Leonardo v. House on Parliament Restaurant, 2009 HRTO 1948

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julio Leonardo Applicant

-and-

The House on Parliament Restaurant Respondent

AND BETWEEN:

Celestino Vargas Applicant

-and-

The House on Parliament Restaurant Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart Date: November 17, 2009 Citation: 2009 HRTO 1948 Indexed as: Leonardo v. House on Parliament Restaurant

APPEARANCES BY

Julio Leonardo and Celestino Vargas, Applicants — Mary Ellen McIntyre, Counsel

The House on Parliament Restaurant, Respondent — Tania Waldock, Representative

1These are two related Applications made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"). Mr. Vargas' Application is dated December 2, 2008 and Mr. Leonardo's Application is dated December 8, 2008. The underlying complaints were both filed with the Ontario Human Rights Commission (the "Commission") on July 23, 2007.

2Both applicants allege that they experienced racial discrimination in relation to being barred from the respondent restaurant, contrary to ss. 1 and 9 of the Code. While the original complaints also alleged discrimination because of age, this allegation was withdrawn at the Case Resolution Conference ("hearing").

3The hearing in this matter was held on September 21, 2009 in accordance with the expectation, expressed in the Code and the Tribunal's Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from both applicants and a further witness who testified in support of the applicants as well as from three staff members from the respondent restaurant. The parties were given the opportunity to cross-examine opposing witnesses after I had completed my questioning.

Background

4The House on Parliament Restaurant is a small restaurant in downtown Toronto, consisting of an outdoor patio, a small bar area with four tables and a dining room with eleven tables. The evidence indicates that the owners of the restaurant and the front of house staff are White. The clientele at the restaurant is predominantly White, but reflects the diversity of the population in the area.

5Mr. Leonardo self-identifies as having been born in the Dominican Republic, with African ancestry on his father's side and European ancestry on his mother's side. In terms of colour, Mr. Leonardo refers to himself as being "Black but a little bit White". Mr. Vargas also was born in the Dominican Republic and self-identifies as Black. The other witness who testified on the applicants' behalf, Mr. Fondeur Cruz, was born in the Dominican Republic and said that people refer to him as "Brown-skinned".

6The events at issue in this case relate to incidents that occurred at the restaurant on May 20 and June 9, 2007. Prior to this time, Mr. Leonardo states that he had attended the respondent restaurant on two occasions, both times with Mr. Fondeur Cruz. On both of these occasions, they sat at a table in the bar area. Mr. Fondeur Cruz also had been at the restaurant on a couple of further occasions by himself. On these prior occasions, they had no problem being admitted into the restaurant or getting served.

7However, both Mr. Leonardo and Mr. Fondeur Cruz testified that they observed White restaurant patrons being treated differently. Mr. Leonardo states that White patrons were greeted with "hello" while he and Mr. Fondeur Cruz were not, and that White patrons were served faster than they were. Mr. Fondeur Cruz states that he never got any welcome or goodbye from restaurant staff, unlike White patrons who were treated nicely and greeted at the door with a smile. These witnesses testified that they felt tension and that something was wrong as a result of this difference in treatment.

8The respondent's witnesses described a small but very busy restaurant, which operated on the principle of "organized chaos". There was no host stationed at the front of the restaurant to greet patrons when they came in. These duties were handled by whichever staff member was available at the time. The respondent's evidence is that the restaurant has a significant amount of repeat business, and that over time staff members have come to know some of the patrons very well. If there was a perception that some patrons were greeted in a friendlier manner than experienced by Mr. Leonardo and Mr. Fondeur Cruz, this is attributed to a greater level of familiarity with other patrons.

The Events of May 20, 2007

9On May 20, 2007, Mr. Leonardo and Mr. Fondeur Cruz were at the restaurant sitting at a table in the bar area. Their evidence is that they arrived at the restaurant at about 5:00 or 5:20 pm, and between the two of them proceeded to have 5 or 6 bottles of beer and some nachos. At a certain point, Mr. Fondeur Cruz left and Mr. Leonardo stayed behind.

10Mr. Leonardo states that as one of the servers, Jennifer Franchuk, went by he put his hand in the air to attract her attention. Mr. Leonardo believes that Ms. Franchuk saw him, but she didn't say anything to acknowledge his request for service. At this point, Mr. Leonardo stood up from his table and put his hand in the air again. He states that the bartender said he was busy and to give him one second, so Mr. Leonardo waited. When he was able to speak with the bartender, Mr. Leonardo states that he asked why Ms. Franchuk had not said anything to him, to which the bartender replied that she was busy. Mr. Leonardo states that he then said that he found it "a little different" when one person says give me a second than when Ms. Franchuk hadn't said anything, and he said that this was "illogical". Mr. Leonardo states that the bartender didn't say anything in response, and that he shook the bartender's hand and left the restaurant.

11Ms. Franchuk's evidence is entirely different. She arrived for her shift on May 20, 2007 at about 5:00 p.m. and was serving customers on the patio. She says that the restaurant was very busy at the time. Ms. Franchuk's duties required her to go into the bar area to get drinks, and she recalls Mr. Leonardo putting up his hand and motioning for her to come over. Ms. Franchuk's evidence is that she said something like give me one second or I will be right over. She states that she spoke to another female server and asked her to serve Mr. Leonardo and Mr. Fondeur Cruz. Ms. Franchuk states that this server later came over to her to ask why she had been sent to that table, because Mr. Leonardo and Mr. Fondeur Cruz didn't want anything.

12Ms. Franchuk states that she was familiar with Mr. Leonardo and Mr. Fondeur Cruz from them having been in the restaurant previously. She perceived that she was being looked at sexually by these two men on prior occasions and that this made her feel uncomfortable. Ms. Franchuk testified there were prior occasions when Mr. Leonardo and Mr. Fondeur Cruz had called her over to their table but hadn't wanted to order anything and at least one occasion when they called her over and said that they just wanted to say hello.

13Ms Franchuk's perceptions and evidence are disputed by Mr. Leonardo and Mr. Fondeur Cruz.

14Ms. Franchuk's evidence is that probably 15 or 20 minutes after her very brief exchange with Mr. Leonardo, she was up at the till in the bar area, and Mr. Leonardo came up to the till, about a foot and a half or two feet away from her. She states that Mr. Leonardo started speaking to her in a loud voice that she would say was yelling, and said something about Ms. Franchuk having said that she was coming back to the table and she didn't. Ms. Franchuk states that she backed away a little bit because Mr. Leonardo was really close, and said that another waitress had gone over to the table and they didn't need anything. Ms. Franchuk's evidence is that Mr. Leonardo then said something like, no you're our server, you're serving us, to which Ms. Franchuk replied, no that's not the way it works here. Ms. Franchuk states that the bartender (Scott Hunter) was standing close by because Mr. Leonardo was yelling at her, and she asked Mr. Hunter to speak to Mr. Leonardo because she wasn't comfortable. At that point, Ms. Franchuk says that she left the area while Mr. Hunter proceeded to speak with Mr. Leonardo.

15Mr. Hunter did not appear as a witness before me, as he was out of the country and not available to attend the hearing. A letter from Mr. Hunter was submitted into evidence at the hearing, in which he states that "Mr. Leonardo became upset as he specifically wanted [Ms. Franchuk] to serve him. He approached her at the bar and in an angry voice demanded service from her. He was loud and intimidating and I felt that it was necessary to intervene on her behalf. I spent approximately 15-20 minutes trying to placate him. He eventually paid his bill and left". While I have the discretion to accept hearsay evidence of this nature, I ultimately do not need to rely upon the contents of this letter for the purpose of my decision.

16Peter Campbell, another restaurant employee, testified that Ms. Franchuk had reported her prior discomfort with serving Mr. Leonardo to him. Mr. Campbell testified that he was not working at the restaurant on May 20, 2007, but lives in the neighbourhood and saw Mr. Hunter speaking with Mr. Leonardo. Mr. Campbell states that he asked Mr. Hunter if he was okay, to which Mr. Hunter replied that there had been an incident during service which resulted in Mr. Leonardo raising his voice towards Ms. Franchuk in the bar area of the restaurant.

17Mr. Hammond, one of the restaurant co-owners, states that he arrived at the restaurant at about 5:30 pm that day for his shift that started at 6:00 p.m. Mr. Hammond states that before he started his shift, he was advised by Ms. Franchuk and Mr. Hunter that there had been an incident with Mr. Leonardo. Mr. Hammond's recollection as to what he was told was very sketchy, but he says that he was told that Ms. Franchuk was uncomfortable in her dealings with Mr. Leonardo and that it was not a very good experience for her having him in the restaurant. Mr. Hammond says that he was told that Mr. Hunter had intervened to take care of the situation.

18Later that evening, at approximately 9:00 p.m., Mr. Leonardo returned to the restaurant to have dinner with a woman who was described as being Black. Mr. Leonardo's evidence is that he was told by Mr. Hunter that he, the woman and his friend (Mr. Fondeur Cruz) could not come in to the restaurant any more. Mr. Leonardo states that he asked why, to which Mr. Hunter replied that it was very simple, "you cannot come in and Mr. Fondeur Cruz cannot come in and the other person cannot come in too". Mr. Leonardo states that he then left to go home.

19The respondent's evidence is that Mr. Hunter was working the day shift on May 20, 2007 and so was not at the restaurant when Mr. Leonardo returned. I heard direct evidence from Mr. Hammond that he was the one who spoke to Mr. Leonardo when he returned. I accept the evidence that it was Mr. Hammond, and not Mr. Hunter, who spoke to Mr. Leonardo at this time.

20Mr. Hammond's evidence is that he denied service to Mr. Leonardo because of the incident that had happened earlier that day and because Mr. Hammond perceived Mr. Leonardo's eyes to be "glassy". Mr. Hammond states that he regarded Mr. Leonardo's glassy eyes as a sign of intoxication. He believes that he said that he would serve the lady but not Mr. Leonardo because this is what he has done in other situations, but he can't specifically recall saying this. Mr. Hammond says that the decision not to serve Mr. Leonardo was made on the spot when he returned to the restaurant that night, and he made a quick decision. He says that he was trying to deal with the situation as efficiently as possible, because the restaurant was full that night and it was very busy. Mr. Hammond doesn't recall there being any further conversation about why Mr. Leonardo was being denied service, but says that generally they don't sit down and talk to a customer who has caused problems.

21Mr. Leonardo's evidence is that he was not intoxicated that evening. He acknowledges that he had 2 to 3 bottles of beer when he had been at the restaurant with Mr. Fondeur Cruz earlier that day, but says that he had not had anything to drink since that time.

The Events of June 9, 2007

22Mr. Leonardo states that on June 9, 2007, he invited the applicant Mr. Vargas to go to the restaurant with him. They went to the front door and spoke to Mr. Campbell. Mr. Leonardo states that Mr. Campbell said, you and your friend cannot come here. Mr. Leonardo says that he asked why, to which Mr. Campbell replied that this was on orders from the owner. Mr. Leonardo states that he shook Mr. Campbell's hand and left. This evidence is supported by Mr. Vargas, however Mr. Vargas does not speak English and his understanding of what was said by Mr. Campbell was conveyed to him by Mr. Leonardo.

23Mr. Campbell's evidence is that, following the events of May 20, 2007, a decision was made not to allow Mr. Leonardo entry into the restaurant. Mr. Campbell has only a vague recollection of the interaction with Mr. Leonardo on June 9, 2007, but he states that he would have let Mr. Leonardo know that he was not welcome because of his previous behaviour. Mr. Campbell states that there was no decision to bar entry to Mr. Vargas or to anyone else, and so he would not have said that Mr. Vargas wasn't welcome. However, he states that in his experience, if two people come together to the restaurant and one is denied entry, the other person doesn't want to come in.

24Mr. Fondeur Cruz's evidence is that, sometime after May 20, 2007, he went to the restaurant alone on a Saturday afternoon. His evidence is that Mr. Campbell was serving drinks at the bar. Mr. Fondeur Cruz says that he was told by Mr. Campbell that his friend (referring to Mr. Leonardo) was not acceptable and not welcome there. Mr. Fondeur Cruz says that he asked why not, but wasn't provided with an explanation. He says that he drank his beer and has never returned to the restaurant. Mr. Fondeur Cruz states that he was never directly told that he wasn't welcome in the restaurant, but that he understood this from what he was told by Mr. Leonardo.

25Mr. Campbell doesn't have a specific recollection of this interaction, but does not dispute it. He says that he would tell a customer if a friend of theirs was not welcome in the restaurant, because this avoids the potential embarrassment of the person coming in without knowing they aren't welcome. Mr. Campbell states that he would not have served Mr. Fondeur Cruz a beer if Mr. Fondeur Cruz also had been barred from the restaurant.

Analysis and Decision

26Clearly in this case, there are significantly conflicting versions of what transpired on the early evening of May 20, 2007. There are good reasons in the evidence to doubt the credibility of the evidence provided by both of the main witnesses involved in the incident. With regard to Mr. Leonardo's evidence, he says that he arrived at the restaurant at 5:00 or 5:20 p.m. This is during the changeover of shifts at the restaurant, when the day staff are ending their shift and the evening staff are coming in to start their shift. The respondent's evidence, which I accept, is that Mr. Hunter was working the day shift on that occasion, and Ms. Franchuk and Mr. Hammond were working the evening shift. In order for Mr. Leonardo to have had the interaction that he describes, which involved both Ms. Franchuk and Mr. Hunter, this interaction would have had to have taken place during changeover and prior to Mr. Hunter's departure at the end of his shift. Further, Mr. Hammond states that he was advised of the incident sometime after he arrived at the restaurant at 5:30 p.m. and before he started his shift at 6:00 p.m. On consideration of all of the evidence and on balance of probabilities, I find that the incident involving Mr. Leonardo occurred sometime between 5:00 and 5:30 p.m.

27This, of course, is not possible on Mr. Leonardo's timeline. His evidence is that the incident occurred after Mr. Fondeur Cruz left the restaurant, which Mr. Fondeur Cruz states was between 8:00 and 9:00 p.m. This also is not possible, since Mr. Hunter, whom all agree was involved in the incident, would long have departed the restaurant by this time following the end of his shift, and Mr. Hammond and Ms. Franchuk would have been well into their shifts by this time. Mr. Leonardo also states that he arrived back at the restaurant at approximately 9:00 p.m., after first having gone to Mr. Fondeur Cruz's place and then picking up the woman he was bringing for dinner. I find that it is unlikely that Mr. Leonardo was away from the restaurant for such a short period of time, prior to returning for dinner.

28With regard to Ms. Franchuk's evidence, she insists that Mr. Fondeur Cruz was present at the restaurant when Mr. Leonardo was yelling at her. Indeed, her evidence is that Mr. Fondeur Cruz left the restaurant expressly because Mr. Leonardo was yelling at her. This is denied by both Mr. Leonardo and Mr. Fondeur Cruz, who both say that Mr. Fondeur Cruz had left before the incident occurred. I accept their evidence and find on balance of probabilities that Mr. Fondeur Cruz was not in fact present when the incident occurred.

29In my view, it is not necessary for me to resolve all of the various conflicts in the evidence in order to determine this matter. There is no dispute that an issue was raised by Mr. Leonardo about a lack of service from Ms. Franchuk. While Mr. Leonardo states that he was raising this issue in a normal tone of voice, I accept the evidence of Ms. Franchuk that Mr. Leonardo's voice was raised in a manner that she perceived as yelling. This accords with what Mr. Campbell was told about the incident.

30There also is no dispute that Mr. Leonardo was denied service when he returned to the restaurant later on the evening of May 20, 2007. I accept Mr. Hammond's evidence that this decision was made by him on the spot on the basis of the incident that had occurred earlier that day and on the basis of Mr. Hammond's perception that Mr. Leonardo was intoxicated. I also find that this decision applied only to Mr. Leonardo and not to the woman who accompanied him or to Mr. Fondeur Cruz. The respondent had no reason to deny service to the woman who accompanied Mr. Leonardo, who apparently had not been to the restaurant before. Further, I accept the evidence that the restaurant would not have served Mr. Fondeur Cruz, which Mr. Campbell did at a later time, if he also had been barred.

31As a result, the issue for me is whether either of the respondent's reasons for denying service to Mr. Leonardo amounts to racial discrimination in violation of the Code. With regard to the first reason, I have found that Mr. Leonardo raised his voice in a loud manner and in a way that was described as yelling by the respondent's staff. In my view, this is a legitimate non-discriminatory reason to deny someone further service. In argument, counsel for the applicants submitted that sometimes people from the Dominican Republic speak loudly and are judged as being more aggressive and that is found to be disruptive behaviour, which is a perception based on Mr. Leonardo's race. While it may be that there are cultural differences in terms of how people express themselves, there nonetheless is a question in any case as to whether a respondent is acting upon stereotypical perceptions which are linked to a person's race or whether the applicant has in fact engaged in inappropriate behaviour. In my view, Mr. Leonardo raising his voice in relation to an issue of not being acknowledged by a server after being acknowledged and served by another staff member is an example of inappropriate behaviour which justified the respondent's decision to bar him from the restaurant.

32With regard to Mr. Hammond's perception that Mr. Leonardo was intoxicated, I find that this was a snap judgment made by Mr. Hammond on the basis of his perception that Mr. Leonardo's eyes were "glassy". I also find it more likely than not that this judgment was influenced by the incident that had occurred earlier that day. Mr. Hammond may have been wrong and Mr. Leonardo may not in fact have been intoxicated. But an error in assessing a customer's state of intoxication is not, in and of itself, racial discrimination. There must be something more that links the decision or the basis for the decision to the applicant's race. In this case, there is nothing more to establish that link.

33With regard to the events of June 9, 2007, I find that Mr. Leonardo was again denied entry into the restaurant on the basis of a decision made by the respondent following the May 20, 2007 incident. For the reasons articulated above, I do not find that this decision applied to Mr. Vargas.

34Before leaving this decision, I wish to address the evidence of Mr. Leonardo and Mr. Fondeur Cruz regarding their perception of how they were treated by staff at the respondent restaurant. I accept the experience of racialized persons in being confronted with what is sometimes called "everyday racism", which speaks to the myriad of different ways that racialized persons experience differential treatment in the course of their everyday lives. In this particular case, however, I note that his perception of not being welcomed by the respondent's staff and not being served as quickly are not allegations that were raised in the complaint as filed by Mr. Leonardo. Rather, his complaint focuses upon the allegation that he was barred from entering the restaurant on May 20 and June 9, 2007. In this regard, I understand the evidence about how he and Mr. Fondeur Cruz were treated as being circumstantial evidence advanced in support of the allegation that he was denied entry for a discriminatory reason. I do not accept this, and have found that he was barred because of the May 20, 2007 incident and, on May 20, 2007 only, because of Mr. Hammond's perhaps incorrect perception that Mr. Leonardo was intoxicated.

35As a result, for all of the reasons I have expressed, I find that Mr. Leonardo and Mr. Vargas did not experience racial discrimination in violation of the Code. The Applications accordingly are dismissed.

Dated at Toronto, this 17th day of November, 2009.

"Signed by"

___________________________________

Mark Hart Vice-chair