Daiming Huang v. 1233065 Ontario Inc. (Ontario Senior Chinese Cultural Association) o/a Ottawa Chinese Senior Association, Feng Xu and Shen Guo, 2011 HRTO 825

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daiming Huang

Complainant

-and-

Ontario Human Rights Commission

-and-

1233065 Ontario Inc. (Ontario Senior Chinese Cultural Association)

o/a Ottawa Chinese Senior Association, Feng Xu and Shen Guo

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: April 27, 2011

Citation: 2011 HRTO 825

Indexed as: Huang v. 1233065 Ontario

APPEARANCES

Daiming Huang, Complainant ) David Matas, Counsel

1233065 Ontario Inc. (Ontario Senior )

Chinese Cultural Association) o/a Ottawa ) Julius Grey and

Chinese Senior Association, Feng Xu ) Hannah Ellingsen, Counsel

and Shen Guo, Respondents )

Ontario Human Rights Commission ) Anthony Griffin, Counsel

1The complainant, Daiming Huang, is an elderly Chinese-Canadian woman who practices Falun Gong. This case is about her involvement with the corporate respondent, a numbered corporation operating as the Ottawa Chinese Senior Association (“Association”), a social organization composed mainly of seniors who are also new immigrants from China.

2The personal respondents were members of the Association’s governing body (“Council”) at the material times. Shen Guo was the Association’s president and Feng Xu was its secretary.

3The Tribunal first determined the issues arising out of the Complaint in Huang v. 1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association), 2006 HRTO 1. At that time, the respondents did not to participate in the Tribunal’s proceedings.

4An application for judicial review of that decision was successful and the matter was remitted back to the Tribunal for hearing before a differently constituted panel. See 1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association) v. Ontario Human Rights Commission, 2007 CanLII 44345 (ON S.C.D.C.).

OVERVIEW

5The complainant alleges that she was discriminated against by the respondents with respect to services and because of her creed. In essence, she states that the respondents made discriminatory comments and excluded her from membership in the Association because she is a Falun Gong practitioner.

6The respondents argue that the Code does not apply in the circumstances, because:

a. the Falun Gong is not a “creed” within the meaning of the Code; and

b. the Association does not offer a “service” within the meaning of section 1 of the Code.

7The respondents also deny the allegations of discrimination. They deny expelling the complainant from the Association and state that she chose to withdraw her membership. They also deny making discriminatory comments.

8For the reasons set out below, I find that the Code applies in the circumstances. The Falun Gong is a “creed” and the Association offers a “service” within the meaning of the Code. I conclude that the respondents breached the Code and discriminated against the complainant on the basis of her creed.

9The Tribunal orders the corporate respondent to pay the complainant the sum of $15,000 for loss arising from the infringement of her rights under the Code.

ANALYSIS

10I begin the analysis by setting out the relevant statutory framework and discussing whether the allegations fall within the scope of the Code. First, I consider whether the Falun Gong is a “creed” within the meaning of the Code. Second, I consider whether the Association provides a “service” for the purposes of section 1 of the Code.

11Next, I consider whether the respondents breached the Code and, if so, what remedy is appropriate. Finally, I comment on some of the procedural rulings made during the course of the hearing.

The Statutory Framework

12The relevant provisions of the Code are as follows:

1. 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.

2. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

13As the issues raised in this Application touch upon freedom of religion and freedom of association, I set out the relevant provision of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“Charter”):

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

...

(d) freedom of association.

The Falun Gong

14The complainant practices Falun Gong. Because one of the issues in this matter is whether or not Falun Gong is a “creed” within the meaning of section 1 of the Code, I describe it and its system of beliefs in some detail.

15In this regard, I heard evidence from David Ownby, who holds a Ph.D. in History and East Asian Languages from Harvard University and is the Director of the Centre of East Asian Studies at the University of Montreal. All of the parties agreed that Professor Ownby be qualified as an expert on the history of popular religion in China, including the history and beliefs of Falun Gong.

16Although the respondents dispute Dr Ownby’s view that Falun Gong is a “religion” or “creed”, his evidence about the nature and history of Falun Gong was not challenged by any of the parties. Cross-examination of Dr. Ownby focussed on some of the specific beliefs associated with Falun Gong. This is because, as I discuss later, the respondents argue that the level of Code protection, if any, ought to be informed by the Charter and the nature of the beliefs held by Falun Gong.

17Dr. Ownby’s testified that Falun Gong is a modern “Chinese popular religion” that was founded in China in 1992. It developed out of the Qigong practice and became a very popular movement in China, with up to 100 million practitioners in 1999. The Chinese state banned the practice of Falun Gong in 1999.

18The parties do not dispute that Falun Gong practitioners have been persecuted within China. The complainant has filed documents to show that persecution is also carried on outside the Chinese state. The complainant argues that this international persecution is relevant and ought to inform any award made to the complainant under the Code. The respondents argue that international persecution, while deplorable, is not relevant to these proceedings. I address this issue later, in the section of the Decision that relates to remedy.

19The Falun Gong belief system consists of a series of meditative exercises, which practitioners believe enhances their physical and mental well-being. It also involves the reading of scriptures. In engaging in these practices, practitioners of Falun Gong strive to achieve the tenets of truth, compassion, and forbearance.

20In response to questions by the respondents’ counsel, Dr. Ownby testified about some of the specific beliefs associated with Falun Gong. They include:

a. that the founder of Falun Gong possesses paranormal abilities;

b. that at least some portions of the Falun Gong scriptures condemn homosexuality in a similar way that they condemn bad haircuts and violence in soccer;

c. that the heavens are divided by race and that it is preferable to marry within one’s own race;

d. that, while modern science is very useful, it should be subordinated to a more spiritual view of the world; and

e. that people may be possessed by animals.

21I note that this is not a complete list of Falun Gong beliefs and that it may not be an accurate representation of the entire belief system. I have described Dr. Ownby’s evidence regarding these particular beliefs because it is relevant to the respondents’ arguments.

22In her testimony, the complainant referred to Falun Gong as a “practice”. During cross-examination, she explained, “Western people call it religion. We call it practice.”

23Dr. Ownby explained that there is a significant difference between the notion of “religion” in China and in the West. In China, religion has been formalized and the term is used to refer only to those belief systems sanctioned by the state. A number of movements, which Dr. Ownby describes as “popular Chinese religions,” have originated since the institutionalization of religion in China in the mid-Ming period. These movements, which include Falun Gong, are generally described as “cultivation practices” or “popular religions”, terms that are generally more acceptable to the Chinese state than “religion”. Dr. Ownby testified that, in western terms, Falun Gong would be described as a “religion” or “creed”.

24The complainant testified that she has practiced Falun Gong since March of 1998. She engages in mediation and exercises, and she reads the Falun Gong scriptures daily. The complainant testified that she holds a deep personal conviction in Falun Gong and that it is an integral part of her identity.

Is Falun Gong a “creed” within the meaning of the Code?

25The respondents argue that because the tenets of the Falun Gong movement run contrary to the principles of the Charter, it cannot be given the full protection of a creed, within the meaning of the Code. The respondents state that, while the Falun Gong “has some similarities to quasi-religious Chinese movements”, it is more closely akin to movements (such as Raelians and Hare Krishnas) which, according to the respondents, are arguably “cults”.

26The respondents state that while members of the Falun Gong may have a right to hold and propagate their belief systems, “strong and indeed devastating criticism [of their belief system] is not only permissible but appropriate.” In support of this argument, they cite Église raëlienne c. Gratton, 2006 QCCS 3560 and Zhang v. Chau, 2005 CanLII 45537 (QC C.S.) aff’d 2008 QCCA 961. In those cases, Quebec courts were addressing defamation issues. They found that the Charter right to freedom of religion does not insulate a belief system from criticism.

27I note that the Supreme Court of Canada has explained as much in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 (“Amselem”), at para. 61:

In this respect, it should be emphasized that not every action will become summarily unassailable and receive automatic protection under the banner of freedom of religion. No right, including freedom of religion, is absolute [...] This is so because we live in a society of individuals in which we must always take the rights of others into account.

28I agree with the respondents that the Code and the Charter share common objectives and must be interpreted in light of one another. This is a well-established principle. See, for example, Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593; Ball v. Ontario (Community and Social Services), 2010 HRTO 360; Mortillaro v. Ontario (Transportation), 2011 HRTO 310. This is particularly the case in the context of freedom of religion. See Amselem, above, and Dallaire c. Les Chevaliers de Colomb, 2011 HRTO 639

29Indeed, Amselem deals with the extent of freedom of religion where its exercise intersects with other protected rights. According to the Court in Amselem, the level of protection available under the Charter and in human rights legislation for a religious freedom may be informed by other constitutional values.

30Importantly, however, Amselem does not address whether a particular belief system enjoys Code or Charter-related rights as a “creed”. I do not believe that Amselem (or any of the cases cited by the respondents) is an authority for the proposition that, in determining whether a belief system is a “creed”, the Tribunal must subject that belief system to scrutiny in light of Charter values.

31In other words, Charter values are relevant to determining the scope of religious freedom protected under constitutional or quasi-constitutional statute. It is not, however, appropriate to exclude from the scope of the Code a belief system that, itself, may not be consistent with the Charter.

32There is, in my view, a difference between placing limits on the exercise of a religious freedom because it interferes with others’ rights and refusing to recognize a religious movement as a “creed” because some of its beliefs may be inconsistent with the values expressed in the Charter.

33As the Commission points out, courts and human rights tribunals have generally been careful not to judge the validity of sincerely-held religious beliefs. In R. v. Big M. Drug Mart, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, Dickson J. wrote:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct (....). Freedom must surely be found in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses.

34It is not for the Tribunal to determine whether or not a belief system is reasonable, whether it would withstand scientific scrutiny, or whether it espouses beliefs that are consistent with Charter values.

35In this regard, I note that, during Dr. Ownby’s oral evidence before this Tribunal, he and counsel for the respondents referred to Dr. Ownby’s earlier testimony before a Quebec Court. When asked whether the Falun Gong’s belief in the existence of a rotating wheel in the stomach would be scientifically accepted in a modern society, Dr. Ownby referred to his earlier response, where he said that it would be about as scientifically acceptable “as if you suggested resurrection after three days”.

36I conclude that Falun Gong is a “creed” within the meaning of section 1 of the Code. While practitioners may refer to it as a “practice” rather than as a “religion”, that semantic difference is immaterial. Falun Gong consists of a system of beliefs, observances, and worship and falls within the notion of “creed” for the purposes of the Code: see Amselem, at para. 39.

37Finally, I wish to stress that I make no finding as to whether the beliefs of the Falun Gong are consistent with the Charter. For the reasons set out above, this is not the appropriate analysis for determining whether Falun Gong is a “creed” for the purposes of the Code.

Did the Association Provide a “Service” Within the Meaning of the Code?

38The Tribunal must determine whether the complainant’s allegations engage a right to equal treatment on the grounds listed in the Code and in relation to the social areas of employment, accommodation, and goods, services, and facilities. If they do not implicate one of these grounds or social areas, the Code does not apply to the situation and the Tribunal has no jurisdiction to determine the allegations.

39The complainant argues that the Association provided a “service” within the meaning of section 1. The Association provides a place for seniors to gather, it organizes activities and outings, provides information to its members, and coordinates English classes.

40The respondents argue that, for the purposes of the Code, “service” does not include private clubs. According to the respondents, the Association may decide who can be a member and it is not the intention of human rights legislation to limit freedom of association in regards to private clubs.

41In this regard, the respondents rely upon the Supreme Court of Canada’s decision in Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 S.C.R. 571, where the Court concluded that the spectrum of benefits constituting membership in the Yukon Order of Pioneers did not amount to a “service offered or provided to the public” and that, consequently, the Yukon territory’s human rights legislation did not apply.

42As the Commission pointed out in oral argument, the Code is materially different from the Yukon Human Rights Act, R.S.Y. 1986 (Supp.), c. 11, which applied in Gould. The Yukon statute stated:

8. No person shall discriminate

(a) when offering or providing services, goods, or facilities to the public,

43In Gould, the Court’s analysis turned in large part on the wording of section 8 of the Yukon statute and whether the organization in question provided or offered services “to the public”: see paras. 78 - 79.

44The current Code does not qualify “service” in this way. Prior to 1981, section 2 of the Code read as follows:

No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall discriminate against any person or class of persons with respect to accommodation, services or facilities available in any place to which the public is ordinarily admitted. [Emphasis added.]

This language was specifically removed from the Code by the Act to Revise and Extend Protection of Human Rights in Ontario, S.O. 1981, c. 53.

45The respondents argue that, even if that language (“offered to or provided to the public”) is absent from the Code, it is implicitly part of the meaning of “service” and ought to be read into the Code. They state that, without this clause, section 1 of the Code would unduly interfere with the freedom of association and the rights of private clubs to be discerning in terms of their membership.

46I cannot agree. First, the Tribunal has consistently held that the relationship between a social club, such as the Association, and its member falls within the meaning of “services” in section 1. See Barclay v. Royal Canadian Legion, Branch 12 (1997), 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486 (Ont. Bd. Inq.) and Martinie v. Italian Society of Port Arthur (1995), 1995 CanLII 18190 (ON HRT), 24 C.H.R.R. D/169 (Ont. Bd. Inq.).

47Second, based on the legislative history of section 1, the words “offered to the public” were specifically removed by the Legislature. To read those words into the statute, in its current version, would defeat clear legislative intent and the plain and ordinary meaning of the provision.

48Third, in specific terms, the Code itself dictates that membership in a social club constitutes a “service” within the meaning of section 1. As the Commission argues, if membership were not a service under section 1, the section 18 exemption for social clubs serving the interests of persons identified by a prohibited ground of discrimination would not have been necessary. To conclude otherwise would empty section 18 of any real meaning.

49This interpretation of the Code is not, in my view, inconsistent with the freedom of association protected in the Charter. As we have seen, Charter rights are not absolute and they must be interpreted in light of the protected rights of others. Moreover, as the Supreme Court of Canada explained in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, no single right is capable of trumping others. Charter rights must be interpreted contextually, in light of competing claims, and in congruence with equality rights at play in the circumstances.

50I cannot conclude that the right to freedom of association entitles the respondents to distinguish between individuals based on Code-related grounds. Social organizations certainly have some discretion in terms of their membership. However, based on the language of the Code and the principles set out above, this discretion does not extend so far as to allow distinctions based on Code-related grounds.

51For the above reasons, I am satisfied that the Association provides a “service” within the meaning of section 1 of the Code.

Did the Respondents Discriminate against the Complainant?

52Three incidents gave rise to the Complaint:

a. In May, 2001, the complainant attended an event at Dow’s Lake during which she says disparaging remarks were made about Falun Gong;

b. On December 29, 2001, the complainant attended a Western New Year celebration during which she states that her membership in the Association was revoked. She alleges that her creed was a factor in the revocation; and

c. On February 16, 2002, the complainant went to the Chinese Community Centre during Chinese New Year celebrations. She states that members of the Association’s executive made disparaging remarks regarding Falun Gong.

53The respondents deny the allegations of discrimination. They state that the complainant was proselytising at an Association event on December 29, 2001. She was asked to cease these activities and her response was to voluntarily give up her membership. The respondents deny making any discriminatory or disparaging remarks.

54As there are a number of areas where the parties’ evidence differs, the determination of the discrimination issue will turn, in part, on my assessment of the credibility of the witnesses. Therefore, before discussing the facts in dispute, I make initial comments on my assessment of the credibility of the witnesses.

The credibility of the witnesses

55I heard evidence from the following witnesses for the complainant: Xin Dingjian; Xiao Junqiang; the complainant; Xun Li; and Dingjiz Xin.

56For the respondents, I heard evidence from: Xiutian Wang; Huixiu Liu, and Qingyu Luo.

57The personal respondents did not testify. Feng Xu was scheduled to testify on January 19, 2011. However, at the outset of the hearing on that date, counsel for the respondents advised the Tribunal that he had just learned that Feng Xu had left the country and was not available to testify.

58The respondents did not seek to adjourn the hearing to allow Ms. Xu to testify. The parties agreed that, in lieu of oral evidence from Ms. Xu, the following documents would be placed in evidence before the Tribunal:

1. the affidavit of Feng Xu, dated Sept 1, 2010;

2. the affidavit of Feng Xu, dated April 21, 2006;

3. witness statement of Feng Xu, dated March 9, 2004; and

4. the response to the complaint signed by Guo Shen.

59In assessing credibility, I have applied the test in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.):

(…) 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 is 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(…).

60In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the 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.

61As I explain below, I am troubled by inconsistencies in the evidence of Feng Xu and Xiao Junqiang. I set out my concerns with the evidence of each of these witnesses in turn. In some instances, I review details of the evidence, not necessarily because these details establish or disprove discrimination, but because they assist me in assessing the reasonableness and consistency of the witness’s evidence.

Feng Xu

62Feng Xu is a personal respondent and was the Association’s secretary at the material times. Her involvement in the incidents giving rise to the Complaint is key. She is the only person identified as a witness by the respondents who had direct knowledge of the circumstances surrounding the termination of the complainant’s membership in December 2001. She was also part of the February 2002 conversation.

63Feng Xu was present in the hearing room when the January 19, 2011 hearing date was scheduled. Although she was aware of the date and although she was expected to testify on January 19, 2011, she left the country. As noted above, at the outset of the hearing on January 19, 2011, counsel for the respondents explained that he had only just learned that the personal respondent was not available to testify.

64It is significant that Feng Xu did not testify before the Tribunal. It is also significant that the respondents did not call witnesses who might have corroborated Ms. Xu’s version of the events.

65Counsel for the respondents readily acknowledged that there are significant inconsistencies in the documents submitted on Ms Xu’s behalf and, therefore, in her evidence.

66For example, in the March 2004 witness statement, Ms. Xu explained that the Association asked her to tell the complainant that it would be better for her not to come to Association activities because other members do not share her Falun Gong beliefs. In the April 2006 affidavit, however, Ms. Xu explains that she approached the complainant on December 29, 2001, because she had received complaints that the complainant was disrupting other members seated at her table. In her September 2010 affidavit, Ms. Xu states that she approached the complainant on December 29 because she received a complaint about the complainant from one member, who has since passed away. None of the individuals who allegedly complained about the complainant or who sat at the table with the complainant provided an affidavit, witness statement or testified before the Tribunal.

67Not only are Ms. Xu’s statement and affidavits internally inconsistent, her statements about the role of police at the Chinese New Year’s celebration and the display of petitions involving the Falun Gong at Association events were contradicted by the respondents’ own witness, Huixiu Liu.

68For all of these reasons, I reject the statement and affidavits of Feng Xu as not credible and unreliable.

Xiao Junqiang

69Xiao Junqiang testified for the complainant. The crux of his evidence is that, while he was making tea for the December 29, 2001 event, he overheard an official from the Chinese consulate direct the Association to exclude Falun Gong practitioners.

70A number of Mr. Junqiang’s statements do not stand up to examination in terms of reasonableness or consistency with the other evidence and the circumstances.

71For example, he testified that he had no particular knowledge of and no affiliation with Falun Gong. Although his job was to distribute newspapers, he stated that he never read them and denied learning about Falun Gong from newspapers. Later in his evidence, however, he mentioned reading the newspaper and acknowledged appearing in a newspaper photograph of an event that seemed to be linked to Falun Gong. This witness was also not forthcoming about how he came to testify before the Tribunal.

72In my view, these inconsistencies significantly weaken this witness’s credibility.

The remaining witnesses for the complainant

73In addition to Mr. Junqiang’s testimony, I heard evidence from the complainant and her son, Mr. Li. I also heard from Mr. Xin.

74With the exception of Mr. Junqiang, the witnesses for the complainant were, in my view, credible. Their evidence was internally consistent, consistent with that of some of the other witnesses, and in line with the probabilities that surround the circumstances. Their version of events did not alter with cross-examination and they were straightforward in answering the questions put to them.

The remaining witnesses for the respondents

75The remaining witnesses for the respondents testified orally before the Tribunal. Affidavits signed by them were filed with Tribunal and adopted by each witness. During cross-examination, it became apparent that none of these affidavits had been signed in the presence of a commissioner for oaths.

76At the outset of the hearing, I issued an order excluding witnesses. Notwithstanding this, the respondents’ witnesses all attended parts of the hearing and heard the evidence of at least some of the other witnesses. Xiutian Wang stated that he was present for the evidence of Xiao Junqiang, and that he did not hear or did not recall the exclusion order. Huixiu Liu was present at several days of hearing and Qingyu Luo was present for all days of the hearing.

77Certainly, counsel for the respondents was aware of the order excluding witnesses. Not only was the order made at the outset of the proceeding, it was specifically discussed again in the context of the respondents’ request to call its own witness immediately following the testimony of Xiao Junqiang.

78These irregularities in the testimony and evidence of the respondents’ remaining witnesses is troubling and factor into my assessment of what weight to give to their evidence. However, as I explain in setting out the facts below, the respondents’ witnesses (with the exception of Feng Xu) did not have direct evidence that contradicted the complainant and her witnesses on any material point.

The Facts

The Dow’s Lake Event

79The Association organized an outing to Dow’s Lake in May of 2001 which the complainant attended.

80There was a petition available for signing at the event. The respondent’s witness Huixui Liu testified that it was a petition in support of a Chinese newspaper in Montreal that had been sued by Falun Gong. Mr. Xin testified that the petition was anti-Falun Gong.

81The complainant identified herself as a Falun Gong practitioner. Her uncontradicted evidence is that members of the Association’s Council then challenged her about Falun Gong beliefs. In particular, they accused Falun Gong practitioners of neglecting their families.

82Mr. Xin testified that he overheard Council members state that they did not allow Falun Gong practitioners to be members of the Association. The respondents dispute that this was said; they argue that although the complainant was known to be a Falun Gong practitioner, she was permitted to join the Association.

The Western New Year’s Party (December 29, 2001)

83The Association organized a Western New Year’s celebration, which the complainant attended.

84When she arrived at the event, the complainant renewed her membership by signing a registration form and paying the $5 annual membership fee.

85The complainant’s evidence was that she ate at a table with a number of other Association members. In response to questions about her health and appearance, the complainant explained to the other persons seated at the table that she was a Falun Gong practitioner, which she felt contributed to her general well-being. The complainant handed five copies of a Falun Gong flyer to some of the people seated at the table. According to the complainant, these individuals either asked for a copy of the flyer or otherwise seemed interested in receiving it. She testified that no one objected to either the flyer or the nature of the discussion.

86Based on the evidence of the complainant, I accept that the complainant spoke to others at the table about Falun Gong in response to questions asked of her. I find that she was not loud or disruptive and that none of the five people to whom she handed a pamphlet objected to receiving it. There is no credible basis for me to conclude that any of the individuals seated at the table with the complainant raised concerns about her behaviour or the information she was providing.

87The complainant explained that, some time later that evening, Feng Xu advised the complainant that the Association’s Council had decided to exclude Falun Gong practitioners from its membership. She testified that Ms. Xu explained that her membership was being revoked because she practices Falun Gong, which the Chinese government views as a cult. She testified that Ms. Xu did not provide any further explanation for the decision, that she refused to allow the complainant to see the Association’s constitution and that she refused to provide the Council’s decision in writing.

88Mr. Junqiang testified that he overheard a conversation between officials from the Chinese consulate and members of the Association’s Council in which Chinese consular officials stated that Falun Gong practitioners should not be permitted to participate in Association activities. Mr. Junqiang was the only witness to directly link the termination of the complainant’s Association membership to the Chinese consul or government.

89I have already expressed concerns regarding the reliability of Mr. Junqiang’s testimony, generally. His evidence about where he was when he overhead this conversation was convoluted and confused. Further, he claimed he could identify the consular officials because he had petitioned them in the past about his persecution by Chinese Communists. Yet later in his evidence, he denied these officials would have known about his anti-Communist views. In my view, his evidence suggesting the Chinese consul or state influenced or was a factor in the termination of complainant’s membership in the Association was not credible.

90The respondents have argued that the complainant was proselytising at the December 29, 2001 event and that, when this was discussed with her, she voluntarily withdrew her Association membership.

91There is no credible evidence before me that the complainant voluntarily withdrew her membership from the Association. I have already rejected the evidence of Feng Xu as unreliable. Two of the respondents’ witnesses (Qingyu Luo and Huixiu Liu) were present at the Western New Year’s celebration. However, their evidence does not establish that the complainant withdrew her membership.

92Mr. Liu testified that he did not witness the discussion between Feng Xu and the complainant and that he only learned about the issue once the incident was over. Mr. Luo testified that Feng Xu told him that the complainant wished to withdraw her membership. Mr. Luo has no direct evidence about the conversation between Ms. Xu and the complainant and his testimony on this incident was based entirely on information provided to him by Ms. Xu.

93Throughout her evidence, the complainant vigorously denied withdrawing her membership. She maintains that it was revoked. She argues that her behaviour following December 29 and the attempts she made to have her membership reinstated are inconsistent with the respondent’s position that she withdrew voluntarily. In this respect, the complainant took a number of steps to contact the president of the Association. On December 31, 2001, the complainant had a telephone conversation with Shen Guo, then the Association’s president. She testified that Mr. Guo advised her that the Association had decided that it would not accept Falun Gong practitioners as members.

94I note that Mr. Guo did not testify before the Tribunal. The complainant’s evidence about this conversation was consistent throughout her evidence.

95I accept the complainant’s evidence that she did not voluntarily withdraw her membership in the Association. I accept that Feng Xu advised her that the Association had decided to revoke her membership because of her Falun Gong beliefs.

The Chinese New Year’s Celebration (February 16, 2002)

96The complainant made a number of further but unsuccessful attempts to contact Mr. Guo. This included writing a letter that was eventually published in a Chinese language newspaper.

97On February 16, 2002, the complainant and her son went to the Chinese Community Centre, where the Association was holding a Chinese New Year celebration. The complainant testified that her objective in attending was to speak further to Mr. Guo about the Association’s decision to revoke her membership.

98Although the complainant and her son were not able to meet with Mr. Guo on February 16, 2002, they had a conversation with Feng Xu and two other members of the Association’s Council.

99Two of the respondents’ witnesses, Qingyu Luo and Huixiu Liu, were present on February 16, 2002. They testified about an incident involving the complainant, but did not testify about the content of any of the conversation between her, Mr. Li, Ms. Xu, and the others.

100Thus, the complainant’s and Mr. Li’s evidence regarding the content of the February 16, 2002 conversation withstood cross-examination and is uncontested by direct evidence from the respondents. Both of these witnesses stated that Feng Xu and other members of the Association’s Council referred to Falun Gong as “an evil cult”. They testified that Feng Xu said that the complainant’s Association membership was terminated because she was against the Chinese government.

101Dingjiz Xin, who testified on behalf of the complainant, also witnessed the conversation. He stated that the complainant was ordered to leave because Falun Gong practitioners could not be part of the Association. He testified that some members of the Association’s Council made negative comments about Falun Gong and accused it of causing the break-up of families.

102The complainant, Mr. Li and Mr. Xin all testified that anti-Falun Gong materials were displayed at the Chinese Community Centre on February 16.

Legal Analysis

103The initial onus of making out a breach of the Code rests with the complainant, who must establish a prima facie case of discrimination. To do so, the complainant needs to show that she was treated differently from others and that a protected ground was a factor in that differential treatment. If the complainant establishes these elements, the onus shifts to the respondents to explain or justify their decision or actions based on non-discriminatory factors.

104It is sufficient for the complainant to show that a protected ground was a factor in the differential treatment. Her creed need not be the only or even a substantial factor in the decision to terminate her membership in the Association.

105As I have indicated, I am satisfied that the Association terminated the complainant’s membership. I reject the contention that she voluntarily withdrew from the Association.

106The respondents have not provided a credible explanation for the revocation of the membership based on non-discriminatory grounds. With the exception of Feng Xu, whose evidence I have rejected, none of the respondents’ witnesses had direct evidence regarding the reason for the revocation of the membership or the conversation between Feng Xu and the complainant on December 29.

107None of the individuals who sat with the complainant at the December 29 celebration testified and there is no evidence before me that the complainant did anything more than respond to questions and give five pamphlets to individuals who expressed an interest in receiving them. There is no credible evidence that the complainant was being loud or disruptive or that she was engaging in any behaviour that was unwelcome to other guests.

108The respondents argued that the Association is a secular social organization and that it was well within its rights to limit proselytising of religious views by the complainant.

109The complainant argued that she was not proselytising and that she was simply responding to questions and providing information to persons who asked for it or who otherwise demonstrated an interest in receiving it. She argues that she is entitled to provide information in response to questions and that the respondents cannot exclude her from the Association on this basis.

110I reject the respondents’ arguments in this regard. First, there is no credible evidence before me that any proselytising by the complainant was the basis for the revocation of her membership. The complainant’s evidence is that she was told by Ms. Xu (and later by Mr. Guo) that her membership was revoked because the Association no longer accepted Falun Gong practitioners as members. Her evidence was not shaken on cross-examination. The respondents offered no credible evidence to refute this testimony. I accept it.

111Second, the issue for the Tribunal is whether the complainant’s creed was a factor in the decision to revoke her membership. I find that it was.

112In reaching this conclusion, I am influenced by the display of anti-Falun Gong materials at Association events. In essence, the Association is seeking to express a view on Falun Gong, but to exclude from its membership persons who express a different view. In this case, it is seeking to do so on the grounds that the complainant was proselytising.

113In the circumstances, the fact that the complainant was communicating information about Falun Gong is not a reasonable, non-Code related explanation for the decision to revoke her membership. The Association was also, in a sense, “proselytising” its own view on the same issue. Even if any proselytising by the complainant influenced the respondents’ decision, I find that the nature of the information she disseminated and the fact that the complainant was Falun Gong were factors in the respondents’ decision. This constitutes discrimination under section 1 of the Code.

114I accept the evidence of the complainant, Mr. Li, and Mr. Xin that Feng Xu and others made disparaging remarks about Falun Gong in the course of the February 16, 2002 conversation. The complainant and Mr. Li testified that Feng Xu and others called the Falun Gong an “evil cult”.

115This is, of course, not a proceeding in defamation. The issue before me is not whether the comments were disparaging and untrue, but whether they were discriminatory within the meaning of the Code. I agree that Falun Gong is not immune from criticism and that disagreement with or criticism of the tenets of its belief system do not necessarily amount to discrimination.

116Of concern in this case is the reference to Falun Gong as an “evil cult”. I find that this comment constitutes discrimination within the meaning of the Code. See Gilbert v. 2093132 Ontario, 2011 HRTO 672. The comment had the effect of demeaning the complainant and affronting her dignity on the basis of her creed.

REMEDIES

117Having concluded that the respondents violated the complainant’s right to be free from discrimination under the Code, I must determine what remedy is appropriate.

118The 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.

119An 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.

120The complainant seeks an award of $100,000, which she acknowledges is unprecedented in Tribunal jurisprudence. The complainant argues that such a significant award is appropriate because:

a. she was deeply affected by the discrimination. The incidents occurred in public and caused her to lose face in front of other members of the Chinese Canadian community;

b. as a result of the discrimination, she became more socially isolated that her physical health deteriorated;

c. the respondents’ conduct in this and earlier proceedings has been abusive and a deliberate attempt to delay the proceedings;

d. there is a link between the Chinese state and the Association‘s decision to revoke her membership. There is also clear solidarity between the Association and the Chinese government;

e. the discrimination in this case is particularly serious because the world-wide persecution of Falun Gong makes the complainant more vulnerable and puts her in greater anguish; and

f. the matter is of global significance and should send a message to Chinese government to cease persecution.

121The respondents argue that, to the extent that any remedy is necessary, an award of less than $1,000 would be more appropriate. They argue:

a. the complainant only attended one or two Association events per year and there is little damage in being excluded from so few events;

b. the Association’s role in the complainant’s life was not meaningful, the nominal $5 annual membership fee suggests that the Association’s activities and impact are limited;

c. the complainant’s own behaviour (proselytising and making repeated attempts to contact Mr. Guo) should be taken into account and favours a lower award; and

d. any award should recognize that this is a dispute between a small number of people within their own ethnic group.

122I find that, in the circumstances of this case, an award of $15,000 is appropriate.

123In making this award, I am mindful that the discrimination was public and caused the complainant to lose face within her community. Although the complainant did not frequently attend Association events, I accept her evidence that she derived indirect social benefit from her membership. She made friendships, took part in English classes, and was invited to outings. All of this ceased when her membership was revoked.

124In this case, the discrimination is two-pronged: it involved both the revocation of the complainant’s membership and comments made publicly when the complainant sought to discuss the Association’s decision to revoke her membership. Further, I accept that the complainant is more vulnerable because she is part of a group that has been subjected to persecution. I have taken this into account in making the award.

125The Tribunal has repeatedly recognised that the quantum of damages ought not to be so low as to trivialize the social importance of the Code by effectively creating a "license fee" to discriminate. See Sanford v. Koop, 2005 HRTO 53. Conversely, the Code is a remedial statute; it is not designed to be punitive, but to provide remedies for infringement of the Code. The circumstances of this case do not, in my view, warrant an award of the magnitude requested by the complainant.

126The complainant has also asked that the Tribunal order the respondents to formally invite her to rejoin the Association. I find that this would be appropriate in the circumstances.

Liability of the Personal Respondents

127Section 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.

128In the circumstances, I am satisfied that Feng Xu and Guo Shen were acting in their capacity as officers of the corporate respondent. There is no basis pursuant to section 46.3 of the Code for an order directing the personal respondents to personally pay any monetary compensation to the complainant.

PROCEDURAL ISSUES

129While it would not normally by my practice to do so in such detail, given the nature and the history of these proceedings, I wish to conclude by summarizing some of the procedural rulings I made during the course of the hearing.

130The evidence of most of the witnesses was provided through a Mandarin interpreter. The parties agreed that the opening and closing statements as well as discussions between counsel and the Tribunal would not be interpreted.

131On the first day of hearing, the parties raised concerns regarding the quality of the interpretation. The Tribunal offered to adjourn the proceedings, but this was declined by the parties. I invited the parties to communicate any concerns regarding interpretation to me as they arose. On a number of occasions on the first day of hearing, the interpreter clarified or corrected her interpretation as a result of concerns raised by the parties.

132A different interpreter attended for the following hearing dates. None of the parties raised any concerns regarding the quality of his interpretation. No issues about the quality of interpretation arose after the first day of hearing.

133At the outset of the hearing, the complainant asked the Tribunal to record the proceedings. I advised that the Tribunal’s practice is not to record its proceedings, unless there is a Code-related reason for doing so. I was not satisfied that there was a Code-related reason for the recording and the request was denied. However, with the consent of the Tribunal and the other parties, the complainant recorded the proceedings.

134With the consent of all of the parties, Mr. Xin testified by telephone.

135Following the testimony of the complainant’s first witness, Mr. Junqiang, counsel for the respondents sought to immediately call a witness (Wang Zhon Dong), whose evidence he said would contradict Mr. Junqiang’s assertion that he had been introduced to a councillor from the Chinese embassy. The Commission and the complainant objected to Mr. Dong’s testimony, because they said it was led for improper purposes (to contradict the witness on a collateral issue); moreover, the proposed witness had not complied with the Tribunal’s order excluding witnesses.

136I denied counsel for the respondents’ request to immediately call their witness, but held that he might testify at a later stage of the proceeding. The respondents did not subsequently chose to call Mr. Dong as a witness.

137Upwards of 40 observers attended each day of hearing. As he testified before the Tribunal, Mr. Xin said he was reluctant to openly identify the individual who interpreted communications between him and the person who commissioned his affidavit. On consent of the parties, the individual’s name was provided only to the interpreter, the Tribunal, and counsel for the parties and the Commission.

138The respondents have cited long tracts of Dr. Ownby’s evidence in civil proceedings before a Quebec Court. This Decision is based on Dr. Ownby’s testimony before the Tribunal. I have only considered Dr. Ownby’s earlier testimony where it was specifically referred to in his evidence before the Tribunal. (See para. 35.)

139Finally, the complainant sought an order striking portions of the respondents’ closing submissions on the basis that, among other things, they are likely to expose a person or persons to hatred or contempt by reason of the fact that the person is identifiable on the basis of a prohibited ground of discrimination as that phrase is used in section 13(1) of the Code.

140Section 13(1) of the Code states:

A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

141I explained to the parties at the hearing that I declined to strike portions of the respondents’ submissions. I found that they cannot be said to be intended to “incite the infringement of a right” under Part I of the Code. While I appreciate that the complainant is offended by some of the arguments advanced by the respondents, the submissions themselves do not constitute a breach of the Code. Moreover, as I indicated to the parties, I am mindful that the respondents must have a fair opportunity to answer the allegations contained in the Complaint.

ORDER

142Having found that the respondents violated the Code, the Tribunal makes the following orders:

a. Within 30 days of the date of this Decision, the corporate respondent shall pay the complainant $15,000 for the injury to her dignity, feelings and self-respect arising from the infringement of her rights under the Code;

b. Within 30 days of the date of this Decision, the corporate respondent shall write to the complainant and invite her to join the Association;

c. The corporate respondent shall pay pre-judgment interest in accordance with s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43, from December 29, 2001, the date the complainant’s membership was revoked; and

d. The corporate respondent shall pay post-judgement interest on any outstanding amounts in accordance with the Courts of Justice Act calculated 30 days from the date of this Decision.