Adnan Cenanovic v. 2332489 Ontario Inc., 2014 HRTO 1811

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adnan Cenanovic

Applicant

-and-

2332489 Ontario Inc. operating as the Bourbon St. Grill and Weiwei Zhu

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: December 19, 2014

Citation: 2014 HRTO 1811

Indexed as: Cenanovic v. 2332489 Ontario Inc.

APPEARANCES

Adnan Cenanovic, Applicant

Jean-Alexandre De Bousquet, Counsel

2332489 Ontario Inc. operating as Bourbon St. Grill and Weiwei Zhu, Respondents

C.P. Goldson, Counsel

Introduction

1The issue in this case is whether the respondents discriminated against the applicant when they placed an ad in Kijiji for a female server at their fast food restaurant. The applicant alleges that he was denied the opportunity to be considered for the position because of his gender.

Background

General

2The applicant immigrated to Canada from Bosnia in 1998. He worked as a server in Bosnia and continued to do this work in Canada. The applicant worked as a server/bartender in Canadian restaurants from 1998 to 2009. From 2009 to 2012, he worked as a part-time server at a banquet hall. After 2012, the applicant worked as a server and bartender for concerts, private parties and other events. The applicant has never worked in a fast food restaurant.

3The individual respondent, Weiwei Zhu, also known as Tony Zhu, immigrated to Canada from China in 2006. Between 2006 and 2013, he spent time learning English and worked a variety of part-time jobs.

4In March 2013, the individual respondent purchased the Bourbon St. Grill, a fast-food restaurant in the Hillcrest Mall food court. The restaurant was staffed by two part-time servers and one full-time cook.

5In August 2013, Evral, a female server, left the respondents’ employment. At that time, the individual respondent took over her responsibilities. He determined that he was not very effective in this role because he did not pay enough attention to details, and because he lacked the necessary patience to deal with the high volume of customers during the restaurant’s peak period of operation.

6On November 13, 2013, Siyu Li dropped off his resume at the restaurant. The individual respondent hired Mr. Li on November 14, 2013 because of his experience working in fast food restaurants. He started training on November 14 and was trained for a couple of days. Mr. Li was hired at the minimum wage of $10.25 per hour.

7On November 15, 2013, the individual respondent posted an ad on Kijiji for full- and part-time female servers at the Hillcrest Mall food court. The ad did not give the name of the restaurant. However, a picture of a meal accompanied the ad. An excerpt of the ad is reproduced below:

(Female only)

We are looking for full and part-time server (with strong customer service skill. Must be to deal with customers in a fast, friendly and efficient manner.

Please send your resume with pic and qualified candidate will be called for Interview

8On November 16, 2013, the applicant saw the ad. The applicant copied the picture that was with the ad, and did an internet search to ascertain the restaurant that produced the meal. The applicant determined that the Bourbon St. Grill matched the image and he located a franchise at the Hillcrest Mall.

9On November 16, 2013 at approximately 10:30 in the morning, the applicant replied to the Kijiji ad with the following message: “hello this is my resume as you can see my work history thank you and have great day Ado”.

10During the evening of November 17, 2013, the applicant conducted internet research on human rights lawyers. The applicant met with Mr. De Bousquet, his legal counsel, around noon on November 18, 2013.

11At 10:30 in the morning on November 18, 2013, Mr. De Bousquet conducted a business name search on the Bourbon St. Grill. The search did not provide the name of the owner of the restaurant.

12On November 18, 2013, the applicant phoned the Bourbon St. Grill and asked to speak with the manager. The time of this phone call is not clear on the evidence. The applicant was told the manager was not there. The applicant then asked for and was given the manager’s name. The applicant called back a few minutes later and asked to speak to Tony. The individual respondent took the applicant’s phone call. The applicant expressed interest in the server position. The individual respondent said “female only” two times and hung up the phone. The applicant tape-recorded the call.

Involvement of Mr. De Bousquet

13The individual respondent testified that he received an email from the Tribunal regarding the Application that had been filed by the applicant. The Application was filed on January 14, 2014.

14The individual respondent testified that Mr. De Bousquet attended at his restaurant in January 2014 and left his business card. He testified further that Mr. De Bousquet left a message with one of his employees asking the individual respondent to contact him and that if he did not do so, he would be in a lot of trouble and would have to pay lots of money.

15The individual respondent testified further that in March or April, he received a telephone call on his cell phone from Mr. De Bousquet. The individual respondent was concerned that Mr. De Bousquet had his cell phone number because only his family and employees had that number. The individual respondent testified that Mr. De Bousquet told him he would be in a lot of trouble. The individual respondent testified that Mr. De Bousquet called back a few minutes later. The individual respondent told Mr. De Bousquet that if he called again, he would call the police. Mr. De Bousquet did not call again. The individual respondent testified that he felt Mr. De Bousquet was blackmailing him.

Preliminary Matters

Removal of Counsel

16At the commencement of the hearing, counsel for the respondents sought to remove Mr. De Bousquet as counsel because he was a witness in the proceeding. The respondents took the position that the applicant’s job application to the Bourbon St. Grill was not bona fide, but was instead, a scheme to get money from the respondents. The respondents asserted that Mr. De Bousquet was part of this scheme and as a result, they wanted to cross-examine him on his involvement in this matter.

17Mr. De Bousquet objected to the respondents’ request to remove him as counsel. He stated that he was retained by the applicant long before a demand letter was sent and that he attended at the restaurant personally because he prefers to settle matters amicably. Mr. De Bousquet submitted his solicitor-client relationship with the applicant is privileged and not relevant to the complaint of discrimination.

18A demand letter was sent by Mr. De Bousquet on December 1, 2013. The applicant’s retainer with Mr. De Bousquet is dated November 18, 2013.

19I refused to remove Mr. De Bousquet as counsel to the applicant because there was no notice to the applicant or the Tribunal that this request would be brought prior to the commencement of the hearing. It would have been highly prejudicial to the applicant to remove his counsel on the day of the hearing. I advised the parties that the right to retain counsel of one’s choosing is an important right that should not be interfered with lightly. I ruled I would not remove Mr. Bousquet so that the respondents could investigate whether there was improper conduct on his part. I stated there was a different forum to challenge the conduct of legal counsel. Finally, I held the respondents could cross-examine the applicant on the bona fides of his job application.

Bifurcation

20At the commencement of the applicant’s case, Mr. De Bousquet sought to introduce the applicant’s mitigation documents. These documents had not been produced notwithstanding that the Tribunal’s Rules of Procedure require all arguably relevant documents to be disclosed within 21 days of receiving the Notice of Hearing, which in this case, was July 22, 2014. The Tribunal’s Rules of Procedure require further that hearing documents must be disclosed to the other party and filed with the Tribunal 45 days before the hearing. The applicant did not disclose the mitigation documents with his arguably relevant documents, and did not disclose them with his hearing documents.

21I ruled that it would be prejudicial to the respondents to require them to respond to the mitigation documents on the day of the hearing. As such, I bifurcated the hearing and ruled I would deal first with the question of liability.

Amendment of the Application

22On August 18, 2014, the applicant filed a Request for Order During Proceedings seeking leave to amend the Application to increase his request for compensation from $15,000.00 to $25,000.00.

23On August 28, 2014, the respondents filed a Request for Order During Proceedings seeking an order from the Tribunal allowing it to respond to the applicant’s amendment.

24On September 23, 2014, the Tribunal advised the parties that their Requests would be dealt with by the adjudicator assigned to the hearing.

25During the hearing, I granted both Requests. I allowed the applicant to increase his request for monetary compensation to $25,000.00. I also allowed the respondents to respond to the amendment, if they so choose. I advised the parties that these Requests would be relevant in the event the applicant was successful in establishing liability.

Findings

Job Ad

26There is no dispute in this case that the respondents posted a job ad on Kijiji on November 15, 2013 looking for female servers.

27The individual respondent testified that his command of the English language is very weak. He testified that his spoken English is better than his written English. He testified further that he did not intend to hire only female servers at his restaurant. He testified that he simply copied and pasted another ad on Kijiji, and that he intended to hire people with strong customer service skills who were able to deal with customers in a fast, friendly and efficient manner.

28I do not accept the individual respondent’s evidence for a number of reasons. One, the job ad asked for a picture of the job applicant. In my view, a picture is not necessary to discern an applicant’s job experience and customer service skills. Two, the job ad stated expressly that only females were to apply. Although the applicant’s written English may be weak, he was fluent enough to know the meaning of these words. Three, when the applicant called the individual respondent on November 18, 2013, the individual respondent stated repeatedly that he was looking for females only. Four, in their Response to the Application, the respondents stated the following:

It is my own experiences, sometimes the patrons especially the aged patrons like to talk to female servers. It is my observation and experience that some female servers are more attentive and easy to talk. It is undeniable that in most of companies or food industries, the servers, the front desk receptionists are female. It is not a gender discrimination at all.

Since Evral left, we received many complaints from the patrons asking where Evral was. It is also my own experiences that I was not good for being a server. Sometimes I did not attend to some small details. As such, I honestly planned to hire a female server to replace Evral.

I posed a job opening in Kjiji seeking a female server. I honestly wished to hire a female server to replace Evral. I honestly believed that I could post the job opinion for a female server.

29On the basis of the express wording of the job ad and the admissions contained in the Response, I find the respondents posted an ad looking for female servers.

Job Hiring

30The applicant alleges that he was denied the right to be considered for the server position because of his gender.

31The individual respondent testified that he hired Mr. Li on November 14, 2013 because of his experience working in fast food restaurants. Mr. Li’s resume indicates that he worked for McDonald’s from 2007 to 2008, Villa Madina at the Pickering Town Centre from 2008 to 2010, and Extreme Pita from 2010 to 2012.

32The individual respondent testified further that Mr. Li commenced work immediately, and worked on November 14 and 15, 2013. The respondents produced the payroll records for Mr. Li from November 15, 2013 to May 16, 2014. These records show that Mr. Li worked approximately ten hours during the pay period November 1 to 15, 2013. This is consistent with the evidence of the individual respondent concerning the date of Mr. Li’s hire and his part-time status.

33The individual respondent testified that he received between 20 and 30 resumes in response to his November 2013 Kijiji ad. He testified further that he interviewed five people for the position of server: three women and two men. The individual respondent testified that he did not hire anyone for the position because Mr. Li was doing a good job. He testified that he did not receive the applicant’s job application.

Analysis

Relevant Code Provisions

34The following Code provisions are relevant in this case:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of … sex

6. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

35Section 23 is an interpretative section of the Code. It deals with pre-employment practices and addresses matters of advertising, applications, interviews and employment agency recruitment. See Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 66.

36The purpose of section 23 is to prevent employers from discriminating against prospective employees by classifying them or assessing their qualifications on the basis of prohibited grounds of discrimination.

37Section 23(1) is the relevant provision in this case. It states the right to equal treatment with respect to employment under section 5 is infringed where there is an advertisement for employment that directly or indirectly indicates job qualifications by a prohibited ground of discrimination.

38Section 23 operates in tandem with section 5. In order to prove a violation of the Code, the applicant must establish that he has a characteristic protected from discrimination, has experienced adverse treatment, and the protected characteristic was a factor in the adverse treatment. See Moore v. British Columbia, 2012 SCC 61.

39For the purposes of this decision, I accept that the applicant has a characteristic protected from discrimination under the Code.

40The applicant alleges that the job ad demonstrated the respondents’ intention to hire a woman for the server position, and that they acted on this intention when they refused to consider the applicant’s job application because he is a man.

41In my view, the applicant has failed to establish that his job application was not considered because of his gender for the following reasons. One, although the respondents indicated that they intended to hire a server, they did not hire anyone in response to the job ad because Mr. Li was hired. I accept the individual respondent’s evidence in this regard and it is supported by the payroll records that were filed. Once Mr. Li was hired, the respondents’ staffing complement of two part-time servers was filled.

42Two, although the respondents indicated an intention to hire a female server in the job ad and during the taped telephone conversation between the individual respondent and the applicant, the respondents hired Mr. Li, a male employee.

43Three, there is insufficient evidence to establish that the respondents received the applicant’s job application. While the applicant produced evidence of his job application to Kijiji, there is no evidence that Kijiji sent it to the respondents. Although the applicant took steps to identify the restaurant and its owner, he did not apply to the restaurant directly, notwithstanding his evidence that he applied for jobs in this way.

44Four, in order to establish the form of adverse treatment alleged, that being, the denial of consideration for employment, I must be satisfied that the applicant’s job application was bona fide. In this case, there are several reasons to doubt the sincerity of the applicant’s job application. The applicant has never worked in a fast-food restaurant. He has worked as a bartender or server in restaurants; working in a food court is very different. Although the applicant testified that he applied to more than 50 jobs through the internet and by dropping off resumes at restaurants and bars, there is no documentary evidence of the applicant’s job hunt prior to November 2013, the period of time that he was ostensibly looking. Within 48 hours of responding to the job ad on Kijiji, the applicant took steps to retain a lawyer. This suggests the applicant’s primary concern was the content of the ad, rather than being denied consideration for the job. Finally, I am concerned about Mr. De Bousquet’s communications with the individual respondent and his message that he would owe “a lot of money”. This raises the question in my mind regarding the purpose of filing the Application.

45For these reasons, I find the applicant has failed to establish that his job application was not considered by the respondents because of his gender. The issue remains as to whether the applicant’s rights were infringed because of the job ad itself.

46I accept that it constitutes adverse treatment to be told that you cannot apply for a job because of your gender. There is an innate harm in communicating to people that they are less worthy, less qualified and less desirable for employment because of prohibited grounds of discrimination, such as place of origin, race, colour, sexual orientation and sex. The respondents violated the applicant’s rights when they posted a job ad that stated he should not apply because he is a man. This constitutes adverse treatment on the basis of gender and contravenes sections 5 and 23(1) of the Code.

Order

47The respondents contravened the applicant’s rights under sections 5 and 23 of the Code when they advertised for female servers in the job ad of November 15, 2013.

48The parties are directed to provide their written submissions on remedy within 30 days of the date of this Decision.

49If the parties feel it is necessary to reconvene the hearing on the issue of remedy, they should advise the Tribunal, and indicate why it is required, by January 9, 2015. I do not need to hear evidence on the applicant’s mitigation efforts because he has failed to establish that he was not considered for the job because of his gender. As such, there is no entitlement to lost wages.

50The applicant’s remaining allegations are dismissed.