Under section 46.3 (1) of Ontario’s Human Rights Code, an employer may be vicariously liable for the discriminatory acts of their employees. Such was the case in the recent Human Rights Tribunal decision of McCarthy v. Kenny Tan Pharmacy Inc.. [i]
Simply put, an organization is responsible for discrimination that occurs through the acts of its employees or agents, whether or not it had any knowledge of, participation in or control over these actions.[ii][iii]
The Applicant, Ms. Mary McCarthy, a black woman, alleged that on May 22, 2011, while shopping at a Shoppers Drug Mart store in Toronto, she was racially profiled by an employee, Ms. Balachandra, when she requested that the Applicant open her backpack for inspection. No store products were ever discovered in the Applicant’s backpack.
The Applicant filed an application under s.34 of the Human Rights Code alleging that the Respondent store had discriminated against her with respect to services because of her race and colour.
The Respondent store subsequently filed a response denying the allegations.
An oral hearing was commenced on September 19, 2013. The Applicant testified that during the time in the store, she had bent down to retrieve something from her backpack when the employee from the Respondent store approached her, and asked the Applicant to open her backpack. In spite of the fact that the Applicant stated that she had done nothing wrong, her backpack was searched by the employee, who then walked away without comment. The Applicant stated that she felt demoralized by being called a common thief.
Was the Applicant discriminated against based on her race and color?
The Tribunal in their analysis cited several case law examples addressing the issue of discrimination including Peel Law Association v. Pieters:
Furthermore, anti-Black racism and its subtle manifestations are well-recognized in Canadian law, including the recognition that a Black person can be treated adversely by a service-provider because of a conscious or an unconscious stereotype of Black people being criminals. [iv]
Among other factors which the Tribunal considered in their analysis was the statement by the employee who had asked the Applicant to open her backpack. The employee, under testimony, did not ever indicate that she had seen the Applicant place anything in her bag. The Tribunal stated, “given that Ms. Balachandra did not see the applicant put a product her bag, her strong belief that she had done so is completely illogical. In my view, the illogical nature of Ms. Balachandra’s strong belief, coupled with the fact that the applicant is a Black woman, is indicative that Ms. Balachandra was being influenced, consciously or unconsciously, by the stereotype that Black people are thieves.”[v]
The Tribunal was satisfied on a balance of probabilities, that race and colour were a factor in how the Applicant was treated, although not a sole factor, but a significant factor in the adverse treatment. The Tribunal clarified, “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.”
“…any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization. 2006, c. 30, s. 8.”
The Respondent store was ordered to pay the Applicant $8,000 as monetary compensation for injury to dignity, feelings and self-respect.
McCarthy v. Kenny Tan Pharmacy Inc. underscores the responsibility of employers to insure that their staff is well trained in regard to human rights policies, and that ultimately, the employer rather than the employee, may be liable for any breaches of the Code.
[i] McCarthy v. Kenny Tan Pharmacy Inc., 2015 HRTO 1303
[ii] A policy primer: Guide to developing human rights policies and procedures part 2 OHRC: December 2013
[iii] Vicarious liability does not apply to “harassment”. Please see Caldeira v. 2068006 Ontario, 2010 HRTO 760 (CanLII)
[iv] McCarthy v. Kenny Tan Pharmacy Inc., para. 54
[v] Ibid., para. 82