HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Roland Lamoureux
Applicant
-and-
Grumblers Inc.
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Lamoureux v. Grumblers Inc.
APPEARANCES
Roland Lamoureux, Applicant
Bruce Best, Counsel
Grumblers Inc., Respondent
Donald Kirkwood, Representative
Introduction
1The applicant and his friend Trudy Upchan liked to go to a bar called Grumblers in Sudbury run by the respondent. They went there to dance for a number of years, until an incident in early 2008 when Ms. Upchan was ejected from the bar and told never to come back.
2They did not return until July 29, 2010, thinking that Grumblers would no longer enforce the ban it had imposed on Ms. Upchan more than two years earlier. They were wrong. Shortly after entering the bar Ms. Upchan was asked to leave. The applicant stood up for her and demanded to know why. A confrontation ensued and the applicant was also asked to leave. Both he and Ms. Upchan left and the applicant was told that he was now also barred from entering Grumblers.
3The applicant alleges that the decision by the respondent to bar Ms. Upchan in 2008 was discriminatory because it arose out of the respondent’s failure to accommodate a disability she has. He argues that what follows from this is that the decision by the respondent to refuse admission to Ms. Upchan in July of 2010 was also discriminatory, as it flowed directly from the respondent’s initial discriminatory action. Finally, he maintains that he was only removed from the bar because he stood up for her and that this too was discriminatory. He filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He alleges discrimination with respect to the provision of services because of his association with Ms. Upchan, a person identified by a prohibited ground of discrimination.
4The respondent denies that it discriminated against Ms. Upchan when it barred her in 2008. It claims that it did so not because of her disability, but because she was a nuisance who consistently made life difficult for staff and other customers. It maintains that because its initial decision to bar Ms. Upchan was not discriminatory, the acts that flow from that decision – including barring the applicant – were also non-discriminatory.
5The hearing of this Application took place on September 10 and 11, 2013. The applicant and Trudy Upchan testified. The respondent called three employees of Grumblers: Ariell Hall, who is a bartender; Dino Tantalo, who is a cook; and Cindy Yaworsky, a waitress. The owner of Grumblers, Donald Kirkwood, also gave evidence briefly.
6I agree with the respondent that its reasons for barring Trudy Upchan in 2008 were not discriminatory. From this I have concluded that its subsequent actions in maintaining the ban in 2010 and in then barring the applicant were also not violations of the Code. The result is that the Application is dismissed. The reasoning below explains these conclusions.
what are the issues in this application?
7There are two aspects of this Application that define what issues need to be determined here. One is that the Application is based on an allegation of a breach of s.12 of the Code, which prohibits discrimination on the basis of association.
8The Tribunal deals with relatively few cases that are founded solely on an allegation of discrimination by association. It is clear that one of the purposes of s.12 is to extend the protection of the Code to persons who may not be members of a Code-protected group but who nonetheless speak out or act against discrimination on behalf of others who may be discriminated against (see for example: Barclay v. Royal Canadian Legion, Branch 12 (No.2) (1997), 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486 (Ont. Bd. Inq.)). This is what the applicant alleges took place in this case.
9The applicant has a disability. When he filed his Application he alleged discrimination on the basis of his own disabilities, on the basis of his association with Trudy Upchan and on the basis of reprisal. But the only ground of discrimination that he advanced at the hearing was his association with Ms. Upchan. The applicant’s disabilities are therefore only relevant to the issues in this case to the extent that, because of his own experiences as a disabled person, he is sensitive to the importance of accommodating disabilities and he will stand up against discrimination on the basis of disability.
10The second aspect is that, on the particular facts of this case, a determination of whether the applicant was discriminated against by association in 2010 depends on whether the respondent’s decision to bar Ms. Upchan from Grumblers more than two years earlier, in 2008, was discriminatory.
11Accordingly, I need to decide the following:
Was Ms. Upchan disabled?
If so, was her disability a factor in the respondent’s decision to bar her from Grumblers in 2008?
If so, was it also a factor in the respondent’s decision to require her to leave its premises on July 29, 2010?
If so, did the respondent breach s.12 of the Code when it required the applicant to also leave its premises on that day because he intervened on Ms. Upchan’s behalf?
12A determination of the second issue, why Ms. Upchan was barred from Grumblers in 2008, has a significant impact on how the subsequent issues are assessed. The majority of this Decision is devoted to dealing with that issue.
13All of the above issues depend on an assessment of the credibility and reliability of the two conflicting accounts put forward by the parties. In assessing credibility, the Tribunal often cites a statement of the law from Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 356-57. In that excerpt the court emphasises that an assessment of credibility depends on more than just deciding whether a witness gave the appearance of telling the truth when testifying. Its analysis on this issue is summarised in the following sentence:
In short, the real test of the truth of the story of a 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.
14The distinction between the credibility and the reliability of a witness is explained by the Ontario Court of Appeal in the following passage from 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.
15Before leaving the question of what is at issue in this Application, I think it is helpful to also be clear about what is not at issue. Although the evidence touches on the frequent complaints made by Ms. Upchan to the staff at Grumblers, the applicant does not allege that the respondent breached the Code by failing to accommodate her disability in dealing with her numerous concerns. The applicant’s theory of the case is that the breach of the Code originated in a single incident (when it barred her from Grumblers in 2008) and that the respondent’s action in that incident tainted its subsequent enforcement of the ban in 2010 and its attendant decision to also bar the applicant at that time.
16It is also important to emphasise that much of the evidence focused on Ms. Upchan’s behaviour and the respondent’s assertions that she was consistently rude to the respondent’s staff. As the applicant correctly argued, a person does not lose the protection of the Code simply because they formulate their objections to discrimination or requests for accommodation in a way that is rude or obnoxious (see: Norrena v. Primary Response Inc., 2013 HRTO 1175). However, as I explain below, I am not satisfied that Ms. Upchan was actually seeking to advance her rights under the Code in many of the dealings she had with staff, nor am I satisfied that any of her Code-related accommodation requests were a factor in the respondent’s decision to ban her.
Was Ms. Upchan disabled?
17Ms. Upchan is hypersensitive to exposure to a broad range of chemicals, including but not limited to chlorine, ammonia, gasoline, oil and diesel. Her evidence is that exposure to fumes from these substances can cause a range of debilitating symptoms that include extreme fatigue, pain, anaphylactic shock and severe breathing difficulties. She testified that she has had this disability for many years and has learned over time to manage it without the use of drugs or medical intervention. Her approach is to anticipate and avoid exposure.
18She devotes much of her life to promoting the public understanding of hypoallergenic conditions. She does this so that people can appreciate the very severe impacts that exposure to fumes and substances can have on persons who are hypoallergenic. This is not simply for her own benefit, but for the benefit of others who are similarly disabled but may be afraid to advocate for themselves.
19On a personal level this includes telling the staff of any restaurant, bar or establishment open to the public about her condition and asking them to make her aware of any risks of exposure to the triggers of her disability. She states that her primary purpose in doing this is not to seek accommodation, but rather to make her disability understood and to enable her to decide whether to enter the establishment at all, or to enter it and then leave if staff decide to use any products that would trigger a reaction. She maintains that she is never aggressive in her requests. She carries a gas mask with her whenever she leaves her apartment and will put it on if she feels that she risks breathing in the fumes she is sensitive to. She also uses diet and rest to manage her condition.
20No medical evidence was introduced to support her testimony. However, the applicant produced a newspaper article about her and how she manages her disability. That article long pre-dates this Application and includes statements from her about her condition that are consistent with the evidence she gave at the hearing about her disability. The respondent did not challenge her testimony about her condition. As her evidence on this point is uncontradicted, and is supported by her earlier statements in the newspaper article, I accept that she has a disability within the meaning of s.10(1)(a) of the Code.
why was Ms. upchan barred from grumblers in 2008?
21The applicant’s theory as to why the respondent barred Ms. Upchan consists of the following three elements:
That on January 3, 2008 Ms. Upchan was deliberately exposed to bleach fumes by the respondent’s staff, and that this caused her to leave Grumblers;
That as a result of this incident complaints were made to the municipal public health department; and
Because the public health department then went and inspected Grumblers, the respondent decided to bar Ms. Upchan as a reprisal.
22Set out below is a description of the context prior to 2008. What then follows is an analysis of the evidence in relation to these three elements of the applicant’s theory.
The context – the applicant and Ms. Upchan were frequent patrons at Grumblers
23Ms. Upchan and the applicant have been good friends for a number of years. The applicant testified that as they both have disabilities, each understands the difficulties the other faces and they are supportive of one another. Ms. Upchan helped the applicant learn how to cross-country ski. Their friendship is also founded on the fact that they like to dance. They like jiving. That is why they went to Grumblers, sometimes together and sometimes separately. They would meet friends there.
24Prior to being barred from Grumblers, Ms. Upchan had been going there on a regular basis since at least 2005, possibly earlier. She would frequently go on Thursday nights, and it is clear from a letter she wrote to the owner, Mr. Kirkwood, in 2006 that she would also go there on the weekends.
25From Sunday through Wednesday night Grumblers provides dining and bar services to patrons, but from Thursday through Saturday a number of the tables are removed after 9:00 p.m. and the floor is cleaned so that patrons can dance. The music is a mix of old school rock and roll from the 1950’s and ‘60’s and current popular (Top 40) hits played by a disc jockey.
26Ms. Upchan testified that the staff at Grumblers all knew of her disability. She states that she made this known to them and that her disability was regularly accommodated. Ms. Upchan did not provide specific examples of how it was accommodated, except to refer to one incident that occurred some time before June of 2006, when she felt symptoms as a result of the air conditioning being shut off. She testified that she raised this with Mr. Kirkwood and he intervened to sort that problem out. This is consistent with a letter she wrote to Mr. Kirkwood on June 14, 2006. That letter reads:
Dear Don Kirkwood:
I hope and trust that you will not reveal my name to staff as I do not wish to create any new enemies. Although I have very severe allergies and health issues, for the past several years when in Sudbury I have enjoyed dancing at your establishment The staff have been very kind and the one time I talked to you having gotten sick because the air conditioner had been shut off – you assured me that was not policy and that I never had a problem except but one since.
However; I moved to Sudbury full time in December and the joy has been that there are regulars who love to dance and jive as much as I do…always. Suddenly, two weeks ago, after about an hour the music format changed to RAP! And by 11:30 everyone I knew left in a huff. I hear that others besides me complained too? Anyhow, I know you are never there at night and perhaps this new Rap yuk stuff was not your decision. God knows I hope not!
All the years I was away I could come into town, and find people I knew at Grumblers and have a great time. I for one will face a sad and lonely summer if RAP takes over. Once I was a professional dancer and frankly rap is crap, enjoyed by teens and people who are tone deaf and cannot dance…Your place was the only place in town that I could be gone months even a year and find tons of people still there that I knew. I hope you will consider keeping us oldies and regulars by barring rap altogether and get back to the good stuff, like jive and 50’s 60’s at least on Thursday if not Friday or Saturday.
I enclose a bit of my media so you can appreciate just how much your establishment as meant to me and several like me.
Thank you for the good years I had and hopefully years to come.
[sic]
27Ms. Upchan said that although she had sent this letter to Mr. Kirkwood, the disc jockey at Grumblers had given the letter back to her and had accused her of trying to get him fired by writing it. She denied having any such intention.
28According to Ms. Upchan, apart from the incident she mentions with the air conditioner, she had no problems in having her disability accommodated at Grumblers until January of 2008. She also emphasised that she had no problems with the staff at Grumblers. When challenged by Mr. Kirkwood on this point she denied that she is confrontational.
Ms. Upchan is exposed to bleach fumes on January 3, 2008
29On that day Ms. Upchan and the applicant went to Grumblers together. There was a new doorman whom she did not recognise. She introduced herself to him and asked him to let her know if restaurant staff were going to use bleach to clean the floor when preparing it for dancing, as she would leave the bar and then come back later so as to avoid the fumes from the mopping solution.
30She states that the doorman agreed to do this, but after clearing the tables and chairs away, he suddenly appeared directly in front of her with a mop and bucket. She says that she instantly began to have an adverse reaction from the bleach fumes coming from the bucket and mop and asked him why he was mopping in front of her. She maintains that he grinned at her and said “That’s the law”. Ms. Upchan states that the effect on her was so severe that she had to leave immediately, but could not walk out alone. The applicant helped her leave and they went to Tim Horton’s for coffee. She testified that she drinks coffee when she has what she described as an anaphylactic reaction, because coffee stimulates the flow of adrenaline and helps her recover. They did not return to Grumblers that night.
31Ms. Upchan kept a diary and a page for the month of January was introduced into evidence. The entries are not detailed as there is limited space on the page, but they record events in her life and focus mostly on how she was feeling from day to day. The entry for January 3 is more detailed than other entries and states:
Grumblers Javex sick 4 days convultions Rolly carried me out Immune system Down Legs Weak + Pain on + off Took me until April to get well [sic]
32The applicant testified about this incident. Initially he said that about 8-12 weeks before the incident he noticed that Grumblers had started using more bleach in its mopping solution. He has no particular sensitivity to bleach but he felt stinging in his eyes. Later in his evidence he said that the increased use of bleach began a month before the incident, or perhaps 8-10 days before it. He said that the disc jockey was also annoyed by the use of bleach, but then indicated that he had only learned of the disc jockey’s concern from Ms. Upchan.
33As to what happened on January 3 itself, the applicant’s evidence is consistent with Ms. Upchan’s. He says that she asked the doorman to let her know if the floor would be mopped with bleach so that she could leave if this happened. Although the doorman agreed to this, he did the opposite by dropping the full pail directly in front of Ms. Upchan and starting to mop. The applicant described this as deliberate, as if the doorman intended to do Ms. Upchan harm. She immediately had an adverse reaction and he had to help her leave the bar. They went to Tim Horton’s and did not return.
34Neither Ariell Hall nor Cindy Yaworsky could recall the January 3 incident and the respondent called no other oral evidence about it. In a letter that Donald Kirkwood wrote to applicant’s counsel on April 11, 2012, Mr. Kirkwood denies that Grumblers had a doorman working on Thursday nights in 2008. The letter also states that on dance nights the floors were swept but were never washed until the following morning. Beyond that, the respondent simply indicated that it had no knowledge of the events of January 3, 2008.
35Although the applicant corroborated Ms. Upchan’s evidence about the events of January 3, I find that certain aspects of his testimony in relation to this incident were not credible. The thrust of the applicant’s testimony was that it was not just Ms. Upchan who was affected and complained, but that others, including himself, were affected by the respondent’s use of strong bleach solution.
36If accepted, this evidence could support a theory that the making of a number of complaints by different customers amounted to enough of a problem for the respondent that it retaliated by barring Ms. Upchan.
37The applicant first maintained that in the 8-12 weeks leading up to January 3, the respondent had been using a much stronger solution of bleach. This caused his eyes to sting even though he has no particular sensitivity to bleach. He said that it was also bothering the disc jockey. He then changed his evidence to say that the respondent had increased the strength of the bleach solution about ten days before the January 3 incident.
38If this were the case (regardless of whether it went on for weeks or days) then, based on Ms. Upchan’s description of her hypersensitivity to bleach, she would not only have been aware of this, but it would have triggered a far more severe reaction in her than it did in the applicant. At the very least it would have caused her enough discomfort not to go to Grumblers in the period when the respondent was said to be using a stronger bleach solution. Yet her evidence is that the only time she encountered a problem with the respondent’s use of bleach was on January 3.
39The applicant states that he did not complain about the use of bleach to the respondent even though it had been going on for some time and had affected him directly (as well as affecting Ms. Upchan and other guests). He also stated that it did not occur to him to call the municipal health department prior to the January 3 incident.
40The inconsistency of his testimony with that of Ms. Upchan, his own uncertainty about how long the respondent used concentrated bleach, and the fact nothing else in the evidence supports his account leads me to conclude that he is not credible when he states that the respondent had regularly used a concentrated bleach solution in the time before January 3.
41I accept that Ms. Upchan was exposed to fumes from a bleach solution on that day and that this caused her to leave Grumblers. Her evidence is uncontradicted and is supported by her diary entry for that date. Given the nature of her disability, it makes sense in the circumstances that she would experience a reaction that others, who are not hypersensitive, would not.
Someone then complains to the Sudbury Public Health Department
42Because of the severity of the reaction she suffered and because the doorman had told her that the law required him to mop the floor, Ms. Upchan testified that she called the Sudbury Public Health Department shortly after this incident to ask whether this was true. The health inspector, Rachel O’Donnell, told her that there was no legal requirement to use bleach in mopping the floor but that the bar was entitled to do so.
43During that call Rachel O’Donnell offered to contact Grumblers to inquire about the issue. Ms. Upchan agreed to this but says that it was not her intention at the time to complain and that, with hindsight, she should not have agreed to Ms. O’Donnell intervening.
44The applicant said that he also called the health department to complain about Grumblers’ use of bleach that night, and was told that six other complaints had been received by the department. On cross-examination he modified this to say that Ms. Upchan, rather than the health department, had told him that there had been six complaints.
45The respondent does not dispute that someone made a complaint to the health department. This was acknowledged by Mr. Kirkwood in his testimony and in his letter of April 11, 2012. The question of who made the complaint, whether there were complaints by more than one person, what action was taken by the department and when it was taken are all less clear. This is because the evidence given by both parties on this point was vague and neither party introduced evidence from the health department that might have shed light on this issue.
46The applicant’s testimony about the call he made was vague. He could not recall whom he spoke to or what was said except that he was told the municipality would look into his concern. While he claimed there were six complaints, he could not recall who the other complainants were. He later explained that he only knew of five other complaints because Ms. Upchan had told him so. By contrast, she made no mention of the applicant or anyone else complaining.
47Ms. Upchan’s account of the complaint is more detailed than the applicant’s, in that she recalled whom she spoke with and what was said. She described what the health inspector told her and that the inspector offered to call Mr. Kirkwood.
48The nature of the relationship between the applicant and Ms. Upchan is that they are supportive of one another, they would see each other often and would frequently meet at Grumblers. In those circumstances I find it difficult to believe that they would not have a similar recollection of whether anyone other than Ms. Upchan complained. In the absence of any evidence from the health department as to how many complaints it received, and given the lack of detail in the applicant’s account when contrasted with Ms. Upchan’s, I find that it was more likely than not that only one call was made to the health department and that Ms. Upchan made it.
Ms. Upchan is then barred from Grumblers
The evidence about why she is barred
49Some weeks after the January 3 incident Ms. Upchan went back to Grumblers, without the applicant, and claims she was told by Cindy Yaworsky that she was barred for life. She did not ask why she was barred or say anything else to Cindy Yaworsky at that time. She assumed it was because she had called the health department and that it in turn had called Grumblers. Her testimony about her assumption is consistent with the notes at the top of the page of her calendar which state:
Rachel Health Insp. Can do Nothing No Rules Got me Barred [sic]
50Ms. Upchan testified that after being informed of the ban she called Rachel O’Donnell and asked her to call Mr. Kirkwood to apologise and explain that it was not her [Ms. Upchan’s] intent to complain. Rachel O’Donnell told her that she would not call Mr. Kirkwood. She testified that prior to this incident she had not experienced a problem at Grumblers due to its use of bleach.
51The applicant said that he learned from Ms. Upchan that she had been barred from Grumblers for having complained to the public health department. However, at another point in his evidence he maintained that neither he nor Ms. Upchan knew why she had been banned. The applicant was asked whether he had ever seen Ms. Upchan being rude or obnoxious toward the staff at Grumblers, and he said that he had never witnessed such behaviour. But later in his evidence he stated that he thought that she had been banned because “she and Cindy [Yaworsky] had a battle going on…I don’t know what it was about…Trudy can be aggressive and Cindy can too…I don’t know what it was about.”
52He testified that Ms. Upchan is aggressive and that it is her character not to let anyone “step on her toes”. He reaffirmed that he had never seen her being aggressive at Grumblers, but had seen it elsewhere, such as at the Legion when people had been insulting about her disability.
53Ariell Hall has been a bartender at Grumblers for the past 13 years. She does not usually work Thursdays, but knows Ms. Upchan from her frequent attendance at Grumblers on Friday and Saturday nights in the period from 2004-08.
54She testified that Ms. Upchan had told her about her disability and that she would regularly accommodate requests by Ms. Upchan regarding the drinks she purchased, such as additionally rinsing a glass before providing it to Ms. Upchan. She emphasised that she is in the business of customer service and that it is normal to respond to the wishes of customers. Where customers have allergies or sensitivities these are accommodated, as this is what is expected in the restaurant and bar business.
55Ms. Hall testified that Ms. Upchan was an extremely difficult and demanding customer. Whenever Ms. Upchan came into Grumblers she would complain. She would scold staff in front of other customers and staff. This was demeaning and stressful.
56Although she was a regular customer at Grumblers, she would make requests about how she was to be served that were inconsistent and unpredictable. Ms. Hall gave as an example that Ms. Upchan would one day order water and specify that it was to be served without ice (the ice cubes at Grumblers are made with chlorinated tap water, to which Ms. Upchan is very sensitive). The next time she ordered water it would be provided without ice but she would be berated by Ms. Upchan for having left the ice out. Only in scolding Ms. Hall would she make it clear that this time she was not buying the water for herself but for a friend.
57Some of Ms. Upchan’s complaints had nothing to do with her disability, such as complaining about being given one drinking straw rather than two when ordering a soft drink.
58It was impossible for Ms. Hall to anticipate how to serve Ms. Upchan because her demands were capricious and changed from one day to the next.
59Many of Ms. Upchan’s complaints relating to her disability were ones which also had an impact on other customers and on the general operation of the business. Ms. Upchan would complain about the cologne or perfume worn by other customers or the fact that a customer would smell of cigarette or cigar smoke after returning from smoking outside on the patio. She would complain about the smell caused by customers ordering chicken wings. She would complain about the smell of bleach left by the mopping of the floors. She would repeat these complaints over and over.
60Just as the complaints were repeated, so were the answers. Ms. Hall testified that it was consistently explained to Ms. Upchan, by herself or by other staff, that Grumblers would not stop serving chicken wings or prohibit customers from wearing scent or smoking outside. She stated that she tried to engage Ms. Upchan in a discussion about her disability because she wanted to find a way to bring an end to Ms. Upchan’s repetitive complaints about matters that Grumblers was not prepared to accommodate. Ms. Upchan would not engage in a discussion, and simply gave her a snide look and walked away.
61The staff at Grumblers found dealing with Ms. Upchan stressful. Ms. Hall described her as being antagonistic “to the point of being offensive and exhausting”. She failed to understand why Ms. Upchan kept coming back to Grumblers over a period of years if she found each visit to be a cause for complaint. Ms. Hall stated that she complained several times to managers at Grumblers about having to deal with Ms. Upchan, and was always told to be patient.
62She recalled the evening when Grumblers decided to bar Ms. Upchan. This was a decision taken by Ryan Kirkwood, the manager, as a result of staff complaints about Ms. Upchan over the preceding two years. Ms. Hall stated that on the evening that she was barred Ms. Upchan had complained to her about the service of a drink and about the smell of chicken wings. She said that she told Ms. Upchan that she could do something about the drink but not about what other customers chose to eat. She said that Ms. Upchan asked to speak to the manager. When Ryan Kirkwood came to speak to her, she also complained about the smell of the floor. Ms. Hall overheard this part of the conversation but not the rest. After the conversation Ryan Kirkwood told her and the other staff that Ms. Upchan was barred from Grumblers.
63Cindy Yaworsky has worked at Grumblers as a waitress since 2006. She testified that Ms. Upchan was a regular customer on the nights there was dancing, and could come in as frequently as three nights in a week. Ms. Upchan constantly complained about the glasses drinks were served in, the ice and straws, the smell of cleaning products, food and the smell of smoke coming from other customers.
64Ms. Yaworsky testified that she was never told by Ms. Upchan that she had allergies or hypersensitivities. She assumed this was the case because Ms. Upchan brought a gas mask with her when she came to Grumblers. She believed that Ms. Upchan’s requests were accommodated whenever the staff felt that it could. She could not recall a time when this did not happen and said that these accommodations were different from the requests Ms. Upchan made that would affect other customers, such as changing what was on the menu.
65She testified that when she explained to Ms. Upchan that she could do nothing about such matters as the smell of customers who had smoked on the patio, Ms. Upchan would be rude and treat her as if she were an idiot.
66Although she found Ms. Upchan’s behaviour offensive, Ms. Yaworsky did not confront her about it, as she felt it would not be appropriate for a server to challenge a customer. Ms. Upchan’s requests were never communicated quietly or discreetly. She said that other customers were affected by Ms. Upchan’s behaviour because “they do not like to see people making a scene”. Other customers would ask her what the problem was and she would reassure them that nothing was wrong and that the issue was being dealt with.
67She testified that she did not want to serve Ms. Upchan because she knew that there would always be a problem. She felt harassed by Ms. Upchan on a weekly basis and complained to the managers at Grumblers about this.
68Ms. Yaworsky did not recall what led to Ms. Upchan being barred. She believed that the decision was taken because of staff concerns about her behaviour and not because she made requests for accommodation of her disability.
69Donald Kirkwood, the owner of Grumblers, testified. He had no direct dealings with Ms. Upchan but was well aware of staff concerns about her behaviour, as they sometimes complained directly to him. He did nothing about it except to tell staff to be patient and put up with it. Mr. Kirkwood said that the manager on duty has the authority to decide whether to bar a customer. This can happen often if the reason is that a customer has had too much to drink. In those cases the customer is asked to leave and cannot come back that night but will not be refused entry on the following day. In rarer cases the customer is barred because of their conduct, such as for violent behaviour, and the ban can be for life. He estimated that since buying Grumblers in 1995 there had been about ten instances where customers had been barred because of their conduct.
70He said that Ryan Kirkwood had the authority to bar Ms. Upchan and he did so because of how she behaved towards staff, not because she sought accommodation of her disability. He testified that he would have known about this the next day because staff are required to provide him with incident reports when customers are banned. When asked why no incident report was introduced into evidence in this case he then said that one had not been produced.
71Mr. Kirkwood could not recollect when the health department responded to Ms. Upchan’s complaint. He stated that he did not take issue with the fact that she complained, and his oral evidence on this point was consistent with a letter he wrote to the Tribunal on April 11, 2012 which reads in its relevant part:
We are aware of Trudi Upchan conditions and have tried to accommodate them. The air conditioners were either too hot or too cold. She did not like the chemicals we used. We would turn off the air conditioners then turn them back on when the other 200 people complained. We tried switching our cleaning product to Dustbane, so as not to cause her more allergies. This was not satisfactory and also made her sick. We then switched back to javex in water. Ms. Upchan called the Sudbury and District Health Board who investigated our cleaning regime and found it to be totally satisfactory. [sic]
72The letter goes on to state:
Trudi Upchan was barred for life because of her continuous rude and obnoxious behaviour to our staff.
73Mr. Kirkwood confirmed this assertion in his testimony. On cross-examination he denied that the decision to bar Ms. Upchan was triggered by the fact that she had complained to the health department. Someone from the health department came to look at the cleaning products used at Grumblers and indicated that there was no problem with the substances they were using. He saw nothing unusual about this, as inspectors come to Grumblers about every six weeks and will leave behind a report which indicates, if necessary, what the bar needs to do to comply with municipal health requirements.
Analysis of the evidence
74The applicant asserts that what led to Ms. Upchan being barred was a reprisal by the respondent for her having called the public health department about the use of bleach on January 3, 2008. The applicant’s version of events is that, but for this one incident, the respondent regularly accommodated Ms. Upchan’s disability and her relations with the staff were conflict-free.
75It is important to reiterate that the applicant does not allege that the respondent contravened the Code in failing to accommodate Ms. Upchan’s requests as to how she wanted to be served, nor does he allege the respondent contravened the Code when it told her that it would not accommodate her requests to stop serving chicken wings or prevent customers from wearing scent or smoking on its patio.
76While the applicant’s case is that a single incident – a complaint to the health department – triggered the barring of Ms. Upchan, the respondent’s account is that despite its efforts to accommodate Ms. Upchan she was constantly dissatisfied and her complaints were an ongoing source of tension with staff over years that culminated in a decision to bar her. The respondent maintains that her call to the health department had nothing to do with that decision.
77In order to determine that the respondent’s decision to bar Ms. Upchan was a reprisal, I need to find that the respondent’s action was an intentional retaliation because she sought to enforce her right under the Code to be free from discrimination based on disability (see Noble v. York University, 2010 HRTO 878 at para.31).
78There is no direct evidence to support this theory and so the applicant asks that I infer this to be so from the timing of: (1) the complaint by Ms. Upchan; (2) the resulting visit of the public health department and (3) the decision some weeks later to bar Ms. Upchan when she next appeared at Grumblers.
79What resulted from the call? The only direct evidence regarding a visit from the health department comes from Mr. Kirkwood. While he could not recall when the visit occurred, he did recall that nothing resulted from it that required the respondent to change the substances it used to clean the floor. Visits from the health department are a regular occurrence. The inspections can result in the respondent being told to make certain changes to comply with health requirements and the inspector usually leaves a report behind. He did not receive a report from the health inspector in connection with the visit that arose from Ms. Upchan’s complaint.
80The applicant could have sought, and possibly obtained, a record from the health department of its visit to Grumblers. He could also have sought a record of visits over a period of time if he wished to challenge the assertion that such visits were periodically regular events. At a minimum, a record of the specific visit in question, might have established when it occurred. Even though the applicant did not, I am prepared to assume that the visit followed shortly after the complaint by Ms. Upchan and that it took place before she was barred.
81However, I do not accept that she was barred because her complaint triggered a visit to Grumblers from the health department. First, I accept Mr. Kirkwood’s unchallenged evidence that the respondent regularly receives visits from the health department. While I do find it surprising that the health department manages a frequency of inspections every six weeks, whether they come that often or not, I accept that inspections are a regular part of the restaurant business.
82Second, although the visit in question was prompted by a complaint (as opposed to being a regular inspection), it caused the respondent no inconvenience or disruption as it was not required to change any of its practices as a result. The applicant did not contest this, as Ms. Upchan’s evidence is consistent with Mr. Kirkwood’s on this point. She said that no change came of her call. The fact that the visit from the health department had no impact on how the respondent ran its operation makes it less likely that it would have retaliated against Ms. Upchan than if it had been forced to make changes as a result of her complaint.
83Third, and most important, I accept the evidence of the respondent’s witnesses that Ms. Upchan was barred for a reason that is unrelated to her disability or the complaint she made, and that is because of the way she was in the habit of treating staff. This is explained below.
84Ms. Upchan’s evidence is that she had no conflicts with staff as she is not confrontational. She may not intend to be confrontational, but it seems to me that her behaviour generates conflict. In relation to her 2006 letter to Mr. Kirkwood she acknowledged that it created a perception by the disc jockey that she was trying to get him fired even though she had no such intention. Whether the letter was intended to do that or not is not something I need to decide. However, what is notable about the letter is its opening line:
I hope and trust that you will not reveal my name to staff as I do not wish to create any new enemies.
85This suggests that some tension already existed between her and some members of the respondent’s staff, and that she was aware of that tension.
86The applicant’s evidence also indicates that Ms. Upchan can be confrontational. He denied ever seeing her being rude or obnoxious toward staff at Grumblers, but he confirmed that she has an aggressive character. He also indicated there was an ongoing “battle” between Ms. Upchan and Ms. Yaworsky, which contradicts Ms. Upchan’s account of conflict-free relations between her and the respondent’s staff.
87The respondent’s witnesses who dealt with Ms. Upchan directly were Ms. Hall and Ms. Yaworsky. Mr. Don Kirkwood’s evidence was of little assistance on this point as he had no direct dealings with Ms. Upchan.
88Ms. Hall saw Ms. Upchan as arbitrary, capricious and insulting in her behaviour. I accept Ms. Hall’s evidence that while she found this frustrating, she unquestioningly met those requests that pertained to her direct service to Ms. Upchan, such as whether to do an extra rinse of her glass, serve her ice cubes or not, or give her two straws rather than one. I find her credible on this point because she was aware of Ms. Upchan’s disability, it was never suggested that she did not accommodate it and because it is a normal part of customer service in the restaurant business to accommodate customers with individual needs, such as avoiding exposure to allergens.
89I also accept her evidence that there were aspects of Ms. Upchan’s behaviour that caused her stress because they were arbitrary and unrelated to her disability, such as complaining about the number of drinking straws she received. I accept her evidence that she and other staff of the respondent had repeatedly explained to Ms. Upchan that Grumblers would not change its menu to get rid of chicken wings or would not prohibit smoking on its patio, but that this did not stop Ms. Upchan from complaining about matters that the respondent had told her it was not going to address.
90Ms. Yaworsky’s evidence about the nature and frequency of Ms. Upchan’s requests and the tone she used in dealing with staff was consistent with Ms. Hall’s. Ms. Hall stated that, as she tired of Ms. Upchan’s behaviour, she tried to engage her in a discussion about her disability that would set out once and for all which requests Grumblers would or would not accommodate. Ms. Yaworsky testified that she never tried to enter into any similar discussion with Ms. Upchan because she felt that it would be inappropriate and offensive for her, as a waitress, to raise the issue of a customer’s disability. Instead, Ms. Yaworsky complained to Grumblers’ managers about Ms. Upchan. I find her explanation for not confronting Ms. Upchan credible.
91The reasons I find the evidence of Ms. Hall and Ms. Yaworsky credible are as follows. They provided independent accounts of their dealings with Ms. Upchan over several years. The evidence each gave was detailed and spontaneous. Their accounts were consistent with each other.
92Neither Ms. Hall nor Ms. Yaworsky were challenged in cross-examination on their accounts of Ms. Upchan’s requests, how she behaved toward them or other staff, the impact of her behaviour on them or the fact that staff made repeated complaints to managers at Grumblers about her behaviour. Ms. Upchan was one customer among a great many that Ms. Hall and Ms. Yaworsky served over several years and there is nothing about their respective relationships to Ms. Upchan that gives them a motive not to be truthful in their evidence. In addition, their accounts of her behaviour are consistent with the applicant’s acknowledgement that Ms. Upchan has an aggressive streak in her character.
93In deciding why Ms. Upchan was barred from Grumblers, it is important to note that Ryan Kirkwood, the manager whom the respondent claims actually communicated that decision to Ms. Upchan, was not called as a witness.
94Ms. Upchan testified that it was Cindy Yaworsky who told her that she was barred for life. Ms. Yaworsky had no recollection of who barred Ms. Upchan, but she was adamant that it was not her. Ms. Hall and Mr. Don Kirkwood testified that it was Ryan Kirkwood.
95For the following reasons I find it more likely than not that Ryan Kirkwood told Ms. Upchan that she was barred. It is not disputed that he was the manager at the time. Mr. Don Kirkwood’s evidence is that managers have the authority to order the removal or barring of a customer, and that this responsibility would not be entrusted to a waitress such as Ms. Yaworsky. This accords with what are the normal responsibilities of a restaurant or bar manager. Finally, Ms. Hall’s evidence is that she asked Ryan Kirkwood to deal with Ms. Upchan when Ms. Upchan requested to speak with the manager after complaining about how her drink had been prepared and about the smell of chicken wings. She saw, but did not hear, the conversation between Ryan Kirkwood and Ms. Upchan take place and then Ryan Kirkwood told the staff that Ms. Upchan had been barred.
96The applicant argues that the respondent’s failure to call Ryan Kirkwood means that I should draw an adverse inference and conclude that the decision to bar Ms. Upchan was discriminatory. While the best evidence about why the respondent decided to bar Ms. Upchan and what she was told about that decision would have come from Ryan Kirkwood, in my view this is not a sufficient basis on which to conclude that Ms. Upchan’s disability was a factor in the decision to bar her.
97Drawing an adverse inference from the failure to call a witness is a discretionary decision. There are two reasons why I decline to do so here.
98First, to support the drawing of an adverse inference there must be some basis in the evidence that Ryan Kirkwood was available to testify and that it is more likely than not that his evidence about what he told Ms. Upchan would have been at odds with other evidence as to what he told Ms. Upchan.
99However, there is no other evidence about the content of that conversation. This is because Ms. Upchan’s evidence is that Cindy Yaworsky and not Ryan Kirkwood told her that she was barred. Moreover she testified that, on being informed by Ms. Yaworsky that she was barred, she was not told why and she also did not ask why. The applicant’s evidence about why Ms. Upchan was barred comes entirely from what he was told by Ms. Upchan. The only other evidence in relation to the conversation is from Ms. Hall, but she only saw the conversation taking place, she did not hear it.
100A second factor is the explanation the respondent offered for not calling Ryan Kirkwood. A precondition to the drawing of an adverse inference is not just that the party fails to call the available witness, but that it also fails to offer a satisfactory explanation for its failure to do so (see: J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, (2nd Ed. 1999) Butterworths, Canada Ltd., at para. 6.321).
101As is the case with many parties appearing before the tribunal – most often applicants, but some respondents as well - this respondent was not represented by counsel. Mr. Don Kirkwood does not have experience in litigation. When applicant’s counsel argued that an adverse inference be drawn from the failure of the respondent to call Ryan Kirkwood, Don Kirkwood submitted that he did not call him as a witness because he thought that the focus of this hearing would be on what took place when the applicant was barred from Grumblers in 2010, not what happened when Ms. Upchan was barred in 2008. Ryan Kirkwood was not present when the applicant was barred in 2010.
102If the respondent had been represented by counsel, who is expected to understand the fundamentals of the law of evidence, I might have been more inclined to view the failure to call Ryan Kirkwood as a tactic to shield him from cross-examination. However, I do not find the respondent’s explanation to be unreasonable, coming from a self-represented party with no legal training and given the particular circumstances of this case. This Application is somewhat unusual in that the applicant is not alleging direct discrimination, but rather discrimination by association. In addition, the factual foundation of the discrimination which the applicant alleges occurred in 2010 depends - in large part - on findings related to events that took place more than 2 years earlier. In the particular circumstances of this case I do not consider that the respondent’s failure to call Ryan Kirkwood was a deliberate tactic aimed at avoiding scrutiny of its actions. For these reasons I will not draw an adverse inference from the failure of the respondent to call Ryan Kirkwood as a witness.
103Despite her dissatisfaction, Ms. Upchan kept coming back to Grumblers. This suggests to me that Ms. Upchan was more interested in making complaints than in actually having them addressed, knowing that Grumblers staff were constrained in how they could respond to the tone and manner in which she dealt with them. I conclude this because Ms. Upchan’s own evidence is that, apart from the January 3 incident, her disability was known to staff and was always accommodated at Grumblers. While she describes herself as not being confrontational, the other witnesses (including the applicant) describe her as having an aggressive character and having conflicts with the staff at Grumblers.
104What normally happens in a restaurant or bar when customers complain is that the staff try to deal with a complaint discreetly and without drawing the attention of other patrons to the problem. The reputation of a restaurant or bar depends, in part, on how responsive its staff are to customer concerns. In dealing with those concerns the staff are constrained in how they respond to complaints, whether or not the complaints are well-founded. It is normal for restaurant staff to act on the customers’ concerns, as opposed to debating the merits of a request with the customer. I find that Ms. Upchan exploited this and that her behaviour towards staff was bullying. Ultimately the patience of the staff at Grumblers wore out. After receiving many staff complaints about dealing with her, the respondent’s manager decided to bar her. Given its history of dealings with Ms. Upchan it is more likely than not that her disability was not a factor in the decision to bar her.
was Ms. Upchan’s disability a factor in the respondent’s decision to require her to leave its premises on July 29, 2010?
105Ms. Upchan testified that, although she knew she was barred from Grumblers indefinitely, she decided to go back there on July 29, 2010. Friends persuaded her that she should try to go back to the bar because other people who had been barred in the past had done so and had been let in without any problem. She thought that with the passage of time she could show up and be admitted like any other patron. She did not think to ask in advance for permission to return. She arranged to meet others at Grumblers that night.
106The applicant went with her. He had not been back to Grumblers since Ms. Upchan had been barred. This was because she was his dance partner and he felt that if she could not get in, then he would not go there either. He thought that it was worth trying to go back, as he believed that no one at the bar would stop them from entering because of an issue that had taken place more than two years earlier.
107Ms. Upchan testified that after they had joined their friends in the bar a waitress came to take their order. She went away and returned, telling Ms. Upchan that Cindy Yaworsky had told her that she could not be served and would have to leave Grumblers. She stated that the waitress was accompanied by a tall young man. Although Ms. Upchan indicated that she would leave, the applicant asked why she was barred. Both the waitress and the man who was with her said that they did not know why.
108Ms. Upchan testified that the applicant insisted on knowing why she was barred and what had started as a conversation now escalated into an argument. She maintains that a short, stocky man cut in between her and the applicant and pushed the applicant on the shoulder with the palm of his hand. At that point one of Ms. Upchan’s friends intervened and told the bar staff that the applicant has a disability and that they should stop the confrontation.
109The applicant’s evidence is consistent with Ms. Upchan’s. He added that when he was pushed by one of the staff, this was done in the hope that he would react with physical violence so that the staff would have an excuse to eject him. At one point during the confrontation, when he refused to leave, one of the staff asked the applicant if he was with Ms. Upchan. When he confirmed that he was, he was then told that he would also have to leave. The applicant concluded from this that he was being removed from Grumblers because of his association with Ms. Upchan and because he had questioned why she continued to be barred. The incident ended with the applicant and Ms. Upchan leaving the bar.
110There is no conflict between the evidence of both parties with respect to what started this incident. Ms. Yaworsky testified that when she saw Ms. Upchan enter the bar on July 29, she told the then manager, Matt Williams, that Ms. Upchan had come back despite being barred. She states that Matt Williams sent the doorman, Kevin Stradiano, to tell her to leave. He did so and the applicant objected. What started as a conversation became an argument. Ms. Yaworsky watched the confrontation from a distance of 20-25 feet and took no part in it.
111Dino Tantalo’s evidence is also that Ms. Yaworsky told the manager about Ms. Upchan being on the premises despite being barred and that the manager instructed the doorman to have her leave.
112Where the parties disagree is on whether any force was used during the confrontation. Ms. Yaworsky and Mr. Tantalo, who also observed the confrontation at a distance, both deny that a staff member pushed the applicant.
113The applicant contacted the municipal police force a week later. A one paragraph police report was filed at the hearing which gives the applicant’s account of events. His description at that time is consistent with his evidence at the hearing. The report indicates that the applicant wanted an apology from staff at the way he was treated. The police interviewed staff at Grumblers and concluded that they would take no further action. I infer from the report that the applicant raised the issue of discrimination by the respondent against Ms. Upchan because the report ends as follows:
Police contacted Mr. Roland Lamoureux on September 20th and advised him of the outcome of the investigation. He was also given information as to the proper agency to contact in regards to discrimination of his female friend. This concludes Police involvement in this matter.
114While there is a dispute as to what happened during the confrontation that led to the ejection of the applicant and Ms. Upchan, I do not need to decide whether the applicant was pushed by the respondent’s staff or not. The applicant does not argue that there was any independent act of discrimination during this encounter. Rather, he maintains that the respondent’s acts on July 29, 2010 are tainted by its discriminatory decision to bar Ms. Upchan in 2008.
115There is no evidence that the decision to eject Ms. Upchan on July 29, 2010 was for any reason other than that she had been barred in 2008 and had not been given permission to enter Grumblers since. The confrontation arose because she was at the bar despite the ban, and there is no evidence that anything was done or said by the respondent that would constitute discrimination independent of the 2008 decision to deny her admission to Grumblers.
116Having found that Ms. Upchan’s disability was not a factor in the respondent’s decision to ban her in 2008, I conclude that her disability was also not a factor when the respondent decided to maintain the ban in 2010.
did the respondent breach s.12 of the code when it required the applicant to leave because he intervened on Ms. Upchan’s behalf?
117Ms. Hall and Ms. Yaworsky both testified that they dealt with the applicant as a customer over a number of years. He was always quiet and pleasant to deal with. The applicant describes himself as quiet and non-confrontational. Although there are certain parts of his evidence noted above that I did not find credible, other aspects of his testimony were sincere efforts to recollect what had taken place.
118Given the evidence of others about the applicant’s disposition, the fact that he got into a confrontation on July 29 appears to have been out of character. I conclude that he did so because he felt strongly that what was going on was wrong. I accept that during that confrontation the applicant sincerely believed that the respondent’s acts were discriminatory and that because of this he decided to stand up for his friend.
119When asked by the respondent’s staff during the argument whether he was with Ms. Upchan, he confirmed that he was. This led to him being ejected as well. He is right in thinking that he was removed because of his association with Ms. Upchan.
120However, as outlined above, I do not find that the respondent’s actions in ejecting Ms. Upchan were discriminatory. It follows from this that although he was ejected because of his association with Ms. Upchan, the decision to eject him on July 29 was not tainted by discrimination. For these reasons the Application is dismissed.
order
121The Application is dismissed.
Dated at Toronto, this 26th day of November, 2013.
“Signed by”
Paul Aterman
Vice-chair