Human Rights Office

Human Rights Office
Human Rights Office

Josephs v. City of Toronto and Toronto Police Services Board, 2016 HRTO 885 (CanLII) 

Summary:

This case centres around an incident that occurred on January 7, 2013 at the Toronto East Provincial Court. On this day, the applicant, Mr. Josephs, who self-identifies as Afro-Caribbean, attended the Court Services Office. While being helped by clerk at a service window the applicant was informed there was an error on his documentation and that he would need to take a number and wait to speak with a supervisor. Although his number had not been called Mr. Josephs approached another window to speak to a supervisor. At this point, V.F. another member of the public that was waiting to be served began yelling about waiting ones turn and called Mr. Josephs a “Monkey Boy”. V.F. also taunted Mr. Josephs to go outside and said he would be waiting for him in the parking lot.  During this incident other members of the public were present and reported V.F.’s behaviour to one of the clerks, Juan Sanagustin. Mr. Sanagustin, advised the witness that if the altercation escalated into something physical he would call security. Mr. Sanagustin indicated that they usually let people resolve their own verbal altercations. This witness reported his conversation to the applicant. Upon receiving this information, Mr. Josephs approached another clerk window and asked for assistance, regarding the incident with V.F. Shortly after this request was made Court Office (CTO) McArthur arrived. CTO McArthur spoke to both V.F. and Mr. Josephs. The applicant felt like he was being interrogated by CTO McArthur and objected to the way he was treated. The next day, the applicant emailed a complaint to the manager of the counter staff, Ms. Edwards. Ms. Edwards investigated the applicant’s complaints and responded to the applicant in a timely manner. In this case it was determined that the City did have an obligation to investigate the applicant’s complaint and that they did so in an effective and efficient manner. It was also determined that CTO McArthurn did not treat the applicant in an adverse manner due to race. It was however decided that Mr Sanagustin’s comments relating to only responding to the incident if it turned violent were inappropriate and amounted to discrimination.

Questions to be Determined:

1. Did the City of Toronto discriminate against the applicant, failing to respond to a racial slur made against him by another member of the public?

2. Did Court Officer, McArthur treat the applicant in an adverse manner due to race?

3. Did the City have a duty to investigate the applicant’s complaint in order to ensure a discrimination-free service environment consistent with the Human Rights Code?

Findings:

1. Did the City of Toronto discriminate against the applicant, failing to respond to a racial slur made against him by another member of the public?

YES

2. Did Court Officer, McArthur treat the applicant in an adverse manner due to race?

NO

3. Did the City have a duty to investigate the applicant’s complaint in order to ensure a discrimination-free service environment consistent with the Human Rights Code?

YES

Reasoning:

1. In this case it was determined that the City discriminated against the applicant by failing to respond to a racial slur uttered by V.F., another member of the public.
    
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 wasinadequate 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 (para 86).

2. Although the applicant felt like he had been adversely treated by CTO McArthur, it was determined that he was not subjected to adverse treatment based on race.

Having 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 (para 109).
    
It 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 (para 113).

3. It was decided that yes, the City did have a duty to investigate the applicant’s complaint and that their investigation was reasonable. Tribunal jurisprudence (Laskowska v. Marineland of Canada Inc.) was used to establish the duty to investigate.

In 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 (para 128).

Remedy:

The 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.

Josephs v. City of Toronto, 2016 HRTO 1547 (CanLII)
(Reconsideration Decision)

In this reconsideration decision it was stated, that the training order included as part of the remedy in the original decision was not valid.

The respondent argues that there is evidence potentially determinative of this issue that could not reasonably have been tendered at the hearing because the respondent was not put on notice that this remedy was in play. The applicant opposes this aspect of the Request, arguing that the issue of training was a live one during the hearing and the respondent had every opportunity to lead such evidence as it considered necessary to respond to the issue as it arose during the hearing (para 25).

It was determined that,

while the Tribunal may of its own motion order any remedy that it considers appropriate, it seems evident that the Tribunal must put the parties on notice that such an order is being contemplated. Whether framed in the manner that the respondent has or as a failure of notice, the ordering of a remedy without notice to the affected party is one that cannot stand in my view and accordingly that part of the Decision is set aside (para 27).

Orders:

a. The Request as it relates to the finding that the applicant experienced discrimination is denied.

b. The Request as it relates to the Order requiring training is granted. The respondent will deliver and file any further materials in respect of this issue it intends to rely upon within 21 days of the date of this Reconsideration Decision. The applicant may deliver and file any responding submissions within 14 days of receiving the respondent’s materials.