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Human Rights

Selective application of prepay policies a risky business

Restaurants with prepay policies should apply them to everyone or risk exposing themselves to a human rights complaint, Toronto human rights lawyer Andrew Carvajal tells AdvocateDaily.com.

The Human Rights Tribunal of Ontario (HRTO) recently ordered a Chinese restaurant in Toronto to pay a black man $10,000 in compensation after requiring him and three friends to prepay for their meals, the Globe and Mail reported.

The restaurant claimed the policy was intended to avoid “dine and dash” crimes and that it was only applied to customers that staff did not recognize as regulars. However, after a survey of patrons, the complainant found he and his friends, the only black people in the restaurant, were also the only ones who had been asked to prepay.

Carvajal, a partner with Desloges Law Group, says the case should serve as a warning to businesses with similar policies.   

“It’s a slippery slope,” he says. “This is the kind of policy that you have to apply to everyone or to nobody. You can’t pick and choose because, at the end of the day, you’re treating people differently.

“Often, when I’m called to defend this type of case, businesses will tell me they didn’t mean to discriminate, but the law is very clear that whether it’s intentional or not, differential treatment is a type of discrimination,” says Carvajal.

According to the Globe, the incident occurred in May 2014, when the complainant visited the restaurant near Toronto’s Chinatown district for a late-night dinner. After questioning a server about the prepay policy, they complied and then discovered they were the only ones who had done so. In response, the server offered them a refund and they left.   

HRTO adjudicator Esi Codjoe ruled that the restaurant had breached the man’s rights.

“His mere presence as a black man in a restaurant was presumed to be sufficient evidence of his presumed propensity to engage in criminal behaviour,” she wrote.

After filing a reply to the complaint, the restaurant was no longer represented by counsel and Carvajal says the outcome might have been different had they sought legal help.

“If they had been represented, I think they would have settled earlier because once you read the facts, the decision was not at all surprising,” he says. “It could have been worse for them if the complainant had asked for more than $10,000 or if all four of them had launched applications.”

Carvajal says human rights proceedings require a different strategy than more conventional litigation.

“There are no costs awards, so the applicant has nothing to lose. And when defendants lose, they tend to lose badly,” he says, adding that businesses can minimize the chances of an application by responding to the complaint when it's first made.

“What happens in the aftermath of an incident makes a huge difference,” Carvajal says.

“People can be really frustrated, but if they feel like their concerns have been heard, they’re much less likely to seek further action. If managers or owners are dismissive or defensive about an alleged act of discrimination, that’s when things are likely to escalate.”

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