Hannona v. Paul. S. Pollock Enterprises Ltd. o/a Canadian Store 006, 2016 HRTO 283

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muntaha Hannona

Applicant

-and-

Paul. S. Pollock Enterprises Ltd. o/a Canadian Store 006

Respondent

DECISION

Adjudicator: Geneviève Debané
Date: March 2, 2016
Citation: 2016 HRTO 283
Indexed as: Hannona v. Paul. S. Pollock Enterprises Ltd. o/a Canadian Store 006

APPEARANCES

Muntaha Hannona, Applicant Self-represented

Paul. S. Pollock Enterprises Ltd. o/a Canadian Store 006, Respondent Douglas Smith and Rob Levesque, Representative

Canadian Tire Corporation Ltd. Meaghan Russell, Counsel

The Parties

1This Application alleges discrimination with respect to goods because of place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application appeared to name Canadian Tire Store 6 which operates a location in Barrie, Ontario (at the hearing the parties agreed that the proper name of this respondent is Paul. S. Pollock Enterprises Ltd. o/a Canadian Store 006 and I will refer to this respondent as “CT Store 6”) and Canadian Tire Corporation, Ltd. (“C.T. Corporation”) as respondents to the Application.

2However, the Application was only sent to C.T. Store 6 as there appeared to be some confusion with respect to whether C.T. Corporation was a respondent and the matter continued to be processed by the Tribunal with no notice to C.T. Corporation. On May 4, 2015 counsel for C.T. Corporation wrote to the Tribunal because its client had discovered that they were potentially named in the Application as a respondent. The Tribunal directed that C.T. Corporation attend the hearing to make submissions on the issue of notice and if it was indeed a proper respondent to the Application.

3At the commencement of the hearing the applicant indicated that she did not intend to proceed against C.T. Corporation. As such, I orally ruled that C.T. Corporation was not a respondent and that they could leave the hearing.

What this Application is about

4The Application alleges discrimination on the basis of ethnic origin and disability on the basis of goods and services. At the hearing the applicant explained that she believes that she was not given proper service at Canadian Store 6 when she went to exchange a product because of her accent. She stated that they refused to take the product back and then asked her a lot of questions before they finally relented. The applicant also takes the position that her disability was not accommodated because she was made to stand too long.

The Applicant’s version of events

5The Application alleges that on April 23, 2014, the applicant purchased at Canadian Tire Store 6 windshield wipers for her vehicle, but that she did not notice that there was scotch tape on the box. The applicant decided to return the windshield wipers and stood in line at the Customer Service Desk (the “CSD”). The applicant states that because of her disability it was painful for her to wait in line. She approached an employee of the store who told her to sit near the entrance and they would call her when it was her turn.

6In the Application the applicant stated that during this time she observed the employees at the CSD serving another customer and that they were polite to him and were not questioning that his product was not packaged. At the hearing however, the applicant testified that the employees were dealing with “one guy and they were arguing”.

7After a while another employee opened a new line at the CSD and called the applicant over to her. The applicant advised the employee that she wanted to exchange the windshield wipers. The employee told the applicant to get the windshield wipers and came back to the CSD so that she could process the exchange. When the applicant came back, the employee asked her why she had picked the exact same type of wipers that she was returning. In the Application the applicant stated that the employee was rude and belligerent, looked at her as though she was stupid, belittled her because she did not know the laws of Canada and that she asked her name. The applicant says that the employee said “where is that from”.

8At the hearing the applicant testified that when the employee asked her why she was exchanging the wipers for the same kind that the applicant explained that there was scotch tape on the product and that it should not have been on the shelf in the first place. The applicant says that the employee asked her if she worked for the Ministry, to which the applicant responded that she wanted to return the product and that she had her receipt. The applicant testified that she told her that she “wanted to go home, I have dizzy spells I need to leave”. The applicant says that the cashiers questioned her some more, was degrading her, was laughing at her all the time, that she was looking at the other employee questioningly. During this part of her testimony the applicant was very vague; for example, she could not explain to me what questions were being asked and how the employee was being degrading to her. The applicant says that she told the employee that after “one hour I need to sit” and that the transaction had to be completed so that she could go.

9As the applicant was leaving she took her Canadian tire money, at the hearing she said she thought it was 5 cents, and gave it to the man in line next to her who was still being served by the other employee. In the Application the applicant writes that the customer snapped and called her an “immigrant” using profane language and that his hands were all over the place. At the hearing the applicant specified that the customer said to her “Who are you to give me money you f****** immigrant”, “I don’t need your money” and who do you think that you are. In a complaint letter written to the respondent store the applicant wrote that the customer lashed out and called her stupid, an immigrant, and a “dumb a** F***ing idiot” and also said, “keep your petty money for I’m not in use for it”. She also indicated that the customer raised his hands in a mean gesture and came towards her and that she asked the customer to get out of her way or she would call the police.

10In the Application the applicant says that she looked to the cashier for help and that the cashier laughed and encouraged the customer. At the hearing the applicant testified that they were both just laughing, smiling and enjoying what was going on. The applicant says that she told the customer to stop and that if he did not that she would call the police. The customer told her that he “did not f***ing care”. The applicant called the police.

11She said that she was approached by the plain clothes security guard who asked her if she wanted some water. To which she responded yes and they waited for the police. The police attended the respondent store, interviewed the customer who told them that the applicant had been rude to him, spoke to the applicant, reviewed the video surveillance and did not arrest the customer.

12The applicant went home and made enquiries of the store manager and she got a call from him saying that he reviewed the tapes, had spoken with his employees and that there was nothing that he could do. On April 26, 2014, the applicant wrote the respondent a letter putting them on notice that she would be filing an Application with the Tribunal.

The respondent’s Evidence

13Ashley Aman testified that she is a recent graduate of York University having obtained a nursing degree. She explained while she was in school she would work for the respondent store. She recalls that she was working at the CSD and assisting customers who were returning products. With her was another employee, Valerie Mcleod and they were working as a team.

14She recalls that they were assisting the male customer, who was not returning a product but was in fact trying to obtain a price match with another store for a pair of speakers that he had recently bought. Since this was taking a lot of time they decided to open another line to assist customers.

15The applicant came to the CSD and explained that she was exchanging the windshield wipers. The applicant left the CSD to get the windshield wipers that she needed. Ms. Aman testified that she asked the applicant why she was returning the product because she was getting the exact same kind. She stated that they needed an explanation why the applicant was returning the product to determine if it was sellable and could be but back on the shelf. Ms. Aman stated that she worked for the Ministry and that the respondent store should not have put the product on the shelf if it had scotch tape on it. Ms. Aman described the applicant as rude and that she was threatening the store with having done something improper.

16Ms. Aman says that after the transaction had been processed that as the applicant was leaving she tossed her Canadian tire money on the counter towards the male customer. He reacted very negatively and said “F*** you I don’t want it and stop being so f***ing disrespectful”. Ms. Aman says she picked up the phone to call security because things were heated between the applicant and the customer. Ms. Aman states that she told the applicant that she was calling security.

17Ms. Aman also explained that she did not ask the applicant her name because she does not need that information to process the return. She denies therefore that she asked the applicant where she was from.

18Valerie Mcleod testified that she was the other employee working at the CSD that day and that she was helping the other customer with a price match. She recalls that at that time the respondent store was undergoing renovations. The applicant approached her and told her that the smell of glue will make her giddy and faint. Ms. Mcleod told the applicant to go sit at the entrance near the doors and that they would go get her. Eventually the applicant was called to the desk and she was told to go get the windshield wipers.

19Ms. McLeod corroborated Ms. Aman’s testimony that the applicant said that she did not want the product because the box was taped, and that she worked for the Ministry. The applicant said that it was dangerous to put the product back on the shelf. Ms. McLeod processed the return but also a purchase made by the applicant for a second windshield wiper.

20Ms. McLeod testified that she threw her Canadian tire money in front of the other customer who responded “Do I look like I need your money?” and started arguing. Ms. Aman called security and eventually the police attended the store. She denies that she asked the applicant’s name or that she asked her where she was from.

21The respondent store also tendered videotape evidence which showed from various angles what had transpired at the CSD. There is no audio tape. The videotape shows that once the applicant returned with the new wipers the exchange took approximately 3.5 to 4 minutes. It also showed that the verbal exchange between the applicant and the customer lasted 30 seconds or so, and that within 17 seconds Ms. Aman picked up the telephone to call security.

The Law

22The Tribunal does not deal with all allegations of general unfairness. In order for the applicant to be successful in she must prove on a balance of probabilities that the respondent infringed her rights under the Code.

23The issue before me is whether or not the applicant has satisfied the legal burden of establishing, on a balance of probabilities, that her race and/or colour was a factor in any adverse treatment by the respondents. In Peel Law Association v. Pieters, 2013 ONCA 396 at para: 59, the Ontario Court of Appeal discussed the elements required to show a prima facie case of discrimination under the Code, holding that the applicant must prove:

1. he or she is a member of a group protected by the Code
2. he or she was subject to adverse treatment, and
3. there was a connection between the adverse treatment and the ground of discrimination invoked.

24The Tribunal will also have to assess the witnesses’ credibility. One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:

…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.

25In assessing credibility, I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: “the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.”

Disability

26The applicant alleges that she was discriminated against on the basis of her disability. The applicant bears the onus of proving on a balance of probabilities that she is a “member of a protected group” and that she has a disability, that she required accommodation and that she communicated her need for accommodation to the respondent. In this case the only evidence that I have to support the applicant’s allegation that she is disabled is from her own testimony. I have no evidence from a medical practitioner confirming either a disability or the nature of any accommodation required by the applicant in respect of any disability.

27The applicant’s evidence was vague with respect to the nature of her disability and her required accommodation. On the video the applicant walks around with no apparent difficulty. There is no dispute that the applicant was permitted to sit down so that she did not have to stand up in line. During her interaction with the cashier the applicant testified that she said “I want to go home, I have dizzy spells I need to leave.” She also says that later she said that “after one hour I need to sit”.

28As noted above the video shows that the return transaction at the CSD took approximately less than four minutes. Further, the applicant was not standing for one hour but in fact much less than that. I note that after this transaction concluded she did not immediately leave, did not look dizzy and was able to wait for the police and then drive herself home. All of this undermines that applicant’s credibility that she had a disability which required accommodation.

29When the applicant asked to be able to sit the respondent’s employees accommodated her request. The only other request for accommodation, based on the applicant’s testimony was that she wanted the transaction to be quickly concluded. As stated the transaction was concluded in under four minutes, and in my view was concluded rather quickly in the circumstances.

30Having considered this matter, including the applicant’s testimony, the fact that there is no medical evidence to support her allegation that she required accommodation, and that in any event she did not clearly communicate her need to be accommodated for disability reasons, I find that the applicant has not established on a balance of probabilities that the respondent infringed her rights under the Code with respect to disability.

Ethnic origin

31I will accept that the applicant has established that she is a member of a protected group and that this is reflected in the fact that she speaks with an accent.

32The next issue that I must determine is whether or not the applicant was subjected to any adverse treatment by the respondents. With respect to this issue I note that the Code does not impose liability on a respondent for actions committed by its customers. The Tribunal will have to assess the allegations as they relate solely to the employees of the respondent store.

33The allegations made by the applicant include the suggestion in the Application that the applicant was not treated as well as the other customer, because they were not asking him questions about his return, and the employees were being nice to him. That she was asked by an employee where she was from, that the respondent’s employees laughed at her and belittled her and that they did not intervene when the customer yelled at her. The testimony of the respondent’s two witnesses conflicts significantly, if not entirely, with that of the applicant.

34In resolving the conflicting oral evidence I have had regard to the factors outlined above. In this case, the Tribunal’s task is much easier since there exists a video recording of what transpired. With respect to the allegation that the applicant return was processed in an adverse manner I made the following findings. I find that it was appropriate for the respondent’s employees to make enquiries with respect to why the applicant was returning the product. It is not unexpected that a merchant will ask customers why they are exchanging something, and I accept the respondent witness’ evidence that this was a standard procedure. I also accept that the other customer was not exchanging a product but was seeking a price match and so, since he was not returning or exchanging a product there would have been no reason to ask him the reason for doing so. Accordingly there is no basis to conclude the applicant was treated disadvantageously compared to any other customer when her return was processed. Further, though the applicant believes that the other customer was treated better than her I note that in fact she was served much more quickly than him since he was at the CSD for at least 15 minutes and his transaction still had not concluded.

35Having viewed the videotapes provided by the respondent it is clear to me that the applicant’s employees were not laughing at her (as they both testified to at the hearing) or encouraging the customer to behave the way that he did. Further, within 17 seconds of the verbal exchange with the other customer you can clearly see Ms. Aman pick up the phone to call for security. I do not understand what more these two employees could have done to assist the applicant in such a short time.

36Overall, I find that the evidence of the respondent’s two witnesses was consistent with and supported by the videotape evidence. It was also specific, internally consistent and consistent as between the two witnesses. By contrast, I found the testimony of the applicant vague at times and also inconsistent at times with the videotape evidence. Additionally, I found the evidence of the respondent’s witnesses more reasonably consistent with the probabilities that surrounded the conditions that were evident from the videotape evidence. For all of these reasons, I found the evidence of the respondent’s witnesses both more credible and reliable than that of the applicant and I prefer it were they conflict. I also note that their evidence is more consistent with the videotape evidence.

37Further, I note that during her testimony the applicant could not particularize exactly what the two employees said to her that was so demeaning and belittling. In my view, even if I were to accept that one of the employees asked the applicant where she was from, and based on my conclusions above I do not, such a simple inquiry on its own does not necessarily, and not on the facts of this case, amount to discrimination and or harassment under the Code.

38As such having considered the evidence, including the videotape evidence I am of the view that the applicant has not established on a balance of probabilities that she was subjected to adverse treatment by the respondent’s employees.

39I have also considered whether there is any evidence to support that the manner in which she was treated by the respondents was linked to her ethnic origin. I am of the view that the applicant failed to provide the Tribunal with any evidence to support her belief that there is a link between her ethnic origin and the manner in which she was treated by the respondent’s employees.

40I have also considered the respondent’s response to the applicant’s complaint in my view it addressed the situation appropriately. Once the police was called in, it could not interfere with the police investigation. After the applicant complained, the respondent spoke with the employees, reviewed the tape and told the applicant that they did not believe her version of the events. In the circumstances of this case, this was an appropriate response to her complaint.

Order

41For all of these reasons the Application is dismissed.

Dated at Toronto, this 2nd day of March, 2016.

“signed by”

Geneviève Debané

Vice-chair