McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 1663

Human Rights Tribunal of Ontario

Between:

Mary McCarthy Applicant

-and-

Kenny Tan Pharmacy Inc. Respondent

Interim Decision

Adjudicator: Ken Bhattacharjee Date: October 2, 2013 Citation: 2013 HRTO 1663 Indexed as: McCarthy v. Kenny Tan Pharmacy Inc.

Interim Decision

1The hearing of the merits of the Application took place on September 19, 2013. The purpose of this Interim Decision is to order the applicant to produce the receipt that she claims to have in her possession, and to provide further orders and directions to the parties depending on whether or not the applicant produces the receipt.

2The applicant, who identifies as African Canadian, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), which alleged that the respondent discriminated against her with respect to services and facilities because of her race and colour. Specifically, she alleged that a staff person in a Shoppers Drug Mart store subjected her to racial profiling and discrimination by aggressively and rudely demanding that she open her backpack, looking inside her backpack, and walking away without apologizing.

3The respondent filed a Response, which denied the allegation of racial profiling and discrimination. The respondent stated that a store employee approached the applicant and asked to see the contents of her purse because of the applicant's behaviour (she appeared to be crouching down, taking an item from the store shelf, and putting the item in her purse), not because of her race and colour. The respondent stated that the employee was polite, courteous and respectful to the applicant.

4As the parties are aware, at the hearing, there was a dispute between the parties as to when the alleged incident occurred.

5The applicant provided the respondent with notice well in advance of the hearing that her position is that the alleged incident occurred between 10:10 and 10:29 p.m. on May 22, 2011 when the store was open, and that she has a receipt to prove it. However, the applicant did not produce the receipt in advance of the hearing or at the hearing.

6The respondent, on the other hand, did not dispute the applicant's position on this matter prior to the hearing and when it cross-examined her at the hearing, it did not bring to her attention that its witnesses would be disputing her position. However, when the respondent called its witnesses, its main witness testified that the alleged incident occurred shortly after midnight on May 23, 2011 when the store was closed.

7In her reply evidence, the applicant stated that her failure to produce the receipt was an oversight, but that she has it at home in a binder. Although the respondent appeared to have breached the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), which requires a party who intends to impeach an opponent's witnesses to direct the witnesses' attention to that fact by asking him or her appropriate questions in cross-examination, the applicant (who was represented by counsel) did not submit that the respondent's witnesses' testimony on this point was inadmissible or offer to produce the receipt.

8The latter part of the hearing was somewhat rushed because the Tribunal and the parties all wanted to complete the hearing in the one allocated day. In retrospect, my view is that more time should have been allocated to deal with this issue.

9Racial discrimination cases are notoriously difficult to decide, and whatever the decision is, it will have a significant impact on the parties. As the Ontario Court of Appeal recently pointed out in General Motors of Canada Limited v. Johnson, 2013 ONCA 502 at para. 4:

An allegation of discriminatory treatment… due to racism is a serious claim that implicates the reputational… interests of the claimant, as well as those of the alleged perpetrators. It can also affect the dignity, self-worth and health of both the alleged victim and those accused of racist conduct. An allegation of this type can reverberate for many years after the incident or incidents in question, with potentially long-term consequences for all concerned.

10It appears that either the applicant or the respondent's main witness is not being truthful about the time that the alleged incident occurred. Furthermore, although it is of concern to me that the respondent did not dispute the applicant's position on the time of the alleged incident until late in the hearing, it is of equal concern to me that the applicant failed to produce the receipt that she claims to have in her possession prior to the hearing, and then failed to offer to produce the receipt when the time discrepancy issue arouse at the hearing.

11I appreciate that the parties have different views about whether the time discrepancy is relevant (the applicant submitted that the time discrepancy is relevant, while the respondent submitted that it is not), but when I make my decision it may end up being relevant, and I am troubled by the fact that the only piece of extrinsic evidence that may assist me in determining when the alleged incident occurred is not before me.

12Sections 40 and 41 of the Code provide the Tribunal shall dispose of applications by adopting procedures and practices, including alternatives to traditional adjudicative or adversarial procedures, which offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications before it. Rule 1.7(p) of the Tribunal's Rules of Procedure provides that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may require a person to produce any document. I am therefore ordering the applicant to produce the receipt that she claims to have in her possession. Within one week of the date of this Interim Decision, the applicant shall deliver to the respondent and file with the Tribunal a copy of the receipt.

13If the applicant fails to produce the receipt, the parties shall provide written submissions on the failure to produce, including whether the Tribunal should draw an adverse inference against the applicant. Within three weeks of the date of this Interim Decision, the respondent shall deliver to the applicant and file with the Tribunal submissions addressing this issue. Within five weeks of the date of this Interim Decision, the applicant shall deliver to the respondent and file with the Tribunal submissions in response. Within six weeks of the date of this Interim Decision, the respondent shall deliver to the applicant and file with the Tribunal submissions in reply.

14If the applicant produces the receipt, the Tribunal will provide further directions to the parties on hearing further evidence (including recalling witnesses) and submissions from them on whether the receipt should be admitted as evidence, and if it is, how much weight should be given to it.

15The Tribunal makes the following orders and directions:

1. Within one week of the date of this Interim Decision, the applicant shall deliver to the respondent and file with the Tribunal a copy of the receipt that she claims to have in her possession.

2. If the applicant fails to produce the receipt, within three weeks of the date of this Interim Decision, the respondent shall deliver to the applicant and file with the Tribunal written submissions on the failure to produce, which, along with any other submissions, should address whether the Tribunal should draw an adverse inference against the applicant.

3. Within five weeks of the date of this Interim Decision, the applicant shall deliver to the respondent and file with the Tribunal submissions in response.

4. Within six weeks of the date of this Interim Decision, the respondent shall deliver to the applicant and file with the Tribunal submissions in reply.

5. If the applicant produces the receipt, the Tribunal will provide further directions to the parties on hearing further evidence (including recalling witnesses) and submissions from them on whether the receipt should be admitted as evidence, and if it is, how much weight should be given to it.