Kevin Josephs v. City of Toronto and Toronto Police Services Board, 2016 HRTO 885

Human Rights Tribunal of Ontario

B E T W E E N:

Kevin Josephs

Applicant

-and-

City of Toronto and Toronto Police Services Board

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: July 5, 2016

Citation: 2016 HRTO 885

Indexed as: Josephs v. Toronto (City)

Appearances

Kevin Josephs, Applicant

Aaron Schwartz, Counsel

City of Toronto and Toronto Police Services Board, Respondents

David A. Gourlay, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 1, 2013, and alleges discrimination with respect to services, goods and facilities on the basis of race and colour.

2The applicant, Kevin Josephs, is a paralegal. On January 7, 2013, he attended the Court Services Office (the “CSO” or “Room 101”) at the Toronto East Provincial Court (the “courthouse”) to conduct business. While at the CSO, the applicant was subjected to a racial slur by an individual member of the public, V.F.

3The Application, as originally filed, named the City of Toronto (the “City”) and V.F. as respondents. By Interim Decision 2014 HRTO 302, dated March 7, 2014, V.F. was removed as a respondent, and the Toronto Police Services Board (“TPSB”) was added as a respondent to the Application. In this Decision, I have referred to individuals who were not employed by either of the organizational respondents by their initials.

Issues and Summary of the Parties' Positions

4The Application raises the issue of whether the City and the TPSB discriminated against the applicant in terms of how they responded following the racial slur made by V.F.

5With respect to the City, the applicant alleges that the City failed in its duty to accommodate him, and did not respond appropriately to the racial slur. With respect to the TPSB, he alleges that he was subjected to discrimination when, absent any fact finding inquiries made with him, an obligation was imposed on him to state his purpose for being on the premises, and to disclose his personal information to the Court Officer who responded to the complaint. The applicant also alleges that he was racially profiled by the Court Officer, insofar as no attempt was made to treat him in a fair and unbiased manner, or as the victim of discrimination. He alleges that, to the contrary, he was singled out for greater scrutiny, and, at the same time, V.F.’s personal information was not obtained until the applicant insisted that it be obtained.

6In its Response, filed October 10, 2013, the City submits that the Application discloses no prima facie case of discrimination as against the City, or anyone for whom the City is responsible. The City submits that it is in no way responsible for the comments or actions of the member of the public who made the racial slur, and that the applicant’s other complaints all relate to the actions of Court Officer David McArthur (“CTO McArthur”), who is a Court Officer and civilian member of the Toronto Police Service (“TPS”). The City also denies that it had a duty to accommodate the applicant.

7In its Response, filed April 3, 2014, the TPSB denies that it, or anyone for whom it is responsible, including CTO McArthur, discriminated against the applicant in any way. The TPSB submits that CTO McArthur was not obliged to remove V.F. from the courthouse, and that his duty was to ensure there were no further breaches of the peace.

8The TPSB submits that it is not responsible at law for any comments or gestures made by members of the public who happen to be in a courthouse, and it is in no way responsible for the actions of V.F., a private individual. The TPSB denies that CTO McArthur had a duty to accommodate the applicant, and denies, in any event, that CTO McArthur failed to accommodate the applicant in any material way. The TPSB submits that, in any event, CTO McArthur’s actions to de-escalate the dispute, and to prevent a further breach of the peace, satisfied any duty that was owed.

Summary of Evidence

9On January 7, 2013, the applicant, who identifies as Afro Caribbean, attended at Room 101 of the courthouse to obtain an endorsement record and pay a fine on behalf of a client. The applicant was served by an intake clerk at window 1, and discovered there was an error. He was told by the intake clerk that he would have to speak to a supervisor to rectify the problem. The applicant was given a number for his place in the queue. The applicant returned to the waiting area. Although his number had not yet been called, the applicant approached one of the counter clerks at another window (10), Ragini Jeyamanohar, to ask that she speak to a supervisor about rectifying the problem while he waited.

10V.F., who was waiting to be served, began yelling at the applicant about waiting his turn. V.F. also called the applicant a “monkey boy” and imitated a chin scratch. He also taunted the applicant to go outside, and stated that he would be waiting for him in the parking lot. In addition to the applicant, two witnesses, N.P. and R.K., gave consistent testimony about V.F.’s behaviour. N.P. approached one of the clerks, Juan Sanagustin, and complained about V.F. using a racial slur. Mr. Sanagustin advised N.P. that if the altercation escalated into something physical, they would call security, but most people settle their own little verbal disputes just amongst themselves.

11The applicant approached window 9 and asked for assistance with V.F. from another City staff person. The team lead for the counter staff, Jamil Elannan, was made aware of the altercation, including the racial slur, and left Room 101 to get assistance from a Court Officer. Court security for Room 101 is provided by both Court Officers (CTOs) who are civilian employees of the TPS and by security guards who are employed by a private security company and provided pursuant to a contract with the City.

12At roughly the same time that Mr. Elannan left, N.P., who was not satisfied with the response from Mr. Sanagustin, approached the applicant and advised that the City was not going to do anything. She and the applicant then approached a security guard, E.C. to report the incident. E.C. used her radio to call someone and then approached V.F. in Room 101 and told him that he had to leave and would not be served that day.

13Shortly afterwards, a Court Officer, CTO McArthur attended and spoke to V.F. and then the applicant, in separate areas, in the hallway outside of Room 101. The applicant advised CTO McArthur of the racial slur and asked CTO McArthur to obtain V.F.’s name and contact information. CTO McArthur waited for V.F. to finish his business in Room 101, and then approached him to obtain this information. CTO McArthur then returned to speak to the applicant. There is some dispute as to what CTO McArthur might have heard V.F. say, or saw V.F. gesture, as he was leaving after finishing conducting his business.

14The next day, the applicant emailed a complaint about the way the incident was handled to the Manager of the counter staff, Veronica Edwards. Ms. Edwards had not been present at Room 101 the day of the incident. Ms. Edwards spoke to staff who were present that day and provided a response to the applicant’s complaint in an email dated January 31, 2013.

15The applicant testified at the hearing and called the following witnesses: R.K and N.P., members of the public who were at the courthouse on January 7, 2013. The respondents called CTO David McArthur and the following City employees as witnesses: Ragini Jeyamanohar, Darynne Campbell and Juan Sanagustin, Support Assistants; Jamil Elannan, Team Lead; and, Veronica Edwards, Manager. The parties also provided the Tribunal with documentary and video evidence. All of the City employees, except for Ms. Edwards, were working in Room 101 on the day of the incident. I will discuss their evidence that is relevant to the legal issues raised in this Application in the Analysis and Decision section, below.

Analysis and Decision

Relevant Code provisions

16Sections 1 and 9 of the Code state as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race… colour…

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Credibility

17To the extent that some of my findings, as set out below, turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:

…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.

18I am also guided by factors considered 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; inconsistencies and contradictions in relation to other witnesses’ evidence; and, observations as to the manner in which the witnesses gave their evidence.

19I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at p. 205, with respect to assessing the credibility and reliability of testimonial evidence:

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.

Was the applicant subjected to discrimination on the basis of race and/or colour by the City and/or the TPSB?

The applicant's submissions

20At the end of the hearing, the applicant submitted that he was not taken seriously when he was called a monkey boy by a member of the public and asked City staff for help. His injury was ignored or minimized, and he had to seek security by himself. He also submitted that when CTO McArthur arrived on the scene, he sensed that he was being stereotyped, and treated with more suspicion than V.F. and as more of a perpetrator than a victim. The applicant also submitted that his injury was ignored even after he made a complaint to the City. He was still not taken seriously and he was admonished for “cutting into line”. He submitted that he was treated as part of the problem, and as causing his own problems by “butting” in line.

21The applicant referred to the prima facie test for establishing discrimination addressed in Shaw v. Phipps, 2012 ONCA 155, at paras. 12-14, and the following three elements that an applicant is required to prove, at para. 14:

1. That he or she is a member of a group protected by the Code;

2. That he or she was subjected to adverse treatment; and

3. That his or her [prohibited ground of discrimination] was a factor in the alleged adverse treatment.

22The applicant submitted that he is a Black man and he was subjected to adverse treatment by the respondents’ employees. In particular, City employees did not help him when he asked and when there was clearly a racial element to the situation. In addition, CTO McArthur treated him different from V.F. and did not take the racial attack seriously.

23With respect to showing that it is more likely than not that a nexus or connection exists between the respondents’ actions and his race and colour, the applicant referred to the following five propositions set out in Peel Law Association v. Pieters, 2013 ONCA 396, at para. 111:

1. 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;

2. 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;

3. 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;

4. There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

5. Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

24The applicant submitted that the central question is whether his race or colour was a factor in the adverse treatment he received. With respect to the fifth proposition set out above, the applicant questioned: why he was treated with suspicion rather than concern; why, after he filed a complaint with the City, none of his witnesses were interviewed; and, why Ms. Edwards chastised him for allegedly butting in line, and treated him like a perpetrator rather than a victim. The applicant submitted that the only answer that responds sensibly to each of these questions is because he is Black. He submitted that his race or colour was at least a factor in the treatment he received, that the respondents have not shown a reasonable explanation for their conduct and that discrimination can be fairly inferred from all of the evidence.

The respondents' submissions

25The respondents submitted that there is no question the way the applicant was treated by V.F. was wrong, and that the racist comment by V.F. should not have happened, but the City could not have prevented it. They submitted that the City’s policy mandated that steps be taken, but the policy is not definitive as to what has to happen in any particular circumstances and the standard is not perfection. They also submitted that, while the applicant and N.P. assumed the City was not doing anything, the City did take steps almost immediately.

26The respondents submitted that, at the point CTO McArthur learned of the racist comment, he did not caution the applicant in the same way he cautioned V.F. They submitted that, to the extent the applicant suggested he was treated differently from V.F., CTO McArthur was clear he treated V.F. more harshly than he treated the applicant, and the farthest one could go is to say they were treated the same.

27The respondents submitted that there was no adverse or differential treatment of the applicant by them, and no link to the applicant’s race. They submitted that there is no evidence the applicant was treated poorly or differently from how anybody else would have been treated in the circumstances. They also submitted that there is no nexus between the respondents’ actions and a Code ground.

28The respondents submitted that, in the context of a poisoned work environment, an employer is not required to have a perfect response, but has to have a reasonable response. See Shreve v. Windsor (City), 2013 HRTO 291, citing McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), 1998 CanLII 29849 (ON HRT), 32 CHRR D/1 (Ont. Bd. Inq.), referring to Hinds v. Canada (1988), 10 CHRR D/5693:

… there is a duty upon an employer to take prompt and effectual action when it knows or should know of co-employees’ conduct in the workplace amounting to racial harassment. [Citations omitted.] To satisfy the burden upon it, the employer’s response should bear some relationship to the seriousness of the incident itself. To avoid liability, the employer is obliged to take reasonable steps to alleviate, as best it can, the distress arising within the work environment and to reassure those concerned that it is committed to the maintenance of a workplace free of racial harassment. A response that is both timely and corrective is called for and its degree must turn upon the circumstances of the harassment in each case.

The respondents submitted that, in the present case, they responded reasonably and appropriately, and reasonable steps were taken. They submitted that, at most, they should take reasonable steps to try to ensure against a repetition of the offensive conduct.

29The respondents submitted that, with respect to the applicant’s suggestion that CTO McArthur did not do enough to protect him just before V.F. left the courthouse, CTO McArthur stepped between the applicant and V.F. and tried to diffuse the situation and avoid a recurrence of any problems. Unfortunately, V.F. called the applicant an asshole and may have raised his middle finger, but at that point V.F. was on his way out of the building and CTO McArthur had already told him not to return that day.

30The respondents also submitted that Ms. Edwards investigated and responded to the applicant’s complaint. They submitted that there is no Code duty to investigate in the context of services, but Ms. Edwards took the applicant’s complaint seriously and dealt with it appropriately. Her focus was not on whether the racist comment occurred, but on whether her staff responded appropriately. They also submitted that it was not necessary for Ms. Edwards to ignore the fact that the applicant “skipped the line”, and that mentioning it in her response to him was not adverse treatment. They also submitted that, even where there is a duty to investigate, the investigation does not have to be perfect.

Findings concerning the conduct of City staff on January 7, 2013

31At the hearing, the applicant was clear that he was not arguing that the City could have prevented the racist comment by V.F., or that there is some specific requirement that V.F. should have been ejected from the premises. He did submit, however, that the City employees’ evidence that they did not hear the racial slur strains credulity. He also submitted that, whether they heard it or not, N.P. told Mr. Sanagustin there was a racial slur, and he said that if it got worse he would call security.

32None of the parties were able to point to any jurisprudence that has considered what duty, if any, a service provider owes to a customer who has been racially harassed by another customer. I have considered the submissions of the parties and find that the decision cited by the respondents regarding the context of a poisoned work environment applies here with the necessary modifications given the more limited control a service provider would have over its customers compared to the control an employer exerts over its employees. I find that in the circumstances of this Application, the City, as a service provider, had an obligation to take prompt, effectual and proportionate action when it became aware of the racial slur by V.F. towards the applicant. The response did not need to be perfect, but it did need to be reasonable in the circumstances.

Ragini Jeyamanohar

33On January 7, 2013, the applicant spoke to Ms. Jeyamanohar at window 10. He testified that, while he was having a conversation with her, V.F. yelled at him, and nobody did anything. He concluded that City staff were not prepared to do anything about what was happening.

34In cross-examination, the applicant testified that when he was speaking to Ms. Jeyamanohar at window 10, V.F. was standing three or four feet from the counter, and Ms. Jeyamanohar was behind a desk, another few feet from the glass. The applicant agreed that the glass is very thick, and that there is a sound system with microphones between customers and staff. He disagreed that, without a sound system, the conversation would be muted by the glass. He testified that windows 9 and 10 are perforated with holes that you can stick your fingers through, so even if the microphone was not working you could still hear what was going on. He agreed that he has never been on the other side of the counter.

35In cross-examination, the applicant was referred to video evidence from the courthouse on January 7, 2013. At 15:26:08, V.F. was standing at a corner in Room 101. At 15:26:24, the applicant walked towards window 10 and spoke to Ms. Jeyamanohar.

36Ms. Jeyamanohar was also shown the video evidence and confirmed that, on January 7, 2013, she was working at window 10. She testified that, at 15:26:23, the applicant approached her, but she did not call a number at the time. She testified that he approached out of line and asked a question, and she helped him.

37At 15:26:38, Ms. Jeyamanohar was conversing with the applicant. At 15:28:41, Ms. Jeyamanohar stood up, and at 15:28:43 she walked away from the counter. In cross-examination, she testified that she went to find a supervisor. At 15:32:16, she was back in her chair, speaking with the applicant. She testified that she told him to wait for his number. Ms. Jeyamanohar testified that, at 15:32:30, she heard V.F. say, “We are waiting for our numbers to be called”.

38At 15:32:38, the applicant was conversing with Ms. Jeyamanohar, and it appears that V.F. pointed his finger at him. At 15:32:57, another customer approached Ms. Jeyamanohar. She testified that she had called the customer’s number. At 15:32:59, Ms. Jeyamanohar leaned forward and talked to the other customer. She testified that she did not remember whether she heard what the applicant and V.F. were saying to each other at the time.

39At 15:33:11 it appears that Ms. Jeyamanohar was starting to deal with the other customer, and at 15:33:13 the other customer was speaking to her. At that point, the applicant was turned toward V.F., and he testified that he was starting to move away from the area as well. The applicant agreed there was no racial comment at that point.

40After 15:33:13, the applicant took a large step away from the window. The applicant testified that, at 15:33:26, he was slightly farther away from the window than V.F. He testified that V.F. was taunting him to go outside and, at the time, he was six or seven feet from Ms. Jeyamanohar. The applicant agreed that, after 15:33:28, it looks as though he moved farther away, and he was a full stride back from V.F.

41Ms. Jeyamanohar testified that, at 15:33:32, the applicant was standing about ten feet from her and V.F. was around eight feet from her. She testified that she did not hear anything and did not remember hearing V.F. use the phrase “monkey boy”.

42At 15:33:35. V.F. moved his hand from his chin forward. The applicant agreed that was the point at which V.F. called him “monkey boy”. The applicant did not deny that, at the time, he was approximately ten or twelve feet from Ms. Jeyamanohar, and agreed that she was dealing with another customer.

43Ms. Jeyamanohar explained that while she has a microphone, she always lowers the sound on it because she does not want to pick up background noise when talking to a customer. She also testified that the glass allows sound to get through, and when she is listening to a customer she can hear their voice, but she cannot hear something eight feet away.

44In cross-examination, Ms. Jeyamanohar testified that she heard at least the first thing V.F. said to the applicant because he was turned towards her at that time and was closer. She testified that she usually hears “the distances” between her and the customers, three or four feet. Ms. Jeyamanohar testified that V.F. looked angry, and that she could not say he was aggressive, but he was upset. She also testified that if she heard a racial insult she would have gone to her lead and told him.

45Having carefully considered the evidence, I do not find on a balance of probabilities that Ms. Jeyamanohar heard V.F. say “monkey boy”. The applicant testified in cross-examination, and it appears from the video evidence, that Ms. Jeyamanohar was already dealing with another customer before V.F. made the racial slur. It also appears from the evidence that V.F. was at least several feet away from Ms. Jeyamanohar, and the applicant had moved even further away, at the time the racial slur was made, so that V.F. had his back towards Ms. Jeyamanohar. Further, I have no reason to doubt Ms. Jeyamanohar’s evidence that she usually hears her customers who are three or four feet away from her, that she cannot hear something that is eight feet away, and that she always lowers the sound on her microphone because she does not want to pick up background noise when talking to a customer.

Darynne Campbell

46Ms. Campbell testified that, on January 7, 2013, she was stationed at window 8. She remembered hearing a dispute when she was on her break and her window was closed. Ms. Campbell explained that each window has a blind or shade that is down when they are not working. She testified that she heard some commotion in the waiting area but she did not know what it was.

47Ms. Campbell testified that V.F. would have been approximately ten or eleven feet away from window 8, and a further probably three feet from where she was sitting, based on a still of the video of Room 101 at 15:33:21. She testified that she can only hear perfectly clearly the customer that she is serving at window 8, and that there is a small hole at the bottom of the desk so that paper can go in and out, and also between two panels of the window. She did not have a microphone on that day as her microphone was broken and removed.

48Ms. Campbell testified that her break was over so she opened her window, and saw that there was some conversation between the applicant and V.F., but she could not hear anything. She did not hear any discriminatory language. She testified that it was definitely a disagreement, and it seemed a little “heated”.

49In cross-examination, Ms. Campbell testified that she could not hear words or what was being said. She was shown a TPSB investigation report of the incident, which refers to her stating that “she heard two voices in an argument”, and “one was very loud and he was saying he had been waiting 1 hour”. She testified that it is possible, but she does not remember that. She also testified that she could not continue to watch what was happening because she was serving customers.

50Having carefully considered the evidence, I also do not find on a balance of probabilities that Ms. Campbell heard the racial slur. Ms. Campbell was on a break for at least a portion of the initial incident between the applicant and V.F. She heard a dispute while her window was closed, but testified that V.F. would have been approximately ten or eleven feet away from window 8, and a further probably three feet from where she was sitting. While it is possible she heard V.F. say he had been waiting one hour, she also testified that she can only hear perfectly clearly the customer that she is serving, and that she did not have a microphone that day.

Juan Sanagustin

51Mr. Sanagustin remembered becoming aware of an interaction involving the applicant on January 7, 2013, when he was working at his station, which could have been window 6 or 7, and he could see what seemed like two people talking in the distance. He testified that the next thing he knew a woman came up to him and said racial comments were heard, but she did not specify what they were. He also testified that he did not hear the content of the conversation between the applicant and V.F., including any physical threat or any racial language.

52In cross-examination, it was put to Mr. Sanagustin that a TPSB investigative report of the incident states that he indicated that he “saw that [V.F.] was talking in a frustrated, unpleasant tone, saying, ‘They give numbers out here for a reason. If you want to get served, you have to wait your turn’…” Mr. Sanagustin agreed that he heard that. He also agreed that a woman told him that there was a dispute, that a racial slur had been uttered and that she was concerned that somebody should call security.

53Given that Mr. Sanagustin was working behind a window at some distance from V.F., I also do not find on a balance of probabilities that he directly heard V.F. use a racial slur. There is no dispute, however, that Mr. Sanagustin was told there was a dispute and a racial slur had been uttered.

54N.P. testified that, at the point V.F. called the applicant a “monkey boy”, she went up to one of the windows, which she thought was window 6, and asked the man at the window to do something, referring to a man being verbally assaulted, or something along those lines. She testified that the man just shrugged and told her that they would sort it out. She told him that was not good enough, the man had made a racial slur and it was offensive to her. He just said if it got worse, he would call security.

55Mr. Sanagustin testified that after he was told by a woman that some racial comments were just heard, he said something along the lines of, if it escalates into something, you know, physical, that’s when we call security, but for the most part, most people settle their own little verbal disputes just amongst themselves.

56Given the consistency in their evidence, and considering that Mr. Sanagustin did not indicate he was approached by any other female customer about racial comments on January 7, 2013, I am satisfied that N.P. was the female customer who spoke to him about the incident on that day. I also find that when N.P. told Mr. Sanagustin there was a dispute and a racial slur had been used, he responded to the effect that if it escalated into something physical, he would call security.

57I note Mr. Sanagustin also testified that when he turned his head to get Mr. Elannan’s attention, Mr. Elannan was already walking out the door to go to the waiting area, and he guessed someone else got to Mr. Elannan before he did. He agreed that he did not call Mr. Elannan, but testified that he would have. He confirmed that Mr. Elannan was heading out the door at the time he had the conversation with N.P.

58In cross-examination, Mr. Sanagustin was asked hypothetically if he heard somebody being aggressive, threatening and making offensive racial comments to one of his customers, if it is part of his training or understanding of his job that he should do anything in particular about that. He testified that not him directly or personally, but the next step would be to speak to his team lead and ask what they should do and if they should get security. He confirmed that, if he had not already seen Mr. Elannan on his way, he would have spoken to him as soon as he heard a racial slur. He agreed that it was being taken care of.

59I find, as set out below, that at or very near the same time N.P. was speaking with Mr. Sanagustin, Mr. Elannan was taking steps to address the situation between the applicant and V.F. In my view, however, whether or not Mr. Sanagustin would have spoken to Mr. Elannan if he had not already seen him on his way out the door, his response to N.P., to the effect that he would only call security if it escalated into something physical when he was told that there was a dispute and a racial slur had been used, was inadequate in the circumstances.

60The Application alleges, in part, that a member of the public called to the attention of City staff the racial slur that V.F. made, and a staff member who was notified by persons in the waiting area about the racial slur took no action. At the hearing, the respondents essentially submitted that the communication between N.P. and Mr. Sanagustin was directly between them and did not involve the applicant. As to whether or not the applicant was subjected to discrimination by Mr. Sanagustin’s inadequate response to N.P., it seems to me that what is relevant is what the applicant reasonably understood had been communicated between N.P. and Mr. Sanagustin.

61The applicant’s evidence was that N.P. said to him, “I actually went up and spoke to someone and they’re not going to do anything”, and, “It doesn’t seem that the City staff is going to do anything.” He testified that he and N.P. then went out into the lobby to get security, and N.P reported the incident to E.C. The applicant testified that N.P. was really “worked up” and disgruntled and before he could even get the words out of his mouth, N.P. gave a report to E.C.

62N.P. testified that, after she told Mr. Sanagustin that a racial slur had been made and he said if it got worse he would call security, she was not satisfied, and she was really shocked and pretty outraged. She testified that she walked across the room to where the applicant was and she told him that the City was not going to do anything, and they walked out and she told security what was going on. She told them that a man was yelling at the applicant, that he made a racial slur and that somebody needed to come in and deal with it.

63Having carefully considered all of the evidence, I find that it is more likely than not that when N.P. told the applicant that the City was not going to do anything he would have understood that she told City staff about the racial slur. He testified that N.P. reported the incident to E.C. in his presence, shortly thereafter, and N.P. testified that she told security that a racial slur had been made when they went to security.

64The applicant testified that he told a clerk at window 9 that V.F. used a racial slur, and he confirmed in cross-examination that N.P. told him nobody from the City was doing anything. He also confirmed in cross-examination that, before getting E.C., he concluded that City staff was taking no action, at least in part, as a direct result of the “reports” that were being made to them about the racial remark. He did not testify that he told any other City staff about the racial slur, prior to N.P. and him approaching E.C.

65I also note that in an email to Ms. Edwards, dated February 1, 2013, the applicant refers to a witness advising a counter clerk and two security guards, in his presence, concerning a racial assault and physical threats directed towards him by V.F. In all of the circumstances, I am satisfied on a balance of probabilities that the applicant understood that City staff had been told about the racial slur by N.P., and that City staff were not going to do anything in response.

Jamil Elannan

66In the Application, the applicant alleges that several witnesses expressed outrage that City staff would not intervene, following which Mr. Elannan was ultimately summoned to the waiting area. The applicant alleges that he and N.P. advised Mr. Elannan of the racial slur made by V.F., and Mr. Elannan indicated he would go in search of “head security” to attend the scene.

67In its Response, the City states that the applicant and other members of the public complained to City staff about V.F.’s racist remark, and City staff called Mr. Elannan to deal with the issue. In turn, Mr. Elannan called court security, CTO McArthur, for assistance. Around the same time, the applicant called the security guard, E.C., for assistance. In its Response, the TPSB submits that E.C. told CTO McArthur that two men were having a disagreement in Room 101, and asked for help.

68At the hearing, Mr. Elannan testified in chief that a staff member came to him and said that the applicant wanted to speak to him. He testified that, if he remembered correctly, he had a conversation with the applicant, and then he went and got court security. He explained that he usually goes to the “wanding station” located beyond the lobby in a hallway outside of the courtrooms, which is posted by the CTOs. Mr. Elannan explained that he went to court security, the CTOs, because they are responsible for the waiting area, and based on the conversation he had he felt their presence would be more suitable. He testified, at that point, he believed he was aware of the racial comment made, and that is why he went to get court security. He testified that, if he remembered correctly, the applicant brought it to his attention, and clarified that he remembered it was the applicant who brought to his attention that a racial slur was used. He did not remember it being staff at the time. He clearly agreed that when he went to get security, he remembered being aware of a racial comment, and testified that is why he went to get court security.

69In cross-examination, Mr. Elannan testified that he believed Ms. Jeyamanohar brought to his attention that the applicant wanted to speak to him. He also testified that he had a conversation with the applicant at window 9, and that he went to get security because it was brought to his attention that there was an altercation. When asked if it was brought to his attention that a racial slur was made, he testified that he recalled there being a comment made, and that is why he went to get court security because that was beyond his control, but he could not 100% recall being told at that time that a racial slur had been made.

70Mr. Elannan did not remember who he talked to at the wanding station, or which member of court security attended at the scene. He testified that it definitely was not a long conversation at the wanding station, and he would have said something along the lines of, “There is an altercation in Room 101”, and he needed them to attend.

71In cross-examination, Mr. Elannan testified that he would have informed court security at the wanding station that there was an altercation taking place in Room 101, and he needed them to attend. He also testified that if he knew at the time that a racial slur had been made, he would have told them, but he could not say 100% whether he knew at the time that a racial slur had been made.

72A TPSB investigation report dated March 1, 2013, was also put to Mr. Elannan in cross-examination, which provides a summary of a statement he made, in part, as follows:

[Mr. Elannan] spoke to the Respondent Officer and his partner and asked the officers to remove one individual who allegedly made racial slurs. He explained there was an altercation between the two individuals, one of the individuals allegedly made a racial slur and the witness asked if an officer could remove him…

73It is not clear when Mr. Elannan was interviewed but he testified that he probably said what is attributed to him above when he gave his statement. He also testified in cross-examination that he must have been made aware of an altercation and that is why he went to get security, because he would not have got security if the conversation was simply about an endorsement error. He disagreed that it was possible that he talked to the applicant about his court document and left to talk to the prosecutor’s office to correct it. In re-examination, Mr. Elannan testified that the prosecutor’s office is on the fourth floor, and he agreed that he was gone for about two and a half minutes.

74At the hearing, the applicant testified that he spoke to a staff person at window 9 when the shutters opened, and said, “Are you guys not going to come out and speak to this issue, the fact that he’s just used a racial slur and he’s starting to… inviting me to the parking lot again.” He also testified that he said, “Well, it’s very obvious to me that I’m now left out there to deal with this brute of a racist on my own.” The applicant testified that he did not recall who the person was at window 9.

75In cross-examination, the applicant testified that he asked the clerk at window 9, “Are you guys not going to come out and address the racial comment and the physical threats”, and the person was non-responsive. He agreed that anyone sitting at window 9 would not have seen what was going on when it was closed.

76The applicant also testified in cross-examination that, on January 7, 2013, he did not know who Mr. Elannan was. He testified that he was told Mr. Elannan was suggesting at some point he was going in search of head security, and he referred to CTO McArthur. He testified that this was after E.C. had already attended the scene. He thought that someone asked who CTO McArthur was and Mr. Elannan said, “Head security”, and CTO McArthur was standing in the lobby area. The applicant testified that Mr. Elannan was there, present in the waiting room, when CTO McArthur ultimately arrived on the scene, in the lobby. The applicant was asked about saying that nobody from the City was doing anything before he went and got E.C., and he agreed when it was put to him that he did not know for sure what Mr. Elannan was doing.

77The video evidence shows the applicant moving his papers to window 9 at 15:33:53, and he agreed that it looks like the blind is over window 9. The blind then went up and the applicant appears to be talking to someone at window 9. At one point, he appears to gesture back to V.F. with his hand. The applicant’s conversation at window 9 appears to end at 15:34:19.

78Mr. Elannan was also shown the video. At 15:34:03, the applicant was conversing with someone at window 9, and Mr. Elannan testified that he believed it was him, and then clarified that it was him for sure. At 15:34:26, approximately seven seconds after the applicant’s conversation at window 9 ended, Mr. Elannan identified himself walking from the left to the right of the screen. He testified that he walked from the back office to the wanding station. He explained that there is a door to the left of window 9, and agreed that he walked out of the staff area towards the lobby.

79At 15:36:45, Mr. Elannan identified E.C. from the City’s security contractor on the screen. He testified that he did not get her, but he got CTOs. Mr. Elannan again identified himself on the screen at 15:36:48, going back into the office. Approximately nine seconds later, the blind at window 9 closed.

80Having carefully considered all of the evidence, I find on a balance of probabilities that the applicant spoke to Mr. Elannan at window 9, and that approximately seven seconds after the applicant finished speaking to Mr. Elannan at window 9, Mr. Elannan was on his way to get CTOs. Although the applicant could not remember who he spoke to at window 9, Mr. Elannan was fairly clear in his evidence that he spoke to the applicant at window 9, and went to get court security as a result of the conversation he had with the applicant. Mr. Elannan can clearly be seen on the video leaving the back office and heading across the waiting room area approximately seven seconds after the applicant finished his conversation at window 9.

81Mr. Sanagustin also testified that Mr. Elannan was heading out the door at the time he was having a conversation with N.P., and Ms. Campbell testified that when a woman came to her window concerned about her safety because of the argument, Mr. Elannan was passing her and said that security had been contacted. I am satisfied, therefore, that Mr. Elannan did go to get court security.

82I note that in the applicant’s email to Ms. Edwards dated January 8, 2013, he states that Mr. Elannan came out to the waiting area and asked V.F. to leave, and when he would not leave, Mr. Elannan left to summon security. He also states that Mr. Elannan returned with CTO McArthur. On the video evidence, however, Mr. Elannan does not appear to interact with the applicant or V.F. when he walked out into the waiting area, although the applicant appears to briefly say something to Mr. Elannan, while pointing to V.F., as Mr. Elannan walked by. Mr. Elannan also does not appear to interact with anyone, or have CTO McArthur with him, when he returned approximately two and a half minutes later, although anything occurring to the right of the screen cannot be seen. With respect to his involvement in the incident at that point, he testified that he had gone to court security and they had taken it over. He testified that he is not trained to deal with these altercations.

83I also find on a balance of probabilities that, at the time Mr. Elannan went to get court security, he had been informed that a racial slur had been used. While Mr. Elannan testified in cross-examination that he could not 100% recall being told at the time that a racial slur had been made, he was fairly clear in his evidence that he was aware of a racial comment being made, and that is why he went to get court security. The applicant was also clear in his evidence that he told the person he spoke to at window 9, who I have found was Mr. Elannan, about the racial slur.

84Having carefully considered the evidence, however, I am not able to determine on a balance of probabilities who Mr. Elannan actually spoke to in terms of court security on January 7, 2013. Mr. Elannan did not remember who he talked to at the wanding station, but testified it definitely was not a long conversation. Consistent with his memo book notes, CTO McArthur testified that security, E.C. he believed, requested his assistance in Room 101. He did not recall ever speaking to Mr. Elannan on January 7, 2013, but testified that he saw him in the hallway sometime after the applicant and V.F. had come out into the hallway. Further, while statements attributed to Mr. Elannan in the TPSB investigation report suggest that he spoke to both CTO McArthur and his partner on January 7, 2013, CTO McArthur testified that he was not with his partner when E.C. requested his assistance in Room 101.

85While I find that it is more likely than not that Mr. Elannan went to get court security to address the incident, including the racial slur, I do not find on a balance of probabilities that he actually spoke to CTO McArthur. It may be that he spoke to another court officer, or that he came to understand that CTO McArthur had already been dispatched to deal with the incident in Room 101. In the circumstances, I find that Mr. Elannan responded promptly and reasonably in going to get court security.

Conclusions regarding the actions of City staff on January 7, 2013

86Although I have found that Mr. Elannan responded promptly and reasonably to the incident involving the applicant and V.F., including the racial slur, I have also found that when N.P. told Mr. Sanagustin there was a dispute and a racial slur had been used, he responded to the effect that if it escalated he would call security. I find that Mr. Sanagustin’s response in that regard was not reasonable and effectual, and was inadequate in terms of what is required under the Code in such circumstances. I have also found, as set out above, that it is more likely than not that the applicant understood City staff had been told about the racial slur by N.P., and City staff were not going to do anything in response. Understandably, this would have been upsetting for the applicant and could very well have contributed to his perception of how the incident was handled from that moment forward. I find that in not responding appropriately to N.P. advising that a racial slur had been used, and in the applicant coming to understand that City staff had been told about the racial slur and were not going to do anything in response, the applicant was subjected to discrimination, contrary to the Code, by the City.

Findings concerning CTO McArthur

87I understand the applicant’s position to be that not only did CTO McArthur not appropriately address V.F.’s racial slur, but he also subjected the applicant to adverse differential treatment based on race and colour on January 7, 2013. The applicant submitted at the hearing that CTO McArthur did not treat him the same way he treated V.F., and he felt he was being singled out for greater scrutiny. He essentially submitted that CTO McArthur treated him as the problem because of race. He also submitted that his complaint of racial abuse was brushed aside.

Adverse Differential Treatment

88To begin with, there appears to be conflicting testimonial evidence as to when CTO McArthur first spoke to the applicant. The applicant testified that V.F. walked out of Room 101 into the lobby area, and, while the applicant remained in the waiting area, he saw V.F. talking to CTO McArthur in the lobby, in the presence of E.C. After CTO McArthur talked to V.F., V.F. returned to where he had been standing in Room 101. In cross-examination, the applicant confirmed E.C. had a conversation with V.F., they both walked off to the lobby area, and then the applicant saw CTO McArthur on the scene.

89The applicant also testified that he was standing in front of the main door in the lobby area, and CTO McArthur approached him and asked if he had business to conduct. He responded that he was there on behalf of a client. CTO McArthur then asked the applicant his name and the applicant gave his name. Then CTO McArthur asked the applicant for his address.

90The applicant testified that he then reported the incident to CTO McArthur again, and said that V.F. directed a racial slur at him and threatened to meet him in the parking lot. He testified that CTO McArthur said nothing, and the applicant said that he would like to obtain V.F.’s contact information for further follow-up. CTO McArthur said he would go and get it. By this time, V.F. was doing business at the counter.

91CTO McArthur testified that he entered Room 101 and noticed the applicant and V.F. speaking in raised voices. He asked them what the issue was and neither of them responded. He then asked both of them to step out into the hallway. CTO McArthur also testified that he was not aware at the time that there was a racial component to the dispute. He testified that he became aware later, after he requested both individuals to come out into the hallway. He explained that he spoke to V.F and the applicant and the applicant indicated that V.F. had made a racial comment towards him and called him a “monkey boy”. In cross-examination, CTO McArthur testified that the comment was inappropriate and his intent was to ensure that type of behavior did not continue.

92CTO McArthur also testified that, as they were proceeding out of Room 101, his recollection was that V.F. was first, then the applicant, and he was behind the applicant. As they were exiting Room 101, he believed he inquired from the applicant if he had business in the building, or if he had finished his business. He testified that he asked the applicant that first, because the applicant was closest to him at the time. He also explained that, as they got out into the hallway, the applicant went to the left and V.F. remained on the right. At the time, CTO McArthur made inquiries, first from V.F. he believed, as to what the issue was. V.F. stated that the applicant had butted in line. CTO McArthur advised V.F. that he could not be yelling and disturbing the public as he had been, and cautioned him to that effect. He testified that there was no specific reason for speaking to V.F. first.

93In cross-examination, CTO McArthur testified that he believed he wrote the applicant’s name down after he talked to V.F. in the hallway. He testified that he believed he asked V.F. his name and V.F. gave him his first name. He did not write it down at that particular time.

94CTO McArthur also testified that he cautioned V.F. that he could not be yelling at the applicant and that if he continued that sort of behavior he would be removed from the building. He testified that, at that point, he did not know of the racial comment, and that he did not know until he spoke to the applicant some moments later.

95The video evidence offers some assistance. CTO McArthur identified E.C. talking to V.F. in Room 101, at 15:36:45. He testified that he was not in Room 101 at the time. By 15:38:02, E.C. and V.F. have already gone to the right of the screen, and CTO McArthur could not confirm whether he was engaged with V.F. and the applicant at that time. He testified that E.C. notified him of the situation at 15:40, according to his watch.

96On the video showing the lobby area, CTO McArthur believed V.F. appeared in the lobby area at 15:37:50, and was in conversation with somebody at 15:38:02. He confirmed that it is possible the person V.F. was conversing with at 15:38:16 was him. He also confirmed that E.C. appeared to be on the screen, in the lobby, at 15:38:40.

97From a closer examination of the video evidence, V.F., E.C. and the applicant can be seen conversing in Room 101. At 15:37:27, they all move to the right, off of the screen. Approximately 17 seconds later, at 15:37:45, V.F. can be seen talking to someone in the lobby, who CTO McArthur testified was quite possibly him. All that can really be seen of the person V.F. was talking to is a light blue sleeve, and where CTO McArthur can clearly be seen on the video at other times, he is wearing a light blue shirt. At 15:38:40, they move off of the screen, and at 15:38:44, V.F. can be seen returning to where he was standing in Room 101. He appears to be by himself. CTO McArthur confirmed that, at 15:41:50, he can be seen walking into Room 101. He can be seen standing by window 9, and appears to be waiting. CTO McArthur believed that, at that point, he already had his “conversations”.

98Having carefully considered all of the evidence, I find that it is more likely than not that CTO McArthur and V.F. spoke to each other in the lobby between 15:37:45 and 15:38:40, after which CTO McArthur and the applicant spoke to each other while V.F. returned to Room 101, prior to CTO McArthur appearing on the video in Room 101 at 15:41:50.

99Having carefully considered all of the evidence, however, I cannot determine if CTO McArthur and the applicant spoke to each other prior to CTO McArthur speaking to V.F. in the lobby between 15:37:45 and 15:38:40. There are approximately 17 seconds after V.F., E.C. and the applicant leave to the right of the screen in Room 101, until V.F. can be seen in the lobby, where neither they nor CTO McArthur can be seen on either video. While CTO McArthur testified that he first asked the applicant and V.F. some questions before speaking to each of them in the lobby, the applicant clearly testified that when CTO McArthur first arrived on the scene, he spoke to V.F. in the lobby. I also note that while R.K. referred to a male security officer being present, he was not clear as to where or when that was. N.P. also testified that a male security guard “came in” and he treated the matter much differently than E.C. While she appeared to testify that this occurred in Room 101, it was not entirely clear from her evidence as to when this occurred, and she did not specifically say what the male security officer said or did, or what if anything was said between him and the applicant.

100I also find based on all the evidence that it is more likely than not that CTO McArthur first learned of the racial slur when he spoke to the applicant, after he spoke to V.F. and allowed V.F. to return to Room 101 to conduct business. The applicant testified he told CTO McArthur that V.F. directed a racial slur at him in the context of a conversation wherein he also said that he would like to obtain V.F.’s contact information for further follow-up and CTO McArthur said he would go and get it. I note that the applicant testified that he was reporting “the incident” to CTO McArthur “again”, after CTO McArthur asked him for his name and address, but he did not specifically testify that he told CTO McArthur about the racial slur at any earlier stage. It appears from the applicant’s evidence, therefore, that he told CTO McArthur about the racial slur after CTO McArthur asked for his name and address. CTO McArthur was fairly clear in his evidence that, at the time he spoke to V.F. and cautioned him that he could not be yelling at the applicant, he did not know about the racial comment, and he did not know about it until he spoke to the applicant some moments later. CTO McArthur also testified that he wrote in his memo book that the applicant told him about the racial slur, after he wrote down his name and address. In cross-examination, CTO McArthur agreed that he wrote the applicant’s name and address in his memo book, after he spoke to V.F. in the hallway, and agreed that the next thing he wrote was that the applicant told him about the racial slur.

101I note that R.K. testified that he heard a male security officer being told about the racial slur and V.F. denied it. It was not really clear from his evidence, however, when this occurred. He also testified that he said he heard V.F. call the applicant “monkey boy”, but it was not clear who he said that to. In addition, while N.P. testified that she told “them” that there had been a racial slur, she also testified that she did not remember the details of who or what security person she spoke to.

102The applicant testified that CTO McArthur asked him for his name, then his address, and he formulated the opinion that he was being singled out for greater scrutiny, and CTO McArthur was not treating him as a victim.

103CTO McArthur testified that, initially, he requested V.F.’s name, and V.F. provided his name. In cross-examination, CTO McArthur testified that he believed he asked V.F. his name, and V.F. provided his first name, but he did not write it down at the particular time. In the circumstances, I have no reason to doubt that CTO McArthur asked V.F. his name when he first spoke to him separately prior to allowing him to return to Room 101 to conduct his business.

104CTO McArthur also testified that he asked the applicant his name, but he did not ask the applicant his address. He testified that the applicant voluntarily provided his address. Even if CTO McArthur asked the applicant for both his name and address, and only asked V.F. his name when he initially spoke to V.F., having carefully considered all of the evidence I do not find that the applicant was subjected to any greater scrutiny that could amount to a violation of the Code as alleged. I find that CTO McArthur initially understood that two males were having a disagreement in Room 101. In the circumstances, asking the applicant if he had business to conduct on the premises appears to be a reasonable question. In addition, if he only initially asked V.F. his name, but asked the applicant both his name and address, I do not find in the context of all the evidence that this difference in questioning amounts to adverse differential treatment.

105I also note that CTO McArthur initially spoke to V.F. separately and cautioned him that he could not be yelling at the applicant and that, if he continued that sort of behavior, he would be removed from the building. There does not appear to be any dispute that CTO McArthur never cautioned the applicant in any way.

106In addition, the applicant testified that he told CTO McArthur he would like to obtain V.F.’s contact information for further follow-up and CTO McArthur said he would go and get it. CTO McArthur testified that the applicant requested V.F.’s name and address because he was going to proceed with a human rights complaint, and he obtained that information from V.F. and provided it to the applicant. It also appears from the video evidence that, after CTO McArthur allowed V.F. to return to Room 101 and he spoke to the applicant, he then went into Room 101 to obtain V.F.’s contact information. When shown the video evidence from Room 101, CTO McArthur believed that, at 15:42:01, V.F. was at a window for service, and that, at 15:42:44, CTO McArthur was standing to the right of window 8. At 15:45:40, he exited to the right with V.F. He testified that he asked V.F for his full name and address as they exited the room.

107In summary, I do not find that the applicant was subjected to any greater scrutiny than V.F. While CTO McArthur may have asked the applicant for both his name and address, and only initially asked V.F. for his name, he also cautioned V.F., but not the applicant. He also obtained V.F.’s contact information for the applicant.

108I note that the applicant testified that CTO McArthur told him that he collected V.F.’s information but that, before he gave it to him, V.F. also requested the applicant’s information. The applicant let CTO McArthur know he thought it was inappropriate to be asking him to divulge his contact information to a man who had just threatened him. CTO McArthur testified that he did not ask the applicant to provide his name to V.F. He explained that when he requested V.F.’s full name and address, V.F. requested the applicant’s information. He basically stated, “If I’m giving him my name and address, I want his name and address”. CTO McArthur advised both parties that they had requested each other’s personal information. He testified that the applicant stated that he was the victim in the matter, and that he did not have to provide his name and address. CTO McArthur testified that he believed he just reiterated the fact that he was just advising the parties that they had each requested each other’s personal information. He testified that he did not advise the applicant he had to provide the information, and he never gave the applicant’s information to V.F., but he gave V.F.s information to the applicant. He explained that the applicant stated that he was entitled to V.F.’s information as a victim of a racist comment, and he would be proceeding with a human rights complaint against V.F. On those bases, CTO McArthur provided the applicant with V.F.’s name and address. In cross-examination, the applicant agreed that CTO McArthur did not put pressure on him to give his contact information to V.F. In the circumstances, I do not find that it was a violation of the Code for CTO McArthur to communicate to the applicant that V.F. also wanted his contact information.

Reasonable Response to Racial Slur

109Having carefully considered all of the evidence, I also find that CTO McArthur’s response to the situation was reasonable in the circumstances, and does not give rise to any violation of the Code. Again, it is not necessary that CTO McArthur’s response to the situation be perfect or ideal. Rather, in my view, the Code requires that CTO McArthur’s response be reasonable in the context of what CTO McArthur reasonably understood to be a dispute between two customers in a services environment, wherein he came to understand that one customer used a racial slur against another.

110Although not specifically raised by the applicant, I note that it appears from the evidence that CTO McArthur did not further caution V.F. in relation to his use of a racial slur after the applicant told him about the racial slur. CTO McArthur testified that he cautioned V.F. that he could not be yelling at the applicant and that if he continued that sort of behavior he would be removed from the building. At that point, he did not know about the racial comment.

111CTO McArthur testified that if two individuals are having a verbal disagreement and causing a disturbance, they would be cautioned to stop the behavior and cautioned that if it continued they could be removed and not receive service. He also explained that if he was advised by City staff that a person was not going to be served because of their behavior, he would advise them of such and that they would have to leave the building. He recalled cautioning V.F. not to make any comments towards the applicant. He testified that his conversation with V.F. took a different tone after the applicant indicated that V.F. made a racist comment. He also testified that, after he cautioned V.F, V.F. apologized for his behavior and said there would be no further issues.

112When specifically asked about his view on his role in responding to the racist comment, CTO McArthur testified that he needed to ensure that it did not reoccur, or that there was not a continuance of that behavior. He testified that he had separated both individuals in the hallway, and when he cautioned V.F. about his behavior, i.e. the loud voices in Room 101, he apologized for that. He also cautioned him that his behavior would not be tolerated and that he would be removed from the building if it was to continue. He explained that the caution was before the applicant told him about the racist comment, and confirmed that the caution would apply to the racist comment or prohibited behavior. CTO McArthur testified that, if he had not already cautioned V.F. when he heard about the racist comment, he would have cautioned V.F. about the racist comment. He confirmed that, after speaking to the applicant, he did not caution V.F. a second time, because he had already cautioned him, and he saw his role as ensuring there was no continuation of the behavior. He also testified that there was no continuation of the behavior in his presence.

113It appears from the evidence that CTO McArthur understood his role was to ensure that there was no continuation of the racist behaviour. He took steps in that regard in separating V.F. and the applicant, and having already cautioned V.F. concerning his interactions with the applicant. He also then obtained V.F.’s contact information and provided it to the applicant, based on the understanding that the applicant wished to pursue “a human rights complaint” against V.F. In the particular circumstances of this case, I find that CTO McArthur’s response was reasonable.

114I note that the applicant testified that a number of customers approached CTO McArthur to act as witnesses to the incident, however, CTO McArthur denied that any of the witnesses came to him. I do not feel the need to resolve this evidence as I find that CTO McArthur responded reasonably to the incident.

115The applicant also submitted that V.F. made a final threat to him and gave him “the finger”, and CTO McArthur did not do anything to stop it. The applicant testified that while he was talking to CTO McArthur in front of the exit doors in the lobby, V.F. interjected himself, pointed in the applicant’s face and called him an “A-hole”, and also said, “You don’t know who I am”. CTO McArthur then stepped in front of V.F. and V.F. shook CTO McArthur’s hand and thanked him. V.F. then walked to the exit doors and gave the applicant the middle finger.

116In cross-examination, the applicant testified that V.F. said to him, “You don’t know me. I’ll mess you up”, in the presence of CTO McArthur, just before V.F. exited the doors, after shaking CTO McArthur’s hand and thanking him. In an email the applicant wrote to Ms. Edwards early on January 8, 2013, he stated that V.F. gave him “the finger” on the way out of the building. He agreed that he did not refer in the email to either V.F. calling him an “asshole”, or to a threat of physical violence when V.F. left.

117CTO McArthur testified that he believed V.F. did make a comment about “A-hole” as he was going out the door, but he did not recall seeing him raise his middle finger, nor did he hear a threat of physical violence. When asked if he did anything about the “asshole” comment, CTO McArthur testified that his recollection was that V.F. asked him if could leave the building, and he advised him he could. He also testified that he cautioned V.F. not to re-enter the building that day. He testified that his recollection is V.F. was on his way out the door, and he cautioned him not to come back in the building, but he did not recall if V.F. said asshole before the caution. CTO McArthur testified that he did not hear V.F. say, “You don’t know me”, on his way out. He testified that he did not hear any threats.

118With respect to the video evidence, CTO McArthur confirmed that he entered the field of view on the lobby video at 15:46:39. At 15:47:30 he was conversing with the applicant, and, at 15:49:31, V.F. can be seen on the screen. Just before 15:49:40, it appears that V.F. says something and CTO McArthur steps between V.F. and the applicant. At 15:49:44, V.F. has left the building.

119CTO McArthur testified that, when he stepped between V.F. and the applicant, V.F. asked if he could leave the building and he said, “Yes, you can leave and do not come back in today”. He confirmed that V.F. shook his hand, and that V.F put his hand out to shake his hand. He also confirmed that he did not see V.F. raise his middle finger, but that V.F. can be seen raising his hand in front of his face at 15:49:41. He testified that, had he seen V.F. raise his middle finger, he was not sure there is much he could have done as V.F. was on his way out of the building at the time.

120It appears from the evidence that V.F. called the applicant an asshole just before leaving the building or on his way out the door, and gave him the middle finger on his way out the door. I am not satisfied, based on the evidence, that V.F. otherwise threatened the applicant during V.F.’s final interaction with CTO McArthur and the applicant prior to leaving the building. The applicant’s evidence was inconsistent as to when any such threat was made, and CTO McArthur was clear in his evidence that he did not hear any threat. CTO McArthur testified that if he had heard any threats of violence and he believed a criminal offence had occurred, he could have arrested V.F. He also testified that if the applicant had reported to him any threats of violence, he would have initiated an investigation, and they could have called the police to attend, but that was not made known to him. In the circumstances, I accept CTO McArthur’s evidence that essentially if he heard a threat of violence, he would have addressed it.

121It appears from the evidence that V.F. approached CTO McArthur, who was standing with the applicant, prior to leaving the building. It also appears that CTO McArthur took reasonable actions in positioning himself between V.F. and the applicant to keep them separated, when V.F. approached and cautioning him not to re-enter the building. He also testified that he earlier cautioned V.F. about his behaviour and he apologized for that. It is not clear, in the circumstances, what more CTO McArthur could have done at the time. It appears that at the time V.F. raised his middle finger he was on his way out the door and when he called the applicant an asshole he was preparing to leave or on his way out of the building.

122It is unfortunate that V.F. called the applicant an inappropriate name and made a rude gesture as he was leaving the building. In such circumstances, however, service providers are limited in terms of what they can do in response to the inappropriate actions of customers. When asked if he considered whether he could do something, CTO McArthur testified that V.F. had not committed any criminal offence at that point. I find that CTO McArthur took reasonable steps to try to prevent any recurrence of inappropriate behaviour, but that he ultimately could not control what V.F. said or did as he was leaving the building.

123In summary, I do not find that CTO McArthur subjected the applicant to any adverse treatment, contrary to the Code. I also find that CTO McArthur took reasonable steps in all of the circumstances, in response to being told that V.F. used a racial slur towards the applicant, and that his actions in that regard do not give rise to a violation of the Code.

Findings concerning Ms. Edwards' investigation of the applicant's complaint

124At the hearing, the applicant submitted that his injury was ignored after he made a complaint to the City, he was not taken seriously, and he was admonished for “cutting into line”. The respondents, on the other hand, submitted that there is no Code duty to investigate in the context of services, but Ms. Edwards took the applicant’s complaint seriously and dealt with it appropriately.

125It is well established in the Tribunal’s jurisprudence that employers have a duty to investigate complaints of discrimination. In Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (“Laskowska”), at para. 53, the Tribunal explained that the duty to investigate is a “means” by which an employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment, and providing its employees with a safe work environment. The Tribunal in Laskowska set out the following criteria to be considered with respect to the duty to investigate:

(1) Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees?

(2) Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act?; and

(3) Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its finding and actions to the complainant?

126The Tribunal in Laskowska, at para. 60, also stated the above elements must retain some flexibility to take into account the unique facts of each case, and that the standard is one of reasonableness, not correctness or perfection.

127While the respondents submitted that there is no duty to investigate in the context of services, the Tribunal has assessed respondents’ responses to complaints of discrimination in the context of services, having regard to the criteria set out in Laskowska. For example, in Adorgloh v. Seasons Foodmart, 2013 HRTO 1201 (“Adorgloh”), the Tribunal found that the respondent did not meet its obligation to investigate and act upon the applicant’s complaint that one of its employees used a racial slur in reference to the applicant who was a customer. The Tribunal held, in part, that there was no evidence that the respondent had a policy to deal with complaints of Code violations, or that it made any effort to assure the applicant that it took human rights seriously. See also Abdallah v. Thames Valley District School Board, 2008 HRTO 230, at paras. 87-99.

128In the present case, while the racial slur was made by another customer, I see no reason why the respondent City would not have a duty to investigate the applicant’s complaint in order to ensure a discrimination-free service environment, consistent with the requirements of the Code. In my view, it is appropriate that the above criteria be applied reasonably and flexibly, having regard to the particular circumstances of this case. In particular, I note that Ms. Edwards testified that she was concerned about what her staff did in relation to being told about a racial comment. She agreed in her evidence that the focus of her investigation following the applicant’s complaint was what staff should have done, or did not do. While the focus of the applicant’s complaint to Ms. Edwards appears have been CTO McArthur’s handling of the situation, I find that it was appropriate that the focus of Ms. Edwards’ investigation was on how her staff responded to the situation, in the context of a racial slur being made by one customer against another. In the present case, I agree with the respondents that they are not responsible for V.F.’s racial outburst. The respondents, however, are responsible for how their employees respond to such incidents.

129The City has a Human Rights and Anti-Harassment/Discrimination Policy which states, in part, that every person has a right to equal treatment with respect to City services and facilities, without discrimination or harassment. It also states that there are complaint procedures that provide a range of dispute resolution options for employees and service recipients who believe they may have experienced discrimination and/or harassment. In the present case, the applicant testified that he inquired as to the complaint procedure and was given Ms. Edwards’ name and email address.

130Shortly after the applicant filed a detailed complaint by email, Ms. Edwards responded, indicating that she would get back to him as soon as she completed her investigation. Ms. Edwards testified that she interviewed Mr. Elannan, Mr. Sanagustin, Ms. Jeyamanohar and E.C. Although Ms. Edwards testified that she felt her staff took appropriate steps in terms of dealing with the situation, she also testified that she did not conclude that Mr. Sanagustin’s response was the appropriate response that he should have given to “the customer”. She testified that she outlined, and thought she reviewed, the policy with him in terms of what her expectations were. She testified that he should be seeking advice from his supervisor and/or lead in such instances, and that he was pretty casual about the situation.

131Ms. Edwards responded to the applicant’s complaint by email on January 31, 2013, and apologized for not getting back to him sooner. She explained that she investigated the situation. With respect to the racial slur, Ms. Edwards assured the applicant that the City does not tolerate that kind of behavior, and maintains the achievement of human rights as a high priority. She also indicated that she addressed the applicant’s individual concerns with the staff involved, and addressed where appropriate how the situation could be handled differently. Ms. Edwards reassured the applicant that she addressed all his concerns with the respective staff involved and that she spoke to others who were present during the encounter. She informed the applicant that the City takes all customer complaints seriously. She also indicated that she forwarded his complaint to the TPS for their own investigation into the matter.

132In my view, it is clear that Ms. Edwards took the applicant’s complaint seriously. I also accept her evidence that she outlined what her expectations were with Mr. Sanagustin, in light of her conclusion that he did not respond appropriately to the situation, and I find that she acted appropriately in that regard. I also find that her overall investigation, which included interviewing City staff identified in the applicant’s complaint, and E.C., was reasonable in the circumstances. Ms. Edwards also clearly communicated her findings and actions to the applicant.

133While it took a little over three weeks for Ms. Edwards to respond to the applicant, she testified that she was not at work during that time, and some staff were away so she had to wait until people were back to speak to them. In any event, it appears that her investigation was reasonably thorough, and I do not find that the time she took to respond to the applicant was unreasonable in the particular circumstances of this case involving a complaint arising out of an incident between the applicant and another customer in the context of services.

134With respect to the applicant’s allegation that Ms. Edwards subjected him to discrimination by chastising him for allegedly butting in line, Ms. Edwards was asked in cross-examination about the following statement in her email to the applicant:

Therefore, I ask in future, when staff instructs you to wait until your number is called; I would expect that you wait while they serve the previous customer prior to approaching the counter. Our staff are trained to serve one customer at a time, and to maintain a level of confidentiality.

Ms. Edwards denied that she was chastising the applicant. She testified that she was advising the applicant of their policy in terms of ensuring confidentiality. In re-examination, she testified that it is not appropriate for an individual who wants to speak to a supervisor to approach a counter out of turn without their number being called.

135Having carefully considered all of the evidence, I do not find that it was a violation of the Code for Ms. Edwards to also essentially request in her email to the applicant that he follow proper customer service procedures when he visits the courthouse. While it is unfortunate that the applicant appears to have taken offence to Ms. Edwards’ request, he clearly confirmed in cross-examination that when he approached window 10 his number had not been called.

136In all of the circumstances, to the extent that the City had a duty under the Code to investigate the applicant’s complaint, I find that Ms. Edwards’ investigation and response was reasonable. The TPS’s investigation and response to the applicant’s complaint is beyond the scope of this Application.

Remedy

137The Tribunal’s remedial powers are set out in s. 45.2(1) of the Code, which provides, among other things, the power to order monetary compensation and restitution for loss arising out of the infringement, including compensation and restitution for injury to dignity, feelings and self-respect. The Tribunal may also direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.

138At the hearing, the applicant indicated that he was seeking monetary compensation for injury to dignity, feelings and self-respect. He also raised the subject of training, but submitted that he was not asking for a specific remedy in that regard.

Injury to dignity, feelings and self-respect

139Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified the relevant criteria to be used in assessing the appropriate award of damages to compensate for the infringement of rights enumerated in the Code which have an intrinsic value and for mental anguish. See Sanford v. Koop, 2005 HRTO 53. Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See S.H. v. M(...) Painting, 2009 HRTO 595, and Hughes v. 1308581 Ontario, 2009 HRTO 341. The Divisional Court, in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

140In addressing relevant factors in determining damages for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, 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.

141In Adorgloh, above, the Tribunal found that the individual respondent, an employee of the organizational respondent, referred to the applicant, a Black customer, as a monkey. The Tribunal also found that the organizational respondent failed to meaningfully address the applicant’s complaint about the incident. In that case, the Tribunal ordered the individual respondent to pay the applicant $500.00, and the organizational respondent to pay the applicant $1,500.00, for injury to dignity, feelings and self-respect. In Adorgloh, it was also noted that Tribunal jurisprudence regarding a single comment or a few comments within a short time indicates that more modest damages are appropriate, referring to Romano v. 1577118 Ontario Inc., 2008 HRTO 9 ($1,000.00), Baisa v. Skills for Change, 2010 HRTO 2161 ($1,500.00) and Brooks v. Total Recovery Limited, 2012 HRTO 1232 ($2,500.00).

142In the present case, I have only found that the applicant was subjected to discrimination by the respondent City in relation to Mr. Sanagustin being told by N.P. that there was a dispute and a racial slur had been used, and Mr. Sanagustin responding to the effect that if it escalated into something physical, he would call security. I also found that, around the same time, Mr. Elannan was nevertheless responding promptly and reasonably to the incident. In addition, it is clear that the respondents are not responsible for the racial slur made by V.F, a third party.

143The applicant testified that, after N.P. spoke to him, he realized that City staff were not going to do anything, and it was very hard to take. He testified that it was an exceedingly difficult reality for him to be standing in the courthouse where he does business, and could potentially be in front of clients and other colleagues. He testified that he was being berated, and having his humanity stripped away from him, and City staff were standing there and no one did anything. I note that the applicant testified that he concluded City staff were not prepared to do anything, even before he spoke to N.P.

144In the circumstances of this case, I find that an award of $1,500.00 is appropriate for injury to dignity, feelings and self-respect. I accept the applicant’s evidence that it was exceedingly difficult for him to be in the courthouse, where he does business, and to understand, at least in part as a result of Mr. Sanagustin’s inadequate response to being told about a racial slur, that the City was not going to do anything.

Training

145At the hearing, Ms. Edwards testified that the City does have human rights training, and that the training focusses on human rights in the workplace, and not specifically on how to deal with client issues, but mostly “staff and client” and “staff and staff”. Mr. Sanagustin agreed that human rights responsibilities and duties were dealt with in his training, but testified that it has been a “good 12 years” since that training. He confirmed that he was made aware of a City human rights policy, but testified that he has not had occasion to refer to that policy for a very long time.

146In the circumstances, I find that it is appropriate to order that the City conduct appropriate human rights training for its CSO staff at the Toronto East Provincial Court that specifically includes and addresses how to respond to complaints of discrimination and/or harassment between customers.

Order

147The Tribunal orders as follows:

1. Within 30 days of the date of this Order, the respondent City shall pay the applicant $1,500.00 for injury to dignity, feelings and self-respect;

2. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act; and,

3. Within 90 days of the date of this Order, the respondent City shall conduct human rights training for its CSO staff at the Toronto East Provincial Court that specifically includes and addresses how to respond to complaints of discrimination and/or harassment between customers.