2011 SKCA 110, 2011 SKCA 110

Howard Johnson Inn v. Saskatchewan (Human Rights Tribunal)19242011-09-272011 SKCA 110 Saskatchewan Court of Appeal CHRR Doc. 11-3080 Howard Johnson Inn (operated by Empire Investments Corporation) and John Pontes Appellants v. Saskatchewan Human Rights Tribunal, Saskatchewan Human Rights Commission and Leslie Tataquason Respondents and Attorney General for Saskatchewan Intervener Date of Decision: September 27, 2011 (written reasons October 3, 2011) Before: Saskatchewan Court of Appeal, Richards, Ottenbreit and Herauf JJ.A. Reasons by: Richards J.A. Appeal from: (2010), 67 C.H.R.R.

D/75, 2010 SKQB 81; aff'g (2009), (SK HRT), 67 C.H.R.R. D/69 (S.H.R.T.) Document No.: 1924 Appearances by: John Pontes, on his own behalf Janice E. Gingell, Counsel for the Respondent Commission Thomson Irvine and Katherine Roy, Counsel for the Intervener APPEALS AND JUDICIAL REVIEW — error of law in findings on the evidence and in interpreting evidence — HUMANRIGHTS TRIBUNALS — reasonable apprehension of bias — CONSTITUTIONAL LAW — constitutional validity of humanrights legislation

Summary: The Saskatchewan Court of Appeal dismissed an appeal by John Pontes and Howard Johnson Inn from adecision of the Saskatchewan Human Rights Tribunal, which found that the respondents had discriminated against LeslieTataquason, a First Nations man. Mr. Tataquason is a member of the Yellowquill First Nation. He is a common-law partner of Roseann Durocher, who workedat the Howard Johnson Inn in Saskatoon, as a waitress, bookkeeper and dishwasher. On June 8, 2006, Ms. Durocher had been working at the Inn for a month. Mr.

Tataquason went into the restaurant at about1:45 p.m. to have a coffee while he waited for a bus. After he had been there for a while, Mr. Pontes came to the table andaggressively asked him who he was and what he was doing. Mr. Pontes yelled at him "Get out — this is not the FriendshipCentre" and escorted Mr. Tataquason to the door in full view of the patrons and employees of the restaurant. Mr. Pontes did not provide any reply to the complaint, and did not appear at the hearing. The Tribunal accepted theunchallenged evidence of Mr. Tataquason, Ms.

Durocher, and a long-time employee, Brenda Boulet, who testified that Mr.Pontes regularly abused employees and patrons who were of Aboriginal ancestry. The Tribunal ruled that Mr. Pontes discriminated against Mr. Tataquason and ordered the respondents to pay him $7,000 as

some compensation for the injury to his dignity. Mr. Pontes and Howard Johnson Inn appealed this decision to the Court of Queen's Bench on the grounds that: (1) theTribunal was biased; (2) s. 12 of The Saskatchewan Human Rights Code, which prohibits discrimination in services, isunconstitutional for vagueness; (3) the Tribunal erred in finding that there was a denial of a service; (4) the Tribunal erred infinding discrimination because of Mr. Pontes' reference to the "Friendship Centre"; (5) the Tribunal erred in its assessmentof the credibility of witnesses; and (6) the Tribunal erred by finding that Mr.

Tataquason suffered psychological harm withouthaving heard medical evidence. The Court of Queen's Bench found that the Tribunal's decision was reasonable on all the contested points, and dismissedthe appeal. In the Court of Appeal, Mr. Pontes' main argument was that the Tribunal did not accurately understand what had happenedin the restaurant. Mr. Pontes had a different version of events. He denied being in any way racist and questioned whyanyone would think he would ever want to offend customers or potential customers. The Court of Appeal found that Mr.

Pontes and Howard Johnson Inn deliberately chose not to participate in the Tribunalhearing. As a result, the Tribunal dealt with the evidence before it. Mr. Pontes cannot come forward now with an alternateversion of the facts and ask the Court of Appeal to act on it. His opportunity was at the proceeding before the Tribunal. Regarding bias, Mr. Pontes argued that Donald Worme, the Tribunal member who heard the complaint, was biased becausehe is a First Nations person himself. There is no merit in this submission, the Court of Appeal ruled.

If it is correct, the Courtwrote, "then former Chief Justice Laskin could never have heard a civil liberties case and former U.S. Supreme CourtJustice Thurgood Marshall could never have heard a race relations appeal". The Court rejected the argument that s. 12 is unconstitutional because of "vagueness". It is not vague in any constitutionalsense. Specifically, the term "services" is not so lacking in precision that it cannot be given legal

interpretation. The Court concluded that the Court of Queen's Bench made no error and dismissed the appeal. CASES CITED Howard Johnson Inn v. Saskatchewan (Human Rights Tribunal) (2009), (SK HRT), 67 C.H.R.R. D/69(S.H.R.T.): 1 Howard Johnson Inn v. Saskatchewan (Human Rights Tribunal) (2010), 67 C.H.R.R. D/75, 2010 SKQB 81: 4, 10 R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606: 20 R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484: 16 Wuttunee v. Merck Frosst Canada Ltd. (2008), 314 Sask. R. 90, 2008 SKCA 125: 20 LEGISLATION CITED Canada Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982(U.K.), 1982, c. 11 s. 1: 20 s. 2(b): 19 s. 15: 19 Saskatchewan Saskatchewan Human Rights Code (The), S.S. 1979, c. S-24.1 s. 12: 1, 19 s. 39(1): 8 I. INTRODUCTION [1]

Section 12 of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 says no person shall deny servicescustomarily offered to the public on the basis of, among other things, ancestry or race. A Human Rights Tribunal found thatthe appellants John Pontes and Howard Johnson Inn had offended s. 12 in connection with the treatment of a First Nationsman in the restaurant at the Inn [reported (SK HRT), 67 C.H.R.R. D/69]. [2] They unsuccessfully appealed this finding to the Court of Queen's Bench. [3] We dismissed their further appeal to this Court after oral argument and indicated brief written reasons would follow.These are those reasons.

II. BACKGROUND [ 4 ] The background circumstances of this appeal are set out in some detail in the Queen's Bench decision now found at 2010 SKQB 81 [reported 67 C.H.R.R. D/75]. As a result, I will do no more than provide a very brief overview of them in order to set the context for what follows. [ 5 ] The Tribunal, in the person of Donald Worme, Q.C., found that Leslie Tataquason, a First Nations man, attended the restaurant of the Howard Johnson Inn. He bought and paid for coffee and then sat down in the restaurant with his wife.

She was an employee of the restaurant and was doing some paperwork before her shift started. [ 6 ] Mr. Pontes then approached Mr. Tataquason in an aggressive manner and said "Can't you see she's working. Get out. This isn't the Friendship Centre". He pointed to the door and escorted Mr. Tataquason out of the restaurant. [ 7 ] The "Friendship Inn" is an establishment set up to provide free meals for the needy in downtown Saskatoon. Mr. Tataquason was deeply hurt by the treatment he received and said he spiraled into depression as a result of it. [ 8 ] The Tribunal concluded Howard Johnson Inn and Mr.

Pontes had denied Mr. Tataquason a service customarily offered to the public. It then noted s. 39(1) of the Code, which shifts the onus of proof once a deprivation of services is established. Section 39(1) reads as follows: 39(1) Where , in a proceeding under this Act, it is established that the party complained against , directly or indirectly, by himself, herself or any other person on his or her behalf: (

a) deprived or attempted to deprive a person or class of persons of the enjoyment: (

b) abridged or attempted to abridge the enjoyment by a person or class of persons; or (

c) otherwise restricted or attempted to otherwise restrict a person or class of persons in the enjoyment; of any accommodation, services or facilities which are offered to the public or which are ordinarily available to the public , or to which the public is customarily admitted, or of the occupancy of any housing accommodation or commercial unit, the onus is on the party against whom the complaint is made or the accused, as the case may be. to prove on a balance of probabilities that the deprivation, abridgment. restriction or attempted deprivation, abridgment or restriction was not because of discrimination against that person or class of persons contrary to any provisions of this Act or any other Act administered by the commission. [Emphasis added,] [ 9 ] Mr.

Pontes had chosen not to participate in the Tribunal hearing. As a result, there was no evidence to rebut the presumption created by s. 39(1). Mr. Pontes and the Howard Johnson Inn were found to have breached s. 12 of the Code. They were ordered to pay Mr. Tataquason $7,000. [ 10 ] On appeal to the Court of Queen's Bench, counsel for Mr. Pontes and Howard Johnson Inn raised several points on their behalf. These points included: (

a) an allegation that the Tribunal's decision should be set aside because of an apprehension of bias in relation to Mr. Worme, (

b) an argument that s. 12 of the Code was constitutionally invalid because of vagueness, (

c) various suggestions that the evidence had been misunderstood or improperly considered, and (

d) a submission that the Tribunal had mishandled the assessment of credibility. The Chambers Judge had little difficulty dismissing these arguments. III. ANALYSIS [ 11 ] Counsel for Mr. Pontes and Howard Johnson Inn was allowed to withdraw before the commencement of the oral argument in this Court but the factum she had filed remained on the record. Mr. Pontes then proceeded to advance reasons why the appeal should be allowed while, at the same time, continuing to rely on the factum which had been filed on his behalf. [ 12 ] Mr.

Pontes' main argument, and main concern, is that the Tribunal did not accurately understand what had happened in the restaurant. He had a different version of things than the one provided to the Tribunal by Mr. Tataquason and the other witnesses who appeared at the hearing. Mr. Pontes denied being in any way racist, said he employs people with a variety of racial backgrounds and, as a restaurant and hotel operator, questioned why anyone would think he would ever want to offend customers or potential customers. [ 13 ] The problem with all of this is quite simple. Mr.

Pontes and the Howard Johnson Inn deliberately chose not to participate in the Tribunal hearing. As a result, the Tribunal could only deal with the evidence presented by the Commission. There was nothing else before it. Mr. Pontes cannot step forward at this late date with an alternate version of the facts and ask this Court to act on it. His opportunity to tell his story was at the proceeding before the Tribunal. He freely decided to boycott that hearing and is now paying the price for his decision. This Court cannot reopen the Tribunal proceedings to entertain a new version of what did and did not happen to Mr.

Tataquason. [ 14 ] We are also not persuaded by any of the submissions set out in the factum filed by former counsel for Mr. Pontes and Howard Johnson Inn. Three main arguments can be found there. I will briefly deal with each of them. [ 15 ] The first argument relates to bias. It is submitted that the Tribunal's decision should be set aside because there was a reasonable apprehension of bias on the part of Mr. Worme. This apprehension is said to arise because Mr. Worme is himself a First Nations person and has worked to promote First Nations' interests and the rights of First Nations people.

There is no merit in this submission. If it is correct, then former Chief Justice Laskin could never have heard a civil liberties

case and former U.S. Supreme Court Justice Thurgood Marshall could never have heard a race relations appeal. [16] In more purely legal terms, what counsel for Mr. Pontes failed to appreciate is that the concept of a reasonableapprehension of bias takes account of the fact that all judicial-type decision makers have real life experience andknowledge. The Supreme Court of Canada explained this as follows in R. v.

S. (R.D.), (SCC), [1997] 3S.C.R. 484 (at § 48–49): We conclude that the reasonable person contemplated by de Grandpre J., and endorsed by Canadian courts is a personwho approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualizedunderstanding of the issues in the case. The reasonable person understands the impossibility of judicial neutrality, butdemands judicial impartiality. The reasonable person is cognizant of the racial dynamics in the local community, and, as amember of the Canadian community, is supportive of the principles of equality.

Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable personwould require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. There must be some indication that the judgewas not approaching the case with an open mind fair to all parties.

Awareness of the context within which a case occurredwould not constitute such evidence; on the contrary, such awareness consistent with the highest tradition of judicialimpartiality. [17] All of this is directly applicable here. The record does not disclose the sorts of work Mr. Worme might have done toassist First Nations peoples but the mere fact he has been engaged in such efforts does not disqualify him from hearingcomplaints like the one filed against Mr. Pontes and the Inn. [18] The other aspect of the bias argument is that Mr.

Worme was biased, or there would be a reasonable apprehension ofsuch bias, because he had been at the receiving end of some verbal abuse from Mr. Pontes during the course of a pre-hearing telephone conversation. There is no substance to this argument either. As noted, there is absolutely nothing in therecord or otherwise to suggest Mr. Worme was unable to look fairly and objectively at the issues before him. He may havebeen involved in an unpleasant conversation.

This does not mean there is room to believe he acted in anything other thanan entirely scrupulous manner in deciding the complaint presented to the Tribunal. [19] The second argument found in the factum filed on behalf of Mr. Pontes and Howard Johnson Inn concerns the notion ofvagueness and involves a submission to the effect that s. 12 of the Code is unconstitutional on Charter grounds. The preciseline of this argument is difficult to ascertain from the factum and, in the end, it is not wholly clear. Nonetheless, thesubmission does revolve around the idea that ss. 2(

b) and 15 of the Charter are offended because s. 12 is vaguely worded. [20] This argument fails on at least three grounds. First, it was raised for the initial time on appeal and thus without givingthe Attorney General an opportunity to marshal and present the evidence relevant to establishing that any limitation of rightscreated by the

section is one which is reasonable within the meaning of s. 1 of the Charter. See: Merck Frosst Canada Ltd.v. Wuttunee, 2008 SKCA 125, 314 Sask. R. 90. Second, it is in no way apparent how the concept of "vagueness" implicateseither s. 2(

b) or s. 15 of the Charter. Former counsel's concerns in this regard appear to be wholly misplaced. Finally, s. 12 issimply not "vague" in any constitutional sense. Specifically, the term "services" is not so lacking in precision as not to givesufficient guidance for legal debate. See: R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R.606 at 643. [21] The third line of argument advanced in the factum involves several strands but basically reduces to the idea that theTribunal, and then the Chambers Judge in turn, did not properly appreciate or apply the evidence.

We see no merit in theissues raised in this regard. This was a straightforward hearing with limited testimony. The Tribunal made no reviewableerror in dealing with that evidence. In any event, absent a problem in dealing with the facts which amounts to an error of law,there is no right of appeal to the Court of Queen's Bench in respect of such matters. IV. CONCLUSION [22] The Chambers Judge made no error in deciding not to allow the appeal from the decision of the Tribunal. The appeal ofMr. Pontes and Howard Johnson Inn to this Court must be dismissed. There will be no order as to costs.