Thursday, October 08, 2015

If you are a Black Shopper "Don't Bend Down" Decision in McCarthy v. Kenny Tan Pharmacy Inc.

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created October 07, 2015

“Racism, and in particular anti-Black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.”  R. v. Parks, 1993 CanLII 3383 (1993) 15 OR (3d) 324; 24 CR (4th) 81; 84 CCC (3d) 353; [1993] OJ No 2157 (QL); 21 WCB (2d) 121; 65 OAC 122  (Ont. C.A.), p. 369.

Civil Servant and Ph.D. student Mary McCarthy, realized the painful reality of "Shopping Whilst Black" when she made a late night run shortly after 10:00 p.m, to Kenny Tan Pharmacy Inc., a franchise of Shoppers Drug Mart. In an application filed with the Human Rights Tribunal of Ontario Ms. McCarthy "alleged that a staff person subjected her to racial profiling and discrimination by falsely accusing her of shoplifting, searching her bag, and failing to apologize to her when the search disclosed that she had not shoplifted anything." McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 159, para. 2,

This case also dealt with the reality in a multicultural society of whether a South Asian (Brown) person would discriminate against an African (Black) person?

[88] In its closing submissions, the respondent store argued that Ms. Balachandra could not have racially profiled and discriminated against the applicant because she is also a racialized woman. Ms. Balachandra is South Asian. I disagree. In my view, it is not in dispute among well-informed, reasonable persons that racial stereotypes about persons of Black African descent exist in South Asian communities in both South Asia and Canada. Furthermore, South Asian individuals in Canada who hold such stereotypes and are in positions of power in employment, services or housing undoubtedly have the capacity to discriminate against Black individuals. I am not suggesting that this makes it more likely that Ms. Balachandra discriminated against the applicant, but I also do not accept that, because she is South Asian, it is impossible or less likely that she discriminated against the applicant. I dealt with a similar issue in Armstrong v. Anna's Hair & Spa, 2010 HRTO 1751 at paras. 52-55, and Bageya v.Dyadem lntemational, 2010 HRTO 1589 at para. 136.
The experience, particularly, in the Commonwealth Caribbean of widespread racism, racial tensions and social discord between South Asians and Black, particularly in the Republic of Guyana and the Republic of Trinidad and Tobago, illustrate that racial tensions between South Asians and Black people are a reality and that Black people can be discriminated against by South Asians and the reverse. In Trinidad and Guyana, Black people are stereotyped by South Asians as "thieves" and "robbers", it is no surprise that such stereotypes would be carried to Canada and the same unnecessary stereotyping would pervade.

In the end the Tribunal found that Ms. McCarthy was racially profiled and that her treatment on the night in question violated the Human Rights Code.

A one day hearing took place on September 19, 2013, at which a credibility shootout between the applicant and the respondents in respect to the time the event in question took place. The Respondent in order to undermine the applicant's case claimed the incident occurred after store closing: McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 1663 (CanLII), This is significant as it would have put the applicant in the place of a trespasser rather than a shopper on legitimate business. A receipt was crucial to the resolution of this point of dispute and reinforce the necessity for patrons to obtain receipts for items purchased, regardless how small the amount:
[2]           The applicant, who identifies as African Canadian, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to services and facilities because of her race and colour.  Specifically, she alleged that a staff person in a Shoppers Drug Mart store subjected her to racial profiling and discrimination by aggressively and rudely demanding that she open her backpack, looking inside her backpack, and walking away without apologizing.
[3]           The respondent filed a Response, which denied the allegation of racial profiling and discrimination.  The respondent stated that a store employee approached the applicant and asked to see the contents of her purse because of the applicant’s behaviour (she appeared to be crouching down, taking an item from the store shelf, and putting the item in her purse), not because of her race and colour.  The respondent stated that the employee was polite, courteous and respectful to the applicant.
[4]           As the parties are aware, at the hearing, there was a dispute between the parties as to when the alleged incident occurred.
[5]           The applicant provided the respondent with notice well in advance of the hearing that her position is that the alleged incident occurred between 10:10 and 10:29 p.m. on May 22, 2011 when the store was open, and that she has a receipt to prove it.  However, the applicant did not produce the receipt in advance of the hearing or at the hearing.
[6]           The respondent, on the other hand, did not dispute the applicant’s position on this matter prior to the hearing and when it cross-examined her at the hearing, it did not bring to her attention that its witnesses would be disputing her position.  However, when the respondent called its witnesses, its main witness testified that the alleged incident occurred shortly after midnight on May 23, 2011 when the store was closed.

The Tribunal resumed the hearing with a directive that the Applicant produce the receipt. The applicant produced the receipt that showed the time she attended the store was indeed during store opening.

In its analysis of the legal principles the Tribunal relied upon Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.):
(a) 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;
(b) 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;
(c) 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;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
(e) Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.
McCarthy v. Kenny Tan Pharmacy Inc., 2015 HRTO 1303, para. 53. See also, Pieters v. Toronto Police Services Board, 2014 HRTO 1729 (HRTO), para. 71.

The Tribunal also relied on the recent Supreme Court of Canada decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (SCC), para. 33, which adopted the OHRC's definition of Racial Profiling:
[33]                          ......The concept of racial profiling was originally developed in the context of proceedings brought against the police for abuse of power, but it has since been extended to other situations:
                    Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.
                    Racial profiling includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. [Emphasis added.]
(Commission des droits de la personne et des droits de la jeunesse, Racial Profiling: Context and Definition (2005 (online)), at p. 13; see also Ontario Human Rights Commission, Policy and guidelines on racism and racial discrimination (2005 (online)), at p. 19.)
The Tribunal, having analyzed the evidence provided at the hearing found the applicant was racially profiled and the explanation of the respondent was illogical, incredible and butressed by lies:

[90] To sum up, the following evidence provides a basis to draw the inference that
Ms. Balachandra racially profiled and discriminated against the applicant during her
interactions with her in the respondent store:
• There were significant inconsistencies between the Response to the
Application, Ms. Balachandra's written witness statement, and .her oral testimony with respect to what occurred.
• Ms. Balachandra did not see the applicant put a store product in her
bag, but strongly believed that she had done so, which was completely illogical. She was unable to offer a reasonable explanation for this
strong belief.
• Ms. Balachandra was rude to the applicant from the outset of her
interaction with her by not identifying or introducing herself to the
applicant, speaking to her in an elevated voice, and demanding that she open her backpack.
• Ms. Balachandra's action in directly confronting the applicant and
searching her backpack inside the store was contrary to the respondent store and Shoppers Drug Mart's policy on dealing with suspected
• Despite having been employed by the respondent store for almost five years, and having had to deal with shoplifting incidents during most of
her shifts, Ms. Balachandra was unable to provide a single example
where she directly confronted and searched the bag of a non-Black
individual inside the store.
• After discovering that there was no store product in the applicant's
backpack, Ms. Balachandra continued to be rude tothe applicant by not  apologizing to her. She was unable to offer a reasonable explanation
why she did not apologize, and her behaviour was contrary to how she normally behaves, which is to be polite.
• Ms. Balachandra lied when she testified that the incident occurred
shortly after midnight when the respondent store was closed. She
concocted this allegation at the last minute in an attempt to protect
herself and bolster the respondent store's case.
• Ms. Balachandra tried to evade the applicant's allegation of racial·
profiling and discrimination by falsely testifying that she "did not notice
that the applicant was Black when she first saw and spoke to her in the respondent store.
• Ms. Balachandra was unable to offer a credible, non-discriminatory
explanation for how she treated the applicant.
See Peel Law Association, above, at para. 128, where the Ontario Court of Appeal found that similar evidence was an ample basis to support an inference of racial profiling and discrimination.
[91] For the above reasons, I am satisfied that the applicant has established, on a balance of probabilities, that her race and colour were a factor in how Ms. Balachandra treated her in the respondent store. In my view, although the applicant's race and colour were not the sole factor, they were a factor, and moreover, a significant factor, in the adverse treatment. Furthermore, in view of the fact that Ms. Balachandra is an employee of the respondent store, the respondent store is liable for her conduct. See s. 46.3(1) of the Code.
In  Peel Law Association v. Pieters, the Court of Appeal place particular significance to a false explanation as a pretext to discriminate holding that:
[72]      And so it is in discrimination cases. The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.
[73]      In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
[74]      If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext.
[77]     The shifting of the evidential burden does not put the respondents in the position of having to prove a negative. Rather, it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else – namely, why they made a particular decision or took a particular action. [Emphasis added.]
McCarthy by singularly producing her receipt demolished the case of the respondent that was built on a pack of lies.

In racial profiling cases the first step, which is crucial is establishing liability, if a case is successful at that point then the next step is to argue for a variety of other legally appropriate remedies, financial and non-monetary.

In terms if remedies, Ms. McCarthy was awarded $8000.00. The Tribunal's reasoning on how it arrived at that relatively modest quantum is instructive:

[98] Tribunal decisions that have considered incidents involving racial profiling and/or
discrimination with respect to services have made awards ranging from $2,000 to
$20,000. See, for example, Peel Law Association v. Pieters, 2010 HRTO 2411
($2,000); Phipps v. Toronto Police Services Board, 2009 HRTO 1604 ($10,000);
Simpson v. Oil City Hospitality Inc., 2012 AHRC 8 ($15,000); Direk v. Coffee Time
Donuts, 2009 HRTO 1887 ($15,000); Longboat v. 708179 Ontario Inc., 2012 HRTO
2170 ($15,000); and Nassiah v. Peel (Regional Municipality) Services Board, 2007
HRTO 14 ($20,000). 
[99] None of the above decisions are closely analogous to the case at hand, but, in
my view, the ones that are most analogous and relevant with respect to the appropriate
quantum to be awarded to the applicant for injury to dignity, feelings and self-respect
are Pieters, Simpson, and Direk. In Pieters, this Tribunal found that the librarian/administrator of a lawyers' lounge racially profiled and discriminated against
two Black lawyers when she demanded that they produce identification to prove that
they were lawyers, and awarded each applicant $2,000 for injury to dignity, feelings and
self-respect. In Simpson, a Human Rights Tribunal of Alberta found that the respondent
refused the complainant entry to its nightclub because he is Asian, and awarded him
$15,000 for general damages. In Direk, this Tribunal found that the respondent coffee
shop's owner made discriminatory comments about Turkish people, and called the
police on the applicant because he is Turkish. The Tribunal awarded the applicant
$15,000 for injury to dignity, feelings and self-respect. 
[100] In my view, the quantum that should be awarded to the applicant for injury to
dignity, feelings and self-respect in the case at hand lies somewhere between the
quantum awarded in Pieters, and the quantum awarded in Simpson and Direk. The
quantum should be higher than in Pieters because it is a far more serious violation of
the Code to be falsely accused of being a thief and subjected to a bag search in a store
because of race and colour than to be asked for identification in a lawyers' lounge
because of race and colour, but not as high as in Simpson, where the applicant was
refused a service because of his race, and in Direk, where the police were called on the
applicant because of his place of origin and ethnic origin. 
[101] I find, overall, after considering the extremely serious violation of the Code, the
applicant's individual circumstances, and the relevant case law, that the $8,000 that the
applicant requested is an appropriate award of compensation for injury to dignity,
feelings and self-respect.
The remedies particularly the financial remedy awarded by the Tribunal is woefully inadequate and a licence to discriminate. Its great that Ms. McCarthy has a positive decision but with a remedial order of $8000.00, which is nuisance value money, as respondents terms such figures, I have a pessimestic view of that decision of this nature can result in the changing hearts and minds particularly when controlling for the costs mentally, physically and financially of applicants litigating such cases.

The Peel Law Association v. Pieters case was highly contested and litigated as well. Peel Law Association incurred over $200,00.00 costs for their legal representation and paying a Damage Award and Cost Award to the successful applicants. The applicants also incurred a substantial cost burden in funding the litigation all the way to the Court of Appeal: See, Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII)  (Vice Chair B. Eyolfson); Noble v. Peel Law Association2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII)  (Vice Chair K. Joaquim); Pieters v. Peel Law Association2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, [2013] 116 O.R. (3d) 312 (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 812013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204  (Cronk, Juriansz and Pepall JJ.A.). 

The broader point is these cases have little consequences on respondents behavior due to the imbalance of resources to litigate these cases. A significant amount of financial, legal  and human resources are available to Corporate Respondents in Human Rights Applications. It is rare for Aplicants to have access to the financial resources of respondents to litigate these cases. Thus, with the absence of award of legal costs to the successful Applicant and the very modest financial awards to successful Applicants, one sense of dignity is never really restored and in fact it is undermined such that a Respondent controlling for the rare chance that an Applicant can successful win a racial profiling case at the Human Rights Tribunal has a license to discriminate and harass Black people whether they are walking, shopping, driving, riding and working under whatever guise suits their fancy. 

The paucity of positive human rights decisions, particularly in respect to racial profiling, has led to a pessimistic view amongst some human rights litgants and applicant counsel on human rights tribunals and there ability to effectively and meaningfully adjudicate human rights disputes and provide meaningful remedies for Applicants/Complainants.