Bright (Zeguo) Qiu v. Gail Neilson and Douglas Moore, 2010 HRTO 2359

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bright (Zeguo) Qiu Applicant

-and-

Gail Neilson and Douglas Moore Respondents

DECISION

Adjudicator: Mark Hart Date: November 29, 2010 Citation: 2010 HRTO 2359 Indexed as: Qiu v. Neilson

APPEARANCES BY

Bright (Zeguo) Qiu, Applicant ) Self-represented Gail Neilson and Douglas Moore, ) Self-represented Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990 c.H.19, as amended (the Code), dated January 6, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on May 25, 2006.

2The applicant alleges that he experienced discrimination in employment because of his race and ethnic origin contrary to sections 5(1) and 9 of the Code, arising out of his brief employment as a delivery person for a company called Up Front Courier in late December 2005.

3The hearing in this matter was held on July 28, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and the two personal respondents. Also on consent, cross-examination was deferred pending completion of my questioning of all witnesses.

4The applicant was employed as a delivery person for Up Front Courier from December 19 to 23, 2005. The personal respondent Douglas Moore was the dispatcher for the company, and the personal respondent Gail Neilson was a co-owner of the company. The company itself was sold in 2008, and is not a respondent to this proceeding.

5The applicant first alleges that he experienced differential treatment in relation to the amount that he was paid for his work. When he was hired, he responded to an advertisement placed in a publication called the Sing Tao Daily which stated that a driver would earn $700 to $1,000 per week. The applicant states that he worked for the company for four days for over 36 hours, and was only paid $165.

6The respondents’ evidence is that delivery persons working for the company could and did earn up to $700 to $1,000 per week. However, the delivery persons were paid on the basis of a percentage of payments for deliveries made, and how much an individual delivery person would earn depended entirely upon how many deliveries they made. Mr. Moore testified that with a new delivery person like the applicant, he would assign relatively fewer deliveries in the initial stages while the person got used to the job and the routes. As a delivery person demonstrated that they could handle the job, he or she would be assigned more deliveries and hence would earn more money. I do not find any basis in the evidence to support the applicant’s allegation that he was paid less money because of his race or ethnic origin, or was treated any differently than any other new delivery person working in his first week.

7The applicant next alleges that he was not paid for part of his work. The basis of this allegation is that on December 22, 2005, Mr. Moore asked another delivery person to deliver 8 boxes that the applicant had picked up and that on December 23, 2005 the respondents took from him 8 boxes that were in his van for delivery. The applicant states that this was in violation of the broker agreement that he had signed with the company.

8With regard to the transfer of packages to another delivery person on December 22, 2005, Mr. Moore testified that these were time sensitive packages for a major client that needed to be delivered that day. The request to transfer the packages was made late in the afternoon on December 22, 2005 in an effort to try to deliver these packages before the receiving businesses closed for the day.

9With regard to the packages taken from the applicant’s van on December 23, 2005, the applicant’s evidence is that as a result of the events of December 22, 2005, he had decided to quit his employment. Mr. Moore’s evidence is that as a result of these events, he had decided to fire the applicant and that is why he requested that the applicant attend at the company’s premises on December 23, 2005. Either way, whether the applicant quit or was fired, the employment agreement between the applicant and the company was at an end as of the morning of December 23, 2005.

10The applicant’s evidence is that, notwithstanding that he had quit his employment, it remained his responsibility to complete the delivery of the packages in his van and he should have been allowed to do so and should have been paid for this. The respondents’ position is that, once the applicant’s employment with the company had ceased, they needed to retrieve the boxes from the applicant in order to ensure that they were properly delivered. I will discuss below in greater detail the events of December 23, 2005, but at this stage it suffices to say that the evidence does not support the applicant’s allegation that either the transfer of boxes for delivery by another delivery person on December 22, 2005 or the retrieval of boxes from the applicant on December 23, 2005 amounts to discrimination because of the applicant’s race or ethnic origin. Rather, I find that the respondents were acting in the context of the company’s business to ensure proper and timely delivery of packages.

11The applicant alleges that Mr. Moore often made him drive empty or go back and forth on the road on purpose. The applicant’s evidence is that on some occasions, he would be asked to drive long distances from his drop-off point in order to pick up the next package rather than being assigned a pick-up in the area where he has just dropped off a package, and that on other occasions he would be told to drive to a location for a pick-up and then the order would be cancelled.

12Mr. Moore’s evidence is that the assignment of pick-ups depends upon when an order comes in to the company. If there are no unassigned orders in the drop-off area, a pick-up will be assigned in another area, which necessitates the delivery person driving with an empty vehicle to her or his next pick-up. With regard to cancellations, pick-ups are assigned at the time the order is placed, and if a cancellation is made at some later point, then this will result in the driver no longer being required to attend at the pick-up location, even though the driver may already have travelled some distance to get to that location. I do not find that the evidence supports that this was done by Mr. Moore for any reason related to the applicant’s race or ethnic origin, but rather was done in the normal context of the courier business.

13The applicant alleges that Mr. Moore put him in danger by calling the applicant on his cell phone, despite the applicant having told Mr. Moore that he was afraid to answer his cell phone while driving. The applicant states that when he turned his cell phone off, Mr. Moore yelled at him loudly to force him to turn it on. Mr. Moore’s evidence is that he required confirmation from his delivery people of pick-ups and drop-offs, and was not always able to reach the applicant directly for this purpose or for other business matters. As a result, Mr. Moore states that he would call the applicant on his cell phone to speak with him. There was no evidence before me that Mr. Moore treated the applicant differently than any other delivery person in this regard. Accordingly, I find no basis in the evidence to support the applicant’s allegation that this amounts to discrimination because of his race or ethnic origin.

14The applicant states that on December 22, 2005, in relation to the transfer of packages to another delivery person, he attempted to call Mr. Moore in order to confirm the direction to make the transfer. Apparently, Mr. Moore had spoken with the other driver and conveyed the direction to him, but had not spoken directly with the applicant. The applicant was of the view that he required direct communication of the instruction to make the transfer, as the packages that he had picked up were his responsibility under the broker agreement. The applicant states that when he ultimately spoke with Mr. Moore about this, the applicant asked Mr. Moore to let him know the next time he was to transfer packages to another delivery person. The applicant states that in response, Mr. Moore yelled at him and said that the applicant had no right to tell him what to do. The applicant states that he found this to be demeaning.

15Mr. Moore states that he does not recall this exchange with the applicant. In any event, it is clear from the evidence that by this point, Mr. Moore had become frustrated with the applicant and had decided to terminate his employment. Mr. Moore’s evidence is that this is why he asked the applicant to come to the office the following morning. Even if Mr. Moore did express his frustration to the applicant and even if he could be described as having yelled at the applicant on this occasion, that in itself is not sufficient to establish a violation of the Code. In order for the applicant to establish a violation of the Code, there must be evidence to support some nexus or connection between the adverse treatment and the grounds of discrimination alleged, namely race or ethnic origin. That nexus or connection is absent here. Rather, the evidence indicates that there was frustration on both sides with how the employment relationship was going, which may have contributed to Mr. Moore’s manner in speaking to the applicant. The evidence does not support that this had anything to do with the applicant’s race or ethnic origin.

16The applicant’s next allegations relate to the events of December 23, 2005. As stated above, the applicant had decided to quit his employment with the company and had gone to the company’s offices on the morning of December 23, 2005 to communicate his decision. At the same time, Mr. Moore states that the evening prior, he had decided to terminate the applicant’s employment, and had asked him to come to the office on the morning of December 23, 2005 so that he could communicate to the applicant that his employment was terminated. As stated above, whether the applicant quit or was terminated, I find that his employment with the company ended when he arrived at the company’s premises on the morning of December 23, 2005.

17At this time, the applicant still had 8 boxes in his van which he had picked up the previous day and which had not yet been delivered. The applicant’s view is that under the terms of the broker agreement, it was his responsibility to complete the delivery of these packages and he also wanted to be paid for this. The respondents’ view is that, as the employment relationship had ended, the packages needed to be given to another driver for delivery. This difference in view is what precipitated the ensuing events.

18There is no dispute that the applicant left the company’s office to go to his van without agreeing to hand over the packages to the respondents. There also is no dispute that the respondents had no intention of allowing the applicant to leave with the packages, which were time sensitive and had come from one of the company’s largest customers. The respondents proceeded to block the applicant’s van from leaving, first by Ms. Neilson getting in the way of the van and then by having other vehicles move to box the applicant in. A call was then made to the police who attended the scene. A physical confrontation followed involving one of the police officers and the applicant, which was the subject of a separate Application and previously has been addressed by this Tribunal, 2009 HRTO 2187. As a result, what occurred between the applicant and the police and any allegations raised by the applicant against the police are not before me.

19The issue before me is whether either of the two respondents discriminated against the applicant because of his race or ethnic origin in relation to the events on the morning of December 23, 2005. I find that they did not. Rather, the events that transpired that morning arose out of an employment dispute relating to the proper custody of the packages in the applicant’s van. In my view, the employment relationship having ended, whether by the applicant quitting or having been fired, the terms of the broker agreement were no longer applicable and the applicant should have transferred the packages to the company. It was the applicant’s failure to do so, and not his race or ethnic origin, which set the subsequent events into motion.

20The applicant alleges that Mr. Moore told a “tall guy” to “beat him” when the applicant was leaving the company’s office. I do not accept this evidence. I find that the respondents’ only concern at that time was to retrieve the packages from the applicant’s van, so that proper and timely delivery could be affected by one of the company’s drivers. The applicant also alleges that Ms. Neilson struck [the complaint says “stroked”, but I understand the applicant to mean “struck”] and kicked his van. This is denied by Ms. Neilson. However, even if Ms. Neilson did do this, once again I find that it was due to her concern to gain possession of the packages in the applicant’s van, and is not attributable to the applicant’s race or ethic origin.

21The applicant alleges that after the respondents forced the unloading of the boxes from his van, they had his van towed at his expense. The evidence indicates that in fact, the transfer of the boxes from the applicant’s van to the respondents was arranged by the police in exchange for the applicant receiving his pay, and that it was the police who had the applicant’s van towed.

22The applicant finally alleges that the respondents made false allegations against him which caused him to be charged by the police. This allegation is not supported by the evidence. The evidence indicates that the police were called at the behest of the respondents due to the dispute over proper custody of the boxes. In my view, it was appropriate for the respondents to involve the police in the circumstances, rather than trying to deal with the matter themselves. The charges laid by the police resulted from the subsequent interaction between the applicant and the police, and it was the police who made the decision to lay these charges. The evidence does not support that the respondents played any role in the police decision to lay charges.

23The applicant points to what he describes as inconsistencies and false allegations made by the respondent in the interview statements they gave to the police. I have carefully reviewed what the applicant has described as inconsistencies and false allegations. In my view, the statements given to the police represent the respondents’ efforts to describe fast-paced and rather chaotic events on the morning of December 23, 2005, and do not support any finding that they conspired with the police to have charges laid against the applicant. In any event, there is nothing in the evidence regarding the events of December 23, 2005 which supports that any actions were taken by the respondents because of the applicant’s race or ethnic origin. Rather, as stated above, the evidence indicates that it was the dispute between the parties over the proper custody of the boxes which led to the actions taken on that morning.

24For all of these reasons, the evidence does not support that the applicant experienced discrimination by the respondents because of his race or ethnic origin, and the Application therefore is dismissed.