Sinclair v. London Public Library, 2016 HRTO 1164

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincent Sinclair Applicant

-and-

London Public Library Respondents

DECISION

Adjudicator: Bruce Best Date: September 2, 2016 Citation: 2016 HRTO 1164 Indexed As: Sinclair v. London Public Library

APPEARANCES

Vincent Sinclair, Applicant Self-represented

London Public Library, Respondent Yola Ventresca and Brendan Farrer, Counsel

Introduction

1This Application alleges discrimination with respect to services because of race and colour, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

Procedural History

2By Case Assessment Direction ("CAD") dated August 7, 2013, the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed, or that one of the allegations was untimely. The summary hearing was heard by teleconference on May 22, 2014. By Interim Decision dated June 2, 2014, 2014 HRTO 781 ("Interim Decision"), the Tribunal determined that the two allegations constituted a series of incidents for the purposes of s.34(1)(b) of the Code, and that the Application should proceed to a hearing on the merits. In refusing to dismiss the Application at the summary hearing, the Interim Decision noted, at para. 42:

In my view, it is appropriate to allow this Application to proceed further in the Tribunal's process. Obviously, the fact that I have not concluded that this Application has no reasonable prospect of success does not in any way suggest that it will succeed. In fact, as I have noted there appears to exist little evidence to link the respondent's alleged actions with the grounds of discrimination set out in the Application. However, in the circumstances set out above, I find that the determination of whether the applicant can make out his onus of establishing that his race and/or colour were factors in the respondent's actions is best made by the adjudicator hearing this case once the respondent has filed a full Response and evidence has been heard.

3The hearing on the merits was heard in London on March 2 and 3, 2016.

4Prior to the hearing, the applicant did not comply with the Tribunal's Rules respecting disclosure of documents and the filing of witness statements. The Tribunal issued another CAD on January 26, 2016, requiring the applicant to comply with the Rules by February 2, 2016. The applicant did not file any documents by that deadline, but on February 12, 2016, requested an extension of time to comply on the basis that he had not received the January 16, 2016 CAD. He was granted an extension to February 19, 2016. The applicant did not comply with this deadline either, and by a further CAD dated February 23, 2016, the Tribunal directed that the applicant was, pursuant to Rule 16.4, not permitted to rely on any documents or call any witnesses other than himself at the hearing without further permission of the Tribunal, and that his own testimony would be limited to the events as set out in the materials already filed.

5The applicant testified on his own behalf, and the respondent called five witnesses, Susanna Hubbard Krimmer, Lindsay Harris, Patricia Sauvé, Julie Brandl, and Paula Kelly.

6For the reasons set out below, I find that the applicant has not been able to establish a prima facie case of discrimination, and on that basis the Application is dismissed.

ISSUES

7As noted in the Interim Decision at para. 31, the applicant alleges discrimination because of race/colour arising from the following two incidents:

a. On November 21, 2011, an employee of the respondent, Patricia Sauvé, gave the applicant a copy of a Landlord Tenant Manual. She then took it back from the applicant saying that he was not entitled to look at the book without a valid library card.

b. On November 12, 2012, the applicant requested that another employee, Paula Kelly, print a copy of the Freedom of Information and Protection of Privacy Act for him. The same employee involved with the November 2011 incident, Ms. Sauvé, told the other employee not to print out the Act for the applicant.

8The issue in this case is whether the applicant's race and/or colour was a factor in the above incidents.

Incident of November 21, 2011

Policy on High Demand Materials

9Susanna Hubbard Krimmer, the chief executive officer of the library, testified with respect to the policies which were at issue in this Application.

10She testified that the legislative authority governing public libraries in Ontario, the Public Libraries Act, R.S.O. 1990, c. P.44 ("PLA"), sets out certain requirements in terms of access to materials, and also provides that the board of the library could implement certain policies. One such policy implemented by the respondent was the "In-Library Use of High Demand/Valuable Reference Materials Guideline" ("high demand policy") which provided that certain materials were to be kept behind the reference counter and could only be accessed by individuals with a valid library card in good standing or with suitable alternative identification.

11The policy read, in part ("LPL" refers to "London Public Library"):

Customers with LPL cards

The library card must be checked in the Millennium database to ensure the customer is in good standing (current, fines under $5.)

Staff will hold the library card with item card in secure place at the service desk until the item is returned to the desk

Staff must wand the library card and ask the customer for last name before returning the card to the customer (to ensure the correct card is given to the customer)

Customers without LPL cards

Must produce acceptable identification

If the customer cannot produce proper identification, he/she must use the material under the supervision of staff or at the discretion of the staff member

If a customer, known to staff to have fines or an expired library card, produces other acceptable identification, staff should request that they first must clear up their library account before they are allowed to use the item away from the desk. It the customer is unable or refuses to do this, the material must be used at the desk under the supervision of staff.

November 21, 2011

12Patricia Sauvé testified that she worked at the reference desk on the second floor of the library. Ms. Sauvé testified that when patrons came to the desk requesting a high demand book, her practice had been to give them the book when they gave her their library card, at which point she would attach the library card to the item card from the book and file it until the book was returned. She testified that a couple of days before the first incident, she had been reminded that the policy required her to scan the library card to ensure it was valid and in good standing before giving out a book. She testified that she still would forget to do so, particularly with patrons she was familiar with, such as the applicant.

13She testified that the applicant came to the desk and asked to see a volume containing the landlord and tenant statutes of Ontario, one of the high demand books kept behind the counter. She handed the book to the applicant and took his library card, and he took the book to a reading area. She realized after he had gone that she had forgotten to scan his library card. When she did so, she saw that his card had recently expired and that he had outstanding fines of over $36. She then walked over to where the applicant was sitting and politely said to him that his card had expired, and that according to library policy she needed to ask him to go down to the circulation desk to get it updated. He took his card back, handed her the book, and headed downstairs. She testified that she had known the applicant for approximately eight months, as he came to the reference desk on a regular basis, and that in her experience he had always been calm and polite. She testified that after she told him he needed to update his card, he seemed tense and angry. She also testified that she did not anticipate this reaction, and did not expect him to be offended.

14The applicant's version of events was similar, primarily differing in terms of Ms. Sauvé's demeanour when she came over to him. He testified that she "grabbed" the book and said to him that his card was "of no use."

15Under cross-examination, the applicant asked Ms. Sauvé why it was so urgent for her to enforce the policy after she had made an error. She answered that it was not a matter of urgency, but that she simply wanted to stay within policy and procedure, and did not want to compound her error by leaving the book with him once she realized her mistake.

16The applicant returned to the reference desk half an hour later, and asked for a copy of the high demand policy. Ms. Sauvé and the other staff member at the reference desk looked, but were unable to locate the policy. Julie Brandl, the senior manager in charge at the library at the time, came down to the reference desk. Ms. Brandl testified at the hearing, and though she indicates that she had no independent recollection of the incident, she did confirm that she had completed an incident report, which was submitted in evidence. The incident report was consistent with Ms. Sauvé's evidence. The incident report also indicated that Ms. Brandl located a "frequently asked questions" document written for staff on the internal library network, and showed it to the applicant. The document read, in part, as follows:

8. What is acceptable ID to take for high-demand materials?

A valid LPL library card is the preferred ID. The card must be checked in the database to ensure it is current and fines are under $5. Patrons will be directed to the Circulation HelpDesk if their card is not in good standing.

17The applicant was apparently not satisfied with this document, particularly because Ms. Sauvé had given him the book before checking his card, and because the document did not indicate that if a book was given in error that the staff member should go and ask for it back. Ms. Brandl's incident report indicated that she told him he could either provide another piece of identification, or could sit nearby the helpdesk in order to read the book, but he refused.

18The respondent acknowledged that Ms. Sauvé should have checked his card first, and that having not done so, from a customer service perspective it may not have been appropriate for her to have then gone and asked for him to give the book back. Ms. Hubbard Krimmer also confirmed that the policy was silent on whether a staff member should retrieve a book in the circumstances of this case.

19There was clearly a policy in place that, in order to use a high demand book, a patron's library card should be valid and have less than $5 in fines. The policy was also silent on what to do if a patron was given a book and it was only then discovered a library card was invalid. However, I accept Ms. Sauvé's evidence that when she realized that the applicant's card was not valid, she went to the applicant because she wanted to ensure she was in compliance with the policy. I also accept that the applicant was told about the policy, and was also told that he could still access the book by either updating his card, providing alternative identification, or by reading the book by the help desk.

November 9, 2012 Incident

20The second allegation is that, a year later, Ms. Sauvé intervened to prevent another staff member from printing a 41-page document for the applicant, claiming that doing so was contrary to a recent directive from the library management. The applicant claims that the directive did not in fact preclude the staff member from printing the document for him, and that Ms. Sauvé's intervention was simply to deny him service.

Directive respecting printing

21As noted at paras. 37 and 41 of the Interim Decision, the main reason this matter was allowed to proceed to a hearing on the merits was that Ms. Sauvé was not able to produce the directive respecting printing when asked. I agree that if Ms. Sauvé had referred to a directive that did not exist as a pretence to deny the applicant service, such a fact could be evidence in support of establishing differential treatment, in that if there was no such directive this could be viewed as a means to disguise discriminatory conduct.

22However, the respondent produced evidence at the hearing to substantiate that there was, in fact, such a directive in place. Lindsay Harris, who had become the supervisor for the second floor of the library in late October 2012, testified that she had sent an email to staff on November 9, 2012, three days before the second incident, that specifically directed staff not to print documents for patrons, and to tell patrons that they would need to use their copy cards at the public computers for print jobs. The email stated, in part:

The reason I am cracking down on the research printing is that we have patrons who are continually getting "no" from some staff and then coming back and asking someone else until they get a "yes". This is not fair to our coworkers and sets up an inaccurate expectation on behalf of the public, so no more printing from staff terminals.

23Ms. Harris confirmed in her testimony that she sent the email because of concerns over uneven application of the policy. The email also stated that there were one or two regulars who were exceptions, and also indicated that there may be other situations where the rules simply don't work, and that staff should always use their discretion. In her testimony, she explained that the regulars were two individuals who had specific disability-related restrictions that prevented them from using the public terminals who asked to have only one or two pages printed out every couple of weeks, and that she did not want the staff to be overly rigid when assisting patrons with similar restrictions.

24In the applicant's cross-examination of Ms. Harris, his focus was on the issue of whether the email was a formal policy, and whether she had obtained approval prior to sending it out. Ms. Harris testified that the directive was not a formal policy of the library, but that it did not need to be, as it was within her authority to direct her staff as she did. Ms. Hubbard Krimmer also confirmed that the directive to staff was within Ms. Harris' authority, and was consistent with Board policies.

Printing Request

25Paula Kelly testified that she was at the service desk on November 12, 2012, when the applicant came to request that she print out a copy of a provincial statute from an Ontario government internet website. She was going to print the document from her computer, when Ms. Sauvé, who was next to her, reminded her of the directive from Ms. Harris. The applicant then said he had a copy card and would pay for it, but that he still wanted Ms. Kelly to do the printing. Ms. Kelly testified that she could help him, but according to the directive it would still have to be done from a public computer.

26The applicant asked to see the directive. Ms. Kelly advised him that she could not show it to him as it was an internal library email. Ms. Sauvé says that she also offered to assist the applicant with accessing the document from a public computer, but that he said to her, "You are a racist, you stay out of this, I'm not talking to you."

27Under cross-examination, Ms. Kelly was questioned on her statement that the applicant could be "demanding" of staff. She explained that by this she meant that in her experience he expected staff to assist him immediately, and that the tone of his voice came across as demanding.

28The applicant's evidence was considerably less detailed. His description of the incident as set out in the Application was more or less consistent with the above, and specifically stated that the applicant came to the reference desk and asked Ms. Kelly to print a copy of the "Freedom of Information Act" for him. He testified that he asked her if she could get it for him as he did not use the computer. He claims she had downloaded the document, and was about to print it when Ms. Sauvé intervened and said they were not permitted to do so because of the direction. He testified that at that point he asked her to show him where it said in the operations manual that Ms. Kelly should not print the document for him.

29I accept that the email from Ms. Harris specifically directed staff at the reference desk not to print out documents from staff computers, with the caveat that they were to use reasonable discretion where appropriate. I also accept the evidence that Ms. Sauvé and Ms. Kelly, in accordance with the directive, told the applicant that they could not print from the staff computer, but offered to assist him to find the document at one of the public terminals.

Analysis

30In order to establish a breach of the Code, the applicant must be able to establish a prima facie case of discrimination. If he can do so, the evidentiary burden turns to the respondent to provide a non-discriminatory explanation for its actions. The burden of proof to establish discrimination in a case such as this, however, always rests with the applicant. See Peel Law Association v. Pieters, 2013 ONCA 396 ("Pieters") at paras. 68-74.

31After the applicant's testimony, the respondent brought a motion to dismiss the Application on the basis that he had not made out a prima facie case. I dismissed the motion, noting that in the Interim Decision the Tribunal had specifically identified the inability of Ms. Sauvé to produce the directive she was relying on as a factor that could be used to establish differential treatment, and in the circumstances of this case it was appropriate to hear the respondent's evidence on this issue. I further ruled that given the nature of the allegations, it would be unfair not to give the applicant an opportunity to hear and test the evidence of the individuals against whom the allegations are raised, particularly that of Ms. Sauvé. The question of whether a prima facie case has been established can be made at any point, and I decided to hear the respondent's evidence before making a determination on the issue. See Waters v. Toronto District School Board, 2011 HRTO 135 at para. 13.

32A prima facie case is established if the applicant can show that:

a) he is a member of a group protected by the Code;

b) he was subject to adverse treatment, and

c) there is a connection between the adverse treatment and the grounds of discrimination.

See Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, and Pieters, above, at paras. 55-59.

33The applicant identifies as a Black African Canadian. It is not disputed that he is protected from discrimination under the Code on the basis of race and/or colour.

34The respondent takes the position that the applicant was not subject to adverse treatment, in that he has not been able to demonstrate that he was treated any differently than any other patron of the library in similar circumstances. I find, however, that he was subject to adverse treatment for the purposes of the above test. As noted, the library did acknowledge that, at least from a customer service point of view, it may not have been appropriate for Ms. Sauvé to retrieve the book after having given it to him without first checking his card. With respect to the printing, Ms. Kelly initially was going to print the document for him, then, when reminded of the policy, told him she could not. It would not be unreasonable to expect that an individual may feel that they were being treated unfairly in either circumstance, and though any adverse treatment may have been minimal, it is in my view sufficient to meet the second part of the prima facie test.

35It should be noted, however, that finding the applicant experienced adverse treatment does not necessarily mean that the actions of the library staff were objectionable or wrong. It would be difficult to dispute, for example, that an employee who loses her or his job will have experienced adverse treatment, even if the termination were justified.

36The central issue in this case is, then, the third part of the prima facie test, whether the applicant can demonstrate a connection between the adverse treatment and his race or colour.

37With respect to the high demand book issue, the applicant's claim was that Ms. Sauvé denied him service by taking back the book because of his race or colour. His primary argument was that there was no policy or guideline that directed staff to retrieve a book from a patron after it had been given to them in error. He submits that in the absence of such a policy, she had no basis to ask him to give back the book. Given the absence of a valid basis for her actions, he argues that I should infer that she asked him to give the book back because he was Black. He claims that Ms. Sauvé's explanation that she was trying to fix her mistake was what he called a "recent construct", i.e., an explanation thought up after the fact to try and hide her discriminatory conduct.

38With respect to the printing issue, his claim is that while Ms. Kelly was prepared to serve him, Ms. Sauvé interfered to deny him service again. Initially, his claim was that Ms. Sauvé did not produce the directive respecting printing when requested because the directive did not exist. This was the allegation that the Tribunal relied on in the Interim Decision to permit the Application to go to a hearing on the merits.

39As noted above, I found that there was in fact a directive from Ms. Harris, and, further, Ms. Sauvé's and Ms. Kelly's actions were consistent with that directive. The applicant attempted to challenge their interpretation of the directive, and suggested that it did not in fact say that staff could not print for patrons, and that their interpretation that it did was again a recent construct thought up to hide their discriminatory actions. Alternatively, he argued that even if their interpretation was correct, it would have been appropriate for Ms. Kelly or Ms. Sauvé to exercise their discretion to bend the rules for him, and that their failure to do so was also discriminatory.

40The applicant, in his closing submissions, also suggested that Ms. Kelly referring to his "voice" being demanding had a "racist animus", comparable to the heightened scrutiny of racialized customers by store security guards, or racial profiling by police.

41The Tribunal has generally recognized the difficulty in establishing racial discrimination; as noted in Pieters at paragraph 72, the evidence required to establish racial discrimination is nearly always circumstantial. In Sinclair v. City of London, 2008 HRTO 48, the Tribunal noted, at paragraph 17, that "[r]acialization affects Black men in particular, often without the conscious involvement of those making decisions, through stereotypes of them as physical, violent, and more likely to be criminal. This may lead to heightened monitoring and racial stereotyping." See also Adams v. Knoll North America, 2009 HRTO 1381 at paras. 45-47, judicial review dismissed, Knoll North America Corp. v. Adams, 2010 ONSC 3005.

42I understand the applicant's argument to be that Ms. Kelly's testimony that she found him demanding was based on stereotypes of Black men as being aggressive. I agree that there can be circumstances where negative assumptions about a person's behaviour may arise from racial stereotypes. However, the fact that a stereotype exists does not mean that it was a factor in the treatment he received. See Furic v. Knoll North America, 2010 HRTO 1334, at paras. 31-32. Ms. Kelly's evidence was that she found the applicant's tone of voice demanding when he insisted that she print the document for him, even after she told him she was not permitted to do so. The applicant does not dispute that he was insistent. I cannot find that her characterization of him as "demanding" arose from anything other than the specific circumstances of their interaction.

43The applicant's primary claim is that the interactions would have gone differently had he not been a Black African Canadian. After hearing all the evidence, however, I am not persuaded that the applicant has been able to establish any evidence that his race or colour were factors in the treatment he received.

44In summary, in November 2011, the applicant obtained a high demand library book using an expired library card because Ms. Sauvé made a mistake and did not scan his card. When Ms. Sauvé realized that his card was expired, she retrieved the book in an attempt to comply with library policy. Though the respondents subsequently acknowledged that the situation should have been dealt with differently from a customer service perspective, from the evidence before me I accept that Ms. Sauvé was in good faith attempting to meet the policies There is no evidence whatsoever that Ms. Sauvé dealt with the situation differently than she would have with any other library patron, regardless of race or colour. The applicant's speculation or belief that his race was behind her action is not, in and of itself, enough to establish a breach of the Code.

45Similarly, with respect to the November 2012 incident, there is nothing to indicate that anything happened other than the applicant was refused a particular service because it was a service library staff had been told not to provide.

46The applicant has not been able to demonstrate that his race or colour were a factor in the treatment he received on either occasion. As such, he has not been able to establish a prima facie case of discrimination, and the Application is dismissed.

Order

47For the above reasons, the Application is dismissed.