Shirley v. Staples Canada Inc., 2016 HRTO 1307

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Othniel Shirley

Applicant

-and-

Staples Canada Inc.

Respondent

RECONSIDERATION DECISION

Adjudicator: Laurie Letheren

Date: October 7, 2016

Citation: 2016 HRTO 1307

Indexed as: Shirley v. Staples Canada Inc.

WRITTEN SUBMISSIONS

Othniel Shirley, Applicant

Toby Young and Kate Sellar, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges he experienced discrimination with respect to services because of race, colour and reprisal.

2On February 2, 2016, the Tribunal held a summary hearing by teleconference pursuant to Rule 19A of its Rules of Procedure. On April 21, 2016, the Tribunal issued Decision 2016 HRTO 521 (“the Decision”), dismissing the Application on the basis that the applicant has no reasonable prospect of succeeding in proving that there is a link between the respondent’s actions and the applicant’s race or colour.

3The applicant requested Reconsideration (“Request”) of the Decision. The applicant argues:

• that in racial profiling cases arising from the receipt of services, it is of general or public importance that the Tribunal not dismiss an application at the summary hearing stage simply because the applicant is not yet able to point to any additional direct or circumstantial evidence that links the respondent’s behaviour to the applicant’s race;

• the Tribunal failed to account for established jurisprudence from the Court of Appeal in racial profiling cases when it required the applicant to somehow map out the nexus between his race and the actions of an alleged racial profiler prior to receiving the benefit of disclosure or the opportunity to cross-examine the respondent witnesses; and

• in other racial profiling cases, the Tribunal has at first instance allowed the Applicant to engage in the hearing process and cross-examine the respondent witnesses to ensure that every opportunity is provided to make the prima facie case and then analyze the justification provided by the respondent in light of all the evidence.

4In the Request, the applicant withdrew his allegation of reprisal.

5The respondent has not filed any submissions on the Request although it was invited to do so.

Analysis and Decision

6Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

7The Tribunal has issued Rules of Procedure, which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. (Practice Direction on Reconsideration, January 2008, last amended April 2014.) Rule 26 states in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

8The Practice Direction begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

9Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

10For the reasons that follow, the Request is denied. I have determined that the Decision is not in conflict with jurisprudence on the nature of the inquiry into whether the applicant has a reasonable prospect of success in the Application. I have also determined that the experience of the applicant is distinct from racial profiling cases and the Decision is not in conflict with the jurisprudence on racial profiling in services cases. There are no factors that exist that outweigh the public interest in the finality of Tribunal decisions and that warrant a reconsideration of the Decision.

Did the Tribunal not Accept the Applicant’s Facts as True in a Way that was consistent with the Nature of the Inquiry as Set out in Dabic?

11The applicant submits that dismissing this Application at the summary hearing stage is inconsistent with established jurisprudence from the Tribunal on the nature of the inquiry in summary hearing cases. It is argued that this creates a barrier to success in racial profiling cases which outweighs the public interest in the finality of Tribunal decisions. The applicant cites Dabic v. Windsor Police Service, 2010 HRTO 1994, paras. 6-10, in support of his submission.

12The applicant argues that the Tribunal did not accept the facts he was alleging as proven for the purpose of the summary hearing. He states that if the Tribunal had accepted his facts as true, it could not have concluded that there was no reasonable prospect of success.

13In the Request, the applicant provides facts that expand beyond those detailed in his Application and Reply, and those provided during the summary hearing. These new facts were reasonably available to the applicant at the time of the summary hearing, so the decision on this Request must be based on the facts the applicant outlined in the Application and Reply and during the summary hearing.

14The Request also includes his own interpretation of the events and his own behaviours.

15In the Application, the applicant stated that a cashier made false accusations of harassment to a store manager and the store manager used the false accusations to “bring force of security”, to instill intimidation and humiliation and to force him off the respondent’s property and off the mall property.

16In his Reply, the applicant describes himself as a black male. He says he walked into the respondent’s store and saw an Indian woman to his left who he thought he knew. He approached this person and said, “hello, how are you?” The Indian cashier said to him, “Don’t you see she does not want to talk to you?” He said to the Indian cashier, “I’m not talking to you”. He says that in a matter of 10 seconds the manager, who is a white male, was in his face telling him that one of the employees told the manager that the applicant was harassing a customer and making unwanted advances. He told the manager that he was not harassing anyone. He then pulled out his cell phone to record the conversation with the manager in which he was asking the manager how he had harassed someone and the manager did not respond to the applicant’s question. He says that the manager asked him to leave the store and said that if he did not leave he would call mall security. He said this made him afraid that something bad was going to happen to him. He says the manager never asked him or the Indian cashier more about what happened. He says he could not shop normally but was allowed to buy one counter item before he left the respondent’s store. He says he left the store and went to the transit stop.

17At the summary hearing the applicant did provide a few more facts when prompted through my questioning. He would not tell me what was said on the recording but said it demonstrated that the manager only listened to the Indian woman and not him the black male. He said that the manager just assumed he was a “typical black guy” that bothers people and he stereotyped him in a certain image. When I asked him what he had to base his belief that this is what the manager assumed, he said it was because he was black and the cashier and customer were Indian and the manager was white. When asked, he stated that the customer did not say anything to him and by the time she could, the cashier jumped in and said, “don’t you see she does not want to talk to you.” He stated that both the cashier and the manager asked him if he had any purchases. He had been there to buy blank CDs and ink but he had not been allowed to go get them to buy so he only bought candy. When I asked him more about why he believes that the manager and the cashier treated him this way because of his colour or race, he read what was written in the Reply.

18In the Request, the applicant argues that the finding in the Decision that there was no evidence “beyond his own belief to suggest his race or colour were a factor in the way the respondent’s employees responded to the situation” failed to accept as true the facts that he was a black man speaking to a customer in a store and in response to this, both the cashier and the manager falsely accused the applicant of harassing the customer. He further submits that:

Surely there would at least be a reasonable prospect that the Tribunal could infer from those facts at a hearing on the merits that at least one of the reasons for the cashier to falsely accuse the applicant of harassment (and the manager to require him to leave the mall without explanation) was related to his race.

19As the Decision indicates, the Tribunal did accept the facts to be true. In accepting these facts, I found that the cashier and the manager were responding to a situation in which the applicant enters the store and directly approaches a customer who is the middle of engaging with a cashier in the use of a fax machine. He says “hi, how are you?” to the customer and the customer does not respond. The cashier, assisting the customer, says to the applicant, “can’t you see she does not want to talk to you”. The applicant responds, “I am not talking to you”. The cashier then calls a manager. The manager tells the applicant that an employee told him that the applicant was harassing a customer. When the manager is speaking to the applicant, the applicant pulls out a phone to record the conversation. The manager then asks the applicant to leave the store or mall security will be called.

20I accepted the facts to be true and did not find that find there was any evidence, either direct or circumstantial, that the applicant had, or stated he would have, on which the Tribunal could base an inference that the reaction of the cashier and the actions of the manager were connected to his race or colour.

21The applicant submits that:

Where there are not enough facts provided by the respondent at summary hearing to show that there is no reasonable prospect of success, the matter should proceed through the normal process. The applicant does not have the burden at the summary hearing stage of providing all the facts sufficient to show that there is a reasonable prospect of success.

22The applicant is correct in his submission that the applicant does not have the burden at the summary hearing of providing all the facts sufficient to show that there is a reasonable prospect of success. However, the burden of demonstrating that the applicant has a reasonable prospect of success remains on the applicant. I do not agree with the applicant’s submission that:

Where there are not enough facts provided by the respondent at summary hearing to show that there is no reasonable prospect of success, the matter should proceed through the normal process.

23The respondent does not bear that burden.

24The Decision to dismiss this Application was not based on a finding that the applicant had not provided all the facts sufficient to show he had a reasonable prospect of success. The Decision finds, rather, that the applicant had not indicated that there would be any evidence, direct or circumstantial, that went beyond his beliefs that the reactions and steps taken by the cashier and the manager were connected to his race or colour. The Tribunal considered whether there is a reasonable prospect that evidence obtained through the respondent’s disclosure or through cross-examination of the respondent’s witnesses could provide the connection between the respondent’s actions and the applicant’s race and colour and lead to a finding of discrimination. However, I found that there is no reasonable prospect that the respondent’s evidence would provide this connection. See: Dabic v. Windsor Police Service, 2010 HRTO 1994 at para. 10.

25As stated in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at paragraph 14,

(…) the process must be structured so that the making of a bald allegation or a mere unfounded suspicion does not place inappropriate burdens on respondents, and so that an application or hearing is terminated when it is clear that there is no reasonable prospect an applicant can prove his or her allegations.

26The analysis in the Decision is not in conflict with the established jurisprudence on the inquiry that is to be made by the Tribunal when determining whether the Application had a reasonable prospect of success.

Was the Decision in Conflict with the Ontario Court of Appeal’s Jurisprudence Involving Allegations of Race-Based Discrimination in the Receipt of Services?

27The applicant submits that requiring him to point to some fact beyond his own feeling or belief that he experienced the adverse treatment because of his race or colour is inconsistent with the Court of Appeal’s jurisprudence in racial profiling cases.

28The applicant submits that the legal test set out by the Court of Appeal in Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”), applies in cases of race in services. The applicant quotes Pieters at para 72:

In race cases especially, the outcome depends on the respondents’ state of mind, which cannot directly be observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.

In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing. (emphasis added by applicant)

29I do not agree that requiring the applicant to point to some fact beyond his own belief is in conflict with the Court of Appeal’s articulation of the prima facie test in cases involving allegations of discrimination in services based on race and colour. As is stated in Pieters, the respondent’s state of mind must be inferred from circumstantial evidence and “relatively little affirmative evidence is required”. Relatively little is not the same as none. Some affirmative or circumstantial evidence is required. In this Application, the applicant did not describe any affirmative or circumstantial evidence that could be used to infer the connection between the incident and his race or colour.

30The applicant also referenced the Court of Appeal’s decision in Shaw v. Phipps, 2012 ONCA 155 at paras. 34-35 (“Phipps”), and submitted that based on Phipps,

(…)given the often subtle and/or unconscious nature of race discrimination, in order to find a prima facie case of discrimination, the Tribunal may make inferences based on circumstantial evidence that race was a factor in an impugned decision or action.

31I do not find that the Decision is in conflict with the reasoning in Phipps. Again, the applicant did not point to any circumstantial evidence that could connect the respondent’s actions to the applicant’s race or colour.

32This Application is not like the situations examined in Pieters or Phipps. I do not agree that the applicant was in a similar position to situations of racial profiling where he is singled out for attention despite doing nothing other than going about his business. The applicant was not simply going about his shopping. He engaged in behaviour that brought attention to him.

33For these reasons, the Request for Reconsideration is denied. The Decision is not in conflict with established jurisprudence. There are no factors that exist that outweigh the public interest in the finality of Tribunal decisions and that warrant a reconsideration of the Decision.

ORDER

34The respondent’s Request for Reconsideration is denied.