Waigwe v. Easy Street Trading Inc., 2011 HRTO 243

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lucy Waigwe Applicant

-and-

Easy Street Trading Inc. Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: February 3, 2011 Citation: 2011 HRTO 243 Indexed as: Waigwe v. Easy Street Trading

APPEARANCES BY

Lucy Waigwe, Applicant ) Self-represented Easy Street Trading Inc., Respondent ) Bingiu Zeng and Miro Angelov, Representatives

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

BACKGROUND

2On July 30, 2010, the applicant, who self-identifies as an African lady, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to services because of her race, colour and ethnic origin.

3Specifically, she alleged that the following events occurred when she entered the respondent store in Toronto’s downtown Chinatown:

On Tuesday January 5^th between 4 and 4.30 PM I was shopping along Spadina Avenue when I entered into the store (Easy Street Trading). I started looking left and right at the merchandise. I also noted two ladies who I assumed were sales reps standing and eating and chatting directly across from the entrance. I walked slowly into the store then when I was about 1 meter in (within about 10 seconds upon entering), one of the sales reps shouted at me, “What do you want?” She was standing about 3 meters from where I was. I was really shocked at being verbally attacked without any provocation, that on reflex I said, “Bags and…” Before I could finish the sentence the other sales rep said, “Yeah what do you want, what kind of bags?” I was suddenly confused; I had to look back to see if I entered a private residence instead of a business. I then told them I needed to look before I decided what to buy, but with that kind of reception I would rather take my business elsewhere. I then walked out of the premises. There were no other customers in the store throughout the whole incident.

(…)

I felt harassed, discriminated and stereotyped against based on who I am and how I looked. I feel that the treatment I received was lesser than how they would treat someone of a different race…. I have shopped in many stores in the past, not only in Toronto but in different cities, different countries, but this was the only place that I have ever felt hatred directed at me making me feel very unwelcomed; that I don’t belong in the criteria of clients served at the store.

4On September 16, 2010, the Tribunal issued a Case Assessment Direction, which informed the parties that a Summary Hearing would be scheduled to hear submissions from the parties on whether the Application has a reasonable prospect of success. The respondent was informed that it was not required to file at Response at that time. The applicant was directed to be prepared to address how she intends to prove, on a balance of probabilities, that her race, colour and ethnic origin were factors in her treatment in the respondent store.

5On September 28, 2010, the respondent filed a letter, which denied the allegation of discrimination. The letter stated there are only two salespersons working in the store, and neither of them recalls the incident at issue in the Application. The letter also stated that both salespersons speak limited English, which is why the question, “What do you want?”, may have sounded rude to the applicant. The letter apologized to the applicant for any poor communication that may have occurred between the salespersons and her that she mistook as discrimination.

6The Summary Hearing took place by conference call on December 1, 2010. I heard submissions from the applicant, Bingiu Zeng (the owner of the respondent store), and Miro Angelov (the respondent’s legal representative). I also asked the parties questions. An interpreter was present to translate from English to Mandarin and Mandarin to English for Ms. Zeng.

RELEVANT RULE AND CASE LAW

7Rule 19A.1 of the Tribunal’s Rules of Procedure came into effect on July 1, 2010, and reads as follows:

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.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

9I would add that in cases where there are allegations of racial profiling or discrimination, the Tribunal should be cautious because racial stereotyping is often the result of subtle, unconscious beliefs, biases and prejudices, and can only be proven by circumstantial evidence and inference: Sinclair v. London (City), 2008 HRTO 48 at para. 18 and Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 (B.C.H.R.T.) at para. 482.

SUBMISSIONS

10The applicant submitted that she can prove that her race, colour and ethnic origin were factors in her treatment in the respondent store because of the rude manner in which the salespersons treated her, and because they do not treat other customers the same way.

11Specifically, she stated that the salespersons asked her what she wanted as soon as she entered the store and they saw that she was Black, they shouted at her during their entire interaction with her, and they did not provide any service to her. She stated that the salespersons treated her like she was a person trespassing on private property or a thief, rather than a customer. She further stated that the salespersons obviously do not treat other customers the same way that they treat her because, if they did, the store would not be in business.

12In response to my questions, the applicant admitted that there were no other witnesses to the incident, and she does not know of any other customers who went to the store and received rude or racist treatment. In response to a question from the respondent’s representative, she also admitted that she has never shopped in mainland China before, and does not know what the customer service practices are there.

13The respondent submitted that the applicant has not shown that she will be able to prove that her race, colour and ethnic origin were factors in her treatment because there is no concrete evidence of differential treatment, there were language and cultural factors at play during the interaction between the salespersons and the applicant, there was no denial of service, and the respondent store serves a large number of Black and Asian customers.

14Specifically, the respondent stated that the applicant has not shown that the salespersons made any comments about her race, colour or ethnic origin, and her allegations of rude and racist treatment are based on perception. The respondent also stated that both the salespersons speak limited English, and that the direct translation into English of what a salesperson would say to a customer in Mandarin in mainland China, which is where the salespersons are originally from, is, “What do you want?”

15I asked the interpreter, who is originally from China, whether the phrase in Mandarin that the applicant claims is used by salespersons in stores in China could be directly translated into English as, “What do you want?” The interpreter confirmed that the Mandarin phrase in question could be directly translated into English in that way.

16The respondent also denied that it refused to serve the applicant. The respondent stated that the applicant admitted that she left the store and refused to be served. The respondent further stated that 80 to 90 percent of its customers are Black or Asian, and that no one has made a complaint of discrimination before.

17In response to my question, Ms. Zeng denied that she has any beliefs that a Black person is more likely to steal from her store than a person of another race. She stated that, as a businessperson, she trusts all her customers, she does not think that Black customers steal from her store more than White customers, and she treats theft cases based solely on the facts of what happened.

DECISION

18I find that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated.

19It is not enough for the applicant to demonstrate that she has evidence, or will be able to obtain evidence, that can show that the salespersons treated her in a rude manner. Rude treatment is not uncommon in stores and other customer service settings. Rather, she must demonstrate that she has evidence, or will be able to obtain evidence, that can show a link between her treatment in the store and her race, colour and ethnic origin.

20Aside from a subjective belief that the store’s salespersons treated her in a racist manner, and a speculative theory that the store would not be in business if they treated all their customers the same way that they treated her, the applicant did not demonstrate that she has evidence, or will be able to obtain evidence, that can show that the salespersons treated her in a discriminatory manner because she is a Black African woman.

21The applicant also admitted that she will not be calling any witnesses who will corroborate her account of what happened, or any witnesses who will provide similar fact evidence.

22Finally, the applicant did not demonstrate, and I cannot see, how evidence of discrimination would emerge through the disclosure process or cross-examination of the salespersons.

23In these circumstances, there is no reasonable prospect that the Application will succeed.

ORDER

24The Application is dismissed.