HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Audrey Simpson
Applicant
-and-
Highland Farms Inc. and Tony Ponciano
Respondents
DECISION
Adjudicator: Eric Whist
Indexed as: Simpson v. Highland Farms
APPEARANCES
Audrey Simpson, Applicant ) Self-represented
Highland Farms Inc., Tony Ponciano, ) Greg McGinnis, Counsel
Respondents )
1This Application was filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination with respect to services on the basis of race and colour.
2The Application alleges that for a period of over three years the applicant has been subjected to discrimination, harassment and intimidation while shopping at a store owned and operated by Highland Farms Inc. (the “corporate respondent”). The Application alleges that the applicant has been followed by store employees, has had inappropriate interactions with store employees and, most significantly, has been subject to constant announcements over the public announcement system (the “p.a. system”) that indicate that her movements in the store have been monitored by store employees. In her Application, the applicant self-identifies as being a Black Canadian and a woman of colour.
3The Application was filed on September 24, 2009. On March 25, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
4The summary hearing was held on May 20, 2011. During the summary hearing, the applicant added more details about her understanding of what happened while she shopped at the corporate respondent’s store.
5The applicant alleges she was initially followed by store staff and that later the staff relied on announcements over the p.a. system to further intimidate her. According to the applicant, announcements such as “Bakery 101” and “Meat department 101” occurred whenever she shopped and would take place from when she entered the store until she left. It appears the applicant believes that these announcements were used by store employees to track her movements around the store.
6The applicant submits that the store’s interest was to harass and intimidate her with a view to making her stop shopping at the store because she was a person of colour. The applicant refers to several other incidents as well. She states that on one occasion a large male employee stood and stared at her while she was shopping for a birthday cake. On another occasion, a cashier asked her questions about her work and the names of her children, an enquiry the applicant described as friendly but intrusive. On another occasion, her shopping cart was searched when she was leaving the store. The applicant also referred to a recent incident in which rhythm and blues music was being played over the p.a system. The applicant was of the view that this music was deliberately being played in order to further harass her.
7The applicant contends that staff were directed to undertake all of these harassing actions by the store manager, Tony Ponciano, (the “personal respondent’). She submits that store employees would not have done these things on their own. The applicant submits that the evidence to support her allegations would come from store employees if they were required to testify. The applicant has taken a number of steps to obtain and serve summons for these potential witnesses.
8The respondents submit that the store in question serves a diverse neighborhood, that the grocery business is a highly competitive business, and that it would be the height of folly to attempt to prevent a person from shopping for Code related reasons. They submit that there is a well established non-discriminatory reason to make announcements such as “Bakery 101” or “Meat department 101” on the p.a. system; stating that “101” is a code used to indicate to a specific department such as the bakery or the meat department that there is an outside telephone call they need to answer. The respondents further submit that the person who dispatches these calls would not know the applicant and would not be able to trace her movements in the store and so the idea that these calls would be used to track or follow the applicant as she moved about the store is not plausible. They submit that the applicant’s theory of the case strains credulity. They submit that the applicant has provided no evidence to support her allegations and the thought that store employees would provide testimony to support her claims is entirely speculative.
ANALYSIS AND DECISION
9Rule 19A.1 reads as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
10In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
11The present case falls into the second category, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that there has been a violation of the Code. For the reasons that follow I find that the Application does not have a reasonable prospect of success and this is sufficient for me to conclude that the Application should be dismissed.
12The applicant alleges that the respondents have taken a number of actions over several years because they did not want her as a customer on account of her race and colour. The applicant does not allege that she has ever been refused service or that she has been prevented from shopping at the corporate respondent’s store. She alleges that the respondents have resorted to a practice of harassment over years with a view to intimidating her so that the applicant will decide to no longer shop at the corporate respondent’s store. Central to the applicant’s case is an allegation that the store’s staff are using the p.a. system to intimidate and harass her and to track her movements about the store.
13I find this allegation to be highly improbable and I am of the view that the applicant will not be able to establish, on a balance of probabilities, that the respondents have been attempting to harass her and to force her from the store in the manner she alleges. The fact that the p.a. announcements occur whenever the applicant is in the store does not lead me to accept that they are related to her presence in the store. The respondents have provided a cogent, alternative explanation for these announcements, that they are part of their regular business operation. I find it highly improbable that for over three years store staff would know each time the applicant was present in the store and would on each of these occasions actively seek to harass and track the applicant’s movements in the store by means of announcements over the p.a. system.
14The applicant contends that testimony of store staff would confirm her allegations. This is unsupported speculation. I do not believe the applicant has established any evidentiary foundation to support her allegations of discrimination except for the bald assertions that she has been singled out for this alleged harassment because of her race and colour. I do not see how, on a balance of probabilities the applicant can prove the deliberate, systematic and unceasing pattern of actions she alleges took place.
15The applicant also referred to being followed and having her shopping cart searched. I am mindful of the issue of persons belonging to an identified group being subject to particular scrutiny in stores or elsewhere in the belief that they pose an added security risk, for example, an added threat to shoplift. However, the applicant’s claim is that the respondents wished to drive her from the store, not that they suspected her of stealing, and that the respondents’ interest was to intimidate her and harass her. She also wishes to rely on claims that a store employee stared at her, that a particular type of music was being deliberately played to harass her, and that a cashier asked her about her job and her children’s names, an interaction the applicant describes as friendly but intrusive. And most importantly, the applicant wishes to rely on an allegation about coded messages over the p.a. system. In my view, the applicant will not, on a balance of probabilities, be able to establish the facts to support her theory of the case, that the respondents were deliberately and repeatedly attempting to force her to give up shopping in their store and were doing so because of her race and colour. There is not a reasonable prospect that the applicant can establish that there has been a violation of the Code.
16Consequently, the Application is dismissed.
Dated at Toronto, this 2nd day of June, 2011.
“signed by”
Eric Whist
Vice-chair```