HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adriana Marchetti
Applicant
-and-
The Scott Mission
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Marchetti v. The Scott Mission
APPEARANCES
Adriana Marchetti, Applicant ) Self-represented
The Scott Mission, Respondent ) Adrienne Campbell, Counsel
INTRODUCTION
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in receipt of goods, services and facilities on the basis of race, place of origin, ethnic origin and age.
2The respondent denies discriminating against the applicant in any way and seeks dismissal of the Application.
3A hearing was held in Toronto, during which the applicant testified in support of her Application. On behalf of the respondent, I heard from Luisa Aita, Lusila Kunaseelan, Lois Markowich, Gary Lee and Carol Elliott. All five are employed in various capacities by the respondent, Scott Mission.
4For the reasons that follow, this Application is dismissed.
THE LAW
5Sections 1, 9 and 45.2 of the Code read as follows:
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.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
45.2 (1) 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:
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.
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.
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.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
THE EVIDENCE
6The applicant self identifies as an immigrant Spanish woman and says that because of her ethnicity, race and place of origin, she was treated disrespectfully by the staff at the Scott Mission, shouted at, spoken to in “a bad way” and eventually told not to come to the respondent’s offices for 6 months.
7In particular, she describes her interactions with staff in the clothing room located in the basement of the Scott Mission. She says she was always polite and followed the rules as they were explained to her. She always kept her bag in the corner and knows that it did not bother anyone else because she occasionally asked other people if the bag was in their way and they said it was not. Despite her compliant and polite behaviour, she says she was always shouted at by the staff in the clothing room.
8The applicant testified that she has certificates that show what kind of person she is, that she is a normal person, that she went to high school, university, volunteered and has been a “good performer” at work and at her studies. She says the respondent’s staff members discriminate against all immigrants. She does not speak English perfectly and believes that is the reason that she had a problem at the Scott Mission.
9The respondent’s witnesses say that the applicant was a client of their organization since 2007 or 2008, and that as a result of a number of interactions between her and the staff, culminating with an incident in March, 2009, she was issued a partial and temporary bar that prevented her from going into the clothing room to pick out her own items.
10Lois Markowich, the Assistant Deputy Head of the Women and Family Service Division and 17 year employee of the Scott Mission, gave evidence that, although she was not present on the date in March, 2009 when the applicant was issued the temporary ban, she had provided service directly to the applicant on several occasions.
11She testified that she had made a notation on the applicant’s file that read “EGR” which meant “extra grace required”. This notation is made if there is a potential for aggressive behaviour or if extra flexibility may be required in providing service to a client. She described it as a note to staff to amend their own behaviour when providing service.
12On a couple of occasions in October of 2008 and in January, 2009, she testified that she was called to assist because the applicant was upset or seeking assistance. In October, she reported that she had been called to assist because there was clothing all over the floor, the applicant’s voice was raised and she had called the staff “a bunch of animals”. She told the applicant that she needed to stop yelling, they went upstairs and talked. The applicant told her she needed a specific item of clothing and Ms. Marcowich went down and got it for her.
13The applicant’s complaint was she did not have enough time and was not finding what she needed. Lois Markowich says she went over the expectations and rules governing use of the clothing room services and walked the applicant through the process the next day. After that things seemed to improve for a while until another incident occurred.
14Ms. Markowich explained that part of her job was to support someone having a hard time and to support staff too. In her experience, the applicant never explained why but seemed to want to have a manager assist her all the time. She did say that the staff at the clothing room had seemed upset by the applicant’s behaviour.
15I heard from one of the two people who ordinarily work at the clothing room, Lusila Kunaseelan, who painted a somewhat different picture of the interactions between staff and the applicant than the version advanced by the applicant.
16She described the general procedure followed in the clothing room area. Two staff members work there and they see approximately 50 people in the morning and the same number in the afternoon.
17Women and children get a clothing slip from one of the counsellors working upstairs and then come to the basement. Clients are given a bag to take around the room to pick clothes and they are given a set amount of time to do so because of the large number of people being served. The client’s name is called after their allotted time is up.
18She says clients are told not to place clothing on the floor or on top of the racks so that the space remains neat and clean for everyone filtering through and also for health and safety reasons. She says it is not her practice, or that of other staff in the room, to shout at clients.
19She says that she was present on March 30, 2009 and observed that the applicant was putting clothes over racks and on the floor. Her co-worker, Lena, tried to be firm and ask the applicant to observe the rules. Ms. Kunaseelan denies that her co-worker shouted at the applicant. The applicant became angry and aggressive and her voice was raised. Both she and Lena thought they needed more help dealing with the applicant so Lena called to have someone sent down.
20Luisa Aita, a counsellor with 17 years experience at the Scott Mission, testified that she came downstairs because the distribution staff had asked for backup because the applicant was throwing clothing over the racks and guidelines were not being followed. Because there was a conflict, she tried to engage the applicant in conversation to see if she could help. She said a few words to the applicant in their mutual mother tongue, Spanish, but the applicant said she just wanted to speak to management. She was behaving aggressively towards staff and Ms. Aita’s impression was that she was angry, agitated and aggressive. She did not observe anyone, including the applicant, yelling or shouting.
21Gary Lee, an ordained Baptist minister and counsellor with 17 years experience at the Mission, testified that he received a phone call from his boss, Carol, that afternoon. She said she had reviewed the progress notes and told him that she wanted the applicant barred temporarily.
22He went down and asked the applicant to leave the premises. When she refused to leave, he called for backup and the applicant called the police.
23He says he called for backup to make sure the applicant did not harm herself, others or property. He says two other staff members from the Men’s Ministry joined him. They are all trained to use a team approach in crisis management and only one person speaks in the team. That person was him on that occasion. At no time did either of them say anything and he says they certainly did not shout at the applicant. In fact, he knows that crisis intervention training says that being firm and factual is the only way to deal with this type of situation.
24Mr. Lee testified that in the 17 years he has worked there, the police had never been called. The applicant had created a mess and she had been asked to leave. When the police spoke to him, as a result of the applicant’s call to them, he told them he wanted them to come and remove her. However, they did not come. As the applicant went to wait for the police by the front door and as he judged that she was not a threat to others, he went back to work.
25Finally, Carol Elliot, the Director of Women and Family Ministries at the Scott Mission, gave evidence that she was the person who made the decision to issue the partial and temporary ban after having reviewed the applicant’s file and noted that there had been many prior incidents of this nature. She felt this course of action was appropriate because of the applicant’s refusal to leave when asked and her refusal to follow rules. Her judgement was that it would be better in the short term if the clothing was retrieved for her by staff.
26She says that this decision was made in accordance with the organization’s policies and for non-discriminatory reasons and based solely on the applicant’s treatment of staff on several occasions.
27She testified that the decision did not prohibit access to any of the respondent organization’s services; it merely prohibited the applicant from entering the clothing room herself; clothes could still be obtained with the assistance of staff.
28The respondent’s position is that the rules are applied to all clients, not just to the applicant.
DECISION
Credibility
29Where my resolution of the factual differences relates to a credibility assessment, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:
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 carried 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 is reasonable in that place and in those conditions.
30Having considered the evidence, it is my view that the applicant has failed to establish that she experienced differential treatment in receipt of services on the basis of any of the grounds she has identified.
31I prefer the evidence of the witnesses for the respondent on the question of what transpired on the occasions on which she describes experiencing conflict with the staff of the Mission.
32The applicant’s suggestion that she was always, and without provocation, shouted at by the staff in the clothing room simply does not ring true. Her assertion that she was aware of the rules relating to use of the space and fully compliant is contested by four of the five witnesses presented by the respondent and I find their accounts of her conduct more credible.
33There is no indication that the treatment of the applicant by the respondent’s staff was different from that received by other clients of the organization or motivated, even in part, by Code grounds.
34Accordingly, the Application is dismissed.
Dated at Toronto this 17th day of November, 2011.
“Signed by”
Jay Sengupta
Vice-chair