HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlie (Joo Suck) Bang

Applicant

-and-

Kam Long Seafood Co., Frank Cheng, Li Xin (Sam) Cai and Zing Rong Li

Respondents

DECISION

Adjudicator: David Muir

Date: September 28, 2010

Citation: 2010 HRTO 1971

Indexed as: Bang v. Kam Long Seafood

AppearanceS BY

Charlie (Joo Suck) Bang, Applicant ) Self-represented

Kam Long Seafood Co., Frank Cheng, ) Frank Cheng, Li Xin (Sam) Cai and Zing Rong Li, Respondents ) Representative )

[1] This Application was filed on January 12, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges discrimination in employment on the basis of race, ethnic origin and disability. The applicant also alleges a breach of settlement and reprisal.

[2] A hearing was held on July 14, 2010 in Toronto. I heard the evidence of the applicant as well as the three individual respondents. A Cantonese interpreter was present for the assistance of the respondents. The applicant does not speak Cantonese and does not speak English well, but clearly understood the proceedings and questions being asked of him.

[3] The applicant alleges that his right to be free from discrimination in employment on the basis of his race and ethnic origin was infringed by the respondents. The applicant self identifies as Korean. The respondents self identify as ethnic Chinese. The applicant also alleges that his right to be free from discrimination on the basis of a disability or perceived disability was infringed by the respondents. I heard no evidence with respect to disability. The applicant further alleged a breach of settlement and reprisal. I heard no evidence of a settlement that might have been breached nor was there any evidence of a reprisal on the part of the respondents.

[4] The Application is dismissed. My reasons for this conclusion follow.

[5] The applicant evidently sincerely believes that he was subject to discrimination contrary to the Code in this workplace, but more than a sincere belief is required to establish discrimination. After hearing the evidence of the applicant, I have concluded that there is no evidence to support the applicant's central claim that he was subject to discriminatory treatment because of his ethnic origin and race.

[6] The parties agree that the applicant was employed by the respondents to sell fish and seafood. He was hired in part because of his connections to the Korean community and his experience with Korean restaurants. There is no dispute that the applicant told the respondents that he had a client list of 300 or so potential customers who he could bring to his new employer. What is also clear is that none of the principals involved in this dispute spoke English well but that it was the language used to communicate with each other. It is impossible to imagine that misunderstandings were not quite common in this workplace.

[7] The applicant's allegations in the complaint which were reiterated at the hearing are as follows:

a. The respondent employer did not live up to its agreement on salary made at the time of his hiring on or about February 26, 2007.

b. On June 7, 2007, the respondent Cai refused to make a delivery for the applicant. An argument ensued and the police were called by the applicant.

c. The applicant alleges that Cai accused him of lying about the reasons for the applicant's departure from his previous employment. The applicant alleges that Cai stated that respondent Cheng had told him that he was let go by his previous employer because of a disability.

d. Over the course of his employment, the applicant heard complaints from his Korean clients that the corporate respondent was overcharging them.

e. The applicant alleges that the owner of the corporate respondent Mr. Li complained to him about his clients. It is alleged that the respondent Li said that Korean customers were poor and did not pay their bills on time while Chinese customers were rich and paid in cash.

f. On October 1, 2007, the applicant received a complaint from a customer that it had been overcharged. The applicant passed the complaint on to the respondent Cheng who said that the mistake was that of the applicant. An argument ensued and the applicant called the police who did not attend the scene.

g. On October 2, 2007, the applicant alleges that the respondent Cheng was disrespectful and brushed his arm on two occasions in the course of an argument about the issue raised the previous day and other problems. The applicant says that he quit his employment – the respondent stated that he was fired.

[8] I find that the allegations considered singly or taken together and accepted in their entirety are not sufficient to support a finding of discrimination under the Code. For example, a dispute about what the applicant ought to have been paid, in the absence of any evidence that the decision making of the respondent was informed by the applicant's race or place of origin is not evidence of a violation of the Code. Equally the allegation, if accepted, that a fellow employee accused the applicant of lying about the real reason for his leaving his prior employment is not a violation of the Code. There is also no evidence that the applicant was subject to differential treatment because of a disability or perceived disability.

[9] At the heart of this workplace dispute was an ongoing controversy about the applicant extending credit to his customers contrary to the corporate respondent's practice of dealing on a cash basis for the most part. It was agreed that the applicant was told of this policy and that if the applicant extended credit to a customer, he was to speak to the respondent Cheng about it first. The applicant does not seem to have complied with this directive. It was bad for business in his view. More importantly for our purposes, the applicant asserts that this policy only applied to the respondents' Korean customers. The applicant conceded that he had no evidence that the Korean customers of the respondent were treated any differently than any other of the company's customers.

[10] The applicant also asserts that the respondents cheated the Korean customers. There is no evidence that this was the case. In any case, cheating or unethical business practices are not a violation of the Code.

[11] The only allegation that on its face makes any connection with a prohibited ground under the Code is the alleged statement of respondent Li that Korean restaurant owners are poor and do not pay their bills on time, while Chinese restaurant owners are rich and pay cash.

[12] I find that even if stated in this way such a statement on its own does not amount to a violation of the applicant's rights under the Code. In coming to this conclusion, I have considered the undisputed fact that there was an ongoing dispute about the applicant's extending credit to his clients contrary to the practice of the employer. I have also considered that none of the respondents, in particular Mr. Li speak much English at all, so that it is entirely unclear what might have actually been said. In short, given the context of an ongoing issue of the applicant's clients not paying their bills and his continuing to extend credit combined with the fractured English in which all of this would have been communicated, it would be impossible to conclude that such a remark constituted differential treatment on the basis of race and ethnic origin.

[13] The evidence of all of the witnesses also established that there was a level of conflict in the workplace concerning the applicant's performance. As indicated above, the applicant was hired because he claimed that he could bring in many of his 300, largely Korean, customers. It is not disputed that he was only able to get 30 or 40 at most of his clients to his new employer and the respondents claim to have lost money on the applicant. They were not happy with him. It is also not disputed that there was an ongoing concern about the applicant's extension of credit to his customers. In the absence of any real evidence of differential treatment of the applicant, the essentially undisputed evidence of the respondents on these points is more than enough to establish rational non-discriminatory reasons for all of the respondents' actions.

[14] As regards the culminating events on October 1 and 2 which resulted in the termination of the applicant's employment either by his quitting or being fired, there is no evidence of any discriminatory conduct by the respondent Cheng. What is clear is that the applicant and the respondent Cheng were in a dispute about a customer complaint. It might have become heated. However, the applicant's complaint largely relates to his underlying belief that the company was cheating its customers. As indicated earlier there is no evidence that this is the case and equally no evidence that its Korean clientele was treated differently than any other customers. As regards the allegation that the respondent Cheng hit him on the arm and referred to him in a disrespectful way during this argument, I find that even if accepted, at their highest the allegations do not constitute a violation of the Code.

[15] For all of these reasons the Application is dismissed.

Dated at Toronto, this 28^th^ day of September, 2010.

"Signed by"

David Muir

Vice-chair