Clerebout v. Soulliere Solutions, 2014 HRTO 203

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvonne Clerebout and Debora MacKenzie

Applicant

-and-

Soulliere Solutions

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: February 13, 2014

Citation: 2014 HRTO 203

Indexed as: Clerebout v. Soulliere Solutions

APPEARANCES

Yvonne Clerebout and Debora MacKenzie, Applicants

Self-represented

Soulliere Solutions, Respondent

Jim Renaud, Counsel

Introduction

1These Applications, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege discrimination with respect to services because of sexual orientation. The Applications were heard together on November 15, 2013 in Windsor, Ontario. Both of the applicants testified in support of their Applications. The respondent elected to call no evidence.

2The respondent operates a construction company. The applicants allege that it failed to properly complete a construction job at their home because of their sexual orientation.

background

3The following background is taken from the applicants’ evidence.

4On April 23, 2012, the applicant Debora MacKenzie entered into a contract with the respondent to replace the front porch of the applicants’ home. Dwayne Soulliere was the representative of the respondent when the contract was signed. The contract stated the respondent would remove and dispose of the existing front porch, re-install the railings from the old porch, tar the wall below the front door, form and re-pour a new porch. The contract price was $3,164.00. The applicants’ neighbour had recommended the respondent to the applicants.

5On May 18, 2012, Robert Soulliere (“Soulliere”) called the applicant Yvonne Clerebout (“Clerebout”) and told her that he was sending workers over that day to remove the existing front porch. Clerebout asked Soulliere when the new porch would be installed and he was unable to provide an answer. Clerebout told Soulliere that was unacceptable. Soulliere asked Clerebout whether she wanted to have the job started the following Tuesday, after the long weekend in May. Clerebout agreed to have the job start then.

6On Wednesday, May 23, 2012, the respondent’s workers arrived at the applicant’s home and started the job. One of the workers asked if he could use the applicant’s bathroom. Clerebout told him she was not comfortable with that and the applicants’ neighbour said the worker could use his bathroom.

7The workers removed the existing porch and a small sidewalk in front of the porch. They erected wood framing to pour the new porch. A cement truck was on site and they began to pour the new porch. At that point, Clerebout noticed that they had not tarred the wall. One worker told Clerebout that he had caulked a crack in the wall instead and told her it was better than tarring. Clerebout asked one of the workers to call Soulliere because she needed to talk to him immediately. The worker then called Soulliere. The worker told Clerebout that Soulliere would be coming to the home “in a while”. Clerebout told the worker to stop pouring the cement. He did not follow her direction and continued to pour the cement into the framing.

8About an hour or two later, Soulliere arrived at the home. By that point, the cement had been poured and the cement truck was gone. Clerebout informed Soulliere that his men had not sealed the wall. Soulliere then got into the cement and began to shovel it to one side. Clerebout informed Soulliere that he could not do it that way because it needed to be tarred all the way down and the tar needed twenty minutes to dry in between coats. Soulliere told Clerebout if she knew so much, she should do it herself.

9Clerebout told Soulliere the cement needed to be removed and the wall sealed. Soulliere told her “that was insane”. Clerebout told Soulliere he was going to do that or another company would. Soulliere shovelled the cement back into the frame and smoothed it out. Soulliere then said something to the effect of “you were not going to pay me anyway”.

10Clerebout then asked Soulliere whether a woman named Debbie, who answered the phones for the respondent, was a family member. Soulliere asked why she was asking and Clerebout replied because she was snooty on the phone. Clerebout testified that Soulliere became angry. Clerebout thought he was angry because she was asking about Debbie, he was not going to seal the wall, and he was going to lose money on the job. She testified that he said “I know what you are, everybody knows what you are, everybody hates you. Your family, neighbours, kids. They all hate you”. Clerebout told Soulliere that he could not talk to her that way. He then told Clerebout to go into her house because there was only so much that he could take.

11Clerebout testified that if Soulliere had taken out all of the cement, tarred the wall and put new cement in, the respondent would have been paid. She also testified that Soulliere did not use the word “scammer” or “lesbian”, but that she knew what he was saying.

12The respondent did not bill the applicants for the work that was done. The applicants did not have the work re-done and did not have the wall tarred. Clerebout testified that they have not had the porch re-done because they believe it may be the windows that are leaking, not the wall below the front door.

Analysis

13The applicants believe they were discriminated against from the very beginning of the job when Soulliere was unable to give them a definite date the job would be started and because the job was delayed. They believe Soulliere’s comment about hating Clerebout was a further act of disrespect. The applicants state this disrespect was why the porch was not fixed. They argue had Clerebout been a straight woman, the porch would have been fixed.

14The applicants bear the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, the applicants must prove that it is more probable than not that discrimination was a factor in the respondent’s actions. The caselaw is clear that discrimination need only be one of the factors involved for there to be a violation of the Code. It is also not necessary to establish an intention to discriminate, as discrimination will often stem from unconscious biases or beliefs.

15In Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, the Supreme Court stated: “to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact”.

16The issue in this case is whether or not the applicants’ sexual orientation was a factor in the respondent’s refusal to re-do the job and tar the wall.

17It is clear from Clerebout’s evidence that things became very heated between her and Soulliere. Clerebout told Soulliere that if he did not remove the concrete, tar the wall and re-pour new concrete, another company would. The clear inference was the respondent would not be paid if Soulliere did not do these things. Soulliere acknowledged the inference when he told Clerebout that he did not think she was going to pay him anyway. It was at that point that Soulliere made his comment about everyone hating Clerebout. I accept that this comment was made as there was no evidence from the respondent to refute this finding.

18The applicants believe this comment was in reference to their sexual orientation. They believe it was a form of gay bashing which revealed homophobic beliefs on the part of Soulliere, beliefs which influenced his decision to not fix the job.

19There is no question that the comment made by Soulliere was very hurtful. However, there is little evidence to link the comment to the applicants’ sexual orientation. First, it is unclear whether Soulliere knew about the applicants’ sexual orientation because he was not the person who entered into the contract with them and there was no evidence that he had any prior dealings or involvement with the applicants. Soulliere dealt solely with Clerebout. Second, the comment itself is not a homophobic slur. Hurtful comments can be made and it does not always mean that they are in reference to a prohibited ground of discrimination.

20In any event, the applicants are not complaining about the comment per se. They are complaining that Soulliere’s discriminatory beliefs influenced his decision to not re-do the porch. I find that that it is more likely than not that he refused to re-do the job because: the concrete had been poured, the wall could not be tarred all the way down, and Clerebout told him he would not be paid unless he did the job again. It is more likely than not that it was the belief that he was not going to be paid that led to Soulliere’s decision to not re-do the job: not the applicants’ sexual orientation. Clerebout may have been right that Soulliere thought she was a “scammer”, to use her word. However, there is no connection between someone trying to cheat someone and a person who is gay. In other words, being a “scammer” is not a stereotype attached to gay people.

21If I am wrong in making this finding, there is an issue in this case as to whether the applicants have experienced adverse treatment relating to the construction of a new front porch. The applicants have a new concrete porch that they were not charged for. They have not had the wall tarred because they do not know if it is necessary. They also had the wall caulked which the worker advised was better than tarring. The applicants now believe it may not be necessary to tar the wall because it may be the windows that are leaking. In the absence of adverse treatment, the discrimination claim fails. See Grills v. Procter and Gamble Inc., 2013 HRTO 371 at paragraph 28.

22The applicants have failed to establish that their sexual orientation was a factor in the respondent’s decision to not re-do the construction on the applicant’s front porch. For this reason, the Applications are dismissed