Sinclair v. London (City) (No. 2)

HR-1190-06

2008-07-25

2008 HRTO 48

Ontario Human Rights Tribunal

CHRR Doc. 08-467

Vincent Sinclair Complainant

and

Ontario Human Rights Commission Commission

v.

Corporation of the City of London Respondent

Date of Decision: July 25, 2008

Before: Human Rights Tribunal of Ontario, David A. Wright

File Nos.: HR-1190-06

Appearances by:

Vincent Sinclair, on his own behalf

Sharon Ffolkes-Abrahams, Counsel for the Commission

Geoffrey Belch, Kelly M. Dawtry and Dan Byskal (Student-at-Law), Counsel for the Respondents

RACE, COLOUR AND PLACE OF ORIGIN — municipal services discriminatory — racial profiling — discrimination based on stereotype — PUBLIC SERVICES AND FACILITIES — municipal services

PROCEDURE — notice of allegation not given to respondent — notice of evidence — procedural fairness — EVIDENCE — after-acquired information — expert evidence — similar fact evidence — credibility of witnesses

Summary: The Human Rights Tribunal of Ontario dismissed a complaint filed by Vincent Sinclair in which he alleged that he was discriminated against because of his race by the City of London.

Mr. Sinclair is a Black man, and he works as a paralegal. In 2003, he made a Freedom of Information request at City Hall. When he went to the City Clerk's office to pick up the information package, he was not satisfied that he had been given the appropriate materials.

The Tribunal accepted the evidence of City employees that Mr. Sinclair raised his voice, banged on the counter and was disputatious. An unknown person in City Hall called Mr. McNabb, the Security Officer, who came to the Clerk's office and asked Mr. Sinclair to leave. Mr. McNabb followed Mr. Sinclair out of the office and down to the City Hall entrance, and indicated that he would call the police if Mr. Sinclair did not leave immediately.

Mr. Sinclair alleged that he was treated in a humiliating and discriminatory manner because of his race.

However, the Tribunal found that there was no evidence to show that Mr. Sinclair had received the attention of Mr. McNabb, and been escorted from City Hall premises, because of his race. He could have been argumentative, upset and banged on the counter, and still have been treated differently because of his race. But there was simply no evidence to support such a finding.

The complaint was dismissed.

CASES CITED

Boldt-MacPherson v. Hoita Kokora Centre (2008), CHRR Doc. 08-365, 2008 HRTO 35: 44

Canada (Attorney General) v. Brooks (No. 1) (2004), 50 C.H.R.R. D/155, 2004 CHRT 20: 22

Chacko v. Transpharm Canada Inc. (No. 2) (2001), CHRR Doc. 01-088, [2001] O.H.R.B.I.D. No. 11 (QL): 24

Dominion Management v. Velenosi (1997), CHRR Doc. 97-303, 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.): 52

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 44

Nassiah v. Peel (Regional Municipality) Police Services Board (No. 2) (2007), 61 C.H.R.R. D/88, 2007 HRTO 14: 22, 42, 52

Ontario (Human Rights Comm.) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290, 28 C.H.R.R. D/256 (Div.Ct.): 52

R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56: 24

R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.): 18

R. v. Spence, [2005] 3 S.C.R. 458, 2005 SCC 71: 18

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302: 54

Sinclair v. London (City) (No. 1) (2008), CHRR Doc. 08-086, 2008 HRTO 11: 5

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 1: 1, 60

s. 45: 10, 23

s. 45(1): 6

Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56: 1

INTRODUCTION

1On June 6, 2003, Vincent Sinclair went to the City Clerk's office at London City Hall to pick up the City's response to a request he had made under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. His visit ended when he was asked to leave by a security guard, James McNabb, who worked for a company with which the City of London (the "City") contracts. The Ontario Human Rights Commission (the "Commission") and the complainant argue that Mr. Sinclair, who identifies as Black, was discriminated against on the basis of race and colour by the security guard and city employees as a result of the events leading to the removal, and that the City is therefore liable for a violation of s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). Mr. Sinclair also says that the City's alleged inadequate response to his freedom of information ("FOI") request constituted discrimination on the basis of race and colour in the provision of services. The City says that security was called by the City Clerk's office as a result of Mr. Sinclair's conduct while interacting with the City employee Michelle Smibert, who was serving him. It states that race played no part in this decision. It also argues that I should not consider the security guard's conduct or whether the FOI request constitutes discrimination in services, as a result of the fact that it did not have notice of these issues and because the Commission's decision when it referred the complaint to the Tribunal took an opposite position.

THE SCOPE OF THE COMPLAINT

2Prior to outlining the evidence in detail, I will determine if I will consider whether the City violated the Code: (i) through its response to the FOI request; and/or (ii) by being found responsible for Mr. McNabb's actions. The City argues that I should not address either issue as they were not raised in the pleadings. In addition, citing the Commission's decision not to refer the complaint against Mr. McNabb, its reasons for that decision, and the Tribunal's interim decision not to add Mr. McNabb as a party, it argues that it would be unfair to now find that the City is responsible for his conduct. An understanding of the City's objections requires a review of the history of the complaint.

3Mr. Sinclair, who works as a paralegal, filed his complaint with the Commission on December 12, 2003, alleging discrimination in services on the basis of race and colour. It named as respondents the City and Mr. McNabb, who was employed by the Commissionaires (Great Lakes), Western Region ("Commissionaires"). The complaint concludes by alleging, "I believe the respondents discriminated against me because of my race by calling in a security officer and having me escorted from the building". While it alleges that Mr. Sinclair told the FOI officer that the information was being provided later than promised and was not complete, it makes no allegation that the FOI response itself violated the Code. It relies upon s. 1 of the Code, which reads as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

4On September 26, 2006, the Commission made a decision referring the complaint against the City to the Tribunal. The decision, signed by Chief Commissioner Barbara Hall, reads as follows:

Pursuant to subsection 36(2) of the Human Rights Code, the Commission has decided not to refer the subject matter of this complaint against the respondent James McNabb to the Human Rights Tribunal for the following reasons:

1. There is insufficient evidence to indicate that the complainant was subjected to unequal treatment or harassment in services because of colour or race by the personal respondent James McNabb.

2. The evidence indicates that McNabb, a contract security guard and not an employee of the City of London, was acting in the course of his duties when he escorted the complainant from City Hall. McNabb's actions appeared to be measured and routine and his behaviour was not indicative of differential treatment or racial profiling.

For the above reasons, the Commission is of the view that the evidence in this case does not warrant referral of the subject matter of this complaint as against the personal respondent James McNabb to the Human Rights Tribunal of Ontario. The complaint against the City of London is referred to the Tribunal. [Bold in original.]

5Following an unsuccessful mediation, the Commission filed its pleading and the respondent filed its response. The complainant did not file a pleading. On November 27, 2007, the first scheduled day of hearing, the complainant asked that the Tribunal add Mr. McNabb as a respondent. The parties made written submissions on the matter, and in an interim decision dated February 14, 2008, I denied the request on the basis of delay: Sinclair v. London (City), 2008 HRTO 11 [CHRR Doc. 08-086].

6The hearing resumed on April 22, 2008, and commenced with opening statements by the parties. In her opening statement, Commission counsel stated that it would be the Commission's position that Mr. McNabb violated the Code, and that he was an "agent" of the City under s. 45(1) of the Code, which reads as follows:

45(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 44(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

In final argument, the Commission also took the position that Mr. McNabb was an employee of the City for the purposes of the Code. In Mr. Sinclair's opening statement, he raised the argument that the City's response to the FOI request had been discriminatory.

7In my view, there was not adequate notice to the City that these issues would be raised at the hearing, it made decisions on the understanding that they would not be part of the issues in the case, and it would be unfair to permit them to be raised now. In the interim decision in this matter, I stated as follows at § 13:

The purpose of requiring the filing of pleadings is to ensure that each party provides the Tribunal and the other parties with a firm understanding, prior to the commencement of the hearing, of its version of events and the position it takes on the issues in the case. No one is taken by surprise and the matter can proceed fairly and efficiently. While, pursuant to Rule 38, a complainant need not file a pleading, a decision not to do so may preclude the complainant from raising new matters not set out in the Commission and respondents' pleadings.

8Neither the complaint nor the Commission's pleading made an allegation that the response to the FOI request constituted discrimination on the basis of race. I will not, therefore, consider the complainant's allegation to this effect.

9The Commission argues that respondent did have notice of the fact that it would seek to make the City responsible for Mr. McNabb's actions through its pleading. The relevant paragraphs as they relate to Mr. McNabb are as follows:

7. Smibert then went to the photocopy machine and upon her return, Officer James McNabb, Detachment Commander and Sergeant at Arms for City Officials ("Officer McNabb") appeared on the scene. The complainant asked Smibert if it was common practice to have a security officer present when dealing with members of the public.

8. McNabb then stepped in and asked the complainant to leave and proceeded to escort the complainant out of the building. During this time, McNabb advised the complainant that he would be charged with trespassing and barred from City Hall. The complainant advised McNabb that he had no right to harass him.

9. At no time, did the complainant exhibit verbally or physically abusive or threatening behaviour towards Smibert.

10. As a result of this incident, the complainant was publicly humiliated and suffered a loss of dignity. The complainant asserts that this treatment is a result of negative stereotyping of him as a violent black male and racial profiling by the Corporation of the City of London and by Officer McNabb.

Issues in Dispute

1. Was the complainant subjected to discrimination and racial profiling with respect to accessing services because of his colour and race contrary to sections 1 and 9 of the Ontario Human Rights Code?

2. Was race a factor in the treatment the complainant received from the Respondents [sic] in the delivery of service at the Corporation of the City of London?

10Pleadings must be considered in the context of the case and its history. In this case, the respondent did not have notice prior to the first day of hearing of the fact that the Commission or complainant would raise the issue that Mr. McNabb had violated the Code and that the City was responsible for that violation. The Commission had made a decision that Mr. McNabb acted appropriately and was not an employee of the City of London, and decided not to refer the complaint as against him. The pleadings did suggest that Mr. McNabb had engaged in inappropriate conduct, but identified this as the complainant's assertion. Following the exchange of pleadings, I denied the complainant's last-minute request that Mr. McNabb be added as a party. It was appropriate for all to presume that this had ended the issue of liability on the basis of Mr. McNabb's conduct, certainly in the absence of the Commission having overtly raised the issue of s. 45 of the Code.

11Even assuming that the Commission was entitled to change its position from that stated in the decision not to refer, an issue that I need not and do not decide in this case, any such change would have had to be identified clearly. The theory that s. 45 could be used to again raise the issue that Mr. McNabb had violated the Code and as a basis for imposing liability on the City of London was never explicitly identified by any party as an issue prior to opening statements on the second day of hearing. In light of the pleadings, the Commission's decision, and my decision not to add Mr. McNabb, the City reasonably expected that the issues of whether Mr. McNabb's conduct violated the Code and whether the City was responsible for his actions were not at issue in this case.

12It would be unfair to permit this issue to be raised now. The City has had to make choices about this litigation in light of its understanding of the Commission's position and therefore there is particular unfairness in the lack of notice. In particular, it undertook to call Mr. McNabb as its witness and took a position opposing adding him as a party. The City may have done differently had it known that the Commission would seek to make it responsible for his actions.

13In light of this holding and the interim decision in which I declined to add Mr. McNabb as a party, the only issue properly before the Tribunal is whether, through liability for the actions of individuals other than Mr. McNabb, the City discriminated against Mr. Sinclair in the events that led to the involvement of security and the removal of Mr. Sinclair from City Hall. As a result, I will deal with the actions of Mr. McNabb only to the extent that it is useful and necessary to provide context, and to assist in making credibility findings, but I make no finding of whether there was wrongdoing or impropriety on his part.

THE EVIDENCE AND HEARING

14The hearing in this matter was held on November 27, 2007, April 22, 23, 24 and May 12 and 13, 2008. The Commission called two witnesses: Frances Henry, who was qualified as an expert on race issues, and Mr. Sinclair. The Commission also intended to call Jo-Anne Geris, another employee in the City Clerk's office. However, on the morning she was to testify, she learned of the sudden death of her husband. Accordingly, the parties agreed to admit her witness statement to the Commission investigator as her evidence. The respondent called four witnesses: Ms. Smibert, Mr. McNabb, David O'Brien, Division Manager of Corporate Security and Emergency Management, and Jo-Anne Miklautz, Supervisor of Licensing and Reception in the City Clerk's office.

A. The Expert Evidence of Frances Henry

15Frances Henry is professor emerita in the Department of Anthropology at York University. She studies and writes on various issues of race and racism, including racial profiling, race and the media, and race and the criminal justice system. The respondent agreed that she should be qualified as an expert and to the admission of her report. However, it asked that certain portions of the report that expressed opinions on the facts of this case be struck. I ruled that the final paragraph of the report would be struck. My reasons for doing so are set out at the end of this section. First, however, I will summarize Dr. Henry's report and evidence regarding racism, upon which I have relied in analyzing the issues in this case.

16Dr. Henry notes that in many people's minds, racism is associated with forms of direct harassment and discrimination. However, she states, scholars have recognized that race often plays a much more subtle role in our society, which she defines as "racialized". Race, she testified, may play a role in many social interactions without those involved intending this or being aware of it. She notes, for example, that studies have shown that Black customers in retail areas are often watched particularly closely, and that Black youth may be targeted for attention and surveillance by security and others in positions of authority. She testified that there are particular stereotypes about Black men, emphasizing in particular their sexuality, strength, and alleged propensity to violence or other criminal activity. This leads to racial profiling or targeting, often unconsciously, by various institutions in our society, including media, schools and employment.

17I accept from Dr. Henry's evidence that race is a factor in many social interactions in our society. Racialization affects Black men in particular, often without the conscious involvement of those making decisions, through stereotypes of them as physical, violent, and more likely to be criminal. This may lead to heightened monitoring and racial stereotyping.

18Indeed, anti-Black racism and its subtle manifestations are well-recognized in Canadian law, and expert evidence of the kind presented in this case, while helpful, is not necessary for its effects to be considered by the Tribunal. In R. v. Spence, 2005 SCC 71 at § 31—33, the Supreme Court of Canada cited with approval the conclusions of the Ontario Court of Appeal in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 as follows:

Parks was a case of second degree murder in which the accused was black and the victim was white. As in this appeal, there was no suggestion that the crime was racially motivated or that race would play any part in the defence (p. 361). Nevertheless, Doherty J.A. concluded on the first step that "[r]acism, and in particular anti-black racism, is a part of our community's psyche" (p. 369). He continued:

A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil. [p. 369]

The studies cited by Doherty J.A. amply support his conclusion that the use of negative racist stereotypes is widespread in our society (a more recent Angus Reid poll suggested that 45 percent of Canadians identify visible minorities, particularly blacks and Vietnamese, with crime: see Koh, at paras. 9 and 22). A brief survey of the studies reviewed in Parks on the first (attitudinal) question provides a flavour of what was at issue. Eliminating Racial Discrimination in Canada (1989) demonstrated that people who are non-white or have a definite speaking accent suffer prejudice in finding a good job, getting promoted and being paid fairly (p. 7), and in the housing market (p. 10). Doherty J.A. went on to lay particular emphasis on a report by Mr. Stephen Lewis, as an adviser on race relations to the Premier of Ontario. In June 1992, Lewis wrote (and Doherty J.A. quoted, at pp. 367—68) as follows:

First, what we are dealing with, at root, and fundamentally, is anti-Black racism. While it is obviously true that every visible minority community experiences the indignities and wounds of systemic discrimination throughout Southern Ontario, it is the Black community which is the focus. It is Blacks who are being shot, it is Black youth that is unemployed in excessive numbers, it is Black students who are being inappropriately streamed in schools, it is Black kids who are disproportionately dropping-out, it is housing communities with large concentrations of Black residents where the sense of vulnerability and disadvantage is most acute, it is Black employees, professional and non-professional, on whom the doors of upward equity slam shut. Just as the soothing balm of "multiculturalism" cannot mask racism, so racism cannot mask its primary target. [Emphasis added.]

(Stephen Lewis Report on Race Relations in Ontario (1992), p. 2)

In Parks, Doherty J.A. also referred, at p. 367, to a study prepared for the Royal Commission on the Donald Marshall, Jr., Prosecution by W. Head and D. H. Clairmont which demonstrated racial discrimination against blacks and Micmacs in Nova Scotia's criminal justice system. Reference was also made to a number of reports of the federal and provincial human rights commissions which detail instances of racial discrimination. Doherty J.A. was satisfied, on the initial question of attitude, that racial prejudice was deep, widespread and difficult to dislodge (p. 371).

19Dr. Henry's report, however, went beyond a discussion of the nature of racism and racialization in general. In preparing it, she reviewed the written complaint, response of the City, case analysis of the Commission, and submissions by the complainant and the City regarding the case analysis, all of which were prepared as part of the Commission's process prior to the referral. The report concluded as follows:

With respect to this case, it is my view that the encounter between the complainant and agents of the City of London was influenced by the various processes of racialization as described above. In particular, the interaction which led to the Black complainant being escorted out of the premises suggests that stereotypes about the alleged violence of Black men and their ever present threat and danger to White society was an influencing factor.

20The respondent argued that this paragraph was not an appropriate opinion to be offered by an expert witness, because it resulted in the witness usurping the role of the Tribunal by determining issues of credibility. The Commission disagreed, arguing that the impugned paragraph contained general comments on the influence of the processes of racialization. It argued that it was necessary to hear this evidence for the Tribunal to have the full benefit of Dr. Henry's expertise.

21I agree with the City. Therefore, I struck the last paragraph and did not allow the Commission to call oral evidence to the same effect. The first problem is that Dr. Henry's conclusions were reached based upon documents that were not part of the evidence in the hearing: the case analysis and responses to it. The conclusions and findings of the Commission investigator are generally not considered in a Tribunal hearing, were not admitted as evidence before me, and it would be inappropriate for the Tribunal to take into account Dr. Henry's opinions which are based upon an analysis of such documents.

22More significantly, however, the contested paragraph contains Dr. Henry's opinion on the influence of racialization and stereotypes on this particular situation. The evaluation of the dynamics of what occurred and the witnesses' credibility are issues to be determined by the Tribunal, through an analysis of evidence that has been admitted in accordance with the Tribunal's rules. Dr. Henry's opinion on whether stereotypes played a part in the actions of the City witnesses in this case or how general patterns may have played themselves out here are not within her expertise or appropriately taken into account by the Tribunal: Brooks v. Canada (Department of Fisheries and Oceans (No. 1), 2004 CHRT 20 [reported 50 C.H.R.R. D/155] at § 13—14; see also Nassiah v. Peel (Regional Municipality) Police Services Board (No. 2), 2007 HRTO 14 [reported 61 C.H.R.R. D/88] at § 131.

B. Proposed Evidence of Steve Garrison

23The second evidentiary issue that arose at the hearing related to the Commission's desire to call as a witness Steve Garrison, who had made a complaint to the Commissionaires about Mr. McNabb's conduct in February 2005. The Commission anticipated that Mr. Garrison would testify that Mr. McNabb ordered him and a Black person who was looking at cars with him off the premises of a car dealership where he worked as a publicist. Mr. McNabb was working for the Commissionaires as a patrol driver at the time. Mr. Garrison would testify, the Commission anticipated, that he believed that the action resulted from his guest's race and the fact that "he had just returned from Florida and appeared dark in complexion and had a beard". I heard argument on this issue, and ruled that the evidence would not be admitted, with reasons to be contained in the final decision. Those reasons follow. Since the hearing proceeded on the basis that the issue of whether the City was responsible for Mr. McNabb's actions were appropriately raised would be addressed in final argument, this evidentiary ruling took into account the possibility that I might permit the Commission's argument based upon s. 45 of the Code.

24While there is a general rule against admission of evidence relating to a person's character or reputation, the Commission argued that this evidence properly falls within an exception to that principle permitting the admission of "similar fact evidence". Evidence of similar facts will be admitted if the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56; Chacko v. Transpharm Canada Inc. (No. 2), [2001] O.H.R.B.I.D. No. 11 (QL) [CHRR Doc. 01-088] at § 11. This requires a weighing by the Tribunal of the benefits of the evidence in assisting the Tribunal in determining the issues before it against the potential prejudice to the hearing process and the party whose character is placed into question through such evidence.

25Various factors may affect this balancing process, depending upon the issues in the case: see Handy, supra, at § 49—97. Probative value often, but not always, arises from the degree of similarity of the alleged similar facts in relation to the disputed issues in the case. Prejudicial effect generally arises from the fact that it may lead to distraction from the central issues in the case, inordinate consumption of hearing time, and reasoning based on the general character of a witness. As noted by the Supreme Court, "[i]ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value" [at § 37].

26The balancing of probative value against prejudicial effect, developed primarily in criminal cases such as Handy, must be applied with consideration of the nature of human rights cases and the values relevant to human rights proceedings. These include the fact that discrimination is often subtle and may be difficult to prove, and that a pattern of conduct may be particularly probative in many human rights cases. At the same time, the Tribunal is committed to fair, just and expeditious resolution of human rights cases, and the prejudicial effect of hearing evidence not only on the particular incident in question, but one or more other incidents, and the credibility of witnesses in relation to those events, may cause a significant lengthening of a hearing with little benefit for the determination of the issues in the case. There is also often prejudice to respondents in having to defend themselves against allegations that never formed the subject matter of human rights proceedings at the time they occurred. These factors must be taken into account in the balancing analysis.

27In this case, the Commission asserted that the probative value arises from the fact that this suggests a general approach or modus operandi by Mr. McNabb in dealing with Black people. It argued that both cases involved the ordering of a Black person off premises, and that the alleged incident with Mr. Garrison would assist me in determining whether Mr. Sinclair's race was a factor in Mr. McNabb's actions in this case.

28I do not agree. There is nothing particularly unique or similar about the alleged incident with Mr. Garrison that would give it sufficient probative value to overcome the strong prejudice. It is merely one incident in the career of a person who worked extensively as a security guard. Asking people to leave premises is a common task for such individuals. It occurred in different circumstances: Mr. McNabb was allegedly patrolling the used car lot, whereas in this case, the context of his involvement was quite different. The prejudice to the City is even higher than in many other similar fact cases because it relates to an alleged incident that did not involve the City in any way. In addition to the general types of prejudice discussed above, the City would be forced to answer this three-year-old allegation that did not involve it without its own records or powers to obtain the relevant information. In my view, the prejudice dramatically outweighs the probative value of this proposed evidence and therefore, it was not admitted.

C. The Events of June 6, 2008: Conflicting Testimony

29This case requires me to resolve issues of credibility as between Mr. Sinclair on the one hand and Ms. Smibert and Mr. McNabb on the other. I will begin by setting out the evidence of each witness who testified about the events of June 6, 2003, that led to Mr. Sinclair's removal from the premises.

i. Vincent Sinclair

30Mr. Sinclair testified in chief that he arrived at City Hall just after 2:00. He asked the receptionist for the response to his FOI request, and she went to retrieve Ms. Smibert. Ms. Smibert came to the front and said that the request was not ready and that she had some photocopying to do. Mr. Sinclair waited about 30 or 45 minutes. While waiting, he saw Mr. McNabb behind the counter with Ms. Smibert. Ms. Smibert came to the counter, with Mr. McNabb close by, and gave him a sealed envelope, with a bill for $23 on top. Mr. Sinclair was concerned about that fact that this envelope, unlike those given in response to his previous requests, was sealed. He asked if everything was there, but Ms. Smibert could not accurately answer that question and said that if he had concerns, he should appeal. He said that this was not right. When he brought to her attention that she had provided a document that he did not believe he asked for, she became flustered and tried to explain the appeal process.

31Mr. McNabb then interjected and said that he could not talk to her like that and must leave the premises. Mr. Sinclair asked why it was necessary for security to be present for someone to pick up a document, but Ms. Smibert was unable to answer that. Mr. McNabb went to the side door and told Mr. Sinclair to leave. Mr. Sinclair took the package and went to the elevator. Mr. McNabb said he would call the police if he did not leave and cite Mr. Sinclair for trespass to property. When Mr. Sinclair got to the elevator, Mr. McNabb placed a call to the police. Mr. McNabb followed him down on the elevator and out to Wellington Road, telling him he must get off City property.

32Mr. Sinclair denied that the package of documents contained in the City's records which was submitted as evidence at the hearing accurately reflected the documents that Ms. Smibert gave him. However, he was unable to produce the contents of the package he received.

33In cross-examination, Mr. Sinclair denied being loud and abusive. He agreed that he might have been leaning into the counter during their exchange but explained that he was trying to avoid others overhearing the discussion. He admitted telling Ms. Smibert that she could or should be charged with breach of trust during their exchange. He said that it was "laughable" that she thought he was threatening to sue her for breach of trust.

ii. Michelle Smibert

34Ms. Smibert testified that a staff person came to her office to say that Mr. Sinclair was present and asking for information in response to his request. The response was ready and available when Mr. Sinclair arrived. While she cannot recall exactly, Mr. Sinclair might have had to wait while she finished a phone call. She cannot recall whether she or someone else gave Mr. Sinclair the package. She does recall that Mr. Sinclair was not happy with what he received. Ms. Smibert explained to him that in her view, the documents she had provided were responsive to his request and other documents he wanted were not available from the City. She explained the appeal process. She said that Mr. Sinclair became more frustrated and angry, and continued to pose the same questions. She felt she was repeating herself. She left the counter at one point to obtain the contact information for Western Fair, where she believed he might obtain some of the documents he wanted. When she returned, Mr. Sinclair was raising his voice and was close to her side of the counter. She backed away to distance herself. At one point, he pounded his fist on the counter. He asked her if a certain document was in the package and she said it was. He said that if it was not, she would be in contempt or sued for breach of trust. She felt that was a serious allegation. She said that shortly after that, she saw Mr. McNabb in the office beside Mr. Sinclair.

35Ms. Smibert testified that she had concerns for her safety. Although there was a counter between them, Mr. Sinclair was getting progressively louder and she was running out of options in terms of how to calm the situation. While she has dealt with many customers in her 18 years of experience in public service, she found this "by far the most challenging experience". Ms. Smibert stated as follows when asked about whether Mr. Sinclair treated her in the same way as other customers:

There are customers who come in who have expectations we can't fulfil. Normally they'll go away angry. They might call us a name or use some foul language when they leave. I've never had someone at the front counter just getting progressively angrier and remaining at the counter saying the same things and getting more and more upset as I'm talking to him. I've never had that encounter before. The banging of the fist on the counter was something I had never witnessed before. The leaning in trying to get closer was again something I had not encountered before.

iii. James McNabb

36Mr. McNabb testified that on June 6 he was sitting at his desk outside the Mayor's office. He received a call from the City Clerk's office. The female caller said that Mr. Sinclair was causing a disturbance and asked him to "get up here please". She named Mr. Sinclair in particular. There is no dispute between the parties that Mr. Sinclair often attends at City Hall in the course of his work as a paralegal and was known to Mr. McNabb and some staff of the City Clerk's office. Mr. McNabb testified that he did not know who had called him. There was no call display on his phone at the time.

37Mr. McNabb, who was in uniform, took the stairs from the second floor to the third floor where the City's Clerk's office is located. As he exited the stairwell into the hallway, he could hear Mr. Sinclair speaking loudly. When Mr. Sinclair came into view, he saw that Mr. Sinclair was also pointing and gesturing toward Ms. Smibert. Mr. Sinclair then turned and walked toward the elevators. When Ms. Smibert came into view, Mr. McNabb could see that she was quite upset, shaking, and looked like she was about to cry. Mr. McNabb walked behind Mr. Sinclair and told him that if he continued with outbursts like what had happened in the City Clerk's office, he could be banned from City Hall. Mr. Sinclair replied that Mr. McNabb could not do that, as he knew his rights and could not be banned from entering a public building. He was speaking loudly. At that point, the two men stepped into the elevator. Mr. Sinclair was upset and loud as he continued talking. When they reached the first floor, Mr. Sinclair said that Mr. McNabb could not remove him from the building. Mr. McNabb said, no, it would be the London police. Mr. Sinclair said to go ahead and call the police. Mr. McNabb said "OK" and radioed for the police to be called. Mr. Sinclair said "never mind" and exited. Mr. McNabb stood inside City Hall's glass doors and watched him leave. Mr. McNabb testified that he acted in accordance with his training, advising Mr. Sinclair of the possible consequences of his actions. He said that he treated Mr. Sinclair as he would have treated anyone else in the situation.

38Mr. McNabb went back upstairs to check on Ms. Smibert. She was visibly upset and shaken by what had happened.

iv. Jo-Ann Miklautz

39On June 6, Ms. Miklautz was in her cubicle, from which she can see the counter through two windows. She greeted Mr. Sinclair, who said he was there for an FOI request, and then went to Ms. Smibert's office to get her. That was the extent of Ms. Miklautz's direct contact with Mr. Sinclair, and she went back to her cubicle. She saw Ms. Smibert go to the counter and hand Mr. Sinclair some papers. He looked at them and it was evident that he was not happy with what he received. While Ms. Miklautz could not hear every word, she surmised that Ms. Smibert was trying to explain how she could or could not fulfil Mr. Sinclair's request and he was unhappy and agitated. Trying to verbalize his point his voice was getting louder. Ms. Smibert was trying to explain and was being cut off by Mr. Sinclair. Mr. Sinclair was shouting and pacing and Ms. Smibert was embarrassed and walked backwards, and her face turned red. She described Mr. Sinclair's treatment of Ms. Smibert as disrespectful. While she does not know who called security, she felt that his behaviour was not different from other circumstances in which security was called. Ms. Miklautz did not see Mr. McNabb.

v. Jo-Anne Geris

40Ms. Geris, the City's Supervisor of Elections and Administrative Assistant, told the Commission's investigator that she was at the opposite end of the waiting area during the incident in question. She could not recall specifics but could recall a customer being loud and upset with Ms. Smibert. She did not listen in detail. Ms. Smibert's voice was not overly loud. Ms. Geris did not call security or know who did.

vi. David O'Brien

41Mr. O'Brien testified about the location of security cameras at City Hall and security procedures at the City of London.

D. Factual Findings

42This is a case, like Nassiah v. Regional Municipality of Peel Police Services Board, supra (at § 52), where the "dramatically differing accounts cannot be reconciled by fading memories, confusion or mistake. Someone is not telling the truth". Either Mr. McNabb came with Ms. Smibert to the counter and stood beside her, or he arrived during Mr. Sinclair's discussion. This difference influences all the testimony about the events in question, and is the principal question I must resolve. The other central question is whether Mr. Sinclair's behaviour was as he described it, or as described by the other witnesses.

43For the reasons that follow, I accept the evidence of Ms. Smibert and Mr. McNabb that Mr. McNabb arrived in the City Clerk's office during the discussion between Ms. Smibert and Mr. Sinclair. He did not stand beside Ms. Smibert when she gave Mr. Sinclair the FOI package as Mr. Sinclair testified. I also find that Mr. Sinclair was being loud, aggressive, and not listening to Ms. Smibert's explanations, which, quite understandably in light of his behaviour, caused her to feel intimidated. I find that an unknown person telephoned Mr. McNabb and asked him to come upstairs.

44The task of evaluating credibility depends upon an evaluation of all of the evidence in the context of the events that occurred and the "preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions": Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356—57 (B.C.C.A); Boldt-MacPherson v. Hoita Kokora Centre, 2008 HRTO 35 [CHRR Doc. 08-365] at § 22—23. There are several factors that cause me to conclude that the essential aspects of Ms. Smibert and Mr. McNabb's versions of events are accurate and Mr. Sinclair's evidence is not accurate.

45Ms. Smibert, Mr. McNabb, and Ms. Miklautz all confirmed that Mr. McNabb was not present until after Mr. Sinclair started complaining about the contents of the package, and that Mr. Sinclair was behaving loudly and aggressively. Ms. Geris confirmed the manner in which he was behaving. During cross-examination by Commission counsel, none were shaken on these essential points, in my view, and their evidence was logical and coherent. While Commission counsel pointed to various alleged inconsistencies such as minor differences in the timing of events as listed in Mr. McNabb's report and Ms. Miklautz's evidence that she had call waiting on her phone at the relevant time, these do not suggest that any of these witnesses were not credible on the fundamental events in question.

46On the other hand, the objective evidence does not support Mr. Sinclair's assertion that he waited for 45 minutes while Ms. Smibert photocopied documents. The cover letter for the package of documents contained in the City's files is dated June 5, 2003, the previous day, suggesting that the documents had already been prepared. Ms. Smibert testified that while she could not be positive that the documents had been copied when Mr. Sinclair arrived, photocopying 40 pages (which would have been ready for copying when the cover letter was prepared) would have taken much less than 45 minutes. She also testified that a different staff member would have done the copying. This evidence about normal practices was uncontradicted. Mr. Sinclair's theory depends either upon Ms. Smibert having backdated the letter or a significant departure from Ms. Smibert's normal practices. There is no reason to suspect either of these events.

47On at least one less significant matter, Mr. Sinclair gave testimony that was not credible, casting further doubt on the credibility of his testimony on the main issues. Mr. Sinclair testified that he made his FOI request on May 6, 2003. An FOI request form signed and dated May 6, including Mr. Sinclair's contact information, is contained in the City's file. This form is marked "withdrawn". At the bottom is written "This application is hereby withdrawn" followed by Mr. Sinclair's signature and the date May 7, 2003. A second form is also contained in the file (the "undated form"). This one has requests that are worded differently. Mr. Sinclair insisted that he had first filed the undated form, prior to May 6, 2003, without his contact information. He said that City Hall staff called him to tell him that he had filled in his name where the institution name should have been, and he attended on May 6 to correct it. The signed withdrawal, he said, referred to the previous application, and he made an error when he dated it May 7. He testified that he in fact withdrew it on May 6. Ms. Smibert testified that, while she could not remember the details of how the revised form came to be filed, she wrote "withdrawn" at the top of the request that was withdrawn. The request marked "withdrawn" asked for information over which the City had no control or custody and she would likely have discussed this with Mr. Sinclair and talked to him about the response she could give, and assisted him with an amendment to the text of the request.

48Mr. Sinclair's evidence on this issue reflected an important issue for him because he argued that the City had not properly responded to his FOI request. Yet it is completely unbelievable that the City would have accepted an FOI request without contact information, that he would have made a mistake on the date, and that he would have signed the statement, "This request is hereby withdrawn" on a revised request he had just submitted. There is also no reason that he would have changed the text of the requests if the only change that had to be made was the institution's name. I accept and agree with Ms. Smibert's reconstruction of what happened. Mr. Sinclair's evidence on this issue casts further doubt on his evidence on other issues.

49There is also no reason to think that Ms. Smibert would have departed so extensively from her common practice by having Mr. McNabb stand next to her when she gave Mr. Sinclair the package. Further, I find it unlikely that in such circumstances Mr. Sinclair would not have objected immediately or complained to someone else at the City had Ms. Smibert come out with a security guard to discuss his request.

50For all of these reasons, I find that, during the discussion with Ms. Smibert, Mr. Sinclair raised his voice, refused to listen to her explanations of the City's response to his FOI request, and banged his fist on the counter. As a result, an unknown employee in the City Clerk's office called Mr. McNabb, who went to the City Clerk's office and intervened.

WAS RACE A FACTOR IN THE DECISION TO CALL MR. MCNABB?

51The Commission argues, in the alternative to its theory that the removal was planned in advance, that I should find that any telephone call to security was discriminatory, as race formed one of the reasons for making it. It argues that the City is responsible for the actions of the employee who made this call. The City accepts that it was one of its employees who made the call, and acknowledges that, although it made inquiries of most of those who were working on that day, no one admitted doing so.

52The question to be considered in evaluating this issue is not whether Mr. Sinclair was behaving inappropriately and whether it might have been appropriate to call security, but rather whether this decision to involve security represented differential treatment on the basis of race. It is a fundamental principle of human rights law that, if a prohibited ground was but one of the reasons for a decision or action, there is prima facie discrimination: Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 at 292 [28 C.H.R.R. D/256 at § 11] (Div.Ct.); Dominion Management v. Velenosi (1997), 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 [CHRR Doc. 97-303] (C.A.); Nassiah, supra, at § 112.

53It is important not to simply assume that, because Mr. Sinclair was behaving inappropriately, race played no part in the decision to call security. Racial discrimination is often subtle, and can manifest itself through overreaction or a differential response when a racialized person is involved in situations that pose challenges for those in authority. The issue is not whether, in the abstract, Mr. Sinclair's behaviour may have merited a call to security, but rather whether the Commission and complainant have proven that race was a factor in the decision to call security this time. Put differently, if the Commission and complainant have proven on a balance of probabilities that one of the factors in the involvement of security personnel was Mr. Sinclair's race, then there is discrimination and a violation of the Code if the respondent is unable to establish a defence. If this is not proven, there is no violation. It is also important to acknowledge that there will often be no direct evidence that race was part of a decision. The Tribunal must be sensitive to the subtle ways in which race may affect decision making, and attentive to circumstantial evidence that may indicate differential treatment on the basis of race.

54I agree with the following summary of the applicable principles set out by the British Columbia Human Rights Tribunal in Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 at § 482:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

55In this case, the question is whether, on a balance of probabilities, the complainant and Commission have proven that the evidence supports a finding that race was a factor in the involvement of security. I find that this has not been proven. There is no need to resort to shifting evidentiary burdens to decide this issue. On balance, the evidence supports the non-discriminatory explanation that the City has suggested, that the call resulted only from Mr. Sinclair's behaviour.

56A principal difficulty in deciding this issue arises from the record-keeping of the City and Mr. McNabb, neither of whom obtained and recorded the identity of the person who made the call. As a result, we do not have her explanation or cross-examination about why she called security and the Tribunal must be particularly alert to any circumstantial evidence suggesting that one of the factors in her decision was Mr. Sinclair's race. Do all of the circumstances support such a finding on a balance of probabilities?

57The Commission emphasizes that neither Ms. Smibert nor Ms. Miklautz called security themselves. It suggests that this supports an inference that the call was not justified and I should infer that it was motivated by racism. I draw a different inference from their evidence: that this was a situation in which it would have been quite reasonable to make the decision either to call security or not. While Mr. Sinclair was a client becoming out of control, refusing to accept Ms. Smibert's explanations, and who did not leave, there was not an immediate physical threat to anyone's safety. Ms. Smibert testified that she did not call because she was focused on diffusing the situation with Mr. Sinclair, while Ms. Miklautz said that it was a situation that could "go either way" and she did not feel it necessary to call, although she would handle it differently, looking back. Both of these were reasonable responses to the situation, as was the decision of the person who made the call, so long as race was not a factor. The involvement of trained security personnel is often helpful in diffusing confrontations, and it is entirely proper for one employee to intervene to help another by making a decision to call for assistance.

58As circumstantial evidence that race might have been a factor in the decision to call Mr. McNabb, there is, in my view, only the fact that the City was unable to locate the unknown caller despite making inquiries of most employees working on that day. Therefore, the Tribunal does not have her explanation for her decision. There is cause for concern. It may have been that the caller was not truthful when the City made inquiries because race was a factor in her decision, and I am alert to this possibility. However, there were numerous employees working in the City Clerk's office on that day. The City did not successfully contact all of them because some no longer worked for the City at the time of the Commission's investigation. If the person was not contacted, there was no untruthfulness. Moreover, there are other possible reasons the caller may not have acknowledged making the call, including concern about becoming involved, as a witness or respondent, in human rights proceedings, or fear of negative consequences for the employment relationship

59On the other hand, there is much evidence that supports a non-discriminatory explanation for the call. Security had been called to the City Clerk's office several times when other clients were involved. I accept Ms. Miklautz's evidence that this situation was similar to other situations in which security was called, and Ms. Smibert's view that this was the most difficult customer service experience she had in 18 years of public service. This evidence suggests that Mr. Sinclair was not treated differently because of race. Mr. Sinclair attended at City Hall on numerous other occasions without incident, suggesting that the call resulted from his behaviour on this occasion. Moreover, when she called Mr. McNabb, the unknown employee emphasized that Mr. Sinclair was "causing a disturbance", thereby stating a non-discriminatory reason for her decision.

60These strong indications of a completely non-discriminatory reason for the call, I find, make it more probable that race was not a factor in the call. Accordingly, the Commission and complainant have not proven discrimination contrary to s. 1 of the Code and the complaint must be dismissed.

ADDENDUM

61The above decision had been drafted, subject to final editing, when the Tribunal received a request from counsel for the Commission to reopen the hearing to introduce as evidence two memoranda to file from Joyce Burpee of the Human Rights Department of the City of London, both dated January 9, 2004. One summarizes a conversation Mr. Sinclair had with Ms. Burpee in which he complained about alleged discriminatory treatment by an employee in the City Clerk's office (the named employee is not a witness in this case) on various occasions over several years.

62A second memorandum states as follows:

I came out of a meeting with Mr. Sinclair to find that a member of the Security staff was waiting in HR around the corner from my office. I asked Aida Gatfield about the necessity for this and was told that Mr. Sinclair was a problem and that the best thing is to call security when he is around.

I told her that I had not felt in any way threatened by him. He had been speaking loudly but that was all. I had been sitting in my office with him with the door closed for over an hour and as soon as I asked him into my office, he calmed down. It appeared to me that the approach to him, calling Security, exacerbated the situation rather than resolved it.

63The Commission proposed "that the evidence be included as an exhibit in these proceedings with the consent of the City for the truth of its contents and that the Commission be allowed to make submissions on it". If the City did not consent, it asked to call Ms. Burpee as a witness to give testimony on the incident.

64The documents were obtained by Mr. Sinclair on June 26, 2008, through a freedom of information request (presumably made following the hearing) for "records compiled in 2004 by Joyce Burpee, Human Rights Administrator re Vincent Sinclair". The Commission concedes that a party seeking to introduce new evidence must show that it acted with due diligence to attempt to obtain the information earlier. It argues that its reliance upon the obligation of the City to disclose all arguably relevant documents, contained in the Tribunal Rules, together with a disclosure request it made to the City at the end of the second last day of hearing on May 12, 2008, meet this requirement.

65The Commission submits that the relevance of the documents comes from the fact that "they confirm the City's propensity to treat Mr. Sinclair differently" and that, although they relate to an incident seven months prior, "the incident is similar and provides us with an illumination of the City's actions in the previous incident".

66I find that the evidence could reasonably have been obtained much earlier, and that the Commission and Mr. Sinclair did not act with due diligence. There is no need to consider what other criteria need to be met for fresh evidence to be admitted at this stage of the Tribunal's hearing process.

67The proposed "fresh evidence" relates to an incident that happened over four years ago in which Mr. Sinclair was involved. He was fully aware of his conversation with Ms. Burpee, and could have requested Ms. Burpee's notes prior to the hearing. Similarly, the Commission conducted a full investigation, using its extensive statutory powers, and could have requested the notes at any time before or after referral.

68I disagree that the City was in any way in breach of its obligation under the Tribunal's Rules to disclose all arguably relevant documents, and therefore need not decide whether a failure to do so would affect the analysis. There is no reference to the January 9, 2004, incident or any pattern of behaviour in relation to Mr. Sinclair in the Commission's pleading. Arguable relevance is defined by the allegations set out in the pleadings, and accordingly there was no obligation on the City to look for documents about other incidents involving Mr. Sinclair. Moreover, after receiving the City's disclosure, Mr. Sinclair or the Commission could have requested an order from the Tribunal that the notes be produced, had they believed that they were arguably relevant. They did not.

69As for the request on May 12, 2003, my notes record that Commission counsel requested records pertaining to Mr. Sinclair "in the security area", arising from the cross-examination on that day. The request arose from a statement by Mr. McNabb in cross-examination that there were various "incident reports" about Mr. Sinclair created by other security officers. Despite the fact that the Commission had closed its case and it was the evening before the last witness and final argument, Mr. Belch agreed to make efforts to locate such documents, although he stated that it may be impossible to do so on such short notice. As a result, I did not need to rule on the request. Ms. Burpee's notes do not fall within the scope of what Mr. Belch agreed to search, as they are not incident reports made by a security officer. Moreover, even if they had been produced on May 13, any objection to the Commission's attempt to introduce them as reply evidence would likely have been sustained as they did not arise out of the respondent's evidence.

70The memoranda will not be admitted. The Commission and complainant could have obtained them sooner with reasonable diligence. The City bears no responsibility for their failure to do so.

71Even if the memoranda were admitted for the truth of their content as the Commission asks, they would not affect the result. Ms. Burpee's notes of her conversation with Mr. Sinclair are simply a record of what he said to her, are hearsay, and are entitled to no weight. As for the other memorandum, it outlines a reason why Aida Gatfield said she called security on a different occasion nine months after the incident in question. There is no evidence of who Ms. Gatfield is, no evidence that she was implementing any general policy, and no suggestion that she played any part in the incident of June 3, 2003. Moreover, her statement suggests that it was her views about Mr. Sinclair's behaviour on previous occasions that led her to involve security on January 9, 2004, not his race. Any generalization about the "City's propensity" from Ms. Gatfield's statements would support the City's position in this case.

ORDER

72The complaint is dismissed.