Decision #93-045 1 92-0121 Garnet Angeconeb v. 517252 Ontario Ltd. and Ruby Cullen Heard: Red Lake, Ontario June 1 and 2, 1993 Board of Inquiry: Allan Manson Appearances: K. Joachim, Counsel for Ontario Human Rights Commission Garnet Angeconeb, Complainant Ruby Cullen, Respondent No one appearing on behalf of 571252 Ontario Ltd. This Board of Inquiry was appointed by the Minister of Citizenship on January 15, 1993 to inquire into the complaint of Garnet Angeconeb against 571252 Ontario Ltd. Zoar Developments , Ltd. carrying on business as the Red Dog Inn, and Ruby Cullen. , This complaint arises from a visit by Mr. Garnet Angeconeb, the Complainant, to the Town of Red Lake in December of 1988. It alleges discrimination by reason of race, colour or ancestry contrary to ss. 1 and 9 [formerly s.8] of the Ontario Human Rights Code in the provision of service by the Red Dog Inn. Zoar 2 Developments was the owner of the premises in question. However, the premises were leased by the numbered company at the material time and it was the numbered company, 571252 Ontario Ltd. who , carried on business as the Red Dog Inn. The Respondent Ruby Cullen was the manager of the Red Dog Inn, and an employee of the numbered company. Zoar Developments Ltd. is now in receivership. Counsel for the Commission, being satisfied that it was not involved in the operation of the Red Dog Inn, moved to amend the complaint by deleting Zoar Developments. Since there appeared to be no prejudice to the other parties, I granted the Commission's motion to amend the complaint so that the only named respondents are 571252 Ontario Ltd. and Ruby Cullen. The complaint can be divided into two separate but related allegations. The first deals with the demand of a $100.00 deposit and the second relates to the room assigned to Mr. Angeconeb. These will be referred to as the "deposit issue" and the "room assignment issue". The hearing of this complaint and its resolution have been complicated by three factors. First, the numbered company, although its representative participated in the teleconference to set the hearing dates, and although it was properly served with notice of the hearing, did not appear by counsel, agent or . representative. Secondly, the bulk of the written complaint was directed toward the deposit issue. Thirdly, Ms. Cullen was not represented by a lawyer but attended with a friend who acted as her agent or advisor. I will return to the issue of Ms. Cullen's role and her ability to address the allegations against her later. I. FACTUAL BACKGROUND: The basic factual allegations are not in dispute. The controversy lies in their interpretation and, especially, whether they were the result of discriminatory conduct which violated the Code Mr. Angeconeb is a professional journalist with a diploma from the School of Journalism at the University of Western Ontario. Prior to June of 1988, he had been the Executive Director of the Wawatay Native Communications Society which is a multi-media communications organization for the Nishnawbe-Aski Nation. Since June of 1989, he has been the Executive Co-ordinator of the Independent First Nations Alliance, a job which involves developing services and institutions for the First Nations communities of Lac Seul, Big Trout Lake, Muskrat Dam and Pikangikum. Between June, 1988 and June, 1988, he did freelance work for various organizations including the C.B.C. radio and the Wawatay Native Communication Society. In December of 1988, he was employed by the Windigo Tribal Council as a resource development co-ordinator. One 4 of his responsibilities was to arrange accommodations in the Red Lake area for those who enrolled in a mining training program for native people. It was for this purpose that he travelled to Red Lake on December 13, 1988. Having arranged a number of meetings with people in Red Lake, Mr. Angeconeb phoned the Red Dog Inn on December 12, 1988 to reserve a room for the next day. During the telephone conversation, when he indicated that he would be paying with cash, he was told that a $100.00 deposit would be required. He testified before the Board that he was surprised by this request but, at the same time, familiar with it. Previously, in 1978, he had encountered a request for a deposit which he considered discriminatory and subsequently presented a complaint about it to the Ontario Human Rights Commission. On December 13, 1988, Mr. Angeconeb arrived at the Red Dog Inn in the mid-afternoon. He went to the front desk where a woman was working and checked in. He gave her his name and car license number, and paid the basic room rate and taxes in cash. The bill totalled $56.70. In addition, the clerk asked him for a $100.00 deposit. In Mr. Angeconeb's words, he was "somewhat miffed". He explained that he had thought that a payment of $100.00 would cover the room rate plus deposit. When asked if he had a credit card, he 5 said that he did not. In fact he had one but did not want to mention it. After a "decent, civil" conversation, the clerk said that she would confer with the manager. From June of 1988, to May 20, 1991, the Respondent Ruby Cullen was employed by 571252 Ontario Ltd. as manager of the Red Dog Inn in Red Lake. In most respects, there was no conflict between the accounts of Mr. Angeconeb and Ms. Cullen. On December 13, 1988, Ms. Cullen came to the front desk and discussed the deposit policy with Mr. Angeconeb. He questioned why a deposit was required. She said it was necessary to pay for any charges for telephone calls or the restaurant, or to cover the cost of damage. Mr. Angeconeb indicated that he had two telephone calling cards and could not spend very much in the restaurant since he would only be in Red Lake overnight. He also said that he had "never been disrespectful to other people's property". Mr. Angeconeb characterized the conversation as "decent, reasonable, without anger". In her testimony, Ms. Cullen indicated that a copy of the deposit policy was posted on the wall to the left of the desk. Mr. Angeconeb testified in reply that he did not see the notice. Ms. Cullen did not claim that she drew it to his attention. She allowed that it was not in a prominent position and that it could easily be missed. In fact, from subsequent correspondence it appears that her superior, Mr. John Munro, did not know that it was posted. Ms. Cullen agreed to reduce the deposit to $50.00. This amount was paid and a receipt given. Mr. Angeconeb was assigned to Room 107 by the clerk. Exactly when this assignment occurred is unclear. Certainly, Ms. Cullen was present when the room key was handed to Mr. Angeconeb but she testified that she had no involvement with the actual room allocation. The front desk clerk was not called as a witness. Although Mr. Angeconeb described the clerk as a "Caucasian" woman, Ms. Cullen identified the clerk as Frieda Isaacs, a woman of native background. Ms. Cullen explained that she did not call her as a witness because of ill health. For reasons that will be apparent later, neither the identity nor the background of the clerk, nor the mechanical details of the room assignment, are essential to the resolution of this case. It is sufficient that the person responsible for assigning rooms assigned Room 107 to Mr. Angeconeb. He left his bags in the room and left for a meeting at the Native Friendship Centre. He was running late and had no real opportunity to observe the room. When he returned to the Red Dog Inn, the state of Room 107 became apparent. Mr. Angeconeb described it as "horrible". According to his account it reeked of alcohol and cigarettes, , there were cigarette burns on the rug and curtains, the bed spread was dirty, the bathroom was not clean, and there was no safety chain on the door. He took his bags and briefcase, and went to the front desk. He asked the clerk for another room and was taken to Room 106 where he spent the night. He was not advised that better rooms were available. Room 106 was described as "not all that much better". It was "a bit cleaner" and had a safety chain. While Mr. Angeconeb did not consider it a great improvement, it was acceptable. Ms. Cullen did not dispute Mr. Angeconeb 's factual description of the rooms but disagreed with his general characterization, especially the adjective "horrible". After spending the night in Room 106, Mr. Angeconeb checked out on December 14 1988. At this time, he handed over the deposit receipt and asked for his deposit. When this was done, Mr. Angeconeb requested a copy of the original deposit receipt. The clerk was not prepared to do this. Ms. Cullen intervened. After some conversation about Mr. Angeconeb's reasons for wanting a copy, it was provided. On the copy, Ms. Cullen endorsed a note indicating that the $50.00 amount was an exception to the usual practice. II. RELEVANT LAW: (a) Procedural Issues: The Respondent 571252 Ontario Ltd. did not attend the hearing although duly served with notice. During the teleconference conducted to set the hearing dates, the President of the numbered company, John Munro, indicated that it no longer operated the Red 8 Dog Inn, that it had no assets, and was not, in fact, operating at all. There was some suggestion that the company might be in the midst of some process of dissolution. At the commencement of the hearing, the Board inquired of Commission Counsel as to the legal status of the numbered company. A search had been conducted at the Companies Branch of the Ministry of Consumer and Commercial Relations and I requested that it be up- dated. Subsequently, a Certificate of Status was filed with this Board confirming that the numbered company was duly incorporated according to the laws of Ontario on February 2, 1984 and that, as of June 7, 1993, it had not been dissolved. A search of the Ministry file did not disclose any other documents which would make me doubt its status, or that Mr. Munro is both the President and a Director of the company. Although the absence of a representative from the corporate respondent produces some evidentiary problems, I am satisfied that I can consider the complaint against both the numbered company and Ruby Cullen, who has appeared to respond personally. Section 7 of the Statutory Powers Procedure Act entitles a tribunal to proceed with a hearing in a party's absence so long as notice of the hearing was given. The teleconference and the written notice satisfy this requirement (see Middleton v. 491465 Ontario Ltd et al (1992), 15 C.H.R.R. D/317). 9 With respect to the legal status of the numbered company, the evidence provided at the hearing confirms that the company has not been dissolved and continues as a legal entity. Therefore, there is no doubt that it is a proper respondent. Even if any steps have been taken towards dissolution, I am satisfied that this Board can proceed. In Rapson v. Stemms Restaurants Ltd (1991) 14 C.H.R.R. '. , , D/449, another Ontario Board of Inquiry concluded that s. 241(1) of the Business Corporations Act, 1982 S.O. 1982, c.4, as amended by , S.O. 1986, c. 57 and c. 64, provides the authority to continue a proceeding commenced against a corporation before its dissolution. (b) Substantive Issues: The Commission must prove on a balance of probabilities that the conduct of the Respondents, or either of them, towards Garnet Angeconeb at the Red Dog Inn between December 12 and 14, 1988 constituted discrimination because of race, ancestry, or colour, in the provision of services contrary to s.l of the Code, or an infringement of a right contrary to s.9 of the Code. The Commission's position is that the circumstances of this case qualify under the rubric of provision of services such that the complaint is properly brought under section 1 rather than section 2, the accommodation section. The relevant sections provide as follows: 10 "1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap. 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part." Various forms of treatment or conduct may constitute discrimination within the scope of s.l of the Human Rights Code. Clearly, there is no need to prove intention in order to establish discrimination see O'Malley v. Simpsons-Sears Ltd. [1985] 2 ( , S.C.R. 536]). In O'Mallev McIntyre,J. explained the anti- , discrimination objectives of the Ontario Human Rights Code in the following terms: "The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discrimination, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory." at page 547) ( McIntyre,J. amplified his explanation of discrimination in Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, where he . said: "I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or withholds or limits