Metzloff v. Olive Branch Restaurant & Bar, 2012 HRTO 724

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Metzloff

Applicant

-and-

Olive Branch Restaurant & Bar

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: April 11, 2012

Citation: 2012 HRTO 724

Indexed as: Metzloff v. Olive Branch Restaurant & Bar

appearances

Richard Metzloff, Applicant ) Self-represented

Olive Branch Restaurant & Bar, ) Arnold Winston, Representative Respondent )

INTRODUCTION

1The applicant, who uses a wheelchair and has a service dog, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 22, 2010 which alleged that the respondent discriminated against him with respect to services because of his disability. Specifically, he alleged that the respondent refused to serve him because he had a service dog.

2The respondent filed a Response on December 1, 2010 which denied the allegation of discrimination. Specifically, the respondent stated that its staff did not have any contact with the applicant, and that the applicant’s discussions were with other customers who were not authorized to speak on behalf of the respondent.

BACKGROUND

3The hearing took place on April 4, 2012. I heard the evidence of five witnesses: the applicant, the respondent’s owner/manager, a bartender/waitress, and two customers.

EVIDENCE

4The incident at issue occurred on Sunday, July 4, 2010 at approximately 3:00 PM on the outdoor patio of the respondent’s restaurant/bar. The applicant testified he entered the patio and was trying to position his wheelchair and dog at a table when a waitress came out and said that she would not serve him with his dog inside the patio. He stated that he tried to explain to her that his dog was a service dog, and asked to speak with the owner, whom he knew from previous visits. He stated that a man then came out, whom he did not recognize, and told him, no dogs. He stated that he tried to show the man his service dog license to no avail. He stated that he then left the establishment because he was refused service. He did not contact the respondent after this incident.

5The applicant described the waitress as fairly tall and “Oriental”. He stated that he knew that she was a waitress because she was serving drinks and picking up money. He described the man who came out to speak with him as short and speaking with a heavy accent.

6The respondent’s owner/manager testified that he was not at the establishment when the incident occurred. He also stated that there was only one bartender/waitress staffing the establishment. He stated that when he returned at about 4:00 PM, several customers and the bartender/waitress told him that there had been an incident where the applicant had pushed his wheelchair into a table where customers were sitting. The owner/manager admitted that the respondent had Asian waitresses in its employ, but denied that any of them were on duty when the incident occurred.

7The bartender/waitress testified that she was the only staff person at the establishment when the incident occurred. She stated that she was inside and heard a commotion on the patio. She stated that when she went on the patio, she saw the applicant going down the sidewalk, and several customers told her that that there had been an incident where the applicant had pushed his wheelchair into a table where customers were sitting. She stated that she had no contact with the applicant.

8The bartender/waitress is neither tall nor Asian, and the applicant did not identify her as the waitress who interacted with him during the incident. The bartender/waitress acknowledged that the respondent had Asian waitresses in its employ, but stated that they were not on duty when the incident occurred.

9Two of the respondent’s customers testified at the hearing, and both stated that they were at the establishment when the incident occurred. One customer stated that he was smoking on the patio and saw the applicant aggressively pushing his wheelchair into a table where customers were sitting. The other customer stated that she was inside and heard a commotion on the patio. She stated that when she went on the patio, she saw the applicant leaving, and heard several customers complaining that the applicant had pushed his wheelchair into a table where they were sitting.

10Both customers stated that there was only one staff person on duty, and identified her as the bartender/waitress who testified at the hearing. Both customers admitted that they were regular customers, but denied that they were friends with the owner/manager.

11The applicant did not contact the respondent after this incident. Instead, he filed an Application with this Tribunal.

ANALYSIS

12The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that discrimination contrary to the Code has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.

13My decision in this case turns on the credibility and reliability of the applicant’s evidence. In assessing credibility and reliability, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]

14I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

15The applicant’s testimony was, for the most part, straightforward and forthright. I have no reason to doubt the credibility of his evidence that two individuals on the respondent’s premises told him that he was not allowed to have his service dog on the patio. That said, he did not provide reliable evidence that the two individuals were employed by the respondent. He did not present any other evidence – witness or otherwise – to corroborate his testimony on this point.

16Furthermore, the respondent’s owner/manager and bartender/waitress, who, unlike the applicant, had personal knowledge of who was on duty, provided straightforward and forthright testimony that the bartender/waitress was the only person on duty when the incident occurred. The bartender/witness also testified that she never spoke with the applicant. The owner/manager and bartender/waitress’s evidence was corroborated by two independent customer witnesses who had no motive to lie or embellish their testimony. I therefore find that the respondent’s evidence was more reliable than the applicant’s evidence on this point.

17In my view, it is more likely than not that the applicant bumped another table when he was trying to position his wheelchair and dog at a table, had an argument with several other customers, and was told by two customers that his service dog was not allowed on the patio. He mistook the two customers for staff and then left the establishment.

18In the circumstances of this case, the respondent cannot be held liable for the conduct of its customers. The owner/manager was not present when the incident occurred. Furthermore, after the incident, the owner/manager’s investigation of the incident was hampered by the applicant’s departure and failure to contact the respondent.

ORDER

19The Application is dismissed.