Charles v. Cha, 2014 HRTO 674

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darryl Charles

Applicant

-and-

Dr. Charlie Cha

Respondent

DECISION

Adjudicator: Mark Hart

Date: May 12, 2014

Citation: 2014 HRTO 674

Indexed as: Charles v. Cha

APPEARANCES

Darryl Charles, Applicant

Self-represented

Dr. Charlie Cha, Respondent

Anne Posno and Brent Kettles, Counsel

1This is an Application dated November 29, 2012 and completed January 14, 2013, and filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race and colour.

2In brief, the applicant alleges that on December 8, 2011, he experienced racial discrimination in the context of the provision of medical services by the respondent, as a result of racial slurs to which he was subjected by the receptionist’s boyfriend and in relation to a decision alleged to have been made by the respondent to discontinue the doctor-patient relationship.

3The hearing in this matter took place on January 31 and February 12, 2014. I heard evidence from the applicant, the respondent and the receptionist.

REVIEW OF EVIDENCE

4The applicant self-identifies as “a visible minority born and raised in Canada, of Trinidadian descent”. The respondent is an East Asian man, and the receptionist is a White woman.

5The applicant had been the respondent’s patient for over 10 years, with no previous issues between them. In fact, both parties testified that prior to the incident on December 8, 2011, they had a good rapport with each other.

6On the morning of December 8, 2011, the applicant called the respondent’s office and spoke with the respondent’s receptionist. The applicant needed to have some medications renewed and wanted to come in that day. There is no dispute that in prior years, the respondent had operated his practice as more of a walk-in clinic and pre-booked appointments were not required. However, as of the time the receptionist was hired in April 2011, the respondent changed his practice to require patients to make appointments in advance. The applicant states that this change in practice was not made known to him prior to the events of December 8, 2011.

7When the applicant spoke with the receptionist on the morning of December 8, 2011, he was told that the respondent was fully booked with appointments that day. While there was some suggestion that the receptionist may have offered the applicant an appointment on the next available day, the receptionist could not specifically recall whether she had done this.

8The applicant does not dispute that he became frustrated on the phone when he was told that he could not see the respondent that day. His evidence is that the receptionist was abrupt, stand-offish and not cooperative from the beginning of the conversation, and he acknowledges that he became aggravated on the phone. While he states that he does not recall word for word what was said between the two of them, he testified that it “wasn’t nice” and that he hung up the phone on the receptionist. The applicant states that, shortly afterwards, he called back again to say that he was coming down to the respondent’s office. The applicant’s evidence is that, on his way down to the office, he received a voicemail message from the receptionist saying that there had been a cancellation and that he could come in.

9The receptionist’s recollection of the initial phone call is somewhat different. She recalls telling the applicant that the respondent was fully booked that day, and the applicant became angry and demanding. Her evidence is that the applicant said that this happened to him all the time because of “prejudism”. She states that she did not know that the applicant is Black at the time of this call. She confirms that, after this call, she spoke with the respondent, and he agreed to see the applicant that day.

10The applicant’s evidence is that the waiting room in the respondent’s office was empty when he arrived at approximately 11:45 a.m. There is no dispute that there was one patient being seen by the respondent when the applicant arrived. The respondent’s appointment book shows that this patient had an appointment from 11:30 a.m. to 12:00 noon. The receptionist’s evidence is that there was at least one other patient in the waiting room when the applicant arrived. She has a specific recollection of this patient speaking to her about the applicant’s conduct and was able to identify this patient from the respondent’s appointment book. I have excerpts from the respondent’s appointment book in evidence before me, which show that he was fully booked with patient appointments on December 8, 2011.

11In any event, whether there was no one in the waiting room when the applicant arrived or one other patient, the applicant’s perception was that the state of the waiting room did not accord with the information he had been given by the receptionist about the respondent being fully booked that day. He states that he was surprised when he arrived, and that this caused him to question what he had been told by the receptionist. He acknowledges making a sarcastic comment to the effect of “you guys look really busy”, and he also acknowledges saying to the receptionist that the respondent’s previous receptionists were extremely more proficient and talented than the current receptionist, and that he could not believe how he was being treated. He states that the receptionist took exception to his comments and raised her voice over his, to which he responded by raising his voice to her. All parties agree that it was at this point when the respondent came into the waiting room area from where he had been treating his patient.

12The applicant denies that he was angry during the course of this exchange, although he acknowledges that he was upset, frustrated and aggravated. He also denies that he was yelling, although he acknowledges raising his voice and that he has a deep voice that carries. The applicant states that when he first came into the respondent’s office, he went to the reception counter. As the argument progressed, he states that he took a few steps back from the counter and believes that he clasped his hands behind his back.

13Once again, the receptionist’s recollection of this exchange is quite different. Her evidence is that the applicant was standing at the reception counter, leaning over the counter, and screaming and yelling in her face. Her evidence is that the applicant said that she had a bad attitude, and called her a “white bitch” and then proceeded to call her a “bitch” again several times. This is denied by the applicant. The receptionist describes the applicant’s voice as being very loud, angry and upset. She states that at one point the applicant’s face was about three inches away from hers, he was leaning over the reception counter and pointing his finger at her, and she feared that he was going to hit her. She states that she does not recall saying anything to the applicant in response, other than telling him that the rules were the same for everyone and that he should wait to speak with the respondent.

14The respondent’s evidence is that he was treating a patient when all of a sudden he heard a loud argument in the waiting room. He states that the applicant was being very loud and aggressive and that initially the receptionist was trying to placate the applicant but then started to defend herself. He testified that he heard the applicant call the receptionist a “white bitch”, although I note that this was not included in his will-say statement. He further states that the applicant was standing “right up against the counter” when he arrived in the waiting room, and was pointing his finger at the receptionist. The respondent states that the receptionist was “shaking” when he arrived in the reception area.

15The respondent took the applicant into one of the back offices, and the applicant began to explain his perspective on what had happened. At some point, the respondent and applicant were interrupted by the receptionist. By this time, the receptionist had called her boyfriend and asked him to come pick her up and take her home, because she was upset and scared. Her evidence is that she had never before been treated in the workplace in the way she had been treated by the applicant. She states that she told her boyfriend that a patient was accusing her of being prejudiced for not giving him an appointment, that this patient had been screaming in her face, and had called her a “white bitch”.

16The receptionist states that, after calling her boyfriend, she went back and knocked on the door of the office where the respondent was meeting with the applicant. She states that she was crying and upset, and told the respondent that she was going home and that her boyfriend was coming to get her. This is confirmed by the respondent’s evidence, who described the receptionist as crying and “very shaken”. The receptionist states that she told the respondent that she was not going to come back to work for him if he continued to see the applicant as a patient, because the applicant scared her. She states that the respondent told her not to leave, that he needed a secretary and could not afford for her to leave, and that she would not need to see the applicant any more.

17The applicant confirms that when the receptionist interrupted his meeting with the respondent, she said words to the effect that if the respondent continued seeing the applicant or treating him as a patient, she would no longer work for him. The respondent’s evidence also confirms that the receptionist said that she would no longer work for him if the applicant remained as a patient.

18The receptionist went back to her desk in the reception area. At this point, the boyfriend arrived. The receptionist’s evidence is that she did not expect her boyfriend to come up to the office. She states that usually when he picks her up from work, he stays in the car and calls her to come down. Instead, on this occasion, the boyfriend came up to the office and proceeded to utter the vilest of racial slurs directed towards the applicant. The applicant’s recollection is that he was called a “coon nigger” and told that he should be out in the fields picking cotton, and that this individual was going to teach the applicant a lesson. The racial slurs uttered by the boyfriend are not in dispute.

19The applicant was quite understandably shocked and upset by these racial slurs. There is no dispute that the respondent told the applicant to remain in the back office, and left to deal with the situation. The respondent told the boyfriend to leave the office, and the boyfriend did so. At the respondent’s urging, the receptionist remained at work.

20There is a dispute between the parties as to what was said as between the applicant and the respondent about the continuation of the doctor-patient relationship. The applicant’s evidence is that, before the boyfriend arrived and after they had been interrupted by the receptionist, the respondent said that he could not keep the applicant as a patient because he depends upon his receptionist to run his practice and could not do this without her. The applicant states that he asked the respondent to reconsider, and said that the respondent was his doctor and he could not do this. The applicant states that the respondent replied by saying that his decision was final, and he would not treat the applicant further beyond this last appointment. There is no issue that the applicant was treated by the respondent that day, and that his medications were renewed for a three-month period.

21The respondent’s evidence is quite different. He states that after the receptionist came to the door of the office where he was meeting with the applicant, the applicant saw the situation and said that he was sorry to put the respondent in this predicament and that it would be better if he did not continue as the respondent’s patient. The respondent states that he renewed the applicant’s medication for a three-month period, rather than the usual one month, because the applicant had indicated that he was going to look for another doctor and the respondent wanted to give him time to find one.

22After returning from dealing with the boyfriend, the respondent states that he apologized to the applicant for the racial slurs, and said that he was very sorry that this had happened to the applicant. After they were finished, the respondent walked the applicant down the stairs and out a back entrance in order to avoid encountering the boyfriend. He states that he again apologized for what had occurred. He states that the applicant also apologized for his initial behaviour and said to extend his apology to the receptionist. He states that the applicant again said that he was going to find another doctor, because he no longer felt comfortable coming to the respondent’s office. He states that the applicant said that because the receptionist’s boyfriend was racist, the applicant assumed that the receptionist also was racist. The respondent states that when he was taking the applicant out of the office, he had the receptionist go into a back room where the door could be locked, so that there would not be any further encounter between her and the applicant.

23The applicant’s evidence is that, as he was exiting the building with the respondent, he once again asked the respondent to reconsider his decision to no longer see the applicant as a patient, but the respondent was not prepared to do so. He acknowledges apologizing to the respondent, but denies extending any apology to the receptionist.

ANALYSIS AND DECISION

24The parties agree that there are two issues raised in this proceeding: (1) whether the respondent can be held to be liable in relation to the racial comments made by the receptionist’s boyfriend; and (2) as a factual matter, whether Dr. Cha discontinued the doctor-patient relationship with the applicant and, if so, whether the applicant’s race and/or colour was a factor in this decision, whether directly or indirectly.

25The first issue requires me to consider the deemed liability provision in s. 46.3 of the Code, which states:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

26The receptionist’s boyfriend clearly is not an officer, official or employee of the respondent. The issue in this case centers on whether the boyfriend can be regarded as an “agent” of the respondent and if so whether his actions can be regarded as having been “in the course of his . . . employment” within the meaning of s. 46.3.

27In my view, given the broad, liberal and purposive approach to the interpretation of the Code that this Tribunal is obliged to take, the interpretation of the term “agent” and “in the course of his . . . employment” in the context of s. 46.3 must be guided by the approach taken by the Supreme Court of Canada to the interpretation of the term “employee” and “in the course of employment” as set out in Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, as the Supreme Court was interpreting language that also appears in s. 46.3. At para. 17 of that decision, La Forest J. states:

… I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees "in the course of employment", interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions.

28With regard to the question of agency, it is my view that the approach taken in Robichaud is consistent with recent Canadian decisions regarding vicarious liability for the actions of an agent in tort, as summarized in the following passage by G.H.L. Fridman in Canadian Agency Law (Markham: LexisNexis, 2009) at pp. 186-7, where it is stated:

. . . whether the perpetrator of the tort was an agent, in the strict sense, or an employee, in the old sense of servant, the test of vicarious liability depended upon neither the scope of authority nor course of employment, in the classical sense of those expressions, but upon the closeness of the connection between the risk created by what the tortfeasor was engaged by the defendant to do and the wrong committed by the tortfeasor. The imposition of liability in a given instance … was whether such an imposition would be appropriate in the circumstances as a just and practical remedy.

29As I understand these principles, it is not sufficient for the respondent merely to say that the receptionist’s boyfriend was not engaged to come up to the respondent’s office and utter racial slurs towards the applicant and that such conduct was beyond the scope of any authority granted to the boyfriend. This would be a very narrow approach to the interpretation of s. 46.3, which would be inconsistent with the Code’s purpose and objectives.

30At the same time, to use the language from Fridman, I do need to assess the closeness of the connection between the risk created by what the boyfriend was engaged by the respondent to do and the wrong committed by the boyfriend. In my view, it makes no difference that the respondent was not directly responsible for contacting the boyfriend, given that the contact was made by the respondent’s employee in the context of an issue that had arisen in the workplace.

31However, it is significant to me what the boyfriend was engaged by the receptionist to do. I have no basis in the evidence to doubt the receptionist’s evidence that, given the situation that had arisen with the applicant, she simply wanted to leave the workplace and go home. This is consistent with her emotional state at the time, which has been described as “crying” and “very shaken”, and is consistent with what she told the respondent. While she did share with her boyfriend some of the details of what had occurred with the applicant, what she engaged with the boyfriend to do was simply to pick her up from the office and take her home. I also have no basis in the evidence to doubt the receptionist’s evidence that on previous occasions, her boyfriend had called up to her from outside the office when he arrived and that she would go down to meet him. This is supported by the respondent’s evidence that he had not previously met the receptionist’s boyfriend. As a result, I accept the receptionist’s evidence that she did not ask the boyfriend to come up to the office and did not expect him to do so. On the basis of the evidence before me, I find that the boyfriend was not engaged by the receptionist to come up to the office or to address the situation with the applicant. He was called simply to drive her home.

32Given these findings of fact, it is my view that there is an insufficient connection between the risk created by what the boyfriend was engaged to do, which was simply to pick the receptionist up and take her home, and the boyfriend’s actions in coming up to the office and uttering racial slurs towards the applicant. As a result, I find that I have an insufficient basis in the evidence to support the imposition of liability on the respondent for the actions of the boyfriend on the basis of s. 46.3 of the Code or any broader principle of vicarious liability.

33In making this finding, I do not intend to minimize in any way the reprehensible nature of the boyfriend’s actions or the impact that his racial slurs had on the applicant. The boyfriend’s actions and comments are inexcusable and intolerable, and were understandably very upsetting to the applicant. I agree with the applicant that it was outrageous for him to be subjected to such slurs in any context, let alone in a medical office. That, however, is a different question from whether the respondent properly can be held responsible under the Code for the boyfriend’s actions. For the reasons stated above, I find that the respondent cannot be held responsible under the Code.

34In addition to whether the respondent can be held vicariously liable for the boyfriend’s actions, there is no doubt that the respondent had a responsibility under the Code to take reasonable steps to respond to the boyfriend’s actions: see Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. In my view, the respondent fulfilled this responsibility. Upon hearing the racial slurs, the respondent took immediate steps to address the situation by confronting the boyfriend and telling him to leave the premises. He then returned to the applicant and apologized to him for what he had been subjected to. He took steps to ensure the applicant’s safety by escorting him down the stairs to the back door of the building to avoid any confrontation with the boyfriend. And the respondent subsequently took steps to make clear to the receptionist that her boyfriend was not welcome in the office in future, and that if a similar situation arose in future, she should call the police and not her boyfriend.

35With regard to the second issue, I appreciate that there is a factual dispute as to whether the respondent ended the doctor-patient relationship, as alleged by the applicant, or whether the applicant voluntarily withdrew from the respondent’s practice, as alleged by the respondent. In my view, it is not necessary for me to resolve this factual dispute in order to make the determination that I need to make within my jurisdiction under the Code.

36Even if I were to accept the applicant’s evidence that the respondent was the one who ended the doctor-patient relationship, this is only a matter within my jurisdiction if the applicant’s race, whether directly or indirectly, was a factor in this decision. On the basis of the evidence before me, it is clear that the respondent did not directly discriminate against the applicant because of his race. The respondent has been treating the applicant as his patient for over 10 years, and they both testified that they had a good rapport with each other.

37Rather, on the evidence before me, if the respondent terminated the doctor-patient relationship, it was due to his receptionist’s statement that she would not continue to work for the respondent if he continued to treat the applicant as a patient. I can appreciate the applicant’s upset that the doctor who had been treating him for over 10 years may have chosen his receptionist over his longstanding patient. But this only becomes an issue within my jurisdiction if the applicant’s race was a factor in any ultimatum delivered by the receptionist to the respondent, such that the respondent’s reliance on the receptionist’s position was tainted and constitutes indirect racial discrimination under the Code.

38As a result, I need to examine whether the applicant’s race was a factor in the receptionist’s reaction to his conduct. In making this assessment, I am mindful of the fact that racial discrimination is often subtle and elusive, and can stem from unconscious racial bias based upon stereotypes. The question for me is whether any such racial bias was operating in the context of this case.

39For me, it is important to examine the interaction between the applicant and the receptionist in the context, including the physical context, in which it took place. In summary, the applicant called the medical office to make a same-day appointment to renew his prescriptions. He was used to doing this in the past. But there had been a change in office procedure and now an appointment was required. This was not the receptionist’s fault. The evidence before me indicates that in fact the respondent was fully booked with appointments on the day in question. In this context, in my view, it was unreasonable for the applicant to have insisted on an appointment that day, particularly in the absence of any real medical emergency.

40Nonetheless, the applicant decided to come down to the office without an appointment. Before he even arrived, he received a voicemail telling him that there had been a cancellation and he could be seen. But even though he was now going to be seen by the respondent, the applicant still was not content to let it go. He arrived at the office and, because he did not see a full waiting room, assumed that what he had been told about the respondent being fully booked was untrue. Once again, in my view, this was an unreasonable assumption to make. As the respondent was now seeing patients on the basis of scheduled appointments, one would not expect patients to arrive a considerable time ahead of their scheduled appointment, and so an empty or near-empty waiting room is not inconsistent with the respondent being fully booked.

41Not content to leave it there, the applicant proceeded to make a sarcastic comment about how busy the office was, and then proceeded to make derogatory statements about the receptionist’s work abilities. These comments, in my view, were entirely unwarranted and uncalled for.

42In my view, the applicant’s entire reaction to this situation was unreasonable. He himself acknowledges being upset, aggravated and frustrated, and admits to raising his voice. Given that the applicant had unreasonably attacked the receptionist’s professionalism, I am not surprised that she defended herself and perhaps even raised her voice in response.

43All of this interaction took place in the context of a very small waiting room and an even smaller reception area. The receptionist was seated behind a counter and a desk, with her head visible above the counter. There was not much room behind her desk to move back. The applicant is a very large man, testifying to being 6’1” tall and about 220 lbs., and the receptionist is a rather diminutive woman. I do not accept the applicant’s evidence that he stepped back from the counter and put his hands behind his back. It struck me from his evidence that this is what the applicant “believes” he did based on how he has conducted himself on other occasions, as opposed to him having a specific recollection of having done so on this particular occasion. What I mean by this is that the applicant described in his evidence how in conflict situations, he has a tendency to step back and put his hands behind his back because he is aware of his large stature. However, he cannot specifically recall that he did this on the occasion in question, but was only able to testify that he believes this is what he did.

44The applicant’s evidence also is inconsistent with the evidence of the receptionist and the respondent, who both testified that the applicant was at the counter and pointing his finger towards the receptionist. In addition, given my finding that the applicant was unreasonably upset, aggravated and frustrated on this occasion, I find it more consistent with the applicant’s emotional state that he conducted himself in the manner described by the receptionist and the respondent, than in the rather restrained manner described by the applicant.

45So in the end, I find that we have an unreasonably angry man coming into a medical office, making sarcastic and derogatory comments to the receptionist, raising his voice, and leaning over the counter and pointing his finger towards her. In addition, I find that this occurred in a rather small and confined space, with a significant disparity between the applicant’s large stature and that of the receptionist. In this context, in my view, it is understandable that the receptionist would be upset, crying, scared and shaken over this incident, and would not want to continue dealing with the applicant as one of the respondent’s patients. This reaction, in my view, was not related to the applicant’s race, but was in response to his inappropriate behaviour on this occasion. As a result, even if the respondent relied upon his receptionist’s reaction to this incident with the applicant as the reason to discontinue the doctor-patient relationship, I find that any such decision was unrelated to the applicant’s race.

46I am cognizant of the stereotype of Black men as being potentially violent, and have considered carefully whether that stereotype was operating in the receptionist’s reaction to this situation and particularly in relation to her evidence about being scared or frightened by the applicant. In the specific circumstances of this case, it is my assessment that it was not unreasonable for the receptionist to feel frightened of the applicant, given the large disparity in physical stature and the confined space in which the interaction occurred. I do not find a sufficient basis in the evidence to conclude that her reaction was influenced by racial stereotypes.

47The applicant repeatedly raised the issue that, if the receptionist was as fearful of him as she says, then why did she not call the police. In my view, this is not germane to the issue before me. A person can be scared or frightened without immediately calling the police. Further, the entire interaction between the applicant and the receptionist was relatively short before the respondent appeared, and from that point, the applicant was taken into a back office and had no further interaction with the receptionist. As a result, it is not clear to me what reason the receptionist would have had to call the police in any event.

ORDER

48For the foregoing reasons, the Application is dismissed.