Nathaniel Clarke v. RioKim Holdings (Ontario) Inc., 2011 HRTO 432

Human Rights Tribunal of Ontario

B E T W E E N:

Nathaniel Clarke Applicant

-and-

RioKim Holdings (Ontario) Inc. o/a The Albion Shopping Centre Respondent

DECISION

Adjudicator: Mark Hart Date: March 1, 2011 Citation: 2011 HRTO 432 Indexed as: Clarke v. RioKim Holdings (Ontario)

APPEARANCES

Nathaniel Clarke, Applicant ) Brian Noble and Selwyn Pieters, Counsel RioKim Holdings (Ontario) Inc. o/a The Albion Shopping Centre, Respondents ) Alexandra Lev-Farrell, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the Code) dated February 13, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 13, 2006 and abandoned upon filing this Application with the Tribunal.

2The applicant alleges that he experienced discrimination because of his race, colour and ethnic origin with respect to the provision of services, goods and facilities contrary to sections 1 and 9 of the Code and also alleges that he experienced reprisal contrary to sections 8 and 9 of the Code, arising out of two incidents in early 2006 involving security guards working at a shopping mall.

3The hearing in this matter was held on September 23, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(5) applications proceed in an expeditious manner. I heard from the applicant, his grandmother and two security guards called by the respondent. The parties agreed to make their final argument by way of written submissions, which were filed in accordance with the timetable established at the hearing. The final written submissions were received on October 28, 2010.

Background

4The respondent RioKim Holdings (Ontario) Inc. is the owner of a shopping mall in the Toronto area called The Albion Shopping Centre (the “Albion Centre”). At the material time, the respondent had entered into a security services contract with a company called SIR Investigation & Security Agents Inc. (“SIR”) to provide security services at the Albion Centre. The two security guards who testified before me, Nasir Ghiasi and Vlad Leiderman, were employed by SIR and worked at the Albion Centre. SIR stopped being the security provider for the Albion Centre sometime in 2006.

5The applicant was a 14 year old student at the time in early 2006 and attended a local high school. As the high school was in close proximity to the Albion Centre, he regularly went there to buy and eat his lunch with friends from the school. The applicant self-identifies as a Black, African-Canadian male.

6On January 23, 2006, the applicant was at the Albion Centre eating his lunch in the Food Court with three other students, who were identified by the applicant as being three other Black males. The applicant states that he was eating a lunch that he had purchased from McDonalds, and when he was finished, he states that he got up and threw his garbage into the trash bin. He states that he was not causing a disturbance or trouble in any way while he was eating his lunch.

7He states that when he left the Food Court, he was approached by two security guards who told him that if he didn’t clean off his table, he would be banned from the mall. He states that he replied that he was not going to clean off the table, because it wasn’t his garbage. He states that one of the security guards then grabbed him by the zipper of his jacket and broke his student ID card, which was hanging on a lanyard around his neck. He states that a Black man who was in the line at McDonalds saw what was happening and intervened, and the security guards then stopped. He acknowledged in his evidence that he probably cursed at the guards afterwards because he was upset.

8While the applicant acknowledges that he was told by the security guards that he would be banned from the mall if he didn’t clean up the garbage at his table and while he admittedly did not clean up the garbage, the applicant testified that he did not believe that he was banned from the mall. He stated on cross-examination that he felt that the guards’ actions were unjustified and that he had every right to be at the mall.

9Mr. Ghiasi, one of the security guards, testified that it was part of his practice to monitor the Food Court during lunch hours, as a lot of students came to the mall at that time and the area would get pretty crowded and at times there would be arguing, fights and disturbances. The applicant himself acknowledged on cross-examination that the Food Court would get busy at lunch with a lot of students, and that he has seen students get rowdy, leave garbage, engage in food fighting, and cause disturbances.

10Mr. Ghiasi states that as a “courtesy thing”, the security guards would tell students to clean up their garbage, as there was only one cleaner at the mall. On cross-examination, Mr. Ghiasi acknowledged that there was no “written policy” requiring mall patrons to clean up their garbage and that it was not part of his job description to tell patrons to clean up their garbage. Nonetheless, Mr. Ghiasi testified that he did approach mall patrons that he observed leaving their garbage behind to ask them to clean up. On cross-examination, Mr. Ghiasi initially agreed with the proposition that he approached everyone who left their garbage behind, and then amended his answer to say that he approached most of the people he observed leaving their garbage behind. The applicant’s evidence is that he had never seen a security guard at the Albion Centre ask someone to clean up their garbage, although he had seen them intervene to stop a disturbance.

11On January 23, 2006, Mr. Ghiasi states that he was with a second security guard, Mr. Leiderman, at their usual post by the garbage bins at the corner of the Food Court near McDonalds. He states that he observed the applicant eating lunch with his friends, and noticed that when the applicant got up, he left his garbage behind. Mr. Ghiasi states that the applicant was about 15 feet away from him at the time. Mr. Ghiasi states that he approached the applicant and told him that he couldn’t leave his garbage behind, to which the applicant responded, “get out of my face yo”. The notes of the incident prepared by Mr. Ghiasi at the time actually record the applicant as saying, “get the fuck off my face yo”. Mr. Ghiasi states that he followed the applicant and told him that if he didn’t clean up the garbage, then he was not allowed in the mall. Mr. Ghiasi states that applicant just walked away, said “fuck off” and left the mall.

12As part of his duties, Mr. Ghiasi maintained a memo book, in which he recorded his notes of incidents of this nature. His evidence is that notes in his memo book were made at or shortly after the time an incident occurred. Then, at the end of his shift, he stated that it was his practice to write an incident report for serious incidents, which would be reviewed by his supervisor, signed by him, and then sent to the respondent. Mr. Ghiasi states that his original memo book from the time of the incidents in question is in the possession of SIR, and he did not personally maintain a copy. The memo book itself was not in evidence before me.

13The respondent did, however, produce three versions of incident reports regarding the incident on January 23, 2006. Mr. Ghiasi states that the first incident report was prepared at the end of his shift on the date of the incident. The report states that on January 23, 2006 at 12:39 p.m., Mr. Ghiasi noticed an unidentified teen who had just finished lunch and left his recycles behind. The report states that Mr. Ghiasi politely approached the individual and asked him to clean up, but the individual refused to do so, stating “get the fuck off my face yo”. The report makes reference to a prior incident where this same individual had refused to clean up his garbage, and was advised by a police officer to clean up or he would be trespassed from the mall. The applicant denies that any such prior incident occurred. The report concludes by stating that Mr. Ghiasi verbally trespassed the individual for engaging in prohibited activities on private property. This version of the incident report is unsigned.

14Mr. Ghiasi’s evidence is that a revised version of the incident report was prepared the next day to include more information. The witness statement filed on behalf of Mr. Ghiasi, which he affirmed as true at the commencement of his evidence, states that the revised report was prepared “a few days” later. I don’t regard this as being a material contradiction in his evidence. The revised report changed the reference to “recycles” to the applicant having left an “empty McDonalds bag and drink” on the table. The revised report also states that Mr. Ghiasi approached the applicant twice to ask him to clean up his garbage, the first time being ignored by the applicant and the second time with the applicant causing a disturbance by loudly saying “get the fuck off my face, yo” and showing off in front of his friends. The revised report also contains a re-worded reference to the prior incident where the applicant was asked by a police officer to clean up his table. The revised report states that “due to the repeated pattern of incidents and causing disturbance in the food court to other tenants by swearing out loud”, Mr. Ghiasi verbally trespassed the applicant from the Albion Centre for a period of three months, with his return depending upon his behaviour. The revised report also states that Mr. Ghiasi told the applicant that if he came back, he would be arrested under the Trespass to Property Act. The revised report records the applicant as yelling “fuck you” as he was leaving the mall through the Pizza Pizza entrance, and that the police weren’t contacted as the applicant left the mall on his own.

15The third version of the incident report is the same as the revised version, but is signed by Mr. Ghiasi. Mr. Ghiasi testified that it was the signed version of the report that was submitted to the respondent as the final version.

16Mr. Ghiasi denies that he touched the applicant during the course of the incident on January 23, 2006, nor does he recall another adult intervening as described by the applicant.

17Mr. Leiderman, the second security guard, provided a somewhat different account of the events on January 23, 2006. Mr. Leiderman states that he was with Mr. Ghiasi monitoring the Food Court on that day, and noticed a large disturbance and loud use of profanities coming from the table where the applicant was eating lunch with his friends. When this continued, Mr. Leiderman’s evidence is that Mr. Ghiasi approached the table and asked the students to quiet down. Mr. Leiderman states that the students did not respond to Mr. Ghiasi, and Mr. Ghiasi stepped back. Mr. Leiderman states that a few minutes later, there was another loud use of profanities and he observed a piece of food, perhaps a french fry, being thrown from one table to another. At this point, Mr. Liederman states that Mr. Ghiasi approached the table again and asked them to clean up, and that all of the students complied except the applicant. He states that Mr. Ghiasi asked the applicant again, and got no response. He states that Mr. Ghiasi then asked a third time, at which point the applicant made a rude reply and told Mr. Ghiasi to get the fuck out of his face.

18Mr. Leiderman’s evidence is that at this point, there was a disturbance and the applicant was asked by Mr. Ghiasi to leave the mall. He states that again there was “ignorance” from the applicant and the applicant didn’t leave. He states that Mr. Ghiasi then said that if the applicant didn’t leave, he would be banned from the mall for three months, and again the applicant ignored this. He states that Mr. Ghiasi then advised the applicant that he was no longer allowed in the mall, at which point the applicant got up slowly and made his way out the mall and along the way turned and screamed “fuck you” at Mr. Ghiasi. Mr. Leiderman states that Mr. Ghiasi did not touch the applicant during this incident.

19On cross-examination, Mr. Leiderman was confronted by the significant discrepancies between his version of the incident and the evidence given by Mr. Ghiasi. Mr. Leiderman’s response was that he was not responsible for Mr. Ghiasi’s evidence, and was testifying from his own recollection of the incident. I do not accept Mr. Leiderman’s evidence regarding this incident for several reasons. The incident had occurred over four and a half years prior to Mr. Leiderman giving evidence at the hearing. He did not have any memo book available to refresh his memory of the incident, and he did not write any incident report at the time. He also was less directly involved in the interaction with the applicant than Mr. Ghiasi. I am not suggesting, however, that Mr. Leiderman was deliberately not telling what he believed to be the truth when giving his evidence. Indeed, it is hard for me to fathom what purpose would be served in Mr. Leiderman contradicting the evidence given by Mr. Ghiasi. No party asked for an order excluding witnesses, so Mr. Leiderman was present in the hearing room when Mr. Ghiasi gave his evidence and knew that his evidence regarding this incident was different than Mr. Ghiasi’s. Accordingly, I find that Mr. Leiderman is mistaken in his recollection of this incident, perhaps because his memory has become encrusted over time and conflated with other incidents that occurred at the mall.

20On the evening of January 23, 2006, the applicant related to his grandmother what had happened at the mall. There is no dispute that the applicant’s grandmother then went over to the mall that evening at around 7:00 p.m. and spoke with Mr. Ghiasi. The applicant’s grandmother states that she questioned Mr. Ghiasi about who gave him the right to touch her grandson, to which Mr. Ghiasi replied that he hadn’t touched him. She states that Mr. Ghiasi put his hand on his shoulder to show her what he had done, to which she replied that he shouldn’t touch her grandson. She states that the conversation then became heated.

21Mr. Ghiasi denies that he demonstrated how he had touched the applicant, as his evidence is that he didn’t do so. He states that he confirmed to the applicant’s grandmother that the applicant was banned from the mall for three months, to which she responded that the trespass was unauthorized. Mr. Ghiasi states that he did not withdraw the trespass. Mr. Ghiasi testified that he prepared the initial version of the incident report immediately after his discussion with the applicant’s grandmother.

22The applicant’s grandmother gave evidence that she returned to the mall the next morning to speak with Mr. Ghiasi’s supervisor, and identified Mr. Leiderman as the person she spoke to. Mr. Leiderman was not Mr. Ghiasi’s supervisor and has no recollection of having spoken to the applicant’s grandmother at this time. In my view, nothing turns on whether or not the applicant’s grandmother spoke to someone else about the January 23, 2006 incident on the following morning.

23There is no dispute that over the next few weeks, the applicant continued to go to the Albion Centre. Both Mr. Ghiasi and Mr. Leiderman testified that they had seen the applicant at the mall on several occasions following the January 23, 2006 incident. However, their evidence is that, on these occasions, the applicant was in a group of people and they did not want to risk causing a disturbance by approaching him in such circumstances to enforce the verbal trespass notice. Once again, there is a contradiction between Mr. Ghiasi’s evidence and that of Mr. Leiderman, in that Mr. Ghiasi testified that he was alone on the occasions when he observed the applicant in the mall whereas Mr. Leiderman testified that he was with Mr. Ghiasi on these occasions. Once again, in my view, nothing turns on this contradiction, which I believe is attributable to the passage of time and the absence of any memo books or other notes to refresh these individuals’ memories after four and a half years.

24The second incident at issue in this proceeding occurred on February 21, 2006. The applicant’s evidence is that on this day, he was walking home from a basketball practice after school and went through the Albion Centre to get something to eat at McDonalds. He states that at this point, he was stopped by the two security guards, who asked what he was doing at the mall. The applicant states that he replied that he was just going home. The applicant states that the guards then dragged him from McDonalds to the security office. He states that the security guards told him that if he didn’t provide his address, he would be picking his teeth up off the floor. He also states that they took his photograph and put it on a bulletin board with some other photos. He states that one security guard told him that he was going to show the photo to the applicant’s friends, so that they could laugh at him. He also states that the guards did not call his parents or grandmother.

25On cross-examination, the applicant acknowledged that he resisted going down to the security office. He states that when he was in line at McDonalds, he was grabbed by the hood of his jacket and was told that he was coming with the guards. He states that this was when he was resisting, and that he was being dragged by his hood. The applicant was given a written trespass notice banning him from the Albion Centre for one year, and was taken home by the police.

26Mr. Ghiasi and Mr. Leiderman both were involved in this incident. Mr. Ghiasi’s evidence is that he observed the applicant walking into the mall through the Pizza Pizza entrance. He states that he approached the applicant and told him that he was not allowed to be in the mall, to which the applicant responded that he was. Mr. Ghiasi’s evidence is that it was at this point that the applicant was told that he was under arrest for trespass. Mr. Ghiasi states that he and Mr. Liederman were escorting the applicant to the security office, and the applicant started resisting as they neared the office. Mr. Ghiasi states that he and Mr. Leiderman took hold of the applicant by the shoulder, arm and forearm, and denies that they “dragged” the applicant. Mr. Ghiasi further denies that either guard made a statement about the applicant picking his teeth up off the floor.

27Mr. Leiderman’s evidence is largely supportive of Mr. Ghiasi’s regarding this incident, with some differences and some additional detail. Mr. Leiderman’s evidence is that Mr. Ghiasi twice told the applicant that he had been trespassed from the mall before the applicant was placed under arrest. Mr. Leiderman’s evidence is that he was the one who placed the applicant under arrest for violating the Trespass to Property Act. He states that he took physical control of the applicant by placing his hand on the applicant’s backpack, and escorted the applicant to the security office. He states that the applicant at first complied, but as they approached the customer service desk, which is up a short flight of stairs from the security office, the applicant started resisting by swinging around and attempting to escape custody. Mr. Leiderman states that at this point, in order not to lose control of the applicant, he took the applicant’s hand on one side and Mr. Ghiasi took the applicant’s hand on the other side, and they led him into the security office.

28Mr. Leiderman states that once they were in the security office, he read the applicant his right to counsel and searched him for identification, finding only the applicant’s student ID. He states that he requested further information from the applicant including the phone number of his legal guardian, but these requests were ignored. At this point, he states that he issued the written trespass notice for one year and contacted the police. He states that the police arrived about 45 minutes later, at which point the applicant was placed in their custody. He states that he then stayed in the security office to prepare the incident report.

29In evidence before me were three versions of Mr. Leiderman’s incident report regarding this incident. The first version is the incident report as initially prepared by Mr. Leiderman. The second version is one that Mr. Liederman states that he revised a few days later to include the statement that no hand restraints were applied. It also was noted in cross-examination that Mr. Leiderman changed the report from saying that the applicant “began resisting the arrest resisting to go to security office by pushing back” to saying that he “began resisting the arrest by swinging his arms and pushing back”. In my view, there is no significant or material difference between these two formulations. The third version of the incident report is identical to the revised version, except that it is signed by Mr. Leiderman. Mr. Leiderman’s evidence is largely consistent with the contents of the incidents reports.

30There is no dispute that following this incident, the applicant’s grandmother called security at the Albion Centre and spoke briefly with Mr. Leiderman, who essentially stated that he did not want to discuss the incident with a third party. In my view, nothing turns on this conversation.

Analysis and Findings

31This case primarily raises an allegation of racial discrimination arising out of how the applicant was treated by the security guards on these two occasions. The principles that apply in the context of this Tribunal’s analysis of racial discrimination cases recently were reviewed and approved by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884, where the Court stated (at paras. 75 to 79):

[75] Many discrimination cases, such as this case, do not involve direct evidence that a complainant’s colour or race was a factor in the incident in question. A tribunal must draw reasonable inferences from proven facts.

[76] (. . .) The Tribunal correctly outlined the principles that apply in cases involving an allegation of racial discrimination. (. . .:)

(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 the effect of the respondent’s actions on the complainant;

(c) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(d) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).

[77] In cases where discrimination must be proved by circumstantial evidence, there are no bright lines. The Tribunal must determine what reasonable inferences can be drawn from proven facts. These are difficult, nuanced cases that are important to both the parties, to society and the neighbourhoods in which we live. The Tribunal notes (at para. 17):

In this case, as in many cases alleging racial discrimination, there is no direct evidence that race was a factor in the officer’s decision to take the actions that he did. As a result, the issue of whether the officer’s actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the following well-established principles applicable to circumstantial evidence cases.

(1) Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.

(2) It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.

(3) A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

(4) There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

(5) The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

[78] The Tribunal confirms that it did not have to find that race was the only or the major factor leading to the discriminatory conduct. It also did not need to find that there was an intention to discriminate, as racial stereotyping will often stem from unconscious biases or beliefs. The Tribunal was well aware of the difficult, nuanced question that it had to determine. It states (at paras. 18-19):

In determining whether the inference of racial discrimination is more probable than the explanations offered by the respondent officer, I also need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level: Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 4.

Courts in Canada have accepted that racial profiling by police occurs in Canada and have indicated their willingness to scrutinize seemingly “neutral” police behaviour to assess whether it falls within the phenomenon of racial profiling. In R. v. Brown (2003) 64 O.R. (3) 161 (Ont. CA) at para. 9, Morden J.A. stated that the Crown’s concession that the phenomenon of racial profiling existed was “a responsible position to take because … this conclusion is supported by significant social science research”. In Peart v. Peel Regional Police Service Board, [2006] O.J. No. 4456 (Ont. CA), Doherty J.A. stated that “racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it.”

32This case also requires me to assess the credibility of the witnesses who testified before me. In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) and particularly the following comments at pp. 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 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 the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

33With regard to the incident on January 23, 2006, there appears to be no dispute – at least as between the applicant and Mr. Ghiasi – that the incident originated with Mr. Ghiasi’s request that the applicant put some garbage that had been left at the table where the applicant and his friends had been eating into the garbage bin. Mr. Ghiasi testified that he saw that it was the applicant’s garbage. The applicant says that it wasn’t. In my view, it doesn’t matter for the purpose of this decision whether it was or wasn’t the applicant’s garbage. The material point for me is, and I find, that Mr. Ghiasi believed that the applicant had left his garbage behind on the table and that is why he asked him to clean it up. This, in my view, had nothing to do with the applicant’s race.

34In his final submissions, applicant’s counsel takes the position that the applicant was over-scrutinized by Mr. Ghiasi while he was eating his lunch at the mall in an effort to portray this as a case of racial profiling. Applicant’s counsel submits that Mr. Ghiasi was so “fixated” on the applicant that he knew where he was sitting, what he was eating, when he got up to leave, and precisely what garbage he had left on the table. With respect, that was not the evidence. There was no evidence from the applicant that Mr. Ghiasi or Mr. Leiderman were “fixated” on him while he was eating lunch. And that certainly is not Mr. Ghiasi’s evidence. Mr. Ghiasi’s evidence on cross-examination was that his attention was not focused on the applicant the entire time. Rather, he states that he happened to look at the applicant when the applicant was getting up from the table, and saw that there was garbage left on the table. I also note Mr. Ghiasi’s evidence that the applicant was sitting at a table only 15 feet away from where he and Mr. Leiderman were standing, which makes sense as their testimony is that their regular post during lunch is at the corner of the Food Court by the McDonalds and as the applicant states that he was eating McDonalds for lunch. In my view, the evidence supports a finding that what caught Mr. Ghiasi’s attention was the applicant’s proximity to where he was standing and his belief that the applicant had left his garbage behind. The evidence does not, in my view, support a finding that Mr. Ghiasi was “fixated” on the applicant or that the applicant was being over-scrutinized.

35As stated above, much was made at the hearing about the fact that there was no written policy or rule requiring mall patrons to dispose of their garbage and that it was not part of the security guards’ job description to tell people to clean up their garbage. While both points may be true, I do not believe that this advances the applicant’s case. Mr. Ghiasi’s testimony, as supported by Mr. Leiderman, is that they would ask mall patrons to clean up their garbage as a regular practice, because there was only one cleaning person on staff at the mall. In my view, applying the test from Faryna v. Chorny, supra, this evidence accords “with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

36In his reply submissions, applicant’s counsel takes the position that mall patrons are entitled to leave their garbage on food court tables for someone else to clean up. There is no evidence before me to support such a proposition. That security guards at the Albion Centre took it upon themselves as a “courtesy thing” to ask people to take care of their garbage strikes me as being eminently reasonable, particularly in the context of a busy and crowded lunch period and a lack of cleaning staff.

37Nor is there evidence to support the applicant’s argument that the requirement to get rid of your own garbage was selectively enforced in a manner that racially discriminated against the applicant. The applicant’s evidence was that he had never seen any other student asked to dispose of their garbage. Even if that were true, this doesn’t mean that it didn’t happen – just that the applicant didn’t see it. In contrast, Mr. Ghiasi’s and Mr. Leiderman’s evidence is that it was their regular practice to do this, and that such requests were made to mall patrons regardless of their race, colour or ethnic origin. There is no evidence to contradict this. In contrast, in Loomba v. Home Depot Canada, 2010 HRTO 1434, upon which the applicant relies, there was evidence before the Tribunal that the “hard hat” rule was not regularly or rigourously enforced. There is no such evidence before me.

38With regard to the applicant’s use of profanities as being a basis for his being banned from the mall, applicant’s counsel relies upon this Tribunal’s decision in Naraine v. Ford Motor Company [1996] O.H.R.B.I.D. No. 23, at paras. 96-97, to argue that the applicant should not be punished for his response to discriminatory conduct. While I certainly accept and agree with the principles as established in the Naraine decision, I do not find that these principles are applicable in this case. I already have found that the applicant was approached because garbage had been left on the table where he and his friends had been eating their lunch, and not because of his race, colour or ethnic origin, and that he swore at the guard after being asked to clean up this garbage. The evidence does not support that the applicant used profanities as a result of being subjected to racial discrimination.

39In his submissions, the applicant takes the position that he was not trespassed from the mall. I do not accept this evidence. On his own evidence, the applicant states that he was told that if he didn’t clean off the table, he would be banned from the mall. There is no dispute that the applicant didn’t clean off the table. I accept the applicant’s evidence as to his own subjective belief that he wasn’t validly banned from the mall because in his view the security guard’s request was unjustified since it wasn’t his garbage. Nonetheless, I find that the preponderance of the evidence supports that the applicant was told that he was banned from the mall.

40There also was much debate before me about whether part of the reason for the ban was because the applicant didn’t clean up the garbage. Once again, in my view, this does not bear upon the issue before me, which is whether the applicant experienced racial discrimination as a result of the January 23, 2006 incident. I already have found that the fact that the applicant got up from the table and there was still garbage on the table, was the genesis of Mr. Ghiasi’s request that the applicant clean it up. I find, however, that this alone did not result in the applicant being banned from the mall. Rather, I accept the Mr. Ghiasi’s evidence and find that in response to the request, the applicant said, “get the fuck off my face yo”. This statement consistently appears in the initial and revised incident reports prepared by Mr. Ghiasi, which I find were prepared contemporaneously with the events. While Mr. Ghiasi provided a slightly differently formulation of words when giving his oral evidence before me, I prefer to base my finding on the statement as recorded at the time in the incident reports.

41In making this finding, I do not accept the applicant’s evidence that he did not use profanities towards Mr. Ghiasi until later in the incident. I find that it does not accord with the preponderance of probabilities that the applicant would be banned from the mall simply for refusing to clean up garbage that he said did not belong to him, without him having done or said something more. I find that the “something more” that the applicant said was the statement as recorded by Mr. Ghiasi at the time. Further, I note that the applicant did not call any witnesses who were among the group of friends with whom he ate lunch that day, and who presumably could have testified about what occurred. The applicant’s evidence on cross-examination is that when he was approached by Mr. Ghiasi and asked to clean up the table, he had “a lot of friends present”. He later confirmed that during the incident, he was “surrounded by friends and people that he knew”. Despite being asked, no explanation was offered as to why none of these individuals were called as witnesses to corroborate his testimony.

42For the same reason, I do not accept the applicant’s evidence that he was grabbed by Mr. Ghiasi. Once again, on the applicant’s own evidence, this would have occurred when his friends were present, and yet none of them were called to give evidence to corroborate the alleged physical contact, which is denied both by Mr. Ghiasi and Mr. Leiderman. There also is the matter of the missing physical evidence. The applicant testified that his student ID was broken in the struggle. No such physical evidence was introduced before me.

43When asked about this on cross-examination, the applicant’s grandmother testified that she saw the broken lanyard, but that it was lost when they moved. The applicant’s grandmother also testified that she was told by the applicant that a guard had grabbed him and broke a button off his shirt. This evidence was given for the first time at the hearing and is not mentioned either in the complaint or in her witness statement, where reference is made to Mr. Ghiasi having grabbed the applicant’s “front zipper”. No explanation was provided as to why evidence was now being tendered that a button was broken, nor was any damaged shirt or button tendered into evidence.

44I don’t wish to dwell unduly on the absence of physical evidence. What is more significant to me is the absence of corroborating testimonial evidence, when such evidence should have been readily available to the applicant. He should be able to recall who he ate lunch with at the mall that day. There is no evidence before me that he doesn’t and he didn’t say that he doesn’t remember when he was asked on cross-examination about not calling these individuals as witnesses. His own evidence is that his friends were present during the incident. If he had been physically grabbed by Mr. Ghiasi as alleged and if he in fact had experienced damage to his student ID and perhaps also his shirt or jacket, it is hard to believe that at least one of his friends wouldn’t have been able to provide supporting evidence about this. Even if his friends for some reason didn’t see the physical interaction, the applicant’s own evidence is that he was surrounded by them when approached by Mr. Ghiasi and surely they could have supported the applicant’s version that he didn’t swear at Mr. Ghiasi until later. Yet none of these individuals was called to give evidence, and no explanation was provided for this failure.

45Applicant’s counsel also referred me to my decision in Abbott v. Toronto Police Service Board, 2009 HRTO 1909 and invited me to consider how events would have unfolded if the applicant had been White instead of Black. I will do so, on the basis of the facts as I have found them. Could I imagine a White student who left garbage on a Food Court table being asked by a security guard to clean it up? Yes I can. If a White student had refused and had told the security guard “get the fuck off my face yo”, can I imagine this individual being verbally banned from the mall for a period of three months? Yes I can.

46Accordingly, for all of these reasons, I find that neither the applicant’s race, colour nor ethnic origin was a factor in the January 23, 2006 incident.

47This leaves the question of the incident on February 21, 2006. I already have found that the applicant was in fact banned from the Albion Centre as a result of the January 23, 2006 incident, regardless of his subjective belief that this ban was invalid. I accept the evidence of Mr. Ghiasi and Mr. Leiderman that, though they saw the applicant on some occasions after January 23, 2006, he was with a group and they did not want to risk causing a disturbance, as this seems entirely reasonable to me.

48Given my finding that the applicant was in fact banned from the mall, the inescapable conclusion is that he was confronted by Mr. Ghiasi on February 21, 2006 for this reason and not for any reason related to his race, colour or ethnic origin. I accept the applicant’s evidence that he refused to leave the mall because he believed that the ban wasn’t valid. But Mr. Ghiasi and Mr. Leiderman believed the ban to be valid and enforceable. It is not my jurisdiction to determine whether or not the ban was valid under the Trespass to Property Act in the abstract and apart from any issue of discrimination. My jurisdiction is to determine whether the applicant’s race, colour or ethnic origin was a factor in Mr. Ghiasi’s decision to approach the applicant on February 21, 2006 to tell him that he was not allowed in the mall and/or in Mr. Lederman’s decision to arrest the applicant for trespassing when he did not leave as instructed. I find that they were not.

49The next question is whether the applicant’s race, colour or ethnic origin was a factor in how he was treated subsequent to his arrest. The applicant states that he was dragged by his hood to the security office. Mr. Ghiasi and Mr. Leiderman say that when they got in the vicinity of the customer service desk, nearby the security office, the applicant started resisting and they took firmer control of him. I do not accept the applicant’s evidence that he was dragged by the hood the entire way from the Food Court to the security office. This evidence does not even accord with what is stated in the applicant’s complaint, which is that the security guard “grabbed his jacket arm and was pulling him”. Rather, I accept the evidence of Mr. Ghiasi and Mr. Leiderman, as supported by the contemporaneous incident reports prepared by Mr. Leiderman, that at a certain point, the applicant started to resist and they took firmer control of him. I do not find that the applicant’s race, colour or ethnic origin was a factor in how he was taken to the security office.

50With regard to the comments about “picking your teeth up off the floor” if certain information wasn’t provided and showing the photo to the applicant’s friends, there is inconsistency between the comments as stated by the applicant in his complaint and as stated in his testimony at the hearing, which in my view makes his evidence unreliable. The applicant’s complaint contains no reference to any statement by a security guard about showing his photo to his friends. Yet the complaint does contain reference to the security guard making a threatening comment about a “friend” of the applicant’s being “next”, of whom the applicant states he had no knowledge. No such evidence was given by the applicant in his evidence before me. In addition, in his evidence, the applicant stated that he was told he would be picking his teeth up off the floor if he didn’t provide his address, whereas in his complaint he states that the comment was that this would happen if he didn’t stop talking.

51Still further, in her evidence at the hearing, the applicant’s grandmother stated for the very first time that the applicant had taped the February 21, 2006 incident on his cellphone, including the comment about “picking your teeth up off the floor”, but that the tape had been lost two to four years prior to the hearing. I do not find this evidence to be credible, particularly as it emerged for the first time at the hearing.

52Issues were also raised about the fact that Mr. Leiderman took a photograph of the applicant without his permission, and that he didn’t personally contact the applicant’s legal guardian. In my view, these matters do not raise an issue of racial discrimination on the basis of the evidence before me.

53Accordingly, for all of these reasons, I find that neither the applicant’s race, colour nor ethnic origin was a factor in the incident on February 21, 2006.

54The complaint before me also alleges reprisal, although no submissions were made by the applicant in support of this allegation. I presume that reprisal was alleged based upon the allegation in the complaint that on February 21, 2006, the security guard is alleged to have said to the applicant that he was coming with them “since your grandmother came here and spoke to us the last time”. However, this evidence was not given before me by the applicant. Accordingly, there is no evidentiary basis to support the allegation of reprisal.

55In the course of written submissions, objection was taken by applicant’s counsel to a sur-reply filed by respondent’s counsel, as no such submission was contemplated in the directions provided by the Tribunal. I have placed no reliance upon this sur-reply in reaching my determinations. I will say that, in my view, the reply submissions filed by applicant’s counsel went far beyond the bounds of proper reply, which should be brief and should not raise matters that could have been raised in submissions in chief. Nonetheless, I have reviewed and considered these reply submissions in their entirety in making my determinations.

56Following the expiry of the deadline for submissions, applicant’s counsel also filed a recent decision of the Ontario Court of Appeal dealing with the Trespass to Property Act. I did review and consider this decision, but did not regard it as relevant to the matters before me.

57Finally, at the hearing, applicant’s counsel took the position that Rule 5.11.1 of the Transitional Rules requires this Tribunal to initialize the applicant’s name notwithstanding that he is now more than 18 years old. I do not agree. The applicant has attained the age of majority, and hence it is his responsibility to decide to proceed with his own Application. In these circumstances, the Tribunal’s Rules do not require initialization of the applicant’s name. While I have the discretion to initialize, I do not regard this to be necessary in the circumstances.

58For all of these reasons, the Application is dismissed.