HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asha Ankamah

Applicant

• and-

Chauhan Food Services Inc., Chander Shekhar Chauhan and Shalini Chauhan

Respondents

decision

Adjudicator: Naomi Overend

Date: October 5, 2010

Citation: 2010 HRTO 2024

Indexed as: Ankamah v. Chauhan Food Services

APPEARANCES

Asha Ankamah, Applicant ) Self-represented

Chauhan Food Services Inc., ) Evan Van Dyk, Chander Shekhar Chauhan and ) Counsel Shalini Chauhan, Respondents )

INTRODUCTION

1The applicant, Asha Ankamah, worked four days a week, generally alone, at a Tim Horton’s kiosk located within a larger retail store. She received a note from a regular customer, whose identity was unknown to her, expressing a sexual interest in her. The applicant takes the position that this customer’s conduct, coupled with the reaction of the respondents to her disclosure of that conduct, poisoned her work environment and forced her to quit her job.

2Following her decision to leave the corporate respondent, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This case is about the appropriateness of the respondents’ response to the internal complaint of the applicant.

FACTUAL BACKGROUND

3The applicant worked at the Tim Horton’s kiosk owned by the corporate respondent, located in a RONA store located at 110 West Toronto Street until the events giving rise to this Application in May 2009. Her hours of work were from 6:30 a.m. to 2:00 p.m., Tuesday to Thursday, and 2:00-7:00 p.m. Sunday. She was, in addition, a full-time student at York University.

4The kiosk is owned by Chauhan Food Service Inc., which is also the franchisee owner of the Tim Horton’s store located nearby at 895 Jane Street. Danesh Irani was the store manager for both the store on Jane Steet and the kiosk. Both Shekhar Chauhan and Shalini Chauhan, the named individual respondents, participated in the management of the two locations. Shekhar is part-owner and Shalini is his daughter.

5The applicant attended for her usual shift on Wednesday, May 6, 2009. At approximately 11:30 a.m., her manager, Danesh, arrived with a delivery of baked goods. There were several customers in line, so he assisted the applicant by preparing the orders while she keyed them in and handled the money. The last customer in line, a person the applicant recognized as a regular during her weekday shifts, approached the applicant and ordered a coffee. This individual (“the customer”) wore a TTC uniform and the applicant believed him to be a bus driver.

6After being served, the customer then went and sat nearby to drink it. While the applicant cleaned up the work area, she observed Danesh approach the customer and strike up a conversation with him. Danesh testified that the applicant introduced the customer to her, an assertion which the applicant vehemently denied in her testimony. In light of the testimony that follows, I find it highly improbable that this introduction took place.

7Approximately 10-15 minutes after Danesh left, the applicant noticed the customer was in line again. When it was his turn, he did not place an order, but simply said “bye” and handed her a note on which he had written the following:

Hi, me the bus guy.

You probably figured it out already. You are very attractive, well, i happen to think so. To be honest it’s a sexuall [sic] attraction take this as a compliment. i didn’t want to embaress [sic] you at work so i wrote it all down.

Have an awesome day. Take care,

8The signature at the bottom of the note was illegible. Although the customer was known to the applicant, she did not know his name. He had been coming to the kiosk during her weekday shifts for three months, but they had never conversed beyond her taking his coffee order.

9When she saw the note, the applicant felt violated and upset. During the preceding three months, she had observed the customer sitting at the bench immediately adjacent to the donut case and sometimes watching her, a behaviour that took on a new significance after the note.

10The kiosk was a single employee operation, which meant that, with the occasional exception of a visit by her manager, the applicant worked alone. In order to prepare coffee, she had to turn her back on the front counter and any potential customers. Upon receipt of the note, she testified that she was so nervous that she was concerned about her ability to handle the hot coffee. She was also very apprehensive when any men who resembled the customer approached her, thinking that it might be the individual who had given her the note.

11The applicant worked until the end of her shift at 2:00 p.m. She testified that a RONA employee noticed her distress and asked what was wrong. This employee reported it to RONA security who spoke to the applicant. However, because the incident had not taken place on RONA property, security advised her that this was something she needed to report to Tim Horton’s management.

12The applicant phoned Danesh at the end of her shift and read him the contents of the note. Danesh responded sympathetically at the outset and said that he would attend at the kiosk the next morning and pick up the note. The applicant interpreted this that he would be there first thing in the morning. She then left to go to school.

13That evening, she and her boyfriend Glen spoke to a police officer from 31 Division. The applicant said the officer advised her that in order for the police to become involved it had to be a series of incidents.

14Danesh did not appear until midday when he came with his usual delivery of baked goods. The applicant had been extremely nervous about going into work and testified that she was very upset when Danesh did not come first thing, leaving her feel unprotected at the kiosk. She also wondered why no one from management had contacted her to inquire how she was doing.

15Her boyfriend, Glen, came to her work around 11:30 a.m. to tell her that he had spoken with TTC personnel about the incident and they indicated they would take action if the applicant could identify the individual involved. When she spoke to the TTC representative, the applicant was told that if she ever saw the customer driving a bus she was to take down the vehicle number and let the TTC know.

16Glen was present at the kiosk when Danesh arrived. He asked if Danesh could arrange to have a copy of the security video so they could identify the customer. Danesh advised them that he did not know, but he would ask. He asked for a copy of the letter. The applicant testified that she handed him a copy, while Danesh testified that she only had the original, which she refused to hand over at the time. It is unnecessary to resolve this conflict in the evidence as it is clear that the respondent was aware of the contents and did get a copy of the letter, whether on that date or the next.

17The applicant and Glen both testified that Danesh read the letter and suggested to Glen that if he ever saw the customer, he should punch him out. Both felt this was an inappropriate suggestion. Danesh testified that Glen was very upset and threatening to go to the newspapers if something was not done about the situation. However, his computer log notes, which were entered into evidence, do not reflect this taking place on May 7, but rather on May 12, 2009. While Glen may have been upset, I find that it was only in the context of being concerned for the applicant’s well-being.

18Shalini testified that she first learned about the incident from Danesh on May 7, 2009. The applicant’s next scheduled shift was in the afternoon/evening of Sunday, May 10, 2009, at which time Shalini drove out to the RONA store to speak with her. Unbeknownst to her, the applicant had called in sick that day.

19The applicant did come in for her next scheduled shift on Tuesday, May 12, 2009. Danesh arrived at the store with the usual midday delivery. The applicant says that when she asked Danesh what management’s response to the incident was, he said the incident was “personal.” He also said to her that it was Tim Horton’s policy that if a customer hands employees anything other than money they are not to take it. The applicant said that she had never been trained on such a policy, and questioned it immediately because deaf customers sometimes communicate their orders with notes.

20As the applicant was talking to Danesh, Glen arrived at the store. He asked Danesh about the video. Danesh testified that Glen was speaking in an aggressive fashion and to diffuse the situation he phoned Shekhar, the owner, who told him that Tim Horton’s could only hand over the recording if they had a written request from the police. He spoke briefly to Shekhar and then gave Glen the phone so he could speak to him. After Glen spoke to him, he gave the phone to the applicant who also briefly spoke with Shekhar. She understood from the conversation that it was the owner’s position that they could not hand over the recording for privacy reasons. She also said that Shekhar questioned her about whether she had seen the customer write out the note.

21In the midst of this, Shalini arrived to speak with the applicant. This conversation took place on the bench by the donut case, while Danesh served the customers. Glen, who Shalini asked to leave, was at the periphery of the space occupied by the kiosk. Periodically, the applicant got up and spoke with him during the course of the conversation.

22Both the applicant and Glen testified that Glen was speaking in a normal tone, whereas both Shalini and Danesh testified that he was speaking in a loud and aggressive fashion and was threatening to go to the media. Glen testified at the hearing that his tone was no different than it was during his testimony, but to an outside observer, his tone while testifying could also be described as agitated and aggressive. He spoke loudly and quickly, particularly when testifying about something he found upsetting. Moreover, he talked over and interrupted the person questioning him when he disagreed with something that was being suggested.

23Shalini testified that when she met with her that day, the applicant told her how upset she was. She recalled at one point that the applicant spoke about colonial oppression of black women slaves, who she said were viewed as sex objects. (The applicant self-identifies as black, although noting further that the “notion of race makes [her] feel uncomfortable.”) Shalini spoke to the applicant about turning over the video to the authorities, and specifically advised the applicant to get the badge number and contact information for the police officer. She gave the applicant her cell phone number as well as her father’s and asked the applicant to leave a voice-mail message with the information if she was not able to reach them.

24In addition, Shalini testified that she offered to have the customer banned once he was identified, something which she recalled them doing at one of their other locations. In the meantime, she also offered to move the applicant to their Jane Street store, during the weekday shifts when the customer was known to frequent the kiosk. They made arrangements for the applicant to start at the Jane Street store the next day.

25The applicant had a different recollection of the conversation. She said that Shalini told the applicant that she regarded the note as personal, but not threatening. She also said it was a matter of freedom of speech. The applicant vehemently disagreed that Shalini told her that they could ban the customer from the store. In this regard, I prefer the testimony of Shalini over that of the applicant. The applicant was extremely upset in the wake of her conversations with Danesh and Shekhar and this seems to have influenced what she heard at this time.

26Shalini’s actions suggested that she took the matter very seriously, which is at odds with her telling the applicant that the note was personal. It also makes sense that she would have told the applicant that they could ban the customer from the store (once he was identified) since this is option that they had used before with a problematic customer and would be an obvious response to the situation.

27The applicant agreed that Shalini did tell her that the respondents would turn over the tape to the police, but that she needed to get contact information on the officer to Shalini so the respondents could do that. The applicant testified that she told Shalini she was considering quitting and it was only this threat that prompted Shalini to offer her work at the Jane Street store. I do not need to resolve this factual dispute as the salient element of this exchange is that Shalini offered to move her to Jane Street store and, in fact, made arrangements for the applicant to work there the next day, before the conversation between the two ended.

28The applicant did not return to work after this day. She did not show up at the Jane Street location for either of the two shifts she was scheduled to work, and handed in her resignation on the weekend that followed. She testified that she felt the respondents were blaming her for the incident and this made her feel violated a second time.

29Shalini testified that she phoned the applicant on Thursday, May 14, 2009 to ask why she had not come in for her two scheduled shifts, and why she had not phoned with the contact information for the police. She phoned her a further time after receiving the applicant’s resignation letter on May 17, 2009. The applicant did not call her back.

30It is not clear precisely when this took place, but the applicant had a second conversation with the police at 31 Division who said the matter would be transferred to 11 Division because that is where the incident took place. She did not hear from anyone at 11 Division and did not follow-up with the police. She did not recall ever getting a badge number for any police officer and does not dispute the respondents’ position that she never supplied this information to them, although they had requested it.

31While awaiting the contact information for the police officer from the applicant, Shalini discovered that there was no video recording for the relevant period from the Tim Horton’s system, and so had followed-up with RONA on May 12, 2009 (i.e., the same day as her meeting with the applicant) in order to secure their surveillance tape. However, as she did not hear back from the applicant, she made no further arrangements.

DECISION AND ANALYSIS

32It was not disputed by the parties that, as an employee of Tim Horton’s, the applicant had the right to be free from discrimination or harassment where the perpetrator is a customer (as opposed to an employee or member of management). The respondents acknowledged their responsibility to act when the applicant advised them of the conduct of the customer. The question in this case is not whether there was an obligation to act, but whether their actions were sufficient.

33While each case is dependent on its facts, the cases have attempted to articulate a series of principles by which to judge the reasonableness of an employer’s response when such conduct is brought to their attention. Broadly speaking, employers must act in a fashion to demonstrate the following:

a. They are aware of the issues of discrimination and harassment;

b. They take complaints seriously once a complaint is brought to their attention; and

c. They act to resolve the complaint and communicate that result to the persons complaining.

34With respect to the first criteria, it would appear that the respondents were generally aware of the issues of discrimination and harassment. The respondents filed their harassment policy, on which they say every employee is trained and required to acknowledge by affixing their signature saying they understand and agree with the policy. There is a complaint mechanism in place, although not one that specifically deals with the issue of customer conduct.

35The applicant did not appear to take issue with respondents’ policy, but took the position that the respondents’ response was inadequate once she advised them of the problem. She was very upset with Danesh’s failure to come to the kiosk first thing on the morning following her report, management’s failure to enquire about she was doing that day and then what she perceived as the attitude of each of the respondents’ three witnesses, which suggested that the conduct was not that serious and also that she was somehow to blame for the fact that it occurred.

36It is clear that the applicant was extremely upset by the customer’s note and the circumstances surrounding it (especially, that he was a regular customer, who made it a habit of sitting nearby while he drank his coffee). It is also clear that she conveyed how upset she was to Danesh, her manager.

37He failed to offer an explanation concerning why he did not come first thing the next morning or even the afternoon the applicant reported the incident to him (the two facilities are reportedly only a five minute drive apart). I agree with the cases that state that the standard by which an employer’s response is judged is not perfection, and had the delay in meeting with the applicant been the only issue, this would not have attracted any liability.

38However, it concerns me that Danesh did not advise the two personal respondents of the incident until after he been to the store and heard from the applicant and her boyfriend that they wanted the security tapes to identify the customer. During that initial meeting on May 7, 2009, he did not enquire of the applicant what he could do to ensure her safety or well-being and offered no reassurance to the applicant that he would do anything other than enquire about the videos.

39Even if he had not picked up on the applicant’s tone on the telephone when she reported the incident, I am satisfied that the applicant and her boyfriend conveyed to Danesh just how traumatic the applicant found the situation in that first meeting. His suggestion that Glen punch out the customer carried with it the suggestion that the problem was something appropriately resolved personally by the applicant (or those close to her) rather than by the respondents.

40Danesh’s next meeting with the applicant, which took place on May 12, 2009, did little to reassure her that the corporate respondent was taking the issue seriously. Again, he did not make a special trip to the applicant’s worksite, even though the two outlets are very close, but waited until he was doing his delivery. Then, once he was there, his suggestion that the situation was “personal” and that the applicant was somehow to blame for accepting the note from the customer, served only to inflame the situation and tell the applicant that the company was not accepting any responsibility for ensuring she worked in a safe environment.

41The phone conversation with Shekhar, which took place immediately following this conversation, did little to reassure the applicant. I accept that Shekhar told the applicant that he could not hand over the video recording without a written request from the police for privacy reasons, but I also accept that what the applicant heard was that the respondents were not prepared to hand over the video for privacy reasons. I also accept the applicant’s testimony that Shekhar asked the applicant whether she had seen the customer write out the note, which would have conveyed his doubt about whether the customer was even a threat to her.

42It is unfortunate that the conversation with Shalini took place immediately following because it would appear that the applicant heard everything Shalini said through the filter of what had just been said. However, even if the applicant did not hear that the respondents would be willing to ban the customer (once his identity had been established) and thought that Shalini had said that the note was not threatening, she was aware by the end of the conversation that (a) the respondents were willing to hand over the video with the necessary authorization; and (b) the respondents were prepared to move her to another store immediately.

43I find that once Shalini became involved, that the respondents did take the complaint seriously. Her actions in coming to the store on the applicant’s next scheduled shift (even though she was unable to meet with the applicant), and then the next shift after that, her sitting down and talking to the applicant and her enquiries about accessing first Tim Horton’s and then RONA’s security video tapes all suggest that she dealt with the applicant’s internal complaint promptly, sensitively and reasonably.

44Moreover, I accept that, to the extent possible in the circumstances where the identity of the perpetrator was unknown, that Shalini worked towards a resolution that would ensure a healthy work environment for the applicant. Clearly her efforts to communicate with the applicant on their first and only meeting met with mixed results, but she was able to convey that the respondents were taking action. Moreover, the applicant foiled all future attempts at communication by not coming in to work and then not responding to any of the phone messages left for her by Shalini.

45In summary, the organizational respondent is liable to the extent that the applicant’s store manager failed to respond in a prompt and sensitive manner to the applicant’s disclosure of the incidents, thus leaving the applicant to believe for several days that her employer was not prepared to create a healthy, safe and discrimination free environment for her. This changed once the personal respondent, Shalini, became involved, but by then the previous actions of the manager had made the applicant view the respondents’ actions with suspicion.

REMEDY

46In her Application, the applicant sought $1,500.00 for the emotional suffering she experienced and $4,000.00 for the financial loss arising from the discrimination. The applicant testified that after she quit her job with the corporate respondent, she was unable to secure other employment. It is unnecessary for me to discuss that applicant’s efforts to mitigate her losses as I find that she is not entitled to any wage loss arising from the infringement.

47Other than stating that she was “uncomfortable” going to the Jane Street store and that she continued to feel like she was being blamed for the incident with the customer, the applicant provided no other explanation for why she was not prepared to work her weekday shifts at the respondent’s other location. The applicant’s valid concern about encountering the customer while working by herself at the kiosk would have been addressed by the assignment to the nearby store. She had no reason to believe the customer frequented the Jane Street location and, in any event, there were always at least six other employees working at that location. Her refusal to work her assigned shifts at the other, apparently safer location was unreasonable.

48With respect to compensation for the injury to the applicant’s dignity, feelings and self-respect, she is entitled to damages for the period during which the store manager was involved in responding to her concerns. From the applicant’s perspective (and, in fact, objectively), Danesh’s words and conduct conveyed to her that her employer was not prepared to seriously consider her concerns or provide a healthy, safe and discrimination-free environment.

49It is understandable (if not reasonable) that the applicant continued to believe that her employer was not properly responding to her concerns at the conclusion of the meetings on May 12, 2009, but her precipitous decision to quit rather than see if something could be worked out, coupled with her refusal to communicate with the respondents after that point, deprived the parties of the opportunity to work things out.

50The short duration during which the applicant was subject to this discriminatory treatment would militate in favour of a small award. On the other hand, the evidence suggests that the applicant was very distressed by her manager’s attempt to minimize the conduct and even suggest that she was partly to blame. Considering all the factors, it is my view that an award of $1,000.00 is the appropriate level of compensation. Given that I have made no findings vis-à-vis the personal respondents, this amount is payable by the corporate respondent.

ORDER

51The respondent, Chauhan Food Services Inc. is ordered to pay to Asha Ankaman the following amounts:

1. $1,000.00 as compensation for injury to her dignity, feelings and self-respect;

2. Prejudgment interest on the $1,000.00 in accordance with the Courts of Justice Act, R.S.O. 1990 c. C. 43, from May 7, 2009; and

3. In the event that the respondent fails to make the payments described above within 30 days of the date of this Decision, the respondent shall pay postjudgment interest in accordance with the Courts of Justice Act.