Chaudhry v. Choice Taxi of Cornwall Inc., 2012 HRTO 391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadeem Chaudhry

Applicant

-and-

Choice Taxi of Cornwall Inc.,

Michael Vervoort, Sami Ullah Chaudhry and Clifford Thompson

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: February 24, 2012

Citation: 2012 HRTO 391

Indexed as: Chaudhry v. Choice Taxi of Cornwall Inc.

Appearances

Nadeem Chaudhry, Applicant ) Yavar Hameed, Counsel

Choice Taxi of Cornwall Inc., )

Michael Vervoort, Sami Ullah Chaudhry ) Stephane Perreault, Counsel

and Clifford Thompson, Respondents ) )

Introduction

1Nadeem Chaudhry (the “applicant”) lives in Cornwall, Ontario, where he works as a taxi owner. This Decision arises from his Application against the corporate respondent Choice Taxi (“Choice”) and three individual shareholders of Choice pursuant to section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the basis of colour, ethnic origin, place of origin, creed, and race in respect of employment and contracts. He also alleges that his right to claim and enforce his rights under the Code without reprisal has been infringed by the respondents.

2The applicant came to Canada from Pakistan in 2000. In 2002 he became a taxi owner. From that time until March 2007, the applicant was working for Veteran’s Taxi (“Veteran’s”) which was the only taxi broker providing dispatch services to owners and drivers in Cornwall. The applicant became affiliated with Veteran’s through the purchase of a Veteran’s taxi (car number 20) from Clifford Thompson, who is a personal respondent in this matter.

3Choice is a corporation formed in 2003 by a number of taxi owners who left Veteran’s and became shareholders in a competitor business.

4In 2007, when the applicant’s original Complaint was filed with the Ontario Human Rights Commission (“Commission”), taxi owners in Cornwall were subject to a bylaw which required them to be affiliated with a broker, in this case, Veteran’s or Choice. In other words, no taxi owner, even if they were licensed by the City, could simply drive through the city and pick up a fare without first being affiliated with a broker. The City issues taxi licenses to owners and at the time of these events the licenses were capped at 56. The bylaw requires a licensed taxi owner to be affiliated with one of the licensed brokers, but it does not require a broker to provide dispatch services to a licensed taxi owner. That decision is left entirely to the broker and as a result, the brokers are able to control the number of taxis that are operating in the community at any give time. The bylaw is administered by the Cornwall Police Services Board.

5Although he is not directly challenging the bylaw in this proceeding, the applicant argues that this is an important part of the context for his allegations. He alleges that the bylaw gives the brokers complete control over determining affiliations, which has fostered discrimination against people of colour in the taxi industry in his community. The applicant alleged, for example, that the bylaw made it possible for the original shareholders in Choice to create what he referred to as a “paki-free” company: a taxi service of predominately Caucasian owners which would compete against Veteran’s, a company with a significant number of taxi owners who self-identify as people of colour.

6The applicant alleges that since Choice opened in the summer of 2003, he has been denied the opportunity to “bring his taxi to Choice”, meaning that he has been denied the opportunity to become affiliated with Choice either as a shareholder or as a taxi owner receiving dispatch services. He alleges he made verbal overtures to bring his taxi to Choice after the company opened in 2003 and written overtures which were considered at meetings of the shareholders held in October, 2006 and April, 2007. Testimony which related to the periods before and after these dates was given by both the applicant and respondents for the purpose of assisting the Tribunal in understanding the context for the applicant’s allegations and the respondents’ explanations.

7The Applicant commenced this proceeding by filing a Complaint with the Commission. The Complaint was then transferred to the Tribunal pursuant to the amendments to the Code which came into force June 30, 2008. Therefore, the original Complaint to the Commission dated September 25, 2007, sets out the scope of the section 53(5) Application to the Tribunal.

8In the original Complaint the applicant alleges that the reason his overtures to join Choice have been repeatedly rejected is because of racism against him as a person of colour and a man of Pakistani origin. He also alleges reprisal for speaking out on behalf of himself and others who perceive themselves to be victims of discrimination as taxi owners and drivers. The applicant alleges he is viewed as a troublemaker because of his advocacy. Counsel for the applicant described the basis of the claim as a form of “discriminatory animus” toward the applicant which created a barrier with respect to his employment as a taxi owner.

9As I understand the applicant’s claim, his perceptions of race and reprisal are interwoven rather than compartmentalized into separate experiences. For example, the applicant alleges that it is no defence that the respondent has accepted taxi owners into Choice who self-identify as people of colour. The applicant alleges that he is being intentionally passed over because he is a particular person of colour - one who speaks out about his perceptions of inequality in the industry.

10There is one allegation which engages the prohibited ground of creed. The applicant alleges that one of the respondents, Sami Ullah Chaudhry, spoke out against the applicant at a meeting of the shareholders and failed to vote in favour of bringing the applicant into Choice because of religious animosity toward him.

11All of the applicant’s allegations of discrimination and reprisal are denied by the respondents. They argue that the invitation to join Choice before the company was established was open to everyone in the taxi community, including the applicant, and that many people who self-identify as people of colour considered the opportunity but declined to join for various personal reasons. They allege that there is no evidence to support any serious efforts on the part of the applicant to join Choice between the time that the company opened in 2003 and October 2006, when he filed his first written application. In support of that argument the respondents rely on the applicant’s own statement in his first written application in October 2006 that he “finally decided” to switch his taxi from Veteran’s to Choice.

12There is no dispute that when the October 2006 application was considered at a formal meeting by the shareholders, all seven candidates considered at that meeting self-identified as people of colour and three of them were chosen. The respondents argue that the candidates who were successful at that meeting were simply better known to the shareholders than the applicant was. The respondents argue that since that time all of the applicant’s overtures to Choice have been decided on the basis that there is no economic justification for bringing more owners or taxis into the company. They argue that this is purely an economic decision and not one animated, intentionally or unintentionally, by discrimination and reprisal.

Procedural Issues

13Both parties were represented by counsel throughout the hearing. An order excluding witnesses was made on consent at the commencement of the hearing.

14The parties each filed a Book of Documents which was entered as an exhibit on consent at the commencement of the hearing. During the hearing the applicant’s Notices of Assessment from the years 2002 to 2008 were admitted as exhibits on consent of the parties and were added as Tab 11 to the applicant’s Book of Documents. Similarly, the respondent filed a document entitled “2010 Taxi Drivers”, which was added on consent as Tab 18 to the respondents Book of Documents.

15In support of the application, the Tribunal heard oral evidence from the applicant as well as one former (Brian Conway) and two current shareholders of Choice (Pierre St. Denis and Vandan Mirdavoudi). Mr. Mirdavoudi manages a taxi for his daughter and testified with full translation between Urdu and English.

16For the respondents, the Tribunal heard testimony from the three individually- named respondents, Michael Vervoort, Clifford Thompson and Sami Ullah Chaudhry. Mr. Vervoort and Mr. Thompson are original shareholders in Choice. Mr. Ullah Chaudhry self-identifies as a person of colour. He became a shareholder in 2004 and is the person alleged to have discriminated against the applicant on the basis of creed. Jaimie Lalonde, who was also one of the original shareholders but not named as an individual respondent, testified about the origins of Choice and the procedural history associated with bringing in new owners and shareholders. Bill Montgomery, a manager with Veteran’s for more than 30 years, testified about his experiences with the applicant as well as his general knowledge of the industry. The Tribunal heard additional testimony on behalf of the respondents from a number of other witnesses. Only the testimony which was ultimately relevant to the issues in dispute is mentioned in this Decision.

17At the conclusion of the cross-examination of the applicant and his witnesses, the respondent raised the question whether the applicant had established a prima facie case of discrimination and whether it was necessary for the respondents to call evidence. I decided that I would hear all of the relevant testimony before determining whether the Code had been breached in order to effectively evaluate the evidence and credibility issues. In my view the proper approach to early dismissal on partial evidence is to determine whether there is “no reasonable prospect of success” for the reasons set out by the Tribunal in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. In this case there was no basis for concluding that the application had no reasonable prospect of success when the question was raised. The applicant’s own evidence was based largely on his assumptions and perceptions. However, the testimony of Mr. Conway and Mr. St. Denis supported the applicant’s theory that he was rejected by Choice in part because of hostility toward him for asserting his right and the right of others to work in an industry free from discrimination. As a result I determined that it was important to hear evidence from both parties and examine all of the circumstances giving rise to the allegations before coming to a final conclusion on whether the parties had met their respective burdens.

EVIDENCE

18It is possible to establish from the oral and documentary evidence that a significant number of facts are not in dispute either because they were admitted or they were not challenged. As a result, the facts I have set out in this Decision are not in dispute unless otherwise indicated. I begin with the evidence associated with the applicant’s allegation that he had developed a reputation as a troublemaker, which is followed by the evidence related to the allegations of discrimination and reprisal.

The Applicant’s Reputation

19The applicant testified that he experienced discrimination from the community when he became a taxi driver in 2002 which he attributed in part to the fall out from “9/11”. He testified in general terms about name calling, customers demonstrating a preference for Caucasian drivers and unfairness in the allocation of work and dispatch services. The applicant testified about one specific incident which occurred while he affiliated with Veteran’s. At the time the applicant’s brother was working for him as a driver. The incident allegedly involved a customer who expressed a preference for a Caucasian driver over the applicant’s brother. When the applicant and his brother brought this matter forward to Veteran’s they were told that the woman was uncomfortable riding with the applicant’s brother because he looked like an “extremist”. Veteran’s ultimately resolved the incident in favour of the applicant’s brother and paid him for the missed fare. The driver who took the fare was driving for Mr. Vervoort who is a personal respondent in this matter. Mr. Vervoort testified that this was one of two incidents which caused him to candidly admit at the hearing that he and the applicant did not see “eye to eye”.

20Bill Montgomery testified for the respondents about his experience of the community in Cornwall and the applicant’s reputation for dealing with issues of discrimination. Mr. Montgomery is the Division Manager at Veteran’s. He has been with the company for more than 30 years and has worked directly with the applicant. He testified that although there are now a significant number of people who self-identify as people of colour in the taxi industry in Cornwall, this was not always the case. Mr. Montgomery testified about his own experience hiring the first person of colour to work as a driver at Veteran’s in the late 1990’s or early 2000’s. He was strongly in favour of hiring people of colour and he testified that he was criticized and “paid a price for it” at the time.

21It was not disputed that the applicant was involved in raising issues related to discrimination at Veteran’s. One of those incidents led to a significant falling-out between the applicant and Mr. Montgomery. On March 5, 2007, the applicant was supporting a small group of taxi owners and drivers who spoke directly with Mr. Montgomery about discrimination in the allocation of work at Veteran’s. Mr. Montgomery testified that he felt strongly that there was no basis for the allegations. He was particularly offended by the accusations because of his history of supporting people of colour in the industry.

22The conflict which ensued from that discussion ultimately resulted in Veteran’s ending their affiliation with the applicant and the other individuals involved in the incident. Veteran’s provided the applicant with a letter dated March 7, 2007, outlining the reasons for terminating the relationship, including the allegation that the applicant “repeatedly approached the media, councillors and police suggesting that our company has unfair practices” and the applicant’s specific allegation against Mr. Montgomery that he was favouring drivers on the basis of ethnicity. When that happened, the applicant found himself in the position of not being able to operate his taxi because he was not affiliated with one of the two brokers in Cornwall.

23The other individuals met with the company President shortly after the incident and returned to work. Karin Baskapan testified that he told the company that he had made a mistake and he was reinstated. The applicant did not meet with the president but renewed his efforts to join Choice.

24Mr. Montgomery described the applicant as an excellent driver who was well- educated and professional. He testified that the incident was very disappointing because the applicant had been perceived at Veteran’s as a “respectable minority” who had the potential to act as a bridge between management and workers because of his intelligence and demeanour. Both the applicant and Mr. Montgomery testified that they had since reconciled and put this difficult experience behind them and that by the time of the hearing, the applicant was once again affiliated with Veteran’s.

25With respect to his reputation at Veteran’s, a number of other witnesses testified that the applicant was known as someone who would raise concerns about discrimination and fair working conditions. For example, Mr. Baskapan testified that many of the owners and drivers talked about issues of fair treatment and that he had spoken with the applicant with respect to his own concerns about the management at Veteran’s. Other witnesses testified that they did not really know the applicant, particularly when the vote took place in October, 2006 on the first written application. That evidence is discussed in more detail below.

26Mr. Montgomery’s testimony related to the applicant’s reputation at Veteran’s. The applicant testified that he also raised concerns about discrimination at Choice on two specific occasions. Just after Choice opened, he told one of the original shareholders, Linda McInnes, to keep him in mind if the company was expanding. He also told Ms. McInnes about his observation that there appeared to be no people of colour among the shareholders. The second incident occurred in April 2004 when the applicant spoke out at a public meeting of the police services board and taxi industry urging Choice to “open its doors” to people of colour. The applicant made the statement because of the belief that he and others were being intentionally excluded from Choice.

27Ms. Lalonde and Mr. Thompson both testified that they recalled the public meeting in 2004 where the applicant urged Choice to “open its doors” to people of colour and that they found the applicant’s comments inappropriate. In their view the meeting had been called for a different purpose: to discuss issues of safety in the wake of two violent incidents against taxi drivers, one of whom was a person a colour, the other Caucasian. The applicant testified that he was trying to address what he perceived as a link between discrimination and safety in the taxi industry.

28At some point in 2006, the shareholders in Choice resolved a human rights complaint that had been filed by other members of the taxi industry. Ms. Lalonde testified to an enduring regret at having settled the complaint because of her conviction that the shareholders had done nothing wrong. Mr. Thompson and Mr. Vervoort both testified that they were frustrated by the allegations of racism. I disagree with the applicant that it would be appropriate for me to rely on either the existence or settlement of this Complaint as evidence that Choice was engaging in discrimination.

29Although the applicant was not a formal participant, he felt that he was perceived by some shareholders at Choice to be “behind” the complaint. Mr. Conway and Mr. St. Denis both testified that there was an undercurrent of animosity toward the applicant at a shareholder meeting in April 2007 because of perceptions that he had been supporting this previous human rights complaint. Mr. St. Denis testified that it was difficult to convince some of the shareholders that the applicant was simply looking for a place to run his taxi and not interested in making trouble for anyone. Neither Mr. Conway nor Mr. St. Denis testified to the existence of an undercurrent of this kind at any of the previous shareholder meetings, including the one in October 2006 during which the applicant’s first written application was considered.

30The letters sent by the applicant to Choice in March and April 2007 also contain some insight into the applicant’s perceptions at the time about the reputation he felt he might be developing with the shareholders. For example, in his letter of April 10, 2007, the applicant reinforced that he was committed to following all of the company rules and providing excellent customer service. The applicant testified that he was concerned that he had developed a reputation as a troublemaker and wanted to assure the voting shareholders that he would be a loyal and effective owner for Choice.

31It was in the latter part of 2007, after his requests to bring his taxi to Choice had been refused, that the applicant became more outspoken in public about his perceptions of discrimination at Choice. He filed his own human rights complaint in September 2007. The newspaper clippings produced at the hearing document some of the applicant’s public statements from 2008 and 2009. By January 2008, a number of taxi owners affiliated with Choice were openly calling for the company to do something in reaction to the allegations the applicant was making because of the belief that his conduct was having a negative impact on the company.

32There was additional evidence from some witnesses which was relevant to the question whether the applicant was perceived as a troublemaker. That evidence was given primarily by Ms. Lalonde, Mr. Thompson and Mr. Vervoort, three key members of the original shareholder group at Choice.

33When the applicant lost his affiliation with Veteran’s in March 2007, he worked as a driver for a number of Choice shareholders, including Ms. Lalonde. She testified that she thought the applicant was a good driver and a good man and that she did not have any difficulties with him, particularly when he was driving for her. During cross-examination she testified that when the applicant was driving for her there were no complaints, no problems with the cleanliness of his cab and no disputes between them.

34At the same time, when she was asked to describe how she felt about the applicant’s propensity to speak out about discrimination and his complaints about Choice, she described her perceptions of the applicant as someone with his own “agenda”. She testified that Choice had “enough troublemakers without adding more”. When Ms. Lalonde was asked to clarify what she meant by troublemaker, she testified that the applicant “does not take no for an answer”. She testified that when she tells the owners of Choice to do something, 90 percent comply and 10 percent never follow the direction. She testified that the applicant’s actions demonstrated that he was going to be that kind of a person. She testified that in her view the applicant would not accept the policies of Choice, he was saying negative things about the company in public and he was “turning” on them by accusing them of discrimination when a number of shareholders were giving him work as a driver because of his wife’s illness. Ms. Lalonde testified that “he wanted his car in there and he was going to get it in no matter what – as a manager I know what that kind of person is like – they argue, they don’t follow direction – we have a group of them – I would not vote with them today.” Ms. Lalonde testified that “the more he was going to the media, the more he was going to human rights, I was becoming concerned that he was becoming one of that 10 percent”. She testified that in her view the applicant did not seem to care that he would be “stepping over” someone else who was on the waiting list. When she was asked whether she considered the applicant to be an “instigator,” she responded affirmatively.

35During cross-examination Ms. Lalonde was asked when she began to view the applicant as a troublemaker and she answered “this whole process”. She testified that the applicant “wants what he wants” in the sense that he advocates for open brokers and goes to the media without considering the opinions of others. She described him as behaving as if the only opinion that counted was his own. Ms. Lalonde testified that she was fundamentally opposed to the applicant’s position on open brokerages. She was frustrated and upset by his accusations of discrimination particularly since it was Veteran’s which had “put him out” and Choice owners who had taken him in as a driver.

36Mr. Thompson testified during his cross-examination that he did not consider the applicant a troublemaker; however, he did describe the applicant as very vocal and demanding his own way, which in his view went back to Veteran’s. He also testified that the applicant’s brother was “quite pushy” and would stop him in public places like a grocery store to sign a petition, which he felt was inappropriate. He expressed a clear sense of frustration with Mr. St. Denis, who he testified was pushing the applicant’s “agenda” to become a shareholder in Choice. He testified that the applicant was attempting to get to him through Mr. St. Denis.

37Mr. Vervoort candidly admitted that he and the applicant did not see eye to eye. He described two incidents which specifically gave rise to his animus toward the applicant. The dispute described earlier between Mr. Vervoort’s taxi driver and the applicant’s brother was one of those incidents.

38The second incident involved Mr. Vervoort’s attempt to purchase another taxi, which he believed was thwarted by the applicant. He testified that he believed the applicant considered him to be a racist and attempted to influence the seller in order to prevent him from owning more taxis. He admitted that he could not prove that the applicant had any involvement in the seller withdrawing from the sale but he was nevertheless of the belief that the seller had been influenced by the applicant. Mr. Vervoort described himself as a very aggressive person and in his view the applicant was also jealous of him because he owns a number of limousines. He testified that his dislike of the applicant was just a personality clash and had nothing to do with discrimination.

39Mr. Conway testified that Mr. Vervoort challenged him about hiring the applicant to drive for him. He testified that Mr. Vervoort told him that he would “turn purple” if anyone hired “that person”, referring to the applicant. Mr. Conway testified that he ignored Mr. Vervoort’s comment because the applicant was an excellent driver and Mr. Conway was determined to let the applicant prove himself. Mr. Conway testified that he was told by others that he should not be hiring someone who created a problem for Choice with respect to the previous human rights complaint. I note that Mr. St. Denis also testified that Mr. Vervoort told him that he would never speak to him again and that he was a traitor for hiring the applicant’s brother. Mr. St. Denis testified that Mr. Vervoort has not spoken to him since that time.

40Mr. Vervoort disputed that he made the statements that he was alleged to have made to Mr. Conway and Mr. St. Denis. He agreed that he has not spoken with Mr. St. Denis, although he was unable to explain why. Mr. Vervoort testified that although he personally wondered about the applicant’s involvement in the previous human rights complaint, he could not recall saying anything to anyone about the applicant or his brother being in the background of the complaint.

41The statements, which are not contested, of these three key shareholders in Choice, support the applicant’s position that he was viewed with suspicion and perceived as a troublemaker at least in part because of his propensity to raise concerns about discrimination in the taxi industry. They viewed the applicant as having an agenda and in Ms. Lalonde’s case as someone who was prepared to do anything to get into Choice, including raising allegations of discrimination. They also perceived him as someone who was using allegations of discrimination to make changes to the bylaw which would ultimately result in less control for them over the selection of taxi owners and the development of their business in general. The question is whether these attitudes manifested in actions against the applicant.

42The respondents do not dispute the applicant’s evidence that he was known by some people in the taxi industry as a person who would provide support and speak out when concerns about working conditions and discrimination were raised at Veteran’s. The respondents dispute that there is sufficient evidence to prove that the applicant’s reputation was a factor in the actions of the shareholders who declined to bring the applicant and his taxi to Choice. I will now review the evidence associated with those periods of time during which the shareholders had an opportunity to consider the applicant’s requests to bring his taxi to Choice. Counsel for the applicant relied on three specific timeframes: verbal requests in 2003 and the shareholder meetings in October 2006 and April 2007.

Verbal Requests in 2003

43News that Choice was forming in the spring of 2003 was passed by word of mouth through the taxi industry in Cornwall. Ms. Lalonde testified that the planning meetings were held in relative secret. However, the witnesses who were asked about this period of time testified that there was an open invitation to participate and the decision to join was made on the basis of their personal circumstances at the time. The applicant disputes that there was an “open invitation” although he admits that he was aware that the company was forming and chose not to indicate his interest in being part of the start-up.

44From those early discussions, nine owners with 21 taxis who were all previously working with Veteran’s became the original shareholders in Choice when the company was incorporated in September 2003. It is not disputed that they had hoped that more owners would join them. Mr. Thompson was a key organizer and was actively recruiting prospective shareholders in an attempt to maximize the number of taxis available to Choice when the company opened its doors.

45The applicant questioned why he had not been approached by Mr. Thompson to participate in the planning meetings despite having purchased his first taxi from him. The applicant argued that this is one piece of evidence from which the Tribunal should draw the inference that he was being passed over by a key decision-maker at Choice because he had developed a reputation as a troublemaker.

46Mr. Thompson testified that he and the applicant got along well and while he could not remember approaching the applicant before Choice opened, sometime afterward he offered to submit the applicant’s name to the shareholders. Mr. Thompson testified that he was told by the applicant “not at this time”, which he took to mean that the applicant was not yet ready to take a chance on the new company.

47The applicant disputes Mr. Thompson’s version of this conversation. The applicant testified that he told Mr. Thompson that he was interested in bringing his taxi to Choice and that Mr. Thompson allegedly responded “we’ll see”. The applicant testified that in his observation, after the company opened Choice continued to recruit new shareholders who appeared to be Caucasian. Again, the applicant argued that the Tribunal should draw an inference from this evidence that he was being passed over because of racial discrimination and reprisal.

48The applicant made his first verbal overture to join Choice just after the company opened in discussions with some of the shareholders. He testified to the specific conversation he had with Ms. McInnes which I made reference to earlier in the Decision. Ms. McInnes did not testify at the hearing and as a result it is impossible to know how this conversation with the applicant affected her. None of the witnesses could recall ever being told about the applicant’s conversation with Ms. McInnes; however, Mr. Thompson testified that he had no reason to doubt that the conversation occurred.

49The applicant alleges that during this period Choice was an “all-white” company by either design or default. However, there was evidence which was not disputed from taxi owners who self-identify as people of colour that they were approached or heard about the new company forming and chose not to participate because of a variety of personal issues. Mr. Vallipuram, for example, testified that he had considered becoming an original shareholder but at the time he had five taxis and was concerned about what might happen to him if the company failed. He testified that he came to regret that decision and ultimately joined Choice in October 2006. Mr. Vallipuram also testified that initially he was also of the view that Choice had engaged in discrimination. However, when he reflected on the fact that he had been offered an opportunity to join Choice before the company opened, he changed his perspective on that issue.

50That evidence was supported by other witnesses who testified that there was a general reluctance in the community to become involved with Choice. Mr. Vervoort testified that he joined the original shareholders at the “11th hour” and that it was a difficult decision for him to make because in his view it was going to be a difficult struggle getting the company started. William Huygen testified that he also waited until the last minute to join as one of the original shareholders. Henry Blanchard, who joined as a shareholder shortly after the company opened, testified that he was a bit “leery” about joining at first.

51It was not long after the opening of Choice in 2004 when Sami Ullah Chaudhry became a shareholder. He testified that he was the first person of colour and the first member of the Pakistani community to become a shareholder in Choice. Ahmad Sadiq testified that he and his wife, who is the owner of taxi number 1, joined Choice shortly after Mr. Ullah Chaudhry and one other person who self-identifies as a person of colour. Mr. Sadiq also testified that when he started in 2001, he was the first person of Pakistani decent to work as a taxi owner in Cornwall.

52Apart from the public expression in April 2004 that Choice should “open its doors”, there was no other evidence of any efforts on the part of the applicant to join Choice until October 2006.

October 2006 Application and Meeting of Choice Shareholders

53In October 2006, filed his first written application to join Choice. The application was considered but not accepted at a shareholder meeting on October 24, 2006.

54The applicant initially contacted Ms. Lalonde, who told him about the application requirements. The applicant followed the instructions and filed a written application with supporting materials dated October 5, 2006. The applicant’s letter begins with the following text and then sets out his background and professional experience:

After discussing with several owners of Choice taxi verbally in the last few weeks, I finally decided to switch my taxi #20 to your taxi company for the better dispatch service provided to other taxi owners. I am living in Cornwall from the last five years and I know the city very well.

55Along with the letter of October 5, 2006, the applicant supplied a number of relevant documents including pictures of his taxi, his licence for car 20, forms required by Choice for owners requesting dispatch services, a reference from his local MP and an additional statement which describes his driving record, his experience, his commitment to serving his customers and the values he brings to his work.

56The applicant’s request to join Choice was considered at a meeting of the shareholders on October 24, 2006, along with six other applications. All seven applications under consideration were filed by people of colour and three people, each of whom had one taxi, were chosen to join Choice. The Minutes of that meeting establish that 17 of the company’s 20 shareholders voted.

57It is worth noting that Mr. Vallipuram and Muhammad Tahir, both of whom were selected at this meeting, testified that they had applied at other times prior to being chosen. Mr. Tahir had applied once before and Mr. Vallipuram had applied three or four times. Mr. Sadiq also testified that he applied once before he was selected. This evidence supported the respondent’s position that it was not unusual for a candidate to fail to be accepted the first time they applied.

58The applicant did not seek an explanation as to why he was not selected from any of the shareholders following this vote and did not make any further overtures to Choice until March 2007.

59Ms. Lalonde’s role in the application process in October 2006 was to advise prospective candidates of the application requirements, pull their material together in a package and present it to the shareholders. It was not disputed that the shareholders were free to vote on the candidates presented at this meeting on the basis of their personal preference. The shareholders were not required to give preference to anyone on the basis of any objective criteria such as seniority in the industry or time on the waiting list. A number of witnesses testified to voting for their friends, family members and people who approached them in advance of the meeting. As a result, a practice developed whereby some candidates would actively seek out the support of shareholders in advance of a meeting. This practice was described by the applicant and other witnesses as “lobbying” the shareholders. The applicant testified that he was not in a position to lobby the shareholders because he was caring for his wife who had been diagnosed with cancer in the fall of 2006.

60The Minutes from the October 2006 meeting indicate that of the seven candidates there were three, including the applicant, who received no votes from the shareholders. Although Mr. St. Denis testified that he thought he had voted for the applicant at this meeting, I do not believe that anything turns on resolving the minor discrepancy between his testimony and the recorded Minutes of the meeting. I deal with this issue in more detail later in the Decision.

61There were a number of shareholders who testified at the hearing who were in attendance for the October 2006 meeting. They offered various explanations for choosing candidates other than the applicant.

62Ms. Lalonde testified that as the company grew, Choice began to offer dispatch services rather than full shareholder status. The three owners who were accepted in October 2006 were brought in on this basis and offered shareholder status at a later time. Not everyone has accepted the offer to become a shareholder. For example, Mr. Kiantiari, who was one of the three candidates accepted at the October 2006 meeting, declined the offer in 2009 for financial reasons. Ms. Lalonde testified that because the people they accepted might one day become shareholders, she was looking for people who got along with each other and who did the job that was expected of them.

63Ms. Lalonde testified that the applicant had asked for her vote but she voted for three others instead. When she was asked to explain her choice, Ms. Lalonde testified that she really did not have a reason apart from the fact that she liked the three people she voted for better. She knew and had driven with the people she voted for and did not really know the applicant. She voted for Mr. Vallipuram in part because he admitted to her that he had made a mistake not coming in with the original shareholders in the summer of 2003. She also knew him because he was the owner of a local gas station.

64Mr. Thompson testified that over the years he and Mr. Vallipuram had become friends and that Mr. Vallipuram had made it clear he had made a mistake not coming over to Choice in the beginning. Mr. Thompson described one of the other candidates as a friend and another who approached him at his home with a well-written résumé and convinced him that he would be a good candidate. Mr. Thompson could not explain why he did not vote for the applicant although he hypothesized that if the shareholders had agreed to take four cars that day there was a possibility he would have voted for him.

65Bronko Nakic joined Choice as a shareholder in September 2006 and testified that he did not really know any of the candidates and as a result he quickly scanned through their material and went with his “gut feeling”. His brother Slavko Nakic testified that he had no particular reason for voting the way he did. Henry Blanchard, who joined Choice in August 2003, could not remember who he voted for but could not recall anyone lobbying him before the meeting. He testified that he would have looked at the facts and voted for the person he thought would be good for Choice. Mr. Blanchard was President of the Board of Directors for three terms at Choice and had previously worked with Veteran’s. He testified that he did not know the applicant prior to the October 2006 meeting. Mr. Sadiq, who voted on behalf of his wife as the owner of taxi 1, voted for his nephew, a person who worked for him as a driver for three or four years, and another candidate with whom he had a good relationship. He testified that he also had a good relationship with the applicant and described him as a good driver. Mr. Sadiq was unable to give a specific reason for not voting for him beyond the fact that he simply did not have enough votes.

66Mr. Huygen testified that he usually voted with his “heart” in considering who would be best for the business. He was one of only two witnesses who thought there had been a requirement to vote for the person with the most seniority at some point in the history of the company. Unfortunately he could not elaborate on that issue. He did agree however that it would be a good practice to create a pool of qualified candidates and select them based on their place on the waiting list. Mr. Huygen testified that he would have had some basic information about the candidates to consider such as how long they had been in the taxi industry and how strong their “taxi personality” might be. He testified that there would be some general conversation before and/or during the meeting and he was also aware of the lobbying process.

67Mr. Huygen testified that before this vote took place he did not know much about the applicant. He was aware of the applicant’s reputation at Veteran’s and that he would sometimes be the spokesperson for employees who were looking for “fair change”. He described the applicant as someone who would “stick his neck out” more than the average person. Mr. Huygen testified that he did not see this as a negative quality and that he had done the same thing at times himself. He testified that the applicant’s reputation had no impact on who he voted for at the meeting. He did hear that there was a possibility that the applicant had been involved somehow in the first human rights complaint but he could not recall the specifics of the conversation and he could not recall whether this occurred at the October 2006 meeting or at a later meeting. In any event, that speculation had no impact on his decision.

68Sami Ullah Chaudhry testified that at one time he had a good relationship with the applicant, who had learned to drive a taxi from him and his brother-in-law before the applicant purchased his own taxi. However, he also acknowledged that he no longer has a friendly relationship with the applicant. He testified that he had no difficulty with the applicant as a taxi owner but believed that the applicant was aligned with people who had insulted him on the basis of his own religious beliefs. Mr. Ullah Chaudhry testified that he voted for Mr. Vallipuram because they were friends and for Muhammed Tahir who was his nephew. He denied that he did not vote for the applicant because of religious differences and testified that he did not vote for the applicant because the applicant had not lobbied him. I found the expectation that the applicant would lobby him pretexual and incongruent with his admission that he and the applicant were not on friendly terms. There is no evidence that these religious differences manifested in any statements at this meeting, however, Mr. St. Denis testified that at a later meeting in April, 2007, he had to tell Mr. Ullah Chaudhry that his views about the applicant’s religious affiliations were irrelevant to whether or not the applicant should be brought into Choice.

69Mr. Vervoort testified that the three candidates he voted for were people he had interacted with, they were good operators and he liked them. He admitted that he did not vote for the applicant because of the personality conflict I discussed above.

70Mr. Conway who would later become one of the applicant’s most vocal supporters, testified that he did not vote for the applicant and recalled that the applicant did not receive any votes during the October 2006 meeting. Mr. Conway explained that he cast his vote for one of the candidates because that person had approached him asking for his support and he had given him an abbreviated interview. He testified that others approached him as well and he asked them what they would bring to the company. Mr. Conway testified that while he looked at the résumés and applications, he thought a personal interview was better than reviewing documents.

71The applicant testified that he was confident that he would be chosen and although he did not seek out an explanation from the shareholders who voted at the meeting, he attributed the outcome of the meeting to discrimination and reprisal because of his activism and his association with the previous human rights complaint. He also felt that his failure to be chosen was due in part to the fact that he was unable to lobby any of the shareholders because he was caring for his wife who was diagnosed with cancer in the fall of 2006.

January 2007

72In the intervening period between the meeting in October 2006 and April 2007, when the shareholders next considered the issue of bringing the applicant to Choice, a meeting of the shareholders took place on January 3, 2007. During that meeting an exception was made to permit the purchaser of a Choice taxi to become a shareholder despite the fact that she did not meet the established criteria of two years’ experience. There was evidence of five exceptions like this made at various times in the company’s history. Two exceptions involved new owners with less than two years’ experience, one at the January 3, 2007 meeting and another at a meeting on October 24, 2007. Mr. St. Denis also testified to two other exceptions, one involving Mr. Conway who was brought in despite an informal cap on the number of cars and one involving Mr. Bronko Nakic, who brought his brother into the company by selling him one of his Choice taxis. An additional exception was also made for Mr. Vervoort in January 2007 when the number of taxis which could be owned by any one shareholder was capped at three. Mr. Vervoort was permitted to continue to operate the five taxis he owned. The applicant argued that this evidence was relevant to assessing the respondents’ explanation that the shareholders could not make an exception to bring the applicant into Choice in April 2007.

73At the same January 3, 2007 meeting, the shareholders voted to adopt a new Anti-Racism and Equity Policy. The policy contains a statement which reflects the right to equal treatment with respect to employment without discrimination on the basis of the prohibited grounds set out in the Code. It also contains a section on Equity Principles some of which refer specifically to the selection of owners and the hiring of drivers:

(4) The criteria for selecting owners and hiring drivers will be objective and not based on grounds prohibited in the Ontario Human Rights Code;

(5) The criteria for selecting owners and drivers shall not have an adverse impact on owners and drivers who are immigrants and/or from racialized communities.

74Despite the requirement for objective criteria to be applied in the selection of owners, the undisputed testimony from the shareholders who took part in the various votes before and after this policy took effect was that they were free to vote their personal preference. There was very little evidence about the process for selecting Choice shareholders prior to October 2006. Ms. Lalonde testified that new taxis were accepted on an informal, “as needed” basis which was assessed in general by the number of calls the company was receiving.

75The Minutes of the January 3, 2007 meeting also contain a reference to a formal cap on the number of shareholders at 19 (down from 20 at the October 2006 meeting). The number of taxis any one shareholder could own was also capped at three apart from the exception made for Mr. Vervoort who owned five taxis at the time. The number of taxis owned by non-shareholders was capped at one. I note here that while there is clearly evidence of a movement toward controlling the size of the company by January 2007, there was no formal cap placed on the number of taxis in the fleet until April 2007.

March and April 2007

76A tragic turning point in the applicant’s life was created when Veteran’s ended its affiliation with him in March 2007 because of the dispute with Mr. Montgomery. Suddenly the applicant was without the ability to operate his own taxi and at the same time he was caring for his family and for his wife who was dying of cancer. The experience of the applicant was that he was being publicly admonished for his efforts to raise issues of fair treatment and discrimination in the taxi industry.

77The applicant sent a letter to Choice March 8, 2007, the text of which reads as follows:

After few months, a reminder request for taxi #20 is submitted again for getting the dispatch services as soon as possible from Choice Taxi.

As you are maybe aware, most of the owners and drivers of Veteran’s Blue Line are suffering due to poor dispatch service provided by un-trained call takers and dispatchers from Ottawa. As well as Mr. Bill Montgomery, who is giving lot of favours to few taxi owners and drivers to feed them with Contract Calls, Mail Runs, Pilot, CN Crew, etc.

We brought all the complaints, in the notice of Cornwall Community Police Service Board, Honourable Mayor and City Council of Cornwall accordingly in the last two months.

Due to my tracking of the irregularities of bringing forward these issues to the authorities, the management of Coventry Connections Ottawa has taken an aggressive and illegal action on Tuesday, 07^th March, 2007 and have disconnected my dispatch service.

I was faced with a critical condition from the last six months due to my wife’s illness, which has caused me great financial, and mental stress. I am requesting your goodself as well as other Choice taxi owners to please accept my taxi #20 in the fleet and provide me with dispatch service with immediate effect as a special and deserving case viewing my present condition.

78The applicant sent a second letter on April 10, 2007, in which he attempted to address any concerns about his reputation:

Upon discussion with various shareholders, it has been brought to my attention, that some believe, I would not be a good candidate to represent Choice. Please allow me to dispel any negative propaganda that may be circulating. I wish to inform you that I have had no part of the confrontation with the Choice Taxi and its shareholders.

79Ms. Lalonde testified that the applicant had personally spoken with her about the circumstances which led to Veteran’s ending its affiliation with him. She testified that if the applicant had done at Choice what he had done at Veteran’s, she would have “put him out” as well. In my view, this was a clear admission that Ms. Lalonde had formed an impression of the applicant as a troublemaker, at least in part because of his efforts to assert his concerns about discrimination at Veteran’s.

80A meeting of the Choice shareholders was held on April 10, 2007. Mr. Conway and Mr. St. Denis attempted to convince the other shareholders to bring the applicant’s taxi into Choice on a compassionate basis. This would permit the applicant to earn a living driving his own taxi, but more importantly, he would be able to hire a driver who would earn some income for him during those times when he was caring for his wife.

81I accept that some of the shareholders who voted at the October 2006 meeting did not know about the applicant or his reputation. However, the same cannot be said for the meeting of April 10, 2007. The shareholders at Choice were not actively recruiting new taxi owners. The shareholders would have been aware of his circumstances from the applicant’s letters and the actions of Mr. St. Denis and Mr. Conway even if they had never seen a copy of the letter from Veteran’s.

82Seventeen of the 18 shareholders were present at the meeting. The motion by Mr. St. Denis to allow the applicant into Choice for humanitarian reasons was defeated 12 to 5. A second motion by Mr. Conway was also defeated. That motion would have permitted the applicant to operate his taxi in place of Mr. Conway’s taxi one day every 90 days so that the applicant’s plate would not be revoked by the municipal authorities. That motion, which I refer to throughout the Decision as the “90-day motion”, was defeated 13 to 3 with 1 abstaining.

83A motion was then made by Linda McInnes and Clifford Thompson to cap the number of taxis in the fleet at 32, which was passed 15 to 2. A motion to cap the number of shareholders at 18 (down from 20 at the October 2006 meeting) was passed 13 to 2 with 1 abstaining (totalling 16 rather than 17, which appears to be an inconsequential mistake in the Minutes). And finally, a motion to increase the number of taxis which could be owned by non-shareholders from one to two was also passed 13 to 3 with 1 abstaining.

84While the number of shareholders had been the subject of a formal cap in January 2007, this was the first evidence of a formal cap on the entire fleet of taxis. At the same time, the number of taxis which could be owned by non-shareholders was increased. Ms. Lalonde testified that there was always an informal cap on the fleet in the sense that taxis were only taken once it was determined that there was a need. However, there was insufficient evidence to draw any conclusions about the process engaged in by the shareholders to determine whether another taxi was required and how taxi owners were selected other than on the basis of personal preference.

85Mr. Conway and Mr. St. Denis provided the primary evidence in support of the applicant’s allegations that the actions taken by some of the shareholders at the April 10, 2007 meeting were directed, at least in part, at intentionally preventing the applicant from bringing his taxi to Choice on the basis of discrimination and reprisal.

86At the time of the hearing, Mr. St. Denis was still a shareholder in Choice. He testified that there were negative comments made about the applicant at the meeting of April 10, 2007, and that the vote was tainted by an undercurrent of animosity because of the belief that the applicant was an instigator in the previous human rights complaint. Mr. St. Denis testified that because of this resentment he felt that he could never convince the other shareholders to accept the applicant because they did not trust him. He testified that although the applicant was “more than excellent” as a candidate for Choice, he was of the view that the applicant had been “blacklisted”.

87Mr. St. Denis also recalled a discussion at the meeting with Mr. Ullah Chaudhry who told him that he had religious differences with the applicant. Mr. St. Denis responded to Mr. Ullah Chaudhry that his views should have nothing to do with the proposal to bring the applicant into Choice on a humanitarian basis. There was no further evidence that Mr. Ullah Chaudhry’s comments were heard or had any impact on any of the other voting shareholders.

88Mr. St. Denis testified that he felt that the vote had been manipulated to ensure that the motion to bring the applicant into Choice would fail. He testified that the focus was taken off the applicant’s circumstances and onto the general issue of taking more taxis. He testified that whatever views the shareholders had on the number of taxis currently in the fleet, an exception should have been made for the applicant. He argued at the meeting that other exceptions had been made in less critical circumstances.

89Mr. St. Denis also testified that in his view the shareholders decided to create and maintain a cap on the fleet in part to prevent the applicant from getting into Choice. Mr. St. Denis agreed under cross-examination that the exceptions that were made for Mr. Conway and Mr. Nakic occurred before the more standardized application process used in the October 2006 meeting. However, Mr. St. Denis testified that the procedure was not “written in concrete” and an exception could have been made to bring the applicant into Choice. There was no evidence that the procedures associated with the application and selection process described by Ms. Lalonde and used at the October 2006 meeting had been formally adopted by the shareholders.

90During his cross-examination Mr. St. Denis testified that he considered himself a friend of the applicant. This was especially true in April 2007 when he discovered for himself that the applicant was simply trying to make a living and had no intention of hurting the shareholders or the company. He testified that when the applicant’s wife was ill he knew what the family was going through because his own wife was a cancer survivor. Mr. St. Denis testified that he had supported the applicant as a driver even before he knew that the applicant’s wife was ill. Mr. St. Denis was aware of the applicant’s reputation and testified that he did not blame the applicant for his attempts to open the doors at Choice to people of colour.

91A number of witnesses for the respondent testified that by April 2007 there was concern that too many cars had been taken in at the October 2006 meeting and that taking any further taxis would have a negative impact on profits. Ms. Lalonde, for example, testified that she had voted to accept the three cars in October 2006 hoping the company would grow over the winter and that the extra taxis would improve customer service by reducing wait times in bad weather. Ms. Lalonde testified that by the time of the April 2007 vote she had become concerned that taking in any more cars would have a negative impact on profits.

92Mr. Conway confirmed that there was significant discussion about capping the fleet. This evidence was supported by Ms. Lalonde and Mr. Blanchard who testified that they attempted to convince the other shareholders that Mr. Conway’s humanitarian motion could not be considered without first considering a motion to bring in another taxi. Ms. Lalonde, Mr. Blanchard and Mr. Thompson also spoke out in favour of adhering to the application process if the decision was made to bring in another taxi to give everyone on the waiting list an opportunity to apply. Mr. Conway testified that the majority of shareholders resisted increasing the fleet because of a concern about profits. Mr. Conway personally disagreed with this strategy and felt that increasing the number of taxis could create more opportunities for a greater market share. He also testified that in his view, bringing the applicant into Choice would have had no impact on any individual shareholder’s profits.

93Mr. Conway testified that he worked with the applicant at Veteran’s and was aware that the applicant would attempt to defend those people who felt they were being mistreated. Mr. Conway testified that some of the shareholders were of the view that the applicant was behind the first human rights complaint and that the applicant was trying to come to Choice to create more trouble. Mr. Conway recalled that at the meeting of April 10, 2007, a few people discussed their personal dissatisfaction with the applicant and one person openly said that he did not trust the applicant, although Mr. Conway could not remember which shareholder expressed this concern. He testified that he was disappointed and that he knew the previous human rights complaint was an “irritant” to his fellow shareholders, but at the same time, he felt it was cruel to deny someone assistance in these circumstances.

94A number of other witnesses testified about their reasons for voting on the two motions by Mr. Conway and Mr. St. Denis.

95Mr. Mirdavoudi testified in support of the applicant with full translation between Urdu and English. Mr. Mirdavoudi manages a taxi that is owned by his daughter who is a shareholder. He testified that he attended few meetings but he did remember one meeting where he heard from “different sides” that the applicant “should not be taken in”. He testified that people making those comments talked about their belief that the applicant had supported the people who brought the previous human rights complaint.

96Ms. Lalonde testified that everyone knew that the applicant’s wife was ill at the time and that the applicant had spoken to her personally about his circumstances. She testified that her reaction to the motion was to try to prevent it from succeeding. Ms. Lalonde testified she and Mr. Blanchard tried to “squash” what she viewed as an effort by Mr. St. Denis and Mr. Conway to circumvent the procedure for selecting new owners. Ms. Lalonde was strongly of the view that no person should be taken ahead of any other person on the waiting list. Ms. Lalonde told the other shareholders that they had to follow the procedure by first voting to take in a new car and then giving the others on the waiting list an opportunity to be considered.

97Ms. Lalonde testified that since the vote in October 2006, the shareholders have not agreed to add another car to the fleet and as a result the cap remains at 32 cars. This does not prevent a person from joining Choice through the purchase of a Choice taxi. Karin Baskaran testified that he joined Choice in 2007 or 2008 by selling his taxis at Veteran’s and buying two Choice taxis. He decided to sell his taxis because he understood that there was no other way to get into Choice. He became a shareholder at the end of 2009. Mr. Thompson testified that the applicant has always been able to join Choice through the purchase of an existing Choice taxi. The applicant testified that the cost of doing so was prohibitive.

98Ms. Lalonde also testified about her reasons for not supporting the motion on the 90-day issue. She felt that the proposal violated the bylaw and that once Choice opened itself to an affiliation with the applicant on any terms they would not be able to go back. Ms. Lalonde testified that she was fundamentally of the view that it would be a mistake to take in any new cars and that sentiment was shared, in her view, by the majority of shareholders.

99Mr. Thompson was in attendance at the meeting of April 10, 2007. He recalled that he voted against bringing another taxi into Choice. He was of the view that the company had brought in too many cars at the October 2006 meeting. With respect to the motion by Mr. Conway and Mr. St. Denis, Mr. Thompson testified that Mr. St. Denis had spoken to him on a weekly basis asking him to help bring the applicant into the company. He testified that he was “getting put out about it” and thought that the applicant was using Mr. St. Denis to “get to me”.

100Sami Ullah Chaudhry testified that he did not vote in favour of bringing in another taxi. Mr. Vervoort also testified that he was not in favour of increasing the fleet. He also voted no on the 90-day motion because he was not sure it was legal. Mr. Bronko Nakic voted against increasing the fleet because he felt that adding another taxi would reduce his profits. Mr. Huygen testified that he felt the company was already overpopulated and that they did not need any more taxi plates to join the company at that time. He also voted no on the 90-day motion because it did not make sense to him. He did testify, however, that he heard comments about the possibility that the applicant was behind the first human rights complaint. Although he could not say whether this occurred in October 2006 or April 2007, the preponderance of evidence supports a finding that these comments were made in April 2007. Mr. Sadiq testified that he felt the company did not need another taxi. Mr. Blanchard also voted against expanding the fleet on the basis that it would affect profits.

101Mr. Slavko Nakic testified that the applicant had asked for his support and that he had voted in favour of the motion to bring the applicant in on a humanitarian basis. When he was asked why he thought the other shareholders had voted for or against the motion he responded that he had no idea – “it’s a democratic vote and they vote the way they feel”.

102Mr. Conway testified that following this meeting the applicant told him he was very frustrated and was thinking of taking action against Choice. Mr. Conway testified that he tried to make the applicant see that “honey is easier than vinegar”, but Mr. Conway also acknowledged that the applicant had tried that approach and he had not been successful.

April 2007 to October 2007

103Following the April 10, 2007 meeting the applicant sent another letter to the shareholders of Choice dated April 22, 2007. In that letter he reiterated his concern that his licence would be suspended by June 6, 2007, if he was unable to operate his taxi. Once again the applicant points out how desperate his circumstances have become and affirms that if given the chance he will prove himself to be a very good owner for Choice. That letter was accompanied by a petition which the applicant requested that the shareholders sign. The petition was eventually signed by seven of the 18 shareholders.

104By July 2007 the applicant was acting as the primary caregiver for his ailing wife. Diane Ford, an oncology social worker at The Ottawa Hospital, wrote to Ms. Lalonde at Choice at the applicant’s request to inform her of the serious financial circumstances that the applicant and his family were facing. She suggested that Choice admit the applicant’s taxi on a compassionate basis so that he could receive dispatch services and have a driver earning income for him while he cared for his wife.

105The applicant sent another letter to the Choice shareholders dated July 16, 2007, advising them that his situation was “dire”. By this time the applicant had worked as a driver for Choice for several months and felt that he had proven himself to be a very professional taxi operator. He proposed once again that Choice allow his taxi to operate under its dispatch service so that he could hire a driver to generate income. In his letter he states that: “in my time of need I pray you will forgive me for any discretion against you, that you feel I may have committed. Please allow me to apologize. I hope that we could start over as friends in this company, and put the past behind us.” There was no evidence of any response to the applicant’s appeals following the meeting of April 10, 2007.

106In September 2007, the applicant filed his complaint with the Commission alleging discrimination and reprisal.

Shareholder Meeting October 24, 2007

107The Minutes of the meeting on October 24, 2007, confirm that Mr. Conway and Mr. St. Denis made another attempt to bring the applicant into Choice by presenting the petition circulated by the applicant in April 2007 and signed by seven shareholders who supported the applicant’s attempts to bring his taxi to Choice. The Minutes confirm that there was discussion about the concern that the applicant may file a human rights complaint against the company if he was not accepted. The Minutes also confirm a discussion among the shareholders about the process which would involve raising the cap on the fleet and then following the established procedure of giving notice to those who had previously applied and voting on the applications. A motion by Mr. St. Denis and Mr. Conway to bring the cap up from 32 cars was then defeated 12 to 6 which brought the matter to a close.

108Ms. Lalonde was in attendance at the meeting of October 24, 2007. Ms. Lalonde testified that both Mr. Conway and Mr. St. Denis were “pushing” the fact that if the shareholders did not accept the applicant they would be facing a new human rights complaint. She testified that she supported following the established procedures for selecting new owners despite the fact that the applicant had spoken with her and “threatened” a human rights complaint. Mr. Blanchard also testified that he urged the others to follow the procedures because of his experience attending the human rights course. In his view, once there was a cap in place, the shareholders had to vote to raise it and then send a letter to the other candidates who were waiting to be considered.

109The applicant testified that by this time he had made it clear that he intended to file a human rights complaint; however, he rejected the assertion that he was “threatening” to file a complaint.

110Ms. Lalonde testified to being frustrated that in her view the applicant was using the threat of human rights proceedings to get into the company. She was concerned that there were still many people who wanted to be part of Choice. She testified that she and other owners had helped the applicant by permitting him to work as their driver because they all had compassion for his wife.

111Mr. Thompson also testified that it was his understanding that if the shareholders did not vote to bring the applicant in at the October 24, 2007 meeting that the applicant would file a human rights complaint. He testified that he did not want to take the applicant ahead of the others on the waiting list and that his primary concern was that the company was already operating with too many taxis.

January 2008

112By January 2008, tensions between Choice shareholders and the applicant had escalated. The applicant had not been selected to join Choice at shareholder meetings in October 2006, April 2007 and October 2007. He filed his own complaint against Choice with the Ontario Human Rights Commission in September 2007. The applicant had been driving for a number of Choice owners in an attempt to earn a living since Veteran’s ended his affiliation in March 2007. After April 2007 the applicant was appearing in the local press describing his experiences and his perceptions of discrimination in connection with the bylaw. The applicant appealed to the Chief of Police in August 9, 2007, and the press clippings filed during the hearing indicate that he spoke frequently with the media in 2008 and 2009. At a meeting of the Choice Taxi Association in January 2008, there were open expressions of hostility and frustration about the applicant’s conduct.

113Ms. Lalonde testified that the owners asked for the January 2008 meeting because some of the applicant’s complaints were appearing in the local newspaper. She also testified that the applicant had gone to the Police Services Board attempting to make the case that the brokers, Choice and Veteran’s, should not have control over who they supplied dispatch services to. She testified that the owners were upset that she was permitting him to drive her taxi while he was publicly complaining about Choice. No one disputed Ms. Lalonde’s assertion that “everyone was clear at the meeting that they were mad at Nadeem”. There was also evidence that Abdul Haq Choudhry perceived that he was also being criticized for permitting the applicant to drive for him and sent the applicant a letter dated January 31, 2008 terminating their relationship.

114Ms. Lalonde testified that she did not believe that the other owners were frustrated with Mr. Haq Choudhry or calling on him to stop allowing the applicant to drive his taxi. Ms. Lalonde testified that the owners were actually frustrated with her for not suspending the applicant or at least responding to his statements in the press. She testified that the applicant’s public statements were affecting the business and the members of the Association were frustrated. Whether the comments were directed at Ms. Lalonde or Mr. Haq Choudhry or both, no one denied that there was significant animosity expressed about the applicant at this meeting. Some of that animosity was clearly based on the applicant’s efforts to get the City to force brokers to provide dispatch services to licensed taxi owners. However, part of that animosity was also based on the applicant openly tying the control exercised by the brokers to allegations of discrimination against Choice.

July, 2008

115By letter dated July 4, 2008, the applicant advised Choice of his plan to supply an accessible vehicle for taxi services. In that letter he asked the shareholders of Choice to support him with dispatch services. He sent a follow-up letter dated July 21, 2008, asking for a reply to his request.

116By letter dated July 24, 2008, Ms. Lalonde wrote to the applicant on behalf of the shareholders to advise him that the company was not interested in his proposal but that if the shareholders decided to increase their fleet he would be informed. The letter includes the following statement:

Although it may be a great idea, we cannot make this kind of change quickly and because you went to the media with your proposal for Choice Taxi we feel you are trying to pressure us into making a quick decision that may or may not be good for this company and for the owners who receive dispatch service from us now. For both of these reasons we are turning you down on your proposal.

117The media source the letter refers to is an article in the Standard Freeholder which reports on the applicant’s plans to equip his taxi with the necessary equipment to make it accessible and his intention to attempt to secure dispatch services from Choice for his taxi. The applicant is quoted as saying that he believes his accessible taxi will attract more business to Choice. Ms. Lalonde’s reaction to the applicant’s proposal was to say in her testimony that the applicant “wants what he wants”.

118By the end of 2008 the applicant was of the view that he would never be selected to join Choice for any reason and as a result, he stopped driving for Choice owners altogether. At some point in early 2009, the applicant and Mr. Montgomery reconciled and the applicant was once again affiliated with Veteran’s.

Analysis

Applicable Legal Principles

119It is well-established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination and retaliation, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.

120The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”), confirmed 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”.

121While the original Complaint to the Commission alleges discrimination in relation to contracts, the applicant did not make separate submissions on this section of the Code. The applicant cited the failure to be chosen to affiliate his taxi with Choice either for the purpose of receiving dispatch services or becoming a shareholder as falling within the language of section 5(1), which provides for equal treatment “with respect to employment”. This section of the Code has been interpreted to include broad protection for a variety of different employment related activities and relationships.

122If the applicant is successful in establishing that his allegations fall within the employment provisions of the Code, the applicant must then prove that he has experienced discrimination on the prohibited grounds he has identified. Discrimination is not defined in the Code; however, it has been consistently defined by the Tribunal and the Courts to mean adverse treatment on the basis of a prohibited ground (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143). In this case, the applicant self-identifies as a person of colour who is of Pakistani origin. The adverse treatment or disadvantage is the failure to be chosen to be affiliated with Choice, which would permit him to carry out his employment as a taxi owner/driver. The question is whether that disadvantage is connected in any way to the prohibited grounds relied on by the applicant. The burden is on the applicant to prove this connection on a balance of probabilities. If the respondent is unable to establish a defence or statutory exemption, or the applicant proves that the defence is pretextual, the Tribunal will find a breach of the Code and order an appropriate remedy.

123The applicant has also alleged that his failure to be accepted into Choice is an act of reprisal. Section 8 of the Code provides protection against reprisal or threat of reprisal when a person attempts to claim and enforce his or her rights under the Code:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

124The burden is on the applicant to point to sufficient evidence from which the Tribunal can draw the inference that it is more likely than not that the respondents engaged in an intentional act of reprisal against the applicant for attempting to claim or enforce his rights under the Code. In Noble v. York University, 2010 HRTO 878, the Tribunal set out the following principles to consider in a claim of reprisal:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

125The Tribunal in Noble expanded on those factors in applying them to the facts of that case:

In assessing the claim in this case, several of the above principles are particularly apposite. First, a claim of reprisal must be in respect of an action or threat. Establishing only that a respondent was upset or angry that a complainant filed a complaint, or claimed a Code right, is not sufficient. Neither is it a reprisal to show simply that a respondent considered taking an action against a complainant. Evidence of anger or upset, or of an animus, may be relevant in establishing an inference that an action was taken with intent to reprise. However, in order for there to be a reprisal, there must be an actual action taken against the complainant, or threat made to the complainant.

126The Divisional Court in Shaw v. Phipps, 2010 ONSC 3884 (appeal to Court of Appeal currently on reserve), endorsed a set of important and historic principles which should be considered in cases engaging allegations of racial. Since many discrimination cases do not involve direct evidence of discrimination, the Tribunal must draw reasonable inferences from proven facts that the prohibited grounds alleged by the applicant were a factor in his failure to be accepted into Choice. The grounds alleged by the applicant do not need to be the sole or the major factor in the actions taken by the Choice shareholders - it is sufficient for the applicant to prove that one or more of the prohibited grounds was a factor. With the exception of the reprisal allegation, there is no need to prove intention - the focus is on the effect of the respondent’s actions on the applicant. Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices. When assessing the respondent’s explanation, the ultimate question is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

127To the extent that this case requires me to assess the credibility of the witnesses who testified before me, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) and particularly the following comments at pp. 356-357:

(…) 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 demeanour 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.

128I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.

129A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. See McDougall and Shah v. George Brown College, 2009 HRTO 920. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence.

Section 5(1): “With Respect to Employment”

130It is the applicant’s burden to establish that the circumstances of his complaint fall within the phrase “with respect to employment” in section 5(1) of the Code.

131As the Board of Inquiry stated in Payne v. Otsuka Pharmaceuticals Co. Ltd., 2001 CanLII 26231 (ON H.R.T.),

Section 5(1) does not state that “no employer shall deny equal treatment to an employee”. Indeed, there is no definition of “employment” in the Code. Rather, section 5(1) involves discrimination “with respect to employment”. “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship. In Canada (Attorney General) v. Rosin (1990), 1990 CanLII 12957 (FCA), 16 C.H.R.R. D/441, the Federal Court of Appeal, in upholding the decision of the Canadian Human Rights Tribunal, stated at D/449:

Remembering the broad and liberal interpretation that must be taken to this type of legislation…[C]ourts have interpreted the words [i.e., “employ” and “employment”] broadly, finding employment relationships to exist in this context where in other contexts they might not have so found.

An infringement of section 5(1) can occur between an employee and other persons who are not “employers” in the traditional sense. For example, a trade union may be held liable in two ways: where it caused or contributed to the discrimination by participating in the formulation of the work rule that has a discriminatory effect on a complainant; or if it obstructs or blocks the efforts of an employer to accommodate: see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (S.C.C.), [1992] 2 S.C.R. 970 at 990-991.

In the Board’s view, there must be some nexus or link in the chain of discrimination between the respondent and the complainant. The Board is satisfied that this nexus “appears” to exist with regards to the parties that it has decided to add in the instant motion. [Emphasis added.]

132I am satisfied that there is a sufficient nexus between the applicant and Choice to bring this complaint within the phrase “with respect to employment”. The applicant could not operate his taxi without establishing an affiliation with either Veteran’s or Choice. Every aspect of the applicant’s employment is tied to this affiliation. Initially owners were invited to participate as shareholders in the company. There was ample evidence that even when Choice began to offer dispatch services it was with a view to offering those owners an opportunity to become shareholders at a later time. The applicant applied to be affiliated with Choice and if he had been successful he would have been eligible to work under the Choice company name, receive dispatch services like every other owner, and have routine and regular contact with other owners, drivers, employees and customers of Choice. He would also be subject to Choice policies, training and standards. In addition, from March 2007 he was employed directly as a driver for a number of shareholders of Choice.

133The original complaint references the area of contracts. The Code protects the right to contract on equal terms without discrimination on the basis of the prohibited grounds cited by the applicant. I have not found it necessary to undertake an extensive analysis of this issue as I consider the particular facts of this case to be subsumed within the area of employment. I understood that the applicant’s overarching concern was that he was being deprived of a relationship with Choice which would permit him to carry out his employment, and that one option for operating his taxi was a contractual relationship for dispatch services. There was ample evidence that as Choice grew the company contracted with non-shareholder owners to provide them with dispatch services. Some of those owners ultimately became shareholders in Choice. The applicant asked to be considered both as a non-shareholder owner and a shareholder, both of which are, in my view, contractual relationships that fall within the scope of “with respect to employment”.

134If I am incorrect with respect to employment, particularly as it relates to the provision of dispatch services rather than shareholder status, the applicant’s allegations would nevertheless fall within the protected area of services.

Is there a breach of the Code?

135This was a very difficult case to resolve. I am grateful to the parties, their counsel and all of the witnesses who gave their time to participate in the hearing of this matter. While there are important distinctions between perception and evidence, it was of assistance to me to consider the context which appeared to inform the different perceptions of the parties and the witnesses.

136The applicant’s allegations against Choice arise from a broad context which goes back to his earliest days as a taxi owner dealing with post-“9/11” experiences of discrimination in the community at large. His personal story also encompasses the various efforts the applicant made to deal with what he perceived to be discrimination and unfair employment practices at Veteran’s which culminated in the loss of his affiliation and his ability to operate his own taxi. Through those experiences he developed the belief that the regulatory structure for operating taxis was flawed and gave rise to power imbalances which exacerbated the working conditions of owners and drivers.

137When Choice was formed the applicant perceived this new company to be carrying on the same discriminatory practices, hence his reference to Choice in his original Complaint as a “paki-free” company and his decision to publicly urge Choice to “open its doors” to people of colour. For whatever reason, he perceived the formation and operation of Choice in those early days to be taking place behind closed doors to the exclusion of people of colour. The applicant supported the efforts of some members of the community to file the first human rights complaint against Choice. And in the midst of all of this, the applicant faced his greatest personal challenge in dealing with the illness and ultimate loss of his wife.

138The applicant was regarded by those who testified at the hearing as an excellent taxi owner and a fine person. Indeed, he conducted himself before the Tribunal with great dignity and humility. He was in a profoundly vulnerable position when his affiliation was withdrawn by Veteran’s. The applicant was also receiving bits of information following shareholder meetings about the perceptions of others toward him. I can understand why, on the limited information he possessed, the applicant concluded that he was being treated unfairly and that racism and retaliation were likely at the root of his inability to secure an affiliation with Choice.

139At the same time I can understand the perceptions of the respondents, who have a very different context for understanding the applicant’s allegations. The original shareholders came together to start a competitor business, put the word out to the wider community and found themselves with less than the ideal number of taxis to start up with. The original shareholders were universally of the view that anyone in the community who wished to participate in the start-up was welcome.

140Ms. Lalonde and Mr. Thompson were particularly emphatic in their testimony that the applicant was simply wrong to assert that Choice had become an “all-white” company by design or default. Both had been personally involved in discussions with taxi owners who self-identify as people of colour who were offered the opportunity to join Choice before the company opened its doors.

141As Choice grew, the shareholders began to face decisions about how and when to bring in more taxis and how to strike a balance between profits and service. The first human rights complaint created considerable frustration and the resolution was less than ideal for many of the shareholders who strongly believed that there was no foundation for the allegations of discrimination. Nevertheless, the shareholders implemented the resolution arising from that first complaint, participated in training and perceived themselves to be moving in the right direction toward a more standardized process for bringing in new taxis.

142In October 2006 the Choice shareholders brought three new taxi owners into the company. All seven applications at the time were filed by people of colour. The applicant was one of the owners who was not chosen. The shareholders had no indication that the applicant had any questions or concerns about the outcome of this meeting. After October 2006 there was a growing feeling among the majority of shareholders that profits might be affected by bringing in more taxis and owners. By January 2007 formal limits were being placed on the number of shareholders.

143And then in March 2007, the applicant was “put out” of Veterans and began what at least Ms. Lalonde and Mr. Thompson perceived as something of a campaign to bring his taxi to Choice. In their view, the applicant was pressuring them to make an exception and admit his taxi without adhering to the process they had developed. Ms. Lalonde testified that she had to work very hard at the meeting in April 2007 to get the other shareholders to understand the importance of standing by the process that had been developed for taking new taxis into the fleet. Not every shareholder who testified expressed this concern. A number of them were sympathetic to the applicant’s circumstances but their overriding concern was the effect on profits rather than the question of process.

144Following the meeting in April 2007, Choice taxi owners became more and more frustrated as the applicant became vocal about his perceptions of discrimination, including his belief that he had been the victim of discrimination by Choice shareholders. The applicant also made significant efforts to change the bylaw which gave the brokers control over providing dispatch services to taxi owners. That was perceived as an attack on the autonomy and integrity of the stakeholders in Choice and eventually the relationship with the applicant disintegrated completely.

145The question is how to reconcile these very different perspectives in an analysis of whether the Code has been breached.

September 2003 to October 2006

146Having carefully considered the evidence, I have found that there is insufficient evidence from which to draw the necessary inferences to support a finding that the applicant experienced adverse treatment on the basis of a prohibited ground or reprisal for this period. I make this finding for the following reasons.

147First, although the applicant believed that Choice was an “all-white company” because of efforts to exclude people of colour, when it first opened, the evidence does not support this allegation. There was evidence which was not disputed that taxi owners who self-identify as people of colour were approached or heard about the new company forming and chose not to participate because of a variety of personal issues. The applicant himself knew that there was a movement to start a new company and he did not indicate his interest in participating. That evidence was supported by other witnesses whose evidence was not contested that there was some reluctance in the community in general to become involved with Choice in part because a previous company had attempted unsuccessfully to compete with Veteran’s. There was insufficient evidence to support the applicant’s perception that the shareholders of Choice were intentionally excluding people of colour from joining the company after the opening.

148Second, the applicant did not actively pursue his interest in Choice between his conversation with Ms. McInnes when Choice first opened and his written application in October 2006. The applicant did not, for example, write a letter to Choice setting out his interest in becoming a shareholder. The applicant argued that the statement he made at a public meeting in 2004 that Choice should “open its doors” to himself and other people of colour was a signal to the company that he remained interested in bringing his own taxi to Choice. He also argued that this was a factor in his failure to receive votes at the October 2006 shareholder meeting. However, there is insufficient evidence to establish that the shareholders who voted at the October 2006 meeting attended the meeting in April 2004, heard the statement, connected that statement with the applicant two and a half years later and considered it in their decision not to vote for him. Mr. Thompson and Ms. Lalonde were the only witnesses who recalled this event and neither of them saw it as an indication that the applicant himself was interested in coming to Choice. Ms. Lalonde testified that she was not aware of the applicant’s interest until his letter in October 2006.

149Third, and perhaps most important, the applicant’s letter of October 4, 2006, which he submitted to the Choice shareholders clearly states that he has “finally made the decision to bring his taxi to Choice”. The applicant did not provide an explanation for the inconsistency between the language in his letter and his assertion that he had been ready to join Choice since the company opened.

150Fourth, Mr. Conway and Mr. St. Denis, who later became key supporters of the applicant testified that negative comments were made about him at the April, 2007 meeting. There is no evidence from either of them that similar comments or conduct occurred at the meeting on October 24, 2006. Apart from Mr. St. Denis, who believes he voted for the applicant, no one, including Mr. Conway or the other shareholders who later signed a petition supporting the applicant in April 2007, voted for him at this meeting which is more consistent with the testimony of a number of witnesses that the applicant was largely unknown to them.

151Fifth, all of the candidates considered and chosen at the October 2006 meeting self-identified as people of colour. This fact is not determinative but must be considered in assessing the applicant’s allegations. In addition, the fact that the applicant did not receive any votes does not assist me in determining that he was in any way singled out during the process. Three of the seven candidates did not receive a single vote. There was no evidence that those who did not receive votes shared any history in common such as an involvement in the previous human rights complaint.

152This is not to suggest that there was no evidence supporting the applicant’s perceptions. The fact that all of the people put forward at the October 2006 meeting were people of colour and that two of them apart from the applicant testified that they had repeatedly tried to become shareholders before that meeting was a concern. There may have been a disproportionate number of people of colour waiting for an opportunity to join the company as compared to those who had become shareholders by the time of the October 2006 meeting. However, there was insufficient evidence to suggest that these were factors in the failure to select the applicant.

153I also have serious concerns about the process by which new owners are selected, based as it is on personal preference. Even the basic equity policy adopted by the shareholders in January 2007 requires them to apply objective criteria. The process by which taxi owners are required to engage in lobbying of the voting shareholders is inappropriate and fraught with opportunities for the introduction of irrelevant selection criteria. While there is evidence to support a finding that the selection process in October 2006 was flawed, this is not sufficient to establish that the selection process in October 2006 was discriminatory or an act of reprisal.

154I had some question about the failure of Mr. Thompson to actively recruit the applicant when Choice was forming and the allegation that he did not appear supportive of the applicant when the issue was discussed between them. However, there is simply insufficient evidence from both the applicant and Mr. Thompson about what was occurring during that time period for me to draw any reasonable inferences. Mr. Thompson could not remember why he did not approach the applicant. The applicant testified that he might not have always been in town during that period. In addition, he was aware the company was forming and did not make any efforts to approach Mr. Thompson or anyone else.

April 2007

155With respect to the period of April 2007, I have found that there is sufficient evidence from which to draw the necessary inferences that the applicant experienced reprisal and adverse treatment on the basis of the prohibited grounds with which he self-identifies: race; colour; ethnic origin; place of origin and creed. Only with respect to the allegations of reprisal is the applicant required to prove intent and in my view, he has met that threshold.

156The attitude exhibited toward the applicant by some of the key shareholders in Choice after he was “put out” from Veteran’s is that he was a troublemaker. That impression was formed in part because of his advocacy against discrimination and is inextricably linked to the prohibited grounds under the Code with which the applicant self-identifies. This is particularly true with respect to those views that the applicant was pushing his own agenda to the point that he would advance allegations of racial discrimination simply to get what he wanted. Those sentiments, which were expressed by Ms. Lalonde, Mr. Thompson and Mr. Vervoort, are comparable to the comments in Correia v. York Catholic District School Board, 2011 HRTO 1733, at paragraphs 67 and 70, which the Tribunal found evoked “the well worn cliché” about “playing the race card”. The Tribunal found that such a cliché is used “as a means of de-legitimizing and discounting the perceptions and beliefs of a member of a racialized group”:

I will address this same comment by Ms. LaRosa in the context of my discussion of reprisal below. However, I also find that this comment is an indicator of racial discrimination. The only individuals who are in a position to raise allegations of racial discrimination are members of racialized groups. One doesn’t hear White or Caucasian people accused of “playing the race card”. Whether or not one agrees with the perception or belief of an individual who is a member of a racialized group that they have experienced racial discrimination and whether or not any such perception or belief ultimately turns out to be well-founded, labelling the raising of such an allegation as “playing the race card” not only de-legitimizes the experience of the individual but suggests that the individual is being manipulative and untruthful. In this way, Ms. LaRosa was attributing to the applicant by his raising of allegations of racial discrimination an impression or perception on her part that his perception was illegitimate, that he was being manipulative and untruthful, and ultimately that he was untrustworthy. I find that this attributed impression of the applicant is directly related or linked to his race, as that is the very basis upon which he formed the perception that he was experiencing racial discrimination and is the context in which he raised such allegations with Ms. LaRosa.

157The Tribunal and the Courts have commented on the subtle and nuanced nature of racial discrimination. In my view racial discrimination manifests in this case in a particular attitude toward a person of colour who, whether he is right or wrong, openly challenges what he perceives to be discrimination.

158However, in my view, the primary allegation is reprisal. I have defined the reprisal as the act of intentionally interfering with the efforts of Mr. Conway and Mr. St. Denis to have their motion on behalf of the applicant considered on it’s merits.

159A number of witnesses testified that they did not hear any negative comments made about the applicant at the meeting. However, there were two witnesses for the applicant (Mr. Conway, Mr. St. Denis) and one for the respondent (Mr. Huygen) who heard discussions at this meeting about the applicant’s involvement in the first human rights complaint. There was no evidence which presented a challenge to the credibility of these witnesses or cast doubt on their ability to accurately recollect what they experienced. I did not rely on the evidence of Mr. Mirdouvani because it lacked detail. The applicant’s witnesses were firmly of the view that there was an undercurrent of animosity toward the applicant because of perceptions that he was a troublemaker and had been involved in the previous human rights complaint.

160Mr. Vervoort testified that although he wondered about the applicant’s involvement in the first human rights complaint, he could not recall discussing this issue with other shareholders. I find that the evidence of Mr. Conway and Mr. St. Denis establishes that there was an open discussion about the applicant, his propensity for raising concerns about discrimination and his potential involvement in the previous human rights complaint. Mr. Vervoort’s personal animosity toward the applicant was derived from his interactions with the applicant over issues of racial discrimination. I did not find it credible that a person who describes himself as aggressive, who is open and candid about his feelings about the applicant and is in an environment where the applicant’s perceived involvement in the previous human rights complaint is being openly discussed, did not take part and express his opinions.

161I have already commented on Ms. Lalonde’s perceptions of the applicant. I find that those perceptions were in part the motivation for her efforts to “squash” the attempt by Mr. Conway and Mr. St. Denis to put the applicant’s case to the shareholders and her insistence on the rigid adherence to a selection process which had been applied for the first time in the October 2006 meeting.

162Three months before this meeting, a formal cap was placed on the number of shareholders and on the number of cars that could be owned by each shareholder or non-shareholder owner, but no formal cap was placed on the fleet as a whole. I accept the evidence of Mr. St. Denis that the motion to cap the fleet at 32 cars, which was initiated by Mr. Thompson and Ms. McInnes, was a pretext, motivated in part to ensure that any future efforts by the applicant to acquire an affiliation with Choice would be disposed of without the necessity to consider the merits of his application. This is precisely what occurred in October 2007 when Mr. Conway and Mr. St. Denis attempted to introduce the applicant’s petition. The shareholders avoided consideration of the applicant’s request by first voting against lifting the cap on the fleet.

163With respect to Mr. Ullah Chaudhry, he did not deny discussing his concerns about the applicant’s religious affiliations at the meeting. He denied that his attitude toward the applicant had anything to do with the decision he made to vote against the applicant’s proposals. I accept Mr. St. Denis’s evidence that Mr. Ullah Chaudhry was attempting to influence others against the applicant and that Mr. St. Denis had to step in and advise him that his perceptions of the applicant were not proper considerations in the context of the motion before the shareholders. I also accept Mr. St. Denis’s evidence that he found Mr. Ullah Chaudhry’s behaviour inappropriate and that it is unlikely that his comments had any impact on other shareholders. In addition to engaging in reprisal I find that Mr. Ullah Chaudhry engaged in discrimination on the basis of creed.

164With respect to the 90-day motion which was also defeated at the same meeting, I find that this was not discriminatory or an act of reprisal. I accept that the shareholders were simply uncertain about the legal implications of permitting the applicant to run his taxi in place of Mr. Conway’s once every 90 days.

165The applicant testified that he was not accusing each of the shareholders of engaging in breaching the Code but rather the individual respondents who played key roles in influencing the other voting members of Choice. For example, while Mr. Blanchard testified that he made efforts to ensure that the shareholders followed their procedures, there was no evidence that he was motivated to take that position because of a belief that the applicant was a troublemaker. On the other hand, I found that similar actions by Ms. Lalonde at the same meeting were motivated, in part but not exclusively, by the perception that the applicant was a troublemaker. Ms. Lalonde was never named as an individual respondent and I am not prepared to hold her personally accountable in circumstances where she did not receive notice of this possibility.

166The conclusion I have reached on the totality of the evidence is that the action which gives rise to a finding of reprisal is not the failure of the shareholders to bring the applicant and his taxi to Choice. It is the actions of a few key shareholders who intentionally engaged in efforts to prevent the rest of the shareholders from giving fair consideration to the applicant’s proposal. The applicant argued that the process engaged in at the shareholder meeting was tainted and I agree. However, that does not lead directly to the conclusion that but for the discrimination and reprisal the applicant would have been invited to bring his taxi to Choice and therefore he should be compensated for the losses he has sustained since April 10, 2007. In order to substantiate that claim, the applicant would have to prove on the balance of probabilities that but for the discrimination and reprisal, the shareholders would have agreed to exercise their discretion in his favour.

167It is important to emphasize that the shareholders of Choice had not put out a call for new taxis. In addition, they had moved away from the informal process they used to bring in new taxis and it was not disputed that there were people on a waiting list who had a reasonable expectation that they would have a fair opportunity to apply if there was an opportunity. The respondents argued that the applicant was asking the shareholders to apply the same kind of discretionary decision-making which was the subject of his claim against them.

168There was sufficient evidence, which was not contested, that the majority of the shareholders were of the view that their profits would be affected by the introduction of another taxi. Apart from Mr. Conway and Mr. St. Denis, all of the witnesses who voted against the applicant testified that they were motivated to cap the fleet on the basis of the perception that their profits would be affected by bringing in another taxi.

169I accept this explanation for a number of reasons. There is no dispute that the shareholders of Choice were not looking to add new taxis to their fleet. A movement had begun in January 2007 (well before the events of March 2007) which triggered a renewed effort on the part of the applicant to become affiliated with Choice, to put some formal limits on the growth of the organization. Although this perception was based on their experience as taxi owners rather than any formal study or report, even Mr. Conway testified that there was significant concern and discussion about the issue of profits. He and Mr. St. Denis also initiated a motion to cap the number of shareholders for the second time since October 2006, which supports an ongoing concern about maximizing profits. The motion to bring the applicant into Choice was defeated 12 to 5. With 4 more votes from the key shareholders, the applicant would have had 9 votes out of 17; however, I did not find the testimony of Mr. Thompson and Ms. Lalonde lacking in credibility on the issue of profits and cannot find on the balance of probabilities that they would have voted in favour of bringing any new owner into the company. In addition by the time of the hearing, three years later, the cap on the fleet remained unchanged.

170I also accept that Ms. Lalonde and others who were motivated to adhere to the new selection process did so in part because of a bona fide belief that it was the appropriate thing to do. Mr. Huygen, whose credibility was never called into question, testified that he had learned from the human rights training that the shareholders could not bump the applicant ahead of others on the list. I recognize that once the applicants who are on the list are put before the shareholders they are assessed on the basis of personal preference. However, it is a legitimate concern that the impact of bringing the applicant into the company on an exceptional basis would result in significant unfairness to the others who had applied before and were waiting for an opportunity to be considered.

171All of this goes back to the applicant’s original concern that the bylaw permits the owners of Choice to control the manner in which licensed taxi owners receive dispatch services to operate their taxis. It is not the role of the Tribunal to remedy any general unfairness which arises from the application of this bylaw. Even if the shareholders were wrong and profits would be unaffected by the introduction of a new taxi, they were entitled to make that decision.

172While these explanations are not sufficient to avoid a finding that the Code has been breached, they are relevant to determining whether there is a sufficient nexus between the conduct of the respondents and the losses claimed by the applicant.

REMEDY

173The applicant has proven discrimination and reprisal on the balance of probabilities in relation to the events of April 10, 2007 and that is sufficient to trigger a remedy under the Code. The corporate respondent is responsible for the individual respondents and other shareholders who acted in some way to prevent the applicant’s proposal from receiving full and fair consideration at the April 10, 2007 meeting and is jointly and severally liable with the individual respondents for any remedies arising from the Decision.

174The Tribunal is empowered under the Code to make remedial orders addressing compensation, restitution and anything else which, in the opinion of the Tribunal, would promote future compliance with the Code.

175After careful consideration of the implications of the various orders that would be available to me in these circumstances, I have decided to defer my decision on remedy for 90 days to permit the parties an opportunity to discuss a possible resolution.

176In order to give some framework to that discussion I will say that if the matter is returned to me I will order some sum for general damages having regard to the factors set out in previous decisions of the Tribunal such as Sanford v. Koop, 2005 HRTO 28. I would also consider the necessity for a public interest remedy which would address any deficiencies in policy and training such as the introduction of more objective standards in the process for selecting taxi owners. I do not believe that my findings support a remedy which would go so far as to treat the applicant as if he should have been accepted into Choice in April, 2007 and therefore I would not order the monetary compensation the applicant seeks for that period. It is important not to lose sight of the fact that the profound losses experienced by the applicant, both personal and professional, are not exclusively related to his efforts to obtain an affiliation with Choice.

177I will consider directing Choice to offer the applicant the opportunity to bring his taxi to Choice either immediately or at the first available opportunity. However, given the fact that the decision to become affiliated with Choice requires a commitment on the part of both parties to work toward a harmonious, productive and lasting relationship, I would prefer to give them an opportunity to decide whether or not they can reconcile themselves to that option in the absence of a direction.

178The parties are to advise the Registrar within 90 days of the date of this decision whether or not they have reached an agreement, failing which, a decision on Remedy will be issued.