CITATION: City of Toronto v. Josephs, 2018 ONSC 67
DIVISIONAL COURT FILE NO.: 083/17
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, KITELEY and DOYLE JJ.
BETWEEN:
CITY OF TORONTO
Applicant
– and –
KEVIN JOSEPHS
Respondent
David A. Gourlay, for the Applicant
Morgan Sim and Cenobar Parker, for the Respondent
Brian A. Blumenthal, for the Human Rights Tribunal of Ontario
HEARD: December 4, 2017
LEDERMAN J.
NATURE OF PROCEEDING
[1] The Applicant, City of Toronto, (the “City”) seeks judicial review of a decision of a Human Rights Tribunal of Ontario (the “Tribunal”) dated July 5, 2016, in which it found that the City had discriminated against the respondent (“Josephs”). The situation involved a third party (“V.F.”) who directed a racial slur at Josephs while both were in attendance as customers at the Court Services Office in Room 101 at the Toronto East Provincial Court (“Room 101”).
[2] This application gives rise to the issue of whether racial slurs made by one customer to another can constitute a poisoned environment that amounts to a breach of the Human Rights Code, R.S.O. 1990, c. H-19 (the “Code”) by the City, as the service provider, if it fails to properly address the situation.
BACKGROUND FACTS
[3] Josephs identifies as a visible person of Afro Caribbean descent. On January 7, 2013, Josephs, a paralegal trainee, attended at Room 101 to conduct business. He sought to obtain an endorsement record and pay a fine on behalf of a client.
[4] When Josephs was served by an intake clerk, he discovered there was an error. He was told he would have to speak to a supervisor to rectify the problem. Josephs was given a number for his place in the queue. Although his number had not been called, he approached one of the counter clerks at another window to ask that she speak to a supervisor about rectifying the problem.
[5] V.F., who was waiting to be served, began yelling at Josephs to wait his turn. V.F. called the respondent “monkey boy” and imitated a chin scratch. He also taunted Josephs to go outside, and stated he would be waiting for him in the parking lot.
[6] Two witnesses to the incident gave testimony at the Tribunal about V.F.’s behaviour. One of these witnesses was N.P. She had approached one of the clerks, Mr. Juan Sanagustin (“Sanagustin”), and complained about V.F.’s behaviour. The Tribunal found at para. 10 of the Decision as follows:
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 among themselves.
[7] Josephs approached another window and asked for assistance with V.F. The team lead for the counter staff, Mr. Jamil Elannan (“Elannan”), was made aware of the altercation, including the racial slur, and left Room 101 to get assistance from a Court Officer.
[8] Court security is provided by both Court Officers (CTO), who are civilian employees of the Toronto Police Service, and by security guards who are employed by a private security company and provided pursuant to a contract with the City.
[9] At about the same time that Elannan left the room, N.P. told Josephs that the City was not going to do anything. She and Josephs then approached a security guard to report the incident. The security guard confronted V.F. and told him he would not be served that day and would have to leave.
[10] Soon after, a court officer, CTO McArthur, attended and spoke to V.F. and then to Josephs in separate areas in the hallway outside of Room 101. Josephs asked CTO McArthur to obtain V.F.’s name and contact information. CTO McArthur allowed V.F. to finish his business in Room 101 and then approached him for this information.
[11] CTO McArthur stood between Josephs and V.F., and when V.F. asked if he could leave the building, CTO McArthur told him he could and he could not come back that day. As V.F. left the courthouse, he called Josephs a vulgar name and directed a crude gesture towards him.
[12] The next day, Josephs emailed the manager of the counter staff, Veronica Edwards (“Edwards”), to submit a detailed complaint about the way the incident was handled. Edwards was not in Room 101 on the day of the incident. She spoke to staff who were present and provided a response to Josephs on January 31, 2013. She explained that she investigated the situation and noted that she discussed the complaint with the staff involved. She assured Josephs that the advancement of human rights is a high priority for the City. She also indicated that she addressed, where appropriate, how the situation could be handled differently with the staff. She also advised Josephs that, in the future, he should wait in line until his number was called.
[13] On August 1, 2013, Josephs filed an application with the Tribunal under the Code alleging discrimination with respect to services, goods and facilities on the basis of race and colour.
THE TRIBUNAL’S DECISION
[14] The Tribunal framed the question it faced as what duty, if any, does a service provider owe to a customer who has been racially harassed by another customer.
[15] The Tribunal approached the question by applying principles relating to a poisoned work environment in the employment context but with necessary modifications given the more limited control that a service provider would have over its customers compared to the control that an employer exerts over its employees.
[16] In that regard, the Tribunal held that in the instant circumstances, 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 Josephs. The Tribunal stated that the response need not be perfect, but it did need to be reasonable in the circumstances.
[17] The Tribunal found:
(i) that all but one of the City staff and security officers at the court office had acted promptly and appropriately when they learned of the racial slur;
(ii) that the City supervisor, Elannan had acted within seven seconds of hearing of the slur from Josephs by going to ask a court officer to address the issue. The Tribunal found Elannan’s actions to be a reasonable and effectual response to address the racial slur;
(iii) that the actions of the court officer who had separated the parties and cautioned V.F. against any further outbursts and made an effort to prevent a recurrence were reasonable in the circumstances. The Tribunal found that CTO McArthur’s response to the situation did not give rise to any violation of the Code;
(iv) that Edwards took Joseph’s complaint seriously and that her investigation of Josephs’ complaint the following day and response were reasonable.
[18] It should be noted that Edwards, in her investigation and testimony, concluded that Sanagustin’s response to N.P. may not have been appropriate. She testified that he should have sought advice from his supervisor and/or lead in such instances, and that he was pretty casual about the situation.
[19] Despite these findings in favour of the City, the Tribunal found that Sanagustin’s conduct alone amounted to discrimination against Josephs, for which the City was responsible. At para. 86 of the Decision, the Tribunal stated:
Although 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.
[20] In the Tribunal’s decision dealing with the injury to dignity, feelings and self-respect of Josephs the Tribunal made the following comments at paras. 142 and 143:
In 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.
The 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 not prepared to do anything, even before he spoke to N.P.
[21] Based on the finding of discrimination, the Tribunal ordered the City to pay $1,500 in damages to Josephs and provide human rights training to its court services division staff. In its Reconsideration Decision dated December 2, 2016, the Tribunal held that this training order had in fact been made by the Tribunal without notice to the City that the remedy of training might be imposed, and requested further submissions on this issue. In a subsequent Case Assessment Direction, dated February 7, 2017, it was held that the directive for training became moot in view of the fact that the City had already provided training to certain of its employees.
ISSUES
[22] The City submits that the Tribunal made jurisdictional errors in reviewing the City’s actions to address the racial slur which amounts to a complaint of harassment in the provision of services.
[23] Secondly, the City submits that the Tribunal’s finding of discrimination was unreasonable given the following:
(a) It was based on the actions of a non-supervisory employee;
(b) It focused on Josephs’ subjective understanding of the situation rather than applying an objective test to determine whether discrimination took place;
(c) It failed to consider the context of Sanagustin’s comments in coming to its findings.
STANDARD OF REVIEW
[24] The City submits that, although the standard of review of Tribunal decisions is generally reasonableness, the standard of review of correctness is applied to the issue of whether the Code confers jurisdiction on the Tribunal to entertain complaints about racial slurs amounting to harassment in the provision of services.
[25] The Ontario Court of Appeal has affirmed that in reviewing the Tribunal’s decisions, the highest degree of deference is owed to its interpretation and application of human rights law. This deference is owed in recognition of the Tribunal’s specialized expertise. This standard of reasonableness applies to the review of the Tribunal’s interpretation and application of its own statute: Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421 at paras. 39-41.
[26] Accordingly, the Tribunal’s decision that the poisoned environment applies to the provision of services and falls within the scope of the Code is owed deference, and is subject to a standard of review of reasonableness.
[27] On judicial review, it is not enough that the reviewing court be persuaded that one could arrive at a different decision based on the same evidentiary record. To succeed on judicial review in this case, it is necessary to show that the Tribunal could not reasonably arrive at the decision it did: Peel Law Association v. Pieters, 2013 ONCA 396 at para. 132.
ANALYSIS
- Tribunal’s jurisdiction over complaint of harassment in the provision of services
[28] Unlike provisions in the Code dealing with accommodation and employment, section 1 of the Code does not contain a prohibition against harassment. However, it is well established that serious wrongful comments or conduct may constitute discrimination under the Code if they create a hostile or poisoned environment for an applicant. The situation most commonly arises in the employment context where the employee is in a uniquely vulnerable position (B.C. Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 44). However, a finding of discrimination on this basis also includes a hostile or poisoned service or accommodation environment. (For example, see Uzoaba v. Canadian Human Rights Commission, [1994] C.H.R.D. No. 7 at p.56, application for judicial review dismissed, [1995] 2 FCR 569).
[29] There is no basis or principle on which to distinguish the application of poisoned environment principles in employment from a service context. In either scenario, it is possible to have one egregious incident or a pattern of conduct sufficient for a finding of a poisoned environment. Racial slurs can create a poisoned service environment. When such occurs, a corporate respondent is liable for the discrimination directly due to this poisoned environment and its failure to properly address the situation when it was brought to the employer’s attention. Under section 46.3 of the Code, employers are liable for any act or thing done by their employees or agents in the course of their employment and therefore there is corporate responsibility for the discrimination committed by one of its employees: Knights v. Debt Collect Inc., 2017 HRTO 211.
[30] What is unique in this case is the fact that the Tribunal found that there was a breach of the Code in circumstances where the individual responsible for a poisoned environment was a third party customer and not an “officer, official, employee or agent” of a corporate respondent for the purposes of deemed liability in accordance with section 46.3 of the Code.
[31] The Tribunal acknowledged these unique circumstances and adopted an approach that is analogous to other contexts.
[32] It was reasonable for the Tribunal, in the circumstances of this case, to find that 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 Josephs. As the Tribunal pointed out, the response need not be perfect but it did need to be reasonable in the circumstances.
[33] Therefore, the Tribunal made no error of jurisdiction and was reasonable in applying the concept of a poisoned work environment to the service context in this case.
- Reasonableness of finding of discrimination by the City
[34] The question for this Court is whether it was reasonable for the Tribunal to find corporate responsibility for the lack of a meaningful response by Sanagustin, a non-managerial employee, notwithstanding that the Tribunal found that the City’s supervisor and manager and the court officers all acted reasonably and responded adequately in the circumstances.
[35] The Tribunal considered the response of the City’s supervisory and management level employees and found that their actions had met the standard required to address the racial slur:
(a) Elannan acted immediately upon speaking with Josephs to go seek the assistance of a court officer who would address the situation. The City’s security officer arrived within 2.5 minutes of that action and the court officer arrived within minutes thereafter; and
(b) Edwards investigated the situation afterwards and the Tribunal was satisfied with her investigation and response.
[36] Thus, it can be said that these personnel of the City took prompt, effectual and proportionate action to address the racial slur and to prevent any repetition of it.
[37] In the view of the Tribunal, however, all of that was not sufficient. Rather, it focused on the comments of Sanagustin to N .P. Notwithstanding the City’s actions to address the racial slur, the Tribunal looked at Sanagustin’s inadequate response and the impact that it had when it was communicated by N.P. to Josephs. At para. 60 of the Decision, the Tribunal stated as follows:
As to whether or not the applicant was subjected to discrimination by Mr. Sanagustin’s inadequate response to N.P., it seems to me what is relevant is what the applicant reasonably understood had been communicated between N.P. and Mr. Sanagustin.
[38] N.P., with her limited information about what other steps City staff were taking, made an incorrect assumption when she concluded that the City was not responding at all to the racial slur. She then communicated that assumption to Josephs.
[39] Accordingly, the Tribunal focused solely on Josephs’ erroneous belief that nothing was being done by City staff to address the racial slur. Apparently, he did not know that Elannan had gone to get the court officer to address the situation. When N. P. reported back to him that Sanagustin was going to take no action, it reinforced Josephs’ belief that the City was acquiescing in the situation.
[40] Whatever understanding Josephs had as to the nature of action being taken, the situation was resolved within 2.5 minutes when the security staff arrived on the scene followed shortly thereafter by CTO McArthur.
[41] In effect, there was no poisoned environment being created. It is clear that Josephs relied on his own observations and mistaken assumption when he heard from N.P. that the City was not responding to the racial slur.
[42] At most, the comments made by N.P. to Josephs played a minor part in the situation as it unfolded. Thus, Sanagustin’s inadequate response has to be seen in the context of his being a non-supervisory employee when other responsible staff were taking appropriate and immediate action.
[43] Courts and Tribunals have consistently held that the standard applied to the response to workplace harassment need not be perfect. It must be reasonable and proportionate to the circumstances. Nor, need it be instantaneous as long as it is prompt but some reasonable amount of time is permitted before a corrective course of action is taken.
[44] The Tribunal applied disproportionate weight to Sanagustin’s inaction.
[45] The Tribunal’s finding of a poisoned environment as a result of Sanagustin’s conduct is unreasonable. The focus was on what Josephs believed, which crossed over into a subjective test. Objectively, it cannot reasonably be inferred that the City as a whole was acting in such a way as to foster a poisoned environment. The timing of the reaction to the incident in this case shows the need for a more relaxed onus on service providers. The entire incident took no more than a few minutes. It is the response of the corporation staff over all that is important to consider as to whether the City properly addressed the situation. It was unreasonable to focus on Sanagustin’s conduct which objectively did not have any bearing on how the City actually dealt with the circumstances. Corporate responsibility cannot reasonably be fixed on the City in these circumstances because of the inconsequential conduct of Sanagustin.
[46] As a result, the conclusion of the Tribunal of discrimination cannot fit within a reasonable range of outcomes, given its other findings of fact to the effect that every other member of the City staff and court officers acted promptly and appropriately.
CONCLUSION
[47] For these reasons, the application for judicial review is granted. An order will go quashing the Decision of the Tribunal and dismissing the human rights application.
[48] Costs of the application for judicial review are fixed at $2,500 all-inclusive, payable by Josephs to the City within 30 days.
Lederman J.
I agree _______________________________
Kiteley J.
I agree _______________________________
Doyle J.
Released: 2018
CITATION: City of Toronto v. Josephs, 2018 ONSC 67
DIVISIONAL COURT FILE NO.: 083/17
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, KITELEY and DOYLE JJ.
BETWEEN:
City of Toronto
Applicant
– and –
Kevin Josephs
Respondent
REASONS FOR JUDGMENT
Released: 20180201