HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angus Pereira

Applicant

-and-

Daf’d Restaurants Inc., Rene Radzio, Sean Radzio and Larry Radzio

Respondents

decision

Adjudicator: Naomi Overend

Date: August 31, 2010

Citation: 2010 HRTO 1782

Indexed as: Pereira v. Daf’d Restaurants

APPEARANCES

Angus Pereira, Applicant ) Cecil Norman, Representative

Daf’d Restaurants Inc., Rene Radzio, ) No one appearing

Sean Radzio and Larry Radzio, Respondents )

1The applicant was hired as an executive/senior chef to develop the menu and hire kitchen staff for a restaurant which had not yet opened. During the process of development, he said he was the subject of discriminatory remarks and comments on the basis of his sexual orientation by two of the named respondents. His employment was terminated shortly after the restaurant opened, which he alleges was also based on his sexual orientation.

2He filed this Application with the Tribunal on April 9, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents filed three Responses to the Application (one of which was on behalf of both Rene Radzio and Daf’d Restaurants Inc.) denying any acts of discrimination. However, none of the respondents participated in the hearing of this matter, which took place on March 2, 2010.

3I am confident that the respondents were given notice of the hearing. A Confirmation of Hearing was sent to the corporate and individual respondents at the three addresses provided in their respective Responses. None of these Notices were returned to the Tribunal.

4The applicant did advise at the outset that he would not be seeking a remedy as against the corporation as he had information that it was in the process of going bankrupt.

FACTS

5The applicant was hired as an executive/senior chef at ZIO supper club (“ZIO”) on September 19, 2008. At the time of his hiring, ZIO had not yet opened. The applicant’s job duties included designing the menu, hiring staff to work in the kitchen and purchasing equipment for the restaurant. Although his official start date was September 25, 2008, the applicant testified that he started attending the premises to commence his planning activities on a part-time basis immediately upon hire.

6The applicant testified that at the time of his hiring, he had 15 years in the restaurant and hospitality industry. At the time, his most recent experience was as owner of Statlers, a piano lounge on Church Street in the heart of what is known as the “gay village,” which he opened in 2007. He had just completed the process of transferring ownership of Statlers in the summer of 2008 and was looking for a new opportunity when he interviewed for the position at Zio.

7The applicant testified that his first interview was with Sean Radzio, his second interview was with Larry and Rene Radzio, and his third interview was with all three personal respondents. The applicant said he described Statlers as a gay restaurant in his interviews with the respondents.

8ZIO was owned and operated by Daf’d Restaurants Inc., a corporation owned and operated by members of the Radzio family. The applicant described Larry Radzio’s role as the controller and part-owner, along with his wife. His two sons, Rene and Sean took a more active role in the restaurant: Rene was the general manager and Sean the bar manager.

9The applicant testified that the family nature of the enterprise appealed to him. His expectation following the interviews was that he would become part of the family and this, in part, influenced his decision to accept the position with Zio over another position he was interviewing for at that time. As executive chef, he would be responsible for what is described in the restaurant industry as the “back of the house” (i.e., the kitchen). His counterpart, a man by the name of “Alejandro” managed the “front of the house” which the applicant explained involved all aspects of interactions with the customers, including the service staff and bar. Both men reported to Rene Radzio in his role as general manager.

10At the time of his hire, the restaurant had not opened. The grand opening was scheduled for December 5; 2008; the “soft” opening was scheduled some two weeks earlier. In the two months prior to opening, the applicant, among other things, worked on menu items, ordered equipment and hired staff for the kitchen.

11In addition, the Radzio family had hired the 15 Group, a consulting firm that helps in the opening of new restaurants. Stuart Betterridge at the 15 Group worked closely with the applicant in anticipation of the opening of the restaurant.

12The applicant testified that things did not go smoothly from the outset. He expressed the view that the respondents were disorganized and unsupportive of his efforts. In addition, he testified that Rene and Sean made harassing remarks about his sexual orientation.

13Although he testified that the respondents knew that he ran a “gay” restaurant in his interview, he suggested that the respondents might not have known his sexual orientation, until he was using his personal computer with the wireless internet at work and some “pop ups” for a gay site made their way onto one of their scanners. In any event, he testified that the Sean and Rene were unfriendly to him thereafter.

14The first remark he recalls hearing was in mid-October, when he showed Sean a picture of a proposed place setting. He testified that Sean remarked “that’s so gay.” The applicant testified that he asked Sean not to use that terminology, to which he said Sean responded that he considers it wrong – that he was “not into men.” On another occasion, the applicant heard Sean make the same remark in relation to something that Sean was doing at the bar. The only other specific remark the applicant was able to recall was when Rene said to him “Why do you have to be so gay?”

15In addition, he said that Sean and Rene nagged and “nit-picked” him on a daily basis. He said they would criticize the actual dishes that he presented to them. On one occasion, they criticized him in front of the line staff he was training, which resulted in the staff being insubordinate to him. The applicant testified that the appropriate means of dealing with criticism would be to speak to him in private so as to maintain the respect of staff. By the end of his employment, he heard snickering when he passed by staff.

16The applicant testified that he spoke with Larry Radzio about the harassment on December 9, 2009. Larry indicated that he would speak to his sons about this; however, on December 10, 2009, the applicant’s employment was terminated. The applicant did not attribute his termination to the fact that he had spoken to Larry – indeed, he volunteered in his testimony that he found out after the fact that his replacement had been hired the week before his termination and that his termination had obviously been planned.

DECISION

17The applicant testified that he was subject to three overtly homophobic remarks and, around that time, disparaging treatment by both the respondents and staff of the restaurant. He also testified that he was an experienced restaurateur and chef and that the treatment leading up to and including the termination of his employment was unwarranted. This evidence was not tested by the respondents, who chose not to participate in the proceedings, and I find, therefore, that the applicant that he has made out a prima facie case of discrimination in employment on the basis of sexual orientation.

18Moreover, the respondents’ absence meant that I heard no evidence concerning the non-discriminatory explanations for their treatment of the applicant offered in the respective Responses. It would appear from the applicant’s testimony that the restaurant was in chaos and that attendance at both the soft and official openings was far lower than forecast. No doubt, this would have added to a stressful environment for which the applicant, rightly or wrongly, may have been blamed.

19However, in the absence of any evidence from the respondents, the applicant has met his burden of demonstrating on a balance of probabilities that both the disparaging treatment and the ensuing termination of his employment were based, at least in part, on his sexual orientation.

REMEDY

20The Tribunal’s remedial powers are set out in section 45.2 of the Code:

45.2 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 out to do to promote compliance with this Act.

21The applicant was unemployed for approximately 1½ months before finding new work. He is not seeking his wage loss for that period, having been paid two weeks’ severance, and having secured better-paying employment.

22He is, however, seeking damages for emotional pain and suffering, loss of dignity and hurt feelings against the personal respondents. He testified that in the latter part of November 2008, he was taken to the hospital for what was diagnosed as an ulcer, which he attributed to the stress of his employment. He said he continued to suffer from this condition on and off for approximately three to four months after his termination. The applicant testified that he had never been fired from a job before and this impacted on his self-esteem. Finally, he testified that while he had been openly gay in his previous employment, he is now more guarded about his sexual orientation since this experience.

23In total, the applicant sought $11,000.00 from the three personal respondents on the basis of the following break-down: $7,500.00 from Larry Radzio, $2,000.00 from Rene Radzio and $1,500.00 from Sean Radzio. As stated above, it is the applicant’s belief that the named company has gone bankrupt and ZIO Restaurant has gone out of business and, accordingly, he is not seeking damages from the company.

24On the face of the applicant’s testimony, there is nothing on which to base an award against Larry Radzio. The applicant testified that Larry Radzio was not involved in the day-to-day running of the restaurant, that he did not participate in any of the abuse and that when the applicant finally approached him at the very end of his employment, he did nothing to condone the actions of his sons, but rather suggested he would speak to them. He was deprived of the opportunity to do so because of the applicant’s precipitous termination, but the applicant did not suggest that his termination (which he believed was in the works prior to his conversation with Larry) was in any way related to this conversation.

25It is not clear on the evidence why the applicant would be seeking a lower amount from Sean Radzio than he is from Rene Radzio, other than the fact that Rene Radzio held a position of greater responsibility in the company. Both amounts sought are low in light of my findings and there is no reason for discounting them.

26In addition, this is an appropriate case in which to order pre and post-judgment interest.

ORDER

27The Tribunal makes the following Order:

1. Sean Radzio shall pay to the applicant $1,500.00 as compensation for injury to his dignity, feelings and self-respect;

2. Sean Radzio shall pay prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990 c. C. 43, on the amount set out in (1) from December 10, 2008, the date on which the applicant’s employment was terminated;

3. Rene Radzio shall pay to the applicant $2,000.00 as compensation for injury to his dignity, feelings and self-respect; and

4. Rene Radzio shall pay prejudgment interest in accordance with the Courts of Justice Act on the amount set out in (3) from December 10, 2008, the date on which the applicant’s employment was terminated.

[28] In the event that the respondents, Sean Radzio and Rene Radzio, fail to make the respective payments described in (1) through (4) above within 30 days of the date of this Decision, the respondents shall pay postjudgment interest on the individual amounts owing in accordance with the Courts of Justice Act.