HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Qiying Jin
Applicant
-and-
Great Blue Heron Charity Casino
Respondent
A N D B E T W E E N:
Shiping Li
Applicant
-and-
Great Blue Heron Charity Casino
Respondent
A N D B E T W E E N:
Yan Jin as represented by her Litigation Guardian Qiying Jin
Applicant
-and-
Great Blue Heron Charity Casino
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Jin v. Great Blue Heron Charity Casino
APPEARANCES
Qiying Jin and Shiping Li, Applicants
Self-represented
Yan Jin as represented by her Litigation Guardian Qiying Jin, Applicant
Qiying Jin, Litigation Guardian
Great Blue Heron Charity Casino, Respondent
Ramon J. Andal, Counsel
Introduction
1These are three Applications filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination in the provision of goods and services by the respondent on the basis of race, colour, ethnic origin, age and disability. These three cases were consolidated on consent as confirmed in Tribunal correspondence issued on September 26, 2014.
2On July 12, 2013, the applicant, Shiping Li, and another patron of the respondent, a charity casino, became involved in a dispute about the right to use a gambling machine. The applicant believes that she had the right to use the machine in question (50-12) because the other claimant to it, Ms. A., would be in violation of the casino’s rules that at peak times patrons can only use one machine at a time. A very minor physical interaction ensued and the dispute came to the attention of casino security, who investigated. After speaking to the two women and a review of the video surveillance of the incident the respondent determined that the applicant had been the aggressor and therefore it would be appropriate to expel the applicant for 24 hours.
3The applicants are three members of a family who attended the respondent’s casino from time to time. They are husband, wife and daughter. All three applicants are Chinese. Ms. Li and Mr. Jin were both born in China.
4The daughter, Ms. Jin, was said to be a person with a disability who attended the hearing but did not otherwise participate. Other than allegedly being expelled along with her parents she played no role in any of the material events. I also heard no evidence which would suggest that the fact that Ms. Jin may have been a person with a disability played any role at all in the events of July 12, 2013. I also heard no submissions from the applicants with respect to Ms. Jin’s Application other than that she was expelled along with her mother and father. In this Decision, unless otherwise indicated, a reference to the applicants includes both Mr. Jin and Ms. Li.
5The issue raised in this case is whether or not a factor in the decision to expel Ms. Li was her race, colour, ethnic origin or age. I have no authority to determine whether or not the decision to expel Ms. Li was fair or not; only whether, as I have said, a factor in the decision was her ethnic background, etc. It is also important to acknowledge, as did counsel for the respondent, the evident hurt felt by the applicants, but Ms. Li in particular, about this incident. However for the reasons that follow, I find that there is insufficient evidence to establish the inference the applicants argued should be drawn, that her expulsion was discriminatory.
6The applicants repeatedly raised, both prior to the hearing and during it, a request for further video surveillance of, for example, their being escorted out of the casino. The respondent repeatedly advised that there was no other video surveillance available. The applicants refused to accept that this was the case. In order to accommodate their concerns I entertained the evidence of Dale Jordan, Security Manager, who testified that the Video Surveillance department does not retain video surveillance unless the incident in question is considered serious. He made enquiries of Video Surveillance and was advised that other than the short video of the interaction between the applicant and another patron which is at the heart of this dispute there is no other video surveillance. There is no reason not to accept the respondent’s evidence in this regard.
The Hearing
7A hearing in respect of these Applications was held on November 19 and 20, 2014, in Toronto. I heard from the applicants Mr. Jin and Ms. Li, as well as Dale Jordan and Lynn Cook, two employees of the respondent. A mandarin interpreter provided simultaneous translation of the entire proceeding.
8The respondent had proposed to call two other witnesses, but after hearing from Mr. Jordan and Ms. Cook, the person who made the decision to expel Ms. Li, I directed that the parties make submissions at that point on whether or not there was any evidence which would support the conclusion that a factor in Ms. Cook’s decision were any of the prohibited grounds claimed by the applicants.
9The video surveillance of the incident was reviewed prior to and at the hearing with several of the witnesses. The applicants contend that the video has been altered in some way and is not a true representation of what occurred. I find that there is no basis to that claim. The applicants had no evidence to support the assertion other than Ms. Li’s evidence of what occurred during the incident captured on video. However, as set out below, I also find that Ms. Li is not a reliable witness. Given that the only basis for the applicants’ argument that the surveillance video was inaccurate was that it did not accord with their, Ms. Li’s in particular, recollection of what happened, I am unable to conclude that the video is not an accurate record of the material interaction. I also note although the evidence from the respondent was limited, that video surveillance is conducted (pursuant to various statutory provisions) by a separate department of the respondent. The respondent has no control over its production and merely requested it for purposes of resolving the dispute on July 12, 2013, and then again for this hearing. According to counsel for the respondent, the Tribunal and the applicants are required to return the video to the respondent when this proceeding has concluded. For all of these reasons I find that the video is an accurate recording of the events in question.
Evidence and Analysis
10It is clear that Ms. Li felt she was unfairly treated by the respondent. Her evidence was more about how she felt about these events than what actually happened. So, for example, she wanted to play this particular machine for some reason and had been watching for it to come free. Her evidence and her actions in the video confirm her firmly held view that she was entitled to the machine and Ms. A was not, and this may have shaped her recollection of what happened. Most importantly, the applicant, Ms. Li, has iterated at least two materially different versions of the altercation with Ms. A. In the original Application the interaction is described as follows:
Shiping (Ms. Li) picked a slot machine to use. She had a card issued by casino that was preloaded for use on any machine of her choosing. She selected a machine, sat down in-front of it and inserted her card into the machine. A middle age Caucasian woman who was not seating in front of the machine quickly inserted a $20 bill into the machine and claimed this machine was preoccupied for her husband and demanded that Shiping leave. A female manager came over and only spoke to the middle aged caucasian woman and without asking Mrs. Shiping Li her side of the story.
11In an amended Application filed after the respondent disclosed the video surveillance of the incident Ms. Li described the incident in the following way:
Pursuant to the casino's rules I gave ups the machine I was playing to move to a just becoming available machine 50-12 I which I'm more interesting in and sat down on it.
A Caucasian lady, Ms. (A) who was playing on machine 50-11 next to 50-12 put her money into 50-12 which I sat down at the same time. I knew from section 4 of DBR that she "placed $20.00 into the machine to save the machine for her husband.
12Ms. Li, when asked, had no real explanation for this new version of events. She suggested again that the video had been altered in substantial ways.
13At the hearing the applicant, Ms. Li, was asked by the respondent about a different version of events clearly at odds with the video surveillance. In a will-say document filed by Ms. Li in anticipation of the hearing she stated that the she sat down in the seat in front of 50-12 before Ms. A put her money into the machine. The applicant’s response was that the video was inaccurate. In yet another variation of this later version the applicant testified at the hearing that after she sat down in the chair she was attempting to get money out of her purse and while she was doing so Ms. A put her money into the machine. This version is entirely inconsistent with what is shown in the video.
14In the end the applicant, Ms. Li, argued that it did not matter whether Ms. A put her money into the machine before Ms. Li sat down because Ms. A was not entitled to use two machines at the same time.
15I also note that Ms. Li claimed to not recognize Ms. Cook, who was the Slot Shift Manager at the time of this incident and who made the direction to her through an interpreter that she leave the casino for 24 hours. Ms. Li had no explanation for why she did not recognize the person who asked her to leave the casino.
16For all of these reasons I find that Ms. Li’s recollection of these events is not reliable. In this regard I note that Mr. Jin was not a witness to the initial interactions between Ms. A and his wife and so was of no assistance in resolving these issues.
17Finally I note again that the applicants offered no substantial reason to doubt the accuracy of the video, and as set out above, Ms. Li has materially altered her version of the primary interaction with Ms. A after the video was disclosed to her. I find that she materially altered her narration of these events when confronted with the fact that the video contradicted her first version of events.
18Having made this finding however, Ms. Li’s reliability is not critical to the resolution of this dispute. Ultimately the resolution of this case turns on the fact that there is no evidence to which the applicant can point that would tend to support the inference that a factor in Ms. Cook’s decision to expel Ms. Li was her race, colour, ethnic origin or age. On the other hand Ms. Cook provided a rational non-discriminatory explanation for the decision she made.
19Based on a careful review of the video surveillance I make the following findings with respect to the dispute between the applicant Ms. Li and Ms. A.
20Ms. A is seated at machine 50-11. Seated at machine 50-12 is a male person who appears to be about to give up the machine. Ms. A, who is sitting immediately to his right at 50-11, is aware that the male patron appears to be leaving and sits watching him and machine 50-12. She does not appear to be playing her game but is focussed on the male patron and machine 50-12. Ms. Li is seated at a bank of machines directly perpendicular to the machines 50-12 and 50-11 across a narrow passage between the banks of machines. She is three or four feet away at most from 50-12. Ms. Li also appears to be aware of the fact that the male patron is preparing to give up 50-12, although she keeps playing her machine occasionally looking over her shoulder at the male patron.
21Simultaneously as the male patron gets up out of the seat in front of machine 50-12, Ms. A inserts something (later testimony establishes that it was likely a $20 bill) into machine 50-12. At the same instant Ms. Li, seeing that the male patron has stood up at 50-12, stands up from the chair she had been sitting on. Because the male patron moves into the narrow passage between the two banks of machines Ms Li is blocked by him and cannot immediately access the machine. She is also farther away from 50-12 than Ms. A. Not more than two seconds after Ms. A has inserted money into machine 50-12, Ms. Li approaches 50-12. Ms. A waves her hand in front of the machine as she appears to rise from her seat clearly indicating to Ms. Li that the machine is taken and Ms. A is claiming it. Ms. Li makes a waving gesture at Ms. A suggesting both that she knows that Ms. A is claiming the machine and that she is going to proceed to take the machine. Ms. A stretches her arm out to prevent the applicant from accessing the machine or take the seat in front of it and there is physical contact between the two women by Ms. A in reaching her arm across to block Ms. Li and then by Ms. Li who in turn appears to brush Ms. A’s arm away. Ms. Li continues to advance toward the seat in front of 5012 and Ms. A waving her hand in her direction signalling that she is going to take the seat in front of the machine. Ms. A retreats somewhat and as Ms. Li sits in the chair Ms. A left forearm and hand is in contact with Ms. Li’s upper arm and shoulder as Ms. Li sits down. Ms. A withdraws her arm as Ms. Li begins pointing at the machine. Mr. Jin then approaches the two women and all three point at the machine as Ms. A puts her hand over the slot where she had placed her $20 moments before. The two women appear to be interacting but there is no further physical contact.
22Ms. Li testified that she does not speak English at all so that she could not communicate with Ms. A but attempted to do so with hand gestures. A member of Security on the floor become aware of the dispute and approached the two women. Ms. Li remained seated in the seat in front of 50-12 while Ms. A remained seated in front of 50-11 with her hand still covering the money slot. About 5 seconds later Ms. Li uses another slot on the machine to insert her credits onto it.
23Mr. Jin is shown attending to the machine his wife had been playing twice in the next few moments. On the first occasion he is directed to do so by Ms. Li and appears to do something to the machine. At the same time he leans the chair he had been sitting on against his machine signalling that it is taken and returns to his wife. On a second occasion another patron standing in front of the machine his wife had been playing appears to ask Mr. Jin something about it. This appears to prompt Mr. Jin to re-attend the machine and take his wife’s credits off the machine which he then delivers to Ms. Li.
24The video shows a security employee arriving and interacting primarily with Ms. Li and Mr. Jin but also Ms. A. The security officer is seen radioing for others to join her as the dispute remained ongoing – Ms. Li continued to sit in front of 50-12.
25The video ends at this point. The investigation continued as described briefly at the outset of this Decision and below. The video has no audio, so there is no recording of what any of these individuals were saying to each other.
26Although the evidence of the respondent is not necessary to consider in order to resolve this case I did hear the evidence of two witnesses for the respondent, including the individual who made the decision to expel Ms. LI.
27Mr. Jordan gave evidence about the security arrangements at the casino. He testified about the kinds of conflicts that arise and the casino’s approach to resolving them. He testified that expulsions are not uncommon and are often employed to deal with aggressive behaviour. He testified about the reasons for this approach.
28Ms. Cook, the Slot Shift Supervisor on duty that evening, became involved. She spoke to Ms. Li through an interpreter. She also spoke to Ms. A. Based primarily on the report to Ms. Cook about the content of the video surveillance, she determined that Ms. Li was the aggressor in the altercation and determined that it was appropriate to expel Ms. Li for 24 hours because of that aggression. Ms. Cook did not see the video surveillance of the incident prior to the hearing.
29The Tribunal has no authority to second-guess the judgement of the respondent about how to manage its establishment unless that discretion is exercised in a manner that contravenes the Code. I have no difficulty accepting the respondent’s evidence that conflicts over machines are not uncommon and the casino has an interest in resolving them quickly. I also have no difficulty accepting the casino’s evidence that it is very concerned to discourage aggressive behaviour by patrons in these kinds of conflicts. It takes these situations seriously because they can escalate quite quickly. Accordingly, I also accept the evidence of the respondent that they often expel patrons for 24-hour periods when these situations arise for essentially two reasons. First, they want to avoid the possibility of two patrons in conflict from coming into contact again in short order. Second, it is hoped that a short absence from the casino might serve as a deterrent to aggressive behaviour in the future.
30It is also not my role to second-guess a judgement about which patron was the aggressor. The question I have to determine is whether, on the face of it, the reaction of the respondent to Ms. Li’s behaviour was so unfair or disproportionate such that an inference might be drawn that Ms. Li’s race or other enumerated grounds in the Application were factors in the decision.
31Having reviewed the video at length both before, during and subsequent to the hearing I am unable to conclude that the respondent’s conclusion that the applicant was the aggressor in the conflict was so unreasonable that an inference might be drawn that this judgement was informed by the inappropriate factors of Ms. Li’s race, ethnic origin or age. In fact based on the video Ms. Li is clearly the more aggressive of the two in the incident if only because notwithstanding Ms. A signalling clearly that she was claiming the machine, Ms. Li continued to advance, brushing away Ms. A’s arm, advancing forward toward 50-12 and sitting in the seat. She may have done so believing that she was entitled to the machine but nonetheless she knew that there was a competing claim to it.
32On this latter point, which the applicants clearly believe and repeatedly asserted was the only issue in the case – that Ms. A was not entitled to use 50-12 because she had not given up 50-11 and patrons are not entitled to use two machines at the same time or hold a machine for another – I find that this is in fact not the central issue for determination, and it is not at all clear which of Ms. A or Ms. Li was in violation of the policy. Ms. Li had no evidence about the status of 50-11 at the time or Ms. A’s intentions with respect to it. Ms. Li continued to assert that Ms. A was attempting to save the machine for her husband while retaining the use of 50-11 but she has no evidence to support that claim. It is entirely possible, as was understood by the respondent, that Ms. A was attempting to claim the machine for her husband but was also planning to move from 50-11 to 50-12 and was prevented from doing so because of Ms. Li’s action in taking the seat despite Ms. A’s attempts to prevent her from doing so.
33On the other hand, despite Ms. Li’s assertion that she had abandoned her prior machine, the video surveillance clearly indicates that she had not done so, as her husband, at her direction, went back to the machine once and then again when another patron came by and asked about it. Even after her husband had retired her credits from the machine he continued to monitor it for some reason. It is not at all clear from the evidence that either or both of Ms. Li or Ms. A were in violation of the casino’s rule, or not.
34In any event whether Ms. A was in violation of the rule or not is entirely beside the point. The concern of the casino and the reason for her expulsion was a consequence of the manner in which Ms. Li chose to resolve the dispute. The point is that the respondent has a reasonable interest in patrons not resolving these disputes in the way that Ms. Li appears to have done, by sitting in the seat in front of 50-12 despite Ms. A’s clear communication to Ms. Li that she had a prior claim to it.
35The applicants make three arguments about the circumstances which they say must lead to my finding that a factor in the decision were one or more of the prohibited grounds they have relied upon:
a. That the respondent did not apply its own rules to the circumstances;
b. Related to this that is the assertion that the casino rule with respect to use of more than one machine at a time during peak times was differentially applied. The applicants rely on a prior incident when Mr. Jin left his machine to use the washroom (and/or get something to eat). A supervisor approached and inquired of the machine and indicated that Ms. Li should cash it out because another patron wanted to use it. This other patron was Caucasian according to Ms. Li. The applicant asserts that the rule was not applied when Ms. A was seeking to use two games. The applicant asserts that she was not resisting but was merely asserting her right to use the machine; and
c. Inconsistencies in the various accounts of the incident by the respondent.
36With respect to the allegation of the applicant that the casino did not apply its own rule against the use of two machines at the same time I have dealt with that issue above. With respect to the related argument that the rule was applied in a discriminatory way I do not agree that the two situations were the same and in fact the differences in the situations highlight the point made above that the problem from the casino’s perspective was not that there might have been a dispute about this rule, but the way in which Ms. Li chose to resolve the dispute.
37Assuming that Ms. Li’s evidence about the July 5 incident is accurate there is a critical difference between the two scenarios. In that prior case the Caucasian woman approached security, who then approached Ms. Li, inquired of her and after doing so asked her to cash out the machine. This is not what happened on July 12, where as described above, when confronted with the fact that there was a dispute over 50-12 Ms. Li continued to physically advance her claim to the machine rather than stop and seek the assistance of security who patrol the floor to deal with these kinds of circumstances amongst other duties.
38The applicants also relied on what they described as a great number of discrepancies in the various versions of events described in the pleadings of the respondent. Having reviewed all of these alleged discrepancies I find that in fact there are not significant discrepancies in the story told by the respondent, but even those that do exist do not remotely establish that that real reason for Ms. Li’s expulsion were the Code grounds she has cited.
39A good number of these alleged discrepancies relate to the content of the video. As I have indicated the video is clear and in my view accurately records the interaction between Ms. Li and Ms. A. A number of other minor discrepancies relate to the manner in which the content of the video was recorded or described by the three individuals who became involved in the investigation of this incident. The most significant of these from the applicant’s perspective is the characterization of Ms. A’s action with respect to 50-12 being in one instance saving the machine for her husband and in another merely placing money it, presumably for herself, although this is not expressly stated in the report. Aside from the fact, as discussed above, that whether one or the other was the case is beside the point, Ms. Cook, who made the decision, testified that she understood that Ms. A was claiming the machine for her husband but was intending to relinquish 50-11 and move to 50-12 until he arrived.
40Ms. Li also argued that the respondent advanced yet another reason for her expulsion in one of its reports which is different from the one articulated in the Form 2 Response – that being that she was described in the Video Surveillance Report as wearing a black shirt on July 12. The applicant argues not only that this is a different reason for her expulsion it is also discriminatory and humiliating. As was pointed out by the respondent the reference to a patron wearing a black shirt was a description by a person reviewing a video. It was not a reason for anything and is an accurate description of what the applicant was wearing that day.
41The most significant discrepancy relates to references to a prior incident involving Ms. Li in the reports created by casino staff that day. These references in the reports are quite unspecific, but in the Response and in the first will-say of Ms. Cook, these general references to a prior incident become a quite specific reference to an incident on June 7, 2013. The applicants went to considerable trouble in responding to this allegation by the respondent and argued strenuously that they were not present at the casino on that day. Shortly before the hearing Ms. Cook reviewed her will-say for the first time and realized that an error had been made – she agreed that the June 7, 2013 incident had not involved Ms. Li but another patron with the same last name. Ms. Cook was questioned about this at length at the hearing and I am satisfied that it was simply an error on the part of the respondent in preparing its responding materials.
42At the end of the day this case is about Ms. Li’s perception that she was unfairly dealt with by the respondent. At the heart of that feeling of hurt caused by perceived unfairness is her belief that Ms. A was not entitled to the machine or to save it for her husband. She may be correct that Ms. A was in violation of the rules and that in some sense what happened here was unfair. However, as I have pointed out above this case is not about the proper application of the Casino’s rules or even whether the decision to expel here was fair or not, but whether a factor in the decisions that were made were her race, colour, ethnic origin or age. For the above-noted reasons, I find that there is no evidence that this was the case. I also find, although I have not related the respondent’s evidence in any detail, that Ms. Cook offered a reasonable and non-discriminatory explanation for her decision.
43It follows from that the other Applications must be dismissed. In particular I find that the Application of Mr. Jin cannot succeed because even assuming that he was expelled along with Ms. Li there is no evidence from the applicants that his inclusion in that direction was based on any of the grounds of discrimination alleged. Similarly the Application of Ms. Jin must be dismissed because there is no evidence that any of the factors cited including her alleged disability were a factor in the decision to expel her mother and/or her.
44For all of these reasons the Application is dismissed.
Dated at Toronto, this 1st day of December, 2014.
“Signed by”
David Muir
Vice-chair
CORRECTION
1The decision released on December 1, 2014 contains the following typographic errors.
2At paragraph 2, the correct date is July 12, 2013, not July 12, 2014.
3At paragraph 4, the correct date is July 12, 2013, not June 12, 2013.
4At paragraph 25, the video recording is not audio only; it contains only visuals, and no audio, so there is no recording of what any of these individuals were saying to each other.
5The errors are corrected.
Dated at Toronto, this 14th day of April, 2015.
“Signed by”
David Muir
Vice-chair