Martin v. Wal-Mart Canada Corp., 2015 HRTO 1164

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Todd Martin

Applicant

-and-

Wal-Mart Canada Corp.

Respondent

DECISION

Adjudicator: Brian Cook

Date: September 2, 2015

Citation: 2015 HRTO 1164

Indexed as: Martin v. Wal-Mart Canada Corp.

APPEARANCES

Todd Martin, Applicant

Self-represented

Wal-Mart Canada Corp., Respondent

Andrew Ashenhurst, Counsel

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with respect to services and facilities because of disability, sexual orientation, family status, association with a person identified by a Code ground. The applicant also alleges reprisal.

2The respondent operates a store in a mall that the applicant shopped at.

3After receiving the Application and the Response, the Tribunal determined that a summary hearing was appropriate because it was not clear how the allegations related to the applicant's Code-protected rights and also not clear that he would be able to prove his allegations.

4The summary hearing was held by telephone conference call on August 31, 2015.

5The event that caused the applicant to file the Application occurred on January 16, 2015 when he was issued a “no trespass” letter stating that he could not go to any Wal-Mart location for one year.

6For some period before this, the applicant felt that he was being harassed by store employees. He felt the harassment was mostly done by one employee but could have involved others as well. On at least one occasion, he noted that the employee would say something on the store PA system whenever he picked up an item. The announcement was not directed at him personally but he felt that it was nevertheless connected with his presence in the store. On at least one occasion, he believes that he was followed out of the store when he visited other stores.

7The applicant called the respondent’s Loss Prevention Department to complain about this behaviour which he termed harassment and stalking. He alleges that he never received a satisfactory response and this was an infringement of his rights.

8In regard to the allegation of discrimination on the grounds of family status and association with a person identified by a Code ground, the applicant advised that his mother has a disability and that one time she became lost in the store. He said that a store Associate helped him locate his mother. However, at the time there was a different store manager. His mother may also have been with him on at least one occasion when he was subject to the alleged harassment. The applicant indicated that he has a disability as well which is related to mobility issues but he did not elaborate on how he may have been discriminated against because of disability. There is no allegation of discrimination on the grounds of sexual orientation by the respondent but the applicant indicated in his written submissions that he may have been targeted on this ground on other occasions unrelated to the respondent.

9The applicant alleges that the no trespass letter was issued as a reprisal for his having tried to assert his rights. According to the applicant, only a few hours earlier, he had a conversation with a person in the respondent’s Loss Prevention department. During the hearing, the applicant said that during this conversation, he was asserting his rights under the Code. Since he was issued the no trespass letter only a few hours later he thinks there is a connection and that the letter was issued because he had tried to assert his rights. The applicant was asked to clarify what Code-related rights he had been trying to enforce during this conversation. He said that in this conversation, as in other earlier conversations, he had identified that he and his mother have disability related issues. However, he agreed that, again as with earlier conversations, his main complaint was the lack of response to his complaints about harassment and stalking. He also complained that the Store Manager was unresponsive.

10The applicant had talked to the Store Manager a few weeks earlier on the phone. That conversation was not satisfactory and the Store Manager said something about the applicant hearing clicks, bells and whistles which the applicant thought was strange.

11According to the respondent, its Loss Prevention department came to conclusion that the applicant was harassing the respondent’s employees although he never directly harassed a store Associate. The respondent does not have a record of a conversation between the applicant and its Loss Prevention department on January 16, 2015. The respondent does agree that the applicant contacted the Loss Prevention department and Head Office on several occasions, which included messages that he left that were not immediately responded to. The respondent also agrees with the applicant that the applicant spoke, on several occasions, to the mall security personnel about his concerns.

12An email dated January 16, 2015 from the Store Manager indicates that on that day, he learned from the mall security office that the applicant was at the mall and that he was coming to the respondent’s store to ask for the “licenses” of the employees who he believed were responsible for the harassment he had experienced.

13The email indicates that pursuant to direction from the respondent’s Head Office, the Manager wrote up a no trespass letter which he gave to the applicant when the applicant presented, accompanied by someone from the mall security office. The applicant refused to accept the letter and phoned the police. It turned out that a police officer was already at the store dealing with another matter and he spoke to the applicant about the letter. According to the applicant, the officer told him that he was required to obey the letter and the applicant said that he has done so.

14The respondent asserts that the letter was issued to the applicant because he was harassing its employees. The respondent does agree that the applicant did not directly harass any Associates but says that it was concerned by his behaviour as directed against people in its Loss Prevention department and the Store Manager.

Analysis and Conclusions

15From the information provided by the applicant in his written documents and during the telephone hearing, I find that there is no reasonable prospect that the applicant could successfully prove that the respondent discriminated against him on the grounds of disability, sexual orientation, family status, or association with a person identified by a Code ground.

16The grounds of family status and association with a person identified by a Code ground relate to the applicant’s mother. The applicant does not allege that she was ever discriminated against by the respondent or that he was ever discriminated against because of his association with her. It appears that the one occasion when there was a problem related to his mother was when she got lost in the store. However, he said that on that occasion an Associate was helpful in finding her.

17The applicant says that he has a disability involving mobility issues. On the basis of the information provided by the applicant, I also do not see any basis for a suggestion that the alleged harassment and stalking had anything to do with the applicant's mobility issues or with any disability related to those issues.

18As noted earlier, the allegation of discrimination due to sexual identity seems to be related to the applicant's interactions with other people and not related to his interactions with the respondent.

19In regard to the allegation of reprisal, section 8 of the Code provides:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

20The element that the applicant identified that he thinks ties the issuance of the no trespass letter with what he says were his attempts to claim or enforce his Code-protected rights is his allegation that he raised his Code-protected rights with the various representatives of the respondent to whom he spoke. He says that he raised these rights in a conversation with someone in the Loss Control department only a few hours before the letter was issued and that this proves a connection.

21However, the applicant says that he raised his Code rights by informing the people he spoke to that he and his mother have disabilities. However, the complaints that he was making had nothing to do with the disabilities he identified. They instead had to do with the allegations of harassment and stalking and his complaint that his allegations were not being properly dealt with. He does not allege that the harassment was related to his disability or any other Code ground. The harassment took the form of announcements on the PA system that did not directly say anything about him but seemed to be coincidental with him picking up items in the store.

22The fact that the applicant may have identified himself as having a Code-protected ground during conversations is not the same thing as seeking to claim or enforce Code-protected rights.

23In his submissions, the applicant referred to his general rights as a citizen to be free from the harassment that he believes he was subjected to. I have no doubt that the applicant raised his rights as a citizen to not be harassed but the Code only covers allegations of harassment and discrimination that are related to a Code-protected ground. Similarly, the Code only covers reprisal if the reprisal is taken because a person has claimed or tried to enforce Code-protected rights.

24On the basis of the information provided by the applicant, I must conclude that there is no reasonable prospect that the applicant could successfully prove that the respondent reprised against him, harassed him, or discriminated against him contrary to the Code. The Application is dismissed on that basis.