Shopping Mall Discriminates Against Aboriginal People

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302

The B.C. Human Rights Tribunal ruled that Henderson Development (Canada) Ltd. and Securiguard Services Ltd. discriminated against Gladys Radek, other Aboriginal persons and persons with disabilities.

Henderson owns and operates International Village, a shopping mall opened in 1999 in the Downtown Eastside of Vancouver. The mall contains a large cinema called Tinseltown, a Starbucks, a McDonald's, a 7-Eleven and a number of other shops.

Gladys Radek is a middle-aged Aboriginal woman with a disability. She has mobility problems because she had a leg amputated after a motorcycle accident and she sometimes limps. She receives provincial disability benefits. At the time in question Ms. Radek lived across the street from the mall in Vancouver Native Housing. She alleged that she was discriminated against with respect to a public service on the grounds of race and disability by Henderson and Securiguard.

In particular, she alleged that on May 10, 2001 she went to the mall with her friend, Ms. Wolfe, for a cup of coffee at Starbucks. When she entered the mall, she was "greeted" by a female security officer, Ms. Hayer, and asked where she was going. Having had a number of encounters with security officers in the mall before, and with this security officer in particular, Ms. Radek and Ms. Wolfe ignored her and kept on walking. They were followed closely by Ms. Hayer. After some minutes of being followed, Ms. Radek asked Ms. Hayer what her problem was and why she did this all the time. Ms. Radek was insulted and angry about being treated in a demeaning way by Ms. Hayer.

Ms. Hayer radioed for her supervisor, and Mr. Clulow arrived. Mr. Clulow supported Ms. Hayer's conduct and told Ms. Radek and Ms. Wolfe that they were trespassing and causing a disturbance and had to leave. Ms. Radek told Mr. Clulow that Ms. Hayer was constantly harassing her, and she asked Mr. Clulow to show her a copy of the policy that gave him the authority to eject her from the mall. When Ms. Radek realized that Mr. Clulow was not going to show her the policy, she attempted to walk around him and continue in the direction of Starbucks. He put his hand on her shoulder to stop her. She attempted to walk around him again, and again he physically stopped her. Ms. Radek told Mr. Clulow that he was assaulting her.

Mr. Power, the site security manager, arrived at this point and asked what the problem was. Ms. Radek explained that she was constantly harassed by security officers when she came to the mall, that she was trying to go to Starbucks with her friend, and that Mr. Clulow had assaulted her in an attempt to prevent her from walking in that direction. Mr. Power informed her that the land and building were private property and that she would have to leave. Ms. Radek told Mr. Power that she believed that they were racists, and she wanted to see the policies of the mall. He told her to leave and the policies would be brought outside to her. Ms. Radek and Ms. Wolfe left the mall and went to sit on a bench outside. Ms. Radek called the police to complain that she had been assaulted by a security officer at the mall.

The Tribunal found that the Security Occurrence Reports filed by the security officers with respect to this incident identified Ms. Radek as a "suspicious person", although there was nothing in the appearance or behaviour of Ms. Radek or Ms. Wolfe on that day which could legitimately be characterized as "suspicious". Ms. Radek is identifiably Aboriginal, and was so identified by the security officers, as well as the two police officers that attended after the incident. She is also economically disadvantaged. She has a limited income, lives "on disability" and requires subsidized housing. Although poverty and economic circumstances are not prohibited grounds of discrimination under the Human Rights Code, the Tribunal found that Ms. Radek's economic circumstances were part of who she was and how she presented on May 10. They are integrally related to Ms. Radek's identity as an Aboriginal disabled woman. The Tribunal concluded that the security officers stereotyped Ms. Radek as "suspicious" because of her identity as a poor Aboriginal woman with a disability.

The Tribunal found that Ms. Radek was treated differently because of being Aboriginal and disabled. She was rudely questioned and followed when she entered the mall to get a cup of coffee. When she objected to this treatment she was told that she had to leave. When she stood up for herself and refused to leave, more security officers arrived. She was repeatedly told to leave the mall and prevented from going to Starbucks. This was not a normal experience for a person attempting to walk through a shopping mall, nor is it likely that a white person would have been treated in the same way. To treat a mall customer in the way that Ms. Radek was treated constituted different treatment in relation to a service customarily available to the public.

There was an additional fact in this case that defined the service customarily available to the public. Because it is on a pedestrian route to the SkyTrain, and situated on an old rail line, the International Village mall includes a statutory right of way. People have the right to pass and repass through the mall, unmolested and without harassment, whether they are going to one of the mall shops or not. Ms. Radek was not permitted to pass unmolested, unlike other members of the public.

The Tribunal also found that the discriminatory treatment of Ms. Radek was not an isolated incident, but part of a larger pattern of discriminatory treatment of Aboriginal people and people with disabilities by Henderson and Securiguard. The Tribunal examined the "site post orders" that were used by the mall to direct the security officers, and found that a number of elements in these orders had the effect of discriminating against and stereotyping economically disadvantaged people. Consequently, these orders disproportionately affected Aboriginal and disabled people. It also accepted evidence from a number of Aboriginal and disabled witnesses about the discriminatory treatment they received when trying to enter the mall.

The Tribunal concluded that Henderson and Securiguard discriminated against Ms. Radek, and discriminated systemically against Aboriginal and disabled persons. It ordered Henderson to ensure that all site post orders are non-discriminatory; to ensure that any security service provider, as well as on-site managers, receive anti-racism and disability awareness training; to establish an appropriate procedure for receiving and responding to complaints; and to provide a copy of this decision and any site post orders to any person who requests one. It awarded Ms. Radek $15,000 in compensation for the injury to her dignity, feelings and self-respect.

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