HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pascal Adorgloh
Applicant
-and-
Seasons Foodmart and Feng Lin
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Adorgloh v. Seasons Foodmart and Feng Lin
APPEARANCES
Pascal Adorgloh, Applicant
Self-represented
Seasons Foodmart and Feng Lin, Respondents
Kenny Yau, Representative
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, services and facilities because of race, colour, ancestry, place of origin, citizenship, ethnic origin, family status, marital status and association with a person identified by a prohibited ground of discrimination. The applicant identifies himself as a black man of African descent.
2The Tribunal heard this matter on February 22, 2013. The parties completed their evidence, but the applicant began to feel unwell towards the end of the day. The parties agreed to present their closing submissions in writing and submissions were complete on April 16, 2013.
JUNE 28, 2011
3This Application concerns an incident that occurred on June 28, 2011, when the applicant and his family went grocery shopping at the organizational respondent’s store. There is no dispute that the applicant and his family completed their shopping at about 8 p.m. and waited in the line for cashier number four to pay for their groceries. The individual respondent, Feng Lin, was cashier number four. Eventually, it was the applicant's turn to pay, which is when the incident occurred.
4The applicant's evidence was that he put their groceries on the conveyor and the individual respondent began the checkout process. According to the applicant, the individual respondent "threw" grocery bags at him and directed him to pack the groceries. The applicant stated that he expects a cashier to pack his groceries unless the cashier asks him to assist respectfully. Consequently, the applicant stated that he asked the individual respondent if she was going to pay him to pack his own groceries. Following this inquiry, the individual respondent said something to another cashier in Chinese which the applicant did not understand and both cashiers laughed.
5The applicant’s testimony was that he thought nothing of this until he noticed that the cashier’s comment caused his wife to frown. The applicant's wife, Yu Xia Cao, speaks Chinese, but did not want to repeat the individual respondent's comment. The applicant insisted that she tell him and she began to cry. The applicant's evidence was that Ms. Cao informed him that the individual respondent said "Look at this monkey. If I married him I would suffer the rest of my life".
6The applicant testified that he found the individual respondent's comment to be unacceptable and he became angry. According to the applicant, he asked the individual respondent for her name, but she did not want to tell him and she did not apologize for the comment. The applicant then left the checkout area and proceeded to customer service to report the incident. The applicant stated that he wished to speak to a supervisor or manager, but was informed that the manager was not present. The applicant stated that the customer service representative gave him a telephone number to call, but did not appear to take the situation seriously, taking no steps to investigate the incident. He then re-joined his family and left the store.
7As noted above, Yu Xia Cao is the applicant's wife and attended the organizational respondent’s store with the applicant and their children on June 28, 2011. Ms. Cao testified that after completing their shopping they came to a cashier who she identified as the individual respondent. Ms. Cao's evidence was that the individual respondent "threw" some grocery bags to her husband and did not initially say anything. Ms. Cao stated that the applicant then asked the individual respondent if she would pay him if he packed his own groceries. According to Ms. Cao, the individual respondent spoke to another cashier in Chinese and they both laughed. Ms. Cao indicated that the individual respondent spoke in Mandarin and confirmed that she understands that language. According to Ms. Cao., the individual respondent's comment was to the effect of "If I married with this monkey, I would suffer for the rest of my life." Ms. Cao stated that the comment upset her and she began to cry, but she did not tell the applicant because she did not want any problems. The applicant, however, pushed her to tell him; therefore, she translated the comment for him. The applicant then became very upset and went to customer service, while Ms. Cao remained at the checkout counter. The applicant returned after speaking with customer service and they left. In cross-examination, Ms. Cao testified that she spoke to the individual respondent in Mandarin after she made the comment about the applicant and made a statement to the effect that "You don't think I understand what you said". According to Ms. Cao, the individual respondent did not respond.
8Feng Lin, the individual respondent, testified with the assistance of an interpreter. The individual respondent stated that she worked as a cashier for the organizational respondent from February 2010 until November 2011.
9The individual respondent's evidence was that June 28, 2011 had been a busy day and she had been working since 8 a.m. The individual respondent testified that the applicant came to her station to pay for groceries at about 8 p.m. The individual respondent stated that the store was very busy; therefore, she gave the applicant some bags to see if he would help. Instead, the applicant asked her how much she would pay him to bag his own groceries. According to the individual respondent, she smiled and did not say anything. She acknowledged that she was somewhat upset by the applicant's reaction because she was tired and did not want other customers to wait, and he did not want to help.
10The individual respondent's testimony was that she did make a comment to another cashier in Chinese to the effect of "How could he be so stingy? I just asked him to pack his groceries." According to the individual respondent, the applicant's wife told her not to say such things and that she understood what the individual respondent had said. The individual respondent stated that she apologized and continued with her duties, packing the groceries without help from the applicant.
11The applicant asked his wife what happened and she started crying. The individual respondent did not overhear their conversation after that, but the applicant began scolding the individual respondent moments later calling her "bitch" and "fucking bitch". The applicant then left to go to customer service where he spoke in a loud voice. The applicant returned from customer service and continued to scold the individual respondent. The individual respondent estimated that the applicant scolded her for approximately half an hour on June 28, 2011 and stated that the applicant came to her cashier station to complain every time he came into the store after June 28, 2011.
12The individual respondent's evidence was that the applicant asked her boss to fire her. The individual respondent stated that a manager advised her that the applicant's wife thought she heard the words "monkey" and "black person" in reference to the applicant, which the individual respondent denied. The individual respondent felt that she had done nothing wrong. The individual respondent indicated that the applicant continued to complain about her after June 28, 2011 and eventually she could no longer work there. She stated that she stopped working for the organizational respondent in November 2011.
13The individual respondent stated that it was unfair of the applicant to involve in a stressful and lengthy process over one sentence. Nonetheless, she stated that she wanted to confront the issue at the hearing so that other cashiers could be spared a similar experience.
14Flora Wu is a cashier employed by the organizational respondent and has held that position for approximately 2 1/2 years. Ms. Wu's evidence was that she worked on June 28, 2011 and was working at a checkout station beside the individual respondent. I asked Ms. Wu how far apart the checkout stations were and how she was oriented (e.g., front to back, back to back, etc.) relative to the individual respondent. Ms. Wu indicated that the checkout stations are roughly one metre apart and she was in front of the individual respondent. At the time of the incident, Ms. Wu stated she was dealing with a customer who was paying for his purchases with a debit card and she was facing the screen on her point of sale terminal.
15Ms. Wu testified that she was not sure what happened when the individual respondent made a comment to her to the effect of "Look at this customer. I asked him to pack for me and he asked me how much I would pay him to pack groceries ". Ms. Wu stated that she responded to the effect that a lot of customers do that and suggested that the individual respondent give the applicant two free bags to get him to pack for her, which she stated was "pretty fair". The applicant's wife then interrupted them and informed them that she understood what they had said and that they should stop talking.
16According to Ms. Wu, the applicant proceeded to pack the groceries for the applicant. The applicant had asked his wife what had happened and shortly thereafter he began scolding the individual respondent in a loud voice and pointed his finger at her. Ms. Wu stated that that the individual respondent began to cry after being scolded.
17In cross-examination, Ms. Wu stated that the individual respondent referred to the applicant as "petty" or "stingy" because he asked to be paid when she asked him to pack for her. Ms. Wu confirmed that she and the individual respondent were joking about the situation and she stated that it would be fair to give the applicant free bags to get him to pack the groceries.
SUBSEQUENT EVENTS
18The applicant's evidence was that he called and left a message for the manager three times before they connected. About three weeks after the incident, the manager, Feng Zheng, called the applicant and they arranged to meet. According to the applicant, Mr. Zheng met the applicant and his family. The applicant stated that when they met Mr. Zheng his wife described the incident. According to the applicant, Mr. Zheng informed them that he asked the cashier in question what she had said and she stated that she called the applicant "stingy". The applicant stated that Mr. Zheng offered them 3% off their next grocery purchase and offered to dismiss the individual respondent. The applicant stated that this was inadequate, as he wanted the incident to be investigated to ensure the behaviour was not repeated. The applicant denied the assertion set out in the Response that his wife proposed a settlement of $7,000.00.
19In cross-examination, the applicant stated that he wanted to resolve the issue with the manager and noted that he continued to shop at the store. The applicant stated that he did not pursue a financial settlement, but asked the organizational respondent to educate and train staff to avoid this kind of incident in the future. The organizational respondent, however, did not take responsibility for the incident or apologize.
20Also in cross-examination, the applicant stated that the incident had caused difficulties in his marriage and that he and his wife had gone to counselling as a result. The applicant stated that the incident had affected his wife, whom he said began to "act funny". The applicant stated that the counselling they attended was in part directed at assisting his wife in dealing with the incident. He confirmed that his wife was not required to take any medication. The applicant acknowledged that he provided no evidence of this treatment.
21Ms. Cao's evidence was that she did not say anything at the meeting with Mr. Zheng, which she said occurred a couple of weeks after June 28, 2011. Ms. Cao also stated that she did not make any sort of demand.
22Ms. Cao stated that the incident caused her to think about her marriage because the individual respondent statement implied that she would suffer for the rest of her life. Consequently, she began to question whether the applicant was "Mr. Right", as she had previously believed. In cross-examination, Ms. Cao indicated that she and the applicant had been married for four or five years and knew each other for two years before their marriage.
ANALYSIS AND DECISION
23Section 1 of the Code states as follows:
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..
24The applicant has the onus of proving that the respondents violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondents discriminated against him on the Code grounds alleged. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
25The parties dispute what the individual respondent said about the applicant on June 28, 2011. Accordingly, I have determined the facts of this case, on a balance of probabilities, based largely on my assessment of the witnesses’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal 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 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.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
26I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, 2010 ONCJ 396, as follows (at paragraphs 58 to 60):
“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON CA), (1995), 97 C.C.C. (3d) 193, at 205:
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
27The only material factual dispute in this manner is what the individual respondent said about the applicant to Ms. Wu in Mandarin on June 28, 2011. For the reasons that follow, I found Ms. Cao to be more credible than the individual respondent and Ms. Wu. In their submissions, the respondent suggests that Ms. Cao misheard the individual respondent and speculated that the words "monkey" and "stingy" are similar in Mandarin. There is no evidence to support this submission. First, Ms. Cao was in the checkout line at the individual respondent's cashier station and was therefore quite close to the individual respondent and between her and Ms. Wu. The individual respondent made her comment loudly enough for Ms. Wu to hear it and I find it unlikely that Ms. Cao misheard her. Second, notwithstanding the fact that both the individual respondent and Ms. Wu speak Mandarin, the respondent adduced no evidence that the words "monkey" and "stingy" sound similar in Mandarin.
28Ms. Cao testified consistently in chief and in cross-examination that the individual respondent described her husband as a monkey and stated that if she (i.e., the individual respondent) married him she would suffer for the rest of her life. The applicant's evidence was that this is how Ms. Cao translated the comment at the time. The individual respondent’s testimony that she called the applicant “stingy” is not consistent with the context of the incident. The applicant's evidence was that he was displeased by the individual respondent's expectation that he bag his own groceries and that his statement reflected this. I find that the applicant's question to the effect of "How much will you pay me to bag my groceries?" was rhetorical and was intended to reflect both his view that it was the applicant's job to bag groceries and that he did not appreciate doing this himself. There is no evidence that indicates that the applicant actually expected to be paid to bag his own groceries, which anyone with any experience grocery shopping will know does not happen. In these circumstances, I do not find it credible that the individual respondent considered the applicant to be actually asking for money. The applicant's rhetorical question was a complaint about the service provided (or lack thereof) by the applicant, not a request for compensation. The individual respondent was clearly annoyed by the applicant’s complaint and lack of cooperation, but calling him "stingy" was not apropos of the situation. However, the statement attributed to the individual respondent did reflect annoyance and was in my view consistent with the circumstances.
29Ms. Wu's testimony that the individual respondent called the applicant "stingy" was consistent with the individual respondent’s evidence. The balance of her evidence, however, does not accord with the evidence of any of the other witnesses. Neither the applicant and Ms. Cao nor the individual respondent testified that Ms. Wu said anything in response to the individual respondent's comment about the applicant. In particular, the individual respondent gave no testimony to the effect that Ms. Wu suggested that she offered the applicant free bags to coax him to assist her with bagging his groceries. There is also no evidence the individual respondent acted on this advice or why, if the advice was in fact given, she chose not to. In these circumstances, I do not find Ms. Wu's evidence to be credible.
30Accordingly, I find on a balance of probabilities that the individual respondent made the comment about the applicant attributed to her at the hearing, i.e., describing the applicant as a monkey and stating that being married to the applicant would lead to suffering. There was no evidence, however, that the individual respondent also stated "Why did she (i.e., Ms. Cao) marry this black man?” as alleged in the Application and as the applicant submitted I should find as a fact. Ms. Cao did not testify in her evidence in chief that the individual respondent said this and the applicant's evidence was that Ms. Cao indicated only that the individual respondent had called him a monkey and that she would suffer if she was married to him. The discrepancy between Ms. Cao’s evidence and the allegations set out in the Application was not specifically put to her, but the respondent's representative did ask her to again recount what she overheard the individual respondent say. Ms. Cao responded again that that the individual respondent stated "If I marry with this monkey, I would suffer for the rest of my life". Accordingly, there is no evidence to support a conclusion that the individual respondent also queried why Ms. Cao would marry a black man. I note, however, that the statement I have found the individual respondent made about the applicant in any event implied that marrying the applicant was a mistake.
31I find that the individual respondent's comment about the applicant amounted to discrimination because of race and colour in the context of this case. There may be other contexts in which referring to someone as a "monkey" may not have racist connotations and may even be innocuous. In this case, however, the individual respondent clearly intended the term "monkey" to be derogatory since she stated that being married to “this monkey”, i.e. the applicant, would cause suffering and the comment was a reaction to the applicant’s unwelcome behaviour. By describing the applicant as an animal, the individual respondent perpetrated the stereotype that black people are subhuman and not equal to others. In this context I find that the use of "monkey" was a racial slur. The applicant received differential treatment when he was subjected to a racial slur while shopping at the organizational respondent’s store. In my view, the organizational respondent was clearly providing a service in the operation of its grocery store. The respondents did not suggest otherwise. Consequently, I have no difficulty finding that the individual respondent violated the applicant’s Code right to be free of discrimination with respect to services.
32The individual respondent uttered the discriminatory comment in the course of her employment with the organizational respondent. Pursuant to section 46.3 (1) of the Code, an employer will be responsible for the actions of its employees subject to exceptions that do not apply in this case. An employer, however, may escape liability for such actions if it takes reasonable steps to investigate a complaint of discrimination or harassment. The obligation to investigate a complaint of discrimination is triggered when a complaint concerning a potential violation of the Code is made known to the employer. See Naidu v. Whitby Mental Health Centre, 2011 HRTO 1279. Once the obligation to investigate is triggered, the Tribunal has applied the following criteria in assessing a response:
(1) Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees?;
(2) Once a complaint was made, did the respondent treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act?; and
(3) Did the respondent provide a reasonable resolution in the circumstances? Could the respondent provide her/him with a healthy, discrimination-free environment? Did it communicate its findings and actions to the complainant?
See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at paragraph 60.
33The evidence was that upon learning of the individual respondent's comment the applicant went to customer service where he complained that the individual respondent had uttered a racial slur about him. The individual respondent testified that a manager informed her that Ms. Cao heard her refer to the applicant as a "monkey" or a "black man", which she denied. Beyond that, the organizational respondent adduced no evidence about the steps it took to address the applicant’s complaint. Accordingly, the evidence regarding investigation came almost entirely from the applicant and Ms. Cao.
34The applicant's evidence was that the customer service personnel present in the store at the time could not address the incident and directed him to speak to the manager. The applicant’s uncontradicted evidence was that he called the manager, Mr. Zheng, three times before Mr. Zheng called him back. The evidence of the applicant and Ms. Cao was that they did not meet the manager for weeks. The applicant’s uncontradicted testimony was that Mr. Zheng asked them for their version of events and informed them that the cashier’s version did not match theirs. The evidence was that manager offered the applicant and his wife 3% off their next grocery order to resolve the matter.
35There is no evidence before me that the organizational respondent has a policy in place to deal with complaints of Code violations or that employees received any training regarding Code issues. The organizational respondent made little effort, on the evidence before me, to address the applicant’s complaint and it was only because of the applicant's persistence that the parties eventually met – two or three weeks later. In my view, the evidence indicates that the organizational respondent did not take the complaint seriously or take proactive steps to address it. The organizational respondent's investigation consisted solely of questioning the individual respondent. The organizational respondent made no attempt to ascertain the specifics of the applicant’s complaint, e.g., by interviewing the applicant and Ms. Cao or having them make written statements, and it did not identify potential witnesses, e.g., Ms. Wu, who might have shed light on the incident (until, that is, it was required to litigate this Application). The organizational respondent did not find any violation of the Code, but there is no evidence that it made any effort to assure the applicant that it took human rights seriously. In fairness to the organizational respondent, it does not appear that the applicant had any difficulty in attending at the store after the incident. The Tribunal does not hold respondents to a standard of perfection, but the evidence before me indicates that the organizational respondent did not meet its obligation to investigate and act upon the applicant’s complaint. Consequently, I find that organizational respondent is responsible, along with the individual respondent, for the discrimination experienced by the applicant on June 28, 2013.
REMEDY
36The Tribunal’s remedial authority is set out in section 45.2 of the Code as follow:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
37An award of compensation for injury to dignity, feelings and self-respect is intended to recognize the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.
38In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
39The applicant seeks award of compensation for injury to dignity, feelings and self-respect of between $10,000 and $20,000; diversity, cultural and cross-cultural training for that organizational respondent's employees; and an apology letter from the organizational respondent.
40The Tribunal's jurisprudence regarding a single comment or a few comments within a short time indicates that more modest damages are appropriate. See Romano v. 1577118 Ontario Inc., 2008 HRTO 9 ($1,000.00), Baisa v. Skills for Change, 2010 HRTO 2161 ($1,500.00) and Brooks v. Total Credit Recovery Limited, 2012 HRTO 1232 ($2,500.00).
41In my view, this case bears similarities to Brooks where a co-worker publicly used the term "ghetto" as a derogatory racialized description of the applicant, who was an African Canadian man. In my view calling a black man "monkey" is at least as serious. In Brooks, as here, the organizational respondent failed to adequately address the issue after the applicant complained. On the other hand, the applicant in Brooks continued to experience difficulties in the workplace as a result of the harassment he faced. The evidence adduced by the applicant was that the individual respondent's comment caused Ms. Cao to question their relationship and led them to seek counselling. However, the applicant tendered no evidence of any medical treatment; therefore, I find there is no proper basis on which to find that the applicant suffered medical, health and psychological issues. Indeed, it would appear that Ms. Cao felt the impact of the individual respondent's comment most profoundly, but she is not a party to the Application.
42In the circumstances of the case, I view $2,000.00 to be appropriate compensation for injury to the applicant’s dignity, feelings and self-respect. The organizational respondent is vicariously liable for the individual respondent’s conduct, and I find that its own failure to meaningfully address the applicant’s complaint prolonged and exacerbated the impact of the initial incident on the applicant. However, the initial harm inflicted on the applicant was caused by a racist comment that the individual respondent uttered and in my opinion she should remain liable for her actions. Accordingly, the individual respondent shall pay the applicant $500.00 as compensation for injury to the applicant’s dignity, feelings and self-respect and the organizational respondent shall pay the balance, i.e., $1,500.00.
43The individual respondent’s evidence indicated that she did not believe that she had done anything wrong and, indeed, attempted to portray herself as a victim. I find that the individual respondent did not appreciate how inappropriate her statement was or the potential impact such a racist comment could have. The organizational respondent’s personnel did not appreciate their obligations to address complaints of Code violations. Accordingly, I find it appropriate to order the individual respondent and all of the organizational respondent’s managerial employees to take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to the applicant within 90 days of the date of this decision.
44The Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns. See Abdallah v. Thames Valley District School Board, 2008 HRTO 230 and Turnbull v. Famous Players, 2001 CanLII 26228 (ON HRT). I agree with the concerns described in the jurisprudence. I certainly agree that the applicant is entitled to an apology, but in my opinion a forced apology is of negligible value.
45The Tribunal orders as follows:
Within 45 days of the date of this Decision, the individual respondent shall pay to the applicant $500.00 as compensation for injury to dignity, feelings and self-respect;
Within 45 days of the date of this Decision, the organizational respondent shall pay to the applicant $1500.00 as compensation for injury to dignity, feelings and self-respect;
The respondents shall pay pre-judgment interest on the amounts described in paragraph 45(1) and 45(2), above, from June 28, 2011 to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43. In the event that the respondents fails to make the payment described above within 45 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O 1990, c. C.43; and,
The individual respondent and all of the respondents’ employees who perform supervisory or management functions shall take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to the applicant within 90 days of the date of this decision.
Dated at Toronto, this 10th day of July, 2013.
“Signed by”
Douglas Sanderson
Vice-chair
CORRECTION
The decision released on July 10, 2013 incorrectly stated in paragraph 43 that “I find it appropriate the applicant and all the organizational respondent’s”, it should have stated “I find it appropriate that the individual respondent and all of the organizational respondent’s”. The error is corrected.
Dated at Toronto, this 16th day of July, 2013.
“Signed by”
Douglas Sanderson
Vice-chair