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The City of Toronto v. Josephs, 2018 ONSC 67 case revolves around racial discrimination between two customers while attending the Toronto East Provincial Court. To what extent can a service provider be held responsible when one customer mistreats another?
The Ontario Superior Court of Justice considered this question in City of Toronto v Josephs, decided earlier this year.
In Josephs the Court reviewed the decision of the Human Rights Tribunal of Ontario (the “Tribunal”). The Tribunal’s decision related to a verbal altercation between two customers at the City of Toronto’s Court Service Office (“the City”). One customer directed racial slurs towards the other, Mr. Josephs. Mr. Josephs and a witness approached the clerks and complained about the behaviour. The clerk advised that if the altercation became physical they would call security but typically people settle their own disputes. Mr. Josephs approached another clerk who left the room to get assistance from a Court Officer. Mr. Josephs also sought assistance from a Security guard who attempted to intervene. Mr. Josephs was under the impression the City was not willing to do anything.
Mr. Joseph’s felt the City had not handled the situation appropriately and filed an application with the Tribunal claiming discrimination under the Code.
The Tribunal was left to decide whether there is a duty owed by a service provider to a customer who has been racially harassed by another customer. To determine this, it applied the principles of a poisoned work environment with modification to consider the limited control the service provider has over customers in comparison to an employer employee relationship. A “poisoned” workplace environment is one in which employees experience some kind of mistreatment, including mistreatment by other employees. Employers can be held responsible for the “poisoning” of a workplace environment even if they are not directly responsible for any mistreatment.
The Tribunal held that service providers can be held responsible for the poisoning of a service environment. If customers and clients experience harassment—including harassment from other customers and clients—the service provider has a duty to intervene.
In this scenario, all but one of the City’s employees met the prompt, effectual and proportionate standards. The Tribunal found that the one employee’s inaction was sufficient to constitute discrimination and to breach the Code. The inadequate response of that one employee led to frustration and the understanding that the City was not willing to assist him.
The Tribunal decided in favour of Josephs and ordered damages in the amount of $1,500.00.
The City made an application for judicial review of the Tribunal’s decision. The City argued that the Tribunal made jurisdictional errors in reviewing the City’s actions. In addition, it submitted that the Tribunal’s finding was unreasonable for the following reasons:
a) the actions were by a non-supervisory employee;
b) relied on Josephs subjective understanding; and,
c) failed to consider the context for the court clerks comments.
While the Court reversed the Tribunal’s decision as it applied to the incident in question, it upheld the Tribunal’s finding that service providers can be held responsible for the creation of a poisoned service environment. The Court also agreed with the Tribunal that a poisoned service environment can arise from a single, especially severe incident; there is no requirement that there be a pattern of “poisonous” behaviour. In all cases, the service provider’s response must be reasonable and proportionate, given the circumstances.
The application for judicial review was granted and costs were awarded to the City.
The principles addressed here are interesting and may expand the theory of a poisoned work environment beyond an individual’s experience within their workplace.
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