Forrest v. The Looks Beauty Salon & Beauty Supplies, 2013 HRTO 1803

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashton-Nicola Forrest Applicant

-and-

The Looks Beauty Salon & Beauty Supplies, Kate Nyarko and Samuel Nyarko Respondents

DECISION

Adjudicator: Dawn J. Kershaw Date: October 25, 2013 Citation: 2013 HRTO 1803 Indexed as: Forrest v. The Looks Beauty Salon & Beauty Supplies

APPEARANCES

Ashton-Nicola Forrest, Applicant Beth Walden, Counsel

The Looks Beauty Salon & Beauty Supplies, Kate Nyarko and Samuel Nyarko, Respondents No one appearing

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 services because of disability.

2The applicant alleges she was denied service at the corporate respondent, The Looks Beauty Salon & Beauty Supplies, by Samuel and Kate Nyarko (“the individual respondents”), because of her scleroderma.

3The corporate respondent filed a Response in which it admits that it denied service to the applicant because it was worried about a lawsuit if it applied chemicals to the applicant and she suffered an adverse reaction.

4The individual respondents were added as parties by an Interim Decision, 2013 HRTO 1504 dated September 6, 2013, but did not file any additional Response. The respondents did not attend the hearing. I am satisfied they received notice of the hearing.

legal principles

5The relevant provisions of the Code are set out in part as follows:

1. Every person has a right to equal treatment with respect to services […] without discrimination because of […] disability […]

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

decision

6I find that the respondents infringed the applicant’s right to equal treatment with respect to services because of her disability.

the facts

7The applicant and her counsel attended the hearing on October 4, 2013, and the applicant gave evidence. The applicant gave forthright, credible and consistent evidence, which I accept. As noted above, the respondents did not attend the hearing.

8The applicant has scleroderma with mobility restrictions that include an inability to wash her own hair because she has great difficulty raising her arms above her head. The applicant provided a doctor’s report and a Health Assessment Questionnaire that confirmed her restrictions. She has visible depigmentation of her skin.

9When the applicant moved to London, she had trouble finding a salon she liked. A friend who has the same condition recommended the corporate respondent. On March 16, 2012, the applicant went to the corporate respondent to have her hair washed and flat ironed, but was told she had to make an appointment, which she did for March 17, 2012 at 10 a.m.

10The applicant attended the hair salon on March 17, 2012. The individual respondents arrived at 10:30 a.m. and Mr. Nyarko advised the applicant that Ms. Nyarko would do her hair. The individual respondents then had what sounded to the applicant like an argument in another language for about 10 minutes, at which point Mr. Nyarko returned and asked the applicant about her skin. The applicant advised him that she has an autoimmune disease scleroderma that causes discolouration of her skin and affects her internal organs and range of motion.

11Mr. Nyarko asked the applicant where she used to get her hair done, and she told him she used a salon in Toronto before moving to London, and had tried another salon in London since but did not like the way they did her hair. Mr. Nyarko asked if she always went to the same salon and the applicant advised she usually did, but would go to another one if she had to.

12Mr. Nyarko showed the applicant the products they use, which she recognized as ones to which she had had no reaction in the past, and advised him of that. Mr. Nyarko told the applicant she would have to sign a waiver if they were going to do her hair because they were worried about her possible reaction to chemicals in the products. She agreed to sign the waiver, but he then told her that even if she signed it, they would not do her hair.

13The applicant left and sent a message to the friend who recommended the hair salon to ask if she had gone to the right place. After being assured that it was the right place, the applicant returned to with a photo of her friend and advised Ms. Nyarko that her friend has the same condition she has, has her hair done at the hair salon, never has to sign a waiver and has never been refused service. Ms. Nyarko recognized the applicant’s friend as a long-time client and told the applicant she would do the applicant’s hair on March 19, 2012. The applicant said she would check her calendar and call back to firm up the appointment, which she did.

14On March 19, 2012, the applicant attended the hair salon at 5:30 p.m. Ms. Nyarko was there alone watching television, and the applicant told her she was there for her appointment. Ms. Nyarko advised she knew nothing of the appointment and it must have been made for her by another woman who had not told her about it. The applicant asked if she would do her hair anyway and Ms. Nyarko refused.

15The applicant left the hair salon angry and confused, and feeling she had been treated less than human. For a long while after these incidents, the applicant felt very self-conscious about going to another hair salon because she did not know if they might react the same way.

16The applicant testified that the impact of the refusal was substantial because so many other aspects of her life already are very difficult and she feels that getting her hair washed should be easy.

17The applicant has help from personal support workers, but they are not usually able to assist with washing her hair because of time constraints and availability, and because the applicant does not have the right equipment at home, such as a reclining chair. The respondents’ denial of services to the applicant has had a serious impact on her ability to care for her needs.

18Since this incident, the applicant has travelled back to Toronto approximately every two weeks to get her hair washed because she is self-conscious about trying another salon in London, and because there are very few places in London with the expertise to do her hair as she prefers. Not having her hair done more than once every two weeks impacts on how she feels about herself, and she avoids going out.

analysis

19There was no dispute that the respondents were providing services as defined by s. 1 of the Code, and I am satisfied they were.

20I also am satisfied that the applicant’s condition constitutes a disability under s. 10(1) of the Code.

21The corporate respondent admitted it did not provide services to the applicant because of her disability. Therefore, I find that the respondents infringed the applicant’s rights under section 1 of the Code on March 16, 17 and 19, 2012 when it refused her services.

22Had the respondents chosen to participate in the hearing, they would have had the option of defending their actions under section 17 of the Code, as follows:

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

23However, given the respondents’ failure to attend the hearing, the respondents have raised no defence.

remedy

24The applicant requests both monetary and non-monetary remedies.

25Section 45.2(1) of the Code sets out the Tribunal’s remedial authority:

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:

1. 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.

2. 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.

3. 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.

Monetary Remedy

26The applicant requested an award of $10,000 as compensation for injury to dignity, feelings and self-respect.

27As the wording of s. 45.2(1)1 indicates, monetary awards under the Code are compensatory in nature and not punitive. The intention is that an applicant will be put back into the position he or she would have been in but for the discriminatory act. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ONSC), at para. 150.

28In Lane, above, the Divisional Court also says at para. 153:

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

29As is indicated in Lane there is no fixed formula for the Tribunal to follow to assess a monetary compensation award, at para. 157, there is no limit to the amount that can be awarded, and the quantum must not be set too low because that would “trivialize the social importance of the Code” at para. 152.

30In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated at paras. 51-54:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

…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…

The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. …

…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.

31In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed the factors to be considered in assessing an appropriate award for injury to dignity which include:

• humiliation experienced
• hurt feelings experienced
• loss of self-respect
• loss of dignity
• loss of self-esteem
• loss of confidence
• experience of victimization
• vulnerability
• seriousness, frequency and duration of the offensive treatment.

32The applicant submitted that the award for injury to dignity, feelings and self-respect in this case should be at the higher end of the range of damages. I was refered to other decisions involving denial of services on the basis of disability. In Thai v. Hing Loong Investments Ltd., 2011 HRTO 2227, the applicant was awarded $2500.00. The applicant had not experienced prolonged or repeated acts of discrimination and was not very dependent on this business. In Donnelly v. Spinz Coin Laundries, 2009 HRTO 754, the applicant was awarded $2500.00 after experiencing two incidents of discrimination. While she lacked access to another laundry facility close to her home the award was reduced because of her confrontational behaviour. In Boudreau v. Kingston Bazar, 2012 HRTO 393, an applicant was refused services in a store because of the presence of her guide dog. The Tribunal awarded the applicant $15,000.00 because, although a brief encounter, the applicant was publicly embarrassed and humiliated.

33I have considered these cases and find it appropriate to award the applicant $7500.00. Considering the Boudreau case, although the refusal of services in this case occurred in a public place, there was no evidence that anyone other than the individual respondents were present. The applicant, unlike in Donnelly, also did not establish her dependence on this salon as she had never used it before and it may not have been to her liking.

34However, the factors increasing the award to an amount greater than in Thai and Donnelly are:

• she suffered the emotional impact of being blatantly refused service twice, despite an assurance the respondents would provide her with services;
• she twice was refused services that turned an expectation of being able to take care of her personal hair hygiene needs into two wasted trips that ended in frustration and humiliation;
• she subsequently was self-conscious about attending another salon in case the reaction was the same as the respondents;
• she would not have had to feel that her disability caused her difficulty even with something as simple as trying to get a hair wash;
• she had to travel to Toronto to get her hair washed because she was so afraid of trying a new salon because of the treatment she received at the respondents.

Non-monetary Remedy

35The applicant asked for non-monetary remedies, and the Tribunal has the power to direct any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance.

36It is clear from the evidence that the respondents do not understand their obligations under the Code. I find it appropriate therefore that the individual respondents take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 60 days of this Decision. The individual respondents will provide the applicant with written confirmation that they have done so upon completion of the course.

37I also find it appropriate for the respondents to post Human Rights cards in central locations throughout the hair salon to promote future compliance with the Code within 30 days of the date of this Decision.

Joint and Several Liability of the Individual Respondents and the Corporate Respondent

38I turn next to the issue of the potential joint and several liability of the individual respondents and the corporate respondent. The Tribunal set out the principles dealing with this issue in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

e. Would any prejudice be caused to any party as a result of removing the personal respondent?

39Although Persaud, above, was decided in the context of a request to remove an individual respondent prior to the hearing, this Tribunal has also found the above principles may be applicable in deciding whether to impose individual liability. See Williams v. Children’s Aid Society of Toronto, 2011 HRTO 265, at para. 180.

40In this case, I find the respondents are jointly and severally liable to the applicant. Mr. and Ms. Nyarko were employees of the corporate respondent, but were the only employees. Each of them refused service to the applicant on separate occasions even after telling her they would provide service. This is not a case where there was an organizational practice or policy being followed by employees in the course of their employment, but instead were decisions made by the individual respondents to refuse the applicant service.

decision

41The Tribunal makes the following order:

a. The respondents shall pay to the applicant $7500.00 as compensation for injury to dignity, feelings and self-respect;

b. The respondents shall also pay to the applicant pre-judgement interest on the full amount due under paragraph a. above for the period from April 2, 2012 to the date of this Decision, calculated pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C. 43;

c. The respondents shall also pay to the applicant post-judgment interest from the date of this Decision, calculated pursuant to s. 129 of the Courts of Justice Act.

d. The respondents are jointly and severally liable for this award.

e. The individual respondents shall within 60 days of this Decision take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) and provide the applicant with written confirmation that they have done so upon completion of the training; and

f. Within 30 days of the date of this Decision, the respondents shall post Human Rights cards in central locations throughout the workplace to promote future compliance with the Code.