Loomba v. Home Depot Canada Inc. (No. 2), 2010 HRTO 1434

Loomba v. Home Depot Canada Inc. (No. 2)

HR-1634-08 2010-06-29 2010 HRTO 1434

Ontario Human Rights Tribunal CHRR Doc. 10-2084

Deepinder Loomba Complainant

and

Ontario Human Rights Commission Commission

v.

Home Depot Canada Inc. and Brian Busch Respondents

and

Attorney General of Ontario Intervener

Date of Decision: June 29, 2010 Before: Human Rights Tribunal of Ontario, Ena Chadha File No.: HR-1634-08

Appearances by: Raj Anand, Counsel for the Complainant Kevin MacNeill, Counsel for the Respondents Anthony Griffin, Counsel for the Commission Michael Dunn, Counsel for the Intervener

RELIGION AND CREED — discriminatory treatment in employment — harassment — definition of creed — OCCUPATIONAL HEALTH AND SAFETY — safety hat policy — REASONABLE ACCOMMODATION — duty to accommodate where bona fide occupational qualification exists — duty to accommodate short of undue hardship — Meiorin/Grismer test for reasonable accommodation — EVIDENCE — preponderance of probabilities — credibility — witnesses' use of notes during testimony — PROCEDURE — bifurcation of proceedings

Summary: The Human Rights Tribunal of Ontario divided into two stages a hearing into Deepinder Loomba's complaint against Home Depot Canada Inc. The Tribunal decided to deal first with allegations that Home Depot enforced its hard hat rule selectively and that Brian Busch harassed Mr. Loomba because of his creed. The Tribunal will deal in a second stage of the hearing with allegations that Home Depot failed to accommodate Mr. Loomba because of his creed by requiring him to wear a hard hat on its building site.

Mr. Loomba is a member of the Sikh faith and he wears a turban. He is an employee of Reilly Security Services and was assigned to work as a security guard at a new Home Depot store that was under construction in Milton, Ontario in December 2005. With a colleague, Mr. Loomba manned a security desk in the vestibule of the new store where workers, contractors and visitors came to gain access to the store site. The security guards were also expected to carry out regular patrols outside the building during their shifts.

On December 6, 2005, Mr. Loomba had a series of interactions with Brian Busch, who was the assistant store manager. Mr. Busch said that no one was allowed to be on the premises without a hard hat and ordered Mr. Loomba to wear one. Mr. Loomba protested that he could not wear a hard hat because he could not remove his turban. Eventually Mr. Busch ordered Mr. Loomba to leave the premises, which he did.

The Tribunal found that the hard hat rule was selectively enforced. While Mr. Loomba was told that he could not be in the vestibule, or outside the building without a hard hat, other workers and personnel were in these locations without hard hats. In effect, the hard hat rule was not enforced or inconsistently enforced both at the building entrance and around the grounds. Despite this laxity, a more stringent approach was taken with Mr. Loomba. The Tribunal found that this differential treatment was because Mr. Loomba wore a turban, which was inextricably connected to his creed.

In addition, the Tribunal found that Brian Busch goaded Mr. Loomba to remove his turban and threatened him with termination. His comments and conduct were derogatory and discriminatory.

No award of remedies was made, since there will be a second stage of the hearing of this complaint.

CASES CITED

ADGA Group Consultants Inc. v. Lane (2008), 64 C.H.R.R. D/132, 2008 CanLII 39605 (Ont. Div.Ct.): 5

British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257, 1999 CanLII 652: 5, 10

Canadian Corps of Commissionaires v. Barnard (1986), 1986 CanLII 2475 (ON HCJ), 9 C.H.R.R. D/4829 (Ont. Div.Ct.): 101

Christian Horizons v. Ontario (Human Rights Comm.) (2008), 63 C.H.R.R. D/12, 2008 HRTO 22: 96

Christian Horizons v. Ontario (Human Rights Comm.) (2010), 70 C.H.R.R. D/391, 2010 ONSC 2105: 96

Dhanjal v. Air Canada (1996), 1996 CanLII 2385 (CHRT), 28 C.H.R.R. D/367 (C.H.R.T.): 120

Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.): 114

Di Marco v. Fabcic (2003), CHRR Doc. 03-050, 2003 HRTO 4: 14

F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53: 18

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 15

Forrester v. Peel (Regional Municipality) Police Services Board (No. 2) (2006), 56 C.H.R.R. D/215, 2006 HRTO 13: 45

Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 121

Henry v. Kuntz (No. 2) (2004), 50 C.H.R.R. D/70, 2004 HRTO 7: 96

Huang v. 1233065 Ontario Inc. (No. 2) (2006), 55 C.H.R.R. D/216, 2006 HRTO 1: 96

Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, 63 C.H.R.R. D/301, 2008 SCC 43: 10

Kalbfleisch v. Carillo (2002), 2002 CanLII 46513 (ON HRT), 44 C.H.R.R. D/163 (Ont. Bd.Inq.): 101

Laskowska v. Marineland of Canada Inc. (2005), 53 C.H.R.R. D/262, 2005 HRTO 30: 101

Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69: 103

Loomba v. Home Depot Canada Inc. (No. 1) (2008), CHRR Doc. 08-1039, 2008 HRTO 389: 3

Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.): 114

Multani v. Marguerite-Bourgeoys, Comm. scolaire, 2006 SCC 6, [2006] 1 S.C.R. 256, 55 C.H.R.R. D/463, 2006 SCC 6: 99

Nassiah v. Peel (Regional Municipality) Police Services Board (No. 2) (2007), 61 C.H.R.R. D/88, 2007 HRTO 14: 45

O.P.E.I.U., Local 267 v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd.Inq.): 96

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 96

Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 44 C.H.R.R. D/203, 2002 CanLII 46516 (Ont. Bd.Inq.): 101

R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17: 15

Shah v. George Brown College (2009), CHRR Doc. 09-1315, 2009 HRTO 920: 16

Staniforth v. C.J. Liquid Waste Haulage Ltd. (2009), CHRR Doc. 09-0966, 2009 HRTO 717: 16

Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, CHRR Doc. 04-657, 2004 SCC 47: 99

LEGISLATION CITED

Ontario

Evidence Act, R.S.O. 1990, c. E.23

s. 35: 42

s. 35(4): 43

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

s. 5: 2, 19, 101

s. 5(1): 114

Rules of Practice

r. 14: 43

r. 84: 43

Occupational Health and Safety Act, R.S.O. 1990, c. O.1: 3

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15(1): 43

INTRODUCTION

1The complainant, Deepinder Loomba, filed a complaint on January 25, 2006, under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), alleging Home Depot Canada Inc. (the "corporate respondent") and Brian Busch (the "personal respondent") discriminated against him in the areas of employment and contracts on the basis of race, colour, ethnic origin, and creed. The complainant is Sikh and, in observance of his faith, wears a turban. On December 6, 2005, the complainant was assigned by his employer, Reilly's Security Services, to work as a security guard at a new Home Depot store which was under construction in Milton, Ontario. The complaint alleges that the personal respondent, an assistant store manager, refused to allow the complainant to work at the site because the complainant would not wear a hard hat. The complainant contends that the respondents selectively enforced the hard hat rule and further alleges that the personal respondent subjected him to rude and offensive behaviour because of his turban.

PROCEDURAL MATTERS

Scope of Complaint

2Although the complaint originally alleged discrimination in contracts, the Ontario Human Rights Commission ("Commission") advised during the initial conference call that it would only be pursuing the complaint with respect to employment. As such, the hearing into the complaint proceeded on the basis that the allegations of discrimination pertained only to s. 5 of the Code.

Bifurcation of Hearing

3In an interim decision, 2008 HRTO 389 [CHRR Doc. 08-1039], this Tribunal granted the request of the Attorney General of Ontario ("Attorney General") to divide the hearing into two stages so as to permit the Attorney General to intervene in the second stage and call evidence and address issues regarding the interplay between the Code's duty to accommodate and the safety requirements of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended ("OHSA"). The Attorney General did not participate in the first stage of the hearing except to make submissions with respect to the duty to accommodate analysis as discussed below.

Bifurcation of the Duty to Accommodate Analysis

4During the first stage of the hearing, the parties sought the Tribunal's clarification as to how the remainder of stage 1 should proceed. This matter arose, in part, due to the mid-hearing acknowledgement by the Commission and the complainant that the OHSA is valid binding legislation and applied to all property of the Home Depot store. This concession was made for the purposes of the first stage of the hearing only. While the parties agreed that the first stage of the hearing should determine the allegations of selective enforcement of the hard hat rule and mistreatment, the parties disputed whether or not it should also address the duty to accommodate. As a result of this disagreement, the Tribunal convened a conference call to hear the submissions of the parties and the Attorney General regarding the proper approach to the duty to accommodate analysis.

5The Commission and the complainant advanced the position that the procedural aspect of the duty to accommodate must be determined in the first stage of the hearing. Their proposal is based on the established legal principle that employers have both procedural and substantive responsibilities pursuant to the duty to accommodate: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 [reported 64 C.H.R.R. D/132] (Ont. Div.Ct.). In support of their position that the procedural component of the duty to accommodate can be determined first and separate from the substantive component, the Commission and complainant rely on the Supreme Court of Canada's dicta in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3, 1999 CanLII 652 [35 C.H.R.R. D/257] ("Meiorin"), which suggests, at § 66, that it is helpful to delineate the distinct elements of the two branches of the duty to accommodate:

Notwithstanding the overlap between the two inquiries, it may often be useful as a practical matter to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer's reasons for not offering any such standard. . . [Emphasis in original.]

6The Commission and the complainant assert that, since the procedural component of the duty to accommodate only examines what steps were taken to consider accommodation, this line of inquiry does not engage any of the OHSA issues reserved for the second stage of hearing. They argue that the respondents' alleged failure to satisfy the procedural duty to accommodate is an independent form of discrimination for which the complainant is entitled to a remedy. The complainant also confirmed an intention to argue a contravention of the substantive aspect of the duty to accommodate at the second stage of the hearing.

7While the respondents accept that the duty to accommodate entails distinct procedural and substantive components, they assert that the two elements overlap in the particular circumstances of this case. The respondents submit that they will argue that the personal respondent's consideration of potential accommodation options was influenced by his understanding of the OHSA requirements and, therefore, the respondents' actions to satisfy the procedural duty to accommodate must be considered in the context of the OHSA. The respondents contend that they should be allowed to present their defence, specifically bona fide occupational requirement ("BFOR") and undue hardship, as a whole, and as such, the duty to accommodate analysis should not be divided between the two stages of the hearing.

8The Attorney General points out that it was granted intervener status because it has an important interest with respect to the interplay between the Code and the OHSA and intends, in the second stage of the hearing, to address any alleged conflict between the safety requirements under the OHSA and the duty to accommodate under the Code. The Attorney General submits that expanding the scope of the first stage of the hearing to include part of the duty to accommodate analysis prejudices its ability to make arguments in relation to the issues for which it was granted intervener standing.

9After hearing the submissions, I issued a bottom-line ruling on August 19, 2009, refusing to bifurcate the duty to accommodate analysis. I ordered that stage 1 of the hearing would only deal with the initial discrimination issues and that both the procedural and substantive elements of the duty to accommodate would be considered in the second stage of the hearing. The reasons for this ruling are as follows.

10The Supreme Court emphasizes that the respondent employer bears the onus of demonstrating that it has satisfied all aspects of the duty to accommodate when it seeks to avail itself of the BFOR defence: Meiorin, supra, at § 54. To successfully present such a defence, an employer must establish that the impugned standard is a valid and reasonable occupational requirement and that it is impossible to accommodate the employee short of undue hardship. The Supreme Court has said that a global assessment of all the circumstances is required in order to properly evaluate the duty to accommodate and undue hardship: Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, [2008] 2 S.C.R. 561, 2008 SCC 43 [63 C.H.R.R. D/301] at § 20—21.

11The procedural component of the duty to accommodate refers to the obligation to inquire into the interaction between the Code-related needs and the impugned standard and to investigate potential viable alternatives to the standard to satisfy the Code-related needs. The substantive aspect canvasses the reasonableness of the accommodation offered or the reasons for not providing accommodation. The procedural and substantive components of the duty to accommodate are found in the third step of the BFOR analysis promulgated by the Supreme Court in Meiorin, supra. This step occurs only after an initial consideration of the rational connection and bona fides of the respondent's standard. Although the Supreme Court advises that it is helpful to keep the procedural and substantive elements distinct, the Court appreciates that there may be "overlap between the inquiries" and the factors (if any) considered in assessing the search for, and the implementation of, the accommodation. Given the respondents' proposed stance on the issues, I do not agree with the Commission and the complainant that the analysis in this case can be so neatly compartmentalized to avoid any potential overlap of the evidence and arguments regarding the procedural and substantive elements of the duty to accommodate.

12I conclude that, in the circumstances of this case, determinations of both components of the duty to accommodate are best left for the second stage of the hearing. It would be impractical and unfair to divide the accommodation analysis between the two stages of the hearing. The responsibility to make out accommodation and the undue hardship defence rests with the respondents, who clearly oppose splitting their case. The Attorney General was granted intervener status because of its interest in the implications of the OHSA safety rules in relation to the Code's duty to accommodate and the hearing was originally bifurcated on this basis. This approach has the benefit of a comprehensive presentation of the evidence and submissions from the parties and the intervener Attorney General in regards to the BFOR analysis, all accommodation issues, the defence of undue hardship, and the interplay between the Code and the OHSA.

13As such, the following two matters were heard and are determined in this interim decision: was the complainant subjected to discriminatory treatment contrary to the Code as a result of (i) a selective enforcement of the hard hat rule and/or (ii) rude and offensive comment and conduct.

ASSESSING RELIABILITY AND CREDIBILITY

14Credibility and reliability are distinct concepts. As explained in Di Marco v. Fabcic, 2003 HRTO 4 [CHRR Doc. 03-050], "[c]redibility has to do with the sincerity, honesty or trustworthiness of a witness. Reliability has to do with the accuracy of a witness's testimony". All of the parties noted that the first stage of this hearing would ultimately be decided based on the critical issue of the credibility of the witnesses and the reliability of their evidence.

15The Supreme Court of Canada has observed, "[a]ssessing credibility is not a science. It is very difficult. . . to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events", R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17 at § 20. In my assessment of the evidence, I apply the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which held:

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 carries 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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [Emphasis added.]

16Underlying this traditional "harmony with the preponderance of the probabilities" are a variety of factors considered in appraising reliability and credibility, including:

· the internal consistency or inconsistency of evidence · the witness's ability and/or capacity to apprehend and recollect · the witness's opportunity and/or inclination to tailor evidence · the witness's opportunity and/or inclination to embellish evidence · the existence of corroborative and/or confirmatory evidence · the motives of the witnesses and/or their relationship with the parties · the failure to call or produce material evidence

Shah v. George Brown College, 2009 HRTO 920 [CHRR Doc. 09-1315] ("Shah"), at § 12—14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 [CHRR Doc. 09-0966] at § 35—36

17Thus, evaluating the reliability and veracity of a witness's evidence is [a] multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, as discussed in Shah, supra, a finding of lack of credibility with respect to one aspect of a witness's testimony does not automatically render the entirety of the witness's evidence as incredible [at § 22]:

. . . An adjudicator may find a witness is not credible on a particular point, but credible on another. A lack of credibility on a collateral matter is a factor to consider, but is not determinative in itself.

See also McDougall, infra.

18The Supreme Court of Canada confirmed in F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53 ("McDougall"), that the "balance of probabilities" standard of proof applies to all civil cases and, in order to satisfy this standard, evidence must be "sufficiently clear, convincing and cogent". The Court cautioned, at § 46, that there is "no objective standard to measure sufficiency". Further, in assessing credibility and reliability, there is no rule as to when the existence of inconsistencies shift evidence outside the realm of the preponderance of probabilities. The Court advises to "look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case", at § 58.

DECISION

19The complainant's refusal to remove his turban pursuant to his personal religious beliefs engages the Code-protected ground of "creed". The complainant's relationship and dealings with the respondents comes within the concept of "with respect to employment" as set out in s. 5 of the Code. I find that the preponderance of evidence establishes that the respondents discriminated by selectively enforcing the hard hat rule against the complainant. I further find that the personal respondent subjected the complainant to discriminatory treatment in the form of rude and offensive comments and conduct.

GENERAL CREDIBILITY FINDINGS

20The complainant testified on his own behalf. I found his evidence to be credible — it was clear, detailed, forthright, supported by the Notebook entries he had written as part of his security guard duties during the events in dispute, and more consistent with the overall evidence as compared to that of the respondents' witnesses. Based on the totality of the evidence, I accept the complainant's version of the events. I reach this conclusion not just because I found him to be a more credible witness, but also because of the numerous discrepancies in the respondents' evidence which could not be logically reconciled with the undisputed facts.

21The respondents called the following two Reilly's Security Services ("Reilly") employees as witnesses in support of their case: Anthony Greco ("Greco"), office manager, and Oscar Zaldivar ("Zaldivar"), a security guard on duty with the complainant at the Milton site. For reasons discussed later, I found Greco's evidence to be unhelpful to the respondents' case. Zaldivar's evidence was also troubling. His recollection was patchy and, in certain instances, contradicted by both the complainant and the personal respondent. Although I believe Zaldivar's description of the Milton store and his duties, it is difficult to accept his evidence with respect to the central allegations because he provided such limited and partisan observations of the disputed interactions.

22The personal respondent testified last in the hearing. I find that he unsuccessfully attempted to mesh his evidence with Zaldivar's testimony. The personal respondent's effort to make his evidence conform with that of Zaldivar only highlighted the gaps in their respective evidence and, as a result, much of Busch's testimony was also unconvincing. While Busch's evidence appeared to present a superficial air of consistency with Zaldivar's testimony, cross-examination exposed a lack of coherency and various points of improbability.

SUMMARY OF THE EVIDENCE

Background

23On December 6, 2005, the complainant was assigned to monitor security, along with a second guard (Zaldivar), for a 12-hour shift starting at 7:00 a.m. at the Milton Home Depot store. The store was approximately six weeks from opening and still under construction. Entry into the store was through a set of large doors (approximately 10 feet wide and 15 feet high) used to move lumber, which opened into the vestibule area of the store. The vestibule area was approximately 780 square feet.

24The security access desk was located inside the store building, near the cashier stations, approximately 40 feet from the vestibule's lumber doors. The primary responsibility of the security guards was to oversee the access desk where workers, contractors, and visitors presented themselves to gain entry into the body of the store. The access desk consisted of two fold-out portable plastic tables. Sitting next to the desk were boxes of hard hats and toe protectors. The security guards were to ensure individuals entering the store wore proper personal protective equipment (hard hats and safety shoes). The security guards were also expected to conduct regular patrols throughout the shift.

25While there is some dispute about the nature and amount of construction that was actually under way on the morning of December 6, there is agreement that a number of construction workers and tradespeople were at the site; mechanical equipment, such as scissor lifts and forklifts, was in the building; gravel and unfinished roads were around the property; exterior landscaping had begun to take place; and temporary washrooms were erected outside of the store. Although the parties also debate the size and location of the protective equipment signage, the parties agree that there was at least one sign inside the store building indicating mandatory compliance with the hard hat and safety shoes rules.

26The parties agree that some time after the start of the shift, the personal respondent approached the complainant at the security access desk. A verbal exchange ensued between the men about the complainant's turban and the requirement to wear a hard hat. While the parties dispute the content, tone, number, and location of the exchange(s), they agree that the personal respondent told the complainant several times that he was not permitted to remain in the building without a hard hat.

27Also some time during the exchange(s), both men spoke by way of a cell phone with a Reilly supervisor to seek clarification about the situation. The personal respondent was informed by the Reilly supervisor that the complainant could not remove his turban because of his religion. The parties agree that, at some point after the calls, the personal respondent instructed the complainant to leave the building and that the complainant called the personal respondent a "prejudiced" man. The parties further agree that during the exchange(s), the complainant asked the personal respondent for his name and title and that the complainant was writing in the personal respondent's presence. The parties also concur that, during the events, the complainant expressed his intention to seek recourse against the personal respondent. The complainant eventually left the site and Reilly dispatched a replacement guard soon thereafter.

28On December 16, 2005, CanIndia News Service published a story entitled "Home Depot denies discrimination charge", in which the complainant and a senior communications manager of the corporate respondent were interviewed regarding the complainant's allegations of discrimination.

Agreed Witness Statement

29The parties provided an agreed witness statement from Marco Addesa ("Addesa"), former District Loss Prevention Manager with Home Depot. For ease of reference, I refer to Adessa's position as "Home Depot's security manager". The main thrust of Adessa's evidence was to convey that, from the corporate respondent's perspective, the security guards' core duties were to oversee the access desk to ensure use of personal protective equipment and to perform interior patrol to prevent unauthorized entry.

30Although this information was uncontroversial, one key aspect of Addesa's statement was contradicted by the evidence of the complainant and Zaldivar. In his written statement, Addesa emphasized that Reilly was never informed, nor was it the corporate respondent's practice, to require security guards to conduct exterior patrol. The corporate respondent expected that both guards would remain, for the most part, inside the store. However, Zaldivar plainly testified that he conducted both interior and exterior patrols on the day of the events in this case and in the weeks following. Zaldivar explained, and the complainant confirmed, that interior and exterior patrols were regularly rotated between the two guards on duty. Further, the respondents' Statement of Response described the duties of the security guards, at para. 6, to involve regular patrol of the "internal perimeter of the construction site", including interior and exterior patrol. As such, I find that, although the corporate respondent never issued explicit directions regarding patrol duties, both interior and exterior patrol were a component of the security assignment.

Complainant's Evidence

31The complainant is an observant Sikh and has worn a turban his whole life. He has 20 years' experience in sales and marketing with international manufacturing companies working in India, Uganda and other countries. As a result of his past work experience, such as a director for Castrol Motor Oil and Lubricants and a manager with a polymer manufacturing company, the complainant has attended at various industrial and construction sites and has never been required to wear a hard hat.

32The complainant began working for Reilly in August 2004 shortly after immigrating to Canada. He was assigned by Reilly to various locations, including university residences, commercial businesses, and construction sites. The complainant testified that he has never been required to wear a hard hat at any of his previous construction site assignments, where his duties have included fire watch and patrol of sites undergoing replacement of sprinkler systems, work on electrical systems, and roof work.

33At the outset of his oral evidence, the complainant tendered into evidence two different documents of handwritten notes that he had made about the events of December 6, 2005. The first document constitutes entries recorded in the complainant's security guard Notebook concerning the specific events which he encountered that morning while at the Milton store. These included brief, jotted notes at the back of the Notebook and detailed notes at the front. The second item was a separate prescribed three-page Daily Occurrence Report ("DOR"). The Notebook excerpts and DOR were produced by the complainant and the Commission in advance of the hearing as part of their documentary disclosure.

34The respondents objected to the complainant reading directly from the Notebook as his testimony and further objected to the admission of the Notebook excerpts and the DOR as truth of their contents. I will address the substance of the parties' submissions on this issue later in my reasons. For the purposes of receiving the complainant's evidence, I permitted the complainant to keep his Notebook in front of him; however, instructed him to try to testify as directly as possible in his own words and to refer to the notes only when he needed to refresh his memory. I admitted the Notebook excerpts and DOR as exhibits subject to an assessment of the appropriate weight to be given to them along with the ultimate consideration of all the evidence.

35The complainant alleges that a number of negative exchanges or incidents took place between him and the personal respondent on the morning of December 6, 2005, which culminated in his departure from the Milton Home Depot store. The important events, as testified to by the complainant, are summarized below, and much of this was also recorded in the complainant's notes:

(a) The complainant drove to and arrived at the Milton Home Depot store site shortly before 7:00 a.m. Before entering through the lumber vestibule doors, the complainant passed Reilly supervisor Kaleed Ahmedi ("Ahmedi") and a female night shift security guard, whom Ahmedi was transporting back to the office. Neither wore a hard hat. Ahmedi informed Loomba that the second guard (Zaldivar) working that day was new to the company.

(b) The complainant met Zaldivar at the access desk. Zaldivar was not wearing a hard hat. At the desk there was a binder with sign-in sheets and DOR forms; however, there were no written site orders (instructions) from Home Depot for the guards. The complainant understood exterior patrol to be part of the security duties because, when he received his assignment, he had been instructed by Reilly to bring a warm jacket for the purposes of exterior patrol.

(c) Around this time, workers began entering the store and passing by the access desk. Although some workers wore hard hats, many carried the hats under their arms and some picked up hard hats from the access desk. A majority of the workers wore winter boots and not safety shoes. The complainant alleges the protective equipment sign was located past the access desk, just before the thoroughfare route that led into the interior body of the store.

(d) The two guards discussed their duties and the complainant offered to conduct exterior patrol. The complainant learned that Zaldivar had only worked at one other location for Reilly, a student residence, where DORs were not used and that Zaldivar did not know how to complete DORs. The complainant proceeded to show Zaldivar how to fill out DORs.

(e) While the two guards were in the midst of their discussions, the personal respondent came from inside the body of the store and walked towards the access desk. The personal respondent wore a hard hat, but removed it as he approached and spoke to the guards. He seemed irritated, pointed to Loomba's turban, saying something to the effect of "you can't sit there like that" and then gestured to the sign which indicated "no entry without hard hat and safety shoes". He told the guards they had to wear hard hats and Zaldivar immediately donned a hard hat.

(f) The complainant informed the personal respondent that he could not wear a hard hat because he could not remove his turban. The personal respondent insisted that the complainant would not be allowed to work without a hard hat. A debate ensued. At some point, the complainant picked up a hard hat and held it over his turban, but the personal respondent indicated that wasn't secure enough. The complainant perceived Busch to be annoyed and speaking to him rudely. The personal respondent asked to speak to the complainant's supervisor.

(g) The personal respondent made his way to a temporary office-like structure behind the access desk and gestured for the complainant to follow. The office structure contained a table with blueprints spread out on it. While the personal respondent sat at the table without his hard hat, the complainant stood outside of the structure and called the Reilly office and spoke to Ahmedi. The complainant advised Ahmedi about the situation and passed the phone through a window to the personal respondent, who spoke to him. Although the complainant could not hear their exact conversation, he discerned that the two men were arguing.

(h) Soon after, the complainant received a call from Ahmedi who advised him to stay on duty and told him the personal respondent was talking nonsense and that Home Depot could not tell Reilly who to send to work at the site. The complainant was instructed to oversee exterior patrol and to staff the access desk only when the other guard was absent from the desk. The complainant was told to remain at the site unless he heard otherwise from Reilly management.

(i) Shortly after, the personal respondent left the office structure and joined a group of approximately four workers who were standing around a lift machine several feet from the access desk. There was a discussion and the group looked towards the complainant who was seated at the access desk. Based on the group's facial expressions, laughter, and glances at his turban, the complainant perceived the group was making fun of him. One worker wore a baseball cap with the name Michael written on it and the others wore hard hats.

(j) The personal respondent left the group, approached [the] complainant to ask why he was still in the store. The complainant responded that he was waiting for the second guard to return to the access desk and also that he had to finish writing his report. The personal respondent told the complainant that he could not stay in the building without a hard hat.

(k) The complainant pointed out that workers were passing by the access desk without wearing their hard hats and also pointed to the man who wore the baseball cap in the nearby group. He told the personal respondent that he was a prejudiced man and discriminating against him. These remarks annoyed the personal respondent, who angrily ordered the complainant to get out.

(l) The complainant left the building and stood outside of the vestibule doors. Soon after, the personal respondent came outside and again angrily told the complainant that he was not allowed to stand outside the vestibule doors. The complainant went to his car, called the Reilly office and was directed to remain on the exterior post. The complainant moved his car close to the temporary washrooms and sat in his car.

(m) Some time later, the complainant observed the personal respondent standing outside of the store building smoking without a hard hat. The personal respondent approached the complainant's car and told him he would only be allowed to work if he agreed to remove "it" or "that" (gesturing to the turban) and wear a hard hat. The complainant felt that [the] personal respondent was goading him. The complainant also felt that the personal respondent was taunting him when the personal respondent said something to the effect that others had been fired for the same reason.

(n) The complainant pointed out workers around the grounds and in trucks who were not wearing hard hats and further commented that the personal respondent was also standing outside smoking without a hard hat. The complainant advised that the personal respondent had crossed the line in regards to interfering with the complainant's religion.

(o) The complainant contacted Reilly management and told them what had been said to him. Reilly management asked how the complainant wished to proceed to which he asked Reilly management to replace him because he could no longer tolerate the personal respondent's insults and rudeness. He was directed to return to the office. He left the site around 9:00 a.m. and returned to the office around 10:00 a.m.

36Upon his return to the office, the complainant was instructed to prepare a special occurrence report about the morning for the company's internal purposes. However, shortly thereafter, he was dispatched to a residential surveillance in Barrie and was given a company vehicle for the assignment. The complainant testified that he forgot his Notebook in his own car and, as a result, he prepared his report for Reilly on DOR forms he found in the company vehicle without the aid of his Notebook.

37Soon after the events, the complainant contacted Home Depot's corporate head office in the United States. He spoke to CEO Robert Nardelli's secretary, Thelma King, and advised her about the incident. According to the complainant, Ms. King apologized and indicated that an investigation would be ordered immediately. The complainant had no further contact or communication from the corporate respondent.

38The complainant estimated approximately 15 percent of the workers arrived at the access desk without wearing hard hats and over half wore winter boots and not safety shoes. He alleged that some individuals merely picked up hard hats at the access desk and put on the hats a few yards later at the thoroughfare leading into the interior body of the store.

39The complainant alleges that the human rights complaint against Home Depot negatively impacted his employment with Reilly because, as his complaint progressed through the Human Rights Commission, he was assigned fewer hours and his work relationship became strained. Although the complainant has not made any claim for loss of income, he points to the strained relationship as example of the adverse consequence of the respondents' discrimination and harm to his feelings of self-respect.

40The complainant testified that he was humiliated by the personal respondent's treatment and comments, which he felt were offensive and disrespectful. He perceived that the personal respondent was insulting his turban by referring to the turban as "it" and "that". The complainant stated he felt like he was being singled out because of his turban and that he was being chased when the personal respondent followed him outside of the building and ordered him away from the vestibule doors. The complainant perceived the personal respondent's tone and demeanour, when they were outside, to be sneering. He testified that he was left with feelings of anger and anxiety and that he suffered headaches and sleepless nights after the incident. He stated that he was hurt and confused as to why he was exposed to such discrimination in Canada, which, when immigrating to Canada, he believed to be a country of harmony and multiculturalism.

41In challenging this evidence, the respondents argued that the complainant is a proud and angry man and that this pride and anger induced him to exaggerate the interactions and characterize the personal respondent as overtly adversarial. As previously noted, I found [the] complainant to be credible. While there was no doubt that the complainant has a strong sense of self-respect and was sensitive to unfair treatment, I did not find him to be argumentative or uncooperative, nor did he overstate his claims or aggrandize his story.

Respondents' Objection to Documentary Evidence

42As previously noted, the respondents objected to the complainant's reliance on his handwritten notes during testimony. The complainant countered that, like police officers, it was routine procedure for security guards to maintain field notes and that the complainant should be allowed to refer to his Notebook. The complainant further argued that the Notebook excerpts and DOR would likely qualify as "business records" under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23 ("Evidence Act") as the information was contemporaneously recorded in the usual course of business.

43Under s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and under rs. 14 and 84 of the Tribunal's Rules of Practice, the Tribunal has broad discretion to receive a wide range of information and documents. Subsection 35(4) of the Evidence Act provides guidance that the circumstances surrounding the making of business records, such as lack of personal knowledge, may be shown to affect weight, but does not affect admissibility.

44In the present case, the complainant, as author of the Notebook entries, has personal knowledge of the recorded events. He testified about how, when and why he wrote the notes, indicating that he had recorded the entries as part of his regular security guard duties. The complainant explained that these notes were maintained in the manner that he had been trained by Reilly, which is similar to the note-taking methods of law enforcement agencies. He explained the "briefs" in the back of the Notebook were made immediately so as to record important points to serve as reminders to help develop the more detailed notes in the front of the Notebook. The expanded notes at the front of the Notebook were generally made shortly after the "briefs" and usually covered about 20- to 30-minute time periods.

45I accept the Notebook entries constitute business records because the notes were created as a routine practice at the time in question during the course of the complainant's duties. Similar documentary evidence of police notes and security guard notes contemporaneously made during the ordinary course of duties have been relied upon in other human rights cases in support of witness accounts, see Nassiah v. Peel (Regional Municipality) Police Services Board, 2007 HRTO 14 [reported 61 C.H.R.R. D/88] and Forrester v. Peel (Regional Municipality) Police Services Board, 2006 HRTO 13 [reported 56 C.H.R.R. D/215].

46The respondents attempted to impugn the complainant's Notebook entries and the DOR as self-serving and suggested the notes were created after the fact. I find no basis to doubt the contemporaneousness of the Notebook entries. The respondents' charge that the notes were likely made some time later is unfounded and particularly problematic, given the personal respondent's oral and written evidence that the complainant asked for the personal respondent's name and title and sat down to write during their exchange(s). I am satisfied that the complainant's Notebook entries are relevant and reliable evidence. The Notebook entries were, in effect, doubly documented because the complainant contemporaneously made notes in two parts of his Notebook.

47The respondents attempted to highlight discrepancies between the Notebook entries and the DOR in order to undermine the probative value of both sets of records. The respondents argued that different phrases and times were recorded in the two documents to describe the same incident. I have carefully compared the documents and do not consider the variances in language or timing to be especially inconsistent. I find that the differences in the Notebook entries and DOR are slight — both entail similar time spans, have generally the same content and express similar concerns. The "briefs" at the back of the Notebook, the detailed notes at the front, and the DOR are consistent in setting out a clear record of the complainant's main concerns — that the personal respondent objected to the complainant sitting at the access desk because of his turban; both men spoke to a Reilly supervisor who confirmed the complainant's assignment; the personal respondent forced the complainant to leave the store; and, ultimately, the personal respondent told the complainant that others like him had been dismissed.

48More specifically, I do not agree that the minor disparities in details between the Notebook entries and the DOR undermine the weight to be accorded to the Notebook evidence. The respondents allege the absence of the group laughing incident, which was recorded in the Notebook but not in the DOR, suggests the incident did not occur and that the complainant's accounts of the events are unreliable. The complainant explained that he did not include this incident in the DOR because he perceived the group laughing at him as a personal matter as opposed to a Home Depot matter to document for the company's purpose. I find the omission of this situation from the DOR does not negate the reliability of the Notebook entries as a whole. The complainant acknowledged that the DOR is a less accurate account of the events than the Notebook entries because the DOR was prepared after he left the Home Depot store, while working at another assignment and without the benefit of his Notebook. The fact that the DOR contains slightly different particulars than the Notebook can be understood in this context. To the extent that there are differences, these were relatively few and minor and readily explained by the fact that the complainant wrote the DOR without his Notebook which he had forgotten in his car.

49I further reject the respondents' suggestion that the notes are self-serving. While the entries are clearly written from the complainant's perspective, there are points which favour the respondents' theory of the case, including the personal respondent's explicit reference to the protective equipment sign and the need to comply with the hard hat requirement. I find the complainant's Notebook entries are no more one-sided than the personal respondent's March 23, 2006, email, in which the personal respondent chronicled his version of the events for a Home Depot lawyer (not hearing counsel).

Anthony Greco's Evidence

50Anthony Greco ("Greco") has been employed by Reilly for over seven years and currently works as the office manager. Greco was called by the respondents as their first witness in order to refute complainant's allegation that his human rights complaint against Home Depot negatively impacted his employment with Reilly. Greco testified that the complainant's pursuit of his complaint and the present litigation has neither affected the hours/work assigned by Reilly to the complainant, nor his relationship with the company. In an effort to show that the complainant's hours did not decrease, the respondents adduced, through Greco, copies of complainant's payroll journal from January 1, 2005, to March 13, 2009.

51I do not need to scrutinize the complainant's payroll records in order to consider the complainant's concerns that his relationship with Reilly has deteriorated because of his human rights complaint. During cross-examination, Greco acknowledged that, in early or mid-April 2009, he was instructed by an owner of Reilly to provide Home Depot with access to the complainant's personal employee payroll information. On April 27, 2009, Greco, on behalf of Reilly, and without advising the complainant that his personal information had been sought or disclosed, provided the complainant's payroll information to a Home Depot lawyer and, again in early May, furnished copies of detailed pay records to respondents' counsel.

52The documentary evidence indicates that, around the same time, on April 23, 2009, Reilly received a request from the complainant for his payroll information. Greco, on behalf of Reilly, responded asking why the complainant needed the information and stated that "[t]his is a lot of work with the system we have". While Greco did provide the information to the complainant, he only did so after similar information had already been disclosed to Home Depot. Moreover, although Greco had communications with Home Depot's lawyers regarding the complainant's payroll information, he declined to speak to complainant's counsel in this regard.

53This sequence of events reveals that Reilly's management facilitated Home Depot's access to the complainant's personal payroll information while hesitant to provide the same to the complainant. I find these events belie Greco's claim of impartiality. I am satisfied this evidence supports the complainant's perception that the human rights proceedings have adversely affected his employment relationship with Reilly.

Oscar Zaldivar's Evidence

54Zaldivar began employment with Reilly on November 19, 2005, about two weeks before the events in this case, and currently works with Reilly as a security supervisor. Zaldivar's first shift at the Milton Home Depot store was on December 6, 2005, with the complainant. Because Zaldivar is the only non-party witness with first-hand knowledge of some of the events, I will detail the areas of his evidence that I accept or reject.

55Before I do so, I note that Zaldivar readily acknowledged his support for the respondents, suggesting that the litigation was unwarranted. While I am sensitive to the fact that a witness's support for a particular party does not inevitably equate with the witness's evidence being one-sided, a tribunal must be cautious to ensure the witness's observations and impressions are not influenced by any such inclinations or prejudices. It was apparent from Zaldivar's attitude, manner of answering questions, and overall testimony that, because he considered the personal respondent to be "correct" about the safety requirements, he, therefore, believed that the complainant was "in the wrong", and bore some resentment towards him for pressing the hard hat issue.

56Zaldivar testified that he was driven to the Milton Home Depot store by Reilly supervisor Ahmedi. Zaldivar's description of his duties and the grounds outside the store was straightforward, unlike his testimony regarding the encounter he witnessed between the personal respondent and the complainant which, as previously noted, was patchy and vague. I accept his evidence regarding his duties and the outdoor construction because, as Zaldivar explained, he continued to work at the Milton site intermittently for three weeks following December 6 and, during that time, he conducted regular patrols of the entire property. As such, I find that later that day, and in the days that followed, construction and landscaping of the property was under way.

57Upon entering the store, Zaldivar testified that he observed an air compressor in the vestibule area and that "past the vestibule area there was a large board with construction rules, safety hat and Home Depot's name on it". Zaldivar testified that he and Ahmedi met the two night guards at the access desk, both of whom wore hard hats. The night guards informed them that hard hats must be worn and so Zaldivar immediately complied. Zaldivar testified that he already wore steel-toed boots because he was told the store was a construction site when he was contacted by Reilly about the assignment. Zaldivar recalled that Ahmedi then left with the night guards.

58From the outset of his evidence, Zaldivar attempted to portray the complainant in an unfavourable light. For example, Zaldivar testified that he was alone for about 10 minutes at the start of the shift because the complainant was late. While the totality of the evidence points to the fact that the complainant arrived after Zaldivar, it is unlikely that Zaldivar was alone for any extended period of time, given the complainant's evidence that he passed Ahmedi and a night guard outside of the vestibule doors.

59Zaldivar testified that, upon arriving at the access desk, the complainant immediately questioned whether hard hats needed to be worn and that Zaldivar responded "yes, that's why I'm wearing one". Zaldivar's next recollection was of the exchange between the complainant and the personal respondent — he had no memory of anything else taking place before the personal respondent's approach, which he described as following on the heels of the complainant's entrance.

60Zaldivar strenuously denied that some time passed while he and the complainant talked about their duties and he was taught how to fill out DORs. This is a curious point because Zaldivar admitted that he was unfamiliar with DORs and claimed he was shown how to complete the form later that afternoon by the guard who replaced the complainant. Zaldivar did not offer an explanation as to how the complainant would know that Zaldivar had only worked at one location or the fact that Zaldivar needed to be taught how to fill out DORs. It appears that, even with respect to such a small matter, Zaldivar was reluctant to be viewed as allied with the complainant. In the circumstances, I accept the complainant's testimony over that of Zaldivar's on these points.

61Zaldivar testified in chief that he clearly recalled the personal respondent approached the access desk from the left wearing a hard hat and, while pointing to the complainant, said "[i]f you are going to be working here you'll have to wear a hard hat". According to Zaldivar, this statement triggered a back-and-forth between the two men with the complainant asserting that he had rights and was not required to wear a hard hat because of his religion, and the personal respondent insisting that the complainant had to wear a hard hat because the store was a construction site. Zaldivar recalled that, at some point, the complainant picked up a hard hat and placed it over his turban, and asked if that would do, but the hard hat wouldn't stay on. Zaldivar indicated that, while the initial tone of the conversation was polite, by this time the complainant seemed sarcastic and the personal respondent was angry and terse and asked the complainant to step outside if he chose not to wear a hard hat.

62When questioned in chief about how the incident came to an end, Zaldivar testified that little else happened except that the complainant walked out to his car. He noted that the personal respondent also left after the complainant and went outside in the other direction towards the temporary washrooms. Zaldivar testified that he next saw the complainant talking animatedly on his cell phone in his car and, soon thereafter, the complainant came back inside the store. At this time, the complainant tapped Zaldivar on the chest urging Zaldivar to agree with him that the personal respondent was racist and to support the complainant because he was going to complain about the personal respondent. Zaldivar testified that, when he declined to agree with the complainant that the personal respondent was racist, the complainant walked out of the store and drove away. After the complainant left, Zaldivar told the personal respondent that if he needed a witness, the personal respondent could certainly call him.

63Zaldivar vehemently denied that any interactions occurred between the personal respondent and the complainant outside when they both left the store one after the other. Because the vestibule doors remained fully open throughout the day, Zaldivar claimed he would have been able to see had anything taken place outside. According to Zaldivar, the entire exchange beginning with the personal respondent's approach to the complainant's final departure took about 18—20 minutes.

64I have a number of reservations about the accuracy of Zaldivar's memory, in addition to the previously noted concerns about his demeanour, tendency to negatively portray the complainant, and my earlier findings about who taught him how to complete DORs. Although Zaldivar was firm that he did not leave the access desk and was present during the events, there are inconsistencies in his evidence when compared to the evidence of the main parties, which suggest otherwise. In particular, I am troubled by the following gaps in Zaldivar's evidence regarding key matters on which the complainant and personal respondent agree:

(a) Both the complainant and the personal respondent testified, and their respective written materials document, that during their discussions one or both made cell phone calls to a Reilly supervisor seeking clarification about the hard hat situation. Zaldivar provided no evidence about this development and did not recall this taking place. I find it odd that Zaldivar, as a new employee, would not notice a tense situation involving his co-worker and the client calling head office about conflicts regarding the assignment.

(b) Both the complainant and the personal respondent testified, and their respective written materials document, that during their discussions, the complainant asked for the personal respondent's name/title and sat down in order to write out information. Zaldivar unequivocally denied that the complainant made any notes, explicitly testifying that the complainant "never sat down to write anything". Again, I find it odd that Zaldivar, as a new employee, would not notice his co-worker making notes during a tense exchange with the client.

65Another point of divergence between the personal respondent's evidence and Zaldivar's testimony is noteworthy. Zaldivar testified at length regarding the type of construction taking place inside the store on December 6, including overhead electrical installation at the entrance of the store. Zaldivar claimed this overhead work was in progress when he was seated at the access desk during the exchange between the personal respondent and the complainant. Although the personal respondent confirmed that various construction projects were scheduled for December 6, including overhead electrical, he was resolute that "nothing was going on overhead" during his conversation with the complainant. This discrepancy suggests that Zaldivar's memory, in particular regarding timing of the events going on around him, is unreliable.

66Further, there are several conflicting areas of Zaldivar's testimony that cause me to doubt the trustworthiness of his evidence. First, Zaldivar vacillated between his evidence-in-chief and in cross-examination as to the location of the protective equipment sign. He initially claimed the sign was posted "past" the vestibule and later indicated that the sign was posted "inside" the vestibule. Second, he again was unclear between examination-in-chief and cross-examination about what direction the personal respondent came from when he first approached the access desk, initially indicating that he came from the "left" side of the building (the interior body of the store) and later testifying he came from the "offices" (the right side of the building). The direction of the personal respondent's approach is important because it is indicative of the timing of the events. Zaldivar's latter description is at odds with the overall evidence. Zalidvar did not satisfactorily explain why his recollection was different on these matters.

67Third, Zaldivar prevaricated with respect to whether or not workers at the Milton store site wore protective equipment. At first he outright rejected the notion that on December 6 some workers carried their hard hats and a majority did not wear safety shoes. However, after being challenged about the absoluteness of his testimony, Zaldivar conceded that in the days that followed he "noticed people not wearing steel-toed shoes", but maintained that, to his knowledge, this did not occur on December 6. Additionally, Zaldivar claimed that throughout the day he was able to see directly outside the vestibule doors from the access desk because the doors remained opened. In view of the consistent evidence that it was a cold winter day, I find it difficult to believe that such large doors were left wide open all day. Alternatively, even if the doors were open, I do not accept that Zaldivar was able to see around the side of the vestibule doors from the access desk, particularly given his own detailed description of the brown paper covering the building glass.

68In light of the above-noted uncertainties and inconsistencies, and considering the totality of the oral and documentary evidence, I do not accept Zaldivar's testimony that there was only a single encounter between the complainant and the personal respondent lasting 18—20 minutes. I accept that Zaldivar observed the early part of the exchange when the men first debated whether or not the complainant was required to wear a hard hat. I also accept that Zaldivar later observed the complainant leave the building, followed by the personal respondent also stepping outside. I find that Zaldivar has either forgotten, or was unaware, that the complainant and the personal respondent had an exchange involving call(s) to the Reilly office and that the complainant sat down to write out notes. Further, I find it implausible that Zaldivar was able to see beyond the area directly outside the vestibule and, therefore, I conclude he does not have first-hand knowledge about what took place when both men were outside of the building near the temporary washrooms.

69My final area of concern with respect to Zaldivar's evidence is the absence of records he authored contemporaneous to the events. Zaldivar testified that on December 6, he wrote a DOR about the encounter between the complainant and the personal respondent, as well as keeping notes in his security guard Notebook. Zaldivar explained that he filed the original December 6 DOR with Reilly and, as routine procedures require, left the carbon copy with Home Depot on the same day. He recalled that he turned over his Notebook to Reilly once the Notebook was full some months later.

70I ordered the corporate respondent to search for and produce Zaldivar's December 6 DOR. I also required that Reilly make its best efforts to locate Zaldivar's Notebook and the DOR. Neither the corporate respondent nor Reilly were able to produce the documents. I am troubled that the corporate respondent did not provide an explanation as to why it no longer had the carbon copy of Zaldivar's December 6 DOR. Given the complainant's prompt indication of an intention to complain about the personal respondent, and the fact that less than 10 days later Home Depot's communication department was interviewed by CanIndia News Service, there is no doubt that the respondents were alerted to the complainant's discrimination allegations and, therefore, the carbon copy of Zaldivar's DOR should have been retained. The absence of Zaldivar's written record of the events seriously undermined my confidence that the respondents put forward the whole story.

Personal Respondent's Evidence

71The personal respondent has been employed by the corporate respondent for over 12 years. For approximately 15 years prior, he worked in the heating, ventilation, and air conditioning business, including both residential and commercial installation and service. It was not disputed that he is experienced in the construction industry. The personal respondent received health and safety training and human rights training when he was initially hired by the corporate respondent as a part-time associate and again after becoming an assistant store manager.

72The personal respondent testified that he is familiar with the duty to accommodate and, as an assistant store manager, has been required to consider and implement accommodation for injured workers and others. He testified about two different experiences he previously had with workers who wore turbans in the context of new store construction. The first worker elected to wear a different type of headdress that accommodated a hard hat. He recalled that he was asked to notify another worker, who had been reassigned to a different store because he wore a turban, to return to his original store upon completion of the construction phase. The personal respondent testified that both of these situations were cooperative arrangements.

73During the events of this case, the personal respondent was merchandising assistant store manager and he continues in that position today. In this role at the new Milton store, he was responsible for receipt of goods, shelving set-up, facilitating the construction contract and tradeswork on the site, and directing staff with respect to duties during the construction stage, including overseeing security. While there was a safety facilitator (assigned by the general contractor) on site once or twice a week, an important aspect of the personal respondent's job was to ensure that everyone was adhering to safety requirements as he monitored the activities in the building throughout the day.

74The personal respondent confirmed the general layout of the store building and property. He testified that ongoing interior and exterior construction was scheduled for December 6, 2005. He estimated that the distance from the parking lot to the vestibule was about 150 feet and that the security access desk, in the cashier area, was approximately 40 feet from the vestibule lumber doors. He explained that, at any one time, there would be approximately 15—25 hard hats and four toe protectors in the boxes next to the access desk which were handed out by the security guards to anyone who entered the store without their own personal protective equipment. The personal respondent testified that a large protective equipment sign (four feet by eight feet) was posted inside the vestibule area notifying everyone entering the building of the hard hat and safety shoes requirement.

75The personal respondent denies that he discriminated against, mistreated or spoke rudely to the complainant and asserts that he was simply performing his duty to enforce the hard hat requirement. Set out below is a summary of the personal respondent's testimony of what he alleges occurred on the morning of December 6, much of which is also recorded in his March 23, 2006, email:

(a) The personal respondent entered the store through the vestibule lumber doors at approximately 6:45 a.m. and greeted the two security guards at the access desk, both of whom were not wearing hard hats. Referencing the protective equipment sign, he informed the guards that they needed to wear hard hats. He does not recall the identity of these guards.

(b) As per his regular morning routine, the personal respondent toured the building and talked to contractors. About 15 minutes later, when he was coming from the interior of the store, he noticed that one guard at the access desk was not wearing a hard hat. The personal respondent spoke to this guard (the complainant) and told him that, because the building was a construction site, he had to wear a hard hat.

(c) The complainant advised the personal respondent that he could not wear a hard because he could not remove his turban. The personal respondent replied that everyone was required to wear a hard hat in the building and queried whether the complainant had any other headdress which he could wear that would accommodate the hard hat.

(d) The complainant replied that he couldn't wear anything other than his turban. After some disagreement back and forth, the complainant picked up a hard hat and held it over his head with one hand and asked if that would suffice. The personal respondent felt that the complainant was mocking him and making light of the safety concerns. He told the complainant that that would not do because it wasn't safe and the hard hat would fall off, which it did when the complainant removed his hand. The personal respondent informed the complainant that he would have to leave the store.

(e) The personal respondent told the complainant that he would contact his supervisor and the corporate respondent's security manager to see if they could resolve the matter. The complainant was upset and agitated, insisting that he did not have to wear a hard hat. The complainant indicated he was a high man in his community and said that he had worked at many other sites and had never worn a hard hat. The complainant asked for personal respondent's name and title and at some point sat down to write.

(f) Using his cell phone, the personal respondent called a Reilly supervisor and informed the supervisor of the situation. The supervisor told him that the complainant could not remove his turban because of his religion. The personal respondent asked the supervisor why Reilly would send a guard who couldn't wear a hard hat to a construction site. The supervisor said he did not know. The personal respondent told the supervisor that he would notify his security manager of the situation. The Reilly supervisor said he'd wait for a call from the security manager.

(g) After the call with the Reilly supervisor, the personal respondent advised the complainant that he had to leave the building while personal respondent contacted his security manager. The complainant resisted, indicating that he had to fill out a report. The personal respondent indicated that the complainant could complete his report in his car because if the Department of Labour showed up "we may all be fined".

(h) The complainant again argued with the personal respondent calling him prejudiced and telling him "that this situation would come back to get him". The personal respondent advised the complainant that it was not a matter of prejudice, but for his own safety. The complainant eventually got up from the desk and went out to his car. The second guard (Zaldivar), who was present during the entire situation, was left on his own at the access desk.

(i) The personal respondent called his security manager (Addesa) and informed him of the situation. Addesa indicated that he would communicate with Reilly. Zaldivar told the personal respondent that he had witnessed the entire thing and that he had done nothing wrong.

76The personal respondent alleges that, from the second time he approached the access desk (para. b) to the complainant's departure (para. h), the foregoing events took "15 to 20 minutes at most". The personal respondent denied the complainant's allegations of standing with a group and laughing at him, and further denies seeing a man wearing a baseball cap.

77The personal respondent conceded that the only place on the entire site where the hard hat requirement was enforced by the security guards was at the access desk inside the store building. He acknowledged that he did not have "any specifics" with respect to individuals not wearing hard hats because, he explained, as he goes "through the store on that day, and every day, people without hard hats are told immediately to put one on". The personal respondent further testified that he always wore a hard hat even outside on the exterior grounds and only removed his hard hat to enter or exit his truck. He stated that everyone working on the grounds outside of the store wore hard hats, although he could not say how the hard hat requirement was policed outside of the store building.

78The personal respondent disputed the allegation that he told the complainant that Home Depot had "fired" others before. He suggests that the complainant misunderstood when he stated that they all may be "fined" and took that to mean "fired". The personal respondent denies that he made any statements which were prejudicial or insulting in nature and maintains that he was polite in requesting the complainant to leave the store.

79The complainant emphasized that the respondents took the unusual step of calling the personal respondent as the last witness in the hearing, thereby allowing him to hear all of the evidence before testifying. The complainant argued that the Tribunal should accordingly disregard the personal respondent's evidence. While tailoring evidence is a valid consideration in assigning less weight to evidence, there were several other bases upon which I found the personal respondent's evidence to be doubtful.

80Some key points in the personal respondent's version of the events did not make sense given the overall evidence. For example, the personal respondent echoed Zaldivar's testimony that the entire situation lasted no more than 15—20 minutes. However, as previously noted, Zaldivar's timeline did not include two events which are not in dispute, specifically, the cell phone call(s) and the complainant's reluctance to leave the desk while he was writing. Also, based on the personal respondent's chronology, his contact with the Reilly supervisor would have had to occur between 7:00 and 7:20 a.m. The supervisor with whom the complainant spoke to at the Reilly office was Ahmedi. The respondents do not contest that the personal respondent also spoke to Ahmedi. The personal respondent's timeline does not reconcile with the evidence of both the complainant and Zaldivar that Ahmedi had recently left the Milton site to return to the Reilly office in Toronto.

81Further, the personal respondent denies that the complainant was the liaison for his call to the Reilly supervisor and claims that he independently made the call. The personal respondent testified that he already had the telephone number for the Reilly supervisor as a result of a previous incident involving a Reilly security guard who neglected to wear safety shoes. In the presentation of this case, there had been no mention of this earlier situation wherein the personal respondent previously contacted Reilly about safety equipment concerns — this was not included in the respondents' pleading, nor testified to by their other witnesses. This is not a minor detail and it is unclear why this information was omitted. As such, I am dubious of the personal respondent's claim that he called the Reilly supervisor directly on his own.

82As previously discussed, there are several points of discrepancy between Zaldivar's and the personal respondent's testimony which are problematic. First, the personal respondent testified that, despite overseeing safety and security at the store, he was unaware of the possibility of the security guards dividing up interior and exterior patrol duties. This is highly implausible in light of Zaldivar's evidence that guards regularly rotated interior and exterior patrol. Second, the personal respondent denied that any of his comments or conduct singled out the complainant. However, Zaldivar corroborated the complainant's evidence that the personal respondent walked up to the access desk pointing at the complainant and stated "[i]f you are going to be working here you'll have to wear a hard hat".

83Third, the personal respondent initially denied that he went outside after the complainant's departure from the store and rejected that any further exchanges between he and the complainant took place outside. However, when reminded of Zaldivar's evidence that Zaldivar observed him leave the store after the complainant, the personal respondent was less definitive. He hedged that he may have gone to the outdoor washroom, but continued to refute that he had any further interactions with the complainant outside of the store. I find that Zalidvar's evidence that the personal respondent went outside after the complainant corroborates the complainant's version of the events and the personal respondent's reticence to admit that he went outside after the complainant causes me to doubt his denials of further interactions. Further, with respect to the events that occurred outside of the store, it is noteworthy that Zaldivar's recollection of the personal respondent exiting the store towards the direction of the temporary washrooms after the complainant also coincides with the complainant's account that he parked his car near the washrooms and that is where the personal respondent again approached him.

84I am not convinced that the complainant misunderstood the personal respondent's remarks allegedly about being "fined" and misapprehended it be, or mean, "fired". The complainant recorded in the DOR and in the detailed notes in the front of his Notebook that the personal respondent said to him that others had been "fired". I recognize that the complainant's jotted notes at the back of his Notebook described the personal respondent as having "commented about sacking the employees for turban". The complainant explained, and I accept, that he was writing in summary form and using his own words, namely "sacking", to express the personal respondent's message that others had been dismissed.

85I am also skeptical about the personal respondent's version of the events because it is unlikely that the complainant lied when he wrote in his notes and described in his testimony that the personal respondent was smoking outside. There was nothing for the complainant to gain by fabricating this detail and it was too risky to include simply to colour his story. The personal respondent acknowledged that he occasionally smoked cigars. It is unlikely that the complainant would have known this personal fact about the personal respondent unless he had observed the personal respondent smoking outside. I find that the complainant's knowledge that the personal respondent smoked supports the complainant's allegation that the personal respondent was outside and, from this, an inference can be drawn that the personal respondent and the complainant had interactions outside of the store.

86Last, there is one aspect of the personal respondent's email of March 23, 2006, regarding an exchange between he and Zaldivar about which neither he, nor Zaldivar, were able to shed any light. As previously noted, the personal respondent's email was written in order to document his recollection of the December 6 events for Home Depot's lawyer. The email, which is over one page single-spaced, details the interactions between the personal respondent and the complainant: the personal respondent's requests that the complainant leave the store because of the safety concerns; the complainant's resistance while he sat and wrote; the complainant's comments about his past construction experience and stature in the community; and the calls with Reilly and Addesa. The email ends with a notation that Zaldivar, in addition to offering his support, told the personal respondent "not to worry cause this had happened before". The personal respondent ends the email with the note that he replied "everything will be fine". When questioned about the comment "this had happened before", Zaldivar unequivocally denied making the remark and declined any knowledge to this effect. When questioned about his penultimate notation, the personal respondent's discomfort was palpable. He testified that he did not know what "this had happened before" meant. The personal respondent did not retract that Zaldivar made the comment and offered no explanation for this conflict in their evidence.

87While it is not necessary for me to determine whether or not Zaldivar made this comment, the divergence in accounts is relevant to my assessment of credibility — the only conclusion that can be drawn is that someone was not being truthful. This was yet another telling example of the myriad of difficulties in attempting to reconcile Zaldivar's and the personal respondent's evidence. Despite their mutual claims to have been together throughout the incident, their evidence did not coalesce. In summary, while the personal respondent presented much of his evidence in a matter-of-fact manner, certain aspects of his testimony were, however, internally inconsistent, contradicted by other evidence and not fully responsive. Thus, I found the personal respondent's testimony to be unpersuasive and the complainant's account of the events to be more authentic.

Summary of Findings of Fact

88I find that the personal respondent arrived at the store around 6:45 a.m., saw two security guards without hard hats (on the balance of probabilities most likely the night shift) and told them that they had to wear hard hats. I find that Zaldivar and Ahmedi arrived around 7:00 a.m. and that the complainant came shortly thereafter, passing Ahmedi and another guard on his way into the store building. I find that the complainant and Zalidvar discussed their duties and who would perform exterior patrol. The complainant learned about Zaldivar's previous security assignment and realized that Zalidvar was unfamiliar with DORs. The complainant began to teach Zalidvar how to fill out DORs. Around this time, the personal respondent approached the guards, pointed at the complainant and said "[i]f you are going to be working here you'll have to wear a hard hat".

89A debate ensued revolving around the complainant's right to refuse to wear a hard hat and the safety requirements because the store was under construction. During this discussion, the personal respondent asked the complainant to leave the building. I find that, because of the complainant's past construction experience and the personal respondent's tone, the complainant was quickly offended and at some point asked the personal respondent for his name and title. This discussion lasted for about 10 to 15 minutes and the tone between the two men was tense. Eventually, the personal respondent indicated that he wanted to speak to the complainant's supervisor. The complainant called the Reilly office and spoke to Ahmedi. The personal respondent also spoke to Ahmedi, who advised that the complainant could not remove his turban because of his religion. The personal respondent was exasperated with Ahmedi's lack of explanation for why Reilly deployed a guard who could not wear a hard hat to a construction site.

90After the personal respondent and Ahmedi concluded their discussion, the complainant received a call from Ahmedi instructing him to remain on site and oversee exterior patrols except when providing coverage of the access desk. I find that, around this time, Zaldivar was likely absent from the access desk. The complainant sat at the access desk and began to write his notes. The personal respondent spoke to a group of workers, which included a man wearing a baseball cap. Although the complainant perceived the personal respondent and the group was making fun of his turban, I have nothing more than the complainant's purely subjective impressions and, as such, I cannot find that the complainant was ridiculed at this juncture.

91Eventually, the personal respondent approached the complainant at the access desk and questioned why the complainant was still in the building. The complainant pointed out others nearby without hard hats, in particular the man with the baseball cap, and the complainant's observations seemed to annoy the personal respondent. The personal respondent repeated that the complainant could not remain in the store. The complainant called the personal respondent prejudiced and told the personal respondent that this situation would "come back at him". The personal respondent ordered the complainant to get out. The complainant went outside and stood by the vestibule doors. I find that by this point the personal respondent was angered and frustrated, particularly by the complainant's accusation of prejudice and avowal to seek recourse against the personal respondent. The personal respondent followed the complainant outside and forcibly demanded that the complainant move away from the doors and wait in his car.

92The complainant moved his car near the temporary washrooms and remained in his car. He made calls to the Reilly office and confirmed that he should continue with exterior patrol. During this time, the personal respondent and Addesa were in contact and Addesa indicated that he would deal with Reilly. At some point, the personal respondent likely went to the washroom and/or had a smoke break. As the personal respondent stood outside smoking, he saw the complainant watching him from the car. The personal respondent approached the complainant in his car and indicated that the complainant would only be allowed to work if he agreed to remove "it" or "that" (gesturing to the turban) and wear a hard hat. The personal respondent also derisively said something to the effect that either he or Home Depot had fired others who refused to do so. The complainant responded that the personal respondent had crossed the line with respect to interfering with the complainant's religion.

93The complainant, insulted by the personal respondent's demeanour and remarks, called Reilly and indicated that it was better for him to leave. I find that the complainant likely went back into the store to tell Zaldivar that he was leaving. At that time, he attempted to solicit Zaldivar's support for his complaint against the personal respondent. Zaldivar refused to agree with the complainant that the personal respondent was racist. Shortly thereafter, Zaldivar told the personal respondent that the personal respondent could count on him for support as a witness.

ISSUES

94The issues to be determined by the Tribunal are:

1. What Code-protected grounds are triggered by the facts of this case?

2. Are the facts of this case "with respect to employment" within the meaning of the Code?

3. Was the complainant subjected to discriminatory treatment in the form of (i) selective enforcement of the hard hat rule and (ii) rude and offen[sive] comment and conduct?

ANALYSIS

What Code-protected grounds are triggered by the facts of this case?

95The complainant cited the Code-protected grounds of race, colour, ethnic origin, and creed as the basis of his allegations. While these particular grounds can often intersect (i.e., manifest as individually exacerbating or uniquely cumulative bases of disadvantage) this is not always the case. I find the essence of the allegations in this complaint engage the Code-protected ground of creed and, as such, I restrict my analysis to discrimination on the basis of creed.

96Although the term "creed" is not defined within the Code, there is [a] long history of human rights jurisprudence that has construed "creed" to mean the same as "religion", including notions of membership in a religious group and adherence to, and practices of, religious tenets: Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102]; Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd.Inq.); and Henry v. Kuntz (No. 2), 2004 HRTO 7 [reported 50 C.H.R.R. D/70]. In the spirit of human rights legislation, creed has been interpreted contextually and is not monotheistic or restricted to a particular religious denomination: Huang v. 1233065 Ontario Inc. (No. 2), 2006 HRTO 1 [reported 55 C.H.R.R. D/216] and Heintz v. Christian Horizons, 2008 HRTO 22 [reported 63 C.H.R.R. D/12]; rev'd on other grounds, 2010 ONSC 2105 [reported 70 C.H.R.R. D/391].

97The complainant gave testimony about the Sikh religion. He explained that there are five requisite Ks (items of faith) which followers of Sikhism wear as part of their practice and demonstration of their faith: kesh (uncut hair), kanga (comb), kara (steel bracelet), karchhera (under garment), and kirpan (sword) The complainant testified that he observes the first four Ks and does not carry a kirpan. He explained that wearing a turban is an essential part of maintaining oneself as kesh and an important symbol of one's commitment to the Sikh faith. The complainant testified that he has never cut his hair, nor exposed his hair in public, and only removes his turban for bathing.

98When questioned by the respondents, the complainant explained that Sikh boys, such as his son, wear a patka, a single layer bandanna-like cloth that covers their uncut hair. The patka is worn until the youth undergoes a turban ceremony, which marks his transition into adulthood. Although the respondents readily accepted that the complainant is a practising Sikh with sincere religious convictions, the respondents elicited, through the complainant's cross-examination, that there are differences of opinion amongst Sikhs as to acceptable practices regarding wearing and removal of the turban. The respondents also pointed out, through the personal respondent's experience, that some Sikhs may consider alternate forms of headdress to the turban to be permissible.

99I understand the respondents' suggestion that, for some Sikhs, the turban may not be mandatory. However, my task is not to assess the austerity of the canons of the religion or to choose between its various customs. I simply need to determine whether the complainant has a genuine belief that the turban is an article of his faith: Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47 [CHRR Doc. 04-657]. The Supreme Court of Canada has recognized that a fundamental aspect of religion is that it is deeply subjective and the emphasis in assessing freedom of religion is, therefore, on the individual's own sincerely held beliefs. As such, the Supreme Court accepts that the right to freedom of religion does not require that people hold identical beliefs or practice religion the same way. Beliefs may be expressed through a diverse range of observances that may, or may not, fully adhere to official religious precepts: Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6 [reported 55 C.H.R.R. D/463] at § 35.

100I find that the complainant sincerely believes that maintaining his hair unshorn and covered by a turban at all times is an essential symbol and feature of his personal observance of his Sikh faith. While this may not be a practice shared by all members of his faith, it does not have to be in order to attract Code protection. I am only required to determine, and I find as such, that the complainant has a genuine belief that the turban is an article of his faith.

Are the facts of this case "with respect to employment" within the meaning of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

101The language of s. 5 of the Code is broad and general in that it provides a right to equal treatment "with respect to employment". A wide range of employment situations, including the pre-employment (e.g., prospective applicants), post-employment (e.g., terminations and pensions), temporary employment (e.g., casual or contract workers), non-traditional work arrangements (e.g., membership placement organizations and co-employment), and even the behaviour of guests, clients and patrons in the workplace, have been held to come within the ambit of "with respect to employment": Canadian Corps of Commissionaires v. Barnard (1986), 1986 CanLII 2475 (ON HCJ), 9 C.H.R.R. D/4829 (Ont. Div.Ct.); Kalbfleisch v. Carillo (2002), 2002 CanLII 46513 (ON HRT), 44 C.H.R.R. D/163 (Ont. Bd.Inq.); Payne v. Otsuka Pharmaceutical Co. (No. 3), 2002 CanLII 46516 [reported 44 C.H.R.R. D/203] (Ont. Bd.Inq.) ("Payne"); and Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 [reported 53 C.H.R.R. D/262]. In Payne, supra, a third-party retainer of that complainant's services was found to be captured by s, 5 of the Code as part of the "employment web".

102Given that the corporate respondent was the de facto employer on site and established the terms and conditions of the workplace, I find that the s. 5 prohibition of discrimination with respect to employment applies to the respondents' relationship with the complainant and retainer of his services.

Was the complainant subjected to discriminatory treatment?

Selective Enforcement

103The complainant and Commission agree that, for the purposes of stage 1 of the hearing, the personal safety equipment rule under the OHSA applied to the Milton store site. However, the Commission and complainant allege that the respondents enforced the personal safety equipment rule in a differential manner and targeted the complainant for disparate treatment because he wears a turban. They draw an analogy with Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, wherein the Supreme Court found the legislation was not the source of the unfairness, but rather the high-handed and oppressive administration of that legislation by officials. The Commission and complainant allege that the respondents' selective enforcement of the safety rules was similarly arbitrary and adverse and thereby constitutes discrimination on the basis of creed.

104The respondents argue that they were required to comply with the OHSA safety regulations that anyone present on the site must at all times wear protective headwear and, had they permitted the complainant to remain on the site without a hard hat, they would have violated the OHSA. The respondents deny that they selectively enforced the hard hat rule. The respondents submit that everyone was subject to the same strict requirement to wear personal safety equipment and that there were no exceptions. The respondents contend that the personal respondent diligently enforced this rule as he went about his work throughout the day.

105While I understand the respondents' argument regarding the mandatory OHSA safety requirement, this is not a complete answer to the issue of selective enforcement. The issue is not simply what rule did the respondents enforce, but also in what circumstances did the respondents enforce the rule.

106By all accounts, the evidence does not bear out the respondents' assertion of universal enforcement. The evidence indicates that there was no systematic or official enforcement of the protective equipment rule upon admission onto the site property. The complainant testified that he observed people outside on the grounds, including the personal respondent, not wearing hard hats, and I accept his evidence in this regard. The personal respondent acknowledged that the hard hat rule was not enforced by the security guards outside of the building and he could not say, with any certainty, how the hard hat rule was policed outside of the store building. Based on this evidence, it remains unclear how enforcement of the protective safety equipment rule was achieved on the exterior grounds. In light of this, the respondents' position that the entire property was a construction project and that the protective safety equipment rule was enforced throughout the site cannot be sustained. I find that the respondents did not monitor the use of protective safety equipment with any regularity or rigor outside of the store building.

107Although the evidence is in dispute, I accept the personal respondent's testimony that a large protective safety equipment sign was posted inside the vestibule. However, notice of the safety rule is not the same as enforcement. There was no evidence that the respondents enforced the protective safety equipment rule before ingress into the store, specifically upon entry into the vestibule (an area of 720 square feet) or from the vestibule doors to the access desk near the cashier stations (a distance of about 40 feet). The complainant recalled seeing Ahmedi and another security guard exit the building without hard hats. Zaldivar also entered the building without a hard hat. Further, the complainant's evidence was that a number of workers walked into the store carrying their hard hats and wearing winter boots, not safety shoes. Zaldivar acknowledged that later that same week, he saw workers without protective footwear. There was no dispute that everyone (security guards, workers, and visitors) traversed the unfinished parking lot through the vestibule into the cashier area of the store and up to the access desk (a distance of 190 feet or more) without any inspection for, or enforcement of, the protective safety equipment requirement.

108Further, based on the personal respondent's evidence, it is apparent that the main concern was that hard hats be worn inside the store building. This was reiterated by the personal respondent several times in his testimony and confirmed in his email wherein he repeatedly wrote that [the] complainant was not allowed to remain inside the store. The email described the issue in the following ways: "building is still in the construction stage. . . must wear hard hats while in the store at all times", "must have a hard hat on at all times while in the building" and "could not be in the building without a hard hat".

109In light of the above evidence, I find that the protective safety equipment rule was not enforced by the respondents before arrival at the security access desk. I find that although some people passed by the access desk wearing hard hats, some others carried hard hats in hand and that many more wore winter boots and not safety shoes. I find that the normal practice was for the security guards to ensure that anyone arriving at the access desk had their own hard hat or obtained a hard hat and the expectation was that the hard hat would be donned before embarking further into the interior body of the store.

110Given that it appears that [the] corporate respondent's practice was to require hard hats be worn from the access desk and onwards, selective enforcement was evident in that the only person dealt with differently was the complainant. Although others were allowed to pass through the unfinished parking lot and vestibule up to the access desk without wearing a hard hat, the personal respondent did not permit the complainant to remain in the area of the access desk, within the vicinity of the building doors, or elsewhere on the grounds without a hard hat.

111After careful consideration of all the oral and documentary evidence, I am satisfied that the complainant was treated differently because of his turban and that this was negative differential treatment. It is clear that the complainant was treated differently in two respects: he was required to wear a hard hat outside, whereas others were not forced to do so, and he was not allowed in the building's access area, despite the fact that some others passed through this area without putting on hard hats. Only the complainant, being the individual whose right to employment without religious discrimination was implicated, was the one required to leave the building and was not allowed on the