Longboat v. 708179 Ontario Inc., 2012 HRTO 2170

Human Rights Tribunal of Ontario

B E T W E E N:

Paula Longboat Applicant

-and-

708179 Ontario Inc. and Dennis Davison Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: November 19, 2012 Citation: 2012 HRTO 2170 Indexed as: Longboat v. 708179 Ontario Inc.

APPEARANCES

Paula Longboat, Applicant Kingsley Laurin, Counsel

708179 Ontario Inc. and Dennis Davison, Respondents No one appearing

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 services and contracts because of race, colour, ancestry, place of origin and ethnic origin.

2The hearing into this matter was held on September 11, 2012. No one appeared for the respondents. On August 17, 2012, the personal respondent, who is the owner of the corporate respondent, wrote to the Tribunal indicating that he would not be able to attend the hearing “due to continuing and non-treatable health issues”. The personal respondent did not seek an adjournment of the hearing; however, he did request that the Tribunal take the following into consideration: “(1) I sincerely apologise to Paula Longboat and anyone else that I have offended for my one and only racial indessection (sic); (2) I am sixty six year old and am unable to work; (3) I am deeply in debt; (4) My only income is my old age security and my Canada pension; (5) As a form of compensation I am willing to forgive the debt owed by Paula Longboat which is $8929.03 as of August 15, 2012; (6) I am sorry for any inconvenience that I may have caused”.

3I heard the evidence of the applicant and that of her witness, Bertha Skye.

Applicant's Evidence

4The applicant self-identifies as Aboriginal and a member of the Six Nations of the Grand River.

5On August 31, 2007, the applicant approached the personal respondent, president of Auto Sales & Leasing (the corporate respondent’s trade name) to discuss “leasing to own” an extended cab truck which she needed for work. The applicant was self-employed crafting corn husk dolls.

6According to the applicant, the personal respondent initially refused to show her any vehicles because he believed the applicant to be an Aboriginal person living on the Six Nations reservation and explained that he had problems with leasing vehicles to Aboriginal people living on Six Nations. The applicant advised the personal respondent that she was living in Brantford and was capable of making the lease payments.

7The applicant indicates that ultimately the personal respondent agreed to show her some vehicles; however, he only had one vehicle to lease, a 2004 Chevy Venture van. The applicant agreed on the van and signed a lease for it.

8According to the applicant, in and around November 2009 she started experiencing financial difficulties and on November 25, 2009 she notified the personal respondent that she required time to make her monthly lease payments. The applicant indicates that the personal respondent agreed to give her time.

9The applicant indicates that she continued to have financial difficulties through December and January and that she made the personal respondent aware of this. On January 20, 2010, she presented a letter to the personal respondent indicating that her financial difficulties persisted and the van required maintenance. According to the applicant, the personal respondent told her that maintenance was her responsibility and that she was to do what she could.

10The applicant’s evidence is that upon returning home on February 10, 2010, she noticed a letter dated February 8, 2010 from the personal respondent which read in part:

Three times you have promised to pay me and you have not made payment since September 09. I expect you to return the van immediately. I have removed the plates from the van and reported it to the police. I have asked them to charge you with fraud and theft.

11According to the applicant, the personal respondent knew that she was having financial difficulties and had agreed to allow her to miss some payments. She was in shock that he had reported to the police that the van was stolen particularly since she had never been in trouble with the law before.

12The letter continued:

Do you remember when you came to me for a van that you could work and have a carrier? I didn’t want to lease you a vehicle, but when you promised repeatedly to pay me on time, I let you have the van. Now this is how you show your gratitude, by lying, cheating and stealing from me. Typical Indian.

13The applicant indicated that when she finished reading the letter she was completely devastated, hurt and humiliated.

14The applicant indicates that the day after receiving the letter she spoke to Joseph Skye, hereditary Chief from Six Nations, and that he encouraged her to pursue the matter legally because of the racist comment. They also discussed how this type of racist attitude towards the Aboriginal community is extremely prevalent and common-place in Brantford. According to the applicant, Chief Skye suggested that she show the letter to the Tekawenake Newspaper. On February 17, 2010, the newspaper addressed the applicant’s situation in an editorial entitled “Brantford auto dealer’s racist comments an outrage”.

15The applicant indicates that on February 13, 2010, she contacted the personal respondent and informed him that she had contacted the Six Nations police department to inquire about the theft and fraud charges and that they informed her that there was nothing in their system regarding any fraud or theft charges. According to the applicant the personal respondent became outraged, saying: “I’m going to make your life miserable like you have done to me and you can guarantee that.”

16The applicant indicates that she spoke with Bertha Skye, Aboriginal Elder for Six Nations, about the difficulty she was having emotionally dealing with the situation and that Elder Skye advised that she seek counselling from a Traditional Healer. According to the applicant she met with Christine Skye, Traditional Healer, and participated in the recommended traditional healing treatments.

17The applicant testified that she also saw Mark Laferriere, Social Worker, because she needed all the “help I could get at the time.”

18The applicant testified that the personal respondent made no attempt to repossess the van until after she filed her Application.

Bertha Skye's Evidence

19The applicant’s final written submissions accurately summarized the evidence provided by Elder Skye through her oral testimony before the Tribunal:

Bertha Skye testified that she had been an elder at McMaster University and Mohawk College for the last eight years where she assisted Aboriginal students coming from reservations who felt they did not fit in at university or college and that she has been “an elder for quite a long time” prior to that. Bertha Skye testified that she works closely with her husband, Hubert Skye, who is a “healer, an elder and a counsellor and a keeper of the longhouse.”

Bertha Skye testified that Ms. Longboat approached her in February and showed her the article in the newspaper about the letter written by Mr. Davison. Bertha Skye testified that Ms. Longboat “was on the verge of a nervous breakdown and I told my husband, “This girl needs help. She needs our guidance or she’s going to fall apart.””

Bertha Skye testified that when she saw the letter from Mr. Davison she saw herself as a child, “I know how much that hurts because in the ‘30s, when I went to school with white children, they would call me Indian and they wouldn’t choose me to play ball because I was an Indian.” Bertha Skye testified that her parents encouraged her not to listen to them and, always be proud. You are just as good as they are. You show them that you can play ball. You hit that ball. You’re a good runner. Bertha Skye further testified that over time, she became one of the first people to get picked because she was a good hitter and a good runner, all because her parents told me not to give up. Bertha Skye testified that when she saw Ms. Longboat that day, she saw a “very sick girl” and like her when she was a child, Ms. Longboat needed guidance and healing.

Bertha Skye also testified, “We had to have a bear dance for her. The bear is the most powerful healer. The spirit, the bear, is the leader of all animals. We had the bear dance for her because we knew how sick she was.” Bertha Skye also testified that “There were times where I felt like I wanted to break down myself, but as an elder, you have to be strong and you can’t be weak when you’re counselling a young lady that’s been hurt badly.” Bertha Skye further testified that after the ceremony, “she was getting stronger and she was able to smile.”

Analysis and Decision

20The relevant provisions of the Code are as follows:

Part I – Freedom from Discrimination

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of …..race, ancestry, place of origin, colour [and] ethnic origin

2. Every person having legal capacity has a right to contract on equal terms without discrimination because of …..race, ancestry, place of origin, colour [and] ethnic origin.

3. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part

21In order to establish discrimination, the ordinary civil standard of proof, upon a balance of probabilities, applies: Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202. The applicant bears the onus of establishing a prima facie case of discrimination: Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley’). In O’Malley, the Supreme Court of Canada defined a prima facie case under human rights law as follows:

A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent…

22Intent or motive to discriminate is not a necessary element of discrimination: see O’Malley, cited above, at paragraph 14.

Refusal to Lease

23It is the applicant’s position that the personal respondents’ initial refusal to lease a vehicle to her on August 31, 2007 because she was Aboriginal was discriminatory. It is noted however that the Application was filed on January 26, 2011, three and one-half years following the refusal to lease. According to section 34 of the Code, an applicant has to apply to the Tribunal within one year after an alleged incident of discrimination. Otherwise, unless the delay in applying to the Tribunal was incurred in good faith and no substantial prejudice would result, the Tribunal does not have the authority to deal with the alleged infringement of the Code.

24It is the position of the applicant that the initial refusal to lease is a timely allegation within the meaning of section 34 of the Code as it was part of a series of events culminating with the respondents’ letter of February 8, 2010 terminating the lease. I disagree.

25In Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927, the Tribunal observed:

The Tribunal’s approach to what is a “series of incidents” is developing on a case-by-case basis. It has been said that events are not part of a series of incidents if there is a significant break in the temporal connection between them. A gap of more than one year between events has been considered in some cases to interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225, 2009 HRTO 1225. The Tribunal has also considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See Duggan v. Villa Care Centre Nursing Home, 2010 HRTO; Baisa v. Skills for Change, 2010 HRTO 1621, 2010 HRTO 1621. The Tribunal has defined the word series as “a number of things or events of the same class coming one after another in spatial or temporal succession”: Pakarian v. Chen, 2010 HRTO 457, 2010 HRTO 457.

26In my view, the respondents’ initial refusal to lease a vehicle to the applicant is a discrete and separate issue from the termination of the lease and therefore cannot be seen as part of a series of events within the meaning of section 34 of the Code. Moreover, as the applicant has conceded, there is a 29-month gap between the initial refusal to lease which occurred on August 31, 2007 and the termination of the lease on February 8, 2010. In these circumstances, I do not find that the two incidents alleged form part of series of incidents.

27As a result, I next need to consider whether the applicant has established that her delay in raising the refusal to lease incident was incurred in good faith and that no substantial prejudice has been caused to the respondents as a result of the delay.

28In relation to the requirement to establish that the delay was incurred in good faith, this Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. However, the applicant did not put forward any explanation for the delay in raising the initial refusal to lease incident and as a result I am unable to conclude that the delay was incurred in good faith. That being said, as both good faith and lack of substantial prejudice must be established in order to justify a delay beyond the one year period, it is not necessary to consider whether any substantial prejudice would be caused to the respondents.

The Letter

29The letter of February 8, 2010 is on the letterhead of “Auto Sales & Leasing” and is signed by Dennis Davison, president. It reads:

Enclosed you will find the balance owing on the van plus interest. Three times you have promised to pay me and you have not made a payment since september (sic) 09. I expect you to return the van immediately. I have removed the plates from the van and reported it to the police. I have asked them to charge you with fraud and theft. Do you remember when you came to me for a van so that you could work and have a carrier? I didn’t want to lease you a vehicle, but when you promised repeatedly to pay me on time, I let you have the van. Now this is how you show your gratitude, by lying, cheating and stealing from me. Typical Indian.

30I find that the respondents statement “Now this is how you show your gratitude, by lying, cheating and stealing from me. Typical Indian.” made during the course of delivering a service, namely the leasing of a vehicle to the applicant, is contrary to section 1 of the Code because it constitutes a derogatory generalization or negative stereotyping about Aboriginal people.

31I note that the Application alleged discrimination under both section 1 (services) and section 3 (contracts) of the Code. At the hearing, the evidence and submissions of the applicant and her witness focused primarily on the conduct of the personal respondent and its impact on the applicant rather than the social area (i.e. services or contracts) under which the infringement arose. In my view, it is not necessary to determine whether the area of contracts was also engaged given the same conduct is in issue and whether that conduct fell under multiple social areas will not, in this case, have any material impact on the assessment of an appropriate remedial order.

32In Abdallah v. Thames Valley District School Board, 2008 HRTO 230, this Tribunal observed:

Discrimination can manifest both through differential treatment and/or stereotyping. Stereotyping occurs when a quality or characteristic is ascribed to an individual based on their actual or perceived group membership. As the Supreme Court of Canada explained in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 at para. 64, “[a] stereotype may be described as a misconception whereby a person or, more often, a group is unfairly portrayed as possessing undesirable traits, or traits which the group, or at least some of its members, do not possess.”

Stereotypes run contrary to the human rights tenet that persons should be judged as individuals and not based on presumed group characteristics. Racial stereotypes perpetuate preconceived, and most often prejudicial, notions about a person’s nature, abilities and values because the individual is identified with a certain racial or ethnic group, and/or, a particular place of origin.

33In my view, the message underlying the respondents’ comment was that Aboriginal people lie, cheat and steal. The remark evokes the notion that people of Aboriginal ancestry are untrustworthy and not legitimate members of Canadian society because they perpetrate fraud in order to get what they want.

34I understand from the Response that the personal respondent was frustrated and angry because the applicant had fallen into arrears on her car payments. However, this cannot excuse the racist remark. When responding to the failure to keep up her car payments, the focus should have been on the applicant as an individual and her behaviour and not her Code-related group membership. Instead of addressing the applicant’s specific conduct, the personal respondent relied on a discriminatory stereotype that presumed that the applicant’s behaviour was linked to her membership in a Code-protected group. This explicit derogatory reference to the applicant’s Code-related group membership constitutes an infringement of the Code in and of itself.

35Moreover, I find that the personal respondent’s threat in relation to bringing or having brought criminal charges of fraud and theft was a disproportionate reaction related to the personal respondent’s preconceived notion of the applicant’s Code-protected group and constitutes an infringement of the Code. I make this finding based on the inference I draw from the following findings and in the absence of any evidence from the respondent to the contrary. In my view, a threat of bringing criminal charges of fraud and theft would not have been a standard course of action in response to a defaulting lessee such as the applicant. Nor is there any evidence at all that the applicant was engaged in any type of criminal activity that might have remotely, let alone reasonably, given rise to such threats. In my view, it is more probable than not that a standard recourse in this particular situation would have been the remedy provided for in the lease, namely, repossession of the vehicle.

36The applicant’s Aboriginal ancestry is, in and of itself, a protected ground and is associated with the grounds of race, colour, ancestry, place of origin and ethnic origin as cited in the Application. The Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination (2009) discusses the interconnectedness of the grounds of race, colour, ethnic origin, ancestry, place of origin, citizenship and creed at section 2.3.2. I find that the respondents breached section 1 of the Code and discriminated against the applicant with respect to services owing to the applicant’s Aboriginal ancestry.

Remedy

37The Tribunal’s remedial authority where a finding of discrimination has been made is derived from s. 45.2(1) of the Code which provides as follows:

On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

38Section 45.2(1) authorizes awards of monetary compensation for infringement of the Code. This includes “compensation for injury to dignity, feelings and self-respect”. It also authorizes the Tribunal to make an order directing a party to the Application to do anything that the party ought to do to promote compliance with the Code.

39In her Application the applicant requested $20,000 as compensation for injury to dignity, feelings and self-respect. The applicant also requested that the Tribunal order the respondents to make a $10,000 contribution to the Six Nations Health Foundation for the purpose of acquiring additional dialysis machines.

40In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON. S.C.D.C.), the court held tribunals should consider the following subjective factors when awarding compensation: humiliation, hurt feelings, the loss of self-respect , dignity and confidence of the applicant, the experience of victimization, vulnerability, and the seriousness of the offensive treatment (at para. 153). In assessing the amount of the award, the Tribunal must be mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a “license fee” to discriminate (at para. 152).

41In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent compensation awards and stated at paras. 52-54:

I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53, 2005 HRTO 53 at paras. 34-38.

42In February 2010, the applicant referred herself to Bertha Skye, an aboriginal Elder and Counsellor. Bertha Skye testified that the impact of the letter on the applicant was significant. She stated that the applicant was on the verge of a nervous breakdown and that without further guidance she would fall apart. She testified that the applicant was sick and that it was necessary to have a bear dance for her, the bear being the most powerful healer.

43The applicant testified that the personal respondent stole her self-worth and dignity. She testified that she had trusted him but now she does not trust anyone. The applicant indicated that it affected her social life and that she was afraid to interact with people. She testified that it started impacting her interactions with her children’s school in that she had a difficult time trusting what teachers were telling her. The applicant testified that she was hurt, humiliated and shocked after receiving the letter from the personal respondent. The applicant testified that she sought out help from the clinical social worker at the community health centre who observed in a letter issued at the applicant’s request: “That ordeal was obviously a very stressful and emotionally hurtful time in her life.”

44I find that the personal respondent’s discriminatory treatment of the applicant was serious. The offensive statement was not a fleeting remark made in the heat of the moment. It was reduced to writing in a letter addressed to the applicant. As such it was crafted with deliberation and was designed to be hurtful.

45I accept the applicant’s evidence that she experienced serious emotional stress and anxiety as a result of the personal respondent’s discriminatory act. In my view the seriousness of the act is only marginally mitigated by the personal respondent’s belated apology and the offer to forgive any outstanding lease payments.

46The applicant referred the Tribunal to Direk v. Coffee Time Donuts, 2009 HRTO 1887, a case with great similarity to the current case. There the Tribunal found that the respondent had accused the applicant of spreading rumours about her coffee, saying “you Turkish people go – don’t make rumours. I hate Turkish people,” before calling police to complain about a “Turkish” man. The Tribunal awarded the Applicant $15,000.

47I accept on the basis of the applicant’s evidence and that of Bertha Skye that the applicant felt sick and humiliated as a result of the letter, her dignity was injured and she now has a residual distrust of people. I am satisfied that the effect of the denunciation of the applicant by the personal respondent on the basis of her Aboriginal heritage and of the personal respondents’ representation that he called the police seeking to have the applicant charged with theft and fraud was seriously disturbing to the applicant.

48I find after considering the applicant’s individual circumstances that $15,000 in monetary compensation is appropriate for injury to dignity, feelings and self-respect as well as the other intangible harm noted above caused by the infringement of the applicant’s right to be free from discrimination in the provision of services. The Tribunal orders that the respondents are, jointly and severally, liable to pay the award.

49Prejudgment interest is awarded from the date of the Application, January 26, 2011, in accordance with s. 127 of the Courts of Justice Act, R.S.O. 1990 c. C.43 as amended. The respondents shall have 15 days following the date of this decision to make the payment to the applicant, failing which post-judgment interest shall be payable in accordance with the rate established under the Courts of Justice Act.

50The personal respondent has asked that the Tribunal consider his limited financial resources. The suggestion here is that any compensation awarded to the applicant should reflect the personal respondent’s ability to pay. In my view, this would not be appropriate. The loss arising out of the injury to the applicant’s dignity, feelings and self-respect is no less compensable because of the limited financial situation of the personal respondent.

51The applicant asked that the Tribunal order the respondents to make a $10,000 donation to Six Nations Health Foundation for the purpose of buying dialysis machines.

52The Tribunal’s power under s. 45.2(1) to direct a party to do anything that in its opinion is necessary to achieve compliance with the Code is broad and should be interpreted in a manner consistent with the purpose of the Code as remedial legislation. However, while the power is broad, remedies under the section must relate to the section’s purpose of promoting compliance with the Code. See Pchelkina v. Tomsons, 2007 HRTO 42 (decided under the previous remedial provisions of the Code and since followed under section 45.2).

53In my view, a donation to the Six Nations Health Foundation for dialysis units does not serve the remedial purpose of the Code. The requested remedy does not reflect the facts of this case and does not reflect the key objects of the Code, to eradicate discrimination and to ensure future compliance with the Code. In the circumstances, I do not believe it would be appropriate to require the respondents to make a donation to the Six Nations Health Foundation.

Orders

54The Tribunal makes the following orders:

a. The respondents are jointly and severally liable to pay $15,000 to the applicant as compensation for the infringement of the Code and the injury to her dignity, feelings and self-respect;

b. The respondents shall pay jointly and severally prejudgment interest on this amount payable calculated in accordance with section 128 of the Courts of Justice Act from the date of the Application;

c. The respondents shall pay jointly and severally post-judgment interest on any accumulated principal and interest calculated in accordance with section 129 of the Courts of Justice Act commencing 15 days from the date of this Decision.

Dated at Toronto, this 19th day of November, 2012.

“Signed by”

__________________________________

Keith Brennenstuhl Vice-chair