Gurney v. McDonald’s Restaurants of Canada, 2011 HRTO 984

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fritzie Gurney

Applicant

-and-

McDonald’s Restaurants of Canada

Respondent

DECISION

Adjudicator: David A. Wright

Date: May 24, 2011

Citation: 2011 HRTO 984

Indexed as: Gurney v. McDonald’s Restaurants of Canada

APPEARANCES

Fritzie Gurney, Applicant ) Bram Lecker, Counsel

McDonald’s Restaurants ) Alexandre Proulx, Counsel

of Canada, Respondent )

INTRODUCTION

1This case is about a trip through the McDonald’s drive thru for a happy meal that ended unhappily. The applicant ordered apple slices, but was given French fries. This had happened before and she asked to speak to the manager. She alleges that in the course of the conversation with the manager, an employee referred to the fact that she was pregnant in what appears to have been an attempt at humour to diffuse tension. The applicant felt humiliated when the manager then gathered other employees and told them to remember her face so she would get a free happy meal next time. She alleges that the reference was to her pregnancy and was discrimination on the basis of sex and family status, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She states that as a result, and despite several apologies from the respondent and the provision of a gift card, she has experienced severe anxiety and stress and asks that the Tribunal order $2,500 in damages and a letter of apology.

2Upon receipt of the Application, the Tribunal, on its own initiative, directed a summary hearing by teleconference pursuant to Rule 19A, without requiring the respondent to file a Response. The respondent was asked to provide a brief explanation of the events from its perspective, which it did. The summary hearing was held on May 20, 2011 and the applicant proceeded first. The Application was dismissed, with reasons to follow, without hearing argument from the respondent. These are those reasons.

ANALYSIS

3Rule 19A provides as follows:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4The Tribunal set out the analysis as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 7-9:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

5There is a dispute between the parties about whether the alleged remark referred to the applicant’s pregnancy. The manager of the store asked the applicant how many children she had so that he could give them each a happy meal toy. The applicant answered “one” and the employee subsequently said, “one on the way”. The respondent’s written statement indicates that the employee was referring to the fact that she would be getting the applicant one happy meal toy. The applicant says it was a reference to her pregnancy.

6The applicant’s counsel puts forward the theory that a service provider who remarks on the pregnancy of a customer necessarily violates the Code. I disagree. A passing comment referring to pregnancy, without more to bring it into the realm of discrimination or harassment, is not a violation of the Code. Even assuming the comment did refer to the applicant’s pregnancy, the mere reference to that fact is not a violation of the Code. There is no reason to suggest the comment would be reasonably interpreted as humiliating or denigrating to the applicant on the basis of sex or pregnancy.

7It is not the purpose of the Code to police every comment made by a service provider to a customer, nor does a person’s hurt feelings, anxiety or upset about a situation mean that the Code was violated. The applicant’s claim for damages is entirely outside of the range of what the Tribunal would have ordered for a single, passing comment in a service situation, even assuming that discrimination could be made out. The Tribunal would not order a respondent to apologize as the applicant requests as it would violate freedom of expression rights. Finally, I note that the respondent has already apologized to the applicant on several occasions and offered her a gift card, which seems an entirely appropriate response in the circumstances.

8Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.