Windsor restaurant threatened with human rights action after mask dispute at takeout window

After refusing food to a customer who wouldn't wear a mask at a walk-up takeout window, a local Thai restaurant was given an ultimatum: pay $20,000 or be taken to court. 

'I need to make sure my staff ... and my customers are safe,' restaurant co-owner says

Server Nhu Dang (left), co-owner Renu Anderson (middle) and Charles Anderson (right) say they are disappointed a customer has given them an ultimatum. (Jacob Barker/CBC)

After refusing food to a customer who wouldn't wear a mask at a walk-up takeout window, a local Thai restaurant was given an ultimatum: pay $20,000 or be taken to a human rights tribunal. 

Thai Palace received a hand-delivered letter Friday from Antoine d'Ailly Law Office, which states a claim of discrimination will be filed against the restaurant for violating the Ontario Human Rights Code. The letter demands that the owner hand over any and all video footage of the incident, which it says occurred on Oct. 7.

It also says the restaurant can settle the issue and avoid "the necessity of a formal process" by paying $20,000.

The restaurant's server Nhu Dang was working at the takeout window when the incident took place. 

"He came to pick up his takeout order and I politely asked him to put on a mask and he said he couldn't and I tried to explain the reasons why we have our policy and any alternatives that he can do to be able to get his takeout but clearly he didn't want to," Dang told CBC News. 

She said she also offered to give the man a disposable mask. 

After a few minutes, Dang said she went to get Thai Palace co-owner Renu Anderson. 

"I said 'Sir what's happening? what's wrong? Because like why you don't want to wear the mask?' and he just started yelling at me and said I have human rights ... you can't ask me for doctor's notes. I said,'You know, I run this place, I'm small business, I need to make sure my staff are safe and my customers are safe,'" Renu said. 

Mask signs posted 

She added that she told the man, who identified himself as a lawyer, that he could leave if he wasn't going to wear a mask. 

CBC News called Antoine d'Ailly Law Office four times and sent an email seeking comment on the letter, but have not received a response. It's not clear if the firm is representing someone or the lawyer was the one involved in the incident.

Thai Palace says since it is unable to remain six feet away from customers while giving them their takeout food, they require that people coming for pick-up wear a mask. (Jacob Barker/CBC)

Posted outside the restaurant are signs that say customers must be wearing a face mask. If someone is unable to wear one, the restaurant said they have a delivery service. 

In addition to threatening human rights action, the letter from the law office has requested that it receives a copy of the following evidence obtained between 7:30 p.m. and 8 p.m. on Oct. 7: 

  • Any and all camera footage showing the parking lot of the establishment. 
  • Any and all camera footage showing the pick-up window from the interior and exterior of the establishment. 
  • Any and all camera footage showing the kitchen and any other area inside the establishment visible from the pick-up window. 
  • The phone records of incoming and outgoing calls from the phone being operated by the person attending the pick-up window, including phone numbers and durations of any such calls
  • A list of the names of all persons employed or otherwise present at the establishment, including contact information and job title. 

The letter ends by saying that if the owners fail to respond on or before Oct. 16 at 5 p.m., the offer to settle will be revoked and human rights action will take place. 

"I don't think it has any merit. We have the right to refuse service," Thai Palace co-owner Charles Anderson said. "This is our business our establishment, if you don't want to follow the government rules, stay home." 

Businesses reserve right to refuse service, lawyer says 

The Windsor-Essex County Health Unit has said that when people cannot maintain six feet of distance from one another, they are advised to wear a mask but it is not mandatory. 

During the health unit's daily briefing Wednesday, Medical Officer of Health Wajid Ahmed said in a drive-thru where the distance between the server and the person is more than 2 metres and no direct interaction is taking place, it might be okay.

"But in a different type of takeout window where you are talking about the physical distancing piece that that cannot be maintained, then obviously we would recommend that people should be wearing a mask," he said. 

Lawyer Adam Savaglio says its a difficult time for businesses as they try to navigate the bylaws set in place. He says establishments are able to refuse service and if a person has a disability, the business would be given the opportunity to accommodate. (Scarfone Hawkins LLP)

Neither the health unit's section 22 order nor the city's mandatory masking bylaw outline any rules on wearing a mask at a takeout window. 

Corporate and commercial lawyer Adam Savaglio told CBC News that businesses do have the right to refuse service to customers, as long as they don't discriminate against them. 

"Businesses are trying to operate during the pandemic and in such a case, they should be given some flexibility, which many of these laws do not [have], in allowing them to figure out how they can best protect their employees," Savaglio said. "It's a very difficult time [with] fluid circumstances every day."

If someone has a disability, Savaglio said there should be a discussion between the person and business to see if an accommodation can be made.

As far as the offer to settle for $20,000, Savaglio said demand letters like these are becoming common practice.

"In the legal world sometimes it's seen as a courtesy to commencing litigation," Savaglio said.

Already challenging year

As a small restaurant, the owners said they are frustrated and noted that this incident only adds to an already difficult year for their business. 

"Every small business is struggling," Charles said. "It's hard right now and COVID rates are rising. Everybody has to be careful and do their due diligence not to spread the disease, we're just trying to do our part." 

Thai Palace said it is already incurring costs and is getting a lawyer of its own.