HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Maxime Gilbert Applicant
-and-
2093132 Ontario Inc. o/a Restaurant Patty Bolands Respondent
A N D B E T W E E N :
Dominic Daoust Applicant
-and-
2093132 Ontario Inc. o/a Restaurant Patty Bolands Respondent
A N D B E T W E E N :
Maria Garcia Applicant
-and-
2093132 Ontario Inc. o/a Restaurant Patty Bolands Respondent
A N D B E T W E E N :
Bernard Lamarche Applicant
-and-
2093132 Ontario Inc. o/a Restaurant Patty Bolands Respondent
A N D B E T W E E N :
Syndie April Applicant
-and-
2093132 Ontario Inc. o/a Restaurant Patty Bolands Respondent
A N D B E T W E E N :
Claude Brideau Applicant
-and-
2093132 Ontario Inc. o/a Restaurant Patty Bolands Respondent
A N D B E T W E E N :
Sylvie Elliott Applicant
-and-
2093132 Ontario Inc. o/a Restaurant Patty Bolands Respondent
DECISION
Adjudicator: Michelle Flaherty Date: April 7, 2011 File Numbers: 2009-01241-I; 2009-01246-I; 2009-01430-I Citation: 2011 HRTO 672 Indexed as: Gilbert v. 2093132 Ontario
APPEARANCES
Maxime Gilbert, Dominic Daoust, Maria Garcia, Bernard Lamarche, Syndie April, Claude Brideau and Sylvie Elliott, Applicants ) Self-represented
2093132 Ontario Inc. o/a Restaurant Patty Bolands, Respondent ) John Doherty, Counsel
1These six applicants filed Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (“Code”) alleging discrimination on the basis of creed in the provision of goods, services and facilities. The six Applications involve the same respondents and arise out of the same incidents.
2In the circumstances, it is appropriate to consolidate the Applications. They were heard together on March 22, 2011.
3The respondent operates an Irish pub (“Pub”). The applicants allege that the respondent discriminated against each of them because it did not allow the applicants to host and/or attend a “mini-lecture” on its premises.
4For the reasons that follow, I find that the respondent breached section 1 of the Code. The respondent had legitimate business reasons for not allowing the applicants to attend and/or host a “mini lecture” on its premises. However, I find that the respondent’s General Manager made a comment that constitutes discrimination under the Code on the basis of creed. The respondent is ordered to pay to each applicant $100 as monetary compensation for the injury to dignity, feelings, and self-respect arising from the infringement of rights under the Code.
THE FACTS
5At the outset of the hearing, the Tribunal facilitated discussions between the parties in order to develop an agreed statement of facts. It was apparent from these discussions that there is little dispute as to the facts giving rise to the Applications. The facts, including any factual disputes, are described, below.
6Five of the applicants are Raeliens and share a belief system. Raelianism has been found to be a “creed” for the purposes of the Code. See Chabot c. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460. One of the applicants, Maria Garcia, is not a Raelien, but she was present at the material times as a guest of one of the other applicants.
7On August 16, 2008, the applicants attempted to organize and/or attend a “mini-lecture” in Ottawa. They prepared a one page, two-sided flyer inviting people to attend an event involving discussions about the Raelian belief system.
8On the back of the flyer, there is a sticker identifying the Pub as the location for the event. The sticker includes the corporate respondent’s name and address.
9The parties agree that the applicants made a reservation at the respondent’s Pub for Saturday, August 16, 2008 at 5pm. One of the applicants, Sindie April, states that she attended the Pub in person to make the reservation. She says that she specifically advised the hostess that her intention in making a reservation was to conduct a “mini-conference” or “mini lecture”. In her Application, she states that, when she made the reservation, she also described the event as “semi-private”. The respondent does not dispute this.
10The applicants handed out 500 copies of the flyer in advance of the “mini-lecture”. The parties agree that the applicants did not obtain the respondent’s permission to include the Pub’s address on the flyer or to publicize an event at the Pub. The applicants argue that the respondent was advised the applicants were conducting a “mini lecture” and ought reasonably to have understood that the event would be publicized. The respondent disputes this. It says that, even if it knew the applicants intended to host a “mini-lecture” at the Pub, it in no way consented to the Pub’s name and address being used on flyers, nor could it be deemed to have consented to that level of publicity for the “mini lecture”.
11The applicants attended at the Pub at the designated time. Some of the applicants seated themselves at the table prepared for them by the respondent, others waited near the front of the restaurant to greet their guests.
12The General Manager obtained a copy of the flyer. He states that he became upset and confronted the applicants seated at the table. They advised him that they had distributed over 500 flyers announcing an event at the Pub that evening.
13The parties agree that the General Manager told the applicants that they could not hold the event at the Pub and that he asked them to leave. The applicants state that the General Manager also told them the Pub did not want to be associated with their “cult”. The General Manager did not recall making such a statement, but acknowledged that he might have said something of this nature. On a balance of probabilities, I find that the statement was made.
14While the applicants initially left the Pub when asked to do so, three of them returned to the Pub to “get confirmation of [the respondent’s] intentions” in asking them to leave. The applicants allege that the General Manager repeated his comment about not wanting to be associated with a “cult”.
15All of the applicants then went to Cornerstone, a nearby restaurant. They state that Cornerstone initially refused to serve them alcohol and allege that this was because the respondent contacted Cornerstone to warn that the applicants were rowdy.
16The respondent denies contacting Cornerstone regarding the applicants. It states that it will sometimes contact other establishments to alert them about intoxicated customers. The General Manager stated that he is the person who would place this type of call. He states that the applicants were not intoxicated and that he would have had no reason to contact Cornerstone. He states that he did not instruct anyone to contact Cornerstone on the respondent’s behalf.
17In an Interim Decision, 2011 HRTO 555, the Tribunal ordered Cornerstone to disclose the full name and last known address of two members or former members of its staff who dealt with the applicants on that evening. The Interim Decision ordered disclosure by March 21; the hearing was conducted on March 22. In its Interim Decision, the Tribunal advised the applicants that they could request an adjournment of the hearing in order to contact these witnesses. The applicants did not seek to adjourn the hearing.
18At the Hearing, the applicants indicated that they did not intend to call the two witnesses identified in the Interim Decision. They sought to play an audio recording of a conversation they say they had with Amelie, a Cornerstone employee who referred to a telephone call from the respondent.
19The respondent objected to this evidence. In particular, it argued that the recording did not identify the individual who allegedly contacted Cornerstone.
20At the hearing, I indicated to the parties that I would listen to the recording, but that it would carry little evidentiary weight since the individual in question was not present at the hearing and not available for cross-examination. The applicants stated that, notwithstanding my conclusions regarding the evidentiary value of the audio recording, they did not wish to seek an adjournment and did not intend to call the Cornerstone witnesses.
21The audio recording was of a conversation conducted in French. Although an interpreter was present at this stage of the hearing, the respondent indicated that they did not wish the content of the recording to be interpreted.
22In the recording, an individual who identifies herself as Amelie states that there had been a telephone call from the respondent. She explains that, on the basis of the telephone call, Cornerstone initially refused to serve alcohol to the applicants. As the respondent points out, the recording does not identify who allegedly placed the call to Cornerstone. The recording also provides little information about the nature of that call or its specific content.
23As I have indicated, I cannot give weight to this evidence. The statements about the telephone conversation are vague and do not identify the caller. The speaker was not available for questioning or cross-examination. On the basis of the evidence before me, I cannot conclude that the respondent contacted Cornerstone regarding the applicants or that Cornerstone’s initial refusal to serve alcohol to the applicants can be attributed in any way to the respondent.
THE POSITIONS OF THE PARTIES
25The respondent states it does not allow events such as the one planned by the applicants to take place within its establishment. The respondent’s practice is not to affiliate itself with any organization, whatever its nature. They state that the event’s affiliation with the Raelien creed had no bearing on their decision. Instead, they refused to hold the event because they could not accommodate the indeterminate number of people who might attend, and because they were concerned the event would disrupt business on a Saturday evening, which is one of the busiest times.
26The applicants state that, notwithstanding all of the flyers that had been distributed, they did not expect more than 20 people to attend their event. The applicants argue that the nature of their event and the subject-matter to be discussed were factors in the respondent’s decision to refuse to hold the event and to ask them to leave the Pub. They argue that, had the subject matter been different, the respondent would have been happy to have the business and that they would not have reacted in such an agitated manner.
27The respondent states that reference to Raelienism as a “cult” is not necessarily disparaging or discriminatory. A number of documents found on the internet, for example, use the word “cult” to describe Raelienism. The General Manager also stated that, at the time he confronted the applicants, he knew very little about Raelienism. He suggests that he knew so little about the Raelian belief system, he could not have intended to disparage it or the applicants.
28The applicants agreed that the use of the word “cult” is not necessarily disparaging or discriminatory. In the circumstances, however, they argue that the agitated manner in which it was said and the context in which it was used make the comment discriminatory.
ANALYSIS
General principles
29The relevant provisions of the Code are 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.
A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
30I am satisfied that the respondent provides a service within the meaning of the Code. I am also satisfied that Raelienism is a creed within the meaning of section 1 of the Code.
Was creed a factor?
31I accept the respondent’s evidence that it would not have allowed any person or group to organize or publicize an event at the Pub without more explicit pre-authorization. The respondent was reasonably upset when it learned that 500 flyers had been distributed announcing an event at the Pub on a Saturday evening.
32I have no difficulty rejecting the applicants’ argument that the respondent ought to have expected publicity of this nature. I do not agree that one can reasonably extrapolate from words such as “mini lecture” and “semi-private” that hundreds of flyers would be handed out announcing the event.
33The respondent felt ambushed into hosting a widely-publicized event during one of its busiest times. Their concern that large numbers of people or conference-like presentations might disrupt other customers or discourage them from going to the Pub that evening is, in my view, a legitimate basis for refusing to host the event.
34I find that the applicants’ creed or association with persons identified by that creed was not a factor in the respondent’s refusal to host their event. In the circumstances, the respondent’s refusal to host the applicants’ event is not discriminatory within the meaning of the Code.
35In his discussions with the applicants, however, the General Manager stated that the respondent did not want to be associated with the applicants’ “cult”.
36The context in which the statement is made is significant. The General Manager acknowledged that he was agitated as he confronted the applicants. He did not just refer to the Raelien belief system as a “cult”, he spoke of it as a reason not to associate with the applicants.
37I reject the General Manager’s explanation that he did not know enough about the Raelien creed to discriminate against the applicants or form the intention to disparage them. In this regard, he had read the flyer, which contained enough information for him to form the impression that the applicants were part of a “cult” with which he and the respondent did not want to be associated.
38Although the respondent does not affiliate itself with organizations, whatever their nature, I do not accept that the General Manager would have made a comment in the nature of the comment in question but for the applicants’ creed. In other words, I find on a balance of probabilities that the General Manager would not have told the applicants that the respondent did not want to be affiliated with it in the way that he did had in not been for their creed and the nature of their belief system. I find that the General Manager knew the reference was disparaging of the Raelian faith and knew or ought to have known it would be unwelcome.
39I adopt the Tribunal’s reasoning in Romano v. 1577118 Ontario Inc., 2008 HRTO 9 (“Romano”), and find that, while not necessarily meeting the formal definition of a “course of vexatious comment or conduct” under section 7 or section 10 of the Code, a single remark may be sufficient to constitute a form of discrimination within the meaning of section 1. See also Haykin v. Roth, 2009 HRTO 2017 (“Haykin”).
40In regards to the five applicants who are Raeliens, I find that, in the context in which it was said, the General Manager’s comment had the effect of demeaning these applicants and affronting their dignity on the basis of their creed.
41In regards to the applicant who is not Raelien but who attended at the Pub at the invitation of one of the Raeliens, I find that the General Manager’s comment was discriminatory on the basis of her association with a person or persons identified by a prohibited ground of discrimination pursuant to section 12 of the Code.
Summary of conclusions
42The General Manager’s comment constitutes discrimination under the Code. However, the respondent had legitimate reasons for refusing to host the applicants’ event and I find that this refusal was not in breach of the Code. Finally, based on the evidence before me, I cannot conclude that the respondent contacted Cornerstone regarding the applicants.
REMEDY
43Having concluded that the respondent violated the applicants’ right to be free from discrimination under the Code, I must determine what remedy is appropriate.
44The Tribunal's remedial jurisdiction is set out in section 45.2(1) of the Code, which provides that the Tribunal has the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and to direct any party to do anything that promotes compliance with the Code.
45The applicants each request $16,000 in damages for injury to dignity, feelings and self-respect. They are also seeking a public and publicized apology, as well as an invitation to return to the Pub.
46An award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination. The Divisional Court in ADGA Group Consultants Inc. v. Lane, (2008), 91 O.R. (3d) 649, 2008 CanLII 39605 (ON S.C.D.C.), confirmed that an award to compensate for the “experience of victimization” is predicated upon a number of considerations, including the impact of the infringement; the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome.
47In this case, the applicants stated (and I accept) that the remark itself was demeaning and humiliating. They explained that others in the Pub overheard the comment. It was made in an aggressive manner and in the context of asking them to leave. The breach in question is, however, based on one comment, and this militates toward a lower award.
48The respondent argues that the General Manager’s comments were made to the individuals seated at the table and that only some of the applicants would have heard this comment directly from him. The respondent argues that, on this basis, not all of the applicants are entitled to compensation.
49In the circumstances of this case, I do not think it is appropriate to award damages to only those applicants who directly overheard the General Manager’s comment. The comment was made in a public setting and in a context where all of the applicants were being asked to leave the Pub. I am satisfied that the comment had the effect of demeaning and humiliating all of the applicants and that it is appropriate to award compensation to each of them.
50In Romano, the Tribunal ordered compensation in the amount of $1,000.00 for a breach involving a single comment. In that case, however, the remark was vulgar and particularly demeaning. In Haykin, the Tribunal ordered monetary compensation in the amount of $300.00 for a single comment, which the Tribunal found to be objectifying and discriminatory.
51In this case, the respondent’s sense that it was ambushed into hosting a widely-publicized event has some legitimacy. Moreover, when the applicants were asked to leave the Pub, they did so, but some of them returned to “get confirmation of [the respondents’] intentions” in asking them to leave. This resulted in the General Manager repeating the discriminatory comment.
52While no behaviour would excuse or justify the offence of discrimination, harm to dignity, feelings, and self-respect may be minimal or less serious because of an applicant’s own actions. See Abdallah v. Thames Valley District School Board, 2008 HRTO 230.
53In all of the circumstances of this case, the respondent is ordered to pay $100 in compensation for loss of dignity to each of the applicants. It is not appropriate to order the respondent to make or publicize an apology, nor is it appropriate to order it to specifically invite the applicants to the Pub.
54However, in order to advance the respondent’s understanding and compliance with the Code, the General Manager and all other managerial staff are ordered to undergo online human rights training prepared by the Ontario Human Rights Commission and available at http://www.ohrc.on.ca/hr101.
55Section 46.3 of the Code provides:
46.3(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
56I am satisfied that the General Manager was acting in his capacity as an employee of the respondent. Accordingly, there is no basis under section 46.3 of the Code for an order directing him to personally pay any monetary compensation to the applicants.
ORDER
57Having found that the respondent violated the Code, the Tribunal makes the following orders:
Within 30 days of the date of this Decision, the respondent shall pay each applicant $100 for the loss arising from the infringement of his or her rights under the Code;
The respondent shall pay the post-judgement interest on any unpaid portions of the compensation awarded in paragraph 57(1) in accordance with the Courts of Justice Act, calculated 30 days from the date of this Decision; and
Within 30 days of the date of this Decision, the General Manager and other managerial staff of the respondent are required to complete the online training available at http://www.ohrc.on.ca/hr101/ and the respondent must advise each of the applicants in writing that the training has been completed.
Dated at Toronto, this 7th day of April, 2011.
”signed by”_____________
Michelle Flaherty Vice-chair