Surh v. Scarborough Town Centre Holdings Inc., 2012 HRTO 2025

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Doug Surh

Applicant

-and-

Scarborough Town Centre Holdings Inc. (958902 Ontario Inc.)

Respondent

DECISION

Adjudicator: Brian Cook

Date: October 24, 2012

Citation: 2012 HRTO 2025

Indexed as: Surh v. Scarborough Town Centre Holdings Inc.

APPEARANCES

Doug Surh, Applicant

Self-represented

Scarborough Town Centre, Respondent

Robb Macpherson and Qian Mou, Counsel

INTRODUCTION

1The applicant filed two Applications under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination by the respondent on the grounds of race, colour, ethnic origin, sex, and reprisal. The applicant self-identifies as a male of Asian descent.

2The respondent operates a mall. The applicant alleges that he was improperly banned from the mall following an incident in February 2008 and then improperly denied access to the mall on December 12, 2009 and again on December 3, 2010.

BACKGROUND

3On February 29, 2008, the applicant was in the food court of the respondent mall when he became involved in an altercation with other patrons who were in the food court. The applicant describes the three patrons as Jamaican girls who he thinks may have been members of a gang, based on their behaviour. He alleges that the Jamaican girls started to harass him and that they said racist things to him. He responded in kind. He alleges that one of the harassers spit food at him.

4A mall security officer responded to the situation. Other security officers also became involved. There are two members of the Toronto Police Services who are routinely stationed at the mall and one or both of them also became involved.

5The mall security officers determined that the applicant was primarily responsible for the altercation. He was asked to leave the mall and was banned from coming back to the mall for a period of six months. The three women who were involved in the incident were not banned from the mall.

6The applicant did not come to the mall again until December 12, 2009. There is no dispute that one of the security officers involved in the February 2008 incident recognized the applicant and approached him. The applicant alleges that the security officer radioed in an alert and that two or three more security officers and one or two of the police officers in the mall immediately surrounded him. He alleges that the first security officer told the others that the applicant had been disruptive and had been banned from the mall. The applicant alleges that he was escorted from the mall by the security officers.

7The applicant next visited the mall on December 3, 2010. He alleges that he was again recognized by the same security officer, again surrounded by other officers and police, and again escorted off the premises.

8Application 2010-07548-I (“the first Application”) was filed by the applicant on November 30, 2010. It concerned the December 12, 2009 incident and identified only that incident as the incident of discrimination. The incident in February 2008 was mentioned in the Application but it was not identified as an incident of alleged discrimination.

9The first Application was delivered to the respondent which filed a Response. The Response indicated that after a “full and complete search of its records”, the respondent had been unable to locate any record of any incident involving the applicant on December 12, 2009.

10The Response indicated that the only records concerning the applicant were in respect of the February 29, 2008 incident. The Response noted that the first Application had not been filed within one year of the February 29, 2008 incident as required by section 34(1) of the Code, and asked that any allegation concerning the February 29, 2008 incident be dismissed on that basis.

11The Tribunal issued a Case Assessment Direction directing the applicant to make submissions on the delay issue.

12The applicant filed a submission dated May 12, 2011. According to that submission, the first incident of discrimination occurred on February 29, 2009 (not 2008). In fact, as noted, the earlier incident occurred on February 29, 2008. Even if the incident had occurred in February 2009 it still would not have occurred within one year of November 2010, when the first Application was filed.

13The Tribunal issued Interim Decision 2011 HRTO 1105, dated June 7, 2011. It denied the respondent’s request that the first Application be dismissed, noting that the applicant alleged that an incident occurred in December 2009, which was within one year of the date the first Application was filed.

14The respondent then filed a Request for Order During Proceedings asking that the applicant provide details of the alleged incident in February 2009, as it had no record of such an incident. The Request also asked the Tribunal to dismiss the first Application because any incident described by the applicant described normal practices of mall security guards and did not disclose evidence of discrimination.

15On November 8, 2011, the parties attended a mediation session at the Tribunal which did not result in settlement.

16On November 30, 2011, the applicant filed Application 2011-10390-I (“the second Application”) with the Tribunal. It alleged discrimination with respect to an incident on December 3, 2010. This was the incident noted above, when the applicant says he was asked to leave the mall for the third time.

17This second Application was delivered to the respondent, which filed a Response. The Response stated that the respondent had no record of any incident involving the applicant on December 3, 2010. The Response did indicate that there was a record of an incident on December 12, 2009. In the Response to the first Application, the respondent indicated it had no record of an incident on December 12, 2009.

18On March 7, 2012, the respondent provided to the applicant and the Tribunal the documents in its possession that were arguably relevant to the first Application. This included a document, discussed below, about the December 2009 incident.

19The Tribunal issued a Case Assessment Direction dated April 18, 2012. It noted the confusion about the various dates mentioned by the parties and directed that the hearing which had been scheduled for September 6, 2012 would concern the “preliminary factual issue” of whether the incident or incidents took place at all:

On September 6, 2012, the Tribunal will hear evidence from the respondent concerning the manner in which it maintains its records and what the records from the date (or dates) in question reveals. The applicant will be able to cross-examine with respect to this evidence. If the applicant has evidence in response to this respondent’s evidence or by which he otherwise proposes to establish that the incident(s) took place, he may call it on this date.

20The Case Assessment Direction also sought submissions from the parties about whether the two Applications should be consolidated. The first and second Applications were subsequently consolidated in Interim Decision 2012 HRTO 1016.

21On June 25, 2012, the applicant asked that the hearing scheduled for September 6, 2012 be adjourned. He stated he was not available on September 6, 2012 and also that he wanted the matter adjourned until the respondents disclosed documents which he alleged were still in the respondent’s possession but which had not been disclosed.

22The adjournment request was denied in a Case Assessment Direction dated July 16, 2012.

23On August 20, 2012, the applicant filed some additional documents, discussed below, which he had obtained as a result of a freedom of information request to the Toronto Police Services Board.

THE HEARING ON SEPTEMBER 6, 2012

24At the outset of the hearing, the applicant renewed his request that the hearing be adjourned. He advised that he continues to believe that the respondent is withholding documents in its possession concerning the December 3, 2010 incident. He also indicated that he has a continuing freedom of information request with the Toronto Police Services Board. He indicated that he has been told that the Board has a document pertaining to the December 3, 2010 incident which will be released to him but the release has been held up because of a backlog of freedom of information requests.

25The applicant said that he does not know what the document will show but he does expect that it will prove that an incident did occur on December 3, 2010.

26As noted, shortly before the hearing the applicant submitted five documents that he had received from the Toronto Police Services Board. These concerned the February 2008 incident and the December 12, 2009 incident. The document about the December 12, 2009 incident provides no details about what may have happened.

27The applicant could not explain why any document about a December 2010 incident would not have been included in the documents already released by the Toronto Police Services Board. He also indicated that he had no idea how long it might take to get any additional documents.

28The respondent opposed the applicant’s adjournment request, noting that a similar request had already been denied. The respondent also reiterated its request that the Application be dismissed. The respondent submits that the applicant has not established a prima facie case of discrimination and that there is no reasonable prospect of success. On behalf of the respondent, Mr. Macpherson noted that the respondent has asked for particulars from the applicant about what he alleges occurred in the incidents that he says involved discrimination. In addition, Mr. Macpherson argued that it is important to determine if the incident in February 2008 forms part of the Applications. In the respondent’s view, any allegations about the February 29, 2008 incident are out of time and should be dismissed on that basis.

29In preliminary discussions with the parties, it was agreed that the first incident of alleged discrimination occurred on February 29, 2008. The applicant agreed that he had earlier incorrectly identified February 29, 2009 as the date of the first incident. It was also agreed that a second incident occurred on December 12, 2009. The respondent conceded that the statement in its Response to the first Application that there was no record of an incident on December 12, 2009 was not correct and that an incident did in fact occur on that date. However, the respondent does not agree with the applicant about what happened in the incident. The respondent continues to assert that it has no record of any incident involving the applicant on December 3, 2010. The applicant continues to allege that an incident did occur on December 3, 2010. He said that there may also have been a subsequent incident but he refused to provide any details about this.

30After these preliminary submissions and discussions, I invited the parties to engage in settlement discussions, pursuant to Rule 15A of the Tribunal’s Rules of Procedure. However, after some preliminary discussion I concluded that such discussions were unlikely to lead to settlement.

31I noted that the Case Assessment Direction of April 18, 2012 had specified that at the hearing the Tribunal would hear evidence from the respondent about its record keeping, to clarify whether the incidents of alleged discrimination occurred. I also noted the respondent’s request that the Applications be dismissed because there is no reasonable prospect that either could succeed. I also agreed that it is necessary to clarify whether any allegations about the February 2008 incident should be dismissed because an Application regarding that incident was not filed in time. In addition, I agreed that it is necessary to understand the details of what it is that the applicant alleges occurred in the incidents of alleged discrimination.

32Pursuant to the April 18, 2012 Case Assessment Direction, the respondent brought John Maguire, the respondent’s Security Manager, as a witness. The individual security staff involved in the alleged incidents were not present.

33I proposed that I would hear evidence from Mr. Maguire about the respondent’s security process and its security recordkeeping, and hear evidence from the applicant about what he alleges occurred on December 12, 2009 and December 3, 2010. I indicated that after hearing this evidence, I would discuss with the parties what further steps were appropriate.

34The respondent agreed to this proposal. The applicant objected on the grounds that he feels that the documents he anticipates from the Toronto Police Services Board are critical to his case. I denied the applicant’s continuing request for an adjournment. I noted that it appeared that the purpose of this document would be to corroborate that an incident occurred and possibly to corroborate the applicant’s allegations about what happened. I noted that it did not appear that the applicant required this document in order to provide his evidence about what it is he alleges occurred.

35I accordingly heard evidence from Mr. Maguire. The applicant’s evidence was adduced through my questioning of the applicant. Mr. Macpherson indicated that he was not in a position to cross-examine the applicant because he first needed to consult with potential witnesses who were not present at the hearing.

THE EVIDENCE OF MR. MAGUIRE

36Mr. Maguire has been employed as a member of the respondent’s security staff for fifteen years and he has been the Security Manager since 2008. Including Mr. Maguire, there are regularly 35 security staff at the mall. Mr. Maguire testified that the Toronto Police Services Board generally has two police officers stationed at the mall. They work out of a small office contained in the security department’s office. The applicant testified that he believes that there is an actual Toronto Police Services Board sub-station in the mall. In my view, nothing turns on this.

37Mr. Maguire testified that the security officers carry a notebook with them when they are on duty. They are expected to record any incidents that occur in the book. When the notebook is full, the officer is required to turn it in to the security office where it is retained indefinitely. Each book is marked on the cover with the relevant time period.

38If any significant incident occurs, the officer is also required to enter information about the incident in a computerized system. The information is to be entered before the officer completes the shift. The system is searchable by name and date. The computer system was changed in early 2010, but the new system is similar in nature to the old system. Security staff have access to a camera and, if appropriate and possible, a photo of a member of the public who is involved in any significant incident may be taken. The photo is attached to the data in the computer system.

39Mr. Maguire testified that he conducted a search for documents pertaining to the applicant after the first Application was filed. At that time, he found no documents pertaining to any incident on December 12, 2009. A search of the computer system using the applicant’s name disclosed records about the incident on February 29, 2008.

40Mr. Maguire testified that he conducted a subsequent search and discovered an entry in an officer’s notebook with respect to the December 12, 2009 incident. That entry, which indicates a time of 15:30 on December 12, 2009, indicates that the officer called into the security office to see if the applicant was in the system. The entry indicates: “In the system, 6 month bar is inactive.” At 15:42, the entry indicates “Clear”. Mr. Maguire testified that this would indicate that the interaction between the security officer and the applicant lasted for approximately 12 minutes, from 15:30 to 15:42; that the officer confirmed that the bar was not in effect; and that by 15:42 the applicant was free to go.

41Mr. Maguire testified that there is definitely no entry in the computer system regarding this incident. This indicates to him that the incident was not a significant incident. He testified that if the incident occurred in the way described by the applicant, involving a number of security officers and the police, that there should have been an entry in the computer system. Mr. Maguire agreed that based on the record the applicant obtained from the Toronto Police Services Board, it appears that one or two officers were involved in the incident on December 12, 2009. He could not explain why there was not a record in the computer system as a record should have been entered if the police were involved.

42I note that the police record indicates that the police involvement occurred at 15:40. According to the officer’s record, the applicant was cleared to go at 15:42, so it would appear that any involvement with the police was brief.

THE APPLICANT’S EVIDENCE

43The applicant testified that on December 12, 2009, he was walking through the mall. A security guard who had been involved in the February 29, 2008 incident recognized him and stopped him. The officer demanded the applicant’s name and date of birth. The officer issued a code through his radio and other security officers and one or two police officers arrived. The first officer told the others that the applicant had attacked three girls at the mall and that the applicant was barred from the mall. The applicant was then escorted off the premises. The applicant testified that this encounter was humiliating because a crowd of mall patrons gathered around to see what was going on. The applicant testified that all of the security officers were writing in notebooks during the encounter.

44The applicant testified that on December 3, 2010, he came back to the mall. He testified that the same security officer again recognized him and again called in a code on his radio which resulted in the applicant again being surrounded by other security officers and one or two police officers. He testified that the security officer again told the others that the applicant had assaulted three women and that he was banned from the mall and that he was then escorted out of the mall.

45The applicant was asked if anything happened during either the December 12, 2009 incident or the December 3, 2012 incident that caused him to think that he was being discriminated against on the basis of a Code-protected ground, and particularly race, colour, ethnic origin or sex, the grounds identified in the Applications. He said that nothing directly was said that suggested discrimination on any Code-protected ground. He initially indicated that in describing the February 2008 incident to the other security officers, the security officer suggested that the applicant had assaulted three white women and he suggested that this might have had racist overtones. However, the applicant clarified that the officer did not in fact say that the women were white and in fact did not say anything about their colour or race.

DO THE APPLICANT’S ALLEGATIONS RAISE CODE ISSUES?

46After hearing the applicant’s evidence about what allegedly occurred on December 12, 2009 and December 3, 2010, I asked the applicant to explain how, assuming all of his allegations to be true, the alleged incidents involved the Code.

47The applicant said that on both occasions he felt that he was being targeted as an Asian male. As noted, he felt that the security officer insinuated that the applicant had assaulted three white women which could have turned the other officers against him, although he agreed that the officer did not actually say anything about the race or colour of the women.

48The applicant agreed that the reason he was approached by the security officer on both occasions was that the officer recognized him from the February 2008 incident. The applicant believes that the February 2008 incident involved racism and sexism because the officers involved in that incident unjustly sided with the three black women and accepted their version of events over the applicant’s version of events.

49In respect of the February 2008 incident, the applicant submits that it is the first in a “series of incidents” within the meaning of section 34(1) of the Code and that it therefore is an incident that he is entitled to bring forward as part of his Applications.

POST-HEARING SUBMISSIONS

50While the issue of whether the applicant’s allegations involve Code-related issues is an issue that has been raised by the respondent on several occasions in respect of both Applications, I permitted the applicant to make further written submissions on this issue as well as the issue of whether the February 29, 2008 incident should be dismissed for delay.

51The applicant filed submissions on September 28, 2012. The submissions reiterate the applicant’s submissions during the hearing. He continues to allege that the respondent has withheld documents which, if they were disclosed, would prove his case. The applicant also submits that the respondent has unfairly attempted to have his allegations dismissed by claiming that he did not file the Application in time. He reiterates his view that the events are a series of events within the meaning of section 34 of the Code. The applicant also reviews his allegations about the original incident in 2008 and his allegation that he was treated differently than the three black women and that this happened because he was profiled as an Asian male.

52The applicant’s post-hearing submissions also refer to the policy of the Ontario Human Rights Commission on racial discrimination and racial profiling. He also included what appear to be blog entries on October 7, 2010 regarding issues to do with the mall. The submissions do not explain the relevance of these blog entries.

CONCLUSIONS

53The first issue in this case is whether, assuming all of the applicant’s allegations to be true, the alleged actions of the respondent involved an infringement of the applicant’s Code-protected rights.

54I find that, assuming all of the applicant’s allegations to be true, the alleged actions of the respondent do not involve an infringement of the applicant’s Code-protected rights.

55The reasons for this are that, firstly, there is no evidence at all of any direct discrimination. Based on his allegations, nothing was said to the applicant that in any way reflected on his race, colour, place of origin, or sex. The only evidence of discrimination appears to be the applicant’s belief that the actions of the security staff were influenced by racism and sexism. In the absence of some corroborating evidence that the Code-protected grounds were actually a factor in what happened, mere belief by the applicant that Code-protected grounds were involved is not sufficient to establish proof of discrimination.

56The applicant submits that racism and sexism are often subtle and the absence of direct evidence does not mean that actions were not motivated by racism or sexism. This is true, however, there must still be some evidence of discrimination, even if the evidence is only circumstantial.

57In this case, there does not appear to be any evidence of any kind of discrimination, except for the applicant’s belief. In addition, there is no evidence from which I may reasonable draw an inference that the acts identified by the applicant were in any way Code related. Finally I note that there is also a clear, non-discriminatory explanation for the respondent’s conduct, which is that the respondent’s security staff recognized the applicant from the earlier altercation in 2008.

58In respect of the February 29, 2008 incident, the records of the security staff and the police who were involved indicated that the applicant and the three women were all involved in the incident. There was evidence that the applicant spat on one of the women, as he was observed to have spit on her face. The women informed the security officers and the police that the applicant made racist comments to the women, including use of the “N” word. Even if the applicant is correct in asserting that the security staff were in error in banning the applicant and not the three women, there is a clear, non-discriminatory explanation for why the applicant was banned from the mall for six months as a result of the February 29, 2008 altercation.

59The applicant’s version of what occurred on December 12, 2009 is significantly different than the account suggested by the December 12, 2009 entry in the security officer’s notebook. However, even if the applicant’s account is true and the account suggested in the notebook is false, the applicant’s account does not disclose any basis for concluding that what occurred happened because of discrimination. The applicant agrees that the reason he was approached by the security guard was that the security guard recognized the applicant from the February 2008 incident and incorrectly thought that there was a continuing ban. This would be evidence that the security guard was incorrect in thinking that there was a continuing ban but not evidence to provide a basis to suggest that if the security guard was incorrect it was because of discrimination.

60The same applies to the alleged incident on December 3, 2010. If it is assumed that the incident occurred in the manner described by the applicant, there is nothing in the applicant’s allegations about what happened to suggest discrimination and there is a non-discriminatory explanation.

61For all of these reasons, I conclude that there is no reasonable prospect that the Applications can succeed and they are dismissed on that basis.

62Given this finding, it is not necessary to determine if the allegations concerning the incident on February 29, 2009 should be dismissed as untimely.