Aubrey Armstrong v. Anna’s Hair & Spa Inc., 2010 HRTO 1751

Human Rights Tribunal of Ontario

Between:

Aubrey Armstrong Applicant

-and-

Anna’s Hair & Spa Inc. Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: August 25, 2010 Citation: 2010 HRTO 1751 Indexed as: Armstrong v. Anna’s Hair & Spa

Appearances By:

Aubrey Armstrong, Applicant ) On his own behalf Anna’s Hair & Spa Inc., Respondent ) Ashok Das, Representative

INTRODUCTION

1The applicant, who self-identifies as an African Canadian man, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 8, 2008, which alleged that the respondent discriminated against him with respect to services because of his race, colour and ethnic origin.

2Specifically, he alleged that the respondent provided him with a body massage and facial services, but its manager refused to book a scalp massage and hair wash appointment for him on the basis that the salon does not do “Black” hair.

3The respondent filed a Response on April 14, 2009, which denied the allegation of discrimination.

4Specifically, the respondent denied that its manager, who self-identifies as “East Indian”, told the applicant that the salon does not do “Black” hair. The respondent stated that it provided the applicant with a number of services, but was unable to do his hair because he had long dreadlocks, which can only be styled by a specialist with experience in the area. The respondent stated that its manager informed the applicant that it did not have such a stylist.

DECISION

5The Application is upheld. I have decided that the applicant has proven on a balance of probabilities that the respondent denied him hair services in part because of his race, colour and ethnic origin.

6To remedy the discrimination, the Tribunal orders (a) the respondent to pay the applicant $1,000 as monetary compensation for the violation of his inherent right to be free from discrimination and for injury to dignity, feelings and self-respect, and (b) the respondent’s manager to complete the Ontario Human Rights Commission’s online training module on human rights.

BACKGROUND

7Anna’s Hair & Spa Inc. is a salon in Scarborough, which provides hair and spa services, including hair cuts, washes and styling, manicures, pedicures, massages, facials, and waxing.

8The hearing of the merits of the Application took place on December 11, 2009. I heard the evidence of three witnesses: (1) the applicant, (2) Elaine Tran, the applicant’s fiancée, and (3) Ashok Das, the respondent’s manager.

EVIDENCE

9Mr. Das testified that the respondent opened for business in December 2006, and employed one esthetician and one hair stylist. He stated that in 2007 a marketing company began assisting the respondent by selling pre-paid promotional packages for five separate visits to the salon.

10In February 2008, Ms. Tran purchased two pre-paid promotional packages from the marketing company for $116. The applicant testified that the packages were a gift to him for the two of them to use together. According to the pre-paid certificate, two of the visits (“A” and “E”) covered hair services and the three other visits (“B”, “C” and “D”) covered spa services:

A) Hair style analysis, scalp massage, cut, shampoo and style, and colour and highlighting consultation.

B) Manicure, pedicure, and hand and foot massage.

C) Skin care analysis, facial, cleansing and toning, and décolleté massage.

D) Aromatherapy body massage and 20% off any waxing service.

E) Hair design consultation, scalp massage, accent highlights, and 50% off cut, shampoo and style.

11The applicant and Ms. Tran started with visit “D”. On March 7, 2008, they attended the respondent’s premises, and met with Mr. Das, who provided them with a consultation. They admit that they received the services for visit “D”.

12The parties agree that at some point during visit “D” there was a discussion about the applicant’s dreadlocks, but disagree as to what exactly was said and whether Ms. Tran was present during the discussion.

13The applicant testified that he has natural dreadlocks with no artificial extensions. He stated that Mr. Das asked him about his dreadlocks, and he responded that they were natural and asked Mr. Das if he wanted to touch them. He stated that Mr. Das felt his dreadlocks and told him that the stylist was not familiar with dreadlocks. He stated that Mr. Das did not say anything else. Specifically, he denied that Mr. Das told him the stylist would not be able to provide him with the hair services listed in visits “A” and “E”.

14Mr. Das testified that during the consultation he informed the applicant and Ms. Tran that the stylist could not do dreadlocks and did not even know what dreadlocks were. He stated that Ms. Tran responded that it was not a problem, and she would wash the applicant’s hair. Mr. Das’s testimony on this last point contradicted the narrative in the Response to the Application, which stated that it was the applicant who responded that Ms. Tran would take care of his hair.

15Ms. Tran testified that she later became aware that the applicant and Mr. Das had a discussion about the applicant’s dreadlocks, but she denied that she was present when the discussion occurred. She stated that at that point she was already receiving her body massage.

16The applicant and Ms. Tran next attended the respondent’s premises for visit “C” on June 6, 2008. They admit that they received the services for visit “C”. However, the parties disagree about whether Ms. Tran booked an appointment for the next visit.

17The applicant and Ms. Tran both testified that Mr. Das was not present during their visit. Mr. Das, on the other hand, testified that he was present, met with both of them, and when they were leaving Ms. Tran booked a hair appointment (visit “E”) for June 13, 2008 for herself, but not the applicant.

18Ms. Tran denied that on that day she asked Mr. Das to book her a hair appointment for June 13, 2008. She testified that she spoke with a staff person about making a subsequent appointment, and that person told her to call back to make the appointment. She stated that she spoke with a staff person again that evening by telephone, and was told to call back on June 10, when Mr. Das was in, in order to book the appointment.

19In cross-examination, Mr. Das suggested to the applicant that he (Mr. Das) was at both visits because he signed for visits “D” and “C” on the applicant’s pre-paid certificate. The applicant reiterated that Mr. Das was not present during visit “C”, and stated that he did not know what Mr. Das’s signature looked like.

20I compared the signature for visit “C” on the certificate to Mr. Das’s signature on the Response to the Application, and it was not clear to me that they were the same. Therefore, I asked Mr. Das to confirm that it was, in fact, his signature on the certificate. He looked at the certificate and admitted that it was not his signature. He also admitted that he would not then have been present during visit “C”, but still maintained that on that date Ms. Tran booked a subsequent appointment only for herself because “someone” wrote it in the appointment book. He stated that only he and his staff wrote in the appointment book. The respondent did not disclose the relevant page in the appointment book to the applicant or tender it as evidence at the hearing.

21Ms. Tran testified that she called and spoke with Mr. Das on June 10, 2008, to book a hair appointment (visit “E”) for both herself and the applicant. She stated that she booked an appointment for June 13, and then told Mr. Das that she wanted accent highlights and a wash, but no cut.

22In cross-examination, Mr. Das asked Ms. Tran whether they then had a discussion about her request, and she refused to answer his question, stating that it was “not relevant”. I noticed that this was the one point during the hearing where Ms. Tran became agitated. I directed her to answer the question, and she admitted that she became upset because Mr. Das informed her that she would have to pay 50% of the cost of a wash. She explained that she misunderstood what the certificate said.

23Ms. Tran testified that after agreeing to pay for 50% of the cost of a wash she then told Mr. Das that the applicant wanted a scalp massage and wash, but Mr. Das responded, “We don’t do Black hair,” and refused to book the appointment for him.

24Mr. Das admitted that Ms. Tran called him on June 10, 2008, but stated that it was to “confirm” her appointment for June 13, not to book it. He also admitted that Ms. Tran requested accent highlights, but stated that when he told her that she would have to pay 50% of the cost of a wash, she became very angry. He also admitted that Ms. Tran requested a hair appointment for the applicant, but denied that she informed him that the applicant only wanted a scalp massage and wash. Rather, he stated that Ms. Tran stated that the applicant “needed to get his hair done.” He denied that he told her the salon does not do “Black” hair. Rather, he stated that he told her that that the stylist did not have experience with dreadlocks.

25I noticed at the hearing that Mr. Das became agitated and aggressive when he testified and cross-examined Ms. Tran about her reaction to paying for the wash.

26The applicant testified that after Ms. Tran told him about her conversation with Mr. Das, he called Mr. Das for an explanation. He stated that he reiterated to Mr. Das that he only wanted a scalp massage and wash, but Mr. Das responded that the salon does not do “Black” hair because the stylist was not comfortable with “Black” hair. He also stated that Mr. Das asked: “What do you want me to do? Fire my hairdresser?” He further stated that Mr. Das told him that he could contact the marketing company and get a refund, and that Mr. Das had contacted the company and told them not to sell promotional packages for his salon to Black people.

27Mr. Das admitted that the applicant called him, but denied that that the applicant informed him that he only wanted a scalp massage and wash. Rather, he stated that the applicant stated that he “needed to get his hair done.” He also denied that he told the applicant that the salon does not do “Black” hair. Rather, he stated that he told him that that the stylist did not have experience with dreadlocks.

28I then asked Mr. Das whether the salon would have been able to wash the applicant’s hair if he had requested it, and Mr. Das responded that he did not know and would have to ask the stylist. In cross-examination, Mr. Das also stated that washing dreadlocks is a specialized service.

29The applicant denied that specialized skills were required to wash his hair. He stated that all that a wash involved was putting shampoo in his hair and washing it out. He stated that he only requested a scalp massage and hair wash because, unlike a cut, no specialized skills were required to handle his dreadlocks.

30I observed the applicant’s dreadlocks at the hearing. They were long, but simple and well-maintained (they were not thick or messy).

31Mr. Das stated that after he informed the applicant that the stylist did not have experience with dreadlocks, the applicant asked him for a refund and he referred the applicant to the marketing company. In cross-examination, Mr. Das denied that he refused to book further visits for the applicant, and stated that he would have booked a further spa visit (visit “B”) for him if he had requested it.

32To refute the applicant’s allegation that he had contacted the marketing company and told them not to sell promotional packages for his salon to Black people, Mr. Das tendered as evidence a letter from the Vice President of Marketing of the marketing company. However, the letter stated: “I… at no time had told Elaine Tran that our Client (Anna’s) was looking for specific race or profiling clients.” Mr. Das did not call the Vice President as a witness at the hearing.

33Mr. Das also stated that the salon’s hair stylist is of African and Indian descent and has siblings of African descent, and that the salon has a lot of Black clients who get their hair done. However, he also stated that the stylist does not know what dreadlocks are and he himself does not know what dreadlocks are. The respondent did not call the stylist as a witness at the hearing.

34The applicant testified that he only received a partial refund for the certificate from the marketing company. However, in cross-examination, he admitted that the refund fully reimbursed him ($69) for the three unused visits (“E”, “A” and “B”).

35The applicant testified that he was “deeply affected” by the manager’s statement that the salon does not do “Black” hair and the respondent’s refusal to serve him. He stated that he was upset, embarrassed and hurt. He stated that he has not even told his family about what happened because, after overcoming slavery, civil rights and discrimination on a day-to-day basis, they would be extremely upset to hear that he was refused a hair wash at a salon because he is Black. He also stated that he has friends of different races, but has not told them what happened because it is so embarrassing.

36In his Application, the applicant alleged that Mr. Das told him that he himself was a “coolie” man, and was not being racist. At the hearing, Mr. Das did not self-identify as a “coolie”, but he testified that “East Indians” have never discriminated against “Africans”, and he knows this because he is from Guyana, where Africans came as slaves and Indians came as (indentured) labour, which is a form of slavery. He also stated that the applicant has no losses because he received a full refund for the unused services.

37In reply, the applicant stated that there are racial issues between Indians and Africans in Guyana, and Indians do, in fact, discriminate against Africans.

FINDINGS OF FACT AND ANALYSIS

Applicable Law and Issues

Human Rights Code

38The Application relates to sections 1 and 9 of the Code, which provide that every person has a right to equal treatment with respect to services without discrimination because of a number of grounds, including race, colour and ethnic origin, and no person shall infringe or do, directly or indirectly, anything that infringes a right.

Issue

39The main issue that I am required to determine is whether the applicant has proven on a balance of probabilities that the respondent denied him a service because he is Black/African Canadian.

Onus

40The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.

41For the reasons that follow, I have decided that the applicant has proven on a balance of probabilities that the respondent denied him hair services in part because of his race, colour and ethnic origin.

Credibility

42This Decision turns largely on my assessment of the credibility of the oral evidence given by the applicant, Ms. Tran and Mr. Das. In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]

43I have also considered the following non-exhaustive factors, which were set out by this Tribunal in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, at para. 26 and Shah v. George Brown College, 2009 HRTO 920, at para. 14:

• The motives of a witness, including the extent to which a witness may have an interest in the outcome of the case.

• The relationship of a witness to the parties, including the extent to which a witness may have a self-interest in testifying for one of the parties.

• The internal consistency of a witness’s evidence.

• Consistencies or inconsistencies in a witness’s evidence in relation to the evidence of other witnesses (and, I would add, the documentary evidence).

44In addition, this Tribunal has recognized that the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive of that party’s case: Shah, supra, at para. 14.

45I have also not considered each witness’s evidence in isolation, but rather, considered the totality of the evidence, including the oral testimony of the applicant, Ms. Tran and Mr. Das, as well as the documentary evidence admitted at the hearing. F.H., supra, at para. 58.

46I found the applicant’s testimony both forthright and credible. His evidence was internally consistent and consistent with the evidence of Ms. Tran. Overall, I found his evidence to be in 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.

47I generally found Ms. Tran to be a credible witness. Her evidence was internally consistent and consistent with the evidence of the applicant. I excluded her from the hearing room when the applicant was giving his evidence, and did not see any indication that she tailored her evidence to fit with the applicant’s evidence. However, I was troubled by her evasiveness when questioned about her reaction to being told that she would have to pay for part of the cost of her hair wash.

48I found Mr. Das’s testimony credible with respect to his assertion that the salon often provides hair services to Black customers, but not with respect to how he treated the applicant. His evidence was internally inconsistent on one point, inconsistent with the Response to the Application on another point, and implausible with respect to several disputed facts. I have also drawn adverse inferences from the fact that he failed to produce a relevant and material document (a page from the salon’s appointment book), and failed to call a witness (the hair stylist) who has material and direct knowledge of the disputed facts.

Did the respondent deny the applicant hair services because of his race, colour and ethnic origin?

49In assessing allegations of racial discrimination, this Tribunal has been guided by the principles set out by the British Columbia Human Rights Tribunal in Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430, at para. 482:

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

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

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

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

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

50In addition, in Sinclair v. London (City), 2008 HRTO 48 at para. 18, this Tribunal also found that anti-Black racism and its subtle manifestations are well-recognized in Canadian law, and cited the Ontario Court of Appeal’s Decision in R. v. Parks (1993), 84 C.C.C. (3d) 353, 1993 CanLII 3383, which stated at p. 369:

(…) Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institu­tions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.

51Furthermore, allegations of racism related to hair are sometimes an element in discrimination complaints by Black individuals: see, for example, Grier v. Specialized Skills, Inc., 326 F.Supp. 856 (W.D.N.C.1971) (the Court held that the refusal of a barber school to admit Black students and serve Black customers on the basis that “Negroid” hair was more difficult to cut than “Caucasian” hair was discriminatory); Lobzun v. Dover Arms Neighbourhood Public House Ltd. (1996), 1996 CanLII 20080 (BC HRT), 25 C.H.R.R. D/284 (B.C.C.H.R.) (the B.C. Council of Human Rights found, among other things, that racially derogatory epithets about Black people, including customers asking why Jamaicans with dreadlocks were let into a pub, were persistently used in the workplace); Perry v. Command Performance, No. 89-2284, 1989 WL 143281 (E.D. Pa. 1989), vacated, 913 F.2d 99 (3d Cir. 1990), aff’d, No. 89-2284, 1991 WL 46475 (E.D. Pa. Mar 27,1991), aff’d without reported opinion, 945 F.2d 395 (3d Cir. 1991) (the lower Court found that the refusal of an employee of a hair salon to wash and set the hair of a Black customer on the basis that she does not do “Black” hair could constitute racial harassment, but dismissed the lawsuit on jurisdictional grounds); Hewlett v. Premier Salons International, Inc., 185 F.R.D. 211 (D. Md.1997) (the Court considered a discrimination lawsuit that alleged, among other things, that a hair salon refused to wash, dry and style the hair of two Black customers on the basis that it does not deal with their type and texture of hair); and Richards v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 341 (the Court upheld the decision to dismiss a complaint that alleged that the complainant was racially profiled by border inspectors at an airport because he is Black, Jamaican-born and has dreadlocks).

52In his testimony during the hearing, Mr. Das suggested that he could not have discriminated against the applicant because there is no history of “East Indians” discriminating against “Africans”, and he is originally from Guyana where Africans were brought as slaves and Indians were brought as indentured labour. I disagree with this line of reasoning.

53I agree with Mr. Das that, from a historical perspective, racism has primarily been a phenomenon of White persons discriminating against Black, Indian and other racialized individuals. I also agree with him that Indians, particularly those who were brought by Europeans as indentured labourers to Guyana and elsewhere in the Caribbean, were victims of some of the worst kinds of racism. That said, I disagree with him that this means that Indo-Caribbean individuals cannot discriminate on the basis of race under the Code in Ontario.

54In my view, it is not in dispute among well-informed, reasonable persons that racial stereotypes about persons of Black African descent exist in Indian communities in both the Caribbean and Canada. Furthermore, Indo-Caribbean individuals in Canada who hold such stereotypes and are in positions of power in employment, services or housing undoubtedly have the capacity to discriminate against Black individuals.

55I am not suggesting that this makes it more likely that Mr. Das discriminated against the applicant, but I also do not accept that, because of historical patterns of racism and the fact that he is of Indo-Caribbean origin, it is impossible or less likely that he discriminated against the applicant. See also Bageya v. Dyadem International, 2010 HRTO 1589, which dealt with a similar issue at para. 136.

56I also agree with the Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination, which states at page 12:

(…) Some complaints to the Commission allege racism by, among or within racialized groups. The consequences of these situations, for example loss of a job, are every bit as serious as racism perpetuated by White persons against racialized persons and will be treated equally as seriously….

57In my view, it is indisputable that if Mr. Das denied the applicant hair services on the basis that the salon does not do “Black” hair, the denial was discriminatory. Blanket statements and assumptions about “Black” hair are nonsensical and stereotypical because in the same way that there is no such thing as “White” or “Asian” hair, there is no such thing as “Black” hair. Although it may be true that many individuals of Black African descent have curly hair, some also have wavy or straight hair, and the hair of a Black person can be short or long, thin or thick, oily or dry, and can be styled in innumerable ways. However, what is true is that individuals, regardless of race, can have hair that is more difficult to handle because of its length, texture and style.

58I now turn to my findings of facts. I find that in February 2008, Ms. Tran purchased two pre-paid promotional packages as a gift to the applicant for the two of them to use together at the respondent’s salon. Mr. Das did not attempt to contradict the applicant’s evidence on this point. Furthermore, it was undisputed that Ms. Tran bought both packages at the same time, and that she and the applicant attended the first two visits to the salon together.

59I find that during the applicant and Ms. Tran’s first visit to the salon for spa services on March 7, 2008, Mr. Das informed the applicant that the stylist was not familiar with dreadlocks. The applicant and Mr. Das both testified that Mr. Das said something to this effect.

60However, I do not accept Mr. Das’s evidence that he told the applicant that the salon was unable to provide him with any hair services, and Ms. Tran then responded that it would not be a problem and she would wash the applicant’s hair. I prefer the applicant’s evidence that Mr. Das did not say anything else, and Ms. Tran’s evidence that she was not present when the discussion about the applicant’s dreadlocks took place.

61In my view, it is not plausible that Ms. Tran would purchase two packages for her and the applicant to enjoy together, and then during the first of five visits agree without protest to forego nearly half of the pre-paid visits for the applicant. I was also troubled by the fact that Mr. Das’s testimony about Ms. Tran’s response contradicted the narrative of the Response to the Application (which attributed a similar statement to the applicant rather than Ms. Tran).

62I find that Mr. Das was not present during the applicant and Ms. Tran’s second visit for spa services on June 6, 2008, and do not accept his evidence that at the end of the visit Ms. Tran booked an appointment for a third visit (hair services) for herself, but not the applicant, for June 13. Although Mr. Das initially testified that he met with the applicant and Ms. Tran during their second visit and witnessed Ms. Tran booking the third visit, he later admitted in response to my questions about the signature on the pre-paid certificate that he was not, in fact, present at all during the second visit.

63I was also troubled by the fact that the respondent did not disclose to the applicant or tender as evidence at the hearing the page for June 13 from the salon’s appointment book. I find that the page is relevant and material to establish if and when an appointment was booked, and who booked it. I draw an adverse inference from the respondent’s failure to produce it.

64I prefer and accept Ms. Tran’s evidence that at the end of the second visit she spoke with a staff person about making a subsequent appointment, and that person told her to call back to make the appointment. I also accept her evidence that she spoke with a staff person again that evening by telephone, and was told to call back on June 10, when Mr. Das was in, in order to book the appointment. Ms. Tran’s evidence on these points was forthright, consistent and made sense.

65I find that Ms. Tran called Mr. Das on June 10, 2010, to book an appointment for a third visit (hair services) for June 13, and first had a discussion with him about getting accent highlights for herself. Ms. Tran and Mr. Das both testified that that a discussion of this nature took place.

66I find that Ms. Tran became angry when Mr. Das informed her that she would have to pay for 50% of the cost of a wash, and Mr. Das then became angry because of Ms. Tran’s reaction. Although Ms. Tran testified that she was only upset and not angry, she became evasive and agitated when she was cross-examined about this matter at the hearing. Mr. Das also became aggressive and agitated when this matter was raised at the hearing. As such, I believe that they were both angry during their telephone discussion on June 10, 2008.

67What happened next is the crux of the Application. I prefer and accept the applicant’s and Ms. Tran’s account of what happened over that of Mr. Das. I therefore find that Ms. Tran informed Mr. Das that the applicant wanted a scalp massage and hair wash, and Mr. Das informed her that the salon does not do “Black” hair, and refused to book the appointment for him. I also find that Mr. Das said the same thing to the applicant when he called, and then told him that he could get a refund from the marketing company, and that he himself had contacted the marketing company and told them not to sell promotional packages for his salon to Black people. The following are my reasons for making these findings.

68When I observed the applicant and Ms. Tran’s demeanour at the hearing, they appeared to be genuinely shocked by what Mr. Das had said to them. I accept the applicant’s evidence that he only requested a scalp massage and hair wash because, unlike a cut, no specialized skills were required to handle his dreadlocks, and that all that a wash involved was putting shampoo in his hair and washing it out. I observed the applicant’s dreadlocks at the hearing, and it was clear to me that, although his dreadlocks may be more difficult to wash than short, straight hair, for example, washing them would be manageable. In my view, it also makes sense that the applicant would have wanted at least some of the hair services because they were pre-paid and a gift for him and Ms. Tran to enjoy together.

69By contrast, I found Mr. Das’s testimony on these points illogical and evasive. I understand that the stylist may not have had the skills to cut the applicant’s dreadlocks, but, in my view, Mr. Das never adequately explained why she could not have provided other hair services to the applicant. Although Mr. Das claimed that washing dreadlocks is a specialized service, he never claimed that it could not be done. I was particularly troubled by the fact that he had not asked the stylist, even by the time of the hearing, if she was capable of washing dreadlocks. Furthermore, he did not even attempt to explain why the stylist could not provide a scalp massage to the applicant.

70I also found it very troubling that the stylist, who according to Mr. Das, is of Black/Indian descent and regularly serves Black customers, was not called as a witness at the hearing. I find that she has material and direct knowledge of some of the disputed facts, and draw an inference that the respondent did not call her because she would not have been supportive of the respondent’s case.

71I have not given the letter from the Vice President of Marketing of the marketing company any weight because it is hearsay, and appears to address an issue that was not raised by either the applicant or the respondent at the hearing.

72In my view, it is likely that up until the point where Ms. Tran and Mr. Das had an argument, Mr. Das was open to providing the applicant with the non-cut hair services that the salon offered, but Mr. Das then became angry with Ms. Tran, no longer wanted her and the applicant as customers, and acted on stereotypes of “Black” hair (rather than dreadlocks) being difficult to handle.

73If Mr. Das had simply told Ms. Tran that he no longer wanted to serve her and the applicant because he did not like her attitude, that may have been bad customer service, but it would not have been discriminatory. His decision to refuse services to the applicant became discriminatory when he brought the applicant’s race into it as a factor. In other words, although the applicant’s race was not the trigger or main reason to deny him hair services, it was clearly a secondary and operative reason for the denial.

REMEDY

Applicable Law and Issues

74The Tribunal’s remedial powers are set out in subsection 45.2 of the Code, which provides:

(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

75Accordingly, the issues that I am required to determine are whether the applicant is entitled to monetary compensation or restitution, and whether the Tribunal should order the respondent to do anything further to promote compliance with the Code.

Monetary Compensation

76In his testimony, the applicant requested $15,000 as a financial remedy because of the impact that the discrimination had on him and the fact that Ms. Tran had to pay $100 to get her accent highlights done elsewhere. Mr. Das denied that the applicant had incurred any losses because he received a full refund for the unused services from the marketing company.

77The applicant is seeking an award of monetary compensation mainly for injury to dignity, feelings and self-respect. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) at para. 152.

78The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc., supra, at para. 153.

79I find that the respondent’s offensive treatment of the applicant was on the low end of the spectrum in terms of seriousness. This was not a case where the relationship between the parties was long and ongoing, there were repeated acts of discrimination, and the discrimination was the sole or main factor in the adverse treatment that the applicant was subjected to. This was also not a case where the applicant lost his livelihood or his home, or was unable to pursue an important goal such as an education. Rather, this was a case where there was a short-term relationship between the parties, there was one act of discrimination that was a secondary factor in the adverse treatment, and the applicant received several services from the respondent, but was denied a scalp massage and hair wash.

80On the other hand, I accept the applicant’s evidence he was deeply affected by the discrimination. Specifically, I accept his evidence that he was upset, embarrassed and hurt, has not told his family because they would be extremely upset, and has not told his friends what happened because it is so embarrassing. In my view, the impact on the applicant has to be viewed in the context of historical segregation and discrimination against Black individuals in services, including barber shops and hair salons, as well as the negative stigma that is sometimes attached to “Black” hair. I am also mindful of the fact that the quantum of damages for the loss should not be so low as to constitute a “license fee”.

81The applicant cannot claim monetary compensation for any losses incurred by Ms. Tran. If Ms. Tran believed that the respondent discriminated against her and she incurred losses because of her relationship with the applicant, she could have filed her own Application with the Tribunal (see section 12 of the Code).

82In all the circumstances, I find that an award of $1,000 is appropriate for the loss arising out of the infringement. The applicant did not request an order for prejudgment interest, and I do not find that such an order is appropriate given the circumstances of the case.

Other Remedies

83I am not satisfied that the respondent fully understands its obligations under the Code. I therefore find it appropriate to order that Mr. Das complete the Ontario Human Rights Commission’s online training module on human rights (http://www.ohrc.on.ca/hr101/) and provide a copy of the certificate of completion to the applicant.

ORDER

84Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent shall pay the applicant $1,000 as monetary compensation for the violation of his inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. Pursuant to section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, postjudgment interest is payable on any amount not paid within 30 days of the date of this Decision.

2. Within 30 days of the date of this Decision, Mr. Das shall complete the Ontario Human Rights Commission’s online training module on human rights and provide a copy of the certificate of completion to the applicant.