HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Smith

Applicant

-and-

Gus’ No Frills and 1119506 Ontario Inc. o/a Wincon Security & Investigation Services

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: May 2, 2011

Citation: 2011 HRTO 850

Indexed as: Smith v. Gus’ No Frills

appearances

Patricia Smith, Applicant ) Glen Morrison, Representative

Gus’ No Frills and 1119506 Ontario Inc. o/a ) Laura K. Williams and Dino C. Wincon Security & Investigation Services, ) Nave, Counsel Respondents )

INTRODUCTION

1The applicant, who self-identifies as a Black female of Caribbean origin, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 29, 2009, which alleged that the respondents harassed and discriminated against her with respect to services and facilities because of her race, colour, ancestry, and place of origin.

2Specifically, she alleged that, after she and two other individuals arrived at a No Frills grocery store to shop, a plain clothes security guard followed her around the store, and then told her that she was under arrest for theft. She alleged that the security guard stereotyped her as a common criminal, and would not have treated a White woman the same way.

3The respondents filed separate Responses on September 1 and October 14, 2009, which denied the allegations of harassment and discrimination.

4The respondents denied that the applicant came to the grocery store with two other individuals. The respondents admitted that a security guard followed the applicant in the store, but stated that it because of her suspicious behaviour, not her race. The respondents also denied that the security guard informed the applicant that she was under arrest for theft.

5The respondents stated that there is video surveillance footage that supports their position.

BACKGROUND

6Gus’ No Frills is a grocery store in Scarborough. The store contracted its security services to Wincon Security & Investigation Services, which employs security guards.

7The incidents at issue occurred at the store on April 22, 2009. Approximately one week later, the applicant delivered a letter of complaint to the store.

8The hearing of the merits of the Application took place on April 18, 2011. I heard the evidence of three witnesses: the applicant, her daughter, and the security guard.

9I also admitted into evidence the applicant’s letter of complaint to the store, a CD-R containing video surveillance footage, a cell phone record, and the security guard’s Apprehension Report.

10After the applicant closed her case, the respondents requested that the Tribunal dismiss the Application, without hearing the respondents’ evidence, on the basis that the Application had no reasonable prospect of success.

11I provided the applicant with an opportunity to cross-examine the security guard, which she undertook, and I then heard oral submissions from the parties on the respondents’ motion.

DECISION

12The Application is dismissed. I have decided that the Application has no reasonable prospect of success because the applicant failed to establish a prima facie case of discrimination, and there are significant credibility issues in the applicant’s evidence.

APPLICANT’S EVIDENCE

13The applicant testified that she attended the store with one other person, J.T., to buy food for a community program.

14The applicant’s testimony contradicted her Application and her letter of complaint to the store, which both stated that she attended the store with two other people to buy food for the program. The two individuals were identified as J.T. and Delrose Miller, who is the applicant’s daughter.

15Specifically, the Application stated:

The Applicant alleges that on April 22, 2009, she and two individuals, [J.T.] and Delrose Miller, attended the No Frills store (…) with the intention of purchasing a number of items for a community based organization.

16Similarly, her letter of complaint stated:

I was at the Store with two other people, [J.T.] and Delrose Miller, who can if required verify the incident I am about to describe…. Upon paying my bill and leaving your store both I and my associates were accosted by your employee.

17In cross-examination, the applicant admitted that she read, understood and signed the Application. She also admitted that she read, understood and signed the letter of complaint, but stated that someone else wrote it for her.

18When asked to explain the contradiction, the applicant stated that she attended the store with J.T. to shop, and after they had finished shopping, her daughter came to the store. When asked to explain why her Application and complaint letter clearly stated that she attended the store and shopped with two other people, one of whom was her daughter, she refused to provide an explanation. She merely stated: “All I will say is that my daughter came later.”

19When I asked the applicant’s representative to explain the contradiction, he also refused to provide an explanation. He only stated that it does not make any difference whether the applicant shopped with one person or two people.

20In cross-examination, when asked why she did not call J.T. as a witness, she stated that she no longer speaks with her. In response to my questioning, she denied that J.T. would not have been supportive of her case. She stated that she did not call her because she wanted to present her case on her own.

21In cross-examination, the security guard testified that the applicant was only with one other person when she was shopping. The video surveillance footage also shows the applicant with only one other person.

22The applicant testified that she and J.T. picked up four packages of ground beef in the meat section of the store. She stated that when they were in the juice section, J.T. told her that they were being followed. She stated that she turned around and saw a man behind them. She stated that she told J.T. that she did not care if he was following them.

23It is undisputed that the man was the security guard, who was dressed in plain clothes.

24The applicant stated that she then told J.T. she does not like the ground beef at No Frills, and that they should buy it at Price Choppers instead. She stated that she put the ground beef packages down in the juice section where it was cold.

25The applicant’s testimony contradicted her Application, which stated:

The Applicant alleges that her being pursued throughout the store made her very uncomfortable, and therefore she decided to return several items to the store shelves.

26In cross-examination, when asked to explain the contradiction, the applicant stated that, even though she told J.T. that she was not concerned, she was, in fact, uncomfortable that they were being followed. However, she did not state that she put the ground beef packages down because of that discomfort. She maintained that she put them down because she did not like the brand.

27The security guard testified that he began following and observing the applicant and J.T. because an employee in the meat section of the store told him that they had been acting suspiciously. He stated that the store has considerable theft problems with meat and pharmaceutical products. He stated that he noticed that the applicant was wearing a heavy coat and had placed the meat packages in the top section of her shopping cart.

28He stated that he saw the applicant take the meat packages out of the top section of the cart, and conceal them in her jacket, while J.T. was looking back and forth. He stated that they then saw him observing them, and the applicant returned the packages to a frozen bunker.

29The security guard stated that, because of the applicant and J.T.’s suspicious behaviour, he decided to continue to follow and observe them until they left the store.

30He denied that the applicant’s race was a factor in his decision to follow and observe her. He stated that his decision was based solely on her suspicious behaviour. However, he also admitted that he had only been working full-time as a security guard for one month at that time.

31The applicant testified that when they were at the cash register, she asked J.T. to go back and get another product. She stated that she heard J.T. having a conversation with the security guard, and understood that J.T. had thrown a paper patty bag at him.

32The security guard testified that when J.T. came back into the shopping area to get a product, she told him that he was not very good at his job, and threw garbage at him.

33The applicant testified that when she and J.T. exited the store, she heard the security guard say to her, “You are under arrest.” She stated that she responded, “Excuse me?” and he repeated, “You are under arrest.” She stated that her cell phone was ringing while this was going on. She stated that she responded to the security guard, “What for?” and he then said, “For stealing four packages of ground beef.”

34The applicant subsequently changed her testimony about the timing of the phone call. She stated that she had, in fact, already answered her cell phone, and was speaking with her daughter, when the security guard said, “You are under arrest.” She stated that she left her cell phone on and put it in the cart.

35Ms. Miller, the applicant’s daughter, testified that she called the applicant with her cell phone to ask her if she could baby-sit her son, but the applicant informed her that she could not because she was buying food from No Frills, which she then had to cook for a community event.

36Ms. Miller stated that she then heard a voice state, “You are under arrest.” She stated that the applicant stopped speaking to her, but her cell phone remained on. She stated that she also kept her cell phone on, and went to the store.

37In support of her evidence, the applicant submitted Ms. Miller’s cell phone record for April 22, 2009, which had a record of a call to the applicant’s cell phone around the time of the incidents, which lasted seven minutes and 42 seconds.

38In his testimony, the security guard stated that he followed the applicant and J.T. outside the store because they were making a scene inside, and he wanted to defuse it. He denied that he told the applicant that she was under arrest or accused her of stealing packages of ground beef. He stated that he would have had no basis for making such statements because he saw the applicant put the ground beef packages in a bunker, and then pay for her remaining items.

39The applicant testified that she opened her purse, opened her coat, lifted up her shirt, pulled her pants down to her knees, and rolled her pants up to her knees to show the security guard and onlookers that she had not shoplifted anything. In cross-examination, she admitted that she undertook these actions voluntarily because she wanted to demonstrate that she had not done anything wrong.

40The security guard testified that he was very flustered by the applicant’s actions, and decided that the best course to follow was to retreat back into the store and remove himself from the situation.

41The video footage shows the security guard coming back into store followed by the applicant who points her finger at him.

42There is no dispute that the applicant and J.T. then remained inside the store, while the applicant spoke to staff of the store and a different security guard from the shopping mall. The applicant’s daughter also arrived while they were there. They all subsequently left the store.

43In cross-examination, when asked what evidence she had to support the allegation in her Application that the security guard would not have treated a White woman the same way as he treated her, the applicant admitted that she had no such evidence. She stated that she could only speak about what happened to her, not other people. She explained that her allegation was based on how she felt.

44The applicant delivered a letter of complaint dated April 30, 2009 to the grocery store. The letter described the security guard’s conduct as “inappropriate”, but did not allege that the security guard harassed or discriminated against her, or subjected her to racial profiling. Neither the applicant nor her representative explained why the letter failed to raise these issues.

ANALYSIS

45The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

46I am cognizant of the fact that where there are allegations of racial profiling or discrimination, the Tribunal should be cautious in dismissing an application at this stage because racial stereotyping is often the result of subtle, unconscious beliefs, biases and prejudices, and can only be proven by circumstantial evidence and inference. See Sinclair v. London (City), 2008 HRTO 48 at para. 18 and Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 (B.C.H.R.T.) at para. 482.

47I am also cognizant of the fact that the respondents may have information about the reasons for their actions, including evidence of discrimination, which is not accessible to the applicant. For that reason, I provided the applicant with an opportunity to cross-examine the security guard.

48After hearing the applicant’s evidence, and the cross-examination of the security guard, I am not satisfied that that the applicant established a prima facie case of discrimination.

49In its best light, the applicant’s evidence indicated that she was a Black woman, who was observed and followed around the store by a security guard, and then told by the guard that she was under arrest for theft as she exited the store. She admitted that she had no further evidence to support her allegations of racial profiling, and that it was based on a “feeling” she had.

50I would further note that the applicant could have, but chose not to, call J.T. as a witness to support her allegations. I have not drawn an adverse inference from her failure to do so, but I would point out that J.T. was the main witness to the incidents at issue.

51Furthermore, there were significant credibility issues in the applicant’s evidence. In view of the respondents’ position that the applicant was acting suspiciously, I was particularly troubled by the fact that she testified that she put the ground beef packages back because she wanted to buy them at another grocery store, but her Application stated that she put them back because she was uncomfortable about being followed by the security guard.

52I was also troubled by the fact that the applicant testified that she attended the store with one other person, J.T., to shop, but her Application and letter of complaint stated that she attended the store to shop with both J.T. and her daughter. The fact that the applicant and her representative both refused to explain this contradiction was, quite frankly, baffling.

53The applicant testimony’s on when her daughter called her was also internally inconsistent. First, she stated that the security guard said she was under arrest her for theft, and then her daughter called. I would note that this statement is inconsistent with her daughter’s later testimony, which stated that she and the applicant had a detailed conversation before she heard the security guard say he was going to arrest the applicant. The applicant subsequently changed her testimony, and stated that her daughter called her before the security guard told her that she was under arrest.

54Finally, the applicant’s letter of complaint to the grocery store, which was delivered approximately one week after the incidents, did not did not allege that the security guard harassed or discriminated against her, or subjected her to racial profiling, and she did not offer any explanation at the hearing for omitting these issues.

55In all the circumstances, I find that the Application has no reasonable prospect of success.

ORDER

56The Application is dismissed.