Martinez v. Mazz Sushi Co. Ltd., 2014 HRTO 255

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Martinez

Applicant

-and-

Mazz Sushi Co. Ltd.

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: February 25, 2014

Citation: 2014 HRTO 255

Indexed as: Martinez v. Mazz Sushi Co. Ltd.

APPEARANCES

Elizabeth Martinez, Applicant

Self-represented

1The applicant alleged that the respondent discriminated against her and her children contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The respondent is a sushi restaurant in Toronto. The applicant alleged that the respondent discriminated against her and her children when two of its staff told her that she should place a take-out order next time she visited the restaurant because her children were too loud.

RESPONDENT DID NOT PARTICIPATE IN HEARING

2On August 26, 2013, the Tribunal sent the parties a Notice of Confirmation of Hearing advising them that the hearing of the Application would take place on February 14, 2014 in Toronto.

3The Notice of Confirmation of Hearing set out the consequences of failing to attend the teleconference hearing as follows:

CONSEQUENCES OF FAILING TO ATTEND THE HEARING

If you fail to attend the hearing after receiving proper notice the HRTO may:

• proceed in your absence;

• determine you are not entitled to further notice of the proceedings;

• determine you are not entitled to present evidence or make submissions to the HRTO;

• decide the Application based solely on the materials before the HRTO;

• dismiss the Application as abandoned if the applicant fails to attend, and;

• take any other action the HRTO considers appropriate.

4By e-mail dated January 17, 2014, the respondent’s owner advised that she would not be able to attend the hearing due to a scheduling conflict. She did not seek an adjournment of the hearing.

5By Case Assessment Direction dated January 21, 2014, I advised the respondent of the consequences of failing to participate in a proceeding before the Tribunal. In particular, I noted that the Tribunal had the power to proceed in the respondent’s absence. In light of the above, I am satisfied that the respondent received notice of the hearing and notice of the possible consequences of not attending the hearing.

6On February 14, 2014, I convened the hearing at the set place and time. The applicant attended the hearing. The respondent did not attend the hearing. I proceeded with the hearing in the respondent’s absence.

BACKGROUND

7The applicant testified at the hearing, as did a friend of hers who witnessed the incident that forms the basis of the Application. The applicant and the other witness’ evidence in this matter was straightforward, clear, compelling and internally consistent. It was also uncontradicted and unchallenged. I accept both as credible.

8The applicant testified that she has been eating at the respondent’s restaurant for many years. She testified that she worked in a government building nearby and would often go to the restaurant for lunch. She also testified that she often had lunch at the restaurant when she had a doctor’s appointment nearby.

9On June 7, 2013, the applicant, her three children, her mother, and a friend met at the restaurant for lunch after a doctor’s visit. The applicant testified that her youngest child began to cry during lunch. She stated that, after a couple of minutes, she grabbed her daughter and took her to the bathroom. However, her daughter continued to cry.

10According to the applicant, at this point, her friend took her daughter to a nearby convenience store. The applicant’s friend, Maria Jose Perez, testified that she took the applicant’s daughter to a nearby corner store and bought her some cookies. She testified that the applicant’s daughter was not fussing or crying on the way back to the restaurant. She testified that when they returned, she and the applicant put the applicant’s daughter in a high chair and finished their lunch without any further disruption.

11In its Response, the respondent stated that the applicant’s daughter walked around and spilled water at another customer’s table. The applicant denied that this occurred. The respondent also stated that it had received complaints from other customers. However, there were no particulars in the Response regarding any such complaints.

12The applicant testified that, after she had paid the bill for lunch, one of the waiters approached her on the side walk and told her to order take-out next time. The applicant testified that, at first, she thought that the waiter was telling her that the restaurant also offers take-out. She told the waiter that she could not order take-out because she lives too far from the restaurant. According to the applicant, the waiter then told her “no, you do take out”. The applicant asked him whether he was saying that she and her children would no longer be permitted to eat in the restaurant. According to the applicant, the waiter replied “you do take out – your children make too much noise”.

13At this point, the respondent’s sushi chef came out and told the waiter to go back inside the restaurant. According to the applicant, things became more heated because the sushi chef pointed his finger at her and put a hand on her shoulder. The applicant testified that the chef told her that he has to worry about the other customers. The applicant also testified that the chef accused her of intentionally making her child cry to upset other customers.

14According to the applicant, she never had any problems when she attended the restaurant with her co-workers. She also testified that the respondent had never approached her with any complaints about her children before the day in question. However, she testified that she always felt that the respondent’s staff were more curt or impatient with her when she attended the restaurant with her children.

15The applicant testified that she was upset about the incident. In particular, she was upset on behalf of her children who she said were crying as a result of the incident. While the respondent stated in its Response that the waiter minimized the embarrassment to the applicant by waiting until she had left the restaurant, the applicant argued that this made the situation even more embarrassing as members of the public were walking by and witnessed the altercation.

Analysis

16The applicant submitted that she was discriminated against because of her family status, her association with her young children, and because of her colour. She submitted that it would be discriminatory for the respondent to place a sign in the restaurant’s window saying “no children allowed”. In the applicant’s view, the respondent was in effect telling her she could not eat in the restaurant because of her children. The applicant stated that she understood that children could be annoying but she felt she had done all she could in the circumstances and that her daughter had calmed down after her initial crying outburst.

17With respect to her claim that she was discriminated against because of her colour, the applicant submitted that the respondent caters to a Caucasian clientele, even though the owners and staff are Asian. She testified that all other customers on the day of the incident were Caucasian. She argued that the chef’s statement that he had to worry about the other customers showed that the Caucasian customers were more important to him than the applicant.

18The respondent submitted in its Response that the problem was not with the applicant’s children but with her failure to take appropriate action when her children were crying. The respondent submitted that its staff never told the applicant she was not permitted to eat in the restaurant. The respondent admitted that its chef raised his voice at the applicant but argued that this was because the applicant herself had raised her voice. In the Response, the respondent apologized to the applicant for having had to go through the experience set out in her Application. The respondent’s owner also stated in the Response that she would take the opportunity to train her staff on how to better handle a similar situation in the future.

Alleged discrimination because of family status/Association with Young Children

19Based on all of the evidence, I am satisfied that the applicant has met her burden of establishing on a balance of probabilities that she experienced discrimination because of family status.

20Under s. 1 of the Code, every person has a right to equal treatment with respect to services, goods and facilities without discrimination because of a number of grounds including family status.

21The applicant has the legal burden of establishing a prima facie case of discrimination on a balance of probabilities. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.

22Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible non-discriminatory explanation for its actions or to establish one of the defences available under the Code. See Moore v. British Columbia (Education), 2012 SCC 61 at para. 33 (“Moore”) and Peel Law Association v. Pieters, 2013 ONCA 396 para. 55 (“Pieters”).

23In order to establish discrimination, an applicant must show:

1. that they have a characteristic protected from discrimination under the Code;

2. that they experienced adverse treatment; and

3. that the protected characteristic was a factor in the adverse treatment.

See Moore and Pieters, above.

24I find that the circumstances of this case engage the applicant’s family status as defined in s. 10 of the Code. “Family status” is defined under s. 10 as meaning “the status of being in a parent and child relationship.” The applicant’s circumstances fall squarely within this definition.

25I find that the applicant experienced adverse treatment as she was told she should order her food to take out. By telling her this, the respondent’s staff was suggesting to her that she should pursue this option rather than dining in their restaurant like other customers. As well, the fact that the applicant was singled out and told this in public contributed to her adverse treatment.

26I find that the applicant’s family status was a factor in the adverse treatment. The applicant’s undisputed evidence was that the respondent’s waiter told her that she should order take-out in the future because her children made too much noise. Even the respondent connected its staff’s conduct to the applicant’s family status, although the respondent sought to place the blame on the applicant for the disturbance rather than her children. In light of the above, I find that the applicant has made out a prima facie case of discrimination.

27The respondent chose not to attend the hearing or provide any evidence or submissions. In these circumstances, I find that it has failed to provide any non-discriminatory explanation for its actions that is credible on the evidence adduced at the hearing. Given the respondent’s failure to attend the hearing, I also find that the respondent has not met its evidentiary onus of establishing any defences that might be available to it under the Code.

Alleged Discrimination Because of Colour

28I find that the applicant has not met her onus of proving discrimination because of colour on a balance of probabilities.

29The applicant alleged that the respondent caters to Caucasian people and treated her adversely because she is not Caucasian. Her allegations in this regard rest on the statement by the respondent’s chef that he has to worry about the other customers and her claim that all the other customers in the restaurant were Caucasian. This evidence alone is not sufficient to establish discrimination on a balance of probabilities.

30In my view, in light of the rest of the evidence, the chef’s statement that he had to worry about other customers can reasonably be interpreted as a concern that the applicant’s children were disturbing other customers. As well, the fact that all other customers were Caucasian does not, in itself, support a finding that the respondent’s staff cater toward Caucasian customers in particular or that they treated the applicant adversely because she is not Caucasian.

31For these reasons, I dismiss the applicant’s claim that the respondent discriminated against her because of her colour.

remedy

32As a remedy, the applicant sought an order that the respondent’s owner and all of the respondent’s staff undergo human rights training. I find it appropriate to make this order in this case. I note that the respondent’s owner indicated in the Response that she would take the opportunity to train her staff on how to better handle a similar situation in the future. However, it was not clear from the Response that this training would address how to appropriately deal with circumstances that may raise Code-related issues. Accordingly, I order that the respondent’s owner and all her staff complete the Ontario Human Rights Commission’s on-line “Human Rights 101” training.

order

33The Tribunal orders as follows:

a. Within 60 days of the date of this Decision, the respondent’s owner and all her staff shall complete the Ontario Human Rights Commission’s Human Rights 101 course (available at http://www.ohrc.on.ca/en/learning/ohrc-elearning-your-elearning-source-human-rights) and confirm to the applicant that they have done so.