Law Times

Page 10 September 12, 2016 • Law timeS www.lawtimesnews.com Tribunal says response must be reasonable, but not perfect Service providers must address racial harassment BY YAMRI TADDESE Law Times S ervice providers in On- tario have an obligation to respond to racial ha- rassment that occurs be- tween customers, the Ontario Human Rights Tribunal has found. In Josephs v. Toronto (City), the tribunal ordered the City of Toronto to conduct human rights training for its Court Ser- vices Office that "specifically includes and addresses how to respond to complaints of dis- crimination and/or harassment between customers." The tribunal also ordered the city to pay $1,500 for injury to dignity, feelings and self- respect after a black paralegal complained about city staff 's re- sponse to a racial harassment in- cident at a Toronto courthouse. Kevin Josephs told the tribunal he was at the courthouse to pay fees on a client's behalf when another customer called him "monkey boy" for allegedly cut- ting a line. Tribunal vice chairman Brian Eyolfson said service providers' response in these circumstances does not have to be "perfect," but it has to be reasonable. "I find that in the circum- stances of this application, the city, as a service provider, had an obligation to take prompt, effectual and proportionate ac- tion when it became aware of the racial slur . . . towards the applicant," Eyolfson said. "The response did not need to be per- fect, but it did need to be reason- able in the circumstances." Josephs tells Law Times the ruling is the first finding that says service providers must take reasonable action when a cus- tomer harasses another custom- er based on prohibited grounds. "In my case, the tribunal con- cluded that although the city could not prevent the discrimi- nation from occurring, it did not reasonably and appropriately investigate the complaints it re- ceived about the discrimination, which occurred on their prem- ises and under their control," Josephs says. "In failing to do so, the city itself discriminated against me." Human rights lawyer Selwyn Pieters says a lot of service pro- viders aren't aware they have the duty set out in Josephs. "When you're providing a service, regardless of whether it is in a private or public space, [you] have a duty to ensure that customers are not subjected to any form of [Human Rights] Code-related harassment or dis- crimination by other custom- ers," he says. Pieters says this decision may provide lawyers with grounds to sue other service providers, such as club owners, who do not take reasonable action to stop race- or gender-based harassment on their premises. Although Josephs alleged the city and Toronto police failed to act appropriately in multiple ways, the tribunal found just one instance of unreasonable response on the part of the city. That response came when a con- cerned witness, only identified as N.P. in tribunal documents, approached a clerk at the court- house about the incident involv- ing a racial slur and was told se- curity would only get involved if the verbal altercation escalated. The tribunal found that the clerk's response to N.P. "was not reasonable and effectual, and was inadequate in terms of what is required under the Code in such circumstances." "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 any- thing in response, the applicant was subjected to discrimination, contrary to the Code, by the city," Eyolfson said. Added Eyolfson: "I accept the applicant's evidence that it was exceedingly difficult for him to be in the courthouse, where he does business, and to under- stand, 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." David Gourlay, counsel to the City of Toronto, said the city will ask the tribunal to reconsider its decision as it relates to the clerk's response. "The City of Toronto is com- mitted to promoting respect- ful conduct, tolerance and di- versity at all times. In terms of the HRTO decision, we point out that the tribunal was satis- fied that city staff responded 'promptly and reasonably' and the court officer took 'reason- able steps' to address the con- duct of the member of the pub- lic," Gourlay said in an e-mail to Law Times. "It appears from the decision that the only finding against the city was in the context of a con- versation between a concerned third party and a city counter staff member who was not di- rectly involved in addressing the conduct. The city does not agree that this constitutes discrimina- tion, and will be requesting that the tribunal reconsider its deci- sion," Gourlay said. In Josephs, the tribunal chair considered submissions that drew some parallels between an employer's duty to take action about a poisonous work environ- ment to a service provider's duty to act when customers have been harassed by fellow customers. Eyolfson did note service pro- viders in this scenario have more limited control over their cus- tomers compared to an employ- er's control over its employees. A few years ago, Pieters, who is black, won another human rights case on the basis of dis- crimination based on race after a courthouse librarian asked him and two of his black colleagues to show her their IDs to verify that they were lawyers. Pieters says Josephs is another example that black lawyers and paralegals "are not immune" to racial dis- crimination and harassment in legal spaces. In Josephs, Eyolfson said the manager of the counter staff "took the applicant's complaint seriously" and her "investigation and response was reasonable." "e 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 pro- vide a range of dispute resolu- tion options for employees and service recipients who believe they may have experienced dis- crimination and/or harassment," said Eyolfson. He ordered the city to "conduct appropriate human rights train- ing for its CSO staff at the Toronto East Provincial Court that specifi- cally includes and addresses how to respond to complaints of dis- crimination and/or harassment between customers." LT FOCUS Kevin Josephs says a recent ruling is the first finding that says service providers must take reasonable action when a cus- tomer harasses another customer based on prohibited grounds. © 2016 Thomson Reuters Canada Limited 00239YV-84371-SK AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 987144-65203 $106 Softcover July 2016 approx. 1940 pages 978-0-7798-7144-5 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. New in this Edition • All amendments to the Rules of the Small Claims Court and to the Forms, up to and including O. 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Untitled-8 1 2016-09-06 10:15 AM 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 . . . towards the applicant. Brian Eyolfson

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