Shihab F. Taha v. Niagara Falls Taxi Limited, 2013 HRTO 906

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shihab F. Taha

Applicant

-and-

Niagara Falls Taxi Limited

Respondent

DECISION

Adjudicator: Douglas Sanderson Date: May 24, 2013 Citation: 2013 HRTO 906 Indexed as: Taha v. Niagara Falls Taxi Limited

APPEARANCES

Shihab F. Taha, Applicant Self-represented

Niagara Falls Taxi Limited, Respondent Paul Heath, Counsel

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 employment because of race, colour, ancestry, place of origin, ethnic origin and creed.

2The hearing of this matter took place on September 28, 2012 and February 4, 2013 in St. Catharines, Ontario. I heard evidence from two witnesses for the applicant, including the applicant, and seven witnesses for the respondent. All but one (Stephan Roshanov) of the respondent’s witnesses adopted their witness statements as their evidence and were asked supplemental questions in examination in chief and were subject to cross examination by the applicant. The parties adduced five documents into evidence.

THE EVIDENCE

Background

3The applicant, who describes himself as a black man from Sudan of the Muslim faith is a taxi driver for the respondent.

4Stephan Roshanov and Diane Falconer, respectively the President and Secretary of the respondent’s Board of Directors (the “Board”) testified about the respondent’s structure and driver complaints process. The respondent is owned by about 40 shareholders, each of whom own one share. Each shareholder owns and operates one or more taxis operating under the respondent's name. Each year, the shareholders elect the members of the Board to operate the respondent's day to day business.

5Drivers work on a commission basis for one of the shareholders and receive 35% of the fares they collect. Drivers therefore have an incentive to maximize their fares and compete with other taxi drivers, including those driving for the same company. The respondent therefore promulgated rules to maintain orderly operations and fairness among the drivers in terms of opportunities for fares. Complaints come in either through the dispatcher or may be tendered in writing to the Secretary of the Board of Directors. The Secretary does not screen the complaints and brings them to the weekly Board of Directors meetings. The Secretary reads the complaints to the other members of the Board without identifying the parties involved. The Board rules on complaints based on the materials before it, unless the members feel more information is required. The Board reaches decisions by consensus or by majority vote if needed. Where an infraction is found, the Board assigns a penalty to the driver, which is often a fine. The minutes of the Board's meetings reveal this is a quite common occurrence. The driver in question is then informed of the penalty and may appear in front of the Board if he or she wishes to contest the penalty. The complaint system is intended to address complaints in an expeditious manner without a great deal of procedure.

6The Fallsview Casino in Niagara Falls (the “Casino”) operates a taxi stand and the respondent is entitled to have three taxis in the stand at any one time. Once one of the three taxis departs, another of the respondent's taxis may come into the stand. The evidence was that three cars would typically be waiting to come into the stand, but could take other fares while waiting. The cars in the stand are in line and the first car has the right to any business from patrons. The drivers further down the line may only take a fare before the first car in line if the first driver refuses the fare (e.g., if the customer wants a discount) and the first driver agrees.

Complaint Against the Applicant

7This Application concerns a complaint lodged against the applicant regarding the taxi stand at the Casino, which resulted in the respondent levying a fine against him for $220.00. The applicant focused his efforts in the hearing on proving that the complaint was invalid and that the respondent's process for addressing complaints was unfair. As I noted a number of times during the hearing, the Tribunal is not concerned with either of these issues. Rather, the Tribunal's mandate is to determine whether the respondent’s treatment of the applicant amounted to discrimination because of one or more of the prohibited grounds of discrimination.

8The complaint against the applicant was filed by Yilmaz, another of the respondent’s drivers. Yilmaz asserted that on June 27, 2010 at about 6:15 a.m. he was the first driver in line at the Casino taxi stand and a customer came to him looking for a ride to Toronto. The respondent charges a standard fare of $170.00 for a ride to Toronto, but the customer wanted to pay only $120.00. In cross-examination, Yilmaz noted that he does not write English well and had a friend draft his complaint to the Board. He confirmed that the contents of the complaint and his witness statement were correct, but for the price the customer offered. Yilmaz stated that it was actually $140.00. In any event, Yilmaz offered the customer a $10.00 discount, which he declined. During this discussion, Yilmaz stated that he noticed the applicant pull in as "the fourth car" (i. e., the car next in line to come into the taxi stand) and park beside the other cars in line close enough to overhear the conversation with the customer. The customer walked away towards a Starbucks store near the exit to Fallsview Boulevard. As the customer departed, Yilmaz observed the applicant drive out to the traffic lights at the exit, perform a U-turn and park on the street near the Starbucks store. Yilmaz observed the customer approach the applicant's car and then get into the car, which departed. Yilmaz stated that he advised the owner of the car he was driving, Mr. Ahmed, of the incident, who advised Yilmaz to report it to the Board.

9Derek is a driver for the respondent and was the driver of the second car in the Casino stand at the time in question. In his evidence, he corroborated Yilmaz’ account. Derek stated that the applicant came onto the Casino property and was close enough to overhear the conversation between Yilmaz and a customer. Derek’s evidence was that the customer came to him after speaking with Yilmaz seeking a ride to Toronto. The customer wanted a lower price, but Derek directed him to speak to the driver first in line, i.e., Yilmaz. According to Derek, the customer departed and walked towards the exit of the Casino, where the Starbucks is located. Yilmaz walked over to Derek’s car and asked him what had happened. Derek advised Yilmaz to watch the applicant, who departed about that time. He and Yilmaz observed the applicant as he drove out to the traffic lights at the exit. The applicant then left the Casino property, performed a U-turn and parked on the street near the exit. He observed the customer walk across the sidewalk, speak to the applicant and then get into the applicant’s car. Derek testified that he did not appear before the Board and could not remember if he spoke to anyone on the Board about the incident.

10As noted above, Yilmaz drafted a complaint with the help of a friend and submitted it to the respondent. The complaint came to the Secretary, Diane Falconer, who brought it to the Board on June 29, 2010. In her evidence, Ms. Falconer confirmed that the Board was not aware of the parties to the complaint during their deliberations. She did not recall her own position on the matter or even if she voted or expressed a view. The Board concluded that the applicant was guilty of the "stolen job". In cross-examination, Mr. Roshanov stated that the issue was that the applicant had come onto the Casino property when it was not yet his turn to be in the taxi stand, overheard a customer trying to negotiate a lower fare for a trip and then immediately picked the customer up after he walked away from the stand, at the price the customer offered to the other driver. Mr. Roshanov also stated that the sidewalk in front of the Starbucks store is considered to be part of the Casino and therefore to be serviced exclusively from the taxi stand. The respondent therefore fined him the cost of the fare, $170.00, plus $50.00. On or about June 30, 2010, Ms. Falconer advised the dispatcher to inform the applicant of the decision. The applicant called Ms. Falconer who confirmed the fine.

11The applicant requested and was granted an opportunity to appear before the Board to contest the decision on July 13, 2010. The applicant’s evidence was that he was waiting for his turn in the Casino taxi stand and needed some change. He therefore entered the Casino property and with the permission of the Casino's valet parked beside the third car in the stand, driven by Mahmoud. They spoke briefly and Mahmoud gave the applicant change for a $20.00 bill. They did not exit their vehicles and exchanged the money through their open windows. According to the applicant, he did not hear any conversation between Yilmaz and a customer. He then left the Casino, performed a U-turn in front of the Hilton across the street, and waited on Fallsview Boulevard. He then saw people on the sidewalk in front of the Casino, near the end of the Casino exit, waving to him. The customers indicated they wanted to go to Toronto, but could only pay $140.00. They undertook to pay the $30.00 balance later and the applicant agreed to this arrangement. The applicant stated that he drove the customers as far as Etobicoke, but could get no further because of the G20 Summit. The Board considered the applicant's account, but they were not persuaded to change their conclusion.

12The applicant requested and was granted a second opportunity to appear before the Board to present a witness, Mahmoud, to bolster his case. The applicant and his witness attended the Board meeting on July 27, 2010. By this time, the Board had changed after an election, although the President and Secretary remained the same.

13There is no dispute that the Board did not permit the applicant to come into the meeting room with Mahmoud. Stephan Roshanov, the President of the Board at the time and currently, testified that they did not need to hear from the applicant, but wanted to hear from his witness. Mr. Roshanov acknowledged that they heard from Mahmoud without the applicant in attendance because they did not want the witness to feel any pressure. Similarly, Mr. Roshanov testified that they did not allow complainants and respondents to question each other at Board meetings because they do not want confrontations and arguments between drivers.

14Mahmoud, who testified with the assistance of an Arabic/English interpreter, confirmed that he spoke to the Board without the applicant. Mahmoud's evidence was that he informed the Board that the applicant had come onto the Casino property to speak to him and that the applicant had not spoken to any customers. Mahmoud testified that he did not overhear any conversation involving a customer wishing to go to Toronto. Mahmoud stated that he was asked if the applicant had picked up a customer in front of Starbucks. Mahmoud stated he had not been paying attention after the applicant left and did not see this. The applicant’s evidence was that the Board met with Mahmoud while he waited outside and he did not get an opportunity to speak or question witnesses.

15Mr. Roshanov's evidence was that Mahmoud provided very little information to the Board. In particular, Mr. Roshanov noted that Mahmoud said that he had not seen the applicant pick up anyone. Mr. Roshanov confirmed that the Board also spoke with the complainant, Yilmaz, and called Derek on the telephone, who confirmed the complaint. Ms. Falconer testified that Mahmoud informed the Board that the applicant came onto the Casino property to make change and did not believe he had overheard any discussion between the first driver and a customer. Ms. Falconer also stated that the applicant also spoke to the Board, but simply reiterated his position. Other members of the Board, Darko Stojic, Aydin Ulusoy and Mike Thewlis also testified regarding the meeting on July 27, 2010. Mssrs. Stojic and Thewlis acknowledged that they did not recall much of the meeting or the circumstances leading to the applicant’s fine, but all three confirmed that they heard from the applicant and his witness. Mr. Ulusoy’s memory of the meeting was much more detailed and he testified that Mahmoud’s evidence was limited and had been insufficient to change the Board’s ruling. Mr. Ulusoy also testified that he spoke to Derek by telephone to confirm his account. In cross-examination, Mr. Ulusoy confirmed that the Board did not allow parties to a complaint to question or challenge each other because they did not wish to have arguments or confrontations between drivers. Consequently, the Board declined to rescind the fine and the applicant paid it in order to keep driving.

16In cross-examination the applicant stated that he tried to explain his position, but stated he was confused and unsure of what to say, as he had expected to be able to question witnesses and the complainant. The applicant agreed that he had not asked for a copy of the complaint prior to the first hearing because he thought it was company procedure. Also in cross-examination, he stated that the respondent's complaint procedure was flawed and that he believed other drivers have been given more information about the complaints against them. He acknowledged, however, that he had no evidence of this, but felt it to be true. The applicant stated that his feeling was based on his belief that he was the subject of hatred and discrimination by Ms. Falconer and Mr. Roshanov. When asked to provide an example, he stated that Mr. Roshanov had called him a "sneaky thief" during the Board meeting on June 29, 2010, which he considered abusive. The applicant also stated that the fact that he was not permitted to question witnesses or challenge the complainant suggested discrimination. In that regard, he stated that he believed that other drivers had been permitted to bring witnesses and challenge their accusers, but admitted he had no evidence of this.

Relationship with Ms. Falconer

17The applicant’s evidence was also that he did not feel accepted in the management office. In this respect, he stated that Ms. Falconer never said "hi" to him when he said "hi" to her and once made him wait outside her office when he needed a letter for his landlord. According to the applicant, Ms. Falconer treated "Canadian" or white drivers more warmly and allowed them into her office right away. The applicant stated that she always cut their conversations short and felt that her actions towards him were discriminatory. The applicant noted that the respondent's disclosure includes commentary to the effect that Ms. Falconer found him to be disrespectful of women. The applicant strongly denied this accusation and noted that he had been an advocate for women's rights in Sudan. The applicant speculated that Ms. Falconer's view of him was based on stereotypes of Muslim men. In cross-examination he confirmed a statement made in the Application that he did not blame her for this because she is “a modest and less than average minded person”.

18In cross-examination, the applicant acknowledged that the respondent's offices are located in an old house and that the offices are not very large. He acknowledged that it could be reasonable that people wait outside while dealing with others.

19Ms. Falconer's evidence was that, while she did not wish the applicant ill, she did find him to be disrespectful towards women in general and her in particular. Ms. Falconer stated that she found the applicant to be unreasonably demanding when seeking assistance. Ms. Falconer stated that the applicant expected immediate service regardless of what staff may be doing at the time. Ms. Falconer's evidence was that she did not have an office at the respondent’s premises and shared space with other employees. As a result, the office is often somewhat crowded and drivers and owners are therefore required to wait in the hall for their turn. The applicant allowed that she has several long-time friends among the drivers and owners and acknowledged that she may have treated them with greater warmth than the applicant for that reason, and because of his disrespectful treatment of her and other women.

Relationship with Mr. Roshanov

20The applicant’s evidence was that he formerly drove for Mr. Roshanov, but began working for another driver when the respondent lowered the commission paid to drivers from 40% to 35%. In cross-examination, the applicant stated that other owners were prepared to pay the 5% difference “under the table”, but Mr. Roshanov was not. The applicant therefore left Mr. Roshanov because he did not wish to be treated differently than other drivers. The applicant stated that after he left Mr. Roshanov’s employ Mr. Roshanov prevented him from driving for three weeks, ostensibly because he needed to audit the records regarding the driving the applicant performed for the Board of Education. The applicant stated that he felt Mr. Roshanov hated him and wanted to force him out of the company.

21Mr. Roshanov’s evidence was that the applicant worked for him at two different periods. Mr. Roshanov stated that the applicant first left him to go on an extended vacation and was later rehired. Mr. Roshanov did not recall why the applicant left the second time, but stated that he had no ill feelings towards him. Mr. Roshanov also stated that the applicant approached him to invest in a business producing food in Africa, but he declined the offer because did not know the business and had no interest in it.

Analysis and Decision

22The relevant section of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

23The applicant has the onus of proving that the respondent violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent fined him and declined to reverse its decision because of his race, colour, ancestry, place of origin, ethnic origin or creed. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

24In my view, the applicant did not establish that the respondent discriminated against him because of the Code grounds he cited. The applicant clearly did not agree that he had stolen a job from Yilmaz or with the respondent’s decision to fine him and to maintain the fine despite his protest. The fact that the respondent made a decision he did not like does not, of course, make the decision discriminatory. The applicant submitted that the procedure employed by the Board was flawed and that he was subjected to abusive behaviour when he appeared before the Board. The evidence established that the Board deals with complaints informally and with a minimum of procedure in order to deal with the large number of complaints it must address in its weekly meetings. The Board’s process does not include all of the procedure of a formal hearing, such as examination and cross-examination of witnesses, and the Board employs an investigative or inquisitorial model. These purported procedural shortcomings do not support the inference that the Board’s decision was discriminatory. There was no evidence that the Board’s procedure was any different regarding the complaint against the applicant than in any other case. In that regard, the Board’s minutes indicate that the respondent routinely fines drivers and that the applicant’s situation was in no way remarkable. There was evidence before the Board to support the conclusion it reached and therefore there is no proper basis on which to conclude that the respondent’s decision was perverse or fabricated. In any event, the uncontradicted evidence was that the Board did not know the complaint involved the applicant when it made its initial ruling on July 29, 2010. The applicant’s evidence of abusive conduct was that Mr. Roshanov called him a “sneaky thief” during the Board meeting on June 29, 2010. In my view, the term “sneaky thief” has no connection to any Code ground on its face and the applicant did not explain how the term could have taken on a discriminatory meaning in the context of the meeting.

25The applicant submitted that the decision to fine the applicant was the result of a conspiracy orchestrated by Ms. Falconer and Mr. Roshanov. There is no evidence supporting this submission. The evidence was that Yilmaz made the complaint independent of Ms. Falconer and Mr. Roshanov and that the complaint came before the Board pursuant to the respondent’s normal practices. The evidence was that the Board dealt with this complaint in the same manner as any other complaint and there is no basis on which I could conclude that either Ms. Falconer or Mr. Roshanov pursued some kind of vendetta against the applicant. The applicant’s evidence was that Ms. Falconer treated him in a discriminatory manner in the office and his history with Mr. Roshanov showed that he bore an animus against the applicant. In my view, the examples the applicant gave of unfavourable treatment by Ms. Falconer were trivial and do not support the applicant’s submission that she discriminated against him. The applicant’s submission that Ms. Falconer found him to be disrespectful to women because of stereotypes of Muslim men was speculative. Similarly, there was nothing in the applicant’s evidence that suggested that Mr. Roshanov’s past actions towards him had any connection to Code grounds. Accordingly, I find that the evidence does not support an inference that the applicant’s race, colour, ancestry, place of origin, ethnic origin or creed were a factor in the respondent’s decision to uphold the fine against him.

26The Application is dismissed.