Kim v. Meet Market Adventures, 2009 HRTO 1623

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caren Kim

Applicant

-and-

Meet Market Adventures and Travis Hartley

Respondents

DECISION

Adjudicator: Eric Whist Date: October 7, 2009 Citation: 2009 HRTO 1623 Indexed as: Kim v. Meet Market Adventures

APPEARANCES:

Caron Kim, Applicant ) On her own behalf Meet Market Adventures and ) Travis Hartley, Representative Travis Hartley, Respondents ) and on his own behalf

1Caron Kim (the “applicant”) alleges that the respondents, Meet Market Adventures (“MMA”) and Travis Hartley, (the “personal respondent”), discriminated against her on the basis of age, marital status, sex and race in the provision of services, goods and facilities contrary to section 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), as well as on the basis of reprisal or threat of reprisal contrary to section 8 of the Code.

Background

2MMA is a company that promotes and facilitates events for singles in the greater Metropolitan Toronto area. The company organizes events for registered MMA members with members paying only for the events they attend. The personal respondent is the president and owner of the company.

3The applicant self-identifies as a Korean-Canadian woman in her forties. She joined MMA as a member in 2005. On January 2, 2009, the applicant wrote the personal respondent to raise three concerns about the New Year’s Eve party she just attended and which was organized by MMA. The applicant was concerned that she had not been identified on the guest list. She complained that a number of women had dressed contrary to the dress code to “dress for success” rather choosing, according to the applicant, to “dress for sex”. The applicant also stated that another guest had made unwanted advances towards her. Later the same day the personal respondent e-mailed the applicant to tell her that her membership with MMA had been cancelled.

Allegations

4The applicant contends that the decision to cancel her membership was discriminatory. She believes that the personal respondent was aware that she was an older woman because of her expressed disapproval of members who wanted to “dress for sex” and that MMA was more interested in having younger women than older women as members. Thus, she believes that the decision to cancel her membership was discrimination based on age.

5The applicant also states in her Application that the decision to cancel her membership was discrimination based on marital status in that it was disrespectful of her as a single person and that as a single person she should not have been exposed to such undeserving treatment. She further alleges that her gender was a factor in the personal respondent’s decision to terminate her membership because the personal respondent believed that he could take this action because of stereotypic assumptions of women being quiet and submissive and willing to take such treatment.

6The applicant further contends that the respondents had a duty to ensure that she was not subject to racial discrimination. Specifically, she alleges that the person who made the unwanted advances at the New Year’s Eve party had indicated to her that he liked Chinese women. The applicant found these comments to be offensive in that they suggested a stereotypic vision of Chinese women and because of the assumption that she was of Chinese ancestry, which she is not. The applicant contends that the respondents should have had a Code of Conduct in place which would have made clear to MMA members that such comments were not appropriate and that the failure of the company to protect her from these unwanted racial comments was discrimination based on race.

7The applicant states that she included reprisal or the threat of reprisal as a form of discrimination in her Application (filed February 6, 2009) both because of the respondents’ discriminatory actions I have already described and because of her fears of future acts of reprisal the respondents might commit. At the hearing, the applicant referred to an incident in May 2009 in which another organization decided to revoke her membership and she wondered if the respondents may have had a role in sharing information about her with this other organization.

8I ruled at the hearing that the possible involvement of the respondents in the decision of a different organization was highly speculative in nature, was not an allegation contained in the Application and that this allegation would not be considered as part of the hearing of the applicant’s Application. The applicant’s further allegations of reprisal are, in fact, allegations of discrimination based on the other grounds she has cited in her Application. Consequently, I need not make any further finding on the issue of reprisal.

Respondents’ Position

9The personal respondent denies that the applicant was treated in a discriminatory manner. He states that MMA’s membership consists primarily of older women in their 30’s and 40’s -- MMA’s targeted demographic -- and that age and gender were not factors in the decision to terminate her membership. Similarly he states that MMA’s membership consists of single persons and consequently the decision to end the applicant’s membership cannot be considered discrimination based on her status as a single person. He asserts that MMA was unaware that the applicant’s concern about another customer’s behaviour at the New Year’s party was, in any way, race-related and so it is not reasonable to consider that they somehow racially discriminated against her. The personal respondent denied any act or threat of reprisal either before or after the applicant’s Application.

10The personal respondent argued that the applicant’s membership was cancelled because the applicant had previously attended MMA events without paying. He stated that the applicant had also been identified by MMA staff as having complained about MMA events to other MMA members and that MMA was concerned about this negativity. The personal respondent testified that having members enjoy themselves at a MMA event and for members to feel good about MMA and its services without being exposed to negative comments about an MMA event or MMA was critical to the success of the company. Finally, the personal respondent stated that the applicant’s e-mail regarding the New Year’s Eve party was a further complaint indicating that she was dissatisfied with MMA’s services. The personal respondent concluded that as the applicant was not satisfied with MMA’s services he did not want her continuing to be involved and possibly further expressing negative views of MMA or other MMA events. Consequently, he decided to terminate her membership. It was suggested that it was always open to the applicant to go to any of the numerous other organizations providing similar services for singles.

Decision

11The Application is dismissed. The applicant was clearly hurt and offended by the respondents’ decision to terminate her membership, a decision she described as abrupt and harsh as well as discriminatory. I agree that in many ways the decision was abrupt coming as an immediate response to a complaint from a longstanding customer. However, I find that the personal respondent’s decision was made for business reasons that were unrelated to any grounds covered by the Code. The personal respondent clearly did not like the applicant complaining about MMA’s services and believed that it was better for the company’s business to not continue the applicant’s membership. Whether or not the decision was abrupt and harsh, as the applicant claims, there is no persuasive evidence that the decision to terminate the applicant’s membership was discriminatory in nature.

12I further find that the respondents’ failure to control the conduct of one of their customers towards the applicant did not amount to discrimination on the basis of race.

Further Evidence and Analysis

13I heard testimony from the applicant, the personal respondent and Sam Gruszeki, the director of strategic initiatives for MMA.

14The applicant testified that she had had no history with the respondents that warranted her membership being cancelled. She testified that she had never joined an MMA event without paying, as alleged by the personal respondent. She stated that there was an occasion when she was coincidentally present at a comedy club where an MMA event was being held but that she paid MMA as required, albeit on site rather than in advance (and on line) as is the general practice. She testified that she was never cautioned by MMA staff about not paying to attend an event.

15The applicant denied having ever made negative comments about an MMA event to other members, as alleged by the personal respondent. She did acknowledge that she had, on occasion, stated to other members at an MMA event that she did not believe that they were getting much given what they paid but that she did not consider these to be negative remarks.

16The personal respondent testified that his staff had reported to him that the applicant had, on more than one occasion, attended MMA events without paying, and that the applicant would arrive at the site of a MMA event and would surreptitiously join the MMA group either to enjoy the event and/or participate in the socializing after the event that MMA organized for members. Mr Gruszeki also testified that he had been present on an occasion that the applicant had failed to pay for an event and that the previous director of operations had told him that the applicant had, on several occasions, not paid for MMA events. He testified that he was also told that the applicant had been warned that if this behaviour was to continue that she would lose her membership. He also testified that he was aware of the company’s concerns that the applicant had made critical remarks about MMA events to other members.

17I preferred the personal respondent’s and Mr. Gruszek’s testimony on this issue of the applicant’s past behaviour. I find that their testimony about one incident in particular, an event organized by MMA at a comedy club where it was alleged the applicant joined without paying, to be very specific, detailed and consistent. By contrast the applicant’s suggestion that she just happened to be at the location the event was taking place at and was therefore able to pay and join in was not as plausible or credible. I make this credibility finding mindful of the test for credibility set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), which states:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…

18Similarly I accept the personal respondent’s and Mr. Gruszek’s testimony that MMA was concerned about the applicant’s past comments about MMA events. The applicant admitted to making critical comments to other members although she maintained that these were not negative in nature.

19I further find that the personal respondent was particularly concerned about any expressed criticism of MMA and did hold a belief that such criticism could undermine the positive atmosphere that MMA was trying to create at events and that any negative word of mouth about the organization would be bad for business. The personal respondent constantly repeated this concern and evidence was led of other MMA members whose membership was terminated either for conduct that was seen as negatively affecting group activities (excessive drinking and sexual advances) or for badmouthing events. I am satisfied that the respondents’ decision to terminate the applicant’s membership after her January 2, 2009 e-mail is consistent with this repeatedly expressed concern about preventing any negativity regarding MMA and its activities.

20One troublesome aspect of the respondents’ evidence was that most of the applicant’s conduct said to cause them concern occurred at least two years ago. And yet when the applicant then complained about the New Year’s party the immediate reaction was to terminate her membership. Even with the personal respondent’s explanations about his concern for MMA’s reputation and wanting to engender a positive feeling amongst members this decision appears abrupt and harsh.

21It was also a decision that clearly dismayed the applicant. She repeatedly testified that she felt that the decision was unfair and that it had significantly affected her life. However, whether it was unfair in a general sense, there is no evidence that it was influenced by discriminatory factors.

22The applicant’s claim that she was subject to age discrimination because the respondents preferred younger members is not supported by the evidence. I accept that MMA has a significant clientele in their 30s and 40s and I do not accept the contention that having one’s membership terminated after complaining about women who chose to “dress for sex” is evidence that the organization prefers a younger clientele.

23I also do not accept the contention that the applicant’s marital status or gender factored into the respondents’ decisions. There is no evidence to support the contention that she was treated differentially or in a discriminatory manner because she was single and female.

24I also do not find that the respondents’ failure to respond to the unwanted advances of the other MMA member to be discriminatory. The applicant never brought to the respondents’ attention the nature of the other customer’s remarks and so I do not find that they can be held accountable for not taking action in response to this behaviour. While it may have been useful to have a Code of Conduct in place in order to communicate expected behaviours for members, the failure to have one does not in itself amount to discrimination under the Code.

25For all of the above reasons the Application is dismissed.