Curtis v. The Food Dudes Inc., 2014 HRTO 352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ernest Curtis

Applicant

-and-

The Food Dudes Inc., Bloke & 4^th Inc. and Adrian Niman

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: March 13, 2014

Citation: 2014 HRTO 352

Indexed as: Curtis v. The Food Dudes Inc.

APPEARANCES

Ernest Curtis, Applicant

Self-represented

The Food Dudes Inc., Bloke & 4th Inc. and Adrian Niman, Respondents

Greg Frenette, Counsel

1The applicant was employed by the respondents as a dishwasher in March 2013. The applicant filed an Application alleging that the respondents discriminated against him because of his age, race, colour, place of origin, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). The applicant was 58 years old at the time he filed his Application. He identifies as being a Canadian citizen of Sri Lankan origin. In his Application, he alleged that the respondents discriminated against him by treating him differently from other employees and by accusing him of harassing other employees. He also alleged that the respondents made discriminatory comments about his age and his race. Finally, he alleged that the respondents terminated his employment and refused to pay him for discriminatory reasons.

2The respondents denied discriminating against the applicant. In particular, they submitted that they terminated the applicant’s employment solely because he had become verbally abusive and had threatened other employees.

3The hearing of this Application took place on January 30, 2014. At the hearing, I heard testimony from the applicant; the personal respondent who is founder and part-owner of Food Dudes; Alex Burgess, former Head Chef of Food Dudes; and Daniel Frenette, part-owner and Executive Chef of Food Dudes.

4It was not disputed that the applicant has many years of experience in the hospitality industry and that he has worked for well-respected restaurants and other institutions. He also clearly takes pride in his work. However, it was also clear from the testimony at the hearing that the employment relationship between the parties turned out to be a strained one, to say the least. It was not disputed at the hearing that when the applicant’s employment ended the respondents refused to pay him for the work he had done. This treatment led the applicant to file several different types of complaints against the respondents including this one. The animosity that had built between the parties during the applicant’s employment in March 2013 was evident at the hearing of this Application, almost one year later. Both the applicant and the personal respondent accused each other of lying under oath. The personal respondent frequently smirked and laughed as the applicant testified. Meanwhile, as described below, the applicant lost his temper and elevated his voice at several points during the hearing.

5For the reasons that follow, I find that the applicant has failed to establish, on a balance of probabilities, that the respondents discriminated against him contrary to the Code.

Factual background

6The corporate respondents are closely related businesses. Food Dudes is a catering business that shares space with Bloke & 4^th which is a restaurant in downtown Toronto. The personal respondent, Adrian Niman, is the founder and majority owner of Food Dudes.

7There was a dispute between the parties as to which corporate respondent actually employed the applicant. However, as I have found that there is insufficient evidence to make out a violation of the Code in this case, I do not have to address which corporate respondent would have been liable had a violation been found.

Background to Applicant’s Employment with Respondents

8The applicant stopped into Bloke and 4^th on or around March 6, 2013 to ask whether the restaurant needed a dishwasher. On that day, he spoke to Mr. Niman and Mr. Frenette. The applicant told them he could bring a resume and references the next day. When the applicant dropped by the next day, Mr. Niman and Mr. Frenette asked the applicant if he could start work the following day. The applicant agreed.

9The applicant asked to be paid $15 per hour and the respondents agreed to pay him this hourly rate. The understanding was that the respondents were to pay the applicant in cash and the respondents sought no payroll information from him. It was not disputed that the respondents had no formal timesheet or logging system to record the applicant’s hours of work. The respondents told the applicant to keep track of his hours and claim them at the end of the week. According to the respondents, due to the turnover in staff in their business, their practice is to pay employees in cash until the end of a trial period. According to Mr. Niman, if things work out with a new employee, the respondents would place the employee on the formal payroll at that point.

10The applicant testified that the respondents would check his bags and body before he left after his shift to make sure that he was not removing any items from the restaurant. He stated that he had never seen the respondents checking other employees in this way. Mr. Niman did not deny that the respondents checked the applicant’s bags and clothing before he left the restaurant at the end of his shift. He testified that it was the restaurant’s practice to check the bags and clothing of new employees before they left to ensure that they were not leaving with any expensive kitchen items. He testified that it was the corporate respondent’s regular practice to do this with new employees until the end of a trial period.

11The applicant testified that he was required to enter the kitchen through the back door rather than entering through the restaurant’s front door. He testified that he did not see other staff entering through the back door. He believed that he was the only staff member who was required to enter through the back door. However, all three of the respondents’ witnesses were emphatic that it was customary in the restaurant business for all staff to enter through the back door so as not to disturb guests. Mr. Niman and Mr. Frenette both testified that even they, as part-owners, entered the kitchen through the back door. The applicant did not challenge this testimony in cross-examination. He also did not offer any detailed evidence of instances where other staff were permitted to enter the restaurant through the front door.

12The applicant stated that the respondents did not provide him with any food to eat during his shift. Mr. Niman testified that the applicant was not treated any differently from other employees when it came to meal breaks or the provision of food.

Problems Arising in Last Two Days of Employment

13The parties agreed that things went well during the first day or two of the applicant’s employment. On or around the third day, March 9, 2012, some problems began to arise between the parties. Each party offered a different account of these problems and the reasons that led to them.

14The applicant testified that he became frustrated with the level of disorganization in the respondents’ kitchen. He testified that he had worked for 18 years in the hospitality industry and was used to working in established and organized kitchens. The applicant found that the respondent’s kitchen did not live up to the level of organization and staff training to which he was accustomed. The applicant testified that he tried to take initiative by providing instructions to other employees to show them how to do their job properly. As an example, the applicant stated that he instructed servers to scrape food off dishes before leaving them to be washed. He also testified that he instructed the servers how to properly organize dishes to be washed in the kitchen’s three compartment sink. He testified that servers often did not put the dishes in the correct sink compartment. In addition, the applicant stated that he instructed servers about the need to separate organic from recycling waste. The applicant testified that Mr. Niman did not like him taking initiative in this way. He also testified that other staff thought he was trying to boss them around.

15The respondents’ witnesses testified that the applicant did not handle stress well and became aggressive towards its staff. According to the respondents’ witnesses, as the week-end approached, and the respondents’ operations became busier, the applicant began to yell and swear at its staff and berate them for not doing things in the way he expected them to be done. Mr. Niman and Mr. Frenette testified that the applicant yelled at staff and called them “stupid kids” and “idiots”.

16Mr. Niman testified that some members of his staff approached him on or around the applicant’s third day of employment because the applicant was yelling at other staff members. These staff members asked Mr. Niman to step in and speak with the applicant. Mr. Niman and Mr. Frenette testified that they and another co-owner of Food Dudes asked the applicant to step outside in order to discuss the situation and to get him to calm down. The applicant also testified that Mr. Niman and Mr. Frenette brought him outside to calm him down. The applicant, Mr. Niman and Mr. Frenette all testified that they agreed to try to resolve the situation. Mr. Niman and Mr. Frenette testified that they shook hands at the end of the meeting. Mr. Niman and Mr. Frenette asked the applicant not to yell at other staff and told the applicant that they would speak to the servers at the next staff meeting to ask them to make changes that would make things easier on the applicant. The applicant similarly testified that he, Mr. Niman and Mr. Frenette had agreed to put in place measures to resolve the situation.

17The applicant testified that the following day, March 10, 2012, things had not improved. The respondents’ staff continued to work in what the applicant perceived to be a disorganized fashion. He testified that, due to the level of disorganization, he did not know if he could continue to work for the respondents for much longer.

18That evening, a dispute arose between the applicant and some of the respondents’ other staff. The applicant testified that some of the servers claimed he could not keep up due to his age. He also testified that he was frustrated with the respondents’ staff due to their disorganization. However, he denied physically threatening any of the respondents’ staff. According to the applicant, Mr. Niman and Mr. Frenette falsely accused him of being aggressive with other staff due to his race and/or age.

19Mr. Niman testified that Saturday is the respondents’ busiest day of the week. He testified that, as things started getting busy, the applicant started to “lose it”. According to Mr. Niman the applicant began slamming trays and talking to himself. Mr. Niman testified that the applicant tried to grab a knife and pointed it at the bartender. The respondents made this same claim in the Response. The Response filed on behalf of Food Dudes and Mr. Niman states that the applicant “picked up a knife he was cleaning and brandished it in a threatening manner” toward another employee.

20This claim is inconsistent with the account of the incident set out in the witness statement that the Respondents filed on behalf of Alex Burgess, one of the respondents’ former employees who witnessed the incident. In his witness statement, Mr. Burgess stated that he “believed” he saw the applicant looking at the kitchen knives which were on a rail not too far from him”. In his witness statement, Mr. Burgess stated that he was “worried he would grab a knife.” When I asked Mr. Niman about the inconsistency between his testimony and this witness statement, he clarified that he was in his office at the time of the incident and that he was relying upon the bartender’s account of events. The bartender was not called to testify.

21Mr. Burgess, a former chef for the respondents, was the only respondent witness who actually saw the altercation between the applicant and the bartender. Mr. Burgess testified that, as the evening progressed, more and more glassware and dishes needed to be washed. The bartender acted as a liaison between the bar and the kitchen. Mr. Burgess testified that the bartender tried to calm the applicant down about the number of dishes that were coming in. According to Mr. Burgess at some point, communications broke down and the applicant and bartender began to argue and swear at each other. He testified that it seemed like the two of them were going to “come to blows”.

22Mr. Burgess stated that he thought he saw the applicant look toward a bin full of knives. When I asked him whether the applicant had grabbed a knife, as claimed by Mr. Niman and in the Response, he testified that the applicant had not grabbed a knife. He said that he was concerned that the applicant might grab a knife due to his emotional reaction that evening. According to Mr. Burgess, the applicant had lost his temper and was yelling at the bartender and other staff. He testified that he was concerned enough about the situation, to remove the knives from the bin in order to place them out of the applicant’s reach.

23At some point during the altercation, Mr. Niman and B.M., another co-owner of Food Dudes, escorted the applicant out of the building. The applicant claimed that Mr. Niman and B.M. “assaulted” him when they escorted him out of the restaurant. The respondents’ witnesses testified that B.M. put his arms around the applicant to escort him out of the restaurant. However all three respondent witnesses denied that B.M. “assaulted” the applicant or used any undue force.

24Mr. Niman and Mr. Frenette testified that they terminated the applicant’s employment due to his conduct that evening. Meanwhile, the applicant testified that he was not terminated but instead had quit.

25A couple of days later, on March 12, 2013, the applicant returned to the restaurant to seek payment for his four days of work. The applicant testified that Mr. Niman refused to pay him and told him to get the best lawyer he could find. The applicant called the police to report the alleged assault from March 10, 2013 and to report Mr. Niman’s refusal to pay him. The police visited the restaurant on March 12, 2013. There was a dispute between the parties as to whether Mr. Niman was present at the restaurant when the police visited the restaurant. In my view, nothing turns on this point for the purposes of this Decision. There was no evidence that the police took any action with respect to the applicant’s report.

26After the respondents refused to pay the applicant, he filed a complaint for unpaid wages under the Employment Standards Act (“ESA”). Both parties testified that the respondents agreed to pay the applicant the amount claimed by the applicant in order to settle the complaint. The applicant ended up withdrawing his ESA complaint. In addition to his ESA complaint, the applicant filed a complaint against the respondents under the Occupational Health and Safety Act. He also testified that he had complained to the Toronto Food Safety Inspection branch about the respondents’ operations.

27When I asked the applicant why he believed that his race and/or age were a factor in the way the respondents treated him, the applicant replied that it was because he was the only racialized person on the respondents’ staff and he was significantly older than the rest of the respondents’ staff.

28The respondents agreed that the applicant was likely older than the rest of its staff. However, it disagreed that he was the only racialized person on staff. Mr. Niman and Mr. Frenette testified that at least six of its bar or wait staff and its events manager at the time of the applicant’s employment were racialized persons. In addition, they both testified that the Food Dudes’ “brand ambassador” is of south-Asian origin. According to the Mr. Niman and Mr. Frenette, a brand ambassador is a spokesperson for the company. He represents the company at trade shows and to the public at large. Mr. Niman and Mr. Frenette also testified that the dishwasher who replaced the applicant is a racialized person.

29On balance, I do not accept the applicant’s evidence as credible that he was the only racialized person employed by the respondents. The respondents’ provided detailed evidence regarding other racialized persons on its staff which was not questioned in cross-examination. It is possible that the applicant was unaware of the other racialized persons employed by the respondents at the time since he only worked for the respondents for a short period of time. On balance, I do not accept his evidence as accurate that he was the only racialized member of the respondents’ staff.

30When I asked the applicant if there was any other evidence that supported his strong belief that his race and/or age were a factor in the way the respondents treated him, the applicant testified that he had positive references from his previous jobs and had never been treated the way the respondents treated him. The respondents did not dispute that the applicant had provided them with positive references.

31After his testimony in chief, while he was cross-examining the respondents’ witnesses, the applicant sought to add an additional reason why he believed that his race and/or age were a factor in the way the respondents treated him. He stated that Mr. Niman had made discriminatory comments during the March 10, 2014 incident such as “go back to your country” and “you are too old for this job”. Mr. Niman denied making these comments.

32I cannot find on a balance of probabilities that the Mr. Niman made the discriminatory comments alleged by the applicant. I cannot disregard the fact that the applicant did not mention the alleged comments when I specifically asked him why he felt that his race and/or age were a factor in why the respondents treated him the way they did. As noted above, the applicant mentioned the alleged comments only later in the middle of his cross-examination of Mr. Niman. While it is possible that the applicant simply forgot to testify about the comments due to the stress of the hearing, I am left with significant doubts as to whether Mr. Niman did in fact make the alleged comments. I also find it significant that the applicant did not mention these comments in his witness statement filed in preparation for the hearing. He did mention the alleged comments in his Application but not in the main narrative setting out the events supporting his claim of discrimination. Overall, I am unable to find that Mr. Niman made these alleged comments on a balance of probabilities. As noted below, even if the comments were made they do not change my conclusions in this case.

applicable Law

33Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including race, ethnic origin, place of origin and colour. The applicant bears the legal onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The case law is clear that a protected ground need only be one of the factors involved for there to be a violation of the Code.

34Where it was necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so. In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.

Findings

35I find that the applicant has failed to establish on a balance of probabilities that he was treated differently or unjustly because of his race, age and/or any other Code ground. The applicant has also failed to establish, on a balance of probabilities, that his race, age or any other Code ground were factors in the termination of his employment or in the respondents’ refusal to pay him for the hours he had worked.

Alleged Differential Treatment

36I understand that the applicant felt like he was being treated differently from other employees for discriminatory reasons. However, I find that the evidence advanced in this case is insufficient to make out differential treatment contrary to the Code. In particular, I find it more likely than not that some of the forms of differential treatment occurred because the applicant was a new employee not because of any ground protected under the Code.

37The applicant raised four types of alleged differential treatment: being paid in cash, having his bags and clothing searched before he left the restaurant, being told to use the restaurant’s back door and not being provided food during his shifts.

38Although the applicant claimed that his being paid in cash was a form of discrimination, there was absolutely no evidence of the applicant disagreeing with this arrangement. In fact, the undisputed evidence at the hearing was that the applicant proposed the hourly rate and the respondents agreed to it. There was no evidence that the applicant ever sought to be put on the payroll with taxes being deducted from his pay. Based on the evidence, I find that the applicant acquiesced to being paid in cash and his race and/or age were not a factor in the respondent’s decision to pay him in this way.

39Similarly, I find that the applicant has not established that it is more likely than not that the respondents checked his bags/clothes before he left after his shifts because of race, age, or any other Code ground. There is insufficient evidence on this point for me to draw any inference that the respondents searched the applicant due to his race or age. I accept that it is more probable than not that the respondents searched the applicant in this way due the fact that he had just started his employment with the respondents. It is credible that, due to the high turnover in the restaurant industry, the respondents would have a practice of being more cautious with new employees. I find it more likely than not that the applicant was not treated any differently than other staff when he was told to use the back door. I accept Mr. Niman and Mr. Frenette’s testimony that even they used the back door to enter the kitchen rather than entering the front door. I find it credible that it would be the usual practice for restaurant staff to enter through the back door instead of walking through the restaurant when it was filled with guests. Mr. Niman and Mr. Frenette’s testimony in this respect was not questioned in cross-examination and I accept it as credible.

40Finally, the applicant advanced no evidence that he was treated any differently from other employees in not being provided with food. The evidence on this point was simply not sufficient to establish any differential treatment on a balance of probabilities.

41In light of the above, the applicant has failed to establish that the respondents treated him differently in the ways set out above due to any ground protected under the Code.

42I am also not satisfied on a balance of probabilities that the applicant’s race, age or any other Code ground was a factor in the way the respondents treated him during his last two days of employment, in the termination of his employment, or in failing to pay him for his work.

43With respect to the events on March 9, 2013, the applicant himself testified that Mr. Niman and Mr. Frenette took him outside to calm him down. The applicant, Mr. Niman, and Mr. Frenette all testified that the three of them agreed to try to resolve things in a productive way. Therefore, there was no evidence of discrimination in relation to the events of that day.

44With respect to the altercation on March 10, 2013, the applicant submitted that Mr. Niman and Mr. Frenette unjustly accused him of being aggressive due to his race and/or age. The respondents denied this claim and submitted that the applicant in fact had become aggressive towards other employees.

45One of the questions I have considered is whether the respondent’s impression of the applicant as being “aggressive” was tied to his race and/or age. I am concerned that, in their Response, the respondents claimed that the applicant grabbed a knife and “brandished” it at another employee when this in fact was not the case. I am even more concerned that Mr. Niman repeated this same claim in his testimony at the hearing when the respondents had filed a witness statement by Alex Burgess, who actually witnessed the incident, saying something different. As noted above, Mr. Burgess’ witness statement filed before the hearing stated that Mr. Burgess “believed” he saw the applicant look at the kitchen knives which were on a rail not too far from him and that he was “worried he would grab a knife.” While Mr. Niman stated that he was basing his testimony upon what another employee told him, I find it concerning, to say the least, that he would repeat the same accusation against the applicant when he knew his own witness who observed the incident had provided a very different account in his witness statement. I find that there is absolutely no credible evidence that the applicant brandished a knife at any of the respondents’ staff. There is also no credible evidence that the applicant picked up a knife in a threatening manner on his last evening of employment with the respondents.

46While Mr. Niman’s testimony on this point concerns me, I am also concerned by the applicant’s conduct during the hearing. I understand that the applicant believed strongly that the respondents treated him unfairly and discriminated against him. I understand that this can cause a person become emotional and angry. However, as noted above, the applicant lost his temper and elevated his voice at the respondents at several points during the hearing. The applicant also called Mr. Niman a “terrorist”. He loudly claimed that Mr. Niman owed him respect because he is older than Mr. Niman. The applicant also muttered loudly to himself during Mr. Niman’s testimony. I had to caution the applicant twice that his conduct was inconsistent with the obligation of courtesy and respect owed by parties under Rule A7 of the Tribunal’s Rules of Procedure.

47Based on all of the evidence at the hearing, I find that the applicant has failed to make out discrimination on a balance of probabilities. In my view, it is more probable than not that what occurred was a workplace dispute between individuals with very different styles of work. It seems clear that, having worked in very established kitchens, the applicant lost his patience with what he saw as a level of disorganization to which he was not accustomed. The applicant testified that he took initiative by instructing other employees about how to do their jobs properly. Based on the evidence, it seems clear that some other employees did not appreciate his instructions. Tensions between the applicant and the respondents’ staff mounted into a full scale altercation on March 10, 2013. I find it more probable than not that the applicant did lose his temper during the altercation that evening. It is also possible that other members of the respondents’ staff also lost their temper. However, I find it more probable than not that the respondents’ actions toward the applicant related to his angry outburst rather than his race, age, or any other Code ground.

48As noted above, I do not accept the applicant’s evidence that he was the only racialized person employed by the respondents in light of the respondents’ detailed evidence regarding other racialized persons on its staff. Even if the applicant were the only racialized person employed by the respondents, this would not be sufficient, in itself, to establish discrimination. I accept the applicant’s evidence that he had positive employment references. In fact, this was not disputed by the respondents. However, such references, by themselves, are insufficient to establish discrimination by the respondents. Finally, for the reasons set out above, the evidence is insufficient for me to find, on a balance of probabilities, that Mr. Niman made the discriminatory comments alleged by the applicant. Even if Mr. Niman did make such comments, the evidence was insufficient for me to find that such isolated comments made amounted to harassment under the Code in the circumstances of this case. There was also insufficient evidence to tie the alleged comments to the respondents’ conduct toward the applicant, given the balance of the evidence at the hearing.

49Although in his Application the applicant claimed that the respondents terminated his employment for discriminatory reasons, at the hearing he made it clear that he chose to quit. He did not allege that his quitting was forced in any way or that he had no choice but to quit due to the alleged discrimination by the respondents. In fact, in his testimony at the hearing he stated that, even before the altercation on March 10, 2013, he was thinking that he did not know how much longer he was prepared to remain employed with the respondents due to what he perceived to be a level of disorganization and a lack of training in the kitchen. For these reasons, I find that the applicant has not established that he was terminated for discriminatory reasons or that he was forced to quit for any reason connected to the Code.

50In order to find a violation of the Code with respect to the respondents’ refusal to pay the applicant, I must be satisfied that it is more likely than not that the applicant’s race, age, or another Code ground were factors in this refusal. Having reviewed all of the evidence before me, I cannot draw this conclusion. I find it more likely than not that Mr. Niman felt he could avoid paying the applicant due to the fact that the respondents had completed no formal payroll documentation for the applicant and perhaps also due to the applicant’s emotional outburst during his last shift. While it was unfair, and perhaps a breach of other legislation, for Mr. Niman to refuse to pay the applicant for the work he had done, I find that it was not a breach of the Code.

Order

51For the reasons set out above, the Application is dismissed.