HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary McCarthy
Applicant
-and-
Kenny Tan Pharmacy Inc.
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: McCarthy v. Kenny Tan Pharmacy Inc.
APPEARANCES
Mary McCarthy, Applicant
Beth Walden, Counsel
Kenny Tan Pharmacy Inc., Respondent
Craig Colraine, Counsel
Introduction
1The applicant is a Black woman who is a regular customer at Shoppers Drug Mart stores. She has purchased approximately 2,000 items from various stores in recent years.
2On May 22, 2011, an employee in a Shoppers Drug Mart store in Toronto confronted the applicant and searched her backpack because she believed that the applicant was trying to shoplift products. No products were found in the applicant’s backpack, and the employee did not apologize to her.
3The purpose of this Decision is to decide whether the applicant was subjected to racial profiling and discrimination with respect to services. After hearing the parties’ evidence and submissions, I have decided to uphold the Application because I have found that the applicant’s race and colour were a significant factor in how the employee of the store treated her. I have also ordered the respondent store to pay the applicant $8,000 as compensation.
BACKGROUND
4Kenny Tan Pharmacy Inc. (the “respondent store”) is a franchisee and uses the trade name of Shoppers Drug Mart.
5On May 23, 2011, the applicant sent a letter of complaint to Shoppers Drug Mart’s head office, which alleged that, between 10:10 p.m. and 10:29 p.m. on May 22, 2011, an employee of the respondent store demanded that she open her backpack, and after the employee opened her backpack and looked inside of it, she walked away without apologizing. The applicant alleged that the employee had subjected her to rude treatment by falsely accusing her of stealing, and then failing to apologize to her. The applicant did not identify herself as a Black woman or characterize the incident as racial profiling or discrimination.
6On May 22, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent store discriminated against her with respect to services because of her race and colour. Specifically, she alleged that an employee in the store subjected her to racial profiling and discrimination by aggressively and rudely demanding that she open her backpack, looking inside her backpack, and walking away without apologizing.
7On July 24, 2012, the respondent store filed a Response, which denied the allegation of racial profiling and discrimination. The respondent store stated that it experiences considerable shoplifting and has to take reasonable steps to prevent it. The respondent store stated that an employee observed what appeared to be the applicant crouching down, taking an item from the store shelf, and putting it in her purse. The respondent store stated that the employee approached the applicant and politely asked her whether she needed assistance, and the applicant responded, “No”. The respondent store stated that the employee then courteously asked the applicant to show her the contents of her purse. The respondent store admitted that no store product was found in the applicant’s bag.
8On August 21, 2012, the applicant filed a Reply, which denied that the employee of the respondent store asked her if she needed assistance, and maintained that the allegations about the employee’s conduct in her Application are true.
9On February 22, 2013, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for September 19, 2013. In accordance with the Tribunal’s Rules of Procedure, the parties delivered to each other and filed with the Tribunal the documents that they intended to rely on and a witness list and brief statement summarizing the expected evidence of each witness in advance of the hearing. The applicant’s witness statement was similar to her complaint to the Shoppers Drug Mart’s head office and her Application to the Tribunal. It alleged that the incident occurred shortly after she came to the respondent store at 10:10 p.m. The employee’s witness statement was similar to the statements about her actions in the Response, but omitted the statement that she approached the applicant and politely asked her whether she needed assistance.
10The hearing took place as scheduled on September 19, 2013. I heard the oral testimony of four witnesses: the applicant; Kenny Tan, who is the owner of the respondent store; Ujjaijini “Jenny” Balachandra, who is an employee of the respondent store; and Ira Abroms, who is a manager of the respondent store. Ms. Balachandra is the employee who interacted with the applicant during the incident at issue.
11I also admitted into evidence a number of documents tendered by the parties, including the complaint letter that the applicant submitted to Shoppers Drug Mart’s head office, email exchanges about the complaint, and the Shoppers Drug Mart Employee Handbook.
12The hearing was initially scheduled for one day on September 19, 2013. Prior to the hearing, the respondent store did not dispute the applicant’s position that the alleged incident occurred between 10:10 and 10:29 p.m. on May 22, 2011 when the store was open. Furthermore, when the respondent store cross-examined the applicant at the hearing, it did not bring to her attention that its witnesses would be disputing her position. However, when the respondent store called its witnesses, Ms. Balachandra testified that the alleged incident occurred shortly after midnight on May 23, 2011 when the store was closed.
13Although the respondent store appeared to have breached the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), which requires a party who intends to impeach an opponent’s witnesses to direct the witnesses’ attention to that fact by asking him or her appropriate questions in cross-examination, the applicant did not submit that Ms. Balachandra’s testimony on this point was inadmissible. However, she identified the existence of a receipt, which she had not previously disclosed, and which she claimed showed that she had purchased a mouth rinse product and left the respondent store at 10:29 p.m. on May 22, 2011. Although she did not offer to produce the receipt, she stated that it was in a binder in her home in another province.
14In light of the potential importance of this issue, and the fact that the latter part of the hearing on September 19, 2013 was somewhat rushed, I issued an Interim Decision, 2013 HRTO 1663, dated October 2, 2013, and a Case Assessment Direction dated October 21, 2013, which ordered that the receipt be produced, and provided directions to the parties on the issues to be addressed.
15The applicant produced the receipt, and it was examined at a second hearing day on November 5, 2013. I issued a further Case Assessment Direction dated April 1, 2014, and then heard further oral testimony from the applicant and Ms. Balachandra at a third hearing day on September 23, 2014. I also admitted into evidence the receipt, which was tendered by the applicant, and records of the applicant’s purchases at several Shoppers Drug Mart stores, which were tendered by the respondent store.
EVIDENCE
16The applicant is in her late fifties, and normally resides in another province where she is employed as an employment counsellor with the government. At the time of the incident at issue, she was enrolled in a PhD program at a university in Toronto, and was living in a graduate student residence near the respondent store.
17The respondent store is comprised of a retail store and a pharmacy, and is located in downtown Toronto. The surrounding area is densely populated, and there is a major subway stop nearby.
18Mr. Tan, who is the owner of the respondent store, testified that the store has approximately 76 employees, and that there is a 2-1 ratio of “visible minority” employees to White employees. He stated that most of the “visible minority” employees are East Asian or South Asian, but that there are also two Black employees. He also stated that the respondent store has a diverse client base, including Black customers, because it is in a busy area and close to a subway station.
19Mr. Tan testified that the respondent store has high shrinkage (loss of products), and is considered to be a “high theft” store in the Greater Toronto Area. He stated that in the past year, there was over $150,000 of pure shrinkage, and that the amount of shrinkage was close to this amount in previous years. Mr. Abroms, who is the manager of the retail store, and Ms. Balachandra, who is an evening supervisor of the retail store, both testified that Ms. Balachandra would have to deal with a shoplifting incident during most of her shifts. Ms. Balachandra testified that she had been employed by the respondent store for almost five years.
20Mr. Tan testified that the respondent store has implemented a number of measures to deal with suspected shoplifting, including having employees make contact with customers to create a presence, paging “security scan all aisles”, tagging high value items with an alarm trigger, and having patrols by plain clothes security officers.
21The respondent store’s Employee Handbook, which all employees are required to review, has provisions on loss prevention. The provisions direct employees to report any suspicion of shoplifting by an individual to the owner or manager of the store, and not to approach or follow the individual. Mr. Tan testified that if a thief takes a product and walks out of the store without paying, he would not follow the thief, and his direction to staff is not to go after the thief, because there may be a physical confrontation and the thief may have a weapon. Mr. Abroms’ testimony was somewhat different. He testified that if an employee suspects that an individual is trying to shoplift, the protocol is to wait until the individual has left the store, and then, if the employee is comfortable doing so, to ask the individual to come back in the store. He stated that the rationale for this protocol is that a theft has not occurred until the individual has left the store.
22The Employee Handbook also has several provisions which direct employees to treat customers with courtesy and respect, to abide by anti-discrimination values and legislation when providing customer service, and not to rely on racial or other stereotypes when dealing with trespassing. With respect to shoplifting, the Handbook specifically directs employees not to target a customer based on his or her race or other similar grounds.
23The applicant testified that she is a regular customer at Shoppers Drug Mart stores, and was a regular customer at the respondent store between September 2010 and May 2011. The records of the applicant’s purchases at several Shoppers Drug Mart stores from 2007 to 2014 show that she was at the cash till at various stores approximately 400 times, and purchased approximately 2,000 items. The records also show that between September 7, 2010 and May 22, 2011, she was at the cash till at the respondent store approximately 25 times, and purchased approximately 100 items.
24The applicant testified that on the evening of May 22, 2011, she left her office at the university, and went to the respondent store to purchase a mouth rinse product to address a minor dental issue. She stated that her friend had given her a package of such a product, which was in her wallet, which was in her backpack. She stated that when she went to the dental aisle, she took off her backpack, put it on the ground, crouched down, unzipped the backpack, took out her wallet, took the product package out of her wallet, put her wallet back in her backpack, and zipped up the backpack.
25The applicant testified that as she was zipping up her backpack, an employee of the respondent store came and stood over her, and, without identifying herself, told her, in an elevated tone, to open her backpack. The applicant stated that she responded, “Excuse me?”, stood up, stepped back, and then told the employee that she would not open her backpack. The applicant stated that the employee then responded, again in an elevated tone, that she had the right to ask her to open her backpack. The applicant stated that she told the employee that she had done nothing wrong, and then put her backpack on the floor in front of the employee, who unzipped it, looked inside of it, and walked away without apologizing or saying anything.
26The applicant testified that two or three people were at the end of the aisle watching the interaction between her and the employee. She stated that she felt demoralized by being called a common thief.
27The applicant testified that she pursued the employee and asked for her name. She stated that the employee responded that her name was Jenny, and that she was a supervisor.
28The applicant testified that following this incident, she went to speak to the pharmacist about the product that she was looking for. She stated that the pharmacist recommended hydrogen peroxide, which she purchased, and that she then left the respondent store. The receipt that the applicant received from the cashier and Shoppers Drug Mart’s records of her purchases show that she purchased hydrogen peroxide at the respondent store at 10:29 p.m. on May 22, 2011.
29Ms. Balachandra testified that on May 22, 2011 she was working on the evening shift between 4:00 p.m. and midnight, which is when the respondent store closed. She stated that at midnight or shortly thereafter, she closed the main entrance, and began checking the aisles of to see if anyone was left in the store. She stated that she saw the applicant in the oral care aisle bending over an open handbag on the floor. She stated that she did not notice that the applicant was Black because she was bending down. She stated that when the applicant realized that she was looking at her, the applicant quickly zipped up her bag. She stated that because of the applicant’s behaviour, she believed that the applicant had put a store product in her bag. In cross-examination, when asked to confirm how strong her belief was, she agreed that she was “confident” and “pretty sure” that the applicant had stolen something. However, she also admitted that she did not actually see the applicant put a product in her bag.
30In her testimony, Ms. Balachandra admitted that she did not introduce herself to the applicant, but she stated that she had a store uniform on which identified who she was. In cross-examination, she also admitted that she did not ask the applicant if she needed help.
31Ms. Balachandra testified she addressed the applicant as “ma’am”, and asked her, in a regular tone, if she could see her bag. She stated that she still did not notice that the applicant was Black because her focus was on stopping the applicant from shoplifting. She stated that the applicant became mad, and, in response, unzipped her bag and threw it in front of her. She stated that she looked inside the bag, but did not put her hands inside of it because of concerns that there might be a knife or something similar there. She stated that she told the applicant to leave the store because it was closed, and that the applicant then left without purchasing anything. In cross-examination, Ms. Balachandra admitted that she did not apologize to the applicant. She stated that she did not do so because the applicant was mad and was not going to listen to her.
32Ms. Balachandra testified that no one witnessed the interaction between her and the applicant because the store was closed.
33In cross-examination, Mr. Tan agreed that a store employee who asks a customer to open her bag should introduce herself. He also agreed that an employee who wrongfully accuses a customer of stealing a store product should apologize to the customer.
34Ms. Balachandra testified that she asked the applicant if she could see her bag because there is a lot of theft in the respondent store, especially at closing time. She stated that at closing time she focuses on everyone who is still in the store because of the high amount of theft that occurs. When I put it to Ms. Balachandra that her actions appear to contradict the directions to employees on loss prevention in the Employee Handbook, she stated that she did not report her suspicion of shoplifting by the applicant to the owner or manager of the store because they were not there, and, as supervisor, she was in charge. She stated that she did not follow the direction not to approach the individual suspected of shoplifting because she had been told by a security guard that a simple way of preventing shoplifting is to approach the individual and say “hi”.
35Ms. Balachandra testified that she has also approached White, East Asian and South Asian individuals in the store whom she suspected of trying to shoplift. She stated that when she sees someone acting suspiciously, but did not actually see the individual put a store product in a pocket or bag, she will simply ask the individual if she can help them pay for the product. She stated that the individual will then either take the product out of a pocket or bag and pay for it, or throw it down and leave the store. When I asked her to provide an example of a situation when she actually saw an individual put a product in a pocket or bag, she responded that she saw a White man put allergy medication inside his jacket. She stated that she told her supervisor what she saw, and she and other employees then followed the man. She stated that when the man noticed that she was following him, he took several store products out of his pocket. When I asked her to provide an example where she asked an individual to unzip a bag and she then looked inside of it, she responded that she was unable to provide such an example, and that the reason she took this action with respect to the applicant was because the store was closed.
36Mr. Tan testified that when he heard about the applicant’s allegation of racial profiling and discrimination against Ms. Balachandra, he could not see her doing that because she is a “visible minority” herself. He also stated that Ms. Balachandra is calm and of even keel, and speaks in a low tone. He stated that he was surprised to hear the applicant’s allegation that she spoke in an elevated tone because he has never heard her do that. Mr. Abroms also testified that Ms. Balachandra is easygoing and never raises her voice. He described her as one of his “best” supervisors.
37As mentioned above, following the first hearing day, the applicant produced the receipt of her purchase of a mouth rinse product at the respondent store at 10:29 p.m. on May 22, 2011, and the respondent store produced records of the applicant’s purchases at several Shoppers Drug Mart stores, and then, on a subsequent hearing day, I heard further testimony from the applicant and Ms. Balachandra about the time that the alleged incident occurred.
38In her testimony, the applicant maintained that the incident occurred shortly before 10:29 p.m., and that she left the respondent store after she had made her purchase at 10:29 p.m. She also denied that she returned to the store later that evening.
39In her testimony, Ms. Balachandra also maintained that the incident occurred after midnight when the respondent store was closed, and that the applicant left the store without purchasing anything. In cross-examination, she admitted that Mr. Abroms made her aware of the applicant’s letter of complaint when it came in, and she stated that she told him that the incident occurred after midnight. She also admitted that she had reviewed the Response to the Application and her written witness statement before they were filed with the Tribunal, and that there is no mention of the incident occurring after midnight. Her explanation was that she thought “everyone knew”.
40The records of the applicant’s purchases at several Shoppers Drug Mart stores from 2007 to 2014 show that she never made purchases at the respondent store twice in one day, but that she made purchases twice in one day at other Shoppers Drug Mart stores on six occasions. The records also show that she made purchases at the respondent store between 11:04 and 11:27 p.m. on five occasions, and at other Shoppers Drug Mart stores between 11:00 and 11:50 p.m. on 13 occasions. In cross-examination, the applicant admitted that these records are probably accurate.
41Mr. Abroms testified that on May 23, 2011, Ms. Balachandra told him about the incident. He stated that she told him that the store was closed, she saw a customer in the dental aisle, the customer was crouched on the floor, she saw the customer zip a bag closed, and she approached the customer to ask what was in her bag. He stated that he then told her to write down what had happened, which she did, and he provided her written account of the incident to Mr. Tan. The respondent store did not disclose this document to the applicant during the disclosure process before the Tribunal. Mr. Abroms testified that he does not know where the document is, and he may not have kept it.
42Mr. Abroms testified that Ms. Balachandra had stopped the applicant in the store, which is contrary to Shoppers Drug Mart’s protocol on loss prevention, but that he had advised employees that if the store is closed, they can approach individuals whom they suspect of trying to shoplift who are still in the store. In cross-examination, he went further and stated that he has instructed employees that they can approach individuals whom they suspect of trying to shoplift at any time in the store. He admitted that this is contrary to Shoppers Drug Mart’s policy on loss prevention, but stated that it was necessary because of the high shrinkage in the respondent store.
43On May 23, 2011, the applicant sent a letter of complaint to Shoppers Drug Mart’s head office. Between May 26 and August 9, 2011, the applicant had one telephone conversation with Mr. Abroms and received one email from him. She also had several telephone conversations and email exchanges with human resources staff at Shoppers Drug Mart’s head office.
44The applicant testified that Mr. Abroms was rude and dismissive to her on the phone. She also stated that he never disputed the time that she had alleged the incident had occurred. Mr. Abroms denied that he was rude and dismissive. He sent her an email dated June 16, 2011, which offered “sincere apologies” for the incident, acknowledged that “the actions taken by the employee in question were not in accordance with our policies and procedures”, and informed her that “[t]his matter has been discussed with [the employee] and necessary action has been taken.” A staff person from Shoppers Drug Mart’s head office also sent the applicant an email dated August 9, 2011, which offered an apology, and acknowledged that “the actions of the employee were not in accordance with our procedures,” and that “[m]ost certainly [the employee] should have apologized on the spot for her actions.” Neither email disputed the time that the applicant had alleged that the incident had occurred.
45In these telephone conversations and email exchanges, the applicant did not identify herself as a Black woman or characterize the incident as racial profiling or discrimination. This only happened several months later when the applicant retained legal counsel from the African Canadian Legal Clinic, who sent further correspondence to Shoppers Drug Mart.
46The applicant testified that she did not characterize the incident as racial profiling or discrimination in her initial complaint and telephone conversations and emails exchanges with Shoppers Drug Mart’s head office and the respondent store because she could not believe that she had been falsely accused of shoplifting because she is Black. She also stated that even though she is a graduate student who studies and writes about race, at that time, she did not have the language to describe what had happened. In cross-examination, when pressed further on this matter, she stated that she did not know the correct term or words until she read materials on the Tribunal’s website, and consulted with a lawyer from the African Canadian Legal Clinic.
47The applicant testified that she was dumbfounded, numbed, and shocked by the incident. She stated that she did not want to be involved in such an incident, and has found the process of dealing with it exhausting.
ANALYSIS
Applicable Law and Issues
48The Application relates to ss. 1 and 9 of the Code, which provide:
- 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.
(...)
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
49The 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 has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.
50There is no dispute between the parties that the respondent store provides services to members of the public, including the applicant.
51In order to establish a case of discrimination, the applicant must prove that (1) she is a member of a group protected by the Code; (2) she was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155.
52In the case at hand, there is no dispute that the applicant is a Black woman. There is also no dispute that she was subjected to adverse treatment in the respondent store. In fact, the respondent store and Shoppers Drug Mart’s head office have both apologized to her for the adverse treatment that she was subjected to. The main dispute is whether her race and colour were a factor in the adverse treatment.
53In assessing allegations of racial discrimination, the following principles are applicable:
(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
(e) Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.
See Peel Law Association v. Pieters, 2013 ONCA 396, 116 OR (3d) 81 (Ont. C.A.) at paras. 111-114.
54Furthermore, anti-Black racism and its subtle manifestations are well-recognized in Canadian law, including the recognition that a Black person can be treated adversely by a service-provider because of a conscious or an unconscious stereotype of Black people being criminals. See Sinclair v. London (City), 2008 HRTO 48 at paras. 17-18.
55Racial profiling is a form of racial discrimination. See Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 at para. 112. The Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination define racial profiling as follows at p. 19:
[A]ny action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.
See also Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 33.
56In Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA), 43 CR (6th) 175 (Ont. C.A.) at para. 96, the Ontario Court of Appeal made the following comments about adjudicative fact finding where there are allegations of racial profiling:
The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case. Those indicators, sometimes referred to as “social” facts, however, cannot dictate the findings that a trier of fact will make in any given case. Findings of adjudicative facts, that is the “who”, “what”, “why”, “when”, and “where” of any given case, grow out of the trier of fact’s assessment of the evidence adduced in the particular case. Findings of adjudicative facts cannot be preordained by evidence that is intended to provide the appropriate social context in which to assess the evidence and make findings of the relevant adjudicative facts: see R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 at paras. 56-58 (S.C.C.).
57Some of the key facts in the case at hand are in dispute. In assessing the credibility and reliability of the testimonies of the parties’ witnesses, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A):
(...) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
58I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
59In this case, the main issue to be decided is whether the applicant was subjected to racial profiling and discrimination in the respondent store.
Was the applicant was subjected to racial profiling and discrimination in the respondent store?
60I find that the respondent store experiences a higher-than-average amount of shoplifting. I accept the testimony of the respondent store’s witnesses on this matter. Although the respondent store did not tender any supporting documentation, the applicant did not dispute the witness’ testimony, and it makes sense to me in view of the fact that the store is located in a densely populated area, and there is a major subway stop nearby.
61I also find that the respondent store has implemented a number of measures to deal with suspected shoplifting. I accept Mr. Tan’s testimony that the main measures are having employees make contact with customers to create a presence, paging “security scan all aisles”, tagging high value items with an alarm trigger, and having patrols by plain clothes security officers. The applicant did not dispute Mr. Tan’s testimony on this matter, and it makes sense to me that such measures would be effective in dealing with suspected shoplifting.
62However, the respondent store’s evidence on how employees make contact with suspected shoplifters was somewhat confusing. On the one hand, the provisions on loss prevention in the Employee Handbook clearly direct employees not to approach or follow an individual who is suspected of shoplifting, and Mr. Tan testified that if a thief takes a product and walks out of the store without paying, he would not follow the thief, and his direction to staff is not to go after the thief, because there may be a physical confrontation and the thief may have a weapon. On the other hand, Mr. Abroms testified that if an employee suspects that an individual is trying to shoplift, the protocol is to wait until the individual has left the store, and then, if the employee is comfortable doing so, to ask the individual to come back in the store. Mr. Abroms and Ms. Balachandra also testified that employees can approach customers whom they suspect of trying to shoplift at any time in the store. My findings of fact on this matter are as follows.
63I find that the respondent store directs employees to politely approach or follow individuals whom they suspect of trying to shoplift. I accept Mr. Abroms’ testimony that he has instructed employees that they can approach an individual whom they suspect of trying to shoplift at any time in the store, and that after such an individual has left the store, if the employee is comfortable doing so, he or she can ask the individual to come back in the store. Mr. Abroms did not explain in detail how this plays out, but in her testimony, Ms. Balachandra essentially stated that she takes a non-confrontational, presence-based approach. I accept her testimony that she simply approaches customers and says “hi” to prevent shoplifting. I also accept her more specific testimony that, when she sees someone acting suspiciously, but did not actually see the individual put a store product in a pocket or bag, such an approach consists of asking the individual if she can help them pay for the product, and when she actually sees an individual put a product in a pocket or bag, such an approach consists of following the individual in the store.
64Although this unwritten procedure for dealing with individuals who are suspected of shoplifting appears to be contrary to the directions on loss prevention in the respondent store’s Employee Handbook, it make sense because it addresses the store’s need to deal with the higher-than-average amount of shoplifting that it experiences without putting the safety of employees at risk, and without creating a risk that a customer would be wrongfully accused of shoplifting.
65I also find that the respondent store’s policy is that employees are not to directly confront individuals whom they suspect of shoplifting. Mr. Abroms testified that the rationale for not directly confronting a suspicious individual inside the store is that a theft has not occurred until the individual has left the store. This makes sense to me. Obviously, you cannot reliably accuse someone of theft until it has actually occurred. Mr. Tan also testified that if a thief takes a product and walks out of the store without paying, he would not follow the thief, and his direction to staff is not to go after the thief, because there may be a physical confrontation and the thief may have a weapon. I have given Mr. Tan’s testimony significant weight on this matter because he is the owner of the store. His testimony also makes sense to me. Obviously, for safety reasons, a direct confrontation should be done by someone who has been trained to deal with potentially violent situations, such as a security guard or a police officer. Ms. Balachandra also testified that she has been employed by the respondent store for almost five years, and has had to deal with shoplifting incidents during most of her shifts, but none of the examples that she provided involved directly confronting an individual who was suspected of shoplifting.
66I now turn to my findings of fact with respect to the incident between the applicant and Ms. Balachandra. Some of the relevant facts are not in dispute, but others are, including, in particular, the time that the incident occurred.
67I found the applicant to be a credible witness. She provided forthright, clear, and detailed oral testimony about the incident, which withstood cross-examination. She also produced a receipt, which corroborated her testimony that she bought a mouth rinse product that she had come to the respondent store to purchase, and left at approximately 10:29 p.m. Furthermore, in my view, she had no motive to lie about the time that the incident occurred.
68In its closing submissions, the respondent store argued that the applicant was not a credible witness because she did not allege that her race was a factor in the incident in her May 23, 2011 letter of complaint to Shoppers Drug Mart’s head office, or in her communications with Mr. Abroms and human resources staff at Shoppers Drug Mart’s head office between May 26 and August 9, 2011. I disagree. The applicant testified that she was dumbfounded, numbed, and shocked by the incident, and could not believe that she had been falsely accused of shoplifting because she is Black. The experience of being falsely accused of shoplifting can be humiliating, embarrassing, and even shameful for the falsely accused person, and to contemplate the possibility that it was because of the person’s race, which is immutable, can elicit even further humiliation, embarrassment, and shame. In these circumstances, I fully understand why it would take several weeks or months for some (though not all) people to process and articulate that their race was a factor that led to the false accusation. In any case, the applicant eventually did allege that her race was a factor in the incident after she consulted with a lawyer from the African Canadian Legal Clinic. See Simpson v. Oil City Hospitality Inc., 2012 AHRC 8 at paras. 23-24, where a Human Rights Tribunal of Alberta discussed a similar situation.
69I did not find Ms. Balachandra to be a credible witness. The respondent store’s July 24, 2012 Response to the Application (which was presumably based on her account of what happened given that she was the respondent store’s sole witness to the incident), her August 16, 2013 written witness statement (which was also presumably based on her account of what happened), and her September 19, 2013 and September 23, 2014 oral testimony before the Tribunal have significant inconsistencies with respect to what occurred.
70Specifically, the Response alleged that Ms. Balachandra approached the applicant and politely asked her whether she needed assistance, and the applicant responded, “No”, but this allegation was omitted from her written witness statement, and in her oral testimony, she admitted that she did not ask the applicant if she needed help. No explanation was provided for this significant inconsistency.
71In addition, the Response and Ms. Balachandra’s written witness statement alleged that she observed what appeared to be the applicant crouching down, taking an item from the store shelf, and putting it in her purse, but in her oral testimony, she provided a different account of what she observed. Specifically, she stated that she stated that she saw the applicant bending over an open handbag on the floor, and when the applicant realized that she was looking at her, the applicant quickly zipped up her bag. She did not mention observing the applicant taking an item from the store shelf, and in cross-examination, she admitted that she did not see the applicant put a product in her bag. Again, no explanation was provided for this significant inconsistency.
72Furthermore, I believe that Ms. Balachandra was being untruthful when she testified at the hearing that the incident occurred shortly after midnight when the respondent store was closed. Prior to Ms. Balachandra’s testimony at the hearing, the respondent store did not dispute the applicant’s position that the alleged incident occurred between 10:10 and 10:29 p.m. on May 22, 2011 when the store was open. Specifically, the applicant’s position was not disputed in the telephone conversations that Mr. Abroms and human resources staff at Shoppers Drug Mart’s head office had with the applicant, and the emails that they sent to her, between May 26 and August 9, 2011. It was also not disputed in the July 24, 2012 Response to the Application, or the respondent store’s August 16, 2013 written witness statements, including the one for Ms. Balachandra. In cross-examination, Ms. Balachandra admitted that she had reviewed the Response and her written witness statement before they were filed with the Tribunal, and admitted that there is no mention of the incident occurring after midnight. Her explanation was that she thought “everyone knew”. The applicant’s position was also not disputed in the respondent store’s opening statement at the hearing, and when it cross-examined her at the hearing, it did not bring to her attention that its witnesses would be disputing her position. It was also not disputed when Mr. Tan testified. He testified before Ms. Balachandra did, and made no mention of being told that the incident occurred after midnight when the store was closed. The first time that the respondent store disputed the applicant’s position was when Ms. Balachandra testified at the hearing.
73Ms. Balachandra had a clear motive to lie about what time the incident occurred. Her action in directly confronting the applicant and searching her bag inside the respondent store when the store was open was contrary to the store and Shoppers Drug Mart’s policy on dealing with individuals suspected of shoplifting, and the wrongness of her action was compounded by the fact that the applicant had not, in fact, put a product in her bag. Furthermore, because of her action, the applicant named her employer as the respondent in a human rights Application, and exposed her employer to potential liability and negative publicity. Her belated allegation that the incident, in fact, occurred after midnight when the store was closed provided a convenient rationale for what she did because she also testified that theft in the respondent store is particularly high at closing time, and this is why she committed the unusual act of asking the applicant to open her bag and then searched her bag. I do not accept that such an important factual allegation would not have been mentioned at an earlier juncture. In my view, Ms. Balachandra concocted this allegation at the last minute in an attempt to protect herself and bolster the respondent store’s case.
74I am cognizant that Mr. Abroms corroborated Ms. Balachandra’s testimony on this matter when he testified that a day or so after the incident occurred, she told him about it and said that it occurred after midnight, that she provided him with a written account of what occurred, and that he had advised employees that if the store is closed, they can approach individuals whom they suspect of trying to shoplift who are still in the store. However, I did not find Mr. Abroms’ testimony on this matter to be credible either. The written account that Ms. Balachandra provided to Mr. Abroms was not disclosed to the applicant during the disclosure process before the Tribunal or produced at the hearing. More importantly, however, his factual allegation about being told that the incident occurring after midnight, which is highly relevant if true, only arose in his testimony at the hearing, and it beggars belief to me that he would not have raised this factual allegation in his early communications with the applicant, or it would not have appeared in the Response to the Application or his written witness statement, which were filed prior to the hearing.
75I also found it suspect that, in Mr. Abroms’ testimony, the account of the incident that he claimed that Ms. Balachandra relayed to him the day after the incident was perfectly aligned with the account of the incident in her testimony at the hearing. This would not be suspicious except for the fact that, as mentioned above, there are significant inconsistencies between this account and the account that is in the Response to the Application and Ms. Balachandra’s witness statement. This suggests to me that Mr. Abroms and Ms. Balachandra had discussions shortly before the hearing to tailor and align their testimony.
76In its closing submissions, the respondent store argued that Shoppers Drug Mart’s records of the applicant’s purchases at several stores over the years are probative in demonstrating that the incident occurred after midnight. I disagree. I do not accept that the records are probative one way or the other in establishing what time the incident occurred. Although the records show that the applicant occasionally made purchases twice in one day at some stores, they also show that she never made purchases twice in one day at the respondent store. Furthermore, although the records show that she occasionally made purchases between 11:04 and 11:27 p.m. at the respondent store and between 11:00 and 11:50 p.m. at other stores, they also show that she has never made a purchase at or shortly after midnight.
77For the above reasons, where there are differences between the applicant’s testimony and Ms. Balachandra’s testimony about the facts of what occurred, I prefer the applicant’s testimony.
78I find that the applicant entered the respondent store at approximately 10:10 p.m. on May 22, 2011. I accept her testimony that she went to the store to purchase a mouth rinse product to address a minor dental issue. I also accept her testimony that her friend had given her a package of such a product, which was in her wallet, which was in her backpack. I also accept her testimony when she went to the dental aisle, she took off her backpack, put it on the ground, crouched down, unzipped the backpack, took out her wallet, took the product package out of her wallet, put her wallet back in her backpack, and zipped up the backpack.
79I find that Ms. Balachandra saw the applicant crouching down and zipping up her backpack. I do not accept Ms. Balachandra’s testimony that when the applicant realized that she was looking at her, the applicant quickly zipped up her bag. The applicant had not put a store product in her backpack, so there was no reason for her to quickly zip up her backpack when she saw Ms. Balachandra. I also do not accept Ms. Balachandra’s testimony that the bag was a purse or handbag. It makes far more sense to me that the applicant would be crouching down to open and close a large bag, such as backpack, rather than a purse or handbag, which can be opened and closed standing up.
80I also do not accept Ms. Balachandra’s testimony that she did not notice that the applicant was Black when she first saw and spoke to her because the applicant was bending down, and she was focused on stopping the applicant from shoplifting. The applicant is obviously a Black woman, and I do not see how the fact that she was crouched down would have made this less obvious, particularly in view of Ms. Balachandra’s testimony that the applicant realized that she was looking at her, which means that the applicant must have looked up. In my view, Ms. Balachandra’s testimony on this matter was simply an attempt to evade the allegation of racial profiling and discrimination.
81In its closing submissions, the respondent store argued that Ms. Balachandra had a reasonable basis for being suspicious. I agree. Although people frequently open and close their bags in stores to access wallets, cell phones, reminder lists, and other items, and will crouch down and put their bag on the ground if it is large, the respondent store experiences a higher-than-average amount of shoplifting, and some of the people who open and close their bags are shoplifting. I do not believe that is unreasonable or discriminatory for a store employee to have her suspicion raised by an individual who is crouched on the ground in an aisle and zipping up her bag.
82However, Ms. Balachandra’s belief went well beyond mere suspicion. She testified that she only saw the applicant crouching down and zipping up a bag, and she admitted that she did not see the applicant put a store product in her bag. Despite this, she also testified that she believed that the applicant had put a product in her bag, and in cross-examination, when asked to confirm how strong her belief was, she agreed that she was “confident” and “pretty sure” that the applicant had stolen something. Given that Ms. Balachandra did not see the applicant put a product her bag, her strong belief that she had done so is completely illogical. In my view, the illogical nature of Ms. Balachandra’s strong belief, coupled with the fact that the applicant is a Black woman, is indicative that Ms. Balachandra was being influenced, consciously or unconsciously, by the stereotype that Black people are thieves.
83I find that Ms. Balachandra was also rude to the applicant from the outset of her interaction with her. It is undisputed that Ms. Balachandra did not identify or introduce herself to the applicant. In cross-examination, Mr. Tan, who is the owner of the store, agreed that a store employee who asks a customer to open her bag should introduce herself. There was conflicting testimony about whether Ms. Balachandra told the applicant in an elevated voice to open her backpack or whether Ms. Balachandra politely asked her, in a regular tone, if she could see her bag. In view of the fact that Ms. Balachandra had a strong belief that the applicant was trying to steal a store product, and she did not introduce herself to the applicant, I am more inclined to believe that Ms. Balachandra told the applicant in an elevated voice to open her backpack. In my view, the fact that Ms. Balachandra was being rude to the applicant, even though she did not see her put a store product in her bag, is indicative that she was being influenced, consciously or unconsciously, by the stereotype that Black people are thieves.
84I find that the applicant put her backpack in front of Ms. Balachandra, who looked inside of it, and did not find a store product in it. This is undisputed. There was conflicting testimony about whether the applicant unzipped her backpack or Ms. Balachandra unzipped it for the search. In view of the fact that the applicant has consistently alleged since her letter of complaint that Ms. Balachandra opened her backpack, but the respondent store did not dispute this allegation until Ms. Balachandra testified, I am more inclined to believe that Ms. Balachandra unzipped the applicant’s backpack for the search.
85I find that Ms. Balachandra’s action in directly confronting the applicant and searching her backpack inside the store was contrary to the respondent store and Shoppers Drug Mart’s policy on dealing with suspected shoplifting. My findings on the policy are set out above. In her testimony, Ms. Balachandra attempted to rationalize her breach of the policy by claiming that the store was closed. As set out above, I have also found that she was being untruthful when she claimed that the store was closed. Furthermore, when asked to provide an example where she asked a non-Black individual whom she suspected of shoplifting to unzip a bag and she then looked inside of it, she was unable to provide a single example, despite the fact that she testified that she has been employed by the respondent store for almost five years, and has had to deal with shoplifting incidents during most of her shifts. In my view, Ms. Balachandra’s action in directly confronting the applicant and searching her backpack inside the store in breach of the respondent store and Shoppers Drug Mart’s policy, along with the fact that she lied about the respondent store being closed, and the fact that she was unable to provide a single example where she treated a non-Black individual the same way, is indicative of racial profiling and discrimination.
86I find that after Ms. Balachandra discovered that there was no store product in the applicant’s backpack, she continued to be rude to the applicant by not apologizing to her. It is undisputed that Ms. Balachandra did not apologize to the applicant. There was conflicting testimony about whether the applicant pursued Ms. Balachandra and obtained her name and position, or whether Ms. Balachandra told the applicant to leave the store because it was closed, and that the applicant then left without purchasing anything. In view of my findings above that Ms. Balachandra was being untruthful about the store being closed, I am more inclined to believe that the applicant pursued Ms. Balachandra and obtained her name and position.
87In cross-examination, Ms. Balachandra stated that she did not apologize to the applicant because the applicant was mad and was not going to listen to her. This is completely illogical. The applicant was obviously upset that she had been falsely accused of trying to shoplift (as anyone in her circumstances would be), but there was no evidence that she was yelling, in a rage, or anything of that nature. In their testimony, which I accept, Mr. Tan and Mr. Abroms also testified that the applicant is always soft-spoken, calm, and easygoing. In other words, she is polite. Furthermore, as the respondent store pointed out in its closing submissions, Ms. Balachandra’s demeanour was similar during the hearing before the Tribunal. I agree that she was unfailingly polite in her interactions with counsel and me during the hearing. However, Mr. Tan, Mr. Abroms, counsel, and I are all in positions of power in relation to Mr. Balachandra, and none of us are Black individuals. Furthermore, in cross-examination, Mr. Tan agreed that a store employee who wrongfully accuses a customer of stealing a store product should apologize to the customer. In my view, the fact that Ms. Balachandra did not apologize to the applicant for having falsely accused of her of trying to shoplift, along with the fact she failed to provide a logical reason why she did not do so, and the fact that she is normally a polite person, is indicative of racial discrimination.
88In its closing submissions, the respondent store argued that Ms. Balachandra could not have racially profiled and discriminated against the applicant because she is also a racialized woman. Ms. Balachandra is South Asian. I disagree. In my view, it is not in dispute among well-informed, reasonable persons that racial stereotypes about persons of Black African descent exist in South Asian communities in both South Asia and Canada. Furthermore, South Asian individuals in Canada who hold such stereotypes and are in positions of power in employment, services or housing undoubtedly have the capacity to discriminate against Black individuals. I am not suggesting that this makes it more likely that Ms. Balachandra discriminated against the applicant, but I also do not accept that, because she is South Asian, it is impossible or less likely that she discriminated against the applicant. I dealt with a similar issue in Armstrong v. Anna’s Hair & Spa, 2010 HRTO 1751 at paras. 52-55, and Bageya v. Dyadem International, 2010 HRTO 1589 at para. 136.
89I also agree with the Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination, which state at page 14:
Some human rights claims allege racism by, among or within racialized groups. The consequences of these situations, for example loss of a job, are every bit as serious as racism perpetuated by White persons against racialized persons and they should be dealt with equally seriously.
90To sum up, the following evidence provides a basis to draw the inference that Ms. Balachandra racially profiled and discriminated against the applicant during her interactions with her in the respondent store:
There were significant inconsistencies between the Response to the Application, Ms. Balachandra’s written witness statement, and her oral testimony with respect to what occurred.
Ms. Balachandra did not see the applicant put a store product in her bag, but strongly believed that she had done so, which was completely illogical. She was unable to offer a reasonable explanation for this strong belief.
Ms. Balachandra was rude to the applicant from the outset of her interaction with her by not identifying or introducing herself to the applicant, speaking to her in an elevated voice, and demanding that she open her backpack.
Ms. Balachandra’s action in directly confronting the applicant and searching her backpack inside the store was contrary to the respondent store and Shoppers Drug Mart’s policy on dealing with suspected shoplifting.
Despite having been employed by the respondent store for almost five years, and having had to deal with shoplifting incidents during most of her shifts, Ms. Balachandra was unable to provide a single example where she directly confronted and searched the bag of a non-Black individual inside the store.
After discovering that there was no store product in the applicant’s backpack, Ms. Balachandra continued to be rude to the applicant by not apologizing to her. She was unable to offer a reasonable explanation why she did not apologize, and her behaviour was contrary to how she normally behaves, which is to be polite.
Ms. Balachandra lied when she testified that the incident occurred shortly after midnight when the respondent store was closed. She concocted this allegation at the last minute in an attempt to protect herself and bolster the respondent store’s case.
Ms. Balachandra tried to evade the applicant’s allegation of racial profiling and discrimination by falsely testifying that she did not notice that the applicant was Black when she first saw and spoke to her in the respondent store.
Ms. Balachandra was unable to offer a credible, non-discriminatory explanation for how she treated the applicant.
See Peel Law Association, above, at para. 128, where the Ontario Court of Appeal found that similar evidence was an ample basis to support an inference of racial profiling and discrimination.
91For the above reasons, I am satisfied that the applicant has established, on a balance of probabilities, that her race and colour were a factor in how Ms. Balachandra treated her in the respondent store. In my view, although the applicant’s race and colour were not the sole factor, they were a factor, and moreover, a significant factor, in the adverse treatment. Furthermore, in view of the fact that Ms. Balachandra is an employee of the respondent store, the respondent store is liable for her conduct. See s. 46.3(1) of the Code.
REMEDY
Applicable Law and Issues
92The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:
(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
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 restitution for injury to dignity, feelings and self-respect.
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.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
93The applicant is seeking an award of $8,000 compensation for injury to dignity, feelings and self-respect. She is not seeking any other remedies. Accordingly, the issue that I am required to determine is whether the applicant is entitled to monetary compensation for injury to dignity, feelings and self-respect.
Is the applicant is entitled to monetary compensation for injury to dignity, feelings and self-respect?
94An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153.
95The Divisional Court has also recognized that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA, above, at para. 154.
96In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed awards under this heading of damages, and stated at paras. 52-54:
(...) 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.
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.
97I find that, objectively, the racial profiling and discrimination that the applicant experienced, which included being rudely approached because she is Black, being falsely accused of trying to shoplift and having her backpack searched because she is Black, and not being apologized to because she is Black, was an extremely serious violation of the Code. On the other hand, I have also taken into account that the incident only lasted a few minutes. I also accept the applicant’s testimony that she was dumbfounded, numbed, and shocked by the incident, which was witnessed by two or three other people in the respondent store, and that she has found the process of dealing with it exhausting. It was obvious from her demeanour at the hearing that she was still shaken and affected by the incident years later. I have no doubt that she will feel the negative effects of it for the rest of her life. On the other hand, I have also taken into account that the applicant did not present any evidence that she has sought medical treatment or developed a mental health problem as a result of the incident.
98Tribunal decisions that have considered incidents involving racial profiling and/or discrimination with respect to services have made awards ranging from $2,000 to $20,000. See, for example, Pieters v. Peel Law Association, 2010 HRTO 2411 ($2,000); Phipps v. Toronto Police Services Board, 2009 HRTO 1604 ($10,000); Simpson v. Oil City Hospitality Inc., 2012 AHRC ($15,000); Direk v. Coffee Time Donuts, 2009 HRTO 1887 ($15,000); Longboat v. 708179 Ontario Inc., 2012 HRTO 2170 ($15,000); and Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 ($20,000).
99None of the above decisions are closely analogous to the case at hand, but, in my view, the ones that are most analogous and relevant with respect to the appropriate quantum to be awarded to the applicant for injury to dignity, feelings and self-respect are Pieters, Simpson, and Direk. In Pieters, this Tribunal found that the librarian/administrator of a lawyers’ lounge racially profiled and discriminated against two Black lawyers when she demanded that they produce identification to prove that they were lawyers, and awarded each applicant $2,000 for injury to dignity, feelings and self-respect. In Simpson, a Human Rights Tribunal of Alberta found that the respondent refused the complainant entry to its nightclub because he is Asian, and awarded him $15,000 for general damages. In Direk, this Tribunal found that the respondent coffee shop’s owner made discriminatory comments about Turkish people, and called the police on the applicant because he is Turkish. The Tribunal awarded the applicant $15,000 for injury to dignity, feelings and self-respect.
100In my view, the quantum that should be awarded to the applicant for injury to dignity, feelings and self-respect in the case at hand lies somewhere between the quantum awarded in Pieters, and the quantum awarded in Simpson and Direk. The quantum should be higher than in Pieters because it is a far more serious violation of the Code to be falsely accused of being a thief and subjected to a bag search in a store because of race and colour than to be asked for identification in a lawyers’ lounge because of race and colour, but not as high as in Simpson, where the applicant was refused a service because of his race, and in Direk, where the police were called on the applicant because of his place of origin and ethnic origin.
101I find, overall, after considering the extremely serious violation of the Code, the applicant’s individual circumstances, and the relevant case law, that the $8,000 that the applicant requested is an appropriate award of compensation for injury to dignity, feelings and self-respect.
102The Tribunal also has the jurisdiction to order the respondent store to pay interest in accordance with the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended (the “CJA”). Pursuant to s. 128 of the CJA, pre-judgment interest runs from the date the cause of action arose (May 22, 2011) to the date of this Decision. Pursuant to s. 129 of the CJA, post-judgment interest runs from the date of this Decision.
ORDER
103Accordingly, the Tribunal makes the following order:
- The respondent store shall pay the applicant $8,000 as monetary compensation for injury to dignity, feelings and self-respect. Pre-judgment and post-judgment interest are payable in accordance with the CJA.
Dated at Toronto, this 1st day of October, 2015.
“Signed by”
Ken Bhattacharjee
Vice-chair