Gerrald Stangret v. The Cadillac Fairview Corporation Limited, Best Buy Canada Ltd. and Brian Hope, 2011 HRTO 1467

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerrald Stangret Applicant

-and-

The Cadillac Fairview Corporation Limited Respondent

AND B E T W E E N:

Gerrald Stangret Applicant

-and-

Best Buy Canada Ltd. and Brian Hope Respondents

DECISION

Adjudicator: Ailsa Jane Wiggins Date: August 9, 2011 Citation: 2011 HRTO 1467 Indexed as: Stangret v. Cadillac Fairview

APPEARANCES

Gerrald Stangret, Applicant Self Represented

The Cadillac Fairview Corporation Limited, Respondent Trevor Lawson and Fazilah Hussen, Counsel to Cadillac Fairview

Best Buy Canada Ltd. and Brian Hope, Respondents Maureen Quinlan, Counsel to Best Buy

INTRODUCTION

1These Applications were filed under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights complaints (the "Complaints") were filed with the Ontario Human Rights Commission and abandoned upon filing these Applications with the Tribunal. As the Applications relate to similar facts and issues the Tribunal decided to process these Applications together.

2The applicant, who is white and says he uses a cane, alleges that he was discriminated against on the basis of colour, age and disability by the respondents, Best Buy Canada Ltd. ("Best Buy"), an electronics store, a Best Buy employee, Brian Hope, and the Cadillac Fairview Corporation Limited ("Cadillac Fairview"), owner of the shopping centre in which the Best Buy store in question is located, in the provision of services.

3The respondents deny the applicant's allegations of discrimination and maintain that the applicant was asked to leave the Best Buy store because of his loud and disruptive behaviour and that the applicant was banned from the shopping centre for one year after refusing to leave and verbally abusing Cadillac Fairview security staff.

THE LAW

4Section 1 of the Code deals with discrimination in the provision of services:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

SUMMARY OF ALLEGATIONS AND EVIDENCE

5I heard testimony from the applicant, Brian Hope, sales manager of Best Buy, Henry Celestine and Rehnee Fraser, security officers for Cadillac Fairview, and Patrick Nurse, tenant relations manager for Cadillac Fairview.

6I have carefully considered all of the evidence and the submissions of the parties. Given the divergent testimony, I have set out below an overview of the main allegations and evidence, which was important for the purposes of arriving at my decision.

The Applicant's Testimony

7The applicant went to the Best Buy store in the Eaton Centre to return a DVD player. According to the applicant he was standing in line, engaging in "small talk" with other people in the line, when Mr. Hope approached him and said:"I told you not to come back into the store." The applicant said that he didn't know what Mr. Hope was talking about. The applicant called Best Buy customer service from his cell phone and was told they would investigate it. As the applicant left the store he asked the greeter to call mall security because he believed that he had been harassed. According to the applicant he was the only person in the store who was old, white and disabled. However in cross examination he admitted that Mr. Hope said nothing about the applicant's race or disability.

8When the security staff arrived, Mr. Celestine and Ms. Fraser, the applicant explained to them what had happened. They went to talk to the store manager, Mr. Hope. When they returned they told the applicant that he was not allowed on Eaton Centre property because the store manager had told him before to leave the store. The applicant maintained that he had done nothing wrong and asked to speak to the security staff's supervisor. They then went to talk to a supervisor. When they returned they explained to the applicant that the manager did not want him in the store. They gave him a "Notice Prohibiting Entry" under the Trespass to Property Act but they did not complete the part of the notice regarding the reason for prohibiting entry. The applicant testified that he had no issues with the two security officers.

9The applicant denied that he was swearing and shouting. He maintained that he remained calm but the volume of his voice may have gone up "an octave or two" because he was scared of Mr. Hope. He also admitted that by the time he spoke to the security officer's supervisor he was agitated and although not yelling his voice was louder. He testified that he did not consider his behaviour to be belligerent and he does not remember being asked to lower his voice or calm down.

10When he got home the applicant called the tenant liaison manager, Mr. Nurse, and said that he wanted an apology and to be allowed into the Eaton Centre. Mr. Nurse told the applicant that he would get back to him but he never did. Mr. Nurse denies this. The applicant also called Best Buy to complain but they too did not respond to him,

Testimony of Brian Hope for Best Buy

11Mr. Hope testified that he was notified by the store's loss prevention officer that a customer in the return line, the applicant, was speaking very loudly and using profanities. Mr. Hope spoke to the applicant and asked him to calm down. The applicant told Mr. Hope that it takes forever to do returns and the applicant became abusive. Mr. Hope told the applicant that if he did not calm down he would have to leave the store. There were 10 to 15 people in the line, including a woman with two small children. Other people in the line also asked the applicant to calm down and stop using profanities. Mr. Hope said that the applicant did not have a cane; he was pushing the DVD player forward with his leg and not holding anything in his hands. The applicant continued to yell so Mr. Hope walked him out of the store.

12Mr. Hope said that when the mall security officers arrived he could hear them asking the applicant to calm down and he could hear the applicant swearing at them.

13Mr. Hope testified that the loss prevention officer who contacted him saw the incident on the store's cameras. However, the tapes were recorded over in the normal course prior to the Complaints being filed, so they were not available as evidence. The loss prevention officer left Best Buy in 2008 and they have been unable to locate him.

Testimony of Cadillac Fairview's Security Staff

14Mr. Celestine was patrolling the Eaton Centre with his partner, Ms. Fraser, when they got a call from their dispatcher to attend the Best Buy store because they were having a problem. Mr. Celestine testified that as they were approaching the store he could hear yelling, screaming and swearing.

15Mr. Celestine spoke to Mr. Hope who said he wanted the applicant out of the store because he was causing problems. Mr. Celestine told the applicant that the manager did not want him in the store. The applicant responded that he was getting kicked out for no reason. The applicant continued to yell so Mr. Celestine called his supervisor. He denied that the applicant asked him to make the call.

16Mr. Celestine testified that his supervisor spoke to the applicant and asked him to calm him down but the applicant yelled at the supervisor saying he was being kicked out because he was white. The applicant said he wasn't going to calm down so the supervisor told Mr. Celestine and Ms. Fraser to issue him with a "Notice Prohibiting Entry". Ms Fraser proceeded to fill in the form.

17Although the reason for prohibiting entry was not filled in by Ms. Fraser, Mr. Celestine testified that the applicant was told verbally that he was being served with the Notice because he was causing a disturbance and refused to leave the mall when asked. According to Mr. Celestine the applicant was asked to leave between ten and fifteen times.

18Ms. Fraser's testimony was consistent with Mr. Celestine's. She described trying to get the applicant to calm down so that he could give them his version of the events. She said that when their supervisor arrived they did not have to explain the situation to him as the applicant was still yelling and swearing.

19Ms. Fraser, who had only been working as a security officer for Cadillac Fairview for about a year, testified that she could not remember why she did not set out the reason for the applicant being barred from the mall. She said it was something which she would ordinarily do, but she may have just overlooked it on this occasion. However, she was clear that the applicant understood why he was being given the Notice.

20Ms. Fraser could not remember whether she, Mr. Celestine or the applicant asked for their supervisor to be called.

Testimony of Cadillac Fairview's Tenant Relations Manager

21Mr. Nurse testified that he did not recall a lot about the applicant's complaint but he did remember receiving a telephone call from the applicant who said he was mistreated because he was white and used a cane. Mr. Nurse said that the applicant's issue appeared to be with Best Buy, he did not raise any issues about Cadillac Fairview's security staff. Mr. Nurse said he would look into it and call the applicant back.

22Mr. Nurse testified that he spoke to another store manager, not Mr. Hope, who said he knew what had happened and that the applicant had created a similar disturbance in another Best Buy store. Mr. Nurse decided to give the applicant the telephone number for Best Buy's corporate office. He did not recall if he spoke to the applicant or left him a message. He did recall that they had an exchange of e-mails.

Decision

23There were significant conflicting allegations regarding the incident at the Eaton Centre. In assessing the credibility of the evidence given by the witnesses, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 at 356-357:

...Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

24In addition, I have considered the following factors set out in Cugliari v. Teleficiency Corporation, 2006 HRTO 7 at para. 26:

[T]he motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses' evidence and observations as to the manner in which the witnesses gave their evidence.

25The witnesses testified in a forthright manner but their recollections and perceptions of the incident varied slightly.

26The applicant did not allege that Mr. Hope made any comments regarding his age colour or disability, he simply said they Mr. Hope told him that he had been told not to come back to the store any more. According to the applicant Mr. Hope had no reason to approach him except to discriminate against him.

27Counsel for Best Buy referred me to Ellis v. Snow Trails Sales and Service Ltd, (2008) 63 CHRRD/96, a case in which the British Columbia Human Rights Tribunal noted that in order to establish a prima facie case of discrimination in relation to a service, the applicant must prove that (i) he/she is a member of one of the protected groups, (ii) the service was denied to him/her or that he/she received differential treatment in the provision of or access to that service and that the denial or differential treatment had an adverse effect on him/her ; and, (iii) his/her membership in a protected group was factor in the denial or differential treatment.

28I agree with counsel for Best Buy that there was no evidence that the applicant received adverse treatment based on a prohibited ground. The applicant himself admits that Mr. Hope said nothing about the applicant's age, colour or disability. I accept the testimony of the witnesses that the applicant was creating a disturbance and was asked to leave for that reason.

29Similarly there was no evidence that the applicant's age, race or disability played any role in the security officers' decision to prohibit entry to the Eaton Centre. The applicant testified that he had no issues with the security officers. He did not suggest that they had discriminated against him. His sole issue with them appears to be that they did not fill out the reason for prohibiting entry on the Notice.

30I accept that the fact that there was no reason listed on the Notice was an oversight. It was a stressful situation and in my opinion it was understandable that such a thing could be missed especially by a relatively inexperienced security officer such as Ms. Fraser. I accept the evidence of both security officers that they had made it clear to the applicant why he was getting the Notice.

31Counsel for Cadillac Fairview directed me to Stangret v. Toronto Transit Commission, 2008 HRTO 596, another case involving the applicant, Mr. Stangret. In that case the applicant alleged that a TTC employee who asked him about a transfer did so to demean, bully and discriminate against him because he is disabled. The Tribunal found that the TTC employee had a reasonable basis for his inquiry and noted that his questioning of the applicant was respectful "despite the applicant's initial defensiveness which quickly evolved into belligerence". Counsel for Cadillac Fairview argued that the applicant exhibited exactly the same kind of behaviour in that case as he did in this case. Counsel suggested that the applicant was annoyed about having to wait in line and that frustration is what triggered the series of events that lead to his removal from the store and prohibition from entering the Eaton Centre

32The applicant has the onus of proving, on a balance of probabilities that a violation of the Code has occurred. I find that on a balance of probabilities, in all the circumstances, after considering all the evidence, the respondents did not discriminate against the applicant on the basis of colour, age and disability in the provision of services.

CONCLUSION

33For the foregoing reasons the Applications are dismissed.