HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gavin Francisco
Applicant
-and-
The Carlu Corporation
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Francisco v. Carlu Corporation
APPEARANCES
Gavin Francisco, Applicant
Self-represented
The Carlu Corporation, Respondent
Mark Robert, Representative
Introduction
1This is an Application filed 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 goods, services or facilities and contracts because of because of race, colour, ancestry and creed.
Background
2The Application arises out of an incident that occurred on respondent's premises on February 4, 2011. The respondent (or “the Carlu”) describes itself as a private special events venue and on February 4, 2011 its premises were being used for “Motionball”, a private charity event for the Special Olympics. The applicant attempted to attend the event, but was required to leave the premises by a member of the respondent’s staff shortly after arriving. The applicant described himself as a black man of the Jewish faith and alleges that he was excluded from the event because of his race, colour and religion. The respondent states that the applicant was refused entry because of his suspicious actions at previous events at the Carlu.
3I heard testimony from four witnesses and four documents were entered into evidence. On the day of the hearing, the parties were able to complete their evidence, but had insufficient time to make submissions in argument. Accordingly, the parties filed written submissions after the hearing. Where the parties’ evidence was in conflict, I have set out my findings of fact and my reasons for them which have been made in keeping with the principles for assessing credibility as set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At p. 356-357, the British Columbia Court of Appeal stated:
…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 demeanor 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 as 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.
Other factors for assessing credibility include the witness’s motives the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
Evidence
The Applicant
4The applicant testified that he attended at the Carlu on February 4, 2011. He went through security and the media desk, which he described as being downstairs. The applicant stated that he was not on the list of attendees and spoke to a media person, who he stated called Mr. Etherington, the event organizer. The applicant was cleared to enter and he proceeded to the elevator, which took him to the seventh floor where the event was occurring. The applicant stated he exited the elevator, checked his coat and as he turned to enter the event, Todd Pineo, a Carlu employee, approached him and informed the applicant that he was not permitted at the Carlu. The applicant began to protest, but Mr. Pineo advised the applicant that he was banned from the Carlu and that the “owners don't want your kind here”. The applicant retrieved his coat from the coat check, went downstairs and left.
5The applicant indicated that he was livid following this incident and left voicemail and e-mail messages at the Carlu reflecting his feelings. He stated that he had been attending events at the Carlu for nine years – since it opened – and estimated that he had attended between 30 and 40 events there.