Kan Ning Li v. International News, 2014 HRTO 80

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kan Ning Li

Applicant

-and-

International News

Respondent

DECISION

Adjudicator: Catherine Bickley Date: January 20, 2014 Citation: 2014 HRTO 80 Indexed as: Li v. International News

APPEARANCES

Kan Ning Li, Applicant Self-represented

International News, Respondent Yongchul Jo, Representative

Introduction

1This is an Application filed under section 34 of Part IV 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, place of origin, ethnic origin, ancestry, citizenship and age. Although the ground was not checked off on the application, the applicant also referred at the hearing to discrimination on the basis of creed. The applicant identifies herself as “an asian-canadian, 2nd generation immigrant and Chinese and a woman.”

2This Application concerns a brief encounter between the applicant and Yongchul Jo, the co-owner of a convenience store, in August 2010. While Mr. Jo says he does not remember the encounter, the applicant says that his actions violated her rights under the Code and had a lasting negative impact on her.

3The applicant testified on her own behalf. The respondent called four witnesses: Jane Cockburn and Mostufa Wahba (long-time customers of the store), and James Jang (a supplier of the store) and Mr. Jo. With the exception of Mr. Jo, none of the respondent’s witnesses were present during Mr. Jo’s alleged interaction with the applicant.

relevant code grounds

4Section 1 of the Code provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

decision

5For the reasons that follow, I find that the respondent breached the applicant’s rights under the Code by failing to offer its services without discrimination on the basis of race, ancestry and ethnic origin. I find that the applicant has not established that the respondent breached her rights on the grounds of place of origin, citizenship, age or creed.

issues and findings of fact

The date of the alleged incident

6There was initially some confusion regarding the date of the alleged incident. The Application stated that it took place on August 22, 2010, which was a Sunday. In its Response, the respondent stated that the store was closed on Sundays.

7In her Reply, the applicant stated that she had left New York on Sunday, August 22, 2010 on an overnight bus and arrived in Toronto early on Monday, August 23, 2010. The applicant entered into evidence a Ticket Purchase Confirmation indicating that she had purchased a ticket on a bus that was scheduled to depart New York at 8:45 p.m. on August 22nd and arrive in Toronto at 6:30 a.m. on August 23rd. I accept the applicant’s evidence that she arrived at the Toronto Coach Terminal in the early hours of Monday, August 23, 2010.

Ownership of the Store

8Mr. Jo testified that he sold the store on November 25, 2010 and transferred ownership. He entered into evidence an undated reporting letter from the business’ lawyer addressed to him and to the business’ other co-owner, Chunok Jun. Although the letter is undated, the attached documents (Direction Re: Funds, Undertaking to Re-Adjust and Election Concerning the Acquisition of a Business or Part of a Business) are all dated November 25, 2010, suggesting that the letter was written on or shortly after that date. The reporting letter indicates that the transaction consisted of the sale to an Ontario numbered company of “Assets of the business known as ‘International News’ business located at 250 Dundas Street West, Unit 14, Toronto, Ontario”. In other words, the sale was of the business’ assets rather than of the business itself.

9The applicant filed a Business Names Report dated September 8, 2011, showing that the name “International News” was registered under the Business Names Act with Business Identification Number 191258144 on December 14, 2009, that the registration would expire on December 13, 2014 and that the registration had not been cancelled as of the date of the report. The business is a general partnership and the listed partners are Yongchul Jo and Chunok Jun. There is now apparently an Ontario numbered company, in which neither Yongchul Jo nor Chunok Jun have an interest, operating a convenience store called “International News” at the same location.

10The Response, which was filed by Mr. Jo, indicates that the store located at 250 Dundas Street West in Toronto was operated as a franchise of International News which is a national franchisor.

11I find that the business identified by Business Identification Number 191258144 was operating a convenience store called International News at 250 Dundas Street West in Toronto at the time the applicant visited that location on August 23, 2010. Further, I conclude that although the business sold certain assets in November 2010, the business itself remained in existence at the time of the hearing. This is not a corporation but the general partnership still exists and can be found liable for the franchise as it existed at the time of the incidents giving rise to this Application.

The August 23, 2010 Encounter

12The applicant testified that because she had slept all night on the bus ride from New York to Toronto she was thirsty. When she entered the store, International News, at 250 Dundas Street West, she immediately sensed that the person behind the cash register had a “not so happy to see you kind of face”. She went to the back of the store, selected some orange juice, went to the counter and asked “how much?”. Mr. Jo told her the amount. She searched in her bag for Canadian cash and then asked if the store took American cash. Mr. Jo said, “No! How do I know it’s not fake?”. She said, “that’s weird, most stores take American cash”. Mr. Jo yelled, “Do you have money? If not, get out.” She said “You know what, forget it. I don’t want it. I wouldn’t pay for it with that attitude.” The applicant stated that then she and Mr. Jo “may have exchanged a few words, asshole or something”. Then Mr. Jo said, “Fucken Chinese” as the applicant started to leave the store. She turned around, said “Oh, you’re a racist. So that’s it,” swore at him in Korean and left the store.

13The applicant testified that she has lived in Ontario all her life and has never been called “anything so foul based simply on my Chinese race”. At first she tried to laugh off or shove the experience to the back of her mind but was astounded that she was treated so poorly for what she concluded was no other reason than being Chinese. She subsequently decided to file an Application.

14Mr. Jo testified that he had no recollection of ever meeting the applicant and suggested that the encounter she described had taken place in a different convenience store. He argued that the confusion about what date the incident happened supported his theory that it involved a different store. He testified that he had no recollection of meeting the applicant before the hearing.

15Mr. Jo stated that his store is near Chinatown, that he sells Chinese newspapers every day and that there are always Chinese people in his store. Further, many travelers visit his store and he always accepts American money. He stated that he always tries to treat customers with the best service and without any discrimination. He lives in Richmond Hill and all his neighbours are Chinese so he “always lives well” with Chinese people. As an immigrant from Korea, Mr. Jo has experienced discrimination himself.

Testimony from store customers and supplier

16Jane Cockburn testified that during the 10 years that she had been a customer of the store she had seen many Chinese customers and noticed that the store sold Chinese newspapers. She had only seen Mr. Jo treat customers respectfully. She was not present during the interaction between Mr. Jo and the applicant.

17Mostufa Wahba testified that he lives close to the store and has known Mr. Jo for the past 8 or 9 years. When he visits the store, he sees a variety of people, some of whom are Chinese. He has observed Mr. Jo being “very polite and very decent” to customers. On at least one occasion when Mr. Wahba didn’t have any money, Mr. Jo let him come back and pay later. He was not present during the interaction between Mr. Jo and the applicant.

18James Jang regularly delivers merchandise to the store. He testified that he had seen lots of Chinese people in the store and that the store sold Chinese newspapers. He never saw any problems between Mr. Jo and customers of any race or age. He was not present during the interaction between Mr. Jo and the applicant.

Did the August 23, 2010 Encounter Amount to a Breach of the Code?

19An applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation occurred. Clear, convincing and cogent evidence is required in order to satisfy this onus. See: F. H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46.

20Much of the evidence led by the respondent’s representative was aimed at establishing that Mr. Jo was typically polite and respectful to his customers. The issue in this hearing, however, is not Mr. Jo’s general behaviour toward customers but what happened on August 23, 2010. Specifically, in the midst of a dispute with a customer, the applicant, did Mr. Jo utter a derogatory comment which targeted the applicant’s ethnicity, race, ancestry or other Code grounds?

21Mr. Jo did not offer an alternative account of the encounter. Instead, he simply denied that he had had any interaction at all with the applicant.

22With the exception of Mr. Jo, none of the respondent’s witnesses were present during the August 23, 2010 encounter that is the subject of this application. The evidence of Ms. Cockburn, Mr. Wahba and Mr. Jang is of no assistance in determining what happened between Mr. Jo and the applicant on that date. How Mr. Jo treats his regular customers, for example, by allowing Mr. Wahba to pay later, is not necessarily indicative of how he treats other customers, particularly a customer like the applicant who, from her own evidence, was tired and thirsty and was rude to Mr. Jo.

23Mr. Jo gave evidence regarding his normal practices in interacting with customers. Again, this does not establish how he would act when in a confrontation with a customer.

24The applicant argued that there was no reason for her to waste people’s time with a fictitious charge given that she is a second year student in a counselling program, who works and has a practicum placement and family obligations. She had initially tried to forget the incident but later, partly as a result of self-reflection during a Masters-level course on Culture-Infused Counselling Competency, decided to file her Application.

25The applicant submitted a paper entitled “Personal Competencies Paper” that she had written during the above-noted course during Winter 2011. In the paper she notes:

I had the unfortunate circumstance of an incident of racial discrimination. Me with my Canadian accent and style of dress was not immune to being called a #%!& Chinese by an Asian store owner. This incident occurred over seven months ago but it left a bad taste in my mouth. I am in the process of filing a formal complaint with the Ontario Human Rights Commission [sic] that protects me from discrimination on the grounds of race and recognizes this incident in which I am being treated unfairly based on my ethnicity. Taking this course has given me the strength to take action …

26The paper was written approximately seven months after the alleged encounter between Mr. Jo and the applicant. The Application was filed approximately eleven months after that encounter. The fact that the applicant wrote about her experience with the respondent in an academic paper three or four months prior to filing her Application, in my view, lends credibility to her version of events. It seems unlikely that the paper was part of an elaborate plot to file a false application.

27The applicant gave her evidence in a straightforward but emotional manner. Her evidence was consistent with the allegations set out in her Application and Reply. Further, she did not tailor her evidence to make her own behaviour appear perfect. She acknowledged that she had called Mr. Jo an “asshole” or some similar word before he called her a “Fucken Chinese” and that she swore at him in Korean because she assumed he was Korean.

28Mr. Jo chose not to cross-examine the applicant and did not suggest any reason why the applicant’s evidence was unreliable other than to suggest that she was mistaken. He points to the error in the Application regarding the date of the alleged encounter in support of his position that the encounter did not happen since his store was closed on October 22 which was a Sunday. The Application originally listed the date on which the applicant started her overnight bus trip (October 22) rather than the date on which the applicant ended her overnight bus trip (October 23). This discrepancy is in the nature of simple human error. As noted above, the applicant filed documentation that established the dates on which her bus trip started and ended and the date on which she arrived in Toronto was a Monday.

29I find that the applicant and Mr. Jo did encounter one another in International News in the early hours of Monday, August 23, 2010. I also find that there was a heated discussion between the two during which each swore at the other. Specifically, Mr. Jo said “Fucken Chinese” as the applicant was leaving the store. This slur engaged the Code grounds of ethnicity, race and ancestry.

30A service provider has a positive obligation under the Code to offer its services in a discrimination-free manner. Hurling a racial slur at a customer breaches this obligation: Ontario Human Rights Commission v. Garai, 2000 CanLii 20869 (ONHRT), Adorgloh v. Seasons Foodmart and Feng Lin, 2013 HRTO 1201.

31It appears that the applicant called Mr. Jo an “asshole” before he made the complained of comment. Notably, the fact that offensive name-calling or slurs have been uttered in the heat of conflict has been found not to relieve a respondent from liability under the Code: Persaud v. Consumers Distributing (No. 1) (1990), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23, Abdallah v Thames Valley District School Board, 2008 HRTO 230, Szyluk v. United Food and Commercial Workers Canada, Local 1000A, 2009 HRTO 902.

32I find that the applicant has established that her rights under the Code were breached when Mr. Jo uttered a slur that focused on her race, ethnic origin, and ancestry.

33With respect to the grounds of place of origin, citizenship, age and creed, the applicant presented no evidence to support her speculation that these grounds played a role in her negative treatment by Mr. Jo. Accordingly, I cannot find that her rights under the Code were breached on those grounds.

34The applicant relied on the Divisional Court’s decision in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.) for the proposition that when an individual responsible for discrimination is the directing mind of a corporation, the corporation can be held liable. In the instant case, Mr. Jo is one of two partners who owned the business which operated the International News store at the time of the applicant’s visit to the store. As a result, the business is liable for Mr. Jo’s actions.

REmedy

35Section 45.2(1) of the Code provides that, if the Tribunal determines that a party to an application has infringed a right under Part 1 of another party to the application, it may make the following orders:

(1) An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

(2) An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including resolution for injury to dignity, feelings and self-respect.

(3) An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Monetary Remedy

36The applicant asked for $11,000 in compensation for injury to her dignity, feelings and self-respect, calculated as $1,000 per month between the August 23, 2010 incident and the time that she filed her Application. She stated that a monetary award would have a big effect on the respondent and act as punishment.

37The applicant stated that even two years after the incident, it is still the major topic of conversation in her life. At the hearing, she was tearful while testifying about the incident’s impact. She commented that, “to feel such animosity from somebody who doesn’t even know me because of my race, it troubles me”. She said that now when she enters a store she starts thinking that the people behind the counter will profile or judge her because of her race. She stated that, “[i]n all my 38 years I have never experienced this type of ‘in your face’ discrimination.” The applicant did not provide any evidence of medical treatment nor did she provide any evidence from anyone but herself with respect to the impact on her of the breach of her rights under the Code.

38In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON. S.C.D.C.), the Court held that in awarding compensation, tribunals should consider subjective factors (humiliation, hurt feelings, the loss of self-respect, dignity and confidence of the applicant, the experience of victimization, vulnerability) and the objective seriousness of the offensive treatment (at para. 153). Further, in assessing the amount of the award, a tribunal must be mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a “license fee” to discriminate (at para. 152).

39In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent compensation awards and stated at paras. 52-54:

I turn now to the relevant factors in determining the damages in a particular case. The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para.16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect. [emphasis added]

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

40The factors set out in Sandford include:

Humiliation experienced by the complainant; Hurt feelings experienced by the complainant; A complainant’s loss of self respect; A complainant’s loss of dignity; A complainant’s loss of self esteem; A complainant’s loss of confidence; The experience of victimization; Vulnerability of the complainant; The seriousness, frequency and duration of the offensive treatment.

41In the instant case, the complained of behaviour was transitory, taking place over a short period of time and outside a relationship, such as that in an employment or educational context, where there is a noticeable power imbalance between a respondent and an applicant. One racial slur was uttered in the heat of the moment during an argument in which the applicant called Mr. Jo an “asshole” and swore at him in Korean, based on her assumption that his ethnicity was Korean. No medical or other independent evidence was provided to explain or support the impact on the applicant of this negative encounter. There is no ongoing relationship between the parties. These factors suggest a relatively low award of compensation is appropriate in this case.

42Further, with respect to the applicant’s suggestion that a large award would serve to punish the respondent, it is important to note that the purpose of a remedial award is to restore an applicant, to the extent a monetary award can do so, to the position he or she would be in if the discrimination had not occurred. A remedial award is not intended to punish a respondent. In addition, there is no logical connection between the amount of time it takes an applicant to file an Application and the appropriate amount of a remedial award.

43A case with somewhat similar facts is Adorgloh v. Seasons Foodmart and Feng Lin, 2013 HRTO 1201. In that case, the applicant (who identified himself as a “black man of African descent”) and his wife were in the process of paying for their purchases in a small grocery store when the cashier serving them made a derogatory comment, in Mandarin, to another cashier. The applicant’s wife, who understands Mandarin, translated the comment for him as “Look at this monkey. If I married him I would suffer the rest of my life.” The Tribunal ordered general damages of $500 from the individual respondent and $1,500 from the corporate respondent. Although the applicant testified that the comment had a significant harmful impact on him, his wife and their relationship, there was no evidence that either of them sought medical treatment. In the Adorgloh case, the impact of the original comment was exacerbated by the store manager’s failure to take the applicant’s complaint seriously. In the instant case, there was no further interaction between Mr. Jo or any other representative of the respondent and the applicant.

44In Abdallah (above), $1,500 was awarded based on multiple comments by a teacher to a student. In Szyluk (above), $1,000 in general damages was awarded for the impact on a union member of racial slurs uttered by a union official. In Romano v. 1577118 Ontario Inc., 2008 HRTO 9, $1,000 was awarded for the impact on an employee of a vulgar sexual comment by her employer. In Baisa v. Skills for Change, 2010 HRTO 2161, $1,500 was ordered in compensation for two sexually vulgar comments by a male co-worker to the applicant. In Kovacs v. Inscan Contractors, 2010 HRTO 810, an award of only $100 was made where a supervisor had made two comments about an applicant’s temporary disability. Cases involving one or two comments which have resulted in higher awards of general damages have generally involved employment relationships. See, for example, Brooks v. Total Credit Recovery ($2,500) 2012 HRTO 1232, Pardy v. Graham, 2012 HRTO 122 ($5,000), Pleasant v. Mainline Manufacturing & Installing Inc., 2005 HRTO 34 ($7,000).

45Taking into account all the circumstances of this case, particularly the transitory nature of the encounter and the lack of an ongoing relationship involving a power imbalance between the parties, and awards made in comparable cases, I conclude that an award of $600 in compensation for the injury to the applicant’s dignity, feelings and self-respect is appropriate.

Non-monetary Remedy

46In addition to a monetary remedy, the applicant asked that “the company” perform an audit and training of franchisees in how to serve the general public. In seeking this remedy she seemed to confuse the franchisor, International News, with the respondent in this case, the partnership which operated the International News store in question. There was no evidence led at the hearing regarding the level of control the franchisor had over the daily operation of the store. In addition, the franchisor was not a party to the Application. For these reasons, I decline to make any award that implicates the franchisor.

47Mr. Jo testified that he is no longer operating any business and is instead working as an employee of a large corporation. In the circumstances, I am not convinced that an order requiring human rights training for Mr. Jo is required.

The Respondent’s Request for a Remedy

48Mr. Jo submitted that the respondent should be awarded the same amount of money as the applicant has claimed because the Application has no foundation and the applicant has made a claim for compensation for something that in his view “never really happened”. I am unable to make such an award. First, I have found that the applicant has established that the respondent breached her rights under the Code. Second, there is no provision in the Code to award a respondent any amount of money. Thus, I lack jurisdiction to make a monetary award to the respondent, even if I had not found in favour of the applicant.

order

49The Tribunal orders that:

1. The respondent shall pay the applicant $600.00 within 21 days of the date of this Decision.

2. In the event the respondent fails to make the payment described above within 21 days from the date of this Decision, the respondent shall pay post-judgement interest at the rate of 3% as set out in the Courts of Justice Act, R.S.O 1990, c. C.43.