Pieters v. Peel Law Association, 2010 HRTO 2411

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Selwyn Pieters Applicant

-and-

Peel Law Association and Melissa Firth Respondents

A N D BETWEEN:

Brian Noble Applicant

-and-

Peel Law Association and Melissa Firth Respondents

DECISION

Adjudicator: Eric Whist Date: December 3, 2010 Citation: 2010 HRTO 2411 Indexed as: Pieters v. Peel Law Association

APPEARANCES

Brian Noble, Applicant ) Self-represented Selwyn Pieters, Applicant ) Mary Guiao, Student-at-law Peel Law Association and Melissa Firth, ) Andrew Pinto, Counsel Respondents )

1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Tribunal File 2008-00075-I is an Application filed by Selwyn Pieters under section 34 of Part IV of the Code. Tribunal File TR-0023-09 is a complaint originally filed by Brian Noble with the Ontario Human Rights Commission (the “Commission”). This complaint was brought before the Tribunal through an Application made under section 53(5), a transition provision of the Code.

2In an Interim Decision dated March 27, 2009, 2009 HRTO 357, the Tribunal determined that these two Applications should be heard together as they arise out of the same incident and involve the same parties and issues.

3The applicants allege discrimination with respect to services, goods and facilities because of race and colour contrary to section 1 of the Code. The applicants, who are both lawyers, self identify as Black. They allege that on May 16, 2008 they were in the lawyers’ lounge at the A. Grenville and William Davis Courthouse (the “Brampton Courthouse”) when the personal respondent, Melissa Firth, who is a librarian/administrator with the organizational respondent, the Peel Law Association, (the “PLA”), approached them and asked them for identification in order to determine whether they were paralegals. Paralegals are not admitted to the lounge. No one else, according to the applicants, was asked for identification. The applicants allege that this incident was an example of racial profiling. They contend that the personal respondent acted on the basis of racial stereotypes, believing that the applicants, because they were Black, might be paralegals but not lawyers.

4The hearing took place over three days and involved 12 witnesses including ten who testified that they witnessed the May 16 incident between the applicants and the personal respondent. It is noteworthy that these ten witnesses (eight were eyewitnesses and two heard parts of what transpired) provided differing versions of the incident. In some instances they emphasized different aspects of what occurred, while in other instances they provided clearly conflicting accounts. To determine whether the Code was violated, I must make findings of fact based on an assessment of the credibility and plausibility of the conflicting accounts of what took place. After making these findings, I must determine whether the actions of the personal respondent constitute discrimination or racial profiling.

BACKGROUND

5The applicants are both lawyers. On May 16, 2008 they were at the Brampton Courthouse on a Youth Criminal Justice Act (“YCJA”) application arising out of a matter before this Tribunal. The applicants were accompanied by Paul Waldron, a law student employed by Mr. Pieters. All three, as evidenced by a photograph taken on the occasion, were dressed in business suits. Mr. Waldron is also Black and both he and Mr. Pieters have long, dreadlocked hair.

6Other persons involved in the YCJA Application were in the lounge at the time of the interaction between the applicants and the personal respondent. Raj Dhir and Monmi Goswami were present on behalf of the Commission, and both self identify as South Asian. Lauri Reesor, a lawyer representing the Peel Regional Police Services Board and Elizabeth McFadden, an employee of the Peel Regional Police, identify as White.

7The lounge and an adjoining library are operated by the PLA. The PLA is a not-for-profit corporation that promotes the interests of its members by providing resources to enhance the practice of law. Most PLA members are lawyers with offices in the Regional Municipality of Peel.

8The lounge at the Brampton Courthouse is quite large and contains distinct seating areas and worktables and leads to the library, barristers’ robing rooms and washrooms. There is an adjoining kitchenette. I had before me photographs and a large scale floor plan of the facilities. These were helpful in clarifying where persons were located in the lounge at the time of the incident.

9The PLA lounge and library are operated under the guidance of the PLA volunteer Board of Directors and Library Committee. The day-to-day operation of the library and lounge is provided by staff employed by the PLA which, at the material time, included Melissa Firth, the personal respondent who was the Librarian/Administrator and Stephanie Trotter and Maida de Vera, librarian technicians. The personal respondent is the staff person responsible for the operations in the lounge and library and reports to the PLA Board of Directors and to the Library Committee.

10The respondents provided a “Peel Law Association Policies for Library and Lounge Use” (the “Policy”) that was adopted by the PLA on July 5, 2005. This one-page policy states that the lounge and library and its services are available only to lawyers, articling students and students of law. PLA members are not permitted to bring in clients or guests. There was evidence before me that the Policy is posted in the library and lounge and in the public hallway outside the doors to the lounge. Photographs were disclosed by the respondents to show the posted Policy in the public hallway outside the lounge along with further signage to indicate that lawyers should not bring in clients or other members of the public into the lounge and library. The respondents’ witnesses, the personal respondent, Ms. Trotter and Ms. de Vera, testified that PLA staff routinely ask persons in the lounge or library for identification (for example, a law society membership card) in order to confirm whether they are admissible to the lounge and library.

THE INCIDENT ON MAY 16, 2008

11What took place between the applicants and the personal respondent and others on May 16 is contentious and will be discussed in detail later in this Decision. However, it is helpful to describe, in general terms, the layout of the lounge where persons were when the incident occurred and the events that are generally not in dispute.

12The lounge was not busy at the time of the incident with perhaps a total of twenty persons present. The applicants were seated in an area of the lounge just outside the doors to the library. Mr. Pieters was in a chair talking on the telephone to his assistant, Michael Roberts. Mr. Noble and Mr. Waldron were on a sofa perpendicular to where Mr. Pieters was sitting; Mr. Noble was closest to Mr. Pieters, Mr. Waldron closest to the library door. The sofa was against a frosted glass half-wall that divided the kitchenette from the lounge. Ms. Trotter was in the kitchenette. Mr. Dhir and Ms. Goswami were at a worktable approximately 15 feet away from the applicants. Ms. McFadden and Ms. Reesor were seated further away in the lounge.

13The personal respondent came through the library doors and approached the applicants and Mr. Waldron. She was accompanied by Bonnie Racz, a lawyer and member of the PLA Board of Directors. The personal respondent asked for identification. The issue of who she asked for identification, what she said in asking for identification, and what the personal respondent might have said to explain why she was asking for identification are very much in dispute and at the heart of this case.

14What the applicants said to the personal respondent is also disputed but there was a general agreement that Mr. Pieters relatively quickly stated explicitly to the personal respondent and to Mr. Noble and Mr. Waldron (and to Mr. Roberts on the telephone) that this was an incident of racial profiling. It is disputed how the applicants and the personal respondent conducted themselves, whether voices were raised, and who may have acted in an aggressive manner. There is an issue as to how Mr. Dhir, Ms. Goswami, Ms. Reesor and Ms. McFadden may have become involved after the initial encounter between the applicants and the personal respondent.

15After the incident two further events occurred that are identified as discrimination in the Applications. The personal respondent and Mr. Pieters wanted each other’s business cards. The personal respondent went to her office in the library to get a business card and presented it to Mr. Pieters who had followed her to the library. Mr. Pieters did not have his business card with him and he and the personal respondent then walked from the library to the courtroom in order to retrieve a business card from his briefcase. Mr. Pieters testified that the personal respondent’s decision to accompany him while he retrieved his business card was unnecessary; that it treated him as a suspect and constituted a further humiliation.

16The personal respondent testified that the same afternoon she met with three members of the PLA Board of Directors, including Ms. Racz and the Library Committee Chair, and related to them the encounter she had had with the applicants in the lounge. These directors then approved the creation of an additional sign to be posted in order to clarify access to the lounge and library. The new sign stated “Notice- Unless gowned, individuals must produce ID upon request. No Public Access Peel Law Association”. These signs were then posted by the personal applicant and Ms. De Vera in the lounge and in the public hallway outside the lounge later in the afternoon of May 16, 2008. The applicants also submitted that the decision to post these signs was done to send a message to the applicants while they were still in the courthouse and that this was a further offensive action.

17I heard testimony about the encounter from the applicants, the personal respondent, Raj Dhir, Monmi Goswami, Michael Roberts, Elizabeth McFadden, Lauri Reesor, Stephanie Trotter and Bonnie Racz. Mr. Waldron did not appear as a witness but it should be noted that he did file a complaint with the Commission about the events of May 16, 2008. It appears this complaint was later withdrawn.

18I heard testimony from Mr. Pieters and the personal respondent as to what occurred between them afterwards, and from the personal respondent, Ms. Trotter, Ms. De Vera and Ms. Racz about further events on May 16 and the PLA’s practices for enforcing its policy to control access to the lounge and library

DECISION

19I find that race and colour were a factor in the personal respondent’s decision to stop and question the applicants and Mr. Waldron, and as such, it was an act of discrimination. I find the personal respondent’s account of what took place during her interactions with the applicants not to be credible and I do not accept that the non-discriminatory reasons she gives account for why she chose to ask the applicants for their identification when she did. The inference I draw is that the applicants’ race and colour was a factor which led to the personal respondent’s decision to question them and affected the manner in which she questioned and interacted with them. I do not find that any other action of the respondents, including the personal respondent’s decision to accompany one of the applicants to retrieve a business card and the decision by the respondents to post additional signage regarding access to the lounge and library, violated the Code. I order the respondents to pay the applicants $2,000 each in monetary compensation for the injury to their feelings, dignity and self-respect.

EVIDENCE

The PLA practices to enforce the PLA’s Policies for Library and Lounge Use

20I had before me the PLA “Policies for Library and Lounge Use” passed at the July 5, 2005 Board of Directors’ meeting. This one page policy states that the lounge is for the use of members in good standing of the Law Society of Upper Canada. Of note, the Policy also specifically states that:

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Lawyers’ Lounge within the spirit of the policy.

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Library.

21The personal respondent testified that the lounge and library routinely receive 250-300 visitors a day. The personal respondent stated that many are repeat visitors and known to staff to be lawyers and/or PLA members. However, the personal respondent testified that members of the public and paralegals do enter the lounge or library notwithstanding the signage posted outside the lounge to indicate that access to the lounge and library is restricted. The personal respondent testified that persons in the lounge and library that are not known to the staff are regularly asked to produce identification in order to show that they are a lawyer, articling student or student of law, and thus admissible to the lounge or library. The personal respondent testified that clients of lawyers are not admissible. The personal respondent testified that an unfamiliar person is asked to produce identification, even in instances in which they are with a lawyer or claim to be a lawyer, and cited an instance when she dealt with a person claiming to be a lawyer who was, in fact, not. The personal respondent noted that she is the only person who can ask for identification in the lounge and robing rooms but that all library staff can ask for identification in the library.

22The personal respondent stated that she asked for identification 8-12 times a week and that since beginning as the librarian/administrator at the library lounge at the Brampton Courthouse in May 2004, she has made this request of hundreds of persons. The personal respondent stated that, on occasion, she has asked other staff or PLA members to identify persons unknown to her in order to determine whether they might need to be questioned. She stated that the practice is to ask as many individuals as possible for identification, if they are not recognized by PLA staff.

23The personal respondent provided a number of examples of when she had asked for identification, including instances in which there had been difficulties. She testified that late in 2007 and 2008 she dealt with an agent, identified as a White male, whom she had to repeatedly ask to leave the lounge. She stated that she had to finally ask the PLA Board of Directors to send a letter to this agent to tell him he was not allowed to use the lounge and library.

24The personal respondent testified that on May 15, 2008, the day before the incident of alleged racial profiling, she had asked an individual for identification, learned that this person was a paralegal and had asked her to leave. However, according to the personal respondent, this person later returned to the lounge and was working with a person the personal respondent recognized to be a lawyer. The personal respondent stated that she told the two of them that that they would have to conduct their meeting outside the lounge.

25The personal respondent testified that on the morning of May 16, 2008, she had to intervene with a woman who was upset that a library technician, Ms. De Vera, had asked her for identification in the library. The personal respondent testified that this person, whom she identified as White, was a lawyer and was upset because she had been to the library on numerous occasions and believed she should have been known to staff. The personal respondent stated that she had to explain the PLA’s practice of questioning persons about their admissibility to calm this woman down.

26The personal respondent testified that later that morning she noticed two persons in the library that she did not recognize. She then asked other library staff if they had questioned these persons about their admissibility and learned that they had not. The personal respondent testified that she subsequently approached these two persons who told her that they were articling students. In order to confirm this, one of the students agreed to have a lawyer at the firm at which the two students worked contact the personal respondent. This lawyer subsequently emailed the personal respondent to state that his firm employed three students and that they would like these students to have access to the library. A copy of this email dated May 16, 2008 at 10:14 AM was in evidence before me.

27Ms. Trotter testified that she began as a library technician at the Brampton Courthouse library in 2006 and had seen the personal respondent ask persons for identification more than 50 times. She believed the personal respondent would ask for identification whenever she did not recognize someone.

28Ms. de Vera testified that she had been a library technician at the Brampton Courthouse library for three years. She had witnessed the personal respondent asking persons for identification five to ten times a week. On the morning of May 16, Ms. De Vera had asked for identification from a person who got upset, and the personal respondent subsequently spoke to this woman in order to explain the PLA policy and to calm her.

29Ms. Racz testified that on the morning of May 16 she noticed a person in the women’s robing room she did not recognize and thought might not be a lawyer. She testified that she subsequently contacted the personal respondent to ask her to confirm whether this woman was admissible to the facilities.

30I am satisfied, based on the evidence I heard, that the PLA staff, particularly Ms. Firth, regularly asked persons to confirm whether they were lawyers, articling students or students of law in order to determine whether they were admissible to the lounge and library. The evidence on this issue was consistent and full of persuasive detail. I am satisfied that the personal respondent routinely carried out this function and that this was a function clearly mandated to her as Librarian/Administrator under the PLA’s Policy.

31I also find that controlling access to the library and lounge was an ongoing organizational concern for the PLA. I note the PLA’s explicit policy on access, including its provisions for the enforcement of the Policy and the signage posted inside and outside of the lounge and library to communicate the policy and the limited access to the facilities. I note that the minutes of the PLA Board of Directors meetings make repeated reference to issues of access and security at the PLA facilities at the Brampton Courthouse, including references at the May 14, 2008 Board meeting to an intention to continue to prevent paralegals from using the library facilities.

32The respondents contended that the personal respondent’s decision to stop in front of Mr. Pieters, Mr. Noble and Mr. Waldron and her subsequent questioning must be seen in the context of the PLA policy and her established practice to ask for identification.

Prior contact between Mr. Pieters and the Personal Respondent

33Mr. Pieters testified that he had been to the Brampton Courthouse 15 or 20 times prior to May 16, 2008, primarily during a criminal negligence trial that began in July 2005. He estimated that he had visited the lounge approximately ten times.

34The personal respondent testified that she believed that Mr. Pieters had visited the lounge a couple of years earlier along with a Black lawyer she knew and, on that occasion, she believed she asked Mr. Pieters for his identification on the basis that he might be a guest. She testified that she did not ask the other lawyer as she knew him to be a lawyer and went on to state that she routinely would ask persons for identification even if vouched for by a person known to be a lawyer. The personal respondent testified that she remembered Mr. Pieters because he had been rude on that occasion. Importantly, under cross-examination, the personal respondent testified that she could not remember if Mr. Pieters provided his identification on that occasion.

35The respondents contended that the personal respondent did not ask Mr. Pieters for identification on May 16, 2008 because she had encountered him previously in the lounge and believed him to be a lawyer.

Other Events on the Morning of May 16, 2008

36The personal respondent testified that there were a number of occurrences of note on the morning of May 16. She testified that the encounter between PLA staff and the two articling students who were asked for identification described above occurred at about 10:30 a.m.. The personal respondent testified that Ms. Trotter told her that furniture had been moved in the lounge, specifically in the area just outside the library doors. The personal respondent stated that this furniture, which consisted of two sofas and several chairs, was impeding access to the kitchenette and an emergency exit. She testified that she and Ms. Trotter returned the sofas and chairs to their proper places and that she asked Ms. Trotter to let her know if the persons responsible for rearranging this furniture returned to the lounge.

37The personal respondent testified that the encounter with the female lawyer who objected to being asked for identification subsequently occurred at about 11:00 a.m.. She testified that she then returned to working when Ms. Racz came to her to tell her that there was a woman in the robing room she did not recognize and that Ms. Racz asked the personal respondent to check the identification of this woman. The personal respondent testified that Ms. Trotter then came to her to say that she believed that she recognized the persons who had moved the furniture from earlier that morning and that they were sitting in the lounge area just outside the library doors.

38Ms. De Vera testified that she was aware that furniture just outside the library door had been rearranged during the morning of May 16. Ms. Trotter testified that on her morning break on May 16 she had seen that furniture had been moved in the lounge and that this furniture was occupied by 5 or 6 people. Ms. Trotter testified that the personal respondent asked her to inform her if she saw these persons again. She testified that at approximately noon she believed she saw some of the same people occupying this furniture and that she proceeded to inform the personal respondent of this in the library, just before she, the personal respondent. and Ms Racz exited the library and encountered Mr. Pieters, Mr. Noble and Mr. Waldron.

The May 16, 2008 Incident

39Mr. Pieters testified that he was on the telephone to his assistant, Michael Roberts, when the personal respondent came through the doors to the library and approached him, Mr. Noble and Mr. Waldron. Mr. Pieters testified that the personal respondent, without identifying herself, spoke first to him, demanding to know who he was and why he was in the lounge. Mr. Pieters testified that he answered that he was a lawyer and continued with his telephone call only to have the personal respondent ask him for identification to show that he was a lawyer. Mr. Pieters testified that he told his assistant that he believed he was being racially profiled. He testified that the personal respondent appeared angry and was aggressive and insistent on his producing identification.

40He testified that he showed the personal respondent his identification that was in his wallet and only after doing so did the personal respondent proceed to ask Mr. Noble and Mr. Waldron for their identification, which they provided and which she examined. Mr. Pieters stated that Mr. Noble was annoyed at being asked for his identification and that when Mr. Noble began to question the personal respondent about why he was being asked, Mr. Pieters told Mr. Noble not to engage. He testified that the personal respondent indicated that the lounge was not a place for paralegals. Mr. Pieters testified that he told the personal respondent that he believed this was an incident of racial profiling, after which the personal respondent asked for his business card and he asked for hers.

41Mr. Pieters stated that he felt humiliated by the experience; that it was a racist experience in that the applicants and Mr. Waldron had been singled out because the personal respondent did not believe that three Black men might be lawyers rather than paralegals. He testified that Mr. Dhir and Ms. Goswami subsequently volunteered to show their identification to the personal respondent but that the personal respondent did not respond to their offer. He stated that later, when walking to the courtroom together with the personal respondent to retrieve his business card, the personal respondent indicated that she knew everyone else in the lounge. Mr. Pieters testified that he did not believe this to be true given that he knew that Ms. McFadden and Ms. Reesor had never been to the lounge before.

42Mr. Pieters stated that he had been to many lawyers’ lounges in Ontario, and while these lounges had many different practices regarding access, for example commissionaires checking for identification, he had never been questioned in this manner before. Mr. Pieters testified that during the incident he was upset but not angry, that he spoke to the personal respondent in a controlled voice and did not shout. He testified that he had not seen the policy posted outside the lounge doors and was unaware of the PLA policy restricting access to the lounge.

43Mr. Noble testified that he, Mr. Pieters and Mr. Waldron were sitting together in the lounge when the personal respondent approached and in a loud, aggressive voice demanded identification from the three of them, beginning with Mr. Pieters. He testified that Mr. Pieters showed the identification that was in his wallet and that the personal respondent attempted to take it, with Mr. Pieters then telling her not to touch his wallet. He testified that Mr. Pieters stated that he was being racially profiled before the personal respondent turned to Mr. Noble and Mr. Waldron to ask for their identification. He testified that he asked the personal respondent why only the three of them were being asked, but that Mr. Pieters told him not to engage. He testified that the personal respondent told the three of them that she knew everyone else in the lounge to be a lawyer. He stated that Mr. Pieters told the personal respondent that Mr. Noble and Mr. Waldron were part of his firm but that the personal respondent insisted that she see their identification. He testified that the personal respondent made reference to paralegals not being allowed into the lounge.

44Mr. Noble stated he was upset about the way in which the personal respondent had questioned the applicants and Mr. Waldron, suggesting that that it was unprofessional given its aggressive manner. He testified that Ms. Firth was loud, aggressive and rude throughout the incident. He testified that he was ashamed and embarrassed about the experience, particularly since it occurred in a lawyers lounge amongst his peers. He did not believe that the personal respondent would have acted in this manner when engaging with other persons in the lounge.

45Mr. Noble testified that he did not see the notices on the door to the lounge and was unaware of the PLA policy restricting access to the lounge. He testified that he would not have had an issue if the personal respondent had asked for identification from everyone and had treated everyone similarly.

46Raj Dhir testified that he witnessed the personal respondent approaching Mr. Pieters, Mr. Noble and Mr. Waldron and stating that the lounge was for lawyers only and that Mr. Pieters responded by stating he was a lawyer. Mr. Dhir testified that Mr. Pieters quickly produced identification to show he was a lawyer and then indicated that Mr. Noble and Mr. Waldron were students with his firm but that the personal respondent insisted on seeing Mr. Noble and Mr. Waldron’s identification. Mr. Dhir described this as a tense moment and that he asked Ms. Goswami to take notes of what was happening, telling her that he thought the applicants were being unfairly treated.

47He testified that he heard Mr. Pieters ask why they were the only ones being asked for identification and that a back and forth discussion occurred between Mr. Pieters and the personal respondent, with Ms. Firth becoming defensive and Mr. Pieters becoming more upset. Mr. Dhir testified that Mr. Pieters asked for the name of Ms. Firth’s supervisor and the personal respondent insisted that she get Mr. Pieter’s business card. He testified that the personal respondent did not ask to see the identification of anyone else in the lounge and that he did not recall offering his identification to the personal respondent or entering into any conversation with the personal respondent.

48Ms. Goswami testified that she saw the personal respondent come out of the library, approach the applicants and Mr. Waldron, and ask Mr. Pieters whether he was a lawyer or whether he belonged in the lounge, to which Mr. Pieters said he was a lawyer. She testified that the personal respondent then asked him for proof. Ms. Goswami testified that Mr. Pieters then stated that he believed he was being racially profiled before showing the personal respondent his identification. Ms. Goswami testified that the personal respondent then turned to Mr. Noble and Mr. Waldron and said “what about you” in reference to their status to which Mr. Pieters stated that they were members of his staff. Ms. Goswami stated that the personal respondent then stated that she did not care; that she checked everyone’s identification. Ms. Goswami recalled Mr. Noble or Mr. Pieters saying that they hoped that the personal respondent would check everyone’s identification and that when she didn’t do so, Ms. Goswami and Mr. Dhir shared the observation that the personal respondent was checking only racialized persons.

49Ms. Goswami described the personal respondent’s voice as accusatory, but that later, when challenged by the applicants, the personal respondent became defensive. Ms. Goswami described the encounter between the personal respondent and the applicants as “fishy” and that it could have been diffused by the personal respondent. She testified that when the personal respondent was asked why she was asking for identification only from Mr. Pieters, Mr. Noble and Mr. Waldron, she heard her state that she knew everyone else in the room was a lawyer, a comment Ms. Goswami knew to be wrong given that Ms. McFadden was not a lawyer. Ms. Goswami testified that she felt this was an indicator that the personal respondent was racially profiling the three Black men in the room.

50Ms. Goswami testified that after the personal respondent examined Mr. Noble and Mr. Waldron’s identification, Ms. Goswami and Mr. Dhir walked over to the personal respondent and volunteered to show her their identification, which the personal respondent did not look at. Ms. Goswami testified that Ms. McFadden and Ms. Reesor also came over and told Mr. Pieters to calm down, that he was overreacting. She recalled Mr. Pieters telling Mr. Noble to calm down, and that they would deal with this as they had another incident of alleged racial profiling in which they had been involved. Ms. Goswami testified that Mr. Dhir suggested that she document what was occurring.

51Mr. Roberts testified that he was on the telephone with Mr. Pieters at the time of the incident, that he heard someone say that Mr Pieters should get off the telephone (he testified that Mr. Pieters later identified to him that this was Ms. Firth), and that he heard Mr. Pieters state that he was being racially profiled.

52The personal respondent testified that she came out of the library with Ms. Racz and Ms. Trotter, and that Ms. Trotter proceeded to go to the kitchenette. The personal respondent testified that she approached the area where the applicants and Mr. Waldron were sitting, with Ms. Racz slightly behind her. She testified that she asked Mr. Waldron and Mr. Noble for identification. She testified that she did not ask Mr. Pieters for identification because she believed she recognized that Mr. Pieters had been in the lounge previously in the company of another lawyer she knew and because he was on the telephone. The personal respondent testified that she explained that she was asking because paralegals and members of the public were inadmissible to the lounge. She testified that she could hear Mr. Pieters speaking louder and louder and stating that he could not believe he was in the lounge and that three Black men were being racially profiled.

53The personal respondent testified that she was floored by this comment. She stated she was not sure who Mr. Pieters was talking to. She stated that Mr. Pieters was getting upset, Mr Waldron and Mr Noble were getting louder, and all three were speaking to her. She described the scene as becoming chaotic, that Mr. Pieters stood up and told the other two not to engage with the personal respondent. She testified that Mr. Pieters reached into his pocket to get his wallet and to show her his identification, and that when the personal respondent leaned forward to read the identification in order to determine with whom she was dealing, that he told her not to touch the wallet. The personal respondent testified that Mr. Pieters became louder and repeatedly stated to the others not to engage. Mr. Pieters began asking her why she was not asking others for their identification, making reference, in the personal respondent’s opinion, to White females who were present in the lounge. The personal respondent stated that she felt embarrassed and humiliated and did not know how to react. She stated that she had never had counsel speak to her like that.

54The personal respondent testified that Mr. Dhir and, she believes, Ms. Goswami came up to her to show her their identification. She testified that Ms. Reesor may have also come forward to show documentation. The personal respondent testified that she did not ask for identification from these others because she was completely focussed on Mr. Pieters; she was physically frozen and indeed intimidated by her encounter with Mr. Pieters and found the whole experience upsetting and surreal. She also testified that she felt it would be rude to leave Mr. Pieters and that it was important to stay engaged with him, in part because she knew she would have to report to the Board of Directors about what was occurring. The personal respondent denied that she was confrontational, although she acknowledged that she asked for identification from Mr. Noble and Mr. Waldron several times. The personal respondent denied having said that she knew everyone else in the lounge to be lawyers.

55The personal respondent denied that she targeted the applicants for differential treatment because they were Black. She testified that she knew many Black lawyers who used the PLA facilities and named six Black lawyers with whom she regularly interacted. She testified that she had arranged for the Canadian Association of Black Lawyers to use the facilities.

56Ms. Racz testified that she accompanied the personal respondent out of the library and was present at the incident. She testified that the personal respondent first asked the person on the left of the sofa (Mr. Waldron) for identification and was then asked why she needed identification, to which she replied that it was because unauthorized persons used the lounge. Ms. Racz testified that right after this request for identification, the man on the telephone (Mr. Pieters) then started saying “racial profiling”. She testified that the personal respondent had not asked Mr. Pieters for identification.

57Ms. Racz testified that there was an exchange between the parties, with Mr. Noble and Mr. Waldron asking why they had to provide identification and the personal respondent explaining that it was PLA policy. Ms. Racz testified that the personal respondent was using a conversational voice but was insistent that identification had to be shown. She also testified that the personal respondent was upset by Mr. Pieters’ responses. Ms. Racz testified that Mr. Pieters kept on stating that this was an incident of racial profiling and telling the others to not engage. She testified that she felt Mr. Pieters was loud, wanting to draw attention to what was occurring. She stated that it was not a pleasant scene.

58Ms. Trotter testified that she could not see anything from in the kitchenette nor hear clearly, but that she could hear one person being very loud and the personal respondent speaking in a professional manner. She testified that she could not remember the exchange that took place but did recall the personal respondent asking for identification.

59Ms. McFadden testified that she saw the personal respondent in a private conversation with the applicants and Mr. Waldron. She testified that Mr. Pieters was speaking in a very loud voice to the personal respondent. She testified that she did not remember the exact exchange but did hear Mr. Pieters vouch for Mr. Noble and Mr. Waldron by saying that they worked at his law firm. She heard Mr. Pieters state that he thought they were being racially profiled and heard the personal respondent say that she was just doing her job. Ms. McFadden did not hear anyone else being asked for identification.

60Ms. McFadden also testified that she is not a lawyer. She testified that when it was suggested by Mr. Pieters that all of those involved in the YCJA application go to the lounge during a break in their proceedings she said she didn’t believe she should go in because of the signage saying it was a lawyers’ lounge. She testified that Mr. Pieters and others said they thought it would be OK.

61Ms. Reesor testified that she had not been in the lounge before. She recalls two persons coming into the lounge and one of them announcing to the room (not to any particular group) that they would be checking identification. She believed that it was these two persons who then approached the applicants with the one who had made the announcement interacting with Mr. Pieters. She testified that in relation to the incident she could recall Mr. Pieters’ raised voice and Mr. Pieters stating that they were only being asked for identification because they were Black and stating this was an instance of racial profiling. She testified that the person interacting with Mr. Pieters was taken aback, was red in the face and embarrassed. Ms. Reesor recalled that Mr. Pieters wanted to speak to the person’s supervisor.

Findings of Fact

62This was clearly an emotional and dramatic incident and one that quickly escalated into confrontation. It was certainly an emotional experience for the applicants and the personal respondent, all of whom testified to how they were surprised, distressed and upset by what they felt occurred. It was a dramatic event for those who witnessed it, most of whom spoke about the charged and confrontational nature of what they saw or heard and the resulting confusion when a number of the witnesses subsequently became involved.

63I find that the witnesses’ recollections of events were not complete, which may be attributable to the passage of time or to the fact that they tended to focus on what they recalled as most important. None of the witnesses provided, in my opinion, a clear overview of what took place. Almost every witness provided unique details. Witnesses presented differing chronologies of events. Consequently, the determination as to what, on a balance of probabilities, occurred requires a careful assessment of what evidence I found to be credible.

64The task of evaluating credibility depends upon an evaluation of all of the evidence in the context of the events that occurred and the “preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A).

65The first and in many ways most important evidentiary issue to resolve is the discrepancy as to whom the personal respondent first spoke. The respondents’ counsel submitted that given that Mr. Pieters was on the telephone and that the personal respondent had encountered Mr. Pieters previously, the logical inference was that she spoke to Mr. Waldron and Mr. Noble first, as the personal respondent claimed, with the corroborating evidence of Ms. Racz. I do not accept this argument and ultimately prefer the applicants’ contention that the personal respondent spoke to Mr. Pieters first, which was clearly supported by the testimony of Ms. Goswami and, in my view, Mr. Dhir.

66The applicants’ testimony on this issue was clear, detailed and adamant. They both testified that the personal respondent first spoke directly to Mr. Pieters, that he produced his identification in response, and that she then turned her attention to Mr. Noble and Mr. Waldron and asked for identification. They both testified about the personal respondent asking if they were lawyers, stating that paralegals were not permitted in the lounge, that Mr. Pieters vouched for Mr. Noble and Mr. Waldron as his staff, and that the personal respondent nonetheless requested their identification.

67They both provided a narrative of what took place in these initial minutes that was relatively detailed and consistent and which described a sequence of events. Importantly, for the purposes of arriving at my finding, Ms. Goswami testified that she was sure that she saw the personal respondent beginning her interactions with the applicants and Mr. Waldron with a question for Mr. Pieters, and that Mr. Pieters produced his identification in response. She, too, testified that after Mr. Pieters produced his identification the personal respondent turned to Mr. Noble and Mr. Waldron, asked for their identification, that Mr. Pieters stated that they were on his staff, and that the personal respondent indicated that she would nonetheless check their identifications. Ms. Goswami’s clear and assured evidence on this initial sequence of events, which was wholly consistent with that of the applicants’, was important, and in my view is key in my determination of this issue. I note here that Ms. Goswami’s testimony in general was assured and consistent, and her recollections detailed and specific. I find her testimony as to what she saw taking place to be credible.

68Mr. Dhir’s evidence was also generally consistent with the applicants’ and Ms. Goswami’s accounts. While he did not state that the personal respondent spoke directly to Mr. Pieters first (he believed she generally approached the group and “asked are you lawyers?”), he testified that Mr. Pieters responded by stating he was a lawyer and that Mr. Pieters was the first to provide his identification and that the personal respondent then asked Mr. Noble and Mr. Waldron to provide their identification and insisted on seeing their identification even after Mr. Pieters indicated that the others were working for his firm.

69In contrast, the personal respondent’s testimony provided less detail. She testified that she explained to Mr. Noble and Mr. Waldron that the lounge was for lawyers and that paralegals and the public were not admissible before she was interrupted by Mr. Pieters with an allegation that three Black men were being racially profiled. I found this testimony relatively cursory and contrasted with her more detailed testimony about the incidents which occurred later such as her interactions with Mr. Pieters when seeking to get a copy of his business card.

70Ms. Racz did explicitly testify that the personal respondent asked for Mr. Noble and Mr. Waldron’s identification first. While this testimony supports the personal respondent’s account, for the following reasons I prefer the version of events that suggests the personal respondent first spoke to Mr. Pieters, which is consistent with the testimony of both applicants, Ms. Goswami and Mr. Dhir.

71I note that Ms. Racz provided few specifics as to how the incident as a whole unfolded. Ms. Racz’s repeated testimony was that Mr. Pieters was forcefully stating that the incident was one of racial profiling and telling Mr. Noble and Mr. Waldron not to engage: the aspects of the incident she appears to have either most clearly recalled or felt were most important. She also testified that she was not sure whether Mr. Pieters presented his identification to the personal respondent. This is significant as I am satisfied that the exchange between Mr. Pieters and the personal respondent over presenting his wallet and his identification and his refusal to allow the personal respondent to touch the wallet was a dramatic and important moment during the incident. In my view, Ms. Racz’s recollection of the incident was limited and she does not appear to recall details of what took place between Mr. Pieters and the personal respondent.

72It is not disputed that Mr. Pieters produced his identification for the personal respondent. This is most likely, in my view, because he was, in fact, asked by the personal respondent to show that he was a lawyer. I am also satisfied, based on the evidence before me, that Mr. Pieters was the first to produce his identification for the personal respondent and that it is only following this that Mr. Noble and Mr. Waldron produced theirs. This was the testimony of the applicants, Ms. Goswami, and Mr. Dhir, and it was not disputed or contradicted. This would further suggest that the personal respondent first engaged with Mr. Pieters rather than Mr. Noble and Mr. Waldron.

73The personal respondent testified that Mr. Pieters voluntarily produced his identification when she asked Mr. Waldron and Mr. Noble for their identification. I find this unlikely. In addition to this being at odds with the testimony of the applicants and Ms. Goswami, the personal respondent testified that she was initially involved with Mr. Noble and Mr. Waldron and that Mr. Pieters was engaged on the telephone. I find it improbable that Mr. Pieters would interrupt his telephone conversation and voluntarily produce identification even before Mr. Noble and Mr. Waldron had responded to the personal respondent’s request of them. The more logical inference, in my view, is that Mr. Pieters was the first one asked for identification.

74Mr. Pieters also testified that during the incident he stated that three Black men were being racially profiled. The personal respondent testified to hearing Mr. Pieters alleging that three Black men were being racially profiled. Mr. Roberts and Ms. Goswami testified that they heard Mr. Pieters state during the incident that “I am being racially profiled”. I find these remarks of Mr. Pieters were likely made because he, too, was being asked by the personal respondent to provide identification.

75The respondents’ counsel argued that the personal respondent recognized Mr. Pieters from prior visits to the lounge and therefore did not ask him for identification. However, while the personal respondent did testify that she had previously asked Mr. Pieters for identification, she later testified that she did not recall whether he provided identification. She also testified, at one point, that she believed Mr. Pieters might be a lawyer. It was not evident that the personal respondent clearly knew Mr. Pieters to be a lawyer. Consequently it is entirely possible, in my view, that he, too, would have been subject to a request for identification notwithstanding that the personal respondent had seen him in the lounge previously.

76In summary, I find that when the personal respondent approached the applicants and Mr. Waldron, she began by asking Mr. Pieters whether he was a lawyer before making further enquiries as to whether Mr. Noble and Mr. Waldron were admissible to the lounge.

77I also make the following findings of fact. I find that the manner in which the personal respondent asked her questions and interacted with the applicants was aggressive and demanding. Mr. Dhir and Ms. Goswami both testified as to the aggressive and blunt way in which they felt the personal respondent interacted with the applicants. It is clear that the applicants found the personal respondent’s questions and the way in which they were asked abrupt and offensive. I accept the applicants’ evidence that they found their overall experience with the personal respondent to be demeaning.

78I accept the personal respondent’s testimony that the allegation that she was racially profiling the applicants shook her and that it affected her subsequent actions. Her testimony about the numbing effect it had on her, that she felt overwhelmed, and that she determined that she had to focus her attention specifically on Mr. Pieters, was emotional, detailed, forthright, and persuasive on this point. I find that Ms. Reesor’s testimony that she saw the personal respondent turn red and appear to be embarrassed supports this contention as well as Ms. Goswami’s testimony about the personal respondent becoming quiet as the incident with the applicants unfolded.

79I find that the personal respondent did not intend to generally check identifications in the room. It is true Ms. Reesor testified that she recalled a general announcement to that effect when the personal respondent and Ms. Racz first came into the lounge, but I heard no other evidence to support this contention. The personal respondent did not state that this was her intention. Mr. Dhir, Ms. Goswami, Ms. McFadden and Ms. Reesor testified that they were not asked for identification but rather that they retrieved their identification in anticipation that they might be asked for it after witnessing the exchange between the personal respondent and the applicants and Mr. Waldron. I find the personal respondent’s contention that her focus on Mr. Pieters accounts for why she did not confirm Mr. Dhir, Ms. Goswami, Ms. Reesor and Ms. McFadden’s identification to be credible.

80I find that the personal respondent did say in response to an inquiry from Mr. Noble about why she was not checking the identification of other people in the room that it was because she knew everyone else in the room to be lawyers. This was the testimony of Mr. Noble and Ms. Goswami. It is true that Mr. Pieters referred to the personal respondent making such a statement, but doing so while he and the personal respondent walked together to get his business card from the courtroom. It is also true that the personal respondent denied having said that she knew everyone in the lounge to be a lawyer. However, the personal respondent did not provide a clear or persuasive explanation for what alternatively might have been said and Mr. Pieters’ testimony does not negate the consistent evidence of Mr. Noble and Ms Goswami that such a statement was made during the incident in the lounge.

ANALYSIS

81There are two principal issues for me to decide in this case. Based on the evidentiary findings set out above, is there a sufficient basis to conclude the applicants’ race and colour was a factor in the personal respondent’s decision to approach and question the applicants in the manner she did. Second, were the applicants’ race and colour a factor in any of the respondents’ subsequent actions.

82The parties agreed that the well established principles from Radek v. Henderson Development (Canada) Ltd. (No.3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para 482., and quoted in Phipps v. Toronto Police Services Board, 2009 HRTO 877 at para. 16, apply in cases where there is an allegation of racial discrimination, including the present case. They are:

(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.

83The initial evidentiary burden rests with the applicants to establish, on a balance of probabilities, a prima facie case that they were discriminated against by the respondents on the basis of their race and colour. A prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28.

84I find that the applicants have established a prima facie case of discrimination. There were a number of persons in the lounge on May 16 who would have been unknown to the personal respondent. The applicants and Mr. Waldron were the only Black men and the only persons the personal respondent chose to question. The personal respondent interrupted her planned trip to the robing room to stop and question the applicants and proceeded to do so in an aggressive and demanding manner. No one else in the lounge was questioned, including two White women and another racialized male who would have been unknown to the personal respondent. These facts are sufficient to require the respondents to provide an explanation for their actions to support their position that the decision to question the applicants was not tainted by race or colour.

85The issue that the Tribunal often must determine in considering a respondent’s explanation is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent. See Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.). In the present case, the respondents have failed to provide a credible and rational explanation for why the personal respondent stopped to question the applicants when she did. The inference I draw from this, as well as all of the surrounding circumstances, is that this decision was, in some measure, because of their race and colour.

86The respondents contended that the personal applicant spoke directly to Mr. Noble and Mr. Waldron and not Mr. Pieters because he was on the telephone and that the personal respondent recognized him from previous visits to the lounge. The respondents submitted that by seeking to confirm the identity of only two of the three Black men in the lounge, the personal respondent could not have been racially stereotyping or profiling Black men by assuming that Black men present in the lounge were not lawyers. This argument fails. I find, as noted earlier, that the personal respondent was questioning all three men as to their right to be in the lounge. That the personal respondent disputed the fact that she challenged all three men as to their right to be in the lounge is a significant issue for me. It undermines the general credibility of her explanations for why she chose to question the applicants.

87The respondents made two further arguments that I need to address. First, they argued, the personal respondent was concerned about the fact that earlier in the morning persons who had been sitting, it appears, where the applicants were sitting, had inappropriately re-arranged chairs. The personal respondent never explicitly testified that a reason she stopped to speak to the applicants was because of concerns that they may have been the persons who re-arranged the furniture or that she somehow had to address the issue of rearranged furniture with them. I heard no evidence that the personal respondent suggested to the applicants that this was a reason she was asking them for their identification.

88Second, the respondents argued that the personal respondent routinely questioned unknown persons in the lounge and that such questioning fell within her regular job duties. I accept this to be true. However, the issue for me is why, on this particular occasion, the personal respondent stopped at all to question the applicants. The evidence was that the personal respondent was on her way with Ms. Racz to speak to a person in the robing room whom Ms. Racz did not recognize and was concerned enough to come and ask the personal respondent to confirm her identification. The personal respondent never did provide an explanation for why she chose to stop under these specific circumstances to question the applicants and Mr. Waldron.

89It is significant, in my view, that the personal respondent did provide an explanation at the time she was questioning the applicants for her actions. She stated that she knew everyone else in the lounge to be lawyers. This claim is clearly not true given that Ms. McFadden was not a lawyer and Ms. Reesor, although a lawyer, had never been in the lounge before.

90I have considered whether the personal respondent may have simply relied on this false statement in the heat of the moment, not knowing what to say when challenged by the applicants to explain her decision to question them. But even if I accept that the applicant relied on this comment in the heat of the moment, it is nonetheless revealing that the personal respondent could not generate a credible non- discriminatory reason for why she was questioning the applicants, for example that she had to resolve the issue of who re-arranged the furniture or that she was in the process of questioning everyone in the lounge she did not know and was beginning with the applicants. The lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent’s decision to question the applicants was indeed tainted by considerations of their race and colour.

91I have also considered the manner in which the applicant approached and questioned the applicants and whether she subjected them to undue scrutiny. I am mindful of the decision in Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14, at para. 134, which states:

I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black. (Emphasis in original)

92I have already found that the personal respondent questioned the applicants in an aggressive and challenging manner. I further note that she interrupted Mr. Pieters while he was on the telephone and, it appears, did not introduce herself to the applicants and Mr. Waldron. From all the evidence, including the personal respondent’s testimony of how she generally carried out this function, I conclude that the way in which the personal respondent approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and I am prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour. That said, I accept that the personal respondent’s contention that her regular practice is to ask for identification from individuals even when they are identified by someone else as admissible and so her repeated requests for identification from Mr. Noble and Mr. Waldron does not suggest, in my view, a greater degree of scrutiny.

The Two Further Incidents

93Mr. Pieters testified that the personal respondent’s decision to follow him back to the courtroom in order to get a copy of his business card was unnecessary and treated him as if he were a suspect and as such was a further act of discrimination. I do not agree. In my view, the personal respondent provided a reasonable non-discriminatory explanation for her actions. She testified that she was keen to determine Mr. Pieters’ identification given the nature of the incident and the applicants’ allegations and the fact that she knew she would have to report what had occurred to her Board of Directors. She testified that she was accompanying Mr. Pieters to retrieve his business card much like Mr. Pieters accompanied her when she went to her office in order to get him a copy of her business card.

94Mr. Noble argued that the PLA’s decision to post additional signage following the incident was aimed at the applicants and a deliberate effort to further threaten the applicants who, after leaving the lounge, remained present in the courthouse. I do not agree. Again I find there was a reasonable non-discriminatory explanation for this action. There had been a confrontation in the lounge between a PLA staff person and persons in the lounge over their admissibility. The personal respondent reported the incident to members of the Board of Directors who were present. It is entirely reasonable, in my view, that the PLA took action to reduce the possibility of such further incidents by posting additional signage to indicate that admissibility to the lounge was restricted and that persons could be subject to questioning about their admissibility. I do not accept that this was intended as some sort of specific warning or message to the applicants or that it constitutes a further act of discrimination.

95It should be noted here that Mr. Noble also submitted that he was treated differently by the PLA because he was not sent a letter by the PLA Board of Directors after the May 16 incident, as had another person who had been challenged about his right to use the lounge. These were not analogous situations. In the other instance, the person was sent a letter to reinforce the fact that he had been determined to be inadmissible and that he was not allowed to return to the lounge. This was not the case with Mr. Noble who was determined to be admissible to the lounge as a practicing lawyer.

Remedies

96Section 45.2 of the Code sets out the Tribunal’s remedial powers:

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 ought to do to promote compliance with this Act.

Monetary Compensation for Loss Arising out of the Infringement

97Monetary compensation is awarded as a way to make victims of discrimination whole. The exercise of quantifying the impact of discriminatory treatment on a person is difficult. It is important not to set the quantum of damages too low even in less egregious cases, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”: Sanford v. Koop, 2005 HRTO 53, at para. 34.

98Mr. Pieters asks for $25,000 and Mr. Noble $35,000 for the mental anguish and loss of self-esteem arising out of their experiences on May 16, 2008. Mr. Noble testified about being demeaned in front of his peer group, namely lawyers, which, on this occasion, included both friends and strangers. The applicants argue that the respondents’ actions were also reckless and as such contributed to the seriousness of the offensive treatment. Both applicants testified to the humiliation of their experience and that they have not returned to the Brampton Court House. The applicants referred to the Supreme Court of Canada decision in Fidler v. Sun Life Assurance Company, 2006 SCC 30 and the Tribunal’s decisions in Arias v. Desai, 2003 HRTO 1, and McDonald v. Mid-Huron Roofing, 2009 HRTO 1306, in support of their requests.

99I am not persuaded that the amount of compensation sought by the applicants is appropriate given the particulars of this case and in the context of the Tribunal’s case law in relation to damages. In evaluating the appropriate damages for injury to dignity, feelings and respect under section 45.2 of the Code the Tribunal has applied two criteria: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16. As stated in Arunachalam v. Best Buy Canada, 2010 HRTO 1880:

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

100I find that this discriminatory incident is at the less serious end of the spectrum in terms of the type of discrimination found in Tribunal decisions. It relates to a single incident during the provision of a service. The service in question was admission to a lounge made available to lawyers, articling students and law students while attending a court house. The applicants were ultimately not denied the service. The discrimination did not prevent or substantially interfere with the applicants’ ability to participate in their court proceeding.

101I find that the impact of the discrimination on the applicants to be less serious than in the cases relied upon by the applicants. I accept that the experience was hurtful and humiliating and as such compensation is appropriate. I do not have evidence before me of any further impact on the applicants’ professional standing or ability to conduct their legal practice on that day or any other.

102Having considered the circumstances of this case, I order that the respondents compensate each applicant $2,000 for the injury to their dignity, feelings and self-respect arising out of the infringement of the Code.

Remedies for Future Compliance

103The applicants requested in their Applications (and in Mr. Pieters’ testimony) that the PLA adopt a Human Rights Policy. It was acknowledged that the PLA did not have a Human Rights Policy in place at the time of the incident. However, the personal respondent testified that the PLA Board of Directors passed such a policy on May 27, 2009. She testified that the Policy was posted on the PLA website and in the lounge, and that a training program is support of this Policy was developed for the PLA Board of Directors and staff. She testified that at the time of the hearing approximately half the Board of Directors and staff had participated in the training. Copies of the PLA Policy and a detailed outline of the training program were before me. The policy includes the following provisions:

3. The Peel Law Association recognizes that as a professional association it is particularly important that it continue to uphold its fundamental commitments to equality and human rights. The Association will maintain an environment in which its employees, members, and others engage in their work and make use of PLA facilities free from discrimination and harassment.

4. All person entrusted with authority by the Peel Law Association have a particular obligation to ensure that there is no misuse of that authority in any action or relationship.

The Policy also outlines a complaints procedure which allows for both an informal procedure and/or a formal investigation of the complaint.

104I am satisfied that the Human Rights Policy implemented by the PLA and supported by training for employees and the PLA Board of Directors are appropriate organizational initiatives and that it is not necessary to order further public interest measures in order to support future compliance with the Code.

ORDER

119Having found that the Peel Law Association and Melissa Firth have violated the applicants’ rights under section 1 of the Code to equal treatment on the basis of race and colour, the Tribunal orders:

(a) Within 30 days of the date of this Decision, the respondents are jointly and severally liable to pay $2,000 to each of the applicants for violation of their inherent right to be free from discrimination and for injury to their dignity, feelings and self-respect.

(b) The respondents shall pay the applicants post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Decision.

Dated at Toronto, this 3^rd^ day of December, 2010.

”signed by”__________________

Eric Whist

Vice-chair