Stansens v. Jean-Claude Cayer Enterprises Ltd., 2013 HRTO 631

Human Rights Tribunal of Ontario

B E T W E E N:

Jean-Pierre Stansens Applicant

-and-

Jean-Claude Cayer Enterprises Ltd. Respondent

DECISION

Adjudicator: Paul Aterman Date: April 16, 2013 Citation: 2013 HRTO 631 Indexed as: Stansens v. Jean-Claude Cayer Enterprises Ltd.

APPEARANCES

Jean-Pierre Stansens, Applicant Self-represented

Jean-Claude Cayer Enterprises Ltd., Respondent Adam Plenkiewicz, Student-at-law

Introduction

1The applicant in this case wanted to buy a Milwaukee Cordless High Torque Impact Wrench. On April 14, 2012 he went online and placed an order for the tool with the respondent company. There was a problem with his order. An exchange of emails followed between the parties. It ended with the following message to the applicant from one of the respondent’s employees:

This is my last email, welcome to my email black list, enough time wasting with someone either too stupid to understand the business or too old to understand the concept of time…

2The applicant took exception to this and filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of services because of age.

3A bilingual hearing of this Application was held on March 18, 2013. Although the applicant understands French, he is not comfortable speaking it and was occasionally assisted by an interpreter. The applicant gave evidence. He also sought to introduce some documents, but I ruled these to be inadmissible for reasons which I explain later. The respondent provided evidence through two witnesses: Jean-Claude Cayer, owner and president of the respondent company, and Sylvain Cayer, the son of Jean-Claude Cayer and the respondent’s manager of sales and marketing. The respondent also filed a book of documents.

4For reasons that I have set out below, I conclude that the respondent discriminated against the applicant on the ground of his age.

Background

5Because the confrontation in this case took place through an exchange of emails and those emails were entered into evidence, there is no dispute about what happened. The dispute is about the conclusions to be drawn from the facts. I will now set out a summary of what took place.

The respondent’s business

6The respondent is a family business which Jean-Claude Cayer has built up over 25 years. It supplies generators, lawn and garden equipment and power tools and offers its products through in-person and online sales. It makes approximately 35,000 transactions annually and ships its products throughout Canada and internationally. It has grown to become Canada’s largest online dealer of Makita and Milwaukee brand power tools.

7Online sales now constitute 40% of the business. Three of the respondent’s 25 employees are dedicated to processing online sales. Sylvain Cayer is responsible for sales and marketing, both off- and online. His responsibilities also include managing customer service issues in relation to the online sales.

8As a result of the respondent’s success in the business, the three staff dedicated to online sales and customer service face an unrelenting volume of requests and inquiries. This includes providing quotes on the prices of products, processing orders and payments, dealing with inquiries about the status of orders and processing special orders for tools which the respondent does not keep in stock.

9Many of the online inquiries originate through the respondent’s presence as a vendor on the eBay website, while others originate through the respondent’s own website. Sylvain Cayer estimated that he would deal with somewhere between 115 and 135 online inquiries in a normal day.

10Online purchases are processed using software that Sylvain Cayer designed and built. To place an order a customer completes an online form which asks for the customer’s name, email address, telephone number and the customer’s billing address and shipping address. Each order is assigned a number by the system. Using a password provided by the respondent, a customer can track the progress of an order.

11The database is capable of being searched using a number of the data elements required when an order is placed. However, Jean-Claude Cayer’s instructions to employees are that when a customer inquires about an order, they are only to conduct a search using the order number. They are not to conduct a search using any other variables. He explained that searching by order number is most efficient and avoids confusion and lost time in trying to retrieve information. To illustrate this, he gave the example of a wife calling up to ask about her husband’s order and providing her name, but not his. He said this could lead the employee to waste time looking up an order under the name of a person who had not placed it.

The applicant places an order with the respondent

12The applicant is 56 years old. He retired in 2006. In 2012 he was treated for cancer and is recovering from it. In April of 2012 he decided to buy a torque wrench because he no longer has the strength to turn a wheel nut without the aid of a power tool. The applicant had purchased tools from the respondent in the past. He decided to place the order for this torque wrench with the respondent because he had been satisfied with his past purchases and the respondent was offering the tool at a reasonable price.

13On April 14 the applicant went online and placed his order, which was confirmed within minutes by a return email from the respondent. The number assigned to the order was 7283. Two days later the applicant sent an email inquiring when his order would be shipped to him. Two hours later Sylvain Cayer responded by email, stating that the item was out of stock and new stock was expected within 2-4 business days.

14The applicant waited, and then on April 30 sent an email to the respondent’s customer service inbox, again inquiring about his order. In his email he transposed two digits of the order number, writing 7823 instead of 7283. That afternoon Sylvain Cayer answered from the respondent’s webmaster email address with the following:

Hi,

#7823 is not a valid number.

Thank you

15The applicant wrote back to the webmaster address within minutes, providing the correct order number, and Sylvain Cayer responded (again from the webmaster address), saying that the respondent expected to ship the tool on the following day.

16This response crossed paths with an email which the applicant had sent, not to the respondent’s webmaster address, but to the customer service inbox. In that email the applicant acknowledges that he provided the wrong order number, and goes on to say:

I responded to Sylvain Cayer’s email wherein he simply indicated that 7823 is an invalid order number. Too bad he didn’t bother looking up my account info what with all the information I had to fill out to send the email. I thought that the email response might not reach him since it was addressed to webmaster so I filled out all of this again.

Sorry to bother you one more time and about the order number error.

17The next day Sylvain Cayer responded as follows:

Please note that we cannot do a search by name on orders has [sic] there is customers that cannot write their names correctly.

If you cannot understand that we are VERY busy and do not have time to extensive search when the customer cannot write the number correctly and then blames us for not doing more…

We are not going to search for 30 minutes on something that could end up with nothing at the end.

If you would like you can give me a call, I will be happy to explain how many customers make us search for their order that they think was placed on our website when it was never placed through our website…

18Things escalated further when the applicant wrote back that evening. The following excerpt is indicative of the tone:

Rest assured that as a simple customer that has so little understanding I could not possibly fathom how your website could ask for such specific information such as name and number and address etc. on the contact sheet but that this information doesn't allow you to search your records...simply amazing but most unfortunate!!

Sadly I must really be a complete idiot in that I wasn't even apparently capable of spelling my own name correctly. I owe you a most earnest apology to have created the possibility of taking up 30 minutes of your time as I have now noted that you are all so VERY busy.

19To which Sylvain Cayer responded the next day, May 2:

I am sorry that you have to resort to sarcastic measures.

I see that you are sarcastic about your response and I would be glad to invite you to take my job for 1 day, which I will pay you $1000 just to do my job for one day and when the day is done at midnight, you will understand why our website has the search functionality of searching by name, address and even telephone number or any kind of information you might of enter [sic], but you will understand why we don't use it.

20On May 3 the applicant tried to be conciliatory, answering as follows:

Dear Mr.Cayer,

I will not argue about my last response being sarcastic because frankly it was. You see I have run out of ideas to simply get you to give me the correct shipping information for my paid item.

You obviously have a very difficult job and perhaps $1,000 is not really enough for someone to takeover. Having been retired since 2006 I am not in a position to comment nor do I want to experience your job difficulties.

I am beginning to think that my words have perhaps even gone so far as to hurt you in some way and whether you believe me or not that was never my intent. It is beginning to look like these email exchanges could be turning into a "war of words" and I would rather have it stop since it is counter productive.

I do now clearly understand that there is an issue with your system's search capability and that is unfortunate for me at this time. Maybe your company doesn't need this capability so I guess I shouldn't have commented about it.

That bottom line is that I am a returning customer and I really only wanted to know when I might receive my paid for item as I will be needing it to complete some work in the near future. Not having it will affect my project planning process. I did receive incorrect shipment information firstly from yourself personally with the first email sent back to me, then during my phone call to your company from a lady and then in the second email sent back to me again by you.

Three episodes of incorrect information is what led me to probe the possible issues and then to become sarcastic as I was given what I perceived to be excuses.

The problem that I've created however is what seems to be distress and what looks like anger on your part and for that I do apologise...nobody needs that and I won't continue to bother you.

Let's just try to move on and complete the transaction.

I promise to let the issue go providing I can receive my item in a reasonable amount of time. I did pay back on April 14/12 and the shipment is domestic (not counting the one from Milwaukee but I was told that they have it in stock during my phone call) so I will let you decide what is reasonable in your industry according to the current standards.

Thanks for taking so much time to respond to me.

21The applicant’s effort to de-escalate came too late. The exchange ended with this response from Sylvain Cayer that evening:

It does have a search function, but stupid customers like you and many more have problems writing or giving the correct name they purchased with, so we do not lose time with stupid customers that cannot even write the order number properly, if a customer cannot properly write an order number, he could has [sic] well not be able to write his own name...

This is my last email, welcome to my email black list, enough time wasting with someone either too stupid to understand the business or too old to understand the concept of time...

22Jean-Claude Cayer testified that the respondent does not “blacklist” customers in the sense of refusing to serve them. Rather, his evidence was that if a customer making an online purchase or inquiry is difficult or abusive, then staff are expected to stop interacting with the customer and to notify him. He stated that in almost all cases, when the respondent ceases interaction with the customer online, the customer will then call the respondent. The calls are directed to him and he deals with the customer personally. He testified that the purpose of doing this is both to address the customer’s concern and to shield staff from the stress that may arise out of an online conflict.

23He testified that in the case of the applicant he was made aware of the exchange between the applicant and Sylvain Cayer after it had concluded. He instructed his employees not to deal further with the applicant, but at that point the tool had been shipped and the applicant has not made any further contact with the respondent.

24Sylvain Cayer’s evidence was that when he used the term “black list” he meant that he would have no further dealings with the applicant and would ignore any further emails from him.

25The applicant testified that he received the tool from the respondent, and that he had made no further effort to contact the respondent after the last email from Sylvain Cayer. After he filed this Application he received an email from Sylvain Cayer which apologised for the way he treated the applicant. The apology states “…it was unacceptable for me to use words referring to your age.”

Sylvain Cayer’s explanation of events

26According to Sylvain Cayer, he believed that on April 30 he was in the process of resolving the applicant’s concern through a direct exchange of emails with him. As a result, he was perturbed by the fact that on that same day the applicant wrote to the customer service inbox, referring to him in the third person and complaining about his refusal to search for the applicant’s order even though the applicant had provided an invalid order number. He understood this to be an attempt by the applicant to complain about his behaviour to a supervisor at the very time that he was trying to solve the applicant’s problem.

27He stated that he was also offended by the sarcasm of the applicant’s subsequent May 1 email. He is proud of having designed the database himself and felt that the applicant was denigrating the quality of his work by making derogatory comments about what appeared to be its limited search capability.

28Sylvain Cayer was asked by the respondent’s representative about his statement in the May 3 email that the applicant was “too old to understand the concept of time”. He testified that he should not have used the term “too old”. Rather, he said he should have referred to the applicant as “retired” because retired people have time on their hands and, unlike someone who is working, may have the luxury of composing lengthy emails. He testified that he did not have time to spend reading the applicant’s long emails because he is under constant pressure to deal with a high volume of work very quickly.

29When cross-examined by the applicant, Sylvain Cayer stated that he thought his statement about the applicant’s age was justified because the applicant had provoked him with his earlier use of sarcasm.

Evidence of customer service ratings of the respondent

30The applicant wanted to introduce evidence of customer service ratings that the respondent has received on eBay. He produced a 13 page printout that appears to consist of comments made by customers of the respondent. His aim was to show that the respondent treats its customers badly.

31The respondent objected to the introduction of this document on the grounds that its prejudicial impact outweighs any probative value it might have. The respondent also argued that it is unrepresentative, in that the applicant only selected negative comments, and that these are far outnumbered by positive feedback. Further, the respondent maintained that the document is unreliable because the authors of the comments are unknown, unidentified and none of them are available to be cross-examined.

32I ruled that I would not accept this document into evidence because it has no relevance to the issues in this case. At best, the document speaks to the quality of the respondent’s customer service. But that is not an issue to be adjudicated here. What is at issue is whether the respondent engaged in discrimination, and the document sheds no light whatsoever on that question.

The applicant’s evidence about the impact of the email exchange

33The applicant testified that the exchange with the respondent stressed and angered him. He stated that the stress was revived every time he had to take a further step to bring the Application to hearing. He claimed that the stress had prolonged his recovery from cancer treatment and had required him to take more medication than he would have if this confrontation had never arisen.

34The applicant also testified that in some way he felt embarrassed in pursuing this Application because of the public cost in dealing with what appears to be a small matter. However, he stated that he was not prepared to let this matter drop. He testified that as a child he had been bullied because of his francophone origin and that he had not stood up to this treatment and had long regretted not doing so. He felt that he could no longer allow discrimination to go unchallenged.

Submissions

35The applicant argued that, although Sylvain Cayer did not know exactly how old he was, he knew that he was retired. The applicant had disclosed this fact and Sylvain Cayer concluded, reasonably, that he was not a young man. The applicant argued that, however frustrated Sylvain Cayer may have been by their email exchange, his comments about the applicant’s age were discriminatory, illegal and unacceptable.

36The respondent argued that the applicant has not made out a prima facie case of discrimination because he can point to no disadvantage that he suffered as a result of the respondent’s treatment. Specifically, it argued that the applicant was placed on the respondent’s black list because he communicated with the respondent in a sarcastic way and his age was not a factor in that decision. It argued that the applicant received the tool he ordered and this is a further indication that the applicant can not show any disadvantage arising out of his treatment.

37The respondent maintained that the Application should be dismissed because the Code is not written to deal with a dispute of this nature. It also maintained that if the Application is dismissed, the Tribunal should order the applicant to pay the respondent’s costs of defending this Application, and that the Tribunal has the authority under ss.39-42 of the Code to make such an order.

Analysis and Decision

38The issue in this Application is whether the single comment that the applicant is “too old to understand the concept of time” is discriminatory.

39The relevant provisions of the Code are:

s.1. 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, age, marital status, family status or disability.

and

s.10 “age” means an age that is 18 years or more

40The context surrounding this Application is that of a consumer making an online purchase. In that it offers its products for sale to the public, I am satisfied that the respondent provides a service within the meaning of the Code.

41A single remark may be sufficient to constitute a form of discrimination within the meaning of section 1 of the Code (see: Romano v. 1577118 Ontario Inc., 2008 HRTO 9; Haykin v. Roth, 2009 HRTO 2017 and Gilbert v. 2093132 Ontario, 2011 HRTO 672).

42It is undisputed that Sylvain Cayer did not know the applicant’s precise age, did know that he was retired and did make the comment that is at the centre of this Application.

43The respondent argues that there was no discrimination in this case because the applicant suffered no practical disadvantage. It says that although the applicant was insulted by the comment, the tool he ordered was delivered and the effect of being placed on the respondent’s black list would not have barred him from communicating with the company. It would only have meant that he would have had to do so by phone rather than by email.

44This position has no merit. Taken to its logical conclusion, it would licence a service provider to make whatever discriminatory remarks it chooses, as long as it adheres to its contractual obligations.

45Notwithstanding the fact that the applicant’s order was filled and the black list had no practical effect, I find that the comment was discriminatory. The applicant made a simple mistake in transposing digits in his order number. This was pointed out by the respondent in a terse and unhelpful manner. The conflict then escalated and the applicant clearly fuelled it with his own sarcastic remarks. He then tried to reduce the tension with a somewhat defensive, but basically conciliatory email on May 3. By then it was too late. I asked Sylvain Cayer whether he did not think that email was an attempt to calm the waters, but he stated that he viewed it as more sarcasm from the applicant. That is not my reading of it, but I accept that Sylvain Cayer sincerely holds to his own interpretation.

46The comment by Sylvain Cayer in the last email, to the effect that he had wasted enough time “…with someone … too old to understand the concept of time”, is discriminatory because it implies that older people constitute a group that is incapable of adapting to and participating in a world in which technology plays a significant and growing role in daily life. It lumps the applicant in with that group, without regard to his characteristics as an individual, and tells the applicant that he is not as deserving of the respondent’s time and attention as other, younger customers. The effect of the comment is to marginalise the applicant.

47Sylvain Cayer indicated that in hindsight it would have been preferable for him to have substituted the word “retired” for “too old” in the email. In my view that would have made no difference. It would have had the same discriminatory effect, as it would have lumped the applicant into an identifiable group, again based on age, and sought to justify lesser treatment of this group.

What is the appropriate remedy?

48Section 45.2(1) of the Code provides that:

… 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.

49The applicant has requested $10,000 in monetary compensation, a written apology and an order directing the respondent to provide customer service training to all employees dealing with online inquiries.

50In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 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.

…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.

51In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed a number of factors to consider when awarding damages, including:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment.

52While discrimination is unacceptable, the actions of an applicant can have the effect of reducing the injury to dignity, feelings and self-respect (see: Abdallah v. Thames Valley District School Board, 2008 HRTO 230, and Donnelly v. Spinz Coin Laundries, 2009 HRTO 754 at paras. 118-119).

53I accept that the applicant was shocked, angered and stressed by the respondent’s discriminatory comment. He claimed that the comment had an effect on his health and his recovery from cancer. He produced no evidence to support this claim, and I do not accept that the comment had any effect on his physical health.

54Although he subsequently sought to calm the situation with the conciliatory email he sent on May 3, I find that the applicant’s email of May 1 was gratuitously sarcastic and had the effect of escalating the confrontation.

55In Romano, the Tribunal ordered compensation in the amount of $1,000.00 for a breach involving a single comment. In that case, however, the remark was vulgar and particularly demeaning. In Haykin, the Tribunal ordered monetary compensation in the amount of $300.00 for a single comment, which the Tribunal found to be objectifying and discriminatory. In Gilbert, the applicants were each awarded $100 compensation in circumstances where their conduct played a role in triggering a single discriminatory remark.

56This incident involved a single comment that was in large part precipitated by the applicant’s own conduct. Although the applicant clearly continues to be annoyed about the incident, I find that it was a passing comment arising out of a single transaction between individuals who are otherwise strangers to one another. There is no evidence that it has had a lasting effect. I am of the view that there are parallels here with the approach taken in Gilbert. In the circumstances an appropriate amount of compensation for injury to dignity, feelings and self-respect is $100.

57I do not consider it appropriate to order an apology. However, I am of the view that it would be appropriate to order the respondent to take steps to promote compliance with the Code. The respondent does not have in place a policy dealing with allegations of Code violations. Accordingly, the respondent shall develop and implement a comprehensive policy on compliance with the Code, and shall confirm to the applicant that it has done so within 60 days of the date of this Decision.

Order

58This Application is allowed.

59The respondent shall pay the applicant $100 as monetary compensation for injury to dignity, feelings and self-respect within 60 days of the date of this Decision. If it fails to do so, then post-judgment interest shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date.

60The respondent shall develop and implement a comprehensive policy on compliance with the Code, and shall confirm to the applicant that it has done so within 60 days of the date of this Decision.