HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tamas Foldes

Applicant

-and-

Woodbine Entertainment Group, David Willmot and Stephen Mitchell

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 6, 2009

Citation: 2009 HRTO 1222

Indexed as: Foldes v. Woodbine Entertainment Group

appearances BY

Tamas Foldes, Applicant ) On his own behalf

Woodbine Entertainment Group, )

David Willmot and Stephen Mitchell, ) Brian O’Byrne, Counsel

Respondents )

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 15, 2008, which alleges that the respondents discriminated against him with respect to services because of his age. Specifically, he alleges that the respondents failed to respond to two customer complaint letters that he delivered to them because he is a senior citizen.

2The respondents filed a Response to the Application on September 25, 2008, which denies the allegation of discrimination. The respondents deny that they failed to respond to the first letter, and state that any delay in responding to the letters was for non-discriminatory reasons. Specifically, they allege that the first letter was misplaced for a period of time and then responded to, and that they were in the process of investigating the applicant’s allegations in the second letter when they received his Application.

BACKGROUND

3Woodbine Entertainment Group (the “respondent corporation”) operates horse racing tracks, where members of the public can wager bets on horses. The applicant, who is retired, has been a regular customer at the tracks for many years. He was in his late seventies at the time of the alleged incidents. At that time, the individual respondent, David Willmot (the “respondent Willmot”), was the respondent corporation’s Chairman and Chief Executive Officer, and the individual respondent, Stephen Mitchell (the “respondent Mitchell”), was its Executive Vice President and Chief Financial Officer.

4The hearing of the merits of the Application took place on May 26, 2009. I heard the evidence of four witnesses: (1) the applicant, (2) Tom McKinnon, the Senior Operations Manager of the respondent corporation, (3) Jennifer Petrie, a program seller with the respondent corporation, and (4) the respondent Mitchell.

EVIDENCE

5From 2005 to 2008, the applicant regularly examined the chart lines in the racing tracks’ daily program, which provide bettors with background and technical information on each horse scheduled to race, and reported errors to Mr. McKinnon. In exchange, Mr. McKinnon often provided the applicant with a free program or directed him to one of the program sellers, who would give him a free program.

6Mr. McKinnon testified that in January 2008, he found out that the applicant was approaching program sellers, without his permission, and asking them for free programs “on Tom”. He stated that several of the program sellers complained that the applicant was rude to them if they refused to give him a free program. He stated that he informed the applicant that he would no longer be given a free program.

7In his testimony, the applicant admitted that in January 2008 Mr. McKinnon told him to stop reporting errors to him, but from that point on he reported the errors to the Director of Racing, and continued to receive free programs. He denied that he was ever rude to any of the program sellers.

8Ms. Petrie, who worked as a program seller between May and August 2008, testified that the applicant was rude to her on several occasions. She stated that he often asked her for a free program, and if she refused to give him one, he would throw up his hands and sigh, and make statements such as, “I don’t get respect.” She stated that on one occasion he threw an old program at another program seller and hit her on the chest.

9The applicant testified that in May 2008 he asked Mr. McKinnon, in a public area, for a free program, and Mr. McKinnon rudely and abruptly replied, in front of 25 people, “Not tonight.” He stated that Mr. McKinnon’s behaviour was unpleasant and inhumane. Mr. McKinnon admitted that he refused the applicant’s request for a free program in the vicinity of the program sellers, but denied that anyone heard their conversation.

10On June 13, 2008, the applicant delivered a customer complaint letter, addressed to the respondent Mitchell, to the respondent corporation’s customer service desk. The letter alleged that Mr. McKinnon’s refusal to give him free programs was unfair, and that Mr. McKinnon was rude to him in front of several people. The letter concluded by asking whether this was the appropriate way to treat an elderly senior.

11On July 3, 2008, not having received a response to his letter, the applicant delivered a follow up letter, which this time was addressed to the respondent Willmot, to the customer service desk. The letter alleged that the respondent Mitchell’s failure to respond to his first letter constituted age discrimination.

12On August 15, 2008, not having received a response to either of his letters, the applicant filed an Application with the Tribunal. The applicant testified that his allegation of discrimination is limited to the respondents’ failure to respond to his customer complaint letters. He alleged that the respondents ignored his letters and did not respond to them because he is an old man.

13The respondent corporation has several customer service documents/policies. The document/policy with respect to discrimination indicates that each guest has a right to be treated fairly, and with respect, dignity and consideration, regardless of Code-related grounds, including age. The document/policy with respect to customer complaints indicates that the appropriate department shall respond to the customer within seven days.

14The respondent Mitchell testified that he received the applicant’s first complaint letter and gave it to the Director of Customer Services to answer. He stated that the Director misplaced the letter for a period of time, but eventually responded to it in a letter dated September 2, 2008. The letter suggested that the applicant become a member of the respondent corporation’s Rewards program, which would allow him to obtain free programs by redeeming earned points. The respondent Mitchell stated that the Director was not aware at the time she drafted the letter that the applicant had filed an Application with the Tribunal.

15The respondent Mitchell further stated that the respondent Willmot did not receive the applicant’s second complaint letter immediately because he was recovering from a heart attack. He stated that when the respondent Willmot returned to work later in the summer, he gave the letter to the Vice President of Wagering Services to deal with, but before it was answered, this Application was delivered to the respondents. He stated that the respondents never responded to the second letter because the respondent corporation’s policy is not to deal directly with a person after legal proceedings have begun.

16The applicant admitted that he received a response to his first complaint letter, but noted that it was after he filed his Application with the Tribunal. He also admitted that the respondent Willmot may not have been able to respond to his second complaint letter personally, but stated that someone should have responded to it.

DECISION

17The Application relates to section 1 of the Code, which provides that every person has a right to equal treatment with respect to services without discrimination because of age. The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred.

18Accordingly, the issue that I am required to determine is whether the applicant has proven on a balance of probabilities that his age was a factor in the respondents’ failure to respond to his customer complaint letters in a timely manner. For the reasons that follow, I have decided that the applicant has not proven his case.

19I accept the applicant’s evidence that the respondents failed to respond to his two customer complaint letters in a timely manner. The respondent corporation’s document/policy with respect to customer complaints indicates that the appropriate department shall respond to the customer within one week, but there was no response to the applicant’s first complaint letter for more than 11 weeks, and the response to his second letter was outstanding for at least eight weeks when the respondents were served with his human rights Application.

20On the other hand, aside from this evidence and the fact that the applicant was in his late seventies, the applicant did not present any evidence to support his allegation that his age was a factor in the respondents’ failure to respond to his letters in a timely manner.

21Furthermore, I accept the respondents’ non-discriminatory reasons for failing to respond to the two letters in a timely manner. The respondent Mitchell’s explanations for the delay – the first letter was misplaced for a period of time and the respondent Willmot was unable to deal with the second letter immediately because he was recovering from a heart attack – were credible and unshaken on cross-examination.

22Finally, even if I accept the applicant’s evidence that someone else should have responded to his second letter in a timely manner if the respondent Willmot was unable to do so, I would not find that the applicant has proven on a balance of probabilities that his age had anything to do with this. Poor customer service is not discriminatory unless there is a nexus to a Code ground.

ORDER

23The Application is dismissed.