Moses v. Mama's Corner Restaurant, 2015 HRTO 1204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Moses

Applicant

-and-

Mama’s Corner Restaurant

Respondent

DECISION

Adjudicator: Mark Hart

Date: September 10, 2015

Citation: 2015 HRTO 1204

Indexed as: Moses v. Mama’s Corner Restaurant

APPEARANCES

Joseph Moses, Applicant

Self-represented

Mama’s Corner Restaurant, Respondent

Lad Shaba, Representative

1This is an Application filed on January 21, 2014, alleging discrimination with respect to services because of race, ancestry and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In brief, this Application arises out of a bad experience that the applicant and members of his family had at the respondent restaurant on Mother’s Day, May 12, 2013. The Application alleges that there were delays in getting their order taken, in getting their salads and in getting their main meals, that other tables did not experience the same delays, that they were not treated properly, and that the delay in getting served food on this evening had a particular effect on the applicant, who became ill due to his medical condition, and on the applicant’s 86-year-old mother, for whom the delays in getting food brought back memories of her experience at residential school.

3The issue before me is whether the evidence is sufficient to prove that the bad experience alleged by the applicant on this occasion is linked or connected to the applicant’s First Nations ancestry. This is denied by the respondent.

4While the Application also alleges discrimination because of disability, the applicant acknowledged at the hearing that he never informed anyone at the respondent restaurant about his needs arising from his medical condition or asked for accommodation due to his medical condition. Accordingly, there is no basis in the evidence to support an allegation of disability discrimination.

5A hearing in this matter was held in Timmins on June 15, 2015. As none of the parties were represented by legal counsel, I took the lead in questioning all of the witnesses. I heard from the applicant, the owner of the respondent restaurant, and the two servers who were working on the evening in question. One of the servers testified by telephone, as she had moved to the Thunder Bay area by the time of the hearing.

6As part of the evidence he was relying upon, the applicant submitted a letter from his mother and a letter from his sister, who was also present at the restaurant on the evening in question. The applicant requested that I accept these letters as their evidence as to what occurred on this occasion, on the basis that these individuals both have medical conditions which prevented them from appearing to testify in person. I asked whether either of these individuals was available to testify by phone, to which the applicant responded that they were not. Typically, this Tribunal will not rely on a letter or written evidence from a person who does not testify at a hearing, for the primary reason that doing so would deprive the opposing party of its right to question or cross-examine the witness in order to challenge or test their evidence. For this reason, I ruled at the hearing that, while I was prepared to accept the letters into evidence, I would only have regard to the factual matters set out in the letters and not the opinions or conclusions expressed in the letters, and that I would take into account the failure of these two individuals to be available for questioning when deciding how much reliance I would place on the factual contents of the letters.

Applicant’s evidence

7A dinner reservation was made by the applicant’s sister at the respondent restaurant for 5:00 p.m. on Mother’s Day, May 12, 2013. The applicant, his mother and his sister arrived a few minutes early. The mother and sister entered the restaurant first, while the applicant parked the car. He joined them shortly afterwards.

8The server, who the applicant identified as C.W., came over shortly after he sat down at the table and asked if he wanted water. She then brought the applicant his water and also brought over the menus. In his testimony before me, the applicant estimated that by this time, it was about 5:10 p.m. The applicant testified that he and his family members did not need to look at the menus, as they already had decided that they wanted to order from the specials board. The applicant ordered the fish special, and the other two ordered the stir fry special with chicken. The applicant testified that he also ordered tea at the same time as he ordered his meal. He cannot recall if his mother and sister also ordered tea. The applicant testified that the server brought over his tea very quickly, within about a minute or so. He testified that up to this point, everything was going fine.

9After his tea arrived, the applicant left the table for about five minutes in order to take medication for his medical condition. He needs to do this within 20 minutes of the time he eats, as he has an adverse reaction to the medication if it is not taken with food. As stated above, the applicant acknowledged at the hearing that he did not tell anyone working at the restaurant about this.

10The specials ordered by the applicant and his family members all came with salad. The applicant’s evidence is that the salads did not arrive at the table until after 6:00 p.m., approximately 45 to 50 minutes after they had ordered their meals. At the hearing, the applicant acknowledged that he was guessing about the time, as he does not wear a watch and never looks at the time. His guess about what time it was when the salads arrived is based upon a comment made by his mother. His evidence is that his mother looked at her watch and said, we just missed our news. He testified that his mother loves the news and watches it regularly at 6:00 p.m.

11The applicant testified that the server did not say anything about why the salads were delayed, nor did the applicant or anyone else at the table say anything about this at the time.

12The applicant testified that the tables around him were full at the time he was first seated. His evidence is that the persons at the tables next to where he was seated left the restaurant about 15 or 20 minutes after he arrived, and the persons at two other tables nearby left shortly after that. His evidence is that, during the time between when he got his tea and when the salads arrived, persons were seated at the two tables next to the applicant’s table and were served their drinks. He states that these two tables then were served their main meals before the applicant’s table was served their main meals. He testified that the people at these two tables left the restaurant at about 6:30 p.m. The applicant testified that he does not know whether the people at these two tables were served a salad before they got their main meals. He acknowledged at the hearing that it made sense to him that, if the people at these two tables did not have salads as part of their meals, they could have been served their main meals while the applicant and his family members were being served their salads.

13The applicant testified that another large group of people entered the restaurant at about 6:20 p.m. and sat at tables nearby. He testified that these people were served their meals before the applicant and his family members received their meals, and even left the restaurant before the main meals were served to the applicant and his family members. In cross-examination, the applicant was questioned about his evidence that this large group of six to eight people had arrived at 6:20 p.m., been served their meals, and left the restaurant before the applicant and his family members were served their main meals at approximately 6:50 p.m. The applicant was adamant that this had occurred, although he acknowledged that he did not know what the people at this large table had ordered, and whether they had a big meal or “just pop”.

14The applicant testified that, when their main meal had still not arrived by 6:45 p.m., he left the table and went to speak with the server, C.W. The applicant testified that he said, where are our meals? His evidence before me was that C.W. looked at him, but did not say anything to him in response. He testified that C.W. simply grabbed some other meals which were ready to be served and walked away.

15The applicant testified that their main meals arrived at the table at about 6:50 p.m. He states that after receiving her meal, his mother said that the server had forgotten the chicken, so the applicant got up from the table and told the server. He testified that the chicken arrived on a separate plate not even half a minute later, and his mother had to mix it in with the stir fry herself when it should have been mixed in already.

16The applicant testified that around 6:00 p.m., he had to leave the table to go to the washroom because his stomach was very bad. He states that he was sick, because food had not arrived at his table in time to counteract the mediation he had taken.

17I have the receipt from the restaurant that evening which shows that the bill for the applicant’s table was paid at 7:13 p.m. The applicant testified that he was sick again when he went out to get the car, because his medication had not worked properly given the delay in getting his food. While the receipt shows that the applicant’s sister left a tip on the bill, her letter states that she did this out of “spite” and not because they had received good service.

18Apart from inquiring about when their main meals would arrive during the course of the evening on May 13, 2013, neither the applicant nor any of the family members with him raised a complaint with the respondent about how they had been served at the restaurant at the time or until the Application was filed in January 2014. The applicant did write a letter to the Mayor of Kirkland Lake, dated May 28, 2013, raising concerns about how he and his family members had been treated and alleging that this was due to discrimination against them as First Nations persons, but there is no evidence before me to indicate that this letter was brought to the respondent’s attention at any time prior to when the Application was filed. The applicant also appears to have written to the Ontario Provincial Police (“OPP”) about the incident on August 26, 2013, although that letter is not in evidence before me. He also appears to have sent a letter to the Ontario Human Rights Commission (the “Commission”) which was received on September 23, 2013, although once again the applicant’s letter is not in evidence before me. Both the OPP and the Commission referred the applicant to this Tribunal and to the Human Rights Legal Support Centre, which appears to have led to the filing of the Application.

19In the Application as filed with this Tribunal, the applicant alleged that, when he went to ask C.W. where their meals were, she “dismissed” him and made him feel like he was “nothing”. The Application alleges that when the applicant asked when their meals would be ready, the server looked at him with a “disgusted look on her face” and said, “You can see that I’m busy. Go sit down and your food will be ready soon”. In contrast, in the letter to the Mayor dated May 28, 2013 and in his testimony before me, the applicant did not make reference to any alleged “disgusted look” on the server’s face or to the server saying the words alleged in the Application. Indeed, in both the letter to the Mayor and in his testimony, the applicant states that the server did not say anything but just looked at him. The letter to the Mayor does say that, when this happened, the applicant felt like they were nothing and that he was disappointed.

20At the hearing, I questioned the applicant about this discrepancy between his testimony and what is alleged in the Application. The applicant testified that the server may have said what is alleged in the Application, but he did not remember that now, two years later. That does not explain why no reference is made to what the server is alleged to have said in the letter to the Mayor, which is dated some two weeks after the incident occurred. I also questioned the applicant about the allegation in the Application that the server looked at him with a “disgusted look” on her face, to which the applicant replied that she could have done that but that he does not remember that now. He testified that it was about 50/50 in his memory as to whether the server gave him a “disgusted look”. Once again, this does not explain why no reference is made to any disgusted look on the server’s face in the letter to the Mayor.

21When I asked the applicant to explain why he believed that he and his family members had been discriminated against because of their First Nations ancestry, the applicant stated that they were the only First Nations persons in the restaurant at the time, at least as far as he could tell. I note, however, that in his evidence before me, the applicant acknowledged that he had attended this restaurant on two previous occasions, with no problems. Indeed, two or three years prior to the incident at issue in this proceeding, the applicant had gone to the restaurant with his mother and other family members on Mother’s Day and had experienced “no problems at all”. The applicant also testified that he had gone into the restaurant on another previous occasion when there had been a big fire down at the lake, and the server had allowed him to use her cellphone to call his mother to tell her that he was going to be late. When asked how he reconciled these prior positive experiences at the restaurant with the allegations raised in this proceeding, the applicant stated that this was due to him and his family members being served by a different server, C.W., on the occasion in question before me.

22The applicant alleges that the delays in getting served their salads and meals are the basis for his allegation of discrimination because of First Nations ancestry. In support of this allegation, he noted in his testimony that people at other tables had been served their meals and left the restaurant before him and his family members. When asked whether he was relying upon the failure to serve the chicken with the stir frys as ordered by his mother and sister as an incident of alleged discrimination, the applicant testified that he does not know.

23During the course of the hearing, an issue arose as to where precisely the applicant and his family members were sitting on the occasion at issue. The applicant testified that they were sitting at a table for four by the window. The respondent states that, at the time of the alleged incident, tables for four were situated away from the windows and only tables for two were along the windows. The server, C.W., could not recall this and agreed with the applicant that, even if tables for two were by the windows, a table for four could have been set up for them by the window. In my view, it is not material to the resolution of this matter to determine precisely where the applicant and his family members were sitting on the evening in question.

Respondent’s evidence

24Mama’s Corner is a sole proprietorship run by its owner since January 1, 2007. The restaurant owner testified that she has been in business in Kirkland Lake with three other restaurants for the past 33 years.

25The owner testified that she was working in the kitchen on May 12, 2013, together with three or four other staff members. She testified that the servers working that evening were C.W. and G.C. C.W. started working at the restaurant in 2012. G.C. had worked at the restaurant and previous restaurants operated by the owner since 2000.

26The owner testified that Mother’s Day is always a busy time for the restaurant. This is supported by the applicant’s letter to the Mayor, which states that the restaurant was “almost full” on the evening in question. The owner testified that she typically has two seatings on Mother’s Day: one at 3:30 or 4:00 p.m. and another at 5:30 or 6:00 p.m. The kitchen closes at 7:00 p.m.

27The owner testified that she does not know the applicant or his family apart from this proceeding. She has no recollection of them being in the restaurant on May 12, 2013, and would not have seen them as she was working in the kitchen. She does not recall any issue being raised that evening about delays in getting salads or meals, or about the failure to include the chicken with the stir frys. She acknowledged that if the chicken was not included with the stir frys as ordered, that would have been her mistake as she and one other kitchen staff member were responsible for making the stir frys that evening.

28The owner testified that the specials offered on Mother’s Day included salad and dessert. She also testified that most meals on the dinner side of the menu also include salad, although there are exceptions like pizza and panzerotti. In terms of how the process of filling orders works at the restaurant, the owner provided the following evidence. After the server takes the order, the order is inputted into an invoice at the bar. After inputting the order, the server then puts the order under a bell and rings the bell for the kitchen. The kitchen then picks up the order. If the order includes a salad, then the order goes to the salad side of the kitchen, and the salad is prepared and put up for the server to deliver to the table. As soon as the salad is put in the kitchen window for pick-up, the order is then transferred to the meal side of the kitchen. Orders on the salad and meal sides of the kitchen typically are filled in the order in which they arrive, unless a particular order can be filled very quickly. The owner testified that the kitchen can be working on 10 to 15 orders at any particular time.

29In terms of bringing out salads, the owner testified that a 45-minute delay in a table getting their salads is not typical. She states that usually, salads will be up and brought to the table within 15 minutes of the order being taken (or even in 5 minutes if the restaurant is not busy). The owner testified that, if there was any delay in bringing the salads to the applicant’s table, this more likely was due to the kitchen being busy. She states that, once the server has put the order under the bell, the timing for when the salad is prepared and put in the window for pick-up is the responsibility of the kitchen and not the server. She testified that the only way a delay in getting salads could be attributed to a server is if the server delayed in putting the order under the bell, for example by taking an order from another table or doing something else beforehand. The owner states that she trains her servers to input the order and put it under the bell as soon as possible after the order is taken and before taking any other orders, but she acknowledged that this happens sometimes.

30Once the salads are put up, the owner testified that 30 to 40 minutes would be a normal time for the main meals to arrive if the restaurant is busy. The owner responded in her testimony to the applicant’s assumption that, by ordering off the specials board, their meals would arrive more quickly. The owner states that this is not the case, as all meals are prepared fresh at the restaurant. Specifically in relation to the stir fry special, the owner testified that this meal would take her 20 minutes to prepare once the order had come up for preparation. She testified that preparing the fish special would have taken less time, so she would have started that a bit later so that all of the meals for the table were ready at the same time.

31The owner testified that the restaurant quite often has First Nations customers, some of whom are regulars. She states that she provides catering services to First Nations centers and communities, and has never experienced any problems and these centers and communities have been repeat customers. She states that she hosted First Nations evacuees from James Bay for a two-week period. In particular, with regard to the server whom the applicant states was responsible for serving his table on the evening in question, the owner states that she is not aware of any issues that C.W. had with serving members of the First Nations community.

32C.W. testified that she has no recollection of serving the applicant or his family members on the evening in question. As a server, she states that she tends to remember tables where mishaps have occurred, but she does not remember any issue about delayed meals or meals arriving without chicken. She states that she was not aware that the applicant was alleging that he and his family members had a bad experience at the restaurant until about nine months after the incident, when the Application was received by the respondent. As a result, C.W. testified that she cannot confirm that she was the server who was primarily responsible for serving the applicant and his family members on that evening.

33C.W. testified that if she had a table that placed an order at 5:10 p.m. and the salads had not come up by 5:20 p.m., she would have spoken to the kitchen and to the table. She testified that salads at the restaurant are pushed out fairly quickly. She states that no server would ever allow it to take 50 minutes for salads to be served.

34With regard to the alleged delay in serving the main meals, C.W. testified that the total amount of time the applicant and his family were at the restaurant, which is two hours and fifteen minutes from shortly before 5:00 p.m. to 7:13 p.m., is a normal amount of time for the restaurant. She states that the restaurant wants its customers to enjoy their drinks and salads, and does not rush out meals.

35With regard to the applicant’s evidence that he asked where their meals were and C.W. looked at him but did not say anything, C.W. testified that she would never deliberately ignore a customer. She states that it is very loud and busy in the restaurant, so that if she did just look at the applicant without saying anything, it is possible that she did not hear him.

36With regard to the applicant’s evidence about other tables getting served their meals before him and his family members, C.W. acknowledged that this is entirely possible. She testified that a lot of meals on the menu are popular and are very quick to make, and take a fraction of the time it takes to prepare a special. She testified that if another table ordered something less time-consuming to make, then it is entirely possible that they received their meals first.

37The other server who worked on that occasion, G.C., also gave evidence before me. She testified that she does have a recollection of the applicant and his family members coming in to the restaurant that evening, as she knows the applicant’s mother from her work at a medical clinic. She recalls bringing tea to the table, but does not recall taking their order or serving their salads or meals. Her recollection is that she and C.W. were splitting tables that evening, and not working separate sides of the restaurant as alleged by the applicant. However, both servers testified that they worked collaboratively together, so it is entirely possible that C.W. was primarily responsible for the applicant’s table and G.C. only brought the tea in order to assist.

38G.C.’s evidence about the salads is consistent with the evidence of C.W. G.C. testified that the servers were “always on those salads” and would have noticed if it was taking too long for the salads to be served. Her evidence is that even a high volume of orders would not explain a 45-minute delay in getting salads out. At the same time, G.C. agreed that it could very well take 40 to 45 minutes for the main meal to be brought out following the salad. She testified that it depends upon how busy the restaurant is and the kind of food being ordered. She states that some meals are deep-fried and some are cooked in the oven, and the stir fry takes a little longer because everything is fresh.

39C.W. and G.C. both testified that persons of First Nations ancestry attend the restaurant regularly, and estimated that this would be about once per shift. C.W. states that she has served First Nations customers and has never experienced any issue. G.C. states that, in working with C.W., she never heard C.W. express any negative or derogatory views or comments about First Nations persons.

Analysis and Decision

40As stated above, the issue for me to decide in this case is whether there is sufficient evidence before me to prove that the First Nations ancestry of the applicant and his family members was a factor in how they were treated by the respondent on May 12, 2013. The standard to be applied is whether this has been proven by the applicant on a balance of probabilities.

41The first issue raised by the applicant is the delay in getting their salads. In this regard, I note significant discrepancies between what was stated by the applicant in his letter to the Mayor written a very short time after the event, and what is alleged in the Application and what the applicant’s testimony and other evidence was before me.

42In the letter to the Mayor, the applicant states that the server returned to the table to take their order “around 20 minutes later” after he sat down. He states that she wrote down their order “around 5:30 p.m.” He then states that another person brought the salads at “around 6:00 p.m.”, although on the very next page he then states that they ate the salads “at around 5:45 p.m.” If the order was in fact taken at 5:30 p.m. and they were eating their salads at around 5:45 p.m. as stated in this letter, that would be consistent with the respondent’s evidence that, when the restaurant is busy as it was on that occasion, salads typically are served within about 15 minutes of the order being taken.

43In the Application itself, the applicant also alleges that it took the server about 20 to 25 minutes to take their drink and food order, but here it is alleged that the salads did not arrive at the table until 6:00 p.m.

44In his testimony before me, the applicant said that the server asked him if he wanted water, and then brought the water and menus and took their order at “about 5:10 p.m.” He then testified that the salads did not arrive until after 6:00 p.m., on the basis of a comment by his mother that they had just missed the news.

45Further, in the letter from the applicant’s sister which is dated March 28, 2014, she states that after they sat down at the table and were given menus, “a[n] hour later our orders for dinner had not been taken by the server”.

46I appreciate that the applicant’s testimony before me was given over two years after the event at issue. I also appreciate that the Application was filed some seven months after the event, and the letter from the applicant’s sister was over a year after the event. But that in my mind is not sufficient to account for these significant discrepancies. In his testimony before me, the applicant stated that their order was taken at around 5:10 p.m., which does not appear to me to be an unreasonable amount of time from when they arrived, especially when the restaurant was busy. In his testimony, he did not take any issue with the way they had been treated by the server up to the point of taking their order. However, in the letter to the Mayor and in the Application, it is alleged that it took the server 20 to 25 minutes to take their order, and the sister alleges that it took an hour. The applicant’s testimony before me and what is alleged in the Application is that the salads did not arrive until 6:00 p.m., but the letter to the Mayor written shortly after the event states that they were eating their salads at around 5:45 p.m.

47Given these significant discrepancies in the evidence, I find that I do not have sufficient reliable evidence to establish that there was in fact a delay in getting their salads, let alone that any such delay was attributable to their First Nations ancestry. In making this finding, I am cognizant of the applicant’s evidence that he does not wear a watch and does not pay attention to the time, and based his estimate of the time when the salads arrived on the comment made by his mother. But in light of the significant discrepancies in the evidence before me, I find that this does not provide a sufficient or reliable basis upon which I can base a finding that the salads in fact did not arrive until 6:00 p.m. At most, what I can say is that the applicant and his family members may have felt that it took an inordinate amount of time for their salads to arrive after they placed their order, but that is not enough in my view to prove that there was any delay.

48With regard to the allegation about the delay in getting their main meals, once again I have the applicant’s evidence that he approached the server at about 6:45 p.m. and that the meals arrived at about 6:50 p.m., although he did not provide in his evidence any specific basis to support his assertions about these times. Further, in the letter to the Mayor, the applicant states that he went to speak to the server at “around 6:30 p.m.” after getting sick in the washroom, to ask why other customers were getting served before them. In this letter, the reference to 6:45 p.m. appears on the next page, which is after the applicant came back from the washroom and says that he spoke to the server, and is stated in the context of the server having walked past their table on numerous occasions.

49Once again, I find that I do not have sufficient reliable evidence as to when the meals actually arrived at the applicant’s table. In addition, I do not have a basis in the evidence to attribute any such delay to discrimination because of First Nations ancestry. The theory of the applicant’s case, as I understand it, is that this particular server, C.W., was responsible for the discrimination that he and his family members experienced. He does not, and could not in my view, attribute this discrimination to the owner of the restaurant or to the restaurant as a whole, due to his prior positive experiences in the restaurant and due to the fact that the owner was working in the kitchen that evening and had no knowledge as to who was receiving which orders or even that the applicant and his family members were there.

50The problem with this theory of the case is that C.W., as the server, had no control over when the kitchen prepared the applicant’s order. Once the server inputs the order and puts it under the bell, the timing of when the salads are ready and when meals are ready depends on the kitchen. The server may follow up on an order if it is not ready in a particular amount of time or if a customer complains, but ultimately the server cannot prepare the order or get it ready – that is the responsibility of the kitchen. As a result, I fail to see a basis in the evidence to support that any alleged discriminatory bias towards First Nations persons by the server could be linked or connected to any delay in the kitchen getting the meals prepared and ready to be served. In my view, if there was any delay in getting the meals served, this more likely is attributable to the restaurant being busy and needing to complete other orders before being able to get to the applicant’s order.

51I also note that the perception of the applicant and his family members that there was an inordinate delay in getting their meals may also be attributable to the applicant’s assumption that, by ordering from the specials board, their meals would arrive more quickly. That is not in fact the case at this restaurant, given that the specials are prepared from scratch and the owner’s evidence that the stir fry in particular takes a longer period of time to prepare. I have no evidence to contradict the owner’s testimony on this point, which is consistent with G.C.’s evidence.

52The one concrete and reliable piece of evidence that I have is that the applicant and his family members arrived for their reservation shortly before 5:00 p.m. and paid their bill at 7:13 p.m. In my view, two hours and fifteen minutes from time of arrival until payment of the bill is not an unreasonable or inordinate amount of time to spend in a restaurant, especially when the restaurant is busy. In this regard, I note the owner’s evidence that, for special events like Mother’s Day, she typically has two seatings that are spaced two hours apart. This evidence is consistent with an expectation that customers typically will require two hours from arrival to departure before a table will be available for the next seating. I also note the evidence of the two servers, neither of whom is currently employed at the respondent restaurant, that a total time of two hours and fifteen minutes is not an unusually long period of time in that restaurant.

53I will next address the applicant’s evidence about other tables being seated after them yet getting served their meals before them. The applicant’s evidence is that people were seated at two tables next to where he and his family members were sitting at some point before their salads were served. He testified that the people at these tables were served their meals after he and his family members were served their salads but before they were served their main meals. The applicant testified that he does not know whether the people at these other two tables were served salads before their meals, although he was able to testify about them being served their drinks and getting their meals. As explained by the respondent, there are menu items available at the restaurant which do not include salad. If the people at these other tables placed their orders prior to when the applicant and his family members received their salads, which is the applicant’s evidence, then their order would go to the meals side of the kitchen before the order placed by the applicant and his family members, as an order with salad only gets transferred to the meals side of the kitchen after the salad has been prepared and put up for service. So in such circumstances, it is entirely understandable that these tables would receive their meals prior to the applicant and his family members.

54The other table referenced by the applicant is the large table that was seated in the area where the applicant and his family members were seated. The applicant’s evidence about this group is that they arrived at 6:20 p.m. and paid their bill and left before the meals arrived for the applicant and his family members, which the applicant says was at around 6:50 p.m. This would mean that this large group of people were in the restaurant for about half an hour. The applicant candidly acknowledged that he has no idea what these people ordered, whether it was a big meal or “just pop”. Given this evidence, I have no proper basis to draw any comparison or conclusion from this situation. If the group at this table only came in for a quick drink and then paid and left, the fact that they were able to do so more quickly than the applicant and his family members, who had a full meal, is of no consequence. In addition, since the kitchen at the restaurant closes at 7:00 p.m., in my view it is rather unlikely that a large group coming into the restaurant at 6:20 p.m. and leaving at 6:50 p.m. would have ordered a large meal, especially on a busy evening.

55As a result, in my view, the applicant’s evidence about other tables at the restaurant being served more quickly does not assist him in proving discrimination, simply because the evidence does not provide a sufficient basis to support a useful comparison to the applicant’s table.

56When I asked the applicant at the hearing to explain specifically how he was alleging that he had been discriminated against by the respondent, the applicant referred only to the alleged delays in getting served the salads and the main meals and the allegation that other customers were served more quickly. I already have addressed both points. I do, however, briefly wish to address two other points that appear to be raised in the Application.

57The first point relates to how the applicant alleges he was treated by C.W. when he went up to her to ask when their meals would be ready. At the hearing, the applicant was unable to recall what had been alleged in the Application about being given a “disgusted look” and about the server saying what it is alleged she said. Given that his evidence at the hearing did not support these allegations, I do not need to address them further. I will say, however, that I was somewhat surprised that, if these allegations were true, the applicant would be unable to remember them. While I appreciate that the hearing took place some two years after the incident at issue, this allegation in the Application provided what in my view was potentially the strongest evidence of discriminatory bias. I also note that in the letter to the Mayor, which was written by the applicant at a time very close to the event at issue, no reference is made to any “disgusted look” or to the server saying anything, let alone what she is alleged to have said in the Application. In my view, the evidence before as a whole supports a conclusion that the server did not conduct herself in the manner alleged in the Application.

58The second point relates to the absence of the chicken from the stir frys ordered by the applicant’s mother and sister. Given that the applicant’s testimony at the hearing was that he did not know whether he was relying upon this as discrimination, it is not necessary for me to deal with this point. However, I note that even if the applicant were relying upon this point as discrimination, once again it is not consistent with the theory of the applicant’s case. Any mistake that was made in relation to the chicken is attributable to the kitchen, and not to the server.

59As a result, for all of the foregoing reasons, I find that the applicant has not provided me with sufficient reliable evidence to support his allegations of discrimination. Accordingly, the Application is dismissed.

ORDER

60For all of the foregoing reasons, the Application is dismissed.