Ontario Human Rights Commission v. Paradise Fine Foods Ltd., 2007 HRTO 12

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Joseph Modi Complainant

-and-

Paradise Fine Foods Ltd. Sayed Ben Aycha, Muhamad Omarbach Respondents

DECISION

Adjudicator: David Mullan Date: March 21, 2007 Citation: 2007 HRTO 12

Human Rights Tribunal of Ontario 400 University Avenue, 7^th^ 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

APPEARANCES

Ontario Human Rights Commission ) Sharon Ffolkes-Abrahams, ) Counsel and Richard Miller, ) Student-at-Law

Joseph Modi, Complainant ) On his own behalf

Paradise Fine Foods Ltd, Corporate Respondent ) Muhamad Omarbach, Personal Respondent ) Louis Mostyn, Counsel and Sayed Ben Aycha, Personal Respondent ) Matthew Mostyn, Student- ) at-Law

INTRODUCTION

1Joseph Modi, the Complainant, is a black African born in southern Sudan. He is also a Christian. He has alleged that the Respondents infringed his right under sections 1 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”) to equal treatment with respect to services, goods, and facilities without discrimination because of ethnic origin, place of origin, and creed. The Complaint arose out of events that occurred in a food store and restaurant at 240-242 Parliament Street, Toronto, on January 27, 1999. The Corporate Respondent owned the store. Muhamad Omarbach was the director of the Corporate Respondent and involved in the day-to-day operations of the business. The other Personal Respondent, Sayed Ben Aycha, was employed as a butcher in the store.

2The Complainant claimed that when he went to the store, Paradise Fine Foods, on January 27, 1999 to purchase meat, Sayed Ben Aycha both insulted and assaulted him and another customer because of their ethnic origin, place of origin, and creed. He also claimed that Muhamad Omarbach became a party to the events and joined in the assault on him, and that, in any event, Muhamad Omarbach, as the director and owner of the Corporate Respondent and the operator of the business, is liable for the existence of a poisoned environment and the discriminatory acts of Sayed Ben Aycha and other unnamed employees who also joined in the alleged attack on the Complainant and the other customer. Finally, the Complainant seeks to hold the Corporate Respondent liable for discrimination on the basis of section 45 of the Code deeming the actions of employees in the course of their employment to be those of the employing corporation.

3In its pleadings, the Ontario Human Rights Commission (“the Commission”) has sought a number of remedies against the Respondents both on behalf of the Complainant and in the public interest. While there is no claim for special damages, the Commission has asked for $20,000 general damages for the Complainant’s loss of the right to be free from discrimination and $10,000 damages for the Complainant’s mental anguish arising from what was asserted to be a wilful and reckless infringement of the Complainant’s rights. To these heads, it added a claim for both pre- and post-judgment interest. In addition, the Commission seeks an order that the Personal Respondents undergo at their own expense sensitivity training on the Code and its objectives as well as a letter of apology from each of the Respondents. The Commission also requested orders that the Corporate Respondent post the Code in prominent places in the store as well as the institution and observance of an anti-discrimination policy.

4The Respondents resisted all these allegations and claims. More particularly, the Respondent, Sayed Ben Aycha asserted that whatever altercation took place was the responsibility of the Complainant. Muhamad Omarbach denied any role in the events giving rise to the Complaint and testified that he was not present on the premises at the time. The Respondents also argued that, as a matter of law and fact, whatever transpired between the Complainant and Sayed Ben Aycha was not “with respect to services, goods and facilities” in terms of section 1 of the Code. While the events happened to take place in the store, it was contended that there was no connection or nexus between those events and access to a service, the purchase of meat, or a prohibited ground of discrimination.

5The determination of what happened at Paradise Fine Foods on January 27, 1999 hinges critically on the credibility of the various witnesses and, in particular, the Complainant, the other customer, and the two Personal Respondents. Thereafter, the issue of liability will hinge on whether the facts as found justify the conclusion that, as a matter of law, there was an infringement of the right to equal treatment without discrimination “with respect to services, goods and facilities”.

PRELIMINARY MATTERS

6In the course of the hearing, I issued four interim rulings. They were as follows:

7As a result of an incident during the luncheon adjournment on Friday, June 3, 2005 in which one of the Respondents pursued one of the Commission’s witnesses through part of downtown Toronto, I issued an order [unreported] directing the Respondents to refrain from stalking or following the Complainant or any of the Complainant’s or the Commission’s witnesses for the duration of the hearing.

8At the conclusion of the Commission’s case, Counsel for the Respondents moved for a dismissal of the Complaint on the basis that the evidence had not established a prima facie case of discrimination. The Commission resisted this motion and also moved that I impose as a condition of making it that the Respondents forego the right to lead evidence in the event that I dismissed the motion. I ruled that Counsel for the Respondents could make his motion without foregoing the right to call evidence. I then rejected that motion on its merits holding that the Commission had made out a prima facie case of a violation of the Code on the evidence that it presented and, in particular, that there was a sufficient prima facie case on the existence of a nexus between the conduct relied upon and a violation of the Code: Modi v. Paradise Fine Foods Ltd. 2005 HRTO 24.

9In testifying, the Respondent, Sayed Ben Aycha provided an account of the relevant events that was totally at odds on crucial matters with the testimony of the Complainant, Joseph Modi, and another eyewitness, Simon Ayumé. At no point during his cross-examination of Mr. Modi or Mr. Ayumé did Counsel for the Respondents put Mr. Ben Aycha’s version of the events to these witnesses. In response to a motion by Counsel for the Commission, Counsel for the Respondents conceded that this was a violation of the rule in Browne v. Dunn (1893), 6 L.R. 67 (H.L.). I therefore ruled that Mr. Modi could be recalled for the explicit purpose of having Mr. Ben Aycha’s version of the events put to him with a right of re-examination reserved to the Commission. (The Commission and Mr. Modi duly took advantage of that opportunity.) However, I also ruled that it would not be appropriate to subject Mr. Ayumé to recall (particularly given the emotional upset he had experienced as a result of the pursuit through the streets of downtown Toronto). In his case, I indicated that I would take the violation of the rule in Browne v. Dunn into account in the weight that I gave to the testimony of Mr. Ben Aycha: Modi v. Paradise Fine Foods Ltd. 2005 HRTO 19.

10Counsel for the Respondents indicated that he intended to call various customers of Paradise Fine Foods Ltd. to testify as to the friendly, discrimination-free environment that they experienced at the store operated by that company and at which the two Personal Respondents worked. I upheld a motion by the Commission challenging the admissibility of any such general evidence. While the Commission had pleaded that the Corporate Respondent and the Personal Respondent, Muhamad Omarbach, were responsible for the creation of a poisoned environment at the premises of Paradise Fine Foods Ltd., none of the facts pleaded in support of the Commission’s case provided any basis for such an allegation. Once that aspect of the case was eliminated, I held that any such general evidence from customers would be in the nature of character evidence and that the only appropriate testimony to that effect would be from black African Christians of Sudanese origin. Ultimately, there were no such witnesses: Modi v. Paradise Fine Foods Ltd. 2005 HRTO 25.

DECISION

11The Personal Respondent, Sayed Ben Aycha, violated Joseph Modi’s right to equal treatment in the provision of a service under section 1 of the Code by discriminating against him on the basis of creed and ethnic origin. This discrimination took the form of both verbal and physical attacks. Damages for that violation are assessed at $10,000 general damages and $5,000 mental distress damages. By virtue of section 45(1) of the Code, the Respondent, Sayed Ben Aycha, and the Corporate Respondent, Paradise Fine Foods Ltd., are jointly and severally liable for those damages.

12The Commission failed to establish on a balance of probabilities that the Personal Respondent, Muhamad Omarbach, was present on the occasion of the violation of section 1 of the Code and the Complaint against him is dismissed. Similarly, the claim of liability against the Corporate Respondent and Mr. Omarbach based on the creation of a poisoned service environment at the premises of Paradise Fine Foods Ltd. is dismissed for lack of evidence.

PROCEEDINGS

13The hearing took place over nine days: June 1-3 and 7-9, 2005, July 7, 2005, August 26, 2005, and September 19, 2005. The Commission called the following witnesses: Dr. Robert Shenton, Joseph Modi, Dr. Cheryl Sheibman, and Simon Ayumé, while the Respondents called Bashir Zummeit, Earl Mervin, Sayed Ben Aycha, Omar Haqani, Jamal Nasser, Hadauri Sidahamed, Muhamad Omarbach, and Detective Constable Darren Arsenault. In the course of the hearing, I issued four interim decisions.

FACTS

14On January 27, 1999, Joseph Modi entered Paradise Fine Foods at 240-242 Parliament Street, Toronto to purchase meat. Paradise Fine Foods operated a hallal butchery and Mr. Modi was partial to hallal meat for reasons of taste and freshness, not belief or religion. He had been patronizing the store for eighteen months to two years and was known to the proprietor, Muhamad Omarbach. As well, the current butcher, Sayed Ben Aycha, who had been working there since August 1998, knew Mr. Modi as a customer. They generally spoke to one another in Arabic and Sayed Ben Aycha knew that Mr. Modi was from Sudan. It was unclear on the evidence whether Mr. Ben Aycha was aware that Mr. Modi was a Christian.

15Mr. Modi was born in southern Sudan near the border with Uganda. He spoke a number of local dialects, including Kakwa (derived from Bari) but was also fluent in Arabic, the language of his schooling. Mr. Ben Aycha was born in Tunisia and his first language was Arabic.

16On arriving at Paradise Fine Foods, Mr. Modi went immediately to the rear of the store/restaurant to where the meat counter was located. Before he placed his order for meat with Mr. Ben Aycha, he had an encounter at the meat counter with Simon Ayumé who entered the store almost immediately after Mr. Modi. Mr. Ayumé was not a regular customer but had been attracted by a sign in the store window to the effect that there was someone on the premises who did computer repairs. Simon Ayumé, who had been born in Uganda, and Joseph Modi knew one another from previous encounters in community settings though they had not met for some time. They greeted each other in Arabic but then almost immediately switched to talking in Kakwa or Bari. At that juncture, Sayed Ben Aycha inquired in Arabic of Simon Ayumé whether he was from Sudan and Ayumé explained that he was from Uganda. It was from this point on that the testimony of the three key personnel began to differ.

The Testimony of Joseph Modi

17Joseph Modi testified that Sayed Ben Aycha then stated that Sudan was a Muslim country and that all Africa would one day be Muslim, “Insha’Allah” (“God willing”). Mr. Modi responded by asserting that it was up to Africans to make up their own minds about such matters. According to Mr. Modi, Mr. Ben Aycha reacted by telling Mr. Modi to shut up or he would cut off his tongue. Mr. Modi retorted to the effect that they were living in Canada and were not ruled by Islamic Fundamentalists. Canadians had to account to Jean Chretien. Shortly thereafter, as tempers frayed further, Mr. Ben Aycha allegedly took a box of frozen chickens or chicken parts from the meat counter and hurled it at Mr. Modi, catching Mr. Modi heavily on his shoulder. Mr. Ben Aycha then picked up a meat cleaver and came out from behind the meat counter advancing on Mr. Modi. Mr. Modi tried to ward off the attack by shielding himself with a shoulder bag that he had brought with him for the meat he was about to purchase. However, he was not totally successful as Mr. Ben Aycha caught him with the meat cleaver in the web between the thumb and index finger on his right hand. Mr. Modi then started bleeding. In an attempt to evade Mr. Ben Aycha, Mr. Modi then started running around the store between the rows of shelves pursued by Mr. Ben Aycha. At this point, other Paradise Fine Foods employees entered the fray. This included Mohamad Omarbach who came from one of the cash registers at the entrance to the store and started throwing cans of beans from the shelves at Mr. Modi’s head. One of these cans hit Mr. Modi on the back of the head and he started bleeding from that blow as well. At this point, bleeding a lot and feeling dizzy, he called out to Simon Ayumé. However, he noticed that Sayed Ben Aycha and others had set upon Mr. Ayumé and he decided that the better course of action was to escape from the store and run to a nearby police station to seek help. This he did. The police responded by sending an officer to the store and summoning an ambulance to take Mr. Modi to hospital.

The Testimony of Simon Ayumé

18Simon Ayumé corroborated many of the main elements of Mr. Modi’s account of the events. However, his testimony varied from that of Mr. Modi at a number of points. It was also the case that, while he pointed to Mr. Omarbach as the person who ran at Mr. Modi throwing food containers, he mistakenly identified Mr. Mostyn’s accountant as the butcher, Sayed Ben Aycha. The accountant, Earl Mervin looked nothing like Mr. Ben Aycha, who was also present in the hearing room at the time. Later, he revised his opinion and identified Mr. Ben Aycha as the butcher.

19Mr. Ayumé stated that, after he had told Mr. Ben Aycha that he was not from Sudan but Uganda, Mr. Ben Aycha asked him and Mr. Modi whether they were Muslims. Mr. Ayumé replied that he was not and identified himself as a Christian. Mr. Modi did not say anything at this point. However, Mr. Ben Aycha retorted that it was good to be a Muslim and that Mr. Ayumé should become one. He then asserted that the whole of Sudan was Muslim. It was at this point, according to Mr. Ayumé, that Mr. Modi and Mr. Ben Aycha began to engage in a debate on the extent to which Sudan was Muslim and the appropriateness of the conversion of the whole of Sudan to Islam. Gradually, the conversation became more heated on both sides and, eventually, Mr. Ben Aycha told Mr. Modi, in the name of Allah, to “shut up” or he would cut out his tongue. Mr. Modi responded by telling Mr. Ben Aycha that he was in Canada, not Sudan, and could not threaten Mr. Modi in this way. Mr. Modi also mentioned taking Mr. Ben Aycha to court to which Mr. Ben Aycha retorted that, in the name of Allah, he was prepared to go to court. He then threw something at Mr. Modi but Mr. Ayumé was not able to identify what it was. While Mr. Modi was trying to get to his shoulder bag, Mr. Ben Aycha punched Mr. Modi to the head. Mr. Modi could not reach him to retaliate and Mr. Ben Aycha then came at Mr. Modi from behind the counter with a cleaver. Mr. Modi tried to ward off the blow and, in doing so, his hand was cut. Mr. Modi and Mr. Ben Aycha then started wrestling. It was noisy and other employees came on the scene, perhaps as many as six. By then, Mr. Ayumé was trying to separate Mr. Modi and Mr. Ben Aycha but the other employees did not know that and they started beating him. At that point also, Mr. Omarbach came throwing bottles. One of these hit Mr. Ayumé in the head and he says that he started bleeding profusely. Mr. Modi, now separated from the struggle, yelled that they should clear out but Mr. Ayumé was not in a position to do so as he was under restraint. At that point, according to Mr. Ayumé, a man in his late 20s or early 30s raised a long knife to strike him. However, Mr. Ben Aycha intervened and said that Mr. Ayumé was not the problem. At some point, during this fracas, Mr. Ayumé noticed that Mr. Modi had left the store.

20After Mr. Ben Aycha had intervened on his behalf, Mr. Ayumé also left the store. While he was standing outside the store, a passer-by saw that he was bleeding and told him to go to the hospital. This he did and he was attended to but did not require stitches. Next day, he went to the police.

21January 27, 1999 was the first occasion on which Mr. Ayumé had been in Paradise Fine Foods and he has not been back since nor has he even passed by. He professed to be too scared to do that.

The Testimony of Sayed Ben Aycha

22According to Sayed Ben Aycha, when he asked Mr. Ayumé whether he was from Sudan, Mr. Modi “blew up” in a way that amazed Mr. Ben Aycha. Mr. Modi made the claim that Africa was once a nation of one people. However, all that changed when the Arabs and Muslims arrived and took away and destroyed the land. When Mr. Modi said this and other hateful things about Muslims, Mr. Ben Aycha reacted by saying that Mr. Modi was inaccurate and this provoked Mr. Modi even further, cursing Arabs and Muslims and saying that he would kill all Arabs and Muslims if he could and indeed that he would kill Mr. Ben Aycha if he had a gun. To this, Mr. Ben Aycha responded that they were in Canada, not the jungle. At this point, Mr. Modi “lost it” and attempted to hit Mr. Ben Aycha with his shoulder bag. However, Mr. Ben Aycha moved back from the counter and Mr. Modi could not reach him. Mr. Modi then went on a rampage around the store, throwing bottles and cans from the shelves. Mr. Ben Aycha testified that he was scared and knelt on the floor behind the meat counter to avoid Mr. Modi. From there, however, he saw the cashier, Mr. Sidahamed, approach Mr. Modi and tell him three times to leave. Mr. Modi was undeterred and continued to clear the shelves of their products. At that point, the manager who replaced Mr. Omarbach on his day off, Mr. Hayyam, rushed to the phone behind the showcase and called the police. As soon as Mr. Modi heard the word “police”, he fled from the store. During all this, he did not see Mr. Ayumé and had no idea what Mr. Ayumé was talking about when he said that Mr. Ben Aycha’s intervention had saved his life.

The Testimony of Muhamad Omarbach

23For his part, Muhamad Omarbach testified that he was not in the store at the time. Wednesday was his day off and he was at his barber’s having his hair cut and beard trimmed. He came to the store only later when he learned of what had happened. Mr. Ben Aycha had earlier testified to the same effect.

The Testimony of Jamal Nasser and Hadauri Sidahamed

24Two other Paradise Fine Foods personnel testified: Jamal Nasser and Hadauri Sidahamed.

25At that time, Mr. Nasser was the cook in the restaurant portion of the store. He came out of the restaurant only after the engagement at the meat counter and when Mr. Modi was running around the store. He heard a commotion and assumed something was wrong. He testified that when he emerged from the restaurant, he saw Mr. Modi throwing a container of honey. He also testified that Mr. Ben Aycha was hiding under the meat counter, that the store was in a mess with lots of broken bottles on the floor, and that he tried unsuccessfully to reason with and restrain Mr. Modi. He stated that he saw no blood, that Mr. Omarbach was not present, and that he noticed that Mr. Modi had left the store shortly after someone had mentioned that the police were coming. He had no recollection of the presence of Mr. Ayumé. Once calm was restored in the wake of Mr. Modi’s departure, he returned to the restaurant and did not speak to the policeman when he arrived. As to the precipitating cause of what transpired, Mr. Nasser’s testimony is of no value. His reliability as a witness is also put into question by his failure to notice Mr. Ayumé and a seeming inability to account for the actions of the two other employees of Paradise Fine Foods who were also present. His testimony was mainly concentrated on his interaction with Mr. Modi, and his observations of the state of the store and Mr. Ben Aycha hiding behind the counter.

26According to his testimony, Hadauri Sidohamed was the cashier that day. His evidence bore a remarkable similarity to that of Jamal Nasser in both what he recollected and what he did not recollect. His role was one of trying to pacify Mr. Modi and to persuade him to leave the store. He had no recollection of Mr. Ayumé’s presence nor did his testimony locate the other two employees of Paradise Fine Foods who were present after the initial attack and when Mr. Modi was allegedly rampaging around the store: Mr. Nasser, the cook, and Mr. Hayyam, the person acting as store manager in Mr. Omarbach’s absence and who did not testify.

Assessment of the Competing Versions of What Took Place

27Part of the explanation for these varying accounts of what happened at Paradise Fine Foods on January 27, 1999 may well be that those who testified were doing so over six years after the event. In part, this may explain the various versions, both at the hearing and at the investigative and pleadings stages, of what was allegedly thrown at Mr. Modi – bottles, cans or jars of beans, pickles, mustard, honey, syrup, or apple juice. However, that does not account for all of the differences among the testimony. There is no doubt in my mind that both the Complainant, Mr. Modi and the butcher, Mr. Ben Aycha, were prone to distort what had happened in ways that favoured their own interests. At times, Mr. Modi remained dogmatic and defiant about certain elements of his testimony even when confronted with other evidence and questions that undercut the accuracy of that testimony.

28By way of example, while I accept the testimony of both Mr. Modi and Mr. Ayumé that Mr. Ben Aycha initiated the physical side of the confrontation by throwing something at Mr. Modi, I cannot accept Mr. Modi’s version that it was a box of chickens or chicken parts. Mr. Ben Aycha is not a tall man and the counter was almost as high as his shoulder. There was also credible evidence to the effect that a box of frozen chicken such as described by Mr. Modi would have weighed over fifty pounds. It just does not seem feasible that this was a feat that Mr. Ben Aycha could have accomplished. However, more importantly, Mr. Ayumé, who was right there, recollects that something was thrown but could not say what. Moreover, in his testimony and under cross-examination, Mr. Ayumé said nothing about the size and weight of what was thrown, only that something was thrown and that it hit Mr. Modi on the chest. It is not plausible, if it had been a box of chicken the contents of which then, according to Mr. Modi, scattered all over the floor of the store, that Mr. Ayumé would not have seen and recalled that. Similarly, Mr. Modi was prone to exaggerate the extent of his physical injuries, a fact that became apparent from the testimony of the treating physician at the hospital and the police officer to whom Mr. Modi initially reported the incident as well as the supporting medical and police records. (Dr. Sheibman did, however, testify that the cut to Mr. Modi’s hand was consistent with an attack using a meat cleaver.)

29Throughout, Mr. Modi also maintained in the face of compelling testimony and photographic evidence to the contrary that, on January 29, 1999, the meat counter at Paradise Fine Foods had two sections divided by a pull-up counter from which Mr. Ben Aycha emerged with the cleaver. Similarly, when pressed in cross-examination, Mr. Modi was not only adamant but also stated that the attending police officer was lying when he testified as to the extent of the mess in the store when he arrived to investigate Mr. Modi’s allegations.

30On the other hand, I found it impossible to accept Mr. Ben Aycha’s testimony to the effect that the escalation in the temperature of the discussion came with Mr. Modi’s reaction to Mr. Ben Aycha asking Mr. Ayumé whether he came from Sudan. Certainly, Mr. Modi is a volatile person easily provoked, a conclusion that I draw principally from the way in which he conducted himself during the course of the hearing and Detective Constable Darren Arsenault’s evidence as to Mr. Modi’s attitude and demeanour when interviewed at the hospital. However, it is just not credible that such a question in the course of what started out as a casual conversation among the three principal protagonists would cause Mr. Modi, a long-time customer of the store and previously on cordial terms with both Mr. Ben Aycha and Mr. Omarbach, to react in the way that Mr. Ben Aycha recounted and to turn the conversation into a highly charged verbal and ultimately physical confrontation.

31Despite the fact that I disbelieved portions of the testimony of both of the principal protagonists, I felt confident in placing great store in the testimony of Mr. Ayumé, despite his difficulty during the hearing with identifying the butcher, Mr. Ben Aycha. Mr. Ayumé gave his testimony in a measured, thoughtful manner and gave no indication of any tendency to exaggerate or dissemble. Aside from an understandable level of concern for his physical safety, Mr. Ayumé’s demeanour on the stand did not change even in the aftermath of Mr. Omarbach’s actions in chasing him on the streets of Toronto during the luncheon break on the third day of the hearing, a totally misguided course of action that was taken to ensure that Mr. Modi and Mr. Ayumé did not communicate during the adjournment. Indeed, to the extent that the case for the Respondents rested on the suggestion of collusion between Mr. Modi and Mr. Ayumé as to the testimony to be given, I accept the evidence of both that, since the incident, they had met only once (in July 1999 at a cultural event) at which point Mr. Modi informed Mr. Ayumé that he was pursuing a human rights complaint against the Respondents. Confirmation for this is also to be found in the fact that, while Mr. Ayumé’s testimony confirmed in large measure Mr. Modi’s version of events, it differed from Mr. Modi’s in some significant respects and, more particularly, did not reveal the tendency to exaggerate that characterized much of Mr. Modi’s recounting of the details of the attacks that he allegedly underwent.

32I also could not accept as credible the scenario that Mr. Ben Aycha, Mr. Nasser, and Mr. Sidohamed presented as following the initial skirmish: Mr. Modi rampaging around the store, Mr. Ben Aycha taking shelter behind the counter, Mr. Ayumé in no way engaged and seemingly invisible to the two other employees, and those two keeping their distance from Mr. Modi and trying to reason with him. Such an account leaves completely unexplained the injuries that Mr. Ayumé sustained and is otherwise inconsistent with his own credible and unshaken account of what transpired.

33It is also relevant to locate the actions of the police in relation to this series of events. The only police officer to testify was Detective Constable Darren Arsenault. He was the officer who took Mr. Modi’s initial statement when he arrived at the police station in the wake of the incident. He also interviewed Mr. Modi subsequently at the hospital, then went to the store and questioned Mr. Ben Aycha. He did not at any time speak to Mr. Ayumé. (Indeed, Mr. Ayumé testified that he was never again contacted by the police after going to the police station to report the incident the day after it occurred.)

34Detective Constable Arsenault testified principally on the basis of his notes and I have no reason to doubt the accuracy of those notes. What they reveal is that initially Detective Constable Arsenault accepted that Mr. Modi had been the victim of an assault and he observed a cut to his hand as well as a bump on the back of his head. However, doubts began to creep in when Mr. Modi proved both belligerent and difficult to interview at the hospital. However, Detective Sergeant Arsenault also found Mr. Ben Aycha very difficult to interview. According to the officer, Mr. Ben Aycha was evasive and getting any information from him was “like pulling teeth”. He did not take a statement from anyone else at the store and Mr. Ben Aycha had not provided the names of other witnesses. However, he did observe that the store was in a mess with broken glass and spillage on the floor and possibly an upturned steel shelf.

35According to Detective Constable Arsenault, he then passed the matter on to a Detective Brown. There was no continuing need for immediate concern and, given his ambivalence as to what had happened, it was appropriate for the file to go to a detective for further investigation. Thereafter, he heard nothing further about the investigation and assumed that no charges had been laid. In fact, all the witnesses agreed that there was no further police contact with them over this matter, aside from Mr. Ayumé’s reporting of the incident the following day. The most likely explanation for this is that, given Detective Constable Arsenault’s uncertainty as to who was telling the truth, the police, rather than trying to get to the bottom of the matter, simply did not take it any further. As a consequence, I am of the view that nothing is to be read into the failure of the police to lay charges in the wake of the events.

36On the basis of the testimony of Mr. Modi and, particularly as to detail, that of Mr. Ayumé, I accept that the Complainant has established that Mr. Ben Aycha precipitated the course of events by inflammatory comments about the ethnic and religious status of Sudan. While Mr. Modi was quick to respond verbally to these taunts, Mr. Ben Aycha exacerbated the state of affairs by threats of physical violence against Mr. Modi followed shortly after by his emergence from behind the meat counter with a cleaver which he used as a weapon against Mr. Modi. This caused a cut to Mr. Modi’s hand. Thereafter, the situation developed into general mayhem with two, possibly three other employees of Paradise Fine Foods joining in. Part of that mayhem involved a further and unprovoked attack, this time by the arriving employees on Mr. Ayumé. Meanwhile, Mr. Modi was taking evasive action. During that evasive action, he was hit on the back of the head by a can or bottle thrown by one of the staff of Paradise Fine Foods. For his part, he was responsible during the course of running around the store for dislodging food containers from the store shelves and the associated breakage and spillage.

37I also find that Mr. Ben Aycha was involved in the action throughout. I do not accept his testimony that he went into hiding behind the meat counter as a way of avoiding the wrath of Mr. Modi. Despite the fact that the cook, Jamal Nasser, and the cashier, Hadauri Sidohamed, testified to the same effect, I found that testimony unreliable to the extent that neither had any recollection of the presence of Mr. Ayumé nor did they account for each other or at the least one other employee present in the store that day. It is also of relevance that Mr. Ben Aycha did not provide any such account of the events to Detective Constable Arsenault when questioned by the police officer in the immediate aftermath. It is also of relevance to the issue of credibility and determining what happened that no other store personnel came forward to speak to the Detective Constable Arsenault when he arrived at the store. If Mr. Modi alone had been responsible for the state of the store and if they were witness to this, it is hard to credit that they would not have come forward to tell the Detective Constable what they had seen. Instead, Detective Constable Arsenault encountered only Mr. Ben Aycha and he was uncooperative in providing details of what had happened. In the face of the convincing testimony of Mr. Ayumé as to the course of events, that evasiveness and lack of cooperation strongly suggested that Mr. Ben Aycha had something to hide in terms of his own involvement and that of the other personnel.

38I am not, however, convinced by reference to the standard of a balance of probabilities, that Mr. Omarbach was present during the course of these events. Mr. Omarbach testified that, during the time of the events giving rise to the Complaint, he was at his barber’s and came to the store only when alerted to do so in the wake of what had happened. His barber, Bashir Zummeit, corroborated this to the extent it was Mr. Omarbach’s regular habit to come for a haircut early afternoon on the last Wednesday of every month, Wednesday being Mr. Omarbach’s day off from Paradise Fine Foods. All the other store personnel testified to the same effect. Mr. Omarbach was not there when the fracas occurred. As well, Detective Constable Arsenault had no record in his notes to the effect that Mr. Omarbach or someone looking like him was present when he came to the store. He also testified that, had he seen Mr. Omarbach, who is very tall, he would have taken note of his presence. In fact, it seems highly likely that had Mr. Omarbach, the proprietor of the store, been present, he would have spoken to Detective Constable Arsenault and asserted the version of events that the Respondents now rely upon.

39As against this, Mr. Modi was dogmatic in his testimony that Mr. Omarbach was present and involved in the events after the initial attack by Mr. Ben Aycha. However, it was only in the wake of seeing Mr. Omarbach at the Tribunal’s attempt to mediate this complaint that Mr. Modi identified Mr. Omarbach as having been present, and that the Commission added Mr. Omarbach as a Personal Respondent participating in the events of January 27, 1999. Prior to that date, Mr. Modi had been on good speaking terms with Mr. Omarbach, even if Mr. Modi did not know Mr. Omarbach’s name. If Mr. Omarbach had been present on the relevant day, it is therefore very surprising that seemingly no efforts were made to identify, locate, and interview him prior to the mediation for the purposes of naming him as a Personal Respondent.

40Mr. Ayumé also identified Mr. Omarbach as the person throwing bottles or cans at Mr. Modi in the wake of the initial attack on Mr. Modi by Mr. Ben Aycha. However, this was the first time that Mr. Ayumé had been in the store. Given that and the fact that he had difficulty in identifying the main protagonist, Mr. Ben Aycha, I do not give credence to his identification of Mr. Omarbach.

41It is also the case that, even if Mr. Omarbach had joined the fray after the initial attack by Mr. Ben Aycha, it would have been difficult to attribute to him personal responsibility for discrimination contrary to the Code. At most, his involvement would have spoken to no more than a rather rash escalation of hostilities in a fracas the cause of which he would have had no reason to have had knowledge.

42In all of those circumstances, I find that the Commission has not established that Mr. Omarbach was present at the events giving rise to the Complaint.

LIABILITY

43The factual findings exonerate Mr. Omarbach from any personal liability based on his direct involvement in the actual events of January 27, 1999. That leaves open the personal liability of Mr. Ben Aycha, as well as the personal liability of Mr. Omarbach, as the director and owner of the Corporate Respondent, for any poisoned environment that existed at Paradise Fine Foods, and, finally, the responsibility of the Corporate Respondent for the actions of its employees as provided for in section 45(1) of the Code.

Sayed Ben Aycha

44Mr. Mostyn submitted that, even if I accepted the version of events advanced by the Commission and Mr. Modi, there was no violation of section 1 of the Code. Principally, those submissions were (1) that any actions by the Personal Respondents relied on by the Commission and Mr. Modi were not with respect to “services”; (2) that a single act or incident could not give rise to a finding of discrimination under section 1; and (3) that any actions on the part of the Personal Respondents towards Mr. Modi were a product of a disagreement on matters of principle and as part of an exercise of the right of freedom of expression, and did not amount to discrimination. I reject each of those submissions.

45There can be no question that Mr. Modi was in the store with the intention of purchasing meat. There can be no question that Mr. Ben Aycha was aware of that. In that context, as a provider of services, Mr. Ben Aycha intervened in a conversation between two customers of the store. In so doing, he did not break the service link that existed between himself and Mr. Modi or move from being the provider of a service to some other separate and distinct capacity. His provocative remarks and subsequent physical attack on Mr. Modi arose out of the service relationship that he had with Mr. Modi and this was not diminished by the fact that Mr. Modi had not already placed an order or even started discussing his meat requirements. Indeed, it would be clearly contrary to the purposes or objectives of the Code were service providers able to conduct themselves free from the application of section 1 of the Code by initiating various kinds of discriminatory remarks and conduct pre-emptively before an obvious customer was able to explicitly identify himself or herself as interested in purchasing. Indeed, as a matter of principle, there can be no difference between an explicit statement that service is not available to a certain group and pre-emptive intervention in the service relationship indicating a discriminatory antipathy to an obvious customer.

46The further contention that a single act or transaction such as was in issue here cannot amount to discrimination and that there must be a pattern of discriminatory conduct to constitute a violation of section 1 is without foundation in the law. The effect of this would be that all perpetrators of discrimination are entitled to at least one act of discrimination in the provision of a service before the section is triggered. That obviously cannot be the case.

47While freedom of speech including political discourse is a fundamental value of the Canadian Constitution and enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms, it does not provide an excuse for conduct, including speech, that amounts to discrimination contrary to the provisions of the Code. While cases involving discrimination in the form of physical violence towards a complainant might be rare before human rights tribunals, cases involving discriminatory verbal attacks are not, particularly in workplace settings under section 5 of the Code. When discussions between the provider of a service and a customer transcend normal political and religious discourse and escalate into insulting and demeaning verbal attacks by the provider based on prohibited grounds of discrimination and then further deteriorate into physical confrontation, those interactions enter the domain of discrimination in the provision of a service.

48On the facts as I have found them, Mr. Ben Aycha was the initiator of the events that gave rise to this Complaint. In confronting both Mr. Modi (and incidentally Mr. Ayumé) with his perception of the state of affairs in and what he considered appropriate for Sudan, Mr. Ben Aycha used language and engaged in conduct that indicated contempt for Mr. Modi as a black non-Muslim of Sudanese birth. Not only did he express his sense of the inferiority of those of Sudanese origin who were not Muslims but the rapidity with which this escalated into threats of violence and ultimately actual violence involving a meat cleaver provided evidence of a deeply-rooted antagonism towards persons of Mr. Modi’s ethnic origin who were not Muslim and who expressed loyalty or continued adherence to those markers. It is my finding that the verbal and physical attacks on Mr. Modi were discriminatory in their basis and that Mr. Ben Aycha denied Mr. Modi equal treatment in the provision of a service on the basis of ethnic origin (black African from a non-Muslim culture) and creed (not Muslim), though I am not willing to go as far as to make a finding of discrimination on the basis of place of origin; it was unclear to me from the evidence that Mr. Ben Aycha had any particular antipathy towards those from southern Sudan who were neither black nor non-Muslim.

49For these purposes, I should make it clear that I am not resting the finding of discrimination on the basis of creed on a finding that Mr. Ben Aycha knew that Mr. Modi was Christian. Mr. Modi testified that he had never discussed religion with Mr. Ben Aycha previously and that Mr. Ben Aycha called him “Jusef”, a Muslim name, rather than Joseph, a Christian name. For his part, Mr. Ben Aycha testified that he did not know that Mr. Modi was a Christian but also stated that he knew Mr. Modi as “Joseph”. During the encounter, while Mr. Ayumé identified himself as a Christian, he said that Mr. Modi did not do so. Indeed, Mr. Modi himself did not claim to have identified himself as a Christian at that time. It may, of course, have been a reasonable inference for Mr. Ben Aycha to have drawn right from the outset of the confrontation with Mr. Modi that he was a Christian. However, a holding of discrimination on the basis of creed need not rest on such a finding. It is sufficient for these purposes that Mr. Ben Aycha behaved as he did because Mr. Modi clearly revealed himself during the encounter as someone who was not a Muslim. The section must cover discrimination on the basis that someone does not adhere to a particular creed and not just discrimination because of adherence to a particular creed.

Muhamad Omarbach

50Given the finding that Mr. Omarbach was not present at Paradise Fine Foods during the events that gave rise to this Complaint, his liability as a Personal Respondent is contingent on whether there is any basis for finding him personally responsible for the environment in which such an incident could have occurred. In fact, the Commission neither asserted any facts in its pleadings nor led any evidence to support any finding of personal responsibility on his part as an employer for a poisoned environment. To the contrary, even according to Mr. Modi, all of the indicators prior to January 27, 1999 were to the effect that Paradise Fine Foods was an hospitable environment for all customers whatever their creed, ethnicity, or place of origin. Mr Modi testified to having a cordial relationship to that point with both Mr. Omarbach and Mr. Ben Aycha. To be sure, there was no evidence before the Tribunal of active training in and active promotion of the values of the Code. However, that was not a matter put in issue by the Commission or Mr. Modi, and I am not prepared to use this as a springboard for a finding that Mr. Omarbach is personally liable for creating a poisoned atmosphere or not sufficiently anticipating that Mr. Ben Aycha would act in the way that he did when placed in the situation that developed on January 27, 1999.

Paradise Fine Foods Ltd.

51In contrast to the claim that Mr. Omarbach was personally responsible for a poisoned environment at Paradise Fine Foods, the section 45(1) claim against Paradise Fine Foods Ltd. for the actions of its employee, Mr. Ben Aycha, does not depend on any finding of fault on the part of the company or its directing mind, Mr. Omarbach, or indeed by reference to tort principles of vicarious liability. Section 45(1) simply deems the actions of employees in the course of their employment to be the actions of their corporate employer. Provided the actions of the employee are work-related, the employer is liable. This liability does not rest on tort principles of vicarious liability. It is more extensive, reflecting the remedial purposes of human rights legislation: Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, at 92, applied in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252. As a consequence, the corporate defendant, Paradise Fine Foods Ltd., stands jointly and severally liable for the violation of section 1 perpetrated by Mr. Sayed Ben Aycha.

REMEDY

General and Mental Distress Damages

52It is now trite that general damages for violation of the Code are based on the principle that there is an intrinsic value to the rights guaranteed by the Code. The amount awarded for general damages should reflect that, and there is no ceiling on what the Tribunal can award under this head. In contrast, section 41(1)(b) of the Code caps the amount available for mental distress damages at $10,000. It also requires a finding that the respondent infringed the rights of the complainant “wilfully or recklessly”.

53There are three elements in particular of my findings that are relevant in both setting the level of general damages and establishing an additional entitlement to mental distress damages.

54First, the violation went way beyond the more typical case of slurs and insults and involved a physical attack on the Complainant with a weapon. Albeit that the injuries caused to the Complainant were relatively minor, the situation was one that brought with it the potential for life-threatening injuries to both the Complainant and Mr. Ayumé.

55Secondly, given his history, Mr. Modi was in a particularly vulnerable position in the instance of discriminatory conduct based on his ethnicity and creed. The Commission qualified Dr. Robert Shenton, a professor of History at Queen’s University, as an expert on issues pertaining to ethnicity and religion in post-colonial-modern Sudan and, in particular, how a black Christian from southern Sudan might very well react to the kind of conduct in which Mr. Ben Aycha engaged. Given the recent history of Sudan and, in particular, the tragically fractured relationship, indeed state of war between the largely Muslim north of Sudan and the more Christian south, it was not at all surprising that Mr. Modi would find Mr. Ben Aycha’s comments, not to mention his subsequent attack, deeply insulting and offensive. Indeed, those feelings would almost certainly be exacerbated by the use of the term “Insha’Allah” as a concluding point of emphasis to the remarks directed at Mr. Modi. They were also exacerbated by Mr. Modi’s personal history, a convention refugee from southern Sudan who, after much trial and tribulation, made his way to a life in Canada.

56Thirdly, the incident occurred in a setting that was very familiar to Mr. Modi and one in which he had no previous cause to feel anything other than a significant comfort level at being able to engage in commerce in a way that put aside or treated as irrelevant the divisions that existed between Muslim Arabs and Christian Black Africans in the Sudan and elsewhere on the African continent. In those circumstances, Mr. Ben Aycha’s behaviour must have been completely unexpected and more deeply affecting for that reason. Indeed, Mr. Modi testified to the impact that this incident has had on his life in Canada and the development of a sense that, even in Canada, he was not safe from the kinds of persecution that had led to his successful claim of convention refugee status in this country. In this respect, he attested to continuing anxiety, feelings of hopelessness and helplessness, fear of going out in public, and a general lack of self-respect. In short, this was a very traumatic incident for Mr. Modi even allowing for some discounting of his evidence based on an observed tendency to exaggerate.

57For his part, Mr. Ben Aycha professed to have very little knowledge of the state of affairs in Sudan and the likely impact of the conduct alleged against him on someone such as Mr. Modi. He asserted that he was from Tunisia, had been in Sudan only briefly (five days at most) in transit to Canada as a convention refugee, and did not keep abreast of the current state of affairs in Sudan, not even being aware the Muslims and Christians were fighting in that country. I found this profession of almost total ignorance on the part of Mr. Ben Aycha not to be credible. He has a university degree in philosophy, he was actively involved in the Toronto Muslim community, and he is now a project analyst for the Carlson Marketing Group, having left his job as a butcher to return to school. Indeed, even his own account of the interchange between himself and Mr. Modi indicated both knowledge of and a point of view about the politics, and religious and ethnic divisions of that region of the African continent. At the very least, in engaging with Mr. Modi in the objectively provocative terms in which he did, he was being reckless as to the consequences. Indeed, the only mitigating factor arising out of Mr. Ben Aycha’s verbal and physical attack on Mr. Modi lies in the fact that Mr. Modi was not shy in engaging in the debate to the extent that Mr. Ayumé described an increasing level of hostility in the exchange and both protagonists as being angry. There was also no evidence that even suggested that this was anything other than an isolated, one-off incident on the part of Mr. Ben Aycha.

58This case involved a serious violation of Mr. Modi’s entitlement to equal treatment in the provision of a service particularly as the infringement included physical violence with a weapon. As well as suffering minor physical injuries, Mr. Modi has undergone significant emotional distress as a consequence of these events. At the very least, Mr. Ben Aycha was reckless in the way in which he initiated and pursued the discriminatory verbal interchange with Mr. Modi and, in particular, moved from verbal to physical violence against Mr. Modi. Given all those circumstances and even taking account of the isolated nature of Mr. Ben Aycha’s conduct, Mr. Modi is entitled to substantial damages. I assess them at $10,000 general damages and $5,000 damages for mental distress.

SPECIAL DAMAGES

59There was no claim for special damages.

INTEREST

60In accordance with the submission of the Commission, I also order the payment to Mr. Modi of both pre-judgment interest from the date of his original complaint to the Commission (April 22, 1999) to the date of this decision, and post-judgment interest on the accumulated principal and pre-judgment interest from thirty days after the date of the order.

PUBLIC INTEREST REMEDIES

61While the Corporate Respondent may still exist as a legal entity, Paradise Fine Foods apparently no longer continues as a functional business at least in the form it did in January 1999. As a consequence, there is no purpose to the public interest remedies that the Commission is seeking against the Corporate Respondent and its owners. However, I do order Mr. Ben Aycha to attend a training programme at his own expense, this training programme to be facilitated by an expert in human rights and issues and anti-discrimination principles, and to include sensitivity training on the effects of discrimination because of creed and ethnic origin.

ORDER

62The Tribunal orders as follows:

(1) that the Personal Respondent, Sayed Ben Aycha, and the Corporate Respondent, Paradise Fine Foods Ltd., be jointly and severally liable to pay the Complainant, Joseph Modi, $10,000 general damages

(2) that the Personal Respondent, Sayed Ben Aycha, and the Corporate Respondent, Paradise Fine Foods Ltd., be jointly and severally liable to pay the Complainant, Joseph Modi, $5000 damages for mental distress

(3) that the Personal Respondent, Sayed Ben Aycha, and the Corporate Respondent, Paradise Fine Foods Ltd., be jointly and severally liable to pay the Complainant, Joseph Modi, pre-judgment interest on both the general and mental distress damages from April 22, 1999 to the date of this decision, and post-judgment interest on any accumulated principal and pre-judgment interest from thirty days after the date of the order

(4) that the Personal Respondent, Mr. Ben Aycha attend a training programme at his own expense, this training programme to be facilitated by an expert in human rights and issues and anti-discrimination principles, and to include sensitivity training on the effects of discrimination because of creed and ethnic origin.

Given the confused evidence on the current status of Paradise Fine Foods Ltd. as a corporate entity and Mr. Omarbach’s involvement in any such continuing corporate entity or with the purchaser of the business of Paradise Fine Foods Ltd., I will remain seized of the Complaint should any there be any issues as to liability arising out of this uncertainty. However, this is without prejudice to the orders against the Personal Respondent, Sayed Ben Aycha.

Dated at Toronto, this 21st day of March, 2007.

“Signed By”

David Mullan Member