HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adam Davidson
Applicant
-and-
Cummer Avenue United Church
Respondent
DECISION
Adjudicator: Laurie Letheren
Indexed as: Davidson v. Cummer Avenue United Church
WRITTEN SUBMISSIONS
Adam Davidson, Applicant
Self-represented
Cummer Avenue United Church, Respondent
Emily McKernan, Counsel
Introduction
1In this Application, the applicant alleges that he experienced discrimination with respect to services because of ancestry, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). More specifically, he alleges that while he was attending the drop-in program located within the respondent church another person who was attending the program was making derogatory comments to and about persons who are Jewish. He alleges that the respondent knew that the person making these comments had made similar comments in the past and the respondent had failed to address this behaviour and allowed it to continue. The applicant further alleges that the respondent ignored his complaint and refused to meet with him to discuss a resolution because of his ancestry, ethnic origin and creed. He alleged that because the United Church of Canada supports the Boycott, Divestment and Sanctions (BDS) movement, the respondent discriminated against him because he is a Jewish person.
2In advance of the hearing, the applicant made a request that the Tribunal order the respondent to provide the contact information for an individual who he believed had witnessed the events that are part of those detailed in this Application. After the Tribunal ordered the respondent to provide this contact information, the applicant was able to serve this individual with a subpoena a few days prior to the hearing date.
3The hearing of the Application was on May 29, 2017. At the commencement of the hearing, an affidavit from the person who had received the applicant’s subpoena was introduced. This potential witness had indicated that due to her disability she was not able to attend for the full day of the hearing but if the Tribunal required her to attend she could attend at a set time if she was provided with more advance notice. She also provided details of her knowledge of the events that are relevant to the Application and the extent of the evidence she could provide.
4On May 29, 2017, I determined that we would hear the evidence of those who were present at the hearing and at the end of the hearing day, I would hear submissions from the parties as to whether it was necessary for the Tribunal to schedule a further hearing day to have this potential witness provide her testimony. Based on the evidence heard during the hearing on May 29, 2017, the affidavit provided by the potential witness and the submissions made by the parties, I denied the applicant’s Request that the Tribunal order the witness to attend another hearing date and that no further hearing dates would be scheduled for the Application. See Interim Decision 2017 HRTO 745.
5Interim Decision 2017 HRTO 745 also contains my written reasons for the order I made on May 29, 2017 that the personal respondent be removed as a party to the Application.
6At the commencement of the hearing, the applicant also made a request that he be allowed to record the hearing. He had a personal recording device that he wished to use. He indicated that the recording was an accommodation of his disability.
7The respondent did not oppose the use of the recording device.
8I made an oral ruling allowing the applicant to use his recording device on the condition that he:
i. Provide a copy of the recording to the respondent and the Tribunal;
ii. Not publicize the recording in any way including social media platforms such as Facebook or Snapchat; and
iii. Not use the recording for any other purpose other than the proceeding of the Application.
9The applicant was granted an extension to July 25, 2017 to provide a copy of the recording.
10The applicant has advised that he has been unsuccessful in converting his recording into a format that could be accessed by the Tribunal and the respondent; and that most of the recording is either not audible or had been inadvertently erased.
11Given the difficulties the applicant has indicated he is having in converting the recording, the Tribunal will no longer require the applicant to provide a copy of his recording to the Tribunal and the respondent. As I advised the parties at the hearing, the recording does not form part of the Tribunal’s record of proceedings. It would not be relied upon by the Tribunal in any event in making its decision.
Evidence
12At the May 29, 2017 hearing, the applicant asked the Tribunal and the respondent to address him as Adam (Family of) Davidson. The Tribunal and the respondent complied with this request; however, as the applicant’s legal name is Adam Davidson, the style of cause cannot be amended to reflect the applicant’s request.
13During the hearing, I heard evidence from the applicant and his witness, Allen Anisman, and the respondent’s witnesses, Sandra Seepaul, Heather Miller and James Dillane. There were also a number of documents introduced into evidence during the hearing. This decision is based on all of that evidence and the submissions made by the parties.
14I have not disclosed the identities of those who were involved in the incidents described by the witnesses but who did not themselves provide evidence at the hearing. I have referred to three of these individuals as Mr. A, Mr. B, and Ms. C.
Allen Anisman
15Mr. Anisman testified that he had attended the drop-in that was located in the basement of the respondent church on at least five occasions. He attended to have breakfast, to see friends and socialize. He stated that there are some people who have attended the drop-in when he was in attendance who have shown aggression and he chooses not to socialize with them.
16Mr. Anisman testified that he had seen notices on the drop-in walls that advised those attending that they had to be on good behaviour. A photo of a notice was introduced into evidence and he verified that it was the notice he had seen on the wall. This notice outlines the drop-in’s mission and states, among other things, that there is to be no aggressive or disruptive behaviour.
17He testified that he was at the drop-in on October 21, 2015, and he did recall seeing the applicant there. He stated that although he had seen the applicant at the drop-in previously, they had not been acquaintances.
18When he was eating his meal on that day, he noticed a confrontation at a table that was about least 30 to 40 feet from where he was sitting. He observed a person (“Mr. A”) acting in a threatening manner. He did not know Mr. A, but he recalled that he heard this person was making anti-Semitic slurs against the people who were seated at a table near to where Mr. A was located. He did not recall exactly what was being said but he did recall that the person causing the disturbance was pointing at the others and was making nasty comments about Jewish people. He said that he observed the others at the table looking visibly upset.
19He testified that he saw the applicant and Sandra Seepaul talking just after he observed the disruptive behaviour he described. He did not hear what the applicant and Ms. Seepaul were discussing. He did observe them approach Mr. A. In cross-examination, he agreed that the applicant appeared agitated at the time.
20He stated that there appeared to be a fair bit of aggression between Mr. A and the applicant. He then saw the fight ensue between Mr. A and the applicant. He saw Mr. A strike the applicant and he moved in and grabbed Mr. A to stop him from hitting the applicant again. He testified that the fight went on for a minute and a half before he got involved and that no one else made any attempt to stop the fight.
21He stated that after he pulled Mr. A away, the fight ended and then the police arrived. He stated that he also advised Ms. Seepaul about what he had done to end the fight and Ms. Seepaul had thanked him.
Adam (Family of) Davidson
22Adam (Family of) Davidson, the applicant, testified that on October 21, 2015, he attended the drop-in at the respondent church to have a meal. He stated that he had liked to go there to see various people who also attend. He had attended about five or six times in the year previous to October 2015. He recalled he was in a good mood that day. He sat at a table near the kitchen and then he noticed a commotion at another table that was about ten feet away. He stated that Mr. B and Ms. C were seated at the table and a person, who later learned was Mr. A, was pacing at their table and saying “You dirty Jewish parasites, go back to Israel, your day is coming soon, dirty Russian”. It was his evidence that this behaviour was going on for about 10 minutes before Mr. A moved away from that table.
23He stated that he asked Ms. C how long had Mr. A being doing this and Ms. C replied that it had been going on for weeks. It was his evidence that Ms. C confirmed that Mr. A had been making anti-Semitic threats to them. The applicant said that he was very frustrated when he learned this. His testimony was that he had never heard anyone making such comments when he had previously attended the drop-in.
24He testified that he called Ms. Seepaul to his table and asked her if she was aware that Mr. A had been harassing and making these anti-Semitic remarks to the people at the table. It was his evidence that Ms. Seepaul advised him that she could not do anything unless she had actually witnessed the harassing remarks. The applicant said this response “really got my adrenaline going”. He stated that Ms. Seepaul agreed to go with him to talk to Mr. A.
25It was the applicant’s evidence that his only reason for going to Mr. A was to have him reprimanded for what he had been saying to Ms. C and Mr. B. As he and Ms. Seepaul approached, Mr. A said to him, “get out of my face” and “I did not say these things to you”. He stated that Mr. A started pushing. His evidence was that Ms. Seepaul was not saying anything about what Mr. A had stated.
26He agreed that he was agitated and may have raised his voice. He testified that he did push back. He testified that Ms. Seepaul was in between him and Mr. A and she told them to go outside. He stated that he did not want to go outside and then as he turned to the side to move away, Mr. A either hit or pushed him and pulled his hoody over his head, hit him and head-butted him. He believed he lost consciousness. He felt people trying to separate them but they were not strong enough. He stated that finally Mr. Anisman came behind him to help.
27He was interviewed by the police and noticed that others were being interviewed as well.
28He was eating his meal after he spoke to the police, when Ms. Seepaul asked to speak to him. He was advised by Ms. Seepaul that he was banned from the drop-in for one month and Mr. A had been banned for six months. He stated that he felt this was wrong because he had only been trying to talk about the anti-Semitic comments that had been made. He testified that Ms. Seepaul told him that he had been an aggressor and the drop-in cannot allow fights. He stated that Ms. Seepaul told him to speak to Heather Miller if he had concerns about her decision. He testified that he did speak to Ms. Miller and she advised him that she had agreed with the decision to ban him from the drop-in for one month.
29The applicant testified that two days later he spoke to Ms. Miller again and informed her that he wanted to have the one-month suspension overturned. She advised him to speak to the respondent’s board of directors.
30He was also given the name and phone number of the respondent’s minister. He did speak to the minister and he described their conversation as a good talk. She told him she could not do more than act in the role of a listener because she had not been present on October 21, 2015, so she remained neutral.
31On October 30, 2015, he wrote to the executive secretary of the Toronto Conference of the United Church of Canada. This letter was entered into evidence. In it, the applicant detailed the events of October 21, 2015, the fact that he was suspended, and his concerns that the incident involved hate crimes and violations of the Code.
32The executive secretary of the Toronto Conference of the United Church of Canada replied to the applicant. His response was entered into evidence and he advised the applicant to either contact the executive board of respondent or the applicant could frame this as a workplace violence and harassment complaint.
33The applicant stated that he did not pursue the workplace violence and harassment complaint because he did not understand who would be an investigator and how the investigator would be appointed.
34The applicant testified that he made a number of phone calls and emailed the respondent to indicate that he would like to meet with the respondent’s board of directors in person. He did not have an in-person discussion and then he received a letter from the chair of the respondent’s executive board that was dated October 27, 2015. This letter formed part of the evidence. It states that the chair had tried to reach the applicant by phone, but the number she was given was out of service. It stated that the drop-in is to be a safe place for all; they do not condone the use of offensive language or aggressive confrontations; and that she hoped the applicant would return after the one-month suspension.
35On December 23 and 24, 2015, he and Ms. Miller exchanged emails as the applicant wanted to confirm that the chair of the board had received his written complaint and in this email he indicated that he had moved so he would contact Ms. Miller when necessary.
36An email chain between the applicant and the executive chair demonstrates that in early January, 2016, the applicant advised the chair that he did not want to have a telephone discussion. He wanted to meet with her in person to discuss his suspension and what had happened on October 21, 2015. In response, the chair advised him that his concerns would be brought to the next board meeting.
37He testified that he then got a letter dated January 22, 2016 from the chair. The letter indicated that his matter had been discussed by the respondent’s executive board. The letter states that it was noted that the applicant declined to discuss this on a telephone call and that the executive board had determined that Ms. Seepaul had handled the incident to their satisfaction and no further action would be taken. The applicant testified that he was quite upset when he read this letter.
38He testified that he did not hear anything more from the respondent until he began the Application process at the Tribunal.
Sandra Seepaul
39Ms. Seepaul has been the program director for the drop-in at the respondent for four years. She described the drop-in as a place to help people meet their basic needs. It serves breakfast and lunch; allows access to phones, showers, clothing and haircuts; and access to resources about housing and health and dental care. She stated that in October 2015, about 70-80 people attended the drop-in each week. She is the only employee of the drop-in and there are about 20 volunteers who help each week. She is accountable to the executive board of the respondent.
40She testified that she recognized the applicant as someone who had come to the drop-in but he attended infrequently and she did not know a lot about him. She also only knew Mr. A by his face. She did not know his name before October 21, 2015. Mr. A was not a regular attendee at the drop-in.
41It was her testimony that she had not had any prior complaints about Mr. A’s behaviour and she had not had any complaints at all about any person making anti-Semitic comments to others at the drop-in.
42After the October 21, 2015 incident, Ms. Seepaul prepared an incident report. This report was entered into evidence and the account of the incidents detailed in the report is very similar to the account provided by the applicant and his witness. In this report it states that the applicant asked to speak to her about a person who was making anti-Semitic remarks. It states that the applicant was adamant that he wanted that person thrown out and banned and that Ms. Seepaul offered to go talk to the person who was allegedly making the comments. At the end of the incident report there are details about the conversation Ms. Seepaul had with the applicant when she advised him that he would be banned for one month. It does state that the applicant told her he felt the drop-in had allowed anti-Semitic comments to go unaddressed. Ms. Seepaul stated that the report was an accurate reflection of the events.
43She stated that she recalled that when the applicant had approached her about what Mr. A was saying he had asked her if the drop-in allowed anti-Semitism and that at that time she did not know what he was talking about but had suggested they go to speak to Mr. A.
44She explained that it would be her normal practice, as she had done in this instance, to go to speak to those involved with an issue to try to get an understanding of what had gone on.
45She stated that when she and the applicant approached Mr. A, she only got as far as introducing herself when the applicant started pointing his finger in Mr. A’s face. Then the pushing started and she yelled for someone to call the police as she needed to be concerned about the safety of all those who were at the drop-in at that time.
46Ms. Seepaul testified that after a while she could see that Mr. A had calmed and she then spoke to him and made it clear that what he had done was wrong. She told him that if he had said the things that were alleged such behaviour was not allowed. He admitted he had done something wrong. He told her that Mr. B and Ms. C had made racist comments to him. Ms. Seepaul stated that when Mr. A had stated this, it was the first time she had heard about such comments.
47It was Ms. Seepaul’s testimony that anyone who attended the drop-in and said anything that was discriminatory, such as about race or ethnicity, she would definitely have a conversation with that person and that person would be banned for some time.
48She stated that before she made the decision to impose a one-month ban on the applicant she spoke to Ms. Miller about the reasonableness of such a ban. She stated that she considered one month to be a good time frame to allow people to consider what they have done and correct their behaviour. When she spoke to the applicant to explain this decision she expressed her regret about what had happened that day.
49She stated that Mr. B and Ms. C returned to the drop-in a couple of weeks later. They told her they did not want to talk about the October 21, 2015 incident.
Heather Miller
50Heather Miller has been the administrator for the respondent for about two and a half years.
51She stated that one of her responsibilities in this role is to answer calls that are made to the respondent church.
52She testified that on October 21, 2015, she was volunteering at the entry door of the drop-in. She would be doing a quick assessment of those who wished to attend to determine if they might be in a state that could be problematic or if someone who is banned might be entering.
53She had seen the applicant at the drop-in a couple of times. She stated that she had seen Mr. B and Ms. C at the drop-in a number of times and had seen Mr. A a few times. She stated that until the October 21, 2015 incident she was not aware of the creed, ethnic or religious background of any of them.
54It was her testimony that the applicant had never complained to her about a person making anti-Semitic comments. She also said that no other person had ever made such a complaint to her. She had never heard anyone making anti-Semitic comments but she had on occasion heard people at the drop-in use what could be considered to be comments that were discriminatory. She stated that when such things are heard they are addressed with the people involved and generally it stops. She stated that such behaviour would fall under aggressive or disruptive behaviour in the respondent’s policies.
55She stated that she called the police after Ms. Seepaul asked someone to make the call.
56She recalled that Ms. Seepaul did discuss the decision to suspend the applicant for one month with her and that she had agreed that one month was appropriate. She had not witnessed the altercation between Mr. A and the applicant. Ms. Seepaul had told her that, in her opinion, the applicant had a role in provoking the violence. She had agreed with the one-month ban based on what she heard from Ms. Seepaul and other witnesses and she had no reason to disbelieve their accounts.
57She stated that Mr. A was banned for six months which was quite a severe penalty but it was felt to be appropriate because of the allegations that he had made anti-Semitic comments and because of the violent behaviour.
58She testified that on or about October 23, 2015, she received a call from the applicant, who was asking for the contact information for the board; how to make a complaint; and the role of the respondent board. She stated that she gave him the name and email address for the board chair which she said she later realized was an incorrect address; the minister’s name; and she asked the applicant for his email and phone number.
59It was her understanding that the board chair did try to contact the applicant but the phone number he had provided was out of order. She also understood that the applicant called the respondent’s minister.
60She stated that she was given a copy of the letter from the chair of the executive board dated October 27, 2015, referenced in paragraph 31 above. The chair had asked that this letter be given to the applicant if he returned within the month, but he did not return during the month so it was not handed to him.
61She next spoke to the applicant when he called on December 22, 2015. He said he was calling to make sure that the board chair had received his complaint. There is an email exchange between Ms. Miller and the applicant that was submitted into evidence. On December 23, 2015, Ms. Miller confirmed to the applicant that the board chair had received his complaint and that she was out of town and would be in touch in the new year. On December 24, 2015, the applicant replied and asked that he be sent all the pages of the complaint that the chair had received in order to verify that she had received the right document. In this email, the applicant stated that he had a new phone and he would contact the respondent when necessary.
62It was Ms. Miller’s evidence that if the applicant had pursued a complaint through the workplace harassment and violence policy, the person to investigate such a complaint would have been an employee of the Toronto Conference of the United Church of Canada.
63In response to the applicant’s claim that he called Ms. Miller a number of times, she responded that she did not recall this and if he had called she would have passed him on to speak to the appropriate person.
64It was her understanding that the chair of the board tried to set up a phone meeting with the applicant but the applicant only wanted to meet in person. When she was asked why the chair would not meet the applicant in person, she stated that she could not speak for the decisions made by the board chair.
65Ms. Miller stated that she had heard about BDS.
James Dillane
66Jim Dillane volunteers as the chair of the Ministry and Personnel Committee of the respondent’s executive board. He described the Committee as being like the human resources department of the respondent. The Committee manages all of the respondent’s employees, including Ms. Seepaul, Ms. Miller and the minister, and it also manages the volunteers.
67He did recall that the members of the board executive received the applicant’s complaint and it was reviewed, along with the emails that had been sent to the chair of the board, at a January 13, 2016 meeting. He recalled that the chair advised those at the January 13, 2016 meeting that she had been endeavouring to contact the applicant. The chair presented her view of the situation. He was directed to speak to Ms. Seepaul to confirm the details of the events. He spoke to Ms. Seepaul and another board member who had witnessed the events on October 21, 2015. He asked them both if they had ever heard any anti-Semitic comments at the drop-in and they had both told him that they had not. He also spoke to a drop-in volunteer who had been there on October 21, 2015, and she also stated that she had never heard any anti-Semitic comments while she had been at the drop-in.
68After reviewing all of this information the board agreed that Ms. Seepaul had made appropriate decisions. He stated that if the applicant had not been satisfied with the result he could have made a further request to the Toronto Conference of the United Church of Canada and it would have been up to the Toronto Conference to decide if further investigation was needed.
69He stated that to his knowledge no further investigation was requested.
Analysis and Decision
70Sections 1 and 9 of the Code state as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of ancestry,…ethnic origin, … creed …
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
71The success of this Application rests on whether the applicant has proven, on a balance of probabilities, that he experienced adverse treatment in the respondent’s actions and decisions in response to the incidents that occurred at the drop-in on October 21, 2015, and that this adverse treatment was connected to his ancestry, ethnic origin and creed as a Jewish person.
72If on a balance of the proven facts, the applicant proves the discrimination, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur: Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33.
Credibility Considerations
73In assessing credibility of the witnesses, I have applied the well-established and often cited principles stated in Faryna v. Chorny, 1951 CanLII 252 (BCCA), [1952] 2 D.L.R. 354 as stated at pages 356-357:
... In short, the real test of the truth of the story of a 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.
74As was stated in Shah v. George Brown College, 2009 HRTO 920 (“Shah”) at para. 12:
An assessment of credibility is not an exercise whereby the adjudicator simply listens to the oral testimony of witnesses, observes their demeanour while testifying, and decides who appears to be telling the truth. Assessing credibility involves the consideration of a variety of factors.
75In assessing the credibility of the witnesses who provided evidence at this hearing, I have considered a number of factors including any corroborative evidence of the witnesses; the extent to which witnesses may have an interest in the outcome of the case, or have a self-interest in testifying for one of the parties; the state of the witness, such as candour or evasiveness; and the failure to call or produce material evidence. (Shah at para. 14 and Briggs v. Durham Regional Police Services, 2015 HRTO 1712 at para. 149.)
76There is however, little dispute on the facts of this case.
77It is the applicant’s position that because the United Church of Canada supports Palestine and the BDS policies, it knowingly allowed Mr. A to make repeated anti-Semitic comments. He further alleges that he experienced adverse treatment because he is Jewish when he asked the respondent to address this behaviour and when he was banned for one month. He also submits that because he is Jewish, his complaint about the respondent’s actions and decisions was not properly addressed.
78The respondent submits that the drop-in must be seen to be separate from the United Church of Canada and its policy positions. It also submits that because this is a service case involving comments allegedly made by one customer to other customers, the respondent’s liability must be considered differently than the potential liability of a respondent employer who could be liable for comments made between employees. It submits that the extent of control it has over the behaviour of its customers must be considered. It submits that in the circumstances of comments made between customers in a service context, the Tribunal only needs to find that the respondent acted reasonably once it learned about the comments. The respondent refers to the Tribunal Decision Josephs v. Toronto (City), 2016 HRTO 885 (“Josephs”), as support for this position.
79Section 1 of the Code states that every person has the right to equal treatment with respect to services. Unlike the service areas of accommodation and employment, there is no specific section of the Code that provides protection from harassment in the context of services. However, as was stated in Knights v. Debt Collect Inc. (“Knights”), 2017 HRTO 211 at paragraph 20, the Tribunal has found that a service provider could be liable for a poisoned environment created in the context of services:
Unlike the Code provisions dealing with accommodation and employment, s. 1 of the Code does not contain a prohibition against harassment. Nevertheless, it is established law that serious wrongful comments may constitute discrimination under the Code if they create a hostile or poisoned environment for the applicant. A poisoned environment can be created in two circumstances: (1) if there has been a particularly egregious, stand-alone incident or comment, or (2) if there has been serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated: see General Motors of Canada Ltd. v. Johnson, 2013 ONCA 502 at paras. 66-67 as adopted in the human rights context by Crêpe It Up! v. Hamilton, 2014 ONSC 6721 (Div. Ct.) at paras. 18-19. While the concept of a poisoned environment arises most commonly in employment cases, the concept applies equally to the service context. See Josephs v. Toronto (City), 2016 HRTO 885 at para. 32.
80The circumstances in the Knights Application differ from that in this Application. In Knights, the Tribunal found that an employee, who was acting in the context of his employment, made three racial slurs to the applicant and created a poisoned or hostile service environment for the applicant. In that situation, the Tribunal found that the respondent was liable for the actions of its employee.
81I agree with the respondent that in the circumstances such as those detailed in this Application, where it is alleged that a customer made a slur against other customers’ ancestry, creed or ethnic origin, the liability of the service provider must be considered differently than the liability of an employer in the situations where comments are made between employees in workplaces.
82This Application addresses incidents that are more in line with the incidents addressed in Josephs, where racial slurs were made by one customer to another customer. In Josephs, a number of the respondent’s employees were advised that a customer had made the slurs to another customer and they were asked to intercede. In Josephs, the Tribunal found:
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.
83I have applied the reasoning of the Tribunal in Josephs to my analysis in this Application to determine whether the actions of the respondent breached the applicant’s rights as protected by the Code.
Allegation that the Respondent had Tolerated Anti-Semitic Comments
84The applicant alleges that the respondent was aware that Mr. A had made anti-Semitic comments to others at the drop-in prior to October 21, 2015. The applicant himself stated that he had not heard these comments but had been told by others that Mr. A had made these comments in the past. No one who allegedly heard these prior comments was called to give evidence at the hearing. Without hearing the evidence from the person who allegedly heard these earlier comments, the applicant’s evidence is hearsay evidence to which I do not give any weight. The Tribunal has stated that, although the Tribunal has the discretion to admit hearsay evidence, it generally will not rely upon hearsay evidence to make an important finding of fact. See: Harnock v. Campus Living Centres Inc., 2012 HRTO 2189.
85Even if such comments had been made prior to October 21, 2015, the issue is whether the respondent knew about the comments and allowed them to continue. All of the respondent’s witnesses, who were present at the drop-in much more often than the applicant, stated that they had never heard anyone make anti-Semitic comments at the drop-in. Ms. Miller corroborated Ms. Seepaul’s evidence that they were not previously aware of anyone making such statements. Mr. Dillane also stated that the executive board had never been made aware of such an incident. The applicant provided no evidence to contradict or challenge the reliability of the evidence of these witnesses.
86I find that the evidence demonstrates that the respondent was not aware that someone had been making anti-Semitic comments at the drop-in prior to October 21, 2015, when the applicant told Ms. Seepaul what was allegedly happening during the meal on that day.
87Having made this finding, I must consider the steps the respondent took after it became aware of the allegations on October 21, 2015 to determine whether the respondent breached the applicant’s Code rights in the manner in which it responded to the allegations made on that day.
88There is no dispute that when the applicant advised Ms. Seepaul about what he believed Mr. A was saying to others in attendance, she agreed to go right over with the applicant to speak to Mr. A. The evidence demonstrates that before Ms. Seepaul had an opportunity to speak to Mr. A, he and the applicant began shoving one another and this resulted in a fight. This fight ended when Mr. Anisman interceded. Both the applicant and Mr. A were sent outside and the police attended.
89I find that the respondent took reasonable action right away when it was advised of Mr. A’s discriminatory conduct. I do not find that the applicant was adversely treated by the steps the respondent took after he advised the he believed Mr. A was making anti-Semitic comments. As a result, the applicant’s allegation that he experienced a breach of his Code rights when the respondent failed to take action when he asked it to address Mr. A’s behaviour is dismissed.
Allegation That Applicant’s Rights Were Breached When He Was Banned
90There is no dispute that the applicant was banned from the drop-in for one month from October 21, 2015. Mr. A was banned for six months.
91Ms. Seepaul stated that as the program director for the drop-in, it was her decision to impose a penalty on the applicant due to his behaviour in being involved in the fight.
92I find the evidence of both Ms. Seepaul and Ms. Miller to be credible and reliable. Their evidence about the reason for the one-month ban was consistent. I find it credible that the reason for the one-month ban was because in Ms. Seepaul’s opinion, the applicant had instigated an act of violence. I accept as credible Ms. Miller’s evidence that she accepted Ms. Seepaul’s opinion and agreed with her decision on the ban. Moreover, the applicant did not produce any evidence that could challenge the credibility and reliability of Ms. Seepaul and Ms. Miller about the reason for imposing the ban on the applicant nor did he produce any evidence that the ban was connected to a Code-based ground.
93Although, the applicant may have felt that ihe was treated unfairly by being banned when he was trying to help others and draw attention to the anti-Semitic behaviour, there is no evidence to demonstrate that the decision to ban him for one month was in any way connected to the fact that he is Jewish. For this reason, the allegation that he experienced discrimination on the basis of his ancestry, place of origin or creed when he was banned is dismissed.
Allegation that Respondent’s Response to his Complaint Breached his Rights
94A number of witnesses gave evidence about the steps that were taken by the applicant to complain about Ms. Seepaul’s actions and decision and about the steps that were taken in response to the applicant’s complaint.
95It was not disputed that the applicant was given contact information for the chair of the board and the minister. The applicant had a conversation with the minister and testified that he was pleased with that conversation. He was not granted an in-person meeting with the board as he requested. The chair of the executive board wrote to him on October 27, 2015, outlining the respondent’s position on offensive language and aggressive behaviours. The applicant did not receive a copy of this letter because the respondent did not have his address and he did not return to the respondent to receive it by hand. The inquiries the applicant made in late December to insure that the chair of the executive board had received the full copy of his complaint was confirmed the following day by Ms. Miller and she indicated that the chair would respond in early January 2016. The applicant sent an email to the chair on January 5, 2016, and she responded on January 7, 2016, indicating that his complaint would be brought to the board at the January 13, 2016 board meeting.
96Mr. Dillane provided evidence about discussion the members of the board executive had at the January 13, 2016 meeting and the steps he took to verify the details of the October 21, 2015 incident, indicating that he spoke to a board member and a volunteer who had been present on that day and to Ms. Seepaul. He testified that after reviewing all of this information the board agreed that Ms. Seepaul had made appropriate decisions. The executive board’s decision was confirmed in a letter to the applicant dated January 22, 2016. None of this evidence was challenged by the applicant.
97Although the applicant was upset by the fact that the chair or the members of the executive did not meet with him in person, he has not demonstrated how this is a breach of his Code rights. There was no evidence presented that could support a finding that the refusal to meet in person was in any way connected to his ancestry, ethnic origin or creed. In addition, I find that the applicant has provided no evidence to demonstrate that the respondent’s actions in response to his complaint and the executive board’s decision to support Ms. Seepaul’s decision were in any way influenced by the fact that the applicant is Jewish. The allegation that the executive board treated him adversely because he is a Jewish person is dismissed.
Order
98This Application is dismissed.
99The applicant is no longer required to provide the respondent and the Tribunal with a copy of the recording he made during the May 29, 2017 proceeding. The applicant is not to publicize the recording in any way including on social media platforms such as Facebook or Snapchat; and the applicant is not use the recording for any other purpose other than for his own use in reviewing the proceeding of the Application.
Dated at Toronto, this 4th day of August, 2017.
“Signed by”
Laurie Letheren
Vice-chair