Lee v. Consignorita Upscale New & Resale Women’s Fashions, 2012 HRTO 1659

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Lee

Applicant

-and-

Consignorita Upscale New & Resale Women’s Fashions

Respondent

DECISION

Adjudicator: Alison Renton

Date: August 31, 2012

Citation: 2012 HRTO 1659

Indexed as: Lee v. Consignorita Upscale New & Resale Women’s Fashions

APPEARANCES

Deborah Lee, Applicant

Self-represented

Consignorita Upscale New & Resale Women’s Fashions, Respondent

Al Pereira, Representative

Introduction

1This is an Application filed on June 7, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of family status. The applicant self-identifies as a single mother with three children. The Application was only filed on the applicant’s behalf. The applicant alleges that she was denied entry into the respondent, a women’s clothing store, because she was told that she had “too many children” and that a young child had just stolen from the respondent.

2A Response was filed by the respondent, after the Tribunal issued an Interim Decision, 2010 HRTO 1949, directing it to do so. The Response stated that the applicant was denied entry into the store because the owner, Judy Pereira, who was working alone, needed to close the store for a few minutes to use the washroom because of a medical condition. The applicant filed a Reply denying this position.

3A hearing was held on April 10, 2012. The Tribunal heard evidence from the applicant herself and Ms. Pereira for the respondent.

the evidence

4The applicant testified that June 4, 2010, was a PA day for her oldest child, a daughter who was 8 years old. As Once Upon A Child, a children’s resale store which is located in the same shopping plaza as the respondent store, was hosting some children’s activities, the applicant took her children there. After attending those activities, the applicant decided to enter the respondent store to see what it had for sale that would be of interest to her. In her cross-examination, the applicant said that she found out what the respondent store sells from looking at its website as she gathered information for completing her Application.

5The applicant states that Ms. Pereira was sweeping inside the doorway of the respondent store. The wheels of the applicant’s stroller were barely in the doorway of the store when Ms. Pereira told her, “You have too many children”. The applicant states that she asked Ms. Pereira, “What do you mean I have too many children?” to which Ms. Pereira responded, “You cannot come in here. I just had a little child steal from me and you have too many children”.

6The applicant was upset with Ms. Pereira’s statement. She told Ms. Pereira that her children did not steal and that it was her right to enter the store. The applicant told Ms. Pereira that if she, the applicant, were a black person, “you could not deny all black people from entering the store” because another black person stole from the respondent store. The applicant was not alleging that Ms. Pereira was racist, but was providing this “parallel” to show Ms. Pereira that her conduct was wrong. The applicant testified that Ms. Pereira responded by telling her that, “No, no, no, that’s different. You have too many children”. The applicant did not allege that Ms. Pereira said that her children stole from the respondent store.

7Ms. Pereira, during her evidence, confirmed that the applicant and her children attempted to enter the store, but denied that she told the applicant that she had too many children and denied that the applicant told her the “parallel” and testified that it never took place. Her evidence is that she has a recurring medical condition that requires her to use the washroom frequently. Her doctor’s note from Dr. Gad, dated October 4, 2010, confirms her medical condition.

8Ms. Pereira testified that she was on her way to the door with a note in her hand indicating that the store would be closed for a few minutes as she needed to use the washroom. She testified during examination-in-chief that she told the applicant that she needed a few minutes to use the washroom. The applicant, Ms. Pereira testified, said, “Oh my God, I’ve never been treated this way before and I’ve never been denied access to a store”. Ms. Pereira, put her sign on the door, closed the store and used the washroom. When she opened the store again, the applicant and her children were gone. In cross-examination, Ms. Pereira was asked how she remembered the applicant since she did not receive the Application until after July 26, 2010. Ms. Pereira testified that she remembered the applicant’s response that she had never been treated this way before.

9The applicant, during her cross-examination, denied that Ms. Pereira was walking over to the door with a sign in her hands, and denied that Ms. Pereira told her that she needed to close the store for a few minutes to use the washroom. The applicant further testified that had Ms. Pereira told her this, the applicant would have either decided to wait for a couple of minutes until the store re-opened or left. Further, during her cross-examination, the applicant testified that she did not know that Ms. Pereira had a medical condition and regardless of having a medical condition, the applicant, her 2 year old son, who is potty trained, and her 8 year old daughter, all understand an individual’s need to use the washroom. The applicant did not have a problem with a store owner closing the store to use the washroom or even to take a scheduled break. She had previously worked alone at a store where she had to close the door in order to use the washroom and both her parents, as well as her daughter’s grandmother, have medical conditions that require more frequent use of the washroom.

10The applicant also agreed, during her cross-examination, that the respondent store was located two stores away from Once Upon A Child. She did not dispute the respondent’s suggestion that the majority of its customers were mothers coming into the store with their children. When questioned during her cross-examination why Ms. Pereira would single her out on this day, given that the majority of her customers are mothers with children accompanying them, the applicant testified, “I don’t know why you singled me out, but I was singled out and maybe you had a greater number of customers this day”.

11Ms. Pereira, during her cross-examination, testified that the applicant, having been pregnant three times, should have been more understanding of one’s need to use the washroom more frequently. When the applicant pointed out during Ms. Pereira’s cross-examination that she had been at the hearing for some time, during which time she drank several cups of coffee and had not left the room to use the washroom, Ms. Pereira stated that her medical condition flares up from time to time.

12The applicant, who was still standing outside the respondent store, testified that she saw that others around the shopping plaza were looking at her during her discussion with Ms. Pereira. She thought it was because she raised her voice to Ms. Pereira in front of her children. In cross-examination, the applicant admitted that she was agitated, and that she made “a slight scene”. She testified, in cross-examination, that she “spoke with authority” and that her voice may have been louder than her testimony before the Tribunal, but it was because she was standing outside, there was some traffic and she felt that her rights had been violated. During her cross-examination, the applicant admitted that she did not obtain the names and contact information of other people who were standing around the shopping plaza because she is a “private person” and had never exhibited behaviour like this in front of her children. She speculated that others did not come over to inquire about what was happening because it was not their business and likened it to when a toddler has a temper tantrum and others do not intervene in that situation.

13The applicant testified, in examination-in-chief, that having observed others watching her, she decided to leave the area. She walked with her children to her car, which because it was parked beside the shopping plaza meant she did not have to walk in front of the observers, put her children in the car and left. She had intended to take her children to a marsh to feed the birds, but because she was hurt and angry and her children were upset, particularly her daughter, who is bright and who understood what had happened, she drove her children home. At home, the applicant called the Tribunal to find out the process to file an application.

14As remedies, the applicant seeks $250,000 for pain and suffering as well as a letter of apology from the respondent to her and her daughter. The respondent, in its Response, claims that the applicant is looking for a “payday”. In her Reply, the applicant stated that she is not looking for a payday. She did not know she could obtain monetary compensation as a result of the respondent’s conduct. During her cross-examination, the applicant explained that she used “Martinez’s formula”, which she described as a mathematical formula used to calculate pain and suffering based upon age, life expectancy and calendar days. She used this formula for her and her three children to arrive at the $250,000 figure.

15During her cross-examination, and in response to the assertion that the applicant was seeking a payday, Ms. Pereira confirmed that she did not know the applicant’s financial situation. She confirmed that the applicant’s children appeared well-behaved and were under the care and control of the applicant.

16The applicant testified that the treatment that she received from Ms. Pereira has negatively affected her and described her hesitation in now taking her children out to restaurants and stores for fear that others will think that they steal, are not being raised properly, or that she has too many children. About a year after the incident with the respondent store, the applicant suffered from depression. She did not provide any medical documentation in support of this. In cross-examination, she asserted that her children have “lost the mother that they used to have” as they no longer do the same activities as they did before the incident. Her daughter, the applicant testified, thinks she is being accused of being a thief, even though Ms. Pereira did not say this.

17During the hearing, and after her testimony, Ms. Pereira stated that she wanted to submit some documents which had not been previously disclosed, which the Tribunal permitted to be filed as exhibits as the applicant did not object. These documents were: an October 4, 2010 medical note from Dr. Gad; a receipt dated October 5, 2010 for Dr. Gad’s medical note; a handwritten letter dated October 5, 2010 from Diane Bethune; and a typed letter dated October 4, 2010 from Keith Goddard. Dr. Gad, Ms. Bethune and Mr. Goddard were not called as witnesses.

18According to Ms. Bethune’s letter, she is a part-time employee of the respondent. Her letter states that it is store policy to lock the front door whenever it is necessary to go into the backroom for store or personal reasons. “Since I work alone in Consignorita, this policy is always enforced!” she concludes.

19Mr. Goddard is the owner of a bookstore located in the same shopping plaza as the respondent store. In his letter, he writes that Ms. Pereira “appears to be a hard working individual who is enthusiastic about her business” and whom he has never known to be “…rude to customers or treat them with ill respect”. He writes:

I often observe her actions, and on many occasions I have witnessed Ms. Pereira shut and lock her front door when she needs to use the washroom. Oftentimes, she would tell potential patrons trying to enter her premises to wait outside until she reopens after closing for a few minutes. I am aware that Ms. Pereira works at her shop alone all day and closes the door numerous times during her hours of operation. She usually posts a sign on the door that lets people know that she will reopen in 10 minutes. When her part time employee is also in the shop alone, she is expected to do the same by locking the front door as well.

the law

20Section 1 of the Code provides:

Every person has a right to equal treatment with respect to services, good 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.

21“Family status” is defined in section 10 of the Code. It is defined as:

“family status” means the status of being in a parent or child relationship;

onus

22The Supreme Court of Canada has observed, “[a]ssessing credibility is not a science. It is very difficult...to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. See also Peel Law Association v. Pieters, 2012 ONSC 1048, at para. 53.

23In my assessment of the evidence, I have also applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed, which held:

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 carries 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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

24Underlying this traditional ‘harmony with the preponderance of the probabilities’ are a variety of factors considered in appraising reliability and credibility, including:

• The internal consistency or inconsistency of evidence

• The witness’s ability and/or capacity to apprehend and recollect

• The witness’s opportunity and/or inclination to tailor evidence

• The witness’s opportunity and/or inclination to embellish evidence

• The existence of corroborative and/or confirmatory evidence

• The motives of the witnesses and/or their relationship with the parties

• The failure to call or produce material evidence

Shah v. George Brown College, 2009 HRTO 920 (“Shah”), at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717, at paras. 35-36.

25The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”), that the “balance of probabilities” standard of proof applies to all civil cases and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. The Court held that Courts must “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”, at para. 58. A balance of probabilities means that it is more likely than not a violation has occurred or a “50% plus one” probability. See Shah, supra, at para. 23.

26In light of the conflicting testimony of both the applicant and Ms. Pereira, this Application turns entirely on an assessment of whether the applicant has met her onus establishing that the “too many children” comment was made. The applicant asserts that it was made while the respondent denies that it was.

27The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she has discriminated against, with respect to services, on the basis of the prohibited ground of family status. A prima facie case of discrimination “…is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complaint’s favour in the absence of an answer from the respondent-employer”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at para. 28.

28Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13, at paras. 51-52.

29Both the applicant and Ms. Pereira were consistent in their respective testimony and both had equal interest in maintaining their respective version of events. Both the applicant and Ms. Pereira were able to describe the events of June 4, 2010, clearly and in detail. Both, however, provide divergent and conflicting accounts of what occurred at the store on June 4, 2010. I accept Ms. Pereira’s explanation, given during her cross-examination, that she was able to recall the incident, despite getting the Application some months after the fact, because she recalled the applicant’s reaction to not being let into the respondent store and created a scene. The applicant herself admitted during her cross-examination that she made scene or “a slight scene”. The applicant testified about the “parallel” that she told Ms. Pereira about one black person stealing from the respondent does not equate to all black people stealing; Ms. Pereira denied that the applicant told her this parallel.

30Neither the applicant nor Ms. Pereira called any witnesses. The applicant testified in cross-examination that she is a “private person” and had never previously exhibited this type of behaviour in front of her children as justification for not getting the names and contact information of witnesses. In her Reply, she wrote, “I am certain there are witnesses to the incident and unfortunately I was too humiliated for making a scene in front of my children and raising my voice to another human being in public to get witness names, contact information and statements”. In her Application, she wrote, “I then noticed out of the corner of my eye there were several people standing infront [sic] of the children[’]s resale store staring in my direction. My only assumption was that they had heard the argument. Not wanting to make any further of a scene I left heading towa[r]ds my car, which thankfully I had parked in the lot along the side of the plaza so I did not have to walk past all those people”. I accept the applicant’s explanation, though worded differently in her Application, Reply and testimony, that essentially she made a scene from which she wanted to remove herself to justify why she did not obtain witness statements or contact information for witnesses and do not draw any adverse inference from her failure to have a witness who corroborated her evidence. Of course, the absence of witnesses, or corroborating evidence, does not assist the applicant in proving her allegations on a balance of probabilities.

31The two letters that the respondent introduced as exhibits confirm the respondent store’s practice of closing the store so that the individual working alone can use the washroom and I have accepted them on this basis. Of course, they do not specifically address what happened between the applicant and Ms. Pereira on June 4, 2010, and accordingly I do not give them any weight in resolving what reasons Ms. Pereira told the applicant on that day.

32The respondent has presented a reasonable explanation as to why the applicant and her children were not permitted entry into the store. Regardless of whether or not Ms. Pereira had a medical condition on June 4, 2010, which required her to use the washroom more frequently, I accept that a store owner or employee, who works alone, will on occasion be required to close a store to use the washroom and that this would be a valid and reasonable explanation as to why a member of the public would be denied entry into a store for a short period of time. The applicant herself does not dispute that this would be a valid and reasonable explanation, given the medical conditions of some of her family members and the fact that she also worked alone in a store; however, she disputes that this occurred on this date. Dr. Gad’s medical note confirms that Ms. Pereira was seen in September 2008 and August 2010 for a medical condition, which Ms. Pereira testified, flares up from time to time.

33The respondent also presented evidence to refute the applicant’s evidence that she had “too many children”, specifically that the respondent store was located several stores from the Once Upon A Child children’s store and that the majority of its customers were women with children. The applicant agreed with these points, although she maintained her position about the “too many children” comment. Ms. Pereira agreed during her cross-examination that the applicant’s children were well-behaved. Given the location of the respondent and the fact that the majority of its customers were women with children, it is highly unusual that Ms. Pereira would deny a prospective customer entry into her store because children accompanied the customer, particularly when one child was still an infant and in a stroller and the children were, as agreed by both the applicant and Ms. Pereira, well-behaved.

34With respect to the applicant’s allegations that Ms. Pereira told her that she just had a young child steal from her, the applicant confirmed in cross-examination that she did not know what a baby in a stroller, a two year old or an eight year old could steal from the respondent store, not having been in it before. She speculated that they could steal jewellery as she learned what the respondent store sells from her research in preparing the Application. In the Response, Ms. Pereira denied that she made comments about stealing, and submitted, “Having never met them in the past, how could I possibly know whether her young child would steal or not?”. Again, given that the majority of the respondent’s customers were women with children, combined with the fact that the applicant had both a baby and a two year old with her, it is highly improbable that Ms. Pereira told the applicant she just had a small child steal from her as the reason why the applicant was denied entry into the respondent store.

35The fact that the applicant filed her Application three days after her encounter with Ms. Pereira lends support to the applicant’s position that an “incident” occurred with Ms. Pereira on June 4, 2010. In fact, as noted above, the applicant in her testimony and in her pleadings confirmed that there was a “scene” between the two of them. However quickly the Application was filed does not, in this case, assist me in determining if the applicant has established a prima facie case of discrimination on a balance of probabilities.

36I accept the applicant’s evidence that she is not seeking a “payday” from the respondent and that she used “Martinez’s formula” for herself and her three children to calculate the figure of $250,000 that she is claiming as a monetary remedy in the event that her Application is upheld. In her Reply, the applicant wrote that she was not aware that she could obtain monetary compensation when she initially spoke with the Tribunal as the information that she received was about forms and procedures. While she is not looking for a payday, in her Reply she wrote “…I am looking for the wrongs to be righted and for Ms. Pereira to face the consequences of her words and actions. Violating a person or families[s] human rights should not be taken lightly and should face serious penalties”.

37However, I am troubled by the applicant’s testimony and information contained in her Application and Reply with respect to the impact that Ms. Pereira’s conduct had on her and her children. During her cross-examination, the applicant testified that her children “lost the mother” that they used to have and this continues to impact on her family’s daily living up to the date of the hearing. These feelings were also set out in the Application and the Reply and they seem, combined with the testimony, to be quite considerable based upon a one minute interaction that took place almost two years before the date of hearing. I do note that the Tribunal has taken into account the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination in determining monetary remedies in cases where an Application is upheld. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-53 and Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, at para. 16.

38However, in the end, I am left with two competing versions of what was said on June 4, 2010. While I am satisfied that there was some form of interaction between the applicant and Ms. Pereira, I am not satisfied that the applicant has discharged her onus of establishing a prima facie case of discrimination on a balance of probabilities that a violation of the Code occurred. Accordingly, the Application is dismissed.