Cuffy v. 1376234 Ontario Limited, 2013 HRTO 1057

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loferne Cuffy

Applicant

-and-

1376234 Ontario Limited o/a Scott’s No Frills

Respondent

DECISION

Adjudicator: Judith Hinchman Date: June 13, 2013 Citation: 2013 HRTO 1057 Indexed as: Cuffy v. 1376234 Ontario Limited

APPEARANCES

Loferne Pauline Cuffy, Applicant Self-represented

1376234 Ontario Limited o/a Scott’s No Frills, Respondent Scott Burns, Representative

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of race, colour, ancestry, ethnic origin, and place of origin.

EVIDENCE

2The alleged discrimination relates to an incident on January 5, 2012, that occurred in the express checkout lane of the respondent’s franchise location on Balmoral Drive in Brampton. The applicant, who was a customer at the time, alleges that the cashier assigned to this lane, Justine Garland (the cashier), and the owner of this franchise, Scott Burns, discriminated against her in their treatment of her during the incident.

3The applicant self identifies as afro-Caribbean, African ancestry, and Black from St. Vincent.

4The parties’ versions of what happened at the express lane that day differs and most of the evidence is testimony from those present that day. Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’s opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he or she has seen and heard. In addition, the Court stated:

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

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal 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.

5Accordingly, I have not considered the witness’s evidence in isolation, but rather, in the context of the totality of the evidence. See Chan v. MTY Tiki Ming Enterprises Inc., 2013 HRTO 915.

6I have also considered the Ontario Court of Appeal’s comments on reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) 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.

Incident with Cashier

7All parties agree that the applicant and her friend, Calton Roper, were in the respondent’s express checkout lane on the day in question during a period when the store was not busy. There is no dispute that the express lane is available to customers with 16 items or less. Further, all parties agree that at some point an elderly customer queued in behind the applicant and Mr. Roper. And there is no dispute that while the applicant was checking out, Mr. Roper stepped out of the line to retrieve another item from the store and then returned as the incident was occurring.

8The applicant testified that she only had 11 items that totalled $13. The applicant produced a typed list of 11 items she claims were the total of her groceries that day. She also produced an electronic banking record showing that a $13 purchase from Scott’s No Frills was processed by debit card through her chequing account that day and at the relevant time.

9On cross-examination, the applicant was shown a Journal Log Report of an order rung up at the express register by the cashier at the same time of the incident showing an order of 19 items for $42.34. The applicant testified that she could not remember if the cashier told her that her order totalled $42.34 and disputed that she had 19 items. She did recall though that none of Mr. Roper’s groceries had been rung up yet and Mr. Roper later confirmed that in his testimony. Therefore there is no basis to conclude that any of the 19 items listed on the record were Mr. Roper’s.

10The Journal Log Record also shows that $13 was successfully tendered with a debit card and that two subsequent attempts of further payments to cover the difference were unsuccessful. The respondent produced two transaction records, date and time stamped at the relevant time and identifying the express register, showing one credit card attempt was not approved and one debit card attempt was not completed. The applicant was also shown these two transaction records regarding two failed payment attempts. She testified that she could not remember if some of her attempts to pay with a debit or credit card were declined.

11The cashier testified that before she began ringing up the groceries, the applicant acknowledged that she had more than 16 items but stated that because no one else was in line at the time, it was not a big deal. The cashier testified that instead of causing an altercation she began ringing up the items and tried to put them through as quickly as she could. After all were rung up, the cashier testified that the applicant presented three credit cards and asked that certain amounts be charged to each. The cashier testified that some of these transactions were denied and thus the process began to consume more than the usual amount of time.

12Mr. Burns testified about how the Journal Log Report and the transaction records are created and stored. He testified that in his view these store records document that the applicant had 19 items that day totalling $42.34 that were rung up and that she made several attempts to pay for the items. Mr. Burns testified that although $13 worth of items was paid for, the rest of the order still required payment.

13With respect to the number of items that the applicant had in the express lane, the evidence supports the respondent’s version. The applicant has testified that she cannot remember being told a total amount owing and also cannot recall that any payments did not go through. It is not reasonable that before making payment the applicant would not have been told the total due and I do not find that the applicant testified sincerely on this point. I accept the Journal Log Report entry and the transaction records as accurate and these documents support the respondent’s evidence corroborated by the cashier that the applicant presented with more than 16 items and that several attempts at payment other than a portion of $13 were unsuccessful.

14The applicant, Mr. Roper, and the cashier all testified that the elderly customer who queued in line behind the applicant and Mr. Roper complained about the length of time the applicant’s checkout was taking and this too supports the respondent’s version that the order was larger than 16 items and that several payment attempts were made. I am persuaded that this in fact was the situation. Also Mr. Roper testified that none of the items that he had brought to the express lane were rung up and therefore it is reasonable to conclude that all of the 19 items rung up were the applicant’s items.

15While the cashier was attempting to process payment, it is not disputed that the elderly customer who had joined the express lane said, “can you hurry up, this is the express lane and I only have a couple of items.” The applicant alleges that when the elderly customer made this complaint, she tried to explain to the elderly customer that not all of the items in her cart were hers and that some were in fact Mr. Roper’s groceries.

16The cashier testified that the applicant told the elderly customer to mind her own business and said, “you don’t know what is going on.” The cashier testified that she asked the applicant not to speak to the customer that way, reminded the applicant that she had too many items for the express lane and told her that the payment attempts were now also holding up the line. Although the parties differ in the content of the communication, it is not disputed that when the elderly customer complained, the applicant addressed her.

17The applicant alleges that the cashier began shouting that the applicant had more than 16 items and they began arguing over the number of items. The applicant alleges that the cashier shouted at her “I don’t have to serve you, I don’t have to take this.” The applicant alleges that as part of a longer response she stated to the cashier: “she would not talk to a white person like that.” The applicant alleges that the cashier then shouted “excuse me, you’re pulling the race card? I’m not going to serve you.”

18The applicant alleges that during the incident she never spoke aggressively to the cashier. However the respondent’s witnesses all testified that the applicant spoke loudly enough to be heard at a distance and they dispute this.

19The cashier testified that following the applicant’s comments to the elderly customer, the applicant began arguing with her and stated “if I were white you wouldn’t be talking to me like this.” The applicant agrees that she made this statement. The cashier then testified that she stated, “Excuse me,” and the applicant repeated that statement in a louder tone. The cashier testified that they then argued back and forth and she finally said “you are pulling the race card” and “I am doing my job and making it fair for everyone else and I am being called a racist.” The parties agree that Mr. Roper then stated, “She never called you a racist.”

20Another employee, Lorenzo Cuffy, testified that he became aware of an altercation in the express lane and went over to be supportive to the cashier. He testified that the situation appeared heated.

21The cashier testified that she became very upset, emotional, and began shaking. She testified that she felt attacked. She testified that she then said, “I am sorry but I am not going to complete your order, have a good day.” She then paged Mr. Burns and the bookkeeper Vicki Bishop, her supervisor, to assist. After they arrived, Ms. Bishop asked her to go to the office, but even when away from the aisle she testified that she could hear the applicant screaming loudly.

22The applicant testified that the cashier went to another cashier’s desk and screamed, “Could you believe she pulled the race card?” This is not consistent, however, to Mr. Roper’s testimony that shortly after the cashier’s comment about the race card, she left to go to the office. Mr. Roper’s testimony is consistent with the evidence of Mr. Burns, Ms. Bishop, and Ms. Garland. There is no reason to believe that the applicant’s witness and three of the respondent’s witnesses fabricated this part of the incident and I find their evidence more reliable on this point. On a balance of probabilities, I therefore am not persuaded that the cashier went to another cashier’s desk and made the alleged statement.

23Mr. Burns testified that he is the owner/operator of three No Frills franchises and estimates that at the Balmoral location 14,000 customers are served each week. There was no evidence to the contrary and I accept this estimate as reasonable. Mr. Burns testified that each day several customers mistakenly attempt to check out at the express lane with too many items and that the cashiers are trained to tell those customers that they have too many items but that another cashier would be happy to assist. Again this is not disputed and is a reasonable conclusion.

24I find that on a balance of probabilities, the applicant had more than the permitted number of items for an express lane checkout. I also find that the cashier rang these up anyway, and that after payment attempts failed, the elderly customer complained. I find that the applicant told the elderly customer to mind her own business and the cashier reproached her for doing so. At that point the applicant and the cashier began to argue and it is not disputed that the applicant told the cashier that she would not speak to a white person that way. It is also not disputed that the cashier said “I can’t believe you are pulling the race card…I am doing my job and making it fair for everyone else and I am being called a racist.”

25It is not disputed that Mr. Cuffy had joined the area and he had the opportunity to observe the situation. His testimony corroborates that of Mr. Burns and Ms. Bishop who testified they could hear an altercation from several aisles away. The applicant agrees that Mr. Burns asked her to lower her voice. With respect to the volume of the disputant’s voices, the respondent’s witnesses were credible witnesses on this point and their evidence is reliable in my view. I find that the weight of the evidence supports that both the applicant and the cashier were shouting at each other prior to Mr. Burns and Ms. Bishop coming to the express lane.

Incident with Mr. Burns and another customer

26There is no dispute that Mr. Burns was summoned to the express lane. When Mr. Burns arrived at the express lane, he testified that the elderly customer in line appeared frazzled. As discussed earlier, both the cashier and the applicant were upset and the applicant was yelling at the cashier. Mr. Burns introduced himself and asked if he could help. He testified that the applicant was irate and loud and he asked her to stop raising her voice.

27Ms. Bishop then arrived and, after hearing the cashier’s explanation, she asked her to go to the office and walked with her to that location. Ms. Bishop testified that while doing so she could hear the applicant yelling at Mr. Burns. Ms. Bishop then returned and attempted to complete the applicant’s payment transactions. As she was doing this, she testified that the applicant kept yelling at her. The elderly customer was still there and Ms. Bishop told her to go to a different checkout lane, which she did.

28The applicant testified that Mr. Burns asked her to stop raising her voice and that he also said, “I can’t control what customers do, but I can protect my cashiers…. I have customers whose husbands are black and they try to play the race card.” Mr. Burns admits saying that he could not control customers but denies saying that customers try to play the race card. Ms. Bishop and Mr. Cuffy corroborated that testimony. Mr. Burns was a credible witness and his explanation of what he said to the applicant is reasonable in the context.

29The applicant and Mr. Burns continued to discuss the matter and then the applicant alleges that Mr. Burns began pushing her items hurriedly into plastic bags and shouted at her to finish paying for her items and to leave the store. Neither Mr. Cuffy nor Ms. Bishop agreed that Mr. Burns shouted at the applicant and I find that, while he later asked the applicant to leave, he did not shout.

30The applicant testified that while she was explaining the situation, a male customer shouted, “Why don’t you niggers go back to Jamaica.” She testified that Mr. Roper attempted to speak to this person and the customer screamed “well go back to wherever the fuck you come from, nobody wants people like you here.” Mr. Roper spoke again and then the applicant spoke to the male customer asking him to stay out of the matter.

31Both Ms. Bishop and Mr. Burns testified that they heard the male customer who was bagging his groceries in a different lane yell “why don’t you go back to where you came from.” Mr. Burns testified that the applicant became upset at the other customer. Mr. Burns testified that he held up his hand and told that customer to mind his own business, to stay out of the issue, and that it did not concern him. Ms. Bishop testified that she too held up her hand and admonished the male customer. By that point the male customer was on his way out of the store and words were still being exchanged between that customer, the applicant, and Mr. Roper. The male customer then left the store.

32Mr. Cuffy testified that he heard the male customer say, “go back to Jamaica, go back to where you came from.” He also testified that the applicant, Mr. Roper, and the other customer argued back and forth while the male customer was bagging his groceries and as he was leaving the store; and that the applicant and Mr. Roper were both shouting and appeared to become more and more upset.

33Although the witnesses testify differently as to the exact words uttered, the general tone of the alleged statement by the male customer is not disputed and it is offensive. Several of the witnesses were upset at the time and thus may reasonably not have heard or recorded all of what was said including the specific words. Furthermore, the male customer was a few aisles away when he began his remarks and no one would have been expecting it. I am not surprised that the witnesses’ recollections differ as to the exact words uttered. Given the heated and escalating situation, I find that while the respondent’s witnesses are credible and sincere, they are not reliable on this point. The impact of those statements would be felt keenly by the applicant and also because she recorded the incident closer to the date in question when she filled out her Application, I find that her recollection of what was said and that is corroborated by Mr. Roper is more reliable than the respondent’s witnesses’ recollection. However, by any of the accounts, it was an offensive utterance and it is reasonable to conclude that a heated exchange between the applicant, Mr. Roper, and the male customer ensued.

34I also accept Mr. Burns’ and Ms. Bishop’s evidence that they too were upset by these exchanges and that their recollection that they each put up a hand to the customer and indicated that he should not continue is reasonable and reliable evidence in the context of their duties at the store and the fact that other customers and cashiers were present too.

35Mr. Burns, Ms. Bishop, and Mr. Cuffy all recall that the male customer was walking out of the store as the exchange concluded and left the store while the applicant and Mr. Roper were still in the express checkout lane. This was not disputed and I find that the male customer left immediately after the exchange.

36Mr. Burns testified that although the respondent is a self-service operation, he began to parcel the applicant’s groceries in an attempt to calm her and the situation. Again, given what had just transpired between the applicant and Ms. Garland, the frazzled elderly customer, and the heated exchange between the male customer, the applicant, and Mr. Roper this also is reasonable in the context. I accept that the male customer had left the store, the applicant was still upset and Mr. Burns and Ms. Bishop were attempting to calm the situation. It is not disputed that the applicant stated that she did not want her groceries, that Ms. Bishop refunded the applicant the $13 that had been paid, and that the applicant and Mr. Roper left the store.

37Mr. Burns testified and it is reasonable to believe that part of his job was to attempt to calm any customer issue that arises. I accept that during the incident the applicant and Mr. Roper were speaking loudly and that given how upsetting the whole incident was Mr. Burns and Ms. Bishop did attempt to quickly bag the items, did refund the amount already paid when asked, and did ask the applicant and Mr. Roper to leave the store afterwards. As discussed above I do not find that Mr. Burns or Ms. Bishop shouted at the applicant to leave.

ANALYSIS

Applicable Law

38The Application relates to s. 1 of the Code, which provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

39The 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 a violation 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, [2008] 3 S.C.R. 41 at para. 46.

40It is well established in human rights law that in order for an act to constitute a violation of the Code, discrimination need only be one of the reasons for the act. It is not necessary that discrimination be the sole or even the predominant reason for the act. See Dominion Management v. Velenosi, (1997) 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (ON C.A.) at para. 1, and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.) at para. 11.

41The issues in this case are:

a. Did the respondent discriminate in providing services to the applicant by treating her differently because of the grounds she has enumerated?

b. If discrimination occurred, what is the appropriate remedy?

42I have found that the applicant did in fact have more than the 16 items in the express lane and that ringing up took longer than usual and processing her payment took more than a few attempts. I found that Mr. Burns’ evidence that several times each day express lane cashiers are required to direct customers to different lanes was not disputed and is reasonable in the circumstances. In this case the evidence is that at first the cashier did permit the larger order to go through. When the elderly customer complained, however, and the applicant spoke harshly to her, the cashier did speak to the applicant about having too many items. I do not find that the cashier treated the applicant any differently than she would other customers in pointing out that she had too many items for the express lane despite the fact that she had earlier permitted the customer to use the express lane. There is no evidence that any enumerated ground was a factor in the cashier responding in this way after the other customer complained.

43At this point it was the applicant who raised an issue of race. While the cashier’s response about “the race card” may have escalated the argument, it was not a factor in beginning the incident and was in direct response to the applicant’s suggestion that the cashier was motivated by race to mention the number of items, ask her not to speak to the elderly customer the way she had, and indicate that she should not have served her as a result. I do not find the cashier stating back to the applicant that she thought the applicant was raising race and calling her a racist given that the applicant had suggested race was a factor to be discriminatory treatment by the cashier. In the ensuing argument, both the applicant and the cashier raised their voices as can happen in an argument where both parties are upset. The applicant was upset that the cashier told her she had too many items and had admonished her not to speak to the elderly customer. Both were participants in and reacting to the argument.

44I have also found that Mr. Burns and Ms. Bishop having joined a heated situation, which became worse when another customer made offensive utterances, were trying to diffuse the situation and calm the applicant. The unexpected interjection of the male customer’s offensive remarks was addressed immediately by Mr. Burns and Ms. Bishop who with hand signals and a few words both attempted to quiet him. Very quickly thereafter the male customer left the store and by then the evidence is that Mr. Burns and Ms. Bishop were trying to help the applicant with her checkout and calm the situation. I have found that Mr. Burns’ testimony that part of his job is to calm and address customer situations is reasonable. I am not persuaded he treated the applicant any differently that he would have any other customer in this situation. It is not disputed that at the respondent’s stores, customers bag their own groceries, and so Mr. Burns attempting to bag the groceries could more reasonably be viewed as an attempt to help an upset customer with her checkout. Although it was an unpleasant situation for all involved, I am not persuaded that race, colour, ancestry, ethnic origin, and place of origin were factors in Mr. Burns’ and Ms. Bishop’s attempts to expedite the applicant’s checkout and store exit that day.

45On a balance of probabilities the applicant has not proved that because of her race, colour, ancestry, ethnic origin, and place of origin, she was discriminated by the respondent at the respondent’s store on the relevant date. For all of the above reasons, the Application is dismissed.