herein, post-judgment interest is ordered on all damages, commencing thirty days from the date of this decision, in accordance with section 127 of the Courts of Justice Act, supra, fixed at 5 percent per annum.

Public Interest Remedies

99In accordance with subsection 41(1)(a) of the Code, the Tribunal directs that the Respondents take the following measures in order to achieve compliance with the Code and in respect to their future practices:

(1) Immediately revoke the exclusion of the Complainant and any other Falun Gong practitioners from their Association.

(2) Within three months of this decision, Post Human Rights Code cards written in English and Mandarin in prominent places at the Association’s premises. Any cost associated with the translation of these Code cards must be paid by the Respondents.

(3) Within three months of this decision, the Respondents must implement an anti-discrimination policy, that explicitly addresses religious animus, and provide a copy of this policy to the Commission within that timeframe.

(4) Within six months of this decision, the Respondents must amend their Association’s Constitution, to incorporate anti-discrimination provisions that specifically address religious animus, and provide a copy of it to the Commission within that timeframe.

ORDER

100The Respondents are ordered to pay Daiming Huang the following amounts within thirty days of this Order :

(1) $10,000 as compensation for her loss of dignity resulting from the repeated infringement of her rights under sections 1 and 9 of the Code

(2) $8,000 as compensation for her mental anguish caused by the infringement of her rights

(3) pre-judgment interest on the awards, commencing on July 15, 2002 fixed at 2.5 percent per annum, and post-judgment interest on all of the above under the Courts of Justice Act, supra, fixed at 5 percent per annum, commencing thirty days from the date of this Order.

101Moreover, the Respondents are ordered and directed to take the following actions to achieve compliance with the Code in respect of their current and future conduct and practices:

(1) Immediately revoke the exclusion of the Complainant and any other Falun Gong practitioners from their Association.

(2) Within three months of this decision, post Human Rights Code cards written in English and Mandarin in prominent places in their Association’s premises; any cost associated with the translation of these Code cards must be paid by the Respondents.

(3) Within three months of this decision, the Respondents must implement an anti-discrimination policy, that explicitly addresses religious animus, and provide a copy of this policy to the Commission within that timeframe.

(4) Within six months of this decision, the Respondents must amend their Association’s Constitution, to incorporate anti-discrimination provisions that specifically address religious animus, and provide a copy of it to the Commission within that timeframe.

102The Tribunal will remain seized of this matter for a period of twelve months from the date of this Order, so that it may deal with any implementation issues that arise.